PENDLETON v. MURPHY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

WILLIAM PENDLETON, et al. )

)

Plaintiffs, )

)

v. ) No. 1:20-cv-00489-JPH-TAB

)

MICHAEL MURPHY, et al. )

)

Defendants. )

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS'

MOTION FOR SUMMARY JUDGMENT

William Pendleton and Antoine Banks allege that Indiana University

Health police officers unlawfully stopped, searched, and detained them, and

then wrongfully had them excluded from the Indiana University Health facility

where they had job assignments as contract workers. They bring state and

federal claims against the individual officers and their employer, Indiana

University Health, Inc. Defendants have moved for summary judgment on all

claims. Dkt. [45]. For the reasons that follow, that motion is GRANTED in

part and DENIED in part.

I.

Facts and Background

Because Defendants have moved for summary judgment under Rule

56(a), the Court views and recites the evidence "in the light most favorable to

the non-moving party and draw[s] all reasonable inferences in that party's

favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).

A. The Parties

Indiana University Health, Inc. is a private, non-profit network of

hospitals headquartered in Indianapolis, Indiana. Dkt. 46-1. At all relevant

times, Robert Dycus, Kenneth White, and Michael Murphy were employed as

officers in the IU Health Police Department. Dkt. 46-2 at 1 (Dycus Aff. ¶ 1);

dkt. 46-3 at 1 (Murphy Aff. ¶ 1–2); dkt. 46-4 at 1 (White Aff. ¶ 1).

In January 2020, Antoine Banks and William Pendleton worked for

Executive Management Services, Inc. (EMS), a commercial contract cleaning

company. Dkt. 46-5 ¶¶ 1–2 (Sells Aff.). IU Health's principal office in

Indianapolis—Fairbanks Hall—is an EMS contract client. Dkt. 46-1; dkt. 46-6

at 2, 12 (Bigelow Aff. Ex. A: EMS Service Contract). EMS employees who are

assigned to provide services at IU Health are required to obtain an IU Health

identification badge and "affix [it] to their clothing so that it is clearly visible at

all times" while at an IU Health facility. Dkt. 46-6 at 22 (Bigelow Aff. Ex. A:

EMS Service Contract).

Both Mr. Banks and Mr. Pendleton were assigned weekday shifts at

Fairbanks Hall, with Mr. Banks's shift running from 3:30 to 11:30 p.m., and

Mr. Pendleton's from 5:30 to 10:30 p.m. Dkt. 46-8 at 36 (Banks Dep. Ex. 2);

dkt. 46-7 at 45 (Pendleton Dep. Ex. 2). Mr. Banks was Mr. Pendleton's on-site

supervisor. Dkt. 46-7 at 11 (Pendleton Dep. at 41).

Charlotte Sells is an Operations Manager for EMS. Dkt. 46-5 ¶ 1, 3. In

2019 and 2020, she was responsible for hiring and firing EMS janitors and

placing them with EMS customers. Id. ¶ 4–5. As the EMS representative

assigned to provide cleaning and facilities services for IU Health's Fairbanks

Hall, she was the off-site supervisor for Mr. Pendleton and Mr. Banks. Id. ¶¶

5–6; dkt. 46-8 at 11, 23 (Banks Dep. at 42, 89).

B. Background of the Incident

On January 10, 2020, Mr. Pendleton arrived late for his shift at

Fairbanks Hall around 6:40 p.m. Dkt. 46-7 at 11 (Pendleton Dep. at 41); dkt.

49 (Ex. 1 video 1).1 Because he had been recently hired, Mr. Pendleton did not

have an IU badge or keys to the building. Dkt. 46-7 at 8, 13 (Pendleton Dep at

29–30, 49); dkt. 46-8 at 15 (Banks Dep. at 59). Mr. Banks let Mr. Pendleton in

at the back of the building and gave him a key to the second floor. Dkt. 46-7 at

13 (Pendleton Dep at 49); dkt. 46-8 at 15 (Banks Dep. at 58–60); dkt. 49 (Ex. 1

video 1, at 1:05). During the exchange, Mr. Banks complimented Mr.

Pendleton's clothes, stating "You are fresh as hell." Dkt. 46-8 at 16 (Banks

Dep. at 61–62). Mr. Banks then left the building on break, and Mr. Pendleton

started cleaning the second floor. Id. (Banks Dep. at 62–63); dkt. 46-7 at 14

(Pendleton Dep. at 54–55).

Meanwhile, around 7:00 p.m., Lt. Dycus reported to the IU Health

dispatch center in response to a request from one of its operators, Lashanda

Macon. Dkt. 46-2 at 1 (Dycus Aff. ¶ 2). Ms. Macon informed him that she "had

seen something suspicious" in the security video feed from Fairbanks Hall. Id.

1 Exhibit 1 to docket 49 contains two video clips, one beginning at 1839 hours and one

beginning at 1943 hours. The video beginning at 1839 hours will be cited as "Dkt. 49

(Ex. 1 video 1 . . .") and the video beginning at 1943 hours will be cited as "Dkt. 49

(Ex. 1 video 2 . . .").

¶ 3. Lt. Dycus reviewed the footage and saw "a hand-to-hand exchange of a

small item between two men . . . wearing street clothes and ball caps." Id. ¶ 4;

see also dkt. 49 (Ex. 1 video 1). Ms. Macon also told him that she heard,

through an open intercom line, the comment: "That's fat as hell," which she

believed may have been a reference to drugs. Dkt. 46-2 at 2 (Dycus Aff. ¶¶ 5–

6).

Based on what he saw and heard, Lt. Dycus was suspicious that the two

men had exchanged drugs. Id. ¶¶ 7–10. Ms. Macon told Lt. Dycus that she

recognized one of the men as a janitor, but Lt. Dycus had never seen either

man. Id. at 3, ¶ 12. He found it suspicious that they were on the loading dock

of Fairbanks Hall at that time of night because they looked like members of the

general public. Id. Lt. Dycus contacted Officer Murphy and Sgt. White and

informed them of the situation and his suspicion. Id. at 4, ¶¶ 17–19. Lt.

Dycus, Officer Murphy, and Sgt. White met at Fairbanks Hall around 7:30 p.m.

Id. ¶ 21.

The officers walked through the building and exited out back to the

loading docks. Id. ¶ 22. They approached a gold SUV in the parking lot to

check if it had an IU Health parking permit because they thought they could

identify the men in the video by searching the IU Health parking database. Id.

¶¶ 23–24. As they approached the vehicle, Lt. Dycus and Officer Murphy

"smelled the distinctive odor of marijuana coming from the vehicle." Id. ¶ 25;

dkt. 46-3 at 3 (Murphy Aff. ¶ 15).

Around this time, Mr. Banks received a phone call from another EMS

employee informing him that there were police officers at Fairbanks Hall. Dkt.

53-2 at 16 (Banks Dep. at 63–64). Mr. Banks, still away on break, called Mr.

