Opinion
No. 2:00cv0401 AS
July 19, 2002
MEMORANDUM AND ORDER
This matter is before the court on the Defendants', City of East Chicago, James Dawson, Frank Alcala, and Kevin Pastrick, motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The above entitled complaint and the allegations contained therein stem from two separate incidents involving various officials of the City of East Chicago.
The first incident involves the Plaintiff John Luellen. The second incident involves the Plaintiffs Randy Crawford and Christopher French. Apparently, the tie that binds these two separate incidents is that the alleged constitutional violations were committed by the various officials of the City of East Chicago ("City"). Therefore, in order to more clearly understand the respective claims of the plaintiffs the court will attempt to address these incidents separately. Coincidently, the federal claims alleged by these plaintiffs are similar. They allege that the respective defendants violated their First and Fourth Amendment constitutional rights. Furthermore, Luellen contends that his Fourteenth Amendment rights were violated as well.
The Plaintiffs Earlean Johnson and Charles Smith have been dismissed from the case. Additionally, Robert Pastrick in his individual capacity has been dismissed from the case.
The plaintiffs have gone to great length in describing and outlining the political affiliations and alliances of the various parties and nonparties in this case. It goes without saying that the City of East Chicago is a highly politicized community, which has resulted in numerous lawsuits over the years. That being said, the plaintiffs cannot survive a motion for summary judgment on their First Amendment claims solely on an allegation that a particular defendant belonged to a different political group than the plaintiff. Nelms v. Modisett, 153 F.3d 815, 820 (7th Cir. 1998). Rather, there must be evidence indicating that a particular defendant took a course of action and was motivated to take that course of action based upon the plaintiff's political affiliation. As discussed below, counsel for the plaintiffs fails to demonstrate in many instances that the responsible party for taken the alleged illegal acts had any knowledge of the plaintiffs' political affiliation. More importantly, counsel for the plaintiff has failed to come forward with evidence in all instances that the motivation for the alleged unconstitutional acts was the result of some animus toward the plaintiffs because of their political affiliation.
I. JURISDICTION
The plaintiffs have asserted various claims under 42 U.S.C. § 1983, which this court has jurisdiction to hear pursuant to 28 U.S.C. § 1331 and 1343. Additionally, the plaintiffs have alleged various state law claims which this court has discretion to entertain pursuant to 28 U.S.C. § 1367(a) (c). However, once all federal claims asserted against a particular defendant are removed from a case; the associated state law claim may be dismissed. United Mineworkers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); See also Wiers v. Barnes, 925 F. Supp. 1079, 1089. (D.Del. 1996). In the various submissions to this court neither the defendants nor the plaintiffs have addressed these particular state law claims in detail and whether judicial economy or convenience favors retaining these claims if all of the federal claims against a particular defendant are dismissed. Moreover, the parties, especially the various defendants, appear to have simply neglected to address these particular claims in their original motions for summary judgment. Therefore, in light of these considerations, if all the federal claims of a particular defendant are dismissed, the court will dismiss those particular state law claims associated with that particular defendant pursuant to Section 1367(c).
II. FACTUAL BACKGROUND
A. John Luellen
In April of 1999, John Luellen was the chief inspector for the East Chicago Fire Department ("ECFD"). Luellen was also involved in Lake County Democratic politics. In fact, he supported Stephen Stiglich in his campaign for the Democratic nomination for mayor of the City of East Chicago during the spring of 1999. Luellen contends that his support of Stiglich put him at odds with various officials with the City, including the Fire Chief for the City of East Chicago, James Dawson.
Luellen had been assigned a city vehicle in conjunction with his duties as chief inspector. It is undisputed that on the night of April 17, 1999 various law enforcement officers searched Luellen's city-owned vehicle pursuant to a tip from a confidential informant that Luellen was in possession of a number of absentee ballots. On that particular evening Luellen had dropped his girlfriend, Yvette Millender, off at a house party at 3814 Drummond in East Chicago. At this particular house party there were numerous supporters of Stiglich, however, Luellen was not among those that stayed for the party. Rather, he proceeded on to visit with friends at another location. Later, Luellen did reappear at the location of the political party and stayed for approximately fifteen to thirty minutes. (Luellen Dep. pp. 14). However, Luellen maintains that the political party was over by the time he returned to 3814 Drummond.
Sometime later, Lieutenant Chavarria of the East Chicago Police Department received an anonymous tip that Luellen was at a house party at 3814 Drummond Street and that he was collecting absentee ballots. (Chavarria Dep. pp. 26-28). The confidential informant (CI) had named and described Luellen, described his red, city-owned vehicle, and acknowledged that the ballots were placed into a specific colored bag in the trunk of the vehicle. (Ryan Dep. p. 77; Chavarria Dep. p. 38). Lt. Chavarria described this particular CI to be reliable in light of the fact that he had personally known the CI for twenty years and that the information supplied by this particular CI had yielded reliable information in the past. (Chavarria Dep. pp. 22-23). Lt. Chavarria then contacted East Chicago Police Department ("ECPD") Chief Frank Alcala and relayed the information to him. Chief Alcala then advised Lt. Chavarria to contact Tom Ryan, the ECPD's legal advisor. Ryan was advised by Lt. Chavarria of the circumstances surrounding the possible possession of absentee ballots by Luellen based upon the CI's observations. At this point Ryan believed that probable cause existed to search the vehicle under the mobile conveyance exception. (Ryan Dep. p. 75). However, Ryan also wanted Lt. Chavarria to ascertain whether the officers could obtain a key and search the vehicle from the ECFD.
The record is unclear as to how Luellen actually came into possession of the absentee ballots. Initially, Luellen stated that he had collected the ballots on the morning of Saturday, April 17, 1999, well before the party. (Luellen Dep. p. 45) Later, Luellen testified that statement was incorrect and that he received the ballots Saturday afternoon from a Warren Williams. (Id. at pp. 38-39, 45)
A call was then made to the ECFD to see if they could search the vehicle. In the interim, Lt. Chavarria dispatched several officers out for surveillance of the vehicle in question. Lt. Chavarria then relayed the information he had attained via the CI to Deputy Chief Vasquez and was told that Chief Dawson was out of town. Deputy Chief Vasquez advised Lt. Chavarria that he needed to speak with Assistant Chief Howard Vanselow who at that time was acting chief. Apparently, Chief Dawson was contacted and told of the circumstances surrounding Luellen's suspected involvement with the absentee ballots and then acquiesced in the search of the vehicle. (Dawson Dep. pp. 57-59).
