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McGann v. Layton

United States District Court, S.D. Indiana, Indianapolis Division

November 20, 2017

Paul McGann, Plaintiff,
Barbara Trathen, Defendant.


          Hon. Jane Magnus-Stinson, Chief Judge United States District Court

         Plaintiff Paul McGann was employed as a Marion County Sheriff's Deputy at the Indianapolis Motor Speedway (“IMS”) on May 24, 2014, the evening before the Indianapolis 500. While Mr. McGann was working to control the crowd after a fight in the “Coke Lot, ” one of the parking lots near IMS, he was approached by Zachary Pollack. An altercation between Mr. McGann and Mr. Pollack took place, and Mr. McGann ultimately used his taser on Mr. Pollack and then arrested him for resisting law enforcement, battery, and illegal possession of alcohol by a minor. The charges against Mr. Pollack were eventually dropped, and Mr. McGann was charged with official misconduct and battery in connection with his arrest of Mr. Pollack. Defendant Barbara Trathen, a Deputy Marion County Prosecutor at the time, participated in the investigation of Mr. McGann and signed the probable cause affidavit to support the charges against him. Mr. McGann was tried and acquitted, and now brings this lawsuit against Deputy Prosecutor Trathen under 42 U.S.C. § 1983 for malicious prosecution based on her alleged connections to Mr. Pollack's father and the television network with which he is affiliated. Deputy Prosecutor Trathen has filed a Motion for Summary Judgment, [Filing No. 112], which is now ripe for the Court's decision.


         Standard of Review

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. FordMotor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).


         Statement of Facts

         The following factual background is set forth pursuant to the standards detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

         A. The Coke Lot Incident

         On May 24, 2014, the evening before the Indianapolis 500, Mr. McGann, a sergeant for the Marion County Sheriff's Office, was working crowd control at IMS. [Filing No. 113-4 at 8.] Around 7:00 p.m., Mr. McGann received a call from Air One, a helicopter assigned to the Indianapolis Metropolitan Police Department (“IMPD”), advising him that there was a large fight in the Coke Lot. [Filing No. 113-4 at 9.] Mr. McGann arrived at the scene of the fight alone on his motorcycle, and it appeared that the fight had ended. [Filing No. 113-4 at 10-11.] The crowd began to converge on Mr. McGann, so he activated his motorcycle siren to try to get the crowd to back away. [Filing No. 113-4 at 11.] The crowd began pouring beer and water on Mr. McGann and throwing objects, so he attempted to move his motorcycle out of the area. [Filing No. 113-4 at 11-12.] Mr. McGann's left arm was hit by a bottle, and he then apprehended the individual who threw the bottle, deployed his taser, and was proceeding to arrest the individual for battery on a law enforcement officer. [Filing No. 113-4 at 12-13.]

         While Mr. McGann had the individual on the ground, Mr. Pollack approached Mr. McGann's left side and asked Mr. McGann “what the f**k [he] was doing.” [Filing No. 113-4 at 15-16.] Mr. Pollack was standing with his hands on his hips right next to Mr. McGann and Mr. McGann shoved him away. [Filing No. 113-3 at 0:24-0:28.][1] As Mr. McGann shoved Mr. Pollack away, Mr. Pollack said “I'm going to kick your f***ing ass, ” and Mr. McGann turned toward Mr. Pollack to drive stun[2] him with his taser. [Filing No. 113-4 at 17.] At that point, Mr. Pollack put his hands above his head and retreated back a bit. [Filing No. 113-3 at 0:28.] Mr. McGann felt that Mr. Pollack was “in a resistive mode” and was worried he would try to flee, so Mr. McGann deployed his taser on Mr. Pollack. [Filing No. 113-3 at 0:29-0:30; Filing No. 113-4 at 18.]

         B. Mr. Pollack is Arrested and Charged

         Mr. McGann arrested Mr. Pollack for resisting law enforcement, battery, and illegal possession of alcohol by a minor. [Filing No. 113-17.] Mr. Pollack was transported to the Arrestee Processing Center. [Filing No. 113-7 at 13.] At the Arrestee Processing Center, Marion County Deputy Prosecutor Shari Blessing reviewed Mr. McGann's report from the arrest. [Filing No. 113-8 at 9.] Because she did not feel that she had enough information from the report to file charges against Mr. Pollack, Ms. Blessing requested a 72-hour continuance. [Filing No. 113-8 at 9.] Ms. Blessing sent Mr. McGann an email message on May 25, 2014 stating:

Officer, I need more detail before I can file the resist and the battery charges. I need to know what he did physically to interfere with you and the first suspect. You said you had to taze him because he wouldn't stop resisting. Will you please provide detail on what he was doing? Pulling away? Kicking? Etc.
The charging info says he grabbed you and that accounts for the battery charge. At what point and where did he[ ] grab you? Please describe.

