Roberts v. Hochstetler, Civ. No. F 82-33.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Citation592 F. Supp. 703
Docket NumberCiv. No. F 82-33.
PartiesTerry DeWayne ROBERTS, Plaintiff, v. Ron HOCHSTETLER; Tom McCutcheon; and City of Huntington, Defendants.
Decision Date12 September 1983

592 F. Supp. 703

Terry DeWayne ROBERTS, Plaintiff,
v.
Ron HOCHSTETLER; Tom McCutcheon; and City of Huntington, Defendants.

Civ. No. F 82-33.

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

September 12, 1983.


592 F. Supp. 704
COPYRIGHT MATERIAL OMITTED
592 F. Supp. 705
Joe Keith Lewis, Fishburne & Lewis, Marion, Ind., for plaintiff

Bruce B. Marr and Richard E. Steinbronn, Barnes & Thornburg, Elkhart, Ind., James E. Chovanec, Huntington, Ind., for defendants.

John C. Ruckelshaus, Indianapolis, Ind., for defendants Ron Hochstetler, Tom McCutcheon.

ORDER

LEE, District Judge.

This matter is before the court on defendants' July 20, 1982 motion for summary judgment. Plaintiff responded on September 3, 1982. On September 3, 1982 plaintiff also filed a memorandum opposing defendant McCutcheon's affidavit filed in support of the motion for summary judgment. October 4, 1982, defendants filed a reply to plaintiff's response to defendants' summary judgment motion, a response to plaintiff's memorandum opposing defendant McCutcheon's affidavit, a memorandum in opposition to plaintiff's affidavit filed with plaintiff's response to defendant's summary judgment motion, and a memorandum in opposition to Exhibit 2 attached to plaintiff's response. This court granted plaintiff's motion for leave to reply to defendants' memorandums in opposition to plaintiff's affidavit and plaintiff's Exhibit 2. Plaintiff replied on October 22, 1982. For the following reasons, after resolving the disputes about the accompanying documents, defendants' motion for summary judgment will be granted.

Discussion

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted 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." Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court "can determine whether further exploration of the facts is necessary." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Peoples Outfitting Co. v. General Electric Credit Corp., 549 F.2d 42 (7th Cir.1977).

592 F. Supp. 706
See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See generally C. Wright, Law of Federal Courts at 493-95 (3d ed. 1976); 6 Moore's Federal Practice, § 56.15 (1976)

Thus, the moving party must demonstrate the absence of a genuine issue of material fact. The court views all evidence submitted in favor of the non-moving party. Even if there are some disputed facts, where the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983); Collins v. American Optometric Ass'n., 693 F.2d 636, 639 (7th Cir.1982). Further, if the court resolves all factual disputes in favor of the non-moving party and still finds summary judgment in favor of the moving party is correct as a matter of law, then the moving party is entitled to summary judgment in his favor. Egger, 710 F.2d at 297. See also Bishop v. Wood, 426 U.S. 341, 348, 348 n. 11, 96 S.Ct. 2074, 2079, 2079 n. 11, 48 L.Ed.2d 684 (1976).

While inferences from the evidence must be drawn in favor of the non-moving party, a caveat to this general rule is that the evidence presented, by affidavit or otherwise, must be admissible if it were to be introduced at a trial. Fed.R.Civ.P. 56; Kashner v. Central States, Southeast and Southwest Areas Pension Fund, No. 7926, slip op. at 7 (N.D.Ind. August 6, 1982). Rule 56(e) states:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall affirmatively show that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

These requirements are mandatory. Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950); First National Bank Co. v. Insurance Co. of North America, 606 F.2d 760 (7th Cir.1979); American Security Co. v. Hamilton Glass Co., 254 F.2d 889 (7th Cir.1958); Midland Engineering Co. v. John A. Hall Construction Co., 398 F.Supp. 981 (N.D.Ind.1975).

