Opinion
CAUSE NO. IP 02-461-C H/K
August 11, 2003
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Ethan McGivern, a patrolman with the Indianapolis Police Department (IPD), brought this action after the IPD Chief suspended him for ten days after finding that he had failed to be truthful in an internal investigation about allegedly missing money. McGivern has brought a number of claims against the City of Indianapolis and other defendants based on asserted violations of his federal due process rights and his right to privacy and association, as well as alleged violations of his rights under the Indiana Constitution. Defendants filed a motion for summary judgment on all claims and have raised objections to plaintiff's factual submissions. For the reasons explained below, defendants' objections are sustained, and defendants' motion for summary judgment is granted as to all claims except McGivern's federal claim that he was deprived of a property interest without due process of law.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Jay v. Internet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir. 2000). On a motion for summary judgment, the moving parties must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the parties believe demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Where the moving parties have met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir. 1999). The existence of "some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Preliminary Matters I. Local Rule 56.1
The record the court must consider in this case is shaped by plaintiff's failure to comply with Local Rule 56.1. Local Rule 56.1(b) states that the non-moving party must file and serve a supporting brief that "shall include a section labeled `Statement of Material Facts in Dispute' which responds to the movant's asserted material facts by identifying the potentially determinative facts and factual disputes which the nonmoving party contends demonstrate that there is a dispute of fact precluding summary judgment." The essential purpose of the rule is to require each party to identify the specific facts and supporting evidence upon which the party relies. Local Rule 56.1(i) gives the court discretion to overlook failures to comply with the rule's formal requirements.
Plaintiff's response lacks any "Statement of Material Facts in Dispute," as required by Local Rule 56.1(b). Instead, his brief begins with a two-page "Introduction" that includes a number of factual assertions with citations to evidence. Because McGivern has failed to identify specific factual assertions by defendants that he disputes, the court treats as undisputed the facts that defendants identified as undisputed in their brief. See Local Rule 56.1(e). To the extent McGivern has supported his own factual assertions with admissible evidence, the court assumes those facts are true for purposes of deciding defendants' motion.
Defendants have not argued that McGivern was a probationary officer when he received the ten-day suspension. Such an argument, if based on fact, might well resolve the procedural due process claim in short order. At the time of McGivern's suspension, however, he was no longer a probationary officer. McGivern Dep. at 116. Despite that fact, defendants seemed to go out of their way to include in their brief statements about McGivern's earlier probationary status and the provision that allows suspensions without a hearing. For example: "Early in the year 2000, McGivern was a probationary police officer with IPD." Def. Br. at 4. The court assumes that the defendants, by including this irrelevant information, were not trying to create the impression that McGivern was a probationary officer at the relevant time.
II. Objections to Plaintiff's Evidence
The defendants have raised numerous objections to plaintiff's evidence. Defendants argue that numerous statements offered by plaintiff to defeat summary judgment are or contain inadmissible hearsay. Hearsay is inadmissible in summary judgment proceedings to the same extent that it would be inadmissible at trial. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). The defendants object to three pieces of evidence cited in plaintiff's response brief.Defendants object to the plaintiff's evidence in support of his claim that he has been "blacklisted" from the IPD scuba team as being inadmissible hearsay within hearsay. Plaintiff testified about a statement made to him by Officer Mastin who was supposedly quoting Officer Santos. McGivern Dep. at 61. "Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule." Fed.R.Evid. 805. The court must look at both "levels" of hearsay individually to determine if the evidence is admissible. Halloway v. Milwaukee County, 180 F.3d 820, 825 (7th Cir. 1999). Rule 801(d)(2)(D) of the Federal Rules of Evidence excludes admissions that are made "by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" from the definition of hearsay.
Defendants' objection is sustained. Even if Santos' alleged statement were deemed an admission under Rule 801(d)(2)(D), McGivern's evidence of that statement from Mastin is itself inadmissible hearsay. Mastin's statement does not fall within the scope of Rule 801(d)(2)(D) because for all that appears in this record, the statement attributed to Mastin was mere gossip outside the scope of his responsibilities for IPD. See Krause v City of La Crosse, 246 F.3d 995, 1002 (7th Cir. 2001); Williams v. Pharmacia, Inc., 137 F.3d 944, 950-51 (7th Cir. 1998). Moreover, even if this evidence were admissible, McGivern's liberty interest claim would fail because he has not lost his job with IPD, as explained below.
