TOWNSEND v. MCWILLIAMS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

KIM TOWNSEND, )

)

Plaintiff, )

)

v. ) No. 1:17-cv-03024-JPH-MJD

)

BRIAN MCWILLIAMS Deputy, )

WATERMAN Deputy, )

TUNNEY Deputy, )

ROSTER P.O, )

COOPER P.O., )

JOHN DOE OFFICERS Individually, )

MARION COUNTY, )

CITY OF INDIANAPOLIS a Municipal )

Corporation, )

JUSTIN LEE GOUGH P.O., )

DEREK MATTHEW JACKSON, )

)

Defendants. )

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Kim Townsend was driving to the Julian Center when a police officer

signaled for her to pull over. Instead of stopping, she drove the rest of the way

to the Julian Center and got out of her car. As she quickly walked to the

Julian Center’s entrance, several Indianapolis Metropolitan Police Department

officers and Marion County Sheriff’s Office deputies took her to the ground and

arrested her. Ms. Townsend alleges that they used excessive force. Defendants

have filed a motion for summary judgment, arguing that they are entitled to

qualified immunity. Dkt. [77]. For the reasons that follow, that motion is

GRANTED in part and DENIED in part.

I.

Facts and Background

Because Defendants have moved for summary judgment under Rule

56(a), the Court views and recites the evidence “in the light most favorable to

the non-moving party and draw[s] all reasonable inferences in that party’s

favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).

The Court notes some factual disputes.

After work on January 6, 2016, Ms. Townsend stopped at a gas station

before driving back to the Julian Center where she lived. Dkt. 78-6 at 18

(Townsend Dep. at 71–72). The parties’ accounts of what happened during

that drive are completely different. Defendants claim that Ms. Townsend led

seven officers—in marked police vehicles—on a miles-long chase, speeding

down streets and through construction zones, darting between cars, running

stoplights and stop signs, striking a construction-zone barrel, and driving on a

sidewalk to avoid a school bus. Dkt. 79 at 3–4, 14–15. Ms. Townsend claims

she realized that at least one police car was following her, but she did not

speed, run a red light, or drive on a sidewalk. Dkt. 93 at 2.

Whatever happened on the drive, Ms. Townsend parked at the Julian

center and got out of her car. Dkt. 78-6 at 24 (Townsend Dep. at 93). She

noticed a police car behind her and was “scared to death” so she walked

quickly to the door to get help from an advocate at the Julian Center. Dkt. 78-

6 at 25, 32 (Townsend Dep. at 97, 99–100, 128).

The parties also dispute what happened at the Julian Center’s door, even

though it was captured on video. See dkt. 78-9. According to Ms. Townsend,

Officer Christopher Cooper grabbed her hair, pushed her face into the door,

hurled her into the ground by her hair, and tackled her. Dkt. 93 at 3. Then,

officers kicked, punched, stepped on, and beat her before she was handcuffed.

Id. And after she was handcuffed, officers kicked her in the head, dragged her

by the handcuffs, and hoisted her up by lifting her arms and shoulders past

their limits, causing shoulder injuries. Id. Defendants argue that the video of

the incident contradicts Ms. Townsend’s allegations and instead shows that

Officer Cooper “ran into” Ms. Townsend, who struck the door and stumbled to

the ground. Dkt. 77 at 6. Then, they used only reasonable force to place Ms.

Townsend in handcuffs. Dkt. 101 at 12–14.1

Ms. Townsend suffered serious injuries from this encounter, including

shoulder injuries requiring surgery. Dkt. 78-6 at 46 (Townsend Dep. at 181–

83).

Ms. Townsend brought this action on August 28, 2017, alleging that

“John Doe officers” and five named Indianapolis Metropolitan Police

Department officers and Marion County Sheriff’s Office deputies used excessive

force against her. Dkt. 1. She also sued the City of Indianapolis, alleging that

it is required to indemnify the officers for any damages. Id. Ms. Townsend

amended her complaint on March 26, 2018, adding Officers Derek Jackson

and Justin Gough as defendants. Dkt. 38. Defendants have moved for

summary judgment. Dkt. 77.

