Wolf v. Napier

• Decision Date: 08 January 1990
• Docket Number: Civ. No. L 86-81.
• Parties: Richard A. WOLF, Plaintiff, v. James NAPIER, Tippecanoe County Indiana Sheriff's (Police) Department, Defendants.
• Court: U.S. District Court — Northern District of Indiana

742 F. Supp. 1014

Richard A. WOLF, Plaintiff, v. James NAPIER, Tippecanoe County Indiana Sheriff's (Police) Department, Defendants.

Civ. No. L 86-81.

United States District Court, N.D. Indiana, Hammond Division at Lafayette.

January 8, 1990.

COPYRIGHT MATERIAL OMITTED

Frank W. Hogan, Indianapolis, Ind., for plaintiff.

James A. Gothard, Lafayette, Ind., for defendants.

MEMORANDUM OPINION AND ORDER

ALLEN SHARP, Chief Judge.

I.

On June 19, 1989, defendants Richard Murphy and the City of Lafayette, Indiana, were dismissed. Thus, the amended complaint remains pending as to the defendant, James Napier, and the Tippecanoe County Indiana Sheriff's Department. (There is a serious question as to whether the suit against Tippecanoe County, Indiana, has been brought in precisely the correct posture in this lawyer-drawn amended complaint. However, because the issue is not directly confronted, this court will assume that Tippecanoe County, Indiana, has appropriately been brought into this case as a defendant). On December 20, 1985, plaintiff's counsel moved to publish the depositions of Richard A. Wolf and Richard L. Murphy. Transcripts of those depositions along with that of the defendant, James Napier, have been examined and considered on this motion for summary judgment.¹ What remains to be decided in this case is a motion for summary judgment filed by the remaining defendants on November 7, 1989, to which the plaintiff responded on December 20, 1989.

II.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Rule 56 of the Federal Rules of Civil Procedure (Fed.R.Civ.P.); accord Arkwright-Boston Mfrs. Mut. Ins. Co. v. Wausau Paper Mills Co., 818 F.2d 591, 593 (7th Cir.1987). A material question of fact is a question which will be outcome-determinative of an issue in that case. Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir. 1984).

Recently, the Supreme Court of the United States took the opportunity to address Rule 56. In two cases decided on the same day, the Court expanded the scope of the application of Rule 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Celotex addressed the initial burdens of the parties under Rule 56, and Anderson addressed the standards under which the record is to be analyzed within the structure of Rule 56.

After Celotex, it is clear that a non-moving party may not rest on its pleadings to avoid summary judgment. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553. See also Catrett v. Johns-Manville Sales Corp., 826 F.2d 33 (D.C.Cir.1987), cert. denied, 484 U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988). The initial burden is on the moving party to demonstrate "with or without supporting affidavits" the absence of a genuine issue of material fact, and that judgment as a matter of law should be granted in the moving party's favor. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552, quoting Fed.R.Civ.P. 56. Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and "designate `specific facts showing that there is a genuine material issue for trial.'" Id. at 324, 106 S.Ct. at 2553. Furthermore, in Anderson, the Court held that what facts are material in a specific case shall be determined by the substantive law controlling that case or issue. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. In addition, the Court went on to interpret Rule 56 as requiring that the courts analyze summary judgment motions utilizing the standard of proof relevant to that case or issue. Id. at 254-55, 106 S.Ct. at 2513. For recent academic insight into Celotex and Anderson, see Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183 (1987). The article states:

The recent Supreme Court cases likely require that summary judgment be more readily granted.... This emerging trend signals a new era for summary judgments, one in which the old presumptions are giving way to a policy of balancing and efficiency, and the mechanism is more appropriate to double as a sufficiency motion — allowing some sort of trial itself on the paper record.

Id. at 194. For the judicial epilogue of Celotex, see Catrett v. Johns-Manville Sales Corp., 826 F.2d 33. A recent object lesson applying these ideas is found in Richardson v. Penfold, 839 F.2d 392 (7th Cir.1988). See also Jamison-Bey v. Thieret, 867 F.2d 1046 (7th Cir.1989). For an exact and recent analysis on this subject, see Friedenthal, Cases on Summary Judgment: Has There Been a Material Change in Standards?, 63 Notre Dame L.Rev. 770 (1988).

