Petition for Writ of Certiorari — Starzenski v. City of Elkhart

, Stereme Court, u.s.

FILED

96 470 SEP 23 109

No.

CPOE“ OP Thr TIERK

Supreme Court of the Hnited States

October Term, 1995

SOPHIE STARZENSKI, KAZMER STARZENSKI and

GENNIE STARZENSKI,

Petitioners,

vs.

CITY OF ELKHART, RICHARD L. MOORE, STREET

COMMISSIONER, RAYMOND H. MINEGAR, CODE

ENFORCEMENT OFFICER AND PRESIDENT, LEROY

BERRY, JR., CITY OF ELKHART HEARING OFFICER and

HEALTH AND SANITATION COMMISSION,

Respondents.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit —

PETITION FOR WRIT OF CERTIORARI

WILLIAM J. COHEN

Counsel of Record

Attorney for Petitioners

221 West Lexington Avenue

Elkhart, Indiana 46516

(219) 293-4511

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ervices, inc. )

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i

QUESTIONS PRESENTED

1. Whether the District Court should have retained

jurisdiction of this case, which involved important federal

questions, while a parallel state case was pending in the state

appellate process.

ii

TABLE OF CONTENTS

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Statement of Jurisdiction ................-. eeenetan l

United States Constitution Involved ................ l

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A. Constitutional Issues FirstRaised ........... 4

Reasons for Granting the Writ ..................2. 5

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TABLE OF CITATIONS

Cases Cited:

Colorado River Water Conservation Dist. v. United

States, 424 U.B. FHACIGIG) oc ccccecceuscetscsess 5

Ingersoll Mills Machine Co. v. Granger, 833 F.2d 680

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Contents

Statutes Cited:

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United States Constitution Cited:

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APPENDIX

Appendix A — Judgment of the United States Court of

Appeals for the Seventh Circuit Decided June 25, 1996

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Appendix B — Memorandum and Order of the United

States District Court, Northern District of Indiana

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1

OPINIONS BELOW

Petitioners, Sophie Starzenski, Kazmer Starzenski and

Genie Starzenski (hereinafter referred to as the “home-

owners”), appeal the decision of the United States Court of

Appeals for the Seventh Circuit, dated June 25, 1996 and

reported at 87 F.3d 872.

STATEMENT OF JURISDICTION

This appeal is being docketed in this Court within ninety

(90) days of the entry of judgment by the United States Court of

Appeals for the Seventh Circuit. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

There was a parallel state court case. On August 29, 1996,

the Petitioners filed a Petition for Writ for Certiorari to this

Court of the parallel state case with the Clerk of this Court

where it was docketed September 6, 1996 as Case No. 96-350.

UNITED STATES CONSTITUTION INVOLVED

This case involves the following constitutional provisions:

Article IV § 1 of the United States Constitution and the Fourth,

Fifth and Fourteenth Amendments of the United States

Constitution.

Article IV § 1 provides that:

Full Faith and Credit shall be given in

each State to the public Acts, Records and

judicial Proceedings of every other State.

And the Congress may be general Laws

prescribe the manner in which such acts,

Records and Proceedings shall be proved,

and the Effect thereof.

2

The Fourth Amendment provides that:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath

or affirmation, and particularly describing

the place to be searched, and the persons or

things to be seized.

The Fifth Amendment provides that:

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual

service in time of War cs public danger; nor

jeopardy of life or limb; nor shall be

compelled in any criminal case to be a

witness against himself, not be deprived of

life, liberty, or property, without due process

of law; nor shall private property be taken

for public use, without compensation.

The Fourteenth Amendment provides that:

Section ]. All persons born or natural-

ized in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No State shall make or enforce any

law which shall abridge the privileges or

3

immunities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Petitioners appeal the District Court’s dismissal of their 42

U.S.C. § 1983 action. On June 11, 1993, the Petitioners filed

this civil action alleging the Respondents violated their

constitutional rights when they entered Petitioners’ home on

February 8, i993 and cleaned it out without a judicial warrant.

The Petitioner, Sophie Starzenski, brought a separate action,

alleging her arrest at her home while protesting the clean-up

violated her constitutional rights. Petitioners appealed the

District Court dismissal to the Seventh Circuit, and the Seventh

Circuit affirmed. Petitioners seek this Court’s review of that

decision. The District Court dismissed after a decision had been

made in a companion case in state court. The state court case is

now pending in this Court as Case No. 96-350 (herein the state

court case).

The state court case, Case No. 96-350, arose on February 8,

1993 when Petitioners filed a complaint in state court seeking a

temporary restraining order prohibiting Respondents from

continuing a “clean-up” of her property because the

Respondents did not have a judicial warrant to remove

everything inside Petitioners’ home. The facts of the state

proceeding are more fully discussed in the Petition for Writ of

Certiorari filed in Case No. 96-350 and those facts are adopted

and incorporated herein.

While Case No. 96-350 was pending in state court, on June

11, 1993, Petitioners filed this case for damages in the United

4

States District Court for the Northern District of Indiana

pursuant to 42 U.S.C. § 1983.

The state court case (Case No. 96-350) reached its

conclusion before the federal case. Although the state trial

judge found the City’s actions “reprehensible”, it found that

neither the Indiana Constitution, nor the United States

Constitution, required a judicial warrant before the City could

enter Petitioners’ home.

Based on the state court’s decision, the Respondents filed a

motion with the District Court to dismiss the federal case. The

Respondents argued that res judicata barred relitigation of the

constitutional issues decided by the state court, a position

conceded by Petitioners. The Respondents further argued that

the District Court should dismiss this case despite the pending

appeal in state court. The Petitioners argued that the federal

action should be stayed pending completion of the state appeal

process. On February 25, 1995, the District Court dismissed

this case.

Petitioners request a consolidation of this case with Case

No. 96-350 in order to provide Petitioners with complete relief

under the law.

A. Constitutional Issues First Raised

All constitutional issues raised herein were first presented

to the District Court. In the companion state court case, Case

No. 96-350, all constitutional issues were first presented before

the state court.

5

REASONS FOR GRANTING THE WRIT

Petitioners do not dispute that res judicata prevents

relitigation in federal court of the issues decided in state court.

Instead, this case presents a more narrow, but immensely

important question, about how federal District Courts should

handle a federal case while a parallel state proceeding is

pending on appeal.

While in general the decision to stay the proceedings or

dismiss a case is left to the sound discretion of the District

Court, Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800 (1976), this Court should, through the

invocation of its supervisory powers over federal courts, create

a nationwide rule preventing any federal district court from

dismissing a federal claim as long as a companion state court

decision is still in the appellate process.

That is the approach that the Seventh Circuit Court of

Appeals had strongly recommended in a virtually identical

procedural setting. In Ingersoll Mills Machine Co. v. Granger,

833 F.2d 680 (7th Cir. 1987), the Seventh Circuit Court of

Appeals outlined the benefits to all parties and the advancement

of justice that such a measured rule as advocated by Petitioners

would create. Indeed, there is a conflict in the Seventh Circuit

which this Court should resolve because the decision in this

case conflicts with Ingersoll Mills Machine v. Granger, supra.

