Opinion
IP 01-0343-C-T/K.
September 12, 2002
ENTRY ON MOTION FOR SUMMARY JUDGMENT AND MOTION FOR STAY
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff sued Defendants under 42 U.S.C. § 1983 alleging, inter alia, unlawful detention and arrest, excessive force and deprivation of her medication. Defendants moved for summary judgment. Plaintiff moved for a stay of orders and proceedings.
I. Motion For Stay
Plaintiff moved the court for a ninety-day stay on all orders and proceedings in this case based on her alleged July 5, 2002, operation and other health issues. Defendants opposed the motion. Plaintiff previously moved for a stay of orders and proceedings, which was unopposed by Defendants. A thirty-day stay was granted by the court, which stay ended on July 19, 2002.
The pending motion for a stay, like the one before it, is unsupported by any medical or other evidence to substantiate Plaintiff's request for a stay. This alone is a sufficient reason for denying Plaintiff's motion. Also, Defendants' motion for summary judgment has been fully briefed and is ripe for ruling. Plaintiff has made no showing that her current medical condition, whatever it may be, adversely affected her ability to respond to that motion. Therefore, Plaintiff's motion for a stay is DENIED.
II. Background
The following facts in the record are either undisputed, or if disputed, viewed in the light most favorable to Plaintiff with all reasonable inferences based on the facts drawn in her favor. Plaintiff, Cynthia Smith-Walker, lived with John Patterson from February until May 1999. On March 14, 1999, at approximately midnight, Marion County Sheriff's Deputies Brian Zelinsky and Nicole Rennaker were dispatched to Patterson's residence on a domestic disturbance call. This was the third time the Sheriff's Department had been called to the residence that day. Plaintiff and Patterson were involved in an emotionally charged domestic situation that had begun earlier that day when Plaintiff learned that Patterson intentionally infected her with herpes.
The first time the Sheriff's Department went to the residence that day was after Plaintiff called for help because Patterson would not let her leave. The deputies arrived, spoke with Plaintiff and asked her if she wanted to leave. Patterson decided to stay and talk more with Patterson. The second time the Sheriff's Department was called to the residence apparently by Patterson. Plaintiff was sitting in the driveway and had fallen asleep. Plaintiff left the residence and drove around the block and found Patterson sitting in his car on another street.
The third time deputies were dispatched to the Patterson residence based on a telephone call from Patterson. Deputy Rennaker first approached Plaintiff and Patterson on another street around the corner from the Patterson residence. Deputy Rennaker knew there had been a prior domestic disturbance call earlier that day at the residence to which deputies had responded. Rennaker asked Plaintiff what the problem was. Plaintiff responded that Patterson had some of her medication which she needed. Deputy Rennaker then went over to Patterson's vehicle to talk to him for a few minutes. She returned and said that they needed to go to Patterson's house. Plaintiff expressed concern about dealing with Patterson and indicated she just wanted to get her medication back. Deputy Rennaker told Plaintiff that they could go to Patterson's house or go downtown. So, Plaintiff, Patterson and the Deputy Rennaker went to the Patterson residence. Deputy Zelinsky arrived a short while later.
Deputies Rennaker and Zelinsky attempted to talk to Plaintiff and Patterson outside of the residence on the driveway, but Plaintiff was yelling and cursing. After approximately one to five minutes, Deputy Rennaker asked Plaintiff if she would like to go inside the residence to discuss the situation. Plaintiff walked into the house. Once inside, she continued to be loud, was screaming, yelling, cursing, belligerent and out of control. The deputies told Plaintiff to calm down several times, but she would not.
Plaintiff was so loud that Rennaker and Zelinsky were unable to conduct their investigation. Plaintiff said, "fuck you" to Zelinsky and repeatedly yelled, "how the fuck would you feel if your boyfriend gave you herpes?" (Zelinsky Dep. at 11, 23.) In the deputies' opinion, Plaintiff was out of control, could not be spoken with and was not listening to their directions. The deputies repeatedly told Plaintiff to calm down and relax, but she became verbally abusive toward them. After Plaintiff ignored repeated requests by Rennaker and Zelinsky to lower her voice and be quiet, she was arrested for disorderly conduct. The deputies were inside the residence for approximately ten minutes; the entire encounter before Plaintiff's arrest was approximately fifteen to twenty minutes.
