Sow v. Fortville Police Department

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2188

M OUHAMADOU M. S OW,

Plaintiff-Appellant,

v.

F ORTVILLE P OLICE D EPARTMENT, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:08-0983—Richard L. Young, Chief Judge.

A RGUED D ECEMBER 8, 2010—D ECIDED F EBRUARY 11, 2011

Before F LAUM and E VANS, Circuit Judges, and

M C C USKEY, District Judge. Œ

M CC USKEY, District Judge. Plaintiff-Appellant, Mouhama-

dou M. Sow, was arrested for forgery based upon infor-

mation that he tried to cash a fake money order. Plaintiff

Œ

The Honorable Michael P. McCuskey, United States District

Court for the Central District of Illinois, sitting by designation.

2 No. 10-2188

was later able to produce a receipt for the money order

and the charge against him was dismissed.

On July 24, 2008, he filed a Complaint in the Southern

District of Indiana. Plaintiff named as Defendants: the

United States of America, U.S. Postal Employees

Lynnette Hertzer and Brenda Rains, Fortville Police

Department, McCordsville Police Department, and

Officer Michael Fuller of the Fortville Police Department

in his individual and official capacities. Plaintiff’s action

was brought under 42 U.S.C. §§ 1983, 1985, and 1986.

Plaintiff also alleged numerous state law claims, asserting

that the district court had supplemental jurisdiction

over those claims.

On December 17, 2008, the district court dismissed the

U.S.A., Hertzer and Rains from the lawsuit. On April 13,

2010, the district court entered two orders and granted

summary judgment in favor of the three remaining De-

fendants—the Fortville Police Department, Fuller, and

the McCordsville Police Department. Plaintiff has

appealed from the final orders of the district court which

entered summary judgment. We affirm.

FACTS

Plaintiff is from Dakar, Senegal, West Africa. He has

been a citizen of the United States since 1996. In Novem-

ber 2007, Plaintiff was involved in selling African items

like old masks, statues and clothing. As part of his busi-

ness, Plaintiff purchased merchandise from Africa and

sold the merchandise all over the United States at state

fairs, county fairs and festivals.

No. 10-2188 3

Plaintiff owned a wrecked Toyota Sequoia. His friend,

Biran Tall, told him that he could get spare parts he

needed for the vehicle in Fortville, Indiana. On Novem-

ber 19, 2007, Plaintiff came to Fortville in a custom van

which had tinted windows and a cardboard temporary

plate posted in the back window. Before coming to

Indiana, Plaintiff had purchased money orders from the

Eastland Post Office in Columbus, Ohio. The price for

the parts Plaintiff needed was $775 and Plaintiff at-

tempted to purchase the parts with a $1000 money order.

The dealer did not have sufficient money for change

and directed Plaintiff to the Fortville Post Office.

At the Fortville Post Office, Plaintiff waited patiently

in line and then presented the $1000 money order to a

female clerk, Brenda Rains. Rains held the money order

up and told Plaintiff that it was fake because the serial

numbers were not right and the watermark did not resem-

ble Benjamin Franklin, the image present on all official

money orders. Rains thought the watermark looked like

Jesus Christ. Plaintiff advised Rains that he purchased

the money order at a U.S. Post Office in Columbus, Ohio.

Rains went to the back office to show it to her super-

visor. When she came back she told Plaintiff they

did not have enough cash to negotiate the money order.

Rains told Plaintiff there was a post office nearby in

McCordsville and gave Plaintiff directions how to get

there. While Rains was talking to Plaintiff, another postal

employee, Lynette Hertzer, searched the parking lot to

obtain a description of Plaintiff’s vehicle. After Plaintiff

left, Hertzer called the Fortville police “to report [her]

4 No. 10-2188

suspicions” and Hancock County dispatched a radio

transmission regarding the report.

Officer Fuller of the Fortville Police Department

received the transmission and soon arrived at the post

office. The employees informed Fuller that an individual

had attempted to pass a $1000 money order which ap-

peared to be fake. Fuller was also informed that Plaintiff

had just left and was traveling to the McCordsville

Post Office to attempt to cash the money order. Fuller

passed this information to the McCordsville Police De-

partment by radio and also provided a description of

Plaintiff’s van, which he had been given at the post office.

