Sutter v. Carroll
| Decision Date | 20 June 2012 |
| Docket Number | CAUSE NO. 1: 11-CV-83 |
| Court | U.S. District Court — Northern District of Indiana |
| Parties | GARY SUTTER, Plaintiff, v. SOUTH WHITLEY POLICE OFFICERS RICK CARROLL AND JESSICA LEWIS, Defendants. |
In this lawsuit brought under 42 U.S.C. § 1983, Plaintiff Gary Sutter contends that, after a night of drinking, and during the early morning hours of August 23, 2009, he was driving to his home in South Whitley, Indiana. He came to the attention of Defendants, South Whitley police officers Rick Carroll and Jessica Lewis, when his motorcycle tipped over at an intersection. Once back on the motorcycle, Carroll and Lewis followed Sutter in their squad car, using the car's emergency lights and loudspeaker in an attempt to pull him over. Although aware of the lights and directions to pull over, Sutter led Carroll and Lewis on what he describes as a slow speed "vehicle pursuit" for about ninety seconds, until he reached the driveway of his home.
The officers' actions that immediately followed while arresting Sutter are the basis for his claims that he was subjected to excessive and unreasonable force in violation of the Fourth and Fourteenth Amendments and a civil battery under Indiana state tort law.1 In short, Sutterclaims that Carroll put him into a right arm bar, and, while pulling up on his arm hard enough to dislocate his shoulder, took him to the ground. Once on the ground, Sutter alleges that Carroll repeatedly bashed his head into the asphalt driveway and that eventually Carroll, with Lewis's assistance, handcuffed him, but because he had just sustained a shoulder injury, the cuffs caused him pain. Sutter further claims that Lewis ignored his complaints of pain until medics arrived.
In the present motion, however, Defendants maintain that they are entitled to summary judgment because the force used to arrest Sutter was reasonable as a matter of law, that Lewis has no bystander liability—either because the force Carroll employed was reasonable or because Lewis had no reasonable opportunity to intervene—and that, regardless, they are entitled to qualified immunity. Concerning the civil battery claim, Carroll and Lewis argue that Sutter has not brought a cognizable claim under the Indiana Tort Claims Act ("ITCA"), Indiana Code § 34-13-3-1 et seq., but that they are nevertheless entitled to law enforcement immunity.
For the following reasons, Defendants' Motion for Summary Judgment (Docket # 26) will be DENIED IN PART and GRANTED IN PART.
There does not appear to be much dispute that Sutter was intoxicated in the early morning of August 23, 2009. In fact, his blood alcohol level, taken after his arrest, was .24, or three times the legal limit. (Sutter Dep. 20.) Perhaps this explains why his motorcycle fell over in a South Whitley, Indiana intersection.
At any rate, Lewis and Carroll observed a male person picking up a motorcycle from the roadway, probably an unusual occurrence at any time and certainly suspicious at 12:25 a.m., so Lewis activated her emergency lights and pulled behind the motorcycle. (Lewis Aff. ¶ 5; Carroll Aff. ¶ 5.) Once behind the motorcycle, they observed the driver having difficulty getting onto it. (Lewis Aff. ¶ 6; Carroll Aff. ¶ 6.) Although the squad car's flashing emergency lights were on, the driver took off with Lewis and Carroll in pursuit and their squad car's siren blaring in an effort to pull the driver over. (Lewis Aff. ¶¶ 7-8; Carroll Aff. ¶ 7.)
The driver, Sutter, did not pull over although he easily could have done so. (Lewis Aff. ¶ 7; Carroll Aff. ¶ 7; Sutter Dep. 59.) During this so-called ninety second pursuit over the next half-mile, Sutter ran a red light, drove left of center, and continued to ignore the squad car's lights and sirens. (Lewis Aff. ¶¶ 9-10; Carroll Aff. ¶¶ 9-10; Sutter Dep. 54-55.) Eventually, when he reached his home, Sutter drove into the driveway, stopped, and shut off the motorcycle. (Lewis Aff. ¶ 11; Sutter Dep. 59.)
Lewis and Carroll were concerned that the driver may pose a danger so both exited the squad car. (Lewis Aff. ¶¶ 12-13; Carroll Aff. ¶¶ 12-13.) As they approached, Lewis could smell alcohol on the driver. (Lewis Aff. ¶ 14.) Carroll repeatedly asked Sutter for his driver's license, but instead of complying, Sutter got off his motorcycle. (Lewis ¶¶ 15-17; Carroll, ¶¶ 13-14.) At this point, both Carroll and Lewis observed Sutter make a move; Lewis believed that Sutter was simply removing his coat (Lewis Aff. ¶ 16), while Carroll perceived Sutter to be reaching for an unknown object (Carroll Aff. ¶ 14).
Thinking now that they had probable cause to arrest Sutter, who was still unknown to them, Carroll twice ordered Sutter not to move, but to also put his hands behind his back.(Carroll Aff. ¶ 16.) Before Sutter complied, or perhaps before he had an opportunity to comply, Carroll grabbed Sutter's left arm in an attempt to place him in hand restraints. (Lewis Aff. ¶ 20; Carroll Aff. ¶ 17.) Sutter pulled away as a reflex to the pain of having his arm pulled and told Carroll that his actions were hurting him. (Sutter Dep. 83; Smith Dep. 37, 44, 71; Lewis Case Report 2.) Carroll then grabbed Sutter's other arm, exclaiming, "to hell with the cuffs," put Sutter into an arm bar, and took him to the ground. (Sutter Dep. 83-84.) Sutter's head hit the ground on impact. (Smith Dep. 45.) During the arm bar, Carroll pulled Sutter's right arm up behind his back, dislocating his shoulder. (Sutter Dep. 89-90; Sutter Aff. ¶ 4.)
Now on the ground, Carroll held Sutter down with his knee in Sutter's back and began bashing Sutter's head into the driveway three or four times. (Smith Dep. 46, 49, 71.) At this point, Sutter's live-in girlfriend, Jeanne Smith, who had been watching from the house since Sutter's arrival, became concerned and went outside to ask Carroll to stop. (Smith Dep. 46-47, 71-72.) Smith became worried that Carroll would not stop and called the Sheriff's Department to come to the scene. (Smith Dep. 48-49.) Eventually, Carroll and Lewis handcuffed Sutter, double locking the cuffs. (Lewis Aff. ¶ 21; Carroll Aff. ¶ 18; Carroll Case Report 2.)
Once Sutter was in hand restraints, he began to complain about pain in his shoulder. (Lewis Aff. ¶ 22; Carroll Aff. ¶ 19; Lewis Case Report 2.) Sutter also told Carroll that he had a torn rotator cuff injury in his right shoulder. (Carroll Case Report 2.) Consequently, Carroll picked Sutter up by his torso and placed him into the back of the police vehicle. (Carroll Aff. ¶ 22.) At that point, the officers noticed that Sutter had a small laceration above his eye, and medics came to evaluate the injury. (Lewis Aff. ¶ 28; Carroll Aff. ¶ 23.)
When the medics arrived, it was determined that Sutter should go to the hospital forevaluation. (Lewis Aff. ¶ 30.) Lewis then removed the handcuffs and reapplied them with Sutter's hands in front. (Lewis Aff. ¶ 30.) Sutter was subsequently transported to Whitley County Hospital. (Carroll Aff. ¶ 26; see Lewis Aff. ¶ 31.) Emergency room records from Whitley County Hospital indicate that Plaintiff received three diagnoses: (1) right shoulder dislocation; (2) a 2.4 cm brow laceration; and (3) intoxication. (Sutter Dep. 180-81.) With respect to the brow laceration, the records indicate that it was of mild depth with no significant swelling. (Sutter Dep. 186-87.) The records further reflect that, other than the laceration, "the remainder of the head and face was without further evidence of trauma, such as swelling, ecchymoses [bruising], tenderness or deformity." (Sutter Dep. 187.)
As a result of this incident, Sutter pled guilty to Operating a Vehicle While Intoxicated, a Class D felony; and Resisting Law Enforcement, a Class A misdemeanor. (Sutter Dep 149-50.) At his plea hearing, Sutter admitted that he should have submitted to the officers' authority and allowed himself to be handcuffed, but he failed to do so. (Sutter Dep. Ex. C at 4.) Sutter maintains, however, that the resistance he admitted to in court was pulling his left arm away from Carroll right after he got off his motorcycle. (Sutter Aff. ¶ 6.)
In light of these facts, Defendants believe that all force applied against Sutter was objectively reasonable and necessary to arrest him. (Lewis Aff. ¶¶ 33-36; Carroll Aff. ¶¶ 27-28.) They further maintain that, in connection with the bystander liability claim, since no excessive force was used, Lewis had no cause, reason, or opportunity to intervene between Carroll and Sutter. (Lewis Aff. ¶ 37.)
Summary judgment may be granted only if there are no disputed genuine issues ofmaterial fact. Payne, 337 F.3d at 770. When ruling on a motion for summary judgment, a court "may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Id. The only task in ruling on a motion for summary judgment is "to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 507 (7th Cir. 2010) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)). If the evidence is such that a reasonable factfinder could return a verdict in favor of the nonmoving party, summary judgment may not be granted. Payne, 337 F.3d at 770. A court must construe the record in the light most favorable to the nonmoving party and avoid "the temptation to decide which party's version of the facts is more likely true," as "summary judgment cannot be used to resolve swearing contests between litigants." Id. However, "a party opposing summary judgment may not rest on the pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact for trial." Id. at 771.
Sutter advances excessive force claims under § 1983 against Carroll based on his...
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