COLYER v. ANDERSON POLICE DEPARTMENT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

MARK A. COLYER, )

)

Plaintiff, )

)

v. ) No. 1:20-cv-01472-SEB-MJD

)

MATT JERRETT, et al., )

)

Defendants. )

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This cause is before the Court on Defendants' Motion for Summary Judgment

[Dkt. 119]. Plaintiff Mark A. Colyer, proceeding pro se, has brought this action pursuant

to 42 U.S.C. § 1983 against Defendants Matt Jerrett, Nick Durr, and Joe Garrett, all

police officers with the Anderson Police Department, and the City of Anderson (the

"City"), alleging that the individual Defendants subjected him to excessive force during

the course of his arrest and/or declined to intervene to prevent the use of excessive force

against him, in violation of the Fourth Amendment to the United States Constitution, and

that the City is liable for its failure to properly train, supervise, and discipline its

officers.1

For the reasons detailed below, Defendants' Motion is GRANTED IN PART as to

the excessive force claim against Defendant Garrett and the Monell claim against the City

1 Mr. Colyer has also alleged several claims under state law, but Defendants have not moved for

summary judgment on those claims, so we do not address them further in this Order.

and DENIED IN PART as to the excessive force claims against Defendants Jerrett and

Durr and the failure to intervene claim against Defendant Garrett.

Factual Background

At approximately 10:00 p.m. on the night of November 14, 2018, Anderson Police

Officers were dispatched to a local CVS drugstore in response to a request that had been

called in to the 911 dispatcher by the mother-in-law of Plaintiff Mark Colyer ("Mr.

Colyer" or "Colyer"). The caller reported that she had become frightened of Mr. Colyer,

who was currently located inside her residence at 1418 Nelle Street in Anderson, Indiana,

and was requesting that the police accompany her to make sure she could safely return to

her home.2

Among the officers who responded to the dispatch were Anderson Police Officers

Matt Jerrett ("Officer Jerrett") who brought with him his K9 dog, Nick Durr ("Officer

Durr"), and Joe Garrett ("Officer Garrett"), each named as a defendant in this lawsuit.

Prior to accompanying Mr. Colyer's mother-in-law to her home, the Officers had

obtained an arrest warrant for Mr. Colyer that had been issued by the Marion Superior

Court (Indianapolis) for felony charges that included Strangulation, Battery Resulting in

Serious Bodily Injury, and Intimidation. A prior attempt to serve this warrant, according

to information provided to the officers, had occurred at the same location four days prior,

but failed when Mr. Colyer had fled from the scene. The Anderson Police Dispatcher

2 According to Mr. Colyer, police used the call from his mother-in-law as a pretext for

attempting to locate him in order to retaliate against him and cause him harm while serving an

arrest warrant, in response to his having evaded service of the warrant a few days prior.

had forewarned the officers on November 14, 2018, that Mr. Colyer might be armed and

dangerous.

When the officers arrived at the 1418 Nelle Street accompanying Mr. Colyer's

mother-in-law, Officers Jerrett and Durr positioned themselves in an alley next to the

residence. Officer Garrett, along with various other officers, positioned themselves at the

door to the residence. Mr. Colyer's mother-in-law entered the home and returned quickly

outside to inform the officers that Colyer was upstairs. Mr. Colyer's wife, Sarah, was

also inside the residence, according to Mr. Colyer. Using her key, his mother-in-law re-

entered the residence from the front porch along with the officers. Officers Jerrett and

Durr who remained posted outside in the alley saw Mr. Colyer exit the house through a

back door, jump a fence and begin to run from the area. He explains that he was not

fleeing the police, he simply "did not want to be around [his] crazy mother-in-law" so he

"left … to avoid [her]." Dkt 139 at 23. Officers Jerrett (accompanied by his K9) and

Durr immediately took up pursuit, shouting instructions to Mr. Colyer to stop while also

identifying themselves as police.

Mr. Colyer does not dispute that he fled through the back door of the house into

the yard ("kennel area") and jumped a small fence, but he maintains that he never heard

any shouted commands from the officer to stop and never ran from them. In his brief in

opposition to the summary judgment motion, Colyer states: "I never ran from any

officers, no officers gave chase to me. I stopped and surrendered to Matt Jerrett as I was

running along side my neighbors [sic] house; once near the street I saw Jerrett and I

immediately stopped … and surrendered to Jerrett whom [sic] was standing at the corner

of my neighbors [sic] house with the dog at his left side. He did not notice me until I

yelled 'I give up.' That's when he sic's his dog on me for no reason, no warnings." Dkt.

