ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
ROGER A. BIRD R. KENT ROWE
Bird Svendsen Brothers MARIE ANNE HENDRIE
Scheske & Pattison, P.C. South Bend, Indiana
COURT OF APPEALS OF INDIANA
BRUCE DAVIDSON, )
vs. ) No. 43A05-0105-CV-184
JAMES PERRON and the CITY OF ELKHART, )
APPEAL FROM THE KOSCIUSKO CIRCUIT COURT
The Honorable Rex L. Reed, Judge
Cause No. 43C01-9803-CP-214
October 11, 2001
OPINION - FOR PUBLICATION
Bruce Davidson appeals a grant of summary judgment in favor of the City
of Elkhart (the City), as well as certain discovery rulings issued by the
trial court. Specifically, Davidson presents the following restated issues for review:
Did the trial court abuse its discretion in granting the appellees motion to
strike the affidavit of Carol McDowell?
Did the trial court err in limiting discovery by Davidson?
Did the trial court err in granting summary judgment in favor of the
City concerning claims arising under 42 U.S.C. § 1983?
This case has come before this court on two prior occasions. We
reproduce below the facts as set out in the second of those two
Until his termination by the Elkhart Board of Public Works in October of
1995, Davidson was a police officer with the Elkhart Police Department and was
also president of the local Fraternal Order of Police. On January 4,
1994, a letter signed and purportedly written by Elkhart reserve police officer Steven
Cappelletti appeared in the editorial section of The Elkhart Truth. The letter,
written in response to a letter Davidson had written that had been published
in the newspaper several days earlier, contained the following two paragraphs that became
the subject of this lawsuit:
Davidson's assertion that "Mayor Perron has been too soft on crime and a
little too hard on cops" is laughable.
In reality, some cops like
Davidson have been a little too soft on crime and too hard on
Police certainly have privileges but I do not believe that they should be
abused in the way that some officers like Davidson have done. The
so-called vote of no confidence amounted to only a cheap shot against the
Record at 82 (emphasis added). In January of 1995, Cappelletti admitted to
Davidson that the Mayor was the true author of the letter. Thereafter,
on February 9, 1995, Davidson sent his written tort claims notice to the
Mayor and the City. Although the Mayor publicly denied that he had
written the letter and his denial was reported in The Elkhart Truth, the
Mayor later admitted during a deposition that he had written the letter.
On June 1, 1995, Davidson filed a one count complaint for defamation against
the Mayor and the City in the Elkhart Superior Court. The Mayor
and the City filed a motion to dismiss on July 21, 1995, alleging
that the statements in the letter were not defamatory, as a matter of
law. The Elkhart Superior Court granted the motion to dismiss in part,
and denied the motion in part. Davidson then filed a motion to
amend his complaint to include constitutional and civil rights claims under 42 U.S.C.
§ 1983 against the Mayor and the City. Davidson's constitutional and civil
rights claims alleged that the Mayor had engaged in a plan to discredit
him and damage his reputation. Davidson also alleged that the Mayor engaged
in harmful conduct which eventually led to Davidson's termination from the police department
and which further damaged his reputation. The parties subsequently moved for a
change of venue due to excessive press coverage, and the case was transferred
to the Kosciusko Circuit Court.
With leave of court, Davidson then filed a "Restated Complaint" on May 22,
1998. The Mayor and the City filed a motion to dismiss the
restated complaint which the court granted on June 30, 1998. In response,
Davidson filed a motion to amend the complaint which was granted by a
judge pro tempore. Thereafter, in addition to filing his two count "Amended
Complaint for Civil Rights Violations, Defamation, and Libel" against the Mayor and the
City, Davidson filed a Motion to Correct Error regarding the trial court's June
30, 1998, dismissal of his restated complaint. Following a hearing held on
October 7, 1998, the trial court denied Davidson's motion to correct error and
granted the Mayor and the City's motion to dismiss Davidson's amended complaint.
Davidson v. Perron, 716 N.E.2d 29, 32-33 (Ind. Ct. App. 1999) (Kirsch, J.,
concurring in part and dissenting in part).1.
