Date: 09-15-2023

Case Style:

Brenden Marnae White v. Jeremy T. Mull

Case Number: 4:22-CV-28

Judge: Jane Magnus-Stinson

Court: United States District Court for the Southern District of Indiana (Floyd County)

Plaintiff's Attorney: Michaelia Gilbert and William Gray

Defendant's Attorney: Brandly Lee Arnold and Gustavo Angel Jimenez

Description: New Albany, Indiana civil rights lawyers represented Plaintiff who sued Defendants a Fourth Amendment false imprisonment theory.


In several encounters with police, Mark Anthony White ("Mark White") misidentified himself as his brother, Plaintiff Brenden Marnae White ("Brenden White"). As a result, Brenden White was charged in Clark County, Indiana, and subsequently arrested based on Mark White's misidentification. When the misidentification was confirmed, Brenden White was ultimately released, and the misidentified criminal cases were dismissed. Brenden White then initiated this litigation against government officials involved in the criminal cases. Brenden White alleges a federal claim under the Fourth Amendment pursuant to § 1983 and state claims of false imprisonment and malicious prosecution. After some Defendants settled, only two Defendants remain - Clark County Prosecuting Attorney Jeremy T. Mull and Clark County Deputy Prosecutor Andrew Steele (the "State Defendants").

The State Defendants have moved for summary judgment, [Filing No. 90], and their motion is now ripe for the Court's review.

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A. Brenden White Is Charged in Multiple Criminal Cases

1. The First Criminal Case - Mark White Claims to be Brenden White

On January 24, 2020, Mark White was arrested in Clark County for residential entry and possessing a syringe. [Filing No. 94-13 at 1.][2] Upon arrest, he did not identify himself using his

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name, but instead misidentified himself using the name of his brother, Brenden White. [Filing No. 94-13 at 2.] As a result, criminal charges were filed against Brenden White. [Filing No. 94-13; State of Indiana v. Brenden Marnae White, Case No. 10C02-2001-F6-000151 ("the First Criminal Case").][3]

After the First Criminal Case was filed, Brenden White learned that he was the one who had been charged as a result of the January 24, 2020 arrest, not his brother. [Filing No. 94-3 at 3.] Brenden White was aware that Mark White knew his personally identifying information; Brenden White was told by Mark White that "yes, [Mark White] had warrants" so when Mark White was arrested, he "didn't want to use [Mark White's] name"; he misidentified himself as Brenden White instead. [Filing No. 94-3 at 2.] Brenden White then reported to the State Police that "someone used [his] name in a case." [Filing No. 94-3 at 1.] He did not call the Clark County Prosecutor's Office to report the misidentification. [Filing No. 94-3 at 1.]

2. The Second Criminal Case - Mark White Claims to be Brenden White

On February 12, 2020, Mark White was arrested for shoplifting in Clark County. [Filing No. 94-14 at 3.] He again identified himself as Brenden White. [Filing No. 94-14 at 3.] The arresting officer reviewed Brenden White's prior criminal history, which showed that Brenden White had pled guilty to felony theft in Hendricks County. [Filing No. 94-14 at 3.] Brenden White was charged with one count of felony theft and one count of misdemeanor theft. State of Indiana v. Brenden Marnae White, Case No. 10C03-2002-F6-248 ("the Second Criminal Case"). The assigned prosecuting attorney for the Second Criminal Case was Deputy Prosecutor Steele. [Filing No. 94-4 at 1.]

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On or about March 10, 2020, Brenden White was assigned a public defender, Chief Deputy Public Defender Jennifer Harmeyer. [Filing No. 94-1 at 2.] Chief Deputy Defender Harmeyer was supposedly representing Brenden White, but she discovered that "the person [she] had been interacting with was in fact Mark Anthony White." [Filing No. 94-1 at 2.] Chief Deputy Defender Harmeyer contacted Deputy Prosecutor Steele to explain "that the person holding [himself] out to be [Brenden White] was in fact Mark Anthony White." [Filing No. 94-1 at 2.] After Deputy Prosecutor Steele was notified, he instructed his investigator to investigate the potential misidentification. [Filing No. 90-1 at 1.]

