Gai Levy v. Marion County Sheriff ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1424
GAI LEVY,
Plaintiff-Appellant,
v.
MARION COUNTY SHERIFF, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 17-cv-03090 — Jane Magnus-Stinson, Chief Judge.
____________________
ARGUED SEPTEMBER 6, 2019 — DECIDED OCTOBER 18, 2019
____________________
Before FLAUM, SYKES, and ST. EVE, Circuit Judges.
FLAUM, Circuit Judge. Plaintiff-appellant Gai Levy brought
this lawsuit against defendants-appellees, the Marion County
Sheriff and the Consolidated City of Indianapolis and Marion
County (collectively, “defendants”), alleging constitutional
violations under 42 U.S.C. § 1983 for unlawfully detaining
him. Levy contends that on two separate occasions defend-
ants violated orders from a trial court to release him from cus-
tody. In particular, he asserts that the policies and practices
2 No. 19-1424
defendants used to communicate with the courts about indi-
vidual defendants led to his prolonged detention. Defendants
moved for summary judgment on Levy’s § 1983 claims. The
district court granted their motion. We affirm.
I. Background
Before diving into the specifics of this case, it is helpful to
understand how the Marion County Sheriff’s Office receives
information from the Marion County Superior Courts and
how the Sheriff’s Office then executes those court orders. The
courts and the Sheriff use two different systems for their case
management needs. The courts’ system is called Odyssey and
the Sheriff’s is called Offender Management System (OMS).
Both systems use event codes to indicate a court’s order, but
integration between the two systems since their adoption in
2014 has proven challenging, given the systems’ difficulty
communicating with each other. To remedy this problem, the
Information Services Agency for the Consolidated City of In-
dianapolis and Marion County developed a special data ex-
change system to ensure the transfer of data from the courts
to the Sheriff’s Office.
This solution was imperfect. For example, when a court
ordered a detainee released subject to placement at Marion
County Community Corrections (MCCC), the court could en-
ter an “ORC” code (the “Self-Report code”), which directed
the Sheriff to release the detainee from custody so he could
self-report to MCCC on his own. Alternatively, the court
could enter an “SBDOA” code (the “Direct Transfer code”),
which instructed the Sheriff to maintain the detainee in cus-
tody until he could be directly transported to MCCC for pro-
cessing and release. After the Sheriff received either a Self-Re-
No. 19-1424 3
port or Direct Transfer code, it placed the detainee in the “re-
lease workflow.” The release workflow was a process
whereby the Sheriff’s Office automatically generated a list of
detainees for whom the court had entered release codes. After
that, the Sheriff’s inmate records staff reviewed the list to ver-
ify that each detainee was eligible to be released immediately
or transferred for release. Once they completed the verifica-
tion process, the inmate records staff removed the detainee
from the release workflow.
Because the release workflow could not automatically
process updated release orders, problems arose when the
courts modified an order as to a detainee who had already
cleared the process. The Sheriff’s Office knew of this flaw and
had reached an agreement with the courts to have court staff
contact the Sheriff’s inmate records staff any time there was a
subsequent order in the same case to ensure that the Sheriff’s
Office was operating with the most current information. It is
undisputed that if court staff did not notify the Sheriff’s Office
about such updates or modifications, the Sheriff would pro-
cess a detainee based on the original release order it received.
With that context in mind, we turn our focus to Levy’s
case. The Sheriff’s Office took custody of Levy after his arrest
on an outstanding warrant on February 29, 2016. The parties
agree that Levy remained in the Sheriff’s custody until March
3, 2016, when it transferred him to MCCC. (MCCC released
Levy later that same day.) Beyond that basic timeline, though,
the parties disagree about when the Sheriff’s Office received
an order from the court to release Levy.
4 No. 19-1424
According to Levy, the judge at his first court appearance
ordered him released on his own recognizance, and because
the Sheriff’s Office did not immediately release him after that
order, Levy argues that the Sheriff unlawfully detained him.
