JANE MAGNUS-STINSON, Chief District Judge.
Plaintiff Timothy Johnson brought this lawsuit after an altercation during his arrest left him with a compound leg fracture. The parties agree on this, and not much else. Mr. Johnson contends that Defendant Officer Michael Rogers used excessive force in kicking his leg after he stood up (despite orders to remain seated), ostensibly to get off of the cold grass. But Mr. Johnson's version of events is flatly and unequivocally contradicted by the surveillance video from outside the Community Health Services where the incident occurred. Moreover, though Mr. Johnson now contends that he was just standing in the grass when Officer Rogers engaged him, Mr. Johnson ultimately pleaded guilty to resisting law enforcement. Mr. Johnson's Fourth Amendment claim under § 1983 therefore fails to clear the double barriers posed by qualified immunity and Heck v. Humphrey, 512 U.S. 477 (1994). Mr. Johnson's state law claims also fall short under the Indiana Tort Claims Act and on their merits.
But in evaluating Defendants' Motion for Summary Judgment, the Court is in the unfortunate situation of first having to address several ancillary motions regarding briefing. Then, the Court must parse Mr. Johnson's myriad evidentiary objections to the evidence cited in Defendants' briefing. Because Defendants failed to correct the easily fixable evidentiary issues identified by Mr. Johnson, and because Mr. Johnson did not substantially augment this record with his own filings, the Court is left with an extremely sparse record from which to draw its factual basis. Despite doing themselves no favors in failing to correct the evidentiary shortcomings, the videographic evidence places this case beyond the purview of a jury and demonstrates that Defendants are entitled to judgment as a matter of law. Therefore, after resolving the ancillary matters and evidentiary objections, the Court
Mr. Johnson initially filed this lawsuit in Marion Superior Court on September 9, 2016, naming Indianapolis Metropolitan Police Department ("
On October 18, 2018, Defendants moved for summary judgment on all of Mr. Johnson's claims. [
Three ancillary motions pend before the Court, two of which impact the briefing the Court may consider in ruling upon Defendants' Motion for Summary Judgment.
The first is Mr. Johnson's Motion for Leave to File His Amended Brief in Opposition to Defendants' Motion for Summary Judgment, [
As the Seventh Circuit has explained in a slightly different context, "In the normal course of events, justice is dispensed by the hearing of cases on their merits . . . ." Schilling v. Walworth Cnty. Park & Planning Comm'n, 805 F.2d 272, 275 (7th Cir. 1986). And without wading into the sideshow of the parties' ongoing discovery disputes, Mr. Johnson's counsel's trial schedule provides a legitimate basis for requesting additional time to prepare an adequate response brief. That is not to say that Mr. Johnson's counsel did an exemplary job of managing this situation. For starters, Mr. Johnson's counsel waited 22 days after Defendants filed their Motion for Summary Judgment to file his Motion for Extension of Time, [see
Nonetheless, Mr. Johnson has the better of the argument. First, Mr. Johnson is correct that the Court never ruled on the substance of his Motions for Extension of time. Rather, the Court denied the motions as moot after Mr. Johnson timely filed a response to Defendants' Motion for Summary Judgment. [
Second, Defendants move to strike most of Mr. Johnson's surreply, arguing that it exceeds the scope of a permissible surreply under Local Rule 56-1(d). [
Finally, Mr. Johnson has filed a Request for Oral Argument, [
The Court next addresses the scope of the evidence which may be properly considered in evaluating Defendants' Motion for Summary Judgment. Mr. Johnson lodges what are largely authenticity objections to all or parts of Defendants' exhibits 6 through 10 and 14, found at
In reply, Defendants argue that they properly supported their factual contentions with citations to record evidence in compliance with the Federal Rule of Civil Procedure 56(c)(1)(A), Local Rule 56-1(e), and the undersigned's Practices and Procedures. [