Petitioners contend that the District Court should have

granted a stay of its proceedings until the entire state court

appeals process, including a petition for writ of certiorari to this

Court, as in Case No. 96-350, was exhausted. Utilizing its

supervisory powers, this case presents this Court with the

opportunity to make justice more consistent in both state and

federal proceedings. Furthermore, what occurred to Petitioners

6

in this case is fikefy to recur. And, allowing District Courts

discretion to either dismiss or stay its proceedings could result

in inconsistent decisions, or the truncation of important

constitutional rights. On the other hand, to grant certiorari in

this case and consolidate it with Case No. 96-350 could

eliminate unnecessary litigation in future cases such as was

required in this case by Petitioners’ appeal to the Seventh

Circuit and then to this Court. If this Court adopts the rule

proposed by Petitioners, important constitutional claims may

be heard instead of lost and unnecessary litigation can be

avoided in the future.

CONCLUSION

WHEREFORE, Petitioners request that this Court grant

their Petition for Writ of Certiorari, and consolidate this case

with Case No. 96-350, and for all other relief proper in the

premises.

Respectfully submitted,

WILLIAM J. COHEN

Attorney for Petitioners

221 West Lexington Avenue

Elkhart, Indiana 46516

(219) 293-4511

la

APPENDIX A — JUDGMENT OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DECIDED JUNE 25, 1996

In the

United States Court of Appeals

For the Seventh Circuit

No. 95-1766

SOPHIE STARZENSKI, KAZMER STARZENSKI, and

GENNIE STARZENSKI,

Plaintiffs-Appelilants,

v.

CITY OF ELKHART, ELKHART HEALTH AND

SANITATION DEPARTMENT,. LEROY ROBINSON,

Director of Health and Sanitation Department, RAY

MINEGAR, Health Enforcement Officer, FRAN CURRY,

Health Enforcement Officer, RICHARD L. MOORE, Street

Commissioner, and LARRY KASA, Elkhart City Police

Officer,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 93 C 401 —Allen Sharp, Chief Judge.

ARGUED NOVEMBER 7, 1995-DECIDED JUNE 25, 1996

2a

Appendix A

Before POSNER, Chief Judge, COFFEY, Circuit Judge,

and SKINNER, District Judge. *

COFFEY, Circuit Judge. Sophie Starzenski, Kazmer

Starzenski, and Gennie Starzenski filed a civil rights action

pursuant to 42 U.S.C. § 1983, claiming that the defendants

violated their Fourth and Fourteenth Amendment rights by

entering onto real property that they owned and seizing their

personal property without a warrant. Additionally, Sophie

Starzenski claimed that the Elkhart Police Sergeant Ernie Hill

arrested her without probable cause and used excessive force to

effect the arrest. The district court entered summary judgment

in favor of all the defendants. The plaintiffs appeal; we affirm.

I. BACKGROUND

Sophie, Kazmer, and Gennie Starzenski own a residence at

1015 W. Garfield, Elkhart, Indiana. In the summer of 1991, city

employees had observed extensive trash and debris both inside

and outside the Starzenski’s residence.

In July 1991, the City of Elkhart held a hearing and ordered

Sophie Starzenski to clean the exterior of her property.

Thereafter, in September 1992, the city determined that

Starzenski had failed to comply with this order, triggering a

response by the building commissioner, Leroy Robinson. The

commissioner executed a “notice order to take action” and

mailed it to the plaintiffs.'On October 29, 1992, a hearing was

* The Honorable Walter Jay Skinner, Judge of the United States

District Court for the District of Massachusetts, sitting by designation.

1. This order was also published in The Elkhart Truth, the local weekly

newspaper, on September 29, 1992 and October 6, 1992.

3a

Appendix A

conducted before City of Elkhart Hearing Officer Lee Roy

Berry, Jr., pursuant to the Indiana Unsafe Building Act, Ind.

Code § 36-7-9, et seq. At the conclusion of the hearing, Officer

Berry ordered the plaintiffs to remove debris frum both inside

and outside the house within fifteen days, and further, if the

trash was not removed within that time limit, the city had the

authority to go onto the premises, enter the residence, and

remove the trash and debris.

In December 1992, volunteers led by an Elkhart police

officer attempted to clean the plaintiffs’ premises. However,

city officials determined that these efforts failed to

satisfactorily clean the property. On February 3, 1993, the

Elkhart Health and Sanitation Department voted unanimously

to clean the plaintiffs’ property on February 8, 1993. Plaintiff

Sophie Starzenski received notice of this decision on Friday

February 5, 1993.

Sophie Starzenski alleged that when she received notice of

the planned clean-up, she attempted to contact city officials.

However, the city offices had closed for the weekend. On

Monday, February 8, 1993, defendant Richard Moore, the

Street Commissioner, called defendant Captain Larry Kasa of

the Elkhart Police Department and, although not requesting that

a law enforcement officer be present, informed him of the

intended clean-up at the plaintiffs’ property. Kasa told

Lieutenant Paul Petgen, of the Elkhart Police Department,

about the clean-up. In his deposition, Kasa testified that he did

not instruct Petgen to send an officer to the clean-up site.

Petgen informed Sergeant Hill about the clean-up. Hill

went to the site at approximately 8:00 A.M. and observed that

workers were in the process of removing the trash and debris

4a

Appendix A

from the grounds. Plaintiff Sophie Starzenski was at the

premises and in Hill’s presence voiced her objections to the

clean-up. Sophie Starzenski left the site to confer with her

attorney.

Sometime thereafter, Sophie Starzenski returned and

continued to protest the clean-up. Sergeant Hill called Captain

Kasa and requested that he come to the residence to assist. Upon

arriving, Kasa told Sophie that she should either stand back and

watch, or leave. She left the premises, but returned. At that

point, according to Hill’s arrest report, Sophie shouted at the

workers “get off my property you thieving bastards.” When Hill

advised her to quiet down, Sophie repeated the above statement

and Hill arrested her for disorderly conduct.

Later on the same day (February 8, 1993), the plaintiffs’

lawyer obtained a temporary restraining order from the Elkhart

Superior Court. The order directed the city to stop the clean-up

at 1015 W. Garfield pending a hearing for a preliminary

injunction. On February 17, 1993, the Elkhart Superior Court

conducted a hearing at Sophie Starzenski’s request for a

preliminary injunction. On May 4, 1993, the Elkhart Superior

Court ruled that neither Indiana Law nor the Fourth

Amendment of the United States Constitution required the

issuance of a warrant or judicial order before the

commencement of the clean-up of the plaintiffs’ property, but

reserved its final ruling until after the a full evidentiary hearing

on the reasonableness of the city’s action and whether the city

complied with the Indiana Unsafe Building Statute.

Before the state court had rendered final judgment, the

plaintiffs filed their federal complaint in the Northern District

of Indiana, commencing the litigation that is the subject of the

Sa

Appendix A

present appeal. In Count I of the complaint, the plaintiffs

asserted that the City of Elkhart, the Elkhart Health and

Sanitation Commission, and city employees violated the

plaintiffs’ Fourth and Fourteenth Amendment rights by

commencing the clean-up without having obtained a judicial

warrant. In the Count II, the plaintiff Sophie Starzenski claimed

that the defendants violated her Fourth Amendment rights

alleging she was arrested without probable cause and with

excessive force. She also asserted that employees of the Elkhart

Health and Street Department conspired with the Elkhart Police

department to have her arrested without probable cause, and

that defendant Captain Larry Kasa without probable cause

ordered Officer Hill to arrest her. The defendants moved for

federal court abstention, pending final judgment in the state

court proceedings; the district court declined the request to stay

the federal action.