To support his version of events, Levy points to this screen-
shot of his case file in OMS, which he contends shows that
officer Roberto Juan Rodrigues entered “Order To Release
From Custody” as the “Court Event” on February 29, 2016, at
23:50:
The Sheriff’s Office, however, asserts that the judge or-
dered that the Sheriff keep Levy in custody until he could be
transferred directly to MCCC; it was not until Levy’s second
court appearance on March 2, 2016, that a different judge or-
dered Levy to self-report to MCCC. By that time, the Sheriff
asserts, the inmate records staff had already finished pro-
cessing Levy through its release workflow. It is undisputed
that no one at the court called or emailed the Sheriff’s Office
about the second order, and therefore, that the Sheriff never
received notice of the second order. Ultimately, the Sheriff’s
Office processed Levy and kept him in custody until March 3,
No. 19-1424 5
2016. To support their version of the timeline, defendants di-
rect our attention to the certified copy of the Case Summary
in Levy’s case, which shows that the court entered a Direct
Transfer code on March 1, 2016, but later entered a Self-Report
code on March 2, 2016:
6 No. 19-1424
Levy consequently alleged claims against defendants for
unreasonable seizure and detention under the Fourth
Amendment and deprivation of liberty without due process
under the Fourteenth Amendment. In addition, Levy insists
that the Sheriff’s Office “instituted and maintained unreason-
able policies and practices that resulted in its keeping [him]
No. 19-1424 7
detained … after [he] had been ordered released by the Court
and/or after legal authority for [his] detention had ceased.”
Defendants moved for summary judgment on October 4,
2018, and they moved to exclude the testimony of Levy’s ex-
pert on December 10, 2018. The district court granted both
motions on February 11, 2019.1 Regarding the motion for sum-
mary judgment, the district court first held that Levy’s Four-
teenth Amendment Due Process Clause claim could not pro-
ceed because “the Fourth Amendment, not the Due Process
Clause, governs a claim for wrongful pretrial detention.”
Lewis v. City of Chicago, 914 F.3d 472, 475 (7th Cir. 2019) (first
citing Manuel v. City of Joliet, 137 S. Ct. 911, 920 (2017); then
citing Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018)).
As to whether Levy had raised any genuine disputes of
material fact for a jury to resolve on his Fourth Amendment
claim, the court first explained that it understood Levy to be
challenging two policies or practices: (1) the use of Odyssey
and OMS to transmit release codes from the Marion County
Superior Courts to the Sheriff’s Office (the “Transmittal Pol-
icy”);2 and (2) the practice of requiring court staff to contact
the Sheriff when a release order had been modified (the
“Change Notification Policy”). Because the court found it was
undisputed that the Sheriff’s Office did not receive notice of
the Self-Report code before it released Levy, the court held the
Sheriff’s use of the Transmittal Policy alone could not have
1 Levy does not appeal the district court’s decision to exclude his ex-
pert.
2 Although the district court did not explicitly say as much, we assume
that the Transmittal Policy also includes the Sheriff’s adoption and use of
the release workflow.
8 No. 19-1424
caused Levy’s harm. In considering the Change Notification
Policy, the court considered four different time frames:
1. The time between Levy’s arrest and the entry of a
code on March 1, 2016 at 12:25 AM after his first
court appearance.
2. The time between the entry of the first code and the
entry of the second code on March 2, 2016 at 2:15
PM after his second court appearance.
3. The time between the entry of the second code and
his transfer to MCCC on March 3, 2016 at 1:35 PM.
4. The time between his transfer to MCCC and his re-
lease from MCCC on March 3, 2016 at 7:30 PM.
The court emphasized that Levy did not challenge the
Sheriff’s authority to detain him during the first or fourth time
periods; rather, Levy’s complaint concerned the second and
third time periods alone. In considering the second time pe-
riod, the court reasoned that because Levy did not produce
any evidence to contradict the Case Summary, which showed
that the court had ordered Levy released “Upon Satisfaction
of Bond, Party Held For Other Agency” and listed “commu-
nity corrections” at the first court appearance, it followed that
the Sheriff had the legal authority to detain Levy during that
time period and thus his detention did not violate the Fourth
Amendment.
Turning to the third time period, the court noted that de-
fendants acknowledged that the failure of the Change Notifi-
cation Policy caused Levy’s detention during this time period,
but the court underscored that because Levy did not produce
evidence of other individuals being over-detained for the
same reasons, Levy could not establish that defendants had
No. 19-1424 9
adopted a policy or practice of deliberate indifference; there-
fore, this time period could not serve as the basis of his claim
either.
Levy now appeals.
II. Discussion
We review a district court’s grant of a motion for summary
judgment de novo, interpreting all facts and drawing all rea-
sonable inferences in favor of the nonmoving party. O’Brien
v. Caterpillar Inc., 900 F.3d 923, 928 (7th Cir. 2018). “Summary
judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a mat-
ter of law.” Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 673
(7th Cir. 2016) (citing Fed R. Civ. P. 56(a)). Summary judg-
ment is inappropriate “if the evidence is such that a reasona-
ble jury could return a verdict for the nonmoving party.” An-
derson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We may
affirm the entry of summary judgment on any ground sup-
ported in the record, so long as the moving party adequately
presented the issue in the district court and the non-moving
party had an opportunity to contest it. O’Brien, 900 F.3d at 928.
