DAVIS v. NEW ALBANY, INDIANA POLICE DEPT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

NEW ALBANY DIVISION

MICHAEL C. DAVIS, )

)

Plaintiff, )

)

v. ) Case No. 4:19-cv-00078-TWP-DML

)

NEW ALBANY, INDIANA POLICE DEPT, )

C. SHULTZ NAPD, and B. KORTE NAPD, )

)

Defendants. )

ENTRY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on the Motion for Summary Judgment, (Dkt. 27), filed by

Defendants Cameron Shultz ("Shultz") and Brandon Korte ("Korte") (collectively, "the

Defendants"). Plaintiff Michael C. Davis (“Davis”), pro se, filed this action asserting claims of

false arrest and false imprisonment. The Defendants contend that Davis’ claims fail as a matter of

law. For the reasons stated below, the Defendants' summary judgment motion is granted.

I. BACKGROUND

The standard for review on summary judgment is that the inferences drawn from the

underlying facts “must be viewed in the light most favorable to the non-moving

party". See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). Davis, the non-moving party, was instructed on several occasions

of his right to respond to the summary judgment motion, but he has failed to file a response. See

(Dkt. 30, Dkt. 31). Davis’ failure to respond to the Defendants' Motion requires the Court to treat

the movants' version of the facts as uncontested. See Waldridge v. Am. Hoechst Corp., 24 F.3d

918, 922 (7th Cir. 1994); Childress v. Experian Info. Servs., 2014 Lexis 103738, 9-11 (S.D. Ind.

2014) (J. Pratt); S.D. Ind. Local R. 56-1(f) (“[i]n deciding a summary judgment motion, the court

will assume that the facts as claimed by admissible evidence by the movant are admitted without

controversy except to the extent that the non-movant specifically controverts the facts in that

party’s “Statement of Material Facts in Dispute” with admissible evidence”) (internal citations

omitted). The Defendants have properly supported their summary judgment motion by attaching

affidavits and designating evidence. Accordingly, the uncontested facts are as follows.

On April 16, 2016, Davis was arrested and charged in the Floyd Superior Court with child

seduction, two counts of dissemination of matter harmful to minors and two counts of incest. (Dkt.

29-2 at 7.) Shortly thereafter, he posted bond and was released. (Dkt. 1 at 4.) On April 17, 2018,

Judge Maria Granger ("Judge Granger") issued a No Contact Order Upon Release from Custody

or Bail or Personal Recognizance, restricting Davis from having contact with his daughter, Earlean

“Jo” Davis ("Jo Davis"). (Dkt. 29-2 at 7.)

Shultz and Korte are officers with the New Albany, Indiana Police Department. On

October 31, 2018, Shultz responded to a call at the Walmart located at Grant Line Road, New

Albany, Indiana (“Walmart”), in reference to a violation of a protection order. Upon arriving at

the Walmart, Shultz spoke to Jo Davis. She informed Shultz that she was working in the Walmart

on October 31, 2018 when she saw her father, Michael Davis, in the store. Jo Davis told Shultz

there was an active Protective Order which forbid Davis from contacting her or from visiting

locations where he knew Jo Davis to be located. After she informed Shultz of the Protective Order,

Shultz contacted New Albany Police dispatch which confirmed there was an active Protective

Order and that Davis had been served with the Protective Order.

On October 31, 2018, Shultz also spoke with Walmart Loss Prevention employee, Joyce

Lamb ("Lamb"), who informed Shultz that "Mike has been coming to Walmart for years and it

appeared he was here today to pick up medication or some other item". (Dkt. 29-2 at 10.) Lamb

advised Shultz that she would issue Davis a trespass warning if he came to the store again. Shultz

prepared a report regarding his investigation to document in writing that Davis was now aware

that his daughter, Jo Davis worked at that particular Walmart and any further interaction with Jo

Davis at that location would be an intentional violation of the Protective Order. Id.

On October 31, 2018, Korte also responded to the call at Walmart in reference to a violation

of a protection order. Shultz was the responding officer on the call and Korte was only present at

Walmart to back up Schultz while he conducted his investigation. (29-4 at 1.) He did not

participate in the witness interviews conducted by Shultz at Walmart on October 31, 2018 and did

not prepare the police report relating to Shultz’s investigation. Id.

