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Clevenger v. City of North Webster Police Department

United States District Court, N.D. Indiana, South Bend Division

August 14, 2017

CLIFFORD CLEVENGER, Plaintiff,
v.
CITY OF NORTH WEBSTER POLICE DEPARTMENT, et al., Defendants.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE UNITED STATES DISTRICT COURT

         This case results from an unfortunate typographical error made by a divorce court which led to Clifford Clevenger being arrested and jailed for a few hours, but then released without charges being filed. The court order at issue states a “provisional order” is terminated, when it apparently meant to say that the “protective order” was terminated. Clevenger was arrested at his son's school for violation of the protective order. He then brought suit against a bevy of defendants who can be cataloged into three groups: group one is the City of North Webster Police Department, Police Officer Church, and North Webster Chief of Police (the “North Webster Defendants”); group two is the Kosciusko County Sheriff's Department, Kosciusko County Sheriff Deputy Knafel and Sergeant Shepherd (the “Kosciusko Defendants”); and group three, the Wawasee Community School Corporation, North Webster Elementary and the acting principal Christie Holst (the “School Defendants”). Clevenger makes claims under section 1983 and 1985 alleging Fourth Amendment violations of wrongful arrest, false imprisonment, and use of excessive force, as well as state law claims of assault, battery, false imprisonment, false arrest, and negligent infliction of emotional distress.

         All three groups of defendants now seek summary judgment [DE 66, 70, 91]. There are also three motions to strike certain exhibits and portions of an affidavit [DE 85, 108, 115]. To summarize this longish opinion, the motions to strike are all denied as I can sift through the evidence myself and consider each piece under the applicable rules. The motions for summary judgment are all granted as the arresting officers are entitled to qualified immunity because they had, at the very least, arguable probable cause to make the arrest. As for the municipalities, they don't have liability under Monell, the use of force was reasonably necessary to make the arrest, and Plaintiff has not established a federal claim for false imprisonment. Because I have granted summary judgment for all of the defendants on the federal claims, I will dismiss without prejudice the state law claims.

         Factual Background

         Clevenger was married to Heather DeSomer until 2012, when DeSomer filed a petition for dissolution of the marriage. Clevenger and DeSomer have five children, three of whom were minors as of December 2016, and DeSomer has physical custody over the minor children.

         Clevenger and DeSomer's divorce is final; however, post-dissolution proceedings regarding issues like visitation and support are ongoing. [Clevenger Dep. at 7.] As part of the post-dissolution proceedings, the dissolution court issued a Protective Order on November 8, 2012. [DE 72-1.] The Protective Order has Case No. 43C01-1211-PO-239 at the top, and states that Clevenger “is ordered to stay away from the residence, school, and/or place of employment of [DeSomer].” Id. The Protective Order expires two years after November 8, 2012. Id. DeSomer worked for the Wawasee Community School Corporation, at its North Webster Elementary School. Her son, Caleb, went to school there as well.

         About nine months later, the dissolution court issued an order, dated August 14, 2013 (the “August 2013 Order”), which is at the heart of this controversy. [DE 72-2.] The order states, in pertinent part, that “[t]he Provisional Order entered by this Court under Cause Number 43C01-1211-PO-239 is hereby terminated.” Id. Neither the words “Protective Order, ” nor the date of the Protective Order (November 8, 2012), are contained in this order. There is in fact something known as a “provisional order” under Indiana divorce laws. That is the order that is commonly entered by a court when a complaint seeking a divorce is first filed. The purpose of the provisional order is to govern the rights of the parties while the divorce is pending but prior to its disposition. See Mosley v. Mosley, 906 N.E.2d 928, 929-30 (Ind.Ct.App. 2009); Ind. Code § 31-15-4-14. Hence the moniker “provisional.” So the fact that the state court in this case said that the “provisional order . . . is hereby terminated” is not a fact that would have struck someone as odd.

         On November 14, 2013, Clevenger was off work and was in Warsaw, Indiana, close to North Webster Elementary School. [Clevenger Dep. at 39-40.] It was near lunchtime, so he decided to stop by the school to visit his son, Caleb, and perhaps eat lunch with him. Id. When he arrived at the school, Clevenger asked the receptionist, Janette Fisher, when Caleb had lunch and if he could talk to Caleb. [Id. at 41, 43-45.]

         Officials at the school knew about the protective order, and someone called the North Webster Police Department to report Clevenger's presence and the potential protective order violation. [Police Chief Church Aff. ¶ 3.] Officer Church responded by going to North Webster Elementary School. [Id. ¶ 4.] Before he arrived, Officer Church was advised by Central Dispatch that there was an active protective order in place, preventing Clevenger from being at the school where his ex-wife worked. [Id. ¶ 5.]

         While Officer Church was en route to the school, Christie Holst (wrongly pled as North Webster School Employee “Holtz”), who was acting Principal, approached Clevenger and asked why he was at the school. [Holst Aff. ¶ 10.] Clevenger said he wanted to see his son, and according to Holst, he was “loud and belligerent and refused to say why he wanted to see his son.” [Id. ¶ 11.] Clevenger denies being loud or disruptive. [Clevenger Aff. ¶ 15.] Holst claims she asked Clevenger to leave, and he stated he wanted to have lunch with his son. [Holst Aff. ¶ 12.] Holst also claims she told Clevenger Caleb's lunch period was not for another two hours, and he could not remain on the premises [Id. ¶ 13], but Clevenger denies this and denies he was ever asked to leave [Clevenger Aff. ¶ 10]. Holst escorted Clevenger to an office and asked him to wait until Officer Church arrived. [Holst Aff. ¶ 14.] At some point during this process, someone spoke to DeSomer and she also said that the Protective Order was no longer in effect. [Compl. ¶ 15j.]

