United States District Court, S.D. Indiana, Indianapolis Division
JEFFREY C. BALLHEIMER, Plaintiff,
RYAN BATTS #525, MATTHEW BURKS #562, BLAYNE ROOT #524, TOWN OF WHITESTOWN, INDIANA, Acting through its Metropolitan Police Dep't and its Chief of Police, DENNIS R. ANDERSON, Chief of Police, in his official capacity, Defendants.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT (DKTS. 29, 31)
AND COLLATERAL MOTIONS (DKTS. 60, 61)
EVANS BARKER, UNITED STATES DISTRICT COURT.
Jeffrey Ballheimer (“Ballheimer”) sued Defendants
the town of Whitestown, Indiana (“the Town”);
Ryan Batts (“Batts”), Matthew Burks
(“Burks”), and Blayne Root (“Root”),
three officers of the Town's police department (together,
“the Officers”); and Dennis Anderson
(“Anderson”), chief of the Town's police
department, for violations of the Fourth and Fourteenth
Amendments to the Constitution under 42 U.S.C. § 1983 as
well as state-law torts and state constitutional violations.
matter is now before the Court on the parties'
crossmotions for summary judgment and collateral motions. For
the reasons given and to the extent stated below,
Defendants' motion for summary judgment is granted in
part and denied in part. Plaintiff's motion for summary
judgment is denied. The collateral motions are denied.
following facts are not genuinely disputed unless so noted.
On the evening of July 7, 2016, the Officers were dispatched
to respond to a report of an unconscious person in the
parking lot of a local gas station and truck stop near the
interstate outside the Town. At the gas station, the Officers
found Ballheimer asleep in the driver's seat of his car.
The car was parked properly in a parking spot and was not
obstructing traffic. The engine was running but not in gear.
Ballheimer had an open laptop computer on his lap as well as
an extinguished cigarette butt and cold cigarette ashes; the
driver's side window was partly open.
few unsuccessful attempts, King eventually awakened
Ballheimer, who at first responded with angry, vulgar
language before composing himself. Medics called by the
Officers joined Ballheimer and the Officers at the scene soon
thereafter. Ballheimer appeared “confused and
lethargic, ” Compl. ¶ 8, though just how confused
and lethargic is disputed. Ballheimer said that he had been
on his way home and pulled over at the gas station because he
felt very tired.
checked Ballheimer's pulse and asked him whether he had
any medical problems, which he denied. The medics examined
Ballheimer in their ambulance anyway. Ballheimer did not wish
to be examined or treated by the medics and signed a medical
release form as soon as the medics permitted him to do so.
Ballheimer then exited the ambulance. The Officers observed
Ballheimer staggering as he walked from his car to the
ambulance and back again, unsteady on his feet. They
immediately pulled him aside and began conducting field
had never before performed an impaired driver investigation
or performed field sobriety testing. Burks nonetheless was
able to determine that Ballheimer failed the horizontal gaze
nystagmus test, the walk-and-turn test, and the
one-legged-stand test. Ballheimer was breathalyzed but the
test detected no alcohol on his breath. The Officers smelled
neither alcohol nor marijuana on or around Ballheimer. Though
Batts was certified in performing “drug recognition
expert” tests, he did not perform one on Ballheimer.
Officers advised Ballheimer of Indiana's implied-consent
law, which the parties sometimes refer to as “reading
him” or “offering him implied consent.”
Though the precise advisement is not in the record, the
following example offered pursuant to the same statute
I have probable cause to believe that you have operated a
vehicle while intoxicated. I must now offer you the
opportunity to submit to a chemical test and inform you that
your refusal to submit to a chemical test will result in a
suspension of your driving privileges for one year. Will you
now take a chemical test?
Abney v. State, 811 N.E.2d 415, 423 (Ind.Ct.App.