McCordsville Police Officer Michael Schwamberger

stopped Plaintiff’s van in McCordsville. Schwamberger

stopped the vehicle because it did not appear to have

a proper registration plate and because it fit the descrip-

tion of the vehicle provided by Fuller. Officer Scott

Prather of the McCordsville Police Department arrived

at the scene during the stop. The stop was videotaped

and the videotape showed that the stop lasted more

than one hour. During the stop, Plaintiff produced a

Florida Driver’s License bearing a New York address

and did not produce a vehicle registration.

Fuller arrived on the scene and spoke to Plaintiff, who

produced the $1000 money order that he had tried to

cash at the post office. Fuller and Schwamberger both

inspected the money order and concluded the water-

mark did not resemble Ben Franklin but rather looked

like Jesus Christ. They asked Plaintiff for a receipt for the

money order and Plaintiff was unable to produce one.

No. 10-2188 5

Plaintiff did produce a backpack full of other money

order receipts and other documentation. During the

stop, Fuller called post office headquarters in Baltimore,

Maryland. Fuller was informed that the serial numbers

from the $1000 money order were not in a format used

or recognized by the U.S. Post Office. Fuller also

called Craig Jones, the postal inspector in Indianapolis,

who told him the same thing. Jones said that, due to the

watermark not being the picture of Benjamin Franklin,

the money order was fake. Jones also told Fuller that

the federal government would not prosecute the case

because of the small amount of money involved. Jones

concluded by saying that the matter would have to be

handled by local authorities.

Plaintiff gave Fuller a $500 money order that he had

purchased on the same day and at the same time as the

$1000 money order, along with a receipt for the $500

money order. The receipt included the telephone

number for the Columbus, Ohio post office where the

money order was purchased. Fuller failed to call the

Columbus, Ohio post office. In addition, according to

Plaintiff, the officers did not allow him to continue

looking in his back pack for the receipt for the $1000

money order. Fuller did contact Jerry Bean, the Chief

Deputy Prosecutor for Hancock County, and was advised

to arrest Plaintiff for forgery. Plaintiff was read his

Miranda rights and handcuffed.

Plaintiff testified that the officers searched his van

without permission. Moreover, according to Plaintiff,

the video shows that the officers searched the van.

Plaintiff testified that he was wearing three or four

6 No. 10-2188

African protection belts that he received from his

parents and believed were important to protect him

from bad things like accidents. During the arrest,

Schwamberger grabbed and cut the belts and threw

them into Plaintiff’s van. Plaintiff was very upset

because he did nothing wrong and this was the first

time he had had any trouble with the police. Plaintiff

testified that he was pushed into the police car and hit

his head as he was pushed and thrown into the vehicle.

He testified that he temporarily lost consciousness.

Plaintiff testified that he later suffered from headaches

and purchased over-the-counter pain medication and

sought psychiatric treatment and traditional African

treatment when he returned to Senegal two or three

weeks later. Plaintiff also testified that the handcuffs

were too tight and painful. Plaintiff said that he com-

plained to Fuller once that the handcuffs were too tight

and Fuller refused to loosen them.

Following the arrest, Schwamberger transported

Plaintiff to the McCordsville Post Office. Fuller met them

there in his own vehicle. Fuller and Schwamberger

spoke to the post office employees at McCordsville

who were of the opinion that the money order was coun-

terfeit. These postal employees provided the officers

with an official money order. The officers compared it to

the $1000 money order and concluded that the water-

marks were different. Fuller subsequently transported

Plaintiff to the Hancock County Jail. Plaintiff did not

complain to jail officials or receive treatment at the jail

for a bump on his head or handcuff pain. Plaintiff was

No. 10-2188 7

held for about 48 hours until his friends and family col-

lected money and posted his bond.

After Plaintiff was released from jail, he found the

receipt for the $1000 money order and hired counsel. The

criminal charge against Plaintiff was subsequently dis-

missed.

