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Windle v. State

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

December 10, 2019

KEVIN WINDLE, Plaintiff,
STATE OF INDIANA a governmental entity, et al. Defendants.

          Zaki M. Ali ATTORNEY AT LAW

          Benjamin C. Ellis INDIANA ATTORNEY GENERAL

          Benjamin Myron Lane Jones INDIANA ATTORNEY GENERAL



         This cause is before the Court on Defendants' Motion for Summary Judgment [Dkt. 34], filed on June 10, 2019. Plaintiff Kevin Windle has brought this action against Defendants State of Indiana (“the State”), Indiana State Police (“ISP”), Darnell Ledsinger, Dan Herron, David Salley, and Nathaniel Raney, alleging various constitutional violations under 42 U.S.C. § 1983 as well as a state law claim for intentional infliction of emotional distress. Defendants have moved for summary judgment on all claims alleged in the Complaint, with the exception of the excessive force claim alleged against Defendants Raney and Salley. For the reasons detailed below, we GRANT IN PART and DENY IN PART Defendants' Motion.[1]

         Factual Background

         On April 20, 2016, Mr. Windle attended a political rally for then-presidential candidate Donald Trump at the Indiana State Fairgrounds (“the Rally”). No. surprise, a number of protesters attended the Rally as well. At the end of the Rally, as Mr. Windle was returning to his vehicle in the parking lot, an unknown individual or individuals in the crowd knocked the sign he was carrying out of his hand, spit on him, and kicked him.

         According to Mr. Windle, he saw a man wearing “a Butler t-shirt” in the crowd who was also being harassed by “this mob of people [who] were all screaming fuck Trump and poking [the man] and hitting him and putting the flag around his head.” Windle Dep. at 12-13. Mr. Windle “gave one of the guys the finger and told him to leave [the man] the fuck alone or something to that nature.” Id. In video footage of the incident, Mr. Windle is seen flashing his middle finger at a woman wearing a light blue dress and at another person wearing a black hoodie sweatshirt and a mask and carrying a skateboard. Defs.' Exh. 3.

         As these events unfolded, Lt. Ledsinger of the Indiana State Police moved through the crowd toward the disturbance, yelling to Mr. Windle and the protestors to step back. Several protesters attempted to grab Mr. Windle's arm and, he contends, hit, slapped, and poked him. An unknown individual pulled Mr. Windle's hat off his head, prompting Mr. Windle to reach out and move in the direction of that person. Lt. Ledsinger reached Mr. Windle at this point, extended his arms and separated Mr. Windle and the other man as they were yelling at each other. In an effort to control the situation, Lt. Ledsinger shouted instructions to the men to “get back.” Defs.' Exh. 6. Mr. Windle and a man wearing a polo shirt continued to argue as Lt. Ledsinger stood between them with his arms extended in an attempt to keep them separated. At approximately this point, two plainclothes Indiana State Troopers, Defendants Trooper Raney (wearing a gray shirt) and Det. Salley (wearing a green shirt), along with three uniformed Indiana State Troopers, including Defendant Trooper Herron, approached the scene from behind Lt. Ledsinger.

         Mr. Windle continued pointing and shouting at the man who had taken his hat, shaking off various individuals in the crowd who were trying to restrain him. According to Mr. Windle, he was attempting to identify for Lt. Ledsinger the man who had taken his hat. Lt. Ledsinger turned toward Mr. Windle and with his hands on Mr. Windle's chest, began walking him backward, pushing him away from the crowd to a location between parked vehicles in the parking lot. In the process of being walked backward, Mr. Windle stumbled and then fell straight back onto the concrete. Unable to brace himself with his hands as he fell, he hit his head on the pavement. Defendants contend that Mr. Windle's fall occurred as a result of his having simply lost his balance, but Mr. Windle claims that his fall was caused by Lt. Ledsinger pushing him roughly in the chest with both hands and “slam[ming him] to the ground.” Windle Dep. at 197.

