Indiana Court Decisions – Dec. 1-15, 2021

7th CircuitCourt of Appeals

Dec. 6

Civil Plenary-Excessive Force/Summary Judgment

Sachin Gupta v. Chad Melloh and City of Indianapolis

19-2723

The 7th Circuit Court of Appeals is sending an excessive force case back down to the U.S. District Court for the Southern District of Indiana after it found the district court erroneously awarded summary judgment to an Indianapolis police officer and the city.

On appeal, the 7th Circuit reversed in Sachin Gupta v. Chad Melloh and City of Indianapolis, 19-2723, finding a factfinder was needed due to material disputes.

In 2017, Sachin Gupta drank too many alcoholic beverages on a business trip and found himself extremely intoxicated and struggling to use his key to open the lobby door of the Microtel Inn in Indianapolis. The problem, according to the 7th Circuit, was not with the keycard to the hotel, but with the fact that Gupta was a guest at a different hotel.

Frustrated and belligerent, Gupta began yelling at the hotel clerk, who refused to open the door and instead called the police.

Officer Shawn Cook of the Indianapolis Metropolitan Police Department arrived at the hotel first. Cook noticed an overturned brochure rack and observed that Gupta was unsteady on his feet, slurring his speech and needed to hold on to a counter to keep from falling.

Gupta complied when Cook asked him to put his hands behind his back, and he was handcuffed without any resistance, although the officer did need to hold on to Gupta to steady him.

Officer Chad Melloh arrived a few minutes after Cook, while Gupta was still in the same intoxicated state and swaying unsteadily. When Cook left the vestibule to speak with the hotel clerk, he asked Melloh to supervise Gupta. Melloh later testified that he repeatedly asked Gupta to come outside, but Gupta refused and didn’t move.

According to his brief, Melloh walked over to Gupta and placed his right hand on Gupta’s left arm, then started to walk toward the front door, urging Gupta to come along. Under Melloh’s account, Gupta stiffened his body and jerked away from the officer, at which point Melloh concluded Gupta was resisting arrest and decided to give him a more forceful tug to get him out the door.

Gupta, however, denied that he resisted arrest and asserted that despite his lack of resistance, and the fact that the video doesn’t show him stiffening or jerking his body, Melloh forcefully and unnecessarily jerked him forward.

All parties agreed in large part on what happened next. As Melloh forcefully pulled on Gupta’s arm, Gupta hurtled forward and, without the use of his handcuffed arms to break his fall, hit the floor face-down. Melloh picked up Gupta by the back of the arms, dragged him out to the sidewalk and pulled him up into a seated position on the sidewalk.

Melloh asserted that he evaluated Gupta’s condition before moving him, while Gupta argued the move occurred immediately, without time for assessment.

Photographs taken afterward show blood on the vestibule floor and in Gupta’s nose and mouth. Gupta sustained a fracture of the C5 vertebra in his neck during the incident.

Gupta later sued Melloh and the city of Indianapolis, claiming the officer used excessive force. But the Indiana Southern District Court dismissed Gupta’s excessive force claim and granted summary judgment to the defendants.

On appeal, the 7th Circuit ruled there are still material disputes of fact that make summary judgement inappropriate.

Specifically as to the excessive force claim, the 7th Circuit wrote that it couldn’t determine whether Melloh used greater force than was reasonably necessary during an arrest until a factfinder resolved how much force was used and what level of force the officer needed to use to effectuate the arrest.

“Although it is certainly true that a court need not give credence to facts based on speculation or conjecture … in this case, the facts in the light most favorable to Gupta do not come from his conjecture, but rather come from three sources: first, the video evidence; second, Melloh’s affidavit, and third, Melloh’s deposition testimony,” Judge Ilana Rovner wrote for the appellate panel. “Gupta has satisfied the requirement that he identify specific, admissible evidence showing that there is a genuine dispute of material fact for trial.”

For the same reason, the 7th Circuit determined it was “impossible” to conclude on summary judgment whether Melloh was entitled to qualified immunity, if he falsified allegations in the probable cause affidavit and if battery claims should also be dismissed.

The case was remanded for further proceedings in the district court.

The 7th Circuit noted in a footnote that Rovner was not an original member of the panel in Gupta’s case. Now-Justice Amy Coney Barrett had heard the oral arguments and considered the case before her appointment to the U.S. Supreme Court.

Rovner was selected to replace Barrett on the panel, and she reviewed the briefing, the record and a recording of the oral arguments before penning the appellate opinion.

Indiana Supreme Court

Dec. 6

Civil Tort-Trucking/Liability

Paul Michael Wilkes v. Celadon Group, Inc., et al.

