BOYD v. NICHOLS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

DEREK L. BOYD, )

)

Plaintiff, )

)

v. ) Case No. 1:20-cv-01256-TWP-TAB

)

DAVIN NICHOLS, DAVID LACY, )

ROBERT NUNEMACHER, JOE FARINOLLA1, )

Sheriff Deputy, and JAY D. RICH, Tipton County )

Prosecutor, )

)

Defendants. )

ENTRY DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT,

GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, DENYING

MOTIONS FOR SANCTIONS, AND DIRECTING ENTRY OF FINAL JUDGMENT

This matter is before the Court on a Motion for Summary Judgment, (Dkt. 196), and two

Motions for Sanctions, (Dkt. 183, Dkt. 285), filed by pro se Plaintiff Derek L. Boyd ("Mr. Boyd").

Also before the Court is a Motion for Summary Judgment filed by Defendants Davin Nichols

("Officer Nichols2"), David Lacy ("Lacy"), and Robert Nunemacher ("Officer Nunemacher"),

(Dkt. 248), and a Motion for Summary Judgment filed by Defendants Joe Farinella ("Deputy

Farinella"), and Jay D. Rich ("Mr. Rich"), (Dkt. 260), (collectively, "Defendants"). Mr. Boyd

initiated this action alleging that law enforcement officers searched his home subject to an invalid

warrant in 2017, that he was wrongly arrested and detained because of the search, and the

prosecution withheld evidence that would have revealed that the search and arrest lacked probable

1 Mr. Boyd improperly identified Deputy "Farinolla" in his Complaint, (see Dkt. 18), and his name has appeared

incorrectly on the docket since then. The Clerk is directed to change Defendant's name on the docket from "Joe

Farinolla" to "Joe Farinella."

2 Defendant Nichols is currently a Captain with the Tipton Police Department; however, at the time of the

circumstances leading to this Complaint, Defendant Nichols was an Officer with the Tipton Police Department (see

Dkt. 213-1). For purposes of this Entry, the Court will refer to him as "Officer" Nichols.

cause. For the reasons explained below, Defendants are entitled to judgment as a matter of law,

Mr. Boyd's sanctions motions lack merit, and this matter must be dismissed.

I. SUMMARY JUDGMENT STANDARD

A motion for summary judgment asks the Court to find that a trial is unnecessary because

there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment

as a matter of law. See Federal Rule of Civil Procedure. 56(a). Whether a party asserts that a fact

is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular

parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A

party can also support a fact by showing that the materials cited do not establish the absence or

presence of a genuine dispute or that the adverse party cannot produce admissible evidence to

support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the affiant is

competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact

in opposition to a movant's factual assertion can result in the movant's fact being considered

undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

In deciding a motion for summary judgment, the court need only consider disputed facts

that are material to the decision. A disputed fact is material if it might affect the outcome of the

suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). "A genuine

dispute as to any material fact exists 'if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.'" Daugherty v. Page, 906 F.3d 606, 609-10 (7th Cir. 2018)

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

On summary judgment, a party must show the court what evidence it has that would

convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896

(7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder

could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir.

2009). The court views the record in the light most favorable to the non-moving party and draws

all reasonable inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717

(7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary

judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827

(7th Cir. 2014). The court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and is

not required to "scour every inch of the record" for evidence that is potentially relevant to the

summary judgment motion. Grant v. Trustees of Indiana University, 870 F.3d 562, 572-73 (7th

Cir. 2017). Any doubt as to the existence of a genuine issue for trial is resolved against the moving

party. Anderson, 477 U.S. at 255.

When reviewing cross-motions for summary judgment, all reasonable inferences are drawn

in favor of the party against whom the motion at issue was made. Valenti v. Lawson, 889 F.3d

427, 429 (7th Cir. 2018) (citing Tripp v. Scholz, 872 F.3d 857, 862 (7th Cir. 2017)). The existence

of cross-motions for summary judgment does not imply that there are no genuine issues of material

fact. R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, Local Union

150, AFL-CIO, 335 F.3d 643, 647 (7th Cir. 2003).

“A document filed pro se is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and quotation marks omitted).

However, it is also well established that pro se litigants are not excused from compliance with

procedural rules. The Supreme Court has never suggested that procedural rules in ordinary civil

litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.

Further, as the Supreme Court has noted, in the long run, experience teaches that strict adherence

to the procedural requirements specified by the legislature is the best guarantee of evenhanded

administration of the law. Feresu v. Trs. of Ind. Univ., 2017 U.S. Dist. LEXIS 66452, at *18–19

(S.D. Ind. May 2, 2017) (citations and punctuation marks omitted).

II. FACTS

A. Response to Ki Pil Choi's Residence

On February 14, 2017, Tipton County Communications Dispatch called law enforcement

officers to the home of Ki Pil Choi ("Choi"). (Dkt. 196-1 at 3.) Tipton Police Department ("TPD")

Officers Nichols and Nunemacher arrived and found Choi in distress, breathing heavily, and

clutching his chest. Id. Choi told the officers that he had taken "ice," which Officer Nichols knew

as a street name for methamphetamine. Id. at 4. Choi took the officers to his bedroom, where they

found trace quantities of a white, powdery substance that proved to be methamphetamine

following a field test. Id. at 4–5.