1 The facts should not be so hotly and divergently disputed. At too many points to

recount, Defendants do not view the evidence in Ms. Townsend’s favor and Ms.

Townsend does not ensure that the evidence supports her arguments. See Fed. R.

Civ. P. 56 (c), (e); S.D. Ind. L.R. 56-1 (a), (e), (f).

II.

Applicable Law

A. Summary judgment

Summary judgment shall be granted “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). The moving party must

inform the court “of the basis for its motion” and specify evidence

demonstrating “the absence of a genuine issue of material fact.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this

burden, the nonmoving party must “go beyond the pleadings” and identify

“specific facts showing that there is a genuine issue for trial.” Id. at 324.

In ruling on a motion for summary judgment, the Court views the

evidence “in the light most favorable to the non-moving party and draw[s] all

reasonable inferences in that party’s favor.” Zerante, 555 F.3d at 584 (citation

omitted).

B. Qualified immunity

“[Q]ualified immunity shields officials from civil liability so long as their

conduct ‘does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). This

“clearly established” standard ensures “that officials can ‘reasonably . . .

anticipate when their conduct may give rise to liability for damages.’” Reichle v.

Howards, 566 U.S. 658, 664 (2012) (quoting Anderson v. Creighton, 483 U.S.

635, 646 (1987)). Qualified immunity thus “balances two important interests—

the need to hold public officials accountable when they exercise power

irresponsibly and the need to shield officers from harassment, distraction, and

liability when they perform their duties reasonably.’’ Pearson, 555 U.S. at 231.

The “difficult part” of the qualified-immunity test is “identifying the level

of generality at which the constitutional right must be clearly established.”

Volkman v. Ryker, 736 F.3d 1084, 1090 (7th Cir. 2013). A “high level of

generality” is not appropriate; instead, the question is “whether the law was

clear in relation to the specific facts confronting the public official when he

acted.” Id. “Such specificity is especially important in the Fourth Amendment

context,” because “it is sometimes difficult for an officer to determine how the

relevant legal doctrine, here excessive force, will apply to the factual situation

the officer confronts.’’ Mullenix, 136 S. Ct. at 308 (quotation and citation

omitted).

In excessive force cases, “the result depends very much on the facts of

each case,’’ so officers are entitled to qualified immunity unless precedent

‘‘squarely governs” the case at hand. Id. at 309 (quoting Brosseau v. Haugen,

543 U.S. 194, 201 (2004)). While a case directly on point is not required,

“existing precedent must have placed the statutory or constitutional question

beyond debate.” Id. at 308.

III.

Analysis

A. Qualified immunity on the excessive force allegations

Ms. Townsend contends that officers used excessive force several times

as they arrested her outside the Julian Center. To overcome qualified

immunity, she “must show both (1) that the facts make out a constitutional

violation, and (2) that the constitutional right was ‘clearly established’ at the

time of the official’s alleged misconduct.” Abbott v. Sangamon Cty., 705 F.3d

706, 713 (7th Cir. 2013). Defendants argue that they are entitled to qualified

immunity under the second prong because they did not violate Ms. Townsend’s

clearly established rights. Dkt. 79 at 13–24. The Court thus exercises its

discretion to begin with that prong of the test. See Pearson, 555 U.S. at 236.

The Court “carve[s] up the incident into segments and judge[s] each on

its own terms,” evaluating whether each officer is entitled to qualified immunity

on each use of force. Deering v. Reich, 183 F.3d 645, 652 (7th Cir. 1999); see

Dockery v. Blackburn, 911 F.3d 458, 465 (7th Cir. 2018); Estate of Williams by

Rose v. Cline, 902 F.3d 643, 651 (7th Cir. 2018).