It is not disputed that the defendant James Napier is a Deputy Sheriff employed by Tippecanoe County, Indiana. He is also a participant in the Arson Task Force, which is an arson investigation team drawn from local law enforcement and fire fighting agencies, and appointed by the prosecuting attorney for Tippecanoe County, Indiana. The principal function of the plaintiff as a member of the Arson Task Force was to conduct interviews where arson was suspected, and to assist in the physical investigation of fires. Apparently, there are no written policies or practices regarding the duties of the Arson Task Force from the prosecuting attorney for Tippecanoe County, Indiana, or from any other source.

It is also undisputed that on October 25, 1982, there was a fire at the home of the plaintiff, Richard A. Wolf, which is located in Tippecanoe County, Indiana. As a result of that fire, damage was sustained to his residence and personal property. Among the items which were reported as lost in the fire were two Remington shotguns, a half case of shotgun ammunition, and an AR-15 rifle. There is a considerable amount of information in the record with reference to the claimed losses of the aforesaid firearms and ammunition.

The defendant and other members of the Arson Task Force were physically present at the scene of the fire on October 25, 1982, and returned to that scene for several days thereafter. The focus of the investigation centered on the inception site of the fire. During the three days immediately following October 25, 1982, the plaintiff met with other members of the Arson Task Force to discuss possible theories for the cause of the fire. Such meetings were standard practice following the completion of the physical investigation of a fire.

The defendant as a member of this Arson Task Force concluded that this was a "set fire" and ruled out the possibility of accidental cause. The defendant based his determination upon a finding that the fire had two points of origin within the house. Apparently, this conclusion was agreed to by other investigating members of the Arson Task Force. Several physical documents were created as a result of this investigation. The last of these, and the most important, was an Affidavit of Probable Cause dated September 21, 1983, which the court will refer to at a later time. There were also Supplementary House Fire Reports dated October 25 and October 28, 1982.

Chief Pendleton of Wea Township Fire Department apparently had suggested an alternative explanation for the two points of origin. It appears that this defendant examined Chief Pendleton's explanation and rejected it. The defendant submitted his final report to the office of the prosecuting attorney for Tippecanoe County, Indiana. That report did not single out any individual as responsible for setting the fire.

Three days after the fire on October 28, 1982, the defendant contacted Tom Watrous, who is an adjuster for Cincinnati Insurance Company, the insurance carrier on the residence. The defendant informed Mr. Watrous that it was his determination that this fire was a "set fire." It appears that it was standard operating procedure for the Arson Task Force investigators to contact the adjuster of the insurance company and inform him of the status of any pending investigation. On or about December 3, 1982, the plaintiff's claim for loss was paid by the Cincinnati Insurance Company.

Early in the year 1983, the defendant participated in a grand jury sitting in Tippecanoe County, Indiana, which was investigating this fire. Tom Watrous testified before that grand jury that the Remington shotguns, the AR-15, and the half case of ammunition were included in the plaintiff's insurance claim. On January 19, 1983, the grand jury issued three indictments naming the plaintiff, Richard A. Wolf, as a defendant. Two counts of that indictment charged arson, and one count charged perjury, both under the criminal law of the State of Indiana. The perjury indictment concerned the plaintiff's alleged false reporting of the loss of the guns and ammunition.

The criminal charges went through the normal procedures in the Tippecanoe Circuit Court in Lafayette, Indiana, under their Cause No. C-4887. On January 28, 1983, this plaintiff as a defendant in the aforesaid criminal proceedings filed in the Tippecanoe Circuit Court a motion to dismiss, which among other things argued that the grand jury's indictment was without probable cause. Judge Warren B. Thompson of the Tippecanoe Circuit Court denied that motion on June 8, 1983.

At a later time, September 23, 1983, at the instance of the prosecutor serving Tippecanoe County, Indiana, an Affidavit of Probable Cause was prepared by that prosecutor's office and signed by this defendant which accompanied a criminal information of theft relating to the insurance proceeds, and an information of perjury filed against this plaintiff in the Tippecanoe Circuit Court. For immediate reference, the Affidavit of Probable Cause is attached hereto, marked "Appendix A", and by reference incorporated herein. This...