Officer Nichols visited Choi in the emergency room approximately 30–40 minutes after

receiving the original dispatch and asked him where and from whom he obtained the

methamphetamine he took that day. Id. at 5. Choi provided Officer Nichols, the following details.

He purchased $80 worth of methamphetamine from Derek Boyd in Mr. Boyd's home at 444 North

East Street, City of Tipton, Tipton County, Indiana. Mr. Boyd took Choi to his bedroom, where he

removed a rock from a brown dresser, cut off a piece, weighed it on a scale, and gave it to Choi in

exchange for his money. See Dkt. 168-1 at 18:7–19:4; Dkt. 196-1 at 4–6. Although Choi remained

in distress even at the hospital, Officer Nichols judged that he was lucid, "tracking" his questions,

and providing responsive answers. (Dkt. 168-1 at 18:10–15, 19:13–21, 23:15–18; Dkt. 196-1 at 6.)

Officer Nichols recognized 444 North East Street as Mr. Boyd's address because he had

responded to a disturbance there in the past. (Dkt. 168-1 at 21:2–9.) Additionally, other TPD

officers previously asked Officer Nichols to watch that residence "for drug activity." Id. at 21:22–

25.

B. Search Warrant Application

Officer Nichols applied for a search warrant. He presented an affidavit to Tipton County

Prosecutor Jay Rich, recounting his interactions with Choi, Choi's account of his transaction with

Mr. Boyd, and the suspicion among TPD officers that Mr. Boyd was selling drugs from 444 North

East Street. (Dkt. 249-2 at 5–7.) The affidavit concludes:

Officer Nichols believes that probable cause exists to search the residence of Derek

L. Boyd for the presence of controlled substances, namely methamphetamine,

based on the first hand, personal observations of Ki Pil Choi, providing intimate,

specific details, recent in nature, regarding Boyd's possession and distribution of

methamphetamine located inside the residence, as well as other law enforcement

information suggesting Boyd has been involved in said possession and distribution.

(Dkt. 249-2 at 7 (emphasis added).)

Officer Nichols sought a warrant to search 444 North East Street, and any "enclosed area

and/or container anywhere on the premises," for "Methamphetamine in any form, records,

paraphernalia and other indicia of manufacturing, use, or distribution of controlled substances,

which constitutes contraband and evidence of an offense." Id. at 8. Tipton County Circuit Judge

Thomas Lett approved the warrant and signed two copies—one at 11:00 P.M. on February 14,

2017, and the other at 11:10 P.M. (Dkt. 249-4 at 1, 7–8.)

C. Search, Arrest, and Detention

On the evening of February 14, 2017, Officer Nichols proceeded to Mr. Boyd's house and

executed the search warrant along with Officers Nunemacher and Lacy, and Tipton County

Sheriff's Deputy Farinella. (Dkt. 249-2 at 2; Dkt. 249-10 at ¶ 4; Dkt. 249-11 at ¶ 4; Dkt. 261-1 at

¶ 4.) Officers Nunemacher and Lacy and Deputy Farinella knew that they were conducting the

search pursuant to a warrant that Judge Lett had approved. (Dkt. 249-10 at ¶ 10; Dkt. 249-11 at ¶

4; Dkt. 261-1 at ¶ 4.) Inside a brown dresser in Mr. Boyd's bedroom, Deputy Farinella found a

plastic container containing a white, crystal-like substance and several items with a white, powdery

residue, including a plastic bag, a glass pipe, and a digital scale. (Dkt. 261-1 at ¶ 9.)

The officers arrested Mr. Boyd for possessing drug paraphernalia. (Dkt. 249-2 at 12.)

Upon his return to the police station, Officer Nichols field tested the white crystal-like substance

and the residue on the glass pipe and the digital scale. Id. All were positive for methamphetamine.

Id. Mr. Boyd was charged in state court with dealing methamphetamine, possessing

methamphetamine and paraphernalia, and maintaining a common nuisance. (Dkt. 249-1 at 1; Dkt.

261-5 at 1–4.) Mr. Boyd was detained until March 3, 2017, at which point he was granted pretrial

release. See Dkt. 261-2 at 2–4. Six months later, Judge Lett issued an arrest warrant based on Mr.

Boyd's violation of his pre-trial release conditions. Id. at 5. Judge Lett granted pretrial release

again on December 4, 2017, then issued another arrest warrant after Mr. Boyd failed to appear in

March 2018. Id. at 7–8. Mr. Boyd remained in pretrial detention until September 2019. Id. at 19.

D. Motion to Suppress and Dismissal of Charges

On September 5, 2019—two weeks before his jury trial—Mr. Boyd moved to suppress

evidence obtained in the search. (Dkt. 261-2 at 18.) Judge Lett held a hearing eight days later.

(Dkt. 168-1 at 4.) At the hearing, Mr. Boyd's attorney called Choi, who testified that he has been

affected by bipolar disorder and severe memory deficits since the 1990s. (Dkt. 168-1 at 6:19–23,

7:2–15.) He could not remember whether he purchased drugs from Derek Boyd in February 2017,

whether he was arrested for that transaction, whether he interacted with Officer Nichols, or whether

he had been convicted of various prior offenses. See id. at 7:23–8:19.

