# Sims v. City of Elkhart

> District Court, N.D. Indiana · August 11, 2022

URL: https://www.frixlaw.com/law-library/cases/10162828

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** August 11, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10162828

## How later opinions describe it (automated extraction)

- holding that an unduly suggestive photo identification claim exists when (1) the identification procedure was unduly suggestive and (2) the totality of the circumstances suggest the identification was unreliable
- affirming a district court’s application of Arkansas’s survivorship statute and analogizing of a § 1983 malicious prosecution claim to a state malicious prosecution claim
- holding that a § 1983 malicious prosecution claim could be analogized to Oklahoma’s malicious prosecution claim and thus would not survive

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

MACK SIMS,

Plaintiff,

v. Case No. 3:19-CV-1168 JD

CITY OF ELKHART, et al.,

Defendants.

OPINION AND ORDER
Plaintiff Mack Sims sued Defendants City of Elkhart, John Faigh, and Charles Wicks
after being exonerated and released from a lengthy prison sentence for attempted murder. Mr.
Wicks, the prosecutor who handled Mr. Sims’s case, died after Mr. Sims filed his lawsuit, and
Mr. Sims has now asked the Court to substitute Mr. Wicks’s personal representative into the case
so that his claims against Mr. Wicks can stay alive. (DE 47; DE 53.) Mr. Wicks1 opposes Mr.
Sims’s request, arguing that substitution would be improper given the nature of the claims Mr.
Sims brought against him. (DE 51.) For the following reasons, the Court denies Mr. Sims’s
motion to substitute and finds Mr. Wicks should be dismissed from the case.

A. Factual Background
The factual background as alleged in Mr. Sims’s complaint is not a point of contention
for purposes of this substitution motion, so the Court, like both parties (DE 47 at 1–2; DE 51),
refers to the facts as they are detailed in the filed complaint. The events that led to this case

1 The Court recognizes Mr. Wicks has passed away, but for ease of reference it will still use “Mr. Wicks” when
referencing the arguments made on his behalf by his counsel and, to the extent she has taken any position through
the briefing before this Court, Mr. Wicks’s personal representative Penny Wicks.
began in November 1993 when police responded to a reported shooting of a security guard in
Elkhart. (DE 1 ¶¶ 8–10.) When officers arrived at the scene, they noticed Mr. Sims near where
the security guard had been shot and concluded Mr. Sims was likely involved in the shooting.
Mr. Sims did not have anything to do with the shooing, but he remained a suspect as the shooting

investigation progressed. (Id. ¶¶ 10–14.)
In the ensuing months, Mr. Wicks, the prosecutor responsible for the shooting case,
allegedly used his investigative role to frame Mr. Sims as the shooter. Mr. Sims specifically
alleges that Mr. Wicks conducted several unduly suggestive lineup procedures during which the
security guard who had been shot identified Mr. Sims as the shooter. (Id. ¶¶ 25–30.) One such
lineup occurred after Mr. Wicks allegedly had the security guard hypnotized in a way that made
the security guard focus on Mr. Sims as the perpetrator. (Id. ¶¶ 28–30.) Mr. Wicks is alleged to
have never shared information about the hypnotism session with Mr. Sims’s defense counsel and
was later discovered to have actively attempted to hide the fact that the hypnotism had taken
place at all. (Id. ¶¶ 33–36.)

A jury ultimately convicted Mr. Sims of attempted murder largely because of the security
guard’s repeated identification of Mr. Sims as the shooter. Mr. Sims received a 35-year sentence
as a result of the conviction. (Id. ¶ 34.) After several post-conviction motions filed during his
many years in prison, Mr. Sims convinced the Seventh Circuit to overturn his conviction in
February 2019. (Id. ¶¶ 37–41.) Elkhart County followed up on the Seventh Circuit’s decision by
dismissing all charges against Mr. Sims in April 2019.
Following his exoneration and release, Mr. Sims brought this lawsuit against Elkhart and
the individuals he deemed responsible for his wrongful conviction, including Mr. Wicks. Mr.
Sims specifically brought three claims against Mr. Wicks pursuant to 42 U.S.C. § 1983, one
claim for violation of the right to a fair trial, one claim for unlawful detention, and one claim for
malicious prosecution. (DE 1 ¶¶ 42–52.) Mr. Wicks initially appeared in this case to defend
against the claims, but he subsequently died while the case was pending. Mr. Sims now seeks to
have Mr. Wicks’s personal representative, Penny Wicks, substituted into the case in place of Mr.

Wicks to keep the claims against Mr. Wicks alive. (DE 47.)

