SAPP v. EVANSVILLE POLICE DEPARTMENT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

ANTHONY S. SAPP, )

)

Plaintiff, )

)

v. ) No. 3:21-cv-00108-JRS-MJD

)

EVANSVILLE POLICE DEPARTMENT, )

D. RICHARDSON Det., )

SIDES Det., )

ARBAUGH Sgt., )

)

Defendants. )

Order on Motion for Summary Judgment

I. Introduction

This is an excessive force and medical indifference case arising from a February

18, 2021, arrest. The case is ripe for consideration of summary judgment. Pro se

Plaintiff Sapp has filed a Motion of Discovery, (ECF No. 62), and a Motion for

Dispositive, (ECF No. 65), which, liberally construed, seem to invite a summary

judgment ruling in his favor, without advancing facts or legal arguments. Also before

the Court is Defendants' Motion for Summary Judgment. (ECF No. 68.) Sapp, who

has been notified of the Rule 56 procedure, (Notice to Pro Se Litigant, ECF No. 71),

has not responded.

II. Legal Standard

The legal standard on summary judgment is well established:

Summary judgment is appropriate "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). "A genuine dispute

of material fact exists 'if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.'" Skiba [v. Illinois Cent. R.R.

Co., 884 F.3d 708, 717 (7th Cir. 2018)] (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 [] (1986)). A theory "too divorced from the

factual record" does not create a genuine issue of material fact. Id. at

721. "Although we construe all facts and make all reasonable inferences

in the nonmoving party's favor, the moving party may succeed by

showing an absence of evidence to support the non-moving party's

claims." Tyburski v. City of Chicago, 964 F.3d 590, 597 (7th Cir. 2020).

Marnocha v. St. Vincent Hosp. & Health Care Ctr., Inc., 986 F.3d 711, 718 (7th Cir.

2021). The Court applies that standard here.

Sapp did not respond to Defendants' motion for summary judgment. Accordingly,

facts alleged in Defendants' motion are "admitted without controversy" so long as

support for them exists in the record. S.D. Ind. L.R. 56-1(f); see S.D. Ind. L.R. 56-1(b)

(party opposing judgment must file response brief and identify disputed facts).

However, "[e]ven where a non-movant fails to respond to a motion for summary

judgment, the movant still has to show that summary judgment is proper given the

undisputed facts." Robinson v. Waterman, 1 F.4th 480, 483 (7th Cir. 2021) (cleaned

up).

When reviewing cross-motions for summary judgment, all reasonable

inferences are drawn in favor of the party against whom the motion at issue was

made. Valenti v. Lawson, 889 F.3d 427, 429 (7th Cir. 2018) (citing Tripp v. Scholz,

872 F.3d 857, 862 (7th Cir. 2017)). The existence of cross-motions for summary

judgment does not imply that there are no genuine issues of material fact. R.J.

Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, Local Union

150, AFL-CIO, 335 F.3d 643, 647 (7th Cir. 2003).

III. Facts

The Court relies on Defendants' statement of facts, because Sapp has failed to

controvert them and, besides, video footage of the incident puts some of them beyond

reasonable dispute. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (district court

has no duty to hunt for factual dispute where none raised by litigants); Gamblin v.

Groves, 155 F. App'x 921, 923 (7th Cir. 2005) (district court may reasonably conclude

motion for summary judgment is unopposed where potentially relevant pro se filings

fail to cite facts); Smith v. Finkley, 10 F.4th 725, 730 (7th Cir. 2021) (no need to

"indulge" stories contradicted by video evidence).

In February 2021 Sapp was out on bond for state gun and drug charges. (Sapp

Dep. 7:23–24, ECF No. 68-1.) Detective Richardson, with the Evansville Police

Department, began investigating Sapp when an anonymous tip alleged Sapp to have

a stolen car. (Richardson Decl. 1–2, ECF No. 68-2.) Richardson found the stolen car

in front of Sapp's house and had the car impounded. (Id.) Richardson then

researched Sapp and learned he had pending charges, a violent criminal history, and

a gang affiliation. (Id.) When the same tipster called on February 18 and alleged

Sapp had a second stolen car—this time a blue Dodge Charger—with him in

Evansville, Richardson went to investigate. (Id. at 2–3.)

Richardson found Sapp driving the blue Charger and followed him. Another

officer, Detective Sides, joined. When Sapp's car got stuck in the snow, Richardson

and Sides went up to his front driver side with guns drawn. (Id. at 3.) They shouted

at him to turn off the car. Sapp revved the engine and rocked the car back and forth

trying to get out of the snow. (Id. at 4.) When Sapp got the car dislodged, he drove

into Richardson, who fired a single shot through the windshield, hitting Sapp in the

shoulder. (Id. at 4–5; Civilian Video at 00:11–00:24, ECF No. 69.)

Sides then opened the car door and ordered Sapp to exit the vehicle. (Richardson

Decl. at 4–5, ECF No. 68-2; Civilian Video at 00:25–00:27, ECF No. 69.) Sapp did not

comply, and, after more than ten seconds of standoff, Sides began to pull Sapp from

the car. (Richardson Decl. at 5, ECF No. 68-2; Civilian Video at 00:25–00:48, ECF

No. 69.)

Sapp came out abruptly with his right fist raised. (Sides Aff. ¶ 13, ECF No. 68-3;

Civilian Video 1:03–1:04, ECF No. 69.) Sides and Sapp then fell grappling to the

ground. Other officers, who had arrived on the scene, joined the fray. The videos

show a confused brawl: Sapp appears to tear away from Richardson, only to fall back

across him on the ground. Officer Arbaugh repeatedly struck Sapp between the

shoulder blades with his elbow; Officer Doane arrived and attempted to use a Taser

on Sapp; meanwhile Sides wrestled with Sapp's legs, which were flailing; Officer

Slaton wrested Sapp's left arm out from under him and, prying it up against

resistance, handcuffed him. As soon as the handcuffs were on, the fight stopped.

