Glenn v. City of Hammond

Decision Date07 September 2021
Docket Number2:18-CV-150-TLS-JEM
PartiesROOSEVELT GLENN, SR. and DARRYL KEITH PINKINS, SR., Plaintiffs, v. CITY OF HAMMOND; Hammond Police Department Lieutenant MICHAEL SOLAN, in his individual capacity; Det. WENDY MCBRIDE, in her individual capacity; Officer MARK THARP, in his individual capacity; RAYMOND ROGALSKI, in his individual capacity; WILLIAM STEPHENS, in his individual capacity; KENNETH STUMP, in his individual capacity; LEO FINNERTY, in his individual capacity; Indiana State Police Lab Forensic Serologist DIANA PETERSON, in her individual capacity; STEVEN H. TOKARSKI, a Special Representative for the Estate of Kimberly Epperson; and SCOTT YAHNE, as Special Administrator for the Estate of Patricia Kasper, Defendants.
CourtU.S. District Court — Northern District of Indiana

This civil rights lawsuit arises out of the convictions of Plaintiffs Roosevelt Glenn, Sr. and Darryl Keith Pinkins, Sr. for their involvement in the kidnapping, robbery, and rape of M.W. by five men in 1989 and the successive state postconviction proceedings based on new DNA evidence that led the state court to vacate the conviction and dismiss the charges against Pinkins in 2016 and Glenn in 2017. The Plaintiffs allege that the Defendants violated their constitutional rights by fabricating inculpatory evidence and withholding exculpatory evidence during the investigation and trial.

Currently before the Court are (1) a Motion for Judicial Notice [ECF No. 66], filed by Defendants City of Hammond, Wendy McBride Raymond Rogalski, William Stephens, Kenneth Stump, and Mark Tharp (collectively the Hammond Defendants) and Defendant Leo Finnerty; (2) a Motion for Judgment on the Pleadings and to Dismiss for Lack of Subject Matter Jurisdiction [ECF No. 126], filed by Defendant Michael Solan (3) a Motion to Dismiss [ECF No. 129], filed by the Hammond Defendants; (4) a Motion to Dismiss [ECF No. 131], filed by Finnerty; (5) a Motion to Dismiss [ECF No. 136], filed by Defendant Diana Peterson; (6) a Joint Motion for Summary Ruling [ECF No. 138], filed by the Hammond Defendants, Finnerty, Solan, and Peterson; and (7) a Motion to Dismiss for Lack of Subject Matter Jurisdiction [ECF No. 157], filed by Defendant Scott E. Yahne as Special Administrator of the Estate of Patricia Kasper (Kasper). As set forth below, the Court dismisses certain claims, but the case otherwise proceeds against all the Defendants.


On April 18, 2018, Plaintiffs Roosevelt Glenn, Sr. and Darryl Keith Pinkins, Sr. filed a Complaint [ECF No. 1] against the Hammond Defendants (City of Hammond, McBride, Rogalski, Stephens, Stump, and Tharp) and Defendants Solan, Kasper, Finnerty, Peterson, and Kimberly Epperson. Answers were filed by the Hammond Defendants, Solan, Finnerty, and Peterson. See ECF Nos. 34, 49, 50, 63.

The Hammond Defendants and Finnerty filed a Motion for Judicial Notice [ECF No. 66], which is fully briefed. Then, several Defendants filed Motions for Judgment on the Pleadings and/or Motions to Dismiss. See ECF Nos. 70, 72, 75. The Plaintiffs filed an omnibus response [ECF No. 88], and the moving Defendants filed replies [ECF Nos. 100, 101]. Subsequently, Defendant Peterson filed a Motion for Judgment on the Pleadings [ECF No. 105].

Magistrate Judge Martin granted the Plaintiffs' request to amend the complaint to substitute the estates of deceased defendants Epperson and Kasper and denied the Defendants' request that their dispositive motions remain pending against the Amended Complaint. See Dec. 10, 2019 Order, ECF No. 123.

On December 11, 2019, the Plaintiffs filed the Amended Complaint [ECF No. 124]. Counts I through VII are brought under 42 U.S.C. § 1983. Count I alleges violations of the Plaintiffs' Fourteenth Amendment right to a fair trial when the Defendants conducted a reckless investigation, deliberately withheld exculpatory evidence, and fabricated false reports, false testimony, and other evidence. Count II is a claim of malicious prosecution, alleging that the Defendants violated the Plaintiffs' constitutional right to be free from unlawful prosecution and continued detention without probable cause by falsifying evidence, fabricating evidence, and withholding exculpatory evidence. Count III is a claim of fabrication of false evidence in violation of the Fourth and Fourteenth Amendments, alleging that the Defendants knowingly fabricated false police reports, false forensic reports, and fabricated testimony offered at trial proceedings. Count IV, V, and VI are claims of supervisory liability, failure to intervene, and conspiracy to deprive the Plaintiffs of their constitutional rights. Count VII is a Monell claim against the City of Hammond. Counts VIII through XII are Indiana state law claims of negligent supervision, respondeat superior, malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress.

