Donald v. Outlaw

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

WILLIE T. DONALD,

Plaintiff,

v. CAUSE NO.: 2:17-CV-32-TLS

BRUCE OUTLAW, CARLA K. PYLE, as

special administrator of the estate of John E.

Jelks, Jr., AS-YET-UNKNOWN

EMPLOYEES OF THE CITY OF GARY,

and THE CITY OF GARY,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendant Bruce Outlaw’s Motion for Partial

Summary Judgment [ECF No. 295], filed on June 16, 2022, Defendant Outlaw’s Motion for

Summary Judgment as to Counts I and III of Plaintiff’s Complaint [ECF No. 298], filed on June

17, 2022, Defendant’s, City of Gary, Motion for Summary Judgment [ECF No. 296], filed on

June 17, 2022, and Defendant’s, Carla K. Pyle as Special Administrator of the Estate of John E.

Jelks, Jr. Motion to Join City of Gary’s and Bruce Outlaw’s Motions for Summary Judgment

[ECF No. 303], filed on June 18, 2022. The motions are fully briefed and ripe for ruling. For the

reasons set forth below, the Court denies the motions for summary judgment.

PROCEDURAL BACKGROUND

On January 24, 2017, Plaintiff Willie T. Donald filed a Complaint [ECF No. 1] against

Defendants Bruce Outlaw, Carla K. Pyle, as special administrator of the estate of John E. Jelks,

Jr.,1 as-yet unknown employees of the City of Gary, and the City of Gary. The Plaintiff claims he

served nearly twenty-four years in prison for crimes he did not commit because Defendants

Outlaw and Jelks (the Defendant Officers) violated his civil rights while investigating the crimes

of conviction.

In Count I of his Complaint, the Plaintiff claims due process violations under 42 U.S.C.

§ 1983. Compl. 14, ECF No. 1. He alleges that the Defendant Officers deprived him of his

constitutional right to a fair trial in violation of the Fifth and Fourteenth Amendments and that

the Defendant City of Gary’s policy and practice of pursuing wrongful convictions by

withholding exculpatory information, conducting unduly suggestive identification procedures,

and fabricating inculpatory evidence were the moving forces behind the constitutional violations.

Id. at 14–16. The Plaintiff brings Count II under § 1983 as well, claiming the Defendant Officers

conspired to deprive the Plaintiff of his constitutional rights, pursuant to the Defendant City of

Gary’s policy and practice. Id. at 17–18. In Count III, the Plaintiff claims under § 1983 that the

Defendant Officers failed to intervene in each other’s violations of the Plaintiff’s constitutional

rights, pursuant to the Defendant City of Gary’s policy and practice. Id. at 18. In Count IV, the

Plaintiff claims malicious prosecution under § 1983, alleging that the Defendant Officers

initiated proceedings against the Plaintiff without probable cause, pursuant to the Defendant City

of Gary’s policy and practice. Id. at 19–20. In Count V, the Plaintiff claims malicious

prosecution under Indiana law. Id. at 20–21. In Counts VI and VII, the Plaintiff brings state law

claims of intentional and negligent infliction of emotional distress against the Defendant

Officers. Id. at 21–22. And in Counts VIII and IX, the Plaintiff brings state law claims for

respondeat superior and indemnification against the Defendant City of Gary. Id. at 22–23.

1 For purposes of this Opinion and Order, the Court will refer to Carla K. Pyle, as special administrator of

the estate of John E. Jelks, Jr., as “Defendant Jelks.”

Defendants Outlaw, Jelks, and the City of Gary previously filed separate motions to

dismiss the Plaintiff’s claims. See ECF Nos. 22, 27, 29. The Court granted in part and denied in

part the motions. ECF No. 55. It dismissed Count IV for malicious prosecution under § 1983 as

to Defendant Jelks because, under Indiana law, actions for malicious prosecution may not be

brought against the representative of a deceased party. Id. at 6 (citing Ind. Code § 34-9-3-1). The

Court dismissed Count V for malicious prosecution under Indiana law as to all defendants

because the Indiana Tort Claims Act precludes liability for governmental entities or employees

acting within the scope of their employment for a loss that results from the initiation of a judicial

proceeding. Id. (citing Ind. Code § 34-13-3-3(6)). The Court also dismissed Counts VI and VII

for intentional and negligent infliction of emotional distress against the Defendant Officers

because Indiana Code § 34-13-3-5(b) provides that “[a] lawsuit alleging that an employee acted

within the scope of the employee’s employment bars any action by the claimant against the

employee personally.” Id. at 7.

The parties completed discovery on March 7, 2022. Defendant Outlaw filed his Motion

for Partial Summary Judgment [ECF No. 295] and Motion for Summary Judgment as to Counts I

and III of Plaintiff’s Complaint [ECF No. 298] on June 16 and June 17, 2022, respectively. The

Defendant’s, City of Gary, Motion for Summary Judgment [ECF No. 296] was filed on June 17,

2022. And Defendant’s, Carla K. Pyle as Special Administrator of the Estate of John E. Jelks, Jr.

Motion to Join City of Gary’s and Bruce Outlaw’s Motions for Summary Judgment [ECF No.

303] was filed on June 18, 2022. The Plaintiff responded to all four motions for summary

judgment on October 20, 2022. ECF No. 320. Defendants Outlaw and the City of Gary filed

separate replies on December 9, 2022. ECF Nos. 329, 330.

SUMMARY JUDGMENT STANDARD

Summary judgment is warranted when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The movant may discharge this burden by “either: (1) showing that there is an

absence of evidence supporting an essential element of the non-moving party’s claim; or (2)

presenting affirmative evidence that negates an essential element of the non-moving party’s

claim.” Hummel v. St. Joseph Cnty. Bd. of Comm’rs, 817 F.3d 1010, 1016 (7th Cir. 2016)

(citation omitted). In response, the non-movant “must make a sufficient showing on every

element of [her] case on which [she] bears the burden of proof; if [she] fails to do so, there is no

issue for trial.” Yeatts v. Zimmer Biomet Holdings, Inc., 940 F.3d 354, 358 (7th Cir. 2019) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The court must construe all facts and draw

all reasonable inferences in the light most favorable to the nonmoving party. Id. (citation

omitted). The court’s role “is not to sift through the evidence, pondering the nuances and

inconsistencies, and decide whom to believe. The court has one task and one task only: to decide,

based on the evidence of record, whether there is any material dispute of fact that requires a

trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted).

Facts that are outcome determinative under the applicable law are material for summary

judgment purposes. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

EVIDENTIARY OBJECTIONS

The Material Facts are taken from the Defendant’s, City of Gary, Statement of Material

Facts in Support of Motion for Summary Judgment [ECF No. 297] and Plaintiff’s Statement of

Additional Material Facts [ECF No. 315 at 35–69].2 Whether the subject of a party’s objection or

2 The Plaintiff’s Ex. 1 was refiled at ECF No. 332.

on the Court’s own review, the Court disregards substantive arguments and characterization of

evidence in the fact statements and considers the facts only as supported by the cited evidence of

record. However, the Court addresses the parties’ evidentiary objections. See Fed. R. Civ. P.

56(c)(2); Steffek v. Client Servs., Inc., 948 F.3d 761, 769 (7th Cir. 2020).

The Court overrules the Defendant City of Gary’s hearsay objection to Defendant Jelks’

testimony cited in Plaintiff’s ¶ 41, “she verified she had seen the robber at the [sic] in front of her

house shortly after noon earlier that day,” to the extent it shows the effect on the listener. The

Court overrules the Defendant City of Gary’s hearsay objection to Plaintiff’s Exhibit 22, the

declaration of Sharon Cummings cited in support of Plaintiff’s ¶¶ 56, 58, and 60, apart from the

statements in ¶ 6 of the declaration that “Rhonda . . . stated words to the effect of she thought the

person in the photo might be the person who robbed her,” and “[a]fter Rhonda made this

statement, the Other Victim looked at the photo Rhonda had selected, nodded her head and

began to cry.” The remainder of the declaration contains a combination of Cummings’

observations and statements directly from Cummings. The Court also overrules the Defendant

City of Gary’s hearsay objection to Plaintiff’s Exhibit 21, the Belinsky Photobook Identification

Form, cited in support of Plaintiff’s ¶ 61. The document and its contents may be admissible as a

recorded recollection under Rule 803(5) or as a record of a regularly conducted activity under

Rule 803(6) of the Federal Rules of Evidence.

The Court sustains the Defendant City of Gary’s hearsay objection to the Post-Tribune

Article, Ex. 2, cited in support of Plaintiff’s ¶¶ 5–7, 10, and 29–30. The article is offered as proof

of the crimes and investigation it reports on. The Court also sustains the Defendant City of

Gary’s hearsay objections as to the following statements: Plaintiff’s ¶ 16, “the dispatcher told her

that ‘he just shot someone’”; ¶ 39, “Williams told Hightower that she had just seen the man who

had robbed her on the 27th in front of her house, and asked for a squad car to be sent to try to

catch him”; ¶ 60, “Belinsky looked over at the photograph and started crying”; ¶ 61, to the extent

Williams’ testimony is offered to prove that the woman viewing photos with her was unsure of

her identification; ¶ 86, to the extent it uses Carolyn Beeler’s statement in her declaration,

Plaintiff’s Exhibit 26, to prove that Mary Banks did not identify her assailant in an in-person

lineup; and ¶ 120, “Banks told King that she was being pressured by GPD.”

