Lewis v. Mccracken

• Decision Date: 21 March 2011
• Docket Number: No. 4:09–cv–76–SEB–WGH.,4:09–cv–76–SEB–WGH.
• Citation: 782 F.Supp.2d 702
• Parties: John LEWIS, Plaintiff,v.Thomas McCRACKEN, Jim Bennett, and French Lick Resort Casino, Defendants.
• Court: U.S. District Court — Southern District of Indiana

782 F.Supp.2d 702

John LEWIS, Plaintiff,

v.Thomas McCRACKEN, Jim Bennett, and French Lick Resort Casino, Defendants.

No. 4:09–cv–76–SEB–WGH.

United States District Court,S.D. Indiana,New Albany Division.

March 21, 2011.

Dale William Arnett, Attorney at Law, Winchester, IN, for Plaintiff.Douglas Alan Hoffman, Carson Boxberger, Bloomington, IN, Geoffrey G. Slaughter, Peter Jon Prettyman, Taft Stettinius & Hollister LLP, Indianapolis, IN, for Defendants.

ENTRY ON VARIOUS MOTIONS

SARAH EVANS BARKER, District Judge.

Introduction

This matter is before the Court on the Motion for Summary Judgment filed by defendants, J. Michael Bennett and French Lick Resorts & Casino, LLC, on May 4, 2010, (Docket Nos. 38–39); defendant Thomas McCracken's Joinder in Motion for Summary Judgment filed May 4, 2010, (Docket No. 40); and Plaintiff John Lewis' Motion for Partial Summary Judgment filed May 4, 2010, (Docket Nos. 41–42, 47). Also before the Court are defendant Thomas McCracken's Motion to Strike the Second Affidavit of John Lewis, filed June 18, 2010, (Docket No. 54), and defendant French Lick Resort Casino's Motion for Entry of Default Judgment on Resort's Trespass Claim filed January 7, 2011, ¹ (Docket No. 62).

Factual Background

The evidence viewed in a light most favorable to the non-moving parties establishes as follows:

Plaintiff John Lewis (“Lewis”) is the pastor of Old Paths Baptist Church, an “unregistered” Baptist church. (Deposition of John Lewis (“Lewis Dep.”) at 13–14, 169). Old Paths Baptist Church is located in Campbellsburg, Washington County, Indiana. (Lewis Dep. at 14). Lewis periodically leads members of his church and others in public demonstrations against what they believe to be sinful activity. (Lewis Dep. at 186–187).

On June 5, 2007, Lewis led a group of demonstrators who targeted the French Lick Resort Casino (“Resort”) for its involvement in “gambling, sodomy, abortion, weak-kneed Baptists and other various and sundry sins.” (Second Affidavit of John Lewis (“Second Lewis Aff.”) ¶ 2).² The protestors based their actions and their views on their interpretation(s) of the Bible. (Affidavit of John Lewis (“Lewis Aff.”) ¶ 14). Lewis and his associates staged their demonstration on a sidewalk located at the entrance to the Casino, more specifically, at the intersection of State Road 56, State Road 145, and the entrance driveway into the Resort in French Lick, Indiana (“the Intersection”). (Complaint at. 2; Lewis Dep. at 70–71; Brief in Support of Motion for Summary Judgment at Exs. 1, 4.1) (State Road 145 terminates at the entrance to the Resort. The driveway/roadway into the Resort intersects with State Road 56 in a manner that could be deemed a continuation of State Road 145). A diagram of the Intersection depicting the details of the subject location is attached to this Order.³

The demonstration commenced on the sidewalk located at the southwest corner of the Intersection. (Lewis Dep. at 70–71; Brief in Support of Motion for Summary Judgment at Exs. 1, 4.1). At the time of the demonstration, each corner of the Intersection included an area of sidewalk (Brief in Support of Motion for Summary Judgment at Exs. 1, 4.1) as well as traffic signals and crosswalks. ( Id.).

The southwest corner of the Intersection where Lewis et al. were demonstrating was owned by French Lick Real Estate Holdings, LLC (the “Holding Company”). (Affidavit of Christopher Leininger (“Leininger Aff.”) ¶ 4). The Holding Company is an affiliated company with the Resort, both being wholly owned by Blue Sky Resorts, LLC. (Leininger Aff. ¶ 3). The Sidewalk and portions of the adjacent land fell within the planned public right of way of State Road 56, but, at the time of the demonstration, the Holding Company had not yet transferred title to that parcel to the Town of French Lick.⁴ (Leininger Aff. ¶ 5). The land owned by the Holding Company contained concrete right-of way markers located on the Resort property, and the Sidewalk where Lewis was staging his protest lay between the right-of-way markers and State Road 56. (Second Lewis Aff. ¶ 11; Brief in Support of Motion for Summary Judgment at Ex. 4.1). Lewis maintains that the State Road 56 right-of-way predated the development of the Resort by many years and that in the past he personally had walked along the northern shoulder of State Road 56 in the area of the Resort prior to the construction of the Resort. (Second Lewis Aff. ¶¶ 5–6). After the Resort was built, he and other pedestrians continued to walk from time to time on the shoulder and grass along State Road 56 in front of the Resort. ( Id. ¶ 7).

