Burns v. Rekeweg

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

TAMMY BURNS )

)

Plaintiff, )

)

v. ) CIVIL NO. 1:18cv160

)

ADAMS COUNTY SHERIFF and )

OFFICER MENDOZA, )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on a Motion for Summary Judgment filed by the

Defendants, Adams County Sheriff and Officer Mendoza (“Mendoza” or “Deputy Mendoza”) on

July 13, 2020. Plaintiff, Tammy Burns (“Burns”), filed a response on September 18, 2020, to

which the Defendants replied on October 2, 2020.

Also before the Court is a Motion to Strike, filed by the Defendants on October 2, 2020.

Burns responded to the motion on October 16, 2020, to which Defendants replied on October 23,

2020.

For the following reasons, both motions will be granted.

Standard of Review

A court must grant a motion for 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). Material facts are those facts that are outcome-determinative under the

applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). To survive summary

judgment, the non-movant must muster specific, admissible evidence permitting a reasonable jury

to find in her favor. Grant v. Trs. of Indiana Univ., 870 F.3d 562, 568 (7th Cir. 2017). Although

the non-movant receives the benefit of all facts and reasonable inferences, the non-movant cannot

rely upon inferences supported by mere speculation or conjecture. Singer v. Raemisch, 593 F.3d

529, 533 (7th Cir. 2010). Self-serving generalizations lacking factual support in the record also

cannot preclude the entry of summary judgment. Taylor v. ADS, Inc., No. 00 C 7554, 2002 U.S.

Dist. LEXIS 14308, *16-18, and n. 4 (N.D. Ill. Aug. 2, 2002) (citing Albiero v. City of Kankakee,

246 F.3d 927, 833 (7th Cir. 2001); Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.

1993)). What is more, neither legal argument alone, nor opinions not based on observation or

first-hand experience, will withstand a motion of summary judgment. Taylor, 2002 U.S. Dist.

LEXIS 14308, at *18 n. 4.

Discussion

Burns alleges, pursuant to 42 U.S.C. § 1983, that Adams County Sheriff’s Deputy Mike

Mendoza violated her constitutional rights on or about June 6, 2017 when he removed her from

her apartment and began to place her into handcuffs. Burns alleges that the force used by Deputy

Mendoza was excessive under the Fourth Amendment. Burns additionally asserts that Deputy

Mendoza committed battery under Indiana tort law, for which the Adams County Sheriff is liable

under respondeat superior. Defendants, however, contend that the force that Deputy Mendoza

employed to remove Burns from the apartment and to handcuff her was objectively reasonable.

Defendants further contend that Deputy Mendoza is entitled to qualified immunity because he

did not violate Burn’s clearly-established rights. Because Indiana law incorporates the Fourth

Amendment objective-reasonableness standard, Defendants assert that a finding that Deputy

Mendoza did not violate Burns’ Fourth Amendment rights also bars Burns’ state-law battery

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claim.

Burns asserts the following facts.1 In June 2017, Burns was a resident of the Waterbury

Apartments in Decatur Indiana, where she lived with her two minor children and her adult

daughter Danielle Selking (“Selking”). (Burns Dep., pp. 14, 16,18; Burns Aff., ¶¶ 3-4; Mendoza

Aff., ¶¶5-6,10.)

On the evening of either June 4th or June 6th2 of that year Burns and Selking called 911

and reported that a man named Eric Davis was walking around the apartment complex hallway

with a knife, talking to himself and acting “weird”, “like a fool” and “like he is hallucinating”.

(Burns’ Dep, pp. 22, 25-26, 160-166.) They made the 911 call from outside their apartment, then

returned, but exited their apartment again once police arrived. (Burns Dep, pp.27-28.) When the

two women left this second time, they locked the apartment door, leaving Burn’s two minor

children, and her minor nephew alone. (Burns Dep, pp.28, 30.)

Police were dispatched to the apartment complex. (Grimm Aff. ¶ 7, Def. Ex. D-1, dispatch

record at p.1-2.) Among those that arrived were officers Bessessen and Brooks from the Decatur

Police Department, and Defendant Deputy Mendoza from the Adams County Sheriff’s

Department. (Mendoza Aff., ¶¶ 7,8,10.) Bessessen and Brooks located Eric Davis at the

apartment of Burn’s friend and neighbor Mara Davis. (Def. Ex. C-1, Narrative of Officer

Bessessen, p.5.) At some point, while Burns and Selking were still outside of their own

apartment, one of Burns, other daughters (S.B.) left the apartment, leaving the two younger

1 For purposes of their motion for summary judgment, Defendants accept Burns’ version

of the facts.

2 Burns disputes the exact date of the incident, which is irrelevant.

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children alone inside. (Burns Dep. pp.130-131.) The two younger children then left and went over

to Mara Davis’ apartment, where they reportedly informed Officer Bessessen and Officer Brooks

that a man was on their balcony. (Bessessen Narrative, p.6.) In response, Bessessen and Brooks

went to Burns’ apartment, and removed the man, Izaiya Newcomber, from Burns’ apartment.

(Burns Aff., ¶; Bessessen Narrative, p.6.) Officer Bessessen then re-entered Burns’ apartment,

with Deputy Mendoza following him inside. ( Mendoza Aff., ¶ 10.)

Shortly thereafter, Burns returned to her apartment, because she had heard officers were

upstairs, heard yelling, and was worried about her kids. (Burns Dep., pp. 31,112.) She re-entered

her residence to discover Deputy Mendoza and Officer Bessessen performing a search. (Id., pp.