139 at 1-2.

Continuing, Mr. Colyer maintains that "at the time I surrendered to Matt Jerrett,

Matt sic's his dog on me, then Matt kicks me around 4-5 times, he yells 'stop resisting' to

indicate to Nick Durr that Im [sic] 'resisting' to justify the excessive force." Dkt. 139 at

5-6. Further on in his brief, Mr. Colyer states that in response to the "stop resisting"

directive by Officer Jerrett, he replied, "'I'm not resisting." 10-seconds [sic] later [Officer]

Nick Durr arrives and kicks me directly in the left side of my nose, busting it, … while

their dog is biting my left arm, … pulling me into the street. I yelled 'I'm not resisting'

repeatly [sic] to the officers. Both defendants continued to kick me. I never resisted

them nor the dog. Their action[s] were unreasonable." Dkt. 139 at 9.

Mr. Colyer emphasizes that he never saw the officers until he surrendered to

Officer Jerrett and that the officers never spoke to him until he was kicked in his nose and

head, not his chest, first by Jerrett and then by Officer Durr, and there was no "foot

chase." Dkt at 19, 24, 30.

The police officers contend that when they saw Mr. Colyer running and jumping

the fence in the backyard, they called to him to stop and when he failed to do so, Officer

Jerrett released the K9, which apprehended Colyer. Having been advised that Mr. Colyer

might be armed, Officers Jerrett and Durr ordered Colyer to show his hands, and, when

he did not, Officer Durr applied a straight leg kick to Colyer's upper chest and face to

secure compliance. Mr. Colyer was then transported to the local hospital for treatment of

his injuries from the dog bites and the kick.

Thereafter Mr. Colyer was taken into custody and charged in the Anderson City

Court with the class A misdemeanor of Resisting Law Enforcement under Indiana Code

§ 35-44.1-3-1. On February 5, 2020, Mr. Colyer pled guilty to the resisting law

enforcement charge, was given a one year suspended sentence and placed on probation

for one year. Dkt. 121-1 at 75, 76.

On May 21, 2020, he filed his pro se complaint against the City of Anderson and

the three officers alleging that they jointly and severally used excessive force in effecting

his arrest, in violation of his rights guaranteed by the Fourth Amendment to the United

States Constitution, and that the City failed to supervise, train, or discipline the officers

for the unconstitutional conduct. Dkt. 1. Regarding his specific claims against Officer

Joe Garrett, Mr. Colyer states: "I cannot prove Joe Garrett kicked me, but as stated …, he

was present and failed to intervene." According to Mr. Colyer, "[w]hen Jerrett and Durr

stopped kicking me, Joe Garrett was there, next to Nick Durr. He may have kicked me."

Dkt 139 at 37. Included in the Complaint are pendent state law claims for assault and

battery and negligence. Thereafter, Mr. Colyer filed successive motions seeking

permission to amend his complaint, which were granted, culminating in the Third

Amended Complaint filed on March 25, 2022, (Dkt.89), which is now the operative

pleading.

Defendants filed for summary judgment on June 16, 2022, arguing that the

officers' use of force in apprehending and placing Mr. Colyer under arrest was reasonable

under the circumstances, and that, because Colyer cannot establish that it was objectively

unreasonable for the officers to have believed the force they used was lawful, all

defendant officers are entitled to qualified immunity. In addition, Colyer's plea of guilty

to the charge of resisting law enforcement which emanated from this encounter forecloses

his §1983 claims. As for the claims against Defendant Officer Joe Garrett, summary

judgment is sought on the grounds that Mr. Colyer has admitted that he does not know

whether Garrett in fact kicked him during the arrest. Defendants' argument attacking the

claims against the City is limited to a single line in their motion: "Since the Officers did

nothing wrong, the City likewise as a defendant cannot be held liable." The pendent state

law claims were not addressed at all in the motion for summary judgment.

Mr. Colyer opposes an entry of summary judgment on the grounds that material

facts are in controversy that can only be properly resolved by a jury after a trial and

because the officers have established no entitlement to qualified immunity. He also

resists Defendants' argument that his claims are foreclosed by his state court plea of

guilty and conviction for the criminal misdemeanor charge of resisting law enforcement.