Mr. Boyd's attorney then called Officer Nichols and examined his efforts to corroborate

Choi's statements or determine his trustworthiness before seeking the warrant. Officer Nichols

conceded that he did not try to corroborate Choi's testimony on February 14, 2017 before seeking

the warrant and that he had been called to Choi's residence before and found him behaving

abnormally. (Dkt. 168-1 at 12:21–13:2, 14:6–15:12.) He did not review Choi's criminal history,

and he was not aware that Choi pled guilty ten years earlier to misdemeanor false informing. Id.

at 14:25–15:6; see State of Indiana v. Ki Pil Choi, no. 79D05-0709-CM-001787.

Mr. Boyd's attorney argued that the search warrant was invalid because Officer Nichols

based his probable cause affidavit primarily on statements from Choi but provided no information

that would allow Judge Lett to assess Choi's reliability as an informant. (Dkt. 168-1 at 26:13–

30:10.) Judge Lett stated that he would likely deny the motion to suppress but wished to take some

time to review it. Id. at 34:17–22, 35:18–23. However, before Judge Lett ruled on the motion to

suppress, the state moved to dismiss Mr. Boyd's charges from the February 14, 2017 incident.

(Dkt. 249-4 at 2; dkt. 261-2 at 19.)3

E. Body Camera Video

Officer Nichols wore a body camera during his interactions with Choi and the search on

February 14, 2017. (Dkt. 168-1 at 13:21–24; Dkt. 249-2 at 12.) He downloaded the body camera

video to the TPD's storage device on February 15, 2017. (Dkt. 213-1 at ¶ 5.) No evidence

documents what was depicted or recorded by the body camera. The record also does not clearly

document attempts by Mr. Boyd or defense counsel to obtain body camera evidence. Mr. Boyd

3 The basis for the dismissal is not explicit in the record. Mr. Rich stated in response to an interrogatory that, "[i]n the

exercise of [his] prosecutorial discretion," he thought dismissing the charges "was the right and just thing to do." (Dkt.

255-8 at 23.) The Court notes that, in October 2018, while his criminal case in Tipton County was pending, Mr. Boyd

pled guilty in Madison County to drug charges, for which he is currently serving his sentence. See State of Indiana v.

Derek L. Boyd, no. 48C06-1709-F4-002348.

filed a pro se "motion of discovery" on May 6, 2019, but the state court docket text suggests that

it concerned other evidence. See Dkt. 261-2 at 15 (describing motion to subpoena several

individuals, jail phone records, and a Prison Rape Elimination Act complaint).

Officer Nichols attests that data on the TPD servers "becomes inaccessible" three years

after it is uploaded unless action is taken to preserve it. (Dkt. 213-1 at ¶ 5.) There is no evidence

that Officer Nichols' body camera data existed after February 15, 2020, three years from the upload

date.

III. ANALYSIS: SUMMARY JUDGMENT MOTIONS

At screening, the Court identified three plausible claims in Mr. Boyd's Complaint. First,

Officers Nichols, Nunemacher, and Lacy, Deputy Farinella, and Mr. Rich violated Mr. Boyd's

Fourth Amendment rights by obtaining and then executing a search warrant they knew was not

valid. Second, Officer Nichols and Mr. Rich violated Mr. Boyd's Fourth and Fourteenth

Amendment4 rights by arresting and then detaining him without probable cause. Finally, Officer

Nichols and Mr. Rich violated Mr. Boyd's Fourteenth Amendment rights by withholding

exculpatory evidence until after his charges were dismissed.

Viewing the evidence in the light most favorable to Mr. Boyd would not allow a reasonable

jury to return a verdict in his favor. Accordingly, the Defendants are entitled to summary

judgment.

4 At screening, the Court identified claims alleging Mr. Boyd's wrongful arrest as proceeding under the Fourth

Amendment and claims alleging his wrongful detention as proceeding under the Fourteenth. (Dkt. 13 at 3.) However,

recent United States Supreme Court precedent makes clear that both claims derive from the Fourth Amendment. See

Kuri v. City of Chicago, 990 F.3d 573, 575 (7th Cir. 2021) ("Before Manuel v. Joliet, 137 S. Ct. 911 (2017), many

courts—including the Seventh Circuit—saw claims of wrongful detention pending trial as based on the Due Process

Clause. . . . But Manuel held that the Fourth Amendment supplies the bases for a claim until the suspect is either

convicted or acquitted.").

A. Claims Based on Validity of Search Warrant

The Fourth Amendment protects citizens against "unreasonable searches and seizures" by

law enforcement officers. A search may be unreasonable if it has been executed on the strength

of a warrant obtained improperly; evidence recovered in the search may be suppressed, and the

officers responsible may be liable for damages. See, e.g., Taylor v. Hughes, 26 F.4th 419, 426–27

(7th Cir. 2022) (discussing consequences of obtaining a warrant by presenting false statements

knowingly, intentionally, or with reckless disregard for the truth); United States v. Glover, 755

F.3d 811 (7th Cir. 2014) (remanding action for hearing on whether officer omitted critical

information in warrant application). Mr. Boyd contends that the search of his home was enabled

by a warrant that never should have been issued and that it was therefore unconstitutional.

