Peals v. Terre Haute Police Dept.

• Decision Date: 25 July 2008
• Docket Number: No. 07-2804.,07-2804.
• Citation: 535 F.3d 621
• Parties: Robert L. PEALS, Plaintiff-Appellant, v. TERRE HAUTE POLICE DEPARTMENT, George A. Ralston III, Terre Haute Police Chief, in his official capacity, Trey Gilbert, Terre Haute Police Officer, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

535 F.3d 621

Robert L. PEALS, Plaintiff-Appellant, v. TERRE HAUTE POLICE DEPARTMENT, George A. Ralston III, Terre Haute Police Chief, in his official capacity, Trey Gilbert, Terre Haute Police Officer, et al., Defendants-Appellees.

No. 07-2804.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 2008.

Decided July 25, 2008.

Michael T. Wallace (argued), Roberts & Bishop, Indianapolis, IN, for Plaintiff-Appellant.

William W. Drummy (argued), John C. Wall, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, Terre Haute, IN, for Defendants-Appellees.

Before BAUER, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

Robert Peals filed this action under 42 U.S.C. § 1983 against the Terre Haute Police Department and several individual police officers. Mr. Peals alleged that the defendants had performed an unlawful search, falsely arrested him, initiated a retaliatory prosecution against him and used excessive force against him. Before trial, the district court granted the defendants' summary judgment motion with respect to Mr. Peals' unlawful search, false arrest and retaliatory prosecution claims. The court also dismissed his claims against all of the defendants except Officers Trey Gilbert and Curt Brinegar. The remaining excessive-force claim proceeded to trial, and the jury found in favor of the defendants. Mr. Peals timely appealed the district court's grant of summary judgment on two of his claims and two of the court's rulings at trial. For the reasons discussed in this opinion, we affirm the judgment of the district court.

I BACKGROUND

A.

On September 15, 2003, Mr. Peals was arrested in his garage by a number of Terre Haute police officers from the Street Crimes Unit, a unit used to perform special tasks including high-risk arrests, narcotics arrests and narcotics information gathering. Among these officers were two K-9 officers who were detailed at that time to the Street Crimes Unit. The police officers had a warrant for Mr. Peals' arrest on charges of battery resulting in injury and invasion of privacy, but they did not possess a search warrant for his home. After the officers took Mr. Peals into custody, Mr. Peals observed Officer Brinegar, several other officers and the K-9 units looking around the garage "as if [they] were searching for something." R.77, Ex. C. In addition, Mr. Peals observed Officer Brinegar enter Mr. Peals' house.

In an unrelated incident, on January 15, 2005, Officer Gilbert arrested Mr. Peals in a restaurant parking lot pursuant to a bench warrant for failure to pay child support and failure to appear in court.¹ On that evening, Officer Gilbert was providing police security at a restaurant and was wearing a t-shirt printed with a badge and the word "POLICE." When Mr. Peals entered the restaurant, he was stopped by Officer Gilbert, who recognized him from the Vigo County Sheriff's Department Active Warrant List. Officer Gilbert told Mr. Peals that there was a warrant for Mr. Peals' arrest. While Officer Gilbert called the police station to check the status of the warrant, Mr. Peals said that he did not believe that Officer Gilbert had a warrant and walked to the parking lot. Officer Gilbert pursued and arrested him there. As a result of this incident, Mr. Peals was charged with resisting arrest.

B.

Following his 2005 arrest, Mr. Peals filed a section 1983 claim against the Terre Haute Police Department, the Police Chief in his individual capacity, and eight known and additional unknown officers. Alleging violations of his rights under the First, Fourth, Eighth and Fourteenth Amendments, the suit included four claims based on the 2003 and 2005 incidents: unlawful search, false arrest, initiation of a retaliatory prosecution and excessive force. The defendants moved for summary judgment on all claims. The district court granted the motion as to Mr. Peals' unlawful search, retaliatory prosecution and false arrest claims but denied the motion on his excessive force claims. Before trial, the district court also dismissed the claims against all of the defendants except Officers Brinegar and Gilbert.

Mr. Peals requested Officer Gilbert's and Officer Brinegar's personnel files. The district court examined the files in camera and determined that they did not contain information necessary to Mr. Peals' case and therefore would not be divulged. Mr. Peals did not object to the district court's determination; in response to the determination, his counsel simply replied, "Okay." Tr. at 15.

