Elliott v. SHERIFF OF RUSH COUNTY, IND.

• Decision Date: 22 February 2010
• Docket Number: No. 1:08-cv-0480-RLY-JMS.,1:08-cv-0480-RLY-JMS.
• Citation: 686 F. Supp.2d 840
• Parties: Larz A. ELLIOTT, Plaintiff, v. SHERIFF OF RUSH COUNTY, INDIANA, Terry L. Drake, 70-40, Rcsd, Defendants.
• Court: U.S. District Court — Southern District of Indiana

686 F.Supp.2d 840

Larz A. ELLIOTT, Plaintiff, v. SHERIFF OF RUSH COUNTY, INDIANA, Terry L. Drake, 70-40, Rcsd, Defendants.

No. 1:08-cv-0480-RLY-JMS.

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

February 22, 2010.

Stephen G. Gray, Attorney at Law, Todd Eric Ess, Todd Ess, Indianapolis, IN, for Plaintiff.

Kirk A. Horn, Mandel Horn McGrath & Reynolds, P.C., Carmel, IN, for Defendants.

ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT and PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

RICHARD L. YOUNG, Chief Judge.

What began as a typical Terry stop, initiated by Deputy Terry L. Drake ("Deputy Drake") for speeding, quickly turned into much more, resulting in Plaintiff's ultimate arrest for, inter alia, possession of marijuana, possession of paraphernalia, and operating a vehicle while intoxicated. Plaintiff brings this civil action against Deputy Drake and the Sheriff of Rush County (the "Sheriff") (collectively "Defendants") under 42 U.S.C. § 1983 ("Section 1983") for violations of his Fourth Amendment rights. Plaintiff also brings state law claims against the Sheriff for false arrest, false imprisonment, and battery. Both parties move for summary judgment. For the reasons set forth below, the court GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment, and DENIES Plaintiff's Cross-Motion for Partial Summary Judgment.

I. Expert Report of Dr. Smith

Before addressing the facts of this case, the court must first determine whether the expert testimony of Dr. Steven R. Smith ("Dr. Smith"), submitted by Plaintiff, is admissible. Dr. Smith's testimony is submitted by Plaintiff principally to discredit Deputy Drake's purported observations of Plaintiff's condition at the time of the initial traffic stop as having red/glassy eyes and slightly slurred speech. Dr. Smith is a board certified medical doctor in occupational and environmental medicine, and has held the position as Director of Occupational Medicine for Community Hospital for twenty-four years. (Plaintiff's Ex. 12, Testimony of Dr. Steven R. Smith from the Hearing on the Plaintiff's Motion to Suppress ("Dr. Smith Suppression Test.") at 6, 9). Defendants move to strike Dr. Smith's testimony on three grounds: (1) he was not properly disclosed pursuant to the parties' Amended Case Management Plan, (2) his qualifications to give an expert opinion have not been established; and (3) his opinions are speculative.

A. Disclosure Under the Parties' CMP

The parties' Amended Case Management Plan ("CMP") was approved by the court on June 30, 2008. (Docket # 25). Paragraph III.F. of the CMP provides, "If Plaintiff uses expert witness testimony at the summary judgment stage, such disclosures must be made no later than 60 days prior to the summary judgment deadline." Defendants' Motion for Summary Judgment was filed on August 21, 2009; thus, Plaintiff's expert disclosures were due on or before June 21, 2009.

Plaintiff represents that on August 26, 2008, Plaintiff served Defendants his Rule 26 disclosures listing Dr. Smith as a witness, and provided both Dr. Smith's curriculum vitae ("CV") and his expert opinions outlined in his testimony from the hearing on Plaintiff's Motion to Suppress. Plaintiff's notice of service is reflected on the docket. (Docket # 30). In addition, on September 15, 2008, Dr. Smith was listed as a witness on Plaintiff's list of witnesses and exhibits electronically filed and served upon Defendants' counsel. (Docket # 31). Given these filings, the court finds that Plaintiff put Defendants on notice of Dr. Smith's testimony for purposes of this summary judgment motion, and therefore complied with the CMP.

B. Dr. Smith's Qualifications

Defendants submit that Dr. Smith's qualifications and ability to testify have not been properly established. They complain that they were only provided with a small portion of Dr. Smith's testimony from the hearing on Plaintiff's motion to suppress. The docket reflects, however, that Plaintiff provided Defendants with Dr. Smith's CV, which establishes his qualifications (as discussed above), and with the entire transcript of the criminal suppression hearing, which includes Dr. Smith's testimony and opinions. (See Docket ## 30, 31). Defendants' counsel confirmed receipt of the transcript in a letter to Plaintiff's counsel dated December 16, 2008. (See Plaintiff's Ex. 4 to Plaintiff's Reply).

