summary judgment is “not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events”
How later courts described this case
- summary judgment is “not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events”
- “Whether a police officer used excessive force is analyzed from the perspective of a reasonable officer under the circumstances, rather than examining the officer’s actions in hindsight.”
- holding as a matter of law that officer didn’t use excessive 8 force when he tackled plaintiff, who was attempting to interfere with the lawful arrest of his son
- “Probable cause acts as an absolute bar to a claim for false arrest.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KAYLA BROOKSHIRE, )
)
Plaintiff )
)
v. ) CAUSE NO. 3:20-CV-648 RLM-MGG
)
ELKHART CITY POLICE, et al., )
)
Defendants )
OPINION AND ORDER
Kayla Brookshire, who proceeds in this case without a lawyer, filed a pro se
complaint against Elkhart City Police and two of its police officers, Nathan Lanzen
and Timothy Zimmer, under 42 U.S.C. § 1983 alleging that she was unlawfully
arrested and detained on January 1, 2019 during an incident involving Darquell
Pulliam, and that officers used excessive force when they arrested her. The
defendants’ motion for summary judgment is before the court. Ms. Brookshire was
afforded multiple opportunities to respond, but has yet to do so. For the following
reasons, the court grants the defendants’ motion.
Summary judgment is appropriate when the pleadings, discovery materials,
disclosures, and affidavits demonstrate no genuine issue of material fact, such
that the movant is entitled to judgment as a matter of law. Protective Life Ins. Co.
v. Hansen, 632 F.3d 388, 391-392 (7th Cir. 2011). The court construes the
evidence and all inferences that reasonably can be drawn from that evidence in
the light most favorable to the non-moving party — Ms. Brookshire in this
instance. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The
defendants bear the burden of informing the court of the basis for their motion,
and presenting evidence demonstrating the absence of any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If they meet that
burden, the plaintiff can’t rest upon the allegations in her complaint, but must
“point to evidence that can be put in admissible form at trial, and that, if believed
by the fact-finder, could support judgment in [her] favor.” Marr v. Bank of
America, N,A., 662 F.3d 963, 966 (7th Cir. 2011); see also Hastings Mut. Ins. Co.
v. LaFollette, No. 1:07-CV-1085, 2009 WL 348769, at *2 (S.D. Ind. Feb. 6, 2009)
(“It is not the duty of the court to scour the record in search of evidence to defeat
a motion for summary judgment; rather, the nonmoving party bears the
responsibility of identifying the evidence upon which [s]he relies.”); Hammel v. Eau
Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (summary judgment is
“not a dress rehearsal or practice run; it is the put up or shut up moment in a
lawsuit, when a party must show what evidence it has that would convince a trier
of fact to accept its version of events”).
The defendants filed their motion, brief, and supporting documents [Doc.
Nos. 24 and 25] electronically on July 2, 2021, and mailed copies to Ms.
Brookshire the same day. They also filed and mailed a separate notice advising
Ms. Brookshire of her obligation to respond to the summary judgment motion and
the potential consequences of failing to do so, and provided her with copies of Fed.
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R. Civ. P. 56 and Local Rule 56-1 [Doc. No. 26]. On July 14, the court entered an
order notifying Ms. Brookshire of the pending motion and giving her until July 30,
2021 to file her response and any supporting materials. The defendants notified
the court that the documents they mailed to Ms. Brookshire had been returned
by the U.S. Postal Service marked “Return to Sender” [Doc. No. 28]; that they
hadn’t heard from Ms. Brookshire as of August 13 [Doc. No. 29]; and that Ms.
Brookshire emailed them on August 19 acknowledging that she’d received
defendants’ “notice and reply in the mail” and asking “what it is you are
requesting from me?”. [Doc. No. 30 and 30-1]. The defendants responded via
email the same day, attached copies of Doc. Nos. 24-29 to their email, told Ms.
Brookshire that neither they, nor the court, could give legal advice, and advised
her to “carefully review all of the attached documents and, if you choose, consult
with an attorney on any questions you have after review.” [Doc. Nos.30 and 30-1].
There is no indication that the address Ms. Brookshire provided when she filed
her complaint and that defendants have used to communicate with her has
changed. As of the date of this order, Ms. Brookshire hasn’t responded to the
motion for summary judgment, disputed any of the facts asserted in the
defendants’ motion and supporting materials, submitted any evidence in support
of her claims, or sought an extension of time to comply with the court’s order. The
time for doing so has passed.