1. Officer Cooper taking Ms. Townsend to the ground

Defendants argue that Officer Cooper did not violate Ms. Townsend’s

clearly established rights when he took her to the ground because she was

fleeing after an erratic drive that endangered countless people. Dkt. 79 at 16–

17, 19. Ms. Townsend disputes what happened on the drive and says that

Officer Cooper “slammed into [her] from behind, bounced her face against the

glass door by her hair, and then threw her on the ground, yanking her down

again by her hair.” Dkt. 93 at 9. She also argues that her clearly established

rights were violated because she was not merely tackled but was also beaten.

Dkt. 93 at 12–13.

The parties spill much ink on the many disputed facts about what

happened as Ms. Townsend drove to the Julian Center. See dkt. 79 at 16–17,

19; dkt. 93 at 7–8, 12. But regardless of what happened on the drive, Officer

Cooper is entitled to qualified immunity. See Kunik v. Racine County,

Wisconsin, 106 F.3d 168, 174 (7th Cir. 1997). It’s undisputed that more than

one police vehicle—with lights activated—followed Ms. Townsend as she drove

to the Julian Center. Dkt. 78-6 at 20–21, 26 (Townsend Dep. at 79, 82–83,

101–04). At the Julian Center, she noticed the police car behind her and

walked quickly to the Julian Center’s door. Dkt. 78-6 at 25, 32 (Townsend

Dep. at 97, 99–100, 128).

Ms. Townsend’s failure to stop gave Officer Cooper the right to arrest her,

and an officer who has the right to arrest has the right to use “some degree of

physical force to effectuate the arrest.” Stainback v. Dixon, 569 F.3d 767, 772

(7th Cir. 2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). And

because Ms. Townsend was fleeing, it was reasonable for Officer Cooper to take

her to the ground. Catlin v. City of Wheaton, 574 F.3d 361, 367 (7th Cir.

2009). Indeed, in Blazek v. City of Iowa City—a case that Ms. Townsend cites

for another purpose—the Eighth Circuit said that an officer was entitled to

qualified immunity after he grabbed a belligerent arrestee’s arm, “twisted the

arm up behind him, and threw him to the ground.” 761 F.3d 920, 922–25 (8th

Cir. 2014).

With no law showing that, on these facts, Officer Cooper violated a

clearly established right by taking her to the ground, Ms. Townsend cannot

overcome qualified immunity. See dkt. 93 at 9–10, 13. This case is thus much

like Findlay v. Lendermon, 722 F.3d 895 (7th Cir. 2013). There, a sheriff’s

deputy tried to confiscate a camcorder memory chip with evidence on it, but

the plaintiff grabbed the chip, which ended up under a washing machine. Id.

at 898. The plaintiff reached to pick it up, and the deputy grabbed him by the

shoulders and tackled him. Id. The Seventh Circuit held that qualified

immunity applied because the plaintiff did not meet his burden to identify a

sufficiently analogous case or explain how the deputy’s tackle plainly violated

the constitution. Id. at 900. The same is true here.

Ms. Townsend also argues that Defendants’ conduct was “brutal” enough

to be plainly unconstitutional, so no precedent showing a clearly established

right is required. Dkt. 93 at 13. She can prevail without analogous case law

only if the constitutional “violation is so patent that no violator has even

attempted to obtain an appellate ruling on it.” Estate of Escobedo v. Bender,

600 F.3d 770, 781 (7th Cir. 2010). As explained above, that is not the case

here in light of Stainback, Catlin, Blazek, and Findlay. See id.

Officer Cooper is therefore entitled to qualified immunity on this part of

Ms. Townsend’s claim.

2. All Defendants’ force against Ms. Townsend on the ground

before she was handcuffed

Defendants argue that they are entitled to qualified immunity on the

claims that they used excessive force when they restrained Ms. Townsend in

order to handcuff her. Dkt. 79 at 19, 21–23. Ms. Townsend responds that

qualified immunity is inappropriate because the officers “kicked, hit, punched,

and stepped on her” even though she was not resisting. Dkt. 93 at 12–13.2

The evidence, viewed favorably to Ms. Townsend, is that while she was

face-down on the ground, she felt officers stepping on her, dkt. 78-6 at 35

(Townsend Dep. at 137), though the video shows that they were more likely

kneeling on her, dkt. 78-9. The officers struggled to handcuff Ms. Townsend,

id., but there is no evidence they kicked, hit, or punched Ms. Townsend before

she was handcuffed. See dkt. 78-6 at 35–38 (Townsend Dep. at 137, 139–40,

142, 147, 149). She was not resisting, but she had been fleeing and had not

obviously surrendered. Dkt. 78-6 at 35 (Townsend Dep. at 137, 139–40).

