Opinion
IP02-C-0623-T/K
May 7, 2003
B. John and O. Moss III, Moss Moss LLP, Indianapolis, IN.
Paul T. Belch, Assistant Corporation Counsel, Indianapolis, IN.
ENTRY ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This case arises out of a tragic incident in which a police cruiser driven by Deputy Jason Arney rear-ended Melissa Dunnam's car, causing a fire which resulted in the death of her minor child Cody Michael Dunnam. The Defendants move for summary judgment on all claims as to Defendants City of Indianapolis and Mayor Bart Peterson for lack of allegations of wrongdoing on their part. The Defendants also move for partial summary judgment on Counts VI and VII, which assert § 1983 claims based upon infringement of the Plaintiffs' Fourteenth Amendment due process rights. The court has reviewed the arguments and factual submissions of the parties, and now rules as follows.
I. Background Facts
The facts relative to this motion are relatively simple and uncontested. Jason Arney was employed as a reserve deputy with the Marion County Sheriff's Department. On August 12, 2001, he was assigned by the Sheriff's Department to provide traffic control for a charity event. (Statement of Material Fact ("SMF") 4.) Like other police cruisers, his cruiser was equipped with a laptop computer, also called a mobile display terminal ("MDT"). (SMF 6.) The MDTs allow officers to communicate with police dispatchers and other officers in the field, run license plate and driver's license checks, and find various locations with the aid of a mapping program. Deputy Arney received training on how to operate the MDT (Arney Dep. at 50), however, this did not include any direction on how to use the MDT while simultaneously driving the police cruiser. (Arney Dep. at 55.) Deputy Arney testified that Sergeant Atkinson, his trainer, would have known he was going to drive and operate the MDT at the same time (Arney Dep. at 57), and so may have "indirectly" instructed him to do so, (id.) but did not expressly say anything on the subject. Nor did any of Deputy Arney's prior police training include instruction on simultaneously operating the MDT and police cruiser or, alternatively, an admonishment not to compute while driving. (Arney Dep. at 64-66.)
On the same day that Deputy Arney was heading to the charity event, Plaintiff Melissa Dunnam was driving southeast on Southeastern Avenue with passengers Christopher Stevens and her minor son, Cody Michael Dunnam. Her vehicle was stopped at Southeastern and Temporance avenues. Deputy Arney was behind her, operating his MDT, when he looked up, saw her vehicle, applied his breaks and tried to swerve to avoid it, but collided into the rear of Ms. Dunnam's car. (Arney Dep. at 85-86.) The Dunnam vehicle caught fire shortly after impact, in which Cody Michael Dunnam was killed and Melissa Dunnam and Christopher Stephens were injured. (SMF 9.)
The Plaintiffs' complaint combines state law claims for negligence and emotional distress with two § 1983 claims against the municipal defendants responsible for the policy, practice or custom of requiring (or permitting) officers to operate MDTs while driving police cruisers and the failure to train them in this usage.
II. Summary Judgment Standard
The court must grant summary judgment if there is "no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The standard for summary judgment is the same as that of a directed verdict, that is, summary judgment is warranted where no rational jury or other trier of fact could render a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Colosi v. Electri-Flex Co., 965 F.2d 500, 504 (7th Cir. 1992). A "metaphysical doubt" regarding the existence of a material fact will not defeat a motion for summary judgment, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 474 U.S. 574, 587 (1986). Moreover, the moving party need not positively disprove the nonmovant's case, but may prevail by "pointing out to the district court" a lack of supporting evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The court's review of the record "requires that [it] construe all inferences in favor of the party against whom the motion under consideration is made." Metropolitan Life Ins. Co. v. Johnson, 297 F.3d 558, 561-62 (7th Cir. 2002) (citation omitted). In its consideration of the Defendants' motion, therefore, the court will draw all reasonable inferences in favor of the Plaintiffs.
III. Discussion
The Plaintiffs maintain that the Defendants' policies violated their substantive due process rights under the Fourteenth Amendment. "The touchstone of due process is protection of the individual against the arbitrary action of government." County of Sacramento v. Lewis, 532 U.S. 833, 845 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974). The Supreme Court has interpreted the Due Process Clause as "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1998). Thus, the Plaintiffs' claim is that the Defendants' policy, custom or practice of sanctioning the operation of an MDT by the driver of a police cruiser, or at least failing to provide the appropriate training, posed such a serious threat of harm to persons in the Plaintiffs' position that it abridged their due process protections regardless of any procedural steps that could have been taken prior to the implementation of the policy.