The Defendants filed a reply brief on July 19, 2022. The motion is fully briefed and ripe

for a decision. We address each of these issues below.

Legal Analysis

I. Summary Judgment Standard

Summary judgment is appropriate where there are no genuine disputes of material

fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A court must grant a motion for

summary judgment if it appears that no reasonable trier of fact could find in favor of the

nonmovant on the basis of the designated admissible evidence. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247–48 (1986). We neither weigh the evidence nor evaluate

the credibility of witnesses, id. at 255, but view the facts and the reasonable inferences

flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip,

573 F. Supp. 2d 1090, 1097 (S.D. Ind. 2008).

II. Discussion

As discussed above, Defendants have moved for summary judgment on the federal

claims against them. We address Plaintiffs' claims against the individual defendants and

the City in turn below.

A. Section 1983 Claims Against Individual Defendants

The individual Defendants have moved for summary judgment on Mr. Colyer's

excessive force claims against them. The Fourth Amendment guarantees citizens the

right “to be secure in their persons … against unreasonable … seizures” of the person.

U.S. CONST. amend. IV. This includes the right to be free from an unreasonable seizure

conducted through the use of excessive force by law enforcement officers. When officers

have probable cause to make an arrest, as the individual officers here had, they are

prohibited under Fourth Amendment jurisprudence from "employing greater force than is

reasonably necessary to make the arrest." Abbott v. Sangamon Cnty., Ill., 705 F.3d 706,

724 (7th Cir. 2013) (citation and quotation marks omitted).

Whether the force employed by an officer in effecting a seizure is constitutionally

excessive depends on its “objective reasonableness,” which is judged “from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight,” and is considered in light of the specific facts and circumstances of that

particular case. Graham v. Connor, 490 U.S. 386, 396, 399 (1989) (citations omitted).

Factors that are relevant to the reasonableness inquiry include, but are not limited to, "the

severity of the crime, whether the arrestee poses an immediate threat to the safety of the

officers or others, and whether he or she is actively resisting or attempting to flee and

evade arrest." Abbott, 705 F.3d at 724. We therefore address the claims against the

Defendant police officers in this light.

Defendants argue that, when these factors are applied to the case at bar, the

objective reasonableness of the force they are alleged to have used against Mr. Colyer is

apparent. Officers were at the home of Mr. Colyer, in part based on his mother-in-law's

call to the police department requesting an escort to the residence because she was afraid

him. Defendants also possessed a warrant for Mr. Colyer's arrest from the Marion

Superior Court for felony counts of Intimidation Where Defendant Draws or Uses a

Deadly Weapon, and Battery Resulting in Serious Bodily Injury, both class 5 felonies,

and Strangulation, a class 6 felony. Mr. Colyer concedes that his outstanding arrest

warrant was for charges of domestic battery, intimidation, and pointing a firearm. Colyer

Dep. at 19. Additionally, prior to arriving at Mr. Colyer's home, the officers had been

told that Colyer was possibly armed and dangerous and that, a few days before, he had

fled from officers attempting to serve the warrant. These facts are all undisputed.

Mr. Colyer also does not dispute that, when officers arrived at the home on

November 14, he ran from the residence. At the time, Officer Jerrett and his K9 and

Officer Durr were positioned in the back of the residence and observed Mr. Colyer exit

the back door, jump over a small fence, and continue running on foot. Although Mr.

Colyer contends he was not running from the officers, but instead trying to avoid his

mother-in-law, given the fact that Officers Jerrett and Durr had no knowledge of his

intent to flea his mother-in-law and had been informed that Mr. Colyer had managed to

elude police officers a few days prior, a reasonable officer in their position could have

reasonably believed upon seeing him running from the residence directly after their

arrival that Mr. Colyer knew police were there to arrest him and that he was again trying

to escape.

It is at this point that the parties' stories diverge. According to Defendants, once

Officers Jerrett and Durr saw Mr. Colyer run from the residence, they immediately began

to pursue him, identified themselves as police officers, and commanded him to stop. The

officers claim that Mr. Colyer continued to flee even after he had been ordered to stop, at

which point Officer Jerrett released his K9 to assist in apprehending Mr. Colyer. Officer

Durr claims that once Mr. Colyer was apprehended, Colyer ignored commands from the

officers to show his hands and lie flat on the ground, even after Officer Jerrett attempted

to force him to lie flat, at which point Officer Durr administered a single straight leg kick

to Colyer's upper chest and face area to gain his compliance.