31,44.) Burns did not know why they were there, even though she was the one that called the

police for help, and was concerned that the children were gone from the apartment, even though

she was the one that left them alone. (Id. p.32.)

Both Deputy Mendoza and Officer Bessessen told Burns to leave. (Id. p. 32.) She asked

“where are my kids?”; they ignored her question, and Deputy Mendoza responded “I told you to

leave”, or words to that effect. (Id. p. 33.) Burns informed them she needed to know where her

children were. (Id.) Neither officer gave her any information about her children or nephew.(Id.)

Burns remained only briefly in the apartment talking to the two officers, between a few

seconds and to a few minutes. (Id. p. 35.) At some point, in response to being told to leave,

Burns responded “I’m going, don’t threaten me”. (Burns Dep., p.171). Burns placed her keys on

a table, put her hands up, and without walking towards either officer, walked directly to the front

door to leave. (Burns Dep.. pp. 34, 75; Burns Aff., ¶ 7.)

While Burns was exiting through the front doorway, Mendoza came up behind her, put his

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hand in the middle of her back, and pushed her hard out the door, pushing her all the way to the

other side of the hall, and shoved her against the wall facing her front doorway.3 (Burns Dep.

pp.35-37; Mendoza Aff. ¶ 21.) The push was forceful and made Burns fall against the wall, where

she hit the left side of her head. (Burns Dep. p. 37.) She put her hands against the wall to avoid

falling down. (Id. p. 101-102.) When Burns made contact with the wall, Mendoza continued to

push her against it. (Id. p. 37-39.)

Mendoza kept Burns’ hands on the wall, and pulled the left hand down, while keeping her

left shoulder also on the wall; Mendoza wrenched the arm, hurting Burns. (Id. pp. 39, 117-118.)

He cuffed her left hand. (Id. p. 46.) Selking, who was standing nearby in the hallway, dropped to

her knees and pleaded with Mendoza. (Id. p. 47.) Mendoza then uncuffed Burns and had her sit

down on the floor with Selking, where the two women cried. (Id. p.47.) During all of this, Officer

Bessessen had remained inside the apartment and continued the search on his own. (Bessessen

Narrative, p.6.)

Burns asserts that at no time inside the apartment, in the apartment doorway, or in the

hall, had Burns tried to argue or fight with the officers, struggle with them, or struggle against

Mendoza’s effort to handcuff her. (Burns Aff., ¶¶ 9, 12.) Burns had been unarmed the whole time.

(Id., ¶12.) She never threatened the officers, cursed at them, or verbally abused them. (Id) The

Court again notes that Burns and Selking were the ones that called 911 for help, and thus should

not have been surprised or argumentative about officers appearing in their apartment.

3 Defendants dispute that the events occurred as testified to by Burns. Defendants aver

that Mendoza did not engage in any physical contact with Burns until after she placed her hand on

Mendoza’s chest. [ECF 47-2 at paragraph 20]. However, Defendants accept as true, for purposes

of this motion, Burns’ testimony about the circumstances of the push across the hallway.

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Burns was never arrested or charged for anything that took place that night. (Burns Aff.,

¶11.) Before leaving the apartment building that night, she permitted Mendoza to search the

apartment; nothing illegal was found. (Id.) Before Mendoza left, he apologized to Burns. (Id.)

In her October 7, 2019 deposition, Burns stated that following her encounter with Deputy

Mendoza and his use of force, her left shoulder “hurt me, it hurt me bad, and I was scared at the

time because…I was suffering. My left shoulder hurt and …probably never would be the same,

and actually is not [the same]”. (Burns Dep, p. 115.) Burns also suffered nightmares from the

Mendoza incident for at least six months. (Burns Dep, p. 94.) Burns went to a doctor about the

shoulder pain, and was prescribed medication. (Burns Dep., p.51; Plaintiff’s Resp. to Interrog.

Nos. 8, 10.) She also made, but did not keep, a mental health appointment for counseling. (Burns

Dep, pp. 51, 77, 94.)

In support of their motion for summary judgment, Defendants first argue that Mendoza is

entitled to qualified immunity as to Burns’ Fourth Amendment excessive force claim. Qualified

immunity protects government officials sued in their individual capacities “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Qualified immunity is “an immunity from suit rather than a mere defense to liability. . . .”

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)(emphasis removed). There are two prongs to the

qualified immunity analysis. Pearson v. Callahan, 555 U.S. 223, 236 (2009). A government

official will be protected by qualified immunity if either (1) the official has not violated the

plaintiff’s constitutional rights or (2) the right at issue was not clearly established at the time of

the challenged action. Tolan v. Cotton, 134 S. Ct. 1861, 1865-66 (2014). The Court has

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discretion to address either prong first if it will be dispositive of the case, Pearson v. Callahan,

555 U.S. 223, 236-43 (2009). Defendants assert that the first prong of the analysis should be

addressed here because it is dispositive of Burns’ state-law battery claim. Defendants further

assert that Mendoza is entitled to qualified immunity under both prongs of the analysis.

Defendants contend that the force Mendoza used to push and handcuff Burns was

objectively reasonable.4 A claim that a police officer used excessive force in seizing an individual

is “analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Graham v.

Connor, 490 U.S. 386, 388 (1989).

Determining whether the force used to effect a particular seizure is

“reasonable” under the Fourth Amendment requires a careful balancing of

the nature and qualify of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental interests at

stake. Our Fourth Amendment jurisprudence has long recognized that the

right to make an arrest or investigatory stop necessarily carries with it the

right to use some degree of physical coercion or threat thereof to effect it.

