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Harrison v. Town of Griffith

United States District Court, N.D. Indiana, Hammond Division

October 19, 2017

GARY JOE HARRISON, Plaintiff,
v.
TOWN OF GRIFFITH, GRIFFITH POLICE DEPARTMENT, JASON JAQUES, TONY MORRIS, GREG MANCE, and DAVID BORGETTI, Defendants.

          OPINION AND ORDER

          PAUL R. CHERRY MAGISTRATE JUDGE

         This matter is before the Court on a Motion for Summary Judgment [DE 79], filed by Defendants Town of Griffith, Griffith Police Department, Jason Jaques, Tony Morris, Greg Mance, and David Borgetti on April 28, 2017, and on a Motion to Strike Non-Sworn Statements Contained in Plaintiff's Response to Defendants' Motion for Summary Judgment [DE 85], filed by Defendants on June 6, 2017. All motions were fully briefed on June 20, 2017.

         In his First Amended Complaint, filed on July 2, 2015, Plaintiff Gary Joe Harrison brings claims under 42 U.S.C. § 1983 for alleged violations of the United States Constitution. In Count I, Harrison alleges claims of excessive force by Defendants Officers Jason Jaques, David Borgetti, and Tony Morris in violation of the Fourth and Fourteenth Amendments to the United States Constitution. Harrison asserts that he suffered the following injuries from the officers' alleged excessive use of force: a broken left arm and wrist, stomach injuries, and injuries to his mouth. See (ECF 80-7) (Resp. to Inter. No. 12).[1] In Count II, Harrison alleges a claim of failure to train and supervise with regard to the alleged excessive force against Defendants Chief of Police Greg Mance, the Town of Griffith, and the Griffith Police Department. Counts III and IV are claims of deprivation of necessary medical care against Defendants Officers Jaques, Borgetti, and Morris and against Defendant Chief Mance, respectively. Count V alleges a claim of failure to train and supervise with regard to the deprivation of necessary medical care against Defendants Chief Mance, the Town of Griffith, and the Griffith Police Department.

         The parties filed forms 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).

         SUMMARY JUDGMENT STANDARD

         The 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 [juror] could find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).

         A party 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).

         “Once 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.

         In 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.

         MOTION TO STRIKE

         In the Motion to Strike, Defendants ask the Court to strike from the record two factual assertions in Plaintiff's Response Brief in Opposition of Defendants' Motion for Summary Judgment that contain inadmissible evidence. Defendants also ask the Court to strike the legal arguments made based on the unsupported factual assertions. Harrison did not respond to the Motion to Strike.

         First, Harrison's “Statement of Genuine Disputes” includes the statement: “As Officer Jaques was escorting Mr. Harrison out of the cell, he intentionally torqued Mr. Harrison's wrist causing Mr. Harrison severe pain.” (ECF 82, p. 2 (citing ECF 80-4) (Def. Ex. 4-Cam Cell 1 at 9:45:30)). The only evidence cited in support of this factual assertion is the police video. However, the video does not show that Officer Jaques “intentionally torqued Mr. Harrison's wrist.” See (ECF 80-4). At the time of 9:45:30 on Cam Cell 1, Harrison's wrists are not visible. What is visible at that time on Cam Cell 1 is that Harrison hit his upper arms on the cell door frame, stopping his forward motion. Id. Harrison has not testified under oath or offered any sworn statement that Officer Jaques injured Harrison's wrist when his hands were behind his back as they were walking out of the cell.

         Also, Harrison's prior testimony contradicts this new, unsupported assertion made in his response brief. Harrison previously testified that Officer Jaques attacked him in the cell and popped his wrist while his wrist was in front of him when Harrison was on or near the bed; Harrison gestured during his videotaped deposition to show how the events allegedly occurred. See (ECF 83- 1, pp. 19:3-22; 46:16-53:18; 130:4-132:21; 147:10; 150; 3; 157:25-158:13); see also (ECF 85-1) (Ex. 1 to Mot. to Strike-Video Dep. Gary Joe Harrison); (ECF 84, 86, 87, 88) (manual filing of video).

         As the new version of the events in the response brief is not supported by the videotape recording and is contrary to Harrison's prior deposition testimony, the Court grants the Motion to Strike as to this statement and STRIKES from Harrison's Statement of Genuine Issues the sentence: “As Officer Jaques was escorting Mr. Harrison out of the cell, he intentionally torqued Mr. Harrison's wrist causing Mr. Harrison severe pain.” (ECF 82, p. 2 (citing Def. Ex-4 Cam Cell 1 9:45:30)).