The district court also denied Mr. Peals' request to call Officer Peter Tanoos as a rebuttal witness. The court agreed with the defendants that Officer Tanoos' testimony would be improper rebuttal testimony because it should have been introduced during Mr. Peals' case in chief.

The jury found in favor of the officers on all claims. Mr. Peals timely appealed.

II DISCUSSION

A.

Mr. Peals contends that the district court improperly granted summary judgment on his claims of retaliatory prosecution and unlawful search. We review de novo the district court's decision to grant a motion for summary judgment and may affirm that decision on any ground found in the record. Hull v. Stoughton Trailers, LLC, 445 F.3d 949, 951 (7th Cir.2006). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Keck Garrett & Assocs. v. Nextel Commc'ns, Inc., 517 F.3d 476, 483 (7th Cir.2008); Fed. R.Civ.P. 56(c).

1. Retaliatory Prosecution

Mr. Peals contends that the district court improperly granted summary judgment on his claim that Officer Gilbert initiated a retaliatory prosecution against him. Mr. Peals submits that Officer Gilbert arrested him and then influenced the prosecutor into charging him with resisting arrest because of the complaint that he contends that he submitted against Officer Gilbert on January 4, 2005.

An individual may not be subject to criminal prosecution for exercising his right to free speech. Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). If an individual is subjected to criminal prosecution in retaliation for constitutionally protected speech and "nonretaliatory grounds are in fact insufficient to provoke the adverse consequences," then instigation of the retaliatory prosecution "is subject to recovery as the but-for cause of official action offending the Constitution." Id. An individual who is subjected to such a retaliatory prosecution therefore may bring a section 1983 claim against an official "who may have influenced the prosecutorial decision but did not himself make it, and the cause of action will not be strictly for retaliatory prosecution, but for successful retaliatory inducement to prosecute." Id. at 262, 126 S.Ct. 1695. To succeed on such a claim, the plaintiff must show a causal connection between the official's retaliatory animus and a subsequent injury in a retaliation action. Id. at 259, 126 S.Ct. 1695. He "must show that the nonprosecuting official acted in retaliation, and must also show that [the official] induced the prosecutor to bring charges that would not have been initiated without his urging." Id. at 262, 126 S.Ct. 1695. "Thus, the causal connection required here is ... between the retaliatory animus of one person and the action of another." Id. The plaintiff also must plead and prove, as an element of his case, that there existed no probable cause to support the underlying charge. Id. at 265-66, 126 S.Ct. 1695.

The district court granted the defendants' motion for summary judgment on Mr. Peals' retaliatory prosecution claim because it found that there was no evidence that Officer Gilbert had induced the prosecutor to file resisting arrest charges against Mr. Peals. Mr. Peals offers no evidence, at summary judgment or on appeal, that Officer Gilbert "induced the prosecutor to bring charges that would not have been initiated without his urging." See id. at 262, 126 S.Ct. 1695. He relies only on the fact that Officer Gilbert arrested him and that he subsequently was charged with resisting arrest.

Additionally, with respect to the underlying complaint of police misconduct that allegedly induced the retaliation, the record contains no admissible evidence that Mr. Peals ever filed a complaint against Officer Gilbert, that the Police Department ever received such a complaint or that Officer Gilbert was aware of a complaint. The only evidence related to such a complaint is a form titled "Complaint Against Police Officer" that is uncertified. Under Federal Rule of Evidence 901, evidence must be authenticated as a condition precedent to its admissibility. Fed.R.Evid. 901(a). Public records or reports such as Mr. Peals' alleged complaint against Officer Gilbert may be authenticated by showing evidence that the writing "is from the public office where items of this nature are kept." Fed.R.Evid. 901(b)(7). Mr. Peals has offered no evidence "sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a).

The record contains no admissible evidence of retaliatory animus on the part of Officer Gilbert or of Officer Gilbert's influencing the prosecutor's decision to charge Mr. Peals with resisting arrest. The district court therefore properly granted summary judgment for the officers on this claim. See Hartman, 547 U.S. at 262, 126 S.Ct. 1695 (holding that the plaintiff "must show that the nonprosecuting official acted in retaliation, and must also show that [the official] induced the prosecutor to bring charges that would not have been initiated without his urging").

2. Unlawful Search

The Fourth Amendment protects the right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const....