Because the test of reasonableness under the Fourth Amendment is not

capable of precise definition or mechanical application, however, its

proper application requires careful attention to the facts and circumstances

of each particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest or attempting to evade

arrest by flight.

The reasonableness of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight. . . . Not every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers violates the Fourth

Amendment. The calculus of reasonableness must embody allowance for

the fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly

4 Burns initially alleged that Mendoza pointed his gun at her when she entered the

apartment, and claimed that that was excessive force. However, in her response brief, Burns

states: “After further review, the Plaintiff will not be proceeding on her excessive force claim

regarding Mendoza pointing a gun.” ECF 56 at 14 n.4.

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evolving—about the amount of force that is necessary in a particular

situation.

Id. at 396-97 (citations and some internal quotation marks omitted). Whether the force used was

reasonable will depend upon the totality of the circumstances. Id. (citing Tennessee v. Garner,

471 U.S. 1, 8-9 (1985)). Because the “reasonableness” inquiry is an objective one, the officer’s

underlying intent or motivation is irrelevant. Id. at 397.

Defendants argue that the force employed to push Burns across the hall was minimal and

not unreasonable. Defendants point out that when Burns and Selking entered the apartment while

Officer Bessessen and Deputy Mendoza were searching it, she became subject to the officers’

control. Supreme Court precedent has long recognized that police officers are entitled to and do

“routinely exercise unquestioned command of the situation” when performing searches,

particularly where there may be weapons or armed persons in the areas being searched. E.g.,

Michigan v. Summers, 452 U.S. 692, 702-703 (1981). When Burns and Selking entered the area

being searched, Officer Bessessen and Deputy Mendoza had a right to order them out and/or

detain them. E.g., Bailey v. U.S., 568 U.S. 186, 195 (2013)(recognizing that Supreme Court

precedent “go[es] quite far in allowing seizure and detention of persons to accommodate the

necessities of a search,” and that, if the occupant of a residence had returned to the residence

during the search, “the police could have apprehended and detained him”); U.S. v. Jennings, 544

F.3d 815, 818-19 (7th Cir. 2008)(reasonable for officers to briefly detain suspect who entered

security perimeter surrounding apartment being searched).

Officer Bessessen and Deputy Mendoza initially elected to order Burns and Selking

out of the apartment. Burns, however, instead of exiting as ordered, argued with them. After

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Burns repeatedly failed to comply with Officer Bessessen’s and Deputy Mendoza’s lawful

orders, Deputy Mendoza decided to detain her, as there existed probable cause for the offense of

refusal to aid an officer. I.C. 35-44.1-3-3. Mendoza’s right to detain Plaintiff included a right to

use physical coercion to do so. E.g., Charles v. City of Chicago, 2018 WL 318484, *3 (N.D. Ill.,

Jan. 8, 2018)(citing Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000)).

As noted, the Supreme Court has long recognized that “[n]ot every push or shove,

even if it may later seem unnecessary in the peace of a judge’s chambers violates the Fourth

Amendment.” Graham, 490 U.S. at 396. Defendants argue that the undisputed evidence

establishes that Mendoza used a minimal amount of force when he pushed Burns against the wall

on the other side of the hallway, where he began to cuff her. Defendants point out that Burns did

not hurtle face-first into the wall or fall to the ground upon impact—she caught herself with her

hands when she hit the wall. She did not suffer any head injury or loss of consciousness. Rather,

Burns reports only temporary pain from hitting the wall. Burns Dep. at 36. When Mendoza had

Burns pressed up against the wall, Burns was able to breathe and push against the wall with her

arms. Thus, Defendants conclude that the force that Deputy Mendoza used did not violate Burns’

constitutional rights.

Defendants argue that this result is consistent with the Seventh Circuit’s opinion in Cherry

v. Washington County, 526 Fed. Appx. 683 (7th Cir. 2013). In Cherry, the plaintiff had not

attempted to flee or resist arrest when police officers stopped him on suspicion of burglary. Id. at

686. However, he defied an order to look straight ahead and not turn around; one of the officers

then pushed him to the ground and pressed his face against the road, causing excruciating pain.

Id. The district court granted summary judgment in favor of the officers on this claim, and this

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decision was affirmed on appeal. The Seventh Circuit described the amount of force used as

“modest,” and as “caus[ing] at most only ‘temporary pain and discomfort.’” Id. at 687-88. The

Court held that “Cherry was under arrest for a serious crime—a home invasion—and in light of

his acknowledged defiance of the officers’ orders and the momentary nature of the pain and

discomfort he claims to have suffered, we agree with the district court that the excessive-force

claim fails as a matter of law.” Id. at 688. Defendants point out that Deputy Mendoza used even

less force that the officer-defendant in Cherry.

Burns, in response, contends that a jury could find the force used unreasonable because

she committed no crime, she did not threaten anyone, and she painfully hit her head on the wall.

However, it is clear that, based on Burns’ repeated refusals to exit the apartment when ordered to

do so, a reasonable officer could have believed that probable cause existed for the offense of

refusal to aid a police officer. See Low v. State, 580 N.E.2d 737, 740 (Ind. Ct. App. 1991). Even

taking the facts as presented by Burns, that she was leaving the apartment at the time Mendoza

made contact with her, an officer does not lose the right to arrest someone when they stop

violating the law.

