Townsend v. Wilson, CAUSE NO. 1:13-cv-315-SLC

• Decision Date: 10 August 2015
• Docket Number: CAUSE NO. 1:13-cv-315-SLC
• Parties: EDDIE TOWNSEND, Plaintiff, v. M. WILSON, Fort Wayne Police Department Officer, in his individual capacity, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

EDDIE TOWNSEND, Plaintiff,
v.
M. WILSON, Fort Wayne Police Department Officer,
in his individual capacity, et al., Defendants.

CAUSE NO. 1:13-cv-315-SLC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

August 10, 2015

OPINION AND ORDER

Pro se Plaintiff Eddie Townsend is suing Defendants Fort Wayne Police Officers Matthew Wilson, Richard Page, Miguel Rivera, and Brian Juricak under 42 U.S.C. § 1983 and Indiana law, claiming they arrested him without probable cause for operating a vehicle while intoxicated and then maliciously prosecuted him.¹ Townsend also names as a Defendant the Officers' employer, the City of Fort Wayne, under a respondeat superior theory.

Now before the Court is Defendants' fully-briefed motion for summary judgment, asserting that all of Townsend's claims fail as a matter of law. (DE 36; DE 37; DE 39; DE 40; DE 44). For the following reasons, Defendants' motion will be GRANTED.

I. FACTUAL BACKGROUND

Many of the basic facts in this case are undisputed. Townsend does, however, contest a few aspects of Defendants' version of events, even though he does not highlight any basis in the record for the dispute. Indeed, the only item of evidentiary quality Townsend submits is the transcript of a state court judicial review hearing (essentially the testimony of Officer Page) held

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to determine whether Townsend had refused to take a chemical breath test. Nevertheless, what Townsend truly disputes is apparent from his deposition testimony, offered in full by the Defendants, so that void is filled. Accordingly, the following recitation of the factual background is drafted in a light most favorable to Townsend, the non-moving party, specifically noting his version of events.²

On August 31, 2012, at approximately 8:05 p.m., Officer Wilson responded to a traffic accident at South Anthony Boulevard and Oxford Street. (DE 37-2 Dep. 6-8; DE 28 ¶¶ 5-6; DE 37-1 ¶ 3). At the scene of the accident, two witnesses, Joshua Skinner and Samuel Phenicie, advised Officer Wilson that Townsend had passed their respective vehicles at a high rate of speed, disregarded a traffic signal, and then collided with a vehicle driven by Benjamin Johnston.³ (DE 37-2 Dep. 23-24; DE 28 ¶¶ 8-11; DE 37-1 ¶¶ 5, 6). Johnston stated to Officer Wilson: "[Y]ou might want to check on the other driver (Townsend), he might be intoxicated." (DE 28 ¶ 12; see also DE 37-1 ¶ 9).

Officer Wilson then focused on Townsend and claims that he noticed Townsend's eyes were red, there was a moderate odor of alcohol about him, and his speech was slurred. (DE 37-1 ¶ 12). Officer Wilson also thought that Townsend was uncooperative and difficult. (DE 37-1 ¶¶ 5, 8, 10-11, 14). For this reason, he asked dispatch to send another officer; soon Detective Rivera and Officer Juricak arrived at the scene. (DE 37-1 ¶¶ 16, 17, 21).

Townsend, however, denies that he had consumed alcohol prior to the accident or that he

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smelled like alcohol, was swaying or had difficulty walking, had slurred or mumbling speech, was angry or argumentative at the scene, or that his eyes showed any indicia of intoxication. (DE 37-2 Dep. 13-14, 24-27). In fact, Townsend claims that Officer Wilson fabricated everything about Townsend's condition when he filled out the eventual Affidavit for Probable Cause. (DE 37-2 Dep. 27; DE 37-1 Aff. Ex. 1). Nevertheless, Townsend concedes that he consented to a portable breath test ("PBT") at the scene, but only after Officer Wilson informed him that he would be taken to the Allen County Jail if he refused. (DE 37-2 Dep. 15; DE 28 ¶ 14; DE 37-1 ¶¶ 18-20; DE 37-3 ¶ 5). The PBT breath sample was a very poor one, but it still showed Townsend had a blood alcohol content of .12. (DE 37-2 Dep. 16; DE 28 ¶ 14; DE 37-1 ¶¶ 19-20; DE 37-1 Aff. Ex. 2; DE 37-3 ¶ 6).

Officer Wilson then had Detective Rivera and Officer Juricak assist him in placing Townsend in handcuffs and in the patrol car, which occurred without incident.⁴ (DE 37-2 Dep. 17-18; DE 28 ¶ 15; DE 37-1 ¶ 21; DE 37-3 ¶ 7). When Townsend asked if he was under arrest, Officer Wilson advised him that he was being detained and transported to the Allen County Jail for a certified breath test. (DE 37-1 ¶ 23). Officer Wilson then transported Townsend to the Jail, and Officer Juricak followed in a separate vehicle.⁵ (DE 37-2 Dep. 17-18; DE 28 ¶ 15; DE 37-1 ¶ 25; DE 37-4 ¶ 6). The trip was uneventful. (DE 37-2 Dep. 18).