The Court sustains the Defendant City of Gary’s hearsay objection to ¶ 99 in part, to the

extent it is offered to prove that the Plaintiff ate lunch with his colleagues during his lunch break

on March 2, and overrules the objection in part, to the extent it shows the effect on the listeners,

Defendants Outlaw and Jelks.

MATERIAL FACTS

A. Robberies and Homicide

On February 27, 1992, there was a string of five robberies in Gary, Indiana. See Pl. Ex. 4

at 208:16–22; Pl. Ex. 5 at 541:14–542:10. At approximately 8:20 p.m., a man robbed Tisa

Johnson in front of her home at 3973 Virginia Street. Pl. Ex. 5 at 542:2–4. At approximately 8:30

p.m., a man robbed Christina Cullum on the same block. Id. at 541:24–542:2. Between 8:30 p.m.

and 9:00 p.m., a man robbed Rhonda Williams at her 4409 Connecticut Street home. Pl. Ex. 7;

Pl. Ex. 8 at 10:9–16:13, 85:25–86:8. At approximately 9:15 p.m., Bernard Jimenez and his fiancé

Kimerly Belinsky were returning to Belinsky’s home at 4660 Massachusetts Street when they

were accosted by a man who attempted to rob them. Pl. Ex. 9 at 2. Jimenez fought back, and the

robber shot and killed him. See id. at 2–3. At approximately 9:20 p.m., Mary Banks, a Gary

Police Department (GPD) officer, and her daughter Sonya Thomas were approached by a man

who robbed them in front of their home at 4821 Pennsylvania Street. Pl. Ex. 5 at 542:4–10.

According to Williams, the robbery of her home began when Williams was woken by a

noise outside her window, then heard a knock at her front door—when she opened the door there

was a man pointing a gun in her face who forced her back inside her house. Pl. Ex. 8 at 10:9–

12:15. The robber was a black man with medium complexion wearing a black jacket, a black

Kangol cap, and dark jeans, with a slender build and bump-like scars on his face. Id. at 91:18–

92:23. The robber was not wearing gloves. Id. at 17:9–11. The robber demanded money, and

Williams began to gather money while the robber searched her home. Id. at 12:16–13:10. The

robber ransacked Williams’s bedroom, going through drawers and flipping over the mattress,

then moved on to the kitchen, taking the lids off kitchen canisters and going into the refrigerator

searching for money that might be hidden. Id. at 15:7–11, 16:23–17:8. Eventually the robber left,

telling Williams to get on the floor and stay down. Id. at 15:12–16:8. After some time had

passed, Williams got up and called the police. Id. at 16:8–13. The 911 dispatcher asked if the

robber had a red bandana, which he did have. Id. at 32:15–33:4.

Belinsky, her fiancé Jimenez, and her three children were returning to Belinsky’s home

when they were accosted by a man with a gun. Pl. Ex. 10 at 14:1–16:14, 82:21–24. Jimenez tried

to calm the robber down, Belinsky’s children screamed, and Belinsky laid on the porch holding

her baby. Id. at 20:11–21:1, 85:11–20. At one point, the robber grabbed one of Belinsky’s

children and placed his hand over her mouth. Id. at 78:5–79:6. At another point, the robber

pressed the gun up against Belinsky’s one-year-old child’s head. Id. at 85:12–20. Belinsky was

scared, and her primary focus was on protecting her children. Id. at 19:19–25, 79:20–23, 130:3–

131:14. Jimenez picked up a picnic table and began to scuffle with the robber, which allowed

Belinsky and her children to run inside the house. Id. at 23:4–20, 24:14–17. Shortly after

Belinsky ran inside there were gunshots, and Jimenez collapsed on the porch of the house across

the street. Id. at 28:1–18. Jimenez was rushed to the hospital but did not survive. Pl. Ex. 11 at

377:12–378:2, 387:3–13.

B. Defendants Outlaw and Jelks Investigate

The Defendant Officers were the GPD detectives assigned to investigate the robberies—

Defendant Outlaw primarily handled the Jimenez homicide, and Defendant Jelks the Williams

robbery. Pl. Ex. 4 at 164:3–9, 195:7–16; Pl. Ex. 16 at 128:2–11. Defendant Outlaw joined the

Detective Bureau in “1990, beginning of 1991.” Pl. Ex. 4 at 76:21–77:13. Defendant Jelks was a

new officer in the Detective Bureau at the time of the crimes in question—he had been assigned

to the Bureau on February 15, 1992, and had been directed to ride along with and assist

Defendant Outlaw for a brief period while his regularly assigned supervisor was unexpectedly

out of the office. Pl. Ex. 13 at 3:17–5:1. The Defendant Officers investigated the robberies as if

each had been committed by the same suspect. See Pl. Ex. 17, DONALD 000613 (explaining, in

a search warrant affidavit, that items stolen in each of the five robberies may be found in the

same location).

The Defendant Officers arrived at Belinsky’s home within a half hour of the shooting. Pl.

Ex. 12 at DONALD 001552; Pl. Ex. 4 at 186:23–187:1, 188:8–22. While testifying about his

investigation of this shooting in 2021, Defendant Outlaw stated that upon arrival at a crime

scene, he would usually speak to the GPD officers who had already arrived to get information

about what happened. Ex. 4 at 190:9–191:1, 195:23–196:7. He testified that the officers who

arrived before him would have shared with him the information that was recorded in a report of

the crime scene—specifically, that the suspect of the Jimenez shooting also had committed

numerous robberies throughout the day, working his way north. Id. at 198:2–21; Pl. Ex. 12 at

DONALD 001554.

Defendant Outlaw spoke with Belinsky on the night of the shooting, within a short period

of time after the crime, and Belinsky was only able to give him a “vague description” of what the

perpetrator looked like. Pl. Ex. 11 at 376:8–377:4, 377:13–381:19. It was common for GPD

officers to carry notebooks to take notes, Pl. Ex. 13 at 31:13–19, but Defendant Outlaw did not

take notes of this interview. Pl. Ex. 11 at 379:9–20. The day after the robberies, Defendant

Outlaw spoke with Williams and obtained information about the circumstances of the robbery of

her home. Pl. Ex. 11 at 392:22–396:11.

For the first few days after the robbery, Williams did not stay at her home where she had

been robbed, and instead stayed at her mother’s house, also in the same neighborhood. Pl. Ex. 8

at 20:24–21:7. On March 2, 1992, Williams decided to return home. Id. at 21:8–15. As she drove

up to her house shortly after 12:00 p.m., she saw a group of men on the streetcorner outside her

house. Id. at 21:8–20, 22:4–18; Pl. Ex. 13 at 22:15–21. Williams looked at one of the men “dead

in his face” and immediately recognized him as the man who had robbed her on February 27; she

was 100% certain it was the same man. Pl. Ex. 8 at 214:9–24, 220:5–17. She recognized him by

his build, height, skin color, deep eyes, and facial scarring. Id. at 22:23–23:1. Williams

abandoned her plan to move back into her home and returned to her mother’s house. Id. at

23:2–7.

Williams immediately called 911 to let police know she had just seen the robber again, on

the street outside her home, and identified herself as the victim of the February 27 armed

robbery. Id. at 21:16–22, 23:11–24:6. She asked to speak with Defendant Outlaw but was not

able to do so on that call. Id. at 25:7–21. Instead, the call was transferred to the detective bureau,

and she spoke to Sergeant Clarence Hightower. Pl. Ex. 13 at 17:17–18:5. Around 4:00 p.m. the

same day, Sergeant Hightower told Defendant Jelks about his conversation with Williams. Id. at

15:10–18:15, 20:23–21:9. Jelks immediately called Williams back. Id. at 21:24–22:21. Later,

Defendant Jelks told Defendant Outlaw about Williams’ sighting of the robber. Id. at 23:24–

24:4.

C. Two Victims Identify the Plaintiff

The Defendant Officers arranged for Williams and Belinsky to come to the police station

on March 3, 1993, to look through books of mugshots to see if they recognized their assailant. Pl.

Ex. 8 at 203:6–204:11; Pl. Ex. 10 at 29:5–12; Pl. Ex. 20; Pl. Ex. 21. Belinsky later testified that

Defendant Outlaw put her in the room where she browsed the photobooks. Pl. Ex. 10 at 31:8–

32:25. Williams viewed photobooks in a room with her mother and another woman. Pl. Ex. 8 at

28:3–20, 31:18–32:10; Pl. Ex. 22, ¶ 5.3

Williams was instructed to “[p]ick the guy that looks like the person that robbed” you. Pl.