Defendants assert that Burns’ claim is materially indistinguishable from the excessive force

claim at issue in Sow v. Fortville Police Department, 636 F.3d 293, 304 (7th Cir. 2011). In Sow,

the plaintiff was arrested for forgery, and testified that he was “pushed into the police car and hit his

head as he was pushed and thrown into the vehicle,” causing him to temporarily lose consciousness. Id.

at 298. The Seventh Circuit, in holding that the officer-defendants were entitled to summary judgment

on the Fourth Amendment excessive force claim, held that:

The push in the case at hand occurred after Plaintiff was arrested based upon probable

cause to believe that he had committed the crime of forgery. Accordingly, the facts here

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are clearly distinguishable from Baird [v. Renbarger, 576 F.3d 340 (7th Cir. 2008),]

and Clash [v. Beatty, 77 F.3d 1045 (7th Cir. 1996)]. The right to make an arrest

necessarily carries with it the right to some degree of physical coercion to effect it.

Graham, 490 U.S. at 396, 109 S. Ct. 1865. “’Not every push or shove, even if it may

later seem unnecessary in the peace of a judge’s chambers,’” violates the Fourth

Amendment. Id. at 396, 109 S. Ct. 1865, quoting Johnson v. Glick, 481 F.2d 1028,

1033 (2d Cir. 1973). In this case, we conclude that the fact that Plaintiff bumped his

head while being placed into the squad car following his arrest is not sufficient to

establish a genuine issue of material fact whether excessive force was used in effecting

the arrest.

Sow, 636 F.3d at 304. Even though Sow had testified that he hit his head so hard that he lost

consciousness when he was “pushed and thrown into the vehicle,” the Seventh Circuit, as set out

above, held that he had no excessive force claim. Cf. Smith v. Ball State Univ., 295 F.3d 763,

766-67, 770-71 (7th Cir. 2002)(force used was objectively reasonable where the plaintiff had

apparently refused to exit his vehicle when ordered to; three police officers then dragged him out

of the car, one of the officers attempted a knee strike which resulted in tackling the plaintiff to the

ground, and the officers held the plaintiff’s face to the ground while handcuffing him, resulting in

bruising to his face).

The Seventh Circuit’s holding in Sow is directly applicable to Burns’ claim that

Mendoza used excessive force when he shoved her towards the wall to handcuff her. The

undisputed facts establish that Mendoza used even less force than the officer-defendants

in Sow. Whereas Sow hit his head so hard that he lost consciousness, Burns did not go hurtling

face-first into the wall, did not fall to the ground upon hitting the wall, experienced only

momentary discomfort, and did not lose consciousness or suffer any head injury whatsoever.

Further, Burns was able to breathe and push against the wall with her arms when Mendoza had

her pressed against the wall to handcuff her. These facts fall far short of creating a genuine issue

on reasonableness under Sow. Under Sow, this is true even if Plaintiff happened to hit her head

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when she was placed against the wall to be handcuffed. Burns has never accused Deputy

Mendoza of purposefully slamming her head against the wall.

Burns does not dispute that Deputy Mendoza did not know that the armed and dangerous

person had been located, and does not dispute that Deputy Mendoza believed that he was

assisting in searching the apartment for that person. Clearly, a reasonable officer could certainly

have believed that Burns’ presence inside the apartment during a search for an armed and

dangerous person was a danger to both the officers and to Burns. The officers were entitled to

exercise “unquestioned command of the situation.” Michigan v. Summers, 452 U.S. 692, 702-703

(2013). When Burns questioned the officers’ command, the officers were entitled to use physical

coercion to ensure that Burns did not further interfere with the search. E.g., Aponte Matos v.

Toledo Davila, 135 F.3d 182, 191-92 (6th Cir. 1998)(cited approvingly in Baird v. Renbarger,

576 F.3d at 343-44).

Burns argues that her “momentary delay in physical compliance with an officers’ [sic]

order” was no big deal. [ECF #56 at 16]. However, in the 6 seconds it took Burns to finally turn

to leave, if there had been an armed and dangerous person in the apartment, as Deputy Mendoza

believed there could be, the suspect could have used the distraction to attack the officers and/or Burns.

If an armed and dangerous suspect had been hiding in the apartment and took advantage of the

6-seconds-plus distraction created by Burns to attack the officers and/or Burns, people could have

died. This is exactly why the Supreme Court authorizes police officers to exercise unquestioned

command in situations such as these. Summers, 452 U.S. at 702-703.

Accordingly, this court finds that the force Deputy Mendoza used to push Burns across

the hallway and against the wall was objectively reasonable, satisfying the first prong of the

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qualified immunity analysis.

Burns has also alleged that Mendoza’s act of placing Burns’ arm behind her back

constituted unreasonable force. Defendants, however, claim that Mendoza’s actions were not

objectively unreasonable. Police officers are afforded significant leeway when judging the amount

of force that is necessary to handcuff someone. Unless a police officer “knowingly use[s]

handcuffs in a way that will inflict unnecessary pain or injury on an individual who presents little

or no risk of flight or threat of injury,” Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009), the

force used to place someone into handcuffs will generally be considered objectively reasonable.

Experiencing pain from being handcuffed is insufficient, without more, to create a triable issue

about Fourth Amendment reasonableness. Id.

Defendants contend that Mendoza “did not use handcuffs in a manner that would clearly

injure or harm a typical arrestee,” id. at 773. It would not clearly injure or harm a typical arrestee

to pull the arrestee’s arm down and behind their back in order to cuff them, which is in most cases

necessary in order to handcuff someone. Defendants argue that even if an officer pulls a suspect’s

arm down quickly, this would not clearly injure someone. Nor could the simple act of pulling

someone’s arm down quickly be considered objectively unreasonable without greatly expanding

the scope of liability for police officers. Defendants point out that Burns had repeatedly defied

Deputy Mendoza’s and Officer Bessessen’s orders to exit the apartment, so Deputy Mendoza had

every reason to believe that Burns may attempt to resist his efforts to physically control her and

place her into handcuffs.