Once at the Jail, Officer Page, in the presence of Officer Wilson, administered a field sobriety test to Townsend during the 20-minute wait to administer the chemical breath test. (DE

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37-2 Dep. 18-19; DE 37-5 ¶¶ 6-9, 13; DE 37-1 ¶¶ 26-33). Townsend failed the horizontal gaze nystagmus ("HGN") test, but passed the one-leg stand and the nine-step walk and turn tests, although he missed the heel-to-toe steps on steps 3 through 6. (DE 37-5 ¶¶ 7-11; DE 37-1 ¶¶ 27-28). Townsend complained throughout these tests and needed instructions repeated several times. (DE 37-5 ¶¶ 9, 11; DE 37-1 ¶ 29).

While waiting to administer the chemical breath test, Officer Page repeatedly told Townsend to keep his hands away from his face to ensure that he put nothing in his mouth. (DE 37-5 ¶¶ 12, 22). When this admonishment had no effect, Officer Page handcuffed Townsend to keep him from doing so. (DE 37-5 ¶ 12).

After the 20-minute wait, Officer Page, with Officer Wilson present, removed Townsend's handcuffs to administer a chemical breath test. (DE 37-2 Dep. 19; DE 28 ¶ 16; DE 37-5 ¶¶ 13-27; DE 37-1 ¶ 31). As the test machine was being prepared, Townsend asked whether he was going to have to wait another 20 minutes, to which Officer Page told him "no." (DE 37-5 ¶ 13). Townsend then asked Officer Page whether the machine was faulty, but apparently he received no response. (DE 37-5 ¶ 15).

Although Officer Page repeated the instructions on what Townsend was to do—specifically, to blow into the plastic tube—the results of Townsend's first attempt showed an "invalid" subject sample. (DE 37-2 Dep. 19-20; DE 28 ¶ 17; DE 37-5 ¶¶ 18-19; DE 37-1 ¶ 32). Officer Page told Townsend he was not blowing hard enough to get a valid reading. (DE 37-2 Dep. 20; DE 37-5 ¶ 20; DE 37-1 ¶ 32). Officer Page decided to give Townsend another opportunity and reset the machine. (DE 37-2 Dep. 20-21; DE 28 ¶ 18; DE 37-5 ¶¶ 20-23).

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Townsend complained that he had asthma and could not blow any harder,⁶ that he did not like waiting, and that the procedure was "crazy." (DE 37-2 Dep. 20; DE 37-5 ¶¶ 21-23; DE 37-1 ¶ 33). After six minutes passed, Officer Page repeated the test but received an "incomplete" sample. (DE 37-2 Dep. 20-21; DE 28 ¶ 18; DE 37-5 ¶¶ 24-25). Even without the chemical breath test result, however, both Officers Wilson and Page concluded that Townsend was intoxicated based on their observations of him. (DE 37-1 ¶ 34; DE 37-5 ¶ 30).

Officer Wilson then completed an Affidavit for Probable Cause reporting that during the two hours he had observed Townsend, he noted that Townsend exhibited some classic signs of intoxication. (DE 37-1 ¶ 38; DE 37-1 Aff. Ex. 1). These included: (1) he needed support or assistance when walking and was swaying; (2) he had red eyes, but normal pupils; (3) he was mumbling and had slurred speech; (4) a moderate odor of alcohol on his breath; and (5) he was argumentative and angry. (DE 37-1 ¶ 38; DE 37-1 Aff. Ex. 1). Officer Wilson also documented that Townsend's clothing was orderly, his finger dexterity was apparently normal, and no alcohol or drugs were found. (DE 37-1 ¶ 38; DE 37-1 Aff. Ex. 1). Townsend disputes all of these observations, referring to them at his deposition as a "falsification" or "fabrication." (DE 37-2 Dep. 24-27).

A few days later, on September 4, 2012, a Judge of the Allen Superior Court, apparently after reviewing Officer Wilson's Affidavit of Probable Cause, found probable cause to believe that Townsend violated Indiana Code § 9-30-5-2(b), operating a vehicle while intoxicated ("OWI"). (DE 37-1 Aff. Ex. 1; DE 37-2 Dep. Ex. A; DE 37-6 at 1). Seven months later, on April 9, 2013, the Allen County Prosecutor dismissed the OWI charge and instead charged

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Townsend with reckless driving, Indiana Code § 9-21-8-52(a)(1). (DE 37-6 at 4; DE 37-7). But on July 16, 2013, the reckless driving charge was dismissed in conjunction with Townsend admitting that he violated Indiana Code §§ 9-21-3-7, disregarding a lighted signal, and 9-25-8-2(a)(1), operating a motor vehicle without financial responsibility. (DE 37-6 at 6). Neither Officer Wilson nor Page had any involvement with Townsend or his subsequent prosecution after his arrest and the initiation of the charges on September 4, 2012. (DE 37-1 ¶ 43; DE 37-5 ¶ 31).

On September 25, 2013, more than a year after his arrest and the finding of probable cause, Townsend filed a Notice of Claim under the Indiana Tort Claim Act ("ITCA"), Ind. Code § 34-13-3-1 et seq., asserting that he had been charged with OWI and disregarding a traffic signal based on an improper field sobriety test and an invalid chemical breath test. (DE 37-2 Dep. Ex. B). Townsend further asserted in his Notice that his OWI count was dismissed on April 9, 2013, and that he was subsequently charged with reckless driving, a charge that was later dismissed. (DE 37-2 Dep. Ex. B).

Also on September 25, 2013, Townsend filed a ...