Given this situation, Ms. Townsend has cited no law clearly establishing

that officers used excessive force against her. See dkt. 93 at 9–13. She does

not argue that specific uses of force were excessive, but that she was generally

beaten and pummeled. Dkt. 93 at 3, 9, 13–14. Considering the video

evidence, lack of cited authority, and vague arguments, Ms. Townsend cannot

show that any contact the officers may have made with her incident to the

arrest, including a hit to the back or being stepped or knelt on, was excessive

2 Neither party clearly distinguishes the force used before Ms. Townsend was

handcuffed from the force used after she was handcuffed. See dkt. 79 at 19–24; dkt.

93 at 12–15. But the Seventh Circuit draws that distinction, see, e.g., Sallenger v.

Oakes, 473 F.3d 731 (7th Cir. 2007), so this Court does too.

under clearly established law. See Findlay, 722 F.3d at 899–900 (holding that

deficient analysis of clearly established law on an excessive-force claim cannot

carry a plaintiff’s burden).

Rather, the officers had the right to use reasonable force to arrest Ms.

Townsend. See Stainback, 569 F.3d at 772. And it’s generally reasonable for

officers to use substantial force to subdue and handcuff a suspect who was

fleeing and had not (or had suspiciously) surrendered. See Johnson v. Scott,

576 F.3d 658 (7th Cir. 2009) (German Shepard bite was not unreasonable after

flight and questionable surrender); Catlin, 574 F.3d 361; Sallenger v. Oakes,

473 F.3d 731, 742 (7th Cir. 2007); cf. Alicea v. Thomas, 815 F.3d 283 (7th Cir.

2016); Miller v. Gonzalez, 761 F.3d 822 (7th Cir. 2014) (unreasonable to break

the jaw of a clearly prone and subdued suspect). Indeed, “police are entitled to

err on the side of caution when faced with an uncertain or threatening

situation.” Johnson, 576 F.3d at 659.

All Defendants are therefore entitled to qualified immunity on the force

applied before Ms. Townsend was handcuffed.

3. All Defendants’ force against Ms. Townsend on the ground

after she was handcuffed

Defendants also argue that they are entitled to qualified immunity on Ms.

Townsend’s claims of excessive force used after she was handcuffed. Dkt. 79

at 19–24. Ms. Townsend responds that qualified immunity is inappropriate

because the officers kicked her in the head after she was handcuffed. Dkt. 93

at 12–15. She also testified at her deposition that she “felt a hit” to her back,

but later said that she “didn’t say she was hit to the back” but instead “felt . . .

pressure.” Dkt. 78-6 at 37–38 (Townsend Dep. at 147, 149).3 In reply,

Defendants argue that Ms. Townsends’ account is clearly contradicted by the

video. Dkt. 101 at 11–14.

For the pressure in her back, the view in the video is too obscured to

confirm or contradict either side’s allegations, but it does show a struggle that

continued as Ms. Townsend was being handcuffed and briefly thereafter. Dkt.

78-9. Ms. Townsend has not cited a case clearly establishing that the

“pressure” or a single hit incident to arrest was excessive force given that

continued struggle. In the closest case, Sallenger, officers continued to hit a

suspect with a flashlight and closed-fist blows after he stopped moving. 473

F.3d at 740–41. Here, the ongoing struggle and limited force make this case

different. See Abdullahi v. City of Madison, 423 F.3d 763, 771 (7th Cir. 2005)

(“Kneeling with just enough force to prevent an individual from ‘squirming’ or

escaping might be eminently reasonable, while dropping down on an individual

or applying one’s full weight (particularly if one is heavy) could actually cause

death.”).