Mr. Colyer, in contrast, claims that, although he initially ran from the residence,

once he saw the officers, he yelled, "I give up," before Officer Jerrett released the K9.

Mr. Colyer claims that it was then that the K9 was released and bit him. According to

Mr. Colyer, after he had been subdued, Officers Jerrett and Durr kicked him repeatedly in

the face despite the fact that he was not resisting. Mr. Colyer claims that Officer Garrett

was present while Officers Jerrett and Durr were kicking Colyer and while he cannot

remember whether Officer Garrett kicked him or not, Garrett took no steps to intervene in

curtailing the physical abuse being applied against him.

At the summary judgment stage, we view the facts in the light most favorable to

the non-movant, here, Mr. Colyer. Defendants contend that, in this case, however,

because Mr. Colyer pled guilty to resisting arrest in connection with these events, he

cannot now dispute any of the facts underlying the charge to which he pled guilty. It is

well-established that Heck v. Humphrey, 512 U.S. 477 (1994), bars a plaintiff from

maintaining a § 1983 action where judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction. This means that "Heck forbids a prisoner in his

civil rights case to challenge a finding in his criminal … case that was essential to the

decision in that case; if he insists on doing that, the civil rights case must be dismissed"

without prejudice. Moore v. Mahone, 652 F.3d 722, 723 (7th Cir. 2011) (citation

omitted).

Mr. Colyer, therefore, cannot now deny that he resisted arrest in contradiction of

his conviction for that crime. But "[a] Section 1983 claim for excessive force where the

plaintiff has been convicted of resisting law enforcement does not automatically lead to

the conclusion that the plaintiff's claim is Heck barred." Brumitt v. Smith, No. 3:20-cv-

00260-TWP-MPB, 2023 WL 403964, at *4–5 (S.D. Ind. Jan. 25, 2023). A plaintiff may

claim, for example, "that the force used upon him was excessive in relation to his level of

resistance" or that he had stopped resisting at the time the excessive force was used

against him "without necessarily challenging his conviction for resisting law

enforcement." Id. That is what we understand Mr. Colyer to contend here: that although

he initially fled from the police, at the time officers released the K9 and repeatedly kicked

him in the face, he had stopped resisting and was complying with the officers' orders.

Subsection (a) of Indiana Code § 34-44.1-3-1 sets out the acts that constitute the

misdemeanor crime of resisting law enforcement, which include "flee[ing] from a law

enforcement officer after the officer has, by visible or audible means, … identified

himself or herself and ordered the person to stop …." IND. CODE § 35-44.1-3-1(a); see

also Thrash v. State, 88 N.E.3d 198, 205 (Ind. Ct. App. 2017) (recounting the acts that

constitute the crime of resisting law enforcement under Indiana law). Mr. Colyer could

therefore be guilty of resisting arrest based solely on his initial act of fleeing and failing

to stop when ordered to do so, but then have stopped resisting prior to the alleged use of

excessive force by the officers. Accordingly, his excessive force claim is not Heck-

barred as his version of the facts supporting his excessive force claim does not

necessarily imply the invalidity of his resisting arrest conviction.

Viewing the facts in the light most favorable to Mr. Colyer, as we are required to

do at this stage of the litigation, we cannot say that Officer Jerrett's and Officer Durr's

conduct was objectively reasonable as a matter of law in light of all of the circumstances.

If Officer Jerrett released his K9 dog on Mr. Colyer and allowed the dog to attack Colyer

after he had given himself up and/or Officers Jerrett and Durr did in fact kick Mr. Colyer

multiple times in the face after he was already subdued, a reasonable jury could find the

use of such force was excessive under the circumstances. See, e.g., Hayes v. City of

Indianapolis, No. 1:08-cv-006-DFH-JMS, 2009 WL 700232, at *4 (S.D. Ind. Mar. 16,

2009) (“It has long been 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.”) (citing

Priester v. Riviera Beach, 208 F.3d 919, 927 (11th Cir. 2000) (denying qualified

immunity to officer who allowed his dog to attack suspect who was lying on the ground

and not resisting); Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) (finding that force

that is reasonable while suspect poses threat is no longer reasonable once threat is no

longer present)). Moreover, because an individual's right not to be subjected to force

when subdued and complying with officers' orders was clearly established at the time of

Mr. Colyer's arrest, Officers Jerrett and Durr are not entitled to qualified immunity.