Assistant Chief Vanselow agreed to help Lt. Chavarria after being apprized of the situation. Lt. Chavarria and Assistant Chief Vanselow then proceeded to Luellen's home. Upon their arrival both, Lt. Chavarria and Assistant Chief Vanselow, knocked on Luellen's door but got no immediate response. Eventually, Luellen appeared at a second floor window and Assistant Chief Vanselow shouted that they were going to look inside his trunk. Luellen responded that he did not want to come down and stated that he would be in touch with his lawyer. (Vanselow Dep. p. 31).
It is undisputed that Lt. Chavarria was in contact with Tom Ryan throughout the evening in question. Ryan believed that probable cause existed to search the vehicle without a warrant pursuant to the mobile conveyance exception. (Ryan Dep. p. 75). Ryan based this determination upon the specificity of the information provided by the CI. (Id. at p. 77). Lt. Chavarria and Assistant Chief Vanselow proceeded to open the trunk. They discovered a grayish bag inside the trunk containing ten absentee ballots. Luellen observed the opening of the vehicle's trunk from his window. Lt. Chavarria informed Luellen that the bag and its contents were being confiscated. Luellen responded that he would get in touch with his lawyer. The items were then taken to the police station, tagged as evidence and a report was issued. (Chavarria Dep. p. 50). The absentee ballots that were recovered belonged to various East Chicago residents. In addition several blank and completed applications for absentee ballots were recovered. This evidence was subsequently turned over to the Lake County Sheriff's Department for investigation.
On April 21, 1999, Luellen was suspended from the Fire Department in light of his possession of the absentee ballots. He was informed that an internal investigation would be conducted in light of the incident. Luellen was eventually reinstated on January 15, 2001. Luellen received his base pay during his suspension period, but was unable to collect any additional "on-call" pay. No criminal charges were filed against Luellen as a result of the possession of absentee ballots. Luellen's primary claim is that Chief Dawson authorized the inspection of his city-owned vehicle by the various law enforcement officers and that he was later suspended by Chief Dawson from his position because a number of absentee ballots were found in the trunk of the vehicle as a result of that search. Furthermore, Luellen contends that these actions were taken because of his political affiliation.
B. Randy Crawford and Christopher French
On May 3, 1999, the Democratic party in Lake County, Indiana was preparing for a primary election that was to occur the next day. Among the various candidates for office in this particular primary were Robert Pastrick, the current mayor of the City of East Chicago, and Stephen Stiglich. Stiglich and Pastrick were vying for the Democratic nomination for mayor of East Chicago. Another candidate in this particular primary was Judge Lonnie Randolph. Judge Randolph was seeking re-election as a city judge for the City of East Chicago.
The Lake County Election Board was responsible for the placement of voting machines at various voting locations throughout the county. One such voting location was a barber shop in East Chicago, Indiana. The Plaintiff Randy Crawford, an appointed election inspector, was assigned to set up the voting machines at that particular location.
Crawford's arrival met with questions by Will Long and Betty Woods, who were stationed at the barber shop. After a phone call was made by Long confirming his status, Crawford was permitted to proceed. Apparently, Crawford did not have the requisite experience in assembling the voting machines and enlisted the help of Christopher French in fulfilling his duties and obligations as election inspector.
The enlistment of French caused great concern with those at the barber shop/polling location. Apparently, some of the individuals, who supported Robert Pastrick for mayor, at the polling location were concerned about French's involvement because of a prior felony conviction, his support of Stephen Stiglich and his relationship to one of the political candidates. French was the brother of Lonnie Randolph who at that time was a candidate for city judge.
Shortly after they began assembling the voting machines, Byron Florence appeared and expressed his concern with French's involvement. He questioned whether French should be in the polling location and attempted to get him to leave. Florence then related the events at the barber shop to the Defendant Kevin Pastrick. Pastrick was actively involved in his father's (Robert Pastrick) re-election campaign.
French and Crawford continued to assemble the machines, despite the protestations of Florence. Florence and Long observed French handling wires while proceeding to put together the voting machines. At this point a formal complaint was then made to the ECPD concerning French's involvement in setting up the voting machines at the barber shop. The record is unclear as to whether Florence of Pastrick made the call to the ECPD.
Subsequently, the police arrived and questioned whether Crawford and French had the requisite authority to assembly the voting machines. ECPD Officers Ildefonso Briones and Arceo were the first officers to arrive at the scene and begin the investigation. Subsequently, Crawford was allowed to leave the barbershop to retrieve his election credentials. According to Crawford, the officers allowed him to go outside, but not to leave. During the period leading up to the arrest of French, Crawford remained outside of the barber shop. Crawford left the scene after French had been taken to jail.
Officer Arceo's first name is not reflected in the submissions by the parties.
During the investigation into the matter, Officer Briones was informed by Long that French had been inside the polling place and was tampering with the voting machines. (Briones Dep. at p. 10). Officer Briones was then informed by someone at the scene that French had committed a felony. (Id. at p. 11). According to French, Justin Murphy, an attorney for the Election Board, was the individual who told Officer Briones that he should arrest French. After some discussion, either Officer Briones or an Officer Thomas Davis, who had since arrived at the scene, made the determination to arrest French. (Briones Dep at p. 13). Officer Briones then ordered Officer Arceo to place French under arrest.
After French was placed under arrest and put into a police vehicle, ECPD Chief Frank Alcala arrived at the scene. Although he was present at the scene, Chief Alcala did not tell Officer Briones to place French under arrest. (Briones Dep. at p. 15). Chief Alcala did tell Officer Briones to follow up with the paperwork concerning the arrest of French and ordered him back to the ECPD station to fulfill that requirement. Later, Officer Briones issued a memorandum to Chief Alcala which indicated that "Mr. Florence stated that he wanted Mr. French arrested and that Mr. French did not have any business in there." (Briones Dep. pp. 27-28).
The Defendant Kevin Pastrick arrived at the scene after the officers had arrived. The record is unclear whether Pastrick or Florence made the initial call to the ECPD concerning French's presence inside the polling area. French saw Pastrick upon his arrival at the scene and witnessed him go inside the barber shop. French also contends that Pastrick was present in a huddle with Officers Briones and Davis, Justin Murphy and Jim Fife just before he was placed under arrest by Officer Arceo. (French Dep. pp. 69-70). French did not hear Pastrick say anything during the period prior to or during his arrest by the ECPD. (Id. at p. 69).
Subsequently, French was transported to the ECPD station for processing. After French's arrest, Tom Ryan met privately with Florence, Woods and Long to ascertain the events that transpired involving French at the barber shop. Ryan testified that he conducted the meeting to ensure that probable cause existed for the arrest of French. (Ryan Dep. p. 25). Ryan also spoke with Justin Murphy concerning the legal basis for French's arrest. After discussing the various facts surrounding French's involvement in the assembling of the voting machines and the applicable statutes, Ryan determined that the probable cause requirement was met. Ryan determined that based upon the totality of the circumstances that the charge of attempting to tamper with the voting machines should be brought against French. (Ryan Dep. p. 44).
