Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thompson v. City of Indianapolis

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

September 29, 2017

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



         This matter is before the Court on a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendants City of Indianapolis, Indianapolis Department of Public Safety, Indianapolis Metropolitan Police Department (“IMPD”), Marion County Sheriff's Department, Officer Brian Burnett (“Officer Burnett”), Officer Donald Spiegl (“Officer Spiegl”), Officer William Bueckers (“Officer Bueckers”), Park Ranger Phillip Greene (“Ranger Greene”), and Sergeant Billy Johnson (“Sergeant Johnson”) (collectively, “City Defendants”) (Filing No. 90). 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 his arrest. Thompson's Section 1983 claims are for excessive force, deliberate indifference, and failure to protect or intervene. The City Defendants ask for summary judgment on Thompson's claims, arguing that they are entitled to qualified immunity and the state law claims are barred by the Indiana Tort Claims Act. For the following reasons, the Court grants in part and denies in part the City Defendants' Motion for Summary Judgment.

         I. BACKGROUND[1]

         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 (later identified as Heishman) who was naked and out on the streets down the road from Bryants Friendly Inn, close to Iowa and East Streets in Indianapolis, Indiana. Prior to taking off his clothes, Heishman was yelling at a woman across the street who was trying to get him into her car. He removed his clothes and was shouting, “kill me, shoot me, ” while running around in the street (Filing No. 119-15 at 2-3).

         As he was running around naked, Heishman jumped into the bed of a pickup truck. While the truck was moving, Heishman began hitting the back window with a pipe. He broke the window and attempted to hit the driver. The driver accelerated to try to throw Heishman from the truck. This was unsuccessful, so the driver continued to drive around the neighborhood to look for help. He stopped near Bryants Friendly Inn, where Heishman jumped off the truck (Filing No. 92-2 at 3-5).

         Officer Brian Burnett was in the area and received a dispatch call regarding a man exposing himself on Terrace Avenue. He headed in that direction and encountered Heishman near Bryants Friendly Inn, so he radioed in the new location to dispatch. He immediately noticed that Heishman was naked, sweating profusely, and had blood on his hands. Heishman was surrounded by several people and bouncing around. It appeared to Officer Burnett that Heishman was “really pumped up” and under the influence of narcotics (Filing No. 92-3 at 2-4).

         Officer Burnett exited his police vehicle and directed Heishman to calm down and to sit down on the ground; however, Heishman began to approach Officer Burnett and his vehicle and ignored his commands. Because Heishman was approaching Officer Burnett and was not responding to commands, Officer Burnett used his Taser to try to get compliance. The Taser hit Heishman's stomach and chest and knocked him to the ground. Officer Burnett ran two continuous Taser cycles through Heishman for a total of nine seconds. Heishman pulled the wires out of the Taser probes and then jumped back onto his feet. Id. at 3-4; Filing No. 92-12 at 2.

         Heishman tried to climb into Officer Burnett's police vehicle, but Officer Burnett was able to lock the car using his key fob. When Heishman could not get into the car, he turned back toward Officer Burnett and approached him. The two circled the police vehicle, with Officer Burnett trying to keep some distance away from Heishman. 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 that “they're trying to kill me.” (Filing No. 92-3 at 4-5).

         In a moment that appeared to be compliance with Officer Burnett's commands, Heishman decided to lay down in the middle of the street on his stomach with his hands behind his back. Officer Burnett approached Heishman and knelt down, placing his knee on Heishman's shoulder, and attempted to handcuff him. This lasted approximately five seconds until Heishman started squirming and jumped to his feet and jogged away. As Heishman was squirming and getting back up, Officer Burnett tried to hold him down and delivered a knee strike, but this was ineffective (Filing No. 92-4, video of incident at 0:24-0:42).

         Officer Burnett asked for help from two civilian bystanders, Mark Britton (“Britton”) and William Patterson (“Patterson”), 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 him to the ground briefly. Officer Burnett went to his police vehicle to get his baton and then approached the three men. Heishman was actively fighting Britton and Patterson by throwing elbows, kicking, swinging, and biting. Heishman elbowed Britton in the face, possibly breaking his nose, and bit Britton's hand. Britton and Patterson punched and hit Heishman during the physical altercation, and one of them choked Heishman, trying to get his compliance. When they had Heishman back on the ground, Officer Burnett tried to get handcuffs on him, but the men still struggled to subdue him. Officer Burnett gave directions to Britton and Patterson throughout the altercation to guide them in containing Heishman. Officer Burnett had his leg on Heishman's shoulder to try to “deaden” his arm to gain control. Other law enforcement officers began arriving on the scene to assist with the arrest. Officer Burnett asked Officer Spiegl and Ranger Greene to help control Heishman's legs (Filing No. 92-3 at 5-7, 10; Filing No. 119-2 at 1). Officer Spiegl used a metal, expandable baton- striking Heishman about three times on the legs-to try to get Heishman down and control his legs, but this was unsuccessful (Filing No. 92-6 at 3).