After deciding to arrest Plaintiff, Deputies Rennaker and Zelinsky grabbed her arm and put handcuffs on her. A short time later, Rennaker escorted Plaintiff out of the residence, holding her elbow in case she decided to run and to make sure she did not fall as she walked out. Plaintiff was then placed in Rennaker's squad car. A paddy wagon was called and, after it arrived, Plaintiff was transported in it to the Marion County Jail.
At the time of this incident, Plaintiff was taking Ceftin for a kidney or urinary tract infection, which medication was prescribed by Andrew Dick, M.D. on March 11, 1999. Plaintiff told Rennaker that she had a kidney or bladder infection and that she was at the residence to get her medication back. The deputies asked Patterson if he had the medication or knew where it could be, and he said he did not. After the arrest, Rennaker inventoried Plaintiff's purse and vehicle for weapons and high-value items. Neither Rennaker nor Zelinsky found Plaintiff's medication. Plaintiff's purse was taken into custody and went to the jail. Plaintiff's medication was not in her purse.
Plaintiff was released from the jail at 9:35 a.m. on March 14, 1999. On March 16 she saw Dr. Dick for her urinary tract infection and was told to continue Ceftin. She saw the physician again on March 24 at which time he reported that her urinary tract infection was resolved. Plaintiff sustained no physical injuries from this incident, other than an alleged worsening of symptoms of her infection from being deprived of her medication. Plaintiff has not produced any evidence of the emotional injuries she claims to have suffered from this incident.
III. Summary Judgment Standard
Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When deciding whether there is a genuine issue of material fact, the court views the facts in the light most favorable to the nonmoving party and draws all reasonable inferences from those facts in her favor. Smith v. Ball State Univ., 295 F.3d 763, 767 (7th Cir. 2002).
IV. Discussion
Plaintiff alleges: (1) wrongful detainment and imprisonment by making her reenter the premises of the domestic dispute where no criminal complaint or charges were pending; (2) wrongfully provocation of Plaintiff by threatening "We'll put you in the back of a paddy wagon and drive you around for a few weeks" and placing her in reasonable fear for her safety; (3) excessive force to effectuate her arrest; (4) physical assault; (5) the driver of the paddy wagon placed her in fear for her safety by going on an emergency pursuit of a speeding automobile while she was handcuffed but not secured; and (6) failure to maintain her medication or losing or otherwise misplacing her medication, thus worsening and prolonging her illness. Plaintiff alleges that the Marion County Sheriff's Department ("Sheriff's Department") violated her constitutional rights by failing to instruct, supervise, control and discipline the Defendant officers to refrain from violating citizens' constitutional rights. She further alleges that the Sheriff's Department failed to have adequate protocols and customs in practice and that the training of the Defendant officers violated her constitutional rights.
Plaintiff also alleges that the Defendants failed to administer justice during the call to the Patterson residence, but the court understands this to be simply a general restatement of her specific allegations.
Defendants contend they are entitled to summary judgment on several grounds: (1) there was probable cause to detain and arrest Plaintiff for disorderly conduct; (2) they are entitled to qualified immunity on the false arrest claims; (3) they did not use force in effecting Plaintiff's arrest; (4) Plaintiff's alleged deprivation of medical care does not constitute deliberate indifference to a serious medical need; (5) Plaintiff cannot establish a custom, policy or practice of the Sheriff's Department for failure to train, instruct, supervise, control or discipline; (6) Plaintiff's claim regarding her transportation to the jail does not constitute a constitutional injury; (7) the claim against Sheriff Cottey in his individual capacity fails for lack of personal involvement; and (8) the claim against Stephanie Rogers fails for lack of personal involvement.
