Delk v. Board of Com'rs of Delaware County
| Decision Date | 29 January 1987 |
| Docket Number | No. 2-385,2-385 |
| Citation | 503 N.E.2d 436 |
| Parties | Patricia S. DELK F/N/A Patricia S. Ritchie, Appellant (Plaintiff Below), v. BOARD OF COMMISSIONERS OF DELAWARE COUNTY, Indiana, Delaware County, Indiana, Gary Carmichael, Sheriff of Delaware County, in his Capacity as Sheriff of Delaware County, Indiana, and Individually, Unnamed Deputies of the Delaware County, Indiana Sheriff's Office, in their Official Capacity and Individually, and James A. Hollowell, Appellees (Defendants Below). A 74. |
| Court | Indiana Appellate Court |
Max Howard, Anderson, for appellant.
Albert C. Harker, H. Joseph Certain, Marion, Richard Reed, Muncie, for appellees.
Patricia Delk appeals the summary judgment granted defendants-appellees Delaware County Sheriff and unnamed deputies in their individual and official capacities, the Delaware County Commissioners in their official capacities, and Delaware County, in her action against them for false imprisonment and violation of her civil rights.
On August 13, 1982 Delk was mistakenly served with a Delaware County Court Division I Order to appear in court at 1:30 that afternoon to show cause why she should not be held in contempt. The order to show cause was directed to Pat Williams, also known as Pat Cowden, Pat Redwine, Pat Wombles and Pat Richey at the Varsity Barber Shop. Patricia Delk, whose name at the time was Ritchie, was employed at the Varsity Barber Shop. Although Delk expressed confusion and puzzlement to Deputy Sheriff Mattingly who served the order, she proceeded to the county court facility. There, the bailiff realized the mistake and assured Delk she could return to work without worry.
When Pat Williams did not appear in county court at 1:30, a body attachment was issued for her arrest. The aliases shown on the body attachment were Patricia Corder, Patricia Redwine and Patricia Wombles. Although the Varsity Barber Shop was not a listed address and Pat Richey was not a listed alias, Deputy Mattingly again went to the Barber Shop, accompanied by two other deputies, and arrested and handcuffed Delk over her protestations. Delk was taken to the Delaware County Jail and then to the county court where, for the second time, she was recognized as not being Pat Williams and was ordered released.
The issue on appeal, restated, is whether summary judgment was proper. 1
We affirm in part and reverse in part.
In reviewing the grant of a motion for summary judgment, the Court of Appeals applies the same standard applicable in the trial court. Jones v. City of Logansport (1982), Ind.App., 436 N.E.2d 1138, reh. denied 439 N.E.2d 666. Summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Indiana Rule of Trial Procedure 56(C); Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723. A fact is material if it helps prove or disprove an essential element of the plaintiff's cause of action. See Fort Wayne Patrolman's Benevolent Ass'n., Inc. v. Fort Wayne (1980), Ind.App., 408 N.E.2d 1295, 1297, reh. denied 411 N.E.2d 630, citing Stuteville v. Downing (1979) 181 Ind.App. 197, 391 N.E.2d 629. Finally, because neither the Delaware County Sheriff nor his unnamed deputies filed an answer brief, Delk need only show prima facie error to secure a reversal of the summary judgment in favor of those parties.
PROPRIETY OF SUMMARY JUDGMENT IN FAVOR OF THE DELAWARE
False imprisonment consists of an unlawful restraint on one's freedom of movement against his will. Grooms v. Fervida (1979), 182 Ind.App. 664, 396 N.E.2d 405. In proving restraint on freedom of movement, incarceration need not be shown. Rather, it is sufficient to show a person's freedom of movement was in some manner restricted against his will. For example, in Brickman v. Robertson Bros. Dept. Store, Inc. (1964), 136 Ind.App. 467, 202 N.E.2d 583, this court held the plaintiff made a prima facie showing of unlawful restraint by evidence the department store detective "grabbed the plaintiff's arm above the elbow and stopped his forward progress and ordered and demanded in a stern and firm voice carrying authority that the plaintiff accompany [him] back to the store...." 136 Ind.App. at 471, 202 N.E.2d at 586. Here, the undisputed evidence is Delk was seized, handcuffed, and taken against her will to the Delaware County Jail. This constitutes a prima facie showing of restraint of Delk's freedom of movement.
The next consideration is whether the restraint of movement was unlawful. Where an arrest is pursuant to a body attachment or warrant, and the person seized is not the person named in the attachment or warrant, the document necessarily does not provide lawful authority for the person's seizure. Thus, if, as here, there is not other authority for the person's seizure, the restraint is unlawful.
However, the affirmative defense of good faith shields the arresting officer from liability for an unlawful seizure based upon a mistaken identification of the person named in the attachment or warrant if the officer has exercised reasonable diligence and care in ascertaining identity before serving the warrant. Barnes v. Wilson (1983), Ind.App., 450 N.E.2d 1030, 39 A.L.R. 4th 699 (); Mildon v. Bybee (1962), 13 Utah 2d 400, 375 P.2d 458 (); 32 Am.Jur.2d False Imprisonment Sec. 85 (1982). The existence of the defense, i.e., whether the arresting officer used due diligence and reasonably believed the person arrested was the person intended by the attachment or warrant, is normally a question of fact. Barnes v. Wilson; 32 Am.Jur.2d False Imprisonment Sec. 85 (1982). 2
In the present case, there is a genuine issue of material fact concerning the defense of good faith and, accordingly, the trial court erred in granting summary judgment to the sheriff and his deputies based upon that defense. Granted, the sheriff's deputy who received the body attachment stated, in his affidavit, the court reporter who delivered the attachment ordered him "to go back to the Varsity Barber Shop and get the lady because she didn't show up for the 1:30 p.m. citation hearing." Record at 231. However, this statement of good faith was rebutted by the court reporter who, in her deposition, stated she did not have any conversation concerning the attachment with the deputy to whom she delivered the document. In addition, the unrebutted evidence is neither Delk's name, which at the time was Ritchie, nor her place of employment was on the attachment. Finally, the arresting officer did not make any effort to verify the propriety of his restraint of Delk even in the face of her protestations of error.
This evidence creates a genuine issue of fact material to the issue of the deputies' exercise of reasonable diligence and care in seizing Delk. Consequently, summary judgment was inappropriate as to the unnamed deputy sheriffs, in their individual and official capacities, whose conduct was in question. Further, because the deputies are under the control of the Sheriff of Delaware County, Ind.Code Ann. Sec. 36-8-10-4(a) (Burns Supp.1986), the sheriff is responsible for the torts of his deputies. Hence, the summary judgment was inappropriate as to that official.
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