Hunter, Jr. v. Long

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

CLINTON HUNTER, JR.,

Plaintiff,

v. CAUSE NO.: 2:15-CV-475-TLS

P.O. LONG # 338, CAPTAIN RUDY

GRASHA, individually, and the CITY OF

HAMMOND, a municipal corporation,

Defendants.

OPINION AND ORDER

This matter is before the Court on Officer Long and Captain Grasha’s Motion for Summary

Judgment [ECF Nos. 32] and the City of Hammond’s Motion for Summary Judgment [ECF No.

34], both filed on November 27, 2017. For the reasons stated below, the Court DENIES the

Officers’ Motion for Summary Judgment and GRANTS the City of Hammond’s Motion for

Summary Judgment.

PROCEDURAL HISTORY

On July 26, 2016, the Plaintiff filed an Amended Complaint [ECF No. 15] brought pursuant

to 42 U.S.C. § 1983 against (1) Officer Long, (2) Captain Rudy Grasha, and (3) the City of

Hammond, Indiana. In Count I, the Plaintiff alleges that Officer Long and Captain Grasha, while

acting within their scope of employment as Hammond police officers, used excessive force when

effectuating his arrest in violation of the Fourth Amendment. See Pl.’s Am. Comp. 1–3. In Count

II, the Plaintiff alleges that the City of Hammond is liable under a state law theory of

indemnification for any judgment obtained against the Officers. See id. at 3.

On November 27, 2017, the Defendants filed the instant Motions for Summary Judgment

[ECF Nos. 32, 34]. The Plaintiff filed a combined response [ECF No. 41] to both motions on

January 16, 2018. The Defendants filed a reply [ECF No. 45] in support of summary judgment on

January 26, 2018.

Officer Long and Captain Grasha argue that they are entitled to qualified immunity and

there is no basis for a punitive damages award, and the City of Hammond argues that the claim for

indemnification is unripe. See Defs.’ Br. Supp. Summ. J. Mot. 4–12, ECF No. 33; Def.’s Br. Supp.

Summ. J. Mot. 7, ECF No. 35; see also Defs.’ Reply Br. Supp. Defs.’ Summ. J. Mot. 10, ECF No.

45. The Plaintiff maintains that there are genuine issues of material fact which require a trial,

especially regarding whether the Officers used excessive force when effectuating his arrest. See

Pl.’s Mem. Opp’n Defs.’ Summ J. Mots. 1–2, ECF No. 41. In response, the Defendants argue that

there is no dispute of material fact because the Plaintiff’s version of events are blatantly

contradicted by video evidence. See Defs.’ Reply Br. Supp. Defs.’ Summ. J. Mot. 2–4, ECF No.

45.

LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “A fact is ‘material’ if it might affect the outcome of the litigation under the

governing law. Conversely, where a fact wouldn’t affect the outcome of a suit, whether it is

disputed is irrelevant.” Eubanks v. Norfolk S. Ry. Co., 875 F. Supp. 2d 893, 898 (N.D. Ind. 2012)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986))). Irrelevant or unnecessary

factual disputes do not preclude the entry of summary judgment. Carroll v. Lynch, 698 F.3d 561,

564 (7th Cir. 2012).

“A genuine issue of material fact exists when ‘the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.’” Wells v. Coker, 707 F.3d 756, 760 (7th Cir. 2013)

(quoting Anderson, 477 U.S. at 248). Within this context, the Court must construe all facts and

reasonable inferences from those facts in the light most favorable to the nonmoving party. Frakes

v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 550 (7th Cir. 2017). However, “[w]hen the evidence

includes a videotape of the relevant events, the Court should not adopt the nonmoving party’s

version of the events when that version is blatantly contradicted by the videotape.” Williams v.

Brooks, 809 F.3d 936, 942 (7th Cir. 2016) (citing Scott v. Harris, 550 U.S. 372, 379–80 (2007)).

STATEMENT OF MATERIAL FACTS

On the night of April 18, 2015, the Plaintiff and his brother went to the Horseshoe Casino

in Hammond, Indiana. Pl.’s Aff. 57:14–61:19, Ex. 1, ECF No. 36. The casino surveillance video

shows that on April 19, 2015, at 3:25 AM, casino security officers and Hammond police officers

escort the Plaintiff from the casino. See Surveillance Video, ECF No. 30. At 3:29 AM, the Plaintiff

exits the casino and stands in the vestibule. Id. The Plaintiff reenters the casino at 3:30 AM and,

while interacting the customers and casino employees, stands near the exit. Id. At 3:33 AM, the

police once again escort the Plaintiff from the casino. Id. The Plaintiff remains in the vestibule,

makes a phone call, and speaks with his brother. Id. At 3:35 AM, security officers escort the

Plaintiff out of the vestibule and onto the curb. Id. The Plaintiff walks away from the curb and into

the parking lot at 3:37 AM. Id. The Plaintiff enters the Casino’s parking garage that was designated

for employee use at 3:39 AM by running up a ramp that was designated for vehicular traffic. Id.