The Plaintiffs' complaint raises a number of questions: did the collision in fact work a constitutional deprivation; if so, was Deputy Arney entitled to a qualified immunity defense, see Saucier v. Katz, 533 U.S. 194, 201 (2001) (qualified immunity is entitlement of government official not to stand trial except where clearly established constitutional rights have been violated); and as to the municipal defendants, was the constitutional injury attributable to a policy, practice or custom of the Marion County Sheriff's Department, see Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 416 (municipalities liable solely for deliberate acts or policies evincing a conscious disregard of obvious danger). Siegert v. Gilley, 500 U.S. 226, 232 (1991) holds that a district court must first address whether there has been a deprivation of a constitutional right at all before determining whether that right was clearly established at the relevant time. The existence of a cognizable deprivation inflicted by the official in question is also a prerequisite to a finding of municipal liability. See Tesch v. County of Green Lake, 157 F.3d 465, 477 (7th Cir. 1998) ("A failure to train theory or a failure to institute a municipal policy theory requires a finding that the individual officers are liable on the underlying substantive claim.") The court thus begins, and, as it turns out, ends its inquiry with that issue.
In County of Sacramento v. Lewis the Supreme Court endorsed the "shocks the conscience" test as the proper framework for evaluating claims of executive abuse under the Due Process Clause. See Lewis, 523 U.S. at 846 (citing Rochin v. California, 342 U.S. 165 (1952)). The critical issue is what level of culpability shocks the conscience. It is clear that executive-branch negligence is not enough. "[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process." Id. at 849 (citing Daniels, 474 U.S. at 328). The rejection of the negligence standard is necessary to prevent the Fourteenth Amendment from becoming, in the words of the Court, "a font of tort law to be superimposed upon whatever systems may already be administered by the States." Id. at 848 (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)). See also Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996) (noting the illustration given in Parratt v. Taylor, 451 U.S. 527, 544 (1981), of governmental liability for a car crash with a state official as "a paradigm of the absurdity which could result from an overly broad interpretation of § 1983.")
Just how much more than negligent conduct by an executive official is necessary to trigger liability, and specifically whether "less than intentional conduct, such as recklessness or gross-negligence," Lewis, 532 U.S. at 849, is actionable under the Fourteenth Amendment is still an open issue. Based on the holding of City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983), that the due process rights of pretrial detainees were as great as those of convicted prisoners under the Eighth Amendment, the Court in Lewis intimated that the Eighth Amendment "deliberate indifference" standard would also apply to Fourteenth Amendment claims where government officials have the luxury of deliberation, as in the custodial context. "As the very term `deliberate indifference' implies, the standard is sensibly employed only when actual deliberation is practical." Lewis, 523 U.S. at 851. Conversely, in situations where there is no opportunity for forethought such as the high speed police chase in Lewis intentional harm alone could be said to shock the conscience.
The court believes that the deliberate indifference standard of fault is appropriate to this case. While Deputy Arney had no window for deliberation at the time of the accident, if the temporal frame is expanded, he did have opportunities for reflection on whether using the MDT and driving the police cruiser at the same time was a prudent or safe course of action, just as the Marion County Sheriff's Department had time to weigh the costs and benefits of failing to train officers in the simultaneous operation of MDTs and police cruisers, or tacitly permitting this practice in the first place.
But even under that more lenient standard, the Plaintiffs have failed to create an issue of fact as to whether the Defendants' conduct rose to the level of deliberate indifference. The Seventh Circuit has defined "deliberate indifference" as "conscious disregard of known or obvious dangers." Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998). The application of that standard here is straightforward. The Plaintiffs have submitted no evidence to show that either Deputy Arney or the Marion County Sheriff's Department had knowledge of a history of traffic accidents caused by police officers distracted by their MDTs; nor is the inevitability of such accidents so clear that the failure to take steps to prevent them exhibits conscious disregard of an obvious danger. That is not to say that the hazards of traffic accidents precipitated by police use of MDTs while driving is wholly unforeseeable. And it may well be that the frequency and severity of these accidents more than outweigh any efficiency gains from allowing this use. At most, however, Deputy Arney's operation of the MDT while driving, like the Department's tacit approval of this practice or its failure to provide the proper safety training, amount to ordinary negligence on their part against which there are no constitutional guarantees. "The fact that a public official committed a common law tort with tragic results fails to rise to the level of a violation of substantive due process." Hill, 93 F.3d at 421 (citations omitted).
