United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge.
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.
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.
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.
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).
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).
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).
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).
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
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].
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.]
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
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.
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.
Constitutional Claims and Injunctive Relief
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…”).
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.
Constitutional Challenge to Ind. Code §
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.]
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
(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.
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
Individual or Official Capacity
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
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. [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 ...