Browell v. Davidson

• Decision Date: 16 January 2009
• Docket Number: Cause No. 4:06-CV-142-AS-PRC.
• Parties: Andrea Lynn BROWELL, Plaintiff, v. Thomas DAVIDSON, individually and as a police officer for the City of Lafayette, John Wells, individually and as a police officer for the City of Lafayette, Joe Conn, individually and as a police officer for Tippecanoe County, Jason Huber, individually and as a police officer for Tippecanoe County, City of Lafayette, and Tippecanoe County Sheriff's Department, Defendants.
• Court: U.S. District Court — Northern District of Indiana

595 F.Supp.2d 907

Andrea Lynn BROWELL, Plaintiff, v. Thomas DAVIDSON, individually and as a police officer for the City of Lafayette, John Wells, individually and as a police officer for the City of Lafayette, Joe Conn, individually and as a police officer for Tippecanoe County, Jason Huber, individually and as a police officer for Tippecanoe County, City of Lafayette, and Tippecanoe County Sheriff's Department, Defendants.

Cause No. 4:06-CV-142-AS-PRC.

United States District Court, N.D. Indiana, Hammond Division, at Lafayette.

January 16, 2009.

COPYRIGHT MATERIAL OMITTED

Barry L. Loftus, William E. Emerick, Stephen R. Pennell, Stuart & Branigin, LLP, Lafayette, IN, for Plaintiff.

James S. Stephenson, Mark A. Holloway, Stephenson, Morow & Semler, Indianapolis, IN, Douglas J. Masson, Hoffman, Luhman & Masson PC, Lafayette, IN, for Defendants.

MEMORANDUM OPINION & ORDER

ALLEN SHARP, District Judge.

This matter is before the Court on Defendants Officer Thomas Davidson ("Davidson"), Officer John Wells ("Wells"), and the City of Lafayette's ("Lafayette") Motion for Summary Judgment (Doc. No. 33), and on Defendants Deputy Joe Conn ("Conn"), Deputy Jason Huber ("Huber"), and the Tippecanoe County Sheriff Department's ("Sheriff's Department") Motion for Summary Judgment (Doc. No. 31). Plaintiff, Andrea Lynn Browell ("Plaintiff' or "Ms. Browell"), responded to the Motions for Summary Judgment (Doc. Nos. 44 and 45), upon which Defendants Conn, Huber, and the Sheriffs Department filed a Motion to Strike (Doc. No. 49), and Defendants Davidson, Wells, and Lafayette filed a Motion to Strike (Doc. No. 52) portions of Plaintiff's assertions of fact. Oral arguments were twice heard on these motions in Lafayette, Indiana on October 29, 2008 and December 12, 2008. Careful consideration has been given to the parties' positions.

For the reasons set forth below, Defendants' Motions to Strike (Doc. Nos. 49, 52) are DENIED, and Defendants' Motions for Summary Judgment (Doc. Nos. 31, 33) are GRANTED.

I. INTRODUCTION

On November 20, 2006, Ms. Browell brought suit in Tippecanoe Circuit Court against the City of Lafayette and Officers Davidson and Wells, in their individual and official capacities, and against the Tippecanoe Country Sheriffs Department and Deputies Conn and Huber, in their individual and official capacities. The case was removed by Defendants to federal court on December 6, 2006. Specifically, Ms. Browell asserts claims against all of the Defendants under 42 U.S.C. § 1983 for violations of her rights under the Fourth and Fourteenth Amendments of the United States Constitution, and she asserts state law claims of assault and battery, negligence, intentional and negligent infliction of emotional distress, and violations of her constitutional rights under Article I, § 11 of the Indiana State Constitution.

II. STANDARD OF REVIEW

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548 91 L.Ed.2d 265 (1986). In deciding a motion for summary judgment, a court must view all facts in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); NUCOR Corp. v. Aceros Y Maquilas de Occidente, 28 F.3d 572, 583 (7th Cir.1994).

The moving party bears the burden of identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits" mat the moving party believes demonstrate an absence of genuine issue of material fact. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Once this burden is met, the nonmoving party "must set forth specific facts showing that there is a genuine issue case for trial." Fed. R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assocs., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir.1989). "[A] party who bears the burden of proof on a particular issue may not rest on its pleading, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.1988). Therefore, if a party fails to establish the existence of an essential element on which the party bears the burden of proof at trial, summary judgment is proper.