1. Legal Standard: Warrants Based on Statements of Informants

"A warrant is valid under the Fourth Amendment only where it is based 'upon probable

cause, supported by Oath or affirmation, and particularly describ[es] the place to be searched, and

the persons or things to be seized.'" Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 2000)

(quoting U.S. Const. amend. IV). Mr. Boyd contends that the Defendants violated the Fourth

Amendment by searching his home on authority of a warrant obtained with an insufficient affidavit

and therefore without probable cause.

"In determining the sufficiency of a warrant affidavit," a court must "focus on the totality

the information presented to the" judge who issued it. Edwards v. Jolliff-Blake, 907 F.3d 1052,

1056–57 (7th Cir. 2018). The court may consider only "'what the officer knew at the time he

sought the warrant, not . . . how things turned out in hindsight.'" Id. at 1057 (quoting Beauchamp

v. City of Noblesville, Ind., 320 F.3d 733, 743 (7th Cir. 2003). "The law affords 'great deference'

to the probable cause finding made by the judge who evaluated the warrant application in the first

instance, and" a reviewing court "will uphold that determination so long as there is a 'substantial

basis' for concluding 'that a search would uncover evidence of wrongdoing.'" Id. (quoting Illinois

v. Gates, 462 U.S. 213, 236 (1983)).

Mr. Boyd argues that Officer Nichols' affidavit was constitutionally insufficient because it

relied almost entirely on testimony from an unreliable informant and because it did not

demonstrate that Officer Nichols took steps to verify the informant's trustworthiness or

independently corroborate his testimony. In such cases, the court must determine the sufficiency

of the officer's affidavit by examining "five primary factors, none of which is determinative by

itself." Edwards, 907 F.3d at 1057. Those factors are:

1) the level of detail in the informant's statements;

2) the extent to which the informant's statements are based on firsthand

observation;

3) the degree to which the informant's statements have been corroborated;

4) the time between the events the informant reported and the warrant application;

and

5) whether the informant appeared or testified directly to the judge who issued the

warrant.

Id. (citing United States v. Glover, 755 F.3d 811, 816 (7th Cir. 2014)).

2. Analysis: Validity of the Warrant

As an initial matter, it is not clear that this case is governed by the five-factor test. The

Seventh Circuit has long distinguished between information from paid informants and information

from other witnesses, such as crime victims. See United States v. Wilson, 479 F.2d 936, 940 (7th

Cir. 1973) ("The fact that Mayhaus was not a paid informer is significant."). When the basis of a

victim's knowledge is clear, information he provides can "be presumed to be reliable." United

States v. Longmire, 761 F.2d 411, 418 (7th Cir. 1985) (citing Wilson, 479 F.2d at 940). A report

based on the victim's "personal observation" is "less likely to be colored by self-interest" than a

report from an informant. Wilson, 479 F.2d at 940 (quoting Brown v. United States, 365 F.2d 976,

979 (D.C. Cir. 1966)).

Choi was not a paid informer. No evidence suggests he received any benefit from telling

Officer Nichols where, how, and from whom he bought the methamphetamine that required him

to be hospitalized.5 For this reason, Choi's statements could "be presumed to be reliable."

Longmire, 761 F.2d at 418.

Even applying the more exacting standard for warrant applications based on information

from paid informants, though, a majority of the factors weigh in favor of finding Officer Nichols'

affidavit and the warrant valid. According to Officer Nichols, Choi described his transaction with

Mr. Boyd in exacting detail, and the descriptions were based entirely on firsthand observations.

Choi stated when he bought the methamphetamine that caused his overdose ("in the early evening

hours on 2-14-17,") and where he bought it (at 444 North East Street, in Derek Boyd's bedroom).

(Dkt. 168-1 at 18:23–19:4; Dkt. 249-2 at 6.) He stated that he bought the methamphetamine from

Derek Boyd, who cut it from a rock that he removed from the top drawer of a brown dresser in his

bedroom, then returned the rest of the rock to the top drawer. (Dkt. 168-1 at 18:23–19:4; Dkt. 249-

2 at 6.) Even if the Court entertains "some doubt as to an informant's motives," such an "explicit

and detailed description of alleged wrongdoing, along with a statement that the event was observed

first-hand, entitles his tip to greater weight than might otherwise be the case." Gates, 462 U.S. at

234.

5 In fact, Officer Nichols testified previously that he charged Mr. Choi with possession of methamphetamine based on

the February 14, 2017 incident. See Dkt. 196-1 at 6 (State of Indiana v. Derek Boyd, Cause No. 80C01-1702-F5-

00088, dep. of Davin Nichols) ("I did file charges on Mr. Choi for possession of methamphetamine."). However, no

party has supported its summary judgment motion with records of those charges.

Moreover, Choi reported his detailed, firsthand observations to Officer Nichols, who then

relayed them to Judge Lett, all in the space of a few hours. Choi allegedly visited Mr. Boyd's home

"in the early evening hours" of February 14, 2017. (Dkt. 249-2 at 6.) Officer Nichols was called to

Choi's home "at approximately 7:38 P.M." Id. at 10. He prepared his affidavit and presented it to

Mr. Rich, then to Judge Lett, and had a warrant in hand by 11:00 P.M. Id. at 8.

