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Henley v. Sunier

United States District Court, S.D. Indiana, Indianapolis Division

November 30, 2018

JAMES MAJOR HENLEY, Plaintiff,
v.
TROY SUNIER, Indiana State Police Trooper, in his individual capacity, Defendant.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge.

         This case arises out of a series of interactions between Troy Sunier, an Indiana State Police Trooper, and plaintiff James Henley. Mr. Henley engages in an activity that he refers to as “signing, ” during which he stands at various intersections, holding a sign that asks passers-by for assistance. In 2016, Trooper Sunier repeatedly encountered Mr. Henley signing at the same highway exit ramp, and several times he issued Mr. Henley citations for solicitation of business on a highway. Nearly a year after those interactions, after finding Mr. Henley signing again at the same location, Trooper Sunier arrested Mr. Henley for refusal to aid an officer. Following that arrest, Mr. Henley filed suit in this Court, alleging that Trooper Sunier violated his rights under 42 U.S.C. § 1983 and the First and Fourth Amendments to the United States Constitution. After suit was filed, Trooper Sunier engaged in conduct that the parties term “move-along” orders after encountering him again at the interstate exit ramp. Mr. Henley challenges those orders as being violative of the First Amendment.

         Presently pending before the Court are two motions: Mr. Henley's Motion for Partial Summary Judgment as to two of his claims, and Trooper Sunier's Motion for Summary Judgment as to all of Mr. Henley's claims. For the reasons below, the Court GRANTS IN PART and DENIES IN PART those Motions.

         I. Legal Standard

         A 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. SeeFed. 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. 56(e).

         In 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. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome-determinative. Montgomery v. American Airlines Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On 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. Gekas v. Vasilades, 814 F.3d 890, 896 (7th Cir. 2016). 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. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). 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. Grant v. Trustees of Indiana University, 870 F.3d 562, 573-74 (7th Cir. 2017). 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).

         The existence of cross-motions for summary judgment does not imply that there are no genuine issues of material fact. R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, Local Union 150, AFL-CIO, 335 F.3d 643, 647 (7th Cir. 2003).

         II. Background

         The following factual background is set forth pursuant to the standard discussed 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).

         Plaintiff James Henley is a resident of Indianapolis. [Filing No. 48-6 at 52.] Since approximately January 2012, Mr. Henley has engaged in “signing” activities, which involve him standing along the side of an intersection holding a sign that requests help or monetary support from the occupants of passing vehicles. [Filing No. 48-6 at 52-55.] He often engages in these activities along Keystone Avenue at various points between 86th and 96th Streets, including at the exit ramps from I-465 to Keystone Avenue. [Filing No. 48-6 at 52.] Intermittently since 2012, Mr. Henley has signed nearly every day, but he describes himself as currently “semi-retired, ” signing only on a part-time basis. [Filing No. 48-6 at 46; Filing No. 48-6 at 55.]

         Defendant Troy Sunier is a trooper with the Indiana State Police in Indianapolis. [Filing No. 48-8 at 4.] On multiple occasions, Trooper Sunier has witnessed Mr. Henley signing at the exit ramps at I-465 and Keystone Avenue at 86th Street. [Filing No. 48-8 at 6-7.] Trooper Sunier has on several occasions spoken to Mr. Henley, asking for Mr. Henley's assistance in “keeping the intersection safe and free from distractions and hazards on the roadway.” [Filing No. 48-2 at 1; Filing No. 48-6 at 133.] Trooper Sunier has also issued Mr. Henley several citations for civil infractions while signing. [Filing No. 50 at 4.] In November 2016, Trooper Sunier had a conversation with Indianapolis Metropolitan Police Department Officer Michael Martin regarding several individuals involved in begging activities. [Filing No. 48-8 at 6-7.] Both Trooper Sunier and Officer Martin were familiar at that time with Mr. Henley, [Filing No. 48-8 at 6-7], and after discussing the locations where Mr. Henley typically signed, Officer Martin asked Trooper Sunier to “stop the panhandling, ” [Filing No. 48-8 at 6].

         According to Trooper Sunier, on February 1, 2017, he saw Mr. Henley standing on the pavement of the roadway near the I-465 westbound exit to Keystone Avenue at 86th Street, holding a sign asking for help. [Filing No. 50 at 4; Filing No. 48-2 at 1.] Mr. Henley agrees that he was present at that exit on that date, but states that he had not yet started signing when Trooper Sunier arrived. [Filing No. 48-6 at 124.] Mr. Henley attests that he was standing in the grassy area next to the road with his back to oncoming traffic when Trooper Sunier approached him. [Filing No. 48-6 at 125.] The parties agree that Trooper Sunier immediately told Mr. Henley to put his hands behind his back and arrested him for “refusal to aid an officer” in violation of Indiana Code § 35-44.1-3-3. [Filing No. 48-2 at 1; Filing No. 48-6 at 126-128.] Mr. Henley was held for approximately twelve hours before being released. [Filing No. 48-6 at 135.] All charges against him were ultimately dismissed by the Marion Superior Court. [Filing No. 60-1.]

