Kirkwood v. DeLONG, Cause No. 1:08-CV-266-TS.

• Decision Date: 01 February 2010
• Docket Number: Cause No. 1:08-CV-266-TS.
• Citation: 683 F. Supp.2d 823
• Parties: Anthony D. KIRKWOOD, Plaintiff, v. Fort Wayne Police Department Officers Michael DeLONG, Darren Kenmore, Matthew Crawford, Edward Black, Thomas Christen, Boyce Ballinger, Sgt. Randy Hosford, and K-9 Officer Robert Hatfield, Defendants.
• Court: U.S. District Court — Northern District of Indiana

683 F.Supp.2d 823

Anthony D. KIRKWOOD, Plaintiff, v. Fort Wayne Police Department Officers Michael DeLONG, Darren Kenmore, Matthew Crawford, Edward Black, Thomas Christen, Boyce Ballinger, Sgt. Randy Hosford, and K-9 Officer Robert Hatfield, Defendants.

Cause No. 1:08-CV-266-TS.

United States District Court, N.D. Indiana.

February 1, 2010.

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

Diana Carol Bauer, Kelly J. Pautler, Robert T. Keen, Jr., Carson & Boxberger, LLP, Aaron J. Butler, John O. Feighner, Haller & Colvin, PC, Fort Wayne, IN, for Defendants.

OPINION and ORDER

THERESA L. SPRINGMANN, District Judge.

On February 5, 2009, the Plaintiff, Anthony D. Kirkwood, filed his Amended Complaint against the Defendants, alleging that the Defendant police officers violated his Constitutional rights when they arrested him at his house on September 8, 2007. On October 21, 2009, Defendants Edward Black, Thomas Christen, Boyce Ballinger, Randy Hosford, Michael DeLong, Darren Kenmore, and Matthew Crawford (the Fort Wayne Defendants) filed their Motion for Summary Judgment DE 27. Defendant Robert Hatfield filed his Motion for Summary Judgment on the same day DE 29. On December 30, the Plaintiff filed a Response in Opposition DE 35 to both Motions. On January 7, 2010, the Fort Wayne Defendants and Defendant Hatfield filed separate Replies DE 37, 40, and the Motions are now ripe for adjudication. Also before the court is a Motion to Strike Portions of the Affidavit of Anthony Kirkwood DE 38, filed on January 7, 2010.

SUMMARY JUDGMENT STANDARD

The Federal Rules of Civil Procedure provide that motions for summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when "`there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" AA Sales & Assocs. v. Coni-Seal, Inc., 550 F.3d 605, 608-09 (7th Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Under Rule 56(e)(2), a party opposing a properly made and supported motion for summary judgment "may not rely merely on allegations or denials in its own pleading; rather its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." If appropriate, summary judgment should be entered against a party who fails to so respond. Fed.R.Civ.P. 56(e)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (holding that a court should enter summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"). A court's role on summary judgment is not to weigh the evidence, make credibility determinations, or decide which inferences to draw from the facts, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Washington v. Haupert, 481 F.3d 543, 550 (7th Cir.2007); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003). Thus, a court in ruling on a summary judgment motion construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. AA Sales & Assocs., 550 F.3d at 609. However, the court is not required to draw every conceivable inference from the record—only reasonable ones. Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 886 (7th Cir.1989).

BACKGROUND

Construing all facts in a light most favorable to the Plaintiff, the Court finds the following facts. On September 8, 2007, the Plaintiff lived in Fort Wayne, Indiana with his girlfriend, Breanna Sauers, and his two sons. That evening, while about to take his evening shower, the Plaintiff received a phone call from his friend Terry Rhodes, who said that he was nearby and would be stopping by the Plaintiff's residence for a visit. The Plaintiff told Rhodes that he was about to shower and would be unable to answer his door, but that Rhodes was welcome to sit and wait in Sauers' car, which was parked, unlocked, in the driveway. Rhodes arrived and did so. After showering, the Plaintiff dressed, went to his garage, and opened the garage door partway so that Rhodes could climb underneath and enter the residence.