B. Standard of Review
“Federal Rule of Civil Procedure 25(a) addresses substitution of party upon death.”
Herrera v. BP Global Special Prods. (Am.), Inc., 2016 WL 183553, at *1 (N.D. Ind. Jan. 14,
2016). Rule 25(a) states in relevant part:
If a party dies and the claim is not extinguished, the court may order substitution of
the proper party. A motion for substitution may be made by any party or by the
decedent's successor or representative. If the motion is not made within 90 days
after service of a statement noting the death, the action by or against the decedent
must be dismissed.
Fed. R. Civ. P. 25(a)(1). There is no dispute that Mr. Sims’s motion to substitute came within 90
days after service of the statement of death (DE 41; DE 47) or that Penny Wicks would be the
proper party for substitution. (DE 51; DE 53 at 1.) The only substitution-related question in
dispute is whether the relevant claims against Mr. Wicks abated upon his death.
The Court additionally notes that Mr. Wicks, in asking that he be dismissed from the
case, invoked the dismissal standard under Federal Rule of Civil Procedure 12(b)(6) in his
response. Mr. Sims objected to application of that standard at this stage of the proceedings given
that Mr. Wicks filed his answer to the complaint more than a year and a half before asking to be
dismissed. (DE 51 at 2; DE 53 at 2.) While the Court notes Mr. Sims’s objection to consideration
of dismissal under Rule 12(b)(6) and recognizes that Mr. Wicks’s dismissal request comes long
after a Rule 12(b)(6) motion can generally be made, see Hadeen Int’l, LLC v. Zing Toys, Inc.,
811 F.3d 904, 905 (7th Cir. 2016) (explaining that Rule 12(b) requires a defendant to assert
defenses before pleading), the Court cannot find that Mr. Sims could escape having the claims
against Mr. Wicks dismissed were the Court to agree with Mr. Wicks that the claims abated
when Mr. Wicks died. See Rule 25(a); Sharif v. Funk, 2020 WL 3545617, at *9 (N.D. Ill. June

30, 2020) (ordering dismissal of extinguished claims under Rule 25(a)); Valley Forge Ins. Co. v.
Hartford Iron & Metal, Inc., 2019 WL 5597558, at *16 (N.D. Ind. Oct. 30, 2019) (recognizing
that a court can construe a motion as one under Rule 12(c) and in that way apply the same Rule
12(b)(6) standard to dismiss a claim even after an answer has been filed). Therefore, if the Court
finds the claims against Mr. Wicks abated, it will dismiss Mr. Wicks from the case, just not
pursuant to Rule 12(b)(6).

C. Discussion
The parties’ main focus in their briefing was on whether the three claims Mr. Sims
lodged against Mr. Wicks abated when Mr. Wicks died. The Court will address the parties’
dispute on that question, but before doing so, it must first address two more peripheral arguments
Mr. Wicks raised in an attempt to escape the three claims: that Mr. Sims’s unlawful detention
claim was not timely filed and that the three claims against Mr. Wicks are barred by sovereign
immunity. (DE 51 at 9–10.)

1. Timeliness and capacity disputes
The Court finds that Mr. Sims filed his unlawful detention claim on time. The parties
both agreed that the applicable statute of limitations period for Mr. Sims’s unlawful detention
claim is the two-year period that applies to Indiana tort actions. See (DE 51 at 9; DE 53 at 7);
Ind. Code § 34-11-2-4; Wallace v. Kato, 549 U.S. 384 (2007). But they disagreed about whether
that time period began to run at the end of Mr. Sims’s pretrial detention on August 24, 1994, or
when Mr. Sims was exonerated and released from prison in 2019. (DE 51 at 9; DE 53 at 7.) A §
1983 claim for unlawful pretrial detention accrues when the would-be plaintiff is released from
custody, because § 1983 “cannot be used to contest ongoing custody that has been properly

authorized.” Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018) (citing Heck v.
Humphrey, 512 U.S. 477 (1994); Preiser v. Rodriguez, 411 U.S. 475 (1973)). Here, there is no
dispute that Mr. Sims was exonerated and released from prison in 2019. (DE 47 at 2; DE 51 at
1.) His unlawful detention claim thus accrued in 2019, see Manuel, 903 F.3d at 670, which
means he was still well within the applicable two-year limitations period when he filed his
unlawful detention claim as part of his complaint in December 2019, (DE 1 ¶¶ 47–49). See
Jordan v. City of Chicago, 2021 WL 1962385, at * 3–4 (N.D. Ill. May 17, 2021) (denying
motion to dismiss pre-trial detention claim because it would have been Heck-barred until
dismissal of charges).
The Court next turns to Mr. Wicks’s sovereign immunity argument, which is based on his

assertion that Mr. Sims brought all three § 1983 claims against him in his official capacity. (DE
51 at 10.)2 When, as here, a complaint does not explicitly state the capacity in which a defendant
is being sued, the Court looks to the nature of the claims brought and relief sought in the
complaint to draw a conclusion. See Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000); Hill v.
Shelander, 924 F.2d 1370, 1373–74 (7th Cir. 1991). “Where the plaintiff seeks injunctive relief
from official policies and customs, the defendant has been sued in [his] official capacity; where
the plaintiff alleges tortious conduct of an individual acting under color of state law, the

2 The Court notes that Mr. Wicks waited more than a year and a half to raise this sovereign immunity argument
instead of raising it in a motion to dismiss after Mr. Sims filed his complaint.
defendant has been sued in [his] individual capacity.” Miller, 220 F.3d at 494 (citing Hill, 924
F.2d at 1373–74).
The substance of Mr. Sims’s complaint suggests that Mr. Sims brought the three § 1983
claims against Mr. Wicks in Mr. Wicks’s individual capacity, not his official capacity. For

example, the complaint alleges that Mr. Wicks engaged in tortious conduct (DE 1 ¶¶ 25–41) in
his capacity as an Elkhart County prosecutor acting under color of law (id. ¶ 6). As the court in
Miller recognized, allegations of that nature suggest claims being brought against someone in his
individual capacity. 220 F.3d at 494. Additionally, Mr. Sims did not seek injunctive relief, the
type of relief that would typically indicate claims brought against someone in his official
capacity, but instead sought monetary relief (DE 1 at 11–12), which is indicative of claims
brought against a defendant in his individual capacity. See Miller, 220 F.3d at 494; Hill, 924 F.2d
at 1374 (recognizing injunctive relief “against a state official may be recovered only in an
official capacity suit” and monetary relief may be recovered against a government actor only in
an individual capacity suit). Finally, although Mr. Wicks seems to suggest otherwise (DE 51 at

