Bauer v. Corley

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MATTHEW JASON BAUER,

Plaintiff,

v. CAUSE NO. 3:21-CV-843 DRL-MGG

MARTY CORLEY & MICHIGAN CITY

POLICE DEPARTMENT,

Defendants.

OPINION AND ORDER

Matthew Bauer, proceeding pro se, sued Officer Marty Corley and the Michigan City Police

Department (MCPD) over an interaction he had with Officer Corley in the parking lot of an outlet

mall in Michigan City, Indiana. Officer Corley and MCPD move for summary judgment on all claims:

false arrest, illegal search, excessive force, intimidation, violation of due process, intentional infliction

of emotional distress, discriminatory treatment, and that MCPD has a custom, policy, or practice of

constitutional deprivations. The court grants summary judgment.

BACKGROUND

The following facts are undisputed, either by the parties’ agreement or because the objecting

party failed to comply with N.D. Ind. Local Rule 56-1.1 See Collins v. Illinois, 554 F.3d 693, 697 (7th Cir.

2009) (even pro se litigants must follow local rules). All inferences are drawn in Mr. Bauer’s favor.

During the holiday season, MCPD adds additional patrols near the Light House Place

Premium Outlet Shopping Mall to stop and deter thefts that occur there and in the cars in the parking

1 Mr. Bauer’s response to the motion for summary judgement doesn’t genuinely dispute any of the defendants’

statement of material facts. The closest he gets is stating that he “was detained for more than 13 minutes,”

[ECF 53 at 3], but he doesn’t provide any citation to evidence in the record. This fact is not supported. See

Local R. 56-1(e). “[M]ere disagreement with the movant’s asserted facts is inadequate if made without reference

to specific supporting material.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

lot [ECF 38-2 ¶ 6]. On November 24, 2019, Officer Corley was patrolling his assigned district in

Michigan City, which includes the outlet mall [Id. ¶ 4]. Officer Corley was flagged down by a woman

who told him that she thought a man was stealing from a blue car in the parking lot [Id. ¶ 7]. Officer

Corley begins driving to the parking lot. At this point, the dash camera video begins and then captures

the rest of the events [ECF 42 (Ex. 2)].

Officer Corley then saw the man—later identified as Mr. Bauer—riding a bicycle away from a

vehicle in the parking lot [ECF 38-2 ¶ 8, 10, 11]. Officer Corley stopped Mr. Bauer and asked him to

get off the bicycle twice before he complied [Id. ¶ 11]. Mr. Bauer was then twice directed to stop

putting his hands in his pockets, but he refused [Id. ¶ 12]. Officer Corley told Mr. Bauer to put his

hands on the squad car, then he performed a pat down search of Mr. Bauer [Id. ¶ 12]. Officer Corley

removed numerous plastic bags and a set of car keys from Mr. Bauer’s pockets [ECF 42 (Ex. 2) at

02:31]. Officer Corley asked Mr. Bauer for identification, but Mr. Bauer advised that he didn’t have

his identification on him [ECF 38-2 ¶ 13, 15]. Mr. Bauer said that he owned the blue car that he was

biking away from [Id. ¶ 13]. Because Officer Corley was concerned Mr. Bauer had a weapon, he

handcuffed him [Id. ¶ 14].

The body camera video then begins as Officer Corley searched Mr. Bauer’s name on his

computer in the squad car and continued to engage him in questioning [ECF 42 (Ex. 3)]. An additional

officer, Officer Pliske2, arrived on the scene [ECF 38-2 ¶ 16]. Officer Corley asked her to perform a

check of the blue car [Id. ¶ 16]. She checked the license plate and determined that Mr. Bauer owned

the car [Id. ¶ 16-17]. Once he heard that Mr. Bauer owned the car, Officer Corley released the

handcuffs and returned his car keys [Id. ¶ 18]. The encounter lasted approximately 9 minutes and 40

seconds, and Mr. Bauer was handcuffed for approximately 8 of those minutes [Id. ¶ 20]. Officer Bauer

and Mr. Corley had no further interaction [Id. ¶ 19].

2 This officer’s first name is not included in the record.

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 non-moving party must present the court with evidence on which a reasonable jury could rely to

find in his favor. Weaver v. Speedway, LLC, 28 F.4th 816, 820 (7th Cir. 2022). The court must construe

all facts in the light most favorable to the non-moving party, viewing all reasonable inferences in that

party’s favor, Bigger v. Facebook, Inc., 947 F.3d 1043, 1051 (7th Cir. 2020), and avoid “the temptation to

decide which party’s version of the facts is more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th

Cir. 2003); see also Joll v. Valparaiso Cmty. Schs., 953 F.3d 923, 924-25 (7th Cir. 2020).