First and foremost, it is clear that Defendants have operated under a misunderstanding of what is required of evidence on summary judgment. Compliance with Rule 56(c)(1)(A), Local Rule 56-1(e), and the Practices and Procedures are necessary but not sufficient conditions that must be met for evidence to be considered on summary judgment. Thus, Defendants' recitation of the law in their reply brief is incomplete. They are correct that parties must cite "to particular parts of materials in the record," Fed. R. Civ. P. 56(c)(1)(A), and must "support each fact the party asserts in a brief with a citation" to evidence, S.D. Ind. L.R. 56-1(e). They are also correct, as a general matter, that the types of submissions which may be considered on summary judgment include materials disclosed in discovery or tendered at a deposition. Cf. S.D. Ind. L.R. 56-1(e) (noting that parties may support factual assertions with citations "to a discovery response, a deposition, an affidavit, or other admissible evidence"). But these requirements explain only how factual assertions must be supported. They do not address what makes the evidence cited in support of those factual assertions substantively admissible on summary judgment. As to that issue, the case law is clear: "In [considering] summary judgment, a court may consider any material that would be admissible or usable at trial, including
To assess admissibility, courts turn to the Federal Rules of Evidence. See id.; Fed. R. Evid. 1101. As set forth above, most of Mr. Johnson's objections deal with authentication. In general, "[t]o satisfy the requirement of authenticating . . . an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). Rule 901(b) sets forth many forms of evidence that one may offer to meet this burden, though many documents of the type offered by Defendants may be self-authenticating under Rule 902. Public documents and records of regularly conducted activities are generally selfauthenticating (requiring no additional evidence to demonstrate authenticity) if accompanied by seal or certification. See, e.g., Fed. R. Evid. 902(1)-(2), (4), (11).
The problem for Defendants is that the challenged exhibits lack any evidence supporting authentication. Exhibits 6 through 10 and 14, which are attachments to
The Seventh Circuit very recently "examine[d] . . . how district courts manage summary judgment practice, particularly with respect to the presentation of evidence for purposes of summary judgment." Cehovic-Dixneuf v. Wong, 895 F.3d 927, 930-31 (7th Cir. 2018) (Hamilton, J.). In its in-depth examination of summary judgment procedure, the court addressed how situations much like this one may be handled, observing:
Id. at 931-32 (citations omitted). But the court also anticipated that a party might well raise such evidentiary objections, as they are entitled to do. When that happens, the other party is entitled to respond, perhaps "with a supplemental affidavit or two[,] to cure the problems." Id. at 932. "Nevertheless"—even where it is abundantly clear that the problems could have easily been cured by submission of authenticating affidavits or self-authenticating certifications—"when an objection is raised, the court must apply Rule 56(e) and sustain the objection." Elghanmi v. Franklin Coll. of Ind., Inc., 2000 WL 1707934, at *1 (S.D. Ind. 2000) (Hamilton, J.) (cited with approval in Cehovic-Disneuf, 895 F.3d at 932).
Here, it is abundantly clear that most if not all of the authenticity issues in Defendants' exhibits could have been cured with affidavits attesting to their authenticity or certifications and signatures from the appropriate public officials. The unsworn statements in the internal affairs transcriptions could have been brought within the purview of Rule 56(c)(1) with affidavits from the interviewees attesting, under penalty of perjury, that the statements are true. But instead of simply curing these deficiencies, Defendants replied with inapposite arguments about the documents' use in depositions.
Defendants' remaining argument is that the documents relating to Mr. Johnson's guilty plea are subject to judicial notice. Rule 201 allows the Court to take judicial notice of adjudicative facts which are "not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). As noted above, the documents themselves (the plea agreement and the change-of-plea transcript) lack authenticating evidence under Rule 901(a) or seals or certifications which would render the documents self-authenticating under Rule 902. In any event, Rule 201 permits the Court to take judicial notice of facts, not documents. Cf. In re Lisse, 905 F.3d 495, 497 (7th Cir. 2018) (Easterbrook, J., in chambers) ("That document is not subject to judicial notice because it is not evidence of an adjudicative fact. . . . If the document were being offered just to show that it had been filed, that fact might be subject to judicial notice, but the `Request' does not suggest that appellant wants this court to take notice that a particular document was filed on a specific date in some other tribunal.").
