Tapley v. Chambers

• Citation: 840 F.3d 370
• Decision Date: 19 October 2016
• Docket Number: No. 15-3013,15-3013
• Parties: Eric Tapley, Plaintiff–Appellant, v. Andrew Chambers, Officer, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

840 F.3d 370

Eric Tapley, Plaintiff–Appellant,

v.Andrew Chambers, Officer, et al., Defendants–Appellees.

No. 15-3013

United States Court of Appeals, Seventh Circuit.

Argued September 21, 2016

Decided October 19, 2016

Jonathan R. Ksiazek, Ed Fox & Associates, Chicago, IL, for Plaintiff–Appellant,

Peter R. Jennetten, Christina E. Cullom, Quinn, Johnston, Henderson & Pretorius, Peoria, IL, for Defendants–Appellees.

Before Flaum, Kanne, and Williams, Circuit Judges.

Kanne

, Circuit Judge.

Plaintiff-appellant Eric Tapley, along with William Hosea and Clifford Pugh, request that we review the district court's decisions in two different cases, one from 2012 (numbered 12–cv–1339) and the other from 2015 (numbered 15–cv–1051). Yet they failed to provide the record from the 2012 case on appeal. For that reason, we dismiss the appeal of that case. We address the merits of the 2015 case only—and we affirm.

I. BACKGROUND

The record before us leaves much to the imagination. Although Tapley asks us to review two cases, we have the record for only one of them. To outline the history of these two cases, we rely on the procedural facts provided in the parties' briefs. We assume the truth of these facts for that limited purpose. But that's as far as we'll go.

Without the required record, we are unable to address the material facts of the 2012 case. We do have the record from the 2015 case, and thus will discuss the facts necessary to decide the merits of that appeal.

A. Procedural History

This all began with the 2012 case. There, plaintiffs Tapley, Hosea, and Pugh sued the City of Bloomington and Officers Andrew Chambers, Jeff Engle, Michael Gray, John Heinlein, Sara Mayer, Scott Sikora, James Smith, and Brice Stanfield. The plaintiffs brought Fourth Amendment, equal-protection, and Monell claims under 42 U.S.C. § 1983

. In addition, Tapley brought a malicious-prosecution claim under Illinois law. Tapley's claims arose from several incidents occurring between 2011 and 2012. Hosea's and Pugh's claims involved a single incident occurring on May 24, 2011. The incidents that gave rise to Tapley's claims are unrelated to the incident that brought about Hosea's and Pugh's claims.

The defendants moved for summary judgment on all of these claims. The district court granted that motion in part, dismissing every claim except for Tapley's illegal-seizure claims arising from two traffic stops: one occurring in May 2011 and the other on September 15, 2011. Tapley voluntarily dismissed those two claims, causing the district court to terminate the case under Federal Rule of Civil Procedure 41(a)(1)

. The plaintiffs then appealed to this court.

Because Tapley voluntarily dismissed his surviving claims without prejudice, we questioned whether we had appellate jurisdiction. Indeed, a dismissal without prejudice typically does not result in a final and appealable order because the plaintiff is free to refile his claim. Larkin v. Galloway , 266 F.3d 718, 721 (7th Cir. 2001)

. We invited the plaintiffs to brief the jurisdictional issue. They instead dismissed their appeal on December 9, 2014.

Tapley then filed the 2015 case against Officers Chambers, Heinlein, Sikora, Stanfield, and Mayer. There, Tapley reasserted his illegal-seizure claim arising from the September 15, 2011 incident—one of the claims that he voluntarily dismissed in the 2012 case. He did not refile his other voluntarily dismissed claim from the 2012 case.¹

Once again, the defendants moved for summary judgment. This time around, the district court granted their motion and dismissed Tapley's claim. Tapley timely appealed that judgment.

B. Factual Background for the 2015 Case

The events giving rise to Tapley's claim in the 2015 case occurred on September 15, 2011. The Bloomington Police Department's Street Crimes Unit was surveilling for loud-music violations near the intersection of Clinton and Locust streets. Officer Sikora was parked to the south of that intersection when he observed Tapley driving northbound in a red GMC truck. Sikora radioed his fellow officers to inform them that Tapley was playing loud music and to inquire whether anyone wanted to initiate a stop. Officer Stanfield replied that he would try to make the stop. At that time, Stanfield was parked at the Clinton– Locust intersection, across the street from a Price Rite store.

Tapley turned into the Price Rite parking lot, and Stanfield followed him. Tapley went into the store for a brief time before returning to his truck. Stanfield testified that he heard Tapley's music emanating from the truck as Tapley was preparing to drive away. The parties agree that Tapley's music was loud, but dispute whether it was so loud that Stanfield could hear it from over 75 feet away.²

Tapley left the parking lot and turned northbound onto Clinton. Stanfield testified that he had difficulty following Tapley because Tapley was driving “at a very high rate of speed.” (R. 16–5 at 43–44.) Moreover, Stanfield could hear Tapley's engine rev as Tapley drove away. Stanfield acknowledged that he did not know Tapley's exact speed, but claimed that it was well over Clinton's 30–mile–per–hour limit—somewhere in the 40– to 50–mile–per–hour range. Stanfield testified that he had to drive about 40 miles per hour to catch Tapley.