Image 1 (6.82" X 5.03") Available for Offline Print

At the time of the demonstration, Defendant Jim Bennett (“Bennett”) was employed by Resort as its Director of Security. (Complaint at 1). Also at the time of the demonstration, Defendant McCracken was Chief of Police with the French Lick Police Department. ( Id. at 2). During the demonstration, McCracken and Bennett informed Lewis that they believed he was impermissibly on the Resort's property and requested that he leave the Resort's property or face arrest for trespass. In that regard, they suggested that he could continue his demonstration on the opposite side of the street ( i.e., the southeast side of State Road 56). (Lewis Dep. at 54). Lewis informed McCracken that he believed he was conducting his demonstration and exercising his First Amendment rights on a traditional public forum and that, in his view, the sidewalk was the best location for conveying his message. In addition, Lewis refused to leave unless threatened with arrest. (Lewis Aff. ¶ 17). McCracken informed Lewis that the Resort held title to the sidewalk; Lewis responded with quotes from Supreme Court decisions regarding demonstrations on sidewalks, reiterating his view that the sidewalk—indeed, this sidewalk—was a “quintessential public forum.” ( Id. ¶ 18–19). Chief McCracken retreated to confer with Resort officials, seeking instructions as to what he should do next. ( Id. ¶ 20). Shortly thereafter, McCracken returned with Bennett to the scene of the demonstration where Bennett again instructed Lewis to leave. (Second Lewis Aff. ¶ 26).

Lewis agreed to leave the Sidewalk and to continue the demonstration on the southeast side of State Road 56, on the sidewalk across the street from the Resort. (“Plaintiff's Answers to Defendant, Thomas McCracken's First Set of Interrogatories to Plaintiff,” answer to Interrogatory No. 13). There, Lewis resumed the demonstration, which lasted approximately half an hour. ( Id.).

Believing his Constitutional rights to have been violated by Bennett and McCracken's order to him and his followers to leave the Sidewalk on the southwest corner of State Road 56, Lewis filed this suit against Defendants, pursuant to 42 U.S.C. §§ 1983 and 1985. Lewis claims that his having been located on a sidewalk which was a traditional public forum, and being threatened with arrest if he did not move, the threat of arrest was a violation of his First Amendment rights. Lewis has sued McCracken under Section 1983, alleging that McCracken's threats of arrest amounted to state action occurring under color of law. He further contends that Bennett and the Resort are also liable under Section 1983 because they acted in concert with McCracken to deprive Lewis of his Constitutional entitlements. Finally, Lewis asserts that all three defendants are guilty of conspiracy to violate his rights under Section 1985.

Bennett and the Resort have filed this Motion for Summary Judgment on the following grounds: 1) that the sidewalk was private property owned by the Resort and that, therefore, no violation of Lewis's First Amendment rights occurred when he was ordered to leave; 2) that the portion of the Sidewalk on which the demonstration was staged was not a traditional public forum because it was not a part of the town of French Lick's transportation grid; 3) that, even if a viable cause of action under Section 1983 existed based on their violations of Lewis's First Amendment rights, Defendants are entitled to prevail on a good faith defense; 4) that Lewis's claim, pursuant to Section 1985, is not viable in any event because there has been no showing of religious animus; 5) that Lewis has failed to demonstrate that he suffered any damages as a consequence of his Constitutional deprivations; and 6) that the Resort is entitled to judgment as a matter of law on its trespass counterclaim.

McCracken filed his Motion for Summary Judgment joining defendants' motion and adding the defense of qualified immunity.

Lewis has also filed a Motion for Partial Summary Judgment, claiming: 1) that the sidewalk on which he and his group were demonstrating was a traditional public forum; 2) that McCracken was acting under color of state law; and 3) that Lewis is entitled to judgment as a matter of law on his 1983 claim against McCracken.

The Court, being duly advised, now DENIES in part and GRANTS in part defendants' Motions for Summary Judgment, and GRANTS Lewis's Motion for Partial Summary Judgment.

Legal Analysis

I. Standard of Review

In ruling on a motion for summary judgment, all facts and reasonable inferences must be construed in favor of the non-moving party. Magin v. Monsanto Co., 420 F.3d 679, 686 (7th Cir.2005). We do not evaluate the weight of the evidence, judge the credibility of witnesses or determine the ultimate truth of the matter; rather, we determine whether there exists a genuine issue of triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 245–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Magin, 420 F.3d at 686 (citing Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S....