Ex. 8 at 28:3–6, 28:23–29:11. When Williams came across a photo that resembled the

perpetrator, she picked it out, stating out loud that “this looks like him” and this “might be” the

person who robbed her. Id. at 34:11–19, 34:23–35:1. The photograph Williams picked was of the

Plaintiff. Pl. Ex. 8 at 34:23–35:4. Belinsky picked the same photo. Compare Pl. Ex. 20, with Pl.

Ex. 21. Neither Williams nor Belinsky was sure that the person in the chosen photograph was the

same person who had committed the crimes against them. Pl. Ex. 60, ¶ 6; Ex. 21.

3 Whether Belinsky and Williams viewed photobooks in the same room is a question of material fact.

Williams testified that when she went to the GPD to view photos, there was another woman placed in the

room with her and her mother. Pl. Ex. 8 at 27:20–30:1. Belinsky, however, testified that when she viewed

the photobooks, there was no one else in the room with her other than a woman police officer. Pl. Ex. 10

at 33:15–19. Belinsky also testified that she went to the GPD for identification purposes on multiple,

separate occasions. Id. at 31:8–14 (“There was – I want to say – because it was twice that I had went

back.”), 33:23–34:2 (responding that she viewed a lineup several days after viewing photobooks).

The photo identification forms accompanying Williams’ and Belinsky’s identifications are both

dated March 3, 1992, and are both signed by the same officer. See Pl. Ex. 20; Pl. Ex. 21. Williams’ form

was recorded at 12:30 p.m., Pl. Ex. 20, and Belinsky’s form at 12:45 p.m., Pl. Ex. 21. Additionally, the

officer supervising the viewings wrote on Belinsky’s photo identification form that Belinsky picked out

the same person who Williams picked out, which supports a reasonable inference that Belinsky and

Williams viewed the photos at the same time. Id.

The Plaintiff was arrested at his sister’s house. Pl. Ex. 1 at 48:24–49:7. When GPD

officers arrived, they told the Plaintiff they needed him at the police station to deal with

outstanding traffic tickets. Id. at 198:1–8. At the police station, Defendant Outlaw questioned the

Plaintiff in a small office. Id. at 199:25–200:18. The Plaintiff does not recall receiving his

Miranda rights prior to or while inside the room. Id. at 200:22–201:4.

Defendant Outlaw began the interrogation by asking the Plaintiff about his whereabouts

on February 27, 1992. Id. at 201:6–13. The Plaintiff told Defendant Outlaw that he had left work,

grabbed dinner, gone to his sister’s house, then left to go car shopping with his sister for the rest

of the evening. Id. at 203:16–204:1. After questioning the Plaintiff about his whereabouts,

Defendant Outlaw told the Plaintiff that he was being questioned about a murder and a robbery,

and that his photograph had been picked out by two witnesses. Id. at 202:7–20. The Plaintiff told

police, “I don’t have any reason to rob anybody. I just got paid.” Pl. Ex. 13 at 25:24–26:1.

The same day Williams and Belinsky viewed the photobooks—March 3, 1992,

Defendant Outlaw facilitated for them and the other victims a physical lineup of suspects. Pl. Ex.

25; Pl. Ex. 4 at 40:4–10, 41:18–42:3. The form documenting Belinsky’s viewing of the lineup

shows that both Defendant Outlaw and Defendant Jelks were the “officers conducting [the] line-

up.” Pl. Ex. 25. During the Plaintiff’s criminal appeal in 1997, Defendant Outlaw testified that

while Williams viewed the lineup, he asked her if she recognized anyone, then escorted her from

the viewing area to the waiting area. Pl. Ex. 34 at 910:10–911:13. During a 2021 deposition

related to the instant case, however, Defendant Outlaw testified that while the lineup was

happening, he would have stood at the end of the entrance opposite to where the victims stood,

that the victims would tell one of the sergeants assisting him that day who they identified, and

that he would not know anything until the lineup was completed. Pl. Ex. 4 at 98:8–99:22.

When Williams saw the lineup, she recognized the Plaintiff as the person whose photo

she had picked from the photobook, but she thought he looked bigger than the man who had

robbed her. Pl. Ex. 8 at 43:3–18, 44:21–45:5. At some point, Williams told Defendant Outlaw

that the man in the lineup had a bigger build than the man who robbed her. Id. at 45:6–14. In

response, while talking “a little later,” Defendant Outlaw told Williams that “he believed” the

person she picked from the lineup “was the guy that robbed [her].” Id. at 45:9–22, 48:17–20.

Defendant Outlaw told Williams that the Plaintiff had been arrested across the street from her

house. Id. at 46:5–18. Williams testified that Defendant Outlaw told her, “That is the guy. We

picked him up around where you was robbed in your own home.” Id. at 129:5–12. Williams also

testified that “some other guy” was with Defendant Outlaw when they had this conversation. Id.

at 153:19–154:13. In reference to her choosing the Plaintiff during the lineup, Williams “felt like

[Defendant Outlaw] was assuring me that it was him.” Id. at 129:13–17. Williams interpreted

Defendant Outlaw’s comments to mean that he had more information and that he knew for a fact

that the Plaintiff was the robber. Id. at 251:15–252:10. Williams trusted Defendant Outlaw and

believed him when he told her that she had picked the guy who robbed her. Id. at 263:7–10.

Williams testified that if Defendant Outlaw had not made those comments to her, she would not

have identified the Plaintiff at the lineup. Id. at 296:1–13.

Belinsky also picked the Plaintiff out from the lineup. Pl. Ex. 10 at 35:9–21. The other

four victims of the Glen Park robberies—Johnson, Cullum, Banks, and Thomas—were unable to

identify their assailant in the lineup, and Banks stated that the man who attacked her was not in

the lineup. Pl. Ex. 5 at 544:10–545:9; Pl. Ex. 14 at 108:2–22, 110:23–112:24, 186:1–14.

In an identification procedure separate from the photobooks originally viewed, the

Defendant Officers showed Williams and Belinsky each a “photo array” that included the

Plaintiff’s photo. Pl. Ex. 4 at 56:19–57:16, 63:2–5, 80:20–81:21. Whether Williams and Belinsky

were shown the photo array before or after the lineup is a dispute of material fact. During the

Plaintiff’s 1997 criminal appeal, Defendant Outlaw testified that he showed Williams the photo

array after the physical lineup. Pl. Ex. 34 at 914:11–915:5. During his 2021 deposition, however,

Defendant Outlaw testified that he showed Williams the photo array before the physical lineup.

Pl. Ex. 4 at 85:10–15. In Williams’ official “Statement” to Defendant Outlaw, taken on March 3,

1992, she states that she viewed a lineup at 7:30 p.m., and there is a question recorded at 11:00

p.m. that states, “I will now show you a photographic array of pictures number 1–6.” Pl. Ex. 31

at 4 (emphasis added). The photo array consisted of a cropped version of the photo of the

Plaintiff that Williams and Belinsky had picked out earlier, arrayed in a 3 x 2 configuration with

five other cropped photos. Pl. Ex. 4 at 63:16–25, 69:14–70:5, 71:11–19, 80:20–81:21; Pl. Ex. 18;

Pl. Ex. 19. Defendant Outlaw testified that he thinks he would not have shown Williams and

Belinsky the same photo array. Pl. Ex. 4 at 80:20–81:12. Before Defendant Outlaw showed the

photo array to Williams, he instructed her, “You tell me if you recognize anyone in these

photographs, and if so from where.” Id. at 64:3–17. Defendant Outlaw testified that the

procedure of using the same photo the witness previously picked to conduct a subsequent

identification was an official GPD method of conducting photo identifications, taught to GPD

officers by their supervisors. Id. at 71:11–72:10.

D. Evidence the Plaintiff Alleges He Did Not Receive in Advance of His 1992 Criminal

Trial

On March 4 or 5, 1992, the Defendant Officers visited the Plaintiff’s place of work,

Goldblatt’s, to verify the Plaintiff’s employment. Pl. Ex. 13 at 25:14–26:1. The Plaintiff’s

supervisor gave the Defendant Officers access to the Plaintiff’s timecards. Id. at 27:4–29:14.

Defendant Jelks made notes of the Plaintiff’s work schedule from February 27 to March 2 or 3.

Id. at 28:22–29:14. The Plaintiff’s timecard for March 2, 1992, when Williams saw the robber

outside her home just after noon, reflected that the Plaintiff clocked out for lunch at 12:02 p.m.

and back in at 12:32 p.m. Pl. Ex. 13 at 22:15–21, 49:22–50:3; Ex. 28. Defendant Jelks showed

Defendant Outlaw the timecard for March 2, and they investigated the possibility of whether the

Plaintiff could have walked past Williams’ house at that time. Pl. Ex. 13 at 62:7–17. The

Defendant Officers then spoke to the Plaintiff’s supervisor and learned that, during the Plaintiff’s

lunch break on March 2, she and other colleagues ate lunch in the lunchroom with the Plaintiff.

Id. at 62:17–63:15. Defendant Jelks did not report or document what he and Defendant Outlaw

learned at Goldblatt’s beyond what was written in Defendant Jelks’ notebook. Id. at 65:2–15.