A. Plaintiff's Detention and Arrest
Plaintiff alleges that she was wrongfully detained and arrested. Defendants contend that neither Plaintiff's detention nor her arrest violated her constitutional rights.
Probable cause for arrest is "an absolute bar" to a claim for unlawful arrest or false imprisonment under § 1983. See Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir. 1989). "A law enforcement officer has probable cause to make an arrest when `the facts and circumstances within [his] knowledge and of which [he has] reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.'" Jones by Jones v. Webb, 45 F.3d 178, 181 (7th Cir. 1995) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). The question of whether probable cause exists is generally a jury question, id. at 181-82, but "when the facts permit but one conclusion — that is, only when no reasonable jury could find that the officer did not have probable cause to make an arrest" the court may find that probable cause existed as a matter of law. Id. at 182 (quotation omitted).
The court finds that the record even when viewed in the light most favorable to Plaintiff supports only one reasonable conclusion: Deputies Zelinsky and Rennaker had probable cause to arrest Plaintiff for disorderly conduct. Under Indiana law, a person "who recklessly, knowingly, or intentionally . . . makes unreasonable noise and continues to do so after being asked to stop . . . commits disorderly conduct, a Class B misdemeanor." Ind. Code § 35-45-1-3(2). The uncontradicted evidence is that over the course of several minutes Plaintiff was loud, screaming, yelling, cursing, belligerent, verbally abusive, and out of control, all of which impeded the deputies' ability to conduct their investigation of the situation. Though the deputies told her to lower her voice and calm down several times, she did not. Thus, this evidence establishes that the totality of the facts and circumstances known to Deputies Rennaker and Zelinsky were sufficient to warrant a reasonable person in believing that Plaintiff was engaging in disorderly conduct.
In response to Defendants' motion for summary judgment, Plaintiff contends (1) probable cause did not support her initial detention outside the Patterson residence; (2) her arrest was unlawful because it was motivated by her constitutionally protected speech; and (3) Defendants are not entitled to qualified immunity. The court need not discuss the third contention since it concludes that the record does not support a finding that Plaintiff's constitutional rights were violated by her initial detention or arrest.
An initial detention of an individual is justified if the officer is stopping and briefly detaining "a person for investigative purposes, so long as the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7 (1989); see also United States v. Brown, 232 F.3d 589, 592 (7th Cir. 2002). "Brevity of a detention is an important factor in determining whether it may be justified by reasonable suspicion only. . . ." United States v. Evans, 282 F.3d 451, 455 (7th Cir. 2002).
The court assumes for purposes of the summary judgment motion that Plaintiff was detained by Deputies Rennaker and Zelinsky before she was arrested. However, the court finds that Plaintiff has come forward with insufficient evidence to raise a triable issue as to whether these deputies lacked reasonable suspicion supported by articulable facts that criminal activity may be afoot when Plaintiff was first detained. Probable cause was not required. Plaintiff merely argues that the deposition testimony of Deputies Rennaker and Zelinsky shows they had no articulable suspicion to detain her. She, however, does not point to any specific page in their deposition testimony or elsewhere in the record to support her argument.
Plaintiff argues that the deputies' language and tone of voice indicated that compliance with their requests would be compelled. She also claims that she felt she was under police control from the initial encounter on the street. But whether Plaintiff felt compelled to comply with the deputies' requests, whether she was under police control, and whether Deputy Zelinsky would have allowed her to leave the residence, all pertain to whether Plaintiff had been "seized," so as to trigger the protections of the Fourth Amendment, cf. United States v. Nobles, 69 F.3d 172, 180 (7th Cir. 1995) (describing three categories of police-citizen encounters and the Fourth Amendment requirements on each), not whether the deputies had reasonable suspicion to detain her; and, the court has assumed that Plaintiff was detained prior to her arrest.
