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Stone v. Porter County Sheriff's Department

United States District Court, N.D. Indiana, Hammond Division

September 28, 2017

JEREMIAH STONE, Plaintiff,
v.
PORTER COUNTY SHERIFF'S DEPARTMENT, et al. Defendants.

          OPINION AND ORDER

          RUDY LOZANO, JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on Defendants' Motion for Summary Judgment, filed on September 22, 1016 (DE #27). For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART. Summary judgment is DENIED on Jeremiah Stone's excessive force claim against Officer Gill to the extent that it alleges that allowing the canine to continue attacking him following his apprehension constituted excessive force, and it is DENIED on his failure to intervene claim against Officers Brockman and Boone. Summary judgment is GRANTED as to all other claims.

         BACKGROUND

         On August 15, 2014, Plaintiff Jeremiah Stone (“Stone”) filed a complaint against the Porter County Sheriff's Department (“Sheriff's Department”), Sheriff David Lain (“Sheriff Lain”), Officer Brian Gill (“Officer Gill”), Officer Meredith Brockman (“Officer Brockman”), and Officer Matthew Boone (“Officer Boone”). The complaint stems from an incident on August 15, 2012. The vehicle Stone was traveling in was pulled over. Stone fled and Officer Gill directed his canine, Dolar, to apprehend him. Stone was injured during the apprehension, and alleges that the dog was permitted to continue attacking him after he was secured.

         Stone alleges that his Fourth and Fourteenth Amendment rights were violated by the Defendants' use of excessive force, in violation of 42 U.S.C. § 1983. He additionally alleges that his Fourteenth Amendment due process rights were violated. And, he seeks a declaratory judgment that Sheriff Lain and the Sheriff's Department utilize unconstitutional policies and procedures for the use and deployment of canines. The instant motion is fully briefed and ripe for adjudication.

         DISCUSSION

         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 dispute 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. In determining whether summary judgment is appropriate, the deciding court must construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). “However, our favor toward the nonmoving party does not extend to drawing inferences that are supported by only speculation or conjecture.” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v. C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).

         A party opposing a properly supported summary judgment motion may not rely on allegations or denials in 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).

         Facts

         Defendants have provided a “Statement of Undisputed Material Facts” with citations to supporting evidence in compliance with the requirements of Federal Rule of Civil Procedure 56 and Northern District of Indiana Local Rule 56-1. Accordingly, to avoid summary judgment, Stone must demonstrate that there is a genuine dispute by citing material facts he contends are in dispute in a section labeled “Statement of Genuine Disputes” or showing that the materials cited by the Defendants do not establish the absence of a genuine dispute. Fed.R.Civ.P. 56(c).

         Stone's statement of genuine disputes contains facts that Stone alleges are in dispute, but many of the citations point to evidence that is not before the Court. For example, this Court does not have before it pages 56, 65, or 88 of Officer Gill's deposition, page 21 of Officer Boone's deposition, or pages 43-44 of Officer Brockman's deposition. Other facts asserted in the statement of genuine disputes are not supported by any citation. Still other portions misconstrue the evidence that is cited. And, portions of the statement of genuine disputes consist of argument rather than facts.

         The Court will not consider any portion of either the Defendant's statement of material facts or Stone's statement of genuine disputes that does not properly cite to evidence in the record. The Court need not “credit [a party's] version of the facts when the materials supporting those asserted facts are not part of the record.” Stevens v. Housing Auth. of South Bend, 663 F.3d 300, 311 (7th Cir. 2011). Nor is this Court required to hunt through the record to make a party's case for him. See Gross v. Town of Cicero, Ill., 619 F.3d 697, 702-03 (7th Cir. 2010) (collecting cases). Therefore, as in Gross, this Court “strikes any of the parties' factual assertions, in any section of their briefs, that lack direct citation to easily identifiable support in the record.” Id. Because the Defendants' statement of undisputed material facts is well-supported and most of the facts contained in it are undisputed, the Court has borrowed liberally from it.