Pendleton and suggested that he speak with the officers to find out why they

were there. Id. at 16 (Banks Dep. at 68–69). Mr. Pendleton was cleaning and

collecting trash at the time, so he went to the loading docks to take out the

trash and speak with the officers. Dkt. 53-3 at 14 (Pendleton Dep. at 55).

C. The Incident

At approximately 7:45 p.m., Mr. Pendleton was throwing trash into a

dumpster behind Fairbanks Hall when Officer Murphy asked him to identify

himself. Id. (Pendleton Dep. at 56); dkt. 49 (Ex. 1 video 2 at 0:38–0:55). Mr.

Pendleton responded by showing his EMS badge.2 Dkt. 53-3 at 14 (Pendleton

Dep. at 56). Officer Murphy then stated: "I need to pat you down for our

safety," and Mr. Pendleton responded "okay" and put his hands against the

wall. Id. at 14–15, 19 (Pendleton Dep. at 56–57, 74–75); dkt. 46-3 at 3

(Murphy Aff. ¶ 19). Officer Murphy frisked Mr. Pendleton and found nothing of

note. Dkt. 46-11 at 5 (Murphy Dep. at 17).

During the pat-down, Officer Murphy asked Mr. Pendleton about drugs,

and Mr. Pendleton denied having any. Dkt. 53-3 at 15 (Pendleton Dep. at 57).

Officer Murphy then showed him a photograph of the exchange on the loading

docks, and Mr. Pendleton explained that Mr. Banks had given him a key. Id.

Officer Murphy replied, "No. Where are the drugs at? We know that is what you

2 Mr. Pendleton's EMS badge is separate and distinct from an IU Health badge.

people do." Id. Offended, Mr. Pendleton said he was going to call a friend who

was the assistant police chief for the Southport Police Department. Id.

(Pendleton Dep. at 57–58). Officer Murphy described Mr. Pendleton's behavior

as "loud and angry." Dkt. 46-3 at 4 (Murphy Aff. ¶ 21). The officers then asked

to search his jacket and locker, and Mr. Pendleton replied: "Go ahead." Dkt.

46-7 at 15 (Pendleton Dep. at 58).

The officers told Mr. Pendleton to call Mr. Banks and ask him to return

to Fairbanks Hall. Dkt. 43-3 at 4 (Murphy Aff. ¶ 22); dkt. 53-4 at 9 (Dycus

Dep. at 30–31). The officers then directed Mr. Pendleton to a storage room

where they searched his jacket and other personal items. Id. at 23–24

(Pendleton Dep. at 92–94); see dkt. 49 (Ex. 10, video of storage room). At this

point, Mr. Pendleton was "pretty fed up with the situation" because he felt the

officers were "going too far." Dkt. 46-7 at 27 (Pendleton Dep. at 105–06).

After moving to the storage room, Officer Murphy asked who the gold

SUV parked by the loading dock belonged to; Mr. Pendleton replied that it

belonged to his child's mother and that he had driven it to Fairbanks Hall that

evening. Id. at 25 (Pendleton Dep. at 98-99); dkt. 46-3 at 4 (Murphy Aff. ¶ 26).

Because the officers had smelled marijuana near the vehicle, they contacted

the Indianapolis Metropolitan Police Department (IMPD) to request the

assistance of a K-9 officer. Dkt. 46-3 at 4 (Murphy Aff. ¶ 27); dkt. 46-7 at 15,

25 (Pendleton Dep at 58–59, 97–99). Officer Murphy and Lt. Dycus exited the

storage room to contact IMPD and directed Sgt. White to stand at the door of

the room, "keeping [Mr. Pendleton] there." Dkt. 46-10 at 4–5 (White Dep. at

13–14); dkt. 46-7 at 25 (Pendleton Dep. at 97–100). Lt. Dycus called in the

request around 8:00 p.m. and was advised five minutes later that IMPD could

not send a dog. Dkt. 46-3 at 5 (Murphy Aff. ¶ 28). Mr. Pendleton remained in

the storage room waiting for Mr. Banks. Dkt. 46-10 at 4–5 (White Dep. at 13–

14).

D. Mr. Banks's Arrival

Mr. Banks returned to Fairbanks Hall around 8:15 p.m., roughly a half-

hour after Mr. Pendleton asked him to return. Dkt. 46-3 at 5 (Murphy Aff. ¶

29). The officers recognized Mr. Banks from the security footage and were

surprised to learn that he was Mr. Pendleton's supervisor.3 Id. ¶ 30. Officer

Murphy told Mr. Banks that he needed to or was going to search him. Dkt. 46-

8 at 19 (Banks Dep. at 75); dkt. 46-3 at 6 (Murphy Aff. ¶ 31). In response, Mr.

Banks said "okay" or "no problem," or otherwise indicated that he would

comply. Dkt. 46-3 at 6 (Murphy Aff. ¶ 31). Mr. Banks was frisked against the

exterior wall of Fairbanks Hall and then brought inside the building. Dkt. 46-8

at 22 (Banks Dep. at 88); dkt. 46-3 at 6 (Murphy Aff. ¶ 32–33). The officers

asked Mr. Banks about the exchange on the loading docks, and he explained

that he passed Mr. Pendleton a key. Dkt. 46-8 at 22 (Banks Dep. at 85).

The officers then asked to speak with an off-site supervisor. Dkt. 46-3 at

6 (Murphy Aff. ¶ 35). Lt. Dycus spoke to Ms. Sells on Mr. Banks's phone and

told her that Mr. Pendleton "should be sent home for the evening to cool down,"

3 Mr. Banks did not have an IU Health Badge because he lost it. Dkt. 46-8 at 11

(Banks Dep. at 42).

but Mr. Banks was permitted to stay. Id.; dkt. 46-8 at 23 (Banks Dep. at 89–

90). After the call, the officers concluded their investigation and told Mr.

Pendleton to leave Fairbanks Hall because of his "loud and angry" behavior.

Dkt. 46-3 at 6–7 (Murphy Aff. ¶¶ 35–37). Officer Murphy also told Mr.

Pendleton he was "no longer welcome back on IU property." Dkt. 46-7 at 30

(Pendleton Dep. at 117–18). Mr. Pendleton told the officers that they wrongly

accused him and Mr. Banks of dealing drugs when they were just trying to

work. Id. (Pendleton Dep. at 119–20). Mr. Pendleton told the officers that they

had gone too far, they hadn't found anything, and that he was not going to let

this go. Id. The officers threatened to arrest him for trespass, so he left

around 8:30 p.m. Id.; dkt. 46-3 at 7 (Murphy Aff. ¶¶ 40–41). Mr. Banks stayed

and finished his shift. Id. ¶ 42.

E. Post-Incident

Later that evening, Lt. Dycus placed a second call to Ms. Sells and

informed her that he "thought it would be best if neither man continued to

work in IU Health's buildings." Dkt. 46-2 at 12 (Dycus Aff. ¶ 67). He did so

based on several factors, including his "lingering uncertainty about what

happened on the loading dock that night" and because Ms. Macon told him

that she had previously seen Mr. Banks receive personal visitors at Fairbanks

Hall during the late-night part of his shift. Id. at 10–12 (Dycus Aff. ¶¶ 58–68).