         When Officer Church arrived on the scene, he asked Clevenger to come with him into another office, and then told Clevenger, “[y]ou know you're not supposed to be here, ” to which Clevenger replied, “if you're referring to the protective order it was vacated.” [Clevenger Dep. at 49; Church Aff. ¶ 6.] Clevenger showed Officer Church a copy of the August 2013 Order. [Clevenger Dep. at 55-56; Church Aff. ¶¶ 7-8.] The problem is that the paperwork said no such thing. Indeed, Officer Church immediately recognized the fact that the order stated that a “provisional” order had been terminated not that the Protective Order had been terminated. [Church Aff. ¶ 8.]

         Sergeant Knafel with the Kosciusko County Sheriff's Department arrived next, and also talked with Clevenger. Sergeant Knafel and Police Chief Church contacted Central Dispatch to confirm for a second time whether the Protective Order was still in effect. [Church Aff. ¶ 10.] Central Dispatch's records division again confirmed that the Protective Order was still in place, there was no record of the order being vacated, and faxed a copy of the Protective Order to the school. Id.

         Sergeant Knafel and Police Chief Church told Clevenger that the Protective Order was still in effect, but Clevenger disagreed. [Clevenger Dep. at 75.] During this exchange, Clevenger was using his cell phone to video and record his conversation with Police Chief Church and Sergeant Knafel. [Clevenger Dep. at 76.] I have watched the DVD of the incident so there is not much room for doubt as to precisely what took place. See Exhibit F to the Kosciusko County Defendants' Designation of Evidence. Here's what happened: Clevenger told the officers he was “just going to leave, ” at which point Sergeant Knafel hit Clevenger's hand, knocking his phone to the ground. [Clevenger Dep. at 76.] Sergeant Knafel then grabbed Clevenger's arm, “crank[ed] it behind [his] back, ” handcuffed Clevenger, and took him out of the school. [Id. at 76-77, 81.] Clevenger is not sure whether any other officer assisted Sergeant Knafel with the handcuffing process. [Id. at 85.] Clevenger was not injured when Sergeant Knafel knocked the phone out of his hand “[o]ther than red marks and other things like that.” [Clevenger Dep. at 82.] Aside from cranking his arm back, the officers did not use any other force on Clevenger. [Id. at 85-86.]

         Clevenger was transported to the Kosciusko County Jail by Officer Sheperd. Clevenger was placed in a holding cell, but was released later the same day. During the time Clevenger was in the holding cell, the dissolution court issued another order. It must have recognized that the earlier order terminating the “provisional” order was an error, because the new order specifically states that “[t]he Protective Order entered by this Court under Cause Number 43C01-1211-PO-239 is hereby terminated.” [DE 72-6 at 1 (emphasis added).] A copy of the Amended Order was then sent to the Kosciusko County Sheriff's Department, and Clevenger was promptly released and no charges were ever filed against him. Id.

         Discussion

         I'll start with the motions to strike. Three of them have been filed: (1) the Kosciusko Defendants move to strike various paragraphs from the affidavit of Clifford A. Clevenger (Plaintiff's father) as inadmissible hearsay [DE 85 at 2]; (2) Plaintiff moves to strike Exhibit D (Plaintiff's discovery responses and letters requesting Plaintiff supplement the responses), as procedurally inappropriate under Federal Rule of Civil Procedure 37 [DE 108]; and (3) the School Defendants move to strike Exhibit B to Plaintiff's response to Defendants' motion for summary judgment (affidavit of Plaintiff Clifford Clevenger) as containing conclusory allegations and as an inappropriate way to set forth the statement of genuine disputes under Rule 56 [DE 115].

         Motions to strike are heavily disfavored, and usually only granted in circumstances where the contested evidence causes prejudice to the moving party. Kuntzman v. Wal-Mart, 673 F.Supp.2d 690, 695 (N.D. Ind. 2009); Gaskin v. Sharp Elec. Corp., No. 2:05-CV-303, 2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007). I can consider the affidavits and exhibits without the need to employ a motion to strike.

         With respect to the alleged hearsay objection, I only consider evidence that would be admissible at trial. See Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000). I can sift through the evidence and consider each piece under the applicable federal rules. Indeed, it is the function of a court, with or without a motion to strike, to review carefully both statements of material facts and statements of genuine issues and the headings contained therein and to eliminate from consideration any argument, conclusions, and assertions unsupported by the documented evidence of record offered in support of the statement. See, e.g., SEC v. KPMG LLP, 412 F.Supp.2d 349, 392 (S.D.N.Y. 2006); Sullivan v. Henry Smid Plumbing & Heating Co., Inc., No. 04 C 5167, 05 C 2253, 2006 WL 980740, at *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., No. 03 C 2249, 2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor, 324 F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004).

         Therefore, there is no need to strike any portion of the Defendants' or Plaintiff's evidence. So the motions to strike are all denied.

         Let's move now to the meat of the case, the motions for summary judgment. Summary judgment must be granted when “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). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could ...


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