In November 1994, the Elkhart Superior Court entered

final judgment concluding that the city did not violate the

United States Constitution or Indiana law in removing the trash

on February 8, 1993. The Starzenskis appealed the state court

decision to the Indiana Court of Appeals.

The plaintiffs filed a motion in district court to stay the

federal proceedings pending an appeal of the state court

decision. The district court denied the motion and in February

1995 the court granted the defendants summary judgment,

finding that the state court decision barred Count I of the

plaintiffs’ complaint under the doctrine of claim preclusion.

The court also granted summary judgment to the defendants on

Sophie Starzenski’s unlawful arrest claim because the arresting

officer, Sergeant Hill, had since deceased and thus had been

dismissed from the case by a higher authority. Plaintiffs appeal.

6a

Appendix A

Il. ANALYSIS

A. Claim Preclusion on Count I

The plaintiffs’ claim in Count I of the federal complaint

was that City Officials had violated the Fourth Amendment in

entering their property without a warrant in order to remove the

trash and debris from the premises. The state court (after a

hearing to determine the propriety of an injunction to prevent

the clean-up) ruled that neither the United States Constitution

nor Indiana law had been violated as a result of the clean-up.

The district court found that the state judgment barred the

federal suit.

On appeal, the plaintiffs argue that the district court,

instead of dismissing the case, should have stayed the

proceedings pending the plaintiffs’ appeal of the state court

judgment, in case the state judgment was reversed by an Indiana

Appellate Court (or the Supreme Court of the United States).’

The parties’ dispute thus centers upon how a federal district

court should dispose of a case after a parallel state proceeding

2. At the time the instant appeal was filed, the plaintiffs had appealed

the Elkhart Superior Court's ruling to the Court of Appeals of Indiana, but

that court had not yet ruled on the case. Subsequent to the filing of the instant

appeal, on January 10, 1996, the Court of Appeals of Indiana affirmed the

Elkhart Superior Court's ruling in an opinion to be published. On February 7,

1996 the plaintiffs filed a petition to transfer the case to the Indiana Supreme

Court; this petition is currently pending. Therefore, although the state

litigation has advanced one step further, the Elkhart Superior Court's

judgment is still in place, and the plaintiffs continue to pursue state remedies

attempting to reverse that judgment. Thus, the issue before us remains the

same.

7a

Appendix A

has reached judgment in a court of original jurisdiction, and the

parties to date have not exhausted all their appellate

opportunities.

Title 28 U.S.C. § 1738 provides that “[state] judicial

proceedings ... shall have the same full faith and credit [in

United States courts] as they have by law or usage in the courts

of [the] State ... from which they are taken.” Thus, under

section 1738, we turn to Indiana law to determine the preclusive

effect of its own judgments.See Marrese v. American Academy

of Orthopaedic Surgeons, 470 U.S. 373, 380-81 (1985);Lolling

v. Patterson, 966 F.2d 230, 235 (7th Cir. 1992).

Indiana Law provides two separate doctrines under whicha

prior judgment bars litigation in a subsequent case: claim

preclusion and issue preclusion. Watson Rural Water Co. v.

Indiana Cities Water Corp.,540 N.E.2d 131, 135 (Ind. Ct. App.

1989).? Claim preclusion bars “a subsequent action on the same

claim between the same parties or those in privity with them.”

In Re Marriage of Moser, 469 N.E.2d 762, 765 (Ind. Ct. App.

1984) (emphasis in original; footnote on-dotted).

Issue preclusion bars the relitigation of “a particular

issue, which was adjudicated in [a] prior action.” Moser, 469

N.E.2d at 765 (emphasis added). For issue preclusion to apply,

3. Indiana courts occasionally call these doctrines “estoppel by

judgment” and “estoppel by verdict” respectively, Watson 540 N.E.2d at 135.

Some courts use the phrase “res judicata” only to mean “claim preclusion.”

See generally 18 Charles A. Wright, Arthur R. Miller, and Edward H. Cooper,

Federal Practice and Procedure § 4402, at 6 (1981) (discussing the varying

terminology used to describe these doctrines). For clarity we will use “claim

preclusion” and “issue preclusion.”

8a

Appendix A

however, the issue in the subsequent case must have been

“actually litigated and determined” in the prior litigation. /d. at

766. In other words, the determination of the issue must have

been essential to the court’s determination in the prior action.

Watson, 540 N.E.2d at 137. If the plaintiffs had a “full and fair

opportunity” to litigate the issue, any party may use the prior

litigation as a bar against the plaintiffs’ relitigation of that issue

in a subsequent proceeding. Sullivan v. American Casualty Co.,

605 N.E.2d 134, 139 (Ind. 1992).

Count I of the plaintiffs’ complaint filed in the district court

claimed that the defendants violated the Fourth Amendment by

entering upon the plaintiffs’ premises without a warrant and

seizing personal property. Prior to the district court’s reaching

the merits of this claim, the Elkhart Superior Court determined

that city officials’ entry onto plaintiffs’ property in order to

clean trash and debris without a warrant was constitutional.

Thus, the Fourth Amendment issue was ‘fully litigated and

decided’ by the state court. Therefore, the plaintiffs’ Count I

claim is barred by issue preclusion.

Although the claim is barred by issue preclusion, the

plaintiffs nevertheless argue that the district court should have

stayed the proceedings and refrained from ruling until all state

court appeals had been exhausted. They argue that under

Indiana law, if the Elkhart Superior Court’s judgment in favor

of the defendants is reversed, the judgment will not have any

preclusive effect on collateral proceedings and, thus, the

plaintiffs could have proceeded with their suit for damages in

federal court.

Because the preclusive effect of a state judgment in a

collateral federal case is governed by state law, Marrese, 470

9a

Appendix A

U.S. at 380-81; Lolling, 966 F.2d at 235, we must look to

Indiana law to determine whether we should give preclusive

effect to a case that has reached final judgment in a trial court

and which is currently being appealed. See Rogers v.

Desiderio, 58 F.3d 299, 301-02 (7th Cir. 1995) (applying the

principle that state law controls the preclusive effect of a

judgment to a situation where a judgment was on appeal within

the state system, but granting a stay because Illinois law was not

clear on this point).

Indiana law provides that a pending appeal does not

undermine the force of a judgment. Pollard v. Superior Court of

Marion County, 122 N.E.2d 612, 617-18 (Ind. 1954). More

specifically, “an appeal from the judgment of the trial court

does not have the effect of vacating the judgment of the trial

court. . . . [and] [s]uch judgment is in full force and effect until

it is reversed, and is binding on the parties as to every question

decided.” Jones v. American Family Mutual Ins. Co., 489

N.E.2d 160, 166 (Ind. Ct. App. 1986) (quoting Daugherty v.

Daugherty, 83 N.E.2d 485, 486 (Ind. Ct. App. 1949)). The fact

that the plaintiffs appealed the case and now seek transfer to the

Indiana Supreme Court, does not undermine the preclusive

effect of the Elkhart Superior Court’s judgment on issues

actuary decided. It is true that “a judgment which has been

reversed on its merits cannot have any claim precluding effect

[in subsequent cases].” Koors v. Great Southwest Fire Ins. Co.,

538 N.E.2d 259, 261 (Ind. Ct. App. 1989). However, given the

Indiana rule in Jones and Daugherty that a judgment has full

preclusive effect during the pendency of the appeal, it is clear

that the rule stated in Koors is limited to those cases that have

been previously reversed and has no bearing on cases that have

the potential to be reversed. Therefore, Indiana law directs us to

give preclusive effect to the judgment of the Elkhart Superior

sae i ath atta a

10a

Appendix A

Court notwithstanding the plaintiffs’ subsequent appeal and

current application for transfer to the Indiana Supreme Court.

