# DAVIS v. KIRBY

> District Court, S.D. Indiana · September 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10169467

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** September 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MYRA DAVIS, )
)
Plaintiff, )
)
v. ) No. 1:20-cv-02409-SEB-MG
)
KRISTOPHER DUNCAN in his individual and )
official capacity as an officer of the Muncie Police )
Department, )
)
Defendant. )

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

If an individual is convicted of resisting a law enforcement officer lawfully engaged
in the execution of the officer's duty, that individual can thereafter bring an excessive
force claim against the officer based on that interaction only if the claim does not
necessarily imply the invalidity of the individual's conviction. Here, the plaintiff brought
an excessive force claim against a Muncie (Indiana) police officer, but after the officer
had moved for summary judgment, the plaintiff pled guilty to the misdemeanor offense of
resisting law enforcement. To explore the impact of this change, if any, on the legal
posture of the case, we conducted a summary judgment hearing. Based on the parties'
filings and arguments at the hearing, we now address the pending summary judgment
motion.
I. FACTUAL BACKGROUND
The following material facts are not in dispute between the parties: on August 4,
2019, Muncie Police Officers Chris Kirby and Kristopher Duncan were dispatched at
approximately 3:55 p.m. to the intersection of Hackley Street and Main Street in Muncie,
Indiana, to respond to calls reporting that Plaintiff Myra Davis and her daughter were

engaged in a physical altercation. Following the arrest of Davis's daughter, Davis was
found sitting in the driver's seat of her vehicle. Having admitted that she had had three
drinks and was too intoxicated to drive, the Officers informed her that she could not drive
and that someone had to come pick up her vehicle. After waiting for someone to arrive
and after directing her multiple times to get out of her vehicle because it needed to be
towed and after informing her that she could either walk home or sit on the curb to wait

for a ride, Office Duncan gave Davis a final warning that she would be charged with
driving under the influence if she did not exit her vehicle. Officer Kirby took possession
of Davis's cell phone, and, after issuing a torrent of profanity at the police, Davis finally
exited her vehicle, in the process of which she reached for and grabbed at Officer Kirby's
taser. In an effort to get her under control, the Officers restrained Davis's arms, secured

her by placing her against the vehicle, and put her under arrest.
While Davis was handcuffed, an Officer escorted her around the vehicle, during
which walk she, either accidentally or purposefully (depending on which party you ask),
stumbled, fell to the ground, and began screaming out in pain; her screams were caused,
she said, by a re-injury of her hip following her recent hip replacement surgery.

Emergency medical services were summoned to the scene and Davis was transported in
an SUV to Indiana University – Ball Memorial Hospital, where hospital personnel
examined her, found no acute medical issues with her hip, and cleared her to be
transported to the Delaware County Jail. When Officers attempted to place her in the
backseat of the police car, Davis refused to enter, demanding (loudly) that she be
permitted to ride in the front seat of the police vehicle because of her hip pain. Her

protestations continued as did her refusal to enter the back seat. Davis stipulates that
throughout this encounter, she screamed insults and belligerent words at medical staff
and law enforcement officers and persisted in her refusal to get into the backseat of the
vehicle. Her resistance included pushing back against Officers' efforts to place her in the
car, locking up her legs to leverage her body and strengthen her resistance and hooking
her right foot on the car door, all in an effort to forestall being placed in the back seat of

the police vehicle, and, while actively resisting police efforts, Davis bit Officer Duncan
on his right bicep. The parties agree that in attempting but failing to secure her physical
compliance, Officer Duncan finally resorted to a "soft empty hand control tactic,"
namely, a knee strike which he applied to Davis's thigh to break the resistance she had
created with her feet and legs by wedging them against the car door. The tactic deployed

by Officer Duncan succeeded in allowing the Officers to place her in the backseat of the
police vehicle to transfer her to jail.1
Davis initially filed her lawsuit against the officers in state court on August 28, 2020,
alleging that on August 4, 2019, Officers Kirby and Duncan of the Muncie Police
Department deployed excessive force against her, in violation of the Fourth, Eighth, and

Fourteenth Amendments of the United State Constitution and the Indiana Constitution,