In performing its review, the court “is not to sift through the evidence, pondering the nuances

and inconsistencies, and decide whom to believe.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th

Cir. 1994). Instead, 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.” Id. The court must grant a

summary judgment motion when no such genuine factual issue—a triable issue—exists under the law.

Luster v. Ill. Dep’t of Corr., 652 F.3d 726, 731 (7th Cir. 2011).

DISCUSSION

First, instead of disputing the material facts provided by the defendants, which are supported

by both Officer Corley’s sworn affidavit (Exhibit 1) [ECF 38-2] and the dash camera and body camera

footage (Exhibits 2 and 3) [ECF 42], or presenting evidence on which a reasonable jury to could rely

to find for him, Mr. Bauer focuses his response on arguing that the dash camera footage provided is

“illegal,” was “remade to frame plaintiff with and ruin his court case,” and made with a computer-

generated imagery (CGI) suit, like the Spiderman movies [ECF 54]. He says “[t]he police [] went back

to the parking lot and refilmed the dash cam video it is a computer generated fraud.” [ECF 54 at 1].

The court has reviewed both videos in their entirety and has observed no indications that the

videos were altered or falsified in any way. Mr. Bauer’s speculation, not based on any admissible

evidence, that the video footage was altered is not sufficient to prevent summary judgment. See Hamer

v. Neighborhood Hous. Servs., 897 F.3d 835, 841 (7th Cir. 2018); Austin v. Walgreen Co., 885 F.3d 1085,

1089 (7th Cir. 2018) (“Speculation does not defeat summary judgment.”). A reasonable jury isn’t

required or expected to believe the fantastical.

“Although on summary judgment [the court] generally view[s] the facts in the light most

favorable to the nonmovant, in rare circumstances when video footage clearly contradicts the

nonmovant’s claims, [the court] may consider that video footage without favoring the nonmovant.”

Horton v. Pobjecky, 883 F.3d 941, 944 (7th Cir. 2018) (citing Scott v. Harris, 550 U.S. 372, 378-81 (2007)).

“Of course, videos are sometimes unclear, incomplete, and fairly open to varying interpretations,” but

“[w]hen video footage firmly settles a factual issue, there is no genuine dispute about it, and [the court]

will not indulge stories clearly contradicted by the footage.” Horton, 883 F.3d at 944; see also Gasser v.

Vill. of Pleasant Prairie, 2022 U.S. App. LEXIS 8015, 4-5 (7th Cir. Mar. 28, 2022) (“In cases where video

evidence is available, as here, there are additional contours to the summary judgment methodology.

‘[T]o the extent [plaintiff’s] story is ‘blatantly contradicted’ by the video such that no reasonable jury

could believe it, we do not credit [his] version of events.’”) (citation omitted).

The court turns to the merits of the summary judgment motion, considering the videos as

evidence. Mr. Bauer’s complaint alleges false arrest, an illegal search, excessive force, intimidation,

violation of due process, intentional infliction of emotional distress, discriminatory treatment, and he

claims that MCPD has a custom, policy, or practice of constitutional deprivations.

A. False Arrest, Illegal Search, and Excessive Force.

Mr. Bauer claims that Officer Corley falsely arrested him, performed an illegal search, and used

excessive force. Officer Corley and MCPD say that Mr. Bauer was never arrested, and Officer Corley

instead performed an investigatory stop and a legal pat down search. No reasonable jury could disagree

with the defendants given the evidence on the record.

Under the Fourth Amendment, a “seizure” does not occur when a police officer merely

approaches an individual and asks him or her questions. Florida v. Royer, 460 U.S. 491, 497 (1983). Only

when a law enforcement officer “by means of physical force or show of authority, has in some way

restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S.

1, 19 n.16 (1968). “The ‘crucial’ test for determining if there has been a seizure is ‘whether taking into

account all of the circumstances surrounding the encounter, the police conduct would have

communicated to a reasonable person that he was not at liberty to ignore the police presence and go

about his business.’” United States v. Smith, 794 F.3d 681, 684 (7th Cir. 2015) (quoting Florida v. Bostick,

501 U.S. 429, 434 (1991)).

A law enforcement officer may conduct an investigatory stop if that officer has a reasonable

suspicion supported by articulable facts that criminal activity is afoot. United States v. Broomfield, 417

F.3d 654, 655 (7th Cir. 2005) (citing Terry, 392 U.S. at 20); see also United States v. Bullock, 632 F.3d 1004,

