Sow v. Fortville Police Dep't

• Decision Date: 11 February 2011
• Docket Number: No. 10–2188.,10–2188.
• Citation: 636 F.3d 293
• Parties: Mouhamadou M. SOW, Plaintiff–Appellant,v.FORTVILLE POLICE DEPARTMENT, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

636 F.3d 293

Mouhamadou M. SOW, Plaintiff–Appellant,

v.FORTVILLE POLICE DEPARTMENT, et al., Defendants–Appellees.

No. 10–2188.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 8, 2010.Decided Feb. 11, 2011.

Swaray E. Conteh (argued), Attorney, Indianapolis, IN, for Plaintiff–Appellant.Kirk A. Horn, Attorney, Mandel Horn McGrath & Reynolds, Carmel, IN, Kyle Jones (argued), Attorney, Norris, Choplin & Schroeder, Indianapolis, IN, for Defendants–Appellees.Before FLAUM and EVANS, Circuit Judges, and McCUSKEY, District Judge. ^*McCUSKEY, District Judge.

Plaintiff–Appellant, Mouhamadou M. Sow, was arrested for forgery based upon information that he tried to cash a fake money order. Plaintiff was later able to produce a receipt for the money order and the charge against him was dismissed.

On July 24, 2008, he filed a Complaint in the Southern District of Indiana. Plaintiff named as Defendants: the United States of America, U.S. Postal Employees Lynnette Hertzer and Brenda Rains, Fortville Police Department, McCordsville Police Department, and Officer Michael Fuller of the Fortville Police Department in his individual and official capacities. Plaintiff's action was brought under 42 U.S.C. §§ 1983, 1985, and 1986. Plaintiff also alleged numerous state law claims, asserting that the district court had supplemental jurisdiction over those claims.

On December 17, 2008, the district court dismissed the U.S.A., Hertzer and Rains from the lawsuit. On April 13, 2010, the district court entered two orders and granted summary judgment in favor of the three remaining Defendants—the Fortville Police Department, Fuller, and the McCordsville Police Department. Plaintiff has appealed from the final orders of the district court which entered summary judgment. We affirm.

FACTS

Plaintiff is from Dakar, Senegal, West Africa. He has been a citizen of the United States since 1996. In November 2007, Plaintiff was involved in selling African items like old masks, statues and clothing. As part of his business, Plaintiff purchased merchandise from Africa and sold the merchandise all over the United States at state fairs, county fairs and festivals.

Plaintiff owned a wrecked Toyota Sequoia. His friend, Biran Tall, told him that he could get spare parts he needed for the vehicle in Fortville, Indiana. On November 19, 2007, Plaintiff came to Fortville in a custom van which had tinted windows and a cardboard temporary plate posted in the back window. Before coming to Indiana, Plaintiff had purchased money orders from the Eastland Post Office in Columbus, Ohio. The price for the parts Plaintiff needed was $775 and Plaintiff attempted to purchase the parts with a $1000 money order. The dealer did not have sufficient money for change and directed Plaintiff to the Fortville Post Office.

At the Fortville Post Office, Plaintiff waited patiently in line and then presented the $1000 money order to a female clerk, Brenda Rains. Rains held the money order up and told Plaintiff that it was fake because the serial numbers were not right and the watermark did not resemble Benjamin Franklin, the image present on all official money orders. Rains thought the watermark looked like Jesus Christ. Plaintiff advised Rains that he purchased the money order at a U.S. Post Office in Columbus, Ohio. Rains went to the back office to show it to her supervisor. When she came back she told Plaintiff they did not have enough cash to negotiate the money order. Rains told Plaintiff there was a post office nearby in McCordsville and gave Plaintiff directions how to get there. While Rains was talking to Plaintiff, another postal employee, Lynnette Hertzer, searched the parking lot to obtain a description of Plaintiff's vehicle. After Plaintiff left, Hertzer called the Fortville police “to report [her] suspicions” and Hancock County dispatched a radio transmission regarding the report.

Officer Fuller of the Fortville Police Department received the transmission and soon arrived at the post office. The employees informed Fuller that an individual had attempted to pass a $1000 money order which appeared to be fake. Fuller was also informed that Plaintiff had just left and was traveling to the McCordsville Post Office to attempt to cash the money order. Fuller passed this information to the McCordsville Police Department by radio and also provided a description of Plaintiff's van, which he had been given at the post office.