Defendants also object to McGivern's evidence in support of his contention that IPD's Internal Affairs investigator John Hoenstine "published misleading stigmatizing information." Plaintiff cites statements by his wife regarding alleged statements from her ex-husband Jay Travis. McGivern Dep. at 57-59. These statements clearly fall within the scope of Rule 802 as inadmissible hearsay. The objection is sustained.
Finally, the defendants object on several grounds to the admission of plaintiff's evidence submitted as "Attachment 4" to "Plaintiff's Rebuttal to Motion for Summary Judgement," which comprises two letters from Daniel E. Sosnowski about polygraph tests and techniques. Defendants object that these documents are inadmissible hearsay and lack probative value. These two letters are not testimony. Rather, they are statements made outside of court and not under oath that are being offered to prove the truth of matters asserted. See Fed.R.Evid. 801(c). They fall within the definition of hearsay and the objection is sustained. Fed.R.Evid. 802. Even if the contents of the letters had been submitted in the form of an affidavit, they are not material because the fact asserted, that IPD improperly administered a polygraph test to McGivern, has no effect on the viability of McGivern's due process or other claims. The objection is sustained.
The Factual Record on Summary Judgment
For purposes of defendants' motion for summary judgment, the following facts are either undisputed or reflect the record in the light most favorable to McGivern, the non-moving party.In February 2000, Officer McGivern was one of several IPD officers who responded to a "DOA run" where a woman was pronounced dead. The woman's sister reported that after the officers, medics and fire fighters left, approximately $1,305 was missing from the house. Def. Ex. D. IPD's Internal Affairs unit opened a formal investigation into the matter on February 15, 2000. Id. In the course of its investigation, McGivern gave a statement to Internal Affairs on March 20, 2000. McGivern Dep. at 26.
On March 28, 2000, McGivern was given a polygraph examination about the incident. Id. After examiner Robert Hinde completed the polygraph examination, he asked Internal Affairs investigator John Hoenstine to come into the examination room with him and McGivern. McGivern Dep. at 33. Hinde did so because he determined that there was a problem with McGivern's test and that the test results indicated deception. Id. at 35.
At that time, McGivern was involved in an extramarital affair with Kim Travis, also an IPD officer married to yet another IPD officer, Jay Travis. McGivern Dep. at 43-49. The affair was not a secret within the department. Id. Hoenstine spoke with McGivern and asked him some additional questions. McGivern Dep. at 39. McGivern first raised Jay Travis' name in response to one of Hoenstine's statements or questions. Id. Before McGivern mentioned Travis' name, Hoenstine had not questioned McGivern about the extramarital affair. Id. at 41.
IPD disciplinary process is governed by Indianapolis/Marion County Municipal Code Section 253-208 of the Revised Code of the Consolidated City and County ("Code"). "The civilian police merit board of the IPD shall establish disciplinary policies for use in all disciplinary matters of the department." § 253-208(a). Within this disciplinary process, the Chief is given the "ultimate authority" to discipline members of the department. § 253-208(d). "The Chief may refer the matter to a disciplinary board of captains for recommendation," but referral to such board is discretionary only. § 253-208(d). The disciplinary board of captains reviews disciplinary actions pursuant to the department's disciplinary process mandated in the Code. § 253-208(g). The Code also provides that only that portion of a suspension exceeding ten days can be appealed to the merit board. § 253-208(d).
IPD's disciplinary process grants the board of captains discretion in deciding the procedure it will use for its review. § 253-208(g) ("This disciplinary board may conduct an administrative review of the matter, request further investigation by internal affairs or other appropriate personnel, or hold a hearing on the matter"). An administrative review entails a review of any paperwork submitted by the department and the subject of the disciplinary action. Dahlke Af. ¶ 6. If the board of captains chooses to hold a hearing, the board hears testimony under oath, and an officer has the right to have counsel present and to have witnesses subpoenaed by the Board. § 253-208(h).