1 This encounter was videoed via the officers' body cameras, and the relevant footage was
reviewed by the court along with the parties during the summary judgment hearing. There were
no objections to the matters depicted in the video by either party.
generally. She initially included the City of Muncie as a Defendant, bringing both a 42
U.S.C. § 1983 claim and a negligent hiring, supervision, and retention claim against the

municipality. Defendants timely removed the lawsuit to our court on September 23, 2020,
and, a year later, on September 17, 2021, moved for summary judgment. Following
briefing on the summary judgment motion, but before it could be ruled on by the court,
on October 13, 2021, Davis pled guilty in state court to the Class A Misdemeanor of
Resisting Law Enforcement.2 In addition, in her response to Defendants' Motion for
Summary Judgment, Davis abandoned all her claims against the City of Muncie and

Officer Kirby, stating that she "does not contest Defendant Officer Chris Kirby nor
Defendant City of Muncie's Motion for Summary Judgment," and "[t]he only claim that
Plaintiff is pursuing is her claim that Officer Duncan used unreasonable and excessive
force and violated her Fourth Amendment rights." Docket No. 39, at 1. On February 9,
2022, the Court directed Davis to file a notice stipulating to the entry of judgment on all

claims, except the one remaining against Officer Duncan. Docket No. 48. That notice was
filed on February 23, 2022, and dismissal of those defendants was docketed on March 18,
2022. Docket No. 50. Davis's claim against Officer Duncan for excessive force in
violation of the Fourth Amendment is the subject of Duncan's motion for summary
judgment and is ripe for determination.

2 The crime of Resisting Law Enforcement as a Class A Misdemeanor occurs when a person
knowingly or intentionally "forcibly resists, obstructs, or interferes with a law enforcement
officer or a person assisting the officer while the officer is lawfully engaged in the execution of
the officer's duties." Ind. Code § 35-44.1-3-1(a)(1).
Officer Duncan seeks summary judgment on Davis's claim against him, arguing that:
(1) Davis has failed to identify any material facts in dispute, (2) Davis has failed to

demonstrate that he violated any of her constitutional rights, (3) Officer Duncan is
entitled to qualified immunity, and (4) Davis has in any event failed to address the merits
of the Fourth Amendment claim beyond her response to the qualified immunity defense,
and therefore has conceded her substantive Fourth Amendment arguments. Docket No.
41, at 2−9.
On August 26, 2022, we conducted a summary judgment hearing to address, inter

alia, whether the Supreme Court's holding in Heck v. Humphrey bars Davis's Fourth
Amendment claim based on her intervening conviction for resisting law enforcement. 512
U.S. 477 (1994). Officer Duncan contends that Davis's repeated allegations that she was
not resisting arrest and did not pose a threat at the time he deployed the knee control
technique imply the invalidity of her conviction, and thus, her Fourth Amendment claim

is barred by Heck.
II. DISCUSSION AND DECISION

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: (1) she
was deprived of a right secured by the Constitution or laws of the United States; and (2)
the deprivation was visited upon her by a person or persons acting under color of state
law. Buchanan–Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)). Davis brings her §

1983 claim of excessive force under the Fourth Amendment to the United States
Constitution, which is applicable to state action through the Fourteenth Amendment. The
parties do not dispute that Officer Duncan was acting under color of state law, but they

disagree as to whether Davis's claim is Heck-barred, and if not, whether Davis has
presented enough evidence and legal support to establish that she was deprived of a right
secured to her by the Fourth Amendment and to survive summary judgment. We first
address whether Davis's constitutional claim is Heck-barred, and, because we ultimately
conclude it is not, we then address whether her claim survives summary judgment.

A. HECK DOCTRINE
"The rule of Heck v. Humphrey is intended to prevent collateral attack on a criminal
conviction through the vehicle of a civil suit." McCann v. Neilsen, 466 F.3d 619, 621 (7th

Cir. 2006) (citing Heck, 512 U.S. at 484). "To this end, Heck bars a plaintiff from
maintaining a § 1983 action in situations where 'a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated.'" Id. at 621 (quoting Heck, 512 U.S. at 487).

A plaintiff, such as Davis, who has been convicted of resisting law enforcement is not per
se Heck-barred from maintaining a § 1983 action for excessive force stemming from the
same confrontation." McCann, 466 F.3d 621 (citing VanGilder v. Baker, 435 F.3d 689,
692 (7th Cir. 2006)). Rather, to properly apply Heck's bar, we must analyze the
relationship between her claim and the charge of which she was convicted:
[A] plaintiff's claim is Heck-barred despite its theoretical compatibility with
his underlying conviction if specific factual allegations in the complaint are
necessarily inconsistent with the validity of the conviction: "It is irrelevant
that [the plaintiff] disclaims any intention of challenging his conviction; if he
makes allegations that are inconsistent with the conviction's having been
valid, Heck kicks in and bars his civil suit."