Defendants contend that this case is a far cry from other cases in which there was a triable

issue found concerning the reasonableness of force used in handcuffing someone. In Payne v.

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Pauley, the record established that officers fought over the plaintiff’s arm for 30 minutes, forcing

her arm behind her back, twisting her arm, and over-tightening the handcuffs, even though she

was not a threat to anyone and was not resisting or attempting to flee. 337 F.3d 767, 779 (7th Cir.

2003). In Rooni v. Biser, “[w]hile in the process of handcuffing Rooni, Biser grabbed Rooni by

the back of the neck and jerked him back, almost pulling Rooni over,” he ignored Rooni’s

repeated complaints of pain, and “purposefully twisted the handcuffs so that they would hurt

[Rooni].” 742 F.3d 737, 739 (7th Cir. 2014). In Ramusack v. Swanson, the defendant-officers

forced the plaintiff’s arms up behind her back while she was handcuffed and “almost lifted” her by

her handcuffed arms as they dragged her to the squad car. 2005 WL 3359114, *3 (N.D. Ind.,

Dec. 9, 2005). There are no such accusations in this case, where Deputy Mendoza did not even

cuff both of Burns’ hands before he released her.

The holding in Payne v. Pauley demonstrates that Deputy Mendoza did not use

objectively unreasonable force in pulling Burns’ arm behind her back to apply the handcuff.

Here, it is undisputed that Burns repeatedly refused to comply with orders to exit the apartment,

and it is undisputed that the force Deputy Mendoza used to cuff Burns’ left arm was far less than

the force used in Payne. Thus, Deputy Mendoza was entitled to significant leeway in judging the

amount of force employed to handcuff Plaintiff, and the force he used was not objectively

unreasonable.

Burns, however, argues that there is a genuine dispute of material fact concerning her

claim that Deputy Mendoza used too much force to pull her arm behind her back because Deputy

Mendoza pulled down strongly and because Burns claims to have continuing pain in her left

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shoulder.5 However, Burns presents no facts whatsoever from which a jury could find that Deputy

Mendoza used excessive force under the legal standards applicable to this claim. Burns does not

dispute the relevant legal standards applicable to handcuffing claims. As discussed above, police

officers are afforded significant leeway when judging the amount of force that is necessary to

handcuff someone. Unless a police officer “knowingly use[s] handcuffs in a way that will inflict

unnecessary pain or injury on an individual who presents little or no risk of flight or threat of

injury,” Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009), the force used to place someone

into handcuffs will generally be considered objectively reasonable. Experiencing pain from being

handcuffed is insufficient, without more, to create a triable issue about Fourth Amendment

reasonableness. Id. In the usual case, if the officer “did not use handcuffs in a manner that would

clearly injure or harm a typical arrestee,” id. at 773, there can be no liability for the officer.

Clearly, Defendants are entitled to summary judgment on this aspect of Burns’ excessive

force claim because Burns has failed to present any evidence that Mendoza did anything other

than pull her arm down and put it behind her back to handcuff her. Burns does not accuse

5Defendants have moved to strike certain evidence and argument from Burns’ response to

Defendants’ Motion for Summary Judgment. Specifically, Defendants move to strike evidence

and argument that Burns attributes her ongoing left shoulder pain to Mendoza’s actions.

Defendants point out that there are multiple potential etiologies for Burns’ pain, as medical

records show that Burns has sought repeated treatment for pain in her left shoulder due to her

work as a waitress, and also due to a car accident. It is clear that because there are multiple

potential etiologies for Burns’ shoulder pain, expert testimony is necessary to establish causation

and lay a foundation for Burns to testify about her continuing left shoulder pain. Haack v.

Bongiorno, 2011 WL 862239, *4 (N.D. Ill., Mar 4. 2011)(“No lay witness, however, is permitted

to opine that an accident proximately caused Plaintiff’s physical health problems or to offer a

detailed medical diagnosis (or self-diagnosis) of Plaintiff’s alleged injuries.”); see also

Hendrickson v. Cooper, 589 F.3d 887, 892 (7th Cir. 2009)(holding that, if the plaintiff had claimed

tht the defendant’s actions “exacerbated his back problems, we might require Hendrickson to

support his theory with some objective medical evidence,” but that ‘[t]his case presents no such

complicated question of medical causation.”). Thus, the motion to strike will be granted.

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Mendoza of doing anything that would clearly injure a typical arrestee, which is the standard that

Burns must meet. Burns does not accuse him of pulling her arm behind her back and then up into

an unnatural and obviously painful position. Burns does not accuse him of dragging her out of the

building by her handcuffed wrists. He is not accused of pulling Burns’ handcuffed arms up behind

her back in a manner that would obviously inflict pain. He is not accused of tightening the

handcuff so tight that it would obviously inflict pain. Unless the action of the officer will clearly

inflict pain or injury on a typical arrestee, there is no violation of the Fourth Amendment. It would

not clearly injure a typical arrestee to pull their arm down and behind their back, even if the officer

pulled the arrestee’s arm down hard. A reasonable officer, in the exigencies of the undisputed

facts of this case, could have believed that they needed to get Burns handcuffed as quickly as

possible in case the other officer, who was believed to be still searching for a dangerous person

with a knife, encountered violent resistance. A contrary finding would cause police officers to be

timid in uncertain circumstances out of fear of personal civil liability if they pulled someone’s arm

down “too hard” to cuff them, contrary to the purposes of qualified immunity. Accordingly, this

court holds that Defendants are entitled to summary judgment as to this aspect of Burns’

excessive force claim.

