# Toepfer v. Harter

> District Court, N.D. Indiana · June 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10165436

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** June 11, 2024
- **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/10165436

## How later opinions describe it (automated extraction)

- declining to draw independent factual conclusions from a poor-quality, black and white video lacking audio
- declining to apply Scott where the video was open to interpretation and did not utterly discredit the plaintiff’s facts
- reversing summary judgment where reasonable jurors could have many different and opposing conclusions about the video

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

NICKOLUS G TOEPFER,

Plaintiff,

v. Case No. 3:20-CV-733-GSL

TREVOR HARTER, et al.,

Defendants.

OPINION AND ORDER
Plaintiff was injured while in pretrial detention at Koscuisko County Jail. He filed suit
against the Emergency Response Team of the Koscuisko County Jail, and Officers Morrison,
Meza, and Harter alleging excessive use of force in violation of the Fourteenth Amendment. [DE
1]. Before the Court is Defendants’ Motion for Summary Judgment. [DE 57]. For the reasons
below, the Motion is GRANTED in part and DENIED in part.
BACKGROUND
On July 18, 2020, pretrial detainees in the J-Block dayroom of Koscuisko County Jail
were noncompliant and refused orders to return to their cells. In response, Koscuisko County Jail
requested that the Emergency Response Team, a select group of jail officers, enter the J-Block
dayroom, enforce compliance, and use force if necessary. Before the Emergency Response Team
entered, the detainees were allegedly given commands to either get on the ground or return to
their cells. [DE 1, Page 3]. The detainees did not comply, and the Emergency Response Team
entered the J-Block dayroom with force. [DE 1, Page 3].
Defendant Morrison, Defendant Meza, and Defendant Harter were among the officers
who entered J-Block dayroom to enforce compliance. [DE 1, Page 3]. Plaintiff alleges that
Defendant Morrison fired rubber-bullets directly at him and other detainees despite complying
with orders. [DE 1, Page 3]. Plaintiff also alleges that Defendant Meza fired rubber-bullets
directly at him after he was already on the ground complying with orders, causing injury to his
head, neck, shoulders, and lower body. [DE 1, Page 3-4]. Finally, Plaintiff alleges that Defendant

Harter used excessive force when he escorted Plaintiff out of the J-Block dayroom to the
booking room and when he attempted to escort Plaintiff to the transport van, causing him further
injury. [DE 1, Page 3-4].
LEGAL STANDARD
I. Summary Judgment
Summary judgment is warranted when “the movant shows that there is no genuine
dispute as to any material fact.” Fed. R. Civ. P. 56(a). A court must deny a summary judgment
motion when the non-moving party presents admissible evidence that creates a genuine issue of
material fact. Luster v. Ill. Dep’t of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (citations
omitted). “The court has one task and one task only: to decide, based on the evidence of record,

whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst
Corp., 24 F.3d 918, 920 (7th Cir. 1994).
In reviewing a summary judgment motion, the court views the record and all reasonable
inferences in the light most favorable to the non-moving party. Fed. R. Civ. P. 56(c). Taking the
facts in the light most favorable to the non-moving party does not mean that the facts must come
only from the non-moving party. Gupta v. Melloh, 19 F.4th 990, 997 (7th Cir. 2021). Rather, the
facts taken in the light most favorable to the non-moving party may come from the party moving
for summary judgment, or from other sources like affidavits, video evidence, and deposition
testimony. Id.
II. Excessive Force Against Pretrial Detainees
Pretrial detainees have a right to be free from all forms of punishment while being held in
pretrial detention. Bell v. Wolfish, 441 U.S. 520, 535 (1979). This is because they remain entitled
to the presumption of innocence, and therefore, the Constitution protects them from punishment

for the acts that led to their detention. Kemp v. Fulton Cty., 27 F.4th 491, 495 (7th Cir. 2022)
(citing Miranda v. Cnty. of Lake, 900 F.3d 335, 350 (7th Cir. 2018)). The Supreme Court has
held that when bringing an excessive force claim, a “pretrial detainee must show only that the
force purposely or knowingly used against him was objectively unreasonable.” Kingsley v.
Hendrickson, 576 U.S. 389, 396-97 (2015)).
In evaluating objective reasonableness, courts must look to the unique facts and
circumstances of each particular case, and may appropriately consider the following factors: the
relationship between the need for the use of force and the amount of force used; the extent of the
plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the
severity of the security problem at issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting.1 Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).