19S-CT-564

In a case of first impression, a split Indiana Supreme Court adopted the Savage rule in finding that Celadon Group was not liable for injuries a truck driver sustained when he opened the doors of a trailer and a load of “used, oily trays” fell on him.

Paul Wilkes was dispatched by his employer, Knight Transportation, to the Celadon warehouse in Columbus to pick up a trailer filled with trays. Cummins Inc. used the molded container trays to house “oily engine parts.”

The Celadon employee loading Wilkes’ trailer had no formal training in how to distribute loads, according to court documents. He just stacked the Cummins containers on top of each other and did not secure them together. Wilkes looked inside the trailer and saw the stacks rising to nearly the top of its 13-foot ceiling.

Then Wilkes closed and locked the doors and drove the load to North Carolina. Along the way, he did not feel the load shift, but when he opened the trailer doors, some of the trays fell and injured him.

Wilkes sued Cummins, Celadon and their affiliated companies. The Marion Superior Court awarded summary judge to Celadon and Cummins on the issue of whether they were negligent in packing, loading and failing to secure the trailer’s cargo. Subsequently, the Court of Appeals of Indiana reversed and remanded as to Celadon.

The Supreme Court granted transfer and heard oral arguments. However, after the arguments, Celadon Group filed for bankruptcy in Delaware federal court, which caused the Supreme Court to stay the proceedings in the Wilkes case until the bankruptcy court lifted the automatic stay.

When that federal court did grant Wilkes relief from the automatic stay so he could prosecute his claims in Indiana, the Supreme Court lifted the stay.

In deciding the case, the Supreme Court first decided to adopt the “longstanding federal common-law rule” from United States v. Savage Truck Line, Inc., 209 F.2d 442, 445 (4th Cir. 1053). Writing for the majority, Justice Geoffrey Slaughter wrote that the policy and rationale of Savage were well-founded and that the rule is consistent with Indiana law.

Next, the Supreme Court applied the rule to the Wilkes case, and the majority found Celadon was not liable for Wilkes’ injuries.

“Having adopted the Savage rule, we apply it to this record and consider, first, whether Celadon assumed a legal duty of safe loading. We conclude it did,” Slaughter wrote in Paul Michael Wilkes v. Celadon Group, Inc., et al., 19S-CT-564. “Second, we consider whether any alleged defect in loading was latent. On this record, we conclude it was not and should have been apparent to Wilkes through a reasonable inspection.”

The majority noted that when Wilkes looked inside the trailer, he did not see anything “outlandish,” and he did not argue that the lack of securing devices was not apparent. Moreover, the designated evidence showed Wilkes did not ask about the safety or security of the load, and Celadon did not make any assurances about the trays being properly loaded.

“Wilkes had five years’ experience operating commercial motor vehicles when he picked up the trailer at Celadon,” Slaughter wrote. “Despite his lack of experience with these trays or this type of cargo, he did not ask Celadon if the load was secure. … And, in fact, Wilkes admits that no one at Celadon told him the trays were ‘properly loaded.’”

Justice Christopher Goff dissented in part, with Justice Steven David joining.

Specifically, Goff asserted summary judgment was improper because the facts presented along with the “reasonable inferences from them” were sufficient to defeat the grant of summary judgment to Celadon.

“There is no question that Celadon assumed the duty to load the trays which ultimately caused Wilkes’ injury,” Goff wrote. “The issue is whether it breached that duty by loading the trays in a defective manner, thereby causing the injury (or, under the Savage rule, in a defective manner, thereby causing the injury when the defect was latent). Whichever test we apply, I find the designated evidence leaves open a genuine issues of material fact as to this issue.”

Court of Appeals of Indiana

Dec. 8

Civil Plenary-Medical Privacy/Summary Judgment

Franciscan Alliance, Inc. v. Christina A. Padgett

21A-PL-1738

A hospital group and its former employee at odds over her unauthorized access of confidential patient records aren’t quite finished with their legal battle, the Court of Appeals of Indiana has ruled.

For nearly two years, former Franciscan Alliance employee Christina A. Padgett accessed a specific patient’s confidential protected health information in violation of a workforce confidentiality agreement. Padgett accessed the confidential patient information between October 2012 and April 2014 in order to learn “when the patient would be at Padgett’s workplace so that Padgett could avoid the patient’s alleged harassment” of her.

In 2018, four years after Padgett had resigned, the state of Indiana filed a lawsuit in federal court against Franciscan for its alleged violations of the Health Insurance Portability and Accountability Act of 1996, or HIPAA.

The state alleged Franciscan had inadequate procedures in place to protect patients’ PHI relating to information access monitoring, responses to security incidents and termination of unauthorized access to patient information. It further alleged that Franciscan failed to retain written records of its policies and procedures as required under HIPAA, and that it had not updated its policies in a timely manner. Finally, the state argued that Padgett accessed the information when it wasn’t required for her work and that Franciscan didn’t know about it until after the patient complained, yet still did nothing to end it before Padgett resigned.