Finally, Officer Nichols noted in his affidavit that he found Choi's statements trustworthy

because they were fresh, detailed, firsthand observations: "Officer Nichols believes that probable

cause exists . . . based on the first hand, personal observations of Ki Pil Choi, providing intimate,

specific details, recent in nature . . . ." (Dkt. 249-2 at 7 (emphasis added).)

There is no evidence Officer Nichols knew of Choi's chronic memory problems or his

previous false reporting conviction when he sought his warrant from Judge Lett, so it is not as

though he "hid[] from the issuing judge any known material facts adverse to" Choi's "credibility."

Taylor v. Hughes, 26 F.4th 419, 427 (7th Cir. 2022). Plus, Officer Nichols had seen Choi behave

abnormally in the past but found that he was lucid, "tracking" questions, and providing responsive

answers on February 14, 2017, even in his state of distress. (Dkt. 168-1 at 12:25–13:2, 18:10–15,

19:13–21, 23:15–18; Dkt. 196-1 at 6.)

Theoretically, if not practically, Officer Nichols could have done more to investigate Choi

and the trustworthiness of his statements. But the law does not entitle Mr. Boyd to recover

damages because Officer Nichols' work was imperfect. Considering only the information Officer

Nichols knew when he applied for the search warrant, viewing it in the light most favorable to Mr.

Boyd, and affording any deference at all to Judge Lett's probable cause determination, any

reasonable jury would conclude that there was a substantial basis for issuing the warrant. Edwards,

907 F.3d at 1057.

3. Additional Arguments: Miranda, the "Unsigned" Warrant, and Common

Nuisance

In addition to his principal argument regarding Choi's reliability, Mr. Boyd offers several

challenges to the warrant that are more easily resolved.

First, Mr. Boyd argues extensively in his summary judgment briefing that the warrant was

invalid because it was based on statements Choi made to Officer Nichols without being apprised

of his Miranda rights to avoid self-incrimination. See Dkt. 275 (applying Miranda v. Arizona, 384

U.S. 436 (1966)). If Choi was prosecuted based on statements he made to Officer Nichols, perhaps

he could raise Miranda as a defense. But Mr. Boyd cannot prove a violation of his own Fourth

Amendment rights by asserting a violation of Choi's Fifth Amendment rights. See, e.g., Bellis v.

United States, 417 U.S. 85, 90 (1974) ("[T]he Fifth Amendment privilege is a purely personal

one.").

Second, Mr. Boyd has maintained since he filed this action that the warrant authorizing the

search of his home was unsigned. See Dkt. 1-1 at 2. But the Defendants have introduced signed

warrants, see Dkt. 249-4 at 7–8, and Judge Lett has testified that he signed the warrants on

February 14, 2017, id. at 2. Upon further examination, it appears that Mr. Boyd received an

unsigned copy of the warrant in discovery. See Dkt. 183 at 5; Dkt. 255-8 at 21. That fact does not

counter the Defendants' admissible evidence that Judge Lett signed the warrant before it was

executed on February 14, 2017.

Finally, Mr. Boyd argues that the warrant must be invalid because he was charged with

"visiting" (rather than "maintaining") a common nuisance, implying Officer Nichols lied when he

stated in the warrant application that he knew Mr. Boyd resided at 444 North East Street. See

Dkt. 284 at 3. But Mr. Boyd is mistaken, he was charged with maintaining—not visiting—a

common nuisance. (Dkt. 261-5 at 3 ("Information Charging Maintaining a Common Nuisance").)

The Defendants are entitled to summary judgment on all claims based on the validity of

the search warrant.

B. Claims Based on Arrest and Detention

Mr. Boyd argues that following the search of his home, he was arrested and then detained

without probable cause. "The standard for arrest is probable cause, defined in terms of facts and

circumstances 'sufficient to warrant a prudent man in believing that the suspect had committed or

was committing an offense.'" Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (cleaned up) (quoting

Beck v. Ohio, 379 U.S. 89, 91 (1964)). Likewise, "the Fourth Amendment requires a judicial

determination of probable cause as a prerequisite to extended restraint of liberty following arrest."

Id. at 114.

Mr. Boyd's arrest and detention were supported by the extensive evidence of drug

trafficking found during the search of his home: a plastic container containing a white, crystal-like

substance and several items with a white, powdery residue that tested positive for

methamphetamine, including a plastic bag, a glass pipe, and a digital scale. (Dkt. 249-2 at 12;

Dkt. 261-1 at ¶ 9.) This evidence would justify a prudent person in believing that Mr. Boyd

possessed and sold methamphetamine from his home in February 2017. Gerstein, 420 U.S. at 111.

Mr. Boyd states that the items found in his home did not contain measurable quantities of

methamphetamine, that there was "no chain of custody paperwork" maintained with the evidence,

and that the officers "fabricat[ed]" the evidence of methamphetamine. See Dkt. 272 at ¶¶ 8–10.

He supports none of his statements with evidence. And although Mr. Boyd affirms his statements

under penalties of perjury, he does not state how he knows, for example, that there was no

measurable methamphetamine in his home and that the officers fabricated it. See Fed. R. Evid.

602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding

that the witness had personal knowledge of the matter.").