What Defendants are actually requesting is that the Court take judicial notice of the charges to which Mr. Johnson pleaded guilty in State v. Johnson, No. 49G09-1411-F6050357 (Marion Super. Ct. judgment entered Mar. 2, 2017), and any admissions Mr. Johnson may have made during the change-of-plea hearing. The Court may properly grant the former request, inasmuch as Mr. Johnson does not dispute that he was convicted of resisting law enforcement under Indiana Code section 35-44.1-3-1(a)(1) and inasmuch as the judgment and "Sentencing Order" are public records not subject to reasonable dispute. The Court may not, however, grant the second request. While the contents of the transcript may be the type of evidence subject to judicial notice, it cannot be "readily determined" because the transcript appears nowhere on the publicly-available docket. See State of Indiana v. Timothy Johnson,
These are problems of Defendants' own making. Had Defendants simply replied to Mr. Johnson's objections with authenticating affidavits or self-authenticating versions of the previously-tendered exhibits, and proffered declarations adopting unsworn statements under oath, they could have addressed most of Mr. Johnson's objections. But on this record, with the exception of the limited judicial notice of Mr. Johnson's guilty plea and convictions for resisting law enforcement and intimidation, "the court must apply Rule 56(e)" and
Mr. Johnson's final objection is to Exhibit 11, [
As the Seventh Circuit has explained,
United States v. Christian, 673 F.3d 702, 709 (7th Cir. 2012) (alterations, quotations, and citations omitted). The court acknowledged, however, that in application the "distinction between expert and lay testimony is often far from clear." Id.
Officer Sullivan's affidavit straddles this divide, meaning that some of his observations must be excluded as undisclosed expert testimony, while others may be considered in evaluating Defendants' Motion for Summary Judgment. Officer Sullivan's observations about what happened, which are entirely based upon his review of the surveillance footage, depend upon him "mak[ing] connections for the [court] based on [his] specialized knowledge." Id. This includes paragraphs 19, 20, and 25 through 28, [
A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not suffice to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court "need only consider the cited materials," Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them," Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
As explained above, the facts which are properly before the Court are those supported by citation to admissible evidence. Though permitted to "consider other materials in the record," Fed. R. Civ. P. 56(c)(3), the Court has not "scour[ed] every inch of the record" to expand the facts it may consider, Johnson, 325 F.3d at 898. It does not suffice, as Mr. Johnson has largely done, to simply list issues of legal application and brand them as "Disputed Factual Issues." [
Mr. Johnson, as the nonmoving party, is entitled to all reasonable inferences in his favor drawn from the admissible evidence and otherwise undisputed facts. See Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005). "Existence in the record of a videotape capturing the events in question" does not change this well-established procedure, though it does yield "an added wrinkle." Scott v. Harris, 550 U.S. 372, 378 (2007). Specifically, just as the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," the Court may not credit a party's story which is "blatantly contradicted by" the videographic evidence such that "no reasonable jury could believe it." Id. at 380. In such circumstances, the Court may not take the nonmovant's story at face value but instead must "view[] the facts in the light depicted by the videotape." Id. at 381.
With these principles in mind, the Court may at last turn to the evidence properly before it.
On October 30, 2014, Mr. Johnson visited Community Health Services ("
Officer Samuel House and Officer Rogers, both of the IMPD, responded to a radio call for trouble with a person.
Somewhere along the line, Officer House escorted Mr. Johnson out of CHS and near his car. [
At the 33:37 mark of the surveillance video, [
At 34:43 in the surveillance footage, Mr. Johnson began to work his way to his knees, and then to his feet. [
Both officers attempted to check on Mr. Johnson's condition after the incident, but Mr. Johnson refused. [
As Mr. Johnson testified at his deposition, his memory of the October 30, 2014 incident is quite limited, at least in part due to his alcohol consumption. [
As a result of Mr. Johnson's conduct on October 30, 2014, Mr. Johnson pleaded guilty in Marion Superior Court to resisting law enforcement in violation of Indiana Code section 35-44.1-3-1(a)(1) and to intimidation where threat is to commit a forcible felony in violation of Indiana Code section 35-45-2-1(a)(2). See Sentencing Order, State v. Johnson, No. 49G09-1411-F6050357 (Marion Super. Ct. Mar. 2, 2017), available at
IMPD officers receive training on de-escalation and use of force, consistent with the Supreme Court's directive in Graham v. Connor, 490 U.S. 386 (1989). [
At his deposition, Officer Rogers was unable to "tell [counsel] verbatim what the force continuum is." [
Officers have discretion under IMPD policies to choose where to keep arrestees pending transport for processing, though it can make sense to keep an arrestee handcuffed and seat belted in the back of a police car, which makes it very difficult to flee. [
Mr. Johnson has tendered the expert witness affidavit of Roger Clark. [
As explained above, Mr. Johnson brings excessive force and related Monell claims under § 1983 and the Fourth Amendment and brings direct and respondeat superior tort claims under state law. The Court first addresses Mr. Johnson's federal claims before turning to his state-law claims.
