Garber v. Franciscan All.

• Docket Number: 2:20-CV-119-TLS-JPK
• Decision Date: 23 August 2023
• Parties: BENJAMIN GARBER, Plaintiff, v. FRANCISCAN ALLIANCE, INC., ANTHONY PINARSKI, CHRISTOPHER WITT, AMERICAN HERITAGE PROTECTIVE SERVICES, INC., and JOHN DOES 1-10, Defendants.
• Court: U.S. District Court — Northern District of Indiana

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BENJAMIN GARBER, Plaintiff,
v.
FRANCISCAN ALLIANCE, INC., ANTHONY PINARSKI, CHRISTOPHER WITT, AMERICAN HERITAGE PROTECTIVE SERVICES, INC., and JOHN DOES 1-10, Defendants.

No. 2:20-CV-119-TLS-JPK

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

August 23, 2023

OPINION AND ORDER

THERESA L. SPRINGMANN JUDGE.

The Plaintiff Benjamin Garber sues Franciscan Alliance, Inc. (“Franciscan”), Anthony Pinarski, Christopher Witt, American Heritage Protective Services, Inc. (“AHPS”), and ten unknown Defendants. The Plaintiff instigated suit in state court after an incident at Franciscan's Dyer Hospital campus in which AHPS employee and off-duty police officer Defendant Pinarski arrested the Plaintiff. ECF No. 6. The Defendants removed the case to federal court on March 25, 2020. ECF No. 1. The Complaint states the following claims: false arrest (Count I); malicious prosecution (Count II); defamation per se (Count III); negligent infliction of emotional distress (Count IV); a violation of 42 U.S.C. § 1983 (Count V); intentional infliction of emotional distress (Count VI); battery (Count VII); wrongful interference with a business relationship (Count VIII); respondeat superior liability (Count IX); and negligence (Count X). Am. Compl. ¶¶ 44-91, ECF No. 7.

This matter is before the Court on Defendant Franciscan Alliance Inc. d/b/a Franciscan Health Dyer's Motion for Summary Judgment [ECF No. 50], filed July 1, 2022, and Defendants

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Anthony Pinarski, Christopher Witt, and American Heritage Protective Services, Inc.'s Motion for Summary Judgment [ECF No. 54], filed July 5, 2022. Both motions are fully briefed and ripe for ruling. Because the Plaintiff has presented evidence to create a genuine dispute of material fact as to several claims, including whether Defendant Pinarski arrested the Plaintiff with probable cause, the Court denies in part and grants in part Defendants Anthony Pinarski, Christopher Witt, and American Heritage Protective Services, Inc.'s Motion for Summary Judgment [ECF No. 54]. Because the Plaintiff failed to present any genuine issues of material fact as to all but one of the remaining claims against Defendant Franciscan, the Court grants the Defendant Franciscan Alliance Inc. d/b/a Franciscan Health Dyer's Motion for Summary Judgment in part and denies in part [ECF No. 50].

JURISDICTION

“‘[S]ubject-matter jurisdiction is the first issue in any case,' so [the Court] begin[s] with [its] ‘independent duty to ensure' that this case is properly in federal court.” Cothron v. White Castle Sys., Inc., 20 F.4th 1156, 1160 (7th Cir. 2021), (quoting Miller v. Sw. Airlines Co., 926 F.3d 898, 902 (7th Cir. 2019) and Dexia Credit Loc. v. Rogan, 602 F.3d 879, 883 (7th Cir. 2010)). In removing the Plaintiff's cause of action from state to federal court, the Defendants represented to the Court that jurisdiction was proper because the case presented a federal question under 28 U.S.C. § 1331. Notice of Removal, ¶¶ 1-3, ECF No. 1. In describing his single federal claim, the Plaintiff's Complaint provides as follows:

64. At all times, Defendant Pinarski was acting under the color of state law

65. Defendants American Heritage, Franciscan and Witt acted under the color of state law as a willful participant in joint action with the State or its agents. Specifically Defendant Franciscan and American heritage hired an instrument of the State's power. Defendant Pinarski was hired to serve Defendant Franciscan's and Defendant American Heritage's goal of providing security and deterring theft

66. Defendants violated-at a minimum-the following constitutional rights of Plaintiff: (1) his right to liberty and specifically personal safety, privacy, and

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freedom from captivity; and, (2) his right to be secure in his person, papers, and effects against unreasonable searches and seizures under the Fourth Amendment.

67. Defendants violated Plaintiff's established constitutional rights although there was no reasonable evidence or probable cause for doing so.

68. Defendants wrongfully detained Plaintiff, depriving him of his freedom, freedom of movement, and subjecting him to an unlawful and unreasonable search and seizure.

Am. Compl. ¶¶ 64-68.