         During the ongoing struggle, Officer Burnett attempted to drive-stun Heishman with his Taser for approximately four seconds to gain compliance (Filing No. 92-4, video of incident at 2:40-2:44; Filing No. 92-12 at 2). As additional law enforcement officers arrived on scene, they tried to move civilians away from the ongoing struggle, and they assisted with trying to arrest Heishman. Officer Bueckers arrived on the scene and tried to help with securing one of Heishman's arms. He tried to extend Heishman's arm away from his body, but Heishman was able to keep his arm bent and tucked in. Officer Bueckers observed that Heishman was extremely sweaty and exhibiting incredible strength. Heishman was grunting and groaning and at one point uttered, “they are going to kill me.” Heishman was difficult to handle and control, so the officers made a plan to link two sets of handcuffs together. Eventually after several minutes, the officers were successful at getting handcuffs on Heishman behind his back. Once the handcuffs were secured on Heishman, he started to calm down for moments, but then he would begin to resist the officers again (Filing No. 92-3 at 6-7; Filing No. 119-2 at 1; Filing No. 92-6 at 3; Filing No. 92-7 at 3).

         Sergeant Johnson (from the Marion County Sheriff's Department) 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. At this point, Britton and Patterson were no longer assisting the officers (Filing No. 119-4 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 despite Heishman's attempts to struggle. Sergeant Johnson talked with Sergeant Ed Miller about a plan to get Heishman into the police transport wagon. 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 to the wagon and to get him up 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. 119-4 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. 119-5 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. 119-1 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. 119-4 at 22.) When asked where Heishman would be transported to, 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. Sergeant Johnson delivered a knee strike to Heishman's leg and knelt on the back of Heishman's legs to hold him down.[2] Another officer used a pain compliance or pressure point wrist manipulation, attempting to gain control over Heishman. It took the medics approximately three to five minutes to arrive on the scene. Id. at 9- 10.

         Medic Lance Cope (“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 incident did not involve an animal, but rather, Heishman had bitten someone (Britton) (Filing No. 119-7 at 1-2; Filing No. 119-6 at 15).

         Soon after Medic Cope arrived at the scene, an IMPD officer approached him and asked that he first help with another person (Heishman) who was being combative. 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 with approximately five police officers who were holding him down (Filing No. 119-7 at 1). An officer indicated 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. Medic Cope 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 amphetamine (Filing No. 119-6 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. 119-7 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 approximately 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. 119-6 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. 119-4 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. 119-7 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. 119-10 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 his death, Heishman was charged with resisting law enforcement, battery resulting in bodily injury, criminal mischief, and public nudity (Filing No. 119-2 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 City Defendants and other co-defendants. Thompson's Section 1983 claims against the City Defendants allege excessive force, deliberate indifference, and failure to protect or intervene. The City Defendants seek summary judgment on the three constitutional claims, asserting qualified immunity, and on the state law claims under the Indiana Tort Claims Act.


         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).


         The City Defendants request summary judgment on each of Thompson's constitutional claims-excessive force, deliberate indifference, and failure to protect or intervene-on the basis of qualified immunity. They also assert that summary judgment is appropriate on Thompson's state law claims under the Indiana Tort Claims Act.

         A. Qualified Immunity and the Constitutional Claims

         The City Defendants argue that they are entitled to qualified immunity against Thompson's constitutional claims. They explain, “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation and quotation marks omitted). In determining whether qualified immunity applies, courts consider, “in the light most favorable to the party asserting the injury, [whether] the facts alleged show the officer's conduct violated a constitutional right, ” and “whether the right was clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The City Defendants assert that Thompson's claims fail under both prongs of the qualified immunity test.

         1. Excessive Force

         Regarding the excessive force claim, the City Defendants raise the well-established standard that these claims are analyzed under the Fourth Amendment's “objective reasonableness” standard, which “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 388, 396 (1989).

         Quoting Graham, the City Defendants explain,

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.

Id. at 396-97 (citations and quotation marks omitted). They also direct the Court to the Seventh Circuit cases of Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005), and Estate of Phillips v. City of Milwaukee, 123 F.3d 586 (7th Cir. 1997), asserting that this case is more akin to Estate of Phillips, where the Seventh Circuit determined that summary judgment was appropriate.

         In Abdullahi, an officer knelt on the arrestee's back and shoulder area after the arrestee already was laying prone on the ground. The arrestee died approximately two minutes later. All the doctors agreed that the cause of death was the chest and neck trauma and a collapsed lung. Evidence also suggested that the injuries and death could have resulted from the officer's actions, and a doctor suggested that the officer used enough force to crush the arrestee's chest cavity. The Seventh Circuit determined that, because a reasonable jury could find that kneeling on an arrestee with enough force to cause his death was ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.