Immediately after Hoenstine told McGivern that he had failed the polygraph, McGivern was placed on desk-duty but was not given formal notice that he failed the polygraph test. McGivern Dep. at 115-18. On May 10, 2000, a board of captains reviewed McGivern's conduct during the course of the Internal Affairs investigation into the missing money. Dahlke Af. ¶ 7. This particular board of captains conducted only an administrative review of the matter based on the materials available to it at that time. Dahlke Af. ¶ 8. Officer McGivern was not present at the administrative review, nor was he notified that it was being held. McGivern Dep. at 117. Because the board chose to perform only an administrative review of this matter, McGivern was not given an opportunity to address the board at a hearing. McGivern Dep. at 20-22.
The board of captains found, based on all the evidence it reviewed, including the Internal Affairs statements, department documents, and polygraph results, that McGivern violated Section 1, Subsection A and Section IX, Subsection A of the Department Rules and Regulations. Def. Ex. D. Consequently, the board of captains recommended that McGivern be given a ten-day suspension. The board based its recommendation solely on a review of documents concerning the investigation into the missing money and its finding that Officer McGivern was guilty of violating department rules and regulations. Dahlke Af. ¶ 11.
Upon review of all material relevant to the disciplinary matter pending against McGivern, including materials from the Internal Affairs investigation and district reports, the Chief of Police concurred that Officer McGivern had violated the rules cited by the board of captains. Def. Ex. E. The Chief of Police endorsed the board's recommendation for disciplinary action by suspending Officer McGivern for ten days without pay. Id. McGivern served his suspension from May 13-25, 2000. Def. Ex. F, McGivern Dep. at 25.
McGivern was never given formal written notice of his polygraph failure. McGivern Dep. at 120-21. He did not receive written notice of his suspension until September 14, 2000, nearly four months after he served his suspension. Def. Ex. F, McGivern Dep. at 115-116.
McGivern continues to work as a police officer for IPD. McGivern Dep. at 12. Since his suspension, McGivern has applied for and been denied various opportunities that are available for patrolmen of his rank, including a position in the Mounted Patrol Unit, the scuba team, and vice details. McGivern Dep. at 64-73. McGivern has also been dismissed by a Deputy Prosecuting Attorney as a witness in a criminal investigation. McGivern Dep. at 78. McGivern applied unsuccessfully for a position with the Rising Sun police department in the summer of 2000. McGivern Dep. at 80.
Discussion I. Parties
The complaint names six parties as defendants: the City of Indianapolis (City); Bart Peterson, Mayor of Indianapolis, in his official capacity; the Department of Public Works (DPW); Robert Turner, Director of the Department of Public Safety, in his official capacity; Indianapolis Police Department (IPD); and Chief of Police Jerry Barker, in his official capacity.
IPD and DPW are not proper parties to this suit because they lack the legal capacity to be sued separately from the City. Indiana grants general corporate power to municipalities under Ind. Code § 36-1-4-1 et seq., which provides that a "unit" may sue or be sued. See Ind. Code § 36-1-4-3. A "unit" is defined by Ind. Code § 36-1-2-23 as a "county, municipality or township." IPD and DPW are "merely a vehicle through which the city government fulfills its policy functions" and are not proper party defendants. Jones v. Bowman, 694 F. Supp. 538, 544 (N.D.Ind. 1988). These parties are entitled to judgment as a matter or law.
Also, plaintiff has confused the Department of Public Works, which has no involvement here, with the Department of Public Safety, of which IPD is a part.
Mayor Peterson, DPS Director Robert Turner, and Chief Jerry Barker are all named as defendants in only their official capacities. Under 42 U.S.C. § 1983, official capacity suits represent "only another way of pleading an action against an entity of which an officer is an agent." Monell v. Department of Social Services, 436 U.S. 658, 690 n. 55 (1978). Therefore, for the purposes of this summary judgment motion, the three defendants named in their official capacities are redundant in light of the fact that the City is also a defendant. The only proper defendant is the City of Indianapolis.