For the kick to her head, from before the time Ms. Townsend was

handcuffed, the video shows where her head was and where each officer was.

Dkt. 78-9. The video clearly shows that during that time, no officer made any

move that could be construed as a kick to the head. Id. In fact, Ms. Townsend

3 Ms. Townsend’s deposition seems to show that she felt the pressure in her back after

she was handcuffed, but it’s not entirely clear. Dkt. 78-6 at 38 (Townsend Dep. at

149). This timing question does not change the reasoning and result.

admitted that when she watched the video she did not see anyone kick her in

the face. Dkt. 78-6 at 36 (Townsend Dep. at 143). There are no allegations

that the video was altered or that it differs from what happened. See Scott v.

Harris, 550 U.S. 372, 379 (2007). The Court therefore “should not adopt” Ms.

Townsend’s version of the facts since it “is blatantly contradicted by the record,

so that no reasonable jury could believe it.” Scott, 550 U.S. at 379; see

Dockery, 911 F.3d at 466 (finding a plaintiff’s account “utterly discredited”

under Scott).

All Defendants are thus entitled to qualified immunity on these claims of

excessive force applied after Ms. Townsend was handcuffed.

4. Officer Jackson hoisting Ms. Townsend up from the ground

Ms. Townsend argues that Defendants violated her clearly established

rights when they “dragged and lifted her” to her feet.” Dkt. 93 at 12–13.

Defendants do not address this argument, except to argue that “the video does

not show Townsend getting dragged.” See dkt. 79 at 13–24, dkt. 101 at 13–17.

The video, viewed in Ms. Townsend’s favor, shows that after she was

handcuffed, she was lying face down on the ground, not moving. Dkt. 78-9.

One officer grabbed her near her wrists and pulled her a short distance, then

hoisted her to her feet by pulling her arms upward behind her back. Id.4 The

evidence indicates that the officer was Officer Jackson. Dkt. 78-7 at 20

4 A sheriff’s deputy stepped in at the end to help. Ms. Townsend does not specify a

claim against this unidentified deputy for his minor role in getting Ms. Townsend to

her feet. See dkt. 93 at 11–15.

(Cooper Dep. at 34); dkt. 78-11 at 17 (McWilliams Dep. at 49); dkt. 78-12 at 10

(Jackson Dep. at 41).

Unlike when a suspect is fleeing or resisting, it “is well established that a

police officer may not continue to use force against a suspect who is subdued

and complying with the officer’s orders.” Johnson, 576 F.3d at 659; see

Sallenger, 473 F.3d at 740 (“Although closed-fist blows and blows with the

flashlight may have been necessary at first, this does not mean that this force

was still justified after the handcuffs had been secured.”). “This prohibition

against significant force against a subdued suspect applies notwithstanding a

suspect’s previous behavior—including resisting arrest, threatening officer

safety, or potentially carrying a weapon.” Miller, 761 F.3d at 829; see Johnson,

576 F.3d at 659 (“When a suspect waves the white flag of surrender, the use of

force in connection with an arrest may, as an objective matter, become

unnecessary and inappropriate.”). That’s because the justification for using

force—protecting officers and the public from threatening situations—

disappears when officers have gained control over a suspect. See Sallenger,

473 F.3d at 740.

Indeed, the Seventh Circuit has repeatedly warned officers about the use

of force against subdued suspects. E.g. Kingsley v. Hendrickson, 801 F.3d 828,

832 (7th Cir. 2015) (Tasing a manacled suspect); Miller, 761 F.3d at 829

(breaking arrestee’s jaw with knee); Sallenger, 473 F.3d at 742 (closed-fist

punching and flashlight blows); Abdullahi, 423 F.3d at 769–70 (kneeling on

arrestee’s back); Frazell v. Flanigan, 102 F.3d 877, 884–85 (7th Cir. 1996)

(striking and dragging across pavement); Rambo v. Daley, 68 F.3d 203, 207

(7th Cir. 1995) (“The Constitution clearly does not allow police officers to force

a handcuffed, passive suspect into a squad car by breaking his ribs.”). Seventh

Circuit precedent has therefore “placed the . . . constitutional question beyond

debate” and qualified immunity does not apply. Mullenix, 136 S. Ct. at 308.