Eventually, the Plaintiff runs down the stairs and exits the parking garage at 3:43 AM. Id.

As the Plaintiff exits the garage, Officer Long pulls up in his squad car. Id. James Spikes,

a security officer, also exits the parking garage. Id. Officer Long and Spikes confront the Plaintiff

at 3:43:42 AM. Id. The Plaintiff puts his hands up and backs towards the hood of the squad car.

Id. Officer Long then positions the Plaintiff against the hood of the car at 3:43:48 AM. Id. At the

same time, Captain Grasha runs towards the squad car to assist Officer Long. Id. Captain Grasha

arrives at the car at 3:43:51 AM. Id. Captain Grasha pulls out his taser and presses it against the

Plaintiff’s back at 3:43:54 AM. Id. Captain Grasha applies the taser and delivers two “drive stuns”

to the Plaintiff’s back which last one second each. Grasha Dep. 38:12–40:24, Ex. H, ECF No. 36.

Captain Grasha keeps his taser pressed against the Plaintiff’s back. See Surveillance Video, ECF

No. 30. Captain Grasha withdraws his taser from the Plaintiff’s back at 3:44:10 AM. Id. At the

same time, Officer Long lifts the Plaintiff from the hood of the car in handcuffs. Id. The Plaintiff

was arrested for disorderly conduct. In his deposition, the Plaintiff testified that (1) he was not

resisting arrest, (2) Officer Long slammed him onto the hood of the squad car, and (3) he was tased

after being placed into handcuffs. Pl.’s Aff. 133:1–145:5, Ex. 1, ECF No. 40.

ANALYSIS

Officer Long and Captain Grasha argue that (1) they are entitled to qualified immunity and

(2) there is no basis for punitive damages. The City of Hammond argues the claim for indemnity

under state law is unripe. The Court addresses these issues in turn.

A. Qualified Immunity

The Court concludes that the Officers are not entitled to qualified immunity at this time.

“Qualified immunity shields public officials from liability when they act in a manner that they

reasonably believe to be lawful.” Gonzalez, 578 F.3d at 540. “Qualified immunity is ‘an immunity

from suit rather than a mere defense to liability.’” Pearson v. Callahan, 555 U.S. 223, 237 (2009)

(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “The plaintiff carries the burden of

defeating the qualified immunity defense.” Chasensky v. Walker, 740 F.3d 1088, 1095 (7th Cir.

2014). “To overcome a defendant’s invocation of qualified immunity, a plaintiff must show (1)

that the official violated a statutory or constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct.” Green v. Newport, 868 F.3d 629, 633 (7th Cir.

2017) (internal quotation marks omitted). “If either inquiry is answered in the negative, the

defendant official is entitled to summary judgment.” Gibbs v. Lomas, 755 F.3d 529, 537 (7th Cir.

2014).

A claim that an officer used excessive force while making an arrest is evaluated under the

Fourth Amendment’s standard of objective reasonableness. Scott, 550 U.S. at 381. “An officer’s

use of force is unreasonable from a constitutional point of view only if, judging from the totality

of circumstances at the time of the arrest, the officer used greater force than was reasonably

necessary to make the arrest.” Gonzalez v. City of Elgin, 578 F.3d 526, 539 (7th Cir. 2009) (internal

quotation marks omitted). In judging the reasonableness of any particular use of force, the Court

considers factors such as (1) the severity of the crime, (2) whether the arrestee poses an immediate

threat to the safety of the officer or others, and (3) whether the arrestee is actively resisting arrest

or attempting to flee and evade arrest. Cyrus v. Town of Mukwonago, 624 F.3d 856, 861–62 (7th

Cir. 2010).

For the purposes of qualified immunity, it was clearly established at the time of the events

underlying this case that (1) a police officer cannot continue to use force once a suspect is subdued,

(2) a police officer cannot use significant force on a non-resisting or passively resisting suspect,

and (3) only minimal force is warranted when a suspect is passively resisting. Becker v. Elfreich,

821 F.3d 920, 928–29 (7th Cir. 2016) (citing Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 725,

732, 733 (7th Cir. 2013); Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 529 (7th Cir. 2012)).

