United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE
Manuel was injured when two Elkhart police officers tried to
restrain and arrest him. He brought an excessive force claim
against the officers under 42 U.S.C. § 1983 and a state
law battery claim against the officers and the City of
Elkhart, alleging that the City was liable for the
officers' actions under a respondeat superior
theory. The defendants moved for summary judgment and the
court heard arguments on defendants' motion on January
11. For the following reasons, the court grants the
Standard of Review
judgment is appropriate when there are no genuine issues of
material fact and that the movant is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Protective Life
Ins. Co. v. Hansen, 632 F.3d 388, 391-92 (7th Cir.
2011). The court construes the evidence and all inferences
that reasonably can be drawn from the evidence in the light
most favorable to the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The
moving party bears the burden of informing the court of the
basis for its motion and identifying the parts of the record
that demonstrate the absence of any genuine issue of material
fact. Celotex Corp. V. Catrett, 477 U.S. at 323. It
can meet that burden by showing that there's no evidence
to support the non-moving party's case. Id. at
325. Once the moving party has met its burden, the opposing
party can't rest upon the allegations in the pleadings,
but must “point to evidence that can be put in
admissible form at trial, and that, if believed by the
fact-finder, could support judgment in his favor.”
Marr v. Bank of America, N, A., 662 F.3d 963, 966
(7th Cir. 2011); see also Hastings Mut. Ins. Co. v.
LaFollette, No. 1:07-cv-1085, 2009 WL 348769, at *2
(S.D. Ind. Feb. 6, 2009) (“It is not the duty of the
court to scour the record in search of evidence to defeat a
motion for summary judgment; rather, the nonmoving party
bears the responsibility of identifying the evidence upon
which he relies.”); Hammel v. Eau Galle Cheese
Factory, 407 F.3d 852, 859 (7th Cir. 2005) (summary
judgment is “not a dress rehearsal or practice run; it
is the put up or shut up moment in a lawsuit, when a party
must show what evidence it has that would convince a trier of
fact to accept its version of events”).
evidence submitted in support of, and opposition to, the
defendants' motion for summary judgment was minimal,
making it difficult to ascertain what actually happened. But
the following facts appear to be undisputed.
Manual was staying with his friend, Nicole Williams, when
they got in an argument that culminated in Ms. Williams
calling the police. When Officers Ryan Weis and Jacqueline
Davis arrived at the scene, Ms. Williams told them that Mr.
Manuel had “punched her in the eye” and that she
wanted him out of her house. The officers entered the house,
asked Mr. Manuel to leave, and offered to take him wherever
he wanted to go. Mr. Manual refused, became increasingly
agitated and confrontational with the officers and Ms.
Williams, and ignored Officer Weis's directives to sit
down and stay “out of [his] face”. The parties
disagree about what happened next.
Williams says that Mr. Manuel became aggressive toward the
officers, who told him he was under arrest, pushed him up
against the wall, and tried to put his arms behind his back.
Ms. Williams says she told the officers that his left arm
wouldn't bend because he had “cerebral palsy in
that arm”, so the officers stopped trying to force Mr.
Manuel's arms together, but held them in place while they
considered what to do next. It was at that point, according
to Ms. Williams, that Mr. Manuel began to resist. Ms.
Williams says Mr. Manual's arm broke when he tried to
pull away from the officers.
solely on his responses to interrogatories propounded by the
defendants, Mr. Manuel asserts that:
• “[He] told the officers that he was retiring to
his bedroom, ” and was walking toward his bedroom when
Officer Weis, “without reasonable cause, pushed [him]
so forcefully that [he] was propelled forward and made to
catch himself from falling”;
• Officer Davis “violently grabbed [his] right arm
which, due to a congenital abnormality, is smaller than [his]
left and allows for only a limited range of movement”,
and “bent and contorted [it] in such a way to cause the
• “It is visibly apparent to a reasonable officer
that [his] right are is disabled.” The defendants moved
for summary judgment, contending that the force used by the
officers was objectively reasonable under the circumstances,
that the officers are entitled to qualified immunity, and
that Mr. Manuel hasn't established a viable claim against
the City under § 1983.