ATWOOD v. THOMPSON

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

JESSE EDWARD ATWOOD, )

)

Plaintiff, )

)

v. ) No. 1:20-cv-03161-JPH-TAB

)

KENNETH THOMPSON Deputy Sheriff, )

)

Defendant. )

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Jesse Atwood alleges that the defendant, Shelby County Sheriff's

Deputy Kenneth Thompson, arrested him without probable cause in violation

of his Fourth Amendment rights and Indiana state law. Both parties have filed

motions for summary judgment. Dkts. 98, 100. Because the undisputed

evidence demonstrates that Deputy Thompson had probable cause to arrest

Mr. Atwood, summary judgment as to the Fourth Amendment claim must be

granted as to Deputy Thompson and denied as to Mr. Atwood. Mr. Atwood's

state law claims are REMANDED to Shelby County Superior Court.

I.

Facts and Background

The parties have filed cross-motions for summary judgment, so the Court

takes the motions "one at a time." American Family Mut. Ins. v. Williams, 832

F.3d 645, 648 (7th Cir. 2016). For each motion, the Court views and recites the

evidence and draws all reasonable inferences "in favor of the non-moving

party." Id. That's not necessary here, however, because even when all evidence

is interpreted in Mr. Atwood's favor, Deputy Thompson is entitled to summary

judgment.1

Deputy Thompson received a dispatch on October 4, 2018, about a man

having entered a private residence without permission. Dkt. 101-1 at ¶ 1

(Affidavit of Deputy Thompson). Deputy Thompson responded to the scene, at

which time he encountered Wallace Shrader, the homeowner who had called

the police. Id. at ¶¶ 2–4.

Mr. Shrader informed Deputy Thompson that a man had walked into his

home without permission and asked if they had any laxatives, claiming he had

been poisoned and needed to purge his system. Id. at ¶ 5. The Shraders

advised the man that they could not assist, and the man began to leave the

house. Id. at ¶ 6. At that time, Mr. Shrader told his wife to call the police. Id.

According to Mr. Shrader, the man, a white male wearing a red t-shirt and

baggy jeans, then took off running west, further into the housing development.

Id. at ¶¶ 7, 9.

While searching the housing development, Deputy Thompson received a

radio dispatch that Deputy Rosales had encountered the suspect in another

home nearby. Id. at ¶¶ 10-11.

Deputy Thompson went to that home, where he found the homeowner

standing in the driveway holding his dogs. Id. at ¶ 12. The homeowner, Chad

Wilson, told Mr. Thompson and the other deputies that there was a stranger in

1 The only evidence Mr. Atwood submitted in support of his motion was the probable

cause affidavit, dkt. [99-1], the charging information, dkt. [99-2], the amended charging

document, dkt. [99-3], and the order dismissing his criminal case, dkt. [99-4].

his bathroom. Id. at ¶ 13. Mr. Wilson told Deputy Thompson that he was in his

home with the front door closed when a man opened the door and entered

without his permission. Id. at ¶ 16.

Deputy Thompson, Deputy Rosales, and Deputy DeWitt entered the

residence and found a man matching the description given to Deputy

Thompson by Mr. Shrader, and was later identified as Jesse Atwood. Id. at

¶¶ 14−15.

The deputies escorted Mr. Atwood out of the Wilson residence and

instructed him to sit on the front steps. Id. at ¶ 19. Medics were then called to

come to the house to assist Mr. Atwood, who believed he had been poisoned.

Id. at ¶¶ 5, 17, 20, and 21.

Deputy Thompson contacted the prosecutor on call, Ed Zych, and briefed

him on what had occurred. Id. at ¶ 28. Prosecutor Zych informed Deputy

Thompson that a residential entry had occurred once Mr. Atwood broke the

plane of the doorways of the homes. Id. at ¶ 29. Deputy Thompson wrote up his

report and forwarded it to the prosecutor's office for their review. Id. at ¶ 30.

The prosecutor's office notified Deputy Thompson the following day that

they needed charging information on Mr. Atwood. Id. at ¶ 31. Deputy

Thompson completed the charging information and forwarded it to the

prosecutor's office with his report. Id. at ¶ 32; see also dkt. 101-2 at 7−8 (copy

of police report); dkt. 99-1 (probable cause affidavit); dkts. 99-2 and 99-3

(charging documents). Everything contained in Deputy Thompson's report and

the charging information was true and correct to the best of his knowledge and

was based on his own observations or the information he received from

eyewitnesses. Dkt. 101-1 at ¶ 33.

Mr. Atwood was charged with residential entry, a level 6 felony. Dkt. 99-

3. Mr. Atwood was incarcerated in the Shelby County jail for several months

while the charges were pending. Dkt. 99 at 2. While he in the jail, a Child in

Need of Services ("CHINS") Petition was filed in Indiana court with respect to

Mr. Atwood's newborn child. Dkt. 101-2 at 9.2

The criminal case was dismissed without prejudice on March 13, 2019.3

Dkt. 99-4.