III. FACTUAL BACKGROUND

This matter regards events that occurred on November 25, 2004, at Ms. Browell's residence, located at 35 McIntosh Court, Lafayette, Indiana. While Ms. Browell witnessed some of the events and initiated the 911 call to the police, she was later rendered unconscious by her assailant, Bill Lile ("Lile"), leaving the Court to rely upon the responding officers' version of the events thereafter. However, the facts of the case are largely undisputed, and the question before the Court is whether Ms. Browell suffered a violation of her rights based on the following undisputed facts.

In the year prior to November 2004, Ms. Browell and Lile were involved in a personal relationship, during which Lile had made threats of violence against Ms. Browell and her family. On Friday, November 19, 2004, Ms. Browell reported to the Lafayette Police Department that Lile had forced Ms. Browell into his car, drove out to the country, demanded sex, and used cocaine. Several days before the incident on November 25, 2004, Ms. Browell wrote and sent a letter by registered mail to Lile, asking that he leave her and her family alone.

Thereafter, on November 25, 2004, Thanksgiving Day, Ms. Browell saw. Lile outside her house with a gun and she called 911. Lile then broke into Ms. Browell's house through a window in the kitchen, while Ms. Browell told the dispatcher that Lile had entered her house with a gun. Inside the home, Lile shot Ms. Browell's son, Eric Gilley. Ms. Browell also relayed this information to the 911 dispatcher. Before the line went dead, Lile was overheard yelling for Ms. Browell's keys. The call with 911 was then dropped. Lile pulled Ms. Browell out from underneath the bed. Ms. Browell heard her son moaning, and she believed that he was dead or dying. Ms. Browell's last recollection that day was Lile pulling her down the hallway while she struggled to escape from him.

Sergeant Davidson was working the day shift as the commander and was at the Lafayette Police Department when Ms. Browell called 911. Davidson heard the dispatcher talking to Ms. Browell and overheard that someone had a gun and had shot the caller's son. Davidson, familiar with what Lile looked like and knowing that Lile was a convicted child molester, responded to the call. While en route to the scene, Davidson was told that the female caller had been whispering, that Lile was yelling at her for keys, and that she was grabbed just before the phone was disconnected.

Officer Wells was working the day shift on Thanksgiving Day as a uniformed patrolman when he was dispatched to Ms. Browell's residence. Wells learned from the dispatcher that the 911 caller was a female and had stated that a man shot her son. Wells also learned from dispatch that the man wanted some keys.

Upon arriving at Ms. Browell's residence, the officers of the Tippecanoe County Sheriffs Department and the Lafayette Police Department began setting up a perimeter around Ms. Browell's house¹ soon after she placed the 911 call. Davidson worked Ms way by foot along the east side of McIntosh and stationed himself at the southwest corner of the residence. Officer Wells arrived and was positioned near Davidson, on the south side of the driveway. Both officers had their weapons drawn. Deputies Huber and Dilling also responded to the call. Huber positioned himself in the yard directly south of Ms. Browell's driveway, and Dilling was positioned on the north side of the driveway, near the garage and on the driver's side of the vehicle.

Within minutes, Dilling heard a car door close then heard the garage door open and saw a red Chevrolet Monte Carlo backing out. Dilling, who was in uniform, pointed his gun at the driver, Lile, and ordered him to stop. Dilling could see Lile's hands and did not see a weapon. Because Lile did not respond to Dilling's verbal commands, he kicked the driver's door and got Lile's attention. Lile turned and made eye contact with Dilling as Dilling continued to point his gun at Lile and ordered him to turn off the vehicle. Lile immediately turned his head back to the south and accelerated backward out of the driveway, causing Dilling to jump out of the way to avoid being injured. Dilling testified that while he was focused on Lile he did not see a passenger in the vehicle. Dilling did not know that Lile had kidnaped Ms. Browell and that she was slumped forward in the front passenger seat in an unconscious state.

As the vehicle accelerated backward, Wells (located on the passenger's side of the vehicle), noticed the back side of a female bent over in the passenger's seat, but he was unable to determine whether she was alive or dead. As the vehicle continued to back out of the driveway, ignoring Dilling's commands, Wells fired five shots at the left front tire.

Davidson, also located on the passenger side, saw the driver's face and recognized him as Bill Lile. Davidson also saw the hair of a female bent over in the passenger's seat, not moving. As the vehicle accelerated backwards toward the street, swerving around a pickup truck and toward Davidson, Davidson moved out of the way and fired 7 shots at the tires of the vehicle. Neither Davidson or Wells radioed that a passenger was in the vehicle. None of the bullets fired by Davidson and Wells entered the passenger or driver compartment of the vehicle.

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