3. The First Criminal Case Is Dismissed As Against Brenden White

On March 12, 2020, Deputy Prosecutor Steele's investigator told the arresting officer in the First Criminal Case that "Brenden White is the brother of Mark Anthony White." [Filing No. 9413 at 2.] The Probable Cause Affidavit was updated to say that the First Criminal Case against Brenden White was "due to Mark [White] giving officers all of Brenden [White's] information. The person on the scene . . . was actually Mark Anthony White." [Filing No. 94-13 at 2.] Consequently, the First Criminal Case was dismissed as to Brenden White, and the case was refiled against Mark White. [Filing No. 94-12 at 1; Filing No. 94-13 at 2.]

4. The Third Criminal Case - Mark White Claims to be Brenden White

On April 2, 2020, because Mark White again identified himself as Brenden White, Brenden White was charged with one count of misdemeanor criminal trespass and one count of misdemeanor unauthorized motor vehicle entry in Clark County. [Filing No. 94-7 at 1; State of Indiana v. Brenden Marnae White, Case No. 10C03-2004-CM-000472 ("the Third Criminal Case").] The assigned prosecuting attorney for the Third Criminal Case was again Deputy Prosecutor Steele. [Filing No. 94-7 at 1.]

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Brenden White learned that he had been charged in the Second Criminal Case and the Third Criminal Case because he "just kept checking MyCase." [Filing No. 94-3 at 3.] Although Brenden White knew about these pending cases, because he "just looked at the charge, . . . and it wasn't [him]," he did not know that an Initial Hearing was scheduled. [Filing No. 94-3 at 9.]

5. The Fourth Criminal Case - Accurately Charged Against Brenden White

On June 1, 2020, Brenden White was charged in Hendricks County for several offenses including unlawfully possessing a syringe. State of Indiana v. Brenden White, Case No. 32D05-2006-F6-000434 ("the Fourth Criminal Case"). The same day, the Hendricks County Prosecuting Attorney notified Deputy Prosecutor Steele of the Fourth Criminal Case. [Filing No. 90-1 at 1.] Unlike the first three criminal cases, Brenden White does not dispute that these charges were accurately filed against him.

6. Deputy Prosecutor Steele and Chief Deputy Defender Harmeyer Communicate Regarding the Misidentification Issue

On July 7, 2020, Chief Deputy Defender Harmeyer contacted Deputy Prosecutor Steele to note that the First Criminal Case against Brenden White had been dismissed and refiled against Mark White. [Filing No. 94-1 at 2-3.] She stated in an email, "If you agree that these cases should be proceeding against Mark White, please let me know when you file the new cases so I can have Mark [White] appear in court for his Initial Hearings." [Filing No. 94-1 at 2-3.] Chief Deputy Defender Harmeyer did not receive a response to her email from Deputy Prosecutor Steele. [Filing No. 94-1 at 2-3.]

On August 14, 2020, the Initial Hearing for the Third Criminal Case was continued. [Filing No. 90-1 at 2.] Deputy Prosecutor Steele did not object to this continuance because he was "trying to gather identifying information on [Brenden White] and Mark White." [Filing No. 90-1 at 2.] That same day, Chief Deputy Defender Harmeyer sent another email to Deputy Prosecutor Steele stating, "Let me know when you refile on Mark White and I'll get Mark [White] to appear for his Initial Hearings." [Filing No. 94-1 at 3.] She informed Deputy Prosecutor Steele that an Initial Hearing in the Third Criminal Case was set for September 18, 2020. [Filing No. 94-1 at 3.]