Finally, the plaintiffs argue that federal court abstention is

appropriate pursuant to Colorado River Water Conservation

District v. United States, 424 U.S. 800 (1976). Under the

Colorado River abstention doctrine, “when the proper

exceptional circumstances exist, a federal court can abstain

from exercising jurisdiction and defer to the concurrent

jurisdiction of a state court when there is a parallel state court

action pending.” Rosser v. Chrysler Corp., 864 F.2d 1299, 1306

(7th Cir. 1988). Abstention is based upon considerations of

“(wise judicial administration, giving regard to conservation

of judicial resources and comprehensive disposition of

litigation as well as avoiding duplicative litigation.’ ” /d.

(quoting Colorado River, 424 U.S. at 817). District court

decisions to abstain are reviewed for abuse of discretion.

Lumen Constr. Inc. v. Brant Constr. Co., 780 F.2d 691, 695 (7th

Cir. 1985).

Abstention under Colorado River exists to avoid

duplicative litigation; in the Starzenski’s case, the state court

had already rendered a final judgment. As described above,

Indiana law provides that judgment of the Superior Court is

entitled to final and preclusive effect. Because the state court

had already rendered a decision, there was no reason for the

district court to stay proceedings pending a final outcome. See

Rosser, 864 F.2d at 1308 (staying federal litigation in personal

injury lawsuit pending final outcome of state lawsuit on the

same issues); Lumen, 780 F.2d at 696 (staying federal lawsuit

pending final judgment in state court and noting that res

judicata acts to prevent any conflict between final decisions of

state and federal courts). Based upon this factual situation, we

lla

Appendix A

hold that the district court did not abuse its discretion in

declining to stay the federal court proceedings.

B. Count II: Sophie Starzenski’s Claim for Unlawful

Arrest

Sophie Starzenski alleges in Count II of her complaint that

she was arrested without probable cause, and that Sergeant

Ernie Hili used excessive force in carrying out the arrest by

securing the handcuffs to her wrists too tightly. Upon Officer

Hill’s death, he was dismissed from the case. The remaining

defendants on Count II are the City of Elkhart, Captain Larry

Kasa (Hill’s Supervisor), the Elkhart Health and Sanitation

Department, and several Elkhart City Employees. The district

court granted summary judgment for the remaining defendants

because the plaintiff failed to submit evidence sufficient to

create a factual issue as to whether any of the defendants were

responsible for and/or participated in Hill's arrest.

In deciding whether the district court’s grant of summary

judgment was proper, we undertake review de novo, inquiring

as to whether there is any genuine issue of material fact and

whether the movants were entitled to judgment as a matter of

law. Santella v. City of Chicago, 936 F.2d 328, 331 (7th Cir.

1991); Fed. R. Civ. P. 56(c). In making this determination, we

look to the substantive law governing the claim. Anderson v.

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

“An individual cannot be held liable in a § 1983 action

unless he caused or participated in [the] alleged constitutional

deprivation.” Wolf-Lillie v. Sonquist,699 F.2d 864, 869 (7th Cir.

1983). Similarly, a municipality cannot be held vicariously

liable under § 1983 under a respondeat superior theory. Monell

12a

Appendix A

v. New York City Dept of Social Services, 436 U.S. 658, 691

(1978); Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986).

Therefore, even if Hill acted unconstitutionally, that alone

could not be grounds to hold any of the other defendants liable.

In order to prevail against the City of Elkhart, the Department of

Health and Sanitation, or any of the individual defendants, the

plaintiff must show that these defendants were directly at fault.

In order for the City of Elkhart or the Health and Sanitation

Department to be held liable under § 1983, the plaintiff must

demonstrate “a direct causal link between a municipal policy or

custom” and the claimed constitutional deprivation. City of

Canton, Ohio v. Harris,489 U.S. 378, 385 (1989); Cornfield v.

Consolidated H.S. Dist. No. 230,991 F.2d 1316, 1324 (7th Cir.

1993). As the plaintiff correctly points out, a municipality can

be held liable for a custom even though the body’s “official

decision-making channels” have not formally approved the

custom. Monell, 436 U.S. at 691. With regard to the individual

defendants, they can only be held liable if their actions caused

the claimed constitutional violation. Wolf-Lillie, 699 F.2d at

869.

Plaintiff claims that the remaining defendants conspired to

prevent her from protesting the clean-up of her property by

having her unlawfully arrested. Specifically, she cites two

meetings of the Health and Sanitation Commission, on

December 9, 1992 and February 3, 1993. As evidence of the

conspiracy, the plaintiff argues that at the December 9 meeting

the Elkhart City Attorney requested that a police officer be

present at the clean-up of the plaintiffs’ property and further,

during the meeting of February 3, the defendants agreed that the

plaintiff’s property would be cleaned on February 8, 1993. The

plaintiff’s argument is that the conspiracy ultimately led to her

13a

Appendix A

arrest on February 8. Moreover, she claims that the defendants

violated her lights by failing to give her notice of the meetings.

In the present case, the plaintiff has failed to present any

evidence to demonstrate that any of the actions of the municipal

defendants rose to the level of a constitutional violation. The

unconstitutional deprivation that the plaintiff claims is arrest

without probable cause. Even if she were arrested without

probable cause, the actions she attributes to the named

defendants did not have a causal connection to the

unconstitutional arrest. The plaintiff cites the two meetings,

one in which the parties agreed that a police officer should be

present at the clean-up, and another in which they chose a date

for the clean-up, as evidence of defendants’ liability for Hill’s

arresting the plaintiff. However, agreeing to have a police

officer present because of anticipated trouble is not

unconstitutional, and the plaintiff proffers no evidence (and in

fact she does not even argue) that the parties agreed to or

requested that the police officer arrest the plaintiff without

probable cause. Thus, the plaintiff has failed to raise an issue of

material fact as to whether the individual defendants or the

municipal entities caused her to be arrested without probable

cause. Summary judgment, therefore, was properly awarded in

favor of the defendants.

Additionally, Starzenski claims that Captain Kasa, as well

as being part of the conspiracy, is responsible for and therefore

liable for her unlawful arrest because he directed Hill to arrest

her if she returned to the clean-up site. The district court found

that there was no evidence that Officer Kasa ordered her to be

arrested unlawfully, and thus the plaintiff failed to make the

requisite showing to survive summary judgment.

l4a

Appendix A

Liability under § 1983 must be “predicated upon personal

responsibility.” Schultz v. Baumgart, 738 F.2d 231, 238 (7th

Cir. 1984). In order to hold a supervisory official, such as Kasa,

liable for the actions of his subordinate, a plaintiff must

demonstrate that he “knowingly, willfully, or at least recklessly

caused the alleged deprivation. . . .” Rascon, 803 F.2d at 274.

Here, the alleged deprivation is arrest without probable cause,

and therefore the narrow issue we must decide is whether the

plaintiff put forward evidence sufficient to establish that Kasa

caused the plaintiff to be arrested without probable cause to

survive summary judgment.

Summary judgment is reviewed de novo; the standard is as

follows:

We must review the record and draw all

inferences in the light most favorable to the

non-movant, but a scintilla of evidence in

support of the non-movant’s position is

insufficient to successfully oppose

summary judgment; there must be evidence

on which ajury could reasonably find for the

plaintiff.