         In the early morning hours of August 15, 2012, Stone was traveling eastbound in a maroon Dodge Stratus on U.S. Highway 6 in Porter County, Indiana. (Def. Ex. B at 8-9). After observing the Stratus cross left of center twice, Officer Brockman initiated a traffic stop on suspicion of intoxication. (Def. Ex. B at 10). When Officer Brockman initiated the traffic stop, Stone advised the other two occupants of the vehicle, Michelle Sabich and Sarah Myers, that he would run if the car was pulled over because he was on probation in another county and could go to jail for drinking that night. (Def. Ex. C at 30).[1] When the car stopped, Stone immediately exited the vehicle from the driver's side and ran. (Def. Ex. B at 15). Officer Brockman began to run after Stone, but he escaped. (Id.). She returned to the vehicle and spoke with Sabich and Myers. (Def. Ex. B at 19). They advised Officer Brockman that Stone told them he would run if they were pulled over. (Id. at 21).

         Officers Gill, his canine Dolar, and Officer Boone then arrived to assist with the search for Stone. (Def. Ex. D at 14; Def. Ex. E at 61). Officer Boone attempted to chase Stone, yelling out to stop and that he was the police, but Stone continued to run. (Def. Ex. D at 17-18). Officer Boone did not know whether Stone was armed, but he believed it was a dangerous situation because Stone seemed desperate to get away from the police. (Def. Ex. D at 33-34). Stone was running through a trailer park, where there are many places to hide and it is very easy to break in to homes. (Ex. D at 34). The officers had no reason to believe Stone would stop running if Dolar had not apprehended him. (Def. Ex. D at 34).

         Officer Gill has been a canine handler since 2009. (Def. Ex. F at 1). He obtained his canine, Dolar, from Faus Canine Specialties in Elkhart. (Def. Ex. E at 24). He attended a five-week course with Dolar, and they were certified as a team through the National Police Working Dog Association (“NPWDA”). (Id.). He and Dolar recertified through NPWDA every September. (Id. at 21). They also trained monthly with other canine handlers in Northwest Indiana on tracking, narcotics detection, obedience, aggression control, and all of the NPWDA standards. (Id. at 14-15).

         Officer Gill was subject to and guided by the Sheriff's Department's use of force policy in effect at the time of Stone's arrest. (Def. Ex. E at 10). He understands that Dolar is considered an instrumentality of force as an intermediate weapon in accordance with the Sheriff's Department policy on the use of force. (Def. Ex. E at 8-10; Ex. G). The policy provides in part as follows:

1. This policy establishes guidelines for the Department concerning the use of force. It shall be the policy of this Department to use only that degree of force that is reasonable and necessary to perform official duties.
2. Officers shall not strike or use physical force against any person except when necessary in self-defense, in defense of another, to overcome physical resistance to lawful commands, or to prevent the escape of an arrested person.

(Def. Ex. G at 1).

         Intermediate weapons are non-deadly weapons such as tasers, chemical spray, or mace. (Def. Ex. E at 3). The canine policy provides that “[t]he handler shall allow the canine to use only that level of force [that] is reasonably believed to be necessary to apprehend or secure a suspect.” (Def. Ex. E at 17; Ex. H ¶ J). The same standard applies to the use of force regardless of the mechanism of force. (Def. Ex. E at 97). Releasing Dolar is not considered the use of deadly force. (Def. Ex. E at 12). Officer Gill knows this from his training and experience. (Def. Ex. E at 8). The Sheriff's Department uses a “one plus one” model of force. (Def. Ex. E at 10). That means that they are able to take the level of force used up one level from what the subject is displaying. (Def. Ex. E at 11). Stone's resistance would be considered defensive resistance. (Def. Ex. E at 11).

         The use of force policy requires officers to fill out a use of force form. (Def. Ex. E at 10). Officer Gill did not fill out the required form for the use of force against Stone. (Id. at 9-10). He has never filled out the use of force form when Dolar has apprehended a subject. (Id.).

         Other than the instant case, Officer Gill has never had a complaint about any action taken by him and Dolar. (Def. Ex. E at 32, 98). Officer Gill has no knowledge of any other complaints regarding canine bites with the Sheriff's Department. (Def. Ex. E at 102). He has also never been disciplined for any action taken by him and Dolar. (Def. Ex. E at 32). Each canine bite is reviewed by the head of the canine division, and Officer Gill was not disciplined for Dolar's apprehension of Stone in this incident. (Def. Ex. E at 33, 38, 98). Nobody said or suggested that Dolar's apprehension of Stone was an inappropriate use of force. (Def. Ex. E at 38).