Mr. Boyd also alleges that either Deputy Farinella or an informant working for

Deputy Farinella planted the scale in his bedroom. (Dkt. 273 at 2–4; Dkt. 274 at 4.) Again, Mr.

Boyd provides no evidence to support his claims or establish how he personally knows that

Deputy Farinella worked with an informant or planted evidence. Regardless, this argument does

not account for the other evidence of drug activity found in the search.

In short, extensive evidence demonstrates that Mr. Boyd's arrest and detention were

supported by probable cause. No admissible evidence shows otherwise. The Defendants are

entitled to summary judgment on claims based on Mr. Boyd's arrest and detention.

C. Brady Claims

"[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." Brady v. Maryland, 373 U.S. 83, 87 (1963).

"Subsequent decisions make plain that this precept translates into an affirmative duty to disclose

to defendants all potentially exculpatory evidence, including impeachment evidence." Anderson

v. City of Rockford, 932 F.3d 494, 504 (7th Cir. 2019).

Mr. Boyd maintains that the Defendants violated Brady by withholding two pieces of

evidence—the search warrant and Officer Nichols' body camera data—for over two years while

he was jailed and his charges remained pending. "A plaintiff must show three elements in order

to prove a Brady violation." Goudy v. Cummings, 922 F.3d 834, 838 (7th Cir. 2019). First, "the

evidence at issue was favorable to the accused, either because it is exculpatory or because it is

impeaching." Id. Second, "the evidence must have been suppressed by the state, either willfully

or inadvertently." Id. And, third, "the evidence must have been material, meaning there is a

reasonable probability that the result of the proceeding would have been different."

1. Favorability and Materiality

As the plaintiff, Mr. Boyd faces the burden of demonstrating that the evidence underlying

his Brady claim was favorable and material. See, e.g., Anderson, 932 F.3d at 504 ("To prevail on

a civil Brady-based due process claim . . . , a plaintiff must demonstrate that the evidence in

question was favorable to him . . . and prejudice ensued because the suppressed evidence was

material.") (emphasis added). He has not met that burden.

As the Court discussed exhaustively above, nothing in the search warrant or

Officer Nichols' application detracted from the finding that there was probable cause to search

Mr. Boyd's home. Even now, more than two years into this civil action, Mr. Boyd's challenges to

the search warrant have been based on Choi's poor memory, medical condition, and criminal

record. Neither the warrant nor the affidavit included any evidence that supported those attacks.

Of course, the body camera data was not preserved, so the Court cannot determine whether

its images or sounds might have been favorable to Mr. Boyd. For the same reason, Mr. Boyd has

been unable to demonstrate to the Court—and he would be unable to demonstrate to a jury—what

the data would have shown or that it was favorable and material.

At best, Mr. Boyd can demonstrate that the body camera evidence was potentially material

and exculpatory. He cannot say what was captured by the body camera. But had he been able to

review it, he may have found evidence demonstrating there was not probable cause to search his

home or to arrest and detain him. The failure to disclose such evidence is governed by Arizona v.

Youngblood, 488 U.S. 51 (1988), rather than Brady. See Youngblood, 488 U.S. at 57 ("[T]he Due

Process Clause requires a different result when we deal with the failure of the State to preserve

evidentiary material of which no more can be said then that it could have been subjected to tests,

the results of which might have exonerated the defendant."). Under Youngblood, a plaintiff must

show not only that the prosecution failed to disclose evidence, but that it acted in bad faith. Id.

For the reasons discussed below, Mr. Boyd cannot satisfy this standard.

2. Suppression

As with favorability and materiality, it is Mr. Boyd's burden as the plaintiff to prove

suppression. See Anderson, 932 F.3d at 504 ("To prevail on a Brady-based due process claim

. . . , a plaintiff must demonstrate that . . . the police 'suppressed' the favorable evidence . . . ."). It

is not the Defendants' burden to prove that the warrant and body camera data were delivered to

Mr. Boyd and his counsel during the prosecution. To avoid summary judgment, Mr. Boyd must

present evidence from which a jury could reasonably conclude that the Defendants withheld

material, exculpatory evidence.

The essence of Mr. Boyd's Brady argument is as follows: "On 8-3-2018 after failed

attempts of Tipton Public Defender to obtain the body camera footage, a motion for all exculpatory

evidence was filed by Plaintiff. It never was produced despite the Prosecutor dragging the case out

until 9-17-2019." (Dkt. 196 at 3–4.)

Mr. Boyd was represented by counsel throughout his criminal proceeding. Judge Lett

appointed Justin Clouser ("Mr. Clouser") to represent Mr. Boyd at the February 17, 2017 initial

hearing. (Dkt. 261-2 at 2.) Mr. Clouser withdrew on September 10, 2018, and Craig Dechert

(""Mr. Dechert") appeared the following day. Id.at 10–11. Any conclusion that Mr. Clouser and

Mr. Dechert failed to review the warrant and the body camera data would be based on speculation

and suspicion—not evidence. Mr. Boyd has not presented evidence that he has personal knowledge

of their efforts to obtain the warrant or the body camera data. Moreover, letters from Mr. Dechert

do not suggest that he had any difficulty obtaining or reviewing evidence. See Dkt. 219-1 at 5 ("I

do not recall an issue with a DVD . . . ."); Dkt. 219-2 at 13 ("I've enclosed herein the warrant signed

by Judge Lett on February 14, 2017.").