On September 18, 2020, Deputy Prosecutor Steele requested a continuance of the Initial Hearing for the Third Criminal Case. [Filing No. 90-1 at 1-2.] He did so in order to "continue trying to verify the defendant's identity and inform" Chief Deputy Defender Harmeyer. [Filing No. 90-1 at 1-2.] Deputy Prosecutor Steele "informed the Court at the time that there was an issue with the defendant's identity and that [he] was trying to verify the information provided by [Chief Deputy Defender Harmeyer]." [Filing No. 90-1 at 1-2.] The Initial Hearing date was reset to October 2, 2020. [Filing No. 94-7 at 3.]

7. The Fifth Criminal Case - Accurately Charged Against Brenden White

On October 2, 2020, Brenden White was charged in Hendricks County with several offenses including the unlawful possession of a syringe and was held in jail in Hendricks County. State of Indiana v Brenden White, Case No. 32D05-2010-F6-000835 ("the Fifth Criminal Case"). Brenden White acknowledges that he was accurately named in the Fifth Criminal Case. [Filing No. 94-3 at 4.]

Sometime that same day, Deputy Prosecutor Steele received a notice about the Fifth Criminal Case from the Hendricks County Prosecuting Attorney. [Filing No. 90-1 at 1.] Also that day, Chief Deputy Defender Harmeyer sent a follow-up email about the Second Criminal Case to Deputy Prosecutor Steele, stating "These dates are coming around again? Just wanted to give you a heads up so you can file charges against the correct person."

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The State Defendants argue that "the United States Supreme Court has held prosecutors are absolutely immune from actions taken within the scope of their prosecutorial duties." [Filing No. 91 at 4-5.] The absence of prosecutorial immunity, the State Defendants argue, would "prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system." [Filing No. 91 at 5 (quotation and citation omitted).] Specifically, the State Defendants argue that they acted within their prosecutorial roles throughout Brenden White's criminal cases. [Filing No. 91 at 6.] They note that when Deputy Prosecutor Steele learned of the potential misidentification, he instructed an investigator to learn more about the issue; he agreed to continue Brenden White's initial hearings for the sake of that investigation; and after reviewing booking photographs concerning the misidentification, he moved to dismiss the Second Criminal Case and the Third Criminal Case. [Filing No. 91 at 6.] These actions, the State Defendants argue, entitle them to absolute immunity because of their role as advocates. [Filing No. 91 at 6.]

In response, Brenden White argues that because the State Defendants were acting as investigators or carrying out administrative functions, they are not entitled to absolute immunity. [Filing No. 95 at 5-7.] Specifically, Brenden White argues that Deputy Prosecutor Steele admits in his Declaration that he performed his role of an investigator in evaluating the misidentification. [Filing No. 95 at 6.] Brenden White further argues that the State Defendants "abandoned their role as advocates for the State" and acted in an administrative role "when they continued with the prosecution of [Brenden White] after notification that [Brenden White] had been wrongly charged." [Filing No. 95 at 7-8.]

In reply, the State Defendants argue that "[t]he decision of whether to dismiss or continue to prosecute a case is inevitably a prosecutorial function, and [the State] Defendants are therefore entitled to absolute immunity." [Filing No. 96 at 1.]

As the Seventh Circuit has instructed, "Prosecutors are absolutely immune from liability for damages under § 1983 for conduct that is functionally prosecutorial; this immunity is understood to broadly cover all conduct associated with the judicial phase of the criminal process." Bianchi v. McQueen, 818 F.3d 309, 316 (7th Cir. 2016) (citing Van de Kamp v. Goldstein, 555 U.S. 335, 341-43 (2009); Burns v. Reed, 500 U.S. 478, 486 (1991); Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)). "Whether or not an action falls within the scope of his prosecutorial duties depends upon its function.... The analysis hinges on whether the prosecutor is, at the time, acting as an officer of the court, as well as on his action's relatedness to the judicial phase of the criminal process." Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir. 2012) (citing Van de Kamp, 555 U.S. at 342-43; Imbler, 424 U.S. at 430, 431 n.33.) On one hand, when a prosecutor "search[es] for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested," he is "perform[ing] the investigative functions normally performed by a detective or police officer" and is not entitled to prosecutorial immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). On the other hand, when a prosecutor "professionally] evaluat[es] the evidence assembled by the police," in "preparing for the initiation of judicial proceedings," he acts as an advocate, entitled to prosecutorial immunity. Id.

