Howard v. Ealing, Cause No. 1:11–CV–104.

• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
• Writing for the Court: ROGER B. COSBEY
• Citation: 876 F.Supp.2d 1056
• Decision Date: 10 July 2012
• Docket Number: Cause No. 1:11–CV–104.
• Parties: Jenoire HOWARD, Sr., Plaintiff, v. Officers Phillip EALING, Clay Taylor, Shane Heath (officers named in their individual capacities) and the City of Fort Wayne, Defendants.

876 F.Supp.2d 1056

Jenoire HOWARD, Sr., Plaintiff,
v.
Officers Phillip EALING, Clay Taylor, Shane Heath (officers named in their individual capacities) and the City of Fort Wayne, Defendants.

Cause No. 1:11–CV–104.

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

July 10, 2012.

[876 F.Supp.2d 1061]

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

Adrienne C. Romary, Carson Boxberger LLP, Fort Wayne, IN, for Defendants.

OPINION AND ORDER
ROGER B. COSBEY, United States Magistrate Judge.
I. INTRODUCTION

This lawsuit, brought under 42 U.S.C. § 1983, stems from the arrest of Jenoire Howard, Sr., by Fort Wayne police officers Phillip Ealing, Clay Taylor, and Shane Heath while Howard was selling clothing out of his van on August 13, 2009. Howard claims he was falsely arrested and the victim of an illegal search and seizure, but those allegations are not before the Court at present and will have to wait for trial. At issue now, however, is Howard's contention that the arresting officers used excessive force during that arrest in violation of the Fourth Amendment to the United States Constitution and that their employer, the City of Fort Wayne, is liable, under the doctrine of respondeat superior, for their battery.¹

The importance of these issues arises from the Defendants' Motion for Partial Summary Judgment (Docket # 41) where they maintain that Howard's claims fail because the evidence shows they did not use excessive force as a matter of law and that they are entitled to qualified immunity in any event. Howard, however, alleges that a jury must determine if excessive force was applied given that the officers pointed their guns at him, threw or shoved him against his vehicle, threw him to the ground, kneed him in the back, and kept him in too-tight handcuffs.

The Defendants dispute some of Howard's facts and have filed a Motion to Strike (Docket # 48) part of paragraphs 10 and 11 of his affidavit as contrary to what he said at his deposition. Because the Court mostly disagrees with the Defendants' characterization, the Motion to Strike, as discussed in section II of this Opinion and Order, will be DENIED IN PART and GRANTED IN PART.

And, on this record, the Motion for Partial Summary Judgment motion will be GRANTED IN PART and DENIED IN PART.

II. MOTION TO STRIKE

The Defendants contend that portions of paragraphs 10 and 11 of Howard's affidavit

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should be stricken as contradictory to his deposition testimony. In particular, in paragraph 10, Howard contends that one of the officers pulled him out of the van, threw or shoved him against the vehicle, searched him, and then threw him on the ground. (Howard Aff. ¶ 10.) In paragraph 11, Howard maintains that once he was on the ground, one of the officers “kneed [him] in the back, handcuffed [him], and put [him] in his squad car.” (Howard Aff. ¶ 11.)

The Defendants contend that these affidavit statements should be stricken because Howard made no mention of them in his deposition; more to the point, in his deposition he described a more benign event, that one of the officers “put [him] against the car and cuffed [him]” and then the officer “laid [him] down on the ground.” (Howard Dep. 36–37.) And the Defendants also note that Howard, although given plenty of opportunities at his deposition to complain about his arrest (Howard Dep. 38–40), never mentioned being kneed in the back, although he did volunteer that being “put ... in the grass” exacerbated his hay fever. (Howard Dep. 37–39.)

In response, Howard maintains that these allegations were actually contained in his unsworn Tort Claim Notice attached to his Second Amended Complaint, and that besides, Defendants' counsel never asked Howard how he was “laid” on the ground, leaving it open for Howard to explain that ambiguous term in his affidavit.²

If Howard's affidavit statements directly contradict his deposition testimony, then they are not properly before the Court. See Beckel v. Wal—Mart Assocs., Inc., 301 F.3d 621, 623 (7th Cir.2002); Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir.2001) (“[A] party may not attempt to survive a motion for summary judgment by manufacturing a factual dispute through the submission of an affidavit that contradicts prior deposition testimony.”); Piscione v. Ernst & Young, LLP, 171 F.3d 527, 532–33 (7th Cir.1999) (“It is a well-settled rule ... that a plaintiff cannot create an issue of material fact merely by manufacturing a conflict in his own testimony by submitting an affidavit that contradicts an earlier deposition.”).