3
The facts, viewed in the light most favorable to Ms. Brookshire, are as
follows.
In the early morning hours of January 1, 2019 Corporal J. Gage, tried to
stop a car driven by Darquell Pulliam for driving left of center. Things escalated
into a felony traffic stop when Mr. Pulliam refused to pull over, drove to his
apartment, parked his car, and refused to get out of the car. Ms. Brookshire, Mr.
Pulliam’s girlfriend, was in the apartment when she heard the commotion and
observed several police officers surround the car, with guns drawn. She ran out
onto the sidewalk and began yelling and screaming at the officers. Officer Lanzen
headed her off before she entered the parking area, and told her several times to
lower her voice and go back inside. Ms. Brookshire eventually complied, but when
Mr. Pulliam refused to get out of the car and officers broke the front passenger
door window to remove him, Ms. Brookshire, by her own admission, “freaked out”,
ran from the apartment building into the parking area, and started yelling and
screaming at the police officers who were trying to arrest Mr. Pulliam. Officer
Lanzen told Ms. Brookshire to lower her voice, but she kept screaming, so a
second officer, Officer Zimmer, came over to assist him.
Officer Zimmer attests that “because of the prior warning given to Ms.
Brookshire and her ongoing interference with officers trying to safely apprehend
Mr. Pulliam” he and Officer Lanzen decided to arrest her. Officer Lanzen directed
Ms. Brookshire to get on the ground and told her she was going to jail. When Ms.
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Brookshire didn’t comply, Officer Lanzen grabbed her to place her under arrest.
She pulled her arm away and swung at the officers, at which point Officer Lanzen
grabbed her and took her to the ground. Ms. Brookshire continued to pull away
from the officers, screaming that she was pregnant. The officers told her to stop
resisting, handcuffed her, and put her in a patrol car without further incident. Ms.
Brookshire reports that her shirt was ripped and she was bruised in the process.
Ms. Brookshire was arrested and detained until January 2, 2019, when an
Elkhart Superior Court magistrate found probable cause to believe that she had
committed the offenses of resisting law enforcement and disorderly conduct, in
violation of IND. CODE §§ 35-44.1-3-1 and 35-45-1-3, and set bond at $1500.1 Ms.
Brookshire was subsequently charged in Elkhart City Court, Cause No. 20H01-
1901-000096, with those offenses; and, in March 2021, entered into a pre-trial
diversion agreement in which she admitted the existence of a factual basis for a
criminal conviction for resisting law enforcement and disorderly conduct, and
agreed to certain conditions. If Ms. Brookshire successfully completes those
conditions, the charges against her will be dismissed.
1 IND. CODE § 35-44.1-3-1(a)(1) provides that: “A person who knowingly or
intentionally forcibly resists, obstructs, or interferes with a law enforcement officer or
a person assisting the officer while the officer is lawfully engaged in the execution of
the officer’s duties...commits resisting law enforcement, a Class A misdemeanor....”
IND. CODE § 35-45-1-3(a)(2) makes it unlawful to engage in disorderly conduct –
to “recklessly, knowing, or intentionally...make[] unreasonable noise and continue[] to
do so after being asked to stop.”
5
The probable cause finding and Ms. Brookshire’s admission of a factual
basis for a criminal conviction for resisting law enforcement and disorderly
conduct in her pre-trial diversion agreement and deposition testimony bar her
claims for false arrest and imprisonment. See, i.e., Heck v. Humphrey, 512, 477,
487 (1994)(barring a § 1983 claim for damages where “a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence...”);
Yananta Lusa v. Indiana Dept. of Child Services, No. 1:19cv3928-RLY-DML, 2021
WL 5154098, at * 2 (7th Cir. Nov. 5, 2021) (“The presence of probable cause bars
any § 1983 claim for unlawful detention under the Fourth Amendment”); Gill v.
City of Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017)(“Probable cause acts as an
absolute bar to a claim for false arrest.”).
To prevail on her excessive force claim, Ms. Brookshire must show that the
force used to effect her arrest wasn’t “‘ objectively reasonable’ in light of the facts
and circumstances confronting [the officers], without regard to their underlying
intent or motivation.” Graham v. Connor, 490 U.S. 386, 497 (1989); Dawson v.
Brown, 803 F.3d 829, 833 (7th Cir. 2015) (“Whether a police officer used excessive
force is analyzed from the perspective of a reasonable officer under the
circumstances, rather than examining the officer’s actions in hindsight.”). Factors
considered include:
the severity of crime; whether the suspect posed an immediate threat
to the officers or others; whether the suspect was resisting or evading
arrest; whether the individual was under arrest or suspected of
committing a crime; whether the individual was armed; and whether
6
the person was interfering or attempting to interfere with the officer’s
duties.
