Hogue v. City of Fort Wayne

• Decision Date: 23 February 2009
• Docket Number: Case No. 1:07-CV-283-RBC.
• Citation: 599 F.Supp.2d 1009
• Parties: Trent A. HOGUE, Plaintiff, v. CITY OF FORT WAYNE, Officer Kevin Rarey, Menard, Inc. d/b/a Menard's, Officer Matt Harrison, Lt. Allen L. Goodman, and Majestic Security, Defendants.
• Court: U.S. District Court — Northern District of Indiana

599 F.Supp.2d 1009

Trent A. HOGUE, Plaintiff, v. CITY OF FORT WAYNE, Officer Kevin Rarey, Menard, Inc. d/b/a Menard's, Officer Matt Harrison, Lt. Allen L. Goodman, and Majestic Security, Defendants.

Case No. 1:07-CV-283-RBC.

United States District Court, N.D. Indiana, Fort Wayne Division.

February 23, 2009.

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Christopher C. Myers, Ilene M. Smith, Christopher C. Myers & Associates, Fort Wayne, IN, for Plaintiff.

Carolyn M. Trier, Trier Law Office, Diana Carol Bauer, Karl J. Veracco, Carson Boxberger LLP, Fort Wayne, IN, for Defendants.

OPINION AND ORDER

ROGER B. COSBEY, United States Magistrate Judge.

I. INTRODUCTION

On August 5, 2006, Plaintiff Trent Hogue's trip to Menard's to exchange certain plumbing parts purchased the day before culminated in his arrest for disorderly conduct and resisting law enforcement. After he was later acquitted of all charges, Hogue filed this action against Menard, Inc., d/b/a Menard's; certain of its loss prevention personnel; two Fort Wayne police officers, one of whom was also employed by Menard's as security; and the City of Fort Wayne. He advanced a host of claims against them, including excessive force under the Fourth Amendment and 42 U.S.C. § 1983, a conspiracy claim under 42 U.S.C. § 1985; and false arrest, false imprisonment, and malicious prosecution.¹

On November 10, 2008, Defendants Menard's, Allen Goodman, and Majestic Security (the "Menard's Defendants") filed a motion for summary judgment (Docket # 34), and on that same day Defendants Fort Wayne Police Officer Kevin Rarey, Fort Wayne Police Officer Matt Harrison, and the City of Fort Wayne (the "City Defendants") did the same (Docket # 37). Hogue timely responded (Docket # 43-45), and Defendants promptly replied (Docket # 50, 54). Together with their reply, the City Defendants filed a motion to strike certain portions of Hogue's affidavit. (Docket # 51, 52.) On January 26, 2009, Hogue responded to the motion to strike (Docket # 55) and, with leave of Court, filed sur-responses to Defendants' summary judgment motions (Docket # 56-59). Defendants then filed timely sur-replies to the summary judgment motions. (Docket # 62, 63.) The City Defendants, however, did not file a reply to their motion to strike.

At this point, Hogue advances these claims: (1) a § 1985 conspiracy claim against the Menard's Defendants and Officer Rarey; (2) a state law false imprisonment or false arrest claim against the Menard's Defendants and Officer Rarey arising out of Hogue's first detention; (3) a state law false imprisonment or false arrest claim against all Defendants arising out of Hogue's second detention, together with a § 1983 false imprisonment or false arrest claim against Officers Rarey and Harrison; (4) a § 1983 malicious prosecution against Officer Rarey; and (5) a § 1983 excessive force claim against Officer Rarey.

In their motion for summary judgment, the Menard's Defendants contend that there simply is no evidence to support a § 1985 conspiracy claim against them and that they are immune from the false imprisonment or false arrest claim under the Indiana Shoplifting Detention Act. Hogue disagrees, asserting that his § 1985 conspiracy claim and state false imprisonment or false arrest claims against the Menard's Defendants and Officer Rarey are indeed viable and that their assertion of immunity under the ISDA is misplaced.

The City Defendants claim that they are entitled to summary judgment because there was probable cause to arrest Hogue, the minimal force that was used during his arrest was reasonable, and Officers Rarey and Harrison are entitled to qualified immunity and immunity under the Indiana Tort Claims Act. They further contend that Hogue's malicious prosecution claim against Officer Rarey fails as a matter of law because he made no allegation that Officer Rarey acted improperly after his arrest. Hogue disputes the City Defendants' contention that the officers had probable cause to arrest him, used reasonable force, or are immune. He further argues that his § 1983 malicious prosecution claim against Officer Rarey is supportable.

For the reasons provided in this Opinion and Order, the Defendants' motion to strike and motions for summary judgment will each be GRANTED IN PART and DENIED IN PART. In order to determine which evidence will be considered in the summary judgment discussion, the Court will first address the City Defendants' motion to strike.