2004). See Ind. Code §§ 9-30-6-1 through
2. Eventually Batts and Burks transported Ballheimer in their
police car to a nearby hospital for chemical testing. The
Officers say Ballheimer consented to be transported;
Ballheimer maintains that he acquiesced in the Officers'
display of authority and had no real choice in the matter.
hospital, Ballheimer refused to consent to blood and urine
screens until he was reminded that refusal would result in
his license being suspended. Ballheimer signed a consent form
and a hospital technician drew his blood. He was then asked
to provide a urine sample. It is undisputed that he did not
provide a sample. It is hotly disputed whether that failure
was a product of his malingering refusal, as the Officers
say, or of his genuine inability to produce a specimen, as he
says. Ballheimer initially consented to be catheterized but
later revoked that consent as soon as the procedure was
explained to him. There followed a substantial interval
wherein Ballheimer “attempted” to provide a urine
sample. As noted, it is disputed whether those attempts were
shams or genuine.
Ballheimer collapsed in a hospital bathroom and became
unresponsive to Batts's demands for a “yes or
no” answer to the question of whether he would consent
to be catheterized. Batts and Burks put Ballheimer in a
chair. When he did not get up from the chair-again it is
disputed whether through refusal or inability-he was told he
was under arrest, handcuffed, and put in a wheelchair. Batts
wheeled Ballheimer back outside to the police car they had
arrived in. In Defendants' words, “[u]pon arriving
at [Burks's] police car, [Ballheimer] did not get into
the car as instructed, so [Batts] struck [Ballheimer] in his
right thigh with his right knee and [Ballheimer] fell into
the seat . . . .” Defs.' Br. Supp. 8.
according to Ballheimer,
I remember the officer coming around and sitting in the car
and looking at me and saying, now we're going to charge
you with resisting arrest, so you can't bond out until
Monday. And then he shot me the most, like, messed up smile
I've ever seen in my life. And, like, at that point, I
was legitimately, like, terrified. So I-that's when I
tried to get out of the situation by telling them-it somehow
got translated into my needing medical help.
Dep. (Dkt. 30 Ex. 4) 110:15-24.
meantime, Burks had started to work on a search warrant
application to present to the court seeking an order to
compel production of Ballheimer's urine. Among other
things, Burks's affidavit in support of the application
stated that Ballheimer “had refused [to take a chemical
test] by not responding.” Dkt. 33 Ex. 2, at 2.
Ballheimer contends that this was lie, since Burks had
observed him consent to a blood draw and repeatedly attempt
to provide a urine sample. The affidavit stated further that
Burks was requesting “a search warrant to be issued to
obtain and remove blood or other body fluid sample(s)”
from Ballheimer but omitted that the Officers had already
obtained a blood sample. Id. Ballheimer contends
that this was an intentionally misleading omission. Batts
read and approved Burks's affidavit before it was filed.
The was warrant issued within the hour, authorizing the
Officers “to obtain and remove blood or other body
fluid sample(s)” from Ballheimer and “to use
reasonable force to obtain such sample(s).” Dkt. 33 Ex.
1, at 1.
returned Ballheimer from the police car to the hospital.
Ballheimer was administered fluids intravenously for
dehydration, and perhaps received some medication as well,
and felt “substantially better.” Ballheimer Dep.
(Dkt. 30 Ex. 5) 123:12. Ballheimer was then given a
“last chance” to urinate, though he still did
not. Id. at 127:4.
After I couldn't pee, they gave me a few minutes, and
then they pretty much said, okay, well, you need to get
cathetered now because you have to. And so instead of just
arguing with them, I just complied, and I got up on the
table, so they wouldn't force me because they've
proven that they were going to do whatever they want.