“Generally, a complaint alleging a federal claim that is insubstantial and frivolous does not trigger federal-question jurisdiction.” Belanger v. Wisconsin, No. 18-C-00415, 2018 WL 4053394, at *3 n.1 (E.D. Wis. Aug. 24, 2018). The parties have not disputed that the Court has subject-matter jurisdiction, but both the allegations in the Amended Complaint and the Notice of Removal are bare enough to warrant the Court's independent review. Miksis v. Evanston Twp. High Sch. Dist. # 202, 235 F.Supp.3d 960, 977-78 (N.D. Ill. 2017) (“Although the parties do not contest the Court's exercise of subject matter jurisdiction over Plaintiffs' claims, ‘neither the parties nor their lawyers may stipulate to jurisdiction or waive arguments that the court lacks jurisdiction.'” (quoting United States v. Tittjung, 235 F.3d 330, 335 (7th Cir. 2000))); Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (stating courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party” (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999))). “The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993) (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979)).

In this case, the Notice of Removal alleges federal question jurisdiction arises from the Plaintiff's claim under 42 U.S.C. § 1983. This Court must assess whether the Plaintiff “asserts a

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‘colorable' § 1983 claim against the defendants.” Stewart v. Waukegan Hous. Auth., No. 13 C 08444, 2015 WL 13900423, at *2 (N.D. Ill. July 13, 2015). A plaintiff raises a colorable claim under § 1983 only where the complaint alleges a defendant acting under color of state law violated a right arising under the Constitution or federal law. Id. (citing West v. Atkins, 487 U.S. 42, 48 (1988) and Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822 (7th Cir. 2009)). A private entity or individual does not act under the color of state law unless endowed with the powers of a state. See DiDonato v. Panatera, 24 F.4th 1156, 1159-60 (7th Cir. 2022) (“[I]t is ‘firmly established' that a § 1983 defendant acts ‘under color of state law when he abuses the position given to him by the State.'” (quoting West, 487 U.S. at 49-50)).

The Plaintiff does not bring suit against any state entity or municipality, such as the City of Dyer or the Dyer Police Department. The Court's jurisdiction consequently hinges on whether Defendant Pinarski performed an action which could be attributable to a governmental entity.^[1]

A state action can sometimes lie where an off-duty state official engages in behavior of the same nature as their official state duties. DiDonato, 24 F.4th at 1160 (“Whether an individual is acting under color of state law ‘turn[s] largely on the nature of the specific acts' the official performed, ‘rather than on merely whether he was actively assigned at the moment' to the performance of his official duties” (quoting Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir. 1995))); see also Pickrel, 45 F.3d at 1118 (holding an off-duty police officer dressed in his police uniform, complete with a badge and a gun, working as a security guard in a restaurant could have been acting under color of state law sufficient to find federal question jurisdiction

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when he arrested the plaintiff for refusing to leave); cf. Latuszkin v. City of Chicago, 250 F.3d 502, 503 (7th Cir. 2001) (finding that an off-duty, plain clothes officer who became intoxicated at a party in the police department's parking lot, drove his personal vehicle under the influence, and killed the plaintiff's spouse in an ensuing crash was not acting under color of state law); cf. Woods v. Clay, No. 01 C 6618, 2005 WL 43239, at *22 (N.D. Ill. Jan. 10, 2005) (“[T]he court finds that the Fifty Yard Line was acting under color of law by virtue of its employment of the police officers as part of its security force.”); Crenshaw, 2009 WL 377985, at *12 (reviewing Indiana caselaw in deciding whether an off-duty police officer employed by a private entity as a security guard was acting as a private individual or as a police officer when making an arrest and, consequently, whether the officer's actions created tort liability for the private entity).

Reviewing the record, the Court makes the following observations for the purposes of ascertaining jurisdiction: Defendant Pinarski was a long-time Hammond police officer who moonlighted as a security guard for AHPS. After approaching the Plaintiff, Defendant Pinarski identified himself as a police officer and began questioning the Plaintiff as part of an investigation of the Plaintiff's suspected theft. Defendant Pinarski, while wearing his Hammond Police badge and carrying his service weapon, arrested the Plaintiff. The Court therefore finds the Plaintiff's § 1983 claim colorable for purposes of establishing federal question jurisdiction, and it proceeds to address the merits of the case.^[2] Stewart, 2015 WL 13900423, at *2.^[3]

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BRIEFING DEFICIENCIES

Northern District of Indiana Local Rule 56-1(a) states,

Moving Party's Obligations. A party moving for summary judgment must separately file:

(1) a motion;

(2) a supporting brief;

(3) a Statement of Material Facts with numbered paragraphs for each material fact the moving party contends is undisputed which includes:

(A) a short statement of each fact; and

(B) a

...