# PENDLETON v. MURPHY

> District Court, S.D. Indiana · September 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10169394

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** September 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10169394

## How later opinions describe it (automated extraction)

- 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"
- 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
- recognizing "that statements offered to explain an officer's course of conduct are not hearsay"

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10169394. Public record. Not legal advice.