Later Bernard Carter, the Lake County Prosecutor, appeared at the ECPD station and demanded that French be released. This demand was made to Chief Alcala. Chief Alcala responded by asking that this demand be put in writing. Carter did not put the request in writing and subsequently left the station. French was then transferred to the Lake County Jail. The charges for attempted tampering were never pursued against French.
III. STANDARD OF REVIEW
In order to survive a motion for summary judgment, the plaintiffs must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Electric Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The plaintiffs must present "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e) and only if a reasonable jury could render a verdict for them do they defeat summary judgment. Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000). See also Vanasco v. National-Louis Univ., 137 F.3d 962, 965 (7th Cir. 1998). In determining whether summary judgment is appropriate, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in his favor. Schneiker v. Fortis Insurance Co., 200 F.3d 1055 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The burden of establishing a lack of any genuine issue of material fact rests on the movants. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovants, however, must make a showing sufficient to establish any essential element for which they will bear the burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997). Furthermore, any dispute over irrelevant or unnecessary facts will not foreclose the granting of summary judgment. Anderson, 477 U.S. at 248. A genuine issue as to a material fact is required to defeat summary judgment. Id. A fact is material only when it might affect the outcome of the case. Id. With these principles in mind, the court now turns to the substantive merits of the case.
IV. DISCUSSION
A. Luellen
The various federal claims for relief asserted by Luellen in his complaint appear to fall under the First, Fourth and Fourteenth Amendments to the Constitution. The Fourth Amendment claim arises in the context of the search of his vehicle which yielded certain absentee ballots in his possession. The First and Fourteenth Amendment claims appear to be connected to his subsequent suspension from his position with the City of East Chicago Fire Department by Chief Dawson in light of his support of Stephen Stiglich. The court now turns to a discussion of each of these asserted claims.
1. Search of Vehicle
Initially it must be noted that Luellen is not asserting any claims against the various ECPD officers who conducted the warantless search of his city-owned vehicle with the exception of Chief Alcala. Rather he is claiming that Fire Chief Dawson violated his Fourth Amendment rights because he authorized the ECPD to open the trunk of the vehicle and that Police Chief Alcala failed to intervene on Luellen's behalf and allowed the search. In a prior opinion, this court expressed its reservations as to the privacy interest one can expect in city-owned property, a vehicle in this case located on a public street, once an investigation into possible illegalities has begun. See United States v. Fernandes, 272 F.3d 938, 942-43 (7th Cir. 2001). The court continues to believe that no valid claim lies under the Fourth Amendment in light of the fact that this vehicle was city-owned and an investigation into possible illegalities ensued. Therefore, on this basis alone Luellen had no expected privacy interest in such a vehicle located on a public street.
However, in light of the ECPD determination that probable cause to search the vehicle existed and that this determination was the primary basis for the search of the vehicle, the court will address whether that determination was proper.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV
In Carroll v. United States, 267 U.S. 132, 153-56, 45 S.Ct. 280, 285-86, 69 L.Ed. 543 (1925), the Supreme Court recognized a "moving vehicle" exception to the warrant requirement of the Fourth Amendment. Under this exception, police officers may search a vehicle without a warrant if they have probable cause to believe it contains contraband or evidence of a crime. See California v. Acevedo, 500 U.S. 565, 569, 111 S.Ct. 1982, 1985-86, 114 L.Ed.2d 619 (1991); California v. Carney, 471 U.S. 386, 390-94, 105 S.Ct. 2066, 2068-71, 85 L.Ed.2d 406 (1985); United States v. Ortiz, 84 F.3d 977, 983 (7th Cir.), cert. denied, 519 U.S. 900, 117 S.Ct. 250, 136 L.Ed.2d 177 (1996); United States v. Young, 38 F.3d 338, 340 (7th Cir. 1994).
Probable cause to search a vehicle under the automobile exception can come from information obtained by a confidential informant. See United States v. Lumpkin, 159 F.3d 983, 986 (6th Cir. 1998); United States v. Talley, 108 F.3d 277, 281 (11th Cir. 1997). In order to met the probable cause threshold, the information provided must be sufficiently detailed and corroborated by the independent investigation of law enforcement officers. Lumpkin at 986.
Here a confidential informant provided information to Lt. Chavarria concerning the illegal possession of absentee ballots by Luellen. The confidential informant provided the following facts: 1) that Luellen was at a house party at 3814 Drummond Street; 2) that Luellen was collecting people's absentee ballots; 3) the confidential informant named and described John Luellen; 4) a description of Luellen's red, city-owned vehicle was given; and 5) that the absentee ballots were placed into a specific colored bag in the trunk of this vehicle. (Chavarria Dep. pp. 26-28; 38). Lt. Chavarria testified that this particular confidential informant had reported reliable information to him in the past that had led to the collection of evidence in the past and therefore the information was deemed to be sufficiently reliable by him in this particular case. (Id. Dep. p. 22).
Based upon this information and his discussions with Tom Ryan, Lt. Chavarria dispatched ECPD Officers Louis Arcuri and William Jansky to the home of Luellen to surveil the vehicle. Upon their arrival at Luellen's home, Lt. Chavarria and Assistant Chief Vanselow then attempted to get Luellen to come down and address the matter. Luellen refused. Subsequently, Lt. Chavarria asked Assistant Chief Vanselow to open the trunk and the officers then discovered the bag described by the confidential informant containing ten absentee ballots. Although Luellen was never charged with a felony, it is undisputed that he was unauthorized to possess the absentee ballots, a class D felony offense. See IND. CODE § 3-14-2-16. Therefore, the ECPD had probable cause to search the vehicle based upon the confirmation of the facts related to Lt. Chavarria by the confidential informant.
Strangely, Luellen does not assert claims against those individuals who actually conducted the search of the vehicle (Vanselow and Chavarria). Rather, he asserts claims against only Alcala and Dawson. However, even if the probable cause determination was in error Luellen has not provided any factual basis that either Dawson or Alcala was personally and directly involved in the determination to search the city-owned vehicle. Chavez v. Illinois State Police, 251 F.3d 612, 650-51 (7th Cir. 2001); Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000); Ripson v. Alles, 21 F.3d 805, 807-09 (8th Cir. 1994) (reversing denial of summary judgment based on qualified immunity because undisputed facts showed police chief was not personally or directly involved in the plaintiff's investigation or arrest). It is undisputed that Dawson was on vacation during the times surrounding the search and played no role in making the determination to search Luellen's vehicle. Rather after being informed by the ECPD that they believed criminal activity was afoot on the part of Luellen. He acquiesced in the search of the vehicle.
