Unpublished Dispositionnotice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit, 937 F.2d 610 (7th Cir. 1988)

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U.S. Court of Appeals for the Seventh Circuit - 937 F.2d 610 (7th Cir. 1988) Annette GOODE, Plaintiff/Appellant,v.Trooper Tim POLING, Star No. 5043, Defendant/Appellee

No. 90-3234.

United States Court of Appeals, Seventh Circuit.

Argued June 18, 1991.Decided July 10, 1991.

Before BAUER, Chief Judge, and COFFEY and EASTERBROOK, Circuit Judges.


In this action brought pursuant to 42 U.S.C. § 1983, Annette Goode sued Trooper Tim Poling of the Indiana State Patrol. The district court granted Poling's motion for summary judgment. We affirm.

On September 12, 1988, Annette Goode finished her shift at Methodist Hospital in Gary, Indiana at 11:00 p.m. Still in her nurse's uniform, she got into her Buick and took the Indiana Toll Road on her way to her home in Chicago, Illinois. She noticed that hers was the only car on the road for most of her trip. At approximately 11:45 p.m. and about one mile from the toll plaza, Trooper Tim Poling observed Goode's Buick straddling the white line between two lanes at about 40 miles per hour. He observed the Buick for about 1/2 to 3/4 of a mile, thinking the driver might be intoxicated or otherwise incapacitated. He pulled up alongside the car to get a look at the driver. He noticed there was only one person in the car, drove behind it, intending to stop it, and turned on his mounted police flashing lights. He did not activate his siren.

About 20 feet past the toll plaza, both cars stopped on the traveled portion of the highway. Poling got out of his car and directed Goode to pull over to the side of the road, but she continued to drive on. In Goode's rendition of the facts, she alleged that when Poling approached her car and told her to pull off the road, he was verbally abusive. In addition, because the area that he designated for her to pull over was unlit, fearful for her personal safety, she continued to drive on to find a more populated and lighted area on the shoulder.

Poling drove his car in front of Goode's and slowed down until both cars stopped. When Poling went to Goode's car, he announced that she was under arrest for resisting law enforcement. Goode alleges, and Poling confirms in his deposition testimony, that he did not inform her that she was observed driving below the minimum speed limit or in two lanes in violation of Indiana law. Nor did he ask to see her driver's license. Goode responded that he could not arrest her. Poling states that he asked her to get out of the car, but that she started to back up the car slowly. Goode states that he was verbally abusive with her. Poling then reached in the open window, unlocked and opened the car door, grabbed Goode under the arm, and pulled her out of the car. Poling's version is that as he was trying to unlock the door, Goode was hitting his hand with her fist and while he was trying to put handcuffs on her, she was hitting and kicking him.1  Goode denies ever striking or threatening Poling. Her version is that Poling began pushing and shoving her as soon as he dragged her out of the car and that he stomped on her foot. It is uncontested that Poling put his foot in front of Goode's feet and forced her to the ground where he handcuffed her as she lay face up. Poling admits he might have stepped on her foot when trying to handcuff her.

When Goode got up, she told Poling that her foot was hurt. Poling placed her in his squad car and called for assistance. After three other officers arrived, Goode was administered an Alco-Sensor test, which indicated that she had not been drinking.2  She was taken to the Lake County Jail where she was examined by a medical officer and conveyed to the hospital, where it was determined that she had suffered a fractured foot.

Goode was charged with: 1) resisting a law enforcement officer in continuing to move her car when directed to stop; and 2) resisting a law enforcement officer and battery on a police officer for hitting Poling on the hand while he was trying to handcuff her. She was not ticketed for driving too slowly on the toll road or for straddling the white line. Goode entered a guilty plea to resisting a law enforcement officer in continuing to move her car pursuant to a plea agreement, and the other charges were dropped.

Goode originally filed this action alleging civil rights violations under 42 U.S.C. §§ 1983, 1985, 1986 and 1988 against the Indiana State Police Department and against Officer Poling in his individual and official capacities. In her complaint, Goode alleged that Poling violated her rights under the fourth and fourteenth amendments while acting under color of state law by stopping and arresting her without probable cause and by using excessive force in effecting the arrest. The district court dismissed the action as to the Police Department and as to Officer Poling in his official capacity. Poling then moved for summary judgment, attaching to his motion his memorandum, a copy of his deposition, Goode's responses to requests for admissions, and his proposed uncontested facts. Goode responded by submitting a memorandum and an affidavit.

The district court noted that in the Northern District of Indiana summary judgment proceedings are governed concurrently by Federal Rule of Civil Procedure 56 and Local Rule 11. Goode failed to comply with Rule 11 by not filing a "statement of genuine issues." Despite the procedural infirmity, the district court considered the materials Goode submitted, found them insufficient to raise a genuine issue as to any material fact, and granted Poling's motion for summary judgment. The district court also denied Goode's timely motion for reconsideration. Goode appeals the district court's determination only on the excessive force issue.

We review a district court's grant of summary judgment de novo. Renovitch v. Kaufman, 905 F.2d 1040, 1044 (7th Cir. 1990). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Further, Local Rule 11 of the United States District Court for the Northern District of Indiana requires the party opposing a summary judgment motion to "file any affidavits or other documentary material controverting the movant's position, together with an answer brief and a concise 'statement of genuine issues' setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated."

At oral argument, Goode conceded that failure to comply with Local Rule 11 is a ground for granting summary judgment and also conceded her failure to comply with it. She stated that she did not address her noncompliance with the local rule in her brief because the district court had addressed the merits of the summary judgment motion. This court may affirm a district court's decision on any ground supported by the record. DeBruyne v. Equitable Life Assurance Soc'y of the United States, 920 F.2d 457, 464 n. 10 (7th Cir. 1990). Because Goode failed to comply with Local Rule 11, we affirm the district court's grant of summary judgment. Furthermore, were we to consider the materials that Goode submitted, the result would be the same--the district court's granting of summary judgment was proper.



Poling was subsequently treated for a minor leg injury


A drug screen test proved negative for drugs