DISCUSSION

Defendants filed two videos [DE 60; DE 61] that showed the incidents that occurred on
July 18, 2020, and asked this Court, more than once, to adopt the videos they submitted as fact,
quoting Supreme Court case law in support of their request. [DE 58, Pages 6, 7].
The Supreme Court has recognized that if events are recorded on camera, the
court is not necessarily obligated to take the non-moving party’s version of the
facts as true. “When opposing parties tell two different stories, one of which is

1 This list is non-exhaustive. See Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).
blatantly contradicted by the record, so that no reasonable jury could believe it,
a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
[DE 58, Page 7]. Defendants emphasized throughout their briefing that the “uncontroverted”

video evidence both refuted Plaintiff’s version of events and corroborated theirs. [DE 58, Pages
1; 5; 14].
In Gant, the Seventh Circuit clarified that Scott did not hold that courts should reject a
plaintiff’s account on summary judgment whenever documentary evidence, such as a video,
offers some support for a governmental officer’s version of events. Gant v. Hartman, 924 F.3d
445, 449 (7th Cir. 2019). Rather, Scott holds that where a trial court’s determination that a fact is
subject to reasonable dispute is demonstrably false, a court of appeals may reverse that
determination, even on interlocutory review. Id. at 450 (internal citations omitted).
Video evidence showing the events in dispute can “evaporate any factual dispute that
would otherwise exist.” Kailin v. Vill. of Gurnee, 77 F.4th 476, 480-482 (7th Cir. 2023) (citing

United States v. Norville, 43 F.4th 680, 682 (7th Cir. 2022)). Video evidence will only do so,
however, where the video is “so definitive that there could be no reasonable disagreement about
what the video depicts.” Kailin v. Vill. of Gurnee, 77 F.4th 476, 480-482 (7th Cir. 2023)
(citing Scott, 550 U.S. at 380). The Seventh Circuit has said it rare that video evidence would
leave no room for interpretation by a fact-finder. Id.; e.g., Ferguson v. McDonough, 13 F.4th
574, 581 (7th Cir. 2021) (declining to apply Scott where the video was open to interpretation and
did not utterly discredit the plaintiff’s facts); Gupta v. Melloh, 19 F.4th 990, 998 (7th Cir. 2021)
(reversing summary judgment where reasonable jurors could have many different and opposing
conclusions about the video); McCottrell v. White, 933 F.3d 651, 661 n.9 (7th Cir. 2019)
(declining to draw independent factual conclusions from a poor-quality, black and
white video lacking audio).
Here, the videos proffered by Defendants are helpful, but certainly not dispositive, in
determining what occurred on July 18, 2020. For this reason and additional reasons below,

Defendants’ Motion for Summary Judgment is GRANTED in part and DENIED in part.
I. Claims against the Emergency Response Team of the Koscuisko County Jail and
Defendant Morrison
In Plaintiff’s Response to Defendants’ Motion for Summary Judgment [DE 69], Plaintiff
failed to address the Defendants’ arguments about both the Emergency Response Team of the
Koscuisko County Jail and Defendant Morrison. In reviewing a summary judgment motion, the
court views the record and all reasonable inferences in the light most favorable to the non-
moving party. Fed. R. Civ. P. 56(c). However, the Seventh Circuit has consistently held that a
failure to respond by the nonmovant as mandated by the local rules results in an admission.
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (citing Michas v. Health Cost Controls of Ill.,

Inc., 209 F.3d 687, 689 (7th Cir. 2000)). Because Plaintiff has failed to respond, the facts alleged
by Defendants are taken to be true, and the Motion for Summary Judgment against Emergency
Response Team of the Koscuisko County Jail and Defendant Morrison is GRANTED.
II. Claims against Defendant Meza
During his deposition, Defendant Meza agreed with Plaintiff’s counsel that jail officers
only use force to gain or maintain control. [DE 69-2, Page 7:13-23]. Defendant Meza also agreed
that if the detainees had been lying down, he would not have fired his shotgun because that
would have been “sufficient control” over the detainees. [DE 69-2, Page 14:20-25; Page 15:1-2].
Plaintiff’s counsel asked Defendant Meza more than once if the detainees were lying down
before he fired his shotgun, and each time Defendant Meza answered “no.” [DE 69-2, Page
10:21-25]. Defendant Meza even asserted that the video would corroborate his version of events.
[DE 69-1, Page 12:16-22]. The video does not appear to do so.
The video shows that before Defendant Meza enters the dayroom Plaintiff is already on

