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Johnson v. Rogers

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

January 15, 2019



          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff Timothy Johnson brought this lawsuit after an altercation during his arrest left him with a compound leg fracture. The parties agree on this, and not much else. Mr. Johnson contends that Defendant Officer Michael Rogers used excessive force in kicking his leg after he stood up (despite orders to remain seated), ostensibly to get off of the cold grass. But Mr. Johnson's version of events is flatly and unequivocally contradicted by the surveillance video from outside the Community Health Services where the incident occurred. Moreover, though Mr. Johnson now contends that he was just standing in the grass when Officer Rogers engaged him, Mr. Johnson ultimately pleaded guilty to resisting law enforcement. Mr. Johnson's Fourth Amendment claim under § 1983 therefore fails to clear the double barriers posed by qualified immunity and Heck v. Humphrey, 512 U.S. 477 (1994). Mr. Johnson's state law claims also fall short under the Indiana Tort Claims Act and on their merits.

         But in evaluating Defendants' Motion for Summary Judgment, the Court is in the unfortunate situation of first having to address several ancillary motions regarding briefing. Then, the Court must parse Mr. Johnson's myriad evidentiary objections to the evidence cited in Defendants' briefing. Because Defendants failed to correct the easily fixable evidentiary issues identified by Mr. Johnson, and because Mr. Johnson did not substantially augment this record with his own filings, the Court is left with an extremely sparse record from which to draw its factual basis. Despite doing themselves no favors in failing to correct the evidentiary shortcomings, the videographic evidence places this case beyond the purview of a jury and demonstrates that Defendants are entitled to judgment as a matter of law. Therefore, after resolving the ancillary matters and evidentiary objections, the Court GRANTS Defendants' Motion for Summary Judgment. [Filing No. 106.]


         Procedural History

         Mr. Johnson initially filed this lawsuit in Marion Superior Court on September 9, 2016, naming Indianapolis Metropolitan Police Department (“IMPD”) Officer Rogers in his individual and official capacities, former IMPD Chief Troy Riggs in his official capacity, and the City of Indianapolis (“the City”). [Filing No. 1-1 at 2-9.] In his Complaint, Mr. Johnson alleges that Officer Rogers used excessive force by kicking him while handcuffed. [Filing No. 1-1 at 4.] As a result, Mr. Johnson alleges a Fourth Amendment excessive force claim against Officer Rogers; a “failure to train” Monell claim against Chief Riggs and the City; a claim under Monell that IMPD's policies, practices, procedures, and customs “permitted and encouraged” excessive force, also against Chief Riggs and the City; a state-law negligence claim against Officer Rogers and the City; and a state-law battery claim against Officer Rogers and the City. [Filing No. 1-1 at 2-8.] Defendants removed this matter to this Court on October 10, 2016. [Filing No. 1.]

         On October 18, 2018, Defendants moved for summary judgment on all of Mr. Johnson's claims. [Filing No. 106.] That motion, as well as several ancillary motions and objections, are ripe for the Court's consideration and are addressed in turn below.


         Ancillary Motions

          Three ancillary motions pend before the Court, two of which impact the briefing the Court may consider in ruling upon Defendants' Motion for Summary Judgment.

         A. Motion for Leave to File Amended Brief

          The first is Mr. Johnson's Motion for Leave to File His Amended Brief in Opposition to Defendants' Motion for Summary Judgment, [Filing No. 124], to which he attaches his proposed amended response brief, [Filing No. 124-2], and proposed amended appendix in support, [Filing No. 124-1]. Mr. Johnson explains that he was unable to complete a proper response brief by the original deadline because of an impending trial in state court which required counsel's attention and because he received discovery close to his deadline for responding to summary judgment which required review. [Filing No. 124 at 1-3.] Defendants oppose Mr. Johnson's Motion, arguing that Mr. Johnson delayed seeking certain discovery, that they would be prejudiced by an amended brief, that the amended brief fails to comply with the Local Rules, and that the Motion improperly attempts to “sidestep this Court's denial of Plaintiff's motions for extension of time.” [Filing No. 131 at 1-6.] In reply, Mr. Johnson disputes Defendants' argument that he delayed discovery, disputes Defendants' claim of prejudice, and argues that the Court never addressed the merits of his motions for extension of time, but instead denied them as moot. [Filing No. 135.]