10), the fact that Mr. Sims referred to Mr. Wicks’s official position as a deputy prosecutor within
the complaint is still consistent with individual capacity claims and does not transform the claims
into official capacity claims. See Bassett v. Chicago State University, 2008 WL 3849920, at *2–3
(N.D. Ill. Aug. 15, 2008). Given these indications within the complaint that the claims were
brought against Mr. Wicks in Mr. Wicks’s individual capacity, the Court finds Mr. Wicks’s
sovereign immunity argument unavailing.

2. Survival of the § 1983 claims
Having resolved those two preliminary issues, the Court proceeds to the central dispute
between the parties about whether Mr. Wicks’s death extinguished the claims Mr. Sims brought
against him. The dispute comes down to a disagreement between the parties about whether Mr.
Sims’s § 1983 claims need to be individually analogized to state torts to determine survivability
or whether all three § 1983 claims should simply be considered generalized state personal injury
claims for purposes of the survival analysis. Mr. Sims argues that the claims can remain active

against Mr. Wicks’s personal representative because Seventh Circuit and Supreme Court caselaw
directs the Court to treat all § 1983 claims, no matter their content, as if they were generalized
state personal injury torts when determining survivability. (DE 53 at 2–4.) Mr. Wicks argues that
the claims have abated because Seventh Circuit caselaw requires the Court to analogize each §
1983 claim to the most similar Indiana tort claim and then use that similar state-law tort to
determine survivability. (DE 51 at 3–9.) The disagreement matters here because Indiana’s
survival statute generally allows personal injury claims to survive, but it does prevent certain
personal injury torts, some of which resemble Mr. Sims’s § 1983 claims, from surviving. See
Ind. Code § 34-9-3-1. The Court first explains why Mr. Wicks is correct to suggest that
analogizing each § 1983 claim is the proper course and then explains why that analogizing

ultimately requires the Court to find the claims against Mr. Wicks have abated.

a. The basis for analogizing
The Court begins its explanation for analogizing by looking at how courts have analyzed
§ 1983 statute of limitations issues over time. While there are no statute of limitations issues at
play here, exploring the history of § 1983 statute of limitations analyses helps to explain Mr.
Sims’s position on how the Court should analyze § 1983 survivability. Because § 1983 did not
specify a statute of limitations, courts, pursuant to 42 U.S.C. § 1988, at first would analogize the
specific § 1983 claim they were considering to the most similar state claim they could find and
then use the statute of limitations that applied to the state claim as the statute of limitations for
the § 1983 claim. See 42 U.S.C. § 1988; Wilson v. Garcia, 471 U.S. 261, 264–66, 271–75
(1985); see also Robertson v. Wegmann, 436 U.S. 584, 589 (1978); Bennett v. Tucker, 827 F.2d
63, 67 (7th Cir. 1987) (quoting 42 U.S.C. § 1988) (explaining that § 1988 “provides that if
federal law does not provide a rule of decision in a civil rights case, federal law will incorporate

the appropriate state law, unless that law is ‘inconsistent with the Constitution and laws of the
United States.’”). But the Supreme Court, in Wilson, eventually found that process “imperfect.”
471 U.S. at 272. Based largely on reasoning that “a simple, broad characterization of all § 1983
claims best fits the statute’s remedial purpose,” the Supreme Court instructed courts presented
with § 1983-related statute of limitations questions to, moving forward, read § 1988 “as a
directive to select, in each [s]tate, the one most appropriate statute of limitations for all § 1983
claims,” which, according to the Supreme Court, was “the tort action for the recovery of
damages for personal injuries.” 471 U.S. at 271–75. The Wilson holding, Mr. Sims argues, was
the first step toward classifying all § 1983 claims the same way for purposes not just of statute of
limitations but also for purposes of survivability. (DE 47 at 3–5.)

The next step, according to Mr. Sims, came when the Seventh Circuit decided Bennett v.
Tucker several years after Wilson. In Bennett, the Seventh Circuit had to decide whether the
daughter of one of the then-deceased original plaintiffs could be substituted in for her mother for
purposes of an appeal on § 1983 claims. 827 F.2d at 67. Because § 1983 was “silent on the
question of survivability,” just like it was on the question of statutes of limitations for § 1983
claims, the Seventh Circuit, relying on § 1988, looked to state law. Id. The Bennett panel
invoked the Wilson decision in recognizing that the Supreme Court had “stressed the importance
of adopting uniform rules governing the timeliness of all § 1983 claims” and the
“appropriateness of analogizing a § 1983 claim to a personal injury claim.” Id. at 68. It then held
that “it would be anomalous to use a different analogy” in the survivability context and
concluded that “in order to determine whether a § 1983 claim survives, [a court] must look to the
state law governing whether a personal injury claim survives.” Id. This decision in Bennett is the
source of the dispute between Mr. Sims and Mr. Wicks on the pending substitution motion. Mr.