In the second appeal, this court held that the trial court erred when
it dismissed Davidson's defamation claim pursuant to Ind. Trial Rule 12(B)(6) for failure
to state a claim upon which relief can be granted. We also
reversed the trial courts dismissal, on grounds that the same action was pending
in another state court of this state, of Davidson's constitutional and civil rights
claims. See id.
After the case was remanded to the trial court for further proceedings, disputes
arose with respect to the boundaries of permissible discovery available to Davidson.
Davidson appeals herein several adverse decisions pertaining to discovery. Also after remand,
the City filed a motion for summary judgment on both counts of Davidsons
complaint, i.e., defamation and constitutional rights violations. The trial court granted the
motion and entered summary judgment in favor of the City on both counts
of Davidsons complaint. Davidson appeals that ruling only with respect to the
claim of constitutional rights violations.
Davidson contends that the trial court erred in striking the affidavit of Carol
A trial court enjoys broad discretion when ruling upon discovery matters and we
will interfere only where an abuse of discretion is apparent. Riggin v.
Rea Riggin & Sons, Inc., 738 N.E.2d 292 (Ind. Ct. App. 2000).
An abuse of discretion occurs where the decision is against the logic
and natural inferences to be drawn from the facts of the case.
Id. Because of the fact-sensitive nature of discovery issues, a trial court's
ruling is cloaked with a strong presumption of correctness. Id.
In the instant case, on March 14, 1999, Carol McDowell executed an affidavit
that stated as follows:
I am an adult resident of the State of Indiana.
That from 1992 to 1996 I served on the Elkhart City Council.
That I know Bruce Davidson and that Bruce Davidson worked on my mayoral
campaign in 1995.
After a city council meeting on August 7, 1995, I spoke with then
[Elkhart Chief of Police] Dennis Bechtel.
Bechtel asked me if we couldnt be friends and I told him not
as long as he was going after people who were honest and had
integrity, which was a reference to Bruce Davidson.
Bechtel then told me that If I dont get him on this, then
Ill get him on other stuff.
By this, Bechtel was referencing the current charges that he had brought against
I made a statement at some point indicating that I thought that Bechtel
should not be attempting to get Davidson terminated.
Bechtels response to my statement described in paragraph eight (8) above was that
there was way too much water over the bridge between him and Perron.
My understanding of the conversation as described above was that Bechtel had orders
from Perron, because of the public differences between Perron and Davidson, for Bechtel
to have Davidson terminated.
Appellants Appendix at 160.
The trial court set November 3, 2000 as the date by which discovery
was to be completed. On May 3, 2000, the appellees served upon
Davidson a request for production of documents that included a request for [a]ny
statement, whether written or oral, signed or unsigned, in the plaintiffs possession from
any individual listed in response to any of the interrogatories served upon the
plaintiff and [a]ny statement, whether written or oral, signed or unsigned in the
plaintiffs possession from any individual who claims to have knowledge of any fact
supporting the plaintiffs claim. Appellants Appendix at 260. On June 5,
2000, Davidson submitted the following in response to the two requests:
Plaintiff objects to this request to the extent that it calls for information
protected by the attorney-client and work product privileges. Subject to and without
waiving his objections, Plaintiff states that he has no statements yet, but that
he will produce same, subject to his rightful objections, when those statements are
Appellants Appendix at 262. We reiterate here that the McDowell affidavit had
then been in Davidsons possession for more than one year. Also on
June 5, 2000, in answer to an unrelated discovery request from the appellees,
Davidson identified McDowell as an individual that Davidson planned to call as a
witness on his behalf at trial. On September 2, 2000, however, Davidson
filed his witness list and McDowells name was not included.
On September 15, 2000, Perron and the City filed a motion or summary
judgment. In response, on November 17, 2000, Davidson filed a motion and
brief in opposition to the motion for summary judgment. In support of
his motion, Davidson designated the affidavit of McDowell. On December 5, 2000,
the appellees moved to strike McDowells affidavit on the ground that although it
was executed more than seventeen months before, its existence was not divulged until
after the November 3 discovery cut-off date. The trial court granted the
motion to strike.