II. Procedural Due Process Claims
Plaintiff McGivern alleges that the City violated his Fourteenth Amendment right to due process by suspending him for ten days without a hearing. "A procedural due process claim involves a two-step inquiry: (1) whether the defendants deprived the plaintiffs of a constitutionally protected liberty or property interest; and (2) if so, whether that deprivation occurred without due process of law." Doe v. Heck, 327 F.3d 492, 526 (7th Cir. 2003), citing Zinermon v. Burch, 494 U.S. 113, 125 (1990).
The first inquiry therefore is whether McGivern had a property interest in continuous or uninterrupted employment or a protected liberty interest. See Moulton v. Vigo County, 150 F.3d 801, 804 (7th Cir. 1998); Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1405 (7th Cir. 1994), citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541 (1985). McGivern argues that the City's suspension for ten days on the basis of a finding that he had been untruthful deprived him of both property and liberty interests. Each will be addressed separately.
A. Property Interest
"In order to establish a claim for loss of property, without due process of law in violation of the fourteenth amendment, a plaintiff must demonstrate a protectible property interest in his employment." Thornton v. Barnes, 890 F.2d 1380, 1386 (7th Cir. 1989). To determine whether McGivern has a property interest in continuous employment the court must determine "if there are such rules or mutually explicit understandings that support [a] claim of entitlement to the benefit." Perry v. Sindermann, 408 U.S. 593, 601 (1972); see also Board of Regents v. Roth, 408 U.S. 564, 577 (1972) ("Property interests . . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law."). Protectible property interests may be created from a variety of state law sources, including statutes, contracts, legally binding rules and regulations, or the "unwritten common law" of employment. Moulton, 150 F.3d at 804, quoting Lawshe v. Simpson, 16 F.3d 1475, 1480 (1994).
Indiana Code § 36-8-3.5-1 grants to each municipality the power to establish a merit system governing police employment. See Bailey v. Canan, 82 F. Supp.2d 966, 985-86 (S.D.Ind. 2000) (McKinney, J). The code provisions of Indianapolis/Marion County that regulate the employment of IPD officers and the rules that make up the disciplinary system must be considered to determine whether McGivern had a property interest. Under the ordinance, the Chief of Police has "the ultimate authority to discipline any member of the department," subject to certain enumerated restrictions. Indianapolis/Marion County, Ind., Code § 253-208(d) (2000).
The City argues that a suspension of ten days did not deprive McGivern of a property interest because the City's own procedures provide that only suspensions of more than ten days may be appealed to the civilian merit board for a hearing. Def. Br. at 11. This argument confuses the procedures provided by state/city law with the substantive protections that may give rise to a protected property interest. Just as a state or city law establishing procedures does not establish a property interest, a state or city law limiting such procedures also does not necessarily limit a property interest established through other means. The City's argument here is in essence the "bitter with the sweet" approach that the Supreme Court rejected in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 540-41 (1985) ("Property cannot be defined by the procedures provided for its deprivation any more than can life or liberty.").
This court is not yet persuaded that non-probationary IPD officers are without a property interest in continuous employment, at least when suspensions of ten days are involved. The Seventh Circuit has indicated that Indiana police officers can have a property interest in continuous employment. See Smith v. Town of Eaton, 910 F.2d 1469, 1471 n. 4 (7th Cir. 1990) ("On the record before us, we see no reason to question that Mr. Smith had a property interest in his employment that was implicated by the ten day suspensions and his ultimate dismissal."); see also Harrison v. City of Greenfield, 966 F.2d 315, 316 (1992) (refusing invitation to overrule Smith in the context of a police officer's five-day suspension).
Judge McKinney's comment about the absence of a property interest in Bailey is not controlling here because he was considering different statutory provisions for police officers. The comment also was obiter dicta because he also found that the plaintiff in that case had received sufficient due process. 82 F. Supp.2d at 990. In a recent entry, this court considered the case of an IPD officer's procedural due process claim and adopted the Bailey dicta on whether a property interest existed. Ashton v. City of Indianapolis, 2003 WL 1562724, *16 (S.D.Ind. 2003) (stating that IPD officer had no property interest affected by suspension of less than ten days). The court's comment in Ashton about the lack of a property interest was also dicta. In Ashton, the cumulative result of three disciplinary actions that included two full evidentiary hearings was a one-day suspension and a written reprimand. In light of the extensive procedures used, the plaintiff had received all the process that might have been due. In contrast, the present case involves a ten-day suspension for a violation for which the disciplinary matrix lists a maximum three-day suspension as the penalty for the first violation. While not questioning the result in Ashton, the court questions the validity of the dicta in that entry to the effect that suspensions of less than ten days do not affect a property interest for non-probationary IPD officers.