The following Monday, Ms. Sells texted Mr. Banks that he could not

return to IU Health, and he was transferred to a different EMS customer

location. Dkt. 46-8 at 29, 37 (Banks Dep. at 113–14, Ex. 2). Mr. Banks

remains employed by EMS. Id. at 3 (Banks Dep. at 11).

EMS offered Mr. Pendleton a new job assignment and told him that he

would have the same pay, hours, and work schedule. Dkt. 46-5 at 2 (Sells Aff.

¶¶ 7–10). But Mr. Pendleton could not accept the new position because it was

a day-shift position and he had already had a day job. Dkt. 53-1 at 2

(Pendleton Aff. ¶¶ 13–18).

Ten days after the incident, Plaintiffs' counsel asked IU Health to

"preserve . . . [a]ll video, audio, or still recordings captured" at Fairbanks Hall

on January 10. Dkt. 53-8 at 16. Lt. Dycus had already preserved some

portions of security footage for his police report, but he did not learn of

Plaintiffs' preservation letter until after IU Health's security system had

automatically deleted the rest of the video footage from that evening. Dkt. 53-4

at 9 (Dycus Dep. at 32–33); dkt. 49 (Ex. 1).

On February 12, 2020, Mr. Banks and Mr. Pendleton filed this lawsuit

against IU Health, Lt. Dycus, Sgt. White, and Officer Murphy. Dkt. 1; see also

dkt. 33 (second amended Complaint). Mr. Pendleton and Mr. Banks bring

federal claims under 42 U.S.C. § 1983 alleging that the officers unlawfully

searched, frisked, and detained them in violation of the Fourth Amendment

and retaliated against them in violation of the First Amendment. Dkt. 33 at 8–

11. They also bring state law claims against the officers and IU Health for

tortious interference with a business relationship and unlawful spoliation of

evidence.4 Id. Defendants have moved for summary judgment on all claims.

Dkt. 45.

II.

Applicable Law

Summary judgment shall be granted "if 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 moving party must

inform the court "of the basis for its motion" and specify evidence

demonstrating "the absence of a genuine issue of material fact." Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this

burden, the nonmoving party must "go beyond the pleadings" and identify

"specific facts showing that there is a genuine issue for trial." Id. at 324.

In ruling on a motion for summary judgment, the Court views the

evidence "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).

Indiana law governs Plaintiffs' state law claim for tortious interference

with a business relationship. See Webber v. Butner, 923 F.3d 479, 480–81 (7th

Cir. 2019). Therefore, the Court "must apply Indiana law by doing [its] best to

predict how the Indiana Supreme Court would decide" issues related to that

claim. Id. at 482.

4 Plaintiffs have conceded that spoliation of evidence is not a cognizable tort claim

under Indiana law. Dkt. 54 at 34. Defendants' motion for summary judgment on

this claim is therefore granted.

III.

Analysis

A. Qualified Immunity

Officers Dycus, White, and Murphy argue that they are entitled to

qualified immunity as a defense to Plaintiffs' constitutional claims. Dkt. 48 at

27–29, 33. Plaintiffs respond that the officers cannot assert qualified immunity

because they are employees of a private hospital. Dkt. 54 at 20 (citing

Richardson v. McKnight, 521 U.S. 399, 404 (1997) (holding that prison guards

for privately owned prison could not assert qualified immunity against § 1983

claims)).

In some circumstances, private actors may assert the defense of qualified

immunity, Meadows v. Rockford Hous. Auth., 861 F.3d 672, 676–78 (7th Cir.

2017); Filarsky v. Delia, 566 U.S. 377, 393–94 (2012), but there is no

categorical rule regarding whether officers employed by a private entity are

entitled to raise qualified immunity as a defense. Payton v. Rush-Presbyterian-

St. Luke's Med. Ctr., 184 F.3d 623, 627–31 (7th Cir. 1999), reaffirmed and

explained why private actors with essentially the same powers as a public

police officer can be held liable under § 1983. But it did not determine whether

those private police officers could raise qualified immunity as a defense.

Instead, it remanded the case to the district court with instructions to answer

that question by considering the factors identified by the Supreme Court in

Richardson: whether a history of immunity for private actors exists and

relevant public policy considerations. Id. at 631 (citing Richardson, 521 U.S. at

404).

On remand, the district court first noted the lack of "any relevant

historical evidence regarding immunity conferred on special police." Payton v.

Rush-Presbyterian-St. Luke's Med. Ctr., 82 F. Supp. 2d 901, 906 (N.D. Ill. 2000).

Next, the court found that "[o]rdinary marketplace pressures [were] present in

[that] case as they were in Richardson" because "the behavior of not-for-profit

hospitals is similar to that of for-profits" and "the hospital independently

employ[ed] and supervise[d] the special police . . . 'with relatively less ongoing

direct government supervision.'" Id. at 906–07 (quoting Richardson, 521 U.S.

at 410). Thus, the court concluded that the "defendants [were] not entitled to

qualified immunity." Id. at 907. See also Johnson v. Cmty. Hosp.

Anderson/Madison Cnty., No. 1:20-cv-00855, 2022 WL 900021, at *12–13 (S.D.

Ind. March 28, 2022) (reaching the same conclusion based on similar

reasoning as Peyton).

Here, the officers have not cited precedent that would require the Court

to find that they are entitled to assert the defense of qualified immunity. See

dkt. 57 at 17–19. Nor have they cited a historical basis of immunity for private

police officers. Id. Rather, the officers argue that various public policy

considerations support the availability of qualified immunity, including: 1) the

IU Health Police Department was authorized by statute to enforce the laws of

the state of Indiana and was granted "the same common law and statutory

powers, privileges, and immunities as sheriffs and constables"; 2) the officers

were trained and certified by the Indiana Law Enforcement Academy; 3) IU

Health is a non-profit healthcare system; and 4) the officers perform police

work that is a "traditional government function." Id.

These facts are relevant to why the officers are considered state actors

whose conduct is within the scope of § 1983. But the ability to raise the

defense of qualified immunity is not coextensive with the reach of § 1983; the

latter is broader. See Payton, 184 F.3d at 628–32 (discussing circumstances

under which a private party may be held responsible as a state actor under §

1983 and the factors to be considered in evaluating whether a private party

may assert qualified immunity as a defense).

Here, the relevant factors do not support finding that the IU Health

officers may assert qualified immunity. The officers may perform the

"traditional government function" of police officers, but they do not work for or

at the direction of a government body. Cf. Filarsky, 566 U.S. at 393–94;

Meadows, 861 F.3d at 678. Instead, they work "independently, with relatively

less ongoing direct state supervision," for a large, private network of hospitals.

Richardson, 521 U.S. at 409. And while IU Health is a not-for-profit hospital, it

is still subject to competitive market pressure. See Payton, 82 F. Supp. 2d at

906. Last, unlike local law enforcement agencies, IU Health has a commercial

incentive to provide safe and hospitable health care to its customers. Cf.

Richardson, 521 U.S. at 409.