There is some question in the cases as to whether the "deliberate indifference" standard replicates in different words the standards of civil recklessness or criminal recklessness. In Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996), the court declared that "deliberate indifference" is the same as criminal recklessness, and is, therefore, a "subjective" test in that "a plaintiff must demonstrate that the defendant had actual knowledge of impending harm which he consciously refused to prevent." The court in that case thus dismissed a complaint based on a police officer's running of a red light, resulting in the death of the victim, for failure to state a claim, as the plaintiff alleged merely civil, and not criminal, recklessness. More recently, in West v. Waymire, 114 F.3d 646, 651 (7th Cir. 1997), the Seventh Circuit construed the Supreme Court formula in Board of County Commissioners v. Brown of "conscious disregard of known or obvious dangers," (emphasis in original) as implying the objective tort standard of liability. The court notes that Board of County Commissioners concerned the appropriate standard for attributing liability to a municipality, not the distinct question of the standard of fault necessary to work a constitutional deprivation at all. Nonetheless, the Supreme Court does seem to use the two phrases interchangeably, see Bd. of County Comm'rs, 520 U.S. at 414 n. 1 ("deliberate indifference that is, conscious disregard for the known and obvious consequences of his actions."), and the Seventh Circuit has defined the former concept by the latter, see Armstrong, 152 F.3d at 777. Thus, the court will treat the deliberate indifference standard as another name for civil recklessness, so as not to require actual knowledge of imminent harm.
Although it is also conceivable that in emergency situations use of the MDT while driving, for instance, to provide directions to a location, would be more than justified.
The Plaintiffs must instead look to state tort law for the relief they seek.
As the Plaintiffs have not raised a triable issue of fact with regard to the existence of a constitutional deprivation, the court has no occasion to consider the qualified immunity or municipal liability issues.
The Plaintiffs offer no argument in response to the Defendants' claims of the unavailability of an implied right of action under the Indiana Constitution, and nothing has changed to alter this court's earlier opinion in Pearson v. Indiana High School Athletic Association, 1999 WL 33117389, No. IP 99-1857-C-T/G, at *4, 5 (S.D.Ind. Feb. 8, 2000), that Indiana courts would not recognize such a right. Nor do the Plaintiffs respond to the Defendants' assertion that the City of Indianapolis and Mayor Bart Peterson are improper defendants as they bear no legal relationship to the Marion County Sheriff's Department. The Defendants' contention is correct, as the Marion County Sheriff's Department is a separate legal entity from the City of Indianapolis, and the Plaintiffs have alleged no wrong-doing on the part of the latter.
The Plaintiffs' remaining claims all involve questions of state law over which this court in its discretion declines to exercise supplemental jurisdiction. See 28 U.S.C. § 1367 (district court may decline jurisdiction where it "has dismissed all claims over which it had original jurisdiction.")
IV. Conclusion
For the foregoing reasons, the Defendants' motion for partial summary judgment on Counts VI and VII of the Plaintiffs' Third Amended Complaint is GRANTED. With respect to Defendants City of Indianapolis and Bart Peterson as Mayor, summary judgment is GRANTED on all counts.
This case contains multiple claims for relief, only some of which are disposed of by this ruling. The federal claims (Counts VI and VII) are founded on different theories than the state law claims and are separate and distinct from them. Therefore, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the court determines that there is no just reason to delay entry of judgment on the federal claims and on all claims as to the City of Indianapolis and Mayor Bart Peterson. A final judgment on these claims should not await disposition of the state law claims against the other Defendants. The court directs the Clerk to enter judgment in favor of the Defendants on the claims indicated herein and will order remand of the remaining state law claims.
ALL OF WHICH IS ORDERED.