What is needed is a more detailed consideration of the relevant ordinance and the disciplinary procedures and rules that have been established pursuant to state law, including the "disciplinary matrix" submitted by the plaintiff in support of his claim. See Def. Ex. J; see also Lawshe, 16 F.3d at 1480 ("a property right in employment need not arise from contract or statute; it may also arise from an `unwritten common law' of employment, or legally binding rules and regulations") (citations omitted). Additionally, consideration of the terms of the collective bargaining agreement for IPD officers may be warranted because contracts may also form the basis for a property interest in such cases. See Lawshe, 16 F.3d at 1480; see also Bailey, 82 F. Supp.2d at 985 ("In Indiana, a police officer is an employee of the city and their relationship is defined by contract").
The disciplinary matrix is a guideline that lists specific violations and the appropriate range of disciplinary action for first, second, third, and fourth offenses. Def. Ex. J.
The existence of a property interest is only the first step in maintaining a procedural due process claim. The second inquiry is whether the plaintiff received the process that was due. Cleveland Board of Education, 470 U.S. at 541. The critical question is whether McGivern was given notice and an opportunity to respond to the charges made against him. See Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 313 (1950). The "root requirement" of the Due Process Clause is that an individual must be given an opportunity for a hearing before he is deprived of any significant property interest. Cleveland Bd. of Education, 470 U.S. at 542.
Defendants argue that McGivern received all the process he was due when the disciplinary board of captains reviewed "all material relevant to the investigation into the missing money." Def. Br. at 11. Defendants cite the fact that McGivern gave a statement to investigator Hoenstine. However, the subject matter of McGivern's statement to Hoenstine and the investigation was the missing money, not whether McGivern was being truthful. The subject matter of the board of captains' administrative review was McGivern's conduct during the course of an internal investigation. Dahlke Af. ¶ 7. McGivern was not given notice or an opportunity to address the board of captains about the evidence that was central to its inquiry: the polygraph test.
Defendants cite Altman v. Hurst, 734 F.2d 1240, 1242 (7th Cir. 1984), for the proposition that "a police officer is not automatically entitled to any process prior to disciplinary action." Def. Br. at 10. In Altman, the plaintiff was reassigned from one duty to another, denied overtime opportunity, and had his vacation time re-scheduled. 734 F.2d at 1241. Altman was never suspended without pay. The Seventh Circuit, in holding that no property interest had been lost, specifically distinguished nonpecuniary disciplinary actions such as those listed above from a suspension. Id. at 1242, see also Swick v. City of Chicago, 11 F.3d 85, 87 (7th Cir. 1993) ("We do not think that `property' within the sense of the [ fourteenth] amendment should be extended to the purely dignitary or otherwise nonpecuniary dimensions of employment.") (citations omitted).
IPD procedures for polygraph examinations specify that in the event of a polygraph failure, the employee will be notified by a letter from the Office of the Chief. Upon such notice, the employee who failed the examination may request a second polygraph exam. Def. Ex. A. McGivern testified that he never received a letter from the Chief regarding the polygraph. McGivern Dep. at 114-16. Instead, more than five months after the polygraph, and three months after serving the ten-day suspension, McGivern was given written notice of the disciplinary findings. Def. Ex. F.
McGivern's allegations and supporting evidence raise a genuine issue as to whether non-probationary IPD officers possess a property interest in continuous employment that is lost by a suspension of ten days without pay.