Sims argues that Bennett, with its recognition that the Supreme Court had “stressed the
importance of adopting uniform rules governing the timeliness of all § 1983 claims,” supports
his position that Bennett requires ongoing parity between how courts treat § 1983 statute of
limitations analyses and § 1983 survivability analyses. (DE 47 at 6–8, 10–11) (citing Bennett,
827 F.2d at 68; Wilson, 471 U.S. 261). Mr. Wicks argues that Bennett simply required courts
within the Circuit, moving forward, to use the state law governing whether a personal injury
claim survives and nothing more. (DE 51 at 4.)
Mr. Sims’s argument for parity ultimately leads him to the position asserted in his
briefing that all § 1983 claims should be treated as generalized state personal injury torts for
purposes of survivability, because that is how the Supreme Court and Seventh Circuit treat §

1983 claims when resolving statute of limitations issues. (DE 47 at 12–13; DE 53 at 4–5.) The
important holding for Mr. Sims’s argument is the Supreme Court’s decision in Owens v. Okure,
which dealt solely with § 1983 statute of limitations concerns and came two years after the
Seventh Circuit decided Bennett. 488 U.S. 235 (1989). The Supreme Court in Owens aimed to
remedy some uncertainty that its earlier Wilson holding had created. Although courts understood
that Wilson required them to pick and apply one state personal injury statute when determining
the statute of limitations for § 1983 claims, they were still often left on their own to choose
whether they should comply with Wilson by picking the state’s limitations period for intentional
torts or the state’s residual limitations period for other personal injuries. See Owens, 488 U.S. at
236. Owens addressed that confusion by clarifying that “where state law provides multiple
statutes of limitations for personal injury actions, courts considering § 1983 claims should
borrow the general or residual statute for personal injury actions.” Id. at 249–50.
The Seventh Circuit has clearly followed Owens in recognizing that, for § 1983 statute of

limitations questions, all § 1983 claims are to be treated as generalized personal injury torts no
matter the specific injuries the claims are asserting. See Woods v. Illinois Dep’t of Child. & Fam.
Servs., 710 F.3d 762, 766 (7th Cir. 2013) (“In line with Wilson and Owens, this court has
consistently held that the limitations period applicable to § 1983 actions brought in Illinois is the
two-year period for general personal injury actions.”). According to Mr. Sims, the Seventh
Circuit’s recognition in Woods that all § 1983 claims must be treated as generalized personal
injury claims for purposes of statute of limitations analyses, coupled with the Seventh Circuit’s
emphasis in Bennett on parity between § 1983 statute of limitations considerations and § 1983
survivability considerations, indicates that the Seventh Circuit should treat all § 1983 claims as
generalized personal injury claims for survivability purposes as well. (DE 47 at 12–13; DE 53 at

4–6.)
Mr. Sims’s argument has support from two recent Sixth Circuit decisions, both of which
applied similar reasoning to what Mr. Sims has put forward in deciding to treat all § 1983 claims
as generalized personal injury claims when determining survivability. See Jackson v. City of
Cleveland, 925 F.3d 793, 809–12 (6th Cir. 2019) (citing Crabbs v. Scott, 880 F.3d 292, 294–95
(6th Cir. 2018). The Sixth Circuit has held that, for purposes of survivability, “the appropriate
level at which to generalize a § 1983 claim under state law is as a personal injury action,
sounding in tort, and nothing further.” Crabbs, 880 F.3d at 296; see also Jackson, 925 F.3d at
811 (confirming that Crabbs stands for the proposition that “all § 1983 claims must be treated
the same way for survival-of-claims purposes, just as they are for statute-of-limitations
purposes”). Further, like Mr. Sims, the panel in Crabbs read the Seventh Circuit’s holding in
Bennett as indicating the Seventh Circuit agrees with that interpretation. Crabbs, 880 F.3d at 295
(quoting Bennett, 827 F.2d at 67–68) (“In reaching this conclusion, we agree with the Seventh

Circuit. It held that characterizing all § 1983 claims as personal injury actions was ‘equally
important’ in the survivorship context and that it would be ‘anomalous’ to draw a distinction
between survivorship statutes and statutes of limitation.”).
But while the Court recognizes that Mr. Sims and the Sixth Circuit read Wilson, Bennett,
and Owens to suggest the Seventh Circuit either does or should treat all § 1983 claims as generic
personal injury claims when determining survivability, the Court will not join them in doing so.
The Court finds no evidence that the Seventh Circuit has actually taken the step of treating all §
1983 claims as generic personal injury torts when faced with survivability disputes in the years
after Wilson, Bennett, and Owens. Instead, the Seventh Circuit has chosen to hew to Mr. Wicks’s
position and recognized the need to analogize § 1983 claims to state personal injury claims when

the applicable state statute and nature of the § 1983 claims being presented make analogizing
necessary to properly apply the state statute.
The strongest indication that the Seventh Circuit has opted for Mr. Wicks’s analogizing
approach instead of Mr. Sims’s generalizing approach is the Seventh Circuit’s holding in Bentz v.
City of Kendallville, 577 F.3d 776 (7th Cir. 2009). In that case, the appellant died during the
course of an appeal and the Seventh Circuit panel had to decide whether the § 1983 claims the
deceased appellant had raised before the district court and on appeal could survive after his
death. Id. at 778. Because of § 1983’s silence on the issue of survival, the panel looked “to the
most closely analogous state law to determine survivability.” Id. at 778 (citing 42 U.S.C. § 1988;
Bass ex re. Lewis v. Wallenstein, 769 F.2d 1173, 1188 (7th Cir. 1985); Robertson, 436 U.S. at
588–91; Anderson v. Romero, 42 F.3d 1121, 1123 (7th Cir. 1994)). The case had its roots in
Indiana, so the panel chose Indiana’s state statute on survival of personal injury claims, Indiana
Code § 34-9-3-1, as the relevant statute to consider and held that the statute was not inconsistent