Moreover, “a clear trend in the case law” of the Seventh Circuit and other

circuits gave Officer Jackson “fair warning” that hoisting Ms. Townsend to her

feet by pulling her arms upward behind her back would be excessive force.

Bender, 600 F.3d at 781. In Stainback, 569 F.3d at 772, the Seventh Circuit

held that “an officer may not knowingly use 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.” And in Payne v. Pauley, 337 F.3d 767, 780 (7th Cir.

2003), the Seventh Circuit noted that it was “well established [in 1998] that it

was unlawful to . . . violently yank the arms of arrestees who were not resisting

arrest, did not disobey the orders of a police officer, did not pose a threat to the

safety of the officer or others, and were suspected of committing only minor

crimes.” See also Clash v. Beatty, 77 F.3d 1045 (7th Cir. 1996).

Other circuits have made similar holdings. The Eighth Circuit said that

if a plaintiff “can prove at trial that he was subdued and compliant, but that

officers grabbed him by the arms and gratuitously ‘jerked’ him from the floor

onto the bed, using enough violent force to cause significant injury, then . . . a

reasonable jury could find a violation of the Fourth Amendment.” Blazek, 761

F.3d at 926. And the Sixth Circuit has said that using handcuffs to “‘rip’ [a

plaintiff] out of his vehicle and force him to the ground” is objectively

unreasonable under the Fourth Amendment. Solovy v. Morabito, 375 F. App’x

521, 525 (6th Cir. 2010). See also Tekle v. United States, 511 F.3d 839 (9th

Cir. 2007).

As this case law makes clear, hoisting a handcuffed suspect to her feet

by pulling her wrist area with her arms behind her back is “almost guaranteed

to cause substantial pain.” Id. at 527. And indeed, Ms. Townsend suffered

shoulder injuries requiring surgery. Dkt. 78-6 at 46 (Townsend Dep. at 181–

83). Those injuries are “evidence of the degree of force imposed and the

reasonableness of that force,” so they support to Ms. Townsend’s excessive

force claim. McAllister v. Price, 615 F.3d 877, 882 (7th Cir. 2010); see

Abdullahi, 423 F.3d at 772 (“We have previously held that medical evidence

and other circumstantial evidence can be sufficient to create triable issues of

fact in excessive force cases.”).

Officer Jackson had “fair warning” that hoisting Ms. Townsend to her feet

in this situation would be excessive force, so he is not entitled to qualified

immunity on this claim. Bender, 600 F.3d at 781.

B. Relation back of the amended complaint against Officer Jackson

Officer Jackson argues that Ms. Townsend’s amended complaint added

him as a defendant after the statute of limitations had run and does not relate

back to the original complaint. Dkt. 79 at 27–32.5 Ms. Townsend argues that

5 Officer Gough makes the same argument, but as explained above Ms. Townsend’s

only surviving claim is against Officer Jackson.

the amended complaint relates back under Federal Rule of Civil Procedure

15(c). Dkt. 93 at 15–22.

An amended complaint relates back under Federal Rule of Civil

Procedure 15(c) if:

(1) It “asserts a claim . . . that arose out of the conduct, transaction, or

occurrence set out . . . in the original pleading”; and

(2) “within the period provided by Rule 4(m)” for service of process,

Defendant:

(a) “received such notice of the action that it will not be prejudiced

in defending on the merits”; and

(b) “knew or should have known that the action would have been

brought against it, but for a mistake concerning the proper

party’s identity.”

See Joseph v. Elan Motorsports Tech. Racing Corp., 638 F.3d 555, 559–60 (7th

Cir. 2011).

