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Kizer v. Allen County Sheriff's Department

United States District Court, N.D. Indiana, Fort Wayne Division

March 24, 2017

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.



         Clarence 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 granted.


         Summary 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).

         A party 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).

         Plaintiff 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.


         On 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.)

         On 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.)

         When 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. (Id.)

         Upon 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.)

         On June 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.)

         Defendants 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.)

         On 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 ...

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