United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge
12, 2017, Defendants filed their Renewed Motion for Summary
Judgment. [DE 32]. In their motion, Defendants seek summary
judgment as to all claims raised by Love in this case.
Love's claims arise from the alleged use of excessive
force against him during an arrest following a multi-vehicle
police chase through the streets of South Bend, Indiana in
the early morning hours of August 4, 2013. Through the
instant action under 42 U.S.C. § 1983, Love has raised
Fourth and Fourteenth Amendments claims of excessive and
unreasonable use of force against the South Bend police
officers involved in the arrest. For the reasons stated
below, the Court DENIES Defendants'
November 12, 2015, Love was convicted in the St. Joseph
Superior Court for resisting law enforcement (Ind. Code
§ 35-44.1-3-1(a)(1)) and mistreatment of a law
enforcement animal (Ind. Code § 35-46-3-11(a)(1)).
See State of Indiana v. Royce Love,
71D03-1308-FD-000653. These are both class A misdemeanors.
Love filed a notice of appeal on November 18, 2015. During
the pendency of Mr. Love's appeal before the Indiana
Court of Appeals, the Defendant Officers filed a motion for
summary judgment in this Court. [DE 13]. Defendants'
first motion for summary judgment was granted in part and
denied in part. [DE 20]. Subsequent to this Court's
ruling on the Defendant Officers' Motion, Mr. Love's
criminal convictions were overturned by the Indiana Court of
Appeals. See Love v. State, 61 N.E.3d 290
(Ind.Ct.App. 2016). The Indiana Supreme Court granted
transfer, vacated the Court of Appeals' opinion, and
affirmed Mr. Love's misdemeanor convictions. Love v.
State, 73 N.E.3d 693, 700 (Ind. 2017).
basis of the Indiana Supreme Court's decision, Defendants
filed their Renewed Motion for Summary Judgment on July 12,
2017. [DE 32]. On July 24, 2017, Plaintiff, Royce Love, filed
his response in opposition. [DE 34]. On July 31, 2017,
Defendants filed their reply. [DE 36]. The Court issues the
following opinion resolving Defendants' motion as
discussed below pursuant to the consent of the parties and 28
order on Defendants' original motion for summary
judgment, this Court recited the facts of this case, which
have not changed and need not be repeated here. [See DE
20 at 1-4]. Generally, however, Love was arrested after
his vehicle was pursued by police. The contested facts,
relevant here, involve what happened in the immediate
aftermath of Love's vehicle coming to a stop.
Additionally, and at the heart of this case, the parties
contest the meaning of Love's November 12, 2015,
convictions for resisting law enforcement and mistreatment of
a law enforcement animal.
general, Love contends that “[u]pon exiting his
vehicle, [he] complied with police commands to get down on
the ground and extend his hands” and “[t]here was
no legal cause to justify [Defendants'] violent assault
upon [him] after he voluntarily went to the ground and
extended his hands in surrender.” [DE 2 at 2, 3].
Defendants characterize Love's complaint as alleging Love
to have been passive and compliant the entire duration of the
arrest. Defendants further allege it is not logically
possible for both (1) Love to be correct in these factual
allegations and for (2) the conviction to be sustained. [DE
36 at 4].
their competing version of the facts, Defendants allege that
Mr. Love never fully complied with the officers'
commands. Rather, he attacked a police dog, shouted at
officers, and pulled Taser wires from his body. The force
officers used was not excessive, Defendants claim, because if
it were, the conviction for resisting law enforcement would
necessarily be invalid. In other words, Defendants allege a
finder of fact has made determinations specific enough to
logically preclude Love's version of events. [DE 33 at
opposition to Defendants' argument that his version of
events is precluded, Love contends that the state court
verdict is not dispositive to the issue of whether he
resisted only prior to the use of excessive force by the
police. [DE 35 at 3]. Additionally, according to Love, the
criminal charge for resisting law enforcement by force only
charged that he resisted Officer Jonathan Gray. [Id.
Summary Judgment Standard of Review
renewed motion for summary judgment is appropriate if there
is the availability of new evidence or an expanded factual
record. Whitford v. Boglino, 63 F.3d 527, 530 (7th
Cir. 1995). “[T]he district court may, in its
discretion, allow a party to renew a previously denied
summary judgment motion or file successive motions,
particularly if good reason exists.” Id.
Summary judgment is proper where 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 the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
Lawson v. CSX Transp., Inc., 245 F.3d 916, 922 (7th
Cir. 2001). In determining whether a genuine issue of
material fact exists, this Court must construe all facts in
the light most favorable to the nonmoving party as well to
draw all reasonable and justifiable inferences in favor of
that party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986); King v. Preferred Technical
Group, 166 F.3d 887, 890 (7th Cir. 1999).
overcome a motion for summary judgment, the nonmoving party
cannot rest on the mere allegations or denials contained in
its pleadings. Rather, the nonmoving party must present
sufficient evidence to show the existence of each element of
its case on which it will bear the burden at trial.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088
(7th Cir. 2000). Where a factual record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). In other words, “[s]ummary
judgment is not a dress rehearsal or practice run; it is the
put up or shut up moment in a lawsuit, when a party must show
what evidence it has that would convince a trier of fact to
accept its version of the events.” Hammel v. Eau
Galle Cheese Factory, 407 F.3d 852, 859 (7th
Cir. 2005) (quotations omitted).