The officers have not shown that they are entitled to raise qualified

immunity as a defense against Plaintiffs' constitutional claims.

B. Fourth Amendment Claims

The officers argue that they are entitled to summary judgment on

Plaintiffs' Fourth Amendment claim because they had reasonable suspicion to

stop, frisk, and detain Plaintiffs. Dkt. 48 at 19–27. Plaintiffs respond that the

officers lacked reasonable suspicion, and regardless, the duration and scope of

the detention exceeded the bounds of a lawful Terry stop. Dkt. 54 at 9–20; see

Terry v. Ohio, 392 U.S. 1 (1968).

"Under Terry v. Ohio, law enforcement officers may conduct brief

investigatory stops if they have reasonable suspicion that a person is engaged

in criminal activity." United States v. Smith, 32 F.4th 638, 641 (7th Cir. 2022)

(citations omitted). Each action taken by an officer during a Terry stop must be

supported by reasonable suspicion. See id. at 641–43 (affirming legality of

officer's decision to frisk a suspect three times after analyzing whether there

was independent reasonable suspicion to conduct each frisk).

"Reasonable suspicion must account for the totality of the circumstances

and requires more than a hunch but less than probable cause and

considerably less than preponderance of the evidence." Id. (quoting United

States v. Reedy, 989 F.3d 548, 552 (7th Cir. 2021)). For a Terry stop to be

legal, "the investigation following it must be reasonably related in scope and

duration to the circumstances that justified the stop in the first instance."

Reedy, 989 F.3d at 552.

1. Initial Stop of Pendleton and Banks

The officers argue that the totality of the circumstances presented

specific and articulable facts that justified the initial Terry stop-and-frisk:

1. Ms. Macon told Lt. Dycus5 that she witnessed conduct and

heard a statement that caused her to suspect drug-related

activity.

2. Lt. Dycus knew Ms. Macon to be an experienced, credible

dispatcher who would not jump to irrational conclusions.

3. Lt. Dycus reviewed the video, paused it at the point where the

hand-to-hand exchange occurred, and saw for himself that the

item exchanged resembled the type of small baggie that law

enforcement officers know is commonly used to exchange drugs.

4. Based on his training and experience, Lt. Dycus believed the

comment "That’s fat as hell" was consistent with slang

terminology for the quantity and/or quality of whatever the men

had exchanged.

5. While Ms. Macon recognized one of the men as a janitor, Lt.

Dycus nonetheless found it suspicious that both men were

wearing street clothes because there was no reason for a

member of the general public to be on the loading dock at

Fairbanks Hall.

6. Lt. Dycus recognized that Fairbanks Hall would be an attractive

place for drug trafficking because not many people were there

after the close of business hours, and local law enforcement

agencies that routinely investigate drug crimes were not likely to

be looking for drug activity at or inside Fairbanks Hall.

5 Plaintiffs contend that Ms. Macon's statements are inadmissible hearsay, dkt. 54 at

1–2, but Defendants do not offer Ms. Macon's statements for their truth. Ms. Macon's

statements are offered to show Lt. Dycus's course of conduct in deciding to investigate

the loading docks exchange and later to exclude Plaintiffs from the property. Dkt. 48

at 20, 33–34; see Smith v. McKee, 598 F.3d 374, 387 (7th Cir. 2010) (recognizing "that

statements offered to explain an officer's course of conduct are not hearsay").

7. While investigating the Fairbanks Hall loading dock, Lt. Dycus

and Officer Murphy smelled the distinctive odor of marijuana

coming from a gold SUV parked in a maintenance spot.

8. When the officers first saw Mr. Pendleton and Mr. Banks, they

recognized both men from the security video and/or photograph.

9. Neither man was visibly displaying an IU Health security badge

on their person evidencing the authority to be at Fairbanks Hall.

Dkt. 48 at 20–21 (citing dkt. 46-2 at 1–3, 7 (Dycus Aff. ¶¶ 2–16, 38); dkt. 46-4

at 1–2 (White Aff. ¶¶ 5–9); dkt. 46-3 at 1–2, 5–6 (Murphy Aff. ¶¶ 5–9, 30)). They

also argue that Plaintiffs' innocent explanation for the conduct observed on

video did not negate the officers' reasonable suspicion "based on the totality of

the facts and information known to [them] at the time of the stop." Dkt. 57 at

4–5.

Plaintiffs respond that Lt. Dycus's "primary reason for stopping" them

was the video footage of the loading docks exchange. Dkt. 54 at 10. They

contend that a reasonable juror could conclude from the footage that the two

men unmistakably exchanged a key. Id. at 9–10. But even if so, that would

not mean that Lt. Dycus didn't have reasonable suspicion when he stopped

Messrs. Pendleton and Banks. That's because "[b]ehavior which is susceptible

to an innocent explanation when isolated from its context may still give rise to

reasonable suspicion when considered in light of all of the factors at play."

United States v. Richmond, 924 F.3d 404, 412 (7th Cir. 2019) (quoting United

States v. Baskin, 401 F.3d 788, 792–93 (7th Cir. 2005)). Officers may not

conduct a Terry stop based on only a "hunch," but there is no specific quantum

of facts or level of certainty required. Lopez, 907 F.3d at 478. As long as an

officer's reasonable suspicion is "grounded in specific and articulable facts," the

decision to stop a suspect will be upheld. Id. Here, the officers have pointed to

facts that, taken together, created reasonable suspicion that a drug transaction

took place on the loading docks. United States v. Snow, 656 F.3d 498, 500 (7th

Cir. 2011) (explaining that "all of the circumstances known to the officer at the

time he stopped the defendant, including information relayed to him by fellow

officers and police dispatchers," must be considered to evaluate reasonable

suspicion).

Furthermore, while some amount of suspicion may have dissipated while

questioning Mr. Pendleton, see dkt. 54 at 14, there were still specific,

articulable facts underlying the officers' suspicion to stop Mr. Banks. Mr.

Pendleton explained that he was an EMS employee and that he and Mr. Banks

had merely exchanged a key on the loading docks. Dkt. 46-7 at 14–15

(Pendleton Dep. at 56–58). He also showed the officers a key and denied

having or exchanging drugs, which the officers confirmed after searching his

person, jacket, and locker. Id. (Pendleton Dep. at 57–59). However, the officers

could not confirm that the key Mr. Pendleton showed them was the item

exchanged in the video. And because Mr. Banks was also in street clothes and

did not have an IU Health Badge, the officers reasonably could have questioned

whether he had permission to be in Fairbanks Hall. Thus, the officers still had

"some minimal level of objective justification" to stop Mr. Banks when he

returned to Fairbanks Hall. United States v. Brown, 188 F.3d 860, 864 (7th

Cir. 1999) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).

Defendants' motion for summary judgment on Plaintiffs' claims that they

were unlawfully stopped in violation of the Fourth Amendment is granted.

2. Frisk of Pendleton and Banks

"Even when a Terry stop is justified, whether a frisk is also justified is a

separate question." Lopez, 907 F.3d at 485 (citing Arizona v. Johnson, 555 U.S.