The record supports but one reasonable conclusion: Deputies Rennaker and Zelinsky had reasonable suspicion to detain Plaintiff for investigative purposes before her arrest. The record establishes without contradiction: the deputies were called to the Patterson residence on a domestic disturbance; Deputy Rennaker was aware that deputies had responded to a similar call at the residence earlier that same day; Plaintiff indicated that she needed her medication from Patterson; and the entire encounter before Plaintiff's arrest was very brief, taking no more than fifteen or twenty minutes. Thus, the deputies had reasonable suspicion to briefly detain Plaintiff to investigate the domestic situation and her complaint that Patterson had her medication which she needed.
Plaintiff argues that she was arrested and charged with disorderly conduct because she engaged in constitutionally protected speech. For support she quotes the police/arrest report which she submitted as Exhibit A to her brief in opposition to the summary judgment motion. The report does not provide evidentiary support for Plaintiff's position. First, Defendants maintain that the police/arrest report constitutes hearsay. Plaintiff has not identified any hearsay exception. Thus, the report is inadmissible. Moreover, the police/arrest report cannot be reasonably read as stating that Plaintiff was arrested because she directed profanity at Deputy Zelinsky. Rather, the report states in relevant part that Plaintiff had become verbally abusive, the deputies asked her several times to lower her voice and be quiet, she said "F**k you" several times to Deputy Zelinsky, and "at this time" she was placed under arrest for disorderly conduct. (Pl.'s Ex. A.) Thus, the report indicates only that Plaintiff's arrest followed her use of profanity. Even if considered, the police/arrest report provides additional support for the conclusion that the deputies had probable cause to arrest Plaintiff for disorderly conduct.
The court finds that Plaintiff has failed to raise a genuine issue of material fact regarding her § 1983 claims based on an alleged unlawful detention or unlawful arrest. Defendants, therefore, are entitled to summary judgment on such claims.
B. Excessive Force Claims
Plaintiff alleges that excessive force was used to effectuate her arrest, including physical assault by Deputy Rennaker. Plaintiff argues, for example, that excessive force was used in "tackling her to the ground, face down and handcuffing her while simultaneously at least one officer was kicking Plaintiff about her body[.]" (Pl.'s Br. at 19.) Defendants contend Plaintiff has no evidence that excessive force was used against her. Upon considering the record, the court finds that Plaintiff has raised a genuine issue for trial.
Plaintiff offered evidence consisting of her own deposition testimony that the officers tackled her to the ground, placed her in handcuffs, and that one of the officers was kicking her legs and feet from behind. (Pl.'s Dep. at 65.) And this, according to her testimony, even though she did not resist arrest. Defendants argue that Plaintiff has not provided details about this alleged use of force — how she was tackled to the ground, how many times she was kicked, how hard, or who allegedly kicked her. But even without such explication, Plaintiff's testimony is more than merely conclusory. Of course Plaintiff's deposition testimony is self-serving, but it is no less so than that of the deputies. Almost all evidence offered by a party is in a sense self-serving, see, e.g. United States v. Bucur, 194 F.2d 297, 301 (7th Cir. 1952), or the party would not offer it in support of that party's claims or defenses. Though Plaintiff does not claim that she suffered any physical injury because of this alleged use of excessive force and has not offered any evidence to substantiate her claim to have suffered emotional injuries, a plaintiff need not prove an injury in order to prevail on an excessive force claim. See Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 470 n. 3 (7th Cir. 1997).
A mere conclusion would be, for example, a statement that excessive force was (or was not) used against her.
Nonetheless, the fact that Plaintiff has offered no evidence of injury weighs in favor of a finding that there was no excessive force used against her. See, e.g., Lanigan, 110 F.3d at 470 n. 3. The weighing of this lack of evidence is for the jury.