In this case, when the facts are viewed in the light most favorable to the nonmoving party,

as they must be at this summary judgment stage, Officer Long confronted the Plaintiff as he exited

the casino’s parking garage and pushed him onto the hood of his squad car. As this was occurring,

Captain Grasha ran to assist Officer Long. Captain Grasha twice applied a taser upon the Plaintiff’s

person. The Plaintiff testified that he was not resisting and was tased while he was in handcuffs,

and this version of events is not blatantly contradicted by the video evidence.

When the facts are viewed in the light most favorable to the Plaintiff, a reasonable jury

could find that the Officers’ actions were unreasonable because (1) the severity of the crime was

minimal, (2) the Plaintiff did not pose an immediate threat to others, and (3) the Plaintiff was not

actively resisting arrest. Cyrus, 624 F.3d at 861–62. Further, when the facts are so viewed, the

Officers violated clearly established law by using significant force on a non-resisting or passively

resisting suspect. See Abbott, 705 F.3d at 732 (“Prior to 2007, it was well-established in this circuit

that police officers could not use significant force on nonresisting or passively resisting

suspects.”); see also Toredo v. Blackwell, 383 F. Supp. 3d 826, 836 (S.D. Ind. 2019) (“Under

Cyrus, Abbott, and Phillips, Officer Blackwell’s Taser use [against a passively resisting suspect]

was excessive under clearly established law.”). Accordingly, the Officers are not entitled to

qualified immunity at this point in the case. It is a determination that may be revisited by the Court

at the time of trial.

Trying to avoid this result, the Officers argue that the Plaintiff’s version of events are

blatantly contracted by the surveillance video. “When the evidence includes a videotape of the

relevant events, the Court should not adopt the nonmoving party’s version of the events when that

version is blatantly contradicted by the videotape.” Williams, 809 F.3d at 942. In Williams, the

plaintiff brought an excessive force claim following a physical altercation that occurred during his

arrest. Id. at 941. The district court, after finding that no reasonable jury could find that the officer

used excessive force, granted the defendants’ motion for summary judgment. Id. On appeal, the

plaintiff argued that “he did not forcibly resist arrest but rather ‘leaned away and twisted in pain.’”

809 F.3d at 943 n.3. The Seventh Circuit concluded that “the video blatantly contradicts these

allegations.” Id. Based on a dash cam video, the Court found that the plaintiff “was uncooperative

and ignored many commands from Officer Brooks. [The plaintiff] forcefully pushed against

Officer Brooks, using his arms to push away from the car and backing his body into Officer

Brooks, preventing Officer Brooks from conducting a pat down search and conducting a field

sobriety test.” Id. Thus, the Seventh Circuit affirmed the grant of summary judgment because the

plaintiff’s version of events was blatantly contradicted by the record. Id. at 946; see also Scott, 550

U.S. at 379–381 (The Supreme Court concluded that the defendant was entitled to summary

judgment because the plaintiff’s assertion that he was driving safely was blatantly contradicted by

the video evidence. The video showed the plaintiff “swerve around more than a dozen other cars,

cross the double-yellow line, and force cars traveling in both directions to their respective

shoulders to avoid being hit.”).

In this case, the Plaintiff’s arrest occurred during the middle of the night in a dimly lit area.

The camera recording the arrest was located approximately twenty feet away from the squad car.

When the Plaintiff was positioned against the hood of the squad car, the camera’s view of the

Plaintiff was partially obstructed by Officer Long’s back. When Captain Grasha used his taser, the

camera’s view of the Plaintiff was partially obstructed by Officer Long’s back and obfuscated by

the dark coloring of the squad car. The Plaintiff later testified that he was not resisting arrest and

was tased after being placed into handcuffs. Critically, due to the lighting and the position of the

involved parties, the camera does not have an unobstructed view of what the Plaintiff was doing

with his hands or whether he was handcuffed in the moments before Captain Grasha applied the

taser. Thus, unlike cases such as Williams and Scott, there is not clear video evidence which

blatantly contradicts the Plaintiff’s version of events. Instead, the video underscores genuine issues

of fact as to what precisely occurred.

B. Punitive Damages

The Officers also argue that there is no basis for the Plaintiff’s claims of punitive damages.