323, 326–27 (2009)). "To justify a warrantless pat-down search without

probable cause, the officer 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." United States v. Brown, 188 F.3d 860, 864 (7th Cir.

1999).

The officers argue that they had reasonable suspicion to frisk Mr.

Pendleton and Mr. Banks based on their suspected involvement in a drug

transaction, which is "a crime infused with violence." Dkt. 48 at 22 (quoting

United States v. Gambrell, 178 F.3d 927, 929 (7th Cir. 1999)). The officers

alternatively argue that both men consented to be frisked. Id. at 22–23.

Plaintiffs respond that a generalized suspicion of drug trafficking is not

enough to justify a frisk under Terry, and that the officers lacked individualized

suspicion to believe that the Plaintiffs were armed at the time of each search.

Dkt. 54 at 14–17. They also contend that neither consented to a search but

rather cooperated with the officers' commands. Id. at 18–20.

a. Consent

""[W]here the validity of a search rests on consent, the state has the

burden of proving that the necessary consent was obtained and that it was

freely and voluntarily given, a burden that is not satisfied by showing a mere

submission to a claim of lawful authority." Florida v. Royer, 460 U.S. 491, 497

(1983). To determine if consent was voluntary, the "court considers: (1) the

age, education, and intelligence of the defendant; (2) whether he was advised of

his constitutional rights; (3) how long he was detained before consenting; (4)

whether he consented immediately or was prompted by repeated requests; (5)

whether physical coercion was used; and (6) whether he was in custody when

he consented." United States v. Jones, 22 F.4th 667, 676 (7th Cir. 2022).

i. Mr. Pendleton

Defendants designate portions of Mr. Pendleton's deposition as evidence

that he consented to being searched. See dkt. 48 at 23. But some of those

statements, such as when he told the officers they could search his locker and

jacket, id. (citing dkt. 46-7 at 15 (Pendleton Dep. at 58:15–17)), were made after

Officer Murphy had already frisked him. The designated evidence regarding

what was said before the frisk—the timeframe that matters for evaluating

consent—is consistent. Mr. Pendleton testified that the officers approached

him, Officer Murphy asked who he was, and then Officer Murphy stated, "I

need to pat you down for our safety, but let's do it inside since its dark

outside." Dkt. 46-7 at 14 (Pendleton Dep. at 56); cf. dkt. 46-3 at 3 (Murphy Aff.

¶ 19) ("When I saw Mr. Pendleton, I told him that we were conducting an

investigation and that we wanted to speak with him, but that we would first

need to pat him down for weapons for our safety and his.").

Later in Mr. Pendleton's deposition, he described his response to Officer

Murphy's statement as follows:

‘eee

1 Q. Okay. Did you say anything to him in response?

2 A. I said, "Okay." I had no problem with it. I put

3 my hands up against the wall and let him do his

4 search. I told him, you know, who I was and, you

5 know, that I work here, you know, so I had my hands

6 on the wall while he was doing the pat-down.

Dkt. 46-7 at 19 (Pendleton Dep. at 74-75).

From the designated evidence a jury could reasonably find that Officer

Murphy did not ask Mr. Pendleton for permission to conduct a pat-down but

rather told him that he was going to conduct a pat-down. See dkt. 46-7 at 14,

19 (Pendleton Dep. at 56, 74-75); dkt. 46-3 at 3 (Murphy Aff. § 19). Based on

such finding, a reasonable jury could conclude that Mr. Pendleton did not

voluntarily consent to a pat-down but that his response was a "mere

submission to" Officer Murphy's "claim of lawful authority" to search him.

Royer, 460 U.S. at 497; United States v. Nafzger, 965 F.2d 213, 216 (7th Cir.

1992); cf: Kaupp v. Texas, 538 U.S. 626, 631 (2003) (explaining that the

defendant's "okay" in response to officer's command was "no showing of

consent" because the officer's statement "'we need to go and talk' presents no

option but 'to go").

The officers' focus on Mr. Pendleton's deposition statement—"I had no

problem with it"—misinterprets a defendant's burden in proving a valid consent

search. Dkt. 57 at 7-8. The officers must "prove[] that the necessary consent

20

was obtained," not that Mr. Pendleton may have consented if they had asked

him at the time. Royer, 460 U.S. at 497.

The officers have not shown that Mr. Pendleton voluntarily consented to

a pat-down.

ii. Mr. Banks

Regarding Mr. Banks, there are disputed material facts regarding

whether he "freely and voluntarily" consented to the pat-down or if his consent

was merely "submission to a claim of lawful authority." Royer, 460 U.S. at

497. Mr. Banks testified that Officer Murphy said to him: "We need to search

you. We need to pat you down. Is it okay?", and Mr. Banks responded: "Yeah.

You-all can search me." Dkt. 46-8 at 19 (Banks Dep. at 75). And according to

Officer Murphy, he said, "I am going to search you for weapons," to which Mr.

Banks responded, "Okay," or "No problem." Dkt. 46-3 at 6 (Murphy Aff. ¶ 31).

Mr. Banks described how he was "compliant" and "did what they told me to

do." Dkt. 46-8 at 20 (Banks Dep. at 78–79). He explained that, "when the

police tell you they need to search you, you are going to put your hands up, so

I went and put my hand up against the wall, spread my legs, and they

searched me." Id. (Banks Dep. at 79).

Based on the facts and circumstances surrounding the search, a

reasonable juror could find that Mr. Banks's acquiescence was "mere

submission to" Officer Murphy's "claim of lawful authority" to search him.

Royer, 460 U.S. at 497. Defendants have not shown that Mr. Banks voluntarily

consented to a pat-down.

b. Reasonable suspicion

Defendants next argue that, regardless of whether Plaintiffs voluntarily

consented, the totality of the circumstances presented specific and articulable

facts that supported the pat-down. Dkt. 48 at 22. Officer Murphy frisked Mr.

Pendleton and Mr. Banks based on his suspicion that they had engaged in a

drug transaction on the loading docks. Dkt. 46-3 at 3, 5–6 (Murphy Aff. ¶¶ 17–

19, 30–32); dkt. 46-7 at 14–15 (Pendleton Dep. at 56–57). However, "[t]he

authority to frisk is not automatic in a drug investigation." Lopez, 907 F.3d at

485. Officer Murphy also had to have reasonable suspicion that Plaintiffs may

have been "armed and presently dangerous." Id.

Defendants have not identified facts that support a reasonable suspicion

that Plaintiffs were armed and dangerous. The designated evidence shows that

they both immediately complied with the officer's commands, including Mr.

Pendleton showing his EMS badge when asked for identification. Dkt. 46-7 at

15 (Pendleton Dep. at 56). There is no evidence that either Mr. Pendleton or

Mr. Banks appeared nervous or evasive during this encounter. Cf. Brown, 188

F.3d at 865. And while "guns are among the tools of the drug trade," dkt. 48 at

22 (quoting Gambrell, 178 F.3d at 929 (7th Cir. 1999)), more than suspicion of

an isolated transaction is required to support a frisk under Terry, see Lopez,

907 F.3d at 485–86. Cf. United States v. Thompson, 842 F.3d 1002, 1005–06,

1007 (7th Cir. 2016) (upholding legality of frisk after officers witnessed conduct

indicative of a drug transaction during "an ongoing investigation into a drug

trafficking organization"). The officers' motion for summary judgment on

Plaintiffs' claim that they subjected them to an unlawful pat-down is denied.