(Doane Bodycam 00:28–1:14, ECF No. 69; Slaton Bodycam 1:34–2:10, ECF No. 69;

Richardson Aff. ¶¶ 25–28, ECF No. 68-2 (describing Sapp resistance); Arbaugh Aff.

¶¶ 17–18, ECF No. 68-4 (same); Doane Aff. ¶¶ 10–12, ECF No. 68-6 (same); Slaton

Aff. ¶¶ 8–10, ECF No. 68-9 (same); Kiely Aff. ¶ 7, ECF No. 68-5 (civilian witness

averring that as Sapp came out of the car, "[he] was clearly fighting the two men"

Richardson and Sides).)

Sides gave Sapp a cursory medical review. (Sides Aff. ¶¶ 16–17, ECF No. 68-3.)

The Fire Department and paramedics arrived shortly thereafter, and within ten

minutes from the end of the fight Sapp was on his way to the hospital in an

ambulance. (Sapp Dep. 19:7-21; ECF No. 68-1.)

IV. Discussion

Defendants raise a qualified immunity defense. "Qualified immunity shields

government officials from civil liability for conduct that 'does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.'" Cibulka v. City of Madison, 992 F.3d 633, 638 (7th Cir. 2021) (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009)). "Whether qualified immunity applies

turns on two questions: first, whether the facts presented, taken in the light most

favorable to the plaintiff, describe a violation of a constitutional right; and second,

whether the federal right at issue was clearly established at the time of the alleged

violation." Smith v. Finkley, 10 F.4th 725, 737 (7th Cir. 2021) (citing Tolan v. Cotton,

572 U.S. 650, 655–56 (2014) (per curiam)). If the answer to either question is "no,"

qualified immunity applies. Id. The Court may take those questions in either order.

Id. Finally, and critically to this case, "once a defendant claims qualified immunity,

the burden is on the plaintiff to show that the right claimed to have been violated was

clearly established." Cibulka, 992 F.3d at 640 (quoting Marshall v. Allen, 984 F.2d

787, 797 (7th Cir. 1993)).

Here, Sapp has not responded to the summary judgment motion and has not

undertaken to show a clearly established right was violated. Without any showing

from Sapp, the qualified immunity defense stands as raised, and the Court need go

no further into the matter. Defendants' Motion for Summary Judgment, (ECF No.

68), is therefore granted.

Even if the Court were to excuse Sapp from meeting his burden, qualified

immunity is correct on the merits.

Defendants were entitled to use reasonable force to arrest Sapp, whom they had

probable cause to believe was driving a stolen car. Smith v. Finkley, 10 F.4th 725,

736 (7th Cir. 2021). And when Sapp persisted in revving his engine, moving the car

back and forth, and steering the car toward the police officers on scene, Richardson's

single shot was not "clearly established" to have been an unreasonable use of force—

rather the opposite. See Tolliver v. City of Chicago, 820 F.3d 237, 246 (7th Cir. 2016)

(fourteen shots was a "reasonable" response, entitled to qualified immunity, to a

driver who advanced his car toward officers after verbal warnings to stop); Smith v.

Adams, 804 F. App'x 390, 393 (7th Cir. 2020) (Evansville police officers reasonably

shot at tires of suspect who was potentially armed, disobeyed verbal commands, and

accelerated car precipitously); Est. of Green v. City of Indianapolis, 854 F. App'x 740,

745 (7th Cir. 2021) (where no evidence that suspect had exited vehicle, district court

right to conclude that officers reasonably used deadly force to subdue driver known

to be dangerous). Likewise, when Sapp refused to exit the vehicle after commands to

do so, emerged belligerently, and struggled with police officers on the ground, it was

not "clearly established" that the police efforts to gain compliance—with strikes,

holds, and a Taser—were unreasonable. Smith, 804 F. App'x at 393 (Evansville police

officers reasonably pulled suspect out of car, wrestled him to ground, and used a Taser

when he refused verbal commands to exit a vehicle and began to struggle with

officers); United States v. Norris, 640 F.3d 295, 303 (7th Cir. 2011) (use of Taser

reasonable on noncompliant, potentially armed suspect); Dockery v. Blackburn, 911

F.3d 458, 468 (7th Cir. 2018) (continued use of force, including Taser, reasonable until

suspect came into compliance).

Finally, Sapp's denial of medical care claim is without merit, because no

constitutional right was violated. The medical responders were on scene straight

away. Sallenger v. City of Springfield, Ill., 630 F.3d 499, 503 (7th Cir. 2010).

V. Conclusion

Sapp has not responded to Defendants' Motion for Summary Judgment, so their

version of the facts and their assertion of qualified immunity go unchallenged. The

Motion, (ECF No. 68), must be and is granted. The Court is all the more willing to

reach that conclusion because apparently reliable video evidence supports

Defendants' asserted facts and because case law upholds the reasonableness of

Defendants' conduct under the circumstances.

Sapp's Motion of Discovery, (ECF No. 62), and Motion for Dispositive, (ECF No.

65), are denied.

Because qualified immunity shields Defendants from all Sapp's claims, those

claims are dismissed with prejudice, and this case is over. Final judgment shall

issue separately.

SO ORDERED.

Date: 08/25/2023

JAMES R. SWEENEY II, JUDGE

United States District Court

Southern District of Indiana

Distribution:

ANTHONY S. SAPP

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