The court set a November 3 discovery deadline, and Davidson failed to adhere
to that deadline with respect to the McDowell affidavit. Davidsons counsel explained
at oral argument before this court that Davidson failed to comply with the
deadline primarily because, at the time, he was representing himself. According to
counsel, Davidson simply forgot that he had the affidavit when he responded to
the appellees discovery requests. Counsel opined that this oversight was understandable in
view of the sheer volume of material then contained in the case file.
Those reasons are not persuasive.
The rules of trial and appellate procedure in Indiana do not allow greater
latitude for mistakes in cases where the materials are more voluminous. Moreover,
"[a] litigant who chooses to proceed pro se will be held to the
same established rules of procedure as trained legal counsel." New Albany-Floyd County
Educ. Ass'n v. Ammerman, 724 N.E.2d 251, 256 n.9 (Ind. Ct. App. 2000)
(quoting Wright v. Elston, 701 N.E.2d 1227, 1231 (Ind. Ct. App. 1998), trans.
denied (1999)). In short, Davidsons failure to adhere to the deadline,
even through inadvertence, is inexcusable and subject to sanction.
A trial court enjoys broad discretion in determining the appropriate sanctions for a
partys failure to comply with discovery orders. Vernon v. Kroger Co., 712
N.E.2d 976 (Ind. 1999). "Discretion is a privilege afforded a trial court
to act in accord with what is fair and equitable in each case."
Id. at 982 (quoting McCullough v. Archbold Ladder Co., 605 N.E.2d 175,
180 (Ind. 1993)). The trial court abuses its discretion if its decision
is clearly against the logic and effect of the facts and circumstances of
the case, or if it misinterprets the applicable law. Vernon v. Kroger
Co., 712 N.E.2d 976. One sanction available in cases where a party
seeks to introduce evidence that violated the trial courts discovery rules is the
exclusion of that evidence. See Nyby v. Waste Management, Inc., 725 N.E.2d
905 (Ind. Ct. App. 2000), trans. denied. Absent clear error and resulting
prejudice, the trial court's determinations with respect to violations and sanctions should not
be overturned. Cliver v. State, 666 N.E.2d 59 (Ind. 1996).
Davidson contends that the admissibility of the McDowell affidavit is to be determined
consistent with the principles set out in Tyson v. State, 619 N.E.2d 276
(Ind. Ct. App. 1993), trans. denied. In Tyson, this court reviewed the
factors identified by our supreme court as appropriate for a trial court to
consider in determining its course of action when a party seeks to use
the testimony of a witness whose identity is disclosed to the opponent after
discovery has been closed. Id. at 282. Those factors include the
When did the witnesses first become known to the opposing counsel?
How vital is the potential witnesses testimony to the case of the proponent
of the witnessis it relevant and material or merely cumulative?
What is the nature of the prejudice to the opponentwould permitting the witnesses
to testify have a deleterious impact on the case prepared by the opponent?
Are less stringent alternatives appropriate and effective to protect the interest of the
Will the opponent be unduly surprised and prejudiced by the inclusion of the
witnesses testimony despite the available and reasonable alternatives (e.g., a recess or a
continuance) to allow the opponent to interview the witnesses and conduct further investigation,
The appellees first became aware that McDowell was potentially a witness on July
5, 2000, when Davidson identified her as such in response to a discovery
request. The significance of that disclosure, however, was minimized by virtue of
Davidsons subsequent failure to identify McDowell on his September 2 witness list.
Moreover, the nature of McDowells proposed testimony would not have been apparent merely
by virtue of knowing her identity.
With respect to the significance of McDowells affidavit to this case, it merely
conveys McDowells understanding of the purported, unspoken meaning of a brief exchange she
had with Elkharts chief of police. The exchange itself, as described by
McDowell, does little to prove Davidsons assertion that Perron orchestrated his termination.