         Following the arrest, Mr. Henley continued to sign, but he did not return to the I-465 and Keystone Avenue location until approximately four to six weeks after his arrest. [Filing No. 48-6 at 136.] On July 14, 2017, Mr. Henley filed his original Complaint against Trooper Sunier, alleging, among other claims, violation of the First and Fourth Amendments, stemming from his arrest. [Filing No. 1.] On August 24, 2017, Mr. Henley was standing near the I-465 westbound exit to Keystone Avenue at 86th Street. [Filing No. 48-6 at 140.] As Mr. Henley was adjusting his backpack (and not engaged in signing), Trooper Sunier drove by in his vehicle. [Filing No. 48-6 at 144.] Trooper Sunier rolled down his window and stated that just because Mr. Henley had a lawsuit pending, that did not give Mr. Henley the right to “do what [he] was doing.” [Filing No. 48-6 at 144-146.] Mr. Henley understood that statement as a “move-along” order, and he left that location. [Filing No. 48-6 at 145.] The next day, on August 25, 2017, Mr. Henley was signing at the corner of 86th Street and Keystone Avenue when Trooper Sunier drove past. [Filing No. 48-6 at 147-148.] Trooper Sunier “squawked” his siren and motioned for Mr. Henley to move along. [Filing No. 48-6 at 148.]

         After filing two amended complaints, Mr. Henley moved to voluntarily dismiss several of the claims in his Second Amended Complaint. [Filing No. 45.] The Court granted that partial Motion to Dismiss, treating it as a Motion to Amend the Complaint under Fed.R.Civ.P. 15(a). [Filing No. 46 at 1.] Mr. Henley then filed the operative Third Amended Complaint, alleging only the claims that remain for resolution. [Filing No. 47.] Presently pending before the Court are Mr. Henley's Motion for Partial Summary Judgment, [Filing No. 48], and Trooper Sunier's Cross-Motion for Summary Judgment, [Filing No. 51]. Those Motions are now fully briefed and ripe for the Court's review.

         III. Discussion

         Mr. Henley raises three claims arising out of the events detailed above: (1) violation of the First and/or Fourth Amendments, stemming from his February 1, 2017 arrest; (2) violation of the First Amendment stemming from the August 24, 2017 move-along order; and (3) violation of the First Amendment stemming from the August 25, 2017 move-along order. Mr. Henley moves for summary judgment as to his Fourth Amendment false-arrest claim and the August 25, 2017 move-along order. Trooper Sunier cross-moves for summary judgment as to all of Mr. Henley's claims, and moves for summary judgment as to the issues of injunctive and declaratory relief. The Court addresses each in turn.

         A. Constitutional Claims and Injunctive Relief

         The briefing and procedural history in this case highlight the complexities and challenges attendant to litigating constitutional claims against state actors. Constitutional litigation presents plaintiffs and defendants with a litany of choices and related consequences, and it is no small feat to become adept at navigating them. Plaintiffs must decide, for example, which government actor(s) to sue; whether to sue them in their individual or official capacities, or both; whether to request equitable relief, damages, or both; and whether to challenge a statute, and if so, in a facial or as-applied manner. All of these choices come with real and tangible consequences regarding what claims are cognizable, what theories of liability may be properly invoked, what relief may be awarded, what procedural demands apply, and what defenses may be raised. Not infrequently, the Court is presented with briefing that evidences some confusion from both parties about these choices and their consequences. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165 (1985) (noting that, regarding the practical and doctrinal differences between individual and official capacity claims, “this distinction apparently continues to confuse lawyers…”).

         The briefing here evidences many of those confusions, impacting the nature and scope of the claims raised and the relief sought. The Court, therefore, begins by addressing the scope of Mr. Henley's claims and the relief that he may seek.

