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Alicea v. Thomas

United States District Court, Northern District of Indiana, Fort Wayne Division

September 2, 2014

P.O. AUBREY THOMAS, P.O. ALEJANDRO ALVAREZ, individually and the CITY OF HAMMOND, a municipal corporation, Defendants.



The case before the Court is a 42 U.S.C. § 1983 action brought by the Plaintiff, Mitchell Alicea, against the Defendants, P.O. Aubrey Thomas, P.O. Alejandro Alvarez, and the City of Hammond, alleging that the Defendants used excessive and unreasonable force during the Plaintiff’s arrest. Presently before the Court is the Defendants’ Motion for Summary Judgment [ECF No. 91]. The Defendants seek summary judgment on all counts. The Defendants filed a Memorandum in Support [ECF No. 92] on October 21, 2013. The Plaintiff filed a Response [ECF No. 94] on November 15, 2013. The Defendants filed a Reply on November 27, 2013. The Defendants’ Motion for Summary Judgment is ripe for ruling.


Summary judgment is warranted when “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). To survive summary judgment, a nonmovant must be able to show that a reasonable jury could return a verdict in her favor; if she is unable to “establish the existence of an element essential to [her] case, and on which [she] will bear the burden of proof at trial, ” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), summary judgment must be granted. A bare contention that an issue of fact exists is insufficient to create a factual dispute, but the court must construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences in that party’s favor, see Bellaver v. Quanex Corp., 200 F.3d 485, 491–92 (7th Cir. 2000), and avoid “the temptation to decide which party’s version of the facts is more likely true, ” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (noting the often stated proposition that “summary judgment cannot be used to resolve swearing contests between litigants”). A material fact must be outcome determinative under the governing law. Insolia v. Philip Morris Inc., 216 F.3d 596, 598–99 (7th Cir. 2000). “Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008).


The following facts are not in dispute, unless otherwise noted. On the morning of March 29, 2011, the Plaintiff was walking through the neighborhood of the 4200 block of Towle Avenue in Hammond, Indiana. A neighbor observed the Plaintiff knock on the door, look into the windows, and then walk to the back door of the home of Jerard Descamp. The neighbor called the police who then responded to the home. The Plaintiff broke into the back door and was in the process of burglarizing the home when he saw a police car pull up. He quickly placed some jewelry he had stolen into his pockets and ran out the front door. The Plaintiff ran north on Towle Avenue, turned east and cut through a yard, crossed Cameron Avenue and then encountered another officer by the alley near the corner of Johnson and 141st Street. Upon seeing the officer, the Plaintiff turned back and continued running until he ran into the backyard of 4125 Cameron Avenue and jumped into an above-ground swimming pool. The pool had aluminum walls approximately five feet high and was empty except for a few loose leaves and sticks in the bottom of the pool. The Plaintiff sat down in a corner of the pool and attempted to hide from the police, whom he believed were chasing him.

Meanwhile, the police had established a perimeter to search for the Plaintiff. Defendant Sergeant Aubrey Thomas arrived on the scene and ordered his police dog, Leo, to begin tracking the Plaintiff. According to the Defendants, Thomas yelled out “Hammond Police Canine! Announce or sound off or I’m going to send the dog!” but heard no response. Leo began searching and alerted as he approached the pool, standing with his front two paws on the wall of the pool. Thomas looked inside and saw the Plaintiff, who in turn saw the officer.

In the Defendants’ version of the subsequent events, Thomas pulled his service weapon, pointed it at the Plaintiff, and ordered him to “stand up and show me your hands.” The Plaintiff was wearing heavy clothing and Thomas was concerned that he might have a concealed weapon. He also was aware that the Plaintiff had fled from the police and was concerned he might flee again. According to the Defendants, Thomas could not enter the pool without the use of both of his hands and he was concerned about taking his weapon off of the Plaintiff, so he ordered Leo to jump into the pool, using one arm to assist the dog while keeping his gun trained on the Plaintiff. Leo apprehended the Plaintiff by biting and holding his right arm. At that point Thomas, believing it safe to lower his weapon and climb over the wall, did so, retrained his weapon on the Plaintiff, and ordered Leo to release. After Leo released, other officers arrived on the scene.

In the Plaintiff’s version of events, when Thomas ordered the Plaintiff to stand up and show his hands, he did so, putting his hands all the way up with palms out and open. The Plaintiff alleges Thomas then said “You like to rob houses, you fucking punk?” and then used both hands to boost the dog into the pool, giving Leo the command to attack. The Plaintiff claims that within a split second two to three other officers arrived while the dog attacked the Plaintiff’s right forearm for minutes, and that Thomas had difficulty calling the dog off the attack. According to the Plaintiff, once the dog was off and while the Plaintiff was still standing, Officer Alejandro Alvarez grabbed the Plaintiff, threw him on the ground, dropped a knee, and began punching him in the ribs and back and kicking him in the head. The Plaintiff claims Alvarez’s actions caused pain and left lumps and bruises.

According to the Defendants, the Plaintiff told officers at the scene that he was high on cocaine. Alvarez asked the Plaintiff to place his hands on the pool wall and spread his legs so that he could be checked for any weapons, but the Plaintiff refused. Alvarez then pushed the Plaintiff to his knees and then further down into the prone position when he remained uncooperative. Another officer held the Plaintiff down while Alvarez completed the pat down. Alvarez found money, a ring, and a necklace in the Plaintiff’s pocket. The Plaintiff denies that he was uncooperative, and states that he was compliant with the officers’ instructions.

The Plaintiff was transported by ambulance to St. Margaret Mercy Hospital to have his injuries treated. The Plaintiff argues that he stated he was high on cocaine for the first time while at the hospital, not beside the pool as the Defendant’s argue, in order to secure a room on the cardiac floor of the hospital where he expected better treatment.


Section 1983 is not a source of substantive rights but instead provides “a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” City of Monterrey v. Del Monte Dunes at Monterrey, Ltd., 526 U.S. 687, 749 n.9 (1999). To prevail on a claim under § 1983, a plaintiff must show that “(1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States, and (2) the defendant acted under color of state law.” J.H. Exrel Higgin v. Johnson, 346 F.3d 788, 791 (7th Cir. 2003) (citing Reed v. City of Chi., 77 F.3d 1049, 1051 (7th Cir. 1996)). The Plaintiff alleges that while the Defendant officers were acting under color of law, they violated his constitutional rights under the Fourth Amendment. The parties do not dispute that the Defendant officers ...

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