This seemingly harmless series of events appeared to be more sinister to Marilyn Montgomery, who lived across the road from the Plaintiff. During the events in question, Montgomery was outside sweeping her driveway and sidewalk. She noticed Rhodes approaching the Plaintiff's house talking loudly on his cell phone. Montgomery, who had never before seen Rhodes, observed him stop in front of the Plaintiff's garage and get into Sauers' car in the driveway. When she saw Rhodes enter the Plaintiff's garage, she feared that the house was being robbed and called 911 to report a possible burglary in progress.

When the Plaintiff and Rhodes entered the residence through the attached garage, they heard sirens and police radios. As the Plaintiff walked past a bedroom window he heard a male voice yelling, opened the window, and was confronted with a uniformed police officer holding a shotgun. The officer identified himself as police and instructed the Plaintiff to come out of the house. The Plaintiff returned to the open garage, where he encountered several police officers and got on his knees. Once on his knees, Officer DeLong physically took the Plaintiff the rest of the way to the ground, "clobbering" him, applied an arm bar, kneed the Plaintiff in the back, and handcuffed him. The Plaintiff was then put in the back of a police car. Between five and twenty seconds elapsed between DeLong first making physical contact with the Plaintiff and the end of the altercation. Several other officers were standing about ten feet away throughout the arrest.

After the Plaintiff was secured, officers entered the Plaintiff's residence. The Plaintiff was not able to observe what went on inside his residence, but on returning home he noted that several of his wrapped birthday presents had been opened, drawers had been opened, piles of clothes had been rummaged through, and couch cushions had been moved.

MOTION TO STRIKE

The Fort Wayne Defendants have moved, pursuant to Federal Rule of Civil Procedure 56(e), to strike the entirety of paragraph eight of the Plaintiff's affidavit. Paragraph eight reads:

When I complied with the officer's orders to walk out of the garage, hold my hands in the air, and get down on my knees—all of which I did—there were a number of officers, perhaps four or five, that were all pointing guns at me and very close to me, certainly within ten feet or so, that they could have stopped Officer DeLong from "rushing me," tackling me (as I was already kneeling down on the ground anyway), clobbering me, jabbing a knee into my back, and otherwise using force against me that was not necessary. But no officer intervened or helped in any way.

(Kirkwood Aff. ¶ 8.) The Plaintiff contends that because the paragraph is not based on personal knowledge and contains a legal conclusion that the other officers "could have stopped Officer DeLong," it should be stricken.

A court may only consider only those parts of an affidavit that satisfy the requirements of Rule 56(e), Adusumilli v. City of Chi., 164 F.3d 353, 359 (7th Cir. 1998), which requires that affidavits "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)(1).

Thus, one requirement is that affidavit testimony must concern matters within the affiant's personal knowledge. Fed. R.Civ.P. 56(e)(1); see also Fed.R.Evid. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."). "Although personal knowledge may include reasonable inferences, those inferences must be `grounded in observation or other first-hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.'" Payne v. Pauley, 337 F.3d 767, 772 (7th Cir.2003) (quoting Visser v. Packer Eng'g Assoc., 924 F.2d 655, 659 (7th Cir.1991) (en banc)). Additionally, Rule 56(e) requires specificity because, absent evidence supported by specific facts, conclusory allegations by a party opposing summary judgment cannot defeat a motion for summary judgment. Payne, 337 F.3d at 773 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

The Court finds that all of paragraph eight is properly before the Court, excepting the phrase, "they could have stopped Officer DeLong." There are no legal conclusions in the affiant stating that he complied with police orders, put his hands in the air, and went down on his knees; that there were four or five police officers standing less than ten feet away from him; that Officer DeLong used physical force against him; or that no other officer intervened in the altercation. All of these statements are also made from the affiant's firsthand knowledge.

However, the Plaintiff's conclusion that the other officers "could have stopped Officer DeLong" could be construed as a legal conclusion. To the extent that the Plaintiff purports to testify to whether the officer had a realistic opportunity to intervene to prevent the harm from occurring¹ his statement will not be considered by the Court. See, e.g., Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir.1985) (...