On McGivern's federal claims brought under 42 U.S.C. § 1983, the principle of respondeat superior does not apply, and the City argues that McGivern cannot show that any deprivation resulted from a municipal policy or custom. A plaintiff must demonstrate that the "moving force" behind the constitutional violation is a municipality's policy. Board of County Com'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997); see also Garrison v. Burke, 165 F.3d 565, 571 (7th Cir. 1999), citing Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). In this case, McGivern has based his due process claim on the City's policy set forth in its Code authorizing the IPD Chief of Police to suspend an officer for up to ten days without an opportunity to be heard on the alleged violation. Similarly, in Monell itself, the plaintiffs alleged that their claims were based on explicit policies adopted by the defendants that authorized the actions being challenged as unconstitutional. See 436 U.S. at 660-61. McGivern has offered sufficient evidence on this point. Summary judgment on this claim is premature and must be denied.
Plaintiff's argument that his property interest includes "a reasonable expectation to be at liberty to market oneself and advance in career opportunities" does not find support in Seventh Circuit precedent. Pl. Br. at 4. This argument conflates the question of the existence of a property interest in continuous employment with the question of whether McGivern's suspension deprived him of an occupational liberty interest. McGivern argues that a property interest is (continued . . .) implicated by his unsuccessful application to participate in IPD programs that are merely alternatives to street duty. The case law does not support his assertion that he has a property interest protecting such opportunities. See Ulichny v. Merton Community School District, 249 F.3d 686, 700-02 (7th Cir. 2001) (changes in duties and opportunities did not deprive school principal of property interest).
B. Liberty Interest
McGivern has a liberty interest in his occupation as a law enforcement officer. Wroblewski v. City of Washburn, 965 F.2d 452, 455 (7th Cir. 1992). "The concept of liberty recognizes two particular interests of a public employee: 1) the protection of his good name, reputation, honor and integrity, and 2) his freedom to take advantage of other employment opportunities." Lipp v. Board of Education, 470 F.2d 802, 805 (7th Cir. 1972), citing Roth, 408 U.S. at 573-74. To show that he was deprived of a liberty interest, McGivern must show (1) that he was fired (2) to the accompaniment of false charges of dishonesty or immorality or the like, that (3) would stigmatize him to the extent of foreclosing future employment opportunities, and (4) that the employer is responsible for public disclosure of the charges. See Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1409 (7th Cir. 1994); Ratliff v. City of Milwaukee, 795 F.2d 612, 625-27 (7th Cir. 1986); see generally Colaizzi v. Walker, 812 F.2d 304, 307-08 (7th Cir. 1987) (explaining development of law in this area). If McGivern had been deprived of a liberty interest, then he would have been entitled to notice and an opportunity to be heard to clear his name before the firing and public charges.McGivern's liberty interest claim falls short on the first element. He has not been fired but is still a police officer with the IPD. McGivern Dep. at 12. In fact, the disciplinary action against him did not even include a demotion. The Supreme Court explained in Paul v. Davis: "it was not thought sufficient to establish a claim under § 1983 and the Fourteenth Amendment that there simply be defamation by a state official; the defamation had to occur in the course of the termination of employment." 424 U.S. 693, 710 (1976) (emphasis added). The reasoning for this holding was clarified by the Court in Siegert v. Gilley:
We rejected the plaintiff's claim [in Paul v. Davis], holding that injury to reputation by itself was not a "liberty" interest protected under the Fourteenth Amendment. We pointed out that our reference to a governmental employer stigmatizing an employee in Roth, was made in the context of the employer discharging or failing to rehire a plaintiff who claimed a liberty interest under the Fourteenth Amendment. Defamation, by itself is a tort actionable under the laws of most States, but not a constitutional deprivation.500 U.S. 226, 233 (1991). The Seventh Circuit has further emphasized this reasoning, explaining that without this limit, § 1983 would swallow the common law of public officers' torts. Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1139 (7th Cir. 1984) ("there is no deprivation of liberty if the employee is not fired"); see also Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 617 (7th Cir. 2002) ("It is well-settled that an individual has no cognizable liberty interest in his reputation; consequently, when a state actor makes allegations that merely damage a person's reputation, no federally protected liberty interest has been implicated.").
