United States District Court, S.D. Indiana, Indianapolis Division
MAJOR P. DAVIS, II, Plaintiff,
CITY OF INDIANAPOLIS, OFFICER NICHOLAS GALLICO, ESTATE OF OFFICER PERRY RENN, Defendants.
ENTRY ON DEFENDANTS' MOTION FOR GUIDANCE
WALTON PRATT, JUDGE
matter is before the Court on the Defendants' City of
Indianapolis, Officer Nicholas Gallico, and the Estate of
Officer Perry Renn's (collectively the
“Defendants”) Notice of Final Judgment in the
Underlying Criminal Case and Motion for Guidance. (Filing
No. 55.) For the reasons stated below the Court
grants the motion for guidance and finds
that Plaintiff Major P. Davis, III (“Davis”)
shall be granted an opportunity to file a Second Amended
Complaint and Davis is directed to show
cause why this action should not be dismissed.
action, Davis filed a Complaint which alleges a violation of
his Fourth Amendment rights and several state law claims.
Specifically, Davis alleges the following:
July 5, 2014, at 9:23 p.m., Officers Renn and Gallico were
dispatched to investigate shots fired near 34th Street and
Forest Manor Avenue in Indianapolis, Indiana. When the
officers arrived, Davis was with two women who were his
acquaintances. The women told Officer Gallico that everything
was okay and they could leave. Officer Gallico allowed Davis
and the two females to proceed in walking to his vehicle.
While walking, the sounds of popping fireworks were present
at a nearby party. As Davis proceeded to his vehicle he was
shot in the back, torso, and head by Officer Renn or Officer
Gallico. During the time of this incident Davis did not
possess or control a deadly weapon. He asserts that he made
no verbal threats and his body language did not suggest a
threat to the lives of Officers Gallico and Renn. Davis
sustained critical injuries and was not given medical
treatment for approximately 45 minutes. Davis alleges that
the defendants Officer Gallico and Officer Renn are liable to
him for violating his Fourth Amendment rights and that the
City is liable to him for intentional infliction of emotional
distress and negligent hiring.
See Filing No. 29 (screening Amended
action was stayed and administratively closed pending the
resolution of the criminal proceedings against Davis, which
were based on the same facts alleged in the Complaints. Those
proceedings concluded after Davis plead guilty to the murder
of Officer Renn on April 21, 2017. (Filing No.
55-1.) Davis was sentenced to a term of life
imprisonment and final judgment was entered on April 27,
2017. (Filing No. 55-2.) This Court now takes
judicial notice of Davis' underlying criminal proceedings
filed in dockets 55-1 through 55-4 (state court records);
see Adkins v. VIM Recycling, Inc., 644 F.3d 483, 493
(7th Cir. 2011), Green v. Warden, U.S. Penitentiary,
699 F.2d 364, 369 (7th Cir. 1983). (“federal courts may
also take notice of proceedings in other courts, both within
and outside of the federal judicial system, if the
proceedings have a direct relation to matters at
criminal record reflects that Davis specifically admitted to
the intentional killing of Officer Renn, while Officer Renn
was acting in the course of his official duty and that the
killing was motivated by the fact that Officer Renn was
responding to a report of shots fired. Davis agreed with the
M.D. That the aggravating circumstances alleged in the
Request for Death Sentence exist beyond a reasonable doubt as
follows: (1) on or about July 5, 2014, Major Davis II did
intentionally kill Perry Wayne Renn, a law enforcement
officer with the Indianapolis Metropolitan Police Department,
while Perry Wayne Reno was acting in course of duty; and (2)
on or about My 5, 2014, Major Davis II did intentionally kill
Perry Wayne Ream, a law enforcement officer with the
Indianapolis Metropolitan Police Department, and further the
murder was motivated by an act Officer Perry Wayne Renn
performed while acting in the course of duty, to-wit; the
murder was motivated by the fact that Officer Perry Wayne
Renn was responding to a report of shots fired and at that
location encountered Major Davis II;
Filing No. 55-1 at p. 3.
the criminal trial is now over, the clerk is directed to
reopen this action on the docket.
Opportunity to File a Second Amended Complaint
Davis has been convicted of Officer Renn's murder his
claims in this case appear to be barred by Heck v.
Humphrey, 512 U.S. 477 (1994). That case “forbids
a prisoner in his civil rights case to challenge a finding in
his criminal or prison-discipline case that was essential to
the decision in that case; if he insists on doing that, the
civil rights case must be dismissed.” Moore v.
Mahone, 2011 WL 2739771, *1 (7th Cir. 2011) (citing
Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir.
2003)). A plaintiffs § 1983 suit must be dismissed if
“a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence.”
Heck, 512 U.S. at 487; see McCann v.
Neilsen, 466 F.3d 619, 621 (7th Cir.2006).
abstract, some constitutional violations can coexist with a
valid conviction. Hoeft v. Anderson, 409 F.
App'x 15, 18 (7th Cir. 2011). But in this case, no such
claims could be identified by this Court. To the contrary,
the violations alleged by Davis appear both frivolous and
malicious given the facts surrounding Davis' guilty plea.
Heck “forbids a prisoner in his civil rights
case to challenge a finding in his criminal or
prison-discipline case that was essential to the decision in
that case; if he insists on doing that, the civil rights case
must be dismissed.” Moore v. Mahone, 2011 WL
2739771, *1 (7th Cir. 2011) (citing Okoro v.
Callaghan, 324 F.3d 488, 490 (7th Cir. 2003)). For
example, Davis can no longer claim that he was unarmed or
that he was not responsible for Officer Renn's death. Not
only would such statements be barred by Heck, they
are directly contracted by Davis' admissions in his
criminal proceedings. Further having shot and killed an