United States District Court, N.D. Indiana, Hammond Division
LORENA E. BOSTIC, Plaintiff,
SALVADOR VASQUEZ, CLARENCE D. MURRAY, DIANE ROSS BOSWELL, THOMAS P. STEFANIAK, JR., SAMUEL L. CAPPAS, JAN PARSONS, and MIROSLAV RADICESKI, Defendants.
OPINION AND ORDER
R. CHERRY, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.
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.
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.
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.
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.
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.
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.
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
¶ 37. As a result of the verbal abuse, Ms. Bostic
suffered severe anxiety, ...