With regard to the second prong of the qualified immunity analysis, Defendants assert that

it was not clearly established that the force that Mendoza used would be objectively unreasonable.

The Supreme Court set out in District of Columbia v. Wesby the proper analysis for determining

whether a right was “clearly established” under the second prong of the qualified immunity

analysis:

“Clearly established” means that, at the time of the officer’s conduct, the law was

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sufficiently clear that every reasonable official would understand that what he is doing is

unlawful. In other words, existing law must have placed the constitutionality of the

officer’s conduct beyond debate. This demanding standard protects all but the plainly

incompetent or those who knowingly violate the law.

To be clearly established, a legal principle must have a sufficiently clear foundation in

then-existing precedent. The rule must be settled law, which means it is dictated by

controlling authority or a robust consensus of cases of persuasive authority. It is not

enough that the rule is suggested by then existing precedent. The precedent must be clear

enough that every reasonable official would interpret it to establish the particular rule the

plaintiff seeks to apply. Otherwise, the rule is not one that every reasonable official would

know.

The clearly established standard also requires that the legal principle clearly prohibit the

officer's conduct in the particular circumstances before him. The rule’s contours must be

so well defined that it is clear to a reasonable officer that his conduct was unlawful in the

situation he confronted. This requires a high degree of specificity. We have repeatedly

stressed that courts must not define clearly established law at a high level of generality,

since doing so avoids the crucial question whether the official acted reasonably in the

particular circumstances that he or she faced. A rule is too general if the unlawfulness of

the officer’s conduct does not follow immediately from the conclusion that the rule was

firmly established. In the context of a warrantless arrest, the rule must obviously

resolve whether the circumstances with which the particular officer was confronted

constituted probable cause.

We have stressed that the specificity of the rule is especially important in the Fourth

Amendment context. Probable cause turns on the assessment of probabilities in particular

factual contexts and cannot be reduced to a neat set of legal rules. It is incapable of

precise definition or quantification into percentages. Given its imprecise nature, officers

will often find it difficult to know how the general standard of probable cause applies in

the precise situation encountered. Thus, we have stressed the need to identify a case where

an officer acting under similar circumstances was held to have violated the Fourth

Amendment. While there does not have to be a case directly on point, existing precedent

must place the lawfulness of the particular arrest beyond debate. Of course, there can be

the rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently clear

even though existing precedent does not address similar circumstances. But a body of

relevant case law is usually necessary to clearly establish the answer with respect to

probable cause.

Wesby, 138 S. Ct. 577, 589-90 (2018)(citations, alterations, and some internal quotation marks

omitted). If “a reasonable officer, looking at the entire legal landscape at the time of the

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[challenged action], could have interpreted the law as permitting” it, then the officer-defendant is

entitled to summary judgment based upon qualified immunity. Id. It is Burns’ burden to

demonstrate that the right at issue was clearly established. Perry v. Sheahan, 222 F.3d 309, 315

(7th Cir. 2000). Defendants argue that Burns cannot meet this burden as it cannot be said that it

must have been clear to a reasonable officer in Mendoza’s position that any of the force employed

against Burns would violate Burns’ constitutional rights.

Defendants maintain that it was not clearly established that the force that Deputy Mendoza

employed in pushing Burns across the hall would violate Burns constitutional rights. As discussed

above, Deputy Mendoza had a right to detain Burns when she entered the apartment, and when

she refused repeated commands to exit the apartment he had the right to use physical coercion to

detain her.

Defendants also maintain that it was not clearly established that the minimal force that

Deputy Mendoza used when he pulled Burns’ left arm behind her back would violate Burns’

constitutional rights. As discussed above, police officers are afforded wide latitude in judging the

amount of force necessary to place someone into handcuffs, and Deputy Mendoza did nothing

that would obviously injure a typical arrestee.

In response, Burns cites Morfin v. City of Chicago in an attempt to defeat qualified

immunity. In Morfin, the undisputed evidence established that the plaintiff was “docile and

cooperative.” 349 F.3d 989, 1005 (7th Cir. 2003). There were no issues of officer or public safety

involved in Morfin. The officer was investigating tampering with voting machines, and the

plaintiff was not a suspect. Id. at 992-93 & n.1. That is in stark contrast to this case, where Burns

admittedly refused to comply with the officers’ repeated orders to exit the apartment where

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Mendoza believed that an armed and dangerous suspect may have been hiding. Morfin also

involved greater force than this case. In Morfin, two officers “grabbed him, twisted his arm,

shoved him toward the wall and took him to the floor.” Id. at 1005. Plaintiff does not accuse

Deputy Mendoza of twisting her arm or tackling her, as in Morfin. “[S]pecificity is especially

important in the Fourth Amendment context,” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015), and

the necessary specificity of the facts in Morfin to this case is lacking. A reasonable officer in

Deputy Mendoza’s position would not consider Morfin to “squarely govern,” id. at 309, the

specific facts of this case, where Burns repeatedly refused lawful orders, which created a risk to

the safety of the officers and to Burns herself. Thus, Morfin does not defeat qualified immunity.

The Seventh Circuit’s opinion in Sow v. Fortville Police Department is far more analogous to the

facts of this case, and under Sow a reasonable officer could have considered that the amount of

force used to secure Burns was objectively reasonable.