Id. When, as in this case, “there are sufficient undisputed material facts to
establish that the officer acted reasonably under the circumstances, then the
court must resolve the issue as a matter of law, rather than allow a jury to
‘second-guess’ the officer's actions.” Dawson v. Brown, 803 F.3d at 833.
Ms. Brookshire acknowledged in her pre-trial diversion agreement that a
factual basis existed for criminal convictions for resisting law enforcement and
disorderly conduct, IND. CODE §§ 35-44.1-3-1 and 35-45-1-3, and conceded in her
deposition that she refused to comply with officers’ directives, and resisted their
attempts to arrest her by pulling away, pushing, and swinging at the officers.
[Doc. Nos. 24-2 and 24-4]. While those offenses are only misdemeanors under
Indiana law, the undisputed evidence shows that Ms. Brookshire’s actions
interfered with officers while they were engaged in a felony traffic stop involving
an uncooperative and combative suspect, and placed the officers and Ms.
Brookshire in harms way.
Officer Zimmer submitted an affidavit in support of the defendants’
summary judgment motion in which he attests that: “There was no force used on
Ms. Brookshire other than what was required to safely put her in handcuffs and
put her in the patrol car.” [Doc. No. 24-3 at ¶ 16]. Ms. Brookshire didn’t dispute
that statement, or the statements Corporal Gage made in the Affidavit in Support
7
of Warrantless Arrest that formed the basis of the magistrate’s probable cause
finding. [Doc. No. 24-1].
Corporal Gage attests that police were engaged in a felony traffic stop; that
the driver of the car, Darquell Pulliam, refused to exit the car, had to be forcibly
removed, and was fighting with officers when they heard Ms. Brookshire
screaming and saw her running toward them; that Officers Lanzen and Zimmer
had to break away to deal with Ms. Brookshire, who refused to stop screaming
and resisted the officers’ attempts to place her under arrest by pulling her arms
away and hitting the officer; and that her actions “interfered with [Officer] Lanzen
attempting to place [Mr. Pulliam] under arrest” and “placed [officers] in danger by
preventing [Officers Lanzen and Zimmer] from assisting them in gaining
compliance from a combative offender [Mr. Pulliam].” [Doc. No. 24-1].
“[W]hen an individual is resisting arrest, an officer can use the amount of
force necessary to overcome her resistance.” Boothe v. Wheeling Police Officer
Sherman (Star #155), 190 F.Supp.3d 788 (N.D. Ill. 2016). Based on the summary
judgment record and the circumstances with which the officers were confronted,
grabbing Ms. Brookshire and “taking her to the ground” (or “tackling” her), when
she interfered with officers while they were attempting to arrest Mr. Pulliam and
resisted her own arrest was objectively reasonable. See, e.g., Dawson v. Brown,
803 F.3d at 833-834 (holding as a matter of law that officer didn’t use excessive
8
force when he tackled plaintiff, who was attempting to interfere with the lawful
arrest of his son).
The court needn’t address whether the officers are entitled to qualified
immunity because Ms. Brookshire hasn’t shown that they violated a constitutional
or statutory right that was clearly established at the time of the alleged
misconduct. See Green v. Newport, 868 F.3d 629, 33 (7th Cir. 2017); Gibbbs v.
Lomas, 755 F.3d 529, 537 (7th Cir. 2014); Gonzalez v. Village of West Milwaukee,
671 F.3d 649, 657 (7th Cir. 2012).
Ms. Brookshire’s claims against Elkhart City Police Department fail for the
same reasons – she hasn’t shown that the officers violated her constitutional or
statutory rights or provided any viable basis for holding the police department
liable for the officers’ actions under Monell v. Dept. of Social Services, 436 U.S.
658 (1978).
For the foregoing reasons, the court:
(1) GRANTS the defendants’ motion for summary judgment [Doc. No. 24],
and DIRECTS the Clerk to enter judgment for the defendants;
(2) VACATES the December 13, 2021 final pretrial conference and January
11, 2022 trial date; and
(3) DENIES the defendants’ motion to withdraw its request for a jury trial
[Doc. No. 31] as moot.
SO ORDERED.
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ENTERED: November 15, 2021
/s/ Robert L. Miller, Jr.
Judge, United States District Court
10