Franciscan and the state settled in August 2018, with Franciscan agreeing to pay $80,000 and to comply with specified HIPAA regulations regarding Franciscan’s policies and procedures, including implementing policies and procedures relating to information access monitoring and responses to security incidents.

The next month, Franciscan sued Padgett for breach of contract, breach of fiduciary duty, negligence and indemnification claims. It sought an order that Padgett pay the $80,000 Franciscan had paid to settle the HIPAA lawsuit.

The Marion Superior Court denied Franciscan’s summary judgment motion and granted Padgett’s summary judgment motion on all of Franciscan’s claims. However, it did deny Padgett’s motion for summary judgment on her counterclaim that Franciscan brought an allegedly frivolous lawsuit and entered judgment for Franciscan on that claim.

The Court of Appeals of Indiana partially affirmed and reversed in Franciscan Alliance, Inc. v. Christina A. Padgett, 21A-PL-1738, finding first that the trial court erred in granting Padgett summary judgment and denying it to Franciscan on the issue of timeliness. The COA held that Franciscan’s claims did not accrue and that the statute of limitations did not begin to run until August 2018, at the earliest.

“Even assuming, arguendo, the existence of a contract and the existence of a duty owed by Padgett to Franciscan, summary judgment is not appropriate because there are genuine issues of material fact regarding whether Padgett breached the contract and/or her common law duty,” Judge L. Mark Bailey wrote for the COA.

“The Agreement between Padgett and Franciscan states that Padgett will access confidential information only for ‘legitimate business purposes.’ However, neither the document itself nor any of the designated evidence establish the meaning of that term,” Bailey continued.

The appellate court also concluded that neither party designated evidence establishing whether Padgett was authorized to access the confidential patient information at issue or, if not, whether her unauthorized actions caused the damages Franciscan incurred in the state’s HIPAA lawsuit against it.

“Therefore, as to Franciscan’s contract, tort, and indemnification claims, we affirm denial of summary judgment for Franciscan, reverse summary judgment in favor of Padgett, and remand for further proceedings consistent with this decision,” the court concluded.

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Dec. 9

Criminal-Drugs.com/Hearsay

Dwayne Keith Washington v. State of Indiana

21A-CR-997

A man convicted on multiple drug charges has secured a partial reversal after the Court of Appeals of Indiana determined that evidence obtained from a drug information website was inadmissible at his trial.

While responding to a disturbance call in August 2020, Terre Haute police officers stopped Dwayne Washington as he was leaving an apartment complex. The officers thought Washington looked ready to flee, so they conducted a pat-down search that revealed a handgun and two baggies containing marijuana in Washington’s pockets.

Officers took Washington to the county jail, and before they could conduct a strip search, Washington gave them some pills and a substance that was later identified as methamphetamine. But the officers identified the pills as hydrocodone based on information from Drugs.com.

At a subsequent trial for Washington’s many drug possession and dealing charges stemming from the incident, the state presented testimony from one of the officers that the pills recovered from Washington at the jail were hydrocodone. However, no chemical tests were conducted on the pills to identify them. Rather, an officer explained that he had only matched the physical characteristics of the pills to hydrocodone as described on Drugs.com.

The Vigo Superior Court admitted that testimony over Washington’s hearsay objection, as well as a printout from the website showing identifying information for hydrocodone.

Washington was then convicted of Class A misdemeanor possession of a schedule II controlled substance, among other charges, and was sentenced to an aggregate term of 16 years behind bars, with six years suspended to probation.

In reversing Washington’s controlled substance conviction, the Court of Appeals addressed an issue of first impression: whether information obtained from Drugs.com to identify hydrocodone pills is admissible under the market reports exception to hearsay.

The answer, it concluded, is no.

“The State acknowledges that the use of a website to identify loose pills is not analogous to the reliance on the regulated label of a commercially marketed drug. Still, the State maintains that ‘the fact that government regulations require accuracy in a statement is not a litmus test for admissibility under Rule 803(17),’” Judge Paul Mathias wrote for the COA.

The appellate panel found Washington’s reliance on the Colorado Court of Appeals’ opinion in People v. Hard, 342 P.3d 572 (Colo. App. 2014), to be instructive. There, the court concluded that Colorado had not shown either that its reliance on Drugs.com to prove that the defendant had illegally possessed two prescription drugs was necessary, or that the website was reliable.

The Indiana appellate court reached the same conclusion in Dwayne Keith Washington v. State of Indiana, 21A-CR-997.