On December 27, 2018, Shultz responded to another call at the Walmart in reference to a

violation of a protection order. Upon arriving at the Walmart, Shultz again spoke to Jo Davis. She

informed Shultz that she was stocking shelves on December 27, 2018 when she turned around and

saw her father, Davis, standing behind her. Jo Davis told Shultz that Davis made a mean face

towards her at which time she walked away from him and went to the rear of the store where she

called her mother who contacted the police to report the incident. (Dkt. 29-2 at 2.)

Shultz then spoke with Walmart Loss Prevention employee Demetrius Watkins

("Watkins") who informed Shultz he witnessed Davis inside the store that day. Watkins provided

Shultz with a signed statement regarding his interaction with Davis at the Walmart. In his

statement, Watkins reported that when he told Davis that he had to leave the store, Davis stated

"he didn't know why he was being put out of the store and that he doesn't know when Earleen

Davis is working." (Dkt. 29-2 at 11.) Watkins also provided Shultz with video footage from

Walmart’s surveillance system which showed Davis inside the Walmart on December 27, 2018.

Shultz subsequently provided the video recording to the Floyd County, Indiana Prosecutor’s Office

for use in its prosecution of Davis.

On December 27, 2018, Korte also responded to the dispatch call at the Walmart in

reference to a violation of a protection order. Korte was only present at Walmart to back up Schultz

while he conducted his investigation. (Dkt. 29-4 at 2). As the backup officer, Korte did not

participate in the witness interviews conducted by Shultz at Walmart on December 27, 2018. Id.

On December 27, 2018, Shultz prepared and signed an Affidavit for Probable Cause related

to his investigations at Walmart on October 31, 2018 and December 27, 2018. (Dkt. 29-2 at 15.)

He subsequently provided the Affidavit for Probable Cause to the Floyd County, Indiana

Prosecutor’s Office. Shultz affirms that all of the information contained in the Affidavit for

Probable Cause was a true and accurate representation of the information he received during his

investigations and he never received any information which would have caused him to question

the accuracy or truthfulness of the information provided to him by Jo Davis or the Walmart

employees he spoke to during his investigations. (Dkt. 29-2 at 3-4.) Korte did not prepare a police

report or Affidavit for Probable Cause related to Shultz’s investigation.

After the Floyd County Prosecutor’s Office filed the Probable Cause Affidavit with the

court, Judge Granger found there was probable cause to believe Davis committed a crime and

issued a warrant for Davis’ arrest. (Dkt. No. 29-2 at 4.) Neither Shultz nor Korte served the arrest

warrant upon Davis and neither took part in Davis’ arrest; rather, Officer Jacob Hannon

("Hannon") of the New Albany Police Department was the arresting officer who took Davis into

custody on January 9, 2019. Id.; Dkt. 29-3.

II. LEGAL STANDARD

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in

order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). Federal Rule of Civil Procedure 56 provides that summary

judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v.

Quotesmith.com, Inc., 476 F.3d 487, 489–90 (7th Cir. 2007). In ruling on a motion for summary

judgment, the court reviews “the record in the light most favorable to the non-moving party and

draw[s] all reasonable inferences in that party’s favor.” Zerante, 555 F.3d at 584 (citation omitted).

Summary judgment is not appropriate if the dispute about a material fact is “genuine.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248. A material fact is genuine if “the evidence is such that

a reasonable jury could return a verdict for the nonmoving party. Id. The judge’s function is not

to “weigh the evidence and determine the truth of the matter but to determine whether there is a

genuine issue for trial.” Id. If there is a genuine issue of material fact, the Motion for Summary

Judgment must be denied. Id.

III. DISCUSSION

As an initial matter, the Court notes that Davis brings this action against the New Albany,

Indiana, Police Department and the two officers. A city police department is not a properly suable

entity because Indiana law does not provide for municipal police departments to sue or to be sued.

See Sow v. Fortville Police Dep't, 636 F.3d 293, 300 (7th Cir. 2011) (quoting Martin v. Fort Wayne

Police Dep't, 2010 WL 4876728, at *3 (N.D. Ind. Nov. 23, 2010)) ("[T]he Indiana statutory

scheme does not grant municipal police departments the capacity to sue or be sued."). It appears

the Defendants have relied on this principle because only the officers have moved for summary

judgment. Because the New Albany, Indiana Police Department is not a suable entity, it is

dismissed as a party to this action.