If the affidavits contain inadmissible allegations, the court must disregard those allegations and consider only "the admissible portion in determining whether to grant or deny the summary judgment motion." Lee v. Nat'l. Life Assurance Co., 632 F.2d 524, 529 (5th Cir.1980); Kashner, slip op. at 7. Finally, exhibits submitted which support or oppose the summary judgment motion may be considered if such exhibits would be admissible at a trial and have probative force. First Nat'l. Bank, 606 F.2d at 766. "A district court under Rule 56 is not authorized to try issues of fact, but has the power to penetrate the pleadings and look at any evidential source to determine whether there is an issue of fact to be tried." Id. at 767.

With the review standards set forth, this court now turns to the resolution of the disputes regarding defendant McCutcheon's affidavit, plaintiff's affidavit, and plaintiff's Exhibit 2. Plaintiff raises the argument that defendant McCutcheon's affidavit, in part, is not based on personal knowledge, would not be admissible in evidence, and "nowhere does defendant McCutcheon clearly state that he has personal knowledge of the fact asserted ... as based upon his own personal observation." Plaintiff's basic assertion is that defendant McCutcheon's averments regarding the facts he received from a report from fellow officer Hochstetler are hearsay and inadmissible at trial.

The disputed statements are:

"That officer Hochstetler returned inside the Moon & Moon laundry and reported to affiant the appearance and strange behavior of Roberts and Turner outside the building.
"That affiant determined on the basis of ... the report of Officer Hochstetler regarding the appearances and suspect behavior of Terry DeWayne Roberts ... that there was probable cause for the arrest of Terry DeWayne Roberts."
592 F. Supp. 707

The statements McCutcheon made in his affidavit about the report he received from Officer Hochstetler would be admissible at trial, not for the truth of the statements, but as a partial basis for McCutcheon's good faith belief probable cause existed.1

The term "probable cause" is not susceptible to a precise definition. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Probable cause exists where the "facts and circumstances are `sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.'" Gerstein v. Pugh, 420 U.S. 103, 111-12, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Generally speaking, its existence "depends upon the officer's own knowledge and the knowledge received from others which is reasonably trustworthy." United States v. Gaston, 620 F.2d 635, 638 (7th Cir.1980) (emphasis supplied). See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). See also United States v. Jones, 696 F.2d 479, 485, 485 n. 6 (7th Cir.1982).

Indiana follows the definition stated above of probable cause. Fyock v. State, 436 N.E.2d 1089, 1093 (Ind.1982); Battle v. State, 415 N.E.2d 39 (Ind.1981); Strosnider v. State, 422 N.E.2d 1325 (Ind.App. 1981). Further, Indiana also follows the rule that probable cause is "determined upon the basis of the collective information known to the law enforcement organization." Brown v. State, 442 N.E.2d 1109 (Ind.1982). See also Suggs v. State, 428 N.E.2d 226 (Ind.1981); Owens v. State, 427 N.E.2d 880 (Ind.1981); Benton v. State, 273 Ind. 34, 401 N.E.2d 697 (1980). Therefore, McCutcheon was entitled to rely on fellow Officer Hochstetler's report about the plaintiff in reaching his conclusion probable cause for plaintiff's arrest existed, such reliance was properly averred in his affidavit, and the statements in McCutcheon's affidavit are admissible at trial. This court will consider all of McCutcheon's affidavit in deciding defendants' summary judgment motion.

Defendants argue that plaintiff's affidavit contains conclusory statements inadmissable at trial and thus, improper for consideration by this court on summary judgment. Defendants object to plaintiff's statements:

"I know I was not walking away from Officer Hochstetler very fast because I was waiting for Art Turner to catch up with me."
. . . . .
"The double doors where Art Turner was supposed to have been, according to the statements of Ron Hochstetler, would not have been visible to the man I passed next to the laundry."
. . . . .
"Art Turner came up from behind me, so he would have traveled the same path I did."
"I know Art Turner was not by the double doors as Ron Hochstetler said he was, because he could not have covered the distance between the double doors and the corner of the building in the same amount of time it took me to walk twenty (20) to twenty-five (25) feet away from the man I saw."