Moreover, we agree with the appellees that McDowells understanding of the underlying meaning
of the chiefs comments is irrelevant in this case.
Even assuming that the content of McDowells affidavit was relevant, the third element
of the Tyson analysis does not lend support to Davidsons cause. Although
the appellees were advised at one point that McDowell would be a witness,
her involvement in the case was peripheral, at best. In fact, it
is fair to say that her proposed affidavit would have served only to
underscore a topic upon which Chief Bechtels testimony would have been relevant and
perhaps crucial. The appellees deposed Chief Bechtel, but because they were at
the time unaware of the alleged exchange with McDowell, they did not question
him on that particular subject. Assuming McDowells affidavit had been admitted, the
appellees would have been ill prepared to respond to Davidsons contention in this
regard and, therefore, the resulting prejudice to the appellees case would not have
Mindful of our deferential standard of review, and having determined that the first
three elements favor striking the affidavit, we deem it unnecessary to evaluate the
final two elements of the Tyson analysis. The trial court did not
abuse its discretion in granting the appellees motion to strike McDowells affidavit.
Davidson contends that the trial court erred in limiting discovery by not allowing
Davidson to seek information about other individuals who had been employed by the
City. As was the case with Issue 1, the challenged rulings discussed
herein concern matters committed to the trial courts discretion and we review for
abuse of discretion. Small v. Centocor, Inc., 731 N.E.2d 22 (Ind. Ct.
App. 2000), trans. denied.
On May 11, 2000, Davidson served upon the appellees a discovery request entitled
Plaintiffs First Request for Production of Documents to Defendants. Appellants Appendix at
77. On June 19, 2000, the appellees submitted a motion for a
protective order relating to some of the May 11 requests for production.
The trial court granted the appellees motion in part, thereby imposing limitations with
respect to the time period and subject matter covered by the requests.
The temporal limitation was that Davidson could not inquire into matters that transpired
any time other than the period between January 1, 1993 and December 31,
1996. With respect to subject matter, the court ruled that all of
the following matters were irrelevant to Davidsons case and therefore not subject to
discovery: (1) Disciplinary proceedings pertaining to Joseph Emerson, (2) the investigation and arrest
of James Slater, (3) correspondence between Chief Bechtel and Mayor Perron that occurred
outside of the relevant timeframe, (4) the files of all other city employees
who were terminated between January 1, 1994 and December 31, 1999, (5) the
arrest and investigation files of all persons arrested by Chief Bechtel, (6) all
materials pertaining to the shooting death of Derrick Conner, (7) campaign notes and
letters and a list of contributors pertaining to Perrons 1995 and 1999 mayoral
campaigns, (8) Perrons notes, journals, diaries, memoirs, and planners for any period of
time other than January 1, 1993 through December 31, 1996, and (9) all
internal affairs files relating to every officer of the Elkhart Police Department from
January 1, 1993 through December 31, 1999.
Davidson contends upon appeal that the trial court abused its discretion in placing
the aforementioned subjects and time periods beyond the scope of discovery, because they
were relevant to show a custom or practice of reprisal of Perron or
at the direction of Perron by City official subordinates of Perron. Appellants
Brief at 5. Davidson argues that those other instances, admittedly unrelated to
his case, would have demonstrated a pattern of reprisal, of which Davidsons dismissal
was just one example. We find this reasoning unpersuasive because Davidsons claim
of retributive action must stand or fall on its own merits. His
case cannot be based upon proof that another or others were terminated in
that manner. The same is true with respect to the temporal
limitations imposed by the trial court. Davidson has not demonstrated how any
occurrences before January 1, 1993 or after December 31, 1999 had any relevance
to his termination. We are satisfied that the trial courts discovery limitations
and rulings were appropriate, and certainly did not constitute an abuse of discretion.
Davidson contends that the trial court erred in granting summary judgment in favor
of the City.
