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Thompson v. City of Indianapolis

United States District Court, S.D. Indiana, Indianapolis Division

September 25, 2017

BILLIE THOMPSON, as personal representative of the ESTATE OF DUSTY HEISHMAN, Plaintiff,



         This matter is before the Court on a Motion for Partial Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendants Health and Hospital Corporation of Marion County (“HHC”) and Lance Cope (“Medic Cope”) (collectively, “Medical Defendants”) (Filing No. 95). Plaintiff Billie Thompson (“Thompson”), as personal representative of the Estate of Dusty Heishman (“Heishman”), filed this action alleging numerous state law claims and Fourth and Fourteenth Amendment violations pursuant to 42 U.S.C. § 1983 (“Section 1983”) after Heishman died following an arrest. Thompson's Section 1983 claims are for excessive force, deliberate indifference, and failure to protect or intervene. The Medical Defendants ask for summary judgment on the Section 1983 claims, arguing that Medic Cope is entitled to qualified immunity. For the following reasons, the Court grants in part and denies in part the Medical Defendants' Motion for Partial Summary Judgment.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but, as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Thompson as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         On the evening of October 5, 2014, at approximately 7:45 p.m., a grandmother of young children called 911 to alert police to the belligerent and erratic behavior of a man who was naked and out on the streets near Bryants Friendly Inn, near Iowa and East Streets in Indianapolis, Indiana. (Filing No. 97-9 at 2-3.) Officer Brian Burnett (“Offer Burnett”) was in the area and received the dispatch call to take care of the incident. Officer Burnett went to the scene and found the naked man, who was identified as Heishman. Heishman was sweating profusely, and it appeared to Officer Burnett that Heishman was under the influence of narcotics (Filing No. 97-2 at 7-10).

         Heishman began to approach his police vehicle, so Officer Burnett quickly exited the vehicle and directed Heishman to calm down and to sit down on the ground. Heishman did not respond to Officer Burnett, so Officer Burnett used his Taser to try to get compliance. The Taser hit Heishman's stomach and torso area and knocked him to the ground. Heishman pulled the wires out of the Taser and then jumped back onto his feet. He tried to climb into the driver's seat of Officer Burnett's police vehicle, but Officer Burnett was able to lock the car with his key fob. When Heishman could not get into the car, he turned back toward Officer Burnett. Officer Burnett continued to give verbal commands to calm down or sit down, but Heishman stared through him and did not respond. Heishman repeatedly said “they're trying to kill me, they're trying to kill me”. Id. at 8-14.

         Officer Burnett requested help from two civilian bystanders who were on the sidewalk near his police vehicle. They immediately responded and tried to get Heishman on the ground. Heishman and the two civilians engaged in a physical struggle, and they were able to get Heishman to the ground. The civilians punched and hit Heishman during the physical altercation, and one of them choked Heishman. Officer Burnett attempted to handcuff Heishman, but the men still struggled to subdue him. Other law enforcement officers began arriving on the scene to assist with arresting Heishman and to move a gathering crowd away from the incident. They were successful at getting handcuffs on Heishman behind his back. Id. at 15-22; Filing No. 116-2 at 1. Once the handcuffs were secured on Heishman, he would calm down for moments and then begin to resist the officers again (Filing No. 116-1 at 9).

         Sergeant Billy Johnson (from the Marion County Sheriff's Department) (“Sergeant Johnson”) arrived on the scene with the police transport wagon after Heishman was already handcuffed. One of the officers asked for leg shackles, so Sergeant Johnson gave him leg shackles to apply to Heishman (Filing No. 116-4 at 5). Sergeant Johnson observed that Heishman was naked on the ground and had a number of officers around him who were holding him to maintain control over him. Sergeant Johnson observed that Heishman was face down on his stomach, and the scene was secure. Sergeant Johnson talked with Sergeant Ed Miller about a plan to get Heishman into the police transport wagon. The leg shackles were applied to Heishman, and then, with the assistance of approximately four other police officers, Sergeant Johnson walked Heishman to the back of the wagon. Heishman was very tense and stiffened his body, making it difficult to move him and to get him into the wagon. Heishman stepped up onto the step of the wagon and then pushed back with his legs on the wagon, knocking the police officers off balance. The officers were able to get Heishman back to the ground and hold him there. Id. at 5-7.

         Sergeant Johnson then said to Sergeant Miller, “I'm not going to be able to take him for safety reasons.” (Filing No. 116-4 at 7.) Sergeant Johnson explained, “I'm not going to be able to transport him, and they requested a medic.” Id. at 9. Sergeant Johnson later indicated, “It just was to[o] unsafe in his condition to put him in a cage in the back of a wagon and transport him and then try to get him out at the APC so for my safety and his safety a medic was summoned.” (Filing No. 116-5 at 3.) Officer Burnett also explained that, after the officers could not get Heishman into the wagon, the officers “just knew that he wasn't getting in the wagon, so we said the only other choice is to get him on a cot.” (Filing No. 116-1 at 11.)