The court notes that both Deputy Rennaker and Zelinsky have denied ever striking, tripping, or kicking Plaintiff. (Curiously, though, they have not denied tackling her to the ground.) Their testimony is corroborated by Patterson who has submitted a declaration, under penalties of perjury, in which he states that neither deputy kicked, struck, or pushed Plaintiff. (He also states that neither deputy tackled or forced Plaintiff to the ground.) This evidence offered by Defendants does nothing more than show a genuine issue of material fact exists for trial. The court's function in viewing the record on a motion for summary judgment is not to judge credibility of the parties or other the witnesses — that is a matter for a jury. The court's only function is to determine whether the record, viewed in the light most favorable to the nonmoving party, here the Plaintiff, with all reasonable inferences drawn in her favor can support but only one verdict — for the moving parties. The record in this case does not satisfy this standard. Depending on which witness or witnesses are believed, a reasonable jury could find in favor of either Plaintiff, or Deputies Rennaker and Zelinsky on the excessive force claim.
Whether Patterson's testimony is "unduly biased" against Plaintiff and is false also is for a jury to determine.
Plaintiff's testimony about the force used against her stands alone in contrast to Deputies Rennaker's and Zelinsky's testimony, as corroborated by the statement of Patterson, the only nonparty witness of the events giving rise to Plaintiff's excessive force claim, as well as the lack of evidence of any physical injury to Plaintiff which is an appropriate consideration in determining whether excessive force was used. Given this record, Plaintiff's burden in persuading a jury that she should prevail on her claim may be difficult. Nonetheless, this court cannot weigh the conflicting evidence when ruling on the summary judgment motion. Plaintiff has carried her burden to defeat summary judgment.
The court finds that Plaintiff has raised a genuine issue of material fact regarding her § 1983 claims based on an alleged use of excessive force against her. For this reason, Defendants' motion for summary judgment must be DENIED with respect to these claims against Defendants Rennaker and Zelinsky.
C. Alleged Deprivation of Medical Care
Plaintiff alleges that Defendants Zelinsky and Rennaker deprived her of her medication for her kidney infection. A pretrial detainee can establish a deprivation of her right to adequate medical care if she can prove that a Defendant acted with deliberate indifference to her objectively serious medical needs. Jackson v. Illinois Medi-Car, Inc., No. 01-4162, 2002 WL 1805576, at *3 (7th Cir. Aug. 7, 2002). This involves an objective and subjective component. The objective component requires that the detainee's medical need be "`objectively, sufficiently serious.'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations omitted)). "A `serious' medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id.
To the extent Plaintiff alleges that Defendants other than Zelinsky or Rennaker deprived her of her medication, she has offered no evidence to show that any Defendant had any personal involvement in the alleged deprivation of her medication, which she must do in order to stave off Defendants' summary judgment motion with respect to the claims against the individual Defendants, see, e.g., Kitzman-Kelley, on behalf of Kitzman-Kelley v. Warner, 203 F.3d 454, 458 (7th Cir. 2000); Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986). Nor has she offered any evidence to show that the Sheriff's Department has a custom or policy of depriving inmates of medication, which she must do in order to prevail on a deprivation of medical care claim against the Department, see Jackson v. Illinois Medi-Car, Inc., No. 01-4162, 2002 WL 1805576, at *5 (7th Cir. Aug. 7, 2002); or against any Defendant in his or her official capacity, as such a suit is really against the Department, see Armstrong v. Squadrito, 152 F.3d 564, 582 (7th Cir. 1998) ("A suit against an individual in his or her official capacity is a suit against the municipality[.]"). Plaintiff's assertion that such a policy exists, without any evidence to support her claim, is simply insufficient to get to a jury.
Under the subjective component, a pretrial detainee must establish that "the relevant official had `a sufficiently culpable state of mind[,] . . . deliberate indifference to [the detainee's] health or safety.'" Jackson, 2002 WL 1805576, at *4 (quoting Farmer, 511 U.S. at 834). Evidence of negligence is insufficient. Id. "`[D]eliberate indifference' is simply a synonym for intentional or reckless conduct, and . . . `reckless' describes conduct so dangerous that the deliberate nature of the defendant's actions can be inferred." Id. (quotation omitted). Thus, to demonstrate deliberate indifference, a plaintiff must offer evidence to show "that the defendants were aware of a substantial risk of serious injury to [her] but nevertheless failed to take appropriate steps to protect h[er] from a known danger." Id. (quotation omitted). That is, an official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. (quotation omitted).