The Court agrees that there is no direct contradiction between Howard's ambiguous or incomplete deposition testimony and his affidavit, at least concerning his being put or thrown against the van, and subsequently being thrown on the ground (both actions requiring some degree of force). Del Signore v. Asphalt Drum Mixers, 182 F.Supp.2d 730, 733 (N.D.Ind.2002) (citing Aviles v. Cornell Forge Co., 183 F.3d 598, 602–03 (7th Cir.1999) (ambiguities in deposition must be resolved in favor of non-moving party on summary judgment)). To the extent that Howard's affidavit is seen as deviating from what he said in his deposition, this creates a credibility issue for the jury. Patton v. MFS/Sun Life Fin. Distribs., Inc., 480 F.3d 478, 488 (7th Cir.2007). Consequently, since these statements in paragraph 10 of Howard's affidavit concerning his being put or thrown against the van and then thrown on the ground do not directly contradict his deposition testimony, they will not be stricken. Defendants' motion is therefore DENIED as to these statements.

Regarding Howard's statement in paragraph 11 of his affidavit that he was kneed in the back while being handcuffed,

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Howard does not mention this allegation anywhere in his deposition. Therefore, unlike the statements in paragraph 10, there were no ambiguous statements for Howard to explain or clarify. As such, the statements in paragraph 11 that Howard was kneed in the back are stricken as contradictory to his deposition testimony, where he was given several opportunities to mention this incident, but never did so. (Howard Dep. 38:9–12, 39:7–10, 40:10–12). Defendants' motion to strike these statements is thus GRANTED.

III. FACTUAL BACKGROUND³

Howard is a licensed street peddler who sells clothing out of a van. (Howard Aff. ¶ 2.) On August 13, 2009, Howard and his partner, Akeem Carswell, were having a sale on East Suttenfield in Fort Wayne, Indiana (Howard Aff. ¶¶ 2–3), an area considered to be one of high crime with heavy drug trafficking (Taylor Aff. ¶ 4).

On the evening of August 13, 2009, City of Fort Wayne Dispatch was contacted by an anonymous caller who described a suspicious van with the logo “Double A Trailers” that had been parked for several hours at 445 E. Suttenfield. (Taylor Aff. ¶ 3.) The caller speculated that the van might be involved in narcotics trafficking. (Taylor Aff. ¶ 3.)

Officers Taylor and Heath were dispatched and, when they arrived, saw two men outside the van and two men—later determined to be Howard and Carswell, the passenger—in it. (Taylor Aff. ¶¶ 3, 5.) Heath and Taylor advanced on the van with Taylor approaching the driver's side and Heath approaching the passenger's side. (Howard Ex. 2 at 1.)

At about the time Officer Ealing arrived and began to check Howard's customers for outstanding warrants (Howard Ex. 2 at 1), one of the officers asked to search the van, but Howard refused (Howard Aff. ¶ 5). Howard did, however, provide Taylor his driver's license registration, tax identification number, and peddler's license. (Howard Aff. ¶ 5.) Howard stayed in the van and waited for the return of his license. (Howard Aff. ¶ 5.) By now a crowd of onlookers had formed. (Taylor Aff. ¶ 7.)

At this point, it appears that both Howard and Carswell were pulled out of the van and frisked. (Howard Aff. ¶ 6; Taylor Aff. ¶ 6.) When nothing was found on Howard, he got back into the driver's seat and closed the door, but then protested when he noticed that Taylor was on the passenger's side searching the van's cargo area. (Howard Aff. ¶¶ 6–7.)

Inside the van, Taylor found a loaded gun in a black bag and immediately alerted the other officers by yelling, “Gun, gun, gun,” and unholstered his own handgun (Taylor Aff. ¶¶ 10–11), pointing it at Howard (Howard Aff. ¶ 10). ⁴ The crowd outside the van was ordered to the ground. (Howard Aff. ¶ 10.) Ealing, now at the driver's side door, also drew his weapon and pointed it at Howard.⁵ ( See Howard

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Aff. ¶ 10.) Howard complied with orders to put his hands on the steering wheel. (Howard Aff. ¶ 10.)

Ealing removed Howard from the van, and with some force—Howard describes it as a throw or shove—such that he was put against the van and searched again. (Howard Aff. ¶ 10.) Ealing then threw Howard on the ground. (Howard Aff. ¶ 10; Howard Dep. 37.) At some point, Taylor handcuffed Howard behind his back ⁶ with a single set of cuffs,⁷ which Howard contends was painful and tight due to his size (at the time, he was 5 foot 7 inches tall and weighed 290 pounds). (Howard Aff. ¶ 12; Howard Dep. 45.)

Howard was later escorted to a squad car and ultimately charged with Possession of a Handgun Without a License. (Taylor Aff. ¶¶ 13–14.) While waiting in the squad car, before even leaving the scene, Howard told Taylor three or four times that the cuffs were too tight and hurt and asked Taylor to loosen them, allegedly stating, “[T]hey are piercing my wrists,” and “My finger tips are feeling numb.” (Howard Aff. ¶ 12; Howard Dep. 39.) Despite Howard's complaints, Taylor did not loosen or adjust the handcuffs. (Howard Aff. ¶ 12; Howard Dep. 39.) A second officer—presumably Heath—was also present in the squad car as Howard made these complaints.⁸ ( See Howard Aff. ¶ 12.) Neither officer loosened the handcuffs, and Howard remained in the tight cuffs for about thirty minutes...