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.

Fulton v. Dulin

United States District Court, N.D. Indiana, Fort Wayne Division

May 29, 2018




         In this excessive force action against the Starke County Sheriff and the arresting officer, Kyle Hinds (“Hinds”), Plaintiff, Geoffrey Fulton (“Fulton”) challenges the use of a taser during the course of a traffic stop as well as force he claims was used after he was in handcuffs. Before the court are a slew of motions from the parties including: Defendants' Motion for Summary Judgment [DE 69], Plaintiff's Motion to Strike [DE 74], Defendants' Motion to Strike Pages 4 and 5 of Plaintiff's Exhibit 5 [DE 78], Plaintiff's Motion to File Supplemental Exhibits [DE 82] and Plaintiff's Motion to Withdraw Admission [DE 83]. For the following reasons, Defendants' Motion for Summary Judgment will be DENIED; Plaintiff's Motion to Strike will be DENIED; Plaintiff's Motion to File Supplemental Exhibits and Motion to Withdraw Admissions will be GRANTED; and Defendants' Motion to Strike will be DENIED as MOOT.


         Fulton filed the present action asserting an excessive force claim pursuant to 42 U.S.C. §1983 against Hinds in his individual capacity, a claim against Starke County Sheriff Bill Dulin (“the Sheriff”) for failure to train under 42 U.S.C.§1983, a state law battery claim against the Sheriff under the theory of respondeat superior, and an official capacity state law claim against the Sheriff for failure to provide adequate jail medical care. These claims arise from the events surrounding Fulton's arrest by Hinds on January 2, 2015 while Hinds was employed as a part-time deputy for the Starke County Sheriff's Department (“the Department”).

         On September 27, 2017, Fulton dismissed his 42 U.S.C. §1983 claim against the Sheriff for failure to train. This dismissal leaves the §1983 claim against Hinds, and the state law claims against the Sheriff as the sole remaining claims in the action. However, the present Motion for Summary Judgment addresses only the substantive claims against Hinds, the state law battery claim against the Sheriff, and the timeliness of the tort claim notice for the state law claims against the Sheriff. With this clarification the court turns first to the issues involving the timeliness of Fulton's tort claim notice.

         A. Timeliness of the Tort Claim Notice

         As noted above, the events at issue in this case took place on January 2, 2015. Additional, events in Fulton's Second Amended Complaint relating to his medical treatment at the jail took place on January 3-4, 2015. Pursuant to the Indiana Tort Claims Act, IC 34-13-3-1 et seq (“ITCA”), a tort claims notice must be filed within 180 days, which all parties agree would have been July 1, 2015. The Complaint, Amended Complaint, and the Second Amended Complaint all represent that the tort claims notice was submitted on July 10, 2015 (DE 1, ¶4; DE 28, ¶5; DE 51 ¶5). This date is approximately 189 days from the date of the excessive force claims and 187 days from the date of his claims of inadequate medical care. The tort claims notice was also attached to all of the Complaints and bears the date June 30, 2015. However, in response to the Sheriff's Request for Admission, Plaintiff admitted the notice was submitted on July 10, 2015. (Dfdt's Exh. K, ¶1).

         In response to the Defendants' Motion for Summary Judgment relating to the notice's timeliness, Plaintiff filed Exhibits 4 and 5 which are the tort claims notice itself as well as certified mail receipts. (Pltf's Exhs. 4 and 5). Both of these documents bear the date of June 30, 2015. These exhibits spawned the filing of Defendants' Motion to Strike [DE 78] arguing that Plaintiff cannot contradict his prior admission with these documents as Fed.R.Civ.P. 36(b) deems the fact “conclusively established.” In turn, this sparked Plaintiff's Motion to Withdraw that admission (DE 83) and his Motion to File Supplemental Exhibits (DE 82) which include the certified mail receipts showing a mailing date of June 30, 2015.

         This is much ado about very little in the grand scheme of this case. Pursuant to Fed.R.Civ.P. 36(b):

(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits.

         In its eighteen page opposition brief to Plaintiff's Motion, Defendants argue that Plaintiff has not demonstrated good cause for the withdrawal, has waived its objection to the admission since discovery is closed, and they are prejudiced by learning that the tort claim notice was, in fact, timely filed.