3. Continued Detention

The officers next argue that their detention of Mr. Pendleton and Mr.

Banks lasted no longer than was reasonably necessary to complete their

investigation. Dkt. 48 at 24–27.6 "[A] Terry stop violates the Constitution when

an officer 'prolongs the stop, absent the reasonable suspicion ordinarily

demanded' by the Fourth Amendment. When the reasonable suspicion

justifying the stop evaporates, the stop must end." Id. (quoting Rodriguez v.

United States, 575 U.S. 348, 355 (2015)).

There is no bright-line time limit to determine whether a Terry stop was

unreasonably prolonged. Reedy, 989 F.3d at 553 (citing United States v. Place,

462 U.S. 696, 709 (1983)). Rather, "courts should 'examine whether the police

diligently pursued a means of investigation that was likely to confirm or dispel

their suspicions quickly, during which time it was necessary to detain the

defendant.'" Id. (quoting United States v. Sharp, 470 U.S. 675, 686 (1985)).

Mr. Pendleton argues that his detention should have ended after the

officers confirmed that IMPD could not provide a K-9 Unit, and that by

6 Mr. Banks responds that the officers never had reasonable suspicion to stop and

detain him in the first place, but he does not argue or designate evidence showing that

they unreasonably prolonged his detention. Dkt. 54 at 14. Because the officers had

reasonable suspicion to stop Mr. Banks, they could lawfully detain him for questioning

to dispel their suspicion, and the officers' motion for summary judgment on Mr.

Banks's unlawful detention claim is granted.

detaining Mr. Pendleton in a storage room until his supervisor arrived, the

officers turned the Terry stop into a "full-blown arrest." Dkt. 54 at 9–14.

The officers confirmed that an IMPD K-9 Unit was not available around

8:05 p.m. Dkt. 46-2 at 6 (Dycus Aff. ¶ 36). Five to ten minutes elapsed

between this confirmation and Mr. Banks's arrival. Id. ¶ 37. In support of the

continued detention of Mr. Pendleton, the officers explain it is the policy of the

IU Health Police Department to have a supervisor present while investigating

the conduct of a contract employee. Id. at 5 (Dycus Aff. ¶ 30); dkt. 46-3 at 4

(Murphy Aff. ¶ 22); dkt. 46-10 at 5 (White Dep. at 14). But "a police officer’s

compliance with the rules of his department is neither sufficient nor necessary

to satisfy the Fourth Amendment’s reasonableness requirement." United States

v. Brown, 871 F.3d 532, 536–37 (7th Cir. 2017).

Here, Mr. Pendleton had already verified his employment with EMS and

thus, his authorization to be at Fairbanks Hall, dkt. 48 at 25, by showing the

officers his EMS badge and a key to the building. He also had provided an

innocent explanation for the security footage of the loading docks exchange,

and the officers' search of his person, jacket, and locker revealed no evidence of

criminal activity. Thus, a reasonable jury could find that "it was [not]

necessary to detain" Mr. Pendleton further. Reedy, 989 F.3d at 553. The

officers' motion for summary judgment on Mr. Pendleton's claim that his

detention exceeded the scope of a lawful Terry stop is denied.

C. Retaliation

Mr. Pendleton and Mr. Banks allege that the officers unlawfully retaliated

against them for having challenged and complained about the officers' conduct.

For summary judgment purposes, the parties agree that Plaintiffs' "expression

of displeasure with the officers' investigation is protected speech." Dkt. 48 at

29 n.8. Mr. Pendleton's claim is based on Officer Murphy having threatened to

arrest him and banning him from the property. Dkt. 54 at 30. Mr. Banks's

claim is based on Lt. Dycus's call to Ms. Sells later in the evening when he told

her that Mr. Banks would not be allowed to return to his job placement with IU

Health. Id. at 31.

"'[T]he First Amendment prohibits government officials from subjecting

an individual to retaliatory actions' for engaging in protected speech." Nieves v.

Bartlett, 139 S. Ct. 1715, 1722 (2019) (quoting Hartman v. Moore, 547 U.S.

250, 256 (2006)). "To prevail on [a First Amendment] claim, a plaintiff must

establish a 'causal connection' between the government defendant's 'retaliatory

animus' and the plaintiff's 'subsequent injury." Id. (quoting Hartman, 547 U.S.

at 259). Establishing a retaliatory motive and a related injury are not enough—

the motive "must be a 'but-for' cause, meaning the adverse action against the

plaintiff would not have been taken absent the retaliatory motive." Id.

1. Sergeant White and Lt. Dycus

Sgt. White argues that he is entitled to summary judgment on Plaintiffs'

retaliation claim because he was not personally involved in the allegedly

retaliatory conduct. Dkt. 48 at 30. Lt. Dycus argues that he is entitled to

summary judgment because his allegedly retaliatory conduct was not taken

under color of state law. Id. at 30–31. Plaintiffs' response does not address

those arguments, see generally dkt. 54 at 29–32, so they have "abandoned the

claim[s]," Maclin v. SBC Ameritech, 520 F.3d 781, 788 (7th Cir. 2008).

Sgt. White and Lt. Dycus's motions for summary judgment on Plaintiffs'

retaliation claims are therefore granted.

2. Officer Murphy

Officer Murphy7 argues that because he had probable cause to arrest Mr.

Pendleton for disorderly conduct and trespass, any retaliatory motive for

banning him from IU Health and threatening to arrest him is negated. See

Nieves v. Bartlett, 139 S. Ct. at 1724; dkt. 57 at 13–15.8 Officer Murphy

further argues that even if he did not have probable cause to arrest Mr.

Pendleton, he is still entitled to summary judgment because Mr. Pendleton was

not harmed by Officer Murphy's actions. Dkt. 57 at 15.

Mr. Pendleton responds that a jury could find that Officer Murphy's

actions were retaliatory because he did not do or say anything that warranted

being banned from IU Health. Dkt. 54 at 30. His actions and speech,

including his comments about the officers' conduct, were lawful. Id. Finally,

7 Mr. Banks has not articulated a theory of liability against Officer Murphy. Id. at 29–

32. Officer Murphy's motion for summary judgment on Mr. Banks's retaliation claim

is therefore granted. Maclin, 520 F.3d at 788.

8 Although Officer Murphy argues that Plaintiffs changed their theory of liability

against him in their response brief, see dkt. 57 at 13, plaintiffs' theory of liability is

consistent with the facts pled in their complaint—that the officers excluded them from

the property in retaliation for protesting their conduct, see dkt. 33 ¶¶ 58, 87–89.

