Herschel v. MPD, 1:17-cv-02828-JMS-MJD

• Decision Date: 17 October 2018
• Docket Number: No. 1:17-cv-02828-JMS-MJD,1:17-cv-02828-JMS-MJD
• Citation: Herschel v. Watts, No. 1:17-cv-02828-JMS-MJD (S.D. Ind. Oct 17, 2018)
• Parties: CHARLES HERSCHEL, Plaintiff, v. AARON WATTS Officer MPD, ERIC SMALL Officer, MPD, Defendants.
• Court: U.S. District Court — Southern District of Indiana

CHARLES HERSCHEL, Plaintiff, v. AARON WATTS Officer MPD, ERIC SMALL Officer, MPD, Defendants.

No. 1:17-cv-02828-JMS-MJD

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

October 17, 2018

ORDER

This case arises from Plaintiff Charles Herschel's arrest in Muncie, Indiana in 2015. Mr. Herschel alleges that Muncie Police Officers Aaron Watts and Eric Small ("Defendants") subjected him to false arrest and imprisonment and deprived him of his rights under the Fourth Amendment to the United States Constitution by applying excessive force to him. Defendants have moved for summary judgment on all of Mr. Herschel's claims and have also moved to strike an exhibit. For the reasons described herein, the Court GRANTS Defendants' Motion to Strike, and GRANTS IN PART and DENIES IN PART Defendants' Motion for Summary Judgment.

I.

LEGAL STANDARD

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome-determinative. Montgomery v. American Airlines Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896 (7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), andthe Seventh Circuit Court of Appeals has repeatedly assured the district courts that they are not required to "scour every inch of the record" for evidence that is potentially relevant to the summary judgment motion before them. Grant v. Trustees of Indiana University, 870 F.3d 562, 573-74 (7th Cir. 2017). Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

A significant twist on the normal standard of review is at play here: when the record evidence includes a videotape of the relevant events, the Court should not adopt the non-movant's version of the facts when that version contradicts what is depicted on the videotape. Scott v. Harris, 550 U.S. 372, 379-80 (2007) (where plaintiff's account of high-speed chase contradicted videotape of chase, and there were no allegations that videotape was "doctored or altered in any way, nor any contention that what it depicts differs from what actually happened," lower court "should have viewed the facts in the light depicted by the videotape"). Accordingly, the Court relies primarily on videos taken from the body cameras of the police present at the scene of Mr. Herschel's arrest.¹

II.

EVIDENTIARY OBJECTION

Prior to considering Defendants' Motion for Summary Judgment, the Court first considers an evidentiary objection. This is necessary because the resolution of the evidentiary objectionimpacts the scope of information that the Court can consider in analyzing the substantive arguments in the Motion for Summary Judgment.

In their reply brief, Defendants include a Motion to Strike a memorandum by Captain Steve Cox of the Muncie Police Department, entitled, "Complaint/Disciplinary Action - Officer Aaron Watts # 144," (the "Cox Memorandum"). [Filing No. 65 at 7-10.] Defendants argue that the Cox Memorandum is "inadmissible under Federal Rules of Evidence 401 and 407" because it is irrelevant and because it shows subsequent remedial measures. [Filing No. 66 at 2.] Mr. Herschel did not file a sur-reply addressing the admissibility of the Cox Memorandum.

Defendants' second argument is easily dispensed with for reasons recently explained by the U.S District Court for the Eastern District of Wisconsin, which held that a discharge recommendation for a police officer was "not itself a remedial measure; the remedial measure was [an officer's] termination." J.M. v. City of Milwaukee, 249 F. Supp. 3d 920, 931 (E.D. Wis. 2017) (quoting Aranda v. City of McMinnville, 942 F.Supp.2d 1096 (D. Or. 2013) ("By it terms, this rule is limited to measures that would have made the harm less likely to occur; it does not extend to post-incident investigations into what did occur. The reason [for finding Rule 407 inapplicable] is that such reports or inspections are not themselves remedial measures, and do not themselves even reflect decisions to take or implement such measures. Although such reports or inspections might represent the first or most preliminary steps that might eventually lead to decisions to make or implement changes, they are not themselves excluded under Rule 407.") (quotations and internal citations omitted)). Therefore, there is no basis to strike the Cox Memorandum under Rule 407.

However, Defendants' argument that the Cox Memorandum is irrelevant under Rule 401 finds support in Thompson v. City of Chicago, in which the Seventh Circuit affirmed the exclusion of a police department's general orders concerning the appropriate use of force because it wasirrelevant to a Fourth Amendment analysis. 472 F.3d 444 (7th Cir. 2006). Specifically, the Seventh Circuit found that "[t]he fact that excessive force is not capable of precise definition necessarily means that, while the . . . General Order may give police administration a framework whereby commanders may evaluate officer conduct and job performance, it sheds no light on what may or may not be considered 'objectively reasonable' under the Fourth Amendment. . . ." Id. at 455. Therefore, the Court found that whether the officer's conduct conformed with the internal general orders concerning the use of force "was irrelevant to the jury's determination of whether his actions . . . were 'objectively reasonable' under the Fourth Amendment." Id. at 455; see also Scott v. Suelter, 2013 WL 2181128, at *3 (C.D. Ill. May 20, 2013) (holding that the plaintiff could not introduce evidence of any police department general order, rule, or policy or evidence of any violation thereof to show that plaintiff's constitutional rights were violated under the Fourth Amendment). The Cox Memorandum specifically cites to and measures Officer Watts' actions against Muncie Police Department policies, [Filing No. 65 at 9], and in doing so, the Cox Memorandum evaluates officer conduct and job performance. Accordingly, for the reasons set forth in Thompson, the Cox Memorandum is irrelevant to a Fourth Amendment analysis. Therefore, Defendants' Motion to Strike the Cox Memorandum is GRANTED pursuant to Federal Rule of Evidence 401, and the Cox Memorandum, [Filing No. 65 at 7-10], is STRICKEN.

III.

BACKGROUND

The following factual background is set forth pursuant to the standards detailed in Part I. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to "the party against whom the motion under consideration is made." Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

On July 21, 2015 Plaintiff Charles Herschel's estranged wife Rhonda Herschel informed him that she had not been making house payments with money he provided, as they had previously agreed. [Filing No. 61-1 at 2.] That day, he was at the house in question doing landscaping with his girlfriend when he went into the garage to take a break. [Filing No. 61-1 at 5.] After Ms. Herschel informed Mr. Herschel that she needed money, they had a verbal "confrontation in the kitchen," [Filing No. 61-1 at 7], during which he threw up his hands and told her that he was done trying to help her and that he would "come and get the rest of [his] stuff," including his racecar. [Filing No. 61-1 at 6.] As the verbal confrontation continued, Mr. Herschel walked through the house and out the front door. He was "pretty fumed" and informed his estranged wife that she no longer needed...