Defendants raise several arguments as to why Mr. Johnson's § 1983 claims fail. The first is the affirmative defense of qualified immunity, which applies only to Mr. Johnson's claim against Officer Rogers. Second, Officer Rogers raises an affirmative defense under Heck v. Humphrey, 512 U.S. 477 (1994). Finally, Defendants argue that Mr. Johnson's Monell claim against former Chief Riggs and the City fails on the merits. The Court addresses each argument in turn.
Officer Rogers argues that he is entitled to qualified immunity because Mr. Johnson cannot establish that Officer Rogers' actions violated a clearly-established constitutional right. [
Under the doctrine of qualified immunity, government officials may be held liable only when they "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (per curiam) (internal quotation omitted). The doctrine "protects all but the plainly incompetent or those who knowingly violate the law." White v. Pauly, 137 S.Ct. 548, 551 (2017) (per curiam) (internal quotation omitted). The plaintiff bears the burden of overcoming a claim to qualified immunity by "demonstrat[ing] that existing caselaw at the time of the events in question `placed the statutory or constitutional question beyond debate'" or that the conduct was "`so egregious and unreasonable that, notwithstanding the lack of an analogous decision, no reasonable officer could have thought he was acting lawfully.'" Dockery v. Blackburn, 911 F.3d 458, 466-67 (7th Cir. 2018) (first quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011), then quoting Abbott v. Sangamon Cnty., 705 F.3d 706, 723-24 (7th Cir. 2013)).
"Under [the Supreme Court's] cases, the clearly established right must be defined with specificity," a principle which is "particularly important in excessive force cases." City of Escondido v. Emmons, 2019 WL 113027, at *2 (U.S. 2019) (per curiam) (publication pending). As the Supreme Court has explained,
Id. at *2-3 (quoting Kisela, 138 S. Ct. at 1153). Among the issues for which governing precedent must account in excessive force cases are the actions of the individual claiming wrongdoing and the time the officer had to react to the situation. See, e.g., Kisela, 138 S. Ct. at 1153 (holding that qualified immunity was required for officer who shot individual after having "mere seconds to assess the potential danger" posed by individual to their person, who was observed "hacking a tree with a large kitchen knife," and who had "failed to acknowledge at least two commands to drop the knife"); Dockery, 911 F.3d at 461 (affirming repeated use of Taser where plaintiff "kicked, attempted to stand up, and otherwise resisted commands to submit to their authority"); see also, e.g., Mason-Funk v. City of Neenah, 895 F.3d 504, 510 (7th Cir. 2018) ("To drive home the point, it is worth recounting what occurred in the short span of six minutes. Flathoff had continuously made threats that he would kill the hostages . . . ."); cf., e.g., Graham v. Connor, 490 U.S. 386, 397 (1989) ("[P]olice officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.").
Graham v. Connor, which sets forth the long-established factors to consider in evaluating a claim for excessive force, "do[es] not by [itself] create clearly established law . . . ." Kisela, 138 S. Ct. at 1153. Nonetheless, those factors provide the appropriate starting place for evaluating the reasonableness of Officer Rogers' actions. Graham requires the Court to consider "the nature and extent of the force used against the severity of the suspect's crime, the nature and immediacy of the threat he posed to the officers or others, and the extent to which the suspect actively resisted or attempted to evade arrest." Dockery, 911 F.3d at 464 (citing Graham, 490 U.S. at 396). These factors must be evaluated from the "perspective `of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,' and allowing for the fact that `police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.'" Id. (quoting Graham, 490 U.S. at 396-97).