In the order granting summary judgment to Fuller and

the Fortville Police Department, the district court found:

(1) there was ample evidence providing probable cause

to arrest Plaintiff so his false arrest claim failed; (2) Plain-

tiff’s excessive force claim failed because he com-

plained about his handcuffs only once and did not com-

plain to any officer about his bumped head; (3) there

was no evidence to support Plaintiff’s claim of racial

profiling under the Equal Protection Clause of the Four-

teenth Amendment; (4) Plaintiff’s claim of conspiracy

under §§ 1985 and 1986 failed because it was based on

nothing but conjecture and speculation; (5) the Fortville

Police Department was not a proper party because it

lacked the capacity to sue or be sued; and (6) Plaintiff

did not respond to the arguments regarding his state

law claims, except for his claim of negligent supervision,

which failed because Plaintiff did not sue the proper

party, the Town of Fortville.

The district court also stated that there was no merit to

Plaintiff’s negligent supervision claim, which was really

a failure to train claim. The court concluded there was

no evidence that Fuller engaged in racial profiling at the

time he investigated and arrested Plaintiff. The court

further concluded that the evidence showed Fuller was

8 No. 10-2188

in fact trained regarding racial profiling at the police

academy. Because of these conclusions, the district court

did not reach the issue of qualified immunity.

The district court granted summary judgment to the

McCordsville Police Department because it found the

police department was not a proper party in this case.

Following the two orders granting summary judgment,

the case was terminated, and Plaintiff appealed.

ANALYSIS

Plaintiff has raised four issues on appeal: (1) whether

the district court improperly considered hearsay testi-

mony when determining that the police officers had

probable cause to arrest him on charges of committing

forgery under Indiana law; (2) whether the district

court erred by granting summary judgment on his claims

that he was arrested without probable cause in violation

of his Fourth Amendment rights against unreasonable

searches and seizures and his Fourteenth Amendment

rights to equal protection; (3) whether the district court

erred when it granted summary judgment in connection

with his claims under §§ 1985 and 1986; and (4) whether

the district court erroneously held that Plaintiff failed

to discuss his state law claims thus granting summary

judgment on those claims.

We review a district court’s order granting summary

judgment de novo. Tibbs v. City of Chicago, 469 F.3d

661, 663 (7th Cir. 2006). In doing so, this court construes

all facts and reasonable inferences in favor of the non-

No. 10-2188 9

moving party. Stainback v. Dixon, 569 F.3d 767, 770 (7th Cir.

2009). “Summary judgment is appropriate when there

is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law.”

Antonetti v. Abbott Labs., 563 F.3d 587, 591 (7th Cir. 2009),

citing Fed. R. Civ. P. 56(c) (Rule 56 was amended, effective

December 1, 2010, and the standard is now included

in Rule 56(a)).

In a § 1983 case, the plaintiff bears the burden of proof

on the constitutional deprivation that underlies the

claim, and must present sufficient evidence to create

genuine issues of material fact to avoid summary judg-

ment. McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).

The district court entered summary judgment in favor of

the McCordsville Police Department based on the court’s

finding that it was not a proper party in this action. The

district court also concluded that the Fortville Police

Department was not a suable party. We agree that the

McCordsville Police Department and the Fortville Police

Department were not proper parties. The United States

Supreme Court has instructed that local government

liability under § 1983 “is dependent on an analysis of state

law.” McMillian v. Monroe County, 520 U.S. 781, 786 (1997).

Under Indiana law, a “[m]unicipal corporation” is a

“unit, . . . or other separate local governmental entity

that may sue and be sued.” Ind. Code § 36-1-2-10. A

“ ‘[u]nit’ means county, municipality, or township,” Ind.

Code § 36-1-2-23, and a “[m]unicipality” is a “city or

town,” Ind. Code § 36-1-2-11. Thus, the Indiana statutory

scheme does not grant municipal police departments

10 No. 10-2188

the capacity to sue or be sued. See Martin v. Fort Wayne

Police Dep’t, 2010 WL 4876728, at *3 (N.D. Ind. 2010).

Therefore, the district court properly concluded that

the McCordsville Police Department and the Fortville

Police Department are not suable entities.

Although Plaintiff did not raise this as one of his listed

issues on appeal, he has argued that the Town of

McCordsville and Town of Fortville can be found

liable in this case. As to the Town of McCordsville,

Plaintiff argued that it can be liable because two of its

officers were involved in Plaintiff’s arrest. This argument

is not persuasive. The Town of McCordsville was not

named as a party nor were either of the McCordsville

police officers, in any capacity. Therefore, the district

court properly entered summary judgment in favor of

the McCordsville Police Department.

As to the Town of Fortville, Plaintiff argued that it can

be liable because Fuller was sued in his individual and

official capacities. Plaintiff is correct that he sued Fuller

in his official capacity and an official capacity suit is

another way of pleading an action against an entity of

which the officer is an agent. See Kentucky v. Graham, 473

U.S. 159, 165-66 (1985), citing Monell v. New York City

Dep’t of Social Servs., 436 U.S. 658, 690 n.55 (1978). There-

fore, Plaintiff’s official capacity suit against Fuller can be

treated as a suit against the Town of Fortville. Neverthe-

less, we conclude that Plaintiff has not provided evidence

which would provide a basis for liability on the part of

the Town of Fortville under Monell. As thoroughly dis-

cussed below, Plaintiff has not shown that he suffered

No. 10-2188 11

a constitutional deprivation. Accordingly, Plaintiff

has not shown that a constitutional deprivation was

caused by an official policy or custom, which is neces-

sary for municipal liability under Monell. See Monell,

436 U.S. at 694.

With this preliminary issue out of the way, we will

now discuss each of the issues raised by Plaintiff in this

appeal.

I. Objection to Hearsay Evidence

Plaintiff first argues that the district court should

have stricken from the record evidence of statements

made to Fuller by the post office headquarters in

Baltimore, Maryland, by Craig Jones, by Deputy Prosecu-

tor Bean and by the post office employees who were

consulted regarding the validity of the $1000 money

order. Plaintiff insists the evidence regarding state-

ments made by third parties is inadmissible hearsay

which could not be considered in ruling on the motions

for summary judgment.

Plaintiff is correct that a court may consider only admis-

sible evidence in assessing a motion for summary judg-

ment. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009),

citing Haywood v. Lucent Techs., Inc., 323 F.3d 524, 533 (7th

Cir. 2003). However, we conclude that the district court

properly considered the statements made by third

parties to Fuller in determining whether there was proba-

ble cause for the arrest. The statements were not offered

for their truth, but to show the basis for Fuller’s decision

12 No. 10-2188

to arrest Plaintiff. “The determination of whether an

arresting officer has probable cause to arrest an alleged

offender turns on whether a reasonable person in the

officer’s position would have probable cause to believe

that an offense has been committed.” Woods v. City of

Chicago, 234 F.3d 979, 987 (7th Cir. 2000). Therefore, the

inquiry “depends upon whether the facts and circum-

stances communicated to the arresting officer at the time

of the arrest would warrant a reasonable officer in

holding such a belief.” Id. at 987; see also Thompson v.

Wagner, 319 F.3d 931, 934 (7th Cir. 2003) (probable cause

is determined by “the facts and circumstances within

[the officer’s] knowledge at the time of the arrest”). It is

therefore proper for the district court to consider state-

ments made to the officers to determine “the effect that

they would have upon the arresting officers when com-

municated to them by a presumptively reliable citizen.”

Woods, 234 F.3d at 987.

II. Summary Judgment on § 1983 claims

Plaintiff has presented detailed arguments regarding

the length of the traffic stop, the search of his vehicle

and other aspects of his treatment during his arrest.

A. Waiver of claim regarding search

Defendants have pointed out that Plaintiff did not

include a claim in his complaint regarding the search of

his vehicle. Therefore, because it was not raised as a

claim, the district court did not discuss the search in

No. 10-2188 13

its orders granting summary judgment for Defendants.