Lawshe v. Simpson, 16 F.3d 1475, 1478 (7th Cir. 1994)

(citing Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991);

Anderson, 477 U.S. at 252.

Plaintiff argues that she put forward sufficient evidence to

survive summary judgment on the issue of Kasa’s liability for

her arrest. In support thereof, the plaintiff cites the fact that on

February 8, 1993, Kasa arrived at the scene of the clean-up at

Officer Hill's request and engaged the plaintiff in a discussion.

15a

Appendix A

During this discussion, Kasa told the plaintiff that if she

continued to create a disturbance by using abusive language and

interfering with the clean-up, she would be arrested. He told her

that she should either be quiet or leave. In addition, following

this conversation the plaintiff left the scene. Hill's arrest report

states that at that point Kasa told Hill that if the plaintiff

returned to arrest her for disorderly conduct. The plaintiff

returned later that day and once again yelled and cursed at the

workers cleaning her property. Hill warned her not to continue

disturbing the workers. Plaintiff continued to interfere with the

clean-up procedure, and at this time Hill arrested her. The

plaintiff argues that Kasa’s actions and instructions caused Hill

to arrest her without probable cause.

In support of her claim, Starzenski relies upon Officer

Hill’s arrest report, which merely states that “[Captain] Kasa

.. advised me that if she returned to arrest her for disorderly

conduct” However, the arrest report is neither the most detailed

document in the police files nor is it all the evidence the police

had at their disposal when they decided to arrest her for

disorderly conduct. See United States v. Randall, 947 F.2d

1314, 1319 (7th Cir. 1991) (observing that the “police who

actually make the arrest need not personally know all the facts

that constitute probable cause . . . the arrest is proper so long as

the knowledge of the officer directing the arrest, or the

collective knowledge of the agency he works for, is sufficient to

constitute probable cause.”) (quoting United States v. Valencia,

913 F.2d 378, 382-83 (7th Cir. 1990)). Rather Hill's arrest

report is nothing but a two paragraph summary of many events

that clearly does not spell out every detail of what transpired on

February 8, 1993. Kasa might have said and meant, if she

returns arrest her and charge her with disorderly conduct.

Conversely, he could have meant if she returns and engages in

l6a

Appendix A

disorderly conduct, then arrest her and charge her with that

offense. Importantly, Hill’s arrest report also documents the

fact that the plaintiff returned to the scene and at once began

shouting at the workers engaged in the clean-up and acting ina

disorderly manner. Hill’s report stated that after she yelled at

the workers he advised her to quiet down and that the plaintiff

continued to yell. It was at this point that Hill arrested the

plaintiff for “disorderly conduct by loud noise.”

The sequence of events establishes that Hill did not arrest

her immediately upon her return, but only after he directed her

to quiet down and she refused and continued to yell at and

interfere with the workers. It is apparent that Hill did not

understand Kasa to have instructed him to arrest the plaintiff

without the plaintiff’s having engaged in illegal action. This is

made clear by Hill’s answers to interrogatories when he replied

that his instructions regarding arresting the plaintiff were, “if

[plaintiff] continued to interfere or disrupt the workers who

were attempting to clean the premises that I was to arrest her for

disorderly conduct.” Thus, Starzenski has not provided

sufficient evidence that Captain Kasa ordered Officer Hill to

unlawfully arrest Starzenski to survive the defendants’ motion

for summary judgment.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

17a

APPENDIX B — MEMORANDUM AND ORDER OF THE

UNITED STATES DISTRICT COURT NORTHERN

DISTRICT OF INDIANA DATED FEBRUARY 27, 1995

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

No. 3:93 cv 401 AS

SOPHIE STARZENSKI, KAZMER STARZENSKI, and

GENNIE STARZENSKI,

Plaintiffs

v.

CITY OF ELKHART, ELKHART HEALTH AND

SANITATION DEPARTMENT, LEROY ROBINSON, Dir. of

Health and San. Dept., RAY MINEGAR, Health Enforcement

Officer, FRAN CURRY, Health Enforcement Officer,

RICHARD L. MOORE, Street Comm'r, ERNIE HILL,)

Elkhart City Police Officer, andLARRY KASA, Elkhart City

PoliceOfficer,

Defendants

MEMORANDUM AND ORDER

On January 26, 1995 this court granted partial summary

judgment to the defendants as to Count I of the plaintiffs’

Complaint, and dismissed plaintiffs Kazmer Starzenski and

Gennie Starzenski. The ground for summary judgment and

dismissal was to give full faith and credit to the judgment order

of the Elkhart Superior Court II, which on November 10, 1994

had ruled against the plaintiffs on issues substantially the same

18a

Appendix B

as those contained in Count I of their federal complaint.' On

February 16, 1995 this court held a status call as to the

remaining § 1983 (unlawful arrest/excessive force) claim in

this case.

COUNTI

Although this court has clearly already ruled on Count I

(See Order of January 26, 1995), at the status call the parties

were still haggling over that issue. The plaintiffs refuse to

concede that collateral estoppel applies to their Fourth

Amendment and Fourteenth Amendment claims.’ They point

out the strong denunciation of the defendants’ actions by

Elkhart Superior Court II Judge Platt. Judge Platt called the

defendants’ actions “reprehensible.” Starzenski v. Elkhart, No.

20D029302CP107, Judgment Order (Elkhart Sup. Court II,

Nov. 10, 1994) [hereinafter “Elkhart Court Order”) at 10. Judge

Platt also stated that the defendants’ witnesses were coached

and lying, and that their testimony was “contrived and

programmed.” /d. at 11-12. Judge Platt also believed that the

City suspended one worker for testifying (contrary to the

coaching) that there were thefts of the plaintiffs’ property

during the cleanup. /d. at 11. There is probably no other

municipality in the Northern District of Indiana which has

1. This case is in an unusual procedural posture. This court may not

make factual findings in deciding on summary judgment, but in this case res

judicata requires that the court respect the extensive factual findings

already entered by Judge Platt.

2. “The defense of res judicata is universally respected, but actually

not very well liked.” Riordan v. Ferguson, 147 F.2d 983, 988 (C.C.A.2d

1945) (J. Clark, dissenting); see also Wright, Law of Federal Courts, 4th Ed.

678 (West 1983).

19a

Appendix B

embroiled itself in as much litigation as the City of Elkhart, and

that act may well portend even more.

Judge Platt carefully recounted the evidence, citing step by

step the due process which had been afforded to the plaintiffs,

some of which they took advantage of and some of which they

did not. See id. at3-5. There was notice given of hearings in the

matter, at which the plaintiff appeared, presented evidence,

cross examined witnesses, and extensively argued her position.

Id. at 3-4. Judge Platt reviewed the recording of the July 24,

1991 hearing and noted that the hearing officer made clear,

concise, and specific findings of fact, and clearly advised the

plaintiff of her right to appeal. Jd. at 4. Plaintiff did not appeal.

The City delayed taking action to effectuate the cleanup order,

and despite no legal requirement to do so, held another hearing

in the matter on October 21, 1992 at which the plaintiff again

appeared and argued her case. Jd. at 4. Again, plaintiff received

an adverse ruling and was advised of her rights to appeal. Jd. at

4-5. Again, plaintiff did not appeal. Approximately three

months later a written copy of the October 21, 1992 order

authorizing cleanup was delivered to the plaintiff and

defendants. Jd. at 5. Soon thereafter, on February 8, 1993 the

defendants commenced cleanup of the Starzenski premises.