the ground in the fetal position. [DE 61, 10:42-31]. Plaintiff remains there and does not get up as
additional officers, including Defendant Meza, enter. [DE 61, 10:42:31 to 10:42:36]. The video
also shows a small burst of fire leaving Defendant Meza’s shotgun while it is seemingly aimed at
Plaintiff’s head and after he is already on the ground. [DE 61, 10:42:35]. Notably, not only is
Plaintiff lying down when Defendant Meza fires his shotgun, but so are all the other detainees.
[DE 61, 10:42:31 to 10:42:36]. Plaintiff seems to recoil and grab his head more tightly after the
burst of fire leaves Defendant Meza’s gun. [DE 61, 10:42:31 to 10:42:36]. When Plaintiff is
taken out of the dayroom, there is visible blood down the side of his face and neck. [DE 61,
10:43:16 to 10:43:18].
Plaintiff’s counsel also asked Defendant Meza about his training, and Defendant Meza

explained that it was against his training to aim his shotgun at a detainee’s head because it could
cause injury or unnecessary damage. [DE 69-2, Page 20:5-15]. Not only does Defendant Meza
seem to aim and fire his shotgun directly at Plaintiff’s head, but he also points his shotgun
directly at several other detainees’ heads. [DE 61, 10:44:32 to 10:45:36.] The video shows
Defendant Meza standing directly over two detainees who are cuffed behind their back and lying
flat on their stomach on the ground. [DE 61, 10:44:44]. Even with the detainees fully subdued on
the ground, Defendant Meza aims his shotgun straight at their heads. [DE 61, 10:44:32 to
10:45:36.]
It is unclear from his testimony and the “uncontroverted” video evidence whether
Defendant Meza used objectively unreasonable force when trying to gain compliance from
Plaintiff. Because there remain genuine disputed issues of material fact, Defendants’ Motion for
Summary Judgment on the claims against Defendant Meza is DENIED.

III. Claims against Defendant Harter
The video here is a second video different than the first one, showing the booking room
instead of the dayroom, and capturing Plaintiff’s interactions with Defendant Harter. Defendant
Harter’s affidavit provided a more than 30-step description of how and why Plaintiff landed on
the ground on his back in the booking room. [DE 59-8, Pages 2-4]. It is unclear from the video,
however, even after analyzing it frame-by-frame, whether Defendant Harter’s testimony aligns
with the video, which would make summary judgment appropriate. Here again, it is unclear from
the testimony and the video evidence whether objectively unreasonable force was used when
trying to gain compliance from Plaintiff. That is a question of fact for the fact-finder. Because
there remain genuine disputed issues of material fact, Defendants’ Motion for Summary

Judgment on the claims against Defendant Harter is DENIED.
IV. The “Sham” Affidavit Rule
Defendants move for Plaintiff’s Affidavit [DE 69-1] to be stricken from the record on the
basis that it is inadmissible because it “directly contradict[s] the Plaintiff’s deposition
testimony.” [DE 70, Page 2]. Defendants seem to be referencing the Sham Affidavit Rule, which
makes an affidavit inadmissible if it contradicts the affiant’s earlier sworn testimony, unless the
earlier testimony was ambiguous, confusing, or the result of a memory lapse. Miller v. Riverside
RV, Inc., 455 F. Supp. 3d 813, 819 (N. D. Ind. 2020); see, e.g., Cook v. O’Neill, 803 F.3d 296,
298 (7th Cir. 2015). There is an exception for the submission of supplemental affidavits that
clarify ambiguous or confusing deposition testimony are permitted. James v. Hale, 959 F.3d 307,
316 (7th Cir. 2020) (citing Perez v. Staples Contract & Commer. LLC, 31 F.4th 560, 569 (7th
Cir. 2022). The Seventh Circuit has emphasized that the rule is to be used with “great caution,”
and only applies if a change in testimony “is incredible and unexplained.” United States v. Funds

in the Amount of $271,080, 816 F.3d 903, 907 (7th Cir. 2016).
Using “great caution” as the Seventh Circuit instructs, this Court finds that the Sham
Affidavit Rule does not apply here. In Plaintiff’s Deposition [DE 70-1], he described relying on
his own recollection to file the complaint just over a month after the incident occurred on July
18, 2020. [DE 70-1, Page 16:8-11]. This complaint contains extensive details about the incident.
[DE 1]. By the time Plaintiff was deposed on January 1, 2022, nearly 18 months later, he had
suffered another head injury, which grossly impacted his memory. [DE 70-1, Page 17: 12-24;
Page 18:2-6]. Plaintiff’s Affidavit [DE 69-1] filed on October 4, 2023, another 22 months after
his deposition, includes details and allegations that are similar, and in some instances almost
identical, to the ones included in Plaintiff’s complaint.