Lt. Chavarria testified that he simply sought the permission of Chief Dawson out of respect to his office. (Chavarria Dep. p. 4). Furthermore, Lt. Chavarria testified that he believed that the consent of Chief Dawson was not needed to search the vehicle, apparently, based upon his discussions with Ryan. It was Ryan's opinion that under the mobile conveyance exception to the Fourth Amendment the police had enough information to get into the vehicle. (Ryan Dep. p. 75). Thus, in light of Chief Dawson's limited role in the entire scenario surrounding the search of the vehicle and the presence of probable cause to search the vehicle, Luellen's Fourth Amendment claim against him fails. See e.g. Ortega v. Christian, 85 F.3d 1521, 1526 (11th Cir. 1996) (dismissing false arrest claim pled against police chief, even though claim allowed against arresting officer, based on the limited information police chief possessed.)
Similarly, Luellen has failed to demonstrate an actionable claim against Chief Alcala for the search of his vehicle. It is undisputed that Alcala's only involvement was to refer Lt. Chavarria to Tom Ryan after being informed of the matter by Lt. Chavarria. Chief Alcala made no determination as to whether the investigation of the matter should or should not be carried out or whether based upon the facts given, probable cause existed to proceed with the search. See Ripson, 21 F.3d at 807-09; Ortega, 85 F.3d at 1526.
Luellen asserts that Chief Alcala, based upon his limited knowledge of the events surrounding the investigation of the absentee ballots, should have nevertheless intervened and prevented Lt. Chavarria from searching his vehicle. Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir. 1997). This argument is without merit. Luellen merely states that Chief Alcala should be liable because he failed to intervene. He provides no basis for this conclusion. No where amongst the voluminous submissions by counsel for Luellen are there any facts that would allow a reasonable jury to infer that Chief Alcala had any knowledge that the investigation into the illegal possession of absentee ballots by Luellen was improper and that Chief Alcala should therefore had intervened and discontinued the investigation. Chavez, 251 F.3d at 652. Therefore, Fire Chief Dawson and Police Chief Alcala, both in their individual and official capacities, are entitled to summary judgment with respect to the claims by Luellen under the Fourth Amendment.
Although not clearly delineated in the submissions to the court, Luellen also asserts that the search of his vehicle was based upon his association with the Stiglich campaign. Luellen attempts to detract from the probable cause determination in affecting the search of his vehicle by asserting that the search was in retaliation because of his political association and not as the result of honest police investigatory work. However, in light of the above determination that probable cause existed to search the vehicle and that this particular search revealed that Luellen in fact illegally possessed the absentee ballots, the First Amendment retaliation claim must fail. See Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir. 1989);("Regardless of the defendants' motives toward the plaintiff, the existence of probable cause . . . is an absolute bar to a § 1983 claim . . . ") (citations omitted)
2. Suspension
Next, Luellen asserts that his subsequent suspension with pay violated his First and Fourteenth Amendment rights. Luellen contends that his suspension was the result of his support of Stiglich and not for legitimate reasons such as his illegal possession of absentee ballots. Furthermore, Luellen contends that his summary suspension violated the due process clause because he was never provided a hearing before his suspension.
i. retaliatory suspension
In determining whether a First Amendment violation has occurred, the court will employ the analysis established by the Supreme Court in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). That analysis requires the following prima facie showing: 1) the employee was exercising a protected constitutional right; 2) the exercise of that right or protected conduct was a substantial or motivating factor in the adverse employment action. Mitchell v. Randolph, 215 F.3d 753, 758 (7th Cir. 2000); Kuchenreuther v. City of Milwaukee, 221 F.3d 967, 973 (7th Cir. 2000) citing Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999). Once the following prima facie showing is made; the burden then shifts to the defendant to establish that it would have arrived at the same decision even in the absence of the protected conduct. Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568; Mitchell, 215 F.3d at 758.
Luellen contends that the suspension was the result of his political affiliation with Stiglich and not for legitimate nondiscriminatory reasons. Luellen attempts to attribute Chief Dawson's decision to suspend him to his support of Stiglich and Dawson's support of Robert Pastrick, Stiglich's opponent in the Democratic primary in 1999. Furthermore, Luellen contends that Chief Dawson has a history of taking retaliatory actions against Luellen. However, this mere conclusory speculation into Chief Dawson's motives or intent are just that, mere speculation and cannot create an issue of fact as to the reasoning behind the suspension. Gorbitz v. Corvilla, Inc., 196 F.3d 879, 882 (7th Cir. 1999); Patterson v. Chicago Assoc. for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998); Sybron Transition Corp. v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1254 (7th Cir. 1997); Garrett v. Barnes, 961 F.2d 629, 634 (7th Cir. 1992) (Speculation based upon a person's political affiliation cannot form the basis of a jury verdict.).
Luellen was suspended for conduct unbecoming an officer because of his illegal possession of absentee ballots. Luellen does not dispute the fact that he possessed the absentee ballots nor does he dispute that it was improper for him to possess them. This evidence was presented to the Lake County Combined County Election Board and Board of Registration for review. Both the Lake County sheriff and his legal advisor felt that Luellen had committed a felony in light of his conduct and the evidence received. Finally, it is undisputed that the Election Board referred the evidence to both the Lake County Prosecutor and the United States Attorney for the Northern District of Indiana for further investigation. The fact that no charges were ultimately brought is of no moment. Based upon these facts, Chief Dawson had a legitimate reason for suspending Luellen that bears no relation to Luellen's political affiliations. There is simply no evidence in this record that the determination to suspend Luellen was based upon his political association with Stiglich.
ii. due process rights
Next, Luellen argues that his suspension did not comport with the due process guarantees afforded under the Fourteenth Amendment. Specifically, Luellen contends that he was never given an opportunity for a hearing before his suspension. It is well settled that the protections afforded by the Due Process Clause apply to deprivations of a "property" interest in government employment. Gilbert v. Homar, 520 U.S. 924, 929, 117 S.Ct. 1807, 1812, 138 L.Ed.2d 120 (1997). In Gilbert, the Court assumed without specifically deciding that a suspension of a government employee can infringe a protected property interest. Id. at 929. Here the record demonstrates that Luellen was suspended from his position for well over a year with pay. He contends that as a result of his suspension, he was unable to receive additional incentives that would substantially increase his pay. Therefore, the court turns to whether he received all the process he was due in conjunction with the determination to suspend him with pay from duty. Id.