Chelios v. Heavener, also cited by Burns in an effort to defeat qualified immunity, is even

less like the facts of this case. There, even though the plaintiff, Chelios, had not committed any

crime or presented any sort of threat to the officers or others, “Sergeant Heavener immediately

put his arms around Mr. Chelios’ neck, grabbed his shoulders, spun Mr. Chelios around and then

two other officers and Sergeant Heavener tackled Mr. Chelios.” 520 F.3d 678, 689 (7th Cir.

2008). The court held that “a jury could certainly find that his conduct in no way warranted being

tackled by three officers.” Id. at 690. In the present case, Burns was not tackled. Rather, she was

placed up against a wall. Although she claims that Mendoza was less than gentle, the undisputed

facts show that she was subjected to far less force than Chelios. Additionally, as discussed above,

the Seventh Circuit distinguished, in Sow v. Fortville Police Department, the legal principles

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expressed in Chelios in circumstances where, as here, probable cause existed to arrest the

plaintiff. A reasonable officer in Deputy Mendoza’s position would not consider Chelios to

“squarely govern” the circumstances that confronted him. Again, the facts of Sow v. Fortville

Police Department are far more analogous to this case.

Plaintiff relies on Strand v. Minchuk, 910 F.3d 909 (7th Cir. 2018), in an effort to defeat

qualified immunity, but that case cannot be considered here because it was issued subsequent to

the events of this lawsuit. Opinions issued after the events of this case “could not have given fair

notice to [Deputy Mendoza] and are of no use in the clearly established inquiry.” Brosseau v.

Haugen, 543 U.S. 194, 200 n.4 (2004). Further, Strand is far afield from the facts of this case.

Strand involved the use of deadly force following an assault on the officer and the suspect’s

apparent surrender. Id. at 912. The sole issue in that appeal was “whether the rapidly-evolving

nature of the altercation justified Officer Minchuk’s use of force, or whether he had time to

recalibrate the degree of force necessary, in light of the plaintiff’s statement of surrender.” Id. at

913. Clearly, the case at bar does not involve the use of deadly force or “recalibration” of an

officer’s response to violent resistance. Burns did not assault Mendoza, so, in addition to the fact

that it was issued after these events, Strand has no bearing on clearly-established law because that

opinion has no similarity whatsoever to the particular facts of this case.

Plaintiff presents Mitchell v. Village of Matteson, 2020 WL 3035965 (N.D. Ill., June 5,

2020), in an effort to defeat qualified immunity. Like Strand, the Mitchell decision is inapplicable

to the clearly-established prong of qualified immunity because it was issued subsequent to the

events of this case. More fundamentally, however, Mitchell is inapposite because it is a district

court opinion. District court opinions cannot create clearly-established law. Camreta v. Greene,

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563 U.S. 692, 709 n.7 (2011)(“[D]istrict court decisions—unlike those from the courts of

appeals—do not necessarily settle constitutional standards or prevent repeated claims of qualified

immunity.”). Recently, the Supreme Court has questioned whether even circuit court opinions can

create clearly-established law. See City of Escondido v. Emmons, 139 S. Ct. 500, 503

(2019)(“Assuming without deciding that a court of appeals decision may constitute clearly

established law for purposes of qualified immunity. . . .”). The facts of the Mitchell decision, in

which the plaintiff alleged that he was assaulted by three police officers when he was calmly

answering their questions and had presented no threat to anyone, are also dissimilar. Here, Burns

had repeatedly refused to comply with the officers’ commands, which Mendoza reasonably

believed created a danger to both Burns and the officers, and he used far less force than the three

officer-defendants in Mitchell.

Sow v. Fortville Police Department remains the most closely-analogous case. Also closely

analogous is Smith v. Ball State, which involved an apparent refusal to comply with a police

officer’s orders. Smith, 295 F.3d at 766-67, 770-71. Like in Sow, the officer-defendants in Smith

used more force than Burns accuses Mendoza of using. A reasonable officer could have

interpreted Smith as allowing the level of force that Mendoza used in this case, and Mendoza is

therefore entitled to qualified immunity under the clearly-established-law prong of qualified

immunity.

Finally, Burns presents no precedent involving handcuffing, and thus fails to satisfy her

burden to demonstrate that Mendoza violated clearly-established law when he pulled her arm

behind her back to cuff her.

Burns has failed to satisfy her burden to demonstrate that Mendoza violated her

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clearly-established rights. Burns presented no factually-similar precedent that would have put

Mendoza on notice that his actions would violate the Fourth Amendment. The precedents that

Burns cited were issued after the events of this case, were issued by a district court, or have no

similarity to the facts of this case. None of the precedents presented by Burns would “squarely

govern” the particular circumstances that confronted Mendoza. Nor is this the rare case of

“obvious” unconstitutional conduct to which the Supreme Court has referred. When viewing the

“entire legal landscape” at the time of these events, District of Columbia v. Wesby, 138 S. Ct.

577, 589-90 (2018), in particular the Seventh Circuit’s factually-similar opinions in Sow v.

Fortville Police Department and Smith v. Ball State, a reasonable officer could have believed that

the minimal force employed by Mendoza would be lawful. Therefore, Mendoza is entitled to

summary judgment based upon the clearly-established prong of the qualified immunity analysis.

Next, Defendants argue that this Court should grant summary judgment on Burns’ state

law battery claim. Burns asserts a state-law respondeat superior battery claim against the Adams

County Sheriff based upon the same alleged acts of excessive force pled against Mendoza.

Burns’ state-law battery claim fails because, as this Court held above, Mendoza did not use

unreasonable force.

