United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge United States District Court
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
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.
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).
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).
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).
The Coke Lot Incident
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.]
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.] 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 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.]
Mr. Pollack is Arrested and Charged
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?
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.]
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.]
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.]
Mr. Pollack Retains Counsel and the Charges Are
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.]
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.]
Mr. Banks Contacts Deputy Prosecutor Trathen
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 ...