A. Dispute of Material Fact
One of the issues Levy raises on appeal is the district
court’s finding that no reasonable jury could conclude that the
Sheriff received a Self-Report code after his first court appear-
ance. Levy focuses on the evidence he submitted to the district
court, namely a screenshot of his case file in OMS, which he
argues shows that officer Roberto Juan Rodrigues entered
“Order To Release From Custody” as the “Court Event” on
10 No. 19-1424
February 29, 2016, at 23:50.3 Levy contends that the district
court dismissed his characterization of the screenshot in favor
of the explanation given by the Sheriff’s Chief Information Of-
ficer, Derek Peterson, in his affidavit. Peterson asserted that
the screenshot did not show what code the court entered at
Levy’s first court appearance, but that the certified copy of the
Case Summary did contain that information, and that record
showed an entry of “Upon Satisfaction of Bond, Party Held
for Other Agency” on March 1, 2016, which would have
prompted a Direct Transfer code, not a Self-Report code.
By favoring Peterson’s interpretation of the OMS screen-
shot over Levy’s, the court, in Levy’s view, made an imper-
missible credibility determination. Levy maintains that, in
any event, the certified Case Summary does not conclusively
refute his argument about an initial Self-Report code because
it incorrectly states that Levy’s arrest was on March 1, 2016;
accordingly, a jury could reasonably infer from that discrep-
ancy that the Case Summary is neither infallible nor disposi-
tive as to the court’s order regarding Levy’s first appearance.
3 Levy’s lawyer attached the screenshot to a declaration filed in oppo-
sition to the Sheriff’s motion for summary judgment. On appeal, defend-
ants make several admissibility challenges to Levy’s reliance on the OMS
screenshot. But by raising those issues for the first time on appeal, defend-
ants have forfeited those arguments. See Opp v. Wheaton Van Lines, Inc., 231
F.3d 1060, 1066 (7th Cir. 2000) (“[H]er attack on the admissibility of the
affidavit is waived because she failed to raise it in the district court.”); see
also Lindquist Ford, Inc. v. Middleton Motors, Inc., 658 F.3d 760, 770 (7th Cir.
2011) (“To preserve an evidentiary objection for appeal, a party must make
a ‘timely objection or motion to strike … stating the specific ground of ob-
jection, if the specific ground was not apparent from the context.’” (quot-
ing Fed. R. Evid. 103(a)(1))).
No. 19-1424 11
Defendants respond by highlighting that Levy has not
presented any evidence to controvert Peterson’s testimony
about the meaning of the OMS screenshot.4 Consequently, de-
fendants insist that there is no dispute of fact as to the central
question in this case—whether the court actually ordered the
Sheriff to release Levy to self-report to the MCCC after his
first court appearance. According to defendants, there is no
dispute that the OMS screenshot does not support Levy’s ar-
gument that the Sheriff’s Office received an order to immedi-
ately release Levy to self-report to the MCCC after his first
court appearance. And because the Case Summary supports
defendants’ contention that the Sheriff received an order to
hold Levy at the MCCC after his first court appearance, de-
fendants urge us to affirm the district court’s judgment.
If the issue on appeal were simply one of dueling docu-
ments and the district court had picked defendants’ asserted
facts over Levy’s, that act would constitute reversible error.
Here, however, there are no such dueling documents. Both
the OMS screenshot and the Case Summary contain many
dates and codes. The OMS screenshot lists “Order To Release
From Custody” next to the field “Court Event,” but there are
also dates listed: the field “Notification Made On” has
“03/01/2016” listed, the field “Effective Date” has
“02/29/2016” listed, and the field “Date/Time Added” has
“02/29/2016 23:50” listed. To make matters more confusing,
4 Levy had attempted to present an expert witness, Alison Shine, who
would have asserted that a judge ordered Levy to self-report at his first
court appearance on March 1, and that the Sheriff’s Office had to have
been aware of that order through the court’s use of Odyssey and OMS.
The district court, however, excluded Shine’s testimony (as noted above)
and Levy does not challenge that ruling on appeal.