In the Seventh Circuit's December 19, 2018 decision in Dockery, the court addressed a resisting arrest/excessive force case much like this one. There, in addressing whether the officer's conduct violated clearly established law, the Court observed as follows:
Id. at 467. Dockery itself provides a third guidepost. In that case, an officer "tazed" Mr. Dockery when he fought with officers attempting to handcuff him. Id. at 463. That use of force was clearly protected by qualified immunity in light of video evidence showing "that Dockery was uncooperative and physically aggressive." Id. at 467. More relevant to this case is that the officer discharged the Taser at Mr. Dockery three more times because even after being hit with the Taser he "ignored the officers' instructions to lie down," exhibited "combative demeanor," and "did nothing to manifest submission to being handcuffed." Id. at 468. The court held that this use of force fell closer to the first "guidepost" regarding the use of force against actively resisting individuals and held that "[e]ven if the officers misconstrued [Mr. Dockery's] actions or misjudged the amount of force needed to subdue him, qualified immunity protects officers from mistakes in judgment of this sort." Id. at 468-69.
Applying the doctrine of qualified immunity to this case requires that the Court "analyze whether clearly established law barred Officer [Rogers] from . . . taking down" Mr. Johnson in the manner demonstrated in the surveillance video, under the circumstances presented to Officer Rogers. City of Escondido, 2019 WL 113027, at *4. And this is the proper phrasing of the issue before the Court. See id. It is not, as Mr. Johnson repeatedly suggests in his brief, whether Officer Rogers had "Constitutional authority to . . . break Johnson's leg," [
These observations eviscerate another dominant theme in Mr. Johnson's briefing—that Officer Rogers' conduct could be fairly characterized as "kicking" at Mr. Johnson as if attempting to cause him gratuitous injury, all while Mr. Johnson presented no risk. [See, e.g.,
In fact, the parties' dispute over terminology misses the point. Even if the Court were to adopt Mr. Johnson's mischaracterization of Officer Rogers' actions as "kicks" or "strikes" at Mr. Johnson's leg area, Officer Rogers would remain entitled to qualified immunity because the video footage demonstrates that these actions—whatever they may be called—were reasonable efforts to gain control over and take down the resisting Mr. Johnson. The only reasonable characterization of the footage is that of an officer struggling to gain compliance over a recalcitrant and resisting individual (to which Mr. Johnson admitted by pleading guilty to resisting a law enforcement officer)—much like the situation in Dockery where the officers were entitled to qualified immunity for repeatedly discharging a Taser at an resisting individual who was combative, was ignoring repeated instructions to lie down, and did not indicate any willingness to be handcuffed. Mr. Johnson, ignoring the fact that he pleaded guilty to resisting law enforcement, attempts to emphasize that he was not a risk to the officers. The risk was certainly minimized by his handcuffs.
This conclusion is further mandated by Mr. Johnson's failure to meet his burden to identify any factually analogous case which establishes that Officer Rogers' conduct violated his clearly-established constitutional rights. The two cases to which Mr. Johnson cites bear no resemblance to this one. First, Lanigan v. Village of East Hazel Crest, 110 F.3d 467 (7th Cir. 1997), was before the Seventh Circuit only on the pleadings, and the complaint sufficiently alleged that a police officer violently "push[ed] and poke[d]" the plaintiff, without provocation, during a traffic stop. Id. at 475. Reliance upon that case, where no force would have been justified, is completely belied by Mr. Johnson's stated recognition that "some force" would have been appropriate in this case, [
In the end, Mr. Johnson attempts to portray Officer Rogers as needlessly kicking him despite him being physically compliant (or at least no more than passively resistant in simply standing up from his seated spot). These contentions fail both upon review of the video surveillance, which shows Mr. Johnson immediately starting away from and then struggling with Officer Rogers, and Mr. Rogers' conviction for resisting law enforcement. "Even if [Officer Rogers] misconstrued [Mr. Johnson's] actions" as an attempt to flee "or misjudged the amount of force needed to subdue him, qualified immunity protects officers from mistakes in judgment of this sort." Dockery, 911 F.3d at 468-69. Section 1983 does not provide a mechanism for secondguessing law enforcement responses to physically resisting individuals. The Court therefore