Id. at 621−22 (quoting Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003)).
The definition of resisting law enforcement under Indiana law mirrors that cited in
Heck: "A person who knowingly or intentionally . . . forcibly resists, obstructs, or
interferes with a law enforcement officer . . . while the officer is lawfully engaged in the
execution of [his] duties . . . commits resisting law enforcement." Ind. Code § 35-44.1-3-
1(a)(1).
When considering whether an excessive force claim is Heck-barred by an underlying
resisting law enforcement conviction, the timing of the resistance in relationship to the
challenged force is critical. In VanGilder v. Baker, a § 1983 plaintiff's excessive force
claim was not Heck-barred by virtue of his Indiana conviction for resisting law
enforcement because the plaintiff did not "collaterally attack his conviction, deny that he
resisted [the officer's] order . . . or challenge the factual basis presented at his change of
plea hearing." 435 F.3d at 692. Rather, the plaintiff claimed that he "suffered unnecessary
injuries because [the officer's] response to his resistance—a beating to the face that

resulted in bruises and broken bones—was not, under the law governing excessive use of
force, objectively reasonable." Id. "Were [the Seventh Circuit] to uphold the application
of Heck in [that] case, it would imply that once a person resists law enforcement, he has
invited the police to inflict any reaction or retribution they choose, while forfeiting the
right to sue for damages." Id. "Put another way, police subduing a suspect could use as
much force as they wanted—and be shielded from accountability under civil law—as

long as the prosecutor could get the plaintiff convicted on a charge of resisting." Id. This
would "gut a large share of the protections provided by § 1983." Id.
The Seventh Circuit has repeatedly held excessive force claims containing this
sequence of events—resistance to a lawful order followed by allegedly excessive force—
are not Heck-barred. In Evans v. Poskon, another case involving an Indiana conviction for
resisting law enforcement, the plaintiff brought a § 1983 action for excessive force,

contending that: (1) he did not resist being taken into custody, that the police used
excessive force to effect custody, and (3) that the police beat him severely even after
reducing him to custody. 603 F.3d 362, 364 (7th Cir. 2010). The court held that the
plaintiff "could not maintain the § 1983 claim based on the first assertion—that he did
not resist being taken into custody—because such a showing would be incompatible with

his conviction for resisting law enforcement." Ocasio v. Turner, 19 F. Supp. 3d 841,
854−55 (N.D. Ind. 2014) (citing Evans, 603 F.3d at 364). However, the plaintiff could
proceed on the second and third claims that the police used excessive force in effecting
custody as well as after he was in custody because those claims are not inconsistent with
his conviction for resisting law enforcement. Evans, 603 F.3d at 364 (citing Gilbert v.

Cook, 512 F.3d 899 (7th Cir. 2008); VanGilder, 435 F.3d at 692; Dyer v. Lee, 488 F.3d
876, 881 (11th Cir. 2007)). A plaintiff's resistance in response to an officer's lawful
actions would be Heck-barred by a conviction for resisting law enforcement, but a
plaintiff can still proceed with excessive force claims based on force used in response to
their resistance, and after they had ceased their resistance, because Heck "does not affect
litigation about what happens after the crime is completed," and officers "who use force

reasonably necessary to subdue an aggressor are not liable on the merits; but whether the
force was reasonable is a question that may be litigated without transgressing Heck."
Gilbert, 512 F.3d at 901.
B. HECK APPLICATION
We begin by comparing Davis's § 1983 allegations to the facts underlying her
conviction. Despite some confusing and inartful briefing by the attorneys, we understand

the facts underlying Davis's conviction for resisting law enforcement to be as follows:
Davis has admitted that she resisted and interfered with the officers in the performance of
their official duties, that is, engaging in what she characterizes as her " brief tussle" with
Officer Duncan when she refused to enter the rear seat of the police car for transit to the
Delaware County Jail while creating commotion by her shouted insults and vulgarities

directed at police and medical officials.
Unfortunately, the undeveloped state court record consisting of the charging
information and plea colloquy fail to clarify the specific conduct admitted by Davis in her
guilty plea. The charging information tracks the criminal statute, reciting merely that:
"[o]n or about August 4, 2019, in Delaware County, State of Indiana, Myra Davis did