with federal law. Id. at 778–79. The panel then explained that “[i]n order to apply Indiana law,
we must properly analogize [the appellant’s] § 1983 claims to the appropriate Indiana torts.” Id.
at 779. The analogizing, according to the panel, required it to “characterize [the § 1983] claim”
and then decide “which Indiana tort is the most similar without molding the constitutional claim
to fit within the contours of state law.” Id. (citing Bass, 769 F.2d at 1188). As a last step, the
panel “turn[ed] to the Indiana survival statute to determine whether [the § 1983] claim should
survive.” Id. In finding these steps proper when confronted with a § 1983 survivability dispute,
the panel, years after Wilson, Bennett, and Owens were decided, clearly chose Mr. Wicks’s
analogizing approach over Mr. Sims’s generalizing approach.
Subsequent courts within the Circuit that have considered whether § 1983 claims survive

under Indiana law have also applied Bentz’s analogizing approach. In Camm v. Clemons, a
Southern District of Indiana court considered whether a plaintiff’s § 1983 claims for wrongful
arrest and detention and suppression of evidence survived the plaintiff’s death. 544 F. Supp. 3d
847, 852–53 (S.D. Ind. 2021). The court, relying on Bentz and Bennett, analogized the § 1983
claim for wrongful arrest and detention to the Indiana tort of false imprisonment and the § 1983
claim for evidence suppression to the Indiana tort of malicious prosecution. Id. at 855–56. It then
looked to Indiana Code § 34-9-3-1, saw that the statute did not allow the state torts of false
imprisonment and malicious prosecution to survive a party’s death, and dismissed the § 1983
claims on that basis. Id. at 856–59. In Donald v. Outlaw, a court within this District did much the
same thing after a party had died. The court relied on Bentz in selecting Indiana Code § 34-9-3-1
as the applicable state statute and then analogized the two § 1983 claims at issue, which alleged
detention and prosecution without probable cause, to the Indiana torts of malicious prosecution
and false imprisonment. 2018 WL 2463605, at *3 (N.D. Ind. May 31, 2018). The Donald court,

like the Camm and Bentz courts, lastly relied on the Indiana survival statute in holding that
because the analogous state claims would abate under the statute after the death of a party, the §
1983 claims must be found to have abated too. Id.
Further, the Court finds that these decisions are not inconsistent with Bennett or the
Seventh Circuit’s decisions in § 1983 claim survivability cases decided in the period between
Bennett and Bentz. The holding in Bennett, as Mr. Wicks noted in his response brief, never stated
that all § 1983 claims need to be treated as generalized personal injury claims for purposes of
survivability analyses. (DE 51 at 4.) Bennett instead only required courts to “look to the state law
governing whether a personal injury claim survives.” 827 F.2d at 68. Thus, while § 1983 claims
clearly had to be treated as state personal injury claims during survivability analyses after

Bennett, Bennett left open the question of what kind of personal injury claim the § 1983 claims
should be. That question became particularly important when the state statute being considered
allowed some personal injury claims to survive but required other personal injury claims that
resembled the § 1983 claims being alleged to abate. See Bentz, 577 F.3d at 778–79 (recognizing
that it had to “properly analogize” the claims “to the appropriate Indiana torts” “[i]n order to
apply Indiana law”). Bennett never had to address that question because the § 1983 claims it was
considering alleged due process failures and the only personal injury actions the applicable
Illinois survival statute forced to abate upon a party’s death were the dissimilar actions for
slander or libel. See 827 F.2d at 68; 755 Ill. Comp. Stat. 5/27-6. While Bennett did not address
those exceptions under the Illinois statute though, future Seventh Circuit panels would.
The Seventh Circuit, in the 1994 Anderson v. Romero case, allowed the § 1983 claims it
was considering to survive under the same Illinois survival statute applied in Bennett, but in

doing so chose to clearly distinguish the § 1983 claims being alleged from the state claims the
statute prevented from surviving. Anderson, 42 F.3d 1121. In describing the relevant Bennett
precedent, Judge Posner, writing for the Anderson panel years after Wilson, Bennett, and Owens
had been decided, explained that the Seventh Circuit “held in Bennett v. Tucker[] that Illinois’s
rule for personal injury suits—the rule that such suits survive the plaintiff’s death unless they are
suits for defamation[]—was appropriate for suits under section 1983, which the Supreme Court
had analogized to personal injury actions for purposes of choosing the statute of limitations.”
Anderson, 42 F.3d at 1123 (citing Wilson, 471 U.S. 261). The explicit mention of the exception
under Illinois law for defamation-related claims was particularly important in Anderson, because
the defendants had specifically argued that the plaintiff’s § 1983 claims, which had alleged cruel