Officer Rogers next argues, as an additional basis for summary judgment on Mr. Johnson's excessive force claim, that Mr. Johnson may not maintain his § 1983 claim without violating Heck v. Humphrey, 512 U.S. 477 (1994), by improperly contradicting his state-court conviction for resisting law enforcement. [
The Supreme Court's Heck decision requires a district court to "dismiss a § 1983 action if a judgment in favor of the plaintiff in that § 1983 action would necessarily imply the invalidity of his criminal conviction or sentence." Helman v. Dunhaime, 742 F.3d 760, 762 (7th Cir. 2014). As Officer Rogers acknowledges,
McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006) (internal citations and quotation omitted). This does not mean, as Mr. Johnson's broad argument suggests, that a plaintiff with a conviction for resisting law enforcement has carte blanche to sue on an excessive force theory. Rather, the Court must evaluate the plaintiff's
The Court begins its Heck analysis by examining the offense to which Mr. Johnson pleaded guilty. See Hardrick v. City of Bolingbrook, 522 F.3d 758, 762 (7th Cir. 2008). Mr. Johnson pleaded guilty to resisting law enforcement in violation of Indiana Code section 35-44.1-3-1(a)(1), which provides:
Ind. Code § 35-44.1-3-1(a). As Indiana courts have explained, "The term `forcibly' is a distinct element of the offense that modifies all three verbs `resists, obstructs, or interferes,'" which "includes `at a minimum, some physical interaction with a law enforcement officer'" presenting a threat of force or "`imminent danger of bodily injury to an officer.'" A.A. v. State, 29 N.E.3d 1277, 1281 (Ind. Ct. App. 2015) (first quoting K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013), then quoting Macy v. State, 9 N.E.3d 249, 253 (Ind. Ct. App. 2014), then quoting Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013)).
Here, Mr. Johnson's briefing fails to "remain `agnostic' . . . about the findings in the criminal . . . proceeding," but instead strays far into factual contentions which, if correct, would upend his criminal conviction. Moore v. Mahone, 652 F.3d 722, 723 (7th Cir. 2011) (approving application of Heck where the plaintiff "came close" to denying facts essential to his conviction such that court had "real doubt concerning his intentions"). At several points in his briefing, Mr. Johnson appears to want it both ways. On the one hand, he argues that "some force" would have been appropriate under the circumstances—presumably in an effort to avoid Heck. [
The City
The Supreme Court in Monell held that municipalities may be sued under § 1983 when their actions violate the Constitution. 436 U.S. 658 (1978). The Court limited this liability to actions that may be attributed to the municipality itself: "a municipality cannot be held liable solely because it employs a tortfeasor . . . on a respondeat superior theory." Id. at 691. Monell "expressly le[ft] further development of this action to another day," id. at 695, and subsequent cases have clarified when municipalities may be held liable for constitutional violations. In Board of the County Commissioners v. Brown, the Court distilled the Monell theory to three elements: First, the plaintiff must identify an action attributable to the municipality itself. 520 U.S. 397, 403-04 (1997). Brown and other cases have identified three ways in which a municipality may "act": written policies; widespread practices or customs; or other actions by a final decision maker. Id. Second, the plaintiff must demonstrate that the "municipal action was taken with the requisite degree of culpability," id. at 404—specifically, that the "action was taken with `deliberate indifference' as to its known or obvious consequences," id. at 407 (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Finally, the plaintiff must "demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Id. at 404. This requires that the evidence yield "an inference . . . that the municipality's indifference led directly to the very consequence" of the constitutional deprivation. Id. at 409-10.
Mr. Johnson's argument on the Monell issue is skeletal and unsupported by any authority aside from a citation to Monell itself for the general legal standard. It therefore is a paradigmatic example of an argument which is "underdeveloped, conclusory, [and] unsupported by law." Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012). "It is not the obligation of the court to research and construct the legal arguments open to parties, especially when they are represented by counsel." Riley v. City of Kokomo, 909 F.3d 182, 190 (7th Cir. 2018) (internal quotation omitted). Rather, "our adversary system relies on parties to raise issues and present them in the appropriate manner." Id. at 191. Mr. Johnson's failure to comply with this directive means that he has waived any opposition to the City's argument in favor of summary judgment on Mr. Johnson's Monell claim. Id.; Puffer, 675 F.3d at 718.