The details and allegations included in paragraph 6, 7, and 8 of Plaintiff’s Affidavit are
included in his complaint. [DE 1; DE 69-1]. However, the details and allegations included in
paragraph 5 of Plaintiff’s Affidavit differ slightly from his complaint. [DE 1; DE 69-1]. In his
complaint Plaintiff states that officers did not give verbal commands upon entry into the
dayroom. [DE 1]. In Plaintiff’s Affidavit, however, he states that upon hearing the lead officer’s
command to get on the floor he complied. [DE 69-1]. During Defendant Meza’s deposition on
August 31, 2023, he was asked several times if commands were given upon entry to the
dayroom, and he too failed to recall. The videos provided by Defendant are not helpful here,
because they do not have audio. For all of these reasons, Defendant’s request to strike Plaintiff’s
Affidavit is DENIED.
V. The Doctrine of Qualified Immunity
The factual disputes above are material and critical to the question of qualified

immunity. Flowers v. Renfro, 46 F.4th 631, 636 (7th Cir. 2022). Qualified immunity under §
1983 extends to officers unless (1) they violated a federal statutory or constitutional right, and (2)
the unlawfulness of their conduct was clearly established at the time. Id. Whether an officer
violated a suspect’s rights depends entirely on the reasonableness of the use of force. Id. This
inquiry must be undertaken in light of the specific context of the case, not as a broad general
proposition. Flowers v. Renfro, 46 F.4th 631, 636 (7th Cir. 2022) (citing Rivas-Villegas v.
Cortesluna, 142 S. Ct. 4, 8 (2021) (internal citation omitted). Here, where there exist genuine
issues of material fact, summary judgment on the issue of qualified immunity would be
inappropriate. As a result, Defendants’ Motion for Summary Judgment on the issue of qualified
immunity is DENIED.

VI. Local Rule 56-1
Local Rule 56-1 requires the party seeking summary judgment to include a “Statement of
Material Facts” with their motion and requires the party opposing summary judgment to file a
response brief with section identifying the material facts which are genuinely disputed and which
make a trial necessary. N.D. Ind. L.R. 56-1(a), 56-1(b)(1)(B), 56-1(b)(2). The Seventh Circuit
has repeatedly held that a district court is well within its discretion to enforce compliance with its
local rules regarding summary-judgment motions. Fed. Trade Comm’n v. Bay Area Bus.
Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005). Failure to respond to an opposing party’s
statement of material facts, as required by Rule 56-1, may result in the Court accepting as true all
properly supported facts presented in the moving party’s statement of material facts. See
Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 359-60 (7th Cir. 2009) (district court has
discretion to enforce local rules regarding summary judgment).
Here, Plaintiff failed to fully comply with Rule 56-1. Plaintiff, within his Response to

Defendants’ Motion for Summary Judgment [DE 69], includes a “Factual Background” section,
which contains individual facts supported by citations to the record. [DE 69, Page 2-6].
Plaintiff’s submission, however, failed to include a section identifying the material facts which
are genuinely disputed and which make a trial necessary. N.D. Ind. L.R. 56-1(b).
This Court has reviewed Defendants’ Statement of Material Facts [DE 59] and finds that
it is adequately supported with citations to admissible evidence, which, given Plaintiff’s failure
to adhere to Rule 56-1, would allow this Court to adopt Defendants’ Statement of Material Facts
[DE 59] as true. However, the videos submitted by Defendants contradict parts of their Statement
of Material Facts [DE 59]. Furthermore, some of their factual submission is argumentative. [DE
59, Pages 9:64-66; 12:92; 13: 94-95; 15: 111]. For these reasons, the Court declines to adopt

Defendants’ Statement of Material Facts [DE 59] as true. The Court reminds Plaintiff of his
ongoing duty to apprise himself of and follow the local rules of this jurisdiction.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment on the claims
against Emergency Response Team of the Koscuisko County Jail and Defendant Morrison is
GRANTED, and Defendants’ Motion for Summary Judgment on the claims against Defendant
Meza and Defendant Harter is DENIED.
SO ORDERED.
ENTERED: June 11, 2024
/s/ GRETCHEN S. LUND
Judge
United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10165436. Public record. Not legal advice.