ECTOR v. POWELL, (S.D.Ind. 2002)

SARAH EVANS BARKER, United States District Judge.

Defendant Myron Powell, a former Indianapolis Police Department ("IPD") officer, was allegedly present at a violent encounter between Plaintiffs and co-Defendant Michael Highbaugh but failed to intervene to prevent Plaintiffs from suffering injury. Plaintiffs filed suit under 42 U.S.C. § 1983 against Powell, Highbaugh, various IPD officials, and the Consolidated City of Indianapolis, arguing that certain actions of IPD policymakers gave rise to municipal liability for injuries stemming from the encounter. The City now moves for summary judgment. For the reasons stated in detail below, we GRANT Defendant's Motion for Summary Judgment.

Factual Background

Myron Powell attended the IPD Training Academy from October 8, 1990, to February 22, 1991. (D's Statement of Material Facts ¶ 20; Pl's Statement of Addt'l Material Facts ¶ 51.) Upon completion of the IPD Training Academy, every police officer is required, pursuant to IPD policy, to complete a preparatory Field Training Officer ("FTO") program before being retained and sworn as an officer. (D's Statement of Material Facts ¶ 15.) This "hands-on" portion of the program is designed to allow officers to apply their classroom training to real-life situations. (Id. ¶ 16.) The FTO program also includes a structured curriculum to train officers on IPD policies, including standard procedures and the criminal code. (Id. ¶ 18.) During Powell's participation in the FTO program, several superior officers noted deficiencies in Powell's conduct and performance, including a lack of professionalism, excessive talking, disrespect and insubordination to superiors, failure to accept criticism, and dishonesty upon request for information regarding alleged misconduct. (Pl's Statement of Addt'l Material Facts ¶¶ 53, 55-57, 62, 64.) One probationary performance report noted that, while patrolling his beat, Powell at times failed to recognize criminal activity or ignored it. (Id. ¶ 69.) In a separate incident, Powell was recommended for a one-day suspension for working at a nightclub in uniform without a permit while off duty and failing to provide truthful information about the incident, all in violation of IPD policy. (Id. ¶¶ 78-85.) Then IPD Chief James Toler informed Powell that the recommendation was sustained and the suspension must be served. (Id. ¶ 86.)

Immediately prior to the end of Powell's probationary period, the IPD Anniversary Review Board unanimously recommended to Chief Toler that Powell be terminated based on his lackluster performance. (Id. ¶ 87.) On February 20, 1992, Toler overrode the Board's recommendation and instead imposed a five-day suspension for Powell's repeated violation of IPD rules prohibiting repeated offenses and requiring improved performance, conduct, or attitude. (Id. ¶ 91.) Toler also required Powell to undergo performance evaluations every 90 days for one year, with the understanding that any unsatisfactory report would be cause for termination. (Id. ¶ 92.) Powell's probationary period under the FTO program expired on February 22, 1992. (Id. ¶ 21.)

From March 1992 to June 1997, while employed as an IPD officer, Powell was cited repeatedly by superior officers for violations of IPD policy, including: conduct unbecoming an officer related to use of profanity; failure to cooperate or be truthful; failure to mark in for service and being absent for extended periods; failure to respond to a dispatched radio run; wearing improper attire to a court appearance; destroying a crime scene by sending a victim to the hospital without first notifying on-duty police; failure to appear at a jury trial; failure to have an off-duty work permit on file; (Id. ¶¶ 93, 96, 101-104, 107, 113.) In several of these cases, Powell received reprimands or suspensions that were later affirmed by Toler or his successor, Chief of Police Michael Zunk. (Id. ¶ 95, 108, 113, 125.)

However, in some cases Toler did not sustain the disciplinary recommendations for Powell's alleged misconduct.

