Robinson v. Moses
| Decision Date | 01 October 1986 |
| Docket Number | Civ. No. F 86-24. |
| Citation | 644 F. Supp. 975 |
| Parties | Gary A. ROBINSON, Plaintiff, v. Mayor Win MOSES; David Rieman, Chief of Police; Frederick C. Firks, Police Officer; and Sheriff of Allen County, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Gary A. Robinson, pro se.
Phillip A. Renz, Fort Wayne, Ind., for Moses, Rieman, Firks and City of Fort Wayne.
William F. McNagny and Thomas A. Herr, Fort Wayne, Ind., for Sheriff of Allen County.
This matter is before the court on two motions for summary judgment. Defendant, the Sheriff of Allen County, filed a motion for summary judgment on May 15, 1986, accompanied by a memorandum and a number of affidavits. Defendants Win Moses (Mayor), David Rieman (Chief of Police), and Frederick Firks (Police Officer), filed their motion for summary judgment on June 9, 1986, accompanied by a memorandum, affidavits and exhibits. On May 28, 1986 and July 11, 1986, this court issued notices to the plaintiff, alerting him to the respective motions, his rights, responsibilities, and the consequences of failing to respond. Plaintiff was invited to file affidavits or other responsive materials to aid the court and was given twenty (20) days from receipt of the orders to respond. Well over thirty (30) days have passed since the court notified plaintiff of the most recent motion; plaintiff has not responded to either motion for summary judgment. For the following reasons, defendants' motions are granted.
Plaintiff filed this action under the eighth and fourteenth amendments, seeking Fifty Thousand Dollars ($50,000.00) from each defendant under 42 U.S.C. § 1983 (1982). At approximately 11:30 P.M. on September 23, 1984, plaintiff was stopped by Fort Wayne Police Officer Frederick Firks (Firks) for driving with an expired temporary license plate. Firks made a routine radio warrants check, discovered that plaintiff was wanted on a warrant for a parole violation, and attempted to arrest plaintiff. At this point a scuffle ensued. Plaintiff's version of the facts in the complaint vary greatly from the facts as they appear in the first exhibit attached to the memorandum submitted by defendants Moses, Rieman, and Firks. That exhibit consists of ninety-two pages of police reports.
Officer Firks' statement and interview indicate that during the scuffle Robinson was able to reach down, unzip Firks' holster and remove Firks' handgun. At about the same time Robinson's friend, Tom Campbell, was walking toward Firks and was yelling "kill the fucker." According to Firks' statement Robinson turned, aimed the weapon at Firks, but for unknown reasons, walked away. During the scuffle Robinson hit Firks, cutting his lip.
According to Robinson's complaint, Firks initiated the scuffle and swung at Robinson, hitting his mouth, making it bleed, and knocking a tooth out of line. Robinson also alleged that Firks went for his gun.
On March 5, 1985, Robinson pled guilty to robbery (of Firks' gun), battery to a police officer, and resisting law enforcement; he was sentenced to four years in prison.
After the scuffle Robinson ran to Cynthia Milton's house. He hid Firks' gun on the way to the house. When the police came to the door Milton was prevented from answering the door by Robinson, who put his hand over her mouth. Eventually Milton was able to leave the house. She found Officer Reggie Coleman, gave him her keys, and told him that Robinson was in her apartment. Robinson was found hiding in a closet; Campbell was found in a back bedroom. Robinson then took some of the police officers to the place where he had thrown Firks' handgun.
Robinson's complaint alleges that after he was found at Milton's house he was taken outside without any clothes on, except his undershorts. He states that he was embarassed as people watched him walk down the street in his shorts. His complaint further alleges that "the policemen let me put on my pants, shirt but no shoes ..." before being transported to the City-County lockup. Robinson states that he was in the City-County lockup for three days, was denied phone calls, and was taken to an arraignment without shoes.
Lastly, Robinson describes the medical care he received after being transported to the Allen County Jail. Robinson complained a number of times about a sore throat. He was seen by a nurse and an ear, nose and throat specialist on numerous occasions while at the Allen County Jail.
Plaintiff is proceeding pro se. Pro se pleadings are liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). District courts are to ensure that the claims of a pro se litigant are given fair and meaningful consideration. Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir.1984). This court also recognizes that federal courts have historically exercised great tolerance to ensure that an impartial forum remains available to plaintiffs invoking its jurisdiction pro se. Nixon v. Individual Head of St. Joseph Mortg. Co., 612 F.Supp. 253 (N.D.Ind.1985). Pro se complaints such as plaintiff's are held to less stringent pleading requirements; rigor in the examination of such complaints is inappropriate.
When approaching a motion for summary judgment made against a pro se litigant, the court must be particularly cautious. Nevertheless, 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The plain language of Rule 56(c) mandates 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, ___ U.S. ___, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). 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). A party may not rest on the mere allegations of his pleadings or the bare contentions that an issue of fact exists. 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, § 99 (4th ed. 1983); 6 Moore's Federal Practice, § 56.15 (2d ed. 1983). In granting summary judgment the court may consider any material that would be admissible or usable at trial. Aguilera v. Cook Cty. Police and Corr. Merit Bd., 760 F.2d 844, 848 (7th Cir.1985) (quoting 10A Wright, Miller & Kane, Federal Practice and Procedure § 2721, at p. 40 (2d ed. 1983).
Plaintiff apparently contends that Officer Firks used "excessive force" in his arrest, violating his fourteenth amendment right to be free of state intrusions into his personal privacy and bodily security through means so brutal, demeaning, and harmful as to literally shock the conscience of the court. Gumz v. Morrissette, 772 F.2d 1395, 1400 (7th Cir.1985). According to Gumz, the use of force by a state officer is unconstitutional if it: "(i) caused severe injuries, (ii) was grossly disproportionate to the need for action under the circumstances, and (iii) was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience." Id. at 1400. Plaintiff's allegations completely fail to meet any of the requirements of Gumz. There is nothing to indicate that Officer Firks was inspired by malice. Firks' actions were not disproportionate to the need under the circumstances and no injuries were caused.
To the contrary, the police reports indicate that the scuffle ensued only after the plaintiff resisted arrest. Moreover, Nurse Vicki Overholt testified in her affidavit that plaintiff was not injured when he was received at the jail on September 24, 1984. Plaintiff never complained about injury to his mouth or his teeth; the medical records bear this out. While plaintiff alleges that he was taken outside not fully clothed, numerous police reports, detailing plaintiff's arrest, indicate that this never occurred at all.
While the plaintiff names Mayor Moses and Police Chief Rieman in his complaint there is no indication that either was personally involved in this case. Plaintiff's complaint alleges eighth and fourteenth amendment violations and asserts violations of 42 U.S.C. § 1983 (1982). Under § 1983, the potential individual liability of Moses and Rieman is predicated upon personal responsibility. Schultz v. Baumgart, 738 F.2d 231, 238 (7th Cir.1984); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.1983). Since there is no allegation (and no inference) that either Moses or Rieman participated in the alleged constitutional deprivations in any way, they cannot be held liable. Respondeat superior has been rejected under § 1983 as a basis for individual liability.1
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