In Smith v. Wade, 461 U.S. 30, 56 (1983), the Supreme Court held that “a jury may be permitted

to assess punitive damages in an action under § 1983 when the defendant’s conduct is shown to be

motivated by evil motive or intent, or when it involves reckless or callous indifference to the

federally protected rights of others.” When the facts are viewed in the light most favorable to the

nonmoving party, the Plaintiff was tased even though he was handcuffed and not resisting. When

the evidence is so viewed, a reasonable jury could find that the Officers acted with callous

indifference to the Plaintiff’s federally protected rights. See, e.g., Terrell v. Vill. of Univ. Park, No.

92 C 3320, 1994 WL 30960, at *1–3 (N.D. Ill. Feb 1, 1994) (affirming the jury’s award of punitive

damages when the plaintiff was slapped in the back of the head and slammed against a police car

after being placed into handcuffs). Accordingly, there is a genuine dispute of material fact, at this

summary judgment stage, on the issue of whether punitive damages are appropriate.

C. Indemnification

The City argues that, because the Officers’ liability has not been established under § 1983,

the Plaintiff’s indemnification claim is not ripe and should be dismissed. In Sowell v. Dominguez,

No. 2:09 CV 47, 2011 WL 294758, at *2 (N.D. Ind. Jan. 26, 2011), the plaintiff alleged that various

government employees were liable under 42 U.S.C. § 1983 and that the Lake County Jail was

liable under a theory of indemnification pursuant to Ind. Code § 34-13-4-1. In dismissing the

indemnification claim without prejudice, the Honorable James T. Moody reasoned as follows:

No one has been found liable yet in this case and no judgment has been

entered. This court only has subject matter over a case in which the controversy is

ripe. A claim is not ripe if it “rests upon contingent future events that may not occur

as anticipated, or indeed may not occur at all” Texas v. United States, 523 U.S. 296,

300 (1998) (internal quotations omitted). Accordingly, any claim for indemnity

resulting from this suit is not ripe until the underlying liability has been established.

See Doe v. City of Chi., 360 F.3d 667, 672 (7th Cir. 2004) (“We have warned

repeatedly against trying to resolve indemnity before liability.”); Lear Corp. v.

Johnson Elec. Holdings Ltd., 353 F.3d 580, 583 (7th Cir. 2003) (“We regularly say

that decisions about indemnity should be postponed until the underlying liability

has been established.”). At this point it is not clear that any of the Lake County Jail

defendants will be held liable under Section 1983, that they acted within the scope

of employment, or that they are all being defended by the state. Therefore, [the

plaintiff’s] indemnification claims will be dismissed without prejudice for lack of

subject matter jurisdiction.

Sowell, 2011 WL 294758, at *14, cited with approval in Smith v. Lake County, No. 2:15 CV 123,

2017 WL 568590, at *9 (N.D. Ind. Feb. 13, 2017), and Hobson v. Dominguez, No. 2:10 CV 429,

2012 WL 4361537, at *16 (N.D. Ind. Sept. 24, 2012).

The Plaintiff’s only claim against the City of Hammond is a state law claim for

indemnification in the event that judgment is entered against the Officers on the Plaintiff’s § 1983

claims. See Pl.’s Am. Comp. 3; Pl.’s Mem. Opp’n Defs.’ Summ J. Mots. 6. As such, the Plaintiff’s

claim against the City of Hammond is not ripe. See Sowell, 2011 WL 294758, at *14. Accordingly,

the City of Hammond’s Motion for Summary Judgment is granted, to the extent the claim for

indemnification is dismissed without prejudice.

D. The Moot Arguments

Both motions for summary judgment argue that any state law claims must be denied

because the Plaintiff did not comply with the Indiana Tort Claims Act. The Plaintiff notes that he

“has not pled any Indiana state law claims in his First Amended Complaint. Every single cause of

action is Federal, with the exception of the Plaintiff’s Indemnification count.” Pl.’s Mem. Opp’n

Defs.’ Summ J. Mots. 6. The City moves for summary judgment on any Monell claim brought by

the Plaintiff. The Plaintiff also notes that he “has not pled a [Monell] claim” against the City of

Hammond. Id. Accordingly, the Defendants’ arguments regarding Indiana tort law claims and

Monell liability are moot.

CONCLUSION

Based on the foregoing, the Court DENIES the Officers’ Motion for Summary Judgment

[ECF Nos. 32] and GRANTS the City of Hammond’s Motion for Summary Judgment [ECF No.

34] for dismissal of the indemnification claim WITHOUT PREJUDICE. Count II of the Plaintiff’s

Amended Complaint [ECF No. 15] is DISMISSED WITHOUT PREJUDICE.

SO ORDERED on September 26, 2019.

s/ Theresa L. Springmann

CHIEF JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT