United States District Court, N.D. Indiana, Hammond Division
GLENN D. WARE, Plaintiff,
GARY COMMUNITY SCHOOL CORPORATION, and MICHAEL BROWN, Defendants.
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE.
matter is before the Court on a Motion for Summary Judgment
[DE 93], filed by Defendants Gary Community School
Corporation (GCSC) and Michael Brown on March 1, 2017. For
the reasons set forth below, the Motion is granted in part
and denied in part.
Glenn D. Ware initiated this civil rights action on February
3, 2015. The controlling complaint is the Third Amended Civil
Rights Complaint, filed on November 27, 2015. On February 9,
2016, the Court dismissed the claims brought against Brown in
his official capacity.
and Brown filed the instant Motion for Summary Judgment on
March 1, 2017. Ware filed a response on May 15, 2017. GCSC
and Brown filed a reply on May 30, 2017. The Motion is fully
briefed and ripe for ruling.
Brown, and GCSC orally agreed on the record 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 his 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.
deposition, Ware testified as follows. On February 3, 2013,
at around 9:00 p.m., an incident occurred with Brown at a gas
station. Ware was in the gas station, and as he was paying
for his items, a car pulled up and “kind of blocked the
gas station's door.” (Pl.'s Ex. A, 43:21-22,
ECF No. 105-2). Brown recognized the car as a GCSC police
car. Brown entered the gas station in full uniform with a
badge that identified him as M. Brown. Brown told Ware that,
“[w]ith those big [expletive] pants you got on, if you
was to run from me, you couldn't get away.”
Id. at 44:7-9. Ware replied that “[w]ith your
[expletive] car blocking the gas station door, and I'm
handicapped, I couldn't run from you no way.”
Id. at 44:9-11.
proceeded to his vehicle. When he was approximately four feet
from the vehicle, Brown ran out of the gas station and called
to Ware. Ware turned to Brown and Brown swung at Ware with
his right hand. Ware blocked the swing. Brown told Ware to
put Ware's hands on the vehicle. Ware laid on the car
with his palms up. Brown ran up behind Ware, grabbed Ware by
the back of the neck, lifted him off the ground, and forced
his face into the hood of the car. Brown pulled his weapon
out. Brown proceeded to smash Ware's face into Ware's
vehicle. Brown also searched Ware's vehicle without
consent. When Ware indicated that he did not consent to the
search, Brown told Ware to be quiet and to stand to the side
of the vehicle.
called the Gary Police around 9:30 p.m. that same night to
report the incident. Ware was told to return to the gas
station, and when he returned to the station, Brown was still
there. Officer Allen Glenn met with Ware. Officer Glenn
informed Ware that Brown was a GCSC Officer and not a Gary
Police Officer. GCSC communicated that Brown was its
spoke with an Officer Horton twice within two weeks of the
incident. In his statement of facts, Ware asserts that Horton
is an officer for GCSC. However, none of the cited evidence
states who Horton's employer is.
also submits other assertions in his statement of facts, but
the pages of Ware's deposition that were cited in support
of these statements were not submitted to the Court or do not