In the suppression hearing, Dr. Smith testified that he has held the position of Director of Occupational Medicine at Community Hospital for 24 years, has practiced medicine continuously since 1975, and that his specialty requires that he perform assessments of individuals and determine impairments related to alcohol and drug use. (Dr. Smith Suppression Test. at 6, 8, 9). Accordingly, the court finds that Dr. Smith is qualified to render an opinion in this case.

C. Dr. Smith's Opinions

Defendants contend that Dr. Smith's opinions are "speculative and outrageous." (Defendants' Reply at 3). Dr. Smith testified that: (1) the medical records indicate that Plaintiff did not present with red/glassy eyes or slurred speech; (2) in his opinion, the toxicology reports and hospital records could not explain why Plaintiff would have exhibited horizontal gaze nystagmus ("HGN"); and (3) in his opinion, the results of Plaintiff's blood test indicate that Plaintiff had not used marijuana for at least twelve hours, and possibly up to three days, prior to the stop. Dr. Smith also testified about the risks inherent in a forced catheterization. Dr. Smith's opinions are based upon his knowledge and experience as a practicing occupational medical doctor, and his opinions are relevant to the issues presented. Accordingly, Defendants' motion to strike this testimony is DENIED.

II. Summary Judgment Standard

Summary judgment is proper where "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." FED.R.CIV.P. 56(c). A genuine issue of material fact exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Some alleged factual dispute that does not rise to a genuine issue of material fact will not alone defeat a summary judgment motion. Id. at 247-48, 106 S.Ct. 2505.

In deciding whether a genuine issue of material fact exists, the court views the evidence and draws all inferences in favor of the nonmoving party. Miranda v. Wis. Power & Light Co., 91 F.3d 1011, 1014 (7th Cir.1996). However, when a summary judgment motion is made and supported by evidence as provided in Rule 56(c), the nonmoving party may not rest on mere allegations or denials in its pleadings but "must set forth specific facts showing that there is a genuine issue for trial." FED. R.CIV.P. 56(e). As this case is before the court on cross motions for summary judgment with respect to all of Plaintiff's claims, the court evaluates each movant's motion under the requirements of Rule 56 stated above. WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE § 2720 at 23-24 (2d ed. 1990) ("The court must rule on each party's motion on an individual basis, determining, in each case, whether a judgment may be entered in accordance with the Rule 56 standard.").

III. Factual Background

A. The Traffic Stop

1. On April 26, 2006, at 10:35 p.m., Deputy Drake observed Plaintiff operating his vehicle on U.S. 52 in Rushville, Indiana, in excess of the posted speed limit. Plaintiff was traveling 61 miles per hour in a 40 mile-per-hour zone. (Defendants' Ex. A, Affidavit of Terry Drake ("Drake Aff.") ¶ 4; Defendants' Ex. Y, Deposition of Terry Drake ("Drake Dep.") at 4-6).

2. Riding as a passenger was Plaintiff's then-girlfriend, Kerrie McMahan Elliott ("Elliott"), who has since married the Plaintiff. (Defendants' Ex. X, Deposition of Kerrie McMahan Elliott ("Elliott Dep.") at 4).

3. Deputy Drake performed a traffic stop. Both Plaintiff and Elliott had valid driver's licenses. (Plaintiff's Ex. 7, Testimony of Terry Drake from the Hearing on the Plaintiff's Motion to Suppress ("Drake Suppression Test.") at 70).

4. Deputy Drake did not smell an odor of alcohol or marijuana. (Drake Dep. at 28). Deputy Drake alleges, however, that he observed that Plaintiff had mildly slurred speech, red/glassy eyes, and appeared nervous. (Drake Aff. ¶ 11).

5. Plaintiff did not produce a registration for the vehicle, but did produce an undated title for the vehicle endorsed by the previous owner to Plaintiff. The license plate returned to an "Earnest Whitehead" ("Whitehead"), who was also the person who endorsed the title to Plaintiff. The vehicle was not reported stolen and was properly registered to Whitehead. (Drake Aff. ¶ 8; Drake Dep. at 13; Defendants' Ex. W, Deposition of Larz Elliott ("Plaintiff Dep.") at 57-58; Drake Suppression Test. at 67).

6. Deputy Drake questioned Plaintiff about whether he had insurance on the vehicle. Plaintiff could not produce proof of insurance on the vehicle. (Drake Aff. ¶ 10). Plaintiff stated that he believed that Whitehead's insurance policy was still in force on the vehicle, since the title and registration had not been transferred, and Whitehead intended to maintain insurance until he was fully paid for the vehicle. Plaintiff testified that he believed he was an insured driver. (Plaintiff's Ex. 8, Testimony of Larz Elliott from the Hearing on the Plaintiff's Motion to Suppress ("Plaintiff Suppression Test.") at 139). Deputy Drake testified that he had no reason to believe Plaintiff was not insured. (Drake Dep. at 15).

7. Deputy Drake continued to question Plaintiff about where he and Elliott were coming from. Plaintiff explained that they were visiting a friend, Brandon Hoskins ("H...