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See v. City of Fort Wayne

United States District Court, N.D. Indiana, Fort Wayne Division

June 29, 2018

KEITH SEE, Plaintiff,



         This matter is before the Court on Defendants' Motion for Summary Judgment and Designation of Evidence [DE 17], filed by Defendants City of Fort Wayne (the “City”) and Officer David Bush on May 4, 2018, and on Defendants' Motion to Strike Portions of Keith See's Affidavit [DE 22], filed by the City and Officer Bush on June 1, 2018. Both motions are fully briefed.


         Keith See filed his Complaint in Allen County, Indiana, Superior Court on August 24, 2017. The City of Fort Wayne and Officer David Bush removed the action to this Court on September 7, 2017. In his Complaint, Mr. See alleges violations of the Fourth and Fourteenth Amendments to the United States Constitution and of Indiana law. Mr. See alleges that he was subjected to unreasonable search and seizure, malicious prosecution, discrimination due to his homelessness, false imprisonment, and false arrest.

         The City and Officer Bush filed an Answer to the Complaint on September 15, 2017, and the instant Motion for Summary Judgment on May 4, 2018. Mr. See filed a response on May 18, 2018, and the City and Officer Bush filed a reply on June 1, 2018. In these briefs, the parties agree that all claims of homelessness discrimination should be dismissed. Also on June 1, 2018, the City and Officer Bush filed the instant Motion to Strike. Mr. See filed a response to that Motion on June 8, 2018, and the City and Officer Bush filed a reply on June 14, 2018.

         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).


         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 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).

         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.


         In the Motion to Strike, the City and Officer Bush ask the Court to strike the following statements from the Affidavit of Keith A. See [DE 19-1]:

5. Sometime after 3 p.m. that day, I very briefly touched the water in the fountain of Freimann Square and then touched my face. I was touching the water in the fountain less than thirty seconds and probably not even ten seconds.
6. That day, I never bathed in the fountain. . . .
12. Officer Bush kept me under arrest for five to ten minutes.
13. I was under arrest by Officer Bush because he told me I could not leave his presence and that I had broken the law.
14. Officer Bush did not have probable [sic] to arrest me because I did not do anything against the law or anything a police officer could reasonably believe was against the law.
15. The only reason the officer confronted me was because I had filed a lawsuit against the city involving how city police treat homeless people and he wanted to get back at me.
. . .
18. Officer Bush misstated what happened when he said in his [criminal] Complaint and testimony during the prosecution that I broke the law, because I did not swim, wade, or bath [sic] in the fountain.

         The City and Officer Bush argue that these paragraphs should be stricken because paragraph 5 contradicts prior deposition testimony, paragraph 15 is not based on personal knowledge and is speculative, and paragraphs 6, 12, 13, 14, and 18 are legal conclusions and are argumentative. Mr. See asserts that these statements should remain in the record.

         The City and Officer Bush assert that paragraph 5 violates the “sham-affidavit” rule. The City and Officer Bush contend that precedent from the Seventh Circuit Court of Appeals sets forth that a party may not create an issue of fact via statements in an affidavit that contradict prior sworn statements. However, the rule against sham affidavits “is to be used with ‘great caution.'” U.S. v. Funds in the Amount of $271, 080, 816 F.3d 903, 907 (7th Cir. 2016) (quoting Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1169 (7th Cir.1996)). “A ‘sham affidavit' is an affidavit that is inadmissible because it contradicts the affiant's previous testimony . . . unless the earlier testimony was ambiguous, confusing, or the result of a memory lapse.” Cook v. O'Neill, 803 F.3d 296, 298 (7th Cir. 2015) (citing Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 759 (7th Cir. 2006); Bank of Ill., 75 F.3d at 1168-71). The rule against sham-affidavits “applies only when a change in testimony ‘is incredible and unexplained,' not when the change is ‘plausible and the party offers a suitable explanation . . . '” and “is designed to avoid sham factual issues and prevent parties from taking back concessions that later prove ill-advised.” Funds in the Amount of $271, 080, 816 F.3d at 907 (citing McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 751 (7th Cir. 2010); Cook, 803 F.3d at 298; Patton v. MFS/Sun Life Fin. Distribs., Inc., 480 F.3d 478, 488 (7th Cir. 2007); Commercial Underwriters Ins. Co. v. Aires Envtl. Servs., Ltd., 259 F.3d 792, 799 (7th Cir. 2001)).

         The City and Officer Bush maintain that paragraph 5 contradicts Mr. See's deposition testimony that “he walked over to the fountain, knelt on both knees, put both of his hands in the fountain, grabbed and brought the water up, and splashed the water so it ran off his face and onto his chest, ” and that “he had a lot of water in his hands.” (Mot. Strike, 2, ECF No. 22 (citing See Dep., 13, 25, 37, ECF No. 17-3)). There is no contradiction here. The deposition testimony describes the manner of Mr. See's contact with the water in the fountain, and the statement in the affidavit predominantly describes the duration of the contact. The contact could have occurred in the manner described in the deposition testimony for the duration described in the affidavit. Further, in his affidavit, Mr. See describes touching the fountain's water and then touching his face. This is generally consistent with his description of the event in his deposition. There is no incredible and unexplained change in testimony such that the sham affidavit rule should be applied. The Motion to Strike is denied as to paragraph 5.

         Next, Federal Rule of Civil Procedure 56 requires that affidavits “used to support or oppose a motion [for summary judgment] must be made on personal knowledge . . . .” Fed.R.Civ.P. 56(c)(4). The City and Officer Bush argue that Mr. See does not have personal knowledge or evidence to support the statements averred in paragraph 15. Mr. See counters that the statement “is based on his personal experiences and drawn from inferences based on his first-hand knowledge, both in his experiences with the City of Fort Wayne Police Department and his experiences in litigation.” (Resp. Mot. Strike, 5, ECF No. 23). In paragraph 15, Mr. See purports to have knowledge of Officer Bush's motivation for his actions. There is no evidence presented in the affidavit regarding Officer Bush's reasons for his actions or how Mr. See would have personal knowledge of what made Officer Bush decide to talk to Mr. See about his contact with the fountain's water. This statement is made without personal knowledge, and the Court strikes paragraph 15 from the affidavit.

         Lastly, the City and Officer Bush argue that several of Mr. See's statements are legal conclusions. “[L]egal argument in an affidavit may be disregarded.” Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir. 1985) (citing Universal Film Exchs., Inc. v. Walter Reade, Inc., 37 F.R.D. 4 (S.D.N.Y. 1965)). However, to strike wholesale the statements contested by the City and Officer Bush would also eliminate statements of fact that are properly included in the affidavit. Accordingly, the Court disregards the legal arguments, such as those that Mr. See “did not bathe” in the fountain and “was under arrest” and that Officer Bush did not have probable cause to arrest Mr. See. However, the facts presented in support of these conclusions, such as “he told me I could not leave his presence” and that the encounter with Officer Bush lasted “five to ten minutes” will be considered by the Court in ruling on the Motion for Summary Judgment.


         Interaction with Water in ...

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