The Defendants assert that summary judgment is appropriate because the undisputed

evidence shows Davis' constitutional rights were not violated. In particular, they argue that since

Shultz and Korte were not the officers that actually arrested Davis, they did not subject Davis to

false arrest and/or false imprisonment. They also contend that Davis' arrest was constitutional,

because there was probable cause to believe that he committed a crime. The Defendants further

assert that even if the Court finds an issue of fact precludes summary judgment on whether Davis’

constitutional rights were violated, summary judgment is required because they are entitled to

qualified immunity. The Court will address the false arrest/false imprisonment claims before

turning to the issue of immunity.

A. False Arrest/False Imprisonment Claims

Although Davis did not respond to the Defendants summary judgment motion, the facts

alleged in his Complaint are mostly consistent with the evidence designated by the Defendants.

The sole dispute is with Davis' identification of the officer(s) who effectuated his arrest. In his

Complaint, Davis alleges that on April 16, 2018, he was arrested by New Albany, Indiana police

officers for serious allegations, for which he was later released after posting bond. (Dkt. 1 at 4.)

On December 27, 2018, he entered Walmart and while shopping, was approached by two Walmart

security employees and informed that Walmart had recently hired Jo Davis "the alleged victim" of

his April 2018 arrest, and she had obtained a restraining order against him. Id. at 4. Davis offered

to stop shopping and leave, but the security officers allowed him to finish shopping and escorted

him to a check-out clerk away from Jo Davis. Id. He alleges that on January 9, 2019, he was

arrested by the Defendants, New Albany police officers C. Shultz and B. Korte, and was charged

with invasion of privacy for being in Walmart on December 27, 2018. Id. He was detained in the

Floyd County Jail where he suffered extreme emotional distress and traumatic nightmares and was

subjected to a $20,000.00 bond before being released from jail. Davis asserts that all of this

occurred without his violating laws or Walmart’s store policies and without approaching the

Walmart employee who had obtained a restraining order against him. (Dkt. 1. at 4–5.) Thus, he

argues he has been the victim of false arrests and false imprisonment. Davis seeks relief for

violation of his civil rights under 42 U.S.C. § 1983.

As noted by the Defendants in their brief, under Indiana law and Seventh Circuit precedent,

the courts use the same analysis for allegations of false arrest and false imprisonment. ("A false

arrest is one means of committing a false imprisonment, and every false arrest has, at its core, a

false imprisonment.”). Bentz v. City of Kendallville, 577 F.3d 776, 780 (7th Cir. 2009).

Probable cause is an absolute defense to claims of wrongful or false arrest under the Fourth

Amendment in section 1983 suits. Ewell v. Toney, 853 F.3d 911, 919 (7th Cir. 2017). If an officer

has probable cause to arrest a suspect, the arrest was not false. Probable cause exists at the time of

an arrest if “the facts and circumstances within the officer’s knowledge ... are sufficient to warrant

a prudent person, or one of reasonable caution, in believing... that the suspect has committed, is

committing, or is about to commit an offense.” Williams v. City of Chicago, 733 F.3d 749, 756

(7th Cir. 2013). (quoting Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009)).

Section 1983 creates a cause of action based upon personal liability and predicated upon

fault. An individual cannot be held liable in a § 1983 action unless he caused or participated in an

alleged constitutional deprivation.” Wolf–Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). To

succeed in his claim against Shultz and Korte, Davis must first establish that each officer either

participated in his arrest or caused his arrest.

Despite Davis' allegation in his Complaint that officers Shultz and Korte arrested him, the

designated evidence supports that officer Hannon alone was the arresting officer. As the non-

movant, Davis must "go beyond the pleadings (e.g., produce affidavits, depositions, answers to

interrogatories, or admissions on file) to demonstrate that there is evidence upon which a jury

could properly proceed to find a verdict in his favor. Modrowski v. Pigatto, 712 F.3d 1166, 1169

(7th Cir, 2013). Davis has designated no evidence to contradict the officers' testimonies that

Hannon was the arresting officer. Because Davis has not shown that either Shultz or Korte arrested

him, the Court will determine whether either Defendant caused him to be arrested.

Concerning Korte, the evidence shows that on the October 31 and December 27, 2018 runs

to Walmart, he did not participate in witness interviews, did not prepare any reports related to

Davis, did not prepare or sign the Affidavit for Probable cause in Davis’ criminal case, and was

not present when Hannon arrested Davis. Defendants argue these facts are fatal to Davis' claims

against Korte. The Court agrees. Korte is entitled to summary judgment in his favor as a matter

of law because the undisputed evidence shows he did not participate in or cause Davis’ arrest.