12 No. 19-1424
the screenshot also lists dates that accurately describe events
that occurred after Levy’s first court appearance. For example,
the field “Discharge Date” has “03/03/2016” listed, and at the
bottom of the page, there is a table that displays “$500 cash”
as a “Note” on the date of “03/01/2016 00:25.”
Consequently, it would be unreasonable to infer that this
screenshot only depicts information at the time the court had
entered a code after the first court appearance. Similarly, it
would be unreasonable to infer from the presence of a Self-
Report code amidst this range of dates that the court entered
a Self-Report code after the first court appearance. Moreover,
in his affidavit, Peterson made the uncontroverted assertion
that the OMS screenshot cannot be interpreted to show what
code the court entered at Levy’s first appearance. This testi-
mony and evidence is enough to affirm the district court’s de-
cision that there was no dispute of material fact as to whether
the court entered a Self-Report code after Levy’s first court
appearance. With that factual issue resolved, we move on to
whether the district court properly entered summary judg-
ment for defendants on the Monell claim.
B. Monell Liability
Plaintiffs like Levy may sue municipalities under 42 U.S.C.
§ 1983 when their actions violate the Constitution. See gener-
ally Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658 (1978). To prevail on a Monell claim, plaintiffs must iden-
tify an action taken by the municipality, the requisite degree
of culpability, and a causal link between the municipality’s
action and the deprivation of federal rights. Bd. of the Cty.
Commissioners v. Brown, 520 U.S. 397, 403–04 (1997). A munic-
ipality “acts” through its written policies, widespread prac-
tices or customs, and the acts of a final decisionmaker. Id. A
No. 19-1424 13
municipality has the requisite degree of culpability if it acts
with deliberate indifference to the known or obvious conse-
quences of its action. Id. at 407.
The Sheriff’s Office does not dispute that it created a sys-
tem with the Marion County Superior Courts to process in-
mates for release utilizing Odyssey, OMS, and the release
workflow, which included an agreement that if a court modi-
fied a release order, court staff would contact the Sheriff’s in-
mate records staff to notify them of the change. Likewise, the
Sheriff does not challenge the district court’s decision to ana-
lyze this system as a policy or practice under Monell.
That said, it is critical to specify the exact policy or practice
at issue here to properly conduct our analysis. As noted
above, the district court discussed Monell as if there were two
polices in this case—the “Transmittal Policy” and the
“Change Notification Policy”—when determining whether
the Sheriff’s Office had acted with deliberate indifference.
Levy argues that the two must be treated as one policy for the
purposes of this appeal, and defendants appear to concede
the same.
A review of the record supports this conclusion. The evi-
dence suggests that the Sheriff’s Office adopted the Change
Notification Policy to ensure that it received notice of subse-
quent orders that may have been otherwise overlooked by the
existing Transmittal Policy. Thus, the issue on appeal is
whether Levy can establish that the Sheriff’s adoption and use
of this modified Transmittal Policy constituted deliberate indif-
ference to a substantial risk of detainees’ over-detention and
whether that policy’s adoption caused his own over-deten-
tion.
14 No. 19-1424
For the reasons explained below, we conclude that absent
evidence that the Sheriff’s Office knew or should have known
that the modified Transmittal Policy would fail, or failed so
often that it would obviously result in detainees’ over-deten-
tion, Levy cannot to show that defendants acted with deliber-
ate indifference.
Contrary to the district court’s reasoning, Levy posits that
to establish deliberate indifference, he is not required to show
“other instances” where the failure to follow the Change No-
tification Policy caused prolonged detentions. This is so, he
explains, because he challenges a “decision to adopt [a] par-
ticular course of action [ ] properly made by that govern-
ment’s authorized decisionmakers,” and that is a sufficient
basis to find municipal liability under § 1983. Pembaur v. City
of Cincinnati, 475 U.S. 469, 481 (1986).
Levy believes that he has shown the Sheriff’s Office took
such a course of action here because he presented (1) evidence
that the Sheriff selected OMS without properly vetting the
software or considering its consequences; (2) evidence that
the Sheriff used OMS despite multiple Marion County judges
raising concerns about delayed releases and a group of those
judges endorsing an entirely different software package;
(3) evidence that the inmate records staff previously failed to
timely process release orders entered by courts into Odyssey
and received through OMS; (4) evidence of integration issues
from the time of OMS’s implementation; and (5) evidence that
release information cannot be properly transmitted between
Odyssey and OMS.