knowingly or intentionally forcibly resist, obstruct or interfere with Muncie Police
Department, a law enforcement officer, while said officer was lawfully engaged in its
duties as a law enforcement officer."3 Docket No. 58-1, at 4. The record of Davis's
change of plea hearing also fails to shed light on the specific criminal conduct Davis

admitted to. During Davis's hearing, her criminal defense attorney, Donald Dunnuck,
questioned her as to the factual basis for her guilty plea. Docket No. 58-3, at 9. Dunnuck
asked Davis if she recalled August 4, 2019, and if she was in the custody of the Delaware
County Police Department, to which Davis replied "yes." Id. Dunnuck then corrected
himself to say Muncie Police Department, and then asked Davis if they were trying to
take her to jail, to which Davis replied "yes." Id. Dunnuck then asked if Davis "resisted

that," and she replied "yes." Id. Unfortunately, the officer whose body camera captured
most of the video footage of the " brief tussle" between Davis and Officer Duncan was
turned away from the altercation during Duncan's knee strike. Docket No. 39, at 3.
Davis's Fourth Amendment claim appears to be based on Officer Duncan's actions
following her refusal to enter the backseat of the police vehicle, a resistance she explains

was based on the pain in her recently re-injured hip following hip replacement surgery.
When Officer Duncan's efforts to secure her compliance with his order to get into the
back seat of the car were unavailing as her protests continued, he applied the soft control
tactic of a knee strike to her upper leg. "After continuous resisting and being warned to
stop, Officer Duncan used one knee strike to [Davis's] right outer thigh, a soft-empty

hand control tactic, to get her to release her feet and legs from under the door." Docket

3 Four other counts were charged but were all dismissed in Davis's plea agreement: Attempted
Disarming of a Law Enforcement Officer (Officer Kirby); Battery Against a Public Safety
Official (Officer Duncan); Disorderly Conduct; and and Public Intoxication.
No. 31, at 4. Davis maintains that this maneuver constituted excessive force, and that
Officer Duncan's action was not objectively reasonable under the circumstances and was

violative of her Fourth Amendment rights to be free from such force.
At the hearing on the motion for summary judgment, Davis's counsel conceded that
Officer Duncan's order to Davis to get into the back seat of the police vehicle for
transport to jail was lawful. Both parties agree that Davis did not comply, despite
numerous demands from the Officers, including Duncan, that she do so; her resistance
continued, exacerbated by her vociferous objections and refusals.

Analyzing Davis's civil claims against her criminal conviction, we conclude that her
excessive force claim does not "necessarily imply the invalidity of [her] conviction."
Ocasio, 19 F. Supp. 3d at 854 (quoting Helman, 742 F.3d at 762).
In the closely analogous VanGilder case, the Seventh Circuit found that the plaintiff
did not deny that he had resisted the officer's orders, nor did he challenge the factual basis

for his plea of guilty to the resisting law enforcement charge. 435 F.3d at 692. Rather, the
plaintiff alleged that the officer's response to his resistance was not objectively
reasonable. The court reasoned:
Were we to uphold the application of Heck in this case, it would imply that
once a person resists law enforcement, he has invited the police to inflict any
reaction or retribution they choose, while forfeiting the right to sue for
damages. Put another way, police subduing a suspect could use as much force
as they wanted—and be shielded from accountability under civil law—as
long as the prosecutor could get the plaintiff convicted on a charge of
resisting. This would open the door to undesirable behavior and gut a large
share of the protections provided by § 1983.

Ocasio, 19 F. Supp. 3d at 855 (quoting VanGilder, 435 F.3d at 692).
"Heck . . . does not affect litigation about what happens after the crime is completed."
Gilbert, 512 F.3d at 901. The question in determining whether Heck bars a § 1983 claim

for excessive force is whether after the resistance/refusal had occurred, Officer Duncan
used more force than was reasonably necessary to secure Davis's compliance with his
order to get back into the police vehicle. Id.; see also Ocasio, 19 F. Supp. 3d at 857.
"Were we to uphold the application of Heck in this case, it would imply that once a
person resists law enforcement, he has invited the police to inflict any reaction or
retribution they choose, while forfeiting the right to sue for damages." VanGilder v.