Shultz, however, concedes that he prepared and signed an Affidavit of Probable Cause

based upon the information he gathered from interviewing witnesses on October 31 and December

27, 2018. Shultz argues that there is no evidence that he entertained serious doubts as to the truth

of the statements in his Affidavit and he had no reasons to doubt the accuracy of the statements

and information that he submitted in his Affidavit to the prosecuting attorney. After submitting

his Affidavit to the Prosecutor’s Office, the prosecuting attorney filed the Affidavit with the court

and Judge Granger issued the warrant which “caused” Davis’ arrest. Although Shultz did not

participate in the actual arrest, an issue of fact exists as to whether Shultz's actions "caused" Davis

being arrested.

The Defendants argue that even if the Court finds an issue of fact exists regarding whether

Shultz “caused” Davis’ arrest, they are still entitled to judgment as a matter of law because to

prevail on his claim of false arrest (and false imprisonment), Davis must show there was no

probable cause for his arrest. See Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir. 2012).

Probable cause to arrest is an absolute defense to any claim under Section 1983 against police

officers for wrongful arrest. Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir.2006).

robable cause “requires only that a probability or substantial chance of criminal ac tivity

exists; iPt does not require the existence of criminal activity to be more likely true than not true.”

Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1056–57 (7th Cir.2011). Probable cause “is a fluid

concept that relies on the common-sense judgment of the officers based on the totality of the

circumstances.” United States v. Reed, 443 F.3d 600, 603 (7th Cir.2006). For this Court to make

a probable cause determination, it must “step[ ] into the shoes of a reasonable person in the position

of the officer[,]” Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir.2008), considering the facts

known to the officer at the time, Carmichael v. Vill. of Palatine, Ill., 605 F.3d 451, 457 (7th

Cir.2010). This is an objective inquiry; we do not consider the subjective motivations of the officer.

Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Likewise, for

a claim of false arrest or false imprisonment to succeed under Indiana law, there must be an

“absence of probable cause.” Row v. Holt, 864 N.E.2d 1011, 1016 (Ind.2007).

The Defendants contend the undisputed evidence shows there was probable cause to arrest

Davis for committing the offense of Invasion of Privacy in violation of I.C. § 35-46-1-15.1. That

statute provides in pertinent part:

(a) A person who knowingly or intentionally violates:

(1) a protective order to prevent domestic or family violence or harassment issued

under IC 34-26-5 (or, if the order involved a family or household member, under IC

34-26-2 or IC 34-4-5.1-5 before their repeal); . . . commits invasion of privacy, a

Class A misdemeanor.

Ind. Code Ann. § 35-46-1-15. Specifically, The Defendants point to the following evidence:

…Shultz first responded to a call at the Walmart regarding Davis on October 31,

2018. At that time, Shultz spoke to Jo Davis who told Shultz Davis had seen her

working in the store. Shultz also interviewed a Walmart Loss Prevention employee

who told him Davis had been in the store at the same time as Jo Davis. Shultz then

confirmed with dispatch that a Protective Order had been served upon Davis.

However, at that time, Shultz did not take any action beyond preparing a report to

memorialize the fact Davis was aware Jo Davis worked at Walmart.

On December 27, 2018, Shultz again responded to a call at Walmart regarding

Davis violating the Protective Order which forbade him from going to Jo Davis’

place of employment. Shultz spoke with Jo Davis and a Walmart Loss Prevention

employee and obtained a signed statement from the Loss Prevention employee

indicating he had seen and interacted with Davis at the Walmart. Shultz also

obtained a video recording which showed Davis in the Walmart at the same time

Jo Davis was working there.

(Dkt. 28 at 12).

The Court agrees that the undisputed evidence shows Shultz acted in a reasonable manner

in preparing and signing the Affidavit for Probable Cause. The evidence gathered by Shultz during

his two trips to Walmart was sufficient to create probable cause to believe Davis had violated

Indiana’s invasion of privacy statute. It is undisputed that Jo Davis, the alleged victim, positively

identified Davis as having violated the no contact order. The Defendants were entitled to rely on

information reported by Jo Davis. See Capps v. State, 248 Ind. 472, 229 N.E.2d 794, 796 (1967)

(“A police officer may base his belief that there is reasonable and probable cause for arresting a

person on information received from another.”). Importantly, Shultz confirmed the existence of a

Protective Order which forbade Davis from going to Jo Davis’ place of employment. The

information Shultz gathered during his October 31, 2018 investigation created probable cause to

believe Davis was aware Jo Davis worked at Walmart.