Conclusory allegations are not sufficient to raise material issues of fact. Hall v. Local No. 3, 696 F.2d 494, 500 (7th Cir.1982); Ashwell & Co., Inc. v. Transamerica Insurance Co., 407 F.2d 762, 766 (7th Cir.1969). Defendants argue plaintiff's statements quoted above "are not

592 F. Supp. 708
based on facts or personal knowledge, but are statements arising from...

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7 practice notes
  • Peffley v. Durakool, Inc., No. S86-39.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 24, 1987
    ...portions of an affidavit and consider only the admissible portions in deciding the summary judgment motion. Roberts v. Hochstetler, 592 F.Supp. 703, 706 Paragraph 7 of Mrs. Peffley's affidavit contains double hearsay: Mrs. Peffley (the affiant) states that Joyce Thurman (an out-of-court dec......
  • Brown v. City of Fort Wayne, Cause No. 1:09–cv–150.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • November 4, 2010
    ...that followed Brown's non-adversarial probable cause hearing, during which she did not have counsel present. Roberts v. Hochstetler, 592 F.Supp. 703, 710 (N.D.Ind.1983); see also Toro v. Gainer, 370 F.Supp.2d 736 (N.D.Ill.2005) (applying Illinois law). Consequently, collateral estoppel does......
  • Pender v. US, No. 4:93-cv-66RP.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • October 20, 1994
    ...in deciding the summary judgment motion. See, e.g., Friedel, 832 F.2d at 970-71; Randle, 876 F.2d at 570, n. 4; Roberts v. Hochstetler, 592 F.Supp. 703, 706 Consolidated argues that the following portion of Martin's affidavit constitutes inadmissible evidence and should not be considered: B......
  • Tucker v. Firks, Civ. No. F 88-295.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 29, 1989
    ...226 (Ind.1981); Owens v. State, 427 N.E.2d 880 (Ind.1981); Benton v. State, 273 Ind. 34, 401 N.E.2d 697 (1980). Roberts v. Hochstetler, 592 F.Supp. 703, 707 In discussing the standard for resolution of probable cause issues, the Seventh Circuit has stated It is true that the issue of probab......
  • Request a trial to view additional results
7 cases
  • Peffley v. Durakool, Inc., No. S86-39.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 24, 1987
    ...portions of an affidavit and consider only the admissible portions in deciding the summary judgment motion. Roberts v. Hochstetler, 592 F.Supp. 703, 706 Paragraph 7 of Mrs. Peffley's affidavit contains double hearsay: Mrs. Peffley (the affiant) states that Joyce Thurman (an out-of-court dec......
  • Brown v. City of Fort Wayne, Cause No. 1:09–cv–150.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • November 4, 2010
    ...that followed Brown's non-adversarial probable cause hearing, during which she did not have counsel present. Roberts v. Hochstetler, 592 F.Supp. 703, 710 (N.D.Ind.1983); see also Toro v. Gainer, 370 F.Supp.2d 736 (N.D.Ill.2005) (applying Illinois law). Consequently, collateral estoppel does......
  • Pender v. US, No. 4:93-cv-66RP.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • October 20, 1994
    ...in deciding the summary judgment motion. See, e.g., Friedel, 832 F.2d at 970-71; Randle, 876 F.2d at 570, n. 4; Roberts v. Hochstetler, 592 F.Supp. 703, 706 Consolidated argues that the following portion of Martin's affidavit constitutes inadmissible evidence and should not be considered: B......
  • Tucker v. Firks, Civ. No. F 88-295.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 29, 1989
    ...226 (Ind.1981); Owens v. State, 427 N.E.2d 880 (Ind.1981); Benton v. State, 273 Ind. 34, 401 N.E.2d 697 (1980). Roberts v. Hochstetler, 592 F.Supp. 703, 707 In discussing the standard for resolution of probable cause issues, the Seventh Circuit has stated It is true that the issue of probab......
  • Request a trial to view additional results

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