This Court’s jurisdiction over Burns’ state-law battery claim is premised upon 28 U.S.C. §

1367(a), which grants district courts supplemental jurisdiction over state-law claims that form the

same Article III case or controversy as the claims over which the district court has original

jurisdiction. This section provides that “[a] district court may relinquish jurisdiction over a

[supplemental state-law claim] if . . . the district court has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. § 1367(c). This subsection also applies where a district court has

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granted summary judgment on all federal claims. See, e.g., Hansen v. Bd. of Tr. of Hamilton S.E.

Sch. Corp., 551 F.3d 599, 608 (7th Cir. 2008). Rather than automatically losing jurisdiction over

supplemental state-law claims, the statute grants district courts broad discretion in determining

whether to retain or relinquish jurisdiction over supplemental claims. Van Harken v. City of

Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997). In deciding whether to retain jurisdiction over a

supplemental claim, a district court should weigh “the values of judicial economy, convenience,

fairness, and comity.” Hansen, 551 F.3d at 608.

A “district court may [retain supplemental jurisdiction and] decide the merits of a state

law claim if the claim does not present any ‘novel or unsettled’ questions of state law, or the

appropriate disposition of the claim is ‘crystal clear,’ and it is ‘otherwise efficient to do so.’”

Franklin v. Manek, 2004 WL 1629544, *11 (S.D. Ind., June 8, 2004)(citations omitted)(citing

Binz v. Brandt Constr. Co., 301 F3d 529, 532 (7th Cir. 2002); Bilow v. Much Shelist Freed

Denenberg Ament & Rubenstein, P.C., 277 F.3d 882, 896 (7th Cir. 2001)). “’If . . . an

interpretation of state law that knocks out the plaintiff’s state claim is obviously correct, the

federal judge should put the plaintiff out of his misery then and there, rather than burdening the

state courts with a frivolous case.’” Id. (ellipsis in original)(quoting Van Harken, 103 F.3d at

1354).

In Tom v. Voida, 1991 WL 343377 (S.D. Ind., May 3, 1991), the District Court for the

Southern District of Indiana granted summary judgment to the defendants on the plaintiff’s

Section 1983 deadly force claim due to the absence of a constitutional violation. Tom, 1991 WL

343377, *8. After granting summary judgment, the court relinquished jurisdiction over the

plaintiff’s state-law wrongful death, assault, and battery claims. Tom, 1991 WL 343377, *7.

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Later, the state-law claims were re-filed in Indiana state court. See Tom v. Voida, 654 N.E.2d

776, 780 (Ind. Ct. App. 1995). The trial court granted the defendants’ motion for summary

judgment and the plaintiff appealed. Tom, 654 N.E.2d at 781. The Court of Appeals held that

the defendants were entitled to assert collateral estoppel on the basis of the federal court’s

summary judgment on the Section 1983 claims. Id. at 785.

In Indiana, collateral estoppel “’bars relitigation of a fact or issue where that fact or issue

was necessarily adjudicated in an earlier suit and that fact or issue is presented in the subsequent

lawsuit.’” Id. at 781 (quoting Ind. Dept. of Envtl. Mgmt. v. Conard, 614 N.E.2d 916, 923 (Ind.

1993)). In the collateral estoppel analysis, “’the prime consideration is whether the party against

whom the prior judgment is pled had a full and fair opportunity to litigate the issue and whether

it would be otherwise unfair under the circumstances to permit the use of collateral estoppel.’” Id.

(quoting Sullivan v. Am. Cas. Co. of Reading, Pa., 605 N.E.2d 134, 138 (Ind. 1992)). In Tom,

the Indiana Court of Appeals held that the reasonableness of the officer’s use of force was

necessarily resolved against the plaintiff in the federal lawsuit, that the plaintiff had a fair

opportunity to litigate the issue, and that there were no special circumstances which would

render collateral estoppel unfair. Id. at 783-85. Because the federal court’s determination on the

reasonableness of deadly force estopped relitigation of the issue, there were no genuine disputes

of material fact and the defendants were entitled to summary judgment. Id. at 785.

The result is the same here. Indiana’s use-of-force standards mirror Graham v.

Connor, see IC 35-41-3-3(b) and O’Bannon v. City of Anderson, 733 N.E.2d 1, 3 (Ind. Ct. App.

2000), so the lawfulness of the use of force under state law will necessarily be resolved by a

finding on summary judgment that the force used by Mendoza was reasonable. Burns has had a

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full and fair opportunity to litigate the issue in this Court and there are no special circumstances in

this case that would make it unfair to apply collateral estoppel. Clearly, the finding by this Court

that deadly force was reasonable for the purposes of Burns’ Section 1983 claim will be afforded

collateral estoppel effect if the state-law battery claim is re-filed in state court.

Plaintiff argues, without citation to any authority whatsoever, that the Court should not

grant summary judgment on her state-law battery claim if the Court finds that Deputy Mendoza’s

actions were objectively reasonable under the Fourth Amendment. Plaintiff, however, agrees that

the Indiana standard for police officers’ use of force mirrors the Fourth Amendment standard.

Thus, it is clear that it is appropriate to grant summary judgment on Burns’ state-law battery

claim against the Sheriff because, as the Indiana courts have recognized, a finding against Burns

on the objective reasonableness of the force used is dispositive of Burns’ state-law battery claim.

Accordingly, summary judgment will be granted in favor of Defendant Adams County Sheriff, as

well as in favor of Defendant Deputy Mendoza, on all of Burns’ claims.

Conclusion

On the basis of the foregoing, Defendants’ Motion for Summary Judgment [DE 46, 59]

and Defendants Motion to Strike [DE 57] are both hereby GRANTED.

Entered: December 2, 2020.

s/ William C. Lee

William C. Lee, Judge

United States District Court

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