         1. Constitutional Challenge to Ind. Code § 35-44.1-3-3

         Without question, this case concerns whether Trooper Sunier effected an arrest and issued two move-along orders in a manner consistent with the demands of the Constitution. So Mr. Henley's claims are, in that sense, constitutional in nature. In one portion of Mr. Henley's brief in support of his Motion for Partial Summary Judgment, however, he appears to raise a different sort of challenge: one addressing the constitutionality of the Indiana statute under which Trooper Sunier arrested Mr. Henley. [Filing No. 49 at 8-11.] While Mr. Henley frames his argument as simply a basis for supporting declaratory and injunctive relief, he argues explicitly that there are “[c]onstitutional deficiencies with the language of the statute, as applied and on its face.” [Filing No. 49 at 8.] The Court is unclear as to how the facial or as-applied unconstitutionality of a statute would form the basis for injunctive or declaratory relief when a claim challenging the statute is not raised. But in any event, Trooper Sunier appears to construe this argument as a separate claim challenging the constitutionality of the statute, and he argues that any such claim is belatedly raised here. [Filing No. 58 at 13.] Trooper Sunier points out that Mr. Henley did not raise a challenge to the statute either in his Third Amended Complaint or in his statement of claims. [Filing No. 58 at 13.]

         The Court agrees with Trooper Sunier that neither Mr. Henley's Third Amended Complaint nor his statement of claims raise any facial or as-applied challenge to Ind. Code § 35-44.1-3-3. Mr. Henley's counsel is no stranger to constitutional litigation, and had he intended to raise a constitutional challenge to the statute itself, there are specific procedural steps he was required to follow. He should have included such a challenge in his complaint. Moreover, he should have complied with the requirements of the Federal Rule of Civil Procedure 5.1(a), which applies to statutory challenges. That Rule provides that a party, when drawing into question the constitutionality of a state statute, must promptly:

(1) file a notice of constitutional question stating the question and identifying the paper that raises it, if:
(B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and
(2) serve the notice and paper … on the state attorney general if a state statute is questioned-either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose.

Fed. R. Civ. P. 5.1(a). Therefore, to the extent that Mr. Henley attempts to raise a facial or as-applied challenge to the constitutionality of Ind. Code § 35-44.1-3-3, such a claim is foreclosed to him in this matter.

         2. Injunctive Relief

         In his Third Amended Complaint, Mr. Henley requests an injunction “enjoining Defendant from giving Plaintiff move along orders.” [Filing No. 47 at 7.] As the Court referenced above, in the context of claims against state actors in federal court, issues of sovereign immunity and related doctrines impact whom a plaintiff may sue and what relief is available to them. Much ink has been spilled by courts and commentators alike regarding the legal regime governing such suits, including the limitations imposed by the Eleventh Amendment and the exceptions recognized by Ex Parte Young. As relevant here, the parties dispute whether Mr. Henley's Third Amended Complaint should be construed as against Trooper Sunier in his official capacity, in addition to his individual capacity, and the import of that distinction as it applies to a request for injunctive relief.

         a. Individual or Official Capacity

         Mr. Henley argues that his Third Amended Complaint should be construed as raising claims against Trooper Sunier in both his individual and official capacities, [Filing No. 57 at 11], which Trooper Sunier opposes, [Filing No. 58 at 7-8]. Mr. Henley further argues that despite the fact that his Third Amended Complaint explicitly specifies only an individual-capacity suit against Trooper Sunier, it contains allegations that should be construed as raising claims against Trooper Sunier in his official capacity as well. [Filing No. 57 at 11.] In support of that position, Mr. Henley points to case law in which the Seventh Circuit has clarified how complaints should be construed when the capacity in which the plaintiff has sued the defendant is not specified.

         The case law to which Mr. Henley cites is not applicable here, because his complaint is not ambiguous. In every iteration of his complaint, Mr. Henley has specifically identified Trooper Sunier “in his individual capacity” as the defendant in this case.[1] [See Filing No. 1; Filing No. 13; Filing No. 24; Filing No. 47.] But even if the Court were to refer to the allegations in the Third Amended Complaint as relevant considerations, they fare no better in alleging an official-capacity suit. In Miller v. Smith, the Seventh Circuit considered the proper construction of a complaint that did not specify the capacity in which the defendants were sued. 220 F.3d 491, 494 (7th Cir. 2000). The court concluded that it was “clear” that the plaintiff's suit against two Indiana state troopers was an individual-capacity one, because “at no time did [the plaintiff] suggest that either Indiana or [the city of] LaGrange espoused a custom or policy of robbing and beating innocent motorists. Thus…we can safely assume that he intended to file suit against the officers in their individual capacities.” Miller, 220 F.3d at 494. The same is true here. While Mr. Henley argues that his complaints have alleged that “Trooper Sunier has a custom[, ] policy[, ] or practice of engaging in similar conduct, ” [Filing No. 57 ...


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