Mr. Pendleton responds that he lost his job as a result of being banned from IU

Health, so a jury could find that he suffered a deprivation. Id. at 31–32.

a. Probable cause

Officer Murphy has designated evidence that Mr. Pendleton was acting

loud and argumentative during the investigation, thus providing probable

cause to arrest him for disorderly conduct. Dkt. 46-3 at 7 (Murphy Aff. ¶ 38);

see Ind. Code § 35-45-1-3(a)(2) (defining disorderly conduct as a "person who

recklessly, knowingly, or intentionally . . . makes unreasonable noise and

continues to do so after being asked to stop"). Additionally, Officer Murphy

points out that Mr. Banks claimed he tried to quiet down Mr. Pendleton. Dkt.

46-8 at 27 (Banks Dep. at 108). Officer Murphy contends that he also had

probable cause to arrest Mr. Pendleton for trespass because he refused to

leave. Dkt. 57 at 14; dkt. 46-3 at 7 (Murphy Aff. ¶¶ 38–40); see Ind. Code § 35-

43-2-2(b)(2) (defining trespass as a "person who . . . not having a contractual

interest in the property, knowingly or intentionally refuses to leave the real

property of another person after having been asked to leave by the other person

or that person's agent").

Mr. Pendleton has designated evidence that he did not speak in a loud

and angry voice. Dkt. 46-7 at 30 (Pendleton Dep. at 118–20). Thus, there are

material, disputed facts regarding whether Officer Murphy had probable cause

to arrest him for disorderly conduct. See Jones v. Webb, 45 F.3d 178, 182 (7th

Cir. 1995) ("Whether an officer had probable cause to make an arrest generally

will present a question for the jury, although the court can decide it when the

material facts are not disputed.").

There are also material, disputed facts regarding whether Officer Murphy

had probable cause to arrest him for trespass. The parties agree that Mr.

Pendleton was lawfully on IU Health property for his job, and the only reason

Officer Murphy told Mr. Pendleton to leave was in response to Mr. Pendleton's

comments about the officers. Id.; dkt. 46-3 at 7 (Murphy Aff. ¶¶ 38–40). If

Officer Murphy had probable cause to arrest Mr. Pendleton for trespass, it

would only have been after he refused to leave. See Ind. Code § 35-43-2-

2(b)(2).

From these facts, a reasonable juror could infer the 'but-for' causation

required to show retaliation—that is, Mr. Pendleton's complaint about the

officers' conduct was the only reason Officer Murphy banned Mr. Pendleton

from IU Health. In other words, Mr. Pendleton would not have been banned

from IU Health absent Officer Murphy's retaliatory motive. Nieves, 139 S. Ct.

at 1722. A jury could also reasonably find from these facts that when Officer

Murphy told Mr. Pendleton to leave, he did not have probable cause to arrest

him for trespass. And even if Officer Murphy later developed probable cause, a

jury could still reasonably find that Officer Murphy's sole motive for telling Mr.

Pendleton to leave was in retaliation for his comments about the officers.

b. Deprivation

Officer Murphy argues that Mr. Pendleton did not suffer a deprivation as

a result of being banned from IU Health. Dkt. 48 at 32; dkt. 57 at 15. Officer

Murphy has designated evidence that EMS offered Mr. Pendleton a different job

assignment with the same schedule, hours, and pay. See dkt. 46-5. In

response, Mr. Pendleton designates evidence showing that the new assignment

was a day-shift position, not a night-shift one, so he could not accept the new

job. Dkt. 53-1 at 2 (Pendleton Aff. ¶¶ 13–17)).

While Officer Murphy contends that Mr. Pendleton's affidavit contains

inadmissible hearsay and therefore cannot create an issue of fact, dkt. 57 at

15–16, "[s]tatements introduced to show their effect on the listener, rather than

the truth of the matter they assert, are not hearsay." Torry v. City of Chicago,

932 F.3d 579, 585 (7th Cir. 2019). The statements that Mr. Pendleton

attributes to others are admissible to explain why he did not accept the other

job. From this evidence, a jury could conclude that Mr. Pendleton was not

offered the same schedule, hours, and pay as his IU Health position.

* * *

In sum, a reasonable juror could find that Officer Murphy banned Mr.

Pendleton from IU Health for retaliatory reasons and that Mr. Pendleton lost

his job as a result. Officer Murphy's motion for summary judgment on Mr.

Pendleton's retaliation claim is therefore denied.

D. Tortious Interference with a Business Relationship

Mr. Pendleton and Mr. Banks allege that the officers and IU Health

tortiously interfered with their business relationship with EMS. To state a

claim for tortious interference with a business relationship, a plaintiff must

show: "(1) the existence of a valid relationship; (2) the defendant's knowledge of

the existence of the relationship; (3) the defendant's intentional interference

with that relationship; (4) the absence of justification; and (5) damages

resulting from the defendant's wrongful interference with that relationship."

Denman v. St. Vincent Medical Group, Inc., 176 N.E.3d 480, 496 (Ind. Ct. App.

2021) (citing Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1235–36 (Ind.

1994)). Additionally, "this tort requires some independent illegal action."

McCollough v. Noblesville Schs., 63 N.E.3d 334, 344 (Ind. Ct. App. 2016).

Sgt. White and Officer Murphy argue that they are entitled to summary

judgment because they never communicated with EMS and therefore did not

interfere with Plaintiffs' employment relationship. 9 Dkt. 48 at 34. All

Defendants argue that they are entitled to summary judgment because

Plaintiffs have not designated evidence establishing independent illegal

conduct, absence of justification, or damages. Id. at 34–36.

Plaintiffs respond that both Officer Murphy and Lt. Dycus—and through

them, IU Health—interfered with their employment relationship by excluding

them from the property. Dkt. 54 at 33. They further contend that the officers'

motivation for excluding Mr. Pendleton from IU Health property was unjustified

and illegal retaliation, and whether Mr. Pendleton and Mr. Banks were

damaged by the officers' actions is a question of fact that must be resolved by a

jury. Id.

9 Plaintiffs' response does not address Sgt. White's argument, see generally dkt. 54 at

32–34, so they have "abandoned the claim[s]," Maclin v. SBC Ameritech, 520 F.3d 781,

788 (7th Cir. 2008). Sgt. White's motion for summary judgment on Plaintiffs' tortious

interference claim is therefore granted.

1. Independent Illegal Conduct

Officer Murphy contends that, as there was no constitutional violation,

there was no independent illegal conduct. The Court previously found,

however, that a reasonable juror could find that Officer Murphy banned Mr.

Pendleton from IU Health for retaliatory reasons. The question is thus whether

a constitutional violation is independent illegal conduct.

This issue of Indiana state law must be decided “as it either has been

determined by the highest court of the state or as it would be by that court if

the present case were before it now.” H.A.L. NY Holdings, LLC v. Guinan, 958

F.3d 627, 632 (7th Cir. 2020) (quoting Allstate Ins. Co. v. Menards, Inc., 285

F.3d 630, 637 (7th Cir. 2002)). Since the Indiana Supreme Court has not

decided whether a constitutional violation is independent illegal conduct, the

Court will "do[] [its] best to predict how the Indiana Supreme Court would

decide" this issue. Webber, 923 F.3d at 480–81.