Defendant Outlaw asked Defendant Jelks to report his conversations with the Goldblatt’s

witnesses, but Defendant Jelks did not create a written report. Pl. Ex. 4 at 156:11–157:22.

Defendant Outlaw repeatedly asked Defendant Jelks to create a written report, and doing so was

a “standard part of the investigation.” Id. at 157:1–22.

During Defendant Jelks’ 1993 testimony in connection with post-conviction proceedings,

he testified that the GPD communications division no longer had the tape for the time period

when Williams called 911 to report her sighting of the robber outside her home. Pl. Ex. 13 at

76:7–78:7. He testified that after inquiring with the patrol commander’s office, there was

“nothing in the radio as far as the tape.” Id. Defendant Jelks testified that any activity sheets for

cars dispatched in response to Williams’ call would have been kept for one year and then

destroyed. Id.

During the Plaintiff’s criminal trial, the prosecution argued that Williams and Belinsky

each selected the Plaintiff’s photo out of several photos and that Williams testified she looked at

hundreds. Pl. Ex. 32 at 1480:18–1481:2. The prosecution presented Williams’s testimony that

she identified the Plaintiff from the photobook, photo array, and lineup. Pl. Ex. 34 at 779:19–

783:4. The Plaintiff’s defense attorney, Scott King, testified that “if [he] had adequate evidence

to show an unduly suggestive show-up, lineup, photograph or live,” he would have filed a

“motion to suppress,” but that “[he] did not [file one] because [he] didn’t have the evidence at

that time.” Pl. Ex. 33 at 111:8–112:7.

Williams’ official “Statement,” which included questions asked by and answers typed up

by Defendant Outlaw, did not mention what Williams testified she told Defendant Outlaw, that

she thought the Plaintiff looked bigger than the person who robbed her. Pl. Ex. 8 at 45:6–14; Pl.

Ex. 31. It was common practice for GPD officers to have notebooks to document their

investigations, and Defendant Jelks testified that as he disposed of his cases, his “notes were

taken out and included with [his] cases.” Pl. Ex. 13 at 31:13–19. Defendant Jelks testified that in

this case, he did not take out his notes because he wasn’t involved in the case all the way to the

end, id. at 31:13–22, 45:6–12, and Defendant Outlaw testified that his notes were lost in a fire,

Pl. Ex. 4 at 126:12–22.

On March 3, 1993, Williams told Defendant Outlaw that the robber was not wearing

gloves. Pl. Ex. 34 at 825:5–827:4. Williams testified that Defendant Outlaw “said something . . .

about checking for fingerprints.” Id. at 827:11–14. No one from the GPD checked Williams’s

home for fingerprints. Id. at 827:15–19; Pl. Ex. 8 at 18:15–18.

Defendant Outlaw prepared the probable cause affidavits for the Jimenez homicide and

the Williams robbery. Pl. Ex. 4 at 164:10–14. He testified that Defendant Jelks had additional

information and that Jelks told him, “Just do the probable [cause] affidavit for the robbery

against Williams, I will follow up with a prosecutor with my additional information.” Id. at

164:10–165:6; 176:10–177:13. Defendant Outlaw told his supervisors in writing that he “didn’t

have all necessary information. I wanted to further investigation until we had all necessary

information.” Id. at 161:11–22. The Commander of the GPD Detective Division directed

Defendant Outlaw to file the case, despite that Defendant Outlaw insisted he did not have enough

evidence, expressed his desire to check out more leads, and intended to release the suspect. Pl.

Ex. 15 at 127:5–128:9; Pl. Ex. 36.

E. The Plaintiff Is Convicted

The Plaintiff’s criminal trial took place from June 8 to 12, 1992. Pl. Ex. 1 at 62:1–7.

Williams and Belinsky each identified the Plaintiff in court as her attacker. Id. at 69:9–12; Pl. Ex.

5 at 640:3–15. Williams testified that when she went to court for the Plaintiff’s 1992 criminal

trial, “and talking to the detectives and things, they were saying that this was the right guy,”

referring to the Plaintiff. Pl. Ex. 8 at 114:17–24. She testified that before going to trial,

Defendant Outlaw coached her on what to say and “convinced me that this was the guy.” Pl. Ex.

37 at 44:22–48:5. Williams testified that she felt “pressured and intimidated” by Defendant

Outlaw. Id. at 46:19–48:15. She did not express reservations to prosecutors or the people in

court. Id. at 48:16–21. The State’s case at the Plaintiff’s criminal trial was almost entirely based

on the identifications by Williams and Belinsky. Pl. Ex. 27 at 12:20–13:1; Pl. Ex. 24 at 96:15–

18.

On June 11, 1992, the Plaintiff was convicted of murder and robbery. Pl. Ex. 6 at 67. He

was sentenced to 60 years in prison. Id. at 116. He served 24 years until his convictions were

vacated on January 25, 2016. Pl. Ex. 35 at 1, 4. On January 27, 2016, the State of Indiana moved

to dismiss all charges against the Plaintiff related to this incident, conceding that there was

“insufficient evidence to prove the charges.” Pl. Ex. 38.

F. Training and Supervision at the Gary Police Department

Defendant Outlaw stated that during the early 1990s, the city was “very hectic as far as

crime’s concerned, fighting crime is concerned. So it was like a all-hands-on-deck process.” Pl.

Ex. 4 at 78:20–79:10. During the investigation into the robberies in question, he was

“overloaded,” and he had other cases “coming at” him. Id. at 176:25–177:3.

Defendant Outlaw testified that new detectives did not receive training when they

transferred into the detective bureau and were expected to “learn[] on the run.” Id. at 79:3–10.

Clarence Hightower, a former GPD officer, testified that GPD officers “were consistently

monitored” and that “a great portion of the training received to officers is the shadowing where

you work alongside a senior officer who has expertise in certain areas. . . . It’s a continuous

effort to make sure that everybody gets something other than what’s mandated by the state.” Pl.

Ex. 16 at 31:14–17; Pl. Ex. 44 at 124:1–16. David Wade, who served as GPD Chief of Police

from 1991 to 1994, testified that supervising officers “would have taken courses in supervision

within the training division [and] outside of the police department at Indiana University

Northwest . . . or other entities.” Pl. Ex. 15 at 18:11–25, 20:18–20; Def. Ex. 20 at 24:17–25:4.

Wade also testified that upon being appointed to the Detective Division, detectives would receive

in-house training from a division supervisor. Def. Ex. 19 at 139:17–22. Wade testified that while

he was Chief of Police or Deputy Chief, “each and every” officer would attend seminars on

eyewitness identification procedures. Id. at 98:1–12. He added that the “Training Division”

would train officers in the procedures for their area of service and that field training officers

would evaluate new officers. Id. at 41:19–42:21, 136:13–137:11.

When asked whether GPD officer evaluations were “just proforma,” Wade testified that

“[s]ome of them was, some of them wasn’t,” and elaborated that “[i]f your friend was your

evaluator, he gave you a ten,” but “[i]f you’re an individual he might not like, he’ll look at

everything that . . . the policy says . . . you evaluate. And you might get a six.” Pl. Ex. 15 at

142:12–15, 144:3–13. Wade also testified that he “changed that,” so the average officer received

a five or six, and anything above required written reasoning. Id. at 144:13–18. Hightower

testified that he served as an officer from 1977 to 2009, that there was an evaluation process

conducted in 1987 or 1988, the results of which were overturned, and that after that year, he did

not go through any other formal evaluation process. Pl. Ex. 16 at 31:14–32:3. When the GPD

conducted evaluations in 1988, Hightower complained that his supervisor had not been trained to

evaluate and had no documentation to support the low scores he gave Hightower, and the police

commissioner “threw out all the scores and gave everybody a ten.” Id. at 23:13–25:16, 27:15–20.

From 1989 to 1996, Hightower, serving as supervisor or coordinator of the detective division,

did not conduct any evaluations, and he did not know of anyone who had that job responsibility.

Id. at 36:24–37:1, 40:6–16, 45:3–10, 62:10–14.

Wade could not recall receiving training on how to supervise officers under his command

when he became a sergeant, nor when he became a lieutenant or a commander. Pl. Ex. 15 at

134:18–135:7. The only supervision training he recalled receiving was when he became the

Deputy Chief and when he became Chief of Police. Id. at 135:19–25.

In the late 1980s and early 1990s, supervisors in the detective division were primarily

tasked with administrative duties—assigning cases, keeping records on how many cases an

officer has, answering division supervisors’ phone calls for information or assistance. Pl. Ex. 16

at 73:5–74:11. Hightower remembered the “[t]elephone constantly ringing,” and described the

job as “[t]he highest degree of stress you could imagine.” Id. at 73:10–74:3. As a supervisor in

the detective bureau, Hightower was not responsible for participating in witness interviews or

identification procedures. Id. at 74:20–75:1. He stated that one of the criteria for a detective is

that “he’s able to stand alone, makes own decisions.” Id. at 76:10–77:5.