         The first time that Officer Gill and Dolar located Stone, Officer Gill called out for Stone to stop, but Stone jumped over a fence and continued running. (Def. Ex. E at 61). In determining whether to release Dolar, Officer Gill considers factors such as the danger to the community, danger to the officers, the fact of a fleeing suspect, the nature of the crime, and population density. (Def. Ex. E at 39). His actions are the result of his experiences in police work, and he considered the unpredictable nature of Stone's behavior and his desperation to get away from the police. (Def. Ex E at 70). In his almost ten years of police work, he has learned that a person desperate to escape the police poses a danger to the community. (Def. Ex. E at 70). Out of tens of thousands of traffic stops, a situation such as this has only happened two or three times. (Def. Ex. E at 70). This is, in Officer Gill's opinion, very abnormal behavior for someone who just had a few drinks and did not want to be caught by the police. (Def. Ex. E at 70). Someone that determined and desperate would have almost certainly ended up in a physical altercation. (Def. Ex. E at 11-12, 78). According to Officer Gill, when a suspect exhibits desperation such as what Stone exhibited, they either had a lot of liquor or they just committed a very serious crime. (Def. Ex. E at 82).

         Officer Brockman did not know if Stone was carrying a weapon. (Def. Ex. B at 27). The assumption when someone runs from the police is that they pose a danger. (Id. at 27). She believed Stone posed a danger to society because he ran from police for an unknown reason, and they did not know his mindset. (Id. at 30). In pursuing Stone, Officer Brockman believed they were defending the public because Stone ran in a trailer park - a highly populated area. (Id. at 30-31). The police encountered two individuals, Harley Jewitt (“Jewitt”) and Samantha Satrioano (“Satriano”), delivering papers while searching for Stone. (Pl. Ex. 1 at 10, 15; Pl. Ex. 2 at 7-8, 15). They were stopped twice and asked if they had seen anyone in the area, but the officers did not indicate that the person they were looking for might be dangerous. (Pl. Ex. 1 at 16-19, 22; Pl. Ex. 2 at 14-15).

         Officer Gill and Dolar located Stone a second time, and Officer Gill yelled for Stone to stop or he would release Dolar. (Def. Ex. D at 23; Def. Ex. E at 78). Stone continued to run. (Def. Ex. D at 25; Def. Ex. E at 78). In accordance with his training, Officer Gill issued the command for Dolar to apprehend Stone. (Def. Ex. E at 78). Dolar apprehended Stone mid-stride while he was attempting to continue running. (Def. Ex. D at 25; Ex. E at 79). According to the Defendants, Officer Gill placed Stone in handcuffs, released Dolar, and called for an ambulance, which arrived shortly thereafter. (Def. Ex. D at 29; Def. Ex. E at 92-93; Def. Ex. C at 41).

         Stone presents a very different version of the events following his apprehension. According to Jewett, a witness, there were three squad cars and five officers surrounding Stone while he was laying on the ground face down with his hands cuffed behind his back “and the dog was tearing that guy up.” (Pl. Ex. 1 at 22-24). Stone was unable to protect himself and was screaming “stop.” (Id.). According to Jewett, “the handler let the dog just chew on him for about five minutes before he finally called it off.” (Id. at 25). Jewett recounts that the handler, Officer Gill, pulled the dog off Stone after he saw Jewett and made eye contact with him. (Id. at 25-26). Jewett estimates that he was 15-20 feet away while witnessing these events, and that the area was illuminated by a street light. (Id. at 28).

         Satriano, the woman with Jewett, offers a similar version of events. She saw five officers surrounding Stone. (Pl. Ex. 2 at 17-20). Stone was on his belly with his hands and feet cuffed behind his back while the dog chewed on him for about five minutes. (Id.). She reports that the officers stood five feet away with their hands folded across their chests while the dog mauled Stone until they noticed they were being watched by herself and Jewett. (Id.). ...


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