When reviewing a grant of summary judgment, we apply the same standard as
did the trial court. We must consider the designated materials in a
light most favorable to the nonmoving party and decide whether there remains a
genuine issue of material fact, or whether instead the moving party is entitled
to judgment as a matter of law. Ind. Trial Rule 56(C); Eichenberger
v. Eichenberger, 743 N.E.2d 370 (Ind. Ct. App. 2001). The nonmovant bears
the burden of demonstrating that the grant of summary judgment was erroneous.
Nevertheless, we carefully examine the trial court's decision in order to ensure that
the nonmovant was not denied his day in court. Id.
Davidson filed a two-count complaint against the City, the first count alleging defamation
and the second a violation of Davidsons constitutional rights. The City filed
its motion for summary judgment seeking judgment as a matter of law on
both claims. The trial court granted the Citys motion. Upon appeal,
Davidson contends that the trial court erred in entering summary judgment in the
appellees favor on the issue of whether the City violated Davidsons constitutional rights.
Specifically, Davidson contends that the City is liable pursuant to 42 U.S.C.
§ 1983 for violating his rights under the Equal Protection and Due Process
Clauses of, as well as the First Amendment to, the United States Constitution.
At the heart of Davidsons complaint on the first and third constitutional bases
of recovery is the notion that the damage he suffered was wrongful termination
from his position as a City of Elkhart police officer. Specifically, his
First Amendment claim is, in essence, that he was fired for criticizing Mayor
Perron. In Davidsons first appeal, however, this court affirmed the decision of
the Elkhart Board of Public Works that termination was warranted because of Davidson's
unauthorized statements to the press about an ongoing criminal case that was entirely
unrelated to Mayor Perron. See Davidson v. City of Elkhart, 696 N.E.2d
58. Thus, Davidson cannot pursue an action based upon the theory that
he was wrongfully terminated as a result of his exercise of free speech
under the First Amendment. See Slutsky v. Crews, 713 N.E.2d 288, 291
(Ind. Ct. App. 1999) (the doctrine of issue preclusion bars subsequent relitigation of
the same fact or issue where that fact or issue was necessarily adjudicated
in a former suit and the same fact or issue is presented in
a subsequent cause of action).
The same is true of his claim arising under the Equal Protection Clause.
His claim in that regard is that unequal governmental treatment, in the
form of dismissal from employment, was brought to bear upon him merely because
local official harbor[ed] malignant animosity towards him. Appellants Brief
at 17. Again, having previously determined that he was terminated for just
cause unrelated to Mayor Perron, we must conclude that Davidson cannot prevail on
a claim that would require us to reassess the cause and appropriateness of
his dismissal. See Slutsky v. Crews, 713 N.E.2d 288.
The third claimed violation of Davidsons constitutional rights is essentially that Davidson was
denied a fair hearing before the Elkhart Board of Public Works (the Board)
because of Perrons interference. Davidson explains this contention as follows: [T]he record
in this case demonstrates that the City misused its otherwise legitimate disciplinary procedures
in a single-minded effort to discharge Davidson because of his expressed opposition to
Perron and his support of McDowell. Appellants Brief at 23. We
note that Davidson does not claim that the City failed to adhere to
the correct procedures in terminating him. Rather, he claims that the Citys
motivation was tainted and, in effect, the jury (i.e., the Board) was rigged.
As was the case with his equal protection and free speech claims
discussed previously, Davidsons argument on this point necessarily invites us to revisit the
propriety of his discharge. Again, we must decline the request. See
Slutsky v. Crews, 713 N.E.2d 288.
Finally, Davidson claims that the trial court erred in granting summary judgment upon
his claim under § 1983 that the Citys actions violated his liberty interest
or property right in employment. This claim arises under the Due Process
Clause. To the extent that this argument asserts a right to continued
employment as a police officer for the City of Elkhart,
it must be
rejected on the basis of issue preclusion, as indicated above. See Slutsky
v. Crews, 713 N.E.2d 288. Davidsons second argument in this respect includes
the claim that the Citys action interfered with his right to future employment,
which may in this context rise to the level of a liberty interest.
See Burke v. City of Anderson, 612 N.E.2d 559. We will
address this argument separately.