In 1992, GPD operations were governed by the GPD Manual of Procedures. Pl. Ex. 4 at

72:16–73:23; Pl. Ex. 15 at 73:19–74:23, 75:22–78:16; Pl. Ex. 40. The Manual did not include a

policy related to eyewitness identification. See Pl. Ex. 15 at 68:15–69:8; Pl. Ex. 40 at 6–12; Pl.

Ex. 43, p. 64:10–20. The Manual did not include a policy on disclosing exculpatory information

to prosecutors and defense attorneys. Pl. Ex. 40 at 6–12. It did not include a policy regarding

note taking, report writing, or memorializing witness statements. Id. It did not include a policy

on recovering forensic evidence. Id. And it did not include a policy regarding investigating a

suspect’s alibi. Id.4

Defendant Outlaw testified that to review the manual, officers “had to go review it at the

set location, which is usually the supervisor’s office.” Pl. Ex. 4 at 73:10–23. He also testified that

detectives like him would refer to the manual if there was a dispute about terminology, if

clarification was needed, or if some specific procedure was disputed. Id. at 73:24–74:10.

Defendant Outlaw testified that “pretty much everything was taught to us through supervision.”

Id. at 75:12–25. GPD officers were responsible for verifying their own training hours, and

whether officers met their minimum training hours was verified only if an officer asked the head

of the training department how many hours he or she had left to complete. Pl. Ex. 44 at 119:2–

120:2.

4 The Plaintiff cites to a review of the GPD Manual of Procedures conducted by the International

Association of Chiefs of Police (IACP) as evidence in support of his Monell claim. The Defendant City of

Gary does not object as to the existence of this report but moves to strike it as inadmissible hearsay. The

Court does not reach the Defendant City of Gary’s motion because the IACP review, cited as Plaintiff’s

Exhibit 41, is not in the record. Notwithstanding the absence in the record of the IACP review, the

Plaintiff’s Monell claim survives for the reasons stated below.

ANALYSIS

A. Federal Claims—42 U.S.C. § 1983

Section 1983 provides, in pertinent part, that “[e]very person who, under color of [state

law], subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of

any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the

party injured in an action at law.” 42 U.S.C. § 1983. To prevail on a § 1983 claim, a plaintiff

must show that the defendant deprived him of a federal constitutional right and that the

defendant acted under color of state law. Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).

1. Due Process Violation

The Plaintiff complains that the Defendant Officers deliberately withheld material

exculpatory and impeachment evidence, conducted unduly suggestive identification procedures,

and knowingly fabricated false evidence, all of which deprived the Plaintiff of his constitutional

right to a fair trial guaranteed by the Fifth and Fourteenth Amendments. The Court finds the

Plaintiff has designated evidence sufficient to create a genuine dispute of material fact on this

claim.

The Defendant Officers argue on summary judgment that the Plaintiff has made

allegations about rules that are only prophylactic and that he has failed to show how any alleged

flaws in their investigation prejudiced the Plaintiff’s criminal trial. See ECF No. 300, 3 (“The

Alexander [v. City of South Bend, 433 F.3d 550, 555 (7th Cir. 2006),] Court further drew a

distinction between ‘prophylactic rules’ such as unduly suggestive identification procedures and

the like, and core constitutional rights such as the right to a fair trial.”). The Defendant Officers’

argument is misplaced. The “prophylactic rule” referred to in Alexander was not a police

procedure nor any duty to disclose exculpatory evidence, conduct sound identification

procedures, or report the details of an investigation. Instead, the “prophylactic rule” identified in

Alexander was an evidentiary rule explained in Manson v. Brathwaite, 432 U.S. 98 (1977),

which bars the admission of unreliable eyewitness identifications to protect a defendant’s right to

a fair trial. See Alexander, 433 F.3d at 555 (“Thus, we recognized . . . that the Brathwaite rule

regarding unduly suggestive identification procedures ‘is a prophylactic rule designed to protect

a core right . . . .’” (quoting Hensley v. Carey, 818 F.2d 646, 649 (7th Cir. 1987))); see also

Hensley, 818 F.2d at 649 (“The court correctly stated that Stovall and Brathwaite simply

establish a prophylactic rule that protects a defendant’s right to a fair trial by barring the

admission of unreliable eyewitness identifications.” (quotation marks and citation omitted)).

Even though the Defendant Officers do not succeed on summary judgment by arguing

that police procedures are prophylactic, the Plaintiff must still show how flaws in those

procedures tainted the Plaintiff’s criminal trial. See Alexander, 433 F.3d at 555 (“South Bend

cannot be liable under § 1983 unless Alexander shows how the flaws in South Bend’s

identification techniques made his trial unfair.”). The Defendant Officers contend that any facts

cited by the Plaintiff regarding withheld evidence are immaterial because, as the Seventh Circuit

stated in Alexander, the Constitution does not require that police lineups, photo arrays, and

witness interviews meet a certain standard of quality. 433 F.3d at 555. The Plaintiff responds that

he has met Alexander’s required showing, namely, that the alleged “unduly suggestive

identification procedures led to an unreliable identification that undermined the fairness of his

trial.” Id. at 556.

Viewing the facts in the light most favorable to the Plaintiff, the Plaintiff has shown that

Defendant Outlaw arranged for Williams and Belinsky to view photobooks together. When

Williams picked the photo she thought looked like the man who robbed her, she stated out loud

that “this looks like him” and this “might be” the person who robbed her. The Court has no way

of knowing whether Belinsky would have independently identified the Plaintiff’s photo. When

Williams told Defendant Outlaw, after viewing the Plaintiff in the in-person lineup, that the

Plaintiff looked bigger than the perpetrator, Defendant Outlaw told Williams he was sure the

Plaintiff was the man who robbed her. Even though the Plaintiff had been arrested at his sister’s

house, Defendant Outlaw told Williams that the Plaintiff had been arrested across the street from

her house, where she had spotted her assailant a few days earlier. Williams “felt like [Defendant

Outlaw] was assuring [her] that it was him.” Additionally, the Defendant Officers showed

Williams and Belinsky a photo array, which included the same photo of the Plaintiff, on the same

day as the previous two identifications (the photobook and the in-person lineup). Given the

repeated viewings, the witnesses may have been picking out their recollection of previous

identifications rather than their recollections of the person who robbed them.

In the Plaintiff’s state criminal trial, both Williams and Belinsky testified as to their prior

identifications and identified the Plaintiff in open court. The State’s case at the Plaintiff’s

criminal trial was almost entirely based on the identifications by Williams and Belinsky. Since

the circumstances of the faulty procedures had not been disclosed to the prosecutor or the

Plaintiff’s criminal counsel, they could not be used to impeach Williams’ or Belinsky’s

testimony. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the

prosecution of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of

the prosecution.”); Steidl v. Fermon, 494 F.3d 623, 631 (7th Cir. 2007) (explaining that a “Brady

violation occurs when the government fails to disclose evidence materially favorable to the

accused . . . even evidence that is known only to police investigators,” (citation omitted), and that

“[p]olice officers have a duty to disclose under Brady”). Considering this initial showing that the

Defendant Officers’ conduct may have undermined the fairness of the Plaintiff’s 1992 criminal

trial, the Defendant Officers are not entitled to summary judgment on Count I, the Plaintiff’s due

process claim.

2. Conspiracy

The Plaintiff claims that the Defendant Officers conspired to subject the Plaintiff to

prosecution without probable cause, to conduct unduly suggestive identification procedures, to

withhold material exculpatory and impeachment evidence, to fabricate inculpatory evidence, to

inflict emotional distress upon the Plaintiff, and to protect one another from liability for

depriving the Plaintiff of his rights. The Defendant Officers argue that “the undisputed evidence

before the court evinces that Officer Outlaw did not conspire or agree with anyone whatsoever to

injure the Plaintiff in any manner at any time.” They argue that evidence of working with others

to investigate a crime does not support a claim for conspiracy.

To establish a conspiracy under § 1983, the Plaintiff must show “that an actual

conspiracy existed (in other words, that people agreed to injure him), that its purpose was to

deprive [the Plaintiff] of his constitutional rights, that an act was committed in furtherance of the

conspiracy, and that he was injured.” Alexander, 433 F.3d at 556–57. “A conspiratorial

agreement may be established by circumstantial evidence . . . if a reasonable jury could conclude

that the conspirators had, in fact, reached an understanding that they sought to injure” the

Plaintiff. Id. The Court finds there is circumstantial evidence sufficient to create a genuine

dispute as to whether the Defendant Officers conspired to violate the Plaintiff’s constitutional

rights.