On June 26, 1997, Lieutenant Greg Biebrich requested that Powell undergo a fitness for duty exam based on Powell's repeated failure to respond to assigned runs and to correct unacceptable behavior. (Id. ¶ 126.) Toler, who had at that point been reassigned to the position of Captain, informed Chief Zunk that Powell would be removed from street duty pending the outcome of the examination. (Id. ¶ 128.) After a psychological examination indicated that Powell's job performance difficulties were not related to intellectual or emotional problems, Powell returned to street duty on June 30, 1997. (Id. ¶¶ 129, 132.) In September 1997, while employed at a night club during off-duty hours, Powell was accused of striking a civilian twice in the chest with a flashlight and refusing to intervene in a fight in which a gun was allegedly involved. (Id. ¶ 133.) The IPD Office of Internal Affairs determined that the complaint against Powell should be sustained. (Id. ¶ 134.) Based on this complaint, Powell received a written reprimand for failing to identify himself when requested to do so. (Id. ¶ 135.)

On December 11, 1997, Officer Powell and civilian Michael Highbaugh visited David Hairston's residence at 4307 N. Sunshine Avenue, Indianapolis. (Id. ¶ 1.) Cousins Khalala Ector and Michael D. Ector, II were visitors at the residence and did not personally know Powell or Highbaugh. (Id. ¶ 2.) Although Powell was off duty at the time, he wore a police uniform, including a badge believed by Khalala Ector to identify Powell as an IPD officer. (D' Statement of Material Facts ¶¶ 5, 7; Pl's Response to D's Statement of Material Facts ¶ 5.) A white police car was parked outside the Hairston residence. (Pl's Statement of Addt'l Material Facts ¶ 31.) Powell identified himself as "Officer Thompson." (D's Statement of Material Facts ¶ 6.) Powell and Highbaugh declared their intention to search the premises for drugs. (Pl's Statement of Addt'l Material Facts ¶ 33.) Hairston refused to allow the search because Powell and Highbaugh had no search warrant. (Id. ¶ 34.) Powell and Highbaugh replied that a search warrant was on the way and that more officers would arrive shortly. (Id. ¶ 35.)

After entering the residence, and in the presence of the Ector cousins, Highbaugh drew his revolver and shot and killed Hairston. (Id. ¶ 8.) He also shot and wounded Michael Ector. (Id. ¶ 9.) Highbaugh then pointed his revolver at Khalala Ector's face and repeatedly bulled the trigger, but the weapon did not fire. (Id. ¶ 10.) He pulled out a knife and proceeded to stab Khalala Ector repeatedly about the head and neck area. (Id. ¶ 11.) Officer Powell observed all these events but did not intervene at any time. (Id. ¶ 12.)

Standard of Review

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The mere existence of a factual dispute will not bar summary judgment; the facts in dispute must be outcome-determinative. Id. In considering a motion for summary judgment, a court must review the record and draw all reasonable inferences in the light most favorable to the non-moving party. Id. at 255; Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001). "[A] party will be successful in opposing summary judgment only when they present definite, competent evidence to rebut the motion." Smith on Behalf of Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Summary judgment is required only if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his or her case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Analysis

Plaintiffs have filed suit under 42 U.S.C. § 1983, alleging that the City is liable for the constitutional injuries inflicted by Powell upon the Ector cousins because of policies and practices illustrating a deliberate indifference on the part of IPD officials to the constitutional rights of citizens.

Section 1983 provides redress for constitutional violations committed by state actors under the color of law. Larsen v. City of Beloit, 130 F.3d 1278, 1282 (7th Cir. 1997); Willits v. Wal-mart Stores, Inc., 2001 WL 1028482 (S.D.Ind. 2001). It is well settled, however, that § 1983 does not allow for municipal liability based only on a theory of respondeat superior. Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 690 (1978); Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 468 (7th Cir. 2001). In order to properly maintain a § 1983 action against a municipality, a plaintiff must demonstrate "(1) that the city had an express policy that, when enforced, causes a constitutional deprivation; (2) that the city had a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage within the force of law; or (3) that the plaintiff's constitutional injury was caused by a person with final policy-making authority." Billings v. Madison Metropolitan Sch. Dist., 259 F.3d 807, 817 (7th Cir. 2001); Medina v. City of East Chicago, Ind., 2001 WL 1587880, at *8 (N.D.Ind. 2001).

