Holdeman v. Consolidated Rail Corp., S 84-65.

• Decision Date: 08 December 1986
• Docket Number: No. S 84-65.,S 84-65.
• Citation: 649 F. Supp. 1188
• Parties: Ira William HOLDEMAN and Lois Marie Holdeman, Plaintiffs, v. CONSOLIDATED RAIL CORPORATION, Howard R. Elliott, Jr., Stephen R. Oelslager, John W. Helpin, W.M. Ittel, Finley Excavating Company, Thomas Edward Sears, Joseph Galbreath, and Dan Finley Galbreath, Defendants.
• Court: U.S. District Court — Northern District of Indiana

649 F. Supp. 1188

Ira William HOLDEMAN and Lois Marie Holdeman, Plaintiffs, v. CONSOLIDATED RAIL CORPORATION, Howard R. Elliott, Jr., Stephen R. Oelslager, John W. Helpin, W.M. Ittel, Finley Excavating Company, Thomas Edward Sears, Joseph Galbreath, and Dan Finley Galbreath, Defendants.

No. S 84-65.

United States District Court, N.D. Indiana, South Bend Division.

December 8, 1986.

David T. Stutsman, Douglas A. Mulvaney, Elkhart, Ind., Lawrence J. Clifford, South Bend, Ind., for plaintiffs.

Joseph V. Simeri, Mark D. Boveri, South Bend, Ind., Charles W. McNagny, Fort Wayne, Ind., for defendants.

Thomas Edward Sears, pro se.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

Plaintiffs' Amended Complaint for Damages filed December 6, 1984, asserted claims under 42 U.S.C. § 1983 and § 1985 together with various pendent state claims under Indiana law. Plaintiffs withdrew their claims under 42 U.S.C. § 1985 on October 9, 1985. Defendants, Finley Excavating Company, Joseph Galbreath and Dan Finley Galbreath, filed a motion for summary judgment with respect to the claims asserted against them by plaintiffs under 42 U.S.C. § 1983. Defendants, Consolidated Rail Corporation (Conrail), Howard R. Elliot, Jr., Stephen R. Oelslager, John W. Helpin and W.M. Ittel have filed a motion for summary judgment on all the claims asserted by plaintiffs against these defendants and the Finley defendants have joined in said motion. The parties have all briefed the issues and oral argument has been heard on the motions on several occasions. Discovery has been concluded and this court has carefully reviewed all the depositions filed in this case¹ as well as the pleadings, answers to interrogatories, admissions and affidavits. At a final pretrial conference held in this case on October 31, 1986, the parties presented arguments on these motions. At that time, Plaintiffs basically conceded that they were not asserting claims under 42 U.S.C. § 1983 against Conrail or Finley Excavating Company but only against the other named defendants.

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment must be entered if the pleadings, depositions, answers to interrogatories, admissions and affidavits on file show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.Proc. 56(c). The party seeking summary judgment has the burden of establishing the lack of a genuine issue of material fact. See, e.g., Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Backes v. Valspar Corp., 783 F.2d 77 (7th Cir.1986). A material fact is one which might affect the outcome of the case under the governing law, Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see Terket v. Lund, 623 F.2d 29, 31 (7th Cir.1980). So factual disputes that are irrelevant or immaterial do not provide a basis for denying a summary judgment motion. Id. Further, the dispute about a material fact must be "genuine", that is, the evidence must be such that a reasonable jury could return a verdict for the nonmoving party. Id. The court must view the record and the reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See, e.g., Box v. A & P Tea Co., 772 F.2d 1372, 1375 (7th Cir.1985); Korf v. Ball State University, 726 F.2d 1222 (7th Cir. 1984). However, at the summary judgment stage, it is not the court's function to weigh the evidence and determine the truth of the matter. Rather, the court must determine whether there is a genuine issue for trial which requires the court to determine whether there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 106 S.Ct. at 2511. Thus, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. (citations omitted).

Plaintiff Ira William Holdeman's claims under 42 U.S.C. § 1983 against all the defendants in this case are primarily premised on allegations of wrongful and false accusations, illegal and wrongful search, and illegal and wrongful arrest and imprisonment. The status of the defendants vary, however, with respect to these claims and therefore requires different legal standards be applied to determine their respective liability under § 1983. There is no dispute that four of the named individual defendants, Howard R. Elliott, Jr., Stephen R. Oelslager, John W. Helpin and W.M. Ittel, were acting under color of state law with respect to the activities they engaged in that gave rise to this lawsuit. The other named individual defendants, Thomas Edward Sears, Joseph Galbreath and Dan Finley Galbreath, however, were private citizens and thus are not subject to liability under § 1983 unless they were acting in concert with the state or its officials to achieve a deprivation of another's civil rights. With this distinction in mind, the court will now turn to a discussion of the material facts that are undisputed in this case.