McCordsville Police Officer Michael Schwamberger stopped Plaintiff's van in McCordsville. Schwamberger stopped the vehicle because it did not appear to have a proper registration plate and because it fit the description of the vehicle provided by Fuller. Officer Scott Prather of the McCordsville Police Department arrived at the scene during the stop. The stop was videotaped and the videotape showed that the stop lasted more than one hour. During the stop, Plaintiff produced a Florida Driver's License bearing a New York address and did not produce a vehicle registration.

Fuller arrived on the scene and spoke to Plaintiff, who produced the $1000 money order that he had tried to cash at the post office. Fuller and Schwamberger both inspected the money order and concluded the watermark did not resemble Ben Franklin but rather looked like Jesus Christ. They asked Plaintiff for a receipt for the money order and Plaintiff was unable to produce one. Plaintiff did produce a backpack full of other money order receipts and other documentation. During the stop, Fuller called post office headquarters in Baltimore, Maryland. Fuller was informed that the serial numbers from the $1000 money order were not in a format used or recognized by the U.S. Post Office. Fuller also called Craig Jones, the postal inspector in Indianapolis, who told him the same thing. Jones said that, due to the watermark not being the picture of Benjamin Franklin, the money order was fake. Jones also told Fuller that the federal government would not prosecute the case because of the small amount of money involved. Jones concluded by saying that the matter would have to be handled by local authorities.

Plaintiff gave Fuller a $500 money order that he had purchased on the same day and at the same time as the $1000 money order, along with a receipt for the $500 money order. The receipt included the telephone number for the Columbus, Ohio post office where the money order was purchased. Fuller failed to call the Columbus, Ohio post office. In addition, according to Plaintiff, the officers did not allow him to continue looking in his back pack for the receipt for the $1000 money order. Fuller did contact Jerry Bean, the Chief Deputy Prosecutor for Hancock County, and was advised to arrest Plaintiff for forgery. Plaintiff was read his Miranda rights and handcuffed.

Plaintiff testified that the officers searched his van without permission. Moreover, according to Plaintiff, the video shows that the officers searched the van. Plaintiff testified that he was wearing three or four African protection belts that he received from his parents and believed were important to protect him from bad things like accidents. During the arrest, Schwamberger grabbed and cut the belts and threw them into Plaintiff's van. Plaintiff was very upset because he did nothing wrong and this was the first time he had had any trouble with the police. Plaintiff testified that he was pushed into the police car and hit his head as he was pushed and thrown into the vehicle. He testified that he temporarily lost consciousness. Plaintiff testified that he later suffered from headaches and purchased over-the-counter pain medication and sought psychiatric treatment and traditional African treatment when he returned to Senegal two or three weeks later. Plaintiff also testified that the handcuffs were too tight and painful. Plaintiff said that he complained to Fuller once that the handcuffs were too tight and Fuller refused to loosen them.

Following the arrest, Schwamberger transported Plaintiff to the McCordsville Post Office. Fuller met them there in his own vehicle. Fuller and Schwamberger spoke to the post office employees at McCordsville who were of the opinion that the money order was counterfeit. These postal employees provided the officers with an official money order. The officers compared it to the $1000 money order and concluded that the watermarks were different. Fuller subsequently transported Plaintiff to the Hancock County Jail. Plaintiff did not complain to jail officials or receive treatment at the jail for a bump on his head or handcuff pain. Plaintiff was held for about 48 hours until his friends and family collected money and posted his bond.

After Plaintiff was released from jail, he found the receipt for the $1000 money order and hired counsel. The criminal charge against Plaintiff was subsequently dismissed.

In the order granting summary judgment to Fuller and the Fortville Police Department the district court found: (1) there was ample evidence providing probable cause to arrest Plaintiff so his false arrest claim failed; (2) Plaintiff's excessive force claim failed because he complained about his handcuffs only once and did not complain to any officer about his bumped head; (3) there was no evidence to support Plaintiff's claim of racial profiling under the Equal Protection Clause of the Fourteenth Amendment; (4) Plaintiff's claim of conspiracy under §§ 1985 and 1986 failed because it was based on nothing but conjecture and speculation; (5) the Fortville Police Department was not a proper party because it lacked the capacity to sue or be sued; and (6) Plaintiff did not respond to the arguments regarding his state law claims, except for his claim of negligent supervision, which failed because Plaintiff did not sue the proper party, the Town of Fortville.

The district court also stated that there was no merit to Plaintiff's negligent supervision claim, which was really a failure to train...