         As the Seventh Circuit has explained in a slightly different context, “In the normal course of events, justice is dispensed by the hearing of cases on their merits . . . .” Schilling v. Walworth Cnty. Park & Planning Comm'n, 805 F.2d 272, 275 (7th Cir. 1986). And without wading into the sideshow of the parties' ongoing discovery disputes, Mr. Johnson's counsel's trial schedule provides a legitimate basis for requesting additional time to prepare an adequate response brief. That is not to say that Mr. Johnson's counsel did an exemplary job of managing this situation. For starters, Mr. Johnson's counsel waited 22 days after Defendants filed their Motion for Summary Judgment to file his Motion for Extension of Time, [see Filing No. 112], despite only having 28 days allotted to file the response, S.D. Ind. L.R. 56-1(b), and despite surely knowing about his impending state court trial date well in advance of the response deadline. Mr. Johnson's counsel also surely understood that, absent court order, Defendants were entitled to a 14-day window for responding to his Motion for Extension of Time from the date he filed the Motion. See S.D. Ind. L.R. 7-1(c)(3)(A). Mr. Johnson could have substantially increased the likelihood of receiving a ruling on the merits of his Motion for Extension of Time by simply proactively filing the motion in the first 14 days of his summary judgment response time to allow time for Defendants to respond and for the Court to rule. Of course, this will not always be practicable where the need for additional time is unforeseeable. But this is not such a case.

         Nonetheless, Mr. Johnson has the better of the argument. First, Mr. Johnson is correct that the Court never ruled on the substance of his Motions for Extension of time. Rather, the Court denied the motions as moot after Mr. Johnson timely filed a response to Defendants' Motion for Summary Judgment. [Filing No. 120; Filing No. 121.] Defendants are incorrect to suggest that Mr. Johnson's instant Motion for Leave is somehow improper or filed in bad faith. Second, Mr. Johnson has, as explained above, set forth a legitimate basis for requiring additional time to complete a proper brief. Third, given the ultimate result in this case, Defendants will not be prejudiced by consideration of the Amended Response. But most importantly, the Court strongly prefers to resolve cases on their merits, and the considerations identified by Defendants are not outweighed by this preference. The Court therefore GRANTS Mr. Johnson's Motion to Amend, [Filing No. 124], and has fully considered the arguments raised in the Amended Response, [Filing No. 124-2], in addressing Defendants' Motion for Summary Judgment.

         B. Motion to Strike

          Second, Defendants move to strike most of Mr. Johnson's surreply, arguing that it exceeds the scope of a permissible surreply under Local Rule 56-1(d). [Filing No. 133.] Given the ultimate result of Defendants' Motion for Summary Judgment, and the Court's interest in having a fully developed record, the Court DENIES Defendants' Motion to Strike. The Court has considered Mr. Johnson's surreply in ruling herein; to the extent it went beyond addressing Defendants' new evidence raised in reply, it added little to Mr. Johnson's arguments.

         C. Request for Oral Argument

         Finally, Mr. Johnson has filed a Request for Oral Argument, [Filing No. 129], which Defendants oppose, [Filing No. 132]. The Court finds that the undisputed videographic evidence and well-established legal doctrines at issue obviate any need for additional, oral presentations on the issues raised in Defendants' Motion for Summary Judgment. In the main, the case requires nothing more than a straightforward application of qualified immunity, Heck, and state tort doctrines to the events depicted in the surveillance video, as informed by the limited portions of factual background which are supported by the admissible evidence. The Court therefore DENIES Mr. Johnson's Request for Oral Argument.


