United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY, UNITED STATES DISTRICT COURT MAGISTRATE JUDGE
matter is before the Court on Defendant Sheriff John
Buncich['s] Motion for Summary Judgment [DE 59], filed on
December 28, 2016. For the reasons stated below, the Court
grants the motion.
Rebecca Zander initiated this cause of action on November 3,
2014, by filing a Complaint. With the Court's leave,
Zander filed an Amended Complaint on June 23, 2015. In the
Amended Complaint, Zander brings claims against Samuel
Orlich, Jr. in his individual and official capacities; John
Buncich, Sheriff of Lake County, Indiana; and Lake County,
December 23, 2016, an agreed Motion to Dismiss was filed as
to Zander's claims against Orlich in his official
capacity. The Court granted that Motion on January 3, 2017.
December 30, 2016, Orlich filed a Motion for Summary
Judgment. The Court denied that motion on May 25, 2017.
January 10, 2017, an agreed Motion to Dismiss was filed as to
Zander's claims against Lake County, Indiana. The Court
granted that motion on January 11, 2017.
December 28, 2016, Buncich filed the instant Motion for
Summary Judgment and a memorandum in support. On January 25,
2017, Zander filed a response. Buncich filed a reply on
February 8, 2017. The motion is fully briefed and ripe for
and Orlich orally agreed on the record and Buncich filed a
form of consent to have this case assigned to a United States
Magistrate Judge to conduct all further proceedings and to
order the entry of a final judgment in this case. Therefore,
this Court has jurisdiction to decide this case pursuant to
28 U.S.C. § 636(c).
Federal Rules of Civil Procedure require that a motion for
summary judgment be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “Summary
judgment is appropriate when no material fact is disputed and
the moving parties are entitled to judgment as a matter of
law, meaning that no reasonable jury could find for the other
party based on the evidence in the record.” Carman
v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).
seeking summary judgment bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, that it believes demonstrate the
absence of a genuine issue of material fact. See
Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56 (a), (c). The
moving party may discharge its initial responsibility by
simply “‘showing'-that is, pointing out to
the district court-that there is an absence of evidence to
support the nonmoving party's case.”
Celotex, 477 U.S. at 325; see also Spierer v.
Rossman, 798 F.3d 502, 508 (7th Cir. 2015). When the
nonmoving party would have the burden of proof at trial, the
moving party is not required to support its motion with
affidavits or other similar materials negating the
opponent's claim. Celotex, 477 U.S. at 323, 325;
Spierer, 798 F.3d at 507-08; Modrowski v.
Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).
the moving party puts forth evidence showing the absence of a
genuine dispute of material fact, the burden shifts to the
non-moving party to provide evidence of specific facts
creating a genuine dispute.” Carroll v. Lynch,
698 F.3d 561, 564 (7th Cir. 2012). The non-moving party
cannot resist the motion and withstand summary judgment by
merely resting on its pleadings. See Fed. R. Civ. P.
56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d
764, 769 (7th Cir. 2015) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving
party must “do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)
(1986)). Rule 56(e) provides that “[i]f a party fails
to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by
Rule 56(c), the court may . . . consider the fact undisputed
for purposes of the motion [or] grant summary judgment if the
motion and supporting materials-including the facts
considered undisputed-show that the movant is entitled to it
. . . .” Fed.R.Civ.P. 56(e); see also
Anderson, 477 U.S. at 248-50.
viewing the facts presented on a motion for summary judgment,
a court must construe all facts in a light most favorable to
the non-moving party and draw all legitimate inferences in
favor of that party. See Anderson, 477 U.S. at 255;
McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765
(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d
940, 948 (7th Cir. 2009). A court's role is not to
evaluate the weight of the evidence, to judge the credibility
of witnesses, or to determine the truth of the matter, but
instead to determine whether there is a genuine issue of
triable fact. See Anderson, 477 U.S. at 249-50.
September 19, 2013, Orlich was working as a deputy for the
Lake County Sheriff's Department (LCSD). He was wearing
his LCSD uniform, wearing a LCSD badge, and carrying on his
gun belt a Glock .40 caliber gun, two sets of handcuffs, and
two handgun magazines.
same day, Zander's husband called county dispatch to
report a domestic disturbance at his residence on Georgia
Street. Dispatch did not initially send Orlich to the call,
but Orlich indicated that he would go on the call. Orlich was
driving his LCSD-issued police vehicle. Orlich called
dispatch to obtain details regarding the divorce proceedings
between Zander and her husband.
time after his arrival at the scene, Orlich told Zander that
she must leave the Georgia Street home and go to her other
house on White Oak Avenue or go to the Lake County Jail.
Orlich testified that this was done in order to give Zander
and her husband a cool-down period. Zander told Orlich that
she could not go to the White Oak Avenue house because the
furnace and electric panel had been dismantled.
Michael Miller was also at the scene and was the supervising
officer. Miller described Zander as upset, flustered, and
talking fast. Miller did not recall, nor did his narrative
report indicate, any reason why Zander could not drive her
own vehicle to the White Oak Avenue house. Zander and her