Though Plaintiff has proffered evidence that arguably satisfies the objective component — a physician had prescribed her medication for a urinary tract infection, the record does not support a finding that Deputy Zelinsky or Rennaker or, for that matter, any other Defendant, acted with deliberate indifference. Plaintiff offers no evidence to raise a reasonable inference that Deputy Zelinsky, Rennaker, or another Defendant was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and that they also drew that inference. To the contrary, the evidence establishes that after Plaintiff informed Rennaker that she had a kidney or bladder infection and was at Patterson's residence to get her medication back, the deputies asked Patterson if he had the medication or knew where it could be, and he responded in the negative. Though Rennaker searched Plaintiff's purse and vehicle, neither Rennaker nor Zelinsky found Plaintiff's medication. Further, the record establishes that Plaintiff was released from jail at 9:35 a.m., so any deprivation of her medication was for a very brief period of time. Plaintiff has offered no evidence that this brief deprivation of her medication caused her any serious consequences — two days later she saw Dr. Dick who continued her on the same medication and ten days after her release from jail her infection was resolved.
The court finds that Plaintiff has failed to raise a genuine issue of material fact regarding her § 1983 claims based on a denial of medical care. Thus, Defendants are entitled to summary judgment on such claims.
D. Plaintiff's Transportation to the Jail
Plaintiff alleges that during her transport to the jail in the paddy wagon the driver pursued a speeding vehicle which caused her to fear for her life. She argues that this "rough ride" constituted reckless endangerment and relies on the fact that she had no seat belt available to her.
The Seventh Circuit has commented on the possibility that "a seizure reasonable at the outset may become `unreasonable' because implemented in a needlessly frightening manner." McNair v. Coffey, 279 F.3d 463, 466 (7th Cir. 2002). The court continued by stating that "[o]ne must be careful of equating fright-inducing aspects with `unreasonableness,' however." Id. The analysis under the Fourth Amendment depends on "an objective assessment of the officers' conduct, rather than a subjective assessment of the suspect's reaction to that conduct." Id. Though Plaintiff has evidence that the trip to the jail was frightening to her, she offers no evidence that would support a finding that Deputy Paul Watkins' (the paddy wagon's driver) acted objectively unreasonably in chasing a speeding vehicle on the highway while Plaintiff was in the paddy wagon. To the extent Plaintiff attempts to bring a claim against Deputy Watkins, he is not named as a defendant in this action.
Plaintiff having raised no genuine issue of material fact regarding her § 1983 claim based on the manner in which she was transported to the jail, Defendants are entitled to summary judgment on this claim.
E. Individual Capacity Claims Against Sheriff Cottey
Defendants contend that the individual capacity claims against Sheriff Cottey cannot survive summary judgment because Plaintiff has no evidence of his personal involvement in any of the conduct about which she complains. To withstand summary judgment on an individual capacity claim under § 1983, a plaintiff must offer evidence to raise a reasonable inference that the defendant had personal involvement in the claimed constitutional deprivation of a constitutional right. A defendant cannot be held individually liable under § 1983 on the basis of respondeat superior. See, e.g., Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986); Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir. 1985). Plaintiff has offered no evidence to raise a reasonable inference that Sheriff Cottey was personally involved in the alleged constitutional deprivations. Instead, she has simply based her claim against him on his position as Sheriff, which is an insufficient basis on which to hold him liable under § 1983. Thus, the court finds that summary judgment should be granted Sheriff Cottey on the individual capacity claims against him.
The court assumes that Plaintiff sued Sheriff Cottey in his individual capacity even though it is unclear from either the Complaint or Revised Complaint that she does.