A. Color of state law

Defendant first argues that Powell's role in this incident occurred outside the scope of his official duties and, therefore, not under the color of law. It is undisputed that Powell was off duty at the time of the events upon which this lawsuit is based. However, off-duty status by itself does not necessarily determine whether an officer acted under color of law. Latuszkin v. City of Chicago, 250 F.3d 502, 505 (7th Cir. 2001). Actions taken by public employees occur under color of state law when they involve a misuse of power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Honaker v. Smith, 256 F.3d 477, 484 (7th Cir. 2001), quoting Walker v. Taylorville Correctional Center, 129 F.3d 410, 413 (7th Cir. 1997), quoting West v. Atkins, 487 U.S. 42, 49 (1988). "The important consideration . . . is the nature of the specific acts performed." Latuszkin, 250 F.3d at 505-06. See also Pickrel v. City of Springfield, Ill., 45 F.3d 1115, 1118-19 (7th Cir. 1995).

Defendant argues essentially that Powell aided in the commission of a homicide with the intent of stealing drugs or drug money and that, because such actions were "motivated by his own personal desires," he did not act under color of state law. The color of law analysis does not turn on the desires or motivating factors, but on the means by which the constitutional injuries are carried out. Here, Powell, dressed in his IPD uniform and badge and with his squad car in plain view from the front door of the Hairston residence, expressed an intent to conduct a search and cautioned that more officers would arrive soon. Conducting a search for drugs pursuant to a warrant bears a direct and obvious connection to Powell's duties as a police officer. Khalala Ector reasonably presumed that Powell was an IPD officer based on Powell's display of a badge, Powell's self-identification as "Officer Thompson," and the presence of a marked police car. The facts reveal that Powell and Highbaugh gained access to the house and accomplished the violent acts that injured Khalala and Michael Ector based to some extent on the fact that Powell was cloaked in the authority of his position when he arrived at the Hairston residence. Accordingly, Defendant's Motion for Summary Judgment on this basis is not well taken.

B. Action by a policymaker

Defendant next argues that Plaintiffs cannot maintain a claim against the City under § 1983 because Plaintiffs cannot prove that the alleged injuries resulted from the action of an official with final, policymaking authority. Status as a policymaker for § 1983 purposes is conferred by state or local law. Kujawski v. Board of Com'rs of Bartholomew County, Ind., 183 F.3d 734, 737 (7th Cir. 1999). Indiana law indicates that "a police chief . . . is the final policymaker for his municipal police department." Eversole v. Steele, 59 F.3d 710, 716 (7th Cir. 1995), citing Ind. Code § 36-8-3-3(g). However, this inquiry turns on the nature of the actions at the heart of the claim. The power to manage the members of a municipal police department is distinct from the power to fashion policy on behalf of the City. Venters v. City of Delphi, 123 F.3d 956, 966 (7th Cir. 1997), citing Radic v. Chicago Transit Auth., 73 F.3d 159, 161 (7th Cir. 1996). "The question is whether the promulgator, or the actor, as the case may be-in other words, the decisionmaker-was at the apex of authority for the action in question." Gernetzke, 274 F.3d at 468.

We must examine the record carefully to discern whether such a connection exists between Toler's area of policymaking authority and the acts underlying the constitutional claim. It is undisputed that Toler overrode the recommendations of the Anniversary Review Board and police personnel in deciding to retain Powell following his consistently subpar performance in the FTO program. Toler also refused to affirm at least two disciplinary recommendations made by Powell's superior officers in response to assorted violations of police procedure. These actions indicate that, in accordance with Indiana law, Toler acted as the final policymaker for IPD in the realm of officer discipline and conduct.

His decisions regarding employment terms and discipline for Powell's misconduct carried the force suggested by his position as Chief of Police and his decisions were final. This policymaking authority was not specific to Toler, but accompanied the office of Chief of Police which he held and, therefore, extended to Zunk's actions as well. We therefore find that Toler and Zunk acted as final policymakers for IPD, an agency of the City.

C. Policy, practice, or custom

Defendant next argues that Plaintiffs have failed to establish the existence of a policy, practice, or custom sufficient to trigger municipal liability under § 1983. Having already determined that Toler and Zunk acted as final policymakers for IPD and the City in the area of officer misconduct, we must next examine whether "the plaintiff's constitutional injury was caused by a person with final policy-making authority." Billings, 259 F.3d at 817 (emphasis added).