In any event, "[e]vidence cannot be regarded as 'suppressed' by the government when the

defendant has access to the evidence before trial by the exercise of reasonable diligence." United

States v. White, 970 F.2d 328, 337 (7th Cir. 1992). Neither the warrant nor the body camera

evidence were secret. Indeed, Officer Nichols explicitly referenced both in his arrest report.

(Dkt. 249-1 at 2–3.) From the very beginning of Mr. Boyd's criminal case, Mr. Boyd's attorneys

should have known that the warrant and the body camera evidence existed. See United States v.

Shields, 789 F.3d 733, 747 (7th Cir. 2015) ("Mr. Shields has failed to demonstrate that any

evidence was suppressed by the Government. The lawsuit, and its settlement, have been publicly

available since 2004."); Harris v. Kuba, 486 F.3d 1010, 1015–16 (7th Cir. 2007) ("The evidence

of the Mexico City Café victim's identification of Harris and Chamberlain's confession were

therefore available to Harris and his counsel with minimal research or discovery through the

exercise of reasonable diligence."). No admissible evidence supports a conclusion that Mr. Boyd's

attorneys' made reasonably diligent efforts to obtain the evidence that the prosecution stymied.

Finally, because Mr. Boyd can show at most that the body camera data was potentially

exculpatory, he would have to show that the Defendants suppressed the evidence in bad faith.

Youngblood, 488 U.S. at 57. In other words, Mr. Boyd cannot prevail just by showing that the

Defendants did not hand over the body camera evidence. Rather, he must show that they "made a

'conscious effort to suppress'" the evidence. Jones v. York, 34 F.4th 550 (7th Cir. 2022) (slip op.)

(quoting United States v. Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir. 2000)). Mr. Boyd has

asserted only that the Defendants did not provide the body camera evidence. He has not presented

admissible evidence that they made a conscious effort to withhold it from him or his attorneys.

Accordingly, the Defendants are entitled to summary judgment on Mr. Boyd's Brady

claims.

IV. AMENDED MOTION FOR SPOLIATION OF EVIDENCE SANCTIONS

In addition to summary judgment, Mr. Boyd seeks sanctions against the Defendants for

failing to preserve Officer Nichols' body camera evidence. "If electronically stored information

that should have been preserved in the anticipation or conduct of litigation is lost because a party

failed to take reasonable steps to preserve it, and it cannot be restored or replaced through

additional discovery," the court may issue sanctions. Fed. R. Civ. P. 37(e). If the court finds that

a party has been prejudiced by another's failure to preserve electronically stored information, the

court "may order measures no greater than necessary to cure the prejudice." Fed. R. Civ. P.

37(e)(1). If the court finds that one party "acted with the intent to deprive another party of the

information's use in the litigation," the court may "presume that the lost information was

unfavorable to the party" responsible for its loss or "instruct the jury that it may or must presume

the information was unfavorable to" that party. Fed. R. Civ. P. 37(e)(2).

A spoliation sanction is "proper only where a party has a duty to preserve evidence because

it knew, or should have known, that litigation was imminent." Trask-Morton v. Motel 6 Operating

L.P., 534 F.3d 672, 681 (7th Cir. 2008). Even if a party destroys evidence in violation of a duty

to preserve it, the court may only presume it was unfavorable to a party if the party acted in bad

faith. Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir. 2013) ("Nevertheless, his opponent did

not show bad faith . . . so no adverse inference instruction could issue."). "A party destroys a

document in bad faith when it does so 'for the purpose of hiding adverse information.'" Id. (quoting

Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008)). "If, being sensitive to the

possibility of a suit, a company then destroys the very files that would be expected to contain the

evidence most relevant to such a suit, the inference arises that it has purged incriminating

evidence." Partington v. Broyhill Furniture Indus., 999 F.2d 269, 272 (7th Cir. 1993).

There is no dispute that the body camera evidence was not preserved beyond February 15,

2020. All the evidence in the record indicates that Officer Nichols downloaded the body camera

video to the TPD's storage device on February 15, 2017, and that it automatically deleted on

February 15, 2020, according to the TPD's regular protocol. (Dkt. 213-1 at ¶ 5.) Mr. Boyd filed

this lawsuit approximately two months later.

The Court cannot conclude that Mr. Boyd was prejudiced by the Defendants' failure to

preserve the video beyond the three years it remained in the TPD's system. As the Court noted in

discussing Mr. Boyd's Brady claims, no evidence explains what was captured on the body camera.

Perhaps it showed that Choi's statements were different than what Officer Nichols reported in his

warrant application or that the officers did not execute the warrant properly. But on the record

before the Court, it is just as likely that the body camera data was consistent with Officer Nichols'

reports. The record shows that the body camera recorded evidence that may have been favorable

to Mr. Boyd. That is not the same as showing that Mr. Boyd was definitely prejudiced by the

failure to preserve the evidence.