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

2 Deputy Thompson filed a copy of Mr. Atwood's tort claim notice, which contained the

court records related to the CHINS proceeding, as an exhibit in this case. Dkt. 101-2.

The Court has repeatedly reminded Mr. Atwood and counsel that documents

containing minor children's names or documents related to sealed court proceedings

should be redacted or filed under seal. See, e.g., dkts. 20, 79.

3 Mr. Atwood alleges that the trial court dismissed the case because "Deputy Rosales

had returned from his vacation to give the court a statement that the court

acknowledged[.]" He submits no admissible evidence in support of this statement.

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 cross motions for summary judgment, the Court takes the

motions "one at a time," viewing and reciting the evidence and drawing all

reasonable inferences "in favor of the non-moving party." Williams, 832 F.3d at

648.

III.

Analysis

Under the Court's Order screening Mr. Atwood's third amended

complaint, Mr. Atwood was permitted to proceed on (1) a claim that his arrest

and subsequent detention were unlawful under the Fourth Amendment and

(2) Indiana state tort claims of negligent infliction of emotional distress and

defamation.

A. Fourth Amendment Claim

Deputy Thompson argues that he is entitled to summary judgment

because he had probable cause to arrest Mr. Atwood.

"Probable cause is an absolute defense to claims of wrongful or false

arrest under the Fourth Amendment in section 1983 suits." Ewell v. Toney, 853

F.3d 911, 919 (7th Cir. 2017). "In other words, if an officer has probable

cause to arrest a suspect, the arrest was not false." Id. Probable cause "exists

at arrest when a reasonable officer with all the knowledge of the on-scene

officers would have believed that the suspect committed an offense defined by

state law." Jump v. Vill. of Shorewood, 42 F.4th 782, 789 (7th Cir. 2022). In

analyzing whether probable cause exists, the Court must "look at the totality of

the circumstances—the whole picture." Id. (citing District of Columbia v. Wesby,

138 S. Ct. 577, 588 (2018)).

Under Indiana law, "[a] person who knowingly or intentionally breaks

and enters the dwelling of another person commits residential entry, a Level 6

felony." Ind. Code § 35-43-2-1.5. The opening of an unlocked door is sufficient

to establish that a breaking has occurred. Higgins v. State, 783 N.E.2d 1180,

1184 (Ind. Ct. App. 2003). Further, "the offense of residential entry does not

require intent to commit a felony in the structure." Williams v. State, 873

N.E.2d 144, 148 (Ind. Ct. App. 2007).

Here, Deputy Thompson has designated evidence that both homeowners

reported to him that Mr. Atwood had entered their homes without permission

and that they did not know him. Dkt. 101-1 at ¶¶ 5, 16. Mr. Wilson also stated

that Mr. Atwood had opened his door and entered his house without

permission. Id. at ¶ 16. These facts are sufficient to support the probable cause

determination. Higgins, 783 N.E.2d at 1184. Therefore, to survive summary

judgment, Mr. Atwood must "specifically controvert[]" Officer Thompson's

designated evidence "with admissible evidence" that would allow a jury to find

in his favor. S.D. Ind. L.R. 56-1(f)(1)(A); see Cehovic-Dixneuf v. Wong, 895 F.3d

927, 931 (7th Cir. 2018). "[I]nferences supported by only speculation or

conjecture will not defeat a summary judgment motion." Dorsey v. Morgan

Stanley, 507 F.3d 624, 627 (7th Cir. 2007).

Despite being specifically informed of his right to respond and submit

evidence in opposition to Deputy Thompson's motion for summary judgment,

dkt. 103, Mr. Atwood did not file a response. The Court therefore treats

Deputy Thompson's supported factual assertions as uncontested. See

Hinterberger v. City of Indianapolis, 966 F.3d 523, 527 (7th Cir. 2020); S.D.

Ind. L.R. 56-1(b), (f); Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 360

(7th Cir. 2009) ("the district court is within its discretion to strictly enforce

compliance with its local rules regarding summary-judgment motions.").

Considering Deputy Thompson's designated evidence and Mr. Atwood's failure

to designate any evidence, the totality of the circumstances supports a finding

of probable cause, and a jury could not find in Mr. Atwood's favor.

In his amended complaint, Mr. Atwood alleges that the homeowners'

"reports were not given, and the [probable cause] affidavit was fraudulent." Dkt.

80 at 3. And in his brief in support of his motion for summary judgment, Mr.