The information Shultz gathered during his December 27, 2018 investigation created

probable cause to believe Davis knowingly and/or intentionally violated the terms of the Protective

Order when he returned to Walmart despite having already been served with the Protective Order

and put on notice that Jo Davis worked there. The Court recognizes that Davis alleges in his

Complaint that while he shopped at the Walmart establishment he did not "attempt to approach

nor approach, Ms. Davis nor any register she may have been assigned and did not violate any laws

on his December 27, 201[8], visit." (Dkt. 1 at 5). Davis' assertions may be true and he may

ultimately be found not guilty of invasion of privacy; however, the issue of Davis' guilt is not

relevant to a determination of probable cause for his arrest. What is relevant is whether Shultz had

a reasonable suspicion or justifiable belief based on specific facts and/or circumstances that Davis

was involved in criminal activity. The Court finds that he did.

In addition, Judge Granger determined that probable cause existed for Davis' arrest. “[A]

judicial determination of probable cause in a criminal proceeding constitutes prima facie evidence

of probable cause. . . .” Marten v. Swain, 242 F. Supp. 3d 744, 762 (S.D. Ind. 2017). An exception

exists if there is evidence showing that “the finding of probable cause was induced by false

testimony, fraud, or other improper means such as the defendant withholding material facts at the

hearing.” Id. Here, there is no evidence that the probable cause affidavit was induced by false

testimony, fraud or other improper means. Likewise, there is no evidence that Shultz withheld any

material facts relating to his Affidavit. Thus, the Court determines as a matter of law that probable

cause existed for Davis’ arrest and summary judgment is appropriate as to claims against Shultz.

B. Qualified Immunity

Finally, the Defendants assert that they are also entitled to judgment in their favor because

they are cloaked with qualified immunity. The qualified immunity doctrine “protects government

officials from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). When qualified immunity is presented as a defense, courts must first "(1) determine

whether the plaintiff has alleged the deprivation of an actual constitutional right and, (2) if so,

determine whether that right was clearly established at the time of the alleged violation." Sparing

v. Village of Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001) (citing Saucier v. Katz, 533 U.S.

194 (2001)). "Clearly established" for purposes of qualified immunity means that "the contours

of the right must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right." Wilson v. Layne, 526 U.S. 603, 614-15 (1999). The burden of defeating

an assertion of qualified immunity rests with the plaintiff. Spiegel v. Cortese, 196 F.3d 717, 723

(7th Cir. 1999).

For qualified immunity to attach, the Defendants do not have to show they had actual

probable cause. Rather, they need only show that they had "arguable probable cause." Bruce v.

Guernsey, 777 F.3d 872, 878 (7th Cir. 2015). See also, Gutierrez v. Kermon, 722 F.3d 1003, 1008

(7th Cir. 2013) (qualified immunity provides shelter for officers who have at least "arguable"

probable cause); Burritt v. Ditlefsen, 807 F.3d 239, 250 (7th Cir. 2015) (officers are entitled to

qualified immunity if a reasonable officer could have mistakenly believed that probable cause

existed). As addressed above, this Court has determined that probable cause clearly existed for

Davis' arrest. Shultz received information from credible witnesses which created probable cause

to believe Davis had committed a crime, and a judicial officer agreed and issued an arrest warrant.

Because Shultz's and Korte's conduct did not violate any of Davis' constitutional rights, the

Defendants are entitled to qualified immunity.

IV. CONCLUSION

For the reasons stated above, the Defendants’ Motion for Summary Judgment, (Dkt. [27]),

is GRANTED!.

SO ORDERED.

Date: 9/11/2020 a bp alin paph

TANYA WALTON PRATT, JUDGE

United States District Court

DISTRIBUTION: Southern District of Indiana

Michael C. Davis

FLOYD COUNTY JAIL

P.O. Box 1406

New Albany, Indiana 47150

Corey J. Dunn

KIGHTLINGER & GRAY LLP

cdunn @k-glaw.com

R. Jeffrey Lowe

KIGHTLINGER & GRAY, LLP (New Albany)

jlowe @k-glaw.com

' As noted in Section III of this Order, the New Albany, Indiana Police Department is dismissed as a party to this

action.

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