Plaintiffs cannot establish municipal liability without showing that the municipality's policy was the "moving force" behind the constitutional violation. Board of County Com'rs of Bryan County, Okla. v. Brown. 520 U.S. 397 (1997); Cornfield by Lewis v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993). This may be shown indirectly "`by showing a series of bad acts and inviting the court to infer from them that the policymaking level of government was bound to have noticed what was going on and by failing to do anything must have encouraged or at least condoned, thus in either event adopting, the misconduct of subordinate officers.'" Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d 525, 531 (7th Cir. 2000), quoting Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir. 1995).

Defendant argues that Plaintiffs cannot show sufficient inaction from which to infer that the City encouraged or even condoned Powell's actions. IPD maintained a formal procedure to review allegations of misconduct by officers and to impose appropriate discipline for adjudged misconduct. It is undisputed that, under such procedures, Powell was disciplined on a number of occasions for violations of department policy ranging from wearing improper attire to a court appearance to insubordination. Plaintiffs admit that IPD officials imposed discipline for the vast majority of Powell's incidents of misconduct; they simply contend that the discipline was not severe enough to prevent the far more serious offenses later committed by Highbaugh and Powell. Notwithstanding Plaintiffs' critique of IPD's former discipline system, the extensive record of discipline imposed upon Powell indicates that IPD neither encouraged nor condoned his misconduct at any level. At most, the facts alleged by Plaintiff suggest that Toler may have been negligent in imposing or rejecting particular disciplinary sanctions. However, negligence will not support a claim for municipal liability under § 1983. Hirsch v. Burke, 40 F.3d 900, 905 (7th Cir. 1994), citing City of Canton v. Harris, 489 U.S. 378, 391-92 (1989).

Defendant also argues that no connection exists between Powell's prior misconduct and the constitutional violations alleged in this case. This argument addresses the causation element, specifically whether the municipal policy of allegedly inadequate discipline constituted the "moving force" behind the constitutional violation. Typically, municipal inaction can only give rise to liability under § 1983 "where the injury is caused by `faults systemic in nature.'" Sims v. Mulcahy, 902 F.2d 524, 543 (7th Cir. 1990), quoting Strauss v. City of Chicago, 760 F.2d 765, 770 (7th Cir. 1985). The necessary showing to establish causation is heightened where the "course of municipal inaction . . . is a good deal removed from the constitutional deprivation alleged." Sims, 902 F.2d at 543.

Plaintiffs argue that Powell's record of misconduct should have alerted Toler to the likelihood that Powell would be involved in more serious offenses, such as the incident at the Hairston residence.

In support of this argument, Plaintiffs offer the testimony of two expert witnesses in the areas of law enforcement policies and psychology to suggest that Powell did not receive sufficient discipline to prevent his subsequent alleged misconduct. These complaints — however relevant and compelling given the nature of the crime alleged — do not address the applicable legal standard for municipal liability under § 1983.

More instructive is the decision in Waslewski v. Kato, 1993 WL 8761 (N.D.Ill. 1993). There, the plaintiff, Michael Waslewski, filed suit under § 1983 against the City of Chicago for injuries allegedly resulting from excessive force applied by three Chicago police officers. Id. at *1. Waslewski alleged that the City had failed to effectively discipline one of the officers, Kato, who had established a pattern of similar abuses, thereby exhibiting deliberate indifference. Id. at *3. The court dismissed the complaint, explaining, "[T]he allegation that Kato has not received adequate discipline for similar misconduct in the past is not enough to suggest that a department-wide policy of deliberate indifference to such misconduct exists." Id. at *5.

Although decided in a different procedural context from the present case, the court's decision in Waslewski illuminates the problem with Plaintiffs' allegations here. Plaintiffs have not provided evidence tending to establish that the problems with discipline were repeated or systematic, as is required to support the inference that City policymakers were deliberately indifferent to Powell's misconduct. Plaintiffs take issue only with the outcomes in Powell's cases. Absent some evidence of a pattern of similar behavior, either in terms of Powell's tendency to violate citizens' constitutional rights or the City's tendency to ignore evidence of other such incidents, Plaintiff cannot establish that IPD's disciplinary policy decisions regarding Powell were in fact the "moving force" behind the constitutional violations at issue. Accordingly, for all the reasons explained above, Defendant's Motion for Summary Judgment as to Plaintiffs' failure to discipline claim is GRANTED.