Preliminarily, the evidence does not support a finding that the Defendant Officers

conspired to withhold evidence of what could have been the Plaintiff’s alibi for the time period

when Williams says she saw the perpetrator in front of her house. Both officers were involved in

the investigation that showed the Plaintiff was eating lunch with his colleagues at Goldblatt’s,

which was substantiated by his timecards and witness testimony, during the date and time when

Williams saw a group of men on the streetcorner outside her house, looked at one of the men

“dead in his face,” and immediately recognized him as the man who had robbed her. Williams

testified that she was 100% certain the man she saw was the man who robbed her. Even though

neither officer reported the evidence of the Plaintiff’s timecards and the testimony showing that

he was eating lunch at work at the time the man was near Williams’ home, Defendant Outlaw

testified that he asked Defendant Jelks to report his conversations with the Goldblatt’s witnesses

and repeatedly asked Defendant Jelks to create a written report, as it was a “standard part of the

investigation.” Yet, Defendant Jelks did not create a written report. And although he made notes

of the Plaintiff’s work schedule, Defendant Jelks testified that for this case, he did not take his

notes out of his notebook and include them with the case file. Although neither officer reported

this aspect of the investigation, Defendant Outlaw’s testimony that he repeatedly asked

Defendant Jelks to report it is evidence that undermines the possibility of a conspiracy between

the two.

The Plaintiff’s conspiracy claim nonetheless survives because, viewing the facts in the

light most favorable to the Plaintiff, the Defendant Officers conducted unduly suggestive

identification procedures and failed to report them to the prosecutor and the Plaintiff’s criminal

defense counsel. Even though the Plaintiff has not produced evidence of the exact role Defendant

Jelks played in showing Williams and Belinsky the photobooks, lineup, and photo array,

Defendant Jelks testified that he had been directed to ride along with and assist Defendant

Outlaw, and the lineup form shows that both Defendant Officers were the “officers conducting

[the] lineup.” The Court can thereby infer that Defendant Jelks knew, as Defendant Outlaw did,

that Williams and Belinsky viewed photobooks together and that they were shown a photo array

including the Plaintiff on the same day they had seen the Plaintiff in a photobook and a lineup.

Further, when Williams viewed the photo array, the third identification procedure of the day,

Defendant Outlaw instructed her, “You tell me if you recognize anyone in these photographs,

and if so from where.” Neither of the Defendant Officers reported that Williams and Belinsky

viewed the photobooks together or that they had seen the Plaintiff’s photo from the photobooks

on the same day as the photo array and lineup. In light of this circumstantial evidence, the

Defendant Officers are not entitled to summary judgment on Count II, the Plaintiff’s conspiracy

claim.

3. Failure to Intervene

The Plaintiff claims that the Defendant Officers failed to intervene in each other’s

violations of the Plaintiff’s constitutional rights. To succeed on his failure to intervene claim, the

Plaintiff must show that the Defendant Officers “(1) knew that a constitutional violation was

committed; and (2) had a realistic opportunity to prevent it.” Gill v. City of Milwaukee, 850 F.3d

335, 342 (7th Cir. 2017) (citing Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994)).

The Defendant Officers argue that the Plaintiff has shown neither a constitutional

violation nor that they were involved in or aware of any unlawful activity. The Court has

determined that the alleged violations of the Plaintiff’s Fifth and Fourteenth Amendment right to

a fair trial are supported by evidence sufficient to survive summary judgment. The Plaintiff’s

failure to intervene claim is thereby supported by underlying constitutional violations caused by

the Defendant Officers.

To support his contention that the Defendant Officers could have prevented one another

from committing the constitutional violations, the Plaintiff argues they “[a]t a minimum . . .

could have called for a backup, called for help, or at least cautioned [the other officer] to stop.”

Yang, 37 F.3d at 285. The questions whether the Defendant Officers could have been more

diligent in reporting the results of their investigation, separated the witnesses before they viewed

photobooks, encouraged one another to wait before showing the witnesses the photo arrays, or

taken some other action to prevent the constitutional violations are better left for the jury. See

Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 478 (7th Cir. 1997) (“Whether an officer

had sufficient time to intervene or was capable of preventing the harm caused by the other officer

is generally an issue for the trier of fact unless, considering all the evidence, a reasonable jury

could not possibly conclude otherwise.”). Based on the underlying constitutional violations and

the issue of fact as to whether the Defendant Officers could have prevented the constitutional

violations, the Defendant Officers are not entitled to summary judgment on Count III, the

Plaintiff’s claim for failure to intervene.

4. Pretrial Detention Without Probable Cause

In opposition to Count IV, which the Plaintiff labels in the Complaint as a claim for

“malicious prosecution,” Defendant Outlaw argues that, because he was not on fair notice in

1992 that his conduct violated a clearly established constitutional right, he is entitled to qualified

immunity. To support his argument, Defendant Outlaw cites Barnhouse v. City of Muncie, , in

which a police officer succeeded on a qualified immunity defense to malicious prosecution

because “[t]here is no ‘constitutional right not to be prosecuted without probable cause.’” 499 F.

Supp. 3d 578, 593(S.D. Ind. 2020) (quoting Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir.

2018)).

However, as the Court stated in its May 31, 2018 Opinion and Order, the Plaintiff

previously clarified that Count IV “is a Fourth Amendment claim for unlawful seizure.” ECF No.

55 at 3. And, in response to the instant motion for summary judgment, the Plaintiff reasserts that

Count IV is a Fourth Amendment claim for deprivation of liberty without probable cause. That is

consistent with the Plaintiff’s Complaint, which alleges that the “Defendant Officers accused

Plaintiff of criminal activity and exerted influence to initiate, continue, and perpetuate judicial

proceedings against Plaintiff without any probable cause for doing so, in violation of his rights

secured by the Fourth Amendment,” and that “[i]n so doing, these Defendants caused Plaintiff to

be unreasonably seized.” Compl. 19. The Plaintiff’s position is also consistent with the Seventh

Circuit’s opinion in Manuel, in which the court wrote that “Fourth Amendment malicious

prosecution is the wrong characterization [for a claim of wrongful custody]. There is only a

Fourth Amendment claim—the absence of probable cause that would justify the detention.” 903

F.3d at 670 (quotation marks omitted). Defendant Outlaw’s assertion of qualified immunity to a

claim of malicious prosecution is therefore inapplicable to Count IV, and the Plaintiff’s Fourth

Amendment unlawful seizure claim in Count IV survives summary judgment.

5. Monell Liability Against Defendant City of Gary

a. Policy or Custom

In Count I, the Plaintiff claims the Defendant Officers violated his due process rights

pursuant to the policy and practice of the GPD and Defendant City of Gary of pursuing wrongful

convictions by conducting flawed investigations, including by withholding exculpatory

information, conducting unduly suggestive identification procedures, and fabricating inculpatory

evidence. And, in Count IV, the Plaintiff claims the Defendant Officers violated his Fourth

Amendment right not to be unlawfully seized. A municipality like the City of Gary can only be

held liable under § 1983 “when execution of a government’s policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly be said to represent official policy,

inflicts the injury.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). This requires a

plaintiff to prove that “the unconstitutional act complained of is caused by: (1) an official policy

adopted and promulgated by [the city’s] officers; (2) a governmental practice or custom that,

although not officially authorized, is widespread and well settled; or (3) an official with final

policy-making authority.” Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir.

2010) (citing Monell, 436 U.S. at 690). Here, the Plaintiff has designated evidence sufficient to

create a genuine dispute as to whether the GPD had an official policy that led to the violation of

the Plaintiff’s constitutional rights.

The Defendant City of Gary argues that the Plaintiff has provided no evidence of any

policy or practice that violated the Plaintiff’s constitutional rights. It cites testimony by the

Defendant City of Gary’s 1992 Mayor and 1992 Chief of Police that neither knew of any policy,

procedure, or practice in which GPD officers would create false evidence, engage in unduly

suggestive identification procedures, or frame individuals for crimes they did not commit. The

Plaintiff responds that there is evidence the GPD had an official policy of conducting

unnecessary and highly suggestive identification procedures. He argues that it was GPD policy to

have witnesses identify a suspect from a photobook and later show them the photo they chose as

part of a subsequent photo array, which would lead the witnesses to confirm and have artificially

inflated confidence in their earlier choice.

Defendant Outlaw testified that it was GPD policy to have witnesses identify a suspect

from a photobook, then show them the same photo in a subsequent photo array. See Rossi v. City

of Chicago, 790 F.3d 729, 737 (7th Cir. 2015) (explaining that “a municipality can be held liable

under § 1983” if there is “an express policy that would cause a constitutional deprivation if

enforced”). The Defendant City of Gary responds this testimony is insufficient to demonstrate a

policy or practice because Defendant Outlaw had no final policy-making authority, and no other

officers corroborated his testimony. Regardless of Defendant Outlaw’s authority or corroboration

of his testimony, he served as a detective at the time in question and as the detective

investigating the crimes in question. The Court therefore finds his testimony is sufficient on

summary judgment to create a genuine dispute regarding the required showing of a policy or

practice by the GPD.

Defendant City of Gary also argues there is no causal link between that identification

procedure and the Plaintiff’s alleged constitutional deprivation. It argues that, based on the

Seventh Circuit’s opinion in Stewart v. Duckworth, 93 F.3d 262 (7th Cir. 1996), the photo array

conducted by Defendant Outlaw did not violate the Plaintiff’s constitutional rights.