“It is axiomatic that issues and arguments which were

not raised before the district court cannot be raised for the

first time on appeal.” Keck Garrett & Assocs., Inc. v. Nextel

Commc’ns, Inc., 517 F.3d 476, 487 (7th Cir. 2008), quoting

Boyers v. Texaco Ref. & Mktg., Inc., 848 F.2d 809, 811-12 (7th

Cir. 1988). Consequently, the constitutionality of any

search of Plaintiff’s vehicle is not an issue before this court.

B. Unlawful arrest claim

Plaintiff did claim that he was unlawfully arrested. The

constitutionality of a warrantless arrest for a criminal

offense turns on the existence of probable case for the

arrest. Woods, 234 F.3d at 992. “Probable cause is an

absolute bar to a § 1983 claim for false arrest.” McBride v.

Grice, 576 F.3d 703, 707 (7th Cir. 2009). “A police officer

has probable cause to arrest if a reasonable person

would believe, based on the facts and circumstances

known at the time, that a crime had been committed.”

Id. at 707, citing Beck v. Ohio, 379 U.S. 89, 91 (1964).

Plaintiff insists that Fuller intentionally disregarded

readily available and pertinent information regarding

the origin of the money order. Plaintiff argues Fuller had

a receipt containing the phone number of the post office

in Ohio where the money order was purchased but

rejected Plaintiff’s request that he contact the Ohio post

office. At oral argument, Plaintiff’s counsel cited BeVier

v. Hucal, 806 F.2d 123 (7th Cir. 1986), to support his argu-

ment that Fuller should have called the Ohio post office

14 No. 10-2188

as part of his investigation. We do not agree that

Plaintiff’s arrest was unlawful because of Fuller’s failure

to contact the Ohio post office.

Based upon all of the information Fuller received from

various sources, he had ample reason to conclude that

the $1000 money order in Plaintiff’s possession was

fake and reasonably concluded that Plaintiff had com-

mitted the offense of forgery. When an officer receives

information from a third party whom it seems rea-

sonable to believe is telling the truth, the officer has

probable cause to effectuate an arrest. See Kelley v.

Myler, 149 F.3d 641, 647 (7th Cir. 1998). In this case,

Fuller received information from employees at the

Fortville Post Office, from the post office headquarters

in Baltimore, Maryland, and from the postal inspector

in Indianapolis. Fuller had every reason to believe that

these people were giving him truthful, accurate infor-

mation. Therefore, it was reasonable for Fuller to

believe that no further action was necessary on his part.

As this court has noted, “ ‘[p]robable cause does not

depend on the witness turning out to have been right;

it’s what the police know, not whether they know the

truth, that matters.’ ” Id. at 647, quoting Gramenos v. Jewel

Cos., Inc., 797 F.2d 432, 439 (7th Cir. 1986). Also, in addi-

tion to the information received from these sources,

Fuller relied on his own observations and the fact that

Plaintiff could not produce a receipt for the $1000 money

order.

We conclude that, because Fuller had probable cause to

arrest Plaintiff, he was not required to contact the Ohio

post office as Plaintiff requested. “An officer should

No. 10-2188 15

pursue reasonable avenues of investigation and may

not close his eyes to facts that would clarify the situa-

tion, but once an officer has established probable cause,

he may end his investigation.” McBride, 576 F.3d at 707.

The Fourth Amendment imposes no duty to investigate

whether a defense is valid. Id. at 707.

We also conclude that BeVier, the case relied on by

Plaintiff, is distinguishable from the case at hand and

does not support Plaintiff’s argument. In BeVier, the

plaintiffs were arrested and charged with child neglect,

even though the police officer did not question the

babysitter watching the children or the parents about the

children’s condition. BeVier, 806 F.2d at 126-27. This court

held that the police officer did not have probable cause

to arrest the plaintiffs, noting that he did not obtain

information which was necessary before concluding

that the plaintiffs had intentionally neglected their chil-

dren. Id. at 127-28. The court stated that “[r]easonable

avenues of investigation must be pursued especially

when, as here, it is unclear whether a crime had even

taken place.” Id. at 128.

Here, in this case, Fuller received information from

sources he reasonably believed were reliable that the

money order Plaintiff had attempted to cash at the

Fortville Post Office was fake. From this evidence, we

conclude that there was no reason for any uncertainty

regarding whether a crime had taken place. Accordingly,

Fuller had probable cause to arrest Plaintiff and was not

required to pursue any further investigation.