Luellen claims that he was entitled to a hearing before he was suspended with pay. In most cases, a government employee is entitled to a pretermination hearing before a termination. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 544-45, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). However, the same cannot be said with respect to a suspension from duty. Townsend v. Vallas, 256 F.3d 661 (7th Cir. 2001); ("Under the existing case law, a suspension with pay would not constitute the deprivation of a property right subject to federal constitutional protections.") See Gilbert, 520 U.S. 924, 929-30; Levenstein v. Salafsky, 164 F.3d 345, 351 (7th Cir. 1998); Crim v. Board of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 546-47 n. 25 (7th Cir. 1998).
Indiana statutory law does not specifically provide for a pre-suspension hearing before a fire department employee can be suspended with pay. Indiana Code Section 36-8-3-4 provides the procedural framework upon which a fire department employee, like Luellen, may be disciplined. Section 36-8-3-4(b) provides in relevant part:
Except as provided in subsection (n), a member may be disciplined by demotion, dismissal, reprimand, forfeiture, or suspension upon either: . . .
(2) a finding and decision of the safety board that the member has been or is guilty of any one (1) or more of the following: . . .
(H) Conduct unbecoming an officer
A member of the fire department is entitled to a hearing if that member is suspended in excess of five (5) days without pay, demoted or dismissed. IND. CODE § 36-8-3-4(c); (Emphasis supplied). Under this particular provision, the member has a duty to request a hearing not more than five days after the notice of suspension, demotion, or dismissal. Id.
Despite the lack of Indiana statutory authority with respect to a suspension with pay, Luellen was nevertheless provided a procedural avenue in which to appeal the decision to suspend him with pay. On April 21, 1999, Chief Dawson provided Luellen with a memorandum outlining the basis for his suspension. The basis for the suspension, as noted in the memorandum, was for conduct unbecoming an officer in light of his conduct surrounding the possession of absentee ballots. The memorandum specifically noted that Chief Dawson would present the suspension to the Board of Public Safety for confirmation on April 22, 1999 and provided the time and location of the presentation of the suspension to the Board. Furthermore, the memorandum advised Luellen of his right to demand an investigation if the Board confirmed his suspension. As a result of this action, Luellen was suspended with pay until his reinstatement on January 15, 2001. Luellen does not dispute that he was paid during the entire time he was suspended. Rather, he contends that he was not afforded certain additional pay.
In Towsend, the Seventh Circuit addressed the question of whether a suspension with pay that precluded certain additional income triggered the protection to the Due Process Clause. 256 F.3d at 676. Neither side has addressed if Luellen retained a proprietary interest in this additional income he was alleged to receive. Because the suspension was made with pay, a pre-termination hearing was not warranted. Board of Educ. v. Loudermill, 470 U.S. 532, 544-45, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). As reflected in his suspension letter to Luellen, Chief Dawson felt that the illegal possession of the ballots and possible charges constituted conduct unbecoming an officer. It is apparent that he determined that keeping Luellen on active status would be a hazard to his department until the charges were resolved and, therefore, suspended Luellen with pay until a determination was later made.
Moreover, given the fact that he was fully informed of the conduct and the basis for his suspension (conduct unbecoming an officer) and was afforded the opportunity to demand an investigation after the confirmation of his suspension with pay by the Board, Luellen received all the required due process guarantees under the Fourteenth Amendment. Luellen does not dispute the fact that he was given notice of the charges and an opportunity to demand a further investigation. Further, he does not dispute that he failed to request a further look into the matter after his suspension was confirmed by the Board. Luellen was then provided an avenue for redress once his suspension was confirmed, but failed to pursue it. Moreover, although not fully developed in the record it is unlikely that the additional compensation lost by Luellen triggered the protections under the Fourteenth Amendment. See Townsend at 676.
3. City of East Chicago.
In light of the determination that Luellen has failed to establish that any of his federal constitutional rights were violated by any of the named defendants or any other individual with final policymaking authority on the part of the City, his First, Fourth and Fourteenth Amendment claims against the City must fail. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) Thus, the defendants, (City, Frank Alcala and James Dawson) are entitled to summary judgment with respect to all federal claims alleged by Luellen.
B. Randy Crawford
Crawford has alleged that the defendants engaged in two separate violations of his constitutional rights. First, he asserts that the defendants violated his Fourth Amendment rights because of his detention by the ECPD while they investigated the circumstances surrounding the alleged tampering of the voting machines. Second, Crawford contends that his lengthy detention was the result of his support of Stephen Stiglich and not for the purpose of investigating whether alleged tampering with the voting machines occurred in violation of the First Amendment.
In order for Crawford to recover against any government officer for a violation of his federal constitutional rights under Section 1983, he must demonstrate that the particular government officer caused the deprivation of the particular federal right. Brokaw v. Mercer County, 235 F.3d 1000, 1012 (7th Cir. 2000). The Seventh Circuit has opined that to cause a constitutional violation an official must "set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of his constitutional rights." Id. at 1012. Particularly, a government official causes a violation if he "acts or fails to act with a deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at h[is] direction or with h[is] knowledge or consent." Id. at 1012 citing Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985). Crawford asserts that his federal claims are against the East Chicago Defendants. (See Memorandum in Opposition to Summary Judgment at p. 9) In particular, his complaint includes the following East Chicago Defendants: the City of East Chicago; Frank Alcala; and James Dawson. The court will address each of the East Chicago Defendants in turn.
1. James Dawson
Crawford does not allege any facts that would support a claim for the violation of either the First or Fourth Amendment against Dawson. James Dawson neither was present nor had any authority over the ECPD officers, who conducted the investigation at the barber shop and detained Crawford while the investigation took place. Therefore, no claim can be made against this particular defendant.
2. Frank Alcala
Next, Crawford contends that ECPD Chief Alcala participated in his alleged constitutional violations. The evidence of record, however, does not support the allegation that Chief Alcala either knew or reasonably should have known that Crawford had been unreasonably detained, let alone that he somehow caused or orchestrated the alleged constitutional deprivations of Crawford. Brokaw at 1012. Chief Alcala arrived at the scene sometime after the ECPD officers had begun the investigation into the tampering alleged by Florence, Woods and Long, however, he neither instructed nor authorized any ECPD officer to detain Crawford. Rather the record reveals that the decisions made by Officers Briones and Davis were either made based upon their own independent judgment or in conjunction with their consultation with Justin Murphy, an attorney associated with the Election Board. Moreover, no where is asserted by Crawford that Alcala had any knowledge that he was being unlawfully detained by the ECPD officers. See e.g. Ortega, 85 F.3d 1521, 1526 (11th Cir. 1996) (dismissing false arrest claim pled against police chief, even though claim allowed against arresting officer, based on the limited information police chief possessed.)
