Miller, Bogi v. Smith, Andrew

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2780

BOGI MILLER,

Plaintiff-Appellant,

v.

LIONEL A. SMITH,

and KEVIN BROWER,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 1:97CV0439--William C. Lee, Chief Judge.

Argued May 15, 2000--Decided July 10, 2000

Before CUDAHY, FLAUM, and EVANS, Circuit Judges.

EVANS, Circuit Judge. At least one too many U-

Haul trucks were motoring eastbound on the

Indiana toll road around midnight on a winter

night a few years ago. Because Bogi Miller was

driving one of them, he had an encounter with

Indiana law enforcement officers that led to this

lawsuit which was dismissed on summary judgment

by the district court. The encounter occurred

when state troopers mistook Miller’s U-Haul--

filled with deli supplies--for that of a group of

fleeing, armed felons. Miller’s suit against the

officers under 42 U.S.C. sec. 1983, as well as

Indiana common and statutory law, alleged that he

was kicked and punched by one of the officers

while he lay handcuffed on the ground, and that

when he and his companion were released, their

wallets were considerably lighter. We review the

grant of summary judgment de novo.

On the morning of December 12, 1995, Miller and

his friend, Stanley Szeliga, drove a rented U-

Haul to Chicago to retrieve goods for Szeliga’s

Cleveland-based delicatessen. The trip went

smoothly, and after a successful afternoon’s

shopping the two piled back into the truck and

began their long drive back to Cleveland. As the

clock bore down on midnight, Miller, who was

driving, stopped at a toll road service area near

LaGrange, Indiana, to fill up the truck. Leaving

Szeliga asleep in the cab, Miller hopped out and

began refueling the U-Haul.

Meanwhile, a few minutes earlier on a nearby

stretch of the tollway, Indiana State Troopers

Lionel Smith and Eric Dunn received word that

three armed men had just robbed a company in

Elkhart, Indiana, and that the robbers fled the

scene in a U-Haul truck. According to their

dispatcher--who was receiving reports from a

civilian motorist claiming to be following the

getaway truck--the suspects were heading east

toward Smith and Dunn. The troopers sped west to

head them off. Along the way they learned that

the race of the robbers was unknown, but that all

three had donned ski masks and that at least one

was wearing a blue hooded jacket. They also

learned that the men were packing pistols and a

sawed-off shotgun.

By the time Smith and Dunn had nearly reached

the suspects, the dispatcher informed them that

the target U-Haul had pulled into a service area

near LaGrange. The troopers immediately made

their way there, cut off their lights, and

stealthily parked their squad cars in back of the

gas station so as not to be spotted from the gas

pumps. On the way in, both officers noted that

the man refueling a U-Haul was wearing a blue

jacket and stocking cap. Thus, feeling reasonably

sure that they had found the heavily armed

suspects, the troopers drew their shotguns and

moved in.

While Dunn focused his attention on anyone who

might be in the truck’s cab, Smith took care of

the man at the pump, popping out from behind the

gas station with his shotgun trained on the

suspect, yelling "State Police! Let me see your

hands! Get down on the ground!" Miller, whose

tenuous command of English (he’s Polish and,

according to the district court, "understands

very limited English") was likely not sharpened

by facing the business end of Smith’s shotgun

during a groggy, midnight pit stop, did not

immediately hit the deck. Instead he froze and,

according to Smith, stared at the officer with

"this ’What are you doing?’ look on his face."

Everyone involved agrees that Miller soon found

himself handcuffed, face-down on the concrete.

But how he got there and what happened next is

disputed. According to the defense, Miller

eventually dropped to his knees, at which point

Officer Kevin Brower of the LaGrange police

department, who had answered a call for back-up

help, cuffed Miller and laid him on the ground.

In this version of the story, Miller remained

harmlessly in custody for the 10 minutes it took

the police to discover that instead of a third

suspect, guns, and the money and equipment that

had been stolen from the factory, the U-Haul

contained only a variety of dried goods,

specialty foods (including some pickled eggs),

and a toll ticket showing that Miller and Szeliga

had been on the Interstate at the time of the

robbery. According to the police, Miller and

Szeliga were then released, unhurt, with their

possessions intact.

