United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
LOZANO, JUDGE UNITED STATES DISTRICT COURT
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.
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.
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.
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
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.
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.
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.
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.
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
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).
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).
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).
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).
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).
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.
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).
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).
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).
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).
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).
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.). ...