16 No. 10-2188

C. Equal Protection claim

We also agree with the district court’s finding that

Plaintiff has not shown that he was the victim of racial

profiling in violation of his right of equal protection.

Racial profiling, or selective enforcement of the law, is

a violation of the Equal Protection Clause. See Chavez v.

Ill. State Police, 251 F.3d 612, 635 (7th Cir. 2001). However,

in order to survive summary judgment on this claim,

Plaintiff was required to provide evidence that Fuller

was “motivated by a discriminatory purpose.” See id. at

635-36; see also Nabozny v. Podlesny, 92 F.3d 446, 453-54

(7th Cir. 1996). We agree that there is no evidence

in the record which would support a finding of racial

profiling by Fuller.

D. Excessive Force claim

We further conclude the district court properly deter-

mined that Plaintiff has not shown the existence of a

genuine issue of material fact as to his claim of excessive

force. Plaintiff argues he was the victim of the excessive

use of force because he was out in the cold during the

lengthy stop, he bumped his head while being pushed

into the squad car following his arrest, and the handcuffs

were too tight.

All claims that law enforcement officers have used

excessive force in the course of an arrest, investigatory

stop, or other seizure are analyzed under the Fourth

Amendment and its “reasonableness” standard. Graham

v. Connor, 490 U.S. 386, 395 (1989). “Law enforcement is a

No. 10-2188 17

difficult job, as ‘police officers are often forced to make

split-second judgments-in circumstances that are tense,

uncertain, and rapidly evolving.’ ” Baird v. Renbarger, 576

F.3d 340, 342 (7th Cir. 2009), quoting Graham, 490 U.S. at

397. Therefore, the “reasonableness” of the use of force is

judged from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.

Graham, 490 U.S. at 396.

Plaintiff has cited no case law to provide support for his

argument that he was subjected to excessive force

merely because he was outside during the investiga-

tion. In fact, Plaintiff has failed to present evidence

that Fuller forced Plaintiff to remain outside in the cold.

Plaintiff’s bare assertion that he was outside in the cold

during the investigation does not support a claim of

excessive force.

Plaintiff has relied on Baird to support his claim that

his bumped head amounted to excessive force. In Baird,

this court found that a police officer violated the plain-

tiffs’ Fourth Amendment rights. In that case, the officer

used a submachine gun to round the plaintiffs up and

detain them during the execution of a search warrant

that was based on the crime of altering a vehicle iden-

tification number. Baird, 576 F.3d at 344-45. In doing so,

the court noted that “[p]laintiffs need not show physical

injury in order to sustain an excessive force claim.” Id.

at 344. The court also noted that it had previously ob-

served, in a slightly different context, that “ ‘police

officers do not have the right to shove, push, or otherwise

assault innocent citizens without any provocation what-

18 No. 10-2188

soever.’ ” Id. at 345, quoting Clash v. Beatty, 77 F.3d 1045,

1048 (7th Cir. 1996). In Clash, the plaintiff, who was not

arrested or charged with any crime, was treated for a

trauma injury to his knee after he was pushed into a

police car. Id. at 1047.

The push in the case at hand occurred after Plaintiff

was arrested based upon probable cause to believe that

he had committed the crime of forgery. Accordingly, the

facts here are clearly distinguishable from Baird and

Clash. The right to make an arrest necessarily carries

with it the right to some degree of physical coercion to

effect it. Graham, 490 U.S. at 396. “ ‘Not every push or

shove, even if it may later seem unnecessary in the peace

of a judge’s chambers,’ ” violates the Fourth Amendment.

Id. at 396, quoting Johnson v. Glick, 481 F.2d 1028, 1033

(2d Cir. 1973). In this case, we conclude that the fact that

Plaintiff bumped his head while being placed into the

squad car following his arrest is not sufficient to

establish a genuine issue of material fact whether exces-

sive force was used in effecting the arrest.