         Evidentiary Objections

          The Court next addresses the scope of the evidence which may be properly considered in evaluating Defendants' Motion for Summary Judgment. Mr. Johnson lodges what are largely authenticity objections to all or parts of Defendants' exhibits 6 through 10 and 14, found at Filing No. 106-6 through Filing No. 106-10 and Filing No. 106-14, [Filing No. 124-2 at 1-5], and to much of Defendants' additional evidence tendered on reply at Filing No. 127-1 and Filing No. 127-2, [Filing No. 128 at 6-7]. Mr. Johnson additionally objects to Defendants' reliance upon the affidavit of Officer Aaron Sullivan, which Mr. Johnson maintains constitutes undisclosed expert testimony. [Filing No. 124-2 at 4-5.]

         In reply, Defendants argue that they properly supported their factual contentions with citations to record evidence in compliance with the Federal Rule of Civil Procedure 56(c)(1)(A), Local Rule 56-1(e), and the undersigned's Practices and Procedures. [Filing No. 126 at 2-5.] Specifically, Defendants argue that Mr. Johnson's objections should be overruled because certain documents were “tendered . . as exhibits tendered during [a] deposition” and because others are judicially noticeable. [Filing No. 126 at 3-4.] Defendants also argue that the plea agreement and partial transcript from the change-of-plea hearing are subject to judicial notice. [Filing No. 126 at 4.] Finally, Defendants argue that Officer Sullivan's affidavit contains only lay testimony regarding the policies and training in place at the time of the incident. [Filing No. 126 at 4-5.]

         A. Authenticity Objections

         First and foremost, it is clear that Defendants have operated under a misunderstanding of what is required of evidence on summary judgment. Compliance with Rule 56(c)(1)(A), Local Rule 56-1(e), and the Practices and Procedures are necessary but not sufficient conditions that must be met for evidence to be considered on summary judgment. Thus, Defendants' recitation of the law in their reply brief is incomplete. They are correct that parties must cite “to particular parts of materials in the record, ” Fed. R. Civ. P. 56(c)(1)(A), and must “support each fact the party asserts in a brief with a citation” to evidence, S.D. Ind. L.R. 56-1(e). They are also correct, as a general matter, that the types of submissions which may be considered on summary judgment include materials disclosed in discovery or tendered at a deposition. Cf. S.D. Ind. L.R. 56-1(e) (noting that parties may support factual assertions with citations “to a discovery response, a deposition, an affidavit, or other admissible evidence”). But these requirements explain only how factual assertions must be supported. They do not address what makes the evidence cited in support of those factual assertions substantively admissible on summary judgment. As to that issue, the case law is clear: “In [considering] summary judgment, a court may consider any material that would be admissible or usable at trial, including properly authenticated and admissible documents or exhibits.” Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001) (emphasis added) (internal quotations omitted). Put another way, Defendants' argument regarding compliance with the citation provisions has it backwards-“[a]dmissibility is the threshold question because a court may consider only admissible evidence in assessing a motion for summary judgment.” Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (collecting authorities).

         To assess admissibility, courts turn to the Federal Rules of Evidence. See id.; Fed. R. Evid. 1101. As set forth above, most of Mr. Johnson's objections deal with authentication. In general, “[t]o satisfy the requirement of authenticating . . . an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). Rule 901(b) sets forth many forms of evidence that one may offer to meet this burden, though many documents of the type offered by Defendants may be self-authenticating under Rule 902. Public documents and records of regularly conducted activities are generally self-authenticating (requiring no additional evidence to demonstrate authenticity) if accompanied by seal or certification. See, e.g., Fed. R. Evid. 902(1)-(2), (4), (11).