They're going to get it however they want to. And
that's when the nurse told me to pull down my pants, and
then she grabbed my penis and started pushing it in, and it
was the worst pain I have ever felt in my life. And she keeps
yelling at me, you can't move. It's kind of hard not
to move when I'm feeling like I'm going to vomit the
Id. at 128:4-17.
his urine was successfully extracted, Ballheimer was
transported to the county jail, where he remained for two
weeks. The chemical tests revealed the presence of
amphetamines, methamphetamine, benzodiazepines, and MDMA in
Ballheimer's system. Ballheimer later admitted having
taken methamphetamine and Xanax on July 6, 2016, the day
before his arrest, but denied taking any drug on July 7,
2016. After two weeks in jail, Ballheimer was released on
bond to a rehabilitation facility, where he remained for five
driver's license was suspended for one year by the
Indiana Bureau of Motor Vehicles but that suspension appears
to have been vacated. On September 27, 2017, on a petition
for judicial review, the state court (by the same judge who
had approved the warrant application on July 7, 2016) found
that “probable cause did not exist to believe
[Ballheimer] had operated his vehicle in an impaired
condition [on July 7, 2016, ] and there was no authority to
offer [Ballheimer] implied consent.” Dkt. 33 Ex. 4, at
5. Indiana public records reveal that pending criminal
charges for operating a vehicle while intoxicated, operating
a vehicle with a controlled substance or its metabolite in
the body, public intoxication, and resisting law enforcement
were dismissed shortly thereafter. See also Dkt. 33
Ex. 6, at 1 (order of dismissal). No. conviction appears to
have resulted and no other charges appear to be pending in
connection with the July 7, 2016, incident.
lawsuit was filed on May 2, 2017. Dkt. 1. Defendants'
instant motion, Dkt. 29, seeks judgment on Ballheimer's
case in its entirety; Ballheimer's motion, Dkt. 31, seeks
judgment on liability only.
judgment is appropriate where there are no genuine disputes
as to any material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a).
application of this standard varies with the burden of proof,
a fundamental point that has escaped Ballheimer, who has not
applied the standard correctly. Where the movant seeks
judgment on a claim on which he would bear the burden of
proof at trial, as does Ballheimer here, the movant
must lay out the elements of the claim, cite the facts which
[he] believes satisfies these elements, and demonstrate why
the record is so one-sided as to rule out the prospect of a
finding in favor of the non-movant on the claim. If the
movant has failed to make this initial showing, the court is
obligated to deny the motion.
Hotel 71 Mezz Lender LLC v. Nat'l Ret. Fund, 778
F.3d 593, 601 (7th Cir. 2015) (citations omitted). Under
these circumstances, the movant may not rely on the
nonmovants' purported failure to establish an element of
their case, for they have no affirmative case to make.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
contrast, where the movants seek judgment on a claim on which
the nonmovant would bear the burden of proof, as do
Defendants here, the movants are entitled to judgment as a
matter of law if they can point to a failure of proof in the
record such that no reasonable jury could find in the
nonmovant's favor on one or more elements of his claims.
fact that crossmotions for summary judgment are before the
Court does not alter these standards. Price Waicukauski
& Riley, LLC v. Murray, 47 F.Supp.3d 810, 813 (S.D.
Ind. 2014) (Lawrence, J.). We decide each motion under the
respectively applicable standards, viewing the facts in the
light most favorable to the respective nonmovant.
Id. (citing Metro Life Ins. Co. v. Johnson,
297 F.3d 558, 561-62 (7th Cir. 2002)).
this point has apparently escaped the parties, who treat
their briefs in opposition to summary judgment in favor of
the other party largely identically to their briefs in
support of summary judgment in their own favor. For example,
Defendants attempt to resist Ballheimer's motion with the
aid of a “Statement of Material Facts Not in
Dispute, ” Defs.' Br. Opp. 1 (emphasis added),
contra S.D. Ind. L.R. 56-1(b), and Ballheimer's
opposition to Defendants' motion eschews any fact
statement whatsoever. Contra Id. But
“‘[t]he contention of one party that there are no
issues of material fact sufficient to prevent the entry of
judgment in its favor does not bar that party from asserting
that there are issues of material fact sufficient to ...