The defendants did not advise the plaintiff of the time and

date when they intended to clean her premises. The evidence

demonstrated that the City intentionally did not give specific

notice, so as to avoid having the plaintiff present. /d. at 9-10.

Judge Platt did not like or approve of the City’s method — but

that does not make it illegal, and he found that it was not. Judge

Platt believed that the City’s method was unfortunate and

unwise, and led to the confrontational situation, but he did not

find that it violated the plaintiffs’ rights.

20a

Appendix B

Judge Platt believes that the City’s previous failures to act

led to areasonable belief in the plaintiff that the City would not

enforce its valid cleanup orders. Jd. at 9. That is probably true,

but irrelevant. Judge Platt certainly did not find that the City

should have been estopped from enforcing, the valid cleanup

orders. Judge Platt believes that the failure to specifically

notify the plaintiff of when the cleanup would occur is what led

to the “confrontational situation.” Jd. at 10. Possibly true. This

court is possibly bound by that determination throuzh res

judicata as a finding of fact. However, it is probably true that

the plaintiff, who had defied cleanup orders for thirteen years,

would have defied this deadline as well and the situation might

in fact have been even more explosive. Had she been on specific

notice, the plaintiff almost certainly would have been waiting

for the defendants on February 8, 1993, and the situation might

have been worse. This court can not fault the City quite as much

as Judge Platt for wanting to effectuate the cleanup without

Sophie Starzenski’s presence. Judge Platt, openly empathetic

towards the plaintiff, found that when she came upon the scene

she “became somewhat abusive to City employees and

generally disrupted the progress of the City’s attempt to enforce

the administrative order.” Jd. at 6.

This court has reviewed the videotape of the cleanup

operation, as did Judge Platt. Videotaping such operations is an

excellent and indispensable practice. The scene is quite

difficult to describe on paper. The court wishes to respect the

feelings of Ms. Starzenski, whose situation captured on video

was heart-wrenching. However, the record must be clear.

Frankly, the court would not have believed and could not have

appreciated the extent of such incredibly squalid conditions if

not for the video evidence. The house and outbuildings were

quite literally filled, in some cases to the ceilings, with ajumble

2la

Appendix B

of items for which there is really no other word than refuse. That

is stated with the greatest deference to Ms. Starzenski. The

interior looked like a landfill. The video shows the workers

picking up stacks of items that turned to dust or fell to pieces in

their hands. This was not merely a messy house, or an

overgrown collection of odds and ends. It can be described as

nothing less than a health and safety hazard, however loose the

Elkhart Code might be. The house as it was could not possibly

have been legally inhabitable. The court is sure that there were

some items of value mixed in with the mass, especially items of

sentimental value to Ms. Starzenski. Her anger evident on the

video was matched only by her anguish. The court has great

empathy for Ms. Starzenski, who felt that all of her things were

being stolen and divvied up between the workers and police.

However, given all of the circumstances the court can conceive

of no more reasonable way the job could have been done.

Early comments by the workers caught on video indicate

that the plan was to try to divide the good from the refuse.

However, they appeared to mostly give up on that — the

workers cleaned out the vast mass with shovels and rakes, intoa

front-end loader which then dumped it into a dump truck. Under

the circumstances quite frankly that might have been the only

reasonable alternative. The task was truly daunting. A half

dozen workers could have spent weeks sifting through the

accumulated mass, separating the good from the bad. This court

can not hold those workers or the City to that standard. Ms.

Starzenski had thirteen years to separate the good from the

refuse, and get her property in compliance with the law. For two

years she had known that the City had an order permitting it to

come in and clean it up. She clearly was not willing to part with

anything at all, but the City of Elkhart had afforded her all due

process and it had every right to haul off the accumulation

without her permission.

22a

Appendix B

The videotaped portion of Ms. Sophie Starzenski at 1015

West Garfield seems to have been of the second time she was

present, after she had been to her lawyer. See Arrest Report by

Officer Hill, Plaintiffs’ Appendix D, Exhibit 38. She had been

there and left earlier, and would return a third time later and be

arrested. Neither the first nor third visits were videotaped. The

cameraman followed Ms. Starzenski’s practically every move.

There was quite a mess and between six and ten workers, and

she was outraged. Officer Ernie Hill (who is now deceased and

thus no longer a defendant) was outside the house and prevented

her from entering it. While the circumstances were inherently

upsetting and perhaps disrespectful, the behavior of those

actually on site, especially Officer Ernie Hill, was relatively

patient and respectful towards the plaintiff. Ms. Starzenski got

in the face of almost everyone present, especially Hill who

stayed near her at all times, and berated them loudly and

ceaselessly. Most unfortunately, the tape ended when she went

across the street and into a neighbor’s house, which was at some

point before her arrest. Up until the point the tape ended, she

was treated with considerable and respectable restraint. The

tape shows neither her physically interfering with the workers

nor them physically interfering with her. At some point later,

things apparently took a different turn and Ms. Starzenski was

arrested.

The plaintiffs point out that Judge Platt stated his belief that

the City of Elkhart chose to proceed with the cleanup in a

manner “calculated to deprive Plaintiff of notice and the

opportunity to be present during the cleanup.” Elkhart Court

Order at 10. However, Judge Platt had already determined that

notice of the actual cleanup and a warrant for entering the

premises was not constitutionally required. See id. at5. Judge

Platt’s comment about intentionally depriving the plaintiffs of

23a

Appendix B

notice was in the context of expressing empathy with the

plaintiffs’ feelings, was clearly dicta, and in no way supports a

constitutional claim. While Judge Platt clearly believed that the

method used by the City of Elkhart was hi-handed and unwise,

he also clearly held that it was not unconstitutional or illegal.

Those legal and factual determinations are binding on this court

in this case, not Judge Platt’. personal reaction.

It is true that Judge Platt ordered any further cleanups to be

preceded by sixty days notice to the plaintiffs. Jd. at 12.

However, it is apparent that he was trying to fashion an

equitable compromise, taking into account what he considered

the City’s reprehensible cleanup behavior (and possibly taking

into account the City’s equally reprehensible trial behavior).

See id. at 8, 12. Perhaps Judge Platt felt quite sorry for the

plaintiffs, and/or perhaps he was punishing the defendants ina

small way.’ Judge Platt indicates that his future notice

requirement is “authorized” by the administrative cleanup

order. Jd. at 8. That indicates to this court that Judge Platt felt he

had the inherent power to require future notice, but the previous

lack of notice was not illegal. This court interprets Judge Platt’s

judgmentas finding entirely against the plaintiffs on the issues,

but also choosing for reasons of his own to modify the

administrative order as to future cleanups. The defendants may

take up the matter with the Indiana Court of Appeals if they

wish. Whatever the basis of his sixty-days-notice injunction,

Judge Platt clearly held that there was no constitutional

violation, which is the only basis of jurisdiction in this court.

3. Given his vitriolic comments about the defendants’ trial behavior, it

is a miracle he did not impose severe sanctions. This court might very well

react differently to such an affront.

24a

Appendix B

No one, certainly not this court, required the plaintiffs to

proceed in state court with their claims. They chose to do so.‘

The state-court forum is equally capable as this court to decide

federal constitutional issues. Once decided, the fight is over.

This court does not sit. as an appeals court for the Elkhart

Superior Court II, even on federal constitutional issues. There

can be no second bite of the apple. See Nelson v. Murphy, No.