In Stewart, the Seventh Circuit evaluated the constitutionality of a pretrial identification

procedure in which detectives showed the victim three photo arrays of six photos, with the

criminal defendant’s photo being the only photo common to each of the three arrays. Id. at 264–

65. The first two arrays were the same and included an old photo of the criminal defendant. Id. at

264. The victim did not identify the criminal defendant’s photo from the first two arrays. Id. The

third array, shown eleven days after the first two, included a more recent photo of the criminal

defendant. Id. The victim identified the criminal defendant’s more recent photo as depicting his

assailant. Id. Evaluating the procedure, the Seventh Circuit explained that “[t]he constitutionality

of a challenged pretrial identification procedure is analyzed in two steps.” Id. at 265. First, the

court determines whether the procedure was “unnecessarily suggestive.” Id. If the court finds the

procedure was “unnecessarily suggestive,” then it considers whether the identification was

nonetheless reliable under the totality of the circumstances. Id.

The Seventh Circuit in Stewart held that the challenged identification procedure was not

unduly suggestive because the criminal defendant’s photo did not stand out among the photos

selected for each array, eleven days passed between the victim’s viewings of the photo arrays,

the criminal defendant’s photo in the first group looked very different from his photo in the

second, and the second photo, which the victim identified, had been taken much more recently

than the first. Id. at 265–66. The Seventh Circuit found it made a difference that the detectives

showed the victim two different photos of the criminal defendant. Id. at 266. It noted that “[i]t

would be a different matter had [the victim] been shown the recent photos twice before making

an identification.” Id.

The Defendant City of Gary argues that, like the procedure in Stewart, the identification

procedure conducted by defendant Outlaw was not unduly suggestive. It argues that, unlike the

first showing in the Stewart procedure, which included only six photos, the first showing in the

instant procedure required Williams and Belinsky to look through hundreds of photos. It also

argues that, similar to the fact in Stewart that the Seventh Circuit found persuasive, the Plaintiff

did not stand out in the photo array provided to Williams and Belinsky. The Plaintiff, in contrast,

argues that whereas the Stewart procedure included photo arrays shown eleven days apart, the

instant procedure had Williams and Belinsky view the same photo of the Plaintiff only hours

apart. The Plaintiff also argues that in Stewart, the “critical factor,” id. at 265, demonstrating the

procedure was not unduly suggestive was that the photo of the suspect in the second array looked

“very different,” id., from the photo of the suspect in the first array, but here, Williams and

Belinsky were shown the same photo of the Plaintiff in both the photobook and the photo array.

The Court agrees with the Plaintiff and finds that the instant photo identification

procedures were unduly suggestive. Williams and Belinsky picked the Plaintiff’s photo out of the

photo array only hours after they had picked it out of the photobook. Unlike in Stewart, there

were not eleven, or any, days between showings that would suggest Williams’ and Belinsky’s

second photo choice was independent from the first. And unlike in Stewart, where the victim

looked at two distinct photos of the criminal defendant, Williams and Belinsky saw the same

photo of the Plaintiff that they had seen only hours before. Further, when Defendant Outlaw

showed Williams and Belinsky the photo array, he asked whether they “recognize[d] anyone in

these photographs, and if so from where.” Williams and Belinsky would have recognized the

Plaintiff’s photo from earlier that day.

The Court also finds that the totality of the circumstances did not make the procedures

nonetheless reliable. During the first identification procedure, Williams picked the Plaintiff’s

photo but said “this looks like him” and this “might be him.” It is unclear whether Belinsky,

being in the room with Williams when she made her choice, would have independently chosen

the Plaintiff’s photo. After Williams and Belinsky identified the Plaintiff’s photo the first time,

they were shown a lineup. During the lineup, Williams recognized the Plaintiff as the person

whose photo she had picked from the photobook, but she thought he looked bigger than the man

who had robbed her. Belinsky also identified the Plaintiff from the lineup, but none of the other

four victims did. One victim, Banks, affirmatively stated that the perpetrator was not in the

lineup. During the third identification procedure, Defendant Outlaw asked Williams and

Belinsky to identify anyone they recognized from a six-photo array that included the Plaintiff’s

photo, only a short time after they had picked out the same photo and Defendant Outlaw had told

Williams “he believed” the person she picked from the lineup “was the guy that robbed [her].” In

Stewart, where the Seventh Circuit found the procedures were not unduly suggestive, the court

noted that “[i]t would be a different matter had [the victim] been shown the recent photos twice

before making an identification.” Id. at 266. Here, Williams and Belinsky were shown the

Plaintiff’s face twice, on the same day, before they identified him during the third identification

procedure.

The Plaintiff has presented evidence sufficient to show that the identification procedures

used in this case were unduly suggestive and may have been the moving force behind the

deprivation of his constitutional rights. Defendant Outlaw’s testimony that he conducted this

procedure pursuant to GPD policy and training is enough to raise a genuine dispute of material

fact as to whether the procedure was indeed GPD policy or a widespread custom or practice. The

Defendant City of Gary is thus not entitled to summary judgment on the Monell claims in Count

I and IV, the Plaintiff’s § 1983 claims for the violation of his Fourth and Fourteenth Amendment

rights.

b. Failure to Train

The Court finds that the Defendant City of Gary is not entitled to summary judgment on

the Plaintiff’s Monell claim based on a failure to train. In addition to establishing liability under

§ 1983 by showing a constitutional violation caused by the municipality’s policy or custom, the

Plaintiff may establish liability under § 1983 by showing that the municipality’s failure to train

its officers amounted to deliberate indifference to the Plaintiff’s rights. See City of Canton v.

Harris, 489 U.S. 378, 388 (1989) (“[T]he inadequacy of police training may serve as the basis

for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights

of persons with whom the police come into contact.”); Jenkins v. Bartlett, 487 F.3d 482, 492 (7th

Cir. 2007) (“A municipality will be held liable for the violation of an individual’s constitutional

rights for failure to train adequately its officers only when the inadequacy in training amounts to

deliberate indifference to the rights of the individuals with whom the officers come into

contact.”). To prove deliberate indifference, the Plaintiff must show either a “need for more or

different training [that] is so obvious, and the inadequacy so likely to result in the violation of

constitutional rights,” or a “repeated pattern of constitutional violations that makes the need for

further training . . . plainly obvious to the city’s policymakers.” Id. (quotation marks omitted).

The Plaintiff has not alleged or presented evidence of a repeated pattern of constitutional

violations. However, the Plaintiff does argue there is evidence of a widespread practice of

deficient supervision, training, and policies that posed a risk of detectives “run[ning] roughshod

over the constitutional rights of citizens.” Pl. Br. 20, ECF No. 320. The Defendant City of Gary

argues that the Plaintiff ignores the on-the-job training and supervision provided by the GPD and

argues there are no material facts showing a need for more or different training so obvious that it

amounted to deliberate indifference.

The Court finds there is a genuine dispute of material fact as to whether it was obvious

the GPD’s lack of training and supervision would lead to officers conducting unduly suggestive

identification procedures and unlawfully detaining individuals without probable cause. On one

hand, David Wade, who served as GPD Chief of Police from 1991 to 1994, testified that

supervising officers “would have taken courses in supervision within the training division [and]

outside of the police department at Indiana University Northwest . . . or other entities.” Wade

also testified that upon being appointed to the Detective Division, detectives would receive in-

house training from a division supervisor and that “each and every” officer would attend

seminars on eyewitness identification procedures. He added that the “Training Division” would

train officers in the procedures for their area of service, and that certified field training officers

would evaluate new officers. Further, former GPD officer Clarence Hightower testified that

officers “were consistently monitored” and that “a great portion of the training received to

officers is . . . shadowing.”

On the other hand, Wade could not recall receiving training on how to supervise officers

under his command when he became a sergeant, nor when he became a lieutenant and

commander. Defendant Outlaw, who investigated the crimes in question, testified that the early

90’s were “hectic” for the GPD “as far as crime’s concerned,” so fighting crime was an “all-

hands-on-deck” process. Hightower remembered that while a supervisor, the “[t]elephone [was]

constantly ringing,” and he described the job as “[t]he highest degree of stress you could

imagine.” He testified that one of the criteria for detectives is that “he’s able to stand alone,

makes own decisions.” Meanwhile, Defendant Outlaw, who was a new detective between 1990

and 1991, testified that new detectives did not receive training when they transferred into the

detective bureau and were expected to “learn[] on the run.” Defendant Jelks joined the detective

bureau on February 15, 1992. These facts permit the inference that during their investigation into

these February 27, 1992 crimes, the Defendant Officers were operating in a “hectic” or “high[]

stress” police department with little training other than what they learned “on the run.” Detective

Jelks had such limited training for only 12 days prior to the crimes in question.

In 1992, GPD operations were governed by a GPD Manual of Procedures, but the Manual

lacked written policies on the procedures being challenged here, namely, disclosing exculpatory

information, note taking, and investigating a suspect’s alibi. See Glisson v. Ind. Dep’t of Corr.,

849 F.3d 372, 381 (7th Cir. 2017) (citing King v. Kramer, 680 F.3d 1013, 1021 (7th Cir. 2012)

(explaining that where a municipality has “actual or constructive knowledge that its agents will

probably violate constitutional rights, it may not adopt a policy of inaction”)). Detectives would

only view the Manual if there was a dispute about terminology, if clarification was needed, or if

some specific procedure was disputed. Otherwise, “pretty much everything was taught . . .

through supervision.”

