Swallers v. Donavan
| Decision Date | 10 March 2016 |
| Docket Number | No. 1:15-cv-1649-RLY-MJD,1:15-cv-1649-RLY-MJD |
| Parties | BRENT ALLEN SWALLERS, Plaintiff, v. DANIEL DONAVAN, et al., Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Having considered the pleadings, the defendants' motion for summary judgment and the materials associated with such motion, the court finds that the motion for summary judgment should be granted.
Plaintiff Brent Allen Swallers resides on the east side of Indianapolis at 539 South Auburn Street. He is the owner of record of both that property and of the adjacent property at 541 South Auburn Street (sometimes hereafter referred to as "the property").
The Marion County Department of Code Enforcement ("DCE") is a municipal agency responsible for enforcement of the zoning rules in Indianapolis as set forth in Revised Code of the Consolidated City and County (hereafter "Revised Code"). Daniel Donavan and Nicoson Gebert are Zoning Inspectors employed by the DCE. Bradley Sollars is an officer with the Indianapolis Metropolitan Police Department ("IMPD").
Swallers' claims are based on events associated with DCE inspections of the property. Swallers claims that the defendants are liable for liable for trespass, theft, and extortion. The defendants challenge the court's subject matter jurisdiction, they argue that they are immune from suit under provisions of the Indiana Tort Claims Act, IND. CODE § 34-13-3-1, et seq. ("ITCA"), and they argue that Swallers is collaterally estopped from bringing claims against Donavan and the DCE for causes of action that accrued on March 26, 2014.
The action had an atypical beginning. On September 2, 2015, Swallers initiated an action on the clerk's miscellaneous docket as No. 1:15-mc-00079-SEB-MJD. That action was ordered placed on the civil docket through an Entry issued on October 15, 2015 and the complaint was re-docketed that same day, as was the defendants' answer to the complaint. This simultaneous re-docketing of both complaint and answer on the same day was possible because the defendants had appeared by counsel in No. 1:15-mc-00079-SEB-MJD and had filed their answer to the complaint therein.
The defendants' motion for summary judgment was then filed on December 2, 2015. The appropriate notification regarding that motion and the proper manner in which to respond to it was issued to Swallers, who is not represented by counsel in this action.
On December 31, 2015, Swallers filed a motion for a jury trial to be set and for the award of monetary relief. That motion was denied on January 12, 2016 "as procedurally improper." The court also noted in the Order of January 12, 2016 that "[t]he plaintiff could have responded to the defendants' motion for summary judgment as provided by Local Rule 56-(1), but the time for him to have done so has expired."
The action is therefore fully at issue on Swallers' complaint, on the defendants' answer, and on the defendants' unopposed motion for summary judgment.
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine only if a reasonable jury could find for the non-moving party. Id. If no reasonable jury could find for the non-moving party, then there is no "genuine" dispute. Scott v. Harris, 550 U.S. 372, 380 (2007). "The applicable substantive law will dictate which facts are material." National Soffit & Escutcheons, Inc., v. Superior Systems, Inc., 98 F.3d 262, 265 (7th Cir. 1996) (citing Anderson, 477 U.S. at 248). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). Swallers' "pro se status doesn't alleviate his burden on summary judgment." Arnett v. Webster, 658 F.3d 742, 760 (7th Cir. 2011).
As noted, Swallers has not opposed the motion for summary judgment. The consequence of his failure to do so is that he has conceded the defendants' version of the facts. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (); Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994). This does not alter the standard for assessing a Rule 56(a) motion, but does "reduc[e] the pool" from which the facts and inferences relative to such a motion may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997).
"[F]ailure to respond by the nonmovant as mandated by the local rules results in an admission." Smith, 321 F.3d at 683. The court therefore resolves the motion for summary judgment on the basis of the evidence submitted by the defendants. See Koszola v. Board of Education v. City of Chicago, 385 F.3d 1104 (7th Cir. 2004). Consistent with the foregoing, therefore, the following statement of facts is not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light reasonably most favorable to Swallers as the non-moving party.
On September 30, 2014, Swallers filed a lawsuit in the Marion County Superior Court against the DCE and Donovan (hereafter "the state court lawsuit"). Swallers alleged in the state court lawsuit, docketed as No. 49D04-1409-CT-032348, that Donavan cited the owners of 541 South Auburn Street for several violations of the Revised Code and that in the course of doing so he trespassed on Swallers' property at that address on March 26, 2014. That same claim is asserted in this case. The state court granted the motion to dismiss on June 9, 2015 based on its finding that Swallers had not provided notice of his claims pursuant to the ITCA. No appeal from this disposition of the state court lawsuit was taken.
DCE Inspector Gebert was at the property at 539 South Auburn Street on August 13, 2015 and again on September 1, 2015. On this latter occasion, Inspector Gebert began taking pictures, was told by Swallers to leave, and returned with Officer Sollars, who instructed Swallers to permit Inspector Gebert to resume taking pictures of the property.
Inspector Gebert inspected the property located at 539 South Auburn Street on August 13, 2015 to identify whether the owners of that property were violating any provisions of the Revised Code. Inspector Gebert's inspection that revealed that the owners of 539 South Auburn Street wereresponsible for two types of violations of the Revised Code. First, they were committing a zoning violation because they were improperly displaying merchandise on the property. Second, the property owners were committing a vehicle violation because there was an inoperable vehicle on the property. Inspector Gebert followed his training on this occasion by taking pictures of evidence of code violations that could be viewed from the public street. As he was doing so, Swallers confronted him. Swallers was upset that Inspector Gebert was taking pictures of the property at 539 South Auburn Street. Inspector Gebert offered Swallers a business card, which was taken, and asked Inspector Gebert to leave.
Based on his finding evidence of violations of the Revised Code as just narrated, Inspector Gebert opened a zoning and vehicle case at the DCE. Also has part of his training, Inspector Gebert performed additional inspections of any property on which he has identified evidence of a zoning violation. The additional inspection of the property at 539 South Auburn Street occurred on September 1, 2015. When he attempted to take pictures of this evidence, Inspector Gebert was approached by Swallers, who was talking loud, pointing, coming off of the property towards Gebert, and acting very hostile and aggressive. Swallers also threatened Gebert on September 1, 2015. After this threat was made, Officer Sollars, who was in his IMPD police uniform, met Inspector Gebert and followed him to 539 South Auburn Street so that he could finish taking pictures of the code violations that he identified during his second inspection. Officer Sollars then stood next to Gebert in the public street while Gebert took pictures of the code violations. Swallers then approached Gebert and Officer Sollars and claimed that they were trespassing. Officer Sollars explained that he and Gebert were standing on a public road, not Plaintiff's property, and that Gebert was taking pictures for the DCE.
Neither Inspector Gebert nor Officer Sollars stepped foot on the property at 539 South Auburn Street on September 1, 2015. Each was present as described above while performing the duties of his employment within the scope of his employment on September 1, 2015.
On the following day, September 2, 2015, Swallers filed the complaint docketed as No. 1:15-mc-00079-SEB-MJD. There was no tort claim notice served on any of the defendants or on the City of Indianapolis prior to September 2, 2015.
Swallers states on page 3 of his 14-page complaint that his claims are based on the court's diversity jurisdiction. It is quite evident, however, that the parties are all citizens of Indiana. It is also evident from Swallers' complaint that he seeks, in part, vindication of rights secured to him by the United States Constitution. This highlights the fact that Swallers' complaint contains both federal claims and state tort law claims.
IV. Discussion
"Subject-matter jurisdiction means adjudicatory competence over a category of disputes." Wisconsin Valley Imp. ...
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