In response to the Amended Complaint, Solan filed an Answer [ECF No. 125], and the Hammond Defendants, Finnerty, Solan, and Peterson refiled their Motions to Dismiss and/or for Judgment on the Pleadings. See ECF Nos. 126, 129, 131, 136. Kasper also filed a Motion to Dismiss [ECF No. 157]. The Plaintiffs did not file a response to the renewed motions, which led the Hammond Defendants, Finnerty, Solan, and Peterson to file the Joint Motion for Summary Ruling [ECF. No. 138]. Finding that the Plaintiffs' omnibus response to the original motions [ECF No. 88] is equally responsive to the refiled motions, the Court hereby denies the Joint Motion for Summary Ruling [ECF No. 138].

A. The Investigation of the Attack on M.W.

These facts relevant to the instant motions are taken from the allegations of the Amended Complaint. In the early morning of December 7, 1989, M.W.'s car was hit from behind. Am. Compl. ¶ 23. When she exited her vehicle, a group of men stole her purse and forced her into their car. Id. at ¶ 24. Thereafter, five men drove with her in the vehicle for several hours, during which time they stole her gun and jewelry and repeatedly sexually assaulted her. Id. at ¶¶ 24, 25. According to M.W., all five men ejaculated and at least some, if not all, used M.W.'s jacket to wipe off their semen. Id. at ¶ 26. The men used a pair of coveralls to hide M.W.'s eyes during the assault, and M.W. still had those coveralls when the men released her. Id. at ¶ 27.

During the initial interview by the Hammond Defendant Officers, [1] M.W. described her assailants and their car. Id. at ¶¶ 28-31. Early in the investigation, Solan determined that the coveralls came from Luria Brothers and investigated five Luria Brothers employees, which included the Plaintiffs. Id. at ¶ 53-55. All five men were arrested by Solan on January 2, 1990. Id. at ¶ 56. All five men voluntarily gave blood, saliva, and head and pubic hair samples on the date of their arrest. Id. at ¶ 57.

After the arrest, Solan and other officers continued their investigation. Id. at ¶ 58. A vehicle of a fellow suspect was examined for fingerprints. Id. Blood and hair samples from the Plaintiffs were processed by the Indiana State Police Lab. Id. at ¶¶ 60-69. Peterson, an ISP serologist, examined a hair collected from M.W.'s sweater. Id. at ¶ 64. In a February 1990 written report, Peterson falsely reported that the hair recovered was “sufficiently similar to the head hair standards from R.T. Glenn to be of common origin.” Id. at ¶ 65. Peterson's report was a fabrication as Peterson knew that the hairs did not share certain microscopic characteristics and that the comparison excluded Glenn from contributing the hair found at the scene. Id. at ¶ 67. Peterson “falsely reported to the Hammond Defendant Officers that the hairs were a match” and gave false testimony that the hair samples were a match. Id. at ¶ 67; see also id. at ¶ 68.

Semen stains on M.W.'s clothing were DNA tested. Id. at ¶ 72. In an August 1990 report, three individual DNA banding patterns were identified, one of which belonged to M.W. Id. The remaining two banding patterns did not match the Plaintiffs. Id. Solan notified M.W. that the two DNA banding patterns did not match the Plaintiffs. Id. at ¶ 74.

Solan initially asked M.W. to view a physical lineup or photographic array of the suspects, but M.W. refused because she did not believe she could identify anyone. Id. at ¶ 81. However, in January 1990, Solan took individual mugshots of the five men he had arrested, including the Plaintiffs, to M.W.'s home, setting them on the dining room table where M.W. and her husband were seated; when M.W. viewed the photographs, she made no identification. Id. at ¶ 82. Solan encouraged M.W. to make an identification and ultimately pressured and manipulated M.W. into identifying Pinkins as one of her attackers. Id. at ¶ 83. This information was withheld from the Plaintiffs. Id. At a May 1990 court proceeding, M.W. informed Solan and the prosecutor that Pinkins was the assailant who originally walked up to her vehicle. Id. at ¶ 84. Solan produced a written report of this identification but did not include the fact that he had spoken with M.W. prior to the hearing. Id. Before her January 1991 deposition, during a conversation about Pinkins, Solan showed M.W. a single eight-and-a half by fourteen-inch photograph of Pinkins. Id. at ¶ 85. M.W. identified Pinkins as an attacker at trial. Id. at ¶ 86.

During the investigation, Solan procured false statements from a fellow jail inmate of each Plaintiff, fabricating a statement from each of the informants and promising them consideration in exchange for agreeing to provide a fabricated statement. Id. at ¶¶ 87-97. Both informants gave this fabricated testimony at trial. Id. at ¶¶...

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