Here, the parties dispute whether Officer Jackson had enough notice to

avoid prejudice, and whether he knew or should have known that Ms.

Townsend would have sued him too but for a mistake. Dkt. 79 at 27–32; dkt.

93 at 15–22. However, the parties incorrectly focus their timing analysis on

the statute of limitations rather than on the “period provided by Rule 4(m)” for

service of process. Fed. R. Civ. P. 15(c)(1)(C); see Keller v. United States, 444 F.

App’x 909, 911 (7th Cir. 2011). And neither side has responded to all of the

opposing party’s arguments, despite the unsettled application of Rule 15(c)

after Krupski v. Costa Crociere, 560 U.S. 538 (2010), and Joseph, 638 F.3d at

559–60.

Officer Jackson therefore MAY FILE a supplemental motion for summary

judgment on this issue by December 2, 2019, with a brief in support not to

exceed 10 pages. Ms. Townsend may file a response by December 16, 2019,

not to exceed 15 pages. Officer Jackson may file a reply by December 23,

2019, not to exceed 5 pages.

Any summary judgment briefing shall address at least the following

areas:

1) The timeline of the period allotted in Rule 4(m) for service of

process.

2) What notice Officer Jackson had and what he knew or should have

known about the lawsuit and original complaint during the period

allotted in Rule 4(m) for service of process.

3) Whether naming Officers Waterman and Roster instead of Officer

Jackson in the original complaint was a “mistake” under Rule

15(c)(1)(C)(ii).

4) Whether any mistake is clear on the face of the original complaint

and, if so, whether Officer Jackson knew or should have known of

that mistake.

C. Indemnification

Defendants last move for summary judgment on Ms. Townsend’s

indemnification claim. They argue that Ms. Townsend lacks standing to bring

this claim because Indiana law does not create a private right of action. Dkt.

79 at 26–27. Ms. Townsend responds that she is arguing a federal rather than

a state cause of action and that Indiana law compels indemnification of officers

accused of constitutional violations. Dkt. 93 at 22.

The indemnification issue is premature at this summary judgment stage.

The Seventh Circuit has “warned repeatedly against trying to resolve indemnity

before liability.” Doe v. City of Chicago, 360 F.3d 667, 672 (7th Cir. 2004); see

Lear Corp. v. Johnson Elec. Holdings Ltd., 353 F.3d 580, 583 (7th Cir. 2003)

(“We regularly say that decisions about indemnity should be postponed until

the underlying liability has been established.”). Defendants cite no law

showing that this claim should be resolved now. The Court will therefore

return to the indemnification issue, if necessary, after liability is determined.

IV.

Conclusion

Defendants’ motion for summary judgment, dkt. [77], is GRANTED in

part and DENIED in part. The motion is GRANTED as to Defendants

McWilliams, Waterman, Tunney, Roster, Cooper, Gough, and John Doe

officers, who are DISMISSED; the clerk shall update the docket accordingly.

The motion is DENIED as to Ms. Townsend’s claim that Officer Jackson used

excessive force by pulling her by the wrists or handcuffs.

SO ORDERED.

Date: 10/30/2019

Sjamnu Patnaik Hanbore

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

Elise Bowling

OFFICE OF CORPORATION COUNSEL

elise.bowling@indy.gov

Martin Austin Brown

RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS, LLP

mab@rucklaw.com

Andrew R. Duncan

RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS, LLP

ard@rucklaw.com

Tara Lynn Gerber

City of Indianapolis

tara.gerber@indy.gov

John F. Kautzman

RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS, LLP

jfk@rucklaw.com

Gregory E. Kulis

GREGORY E. KULIS & ASSOCIATES LTD.

gkulis@kulislawltd.com

Edward J. Merchant

RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS, LLP

ejm@rucklaw.com

Brian M. Orozco

GREGORY 3. KULIS & ASSOCIATES, LTD.

borozco@kulislawltd.com

Andrew J. Upchurch

OFFICE OF CORPORATION COUNSEL

andrew.upchurch@indy.gov

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