Atwood argues that some of the facts set forth in Deputy Thompson's probable

cause affidavit are false. Dkt. 99. Specifically, he asserts that Mr. Wilson gave

him permission to enter his house; that he (Mr. Atwood) was the one who

requested emergency assistance; and that Deputy Rosales was the officer who

first responded to the scene. Id. at 1-2. He further contends that he

committed no wrong; that Deputy Thompson filed "false and fraudulent

charges" against him; and that the charges against him were ultimately

dismissed after Deputy Rosales returned from vacation and gave a statement.

Id.; see also dkt. 98 (Amended Motion for Summary Judgment in Favor of the

Plaintiff).

None of those filings, however, are verified, and therefore are not

admissible evidence. See Owens v. Hinsley, 635 F.3d 950 (7th Cir. 2011). And

despite Mr. Atwood's arguments, the fact remains that he has designated no

admissible evidence that contradicts Deputy Thompson's version of events as

established by Deputy Thompson's sworn affidavit.4 Ewell, 853 F.3d at 919.

Accordingly, Deputy Thompson is entitled to summary judgment on Mr.

Atwood's Fourth Amendment claim.5

B. Indiana State Law Claims

Indiana substantive law governs Mr. Atwood's state law claims. See

Webber v. Butner, 923 F.3d 479, 480–81 (7th Cir. 2019). "When all federal claims

in a suit in federal court are dismissed before trial, the presumption is that the

court will relinquish federal jurisdiction over any supplemental state-law

claims." RWJ Mgmt. Co. v. BP Prods. N. Am., 672 F.3d 476, 479 (7th Cir. 2012)

(internal quotations omitted); 28 U.S.C. § 1367(c). "The presumption is

rebuttable, but it should not be lightly abandoned, as it is based on a legitimate

and substantial concern with minimizing federal intrusion into areas of purely

state law." Id. at 479 (internal quotation marks omitted). There are a few

4 The version of events that Deputy Thompson provided in his affidavit in support of

the summary judgment motion, dkt. 101-1, is in all material respects the same as the

version he provided in his police report, dkt. 101-2 at 7−8.

5 Because the Court concludes that no constitutional violation occurred, it does not

address Deputy Thompson's argument that he is entitled to qualified immunity.

exceptions to that general rule: "(1) when the statute of limitations has run on

the pendent claim, precluding the filing of a separate suit in state court; (2)

substantial judicial resources have already been committed, so that sending the

case to another court will cause a substantial duplication of effort; or (3) when it

is absolutely clear how the pendent claims can be decided." Davis v. Cook

County, 534 F.3d 650, 654 (7th Cir. 2008).

Here, the factors weigh in favor of remand. First, remanding the case to

Shelby Superior Court will avoid any statute of limitations problems. See

Plaats v. City of Lafayette, 2015 WL 5773724, at *4 (N.D. Ind. Sept. 30, 2015)

(noting that any statute of limitations concerns "are less relevant when the

court remands a case"), aff'd sub nom. Plaats v. Barthelemy, 641 F. App'x 624

(7th Cir. 2016). Second, while the case has been in federal court for over two

years and the Court has expended resources to address documents and

motions filed by Mr. Atwood, the Court has not spent substantial resources

specifically addressing the merits of his state law claims. Thus, there will not

be a "substantial duplication of effort." Davis, 534 F.3d at 654; RWJ Mgmt. Co.

Inc. v. BP Prods. N. Am., Inc., 672 F.3d 476, 481 (7th Cir. 2012) ("concerns

about judicial economy have their greatest force when significant federal

judicial resources have already been expended to decide the state claims.").

Finally, Defendant argues that Mr. Atwood's tort claims are barred by the

Indiana Tort Claims Act and its notice requirements. But, resolving that

argument will turn on interpretation of the ITCA, potential bases for tolling the

statute's timing requirements, and evaluating the sufficiency of Mr. Atwood's

allegations and evidence—that is, resolution of the state law claims is not

"obvious." See Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251 (7th Cir.

1994) ("If the question whether a state-law claim lacks merit is not obvious,

comity concerns may dictate relinquishment of jurisdiction.").

Therefore, the Court exercises its discretion to relinquish jurisdiction over

Mr. Atwood's state law claims. Those claims are REMANDED to Shelby Superior

Court.

IV.

Conclusion

For the foregoing reasons, Deputy Thompson's motion for summary

judgment, dkt. [100], is granted with respect to the Fourth Amendment

claim, and Mr. Atwood's motion for summary judgment, dkt. [98], is denied

with respect to the Fourth Amendment claim.

Mr. Atwood's state law claims are REMANDED to Shelby Superior Court.

The clerk is directed to seal Defendant's exhibit at docket [101-2].

SO ORDERED.

Date: 3/29/2023 Jamu Pataich Hanbor

James Patrick Hanlon

Distribution: United States District Judge

Southern District of Indiana

JESSE EDWARD ATWOOD

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