         When asked what the objective was concerning Heishman, Sergeant Johnson explained that, first it was to put him into the police transport wagon, and when that was unsuccessful, “just to hold him down and restrain him until the medics arrived.” (Filing No. 116-4 at 22.) When asked where Heishman would be transported, Sergeant Johnson explained, “Probably to Eskenazi [Hospital]. He was too intoxicated or too out of control probably for the APC [Arrestee Processing Center].” Id. The Marion County Sheriff's Department “maintain[s] custody over prisoners at the Eskenazi Hospital. . . . [T]hat's where people under arrest go. . . . [W]e have a specially built holding room out there just for people in custody.” Id. at 14.

         While waiting for a medic, Heishman was held on the ground face down on his stomach with approximately four officers staying in physical contact with him. He occasionally pushed back on the officers who were holding him. Approximately three to five minutes later, medics arrived on the scene. Id. at 9-10.

         Medic Cope and his EMT partner, Josue Ceballos, were dispatched to the area in response to a complaint of an animal bite incident. They arrived at the scene at approximately 8:02 p.m. and learned that the animal bite patient was a police officer. (Filing No. 116-7 at 1). Medic Cope eventually learned that the incident did not involve an animal, but rather, Heishman had bitten an officer (Filing No. 116-6 at 15). Almost immediately after arriving on the scene, an officer from the Indianapolis Metropolitan Police Department (“IMPD”) approached Medic Cope and asked that he first help with another person (Heishman) who was being combative. (Filing No. 116-7 at 1). He then called for another unit for the animal bite patient. Id. Medic Cope followed the officer and observed that Heishman was lying prone in the middle of the street, was handcuffed behind his back with leg shackles on, and had been tased. Medic Cope also observed that Heishman was struggling and fighting and approximately five police officers were holding him down (Filing No. 116-7 at 1). One officer stated that he believed Heishman was intoxicated on PCP or other drugs. Medic Cope received a brief rundown of the history of what happened before he arrived on the scene. He did a quick assessment of Heishman, checking his airway, breathing, circulation, and pulse. It appeared to Medic Cope that Heishman was under the influence of some type of amphetamines (Filing No. 116-6 at 6).

         Medic Cope gave Heishman ten milligrams of Versed intramuscularly in his left deltoid muscle as a “chemical restraint for patient and crew safety.” (Filing No. 116-7 at 1.) Within a couple of minutes after the injection, Heishman calmed down. Medic Cope was surprised by how quickly the Versed had an effect because normally it takes about ten minutes to be effective when injected intramuscularly. Medic Cope visually monitored Heishman during the couple of minutes while the Versed was taking effect, watching his breathing and watching for any struggling (Filing No. 116-6 at 16). No one monitored Heishman's vital signs or used medical devices to monitor him; instead, he was left on the ground until it appeared the Versed had its effect (Filing No. 116-4 at 23).

         The IMPD and EMS crews picked up Heishman and placed him on a cot, laying him on his back. He was covered with a blanket and moved toward the ambulance. While moving to the ambulance, it became apparent that Heishman was no longer breathing, but it was difficult to assess his condition because of the darkness outside. Once he was inside the ambulance, Medic Cope noted that Heishman was not breathing, and he had no pulse. Heishman's handcuffs and Taser probes were removed after he was placed inside the ambulance, and CPR was started because Heishman had gone into respiratory and cardiac arrest (Filing No. 116-7 at 1). After approximately seven minutes of CPR, Heishman was revived but not conscious. Id. at 3-4.

         Heishman was transported to Eskenazi Hospital and then transferred to Methodist Hospital the following day. Heishman had lost brain function and was treated with hypothermic therapy in an attempt to recover brain function. The attempts were futile, and Heishman died on October 13, 2014 (Filing No. 116-10 at 3). His cause of death was noted as “complications of excited delirium” with contributing factors of “acute methamphetamine intoxication, positional body restraint by law enforcement, acute psychotic state (mania), dilated cardiomyopathy, discharge by electric stun device, and history of grand mal seizure disorder.” Id. at 1.

         After the incident on October 5, 2014, but before Heishman's death, Heishman was charged with resisting law enforcement, battery resulting in bodily injury, criminal mischief, and public nudity (Filing No. 116-2 at 1). After his death, the charges against Heishman were dropped. On September 28, 2015, Thompson, representing the Estate of Heishman, filed this action alleging Fourth and Fourteenth Amendment violations pursuant to Section 1983, as well as numerous state law claims, against the Medical Defendants and other co-defendants. Thompson's Section 1983 claims against Medic Cope allege excessive force, deliberate indifference, and failure to protect or intervene. Thompson did not bring Section 1983 claims against HHC. The Medical Defendants seek summary judgment on the three constitutional claims against Medic Cope, asserting that he is entitled to qualified immunity.


         Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v., Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor.” Zerante, 555 F.3d at 584 (citation omitted). “However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “The opposing party cannot meet this burden with conclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).

         “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and quotation marks omitted).

         III. ...

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