II. THE CITY DEFENDANTS' MOTION TO STRIKE

A. Applicable Legal Standard

Federal Rule of Civil Procedure 56 states that affidavits filed in support of summary judgment "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 the matters stated." Fed.R.Civ.P. 56(e). "An affidavit not in compliance with Rule 56 can neither lend support to, nor defeat, a summary judgment motion." Paniaguas v. Aldon Cos., No. 2:04-cv-468-PRC, 2006 WL 2568210, at *4 (N.D.Ind. Sept. 5, 2006) (citing Zayre Corp. v. S.M. & R. Co., 882 F.2d 1145, 1148-49 (7th Cir.1989); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989)).

"[W]hen considering a motion to strike portions of an affidavit in support of a motion for summary judgment, courts will only strike and disregard the improper portions of the affidavit and allow all appropriate recitations of fact to stand." Id.; see also Stromsen v. Aluma Shield Indus., Inc., No. 89-C5036, 1993 WL 34727, at *4 (N.D.Ill. Feb. 8, 1993); Toro Co. v. Krouse, Kern & Co., 644 F.Supp. 986, 989 (N.D.Ind.1986); 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2738 (3d ed. 2006). Specifically, the following statements are not properly included in an affidavit and should be disregarded: (1) conclusory allegations lacking supporting evidence, see DeLoach v. Infinity Broad., 164 F.3d 398, 402 (7th Cir. 1999); (2) legal argument, see Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir.1985); (3) self-serving statements without factual support in the record, see Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir.1999); (4) inferences or opinions not "grounded in observation or other first-hand experience," Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir.1991); and (5) mere speculation or conjecture, see Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir.1999).

B. Discussion

The City Defendants first seek to strike a portion of paragraph 7 of Hogue's affidavit in which Hogue states that "the three of them threw [him] violently onto a checkout counter and handcuffed [him]." They contend that this statement contradicts Hogue's testimony in his criminal trial in which he stated that Officer Rarey, Officer Harrison, and Goodman "took [his] arm and they put `em behind [his] back, then they put [him] on the cash register. They — not the cash register the cash aisle." (Trial Tr. 159.)

"As a general rule, the law of this circuit does not permit a party to create an issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony." Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055 (7th Cir.2000) (quoting Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir.1996)); see also Gates v. Caterpillar, Inc., 513 F.3d 680, 688 (7th Cir.2008). Here, however, Hogue's statements in his affidavit and at his criminal trial do not contradict each other. Rather, Hogue simply goes into greater detail in his affidavit about the manner in which the three men handcuffed him, which is understandable considering that the violence of Hogue's arrest is crucial to the claims advanced in this case but was not at issue in his criminal trial. Indeed, a "party may attempt to clarify or augment (but not contradict) prior . . . testimony through affidavits." Simmons v. Chicago Bd. of Educ., 289 F.3d 488, 492 (7th Cir.2002).

Moreover, at his deposition, Hogue stated that the three men "threw [him] on a checkout lane on [his] ... stomach." (Hogue Dep. 36.) Therefore, Hogue's description in his affidavit of the events surrounding his second detention is quite consistent with his prior deposition testimony. Consequently, the motion to strike is DENIED with respect to paragraph 7.

Next, the City Defendants seek to strike a portion of paragraph 9 of Hogue's affidavit in which Hogue states that his case went to trial and the jury found him not guilty of either charge. Defendants claim that this information is irrelevant, arguing that the disposition of criminal charges cannot be considered at the summary judgment stage.

Indeed, the ultimate disposition of Hogue's criminal charges may well be irrelevant in determining whether the officers had probable cause to detain and arrest Hogue, as they "were not facts within the officers' knowledge at the time of the arrest and thus [cannot] be considered ... at the summary judgment stage." Ochana v. Flores, 347 F.3d 266, 272 (7th Cir.2003). However, Hogue is also bringing a malicious prosecution claim in this action, and one of the essential elements of that claim is the termination of criminal proceedings in his favor. See Int'l Med. Group, Inc. v. Am. Arbitration Ass'n, Inc., 312 F.3d 833, 848 n. 2 (7th Cir.2002) (citing Butt v. McEvoy, 669 N.E.2d 1015, 1017 (Ind.Ct.App. 1996)). Therefore, contrary to the City Defendants' assertion, the disposition of Hogue's criminal charges is indeed relevant in this litigation, and therefore their motion to strike this information in paragraph 9 of Hogue's affidavit is DENIED.

Finally, the City Defendants seek to strike as irrelevant Hogue's statements in paragraph 13 of his affidavit that he "felt upset, racially profiled, and embarrassed"; that he thinks he was treated the way he was treated because of his race; and that "[he'd] been to other Menard's stores in the city and that's the only one that [he] saw a...