and unusual punishment and other constitutional violations, id. at 1122, were similar enough to
defamation that they should be found to have abated upon the plaintiff’s death. Id. at 1123–24.
If the panel had been aligned with Mr. Sims’s view that, after Wilson, Bennett, and
Owens, all § 1983 claims were treated the same for purposes of a survivability analysis, it could
have simply held that the defendants’ attempt to link the plaintiff’s federal claims to the
specifically excluded claims under the Illinois statute was useless because all § 1983 claims
would be treated as generalized personal injury claims. But the Seventh Circuit did not do that.
Instead, the Seventh Circuit still rejected the defendants’ argument, but it did so by
distinguishing the § 1983 claims from the personal injury torts that the Illinois statute kept from
surviving. Id. (concluding that while “[i]t is true that under Illinois law, as generally, defamation
suits do not survive the plaintiff’s death,” the plaintiff’s “complaint does not allege defamation
or anything like it”). The fact that the panel felt it necessary to explain that the plaintiff’s § 1983
claims could not be analogized to defamation, a personal injury claim excepted under the

applicable Illinois survival statute, shows the Seventh Circuit’s recognition that, even after
Owens, analogizing when state survival statutes exclude certain claims can be necessary.
The Court also notes that the Anderson panel’s acknowledgement of the defamation-
related personal injury claims that would abate under the relevant Illinois statute was not an
aberration. Those excepted personal injury claims were regularly mentioned in succeeding years
as courts within the Circuit considered § 1983 survivability disputes that originated in Illinois.
See Malone v. Nielson, 474 F.3d 934, 937, n.3 (7th Cir. 2007) (citing 755 Ill. Comp. Stat. 5/27-6;
Anderson, 42 F.3d 1123) (recognizing that “[i]n Illinois, personal injury suits survive the
plaintiff’s death and inure to the benefit of the plaintiff’s estate” with “the only exception to this
rule [being] a claim for defamation”); see also Wood v. Chicago Bd. of Educ., 1998 WL 832656,

at *5 (N.D. Ill. Nov. 20, 1998) (recognizing that Illinois’s survival statute allows a plaintiff’s
personal injury claim to survive unless it is a defamation claim); Reddick v. Bloomingdale Police
Officers, 1997 WL 441328, at *4 (N.D. Ill. July 30, 1997) (same).
The recognized need in Anderson to analogize when the relevant state statute does not
allow all personal injury claims to survive the death of a party further fits with the courts’
decisions in Bentz, Camm, and Donald. Like Illinois’s survival statute, Indiana’s survival statute
excludes causes of action for libel and slander. But Indiana’s statute goes further to also prevent
causes of action for malicious prosecution, false imprisonment, invasion of privacy, and personal
injuries to the deceased party from surviving a party’s death. Ind. Code § 34-9-3-1. The Indiana
statute also considers all of those excluded causes of actions claims for “personal injuries,”
which means that even if a court recognizes, as Mr. Sims noted multiple times in his briefing
(DE 47 at 7–8; DE 53 at 3–4), that Bennett requires courts to treat § 1983 claims as “personal
injury actions,” the court is still left with the post-Bennett problem noted above of determining
what kind of personal injury action each § 1983 claim entails.3 See Merimee v. Brumfield, 397

N.E.2d 315, 318 (Ind. Ct. App. 1979) (“the words ‘personal injuries,’ in the context of the
survival statute, include within their meaning, in addition to injuries to the physical body,
malicious prosecution, false imprisonment, libel, slander, or any affront or detriment to the body,
psyche, reputation or liberty, as contradistinguished from injury to property rights”). The
decisions in Bentz, Anderson, Camm, and Donald all suggest that the Seventh Circuit makes that
determination not by treating all § 1983 claims as generalized personal injury claims but instead
by analogizing the specific § 1983 claims being alleged to specific state torts. See Bentz, 577
F.3d at 78–79; Anderson, 42 F.3d at 1123; Camm, 544 F. Supp. 3d at 852–53; Donald, 2018 WL
2463605 at *3.

As a final note, the Seventh Circuit is not alone in recognizing that analogizing is a
proper way to decide whether § 1983 claims survive the death of a party. While Mr. Sims wants
the Court to import Owens’s conception of § 1983 claims as generalized personal injury torts for
statute of limitations questions into survivability analyses, the Court notes that the Supreme
Court has not adopted Owens’s reasoning in that way itself. Owens did not address survivability
issues and did not modify the Supreme Court’s prior holding in Robertson, which did address §

3 The Court notes that this issue and subsequent need to analogize does not always arise. For example, when the
Seventh Circuit analyzed a § 1983 survivability issue that arose in Wisconsin, no analogies or comparisons were
necessary because Wisconsin’s statute governing survival of personal injury claims allowed all personal injury
claims to survive. See Hutchinson v. Spink, 126 F.3d 895 (7th Cir. 1997) (quoting Wis. Stat. § 865.02(1)(b))
(recognizing that “[i]n Wisconsin a tort action for ‘injuries to person’ survives the victim’s death”).
1983 survivability, remains good law, and allowed for the possibility that courts would analogize
individual § 1983 claims to state torts to determine whether the § 1983 claims could survive the
death of a party. See 436 U.S. at 590–92, 593 n.11 (holding there is “nothing in [§ 1983] or its
underlying policies to indicate that a state law causing abatement of a particular action should

invariably be ignored in favor of a rule of absolute survivorship” and that the “statutory reliance
on state law obviously means that there will not be nationwide uniformity on these issues”). In a
similar vein, other circuits have relied on Robertson in finding that analogizing for purposes of §
1983 survivability disputes is the proper way to resolve such disputes. See Brown v. Town of
Cary, 706 F.3d 294, 300 (4th Cir. 2013) (“Analogizing [the plaintiff's] federal civil rights claim
to a corresponding action under North Carolina law, we are satisfied that the claim would survive
under that statute.”); Est. of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041, 1046–
47 (11th Cir. 2011); Caine v. Hardy, 943 F.2d 1406, 1410 (5th Cir. 1991); Pietrowski v. Town of
Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (holding that a § 1983 malicious prosecution claim
could be analogized to Oklahoma’s malicious prosecution claim and thus would not survive);