“The trial court found, and the parties do not dispute, that the evidence obtained from Drugs.com was hearsay. We agree with Washington that the State’s reliance on Drugs.com was not necessary and that the State has not shown that Drugs.com is a reliable source for drug identification,” Mathias wrote.

Finding no additional evidence presented to show that the pills were a controlled substance, the COA reversed Washington’s controlled substance possession conviction.

“We hold that the market reports exception to hearsay under Evidence Rule 803(17) does not apply to allow the admission of evidence from Drugs.com that was used to convict Washington,” it concluded. “Accordingly, the trial court abused its discretion when it admitted the evidence purporting to show that the pills in Washington’s possession were hydrocodone based on the description on Drugs.com.”

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Dec. 10

Miscellaneous-Immigration/Welcoming Ordinance

City of Gary v. Jeff Nicholson, Douglas Grimes, Greg Serbon, and Cheree Calabro, and State of Indiana

20A-MI-2317

The city of Gary can roll out the welcome mat once again after the Court of Appeals of Indiana found that much of its welcoming ordinance did not violate state law.

In 2017, Gary passed its “Welcoming City” ordinance to “ensure that the immigration status of those who live, work, or pass through Gary will not affect how they are treated by Gary agencies and agents, including its police department and social services providers.”

Jeff Nicholson, Douglas Grimes, Greg Serbon and Cheree Calabro subsequently filed a complaint, alleging that four provisions of the ordinance violated Indiana Code §§ 5-2-18.2-3 and -4. The provisions were:

• Section 26-52, which prohibits Gary’s agencies or agents from requesting information, investigating or helping to investigation the citizenship or assisting in the investigation of the citizenship or immigration status of any person unless required by a court order.

• Section 26-55, which prohibits agents and agencies from stopping, arresting, detaining or continuing to detain a person after that person becomes eligible for release from custody or is free to leave an encounter with an agent or agency.

• Section 26.58, which requires the Gary Police Department to recognize that an arrest increases an individual’s risk of deportation even in cases where the person is found to be not guilty.

• Section 26.59, which holds that municipal agencies are not prohibited from sending to or receiving from any local, state or federal agency information regarding an individual’s citizenship or immigration status.

Following a hearing, Lake Superior Judge Stephen Scheele issued an order granting Nicholson’s summary judgment motion and denying Gary’s summary judgment motion. It prohibited Gary from enforcing the provisions in the four sections that violate I.C. 5-2-18.2- 3 and -4.

The city of Gary appealed and in City of Gary v. Jeff Nicholson, Douglas Grimes, Greg Serbon, and Cheree Calabro, and State of Indiana, 20A-MI-2317, the Court of Appeals of Indiana held that the part of Section 26-52 that prohibits any agent or agency from assisting in the investigation of citizenship or immigration status of a person violates I.C. 5-2-18.2-3.

The panel split on Section 26-55 subsections (a) through (c). These subsections prohibit a city agent or agency from holding a person after that individual becomes eligible for release based on an immigration detainer, an administrative warrant or any other basis that is solely based on the belief that the person is not present legally in the United States.

Gary argued, in part, that such detentions based solely on civil immigration violations violate the Fourth Amendment.

The majority of the appellate panel agreed.

“As the Supreme Court stated in Arizona, ‘[a]s a general rule, it is not a crime for a removable alien to remain present in the United States,’” Judge Edward Najam wrote for the majority, citing Arizona v. United States, 576 U.S. 387, 381 (2012). “… Accordingly, on the narrow question presented here, we hold that the detention of a person ‘not otherwise detained by a criminal justice agency’ based on an immigration detainer or an administrative warrant would violate the Fourth Amendment and, thus, subsections (a) through (c) of Section 26-55 do not violate Section 4.”

Judge Elaine Brown dissented from the majority’s finding that subsections (a) through (c) of Section 26-55 remain valid and enforceable.

Citing Tenorio-Serrano v. Driscoll, 324 F. Supp. 3d 1053 (D. Ariz. 2018), where the defendant sued local law enforcement challenging their policy of holding individuals in state custody for up to 48 additional hours as requested by Immigration and Customs Enforcement, she argued neither civil immigration detainers nor administrative warrants violate the Fourth Amendment.

In a footnote, the majority rebutted the dissent. It cited Abel v. United States, 362 U.S. 217 (1960), and pointed out the Supreme Court declined to address the constitutionality of detainers and administrative warrants under the Fourth Amendment. Also, the majority noted that Tenorio-Serrano relies on El Cenizo, 890 F.3d 1264 (5th Cir. 2018), and the Indiana appellate court follows opinions from the 1st, 3rd and 9th Circuit Courts as well as the U.S. District Court for the Southern District of Indiana.•