We reach a similar conclusion regarding Plaintiff’s

claim that the handcuffs were too tight. In Tibbs, the

plaintiff complained that his handcuffs were too tight

twice, once during the ride to the police station and once to

an unknown officer at the police station. Tibbs, 469 F.3d

at 663. The facts in Tibbs reflected that the officers

removed the handcuffs approximately 25 minutes after

the plaintiff arrived at the police station. In Tibbs, the

plaintiff’s wrists were red for approximately one-and-a-

half days, and the plaintiff received no medical care

No. 10-2188 19

for wrist pain. Id. at 663. This court noted that the plain-

tiff complained only once to the arresting officer in

Tibbs “without elaborating on any injury, numbness, or

degree of pain” and neither sought nor received medical

care for any alleged wrist injury. Id. at 666. This court

concluded that, given such “mild allegations,” no rea-

sonable jury could find that the arresting officer’s

actions were objectively unreasonable. Id. at 666.

In this case, the facts in many respects are indistin-

guishable from the facts in Tibbs. Plaintiff testified that

he complained once to Fuller that the handcuffs were

too tight. Plaintiff presented no evidence that he pro-

vided any elaboration to Fuller. Moreover, the evidence

shows that Plaintiff did not complain of any injury

when he was taken to jail and did not receive any treat-

ment resulting from the use of the handcuffs. These

facts are not sufficient to raise a genuine issue of material

fact regarding whether Fuller used excessive force. See

Tibbs, 469 F.3d at 666; see also Stainback, 569 F.3d at 773

(officers’ actions were reasonable under the circum-

stances even though the plaintiff claimed the officers’

actions in handcuffing him and keeping him in hand-

cuffs resulted in two torn rotator cuffs, due to a pre-

existing shoulder condition).

III. Conspiracy

Plaintiff alleged in his complaint that Fuller, Rains,

Hertzer and others “engaged in a conspiracy to deprive

[him] of his civil rights by collaboratively embarking in a

scheme that recklessly ascribed criminal conduct on

20 No. 10-2188

[Plaintiff] and caused his unlawful arrest and detention.”

Plaintiff alleged that Defendants were therefore liable

under 42 U.S.C. §§ 1985 and 1986. In this appeal, Plaintiff

argues that a reasonable jury could infer that Hertzer,

Rains, Fuller, and the officers from McCordsville con-

spired to deprive Plaintiff of his constitutional rights.

Plaintiff argued that the record contains circumstantial

evidence of a conspiracy, noting that it was well estab-

lished that “Fortville is a predominantly white town.”

We agree with the district court that Plaintiff presented

no evidence of a conspiracy other than speculation and

conjecture. To establish the existence of a conspiracy, a

plaintiff must demonstrate that the conspirators have

an agreement to inflict injury or harm upon him.

Hernandez v. Joliet Police Dep’t, 197 F.3d 256, 263 (7th Cir.

1999). “The agreement may be inferred from circum-

stantial evidence, but only if there is sufficient evidence

that would permit a reasonable jury to conclude that a

meeting of the minds had occurred and that the parties

had an understanding to achieve the conspiracy’s objec-

tives.” Id. at 262.

The district court correctly found from the record that

there was no evidence that Fuller or any of the other

individuals involved in this incident conspired to

deprive Plaintiff of his constitutional rights. A conspiracy

cannot be inferred solely based upon the fact that the

alleged conspirators were white and were from a predomi-

nantly white area. The district court also correctly deter-

mined that the absence of any underlying violation of

Plaintiff’s rights precludes the possibility of Plaintiff

No. 10-2188 21

succeeding on a conspiracy claim. See Indianapolis

Minority Contractors Ass’n, Inc. v. Wiley, 187 F.3d 743, 754

(7th Cir. 1999).

IV. State law claims

Finally, we agree that Plaintiff waived all but one of

his state law claims by failing to argue that the claims

were sufficient to survive summary judgment. The only

claim specifically argued by Plaintiff, negligent super-

vision, fails because there was no evidence presented

before the district court that would support a conclusion

that Fuller was negligently supervised or inadequately

trained.

CONCLUSION

For the reasons stated, the ruling of the district court

is A FFIRMED.

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