United States District Court, N.D. Indiana, Fort Wayne Division
CLARENCE L. KIZER, Plaintiff,
ALLEN COUNTY SHERIFF'S DEPARTMENT, ALLEN COUNTY DEPUTY SHERIFFS RAU AND MEYERS as employees of the Allen County Sheriff's Department and the Allen County Jail, and in their individual capacities, Defendants.
OPINION AND ORDER
T. MOODY JUDGE
L. Kizer, a pro se plaintiff, is proceeding against
the Allen County Sheriff's Department (the
“Sheriff's Department”), Deputy William Rau,
and Deputy Aaron Meyers (collectively,
“defendants”) under 42 U.S.C. § 1983 for
violations of the Eighth and Fourteenth Amendments. (DE #
19.) Plaintiff also asserts “supplemental state law and
constitutional claims.” (Id. at 1.) In a
single motion, defendants have moved for summary judgment.
(DE # 34.) For the reasons stated below, the motion will be
judgment must be granted when “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 issue of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Not every dispute between the parties makes summary judgment
inappropriate; “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Id. To determine whether a genuine issue of material
fact exists, the court must construe all facts in the light
most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
opposing a properly supported summary judgment motion may not
rely merely on allegations or denials in his or her own
pleading, but rather must “marshal and present the
court with the evidence she contends will prove her
case.” Goodman v. Nat'l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party
fails to establish the existence of an essential element on
which he or she bears the burden of proof at trial, summary
judgment is proper. Massey v. Johnson, 457 F.3d 711,
716 (7th Cir. 2006).
did not file a response to the motion for summary judgment,
despite being given proper notice of the motion.
(See DE # 36.) Pursuant to N.D. Ind. Local Rule
7-1(d)(4), a party's failure to file a response within
the time prescribed may subject the motion to summary ruling.
Nevertheless, “[s]trict enforcement of [local rules]
does not mean that a party's failure to submit a timely
filing automatically results in summary judgment for the
opposing party.” Wienco, Inc. v. Katahn Assoc.,
Inc., 965 F.2d 565, 568 (7th Cir. 1992). Rather, that
failure “causes all factual assertions alleged by the
opposing party to be deemed admitted.” Id.
Accordingly, defendants' “statement of material
facts” (DE # 35 at 2-4) is deemed admitted and
undisputed. The court still must “make the further
finding that given the undisputed facts, summary judgment is
proper as a matter of law.” Wienco, Inc., 965
F.2d at 568.
September 15, 2012, Kizer was booked into Allen County Jail
in Fort Wayne, Indiana. (DE # 34-1 at 4.) During his
incarceration period, Kizer began experiencing tooth pain.
(Id. at 5.) Ultimately, he was scheduled to receive
a tooth extraction from an outside dentist. (Id.)
February 14, 2013, Kizer and a female inmate were taken to
the dentist by two officers of the Sheriff's Department:
Officer Rau and Officer Meyers. (Id.) Before leaving
the jail, Kizer's arms and legs were shackled by an
officer who was neither Rau nor Meyers. (Id. at
6-7.) Then he was helped into a van by one of either Rau or
Meyers. (Id. at 7.) Kizer had been in transport vans
before and was familiar with this process. (Id.)
Inside the van, there were two areas where inmates could sit:
a middle area where inmates enter and exit from the side
door, and a rear area where inmates enter and exit from the
back door. (Id. at 6.) During the trip to the
dentist's office, Kizer sat in the rear of the van while
the female inmate sat in the middle. (Id.)
the van arrived at the dentist's office, Kizer exited the
van by jumping out from the back without the assistance of
the officers. (Id. at 7.) The drop from the rear of
the van to the pavement was approximately a few feet.
(Id.) Kizer was not injured when he exited the van
at that time. (Id.) At the dentist, Kizer received
local anesthesia, had his tooth extracted, and received a
cleaning. (Id. at 8.) He was then helped back into
the van by the officers to be transported back to the jail.
returning to the jail, Officer Meyers exited the van and
stood by its side. (Id. at 10.) Officer Rau went to
the rear door of the van and asked Kizer to step out of the
van. (Id. at 9.) Officer Rau then attempted to
assist Kizer. (Id.) However, when Kizer exited the
van he fell, face down. (Id.) He does not remember
tripping over anything. (Id.) Additionally, Rau did
not pull Kizer out of the vehicle. (Id. at 10.)
After his fall, Kizer was evaluated by jail nursing staff and
taken to the St. Joseph Hospital. (Id.)
19, 2014, Kizer filed a complaint for damages and request for
jury trial in the Allen County Superior Court. (DE # 1 ¶
1.) In that complaint, Kizer brought the following claims:
(1) violations of the Eighth and Fourteenth Amendment to the
United States Constitution, actionable pursuant to 42 U.S.C.
§ 1983, for cruel and unusual punishment; (2) violations
of the Indiana Constitution; (3) negligence; and (4)
intentional or negligent infliction of emotional distress.
(DE # 4 ¶¶ 10-12.) In his deposition, Kizer argues
that the officers could have done a better job of assisting
him as he exited the van. (DE # 34-1 at 13.) He referred to
Officers Rau and Meyers as “good guys” who he
likes, but notes that they were “just negligent in the
whole process, in terms of helping [him].”
(Id. at 13-14.)
removed the case to this court, filing a notice of removal on
July 28, 2014. (DE # 1.) On September 3, 2014, Kizer filed
his amended complaint. (DE # 19.) The amended complaint once
again brings claims under § 1983 involving the Eighth
and Fourteenth Amendments, as well as “supplemental
state law . . . claims.” (Id.) Beyond that
single statement, Kizer does not define his state law claims
in the amended complaint; however, construing the amended
complaint liberally, the court reads Kizer to be reasserting
his negligence and infliction of emotional distress claims
from his initial complaint. (See id.) Kizer also
reasserts that defendants violated the Indiana Constitution
without providing additional detail. (See id.)
April 1, 2016, defendants filed a motion for summary judgment
as to only the federal claims (the claims brought under 42
U.S.C. § 1983). (DE # 34.) Kizer did not respond to the