Defendants reject much of this evidence as “unproven al-
legations” that there were over-detention problems arising
from different scenarios having nothing to do with the inmate
No. 19-1424 15
release policy developed between the courts and the Sheriff’s
Office.5 Likewise, defendants believe the district court got it
right when it cited City of Oklahoma City v. Tuttle to support its
conclusion that Levy needed evidence of other instances of
the relevant policy causing constitutional violations. 471 U.S.
808, 823–24 (1985).
As an initial matter, we have explained that the “more
proof” that Tuttle describes is necessary to establish that
“there is a true municipal policy at issue, not a random event.”
Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005); see also
Thomas v. Cook Cty. Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir.
2010) (“We do not adopt any bright-line rules defining a
‘widespread custom or practice.’ … But the plaintiff must
demonstrate that there is a policy at issue rather than a ran-
dom event.” (citations omitted)).
In this case, however, there is no concern that a policy is
not at play. In fact, the Sheriff’s Office acknowledged in its
appellate brief that it “does not challenge the district court’s
decision to analyze this release process as a policy or practice
under Monell.” Moreover, the record supports Levy’s narra-
tive that by continuing to use the Transmittal Policy without
any modification, defendants persistently pursued a course of
action of selecting and continuing to use a case management
system despite many concerns from stakeholders, numerous
integration issues, and an inability to process updated release
5 Levy is a putative class member in another case pending in the
United States District Court for the Southern District of Indiana, Driver, et
al. v. The Marion County Sheriff, Case No. 1:14-cv-2076, in which the plain-
tiffs challenge the Sheriff’s purported policies and practices of holding de-
tainees for up to seventy-two hours. He submitted experts’ depositions
and other documents from that litigation to support his claim in this case.
16 No. 19-1424
orders from the courts. Thus, if Levy’s detention had occurred
prior to the Sheriff’s adoption of the Change Notification Pol-
icy, and he therefore challenged the use of the Transmittal
Policy prior to the Change Notification Policy, then there may
have been a question for the jury as to deliberate indifference.
But Levy’s detention occurred after the Sheriff’s Office
took steps to address the purported problems with the Trans-
mittal Policy. Thus, as in Armstrong v. Squadrito, 152 F.3d 564(7th Cir. 1998), we are faced with the question of whether a
prison’s use of a system with significant weaknesses can be
considered deliberately indifferent, even after the prison has
taken affirmative steps to address those weaknesses.
In Armstrong, a pretrial detainee asserted that the “will
call” policy at the Allen County (Indiana) jail was constitu-
tionally inadequate because “it display[ed] indifference to the
rights of those arrested with a civil warrant to a prompt ap-
pearance before a court.” Id. at 577. Specifically, the evidence
showed that once the jail put detainees on the will call list, it
took absolutely no action to ensure that they were given a
court date and that they were not over-detained. Id. at 577–78.
Although we explicitly noted that “the will call system in
place at the time of Armstrong’s arrest and detention …
seem[ed] to amount to a policy of deliberate indifference,” id.
at 579, we decided the claim failed because “the jail had a
backup plan—of sorts, at least—it accepted formal written
complaints from the detainees.” Id. The existence of this fail-
safe “show[ed] an awareness on the part of jail officials that a
danger exist[ed] and an attempt to avert an injury from that
danger.” Id. Indeed, the “procedure saved the will call system
from being deliberately indifferent.” Id. at 579.
No. 19-1424 17
The logic of Armstrong applies with equal force here.
Given the concerns regarding the Sheriff’s ability to receive
and act upon court orders processed through OMS, the Sher-
iff’s Office created backup plans to address the limitations of
its systems. First, it developed the release workflow process
as part of the Transmittal Policy to ensure that the courts’ or-
ders were properly handled and effected. Second, and most
importantly, the Sheriff’s Office developed the Change Noti-
fication Policy, a modification of the release workflow process
that required court officials to call or email the Sheriff with
any modifications to prior court orders.
As in Armstrong, these actions “show[ed] an awareness on
the part of jail officials that a danger exist[ed] and an attempt
to avert an injury from that danger.” Consequently, without
evidence that the Sheriff’s Office knew or should have known
that these safeguards would fail, or failed so often that they
would obviously result in over-detentions, we cannot con-
clude that defendants acted with deliberate indifference to the
risk of detainees’ over-detention. Levy’s singular experience
does not support a finding to the contrary.6
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
6 Because the district court appropriately held that Levy did not pre-
sent sufficient evidence to show deliberate indifference, we need not ad-
dress the Sheriff’s argument regarding causation.