There is not a "definition or test for a showing of the 'illegal conduct'

element of tortious interference with a business relationship" claim. Levee v.

Beeching, 729 N.E.2d 215, 222–23 (Ind. Ct. App. 2000). But the requirement

has been "interpreted loosely by Indiana courts, encompassing a broad swath

of claims." Nikish Software Corp. v. Manatron, Inc., 801 F. Supp. 2d 791, 797

(S.D. Ind. 2011). "[C]ourts interpreting Indiana law have held that non-

criminal illegal acts are sufficient." Syndicate Sales, Inc. v. Hampshire Paper

Corp., 192 F.3d 633, 641 (7th Cir. 1999) (citing cases). Under that view, federal

statutory violations, sexual harassment, and the filing of an improper lawsuit

have been deemed "illegal conduct." Reginald Martin Agency, Inc. v. Conseco

Med. Ins. Co., 388 F. Supp. 2d 919, 932 (S.D. Ind. 2005) (citing cases); United

States ex rel. Durcholz v. FKW Inc., 997 F. Supp. 1143, 1153 (S.D. Ind. 1998).

On the other hand, Indiana courts have found neither defamation, Levee,

729 N.E.2d at 222–23; Melton v. Ousley, 925 N.E.2d 430, 436 (Ind. Ct. App.

2010), or breach of contract, Nikish Software Corp., 801 F. Supp. 2d at 797–98,

to constitute "illegal conduct."

As discussed above, a jury could find that Officer Murphy unlawfully

banned Mr. Pendleton from IU Health in retaliation for Mr. Pendleton's

protected speech. Considering the "broad swath of claims" that Indiana courts

have found to constitute "illegal conduct," id. at 797, the Court concludes that

the Indiana Supreme Court would likely find Mr. Pendleton's claim based on

violation of a fundamental constitutional right to constitute "illegal conduct."

Therefore, a jury could reasonably find that Officer Murphy engaged in

independent illegal conduct against Mr. Pendleton.

On the other hand, Officer Murphy was granted summary judgment on

Mr. Banks's First Amendment claim, and Mr. Banks has not offered another

theory to establish the element of independent illegal conduct against Officer

Murphy. Officer Murphy's motion for summary judgment on Mr. Banks's claim

is therefore granted.

Plaintiffs have abandoned their First Amendment claim against Lt.

Dycus, and they do not argue that his call to Ms. Sells was independently

illegal under a separate theory. See dkt. 54 at 32–33. Therefore, Plaintiffs

cannot satisfy this element of a tortious interference claim against Lt. Dycus,

whose motion for summary judgment is granted.

2. Absence of Justification

Officer Murphy argues that the plaintiffs cannot show an absence of

justification because they failed to offer "evidence suggesting" that he "acted

exclusively to harm the plaintiffs' business interests." Dkt. 57 at 19 (citing

Morgan Asset Holding Corp v. CoBank, ACB, 736 N.E.2d 12568, 1272 (Ind. Ct.

App. 2000)). Mr. Pendleton responds that he was "excluded based exclusively

on his protest" of the officers' conduct. Dkt. 54 at 33.

Indiana courts have not consistently applied a uniform standard to show

an absence of justification. Some courts have required that the conduct "is

malicious and exclusively directed to the injury and damage of another," see

Morgan Asset, 736 N.E.2d at 1272, while others have looked at whether "the

conduct at issue is fair and reasonable" by using factors from the Restatement

(Second) of Torts, see Coca-Cola Co. v. Babyback's Int'l, Inc., 806 N.E.2d 37, 49–

52 (Ind. Ct. App. 2004). The Indiana Supreme Court recently acknowledged

the differing approaches without deciding which is correct. Am. Consulting, Inc.

v. Hannum Wagle & Cline Eng'g, Inc., 136 N.E.3d 208, 215 (Ind. 2019). The

Court noted that the record in that case contained "conflicting evidence" that

showed both that the defendant had "a legitimate business purpose" and that it

"targeted [the plaintiff] for an improper purpose." Id. As a result, the Court

held that "no matter which of the two standards for what constitutes the

absence of justification element . . . there remains an issue of material fact to

preclude summary judgment." Id.; see also Denman, 176 N.E.3d at 497.

So too here. Regardless of which standard is employed, a reasonable

juror could find that Officer Murphy acted without justification. If a juror were

to find that he excluded Mr. Pendleton from Fairbanks Hall as retaliation for

engaging in protected speech, then that juror could also find that Officer

Murphy acted maliciously for the purpose of injuring Mr. Pendleton and that

his conduct was not fair and reasonable. Cf. Denman, 176 N.E.3d at 497

(concluding evidence was sufficient to establish absence of justification where

jury could have found that defendant knowingly provided a deficient report that

caused plaintiff to suffer employment consequences).

Therefore, a reasonable juror could find that Officer Murphy acted

without justification when he excluded Mr. Pendleton from the property. Cf.

id.; Am. Consulting, 136 N.E.3d at 215.

3. Damages

Officer Murphy argues that Mr. Pendleton cannot establish damages

because he was offered a new job from EMS with the same work schedule,

hours, and rate of pay. Dkt. 48 at 35–36. This argument has already been

considered in the context of Mr. Pendleton's First Amendment claim. As

mentioned previously, there is a material dispute as to Mr. Pendleton's ability

to find a suitable replacement job. Therefore, a reasonable juror could find

that there was a deprivation resulting from Officer Murphy's allegedly

retaliatory conduct, and, thus, could find that Mr. Pendleton was damaged by

this interference with his business relationship.

* * *

In sum, Mr. Pendleton has designated evidence from which a reasonable

juror could find that he established each element of a claim for tortious

interference with a business relationship against Officer Murphy, whose motion

for summary judgment is therefore denied.

IV.

Conclusion

Defendants' motion for summary judgment is granted as to all claims

brought by Mr. Banks, except for his unlawful frisk claim.

Defendants' motion for summary judgment is granted as to Mr.

Pendleton's claim alleging First Amendment retaliation against Lt. Dycus and

Sgt. White.

Defendants' motion for summary judgment is granted on Plaintiffs' claim

for spoliation of evidence.

Defendants' motion for summary judgment is denied as to the following

claims brought by Mr. Pendleton: (1) unlawful frisk against the officers; (2)

unlawful detention against the officers; (3) First Amendment retaliation against

Officer Murphy; and (4) tortious interference with a business relationship

against Officer Murphy.

Magistrate Judge Baker is asked to hold a status conference to discuss

settlement and trial readiness.

SO ORDERED.

Date: 9/6/2022

Slams Patrck hawlove

Distribution: James Patrick Hanlon

United States District Judge

Terrance Lamont Kinnard Southern District of Indiana

KINNARD & SCOTT

tkinnard@kinnardlaw.net

Pamela G. Schneeman

STEPHENSON MOROW & SEMLER

pschneeman@stephlaw.com

James S. Stephenson

STEPHENSON MOROW & SEMLER

jstephenson@stephlaw.com

36