F. Claims Against Stephanie Rogers
Defendants contend that the claims against Stephanie Rogers cannot survive summary judgment because Ms. Rogers had no personal involvement in the conduct about which Plaintiff complains. In her opposition brief, Plaintiff states that she stipulates to the dismissal of Stephanie Rogers. Accordingly, the court finds that summary judgment should be granted in favor of Ms. Rogers, and all claims against her be dismissed.
G. Search of Plaintiff's Person and Vehicle
Plaintiff asserts, for the very first time in her brief in opposition to Defendants' motion for summary judgment that the search of her person and her vehicle violated the Fourth Amendment. These claims were not raised in Plaintiff's Complaint or Revised Complaint. To the extent Plaintiff attempts to add these claims through her opposition brief, her attempt is not only untimely under the Case Management Plan (amendments to pleadings to be made by October 20, 2001), but also may be barred by the two-year statute of limitations, Wilson v. Garcia, 471 U.S. 261, 275 (1985); Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997). Plaintiff has not sought leave to amend her pleadings to add these new claims. Therefore, to the extent she alleges unlawful searches of her vehicle and person, those claims should be dismissed.
H. Claims Against the Sheriff's Department
Plaintiff alleges that the Sheriff's Department violated her constitutional rights by failing to instruct, supervise, control and discipline the Defendant police officers to refrain from violating citizens' constitutional rights. She also alleges that the Sheriff's Department failed to have adequate protocols and customs in practice and that the training of the Defendant officers violated her constitutional rights. Defendants contend that Plaintiff cannot establish the requisite custom or policy to support her claims.
In order to prevail on her § 1983 claims against the Sheriff's Department, Plaintiff must prove that (1) she suffered a constitutional deprivation (2) because of a policy or custom of the Department. See Jackson v. Illinois Medi-Car, Inc., No. 01-4162, 300 F.3d 760, 2002 WL 1805576, at *5 (7th Cir. Aug. 7, 2002); Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001). The only claimed constitutional deprivation which Plaintiff is entitled to have a jury determine is her excessive force claim. Plaintiff cannot possibly prove any other constitutional violation given the record; thus, the court need only consider whether she can establish a policy or custom of using excessive force. Summary judgment should be granted on all other § 1983 official capacity claims and claims against the Sheriff's Department. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978); Jackson, 2002 WL 1805576, at *5.
With regard to the excessive force claim (and all other claims as well), Plaintiff has offered no evidence of a custom or policy to support her § 1983 claim against the Sheriff's Department. For example, she argues that the Sheriff's Department has a policy of allowing the arrest of citizens for disorderly conduct when it is known no charges will be filed against them, but cites no record evidence to establish the existence of such a policy. Plaintiff argues that Deputy Zelinsky's alleged threat was a direct violation of written policy. Her claim makes little sense when put this way; it is difficult to understand how conduct that directly violates written policy can also be caused by that policy. Plaintiff argues there was a policy of allowing operators of prisoner transport vehicles to engage in high speed chases while transporting detainees, but the cited testimony establishes only that Deputy Watkins was unaware of such a policy in favor of stopping a speeder or not pursuing the speeder.
Lastly, Plaintiff contends that her testimony establishes a policy of delay and indifference of a right to medical care. This amounts to nothing more than the argument that if it happened to me, there must be a policy. Yet, proof of a single incident does not prove a custom or policy. Cf. Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) ("Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker."). Therefore, summary judgment should be granted on the official capacity claims and all claims against the Sheriff's Department.
V. Conclusion
Plaintiff's motion for stay is DENIED and Defendants' motion for summary judgment will be DENIED on the § 1983 excessive force claims against Defendants Rennaker and Zelinsky and GRANTED on all other claims in Plaintiff's Complaint and/or Revised Complaint. To the extent Plaintiff asserts unlawful searches of her vehicle and person, such claims are DISMISSED because they were not alleged in Plaintiff's pleadings.
Because this entry does not dispose of all claims, no judgment will be entered at this time.
A telephonic conference for purposes of setting a trial date will be set under separate order.
ALL OF WHICH IS ORDERED this 12th day of September 2002.