Estate of Conner by Conner v. Ambrose

Decision Date23 December 1997
Docket NumberNo. 3:96 CV 0236 AS.,3:96 CV 0236 AS.
PartiesThe ESTATE OF Derrick T. CONNER, by its Co-Administrators, James CONNER and Charles Miles, in their official capacity, and James Conner and Doris Miles, in their individual capacity, Plaintiffs, v. Steven AMBROSE and Frank Owens, in their official and individual capacity, City of Elkhart, Indiana, South Bend Medical Foundation, Gerald Quinn, M.D., in his official and individual capacity, Jeanette K. Albert, in her capacity as Coroner, John Mortakis, in his individual capacity, and the City of South Bend, Indiana, Defendants.
CourtU.S. District Court — Northern District of Indiana

Douglas M. Grimes, Gary, IN, for Derrick T. Conner.

Martin W. Kus, Newby Lewis Kaminski and Jones, LaPorte, IN, Michael J. Grattan, III, Elkhart City Atty.'s Office, Elkhart, IN, Robert M. Kelso, Kightlinger and Gray, Indianapolis, IN, for Steven Ambrose, City of Elkhart, Indiana.

Michael J. Grattan, III, Elkhart City Atty.'s Office, Elkhart, IN, Robert M. Kelso, Kightlinger and Gray, Indianapolis, IN, for Frank Owens.

Edward N. Kalamaros, Patrick J. Hinkle, Edward N. Kalamaros & Associates, South Bend, IN, for South Bend Medical Foundation, M. Gerald Quinn, M.D.

Michael F. DeBoni, John D. Ulmer, Yoder Ainlay Ulmer and Buckingham, Goshen, IN, for Jeanette K. Albert.

Robert C. Rosenfeld, South Bend, IN, for John Mortakis, City of South Bend.


ALLEN SHARP, District Judge.

This cause is before the court on defendants' Albert, Quinn and South Bend Medical Foundation Motions for Summary Judgment; defendants' Ambrose, Owens and the City of Elkhart Motion for Partial Summary Judgment and defendants' Mortakis and the City of South Bend Motion to Dismiss which this court converted to a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 12(c). All issues have been fully briefed. The court heard oral arguments on September 19, 1997 and now rules on each pending motion as follows.


The present cause of action is brought under Title 42 United States Code § 1983 § 1988 and the First, Fourth, Fifth, Eight and Fourteenth Amendments to the United States Constitution. Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331, 1341, and 1343. Pendant jurisdiction is also invoked for the state causes of action.


Derrick Conner (Conner) was a twenty-two year old African-American male. Derrick is now deceased. This cause of action is brought by his estate which is administered by James Conner, the biological father and Charles Miles, the step-father and individually by Doris Miles, the biological mother (collectively, Plaintiffs).

The plaintiffs allege the illegal use of deadly force against Conner by police officers Steven Ambrose (Ambrose) and Frank Owens (Owens). Plaintiffs also allege that the City of Elkhart, Indiana (Elkhart) failed to establish proper policy and training for its police officers and that it negligently allowed Ambrose to remain on the force in spite of numerous citizen complaints. Additionally, plaintiffs allege medical negligence against Jeanette Albert (Albert), County Coroner, for her delegation of Conner's autopsy to Gerald Quinn, M.D. (Quinn). They further allege Quinn negligently performed said autopsy. Additionally, they claim South Bend Medical Foundation (SBMF) was negligent for allowing the acts of Albert and Quinn. Finally, plaintiffs claim police officer John Mortakis (Mortakis) and the City of South Bend (South Bend) were negligent in conducting a polygraph test that was administered to two witnesses after the death of Conner.

1. Claims Against Ambrose, Owen and Elkhart

Derrick Connor was shot and killed by officer Ambrose on May 18, 1995. Plaintiffs' allege that Ambrose had no probable cause to chase, stop or arrest Conner prior to the shooting as there was no outstanding warrant regarding Conner. Additionally, even if Ambrose believed probable cause existed for Conner's detention or arrest, plaintiffs claim that the shooting was unjustified and was an unreasonable use of deadly force.

At the time of the shooting, neither Ambrose nor Owens were in police uniform. Ambrose allegedly attempted to stop Conner for questioning. Conner ran and Ambrose pursued. Ambrose contends Conner had a weapon, was facing him at the time, and therefore the shooting was justified. Unfortunately, Owens did not see Ambrose fire at Conner, nor did he see Conner pull a gun as he was out of the line of sight when the incident occurred. A gun was found at the scene, however, plaintiffs contend it was a "throw-away" gun that was dropped by the police in an effort to cover up their improper use of force.

In Count One of their complaint the plaintiffs file claims against Ambrose and Owens both individually and in their official capacity for use of deadly force without justification. Additionally they charge Elkhart claiming the city failed to properly discipline and control its employees. Plaintiffs also contend the city negligently hired and retained police personnel. Plaintiffs assert that the use of deadly force against Conner was the result of the policy, practice and custom of the city to inadequately train and supervise law enforcement officers. Finally, in Count Six, plaintiffs allege that Ambrose previously stalked, discriminated against and harassed Conner.

2. Claims Against Albert, Quinn and SBMF

After the shooting, Conner was taken to the Coroner for an autopsy. Albert was the county coroner at the time. Pursuant to routine procedure, she called in the pathologist on duty. A dispute exists regarding the autopsy performed on Conner as to whether or not some bullets entered Conner from the front and some entered from the back. However, Quinn allegedly failed to properly document the autopsy findings with photographs, wound measurements and test results. Therefore, the plaintiffs claim the autopsy was flawed.

In anticipation of suit, the plaintiffs called a forensic pathologist to perform a second autopsy. According to the forensic pathologist the initial autopsy was not properly performed and some of the bullet wounds were damaged making it impossible to determine the direction of the bullet's entry. Due to the information provided by plaintiffs' pathologist, Count Two claims that defendant Albert, the Coroner, was acting under color of state law and assumed a custodial relationship over the body of Conner; that she improperly delegated the autopsy to Quinn, who was the pathologist on call at the time Conner's body came in; and that Quinn breached his duty of care by negligently performing the autopsy. Plaintiffs claim that Quinn allegedly cut out sections of the bullet wounds, misinterpreted the nature of the wounds and attempted to cover up the fact that all of the bullets that struck Conner supposedly entered through Conner's back.

In addition, Count Three holds Albert responsible for the negligent "employment" of Quinn. Quinn was a general pathologist and plaintiffs allege Albert should have called in a forensic pathologist. They further allege Albert failed to properly supervise Quinn during the autopsy. Finally, Count Four claims that SBMF breached its duty of care by assigning Quinn to perform an autopsy knowing that Quinn was unqualified.

3. Claims Against Mortakis and South Bend

During the investigation regarding Conner's death, South Bend requested officer Mortakis to conduct a polygraph examination of two supposed witnesses. Allegedly, Mortakis influenced the responses to the polygraph questions by making inappropriate comments to the witnesses and threatening them. Supposedly, Mortakis also withheld evidence that may have assisted the Grand Jury in its investigation of the murder charge against Ambrose. As a result, Count Five alleges that officer Mortakis improperly administered and improperly interpreted a polygraph test he gave to two witnesses of the Conner shooting. Plaintiffs allege that Mortakis covered up critical facts that should have been presented to the Grand Jury. Because Mortakis was acting under the color of law, plaintiffs also claim South Bend is liable for negligence and failing to supervise Mortakis.

4. Miscellaneous Claims

In Count Six, plaintiffs additionally claim that Owens covered up the fact that Conner did not possess a weapon in an effort to protect Ambrose. Furthermore, plaintiffs claim that Owens, Quinn and Mortakis obstructed justice. The plaintiffs argue that the defendants deprived Conner of his constitutional rights, were negligent in the performance of their duties, that they conspired to cover up certain facts and evidence, and that their actions caused plaintiffs great mental and emotional pain and distress. Consequently, plaintiffs request compensatory and punitive damages as well as costs and fees.


Each defendant has filed a motion for Summary Judgment with respect to the charges against it. Because there are five separate motions currently before this Court the Court will deal with the common claims and then, to the extent that the claims differ, will address the claims as to each individual defendant.


Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted "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." Fed.R.Civ.P. 56(c); Anderson v.. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir.1994); Leisen v. City of Shelbyville, 968 F.Supp. 409 (S.D.Ind.1997). A thorough discussion of Rule 56 can be found in a trilogy of cases decided in 1986 by the Supreme Court of the United States.2 See Matsushita Elec....

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