         The problem for Defendants is that the challenged exhibits lack any evidence supporting authentication. Exhibits 6 through 10 and 14, which are attachments to Filing No. 106, purport to be internal affairs transcripts (Exhibits 6 and 7), documents relating to a “Citizens Police Complaint” (Exhibit 8, except page 4), Mr. Johnson's guilty plea agreement (exhibit 9), an excerpt from Mr. Johnson's change-of-plea hearing (exhibit 10), and documents which purport to be Officer Rogers' personnel records (exhibit 14). Aside from the inclusion of an index from the depositions at which they were offered and other miscellaneous discovery materials, Defendants' evidentiary submissions on reply appear to be mere duplicates of Exhibit 8, [see Filing No. 127-2 at 5-11], and Exhibit 14, [see Filing No. 127-1 at 21-50]. Absent from any of these filings are any seals, certificates, or signatures that would allow for self-authentication under Rule 902(1), (2), and (4). Also absent is any independent evidence-such as sworn declarations-suggesting that the documents are “what the proponent claims” they are under Rule 901(a) and (b). Defendants' only responses to these objections are that they were offered at a deposition or produced to Mr. Johnson in discovery. But neither response has anything to do with the authenticity of the documents. Depositions, for example, are not limited to questioning about authentic documents. And production in discovery does not preclude Mr. Johnson from challenging authenticity-again, the threshold issue before the Court.

         The Seventh Circuit very recently “examine[d] . . . how district courts manage summary judgment practice, particularly with respect to the presentation of evidence for purposes of summary judgment.” Cehovic-Dixneuf v. Wong, 895 F.3d 927, 930-31 (7th Cir. 2018) (Hamilton, J.). In its in-depth examination of summary judgment procedure, the court addressed how situations much like this one may be handled, observing:

It is not unusual for parties to submit documentary evidence to support or oppose summary judgment, as happened here, without fully authenticating the documents with affidavits thorough enough to overcome any and all evidentiary objections that could be raised.
When that happens-when one side fails to cross all evidentiary t's and dot all procedural i's-it is also not unusual for opposing lawyers to choose to overlook available evidentiary or other procedural objections. Lawyers should know their cases. Courts are entitled to rely on lawyers to decide which potential objections are worth raising and which are not. This is especially so when many such defects in summary judgment evidence could be cured quickly with a supplemental affidavit or two. Neither the rules of evidence nor the rules of civil procedure require lawyers or judges to raise all available evidentiary objections.

Id. at 931-32 (citations omitted). But the court also anticipated that a party might well raise such evidentiary objections, as they are entitled to do. When that happens, the other party is entitled to respond, perhaps “with a supplemental affidavit or two[, ] to cure the problems.” Id. at 932. “Nevertheless”-even where it is abundantly clear that the problems could have easily been cured by submission of authenticating affidavits or self-authenticating certifications-“when an objection is raised, the court must apply Rule 56(e) and sustain the objection.” Elghanmi v. Franklin Coll. of Ind., Inc., 2000 WL 1707934, at *1 (S.D. Ind. 2000) (Hamilton, J.) (cited with approval in Cehovic-Disneuf, 895 F.3d at 932).

         Here, it is abundantly clear that most if not all of the authenticity issues in Defendants' exhibits could have been cured with affidavits attesting to their authenticity or certifications and signatures from the appropriate public officials. The unsworn statements in the internal affairs transcriptions could have been brought within the purview of Rule 56(c)(1) with affidavits from the interviewees attesting, under penalty of perjury, that the statements are true. But instead of simply curing these deficiencies, Defendants replied with inapposite arguments about the documents' use in depositions.

         Defendants' remaining argument is that the documents relating to Mr. Johnson's guilty plea are subject to judicial notice. Rule 201 allows the Court to take judicial notice of adjudicative facts which are “not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). As noted above, the documents themselves (the plea agreement and the change-of-plea transcript) lack authenticating evidence under Rule 901(a) or seals or certifications which would render the documents self-authenticating under Rule 902. In any event, Rule 201 permits the Court to take judicial notice of facts, not documents. Cf. In re Lisse, 905 F.3d 495, 497 (7th Cir. 2018) (Easterbrook, J., in chambers) (“That document is not subject to judicial notice because it is not evidence of an adjudicative fact. . . . If the document were being offered just to show that it had been filed, that fact might be subject to judicial notice, but the ‘Request' does not suggest that appellant wants this court to take notice that a particular document was filed on a specific date in some other tribunal.”).

