United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE UNITED STATES DISTRICT COURT
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.
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.
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,
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).
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).
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).
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.
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, 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
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.
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.
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)).
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.
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.
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
with Water in ...