Crawford's claim that his brief detention was in retaliation for his political association with Stiglich and therefore violated his First Amendment rights is equally unavailing against Chief Alcala. A First Amendment claim cannot be made on a mere suggestion that an individual was retaliated against because of his political affiliation. Garrett v. Barnes, 961 F.2d 629, 634 (7th Cir. 1992). Here there has been no evidence submitted by Crawford that Chief Alcala or for that matter those officers who were involved with his brief detention knew that Crawford supported Stiglich. Nelms v. Modisett, 153 F.3d 815, 819 (7th Cir. 1998). Rather the ECPD officers' motivation in briefly detaining him, apparently, was to proceed with their investigation into the alleged tampering of the voting machines, in which he was a material witness. Regardless of the alleged political associations of the various individuals in this case, there is simply no evidence that the named Defendants in this case had any role whatsoever in the decision to detain Crawford, beyond the mere speculation and unsupported conclusions made by the plaintiffs in their briefs. Therefore, Crawford's claim based upon the First Amendment must fail.
3. City of East Chicago
Crawford also contends that the City is liable for his detention. As noted in Brokaw, a municipality is not automatically liable for alleged constitutional violations based upon the acts of its employees. Here the facts revealed that Crawford only had contact with Officer Davis and other unnamed ECPD officers, none of which are named in his complaint. There simply is no evidence that the City had either: 1) an express policy that, when enforced, causes a deprivation; 2) a widespread practice that could be considered a "custom or usage" with the force of law; or 3) an allegation that the constitutional injury was caused by a person with final policymaking authority. Gable v. City of Chicago, ___ F.3d ___, 2002 WL 1456247 (7th Cir. Jul 08, 2002) (No. 01-1941 slip opinion at pp. 8-9); Brokaw, 235 F.3d at 1013.
Here Crawford has not provided any evidence of either an express policy or a widespread practice involving the unconstitutional detention of individuals by ECPD officers. Moreover, a careful review of his submissions reveals that nor does he make such an argument. Finally, as discussed above, there is simply no evidence that the alleged constitutional violation was committed by a person with final policymaking authority. Crawford has failed to refute the assertion that Alcala had any knowledge concerning the ECPD officers' detention of Crawford. As noted in Alcala's brief in support of his motion for summary judgment there is simply no "testimony that Alcala had anything to do with Crawford's alleged arrest." (See Brief in Support of Frank Alcala's Motion for Summary Judgment at p. 7). Therefore, Crawford cannot make out a claim against the City based upon this record.
Even assuming that somehow it could be argued that one of the City Defendants could be found to have been personally involved, a claim for unlawful arrest under Section 1983 could not be sustained based upon a review of the totality of the circumstances surrounding his brief detention. See Clark v. Link, 855 F.2d 156 (4th Cir. 1988);(actions resulting in a detention of but three hours were insufficient to sustain a section 1983 claim.).
A Fourth Amendment seizure occurs when a law enforcement officer's actions restrain an individual's freedom to leave an encounter. See United States v. Mancillas, 183 F.3d 682, 695 (7th Cir. 1999) (quoting Terry v. Ohio, 392 U.S. 1, 16 (1968)). Here, it is undisputed that Crawford was not the subject of a full custodial arrest. Thus, the question is whether the Terry stop was unreasonable, because the Fourth Amendment does not prohibit reasonable investigatory detentions. See Mancillas, 183 F.3d at 695. A Terry stop is reasonable when an officer has specific and articuable facts to create a reasonable suspicion that an investigation is warranted. See Mancillas, 183 F.3d at 695. If there are sufficient facts to support a Terry stop, the length of the stop and the manner in which it is carried out must also be reasonable, so that the detention lasts no longer than necessary, and the officers use the least intrusive means available to effectuate the purpose of the stop. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1325-26 (1983).
Here the only assertion that Crawford was not free to leave was made at the urging of his attorney during cross-examination at his deposition. Crawford admitted that he was not placed under arrest. Undoubtedly, the ECPD officers wanted Crawford to remain on the scene after allowing him to go home and retrieve his election credentials in order to provide further information concerning the alleged tampering with the voting machines. Therefore, based on the fact that at no time did the officers attempt to place Crawford under arrest and Crawford's status as a material witness to the events surrounding the allegations of tampering, his brief detention cannot be considered to be unreasonable.
Crawford's First Amendment claim against the City is equally without merit. There is simply no evidence that his detention occurred because of his political association with Stiglich. No evidence exists that any final policymaker with the City either (1) had knowledge of his political affiliation; Nelms at 819 or (2) caused or had any involvement in his detention. Brokaw at 1012. Crawford's attempt to rely solely on the fact that he belonged to a different political faction than the defendants is insufficient to create a genuine issue of fact precluding summary judgment. Nelms, 153 F.3d at 820; (Recognizing that merely showing that plaintiff belonged to a different political party than the defendant or that plaintiffs favored the defendant's opponent in the election was insufficient by itself to prevent summary judgment with respect to First Amendment claims.) Therefore, the City is entitled to summary judgment with respect to Crawford's Section 1983 claims based upon the First and Fourth Amendments.
C. Christopher French
French contends that the various City Defendants, along with Kevin Pastrick, violated his First and Fourth Amendment rights. Specifically, he alleges that he was arrested without probable cause and that his arrest was in retaliation for his political association with his brother Lonnie Randolph, a candidate for city judge, and Stephen Stiglich, a candidate for mayor of the City of East Chicago.
Much like the claims asserted by Crawford, French has failed to come forward with facts that demonstrate that the named defendants in his case had any direct and personal involvement with his arrest. Chavez v. Ill. State Police, 251 F.3d 612, 652 (7th Cir. 2001); Ripson v. Alles, 21 F.3d 805, 807-09 (8th Cir. 1994) (reversing denial of summary judgment based on qualified immunity because undisputed facts showed police chief was not personally or directly involved in plaintiff's investigation or arrest). Furthermore, as discussed below, based upon this record Chief Alcala did not have reason to know that a constitutional violation had occurred with respect to the arrest of French once he was taken to the ECPD station and therefore can be held liable for his failure to intervene. Chavez at 652. However, the court will first undergo an analysis of whether the officers who were personally and directly involved in French's arrest had probable cause to make the arrest, despite the fact that they are not named here as defendants.
A claim for the deprivation of a plaintiff's constitutional rights under the Fourth Amendment requires two elements. Brokaw, 1010 (7th Cir. 2000). First, there must be conduct that constitutes a seizure (i.e. an arrest). Brokaw at 1010. Second, that seizure must be unreasonable. Brokaw at 1010 citing Donovan v. City of Milwaukee, 17 F.3d 944, 949 (7th Cir. 1994); see also Northen v. City of Chicago, 126 F.3d 1024, 1026-28 (7th Cir. 1997). Here the first element is easily met. No one disputes that French was arrested. Therefore, the court turns to whether the arrest was unreasonable in light of the circumstances.