94-1764, slip op. at 4 (7th Cir. Jan. 4, 1995).

The plaintiffs at the status call of February 16, 1995

contended that the takings clause violation issue had not been

dealt with by the Elkhart Superior Court 11, and thus was not

res judicata, Plaintiffs contended that they raised the takings

issue with Judge Platt, but he did not address it in his judgment

order of November 10, 1994. It is true that no takings issue was

discussed in that order. This court does not know the extent to

which the issue was pressed with Judge Platt. No matter. Claim

preclusion bars that claim here and now just as surely as if Judge

Platt had devoted thirty pages of writing to it.

Claim preclusion prohibits this court from litigating issues

which were raised or could have been raised in another court

proceeding dealing with the same incident. See Wright, Law of

Federal Courts, 4th Ed. 680-81; see also Restatement Second

of Judgments, 1982, §19. “To the extent that a second action

advances any part of the same claim or cause of action, an

otherwise qualified judgment in the first action ‘prevents

4. In its earlier order denying abstention this court stated: “This court

warns the plaintiffs that by seeking an unreserved Indiana court final

adjudication of their rights, they may well be electing to forgo their right to

relitigate the same issues in a federal district court. See England, 375 U.S.

[411,417 (1964)).” Memorandum and Order of January 10, 1994 at 16.

ee en

ty

25a

Appendix B

litigation of all grounds for, or defenses to, recovery that were

previously available to the parties, regardless of whether they

were asserted or determined in the prior proceeding.’ ” 18

Wright, Miller & Cooper, Jurisdiction §4407 p.48 (West 1981)

(quoting Brown vy. Felsen, 99 S.Ct. 2205, 2209, 442 U.S. 127

(1979)). As this court clearly stated in its memorandum and

order of January 26, 1995, res judicata prevents re-liti gation of

claims based on the same operative facts dealt with by Judge

Platt. Whether Judge Platt expressly ruled on the Takings issue

is not relevant.

Be that as it may, the court further notes that the plaintiffs

contend that they did raise the Takings issue to Judge Platt.

Since it was squarely before him, and he ruled in favor of the

defendants, it is inherent in Judge Platt’s judgment that he found

against plaintiffs on any Takings issue. If that was in error, the

plaintiff’s remedy lies solely with the Indiana Court of

Appeals, and not this court.’

The court will make one final comment regarding Count I.

In its order of January 10, 1994, this court declined to abstain,

noting that piecemeal litigation could not be avoided since the

substance of Count II here was not reflected in the state court

case. This court fully expected the state court resolution to moot

Count I here, but did not want to foreclose the plaintiff's

unlawful arrest claim. Now, the plaintiff does not feel that Judge

5. Ifthis court had to reach the merits on the Takings Clause issue, the

fact that Judge Platt ruled quite explicitly and precisely that the entering of

the property and hauling off of the items was a lawful act under a valid

administrative order would preclude this court from finding in favor of the

plaintiffs. The plaintiffs, property was adjudged a nuisance, she had been

given a great deal of due process, and the City acted lawfully in going in and

removing the nuisance.

26a

Appendix B

Platt adequately covered all of her Count I constitutional

arguments — specifically the Takings Clause issue. Asking this

court to adjudicate a Takings issue based on the same facts and

legal arguments raised in state court would involve exactly the

kind of “piecemeal litigation” that should be avoided under

Colorado River Water Conservation District v. United States,

424 U.S. 800, 817 (1976). If collateral estoppel did not moot all

of Count I here, this court would amend its January 10, 1994

memorandum and order to grant abstention as to all of Count I.

COUNT II— UNLAWFUL ARREST

As this court has previously stated, the only issue left in

this case is the Count II unlawful arrest/excessive force claim

under 42 U.S.C. § 1983. Count II only concerns plaintiff Sophie

Starzenski. She was arrested at the cleanup site by officer Ernie

Hill for disorderly conduct. It was primarily Count II which led

this court to refuse to abstain from this case (See Memorandum

and Order of January 10, 1994), since the unlawful arrest issue

was not being pursued in state court, the defendants relevant to

Count II were not in the state-court case, and piecemeal

litigation could not be avoided by abstaining. Not surprisingly,

that is the issue which is left for this court to adjudicate.

It is highly unfortunate that the videotape stopped when

Ms. Starzenski entered her neighbor’s home. It was sometime

later that she was arrested for disorderly conduct. The tape

shows Officer Hill telling the plaintiff that she would be

arrested for disorderly conduct if she did not leave. Plaintiffs’

Reply at 4-5 (quoting Transcript of City Video at 9). The

plaintiff acknowledges that Officer Kasa was no longer present

when Sophie was actually arrested. The tape itself shows

Sophie interfering with the workers’ efforts, and Judge Platt

—— 8 ee—e———————————eeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEEeEeEeEeOoreeeee

27a

Appendix B

also found that to be the case (see Elkhart Court Order at 6). For

the most part she berated them, frequently choosing an

individual and advancing on him to argue, shout, and gesture.

She did get physically in the way at times, and could have been

considered intimidating or even threatening by those on whom

she advanced since she was only barely under self-control.

Although, while she told those present they would surely rot in

hell, and she hoped someone did to them what they were doing

to her, she did not appear to threaten anyone with personal

violence while the videotape was running.

The defendants’ summary judgment motion as to Count II

has been fully briefed. The court first notes that Officer Ernie

Hill, the arresting officer, is deceased and was dismissed from

this suit on July 28, 1994. The only defendants left relevant to

Count II are Officer (then Captain now Lieutenant) Larry Kasa

and the City of Elkhart. The plaintiff acknowledges that Monell

v. Dept. of Social Services, 436 U.S. 658 (1978), precludes

holding Kasa or the City liable for Officer Hill’s arrest on the

basis of respondeat superior. See Patton v. Przybylski, 822

F.2d 697, 701 (7th Cir. 1987) (“Section 1983 does not permit a

suit based ona theory of superior’s liability.”); see also Strauss

v. City of Chicago, 760 F.2d 765, 766-67 (7th Cir. 1985).

Plaintiffs hope to hold Kasa and the City liable by showing that

there was a plan or conspiracy to arrest Sophie Starzenski if she

showed up at the premises. The plaintiff puts forth evidence of a

“plan” to have officers present at the cleanup because they

expected trouble from Ms. Starzenski. The problem with the

plaintiff’s evidence is that in the light most favorable to the

plaintiff it only demonstrates that the City wanted police

present in case trouble arose. There is nothing illegal about that,

and under the circumstances it was probably most prudent.

There is no evidence that had Ms. Starzenski heeded the

officers’ warnings, she would have still been arrested.

28a

Appendix B

In order to hold the City or superiors liable under Section

1983, “official policy must have ‘caused’ an employee to

violate another's constitutional rights.” Graham v. Sauk

Prairie Police Comm'n, 915 F.2d 1085, 1099 (7th Cir. 1990)

(citing Monell, 436 U.S. at 691-92). In this case, the “policy”

(having a policeman present in case Sophie caused trouble) was

itself not unconstitutional, and did not cause any

unconstitutional treatment of Sophie Starzenski.See Graham,

915 F.2d at 1100; see also City of Oklahoma City v. Tuttle, 471

U.S. 808, 820 (1985).° The videotape shows very clearly that if

Officer Hill had not been present, Ms. Starzenski would have

entered the premises being cleaned. It appeared quite difficult

to prevent her interference with the operation. Her outrage was

extreme. However empathetic the court may feel toward Ms.