In Paul v. Davis, 424 U.S. 693 (1976), the United States Supreme Court
confined the due process protection of a liberty interest in this context to
situations in which the State inflicts damage to a government employee's good name,
reputation, honor, or integrity in the process of terminating his employment. The
Court also indicated in Paul v. Davis that defamation of an individual by
the government that is connected with a refusal to rehire might give rise
to an action under the Fourteenth Amendment.
The allegedly defamatory statements upon which Davidsons § 1983 claim were based consisted
of the January 4 letter purportedly written by Officer Cappalletti, and the July
5, 1995 and November 2, 1995 newspaper articles on the topic of an
alleged FBI investigation of Davidson. Those articles appeared in the local newspaper.
The record reflects that none of those communications were connected to Davidsons
discharge. Rather, Davidson was discharged for making unauthorized statements to the press
regarding a pending investigation. This court affirmed that decision upon appeal.
See Davidson v. Perron, 696 N.E.2d 58. Thus, because there was no
nexus between the disciplinary action that culminated in his dismissal and the allegedly
defamatory statements that formed the basis of Davidsons § 1983 liberty-interest claim, there
is no basis for a § 1983 cause of action. Paul v.
Davis, 424 U.S. 693.
In summary, the trial court did not err in striking witness McDowells affidavit,
or in restricting the scope of discovery as it did. Also, the
trial court did not err in granting summary judgment in favor of the
BAKER, J., and KIRSCH, J., concur.
Oral argument was conducted in this cause on September 11, 2001
at Zionsville High School in Zionsville, Indiana. This court wishes to thank
the Boone County Bar Association and the students, faculty, and staff of Zionsville
High School for their graciousness in hosting that proceeding. We are especially
appreciative of the efforts and attentiveness of all involved in light of the
tragic events unfolding elsewhere in our nation on that day. In view
of those events, some thought was given at the time to rescheduling the
oral argument. However, that proceeding was held in conjunction with the year-long Centennial
Celebration of the Indiana Court of Appeals, and therefore special events and arrangements
surrounding the oral argument had been scheduled and implemented. Even communicating the
decision to postpone in a timely fashion to everyone involved would have been
impossible. Moreover, as Presiding Judge Baker explained to the attendees at the
outset of oral argument on that fateful day, our countrys strength is such
that even an attack of such terrible magnitude does not prevent our justice
system from conducting its business. Still, our thoughts and best wishes were
then, and remain, with all of those who suffered as a result of
the attacks and their aftermath.
Footnote: The first opinion can be found at
Davidson v. City of
Elkhart, 696 N.E.2d 58 (Ind. Ct. App. 1998), trans. denied.
Actually, Davidson responded to the first request as indicated, and then
simply incorporated that answer by reference when responding to the second request.
Footnote: We have determined that "members of a police department may be
terminated only for cause and, therefore, enjoy a protectible property interest in their
continued employment with their police department."
Burke v. City of Anderson, 612
N.E.2d 559, 565 (Ind. Ct. App. 1993), trans. denied (quoting Kennedy v. McCarty,
778 F. Supp. 1465, 1470 (S.D. Ind. 1991)).
The Board also concluded that Davidsons discharge was appropriate based upon
a third charge, which involved Davidsons use of a list of telephone numbers.
Davidson had obtained the list, comprised of numbers called from Mayor Perrons
cell phone, pursuant to a public records request. After he obtained the
list, Davidson asked a dispatcher at the Communications Department to run the numbers
on the 911 system in order to learn the identity of the persons
whose phone numbers appeared on the list. The Board found that the
list was not obtained for the purposes of responding to an emergency call
or pursuant to an authorized investigation, and it was obtained without warrant or
court order. The trial court reversed the Boards ruling upon this charge,
stating, The City presented no evidence that there was any specific policy concerning
the use of the 911 system and there was other ample evidence of
many incidences where at best one could say access to the 911 system
was casually utilized.
Appellees Amended Appendix at 58. Although the City
cross-appealed the trial courts ruling in that regard in the first appeal, this
court declined to consider the matter because the decision to terminate was affirmable
on other grounds.