[Filing No. 113-9.]

         Mr. McGann responded to Ms. Blessing, stating:

The subject while I was affecting arrest on the original suspect grabbed my left arm stated he was going to kick my ass for tasing the original suspect. I then towards… (sic) him when he tried to run off and we fell to the ground. He forcefully pulled his hands under his body[, ] would not let me cuff him[, ] and continuously tried to get up.

[Filing No. 113-9.]

         Mr. Pollack was released on his own recognizance on May 25, 2014. [Filing No. 113-10 at 9.] He was picked up from the Arrestee Processing Center by Scott Hainey, a marketing executive at an affiliate of CBS and a former work colleague of Mr. Pollack's father, Michael Pollack. [Filing No. 123-2 at 4-5.] Mr. Pollack was subsequently charged with resisting law enforcement, battery, and illegal possession of alcohol by a minor. [Filing No. 113-6 at 3-5.]

         C. Mr. Pollack Retains Counsel and the Charges Are Dismissed

         On a recommendation from Mr. Pollack's aunt, Mr. Pollack hired attorney Brad Banks to defend him against the charges. [Filing No. 123-2 at 5.] Mr. Banks received and reviewed the Video, and thought it was exculpatory. [Filing No. 113-11 at 8.] He and Deputy Prosecutor David Ziemba brought the Video to the attention of Jeremy Johnson, another Deputy Prosecutor at the Marion County Prosecutor's Office. [Filing No. 113-18 at 8-9.] Mr. Johnson, along with Charnette Garner, another Marion County prosecutor, watched the Video and decided to dismiss the charges against Mr. Pollack. [Filing No. 113-18 at 10; Filing No. 113-12 at 13.] The charges against Mr. Pollack were dismissed on June 11, 2014. [Filing No. 113-6 at 2.]

         At the time, Barbara Trathen was the Supervisor of the Criminal Charging Division at the Marion County Prosecutor's Office. [SeeFiling No. 123-9 at 5.] Deputy Prosecutor Trathen's career had been the basis for a CBS television show called “Close to Home, ” for which she received a great deal of publicity. [Filing No. 123-19; Filing No. 123-20; Filing No. 123-23 at 1-2.] Additionally, Mr. Banks had worked with Deputy Prosecutor Trathen at the Hamilton County Prosecutor's Office, and was aware of Deputy Prosecutor Trathen's involvement in “Close To Home.” [Filing No. 123-12 at 11-12.] Mr. Banks was also aware of Michael Pollack's position at CBS when he represented Mr. Pollack in his criminal case. [Filing No. 123-12 at 11-12.] Deputy Prosecutor Trathen and Michael Pollack had never met each other, however, and he did not work on “Close to Home” in connection with his duties at CBS. [Filing No. 113-5 at 8; Filing No. 113-20 at 9; Filing No. 113-20 at 16.]

         D. Mr. Banks Contacts Deputy Prosecutor Trathen

         Shortly after the charges against Mr. Pollack were dismissed, Mr. Banks emailed Deputy Prosecutor Trathen and others stating:

Barb/Janna: Writing today regarding the actions of Sheriff Sergeant Paul McGann in the State of Indiana vs. Zachary Pollack 49F19-3 405-CM-027294. 1 copied Chamette as she is familiar with the details. This deputy arrested my client for resisting law enforcement, battery and a later discovered minor possession of alcohol. The resisting law enforcement and buttery were caught on video taps and verifiable a complete lie by the Sergeant. My client did not physical!y touch in the Sergeant in any fashion. The Sergeant proceeded to lie in an affidavit and say that my client both battered him and fled on foot. Neither happened and fee state has rightfully dismissed ail the charges.
This Sergeant should be investigated for false informing, official misconduct, and possible perjury (although I believe the PC was technically signed by the fictitious Captain signature). My client is a B student at IU with 0 criminal history and did not deserve to have this arrest happen. Upsetting to see a Sergeant behave in such a manner.
As I'm not sure who these things are being investigated by now, I wanted to try to move it forward through your office. Sorry for dropping this at your feet, but was very offended by the Sergeants ...

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