D. Failure to screen

Plaintiffs also allege that the City utilized a deficient screening process in deciding to hire Powell, giving rise to municipal liability for Powell's alleged constitutional violations. To maintain such a claim, a plaintiff must "allege and establish that the defendants went about the hiring process with `deliberate indifference.'" Kitzman-Kelley on behalf of Kitzman-Kelley v. Warner, 203 F.3d 454, 458 (7th Cir. 2000). "The requisite showing of culpability `requires a strong connection between the background of the particular applicant and the specific constitutional violation alleged.'" Id., quoting Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998).

As discussed earlier, Plaintiffs have not shown the required strong connection between Powell's past misdeeds and the constitutional violation upon which this lawsuit is based. At most, Plaintiff has offered evidence suggesting that Powell displayed a lack of honesty about an alleged theft when interviewed by a polygraph examiner during the application process for the IPD Training Academy.

This allegation bears little or no connection to the violent acts in which Powell allegedly later participated, which diminishes its value in terms of establishing liability on the part of the City.

Therefore, Defendant's Motion for Summary Judgment as to Plaintiffs' failure to screen claim is GRANTED.

E. Failure to train

Inadequate police training can only give rise to liability under § 1983 where the failure to train constitutes "deliberate indifference to the rights of the city's inhabitants." Kindle v. City of Harvey, Ill., 2002 WL 230779, at *2 (N.D.Ill. 2002). "The finding of `deliberate indifference' is derived from the City's failure to act in the face of `actual or constructive notice' that such a failure is likely to result in constitutional deprivations." Robles v. City of Fort Wayne, Ind., 113 F.3d 732, 735 (7th Cir. 1997).

A plaintiff may establish deliberate indifference either by showing that a municipality failed to train its employees regarding an obvious constitutional duty that a particular employee is certain to face or by showing that a municipality failed to respond to repeated complaints of constitutional violations committed by its officers. Kindle, 2002 WL 230779, at *2, citing Canton, 489 U.S. at 390 n. 11. See also Cornfield v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993).

Plaintiffs have failed to provide sufficient proof for a reasonable factfinder to conclude that the City failed to train Powell. Powell underwent a one-year supplemental training program in addition to his IPD Training Academy experience. Instructors in this hands-on program observed Powell's performance and though they voiced many complaints about his failure to follow established police procedure, he apparently completed the course with passing marks. Plaintiff has offered no evidence that this program suffered from deficiencies in any particular area of constitutional rights or that Powell completed the training with anything less than an adequate understanding of his duty to protect the clear constitutional rights of citizens. Moreover, there is no evidence in the record that Powell established a pattern of constitutional violations, only that he was repeatedly cited for failure to follow police procedures regarding time-keeping, work assignments, off-duty work permits, and other administrative functions. The record thus demonstrates no pattern of constitutional abuses to which Toler or Zunk could show deliberate indifference. Therefore, Defendant's Motion for Summary Judgment as to Plaintiffs' failure to train claim is GRANTED.

Conclusion

Defendant Consolidated City of Indianapolis has moved for summary judgment, arguing that Plaintiffs could not establish a municipal policy, practice, or custom to give rise to municipal liability for injuries inflicted on Plaintiffs by Defendants Powell and Highbaugh. For the reasons stated above, we find that 1) Plaintiffs have provided sufficient evidence for a reasonable factfinder to conclude that Myron Powell acted under color of law in his encounter with Khalala and Michael Ector; 2) James Toler and Michael Zunk served as official policymakers as IPD Chief of Police, such that their actions constituted municipal policy under § 1983; however 3) Plaintiffs have offered no evidence suggesting that Toler's or Zunk's actions, properly characterized as municipal policy, were the "moving force" behind Powell's alleged constitutional violation; 4) Plaintiff has failed to offer facts suggesting that the City exhibited deliberate indifference in hiring Powell; and 5) Plaintiffs have not offered any evidence suggesting that the alleged constitutional injuries resulted from the City's failure to train Powell.

Accordingly, the City's Motion for Summary Judgment is GRANTED.

It is so ORDERED this day of February, 2002.

SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana