Deputy Prosecutor Wins Summary Judgment On Malicious Prosecution Claims

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Olivia Covington for www.theindianalawyer.com
 A deputy prosecutor accused of encouraging a criminal investigation into a former sheriff’s deputy due to connections she made from a television show based on her life has been cleared of the allegations against her after a district court judge found her actions were covered by qualified immunity.
Chief Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana in an order Monday granted deputy prosecutor Barbara Trathen’s motion for summary judgment in part in Paul McGann v. Barbara Trathen, 1:16-cv-01235. That case dates to May 2014, when McGann, a former sergeant with the Marion County Sheriff’s Office, was working crowd control at the Indianapolis Motor Speedway the night before the Indianapolis 500.
While responding to a report of a fight in the Speedway’s Coke Lot, McGann deployed his Taser on Zachary Pollack and arrested him for resisting law enforcement, battery and illegal possession of alcohol by a minor. The sergeant later recounted the incident in an email in which he claimed Pollack grabbed his left arm, then refused to be handcuffed. However, after reviewing a video recording of the incident in the Coke Lot, the Marion County Prosecutor’s Office chose to dismiss the charges against Pollack.
Pollack’s attorney then contacted Trathen to urge the prosecutor’s office to investigate McGann for false informing, official misconduct and possibly perjury. Trathen — whose career was the basis of the CBS television show “Close to Home” — responded by asking the attorney for information about the incident and seeking the names of witnesses. She also told the attorney, “(W)e will get this going.”
Trathen then forwarded an email chain with information about the incident to Captain Wayne Sharp, who conducted several interviews, including an interview with Pollack at which Trathen was present. Sharp also interviewed McGann, then decided to charge him with Class D felony official misconduct and battery.

Sharp and Trathen signed a probable cause affidavit, which led to a warrant for McGann’s arrest. However, the sergeant, who eventually resigned, was acquitted on both counts

McGann then filed the instant suit against Trathen, Marion County Prosecutor Terry Curry and Sheriff John Layton, who were eventually dismissed. The remaining claims in Monday’s opinion alleged malicious prosecution and intentional and negligent infliction of emotional distress on Trathen’s part.

Specifically, McGann claimed Trathen violated his rights by failing to disclose her connection to the case. Pollack’s father, Michael Pollack, is a marketing executive at the local CBS affiliate that aired “Close to Home,” a connection the former deputy claimed should have been disclosed.

But Magnus-Stinson disagreed, noting McGann failed to provide evidence of a direct connection between Trathen and Michael Pollack, so “she could not have disclosed a connection that did not exist.” Though there was evidence of a connection between Trathen and CBS, the chief judge said McGann did not argue that he had the right in 2014 “to be free from an investigation when the investigating official has a connection to the victim’s father.”

Similarly, Magnus-Stinson rejected the argument that Trathen’s connection to CBS was exculpatory and instead found she was entitled to qualified immunity as it related to her failure to disclose the connections. However, she disagreed with Trathen’s argument that she was also entitled to absolute immunity, finding the deputy prosecutor performed investigatory work that is not protected by such immunity.

Finally, the chief judge determined McGann dismissed his claims of negligent and intentional inflection of emotional distress by failing to mention them in his Statement of Claims.

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