Mr. Colyer concedes, however, that he is not aware of whether Officer Garrett

kicked him and has adduced no other evidence in the record that would support a finding

that Officer Garrett used any force against him at all. Accordingly, Officer Garrett is

entitled to summary judgment in his favor on Mr. Colyer's excessive force claim.

With regard to Mr. Colyer's failure-to-intervene claim against Officer Garrett,

there is a genuine issue of material fact regarding whether Garrett was present at the time

Mr. Colyer alleges Officers Jerrett and Durr were using excessive force against him.

While Defendants claim that Officer Garrett did not arrive on the scene until after the

alleged excessive force was used against Mr. Colyer, Colyer contends that Garrett was

present while Officers Jerrett and Durr were allegedly repeatedly kicking him after he

was subdued. To succeed on a claim for failure to intervene, a plaintiff must prove that

the defendant "(1) knew that a constitutional violation was committed; and (2) had a

realistic opportunity to prevent it." Gill v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir.

2017) (citation omitted). Because we have held, for the reasons detailed above, that

genuine issues of material fact exist precluding summary judgment in Officers Jerrett's

and Durr's favor on Mr. Colyer's excessive force claim, Colyer's claim that Officer

Garrett was present and failed to intervene to prevent the use of that unconstitutional

force therefore also survives summary judgment.

In sum, the conflicting testimony between Mr. Colyer and the individual

defendants does not conclusively establish whether Officers Jerrett and/or Durr applied

unnecessary force to Colyer; whether Colyer was complying with the officers' orders at

the time force was used against him; and whether Officer Garrett was present at that time.

It is not within the Court's purview to make credibility determinations or weigh the

evidence at the summary judgment stage to resolve these issues and a jury will therefore

be required.

B. Monell Claim Against the City

In addition to his § 1983 claims against the individual officers, Mr. Colyer also

alleges a claim against the City under Monell v. Department of Social Services of City of

New York, 436 U.S. 658 (1978), alleging that the City failed to properly train, supervise,

and/or discipline the individual defendants. The City has moved for summary judgment

on this claim based solely on its contention that there was no underlying constitutional

violation, and thus, no failure to train. Having found that genuine issues of material fact

preclude summary judgment in favor of the individual defendants on Mr. Colyer's

excessive force claims, summary judgment in favor of the City is not warranted on this

basis.

However, a municipality can be held liable under a theory of failure to train only

"if it has actual knowledge of a pattern of criminally reckless conduct and there is an

obvious need to provide training to avert harm, even if the prior acts have yet to result in

tragedy." Flores v. City of South Bend, 997 F.3d 725, 733 (7th Cir. 2021) (citations

omitted). Mr. Colyer has failed to adduce any evidence that the City was aware of a

pattern of criminally reckless conduct on the part of the individual defendants such that

the need for additional training was obvious. "Summary judgment is the put up or shut

up moment in a lawsuit." Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010)

(quoting Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003), reh'g

denied). Mr. Colyer cannot rely solely on the allegations in his complaint to survive

summary judgment. Id. Accordingly, the City is entitled to summary judgment in its

favor on Mr. Colyer's Monell claim.

III. Conclusion

For the reasons detailed above, Defendants' Motion for Summary Judgment [Dkt.

119] is GRANTED IN PART as to Plaintiff's excessive force claim against Defendant

Garrett and Monell claim against the City, and DENIED IN PART as to Plaintiff's

excessive force claims against Defendants Jerrett and Durr and failure to intervene claim

against Defendant Garrett. Because Defendants did not move for summary judgment on

Plaintiffs’ state law claims against them, those claims also survive. The case shall

proceed accordingly.

IT IS SO ORDERED.

Date: 3/30/2028 Poth Gaus Baler

SARAH EVANS BARKER, JUDGE

United States District Court

Southern District of Indiana

Distribution:

MARK A. COLYER

3613 Oak Lawn Drive

Apt. H

Anderson, IN 46016

Timothy Sean Lanane

Timothy S. Lanane, Attorney at Law

tslanane@sbcglobal.net

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