         Second, Harrison's Statement of Genuine Issues provides that Officer “Jaques placed him in handcuffs.” (ECF 82, p. 2 (citing generally Def. Ex. 4)). Harrison also indicates several times in the Law and Argument section that Harrison was in handcuffs and that “it was clearly established law that it was unlawful to use excessively tight handcuffs and apply significant force to suspects that were not resisting arrest, did not disobey orders, and did not pose a threat.” (ECF 82, p. 4). Harrison then reasons that “[a] reasonable jury can find that Jaques knew that applying unreasonable force to Harrison's wrists that were bound in handcuffs when he was not resisting violated Harrison's constitutional rights.” Id.

         Harrison cites no evidence that Officer Jaques placed Harrison in handcuffs. Rather, Harrison testified that Officer Jaques did not have handcuffs and did not place Harrison in handcuffs. (ECF 83-1, p. 50:3-51:15). The video also shows that Harrison was not placed in handcuffs. (ECF 80-4). The Court grants the Motion to Strike as to this statement and STRIKES the asserted fact: “Jaques placed him in handcuffs.” (ECF 82, p.2). As a result, the Court disregards Harrison's legal citations and arguments referencing unreasonable or excessive force in relation to the use of handcuffs.

         MATERIAL FACTS

         On April 18, 2014, Griffith Police Department Officers Jason Jaques and David Borgetti responded to a residence in Griffith, Indiana, as a result of a domestic violence disturbance call. (ECF 80-1, ¶ 3; 80-2, ¶ 3). Upon arrival, Officers Jaques and Borgetti spoke with the complainant Cathy McFerren, who represented that she was Plaintiff Gary Jo Harrison's ex-wife. (ECF 80-1, ¶ 4; 80-2, ¶ 4). The Officers observed blood coming from McFerren's nose and a bump on the top of her head. (ECF 80-1, ¶ 5; 80-2, ¶ 5). Harrison was detained on suspicion of domestic battery and was transported to the Griffith Police Department. (ECF 80-3). Harrison showed no signs of being in need of medical care, nor did he request medical treatment. (ECF 80-1, ¶ 10; 80-2, ¶ 10).

         Once at the Griffith Police Department, Officers Jaques and Borgetti directed Harrison to the Cell Hall where they searched him and had Harrison remove his personal belongings. (ECF 80-4) (Griffith Police Department Surveillance Video); (ECF 80-1, ¶ 11; 80-2, ¶ 11). The officers then placed Harrison in Cell 1 and left the area. (ECF 80-4); (ECF 80-1, ¶¶ 12-13; 80-2, ¶¶12-13). Harrison removed his shirt and started to secure it to the cell door bars in an attempt to hang himself. (ECF 80-4); (ECF 80-1, ¶ 13; 80-2, ¶ 13). As soon as Harrison climbed onto the first rung of the cell door bars, Officer Jaques, Officer Borgetti, and Defendant Officer Tony Morris entered the cell hall and released Harrison's shirt from the cell door bars. (ECF 80-4); (ECF 80-1, ¶ 14; 80-2, ¶ 14). Harrison was not successful in his attempt to hang himself nor did he lose consciousness as a result of his attempt. (ECF 80-4); (ECF 80-1, ¶ 15; 80-2, ¶ 15).

         As the cell door was opening, Harrison jumped down and lay down on the cot inside the cell. (ECF 80-4); (ECF 80-1, ¶ 16; 80-2, ¶ 16). Officer Morris removed the shirt from around Harrison's neck, attempted to calm Harrison down, and left the cell. (ECF 80-4); (ECF 80-1, ¶ 17; 80-2, ¶ 17). Officers Jaques and Borgetti remained in the cell with Harrison to ensure his safety. (ECF 80-1, ¶ 18; 80-2, ¶ 18). Shortly thereafter, Officer Borgetti left the cell. (ECF 80-1, ¶ 19; 80-2, ¶ 19). Officer Jaques stayed in the cell with Harrison until Prompt Ambulance's arrival at the Griffith Police Department. (ECF 80-1, ¶ 20). After notification regarding the paramedics' impending arrival, Officer Jaques advised Harrison to stand up. (ECF 80-1, ¶ 21). Harrison placed his hands in the air. (ECF 80-1, ¶ 22). Jaques slowly and without force placed Harrison's hands behind his back. (ECF 80-1, ¶ 23). Harrison was escorted out of the cell to the door leading to the police parking lot without incident. (ECF 80-1, ¶ 24).