1014-15 (7th Cir. 2011). Reasonable suspicion is more than a hunch but less than probable cause, and

it requires objective justification for making a stop. United States v. Sokolow, 490 U.S. 1, 7 (1989). When

determining whether reasonable suspicion exists, courts must assess the “totality of the circumstances

to assess whether the detaining officer has a particularized and objective basis for suspecting illegal

activity.” United States v. Zambrana, 428 F.3d 670, 675 (7th Cir. 2005) (quotation omitted). This

assessment is based on “the totality of the circumstances known to the officer at the time of the stop,

including the experience of the officer and the behavior and characteristics of the suspect.” United

States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006).

To comply with Terry, first the investigatory stop must be lawful. Arizona v. Johnson, 555 U.S.

323, 326 (2009). This condition is satisfied when an officer “reasonably suspects that the person

apprehended is committing or has committed a criminal offense.” Id. Second, to proceed from a stop

to a frisk, the officer “must harbor reasonable suspicion that the person subjected to the frisk is armed

and dangerous.” Id. at 327; United States v. Brown, 188 F.3d 860, 864 (7th Cir. 1999) (“must also be able

to point to specific and articulable facts indicating that the individual may be armed and present a risk

of harm to the officer or to others.”). An officer need not be absolutely certain that the individual he

or she is about to frisk is armed; the issue is whether a reasonably prudent person under the

circumstances would be warranted in the belief that his or her safety or that of others was in danger.

Terry, 392 U.S. at 28.

Use of force against a suspect is a seizure subject to the reasonableness requirement of the

Fourth Amendment. Smith v. Finkley, 10 F.4th 725, 736 (7th Cir. 2021). When determining the

reasonableness of force, the court considers the circumstances, including the severity of the crime, the

immediate threat the suspect posed to the safety of officers and others, and if the suspect actively

resisted or attempted to evade arrest by flight. Graham v. O’Connor, 490 U.S. 386, 396 (1989). In

addition, the court considers “whether the individual was under arrest or suspected of committing a

crime; whether the individual was armed; and whether the person was interfering or attempting to

interfere with the officer’s duties.” Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015).

The analysis requires an inquiry into “whether the officers’ actions are objectively reasonable

in light of the facts and circumstances confronting them, without regard to their underlying intent or

motivation.” Graham, 490 U.S. at 397 (quotations omitted). Courts must examine the reasonableness

of the actions “from the perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Id. at 396. An officer acts reasonably when deploying force if he “has probable

cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to

others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). “The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Graham, 490 U.S. at 396-397. Ultimately, the fundamental question

is “whether the totality of the circumstances justified a particular sort of . . . seizure.” Garner, 471 U.S.

at 8-9.

Here, there is no evidence that contradicts Officer Corley’s version of events. It remains

undisputed that just before Officer Corley engaged with Mr. Bauer, a witness told him that she

believed Mr. Bauer was stealing from a car in the parking lot. Officer Corley saw Mr. Bauer riding his

bicycle away from the car. MCPD has more officers patrolling the outlet mall during the holiday season

due to an increase in thefts, including from the cars in the parking lot. Once Officer Corley confirmed

that Mr. Bauer owned the car, he released the handcuffs and let Mr. Bauer go. Officer Corley

reasonably suspected that Mr. Bauer was stealing or had stolen from the car, so he performed a legal

Terry stop. He released Mr. Bauer as soon as the brief investigation concluded. The encounter lasted

approximately 9 minutes and 40 seconds, and Mr. Bauer was handcuffed for approximately 8 minutes.

The stop—though short—was lengthened by Mr. Bauer’s uncooperativeness (in not getting off the

bike or keeping his hands out of his pockets immediately) and failure to have his identification on him.

No reasonable jury could find for Mr. Bauer on this record. Summary judgment is granted for the

defendants on the false arrest claim.

The pat down search was also legal. It remains undisputed that within the first twenty seconds

of engaging with Officer Corley, Mr. Bauer was told twice to take his hands out of his pockets [ECF

42 (Ex. 2) at 01:10-01:20]. Because of this behavior, Officer Corley harbored a reasonable suspicion

that Mr. Bauer may be armed and may present a risk of harm to himself or others. He proceeded to

pat down Mr. Bauer and check his pockets, removing numerous plastic bags and the car keys. This

search took approximately 75 seconds and included questioning about where Mr. Bauer was going, if

the blue car was his, what year the car was, why he was riding a bike if he had a car, and if he had

identification on him [ECF 42 (Ex. 2) at 01:30-02:45]. Based on the record, no reasonable jury could

conclude that the pat down search was illegal. Summary judgment is granted on this claim.