The fact that McGivern has applied for and been denied opportunities within IPD to perform duties other than those normally assigned to street patrol officers does not adequately describe a change in his "legal status" sufficient to support a claim for deprivation of liberty. Wroblewski, 965 F.2d at 455 ("being a police officer is an occupation; being a police lieutenant is not"), see also Townsend v. Vallas, 256 F.3d 661, 669 (7th Cir. 2001). McGivern has not offered evidence that would support a finding that it is "virtually impossible" for him to find new employment in his chosen field. The record shows that McGivern submitted only one application to another police force after his suspension in 2000, and that police force did not have any open positions at the time. McGivern Dep. at 80. The court does not reach the issue whether there was any public disclosure of the reasons for McGivern's suspension. Defendants are entitled to summary judgment on the liberty interest claim.
III. Substantive Due Process
As best the court can discern, McGivern contends his federal constitutional right to privacy was violated when the polygraph examiner and/or Internal Affairs investigator asked him questions concerning his affair with another IPD officer. McGivern has made frequent use of the terms "right of association" and "right of privacy," but he has failed to develop a coherent claim or to point to any authority that supports a theory from which the facts properly submitted would describe any right to relief.
To support his claim that his right of association with another person was questioned during his polygraph test, McGivern cites a portion of the record that is inadmissible hearsay, and even if it were admissible does not support the claim. See McGivern Dep. at 42. McGivern's claim that the questioning exceeded the scope allowed by IPD Rules and Regulations is offered without citation to the record. The undisputed evidence shows that McGivern himself first raised the topic of his affair, and that the affair was not secret within IPD. McGivern Dep. at 39-41, 43-45.
The transcript of the questions asked in McGivern's polygraph test is referred to in the McGivern's deposition. McGivern Dep. at 30. Neither party submitted the transcript as evidence.
To state a proper claim against IPD for a violation of substantive due process, the violation claimed would have to be "utterly unreasonable." Trejo v. Shoben, 319 F.3d 878, 888 (7th Cir. 2003), quoting Swank v. Smart, 898 F.2d 1247, 1252 (7th Cir. 1990). None of the admissible evidence within the record suggests that IPD's actions were utterly unreasonable. See Swank, 898 F.2d at 1252) ("The Constitution is not an employment manual"). The City is entitled to summary judgment on this claim.
IV. State Constitutional Claims
McGivern's complaint also refers to violations of rights under the Indiana Constitution. Cplt. at 3. He also seeks damages directly under the Indiana Constitution. The Supreme Court of the United States has recognized an implied right under the United States Constitution to sue individual federal agents for damages for violations of federal constitutional rights. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Supreme Court of Indiana has never recognized such an implied right of action for damages under the Indiana Constitution (apart from "just compensation" provisions that expressly authorize damages).
Recognizing such an implied right to sue for damages under the Indiana Constitution would work a dramatic change in Indiana law, in the relationships between citizens and their state and local governments, and between those governments and their employees. If such a step is to be taken, it will need to be taken by the Indiana courts, not by a federal court whose duty is to apply existing Indiana law. See Craig v. Christ, No. IP 96-1570-C H/G, Entry on Def. Motions for Summary Judgment and to Dismiss and City's Motion to Strike (S.D.Ind. Dec. 15, 1998). Recent decisions in this district have consistently reached the same conclusion. See, e.g., Willits v. Wal-Mart Stores, Inc., 2001 WL 1028778, *15 (S.D. Ind. July 30, 2001) (McKinney, J.); Pearson v. Indiana High School Athletic Ass'n, 1999 WL 33117389, *3-4 (S.D.Ind. Feb. 8, 2000) (Tinder, J.). Plaintiff's claims for damages under the Indiana Constitution fail as a matter of law.
V. Punitive Damages
In all four of the plaintiff's counts, he prays for punitive damages. Punitive damages are not recoverable against a municipality in a section 1983 suit. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Punitive damages also are not available under the Indiana Tort Claims Act. Ind. Code § 34-13-3-4. Defendants are entitled to summary judgment on the punitive damages request regarding all counts, including the one that survives summary judgment.Conclusion
For all of the reasons explained above, defendants' motion for summary judgment is granted in part and denied in part. All claims against defendants other than the City of Indianapolis are dismissed. Summary judgment is granted against McGivern on his federal substantive due process claim and the procedural due process claim based on McGivern's liberty interest, on all claims arising under state law, and on the issue of punitive damages. Summary judgment is denied as to McGivern's federal procedural due process claim as it relates to his alleged property interest in uninterrupted employment.
So ordered.