The first question is to determine whether probable cause existed for the charges or a closely related charge which formed the basis for French's arrest. Qian v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999); Marshall v. Teske, 284 F.3d 765, 771 (7th Cir. 2002). A determination by a law enforcement officer of whether probable cause exists is a fact-sensitive undertaking that requires the officer to make a decision based upon the facts and circumstances within his knowledge at the moment he believes that a suspect has committed or is about to commit an offense. Qian at 953. It is well settled that this belief, based upon the facts and circumstances at this particular moment in time, needs not "be correct or even more likely true than false, so long as it is reasonable." Qian citing Texas v. Brown, 460 U.S. 730, 742 103 S.Ct. 1535, 75 L.Ed.2d 502 (1982). In the context of a claim for an unlawful or unauthorized arrest, a determination must be made as to whether under state law, the law enforcement officer was authorized to make the arrest. Williams v. Jaglowski, 269 F.3d 778, 782 (7th Cir. 2001). "Federal law asks only whether the officers had probable cause to believe that the predicate offense, as the state has defined it, has been committed." Williams at 782. The charges that stemmed from French's arrest consisted of the complaints by various individuals inside the polling location that he was not authorized to be inside the polling area (Ind. Code § 3-14-3-15(1)) and that he was tampering with the voting machines (Ind. Code § 3-14-3-8(1)).
The events leading up to the arrest reveal that French was asked by Crawford for assistance to assemble the voting machines at the barber shop. As a result of his presence in the barber shop, the suspicions of Will Long, Betty Woods and Bryon Florence were raised. French had not been appointed by any election board or body to assemble the voting machines. Moreover, Indiana election law reveals that French could not serve as an inspector and therefore should not have been assisting in the duties of an appointed election inspector. See IND. CODE § 3-6-6-7(4). French was the brother of a candidate for city judge for the City of East Chicago.
Florence then contacted Kevin Pastrick concerning French's presence at the barber shop and his assistance in assembling and handling the voting machines. Florence, apparently, explained to French that he could not be in the polling place but his statements were ignored and French continued to assemble the machines. The record is unclear as to who made the report to the ECPD, but at this point several ECPD officers soon arrived at the barber shop and began an investigation into the matter.
Officers Arceo and Briones were the first officers to arrive. At this point, Florence and Long made a complaint to Officer Briones about being inside the polling place and tampering with the voting machine. (Briones Dep. p. 10). It is undisputed that the individuals inside of the barber shop witnessed French under the voting machines handling exposed wires. Officer Briones was then informed by Justin Murphy that tampering with a voting machine constituted a felony. See IND. CODE § 3-14-3-8. Thereafter, either Officer Davis or Officer Briones made the decision to place French under arrest based upon the complaint and statements made by Long, Woods and Florence in witnessing French handle the voting machines. French does not dispute that he was not authorized to perform the duties of an election inspector nor does he dispute the fact that he handled the machines. Although, the complaining witnesses' suspicions with respect to French's handling the machines proved to be unfounded later, it cannot be said that the suspicions of the various complaining witnesses at the time of the arrest were unfounded in light of French's unauthorized presence and his relationship to one of the candidates for election. Therefore, based upon the facts as just articulated, the officers had probable cause to make the arrest and it is of no consequence that it was later discovered that no tampering had occurred or that the charges were never filed against him. See, e.g., Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998) (all the charges were dropped with leave to reinstate, but never reinstated)
Murphy contends that he never suggested that the police should arrest French or Crawford. Rather, it appears, that Murphy merely advised the police that tampering with a voting machine would constitute a felony under Indiana criminal law. In any event, Murphy's role in this case has little consequence in light of the fact that he has not been named as a party to the claims made here.
1. James Dawson
French has not alleged any facts that would support a claim for the violation of either the First or Fourth Amendment against Fire Chief Dawson. Chief Dawson neither was present nor had any authority over the ECPD officers, who conducted the investigation at the barber shop, arrested French or refused to release him at the ECPD station. Therefore, no federal constitutional claim can be made against Chief Dawson.
2. Frank Alcala
Even assuming that probable cause did not exist with respect to the arrest of French, there is simply no evidence to show that Chief Alcala was either directly involved or personally responsible for his arrest. Chavez 251 F.3d at 652. French contends that a genuine issue of material fact remains as to whether Chief Alcala was personally involved based upon his decision to replace Officer Briones with another ECPD officer that would arrest him. However, the record does not reflect that Chief Alcala removed Officer Briones from the situation because he did not want to proceed with the arrest. Rather, French's version attempts to create an issue of fact in order to bring Chief Alcala into the decision to make the arrest.
Officer Briones clearly has admitted that he was involved in the decision to make the arrest. The record does reflect that initially he was hesitant to arrest French, but that once he was told by Murphy that French's actions constituted a felony, he proceeded to make the arrest. (Briones Dep. pp. 12-18). Furthermore, Chief Alcala did not replace Officer Briones. Rather, he merely advised him to return to the station to complete his paperwork with respect to French's arrest. Finally, Officer Briones admitted that while Chief Alcala was at the scene he did not tell him to place French under arrest. (Officer Briones Dep. p. 15). No other facts have been presented to show that Chief Alcala had any role in ordering the arrest of French other than ordering Officer Briones to get French off the street, go to the station and follow up on his paperwork. (Alcala Dep. pp. 54). French has offered no evidence either direct or circumstantial that would indicate that Chief Alcala had any greater role in his arrest, beyond his mere conjecture and supposition that a greater conspiracy was afoot.
Next, French contends that Chief Alcala is liable in light of his failure to release French once he arrived at the station. According to French, Chief Alcala should have released him in light of Bernard Carter's, the Lake County Prosecutor, demand to do so. In response to this demand, Chief Alcala conferred with the ECPD legal advisor, Tom Ryan, and requested that Carter provide a written demand outlining his request for French's release. No such written request was ever provided. Based upon the facts related to him by the various ECPD officers involved, Chief Alcala had reason to believe that probable cause existed to arrest French for his alleged tampering with the voting machines. Those facts included the following: 1) Indiana law prevented French from performing the duties involved in setting up the voting machine inside the barber shop; 2) three different individuals saw him handling exposed wires; 3) based upon these individuals suspicions concerning his handling of the wires and his relationship with a candidate for office in East Chicago a complaint was made to the ECPD; 4) French was then charged with an offense that related to his unauthorized handling of the voting machines. Therefore, in light of the appropriate arrest made by the ECPD officers Chief Alcala had no obligation to short circuit the detention process and release French at an earlier time based upon his limited knowledge of the facts and limited role involving his arrest.
