United States District Court

Northern District of Indiana

Hammond Division

ELIAN M. SHEPHERD,

Plaintiff,

 

v. Civil Action No. 2:12-CV-23 JVB

TOWN OF MERRILLVILLE, INDIANA; J. 

MERKEL and N. SCHROCK, individually 

and in their capacity as Merrillville Police 

Officers;

Defendants.

OPINION AND ORDER

Plaintiff has sued Defendants under 42 U.S.C. § 1983 as well as on several state law

claims. This matter is before the Court on Plaintiff’s motion for partial summary judgment on

his state law claims alleging battery and false arrest against the Town of Merrillville (DE 40).

A. Facts

The following facts are taken as true for the purpose of Plaintiff’s motion for summary

judgment: On December 18, 2009, Plaintiff, a doctor and staff member at Methodist Hospital in

Merrillville, Indiana, went to the hospital to respond to an emergency. He parked in a fire lane

and entered the hospital. When Plaintiff left the hospital after attending to his patient, he saw

police officers Merkel and Schrock, both of whom are defendants in this case. Schrock prepared

a citation for parking in the fire lane. Plaintiff was upset because he believed that a hospital

security guard, Adam Dolan, had given him permission to park there. There was a verbal

exchange between Plaintiff and Dolan. Merkel arrested Plaintiff, grabbing his arm in the
process, and charged him with disorderly conduct and resisting law enforcement. The charges

were later dismissed.

Dr. Shepherd submitted a written complaint, dated May 18, 2010, to the Merrillville

Police Department concerning the conduct of Merkel and Schrock on December 18, 2009. Lt.

Snemis completed an investigation of the incident and submitted a report to Merrillville police

chief Joseph Petruch, who wrote to Merkel to inform him that he had violated a number of police

department regulations in his handling of the matter. Petruch stated in his communication to

Merkel that there wasn’t “sufficient evidence to show that Dr. Shepherd violated the statutory

definition of disorderly conduct.” (DE 35-1, 7).1

 He also informed Merkel that he had violated

police department Order Number 15.2.1 in that “it has been determined that you used unjustified

force when you grabbed Dr. Shepherd to continue to talk to him when he turned away from

you.” (Id.) These findings resulted in disciplinary action against Merkel.

B. Summary Judgment Standard.

Summary judgment must 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).

C. Discussion

Plaintiff asserts that Petruch’s findings conclusively establish that Merkel arrested him

without probable cause, thus committing the torts of false arrest and false imprisonment, and that

1

This document was filed under seal but both parties have quoted from it in their briefs. The Court does

likewise.

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his unjustified use of force was battery. Therefore, Plaintiff maintains that Town is liable under

the Indiana Tort Claims Act, Indiana Code § 35-13-3-1, et seq, for Merkel’s actions. Plaintiff

argues the doctrine of judicial estoppel applies to Petruch’s determinations so that the liability of

the Town has been determined.

The purpose of the doctrine of judicial estoppel is to protect the integrity of the judicial

process by preventing a party from asserting a claim in a legal proceeding that is inconsistent

with a claim taken by that party in a previous proceeding. New Hampshire v. Maine, 532 U.S.

742, 749 (2001). While the doctrine can be applied to a party who took an inconsistent position

in a prior administrative proceeding, the Court will not apply it against the Town in the instant

case. 

The internal investigation and conclusion by Petruch that Merkel violated police

department rules and regulations did not rise to the level of an administrative proceeding. The

decision to discipline Merkel did not amount to a quasi-judicial adversary proceeding between

Merkel and the Town. Petruch was not acting in a judicial capacity and the Town was not a

party to any proceeding against Merkel. Cf. Buckhalter v. Pepsi-Cola Gen. Bottlers, 820 F.2d

892, 895-96 (7th Cir. 1987) (the Illinois Human Rights Commission was acting in a judicial

capacity in a proceeding that entailed four days of hearings before an administrative law judge

where the parties were represented by counsel, witnesses were examined and cross-examined,

and the ALJ issued a fourteen-page opinion with findings of fact, conclusions of law and legal

analysis).

Plaintiff relies on Czajkowski v. Chicago, 810 F. Supp. 1428 (N.D. Ill. 1992) for the

proposition that disciplinary proceedings before a city police board can be quasi-judicial

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administrative proceedings on which judicial estoppel can be based. That case is, of course, not

binding on this Court. Moreover, it appears that in Czajkowski a hearing was held before the

Police Board at which the City, through the police superintendent, unmistakably argued that an

officer had scratched the plaintiff with keys, whereas in the court proceedings it maintained that

the scratches were self-inflicted. Id. at 1436. The district court in Czajkowski found that

proceedings before the Chicago Police Board were “truth finding proceedings with procedural

protections and judicial review available” and applied judicial estoppel to preclude the City from

arguing in a § 1983 action that its officer did not scratch the plaintiff. Id. In contrast, in the

instant case, there was no hearing and Plaintiff has not made the Court aware of any procedural

protections or right to judicial review. 

Furthermore, even if it is assumed that the investigation into Plaintiff’s complaint against

Merkel and resulting disciplinary measures against him was a quasi-judicial proceeding, it is not

inconsistent for the Town to argue that, although his conduct violated department rules and

regulations, it did not amount to false arrest, false imprisonment, or battery under Indiana law. 

Petruch did not find that Merkel lacked probable cause to arrest Plaintiff, but merely that there

was insufficient evidence to show that Plaintiff had engaged in disorderly conduct. Nor did he

find that Merkel had committed battery—only that his grabbing of Plaintiff was unjustified

under department policy. Accordingly, Petruch’s conclusions are not relevant to the issues to be

decided in this case and do not justify summary judgment for Plaintiff on his state law claims

against the Town.

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D. Conclusion

For these reasons, Plaintiff’s motion for partial summary judgment determining liability

against the Town of Merrillville on his state law claims alleging battery and false arrest (DE 40)

is DENIED. 

SO ORDERED on September 19, 2014.

s/ Joseph S. Van Bokkelen 

Joseph S. Van Bokkelen

United States District Judge

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