         Once outside, Officer Jaques escorted Harrison to the waiting gurney with Officer Borgetti nearby. (ECF 80-1, ¶ 25). As Harrison started to sit on the gurney, he began to resist Officer Jaques by planting his feet, screaming, and attempting to leave the gurney. (ECF 80-1, ¶ 26; 80-2, ¶ 25). The ambulance rocked violently back and forth as a result of Harrison's movements, and the paramedics motioned to the officers to help with Harrison. (ECF 80-1, ¶ 21). Officer Jaques, Officer Borgetti, and Officer Morris responded. (ECF 80-1, ¶ 32). The paramedics transported Harrison to Community Hospital in Munster, Indiana, for evaluation following his attempted suicide. (ECF 80-1, ¶ 34); (ECF 80-3, ¶ 21). Harrison was later transferred to St. Catherine's Hospital in East Chicago, Indiana, on an emergency detention from April 18, 2014, to April 22, 2014. (ECF 80-1, ¶ 35); (ECF 80-3, ¶ 21).

         On April 22, 2014, the Griffith Police Department received a call from St. Catherine's Hospital that Harrison was going to be released and that the Griffith Police Department could pick him up since there was a police hold on him. (ECF 80-5, ¶ 5). Harrison was transported from St. Catherine's Hospital to the Griffith Police Department. Id. at ¶ 6. Officer Borgetti was not the transporting officer on April 22, 2014. Id. On April 23, 2014, Harrison was transported to the Lake County Jail. Id. ¶ 8; (ECF 80-6).

         ANALYSIS

         Defendants seek summary judgment in their favor on all of Harrison's claims. In his response brief, Harrison abandons all claims except for the claim of excessive force against Defendant Officer Jaques for an alleged wrist injury; however, Harrison has offered no admissible evidence in support of this claim. See Palmer v. Marion Cty., 327 F.3d 588, 597-98 (7th Cir. 2003) (holding that claims not addressed in a summary judgment opposition brief are abandoned (citing Laborers' Int'l Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999))). The Court addresses each claim in turn.

         A. Count I - § 1983 Excessive Force

         Defendants seek summary judgment on Harrison's claims of excessive force in violation of the Fourth Amendment to the United States Constitution against Officers Jaques, Borgetti, and Morris. Allegations that a police officer used excessive force are analyzed under the Fourth Amendment's standard of “objective reasonableness.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). This standard “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 388, 396; see also Williams v. Ind. State Police Dep't, 797 F.3d 468, 472-73 (7th Cir. 2015).

         1. Officer Jaques

         In their Motion for Summary Judgment, Defendants argue that the undisputed videotape recording of Harrison's cell contradicts Harrison's version of the events and demonstrates that Officer Jaques did not violate Harrison's Fourth Amendment rights. First, Defendants note that Harrison alleges in his First Amended Complaint that Officer Jaques grabbed Harrison's arm with excessive force while subduing Harrison in the cell after his suicide attempt. Defendants then cite Harrison's Response to Interrogatory No. 12, which asserts that Officer Jaques broke Harrison's wrist while Harrison was on or near his cot, facing Officer Jaques, with his left arm up in a defensive position:

While I was in a holding cell at the Griffith Police Department, I attempted to hang myself with my own clothes. Officers found me and the Lieutenant got him down and laid me down on the cot. Lieutenant left to call the ambulance. Officer [Jaques] was left to keep an eye on me. Officer [Jaques] approached me and ordered that I stand up. I was unable to stand up due to the effects of attempting to commit suicide. Officer [Jaques] approached me and said “you people.” As Officer [Jaques] approached me and I saw that he was becoming very aggressive so I put my left arm up in defense. Officer [Jaques] broke my left arm and wrist. I was able to stand up and he would not let go of my arm despite my frantic plea. I attempted to walk out of the cell and down to the other officers with Officer [Jaques] on my back.

(ECF 80-7).

         Harrison's deposition testimony similarly specifies that his wrist was injured ...


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