Baker, 435 F.3d at 692. Accordingly, because Davis admitted her guilt to the
misdemeanor charge of resistance, but objects in her § 1983 claim that the subsequent use
of the knee control tactic was excessive force applied against her, we conclude Davis's
Fourth Amendment claim is not Heck-barred.4

C. SUMMARY JUDGMENT
Davis's claim, having survived Defendant's Heck challenge, we proceed next to our
summary judgment analysis. Parties to a civil dispute may move for summary judgment

as a way of resolving a case short of a trial, and summary judgment shall be granted "if

4 We concede that the facts underlying the criminal charge could be viewed more expansively
than we have done here, such that Davis's resistance would be viewed as a single episode
beginning with her initial refusal to comply with Officer Duncan's order and continuing until he
was forced to act to secure her compliance through the knee strike. The offsetting affidavits
submitted by the parties purporting to reflect the recollections of the prosecutor and the defense
counsel respectively from Davis's criminal case do not resolve the ambiguity of what Davis pled
guilty to or supply reliable clarity in this regard. Because it is impossible to determine from the
state court criminal record precisely what facts she pled guilty to, we have ruled in her favor
through a more conservative interpretation that allows her constitutional claim to proceed, at
least through the summary judgment analysis.
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."5 Id. at 324. When ruling on a motion for summary judgment, the court views the
record and draws all reasonable inferences from it in the light most favorable to the

nonmoving party. Khungar v. Access Cmty. Health Network, 985 F.3d 565, 572−73 (7th
Cir. 2021).
To state a claim for relief under 42 U.S.C. § 1983, Davis must allege that: (1) she was
deprived of a right secured to her by the Constitution or laws of the United States; and (2)
the deprivation was visited upon her by a person or persons acting under color of state

law. Buchanan–Moore, 570 F.3d at 827 (citing Kramer, 384 F.3d at 861). Davis brings
her § 1983 claim of excessive force under the Fourth Amendment to the United States
Constitution, which is applicable to state action through the Fourteenth Amendment.
Because neither party disputes that Officer Duncan was acting under color of state law,
the only issue before us is whether Davis was deprived of a right secured to her by the

5 We note, as Defendants have as well, that Plaintiff's response to the Motion for Summary
Judgment focused entirely on issues relating to qualified immunity and is entirely devoid of any
Fourth Amendment analysis or contrary argument.
Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . .
against unreasonable . . . seizures."6 U.S. Const. amend. IV.

Excessive force claims, such as this, are analyzed using the Fourth Amendment's
"reasonableness" standard. Stainback v. Dixon, 569 F.3d 767, 771 (7th Cir. 2009). The
Fourth Amendment protects against the use of force that is not "objectively reasonable,"
in other words, excessive. Kinney v. Ind. Youth Ctr., 950 F.2d 462, 465 (7th Cir. 1991).
The right to effectuate an arrest or seizure "necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it." Graham v. Connor, 490

U.S. 386, 396 (1989) (citing Terry v. Ohio, 392 U.S. 1, 22–27 (1968)). However, this
right is not without limits; an "officer's use of force is unconstitutional if, judging from
the totality of circumstances at the time of the arrest, the officer used greater force than
was reasonably necessary to make the arrest." Payne v. Pauley, 337 F.3d 767, 778 (7th
Cir. 2003) (citation and quotation marks omitted).

"Determining whether the force used to effect a particular seizure is 'reasonable' under
the Fourth Amendment requires a careful balancing of 'the nature and quality of the
intrusion on the individual's Fourth Amendment interests' against the countervailing
governmental interests at stake." Graham, 490 U.S. at 396 (quoting Tennessee v. Garner,
471 U.S. 1, 8 (1985). To apply the Fourth Amendment's reasonableness test "requires

6 Even though the incident concerns post-arrest conduct, the standard does not change because
"all claims that law enforcement officers have used excessive force—deadly or not—in the
course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed
under the Fourth Amendment and its 'reasonableness' standard." Graham v. Connor, 490 U.S.
386, 3965 (1989).
careful attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety

of the officers or others, and whether he is actively resisting . . . " Id. Moreover, the
"reasonableness" of a particular use of force "must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight," and it also
must be judged objectively; "the question is whether the officers' actions are 'objectively
reasonable' in light of the facts and circumstances confronting them, without regard to
their underlying intent or motivation." Id. at 397.