Additionally, Hightower testified that some GPD officer evaluations were “just

proforma,” and “[i]f your friend was your evaluator, he gave you a ten.” Hightower testified that

during his time as an officer with the GPD from 1977 to 2009, there was an evaluation process in

1987 or 1988, the results of which were overturned, and otherwise he did not go through any

formal evaluation process.

While the GPD’s sense of urgency persisted, the GPD brought in new detectives such as

Defendants Outlaw and Jelks, taught them the job “on the run” without written policies on

eyewitness identification, documenting investigative steps, or disclosing exculpatory evidence.

Given Hightower’s testimony that no evaluations were conducted between 1990 and 1992, the

Court may infer that neither of the Defendant Officers were evaluated as detectives prior to the

investigation in question. A memo from Defendant Outlaw’s supervisor shows that Defendant

Outlaw was pressured to file the case file for the crimes in question even though Defendant

Outlaw insisted that he did not have enough evidence to file, expressed his desire to check out

more leads, and intended to release the suspect. These practices evince a desire by the GPD to

quickly resolve cases without concern for detectives’ training, the accuracy of identification

procedures or failures to disclose evidence caused by an absence of training, or the sufficiency of

probable cause directly related to their detectives’ investigatory practices. This evidence is

sufficient to create a genuine dispute as to whether the Defendant City of Gary had a “need for

more or different training [that] is so obvious” that it amounted to deliberate indifference to the

rights of individuals with whom the detectives came into contact, such as the Plaintiff. Jenkins,

487 F.3d at 492. Accordingly, the Defendant City of Gary is not entitled to summary judgment

on the Monell claims based on a failure to train.

B. State Law Claims against the City of Gary

1. Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress,

and Respondeat Superior

In Counts VI, VII, and VIII, the Plaintiff sues Defendant City of Gary for Intentional

Infliction of Emotional Distress (IIED), Negligent Infliction of Emotional Distress (NIED), and

respondeat superior. Defendant City of Gary argues that it is entitled to summary judgment on

these claims because the Defendant Officers are immune from suit on the Plaintiff’s state law

claims, and the corresponding claims against it are based solely on a theory of respondeat

superior.

In a previous opinion, the Court dismissed the Plaintiff’s claims for IIED and NIED as to

the Defendant Officers because the Officers are immune under Indiana Code § 34-13-3-5(b). See

ECF No. 55 at 7. As the Court stated in that opinion, however, even though the Defendant

Officers are immune from suit, the Plaintiff may proceed on a respondeat superior theory against

Defendant City of Gary. Id.; see also Lessley v. City of Madison, 654 F. Supp. 2d 877, 902 (S.D.

Ind. 2009) (“Plaintiffs cannot sue Royce personally for state torts, but they may be able to hold

the City of Madison liable for any state torts that Royce committed.”); Laffoon v. City of

Portage, No. 2:09-CV-13, 2011 WL 2293331, at *10 (N.D. Ind. June 8, 2011) (“Thus, because it

is undisputed that Officer Peele was acting within the scope of his employment, the City of

Portage is the sole defendant on the state law claim under respondeat superior.”); Fidler v. City

of Indianapolis, 428 F. Supp. 2d 857, 866 (S.D. Ind. 2006) (recognizing that the officers were

immune under the Indiana Code § 34-13-3-5(b) but that the plaintiff “may still pursue his state

tort claims against the City of Indianapolis stemming from the defendants’ alleged use of

excessive force in apprehending and arresting him”); Bowens v. City of Indianapolis, No. 1:13-

CV-72, 2014 WL 4680662, at *5 (S.D. Ind. Sept. 19, 2014) (recognizing the officer’s immunity

from suit but allowing the plaintiff to proceed against the city under a respondeat superior

theory). Defendant City of Gary is therefore not entitled to summary judgment on Counts VI,

VII, and VIII based on its argument that the Plaintiff may not proceed on a theory of respondeat

superior.

The Defendant City of Gary also argues that it may not be held liable for the acts or

omissions of third parties, such as the prosecutor in the Plaintiff’s 1992 criminal trial and the

eyewitnesses who identified the Plaintiff. As explained above, the Plaintiff has presented

evidence that Defendants Outlaw and Jelks, the GPD officers who investigated the crimes in

question pursuant to GPD policies and practices, failed to report the Plaintiff’s alibi for the

Williams sighting and inflated the eyewitnesses’ confidence in their identifications by

conducting unduly suggestive identification procedures and suggesting to Williams that “this

was the right guy.” The Plaintiff’s claims, therefore, are based not on the actions or inaction of

third parties, but on the actions of the Defendant City of Gary and the Defendant Officers. See

Witco Corp. v. City of Indianapolis, 762 F. Supp. 834, 838 (S.D. Ind. 1991) (“Where the

government’s conduct creates the conditions that foreseeably lead to a loss, so as to be a

proximate cause of that loss, the government is not immune under the acts-of-others exception to

liability.” (citing Maroon v. State Dep’t of Mental Health, 411 N.E.2d 404, 417 (Ind. Ct. App.

1980)).

2. Indemnification

The Plaintiff’s final claim is a state law claim for indemnification, alleging that Indiana

law requires public entities to pay any tort judgment for compensatory damages for which

employees are liable within the scope of their employment activities. Defendant City of Gary

argues this claim is premature because a duty to indemnify is not ripe until liability has been

established. In response, the Plaintiff concedes that no judgment has yet triggered a duty to

indemnify but argues there is no basis for summary judgment on a claim that cannot yet be

adjudicated. As recognized by Defendant City of Gary in its brief and reply, “decisions about

indemnity should be postponed until the underlying liability has been established.” Lear Corp v.

Johnson Elec. Holdings Ltd., 353 F.3d 580, 583 (7th Cir. 2003). Underlying liability has not

been established or disproved, so the Court denies summary judgment on Count IX, the

Plaintiff’s claim for indemnification.

C. Collateral Estoppel

The Defendant City of Gary argues that the Plaintiff may not relitigate the issue of

Williams’ sighting of the perpetrator outside of her home (the Williams sighting). “Issue

preclusion, or collateral estoppel, bars subsequent relitigation of the same fact or issue where that

fact or issue was necessarily adjudicated in a former lawsuit and that same fact or issue is

presented in a subsequent suit.” Nat’l Wine & Spirits, Inc. v. Ernst & Young, LLP, 976 N.E.2d

699, 704 (Ind. 2012). Collateral estoppel “applies to § 1983 plaintiffs who attempt to relitigate

issues adjudicated in state court.” Jones v. York, 34 F.4th 550, 560 (7th Cir. 2022). However, “[a]

vacated judgment is not a permissible basis for collateral estoppel.” Korczak v. Sedeman, 427

F.3d 419, 422 (7th Cir. 2005).

In a June 12, 1998 opinion affirming the denial of the Plaintiff’s petition for

postconviction relief, the Indiana Court of Appeals considered whether the Defendant Officers’

failure to disclose their investigation into the Plaintiff’s whereabouts at the time of Williams’

sighting violated the Plaintiff’s due process rights, the same question raised by the Plaintiff’s

instant complaint. See Def. Ex. 5 at 6–8. That decision nonetheless does not have preclusive

effect on the Plaintiff’s claim because the Lake County Superior Court vacated the underlying

conviction on January 25, 2016. See Def. Ex. 15 at 4; see also Korczak, 427 F.3d at 422; Jones,

34 F.4th at 560 (declining to give a prior, vacated ruling on exculpatory evidence preclusive

effect because “[a]dhering to a vacated judgment would circumvent collateral estoppel’s finality

element by giving force to a void ruling”). Further, the issue in both the 1998 and 2016 decisions

was whether the Defendant Officers’ failure to disclose entitled the Plaintiff to a new criminal

trial, not whether the Defendant Officers were civilly liable to the Plaintiff for their failure to

disclose. See Glenn v. City of Hammond, No. 2:18-CV-150, 2021 WL 4078063, at *8 (Sept. 7,

2021) (“Indiana issue preclusion requires . . . identity of the issues.” (citing Nat’l Wine & Spirits,

Inc., 976 N.E.2d at 704)). Accordingly, the Plaintiff’s litigation of the issues regarding the

Williams sighting is not precluded under collateral estoppel.

CONCLUSION

For the reasons set forth above, the Court hereby DENIES Defendant Bruce Outlaw’s

Motion for Partial Summary Judgment [ECF No. 295] and Motion for Summary Judgment as to

Counts I and III of Plaintiff’s Complaint [ECF No. 298], Defendant’s, City of Gary, Motion for

Summary Judgment [ECF No. 296], and Defendant’s, Carla K. Pyle as Special Administrator of

the Estate of John E. Jelks, Jr. Motion to Join City of Gary’s and Bruce Outlaw’s Motions for

Summary Judgment [ECF No. 303]. This matter will be set for a scheduling conference by

separate order.

SO ORDERED on March 3, 2022.

s/ Theresa L. Springmann

JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT