Fuson v. City of India
| Decision Date | 31 March 2016 |
| Docket Number | 1:14-cv-00817-RLY-DML |
| Parties | JAMES B. FUSON, Plaintiff, v. CITY OF INDIANAPOLIS, acting by and through its Metropolitan Police Department, RONALD BURGESS, SGT. MICHAEL CRODDY, and OFFICER C. BUTLER, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Plaintiff, James B. Fuson, filed this action against Defendants, the City of Indianapolis, acting by and through its Metropolitan Police Department, Detective Ronald Burgess, Sergeant Michael Croddy, and Sergeant Charles Butler, for claims arising out of the events leading to his arrest in November 2012 for invasion of privacy. Plaintiff has alleged violations of the Fourth Amendment to the U.S. Constitution, made actionable via 42 U.S.C. § 1983, and Indiana tort law. This matter now comes before the court on Defendants' Motion for Summary Judgment and Plaintiff's Motion for Leave to Correct Brief. For the reasons set forth below, the court GRANTS IN PART Defendants' motion and DENIES Plaintiff's motion.
The court is required to enter summary judgment when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[S]ummary judgment is 'not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.'" Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)). The court construes the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Hammarquist v. United Cont'l Holdings, Inc., 809 F.3d 946, 949 (7th Cir. 2016).
Plaintiff and Katrina Culhane have been in a relationship for approximately eight years, and they have a child, "A.F." (Filing No. 54-1, Deposition ("Dep.") of James Fuson 7:13-8:18; Filing No. 54-2, 2015 Dep. of Katrina Culhane 27:23-25). Culhane filed a petition for an order of protection in Johnson County, Indiana on October 2, 2012. (Filing No. 44-5, Petition for an Order of Protection). At the hearing on Culhane's petition, the Honorable Richard L. Tandy issued an order for protection that prohibited Plaintiff from, inter alia, harassing and annoying Culhane, (Filing No. 44-4, Transcript of Protective Order Hearing 2:13-14; Filing No. 44-3, Protective Order), and granted Culhane temporary physical custody of A.F. (Transcript of Protective Order Hearing 9:12-13). Plaintiff told Judge Tandy that he was worried about his daughter's safetywhile in Culhane's care. (Id. 9:17-19). Judge Tandy instructed Plaintiff that if he had any concerns about the welfare of his daughter, he should "call Protective Services." (Id. 9:20-23).
On October 3, 2012, the day after the protective order was issued, Plaintiff called Indiana's Child Protective Services ("CPS") and raised concerns about his daughter. (Filing No. 45-6, Plaintiff's Cellphone Records A14:588; Plaintiff Dep. 21:18-23:10, 64:22-65:7). CPS informed him it would take "a few days to a week to get out to check on [his claims], and if [he] . . . had an immediate concern, the police would go out and check immediately." (Plaintiff Dep. 15:3-11; Filing No. 1, Complaint ¶ 16). CPS suggested that Plaintiff call for a welfare check. (Id.).
On October 3, 2012 at 8:10 p.m., Plaintiff placed his first call requesting a welfare check at 6254 Wilshire Drive, where Culhane was living with A.F. (Plaintiff Dep. 96:25-97:7; Filing No. 45-3, Affidavit ("Aff.") of William Ross ¶ 5; Filing No. 45-4, Marion County Sheriff's Office Audio Records Log; Filing No. 45-5, Audio from Plaintiff's Calls to Police Dispatch, Tracks 1-2; Cellphone Records A14:603). During that call, he informed the dispatcher that Culhane's protective order prevented him from checking on the welfare of his child. (Filing No. 45-7, Audio Transcripts of Calls to Police Dispatch, Investigation ("Inv.") 1 at 3-4; Plaintiff's Call Audio, Track 2). He also said that he was concerned because Culhane "drinks a lot" and does not take care of their daughter. (Audio Transcripts, Inv. 1 at 3; Plaintiff's Call Audio, Track 2). The dispatcher stated,"I'm going to call you back after the officers go there and I'll let you know what happened . . . ." (Audio Transcripts, Inv. 1 at 4; Plaintiff's Call Audio, Track 2).
On October 3, 2012, Indianapolis Metropolitan Police Department ("IMPD") officers performed a welfare check at 6254 Wilshire Drive. (Ross Aff. ¶¶ 5-8). The officers found that A.F. was happy and healthy, the house was clean, and that Culhane appeared to be sober. (Id. ¶ 8).