French's claim that his arrest was in retaliation for his political association with Stiglich and Randolph is without merit. First, his arrest was supported by probable cause. A finding of probable cause obviates any inquiry into the motivations of a particular individual. Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir. 1989). Here French does not dispute the factual predicate to his arrest: 1) that he was not an election inspector; 2) he was related to a candidate in this particular election and therefore forbidden from performing the duties of an inspector; 3) he was observed handling wires to the voting machine; 4) a complaint was made to the ECPD; 5) the ECPD began an investigation based upon the complaint; 6) Officer Briones was advised that tampering with a voting machine was a felony under Indiana law; and 7) French was then arrested based upon these considerations. It matters not whether it was later discovered that no tampering occurred, probable cause existed at the moment he was arrested based upon these considerations.
Second, a First Amendment claim cannot be made on a mere suggestion that an individual was retaliated against because of his political affiliation. Garrett v. Barnes, 961 F.2d 629, 634 (7th Cir. 1992). Here there has been no evidence submitted by French that Chief Alcala or any of the ECPD officers involved with his arrest knew that French supported Stiglich. Nelms v. Modisett, 153 F.3d 815, 819 (7th Cir. 1998). Rather the ECPD officers' decision to arrest was based upon the statements of the complaining witnesses and the advice of an attorney for the Election Board. Regardless of the alleged political associations of the various individuals in this case, there is simply no evidence that Chief Alcala had any role whatsoever in the decision to arrest French. Therefore, French's claim based upon the First Amendment must fail.
3. Kevin Pastrick
Next, French asserts that Pastrick acted in concert with the ECPD officers to arrest him. The Seventh Circuit has determined that in order to hold a private individual liable under Section 1983, the plaintiff must demonstrate that the public and private actors shared a common, unconstitutional goal. Vickery v. Jones, 100 F.3d 1334, 1343-44 (7th Cir. 1996). Ordinarily, "a private citizen does not become a policeman by complaining to a policeman." Proffitt v. Ridgway, 279 F.3d 503, 508 (7th Cir. 2002). However, a private individual may be liable under Section 1983, if there is a showing that the private party and the state actor jointly deprived the plaintiff of his civil rights. See Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-187, 66 L.Ed.2d 185 (1980) ("Private persons, jointly engaged with state officials in the challenged action, are acting `under color' of law for purposes of § 1983 actions."). In order to determine whether a private party should be considered a state actor, the court must undergo an analysis of the facts and surrounding circumstances. French cannot invoke liability under Section 1983 based upon "a bare allegation of a conspiracy between private and state entities is insufficient to bring the private entity within the scope of § 1983." Messman v. Helmke, 133 F.3d 1042, 1045 (7th Cir. 1998).
Here in viewing the facts most favorable to French, Pastrick's only alleged involvement includes: 1) his complaint to the ECPD after being informed that French was inside the barber shop handling the voting machines; 2) his arrival at the scene and talking with the ECPD officers before French was arrested; and 3) his statement to someone that "We got French." However, these statements or actions are insufficient to generate a genuine issue of fact as to whether Pastrick took the decisive step in French's arrest or that some agreement between the ECPD officers and Pastrick existed. Proffitt, 279 F.3d at 509. (Ripple Dissenting); (noting that "something more" is required to confer state actor status upon a private individual such as an agreement to proceed down a certain course).
Here other than some stray comments concerning French's arrest and his presence at the scene, the "something more" requirement is simply not fulfilled in establishing that there was an agreement between the ECPD officers and Pastrick to arrest French. Indeed, the facts leading up to the arrest and the advice of Justin Murphy provided the basis for the arrest. There is simply no evidence that Pastrick had any influence whatsoever on the decision by Officers Briones and Davis to make the arrest. Therefore, the court declines to find Pastrick liable for any violation of French's Fourth Amendment rights.
French attempts to create a genuine issue of fact through the testimony supplied by his brother, Lonnie Randolph. French proffers the testimony of Randolph in support of his contention that Pastrick ordered French's arrest. Lonnie Randolph testified that "in his opinion, Pastrick took charge of the scene at the barber shop." (Randolph Dep. pp. 59-60). However, when pressed to identify the basis of his opinion, Randolph stated that he could not identify any facts to support the opinion that Pastrick was in charge. (Id. at pp. 59-60). Garrett v. Barnes, 961 F.2d 629, 634 (7th Cir. 1992) (Speculation based upon a person's political affiliation cannot form the basis of a jury verdict.) This type of speculation is simply insufficient to create a genuine issue of fact.
French also asserts that Pastrick's actions prior to and during his arrest gave rise to his claim for retaliation because of his political associations. The same reasoning that applied to French's First Amendment claim against Chief Alcala applies with equal force to Pastrick. First, French's arrest was supported by probable cause. Schertz, 875 F.2d at 582. Second, and most important, Pastrick did not have any role beyond his mere complaint and discussions with the ECPD officers concerning French's presence inside the barbershop.
4. City of East Chicago
French argues that the City also violated his First and Fourth Amendment rights. Again, there is no evidence that the City either through some official or unofficial policy or through the deliberately indifferent acts of a final policymaker caused any constitutional injury. Gable, (No. 01-1941 at pp. 8-9). First as discussed above, French has failed to prove that he suffered a constitutional violation through the acts of any of the ECPD officers involved. Second, and more important, French has failed to prove that any individual with final policymaking authority was directly or personally involved in any of the acts that surrounded the decision to place him under arrest.
The assertion that Chief Alcala was directly involved because he should have intervened into the decision to arrest him or later release him from detention is without merit. The facts reveal that Chief Alcala had little involvement in the events leading up to and during French's arrest and had deferred to the judgment of his junior officers and his legal advisor in assessing the situation. His only direct orders were to remove French from the scene and to have the arresting officer proceed with his paperwork on the arrest. There is simply no evidence that Chief Alcala had any other involvement with the arrest of French. Based upon this record, the City's motion for summary judgment must be granted as to all of French's federal claims.
V. CONCLUSION
In light of the foregoing analysis, the court VACATES its prior orders which granting the Defendants' motions for summary judgment (Docket entries' #88,89,91).
The Plaintiff's motion to amend the judgment (Docket entry #74) is now DENIED as moot and the Defendants' motions for summary judgment as to all of the Plaintiff's federal claims is now GRANTED based upon all the submissions prior to the court's orders of March 28, 2002, the oral argument on May 15, 2002, and the supplemental briefing filed on or about June 11, 2002. The remaining state law claims are now DISMISSED without prejudice. The clerk of the court is now DIRECTED to enter a final judgment with respect to cause number 2:00cv401AS.
IT IS SO ORDERED.