To evaluate whether the State Defendants are entitled to absolute immunity, the Court focuses on the "function" of the State Defendants' conduct which allegedly caused Brenden White's injury. Brenden White argues that he was arrested because Deputy Prosecutor Steele failed to notify the other deputy prosecutor covering the Initial Hearing that Brenden White was potentially misidentified. [Filing No. 95 at 6.] But that kind of prosecutorial conduct is entitled to absolute immunity. See Van de Kamp, 555 U.S. at 345 (In hypothetical suit "seeking damages not only from the trial prosecutor but also . . . from the trial prosecutor's colleagues-all on the ground that they should have found and turned over the impeachment material . . . ., all these prosecutors would enjoy absolute immunity.").

Brenden White argues that he was arrested because Deputy Prosecutor Steele failed to take "corrective action to inform the Clark Circuit Court No. 3" that Brenden White was potentially misidentified. [Filing No. 95 at 6.] But appearing before a judge to request a warrant, and conversely not appearing before a judge to request a continuance, is "conduct associated with the judicial phase of the criminal process." Bianchi, 818 F.3d at 316 (citations omitted). Brenden White argues he was injured because the State Defendants did not promptly dismiss the charges against him. But in Indiana, a prosecutor is "vested . . . with the discretion to dismiss pending charges." Holvoet v. State, 689 N.E.2d 469, 472 (Ind.Ct.App. 1997); see also Ind. Code § 35-34-1-13(a) (“Upon motion of the prosecuting attorney, the court shall order the dismissal of the indictment or information.") Prosecutor Mull, as a supervisory prosecutor, is similarly immune. See Van de Kamp, 555 U.S. at 346 ("[S]upervisory prosecutors are immune in a suit directly attacking their actions related to an individual trial.").

Even if the conduct causing injury was Deputy Prosecutor Steele's "investigation" into the potential misidentification, he would still be entitled to prosecutorial immunity. In his undisputed Declaration, Deputy Prosecutor Steele states that he "instructed" his investigator "to investigate the matter." [Filing No. 90-1 at 1.] And his investigator later "notified [him] that [the investigator] had obtained booking photographs." [Filing No. 90-1 at 3.] Upon receiving those booking photographs, Deputy Prosecutor Steele's "investigation" was simply his evaluation of the evidence in preparation for a judicial proceeding, whether that proceeding was preparing for trial or dismissing Brenden White's cases. These actions are within the scope of a prosecutor's functions, for which the State Defendants are entitled to prosecutorial immunity. See Anderson v. Simon, 217 F.3d 472, 475-76 (7th Cir. 2000) (absolute immunity where prosecutor "reviewed and weighed the evidence," and "determined that additional evidence was necessary to support a . . . charge"); Spiegel v. Rabinovitz, 121 F.3d 251, 257 (7th Cir. 1997) (absolute immunity where "the police conducted an investigation and wrote up reports" and the prosecutor "merely reviewed these documents and interviewed the parties in order to evaluate the value of the cases involved").

Additionally, Prosecutor Mull enjoys prosecutorial immunity for an alleged policy of failing to train deputy prosecutors on case evaluation or not providing deputy prosecutors with discretion to dismiss cases. See Van de Kamp, 555 U.S. at 346-47 (holding that supervisory prosecutors are entitled to prosecutorial immunity for supervision and training regarding prosecutorial decisions).

Outcome: Granted

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