Even if Mr. Johnson's argument were not waived, it would not succeed on its merits. Nothing in the evidence suggests that the IMPD failed to train Officer Rogers (even if he could not explain the continuum of force to Mr. Johnson's satisfaction). Nor does the IMPD's decision to back Officer Rogers in this case demonstrate a custom or policy of tolerating excessive force. Mr. Johnson's entire argument is premised upon his own inaccurate gloss on the video surveillance, which the Court rejected above. At most, the IMPD (via the City's Rule 30(b)(6) witness) endorsed its officer's decision to engage a combative man, who had been drinking and threatening others, with efforts to take him down after the man disobediently stood up and attempted to leave the scene. Nothing about that decision reflects deliberate indifference to Mr. Johnson's constitutional rights. Based upon his waiver and the lack of evidence supporting his claim, the Court
Having resolved Mr. Johnson's federal claims, remaining are his state-law tort claims against Officer Rogers and the City. As Defendants explain, the Court may retain supplemental jurisdiction over state-law claims where substantial judicial resources have been expended or where the result of the state-law claims is clear. RWJ Mgmt. Co. v. BP Prods. N. Am., 672 F.3d 476, 480 (7th Cir. 2012). Mr. Johnson does not dispute that both of these conditions are met, and the Court agrees that they are. The Court begins by resolving Mr. Johnson's claims against Officer Rogers before turning to his respondeat superior claims against the City.
Officer Rogers argues that he is entitled to immunity under the Indiana Tort Claims Act as to Mr. Johnson's battery and negligence claims. [
The Indiana Tort Claims Act ("
The final claims remaining are Mr. Johnson's respondeat superior tort claims against the City. As for Mr. Johnson's battery claim, the City argues that the evidence shows Officer Rogers engaging in justifiable force, such that the battery claim fails on its merits. [
Finally, the City argues that Mr. Johnson's negligence claim fails because Officer Rogers engaged in intentional, and not negligent, conduct; because the ITCA provides for immunity; and because Mr. Johnson was contributorily negligent. [
Unlike with tort claims against private persons, "[t]ort claims against governmental units .. . are subject to the common law principle of negligence because Indiana's Comparative Fault Act does not apply to such entities." St. John Town Bd. v. Lambert, 725 N.E.2d 507, 516 (Ind. Ct. App. 2000); Ind. Code § 34-51-2-2. While Mr. Johnson is correct that "contributory negligence is [no] defense to willful and wanton conduct," Young v. Baugh, 870 F.2d 350, 355 (7th Cir. 1989), the surveillance footage defeats any argument that Officer Rogers acted willfully or recklessly in responding the way he did to Mr. Johnson's resistance. Again, Mr. Johnson's argument hinges solely on his rejected interpretation of the surveillance video. Rather, by acting and resisting the way he did, and by refusing to comply with the officers' orders, Mr. Johnson was contributorily negligent in his injuries, barring his negligence claim against the City, even assuming Officer Rogers even acted negligently.
Most importantly, however, Mr. Johnson fails to respond to the City's claim to immunity under the ITCA, Indiana Code section 34-13-3-3, which immunizes "[a] governmental entity . . . if a loss results from . . . [t]he adoption and enforcement of . . . a law . . . ." Ind. Code § 34-13-3-3(8).
In the final analysis, Mr. Johnson's response to Defendants' Motion for Summary Judgment consists almost entirely of evidentiary objections, a story that is flatly contradicted by the surveillance video, and not much else. Collectively, these submissions fall far short of demonstrating a genuine issue of material fact. Though unfortunate, the mere fact that Mr. Johnson suffered a serious injury does not mean that Mr. Johnson has a legally-viable claim. Therefore, as thoroughly described above, the Court
Additionally, given that this matter will proceed no further such that there will be no trial, the Court
Because all claims have been fully resolved in Defendants' favor, final judgment consistent with the Entry shall enter.