Parkerson v. Carrouth, 782 F.2d 1449, 1451–53 (8th Cir. 1986) (affirming a district court’s
application of Arkansas’s survivorship statute and analogizing of a § 1983 malicious prosecution
claim to a state malicious prosecution claim).
The Court thus finds that there is ample support, both within the Seventh Circuit and
elsewhere, for its choice to turn to analogizing while resolving the pending motion for
substitution. Having reached that conclusion about the proper method of analysis, the Court
moves to consider whether the three claims Mr. Sims brought against Mr. Wicks survived Mr.
Wicks’s death.

b. Analogizing the claims and determining survivability
There is no dispute that the relevant state statute for the Court to consider and apply,
based on the directive in Bennett, is Indiana Code § 34-9-3-1. (DE 47 at 6–7; DE 51 at 3); see 42
U.S.C. § 1988; Bentz, 577 at 778–79. And, based on the fact that the Indiana statute precludes
certain state personal injury claims from surviving, the Court finds it will be necessary to

analogize the three § 1983 claims Mr. Sims’s brought against Mr. Wicks to Indiana personal
injury claims. The Court will first analogize each § 1983 claim to a relevant state claim and then,
using its analogies, determine whether the § 1983 claims would survive under Indiana’s statute.
See Bentz, 577 F.3d at 778–79.
Mr. Sims’s § 1983 malicious prosecution claim is most analogous to the Indiana state tort
of malicious prosecution. While that may seem somewhat obvious given the two claims share the
same name, the Court nonetheless compares the claims’ elements and Mr. Sims’ allegations to
justify its conclusion. In asserting his claim, Mr. Sims alleged that Mr. Wicks acted willfully,
wantonly, and maliciously in causing him to be detained, prosecuted, and imprisoned “without
there being genuine probable cause to believe that [Mr. Sims] had committed a crime.” (DE 1 ¶

51.) To succeed on a § 1983 malicious prosecution claim, a plaintiff must show that: (1) the
elements of the state law claim for malicious prosecution have been satisfied; (2) the malicious
prosecution was propagated by state actors; and (3) the plaintiff was deprived of liberty. Welton
v. Anderson, 770 F.3d 670, 674 (7th Cir. 2014). To prove malicious prosecution under Indiana
law, the plaintiff must establish that: (1) the defendant instituted or caused to be instituted an
action against the plaintiff; (2) the defendant acted maliciously in so doing; (3) the defendant had
no probable cause to institute the action; and (4) the original action was terminated in the
plaintiff’s favor. Golden Years Homestead, Inc. v. Buckland, 557 F.3d 457, 462 (7th Cir. 2009).
The overlap and similarity between the federal and state malicious prosecution claims is
clear in part because the federal § 1983 malicious prosecution claim Mr. Sims asserted requires
as one of its elements that the state-law malicious prosecution tort be established. See Welton,
770 F.3d at 674. The analogy between the federal and state claim is additionally supported by the

fact that both § 1983 malicious prosecution and Indiana malicious prosecution require a
defendant to have acted maliciously and deprived the plaintiff of due process, whether that be by
depriving a plaintiff of liberty or by prosecuting him without probable cause. See Welton, 770 at
674; Golden Years, 557 F.3d at 462. Further, the deprivation of due process that is required to
prove both the federal and state claims is central to Mr. Sims’s allegations given Mr. Sims
supported his claim by alleging he was detained, prosecuted, and imprisoned without probable
cause and “in violation of [his] due process rights.” (DE 1 ¶ 51.) The Court therefore finds that
Mr. Sims’s § 1983 malicious prosecution claim is best analogized to an Indiana malicious
prosecution claim for purposes of this analysis. See Donald, 2018 WL 2463605 at *3 (finding an
Indiana malicious prosecution claim to be the best analogy on similar facts).

Next, the Court considers Mr. Sims’s § 1983 claim for unlawful detention, which it finds
to be most analogous to the Indiana tort of false imprisonment. In support of his unlawful
detention claim, Mr. Sims alleged he was “detained without there being any probable cause to
believe that [he] had committed a crime.” (DE 1 ¶ 48.) Federal unlawful detention generally
refers to detention without legal process. See Wallace v. Kato, 549 U.S. 384, 389 (2007). The
Indiana tort of false imprisonment similarly occurs when there is: (1) unlawful; (2) restraint; (3)
upon one’s freedom of movement or the deprivation of one’s liberty; (4) without consent.
Donovan v. Hoosier Park, LLC, 84 N.E.3d 1198, 1207 (Ind. Ct. App. 2017). The Court finds that
Mr. Sims’s unlawful detention claim based on his detention without probable cause involves
allegations that would equally be used to support the kind of unlawful restraint that deprives an
individual of his liberty without his consent that underlies a claim for false imprisonment in
Indiana. This is particularly apparent given that both federal unlawful detention and Indiana false
imprisonment attempt to resolve infringement on an individual’s liberty that occurs because of