Miller says that once he gathered his wits he

followed Officer Smith’s instructions to the

letter, voluntarily lying face-down beside the

pumps. While he lay prone, he states that one of

the officers cuffed him and then proceeded to

kick him twice in the back, punch him, step on

his face, and yank him around by the hair. When

he was finally released, Miller claims that $750

had been removed from his wallet and that Szeliga

reported to him that cash was stolen from the

truck.

As stated, Miller sued all six of the officers

who eventually arrived on the scene that

night./1 He claimed that the officers violated

his rights under the 4th, 5th, and 14th

Amendments by stopping and detaining him

unlawfully, depriving him of his property without

due process, and using excessive force. He also

sought compensation for the alleged conversion

(the alleged lifting of money from his wallet)

under Indiana common law and a provision of the

Indiana code permitting conversion victims to

recover treble damages.

On the officers’ motion for summary judgment,

the district court made quick work of Miller’s

case. First, it dismissed the sec. 1983 claims

for unlawful stop and detention after Miller

conceded that the officers had reason to believe

he was an armed robber. It then dismissed all

claims relating to three officers (the ones we

haven’t named) who arrived on the scene too late

to have been involved in either the alleged use

of excessive force or the alleged conversion.

Next, the court found that Miller’s excessive

force claims against Officers Dunn and Smith were

barred by the 11th Amendment, and that even if

they were not, the claims (and those against

Brower) could not survive summary judgment

because Miller could neither identify the officer

who allegedly attacked him, or otherwise support

his claim with sufficient facts. The court then

determined that since Indiana provided Miller

with an adequate postdeprivation remedy for

conversion regarding the claimed loss of money,

he could not pursue related federal claims. See

Parratt v. Taylor, 451 U.S. 527, 543-44 (1981).

Miller’s brief focuses on the district court’s

decision to dismiss his sec. 1983 excessive force

claims against Smith, Dunn, and Brower. We will

focus on that claim as well but we note that

Miller dismissed his case against Dunn after his

brief was filed.

We begin by reviewing the determination that

the 11th Amendment barred Miller’s claims against

the state troopers. The court found that since

Miller failed to specify whether he was suing the

officers in their official or individual

capacities, under a line of our authority

beginning with Kolar v. County of Sangamon, 756

F.2d 564 (7th Cir. 1985), it was obliged to

presume that Miller sued the officers in their

official capacities--an assumption that

immediately ended the case. See, Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)

(the 11th Amendment bars sec. 1983 claims for

damages against state officers in their official

capacity because the State, in such a suit, is

the real party in interest).

Miller agrees that Kolar and its progeny

establish such a presumption, but he argues that

he rebutted it. The state officers, in turn,

assert that the court correctly applied the rule

and thus correctly dismissed the claims.

Hill v. Shelander, 924 F.2d 1370 (7th Cir.

1991), a case neither party discusses, is

instructive. In Hill, we said Kolar did not

contain a rigid rule that a sec. 1983 plaintiff

who fails to designate whether a defendant is

being sued in her official or individual capacity

shall be presumed to be bringing the action

against the defendant in her official capacity.

See 924 F.2d at 1373. Instead, we explained that

in Kolar we opted to treat the suit as against

the defendant in his official capacity partly

because the complaint referred to him by his

official title, but more importantly because the

suit itself challenged an official policy or

custom. Id. By contrast, in Hill we found that

the suit was properly construed as against the

defendant in his individual capacity because he

sought punitive damages--a remedy only available

in an individual capacity suit--and because "the

unconstitutional conduct alleged involve[d] [the

defendant’s] individual actions and nowhere

allude[d] to an official policy or custom." Id.

at 1374. We then spelled out a new regime for

sec. 1983 claims that do not specify the capacity

in which the defendant has been sued: Where the

plaintiff seeks injunctive relief from official

policies or customs, the defendant has been sued

in her official capacity; where the plaintiff

alleges tortious conduct of an individual acting

under color of state law, the defendant has been

sued in her individual capacity. Id. at 1373-

1374.

Because the state officers rely on a series of

cases involving the presumption from Kolar, which

we rejected in Hill,/2 their attempts to defend

the summary judgment grant on that ground must

fail. As in Hill, it is clear here that Miller

filed suit against the officers for their alleged

individual torts--at no time did he suggest that

either Indiana or LaGrange espoused a custom or

policy of robbing and beating innocent motorists.