Starzenski, she very clearly is willing and able to cause a

significant disruption. The City had been dealing with Ms.

Starzenski for many years. Interestingly, the tape shows that she

knew many of the workers by name.

The case against Officer Hill would have revolved around

the issues of whether probable cause existed to arrest Sophie

Starzenski on February 8, 1995, and whether excessive force

was used. Officer Hill arrested Sophie, he is the only person

charged with excessive force, and he is no longer a defendant

here. There is absolutely no evidence that the City of Elkhart or

Captain Kasa instructed Officer Hill to use excessive force.

Therefore, there can be no finding of liability against the City or

6. The Supreme Court in City of Canton, Ohio v. Harris, 489 U.S. 378,

109 S.Ct. 1197 (1989), created an exception from the proposition that only

unconstitutional policies are actionable under § 1983. 109 S.Ct. at 1204.

However, Canton is inapplicable here. There are no allegations or proof that

the City or Kasa were deliberately indifferent or that the failure to train

Officer Hill led to injuries of Sophie Starzenski.

29a

Appendix B

Kasa on that claim. The only issue remaining is whether the

City and/or Kasa conspired to arrest Sophie without probable

cause.

Officer Kasa was not at the scene at the time of the arrest,

but had been there earlier. He had spoken with Robinson,

Minegar, and Hill. Officer Kasa told Sophie that, “they're going

to continue their cleaning. If you — are you gonna listen to me?

[Sophie replies yes] If you continue to make noise, and yell, and

scream, or get in their way, you're gonna go to jail.” Plaintiffs’

Reply at 6-7 (quoting Transcript of City Video at 19). Sophie

replied, “I am going to go to jail —,” to which Kasa replied,

“The best thing for you todo. . . The best thing for you to do is

just stand back and watch or else just leave.” Jd.

It is interesting to note that on the video Officer Hill

appears to be patient and respectful to the plaintiff, under the

circumstances. In fact, in his report Officer Hill notes that when

Sophie said she wanted to speak to her attorney he drove her to

attorney McCaslin’s office, waited for her, and then transported

her to attorney Bill Cohen's. Supplemental Arrest Report,

Plaintiffs’ Appendix D, Exhibit 38. He wrote that he left Sophie

there with the understanding that he would take her back to

1015 West Garfield to retrieve her bicycle. Jd. Officer Hill

stated in his report that later Sophie came back a third time on

her bicycle and confronted the remaining City workers,

shouting and cursing. /d. He wrote that he told her to quiet

down and she did not. Jd. Officer Hill placed Sophie under

arrest for disorderly conduct. She tried to walk away and

Officer Hill handcuffed her and transported her and her bicycle

downtown without further incident. /d. The court notes that the

charges were later dropped.

30a

Appendix B

The plaintiffs’ allegations against Officer Kasa would

possibly be sufficient to withstand a motion to dismiss, but a

motion for summary judgment requires an offer of proof. The

plaintiff has sufficiently raised a question of fact as to whether

Officer Kasa had anything to do with Sophie’s arrest. It appears

that he did participate in discussions regarding whether she

would be arrested for disorderly conduct, even authorizing

Officer Hill to arrest her. However, the remaining defendants

did not effectuate the actual arrest, and can not be held liable for

ordering or planning Sophie Starzenski’s arrest, but rather only

for ordering or planning her unlawful arrest. There is a

complete lack of proof that Officer Kasa ordered her unlawful

arrest, or that the City planned to have her unlawfully arrested.

In support of her conspiracy theory, plaintiff states that the

minutes of the December 9, 1992 meeting of the Health and

Sanitation Commission show that the City Attorney expected

trouble, and requested Officer Cutler to be present at the

cleanup. Officer Cutler stated he would be present, and would

arrest Sophie if he needed to. Again, this does not support a

finding, that there was a plan to unlawfully arrest Sophie. The

video shows that Sophie arrived and the officers’ and city

workers’ fears were reasonable and prudent.

The rest of the Plaintiffs’ [Response] to the Motion for

Summary Judgment as to Count II is completely irrelevant. It

argues whether the City “knew” there was a warrant

requirement, even though this brief was filed after Judge Platt

had ruled that there was no warrant requirement. It also

discusses Judge Platt’s belief that city workers were

programmed or lying regarding their testimony about the

cleanup. That is also irrelevant as to the entirely separate

(Count 11) issue of whether Officer Ernie Hill unlawfully

arrested Sophie at the order of Kasa or the City.

3la

Appendix B

There was certainly a reasonable belief that Sophie

Starzenski would create a disturbance if she arrived at 1015

West Garfield during the cleanup. As the video shows, create a

scene she did. She was eventually arrested, on her third visit to

the property. If there was a plan to arrest her just for coming to

the property no matter how she behaved (of which there is no

proof), that plan certainly was not carried out. She was indulged

considerably, even to the extent of receiving Elkhart Police

limousine service to two different attorneys. Her arrest came

only after a long day of tirades and interference against the City

workers who were lawfully doing their jobs. She had been

warned repeatedly, and refused to stop interfering.

The plaintiff attempts to present evidence that there was a

“plan” to arrest Sophie. However, that is not the issue. The issue

is whether there was a plan to unlawfully arrest Sophie, and

whether she was in fact unlawfully arrested. The plaintiff has

not put forth a shred of evidence to support that claim. She has

not disputed that she ranted and berated the workers and that,

while she did not physically assault them, her behavior could

certainly reasonably be considered interference with their

performance of their jobs. The video shows that she went after

anyone who moved. Judge Platt entered a finding of fact

binding on this court — that Sophie “became somewhat abusive

to City employees and generally disrupted the progress of the

City’s attempt to enforce the administrative order.” Elkhart

Court Order at 6. The complete lack of evidence tending to

prove that Sophie Starzenski was the victim of a plan to arrest

her without probable cause can not survive the defendants’

motion for summary judgment. Considering Sophie's behavior

at the property, the City’s “plan” to have an officer present was

not only legal, it was imminently reasonable.

32a

Appendix B

If Officer Ernie Hill, who actually arrested Sophie, was

still a defendant in this case, Sophie might be able to avoid

summary judgment by disputing the officer’s account of what

transpired and alleging that she was not behaving disorderly, or

that he used excessive force. However, Officer Hill is dead.

There can be no more claims against him, and Monell v. Dept. of

Social Services, 436 U.S. 658, will not permit the plaintiff to

hold Kasa or the City liable through respondeat superior for

any constitutional violations by Hill. Kasa and the City must be

shown to have independently violated the plaintiff's

constitutional rights, and there is simply no proof of that. At

most, the plaintiff has shown that there was a plan to arrest

Sophie if the need arose. That is what the police are supposed to

do, and there is nothing unconstitutional about that.

CONCLUSION

Based on the foregoing discussion, no triable issues remain

in this case. The judgment ruling of the Elkhart Superior Court

II collaterally estopps this court from reaching the merits of

Count I. Officer Hill’s death eviscerated plaintiff's Count II,

and plaintiff has not put forth sufficient evidence of an

unconstitutional conspiracy to hold liable Kasa or the City on

Count II. Therefore, this court has no choice but to GRANT

summary judgment to the defendants. Each party will bear its

own costs. This case is DISMISSED. SO ORDERED.

DATED: February 27, 1995

s/ Allen Sharp

CHIEF JUDGE ALLEN SHARP

UNITED STATES DISTRICT COURT