unwarranted detention. See Wallace, 549 U.S. at 389; Donovan, 84 N.E.3d at 1207. The Court
also finds the analogy between federal unlawful detention and Indiana false imprisonment
supported by the fact that the Camm court drew the same comparison when presented with
similar allegations from the plaintiff in that case. 544 F. Supp. 3d at 856 (finding the plaintiff’s
claim for wrongful pretrial detention because of a lack of probable cause “more closely aligns
with the state-law claim of false imprisonment”).
Finally, the Court considers Mr. Sims’s claim for violation of his right to a fair trial,
which the Court finds is most analogous to an Indiana malicious prosecution claim. Mr. Sims
supported the claim by alleging that Mr. Wicks “created and/or participated in unduly suggestive
identification procedures,” “withheld exculpatory and/or impeaching material,” and

“manufactured false evidence.” (DE 1 ¶¶ 43–45.) The Court takes each of those allegations in
turn and finds they each resemble conduct that would be addressed through a state malicious
prosecution claim.
First, Mr. Sims’s allegation of withheld evidence describes a violation of the Fourteenth
Amendment as recognized in Brady v. Maryland, 373 U.S. 83 (1963). So-called Brady violations
occur when: (1) the evidence at issue is favorable to the accused; (2) the evidence was
suppressed by the government, either willfully or inadvertently; and (3) there is a reasonable
probability that prejudice ensued. See Alexander v. F.B.I., 2011 WL 4833091, *2 (S.D. Ind. Oct.
12, 2011). The Court finds that Mr. Sims’s Brady allegations are most similar to claims that
would give rise to the state tort of malicious prosecution, because a claim for Brady violations
and a state malicious prosecution claim both aim to remedy attempts to undermine the integrity
of the legal process in a criminal prosecution and arise from prosecutorial misconduct. See
Camm, 544 F. Supp. 3d 847 (analogizing Brady violations to a claim in Indiana of malicious

prosecution).
Second, the Court finds that Mr. Sims’s allegations of unduly suggestive photo
identification procedures are also best analogized to allegations that would support a state claim
for malicious prosecution. As with the Brady violations, the suggestive identification procedures
being alleged damage the integrity of the judicial process and result from improper investigative
techniques. See United States v. Hawkins, 499 F.3d 703, 707 (7th Cir. 2007) (holding that an
unduly suggestive photo identification claim exists when (1) the identification procedure was
unduly suggestive and (2) the totality of the circumstances suggest the identification was
unreliable). The Court finds that the principles of protecting the integrity of the legal process
implicated by Mr. Sims’s allegations about suggestive identification procedures are the same

principles at play when considering the purpose of a state claim for malicious prosecution. See
Golden Years, 557 F.3d at 462.
Third, the Court finds that the manufactured evidence allegations in Mr. Sims’s right to a
fair trial claim is also analogous to Indiana’s malicious prosecution tort. As was true for the
allegations tied to the Brady violations and improper identification procedures, Mr. Sims’s
allegations of manufactured evidence suggest a harm he suffered because of actions taken by
officials that undermined the judicial process. Further, the Seventh Circuit has, in the past,
recognized the similarities between a § 1983 action based on allegations of manufactured
evidence and a state claim for malicious prosecution. See Petty v. City of Chicago, 754 F.3d 416,
421 (7th Cir. 2014) (drawing parallels between § 1983 allegations of manufacturing evidence
and state malicious prosecution claims); Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir.
2009). For each of those reasons, the Court finds that Mr. Sims’s § 1983 claim for denial of a
right to a fair trial is best analogized to an Indiana state claim for malicious prosecution.

Having analogized each claim to its most similar state tort as directed in Bentz, the Court
“turn[s] to the Indiana survival statute to determine whether [each] claim should survive.” 577
F.3d at 779. Under Indiana Code §34-9-3-1, a “cause of action survives and may be brought . . .
against the representative of the deceased party except actions for . . . (3) malicious prosecution
[and] (4) false imprisonment . . . .” Ind. Code § 34-9-3-1(a)(3)–(4). The Court found above that
Mr. Sims’s claims were most analogous to the Indiana personal injury claims of malicious
prosecution and false imprisonment. Because Indiana’s survival statute states that false
imprisonment and malicious prosecution claims do not survive the death of a party, the Court
finds that Mr. Sims’s § 1983 claims against Mr. Wicks abated upon Mr. Wicks’s death. See
Camm, 544 F. Supp. 3d at 858 (holding the same); Donald, 2018 WL 2463605 at *3 (holding the

same). Therefore, the Court finds that substitution of Penny Wicks, Mr. Wicks’s personal
representative, into this case would be improper and that Mr. Wicks should instead be dismissed
from this lawsuit because there are no valid claims remaining against him.

D. Conclusion
For the foregoing reasons, the Court DENIES Plaintiff Mack Sims’s Motion to Substitute
Party (DE 47) and dismisses Defendant Charles Wicks from the case. The Court notes that Mr.
Sims’s claims in Counts I, II, and III of his complaint remain active against Defendant John
Faigh.
SO ORDERED.
ENTERED: August 11, 2022

/s/ JON E. DEGUILIO
Chief Judge
United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10162828. Public record. Not legal advice.