         As Mr. Windle fell, Trooper Raney and Det. Salley rushed in to assist behind Lt. Ledsinger. When Trooper Herron saw two men in street clothes coming up behind Lt. Ledsinger, he mistook them as non-law enforcement and ran over to assist Lt. Ledsinger, in the process shoving Trooper Raney with both hands and knocking him to the ground on top of Mr. Windle. No. video footage depicting what transpired after this point is available, as far as we have been told. According to Mr. Windle, Trooper Raney, Det. Salley, and Trooper Herron all jumped on top of him while he was on the ground, grabbed his legs and twisted them; one of the men put a knee in his back and pressed down on his neck and head so that his face was pushed onto the blacktop surface. Mr. Windle claims that Defendants proceeded to yank his right arm upwards to a level even with his head and he heard his shoulder pop. When he was being handcuffed, one of the Defendants said to him, “Give me your left arm, ” whereupon Mr. Windle replied that he was unable to do so because he was disabled.[2]

         Once handcuffed, Mr. Windle was directed to stand up. He allegedly repeatedly told Defendants that he could not get up off the ground because of his disability. Each time he said this, he alleges, the officers picked him up to a height where only his knees were touching the ground before pushing him back down again onto the blacktop, causing his face to hit the hard surface approximately ten times before Defendants lifted him up onto his feet and transported him by golf cart to a staging area until being taken to the VA Hospital and thereafter transferred to the Marion County Sheriff's Department, where he was detained.

         The following day, April 21, 2019, Mr. Windle was arraigned in Marion Superior Court on a charge of disorderly conduct, in violation of Indiana Code § 35-45-3(a)(1). Based on the probable cause affidavit executed by Trooper Raney, the court determined there was probable cause to support Mr. Windle's arrest. Mr. Windle was released from custody following his arraignment and the charge of disorderly conduct was dismissed on August 31, 2016. On September 13, 2016, a new charge of disorderly conduct was brought against Mr. Windle as well as two counts of resisting law enforcement, in violation of Indiana Code § 34-44.1-3-1(a)(1). The Marion Superior Court again found probable cause for Mr. Windle's arrest, based on a second affidavit executed by Trooper Raney.[3] Mr. Windle eventually was acquitted on all charges on December 14, 2017, following a jury trial. This civil litigation ensued.

         Legal Analysis

         I. Evidentiary Issues

         Before resolving the substantive issues raised in Defendants' Motion for Summary Judgment, we must address certain evidentiary issues. Defendants have interposed objections to the following evidentiary submissions by Mr. Windle: (1) the criminal trial transcript; and (2) the opinions of Mr. Windle's experts. The parties also disagree over whether Mr. Windle should be permitted to withdraw his admissions. We address each of these issues in turn below.

         A. Criminal Trial Transcript

         Defendants challenge the admissibility of the transcript from Mr. Windle's criminal trial on the charges of disorderly conduct and resisting arrest arising from the incident underlying this litigation on grounds that it is unauthenticated and constitutes inadmissible hearsay. For the following reasons, we are not persuaded by Defendants' arguments.

         The Seventh Circuit has recognized that “transcripts of testimony may be considered in support of, or opposition to, a motion for summary judgment.” Williams v. Vasquez, 62 Fed. App'x 686, 692 (7th Cir. 2003); accord Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1415 n.12 (5th Cir. 1993) (“It is well-settled that a certified transcript of a judicial proceeding may be considered on a motion for summary judgment.”); Beiswenger Enters. Corp. v. Carletta, 46 F.Supp.2d 1297, 1299 (M.D. Fla. 1999) (“Trial testimony, even when from a proceeding in which the parties, subject matter, and counsel are not the same can be used because it is sworn testimony which is at least as reliable as that found in affidavits.”); Kraft Gen. Foods, Inc. v. Cattell, 18 F.Supp.2d 280, 284 (S.D.N.Y. 1998) (“Sworn testimony from another trial is admissible on a motion for summary judgment.”). Here, the transcript of Mr. Windle's state court trial is certified as “full, true, correct, and complete” by the Official Court Reporter for the Marion Superior Court Criminal Division 7 and contains the court reporter's electronic signature. This is sufficient for authentication purposes at this stage of the litigation, particularly considering that Defendants have not pointed out any specific errors in the trial transcript. See, e.g., Ball v. A.O. Smith Corp., 321 B.R. 100, 105-07 (N.D.N.Y. 2005) (holding that trial transcripts of unrelated proceedings were admissible under Rule 902(4) even without an authenticating witness, where transcripts contained court reporter certifications).

         With regard to Defendants' hearsay objection, “transcripts are not ‘hearsay' merely because they consist of statements made by a witness in a prior proceeding, any more than an affidavit or a deposition offered in support of a motion for summary judgment is inherently hearsay.” Ricupero v. Wuliger, Fadel & Beyer, No. 1:91CV0589, 1994 WL 483871, at *4 (N.D. Ohio Aug. 26, 1994). To the extent the testimony in the criminal trial itself contains hearsay statements, we will not consider that portion of the testimony unless it falls within ...

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