If Mr. Boyd was prejudiced by the Defendants' failure to preserve the body camera data

for more than three years, he still has presented no admissible evidence of bad faith, and the Court

therefore cannot presume for purposes of summary judgment that the evidence would have been

favorable to him. As noted above, the record would allow a jury to infer that Mr. Boyd's defense

attorneys were able to access the body camera evidence while the criminal case was pending.

Mr. Boyd has not described any efforts to obtain the data between the dismissal of his criminal

case in 2019 and his filing of this action in April 2020. The only evidence in the record that speaks

to the evidence's destruction indicates that it automatically deleted according to the TPD's regular

practice—not because any party attempted to prevent Mr. Boyd from obtaining evidence favorable

to his claims. Bracey, 712 F.3d at 1019.

Mr. Boyd's motion for spoliation sanctions fails.

V. MOTION FOR RULE 11 SANCTIONS

Finally, Mr. Boyd seeks sanctions under Federal Rule of Civil Procedure 11 and 28 U.S.C.

§ 1927. Rule 11(b) alerts lawyers and pro se litigants that, when they file papers with the Court,

they certify that they are filed for a proper purpose; that they are supported by a nonfrivolous legal

argument; and that their factual representations and denials are (or soon will be) supported by

evidence. Rule 11(c) provides that lawyers and litigants may be sanctioned for violating

Rule 11(b). Meanwhile, § 1927 allows the Court to hold attorneys personally liable for costs of

multiplying the proceedings in any case "unreasonably and vexatiously."

Mr. Boyd's motion begins by stating that his Complaint and the attachments to it "had all

the needed case law, document's [sic] to defeat the defendant's [sic]." (Dkt. 285 at 2.) Mr. Boyd

is not certain "[e]xactly how many filings are frivolous," but he asserts that every filing "from

Dkt. 50 to current, are improper." Id. at 4. The filing at Dkt. 50 is the Court's entry denying the

Defendants' motions to dismiss, and it was docketed October 30, 2020.

Mr. Boyd's premise—that his case was so ironclad from the moment he filed his complaint

that any effort to oppose it was frivolous—is not realistic. As the remainder of this Entry makes

clear, the Defendants' opposition to Mr. Boyd's claims has not only been nonfrivolous—it has been

meritorious, and they are entitled to summary judgment.

The rest of Mr. Boyd's sanctions motion is difficult to follow. He appears to claim—for

the first time—that Officer Nichols did not author the search warrant affidavit. (Dkt. 285 at 4.) If

this is true, he suggests, the warrant was invalid, and he was unconstitutionally searched, arrested,

and detained. In support of this argument, Mr. Boyd asks the Court to compare the handwriting

and signatures on several documents.

Whether Officer Nichols actually drafted the search warrant affidavit is relevant—if at

all—to the merits of Mr. Boyd's claims. Mr. Boyd did not raise this argument in his summary

judgment briefing, so the Court need not dissect it. If the Court did entertain Mr. Boyd's

handwriting arguments, it would have to begin with the issues of Mr. Boyd's personal knowledge

of the handwriting in question, "whether testimony concerning the genuineness of a signature is

properly the subject of expert opinion," Deputy v. Lehman Bros., 345 F.3d 494, 509 (7th Cir. 2003),

and how Mr. Boyd is qualified to offer such an opinion, see Fed. R. Evid. 602 (concerning the

need for personal knowledge), 702 (concerning qualifications for expert witnesses). Mr. Boyd has

provided no evidence relevant to these questions.

For purposes of the sanctions motion, though, Mr. Boyd's handwriting arguments are

meritless. Officer Nichols provided an affidavit, sworn under penalty of perjury, declaring that he

signed the search warrant affidavit at question in this case. (Dkt. 249-2 at 1–3.) His affidavit is

admissible evidence, and defense counsel's factual contentions that he wrote and signed the

warrant affidavit therefore have evidentiary support. Fed. R. Civ. P. 11(b)(3).

VI. CONCLUSION

For the reasons explained above, the Defendants' Motions for Summary Judgment, Dkts.

[248], [252], and [260], are GRANTED. Mr. Boyd's Motion for Summary Judgment, Dkt. [196],

and his Motions for Sanctions, Dkts. [183] and [285], are DENIED.

This action is DISMISSED with prejudice. The Clerk is directed to enter final

judgment consistent with this Entry and the Screening Entry, (Dkt. 13).

SO ORDERED.

Date: 6/21/2022 ( War: \ atta» Varcitt

Hon. Tanya Walton Pratt, Chief Judge

United States District Court

Southern District of Indiana

DISTRIBUTION:

Derek L. Boyd, #273507

PLAINFIELD CORRECTIONAL FACILITY

Electronic Service Participant — Court Only

Alexander Robert Carlisle

OFFICE OF THE INDIANA ATTORNEY GENERAL

Alexander.Carlisle @ atg.in.gov

Thomas Joseph Flynn

EICHHORN & EICHHORN, LLP

tflynn @eichhorn-law.com

Curtis Matthew Graham

FREEMAN MATHIS & GARY, LLP

cgraham @ fmglaw.com

Stephen C. Keller

SCHILLER BARNES & MALONEY, PLLC

skeller@sbmkylaw.com

Gregory S. Loyd

gregory .loyd@atg.in.gov

Casey C. Stansbury

FREEMAN MATHIS & GARY, LLP

cstansbury @fmglaw.com

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