Peele v. Burch
| Decision Date | 28 February 2012 |
| Docket Number | CAUSE NO.: 2:09-CV-138-PRC |
| Parties | ROGER L. PEELE, Plaintiff, v. CLIFF BURCH, PORTAGE POLICE DEPARTMENT, LARRY JOLLEY, and CITY OF PORTAGE, Defendants. CLIFF BURCH, PORTAGE POLICE DEPARTMENT, LARRY JOLLEY, and CITY OF PORTAGE, Counter Claimants, v. ROGER L. PEELE, Counter Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the Court on (1) a Motion for Summary Judgment [DE 49], filed by Plaintiff Roger L. Peele on September 14, 2011; (2) a Motion for Summary Judgment [DE 52], filed by Defendants Cliff Burch, Portage Police Department, Larry Jolley, and City of Portage on September 14, 2011; (3) a Motion to Strike Portions of Plaintiff's Statement of Material Facts [DE 55], filed by Defendants on October 5, 2011; (4) a Plaintiff's Motion to Strike [DE 63], filed by Plaintiff on October 12, 2011; (5) a Plaintiff's Motion to Strike Portion of Defendants' Material Facts Designated in Support of their Response to Plaintiff's Motion for Summary Judgment [DE 72], filed by Plaintiff on October 26, 2011; and (6) a Defendants [sic] Motion to Amend/Supplement their Memorandum in Support of Summary Judgment [DE 83], filed by Defendants on February 21, 2012.
On May 11, 2009, Plaintiff filed a Complaint under 42 U.S.C. § 1983. On May 27, 2009, Defendants filed their Answer and Counterclaims alleging malicious prosecution and abuse of process.
Plaintiff filed his Motion for Summary Judgment on September 14, 2011. Defendants filed their response and a Motion to Strike on October 5, 2011. Plaintiff filed his reply in support of his Motion for Summary Judgment and his response to the Motion to Strike on October 26, 2011. Defendants filed their reply in support of their Motion to Strike on November 2, 2011.
Defendants filed their Motion for Summary Judgment on September 14, 2011. Plaintiff filed his response and a Motion to Strike on October 12, 2011. Defendants filed their reply in support of their Motion for Summary Judgment and their response to the Motion to Strike on October 26, 2011. Plaintiff filed his reply in support of his Motion to Strike on November 2, 2011.
Plaintiff filed a second Motion to Strike on October 26, 2011. No response was filed. Defendants filed a Motion to Amend their memorandum in support of their Motion for Summary Judgment on February 21, 2012, and Plaintiff filed his response on February 22, 2012.
The parties orally agreed on the record to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
Both parties have moved to strike portions of the others' statements of material facts on the grounds that they are not cited properly, in violation of the Local Rules, misconstrue the statements of witnesses or are otherwise without support in the record, or rely on inadequate evidence inviolation of the Federal Rules of Evidence. The requests are voluminous, with each party attacking a large number of the other party's statements of fact. Rather than lay out its reasoning on each of the disputes, the Court has considered the parties' arguments in the Motions to Strike, and the facts as laid out below are those that the Court deems material and are either undisputed by the parties or reflect the Court's determination that they are properly supported by the evidence in the record.
In May 2007, Plaintiff Roger L. Peele was an employee of Defendant City of Portage Police Department. He had been assigned to the Detective Bureau since 1992, with the exception of one year serving as Chief of Police for the City of Portage. Defendant Clifford Burch was the Chief of Police of Portage in May 2007, and Defendant Larry Jolley was the Assistant Chief of Police.
In the spring of 2007, Plaintiff supported Steve Charnetzky, the Street Superintendent for the City of Portage, in the democratic primary for the City of Portage mayoral election to replace outgoing mayor Doug Olson. Olga Velazquez was another democratic mayoral candidate who eventually won the nomination and the mayoral election.
On Friday, May 4, 2007, Defendant Burch met with Mayor Olson to inform the Mayor that it was Defendant Burch's intent to reassign Plaintiff within the police department. Also on May 4, 2007, Defendant Burch informed Defendant Jolley of his decision to reassign Plaintiff. Defendant Burch decided to reassign Plaintiff to the position of Station Duty Officer, a position created within the Portage Police Department in 2000 that had been held by several prior Portage Police Officers.
On Tuesday, May 8, 2007, the City of Portage mayoral primary election was held. Velazquez won the democratic primary, defeating Charnetzky. Plaintiff was at Charnetzky headquarters with other supporters that evening and spoke with Northwest Indiana Times newspaper reporter JoyceRussell. On the following day, May 9, 2007, the Northwest Indiana Times published an article describing Plaintiff as indicating to the reporter that he believed the newspaper's coverage had been unfair and that he was unhappy with Porter County Sheriff David Lain's endorsement of Velazquez. Plaintiff was quoted as saying, "He won't get any support here."
On Thursday, May 10, 2007, Defendants Burch and Jolley, along with Terry Swickard, Detective Captain for the Portage Police Department, met with Plaintiff in Burch's office. Defendant Burch read from a prepared statement informing Plaintiff of the decision to reassign him to the position of Station Duty Officer, and gave Plaintiff a copy of the statement. It was dated May 10, 2007, although Defendant Burch testified that he prepared it on May 7, 2007, and left the date blank until the day he gave it to Plaintiff. Defendant Burch did not reference the newspaper article in the discussion or call the reassignment discipline. The reassignment was within Defendant Burch's power as Chief of Portage Police Department.
Plaintiff was not demoted by rank when he became a station duty officer. He performed a variety of police duties while in the position, and the administration of the Portage Police Department did not put any restriction on Plaintiff's duties. However, shortly after he began working in the position he took major medical leave, and after returning requested "light duty" for medical reasons. From the time his request for light duty was granted until his retirement on December 30, 2007, he was restricted from officer duties that would require him to deal with the public.
On May 11, 2007, Northwest Indiana Times editor Robert Blaskiewicz called the Portage Police Department and spoke with Keith Hughes, an information officer. On May 12, 2007, an article was published in the Northwest Indiana Times stating that Plaintiff "ha[d] been disciplinedfor statements he made after the candidate's loss" to a reporter and that he had been reassigned to the position of station officer. Hughes had not discussed the reasons for Plaintiff's reassignment with anyone else before giving the statement to Blaskiewicz, but had assumed that the reassignment was due to Plaintiff's comments to the reporter.
The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 further requires the entry of 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotations omitted).
A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R. Civ. P. 56(c). The moving party may discharge its initial responsibility by simply "'showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmovingparty's case." Celotex, 477 U.S. at 325. When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Celotex, 477 U.S. at 323, 325; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254, 1256 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials, and, if the moving party has "produced sufficient evidence to support a conclusion that there are no genuine issues for trial," then the burden shifts to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum-Hill Assoc., 914 F.2d 107, 110-111 (7th Cir. 1990) (citations omitted); see also Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993).
Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by...
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