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Bostic v. Vasquez

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

November 9, 2018

LORENA E. BOSTIC, Plaintiff,



         This matter is before the Court on Defendant's Motion for Summary Judgment [DE 139], filed by Defendant Samuel L. Cappas on August 23, 2018. Plaintiff Lorena E. Bostic filed a response on September 20, 2018, Defendant Cappas filed a reply on October 2, 2018, Ms. Bostic filed a surreply on October 9, 2018, and Defendant Cappas filed a surreponse on October 22, 2018. This matter is also before the Court on a Motion of Plaintiff Lorena E. Bostic for Oral Argument on Defendant Samuel L. Cappas' Motion for Summary Judgment [DE 151], filed on October 24, 2018. Defendant Cappas filed a response on October 25, 2018. Ms. Bostic has not filed a reply, and the time to do so has passed. Because there is no genuine dispute as to any material fact that Defendant Cappas was not personally involved in the events underlying Ms. Bostic's Second Amended Complaint, the Court grants Defendant Cappas' Motion for Summary Judgment.

         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.


         Plaintiff Lorena E. Bostic filed her Second Amended Complaint on December 15, 2017, making the following allegations relevant to the instant Motion for Summary Judgment. While Ms. Bostic was a probationer under the supervision of the Probation Department of the Superior Court of Lake County, Indiana, Criminal Division, Defendant Miroslav Radiceski abused his position as her Probation Officer on multiple occasions during a time period beginning on March 26, 2013, and “culminating” on November 26, 2013, with non-consensual, sexual conduct. (ECF 81, ¶¶ 18, 19, 20). On March 26, 2013, Ms. Bostic rebuffed Radiceski's initial misconduct, and the following day, Radiceski maliciously retaliated by filing a Petition to Revoke Probation, which remained pending until January 8, 2014. Id. at ¶ 21. On November 26, 2013, Radiceski engaged in improper, non-consensual forcible, sexual and non-sexual misconduct against Ms. Bostic in a rarely utilized, dimly lighted alcove off of an enclosed stairwell in the Courts Building of the Lake County Government Center. Id. at ¶ 22.

         By January 8, 2014, Jan Parsons, the Director and Chief Probation Officer of the Lake County Probation Department, was aware of the several incidents of Radiceski's improper conduct and, on January 8, 2014, Parsons filed a Motion to Withdraw Petition to Revoke Probation and transferred Ms. Bostic's probation to Porter County Adult Probation. Id. at ¶¶ 29, 30.

         On October 30, 2014, Ms. Bostic appeared at the offices of the Porter County Adult Probation Department as previously scheduled and was advised that the Lake County Probation Department was transferring her probation back to the Lake County Probation Department for unknown reasons. Id. at ¶ 34. Ms. Bostic was instructed to report to Parsons at the Lake County Probation Department the following morning at 11:30 a.m. Id.

         Also on October 30, 2014, the presiding Judge of the Superior Court of Lake County, Criminal Division, Room Two, entered an ex parte Order extending Ms. Bostic's probation for an additional period of one year without notice to Ms. Bostic or her attorney.

         On October 31, 2014, Ms. Bostic appeared at the Lake County Probation Department as directed. Id. at ¶ 36. As she walked through the Probation Department area, Ms. Bostic suffered an observable physical and emotional reaction and was the victim of retaliation by Radiceski's former co-workers who made snide remarks and who mocked, derided, and ridiculed her. Id. at ¶¶ 36-37. At this time, Ms. Bostic was first informed that her probation had been extended for an additional year. Id. at ΒΆ 37. As a result of the verbal abuse, Ms. Bostic suffered severe anxiety, ...

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