No one called Plaintiff to inform him of the results of this welfare check. Consequently, Plaintiff called Marion County Dispatch at 11:07 p.m. on October 3, 2012 to check the status of the welfare check. (Audio Records Log; Audio Transcripts, Inv. 2 at 2-3; Plaintiff's Call Audio, Tracks 3-4; Cellphone Records A14:613). During that call, Plaintiff implied that he was expecting to receive a call back. (Audio Transcripts, Inv. 2 at 2; Plaintiff's Call Audio, Track 4). The dispatcher responded, (Id.). The dispatcher later stated, "Apparently everything checked out okay sir from what I can see." (Audio Transcripts, Inv. 2 at 3; Plaintiff's Call Audio, Track 4). Plaintiff asked for more information, but the dispatcher said, "We don't go into details." (Id.). Plaintiff responded that "they must have found her okay," and the dispatcher agreed. (Id.).
Plaintiff requested a second welfare check at 6254 Wilshire Drive on October 4, 2012 at 8:44 p.m. (Audio Records Log; Audio Transcripts, Inv. 3 at 2; Plaintiff's Call Audio, Tracks 5-6; Cellphone Records A15:638). During that call, he informed the dispatcher that he was requesting the welfare check because his daughter was "in hermother's care and she's in danger . . . because her mother doesn't keep a good eye on her, and doesn't wash her at all." (Audio Transcripts, Inv. 3 at 3; Plaintiff's Call Audio, Track 6). Plaintiff specifically requested that the police examine A.F. for bruises. (Audio Transcripts, Inv. 3 at 4; Plaintiff's Call Audio, Track 6). Plaintiff asked if someone would call him back after the officers completed the welfare check and the dispatcher replied, "Yeah they can if not you can call us back." (Audio Transcripts, Inv. 3 at 3; Plaintiff's Call Audio, Track 6).
On October 4, 2012, officers were dispatched to 6254 Wilshire Drive where they performed a second welfare check. (Ross Aff. ¶¶ 9-11). There were no signs of alcohol or child abuse. (Id. ¶ 11). During this welfare check, Culhane expressed frustration and told Officer Ross that she had a protective order against Plaintiff. (Id. ¶ 12). She did not file an official harassment report though. (Id. ¶ 13). After leaving the residence, Officer Ross told Sgt. Croddy he believed Plaintiff was using law enforcement to circumvent a valid protective order. (Id. ¶ 14).
At 12:34 a.m. on October 6, 2012, Culhane called Marion County Dispatch to report that Plaintiff was harassing her. (Filing No. 46-1, Audio from Culhane's Call to Police Dispatch, Tracks 1-2). During her call, Culhane explained that she had a protective order against Plaintiff and police had come out to her house the "last couple nights to do a welfare check, and then [that day] . . . CPS [came] to the house." (Id. at Track 2).
At 7:42 p.m. on October 6, 2012, Plaintiff called Marion County Dispatch to request a third welfare check at 6254 Wilshire Drive. (Audio Records Log; Audio Transcripts, Inv. 4 at 2; Plaintiff's Call Audio, Tracks 7-8; Cellphone Records A16:702). Plaintiff did not ask for the results of the second welfare check. (Plaintiff Dep. 116:11-117:9). He informed the dispatcher that he wanted the welfare check to be performed because he was concerned that his daughter may not have warm clothes, her mother neglects her, and her mother's family has a history of domestic violence. (Audio Transcripts, Inv. 4 at 2; Plaintiff's Call Audio, Track 8). He also informed the dispatcher that Culhane's protective order prevented him from personally checking on the welfare of his child. (Id.).
Officer Ross was dispatched for a third time to 6254 Wilshire Drive to perform a welfare check on October 6, 2012. (Ross Aff. ¶ 15). Officer Ross observed no signs of child abuse. (Id. ¶ 17). During this welfare check, Culhane was visibly upset, and she told Officer Ross that she felt she was being harassed. (Id. ¶ 18). Officer Ross relayed Culhane's concerns to Sgt. Croddy. (Id. ¶ 20).
Plaintiff called to check on the status of his third requested welfare check at 1:13 a.m. on October 7, 2012. (Audio Records Log; Audio Transcripts, Inv. 5 at 2; Plaintiff's Call Audio, Tracks 9-10; Cellphone Records A16:710). Plaintiff was informed that "an officer went out there and they made an information report." (Audio Transcripts, Inv. 5 at 3; Plaintiff's Call Audio, Track 10). Plaintiff asked, "So did they check on her and she's okay?" (Id.). The dispatcher stated that she did not know the results of the welfarecheck, but that Plaintiff could call back between 2:00-10:00 p.m. and speak with the officer that was dispatched to the home. (Audio Transcripts, Inv. 5 at 3-4; Plaintiff's Call Audio, Track 10).
On October 9, 2012, Culhane filed a letter with the Johnson Superior Court requesting that Plaintiff be...
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