         What Defendants are actually requesting is that the Court take judicial notice of the charges to which Mr. Johnson pleaded guilty in State v. Johnson, No. 49G09-1411-F6050357 (Marion Super. Ct. judgment entered Mar. 2, 2017), and any admissions Mr. Johnson may have made during the change-of-plea hearing. The Court may properly grant the former request, inasmuch as Mr. Johnson does not dispute that he was convicted of resisting law enforcement under Indiana Code section 35-44.1-3-1(a)(1) and inasmuch as the judgment and “Sentencing Order” are public records not subject to reasonable dispute. The Court may not, however, grant the second request. While the contents of the transcript may be the type of evidence subject to judicial notice, it cannot be “readily determined” because the transcript appears nowhere on the publicly-available docket. See State of Indiana v. Timothy Johnson, (in “Case Number” field enter “49G09-1411-F6-050357” and press “Search”) (last accessed Jan. 11, 2019). Without ready access to the document, the Court, as a practical matter, is unable to take judicial notice of the facts contained in it. The Court therefore declines to take judicial notice of the state-court proceedings beyond the fact of Mr. Johnson's guilty plea and convictions under Indiana Code sections 35-44.1-3-1(a)(1) and 35-45-2-1(a)(2).

         These are problems of Defendants' own making. Had Defendants simply replied to Mr. Johnson's objections with authenticating affidavits or self-authenticating versions of the previously-tendered exhibits, and proffered declarations adopting unsworn statements under oath, they could have addressed most of Mr. Johnson's objections. But on this record, with the exception of the limited judicial notice of Mr. Johnson's guilty plea and convictions for resisting law enforcement and intimidation, “the court must apply Rule 56(e)” and SUSTAIN Mr. Johnson's objections to Exhibits 6 through 10 and 14 and the duplicate exhibits offered on reply. Elghanmi, 2000 WL 1707934, at *1.

         B. Objection to Officer Sullivan's Affidavit

          Mr. Johnson's final objection is to Exhibit 11, [Filing No. 106-11], the affidavit of Officer Sullivan, which Mr. Johnson argues should be excluded as undisclosed expert testimony. [Filing No. 124-2 at 4.] In reply, Defendants do not dispute that Officer Sullivan was not disclosed as an expert, but instead argue that Officer Sullivan's affidavit contains only lay testimony. [Filing No. 126 at 4-5.]

         As the Seventh Circuit has explained,

Lay testimony results from a process of reasoning familiar in everyday life, while expert testimony results from a process of reasoning which can be mastered only by specialists in the field. We have explained that a law-enforcement officer's testimony is a lay opinion if it is limited to what he observed or to other facts derived exclusively from a particular investigation. On the other hand, an officer testifies as an expert when he brings the wealth of his experience as an officer to bear on those observations and makes connections for the jury based on that specialized knowledge.

United States v. Christian, 673 F.3d 702, 709 (7th Cir. 2012) (alterations, quotations, and citations omitted). The court acknowledged, however, that in application the “distinction between expert and lay testimony is often far from clear.” Id.

         Officer Sullivan's affidavit straddles this divide, meaning that some of his observations must be excluded as undisclosed expert testimony, while others may be considered in evaluating Defendants' Motion for Summary Judgment. Officer Sullivan's observations about what happened, which are entirely based upon his review of the surveillance footage, depend upon him “mak[ing] connections for the [court] based on [his] specialized knowledge.” Id. This includes paragraphs 19, 20, and 25 through 28, [Filing No. 106-11 at 3-4], all of which offer Officer Sullivan's assessment and interpretation of the incident. The other paragraphs addressing the training officers undergo regarding use-of-force techniques constitute permissible lay testimony, based upon Officer Sullivan's personal experience as a use-of-force instructor. These paragraphs do not opine that Officer Rogers complied with all of the training and policies, but Officer Sullivan's testimony regarding the training all IMPD officers underwent is relevant to Officer Rogers' state of mind and Mr. Johnson's Monell claims against the City. See, e.g., Christian, 673 F.3d at 709 (concluding that testimony regarding agents' training was lay testimony relevant to their state of mind). The Court therefore SUSTAINS IN PART and OVERRULES IN PART Mr. Johnson's objection to Exhibit 11.


         Summary ...

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