Here, in addition to relying on the body camera video footage that captured the details
of Davis's increasingly belligerent resistance to the police officers—including her loud
shouts and screaming at the officers and medical personnel, her stubborn physical
resistance, and her biting Officer Duncan's bicep7 —Officer Duncan also adduced
evidence in the form of an expert report from John Ryan, an expert in the field of the

continuum of acceptable police uses of force. Mr. Ryan reviewed, among other things, all
the relevant police reports and body camera footage relating to this incident and
concluded that in his expert opinion, "[a]ny reasonable and well-trained officer would
conclude that the command presence, verbal directives, and soft-empty hand control

7 The biting incident itself is not visible on the video footage, but Officer Duncan is shown
grabbing his shirt sleeve and saying that Davis bit him. In addition, there's a white stain
ostensibly left from Davis's mouth on Duncan's sleeve. Davis's counsel conceded at the hearing
that Davis does not remember biting Officer Duncan, but he did not specifically dispute this fact
in Davis's response to summary judgment. The movant's facts are "admitted unless the non-
movant 'specifically controverts' them in its factual statement, shows them to be unsupported or
demonstrates that reasonable inferences can be drawn in its favor." Hinterberger v. City of
Indianapolis, 966 F.3d 523, 527 (7th Cir. 2020) (quoting S.D. Ind. Local Rule 56-1).
tactics both at the scene and during the transport process was consistent with generally
accepted policies, practices, training, and legal mandates trained to officers for

application in field operations." Docket No. 32-1, at 43.
Davis never deposed Officer Duncan's expert witness, nor did she submit any
countervailing expert evidence to establish that the knee strike constituted excessive
force. She criticized Mr. Ryan's report for its use of the phrase "soft-empty hand control
tactics," rather than "knee strike." Soft empty hand techniques, as described by Mr. Ryan
in his report, refer to the lowest level of acceptable physical control available to an officer

on the use of force continuum before employing any kind of weapon. Mr. Ryan noted
that the Officers in dealing with Ms. Davis had already employed various other low-level
intrusion tactics, such as officer presence and verbal commands, before Officer Duncan
moved to the next level of force, to wit, the empty hand control techniques. Empty hand
control techniques, he explained, include "blocks, vertical stunning techniques such as

directing a violently resisting subject to a wall or other vertical surface, [and] focus
strikes," i.e., "hand strikes, leg strikes and combination of hand and leg strikes." Burton v.
Ruzicki, 2007 WL 760528, at *8 (E.D. Wis. Mar. 8, 2007); see also Clayton v. City of
Bunkie, 2009 U.S. Dist. LEXIS 30565, at *14 n.15 (W.D. La. Mar. 30, 2009) (explaining
that empty hand control techniques encompass not only literal empty hand strikes, but

also "joint locks, pressure points, or light knee strikes"). The unrebutted testimony
establishes the reasonableness of the force utilized by Officer Duncan to secure Davis's
compliance with his order to get into the rear seat of the police vehicle for transportation
to the jail.
Because of the absence of any genuine issues of material fact, Davis is required to "go
beyond [her] pleadings" to identify "specific facts showing that there is a genuine issue
for trial." Catrett, 477 U.S. at 324. Davis has completely failed to do so, designating no
evidence beyond her own interrogatory answers, which simply mirror the allegations in
her complaint, to prove that Officer Duncan's force was excessive. Davis's entire theory
of liability hinges on her allegation that Officer Duncan's knee strike amounted to
excessive force because, she claims, the tactic broke her hip, but even as to that claim,
she has submitted no supportive medical evidence. In sum, Davis has failed to adduce
any cognizable, relevant, admissible evidence to establish that Officer Duncan subjected
her to excessive force in violation of her Fourth Amendment rights, and no reasonable
jury could rule in her favor in the absence of such evidence.’

Ii. CONCLUSION
Accordingly, Defendant's Motion for Summary Judgment [Docket No. 30] is
GRANTED. Final judgment shall be issued accordingly.
IT IS SO ORDERED.

Date: __ 9/27/2022 Whe Baus Birla
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

8 Defendant Duncan also sought a dismissal of the claim against him on qualified immunity
grounds. The entry of summary judgment in his favor obviates the necessity of our
addressing/resolving that issue.
17

Distribution:

Tia J. Combs
FREEMAN MATHIS & GARY, LLP
tcombs@fmglaw.com

Eddie Krause
COHEN GARELICK & GLAZIER
ekrause@cgglawfirm.com

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10169467. Public record. Not legal advice.