II.

On the night of February 2, 1982, a very cold, windy night with snow on the ground, Thomas Edward Sears, an employee of Finley Excavating Company (Finley) was plowing snow at the Conrail yards in Elkhart, Indiana. Finley had a contract with Conrail for snow removal at the Elkhart Conrail yards and also leased some land from Conrail on which to store its equipment. This was a fenced area referred to as the Finley compound. Outside the compound, and across the road from the compound, Finley had a fuel tank containing diesel fuel that was used by Finley for its equipment. About 10:30 p.m. to 10:40 p.m., Mr. Sears went to the Finley fuel tank to refuel his front loader. When he arrived there, he observed a silver-gray Chevrolet LUV pickup truck with orange stripes down the sides and with a distinctive white cap on the top parked in the space where he had to park the front end loader he was driving to fill the tank. Mr. Sears observed a white male with a full beard, about 5' 8" to 5' 10" tall, hastily leave the cab of the truck, pull the hose from the Finley fuel tank out of the back of the pickup and drive off at a high rate of speed in an easterly direction and then turn north. Because Mr. Sears was low on fuel and the front loader could not go very fast, Mr. Sears radioed the other Finley units, told them what he observed and to be on the lookout for a truck that fit that description.

Joseph A. Galbreath, a Conrail conductor and a brother of Dan Finley Galbreath who owned Finley, heard the radio call of Mr. Sears where he was working at Industrial Plastics Corporation on Mishawaka Road. When Joe got the call, he thought the person driving the truck might try to get out of the Conrail yards the back way so he drove over to the Conrail yards from where he was working which took about four minutes. Joe was on his way to the Finley tank when he saw a truck that fit the description given by Mr. Sears at the Train & Engine (T & E) Building located on the Conrail yards. Joe Galbreath did not see anyone in or around the truck or around the T & E building. He got out of his truck and checked the hood of the Chevy LUV truck. It was hot. He then looked in the back window of the cap on the truck and saw plywood with fresh stains on it and smelled diesel fuel. He did not try to open the truck. Mr. Joe Galbreath then returned to his truck, called Mr. Sears at the Finley fuel tank and told him he had found a truck that fit the description. Joe Galbreath went to the Finley tank, picked up Mr. Sears and took him back to the T & E building. Mr. Sears identified the truck as the one he had seen at the Finley tank earlier so Joe Galbreath called the trainmaster at the hump tower on the Conrail radio he had in his truck. Joe told the trainmaster that they had found a truck that fit the description of one seen taking fuel from Finley tank earlier and asked the trainmaster to send the Conrail police to the T & E building. Joe Galbreath and Mr. Sears waited for the Conrail police in Mr. Galbreath's truck and made no further examination of the Chevy LUV truck.

Two Conrail police officers, Howard R. Elliott, Jr. and Stephen R. Oelslager, who were on duty at the Elkhart Conrail yards, received a call at the police office from the trainmaster about 11:00 p.m. on February 2, 1982. The trainmaster told them that there were two Finley people at the T & E building with a truck they believed had been involved in a fuel theft about 20 to 25 minutes earlier that evening at the Finley fuel tank and that they requested that the police go to the T & E building. Officers Elliott and Oelslager went to the T & E building. When they arrived at the T & E building Officer Oelslager, who was the senior acting officer, talked to Mr. Sears who relayed what had occurred that evening. Mr. Sears told him that he was driving a front end loader in the Conrail yards that night and had returned to the Finley tank to refuel where he observed a silvergray LUV pickup truck with orange stripes down the sides with a white distinctive cap on top that was parked in the space he had to pull the front end loader into to get fuel. Mr. Sears also told Officer Oelslager that he observed a white male with a full beard, 5' 8" to 5' 10" tall hastily leave the cab of the truck, pull the Finley hose from the rear of his pickup truck and drive off at a fast rate of speed in an easterly direction and that he then radioed the other Finley units about the incident. Mr. Sears then gave Officer Oelslager a cap for a fuel tank that he said he had recovered from the nozzle of the hose at the Finley tank. Officer Oelslager asked Mr. Sears if the vehicle found at the T & E building was the one he saw earlier at the Finley tank and Mr. Sears answered affirmatively.

Officer Oelslager then proceeded to inspect the vehicle to obtain a license plate number. He chipped away a...