Thus, under Hill we can safely assume that he

intended to file suit against the officers in

their individual capacities. And this makes

sense. Why in the world would Miller have

bothered to sue the state troopers for damages in

their official capacities when such a suit would

run headlong into the 11th Amendment? Further, we

note that even were we to evaluate the case under

the pre-Hill regime where the manner in which

parties treated the claim could overcome the

governing presumption, see, e.g., Conner v.

Reinhard, 847 F.2d 384, 394 n.8 (7th Cir. 1988),

we would have reached the same result: The state

defendants not only failed to raise their 11th

Amendment arguments until nearly a year after

they filed their answers, but they had previously

raised the defense of qualified immunity--a

defense available solely to officials facing sec.

1983 suits in their individual capacities. Thus,

no matter how you slice it, it was error to

conclude that Miller brought his claims against

the state officers in their official capacities.

The case should not have been dismissed on 11th

Amendment grounds.

We now turn to the district court’s finding

that Miller could not bring excessive force

claims against any of the officers because he

could not specify which one of them attacked him.

Citing Rascon v. Hardiman, 803 F.2d 269 (7th Cir.

1986), the district court stated that "[t]he law

is clear that a plaintiff must prove the personal

unlawful actions of a particular defendant in

order to recover from the defendant." It then

explained that since Miller cannot identify his

assailant--he said he was lying face-down on the

ground at the time of the attack--his claims

against all the officers necessarily failed. We

respectfully disagree.

Rascon merely restates the familiar decree that

sec. 1983 does not support respondeat superior

liability. 803 F.2d at 273 ("Without a showing of

direct responsibility for the improper action,

liability will not lie against a supervisory

official."). And while it is true that a

plaintiff must establish a defendant’s personal

responsibility for any claimed deprivation of a

constitutional right, a defendant’s direct

participation in the deprivation is not required.

See, e.g., Smith v. Rowe, 761 F.2d 360, 369 (7th

Cir. 1985). "An official satisfies the personal

responsibility requirement of sec. 1983 if she

acts or fails to act with a deliberate or

reckless disregard of the plaintiff’s

constitutional rights." Crowder v. Lash, 687 F.2d

996, 1005 (7th Cir. 1982). Under this rule,

police officers who have a realistic opportunity

to step forward and prevent a fellow officer from

violating a plaintiff’s rights through the use of

excessive force but fail to do so have been held

liable. See, e.g., Yang v. Hardin, 37 F.3d 282,

285 (7th Cir. 1994).

Miller contends that either Smith or Brower

(with Dunn nearby) smacked him around while he

lay cuffed on the ground. If, as we are required

to do at this point in the case, Miller’s

allegations are taken as true, whichever officer

was not directly responsible for the beating was

idly standing by. If Miller can show at trial

that an officer attacked him while another

officer ignored a realistic opportunity to

intervene, he can recover. Since he alleges facts

to support these claims, they should not have

been dismissed.

And because Miller presents a viable claim on

the facts alleged, the final reason for granting

summary judgment--that Miller failed to introduce

sufficient evidence to support his claim--must be

rejected. In essence, what we have here is a

credibility question. If the officers’ version of

the events is true, Miller was not mistreated. If

the claims in Miller’s lonely affidavit, however,

are true, he has a case. To quote from the

district court’s opinion, "In ruling on a summary

judgment motion the court accepts as true the

non-moving party’s evidence, draws all legitimate

inferences in favor of the non-moving party, and

does not weigh the evidence or the credibility of

witnesses." Following this rule leads to the

conclusion that a trier of fact must sort out the

truth of whether or not Miller was assaulted next

to the U-Haul back in December of 1995.

The grant of summary judgment on the sec. 1983

excessive force claims against Officers Brower

and Smith are REVERSED and the case is REMANDED for

further proceedings. The district court’s

decision on the other claims remains undisturbed.

/1 Szeliga originally joined in the complaint, but

he died 7 months later and was dropped from the

suit.

/2 See Yeksigian, 900 F.2d 101 (7th Cir. 1990);

Meadows v. State of Indiana, 854 F.2d 1068 (7th

Cir. 1988); Shockley v. Jones, 823 F.2d 1068 (7th

Cir. 1987).