The use of handcuffs was not excessive force. Under the Fourth Amendment, “[a] person has

the right to be free from an officer’s knowing use of handcuffs in a way that would inflict unnecessary

pain or injury, if that person little or no risk of flight or threat of injury.” Rooni v. Biser, 742 F.3d 737,

742 (7th Cir. 2014); see also Payne v. Pauley, 337 F.3d 767, 779 (7th Cir. 2003) (collecting cases describing

when the use of handcuffs constitutes excessive force, including when officers “refus[e] to loosen

plaintiff’s chafing handcuffs,” and where tight handcuffs caused nerve damage or a “sprained wrist,

shoulder, and elbow”) (citations omitted)). However, nothing on this record shows that the handcuffs

did inflict pain or injury or that Officer Corley knew that the handcuffs would cause such pain or

injury. Instead, Mr. Bauer posed a flight risk and a potential threat to Officer Corley such that the use

of handcuffs was reasonable. Mr. Bauer was twice told to get off his bicycle and then twice directed

to stop putting his hands in his pockets before he complied. Mr. Bauer was directed to place his hands

on the squad car, which he did initially [ECF 42 (Ex. 2) at 01:35], but then three times over the next

75 seconds he lifted his hands from the squad car and began to turn his body away from the squad

car and toward Officer Corley until he was redirected, again three times, to “sit tight” [ECF 42 (Ex.

2) at 01:41, 2:21, 2:50]. Officer Corley then placed the handcuffs on Mr. Bauer [ECF 42 (Ex. 2) at

02:55], where they remained until Mr. Bauer was released about 8 minutes later [ECF 42 (Ex. 2) at

11:14]. Mr. Bauer then immediately started collecting the bags that Officer Corley had removed from

his pockets and showed no visible signs of injury or distress. Officer Corley’s decision to handcuff

Mr. Bauer while the brief investigation unfolded was objectively reasonable in light of the facts and

circumstances confronting him during the encounter. The video footage clearly contradicts Mr.

Bauer’s claim of excessive force. No reasonable jury could find otherwise. Summary judgment is

granted on the excessive force claim.

B. Intimidation, Violation of Due Process, Intentional Infliction of Emotional Distress, Discriminatory

Treatment, and Monell.

Mr. Bauer brings several other broad claims: intimidation, violation of due process, intentional

infliction of emotional distress, discriminatory treatment, and that MCPD has a custom, policy, or

practice of constitutional deprivations, see Monell v. N.Y. City Dept. of Social Servs., 436 U.S. 658 (1978).

He addresses none of them substantively in his summary judgment briefing.3 This is the time in which

the record is tested to see whether a reasonable jury could find for a party. See Springer v. Durflinger, 518

F.3d 479, 484 (7th Cir. 2008). An undeveloped argument based on Mr. Bauer’s fantastical theory that

the dash camera footage was created by the defendants to fraudulently “refilm” the encounter in

question won’t carry the day. See Harper v. C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012) (“However,

[the court’s] favor toward the nonmoving party does not extend to drawing inferences that are

supported by only speculation or conjecture.”). The court won’t craft argument for Mr. Bauer on these

claims. See Gross v. Town of Cicero, 619 F.3d 697, 704-05 (7th Cir. 2010). “To survive summary judgment,

the non-moving party must establish some genuine issue for trial ‘such that a reasonable jury could

return a verdict in [his] favor.’” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (quoting Makowski

v. SmithAmundsen LLC, 662 F.3d 818, 822 (7th Cir. 2011)). After careful review of the record and

governing law, Mr. Bauer hasn’t presented any evidence to support the remaining claims, much less

established a genuine issue for trial, so summary judgment is granted for the defendants. As no claims

remain against Officer Corley, the court need not address qualified immunity.

3 He makes three conclusory statements related to these claims: “Plaintiffs due process claim still stands cause

the defense tried to refilm the pullover” [ECF 53 at ¶ 5], “intentional infliction of emotional distress still stands

cause defenses video is illegal” [Id. at ¶ 6], and “The Monell claim still stands and I would like to claim fraud for

the video that was remade to frame plaintiff with and ruin his court case” [Id. at ¶ 8].

CONCLUSION

Accordingly, the court GRANTS Officer Corley and the Michigan City Police Department’s

motion for summary judgment [ECF 37]. This order terminates the case.

SO ORDERED.

July 12, 2023 s/ Damon R. Leichty

Judge, United States District Court