Stanfield caught up to Tapley at the intersection of Main Street and Empire. When Tapley saw Stanfield's unmarked cruiser behind him, he turned his music down. Stanfield then stopped Tapley, explaining to him that the stop was for loud music. The two also discussed Tapley's excessive speed.

Soon after, Officers Sikora, Chambers, and Heinlein arrived. Chambers told Tapley to get out of the truck. The parties disagree about what happened next.

Tapley claims that he responded to Chambers by saying, “Well, yes, I can get out of my truck, but why am I getting out of my truck?” (R. 16–1 at 16.) When Chambers explained that the officers had a K9 unit and that they wanted to do a free-air sniff around the truck, Tapley replied, “I understand that, but why are you doing a free air search?” (Id .) To that, Chambers replied, “This is what we do,” and told Sikora to “[g]et him.” (Id .) Sikora opened the passenger-side door and placed a Taser on Tapley's temple. Tapley then jumped out of the car with his hands up.

The officers' version of the story is a little bit different. According to them, when Chambers asked Tapley to exit the vehicle, Tapley responded, “[F]uck that.”(R. 16–2 at 28); (R. 16–5 at 48). And when Chambers repeated his request, Tapley “just sat there,” talking on his cell phone. (R. 16–2 at 28.) Chambers then opened the driver-side door and grabbed Tapley's arm, which Tapley pulled away.³ Only then did Sikora tell Tapley that, “if [Tapley] didn't get out, he'd get tased.” (R. 16–4 at 19.) The officers deny ever pointing a Taser at Tapley.

The officers arrested Tapley for obstruction of justice and resisting arrest. Stanfield performed a search incident to arrest on Tapley while the other officers searched the truck.⁴ The government tried Tapley for obstruction, and a jury acquitted him.

II. ANALYSIS

We first explain why we decline to review the merits of the 2012 case. We then turn to the merits of the 2015 case.

A. Tapley's, Hosea's, and Pugh's Appeal of the 2012 Case

Plaintiffs Tapley, Hosea, and Pugh⁵ seek to appeal the district court's 2012 judgment dismissing Tapley's malicious-prosecution claim and Hosea's and Pugh's Fourth Amendment claim on summary judgment. Plaintiffs did not directly appeal the 2012 case; instead, they seek to bootstrap that case onto Tapley's appeal of the 2015 case, claiming that Tapley's appeal was sufficient to appeal both cases. The defendants disagree and contest our jurisdiction to review the 2012 case. We need not decide whether Tapley's appeal of the 2015 case also gives us jurisdiction over the 2012 case. We instead dismiss the appeal of the 2012 case for the simple reason that we have no record to review it.

The Federal Rules of Appellate Procedure require an appellant who is challenging a district court's finding or conclusion as unsupported by the evidence to “include in the record a transcript of all evidence relevant to that finding or conclusion.” Fed. R. App. P. 10(b)(2)

. It is apparent from the record—or, more aptly, the lack thereof—that plaintiffs have not satisfied this requirement. Our review of the appellate docket confirms that we do not have the 2012 record. Plaintiffs conceded as much in both their briefing and at oral argument. Even so, they ask us to review the district court's dismissal of their claims without the 2012 record. They do not explain how we can do that without access to the evidence contained in that record.

True enough, plaintiffs did include some documents from the 2012 case in the appendix, including the second amended complaint and the district court's order on summary judgment.⁶ Even if we were to consider these documents, they would not help us. Although the district court's order summarizes the type of evidence presented, we cannot evaluate whether the court properly granted summary judgment without copies of the exhibits supporting the parties' summary-judgment briefing and the transcripts from oral argument. See Stookey v. Teller Training Distribs., Inc. , 9 F.3d 631, 635 (7th Cir. 1993)

.

Under these circumstances, we have two options. First, we can order plaintiffs to provide the 2012 record. Fed. R. App. P. 10(e)

; LaFollette v. Savage , 63 F.3d 540, 545 (7th Cir. 1995). Or second, we can dismiss the appeal. Fed. R. App. P. 3(a)(2) ; Stookey , 9 F.3d at 635 (7th Cir. 1993). We choose the latter option.

Dismissal is appropriate when a deficient record precludes meaningful appellate review. LaFollette , 63 F.3d at 544

; Stookey , 9 F.3d at 635–36. Dismissal is especially appropriate when, as here, plaintiffs have had ample opportunity to correct this deficiency but have failed to do so. LaFollette , 63 F.3d at 545 ; RK Co. v. See , 622 F.3d 846, 853 (7th Cir. 2010). Ind...