         The Court begins first with the prejudice component. If “it is evident from the nature of the case that [the] merits [of the admission] are contested”, the court will not allow the admission to stand absent evidence of prejudice to the opposing party. Chima v. Hadady Corp., No. 2:10 CV 339, 2012 WL 2192165, at *1-2 (N.D. Ind. June 14, 2012 (quoting Szatanek v. McDonnell Douglas Corporation, 109 F.R.D. 37, 40 (W.D.N.Y.1985)). An admission will aid the merits of the case when it bears on a prima facie element. Moreover, the prejudice contemplated by the rule “relates to the difficulty a party may face in proving his case” because of the sudden need to obtain evidence required to prove the matter that had been admitted. Id. (quoting Gutting v. Falstaff Brewing Corporation, 710 F.2d 1309, 1314 (8th Cir.1983)). However, “[h]aving to prove one's case on the merits is not the type of prejudice that satisfies Rule 36(b).” Wells v. EMF Corp., 757 F.Supp.2d 796-97 (N.D. Ind. 2010) (quoting Van Hoose v. Nucor Corp., No. 1:06-cv-01565, 2007 WL 2898697, at *1 (S.D. Ind. Apr. 13, 2007)).

         Here it is clear that the merits of the admission are contested. Plaintiff has certified mail documents disputing the admission that he filed the notice on July 10, 2015. These documents show the timely submission of a tort claims notice and the green certified mail cards show that an agent of the Sheriff signed them, acknowledging receipt, on July 2, 2015. (Pltf's Exh. B to DE 83, at p. 4). Counsel also submitted an affidavit with his motion in which he certifies that he signed, reviewed, and mailed the notice on June 30, 2015. (Pltf's Exh. C to DE 83). Plaintiff's counsel further acknowledges that when reviewing the Requests for Admission, the reviewing attorney relied upon the scrivener's error in the Complaint and thus, did not catch the error in the date.

         As a general matter, the Court is puzzled as to how this case has proceeded for two years without recognition from either side as to whether the tort claims notice was timely. While the Defendants squarely place all the blame on the Plaintiff, there are clear signs that should have put the Defendants on notice that the dates were incorrect, namely the fact that the green cards are signed by Defendants' own agent on July 2, 2015 and not sometime after July 10. Rather, it appears that the Defendants either excuse their own lack of diligence or were lying in wait for discovery to close to spring the admission on the Plaintiff in hopes of a blindside victory.[1] While the Court certainly does not condone Plaintiff's counsel's inattention in allowing this case to proceed all the way to summary judgment before it recognized and corrected the error, this Court is hard-pressed to punish Fulton on the merits of his state law claims due to the shortcomings of all the lawyers in this case.

         This said, Defendants argue that they “have foregone significant discovery in reliance upon Plaintiff's affirmative admission” and, in addition, “[d]efendants sought no discovery from the Jail's third-party medical provider related to Plaintiff's jail medical claim.” (Response, p. 11). Defendants further assert that they became aware during discovery of an amputation to Plaintiff's toe which Plaintiff believed “was caused by the Jail's alleged failure to properly care for Plaintiff's diabetes while Plaintiff was incarcerated” and “but for Plaintiff's affirmative admission, Defendants would have pursued this information from Plaintiff, deposed Plaintiff's surgeon and any other doctor who treated Plaintiff…” (Response, pp. 11-12). Finally, Defendants state that “witnesses key to the Sheriff's Department's defense are no longer available” as they are no longer employed by the Sheriff's Department and they have no information on the individual's whereabouts. Thus, they assert that reopening discovery will result in substantial additional litigation costs, medical depositions and an independent medical examination, further prejudicing them.

         Unfortunately, the only true prejudice that the Defendants have demonstrated is being deprived of a swift and premature victory on a technicality. Defendants do not deny that they had notice of the Plaintiff's claims or that they had the tort claims notice attached to the Complaints. They also do not deny receiving notice of the Tort Claim on July 2, 2015. Essentially, all of Defendants' claims of prejudice above can be cured with the reopening of discovery. Although several witnesses may be no longer available, there is no allegation that these witnesses would be the sole witnesses and the only evidence available for the Defendants to defend the claims against them. Nevertheless, Defendants contend they have relied on the admission in prosecuting their case, including in filing their summary judgment motion. But as noted, having to defend the case on the merits is not the type of prejudice that satisfies Rule 36(b). Nor is the expense of preparing the motion for summary judgment. And, the additional discovery Defendants will need to conduct will be limited to the state law claims.

         In contrast, the prejudice to the Plaintiff in not being able to pursue his claim on the merits is great. Under the circumstances here, permitting withdrawal “would promote the presentation of the merits of the action” and will not unfairly prejudice the Defendants. For this reason, the Plaintiffs' Motion to Withdraw Admission [DE 83] is GRANTED; the Motion to File Supplemental Exhibits [DE 82] is GRANTED; the Defendants' Motion to Strike Exhibits [DE 78] is DENIED as MOOT.

         With this issue resolved, we turn to the facts relevant to the Defendants' Motion for Summary Judgment.

         B. Fulton's Arrest[2]

         On January 2, 2015, Hinds arrested Fulton for Resisting Law Enforcement by flight. Hinds was a full-time officer with the Town of Hamlet Police and a part-time deputy for the Department. On January 2, Hinds was on duty for the Department. Fulton is a 62 year old bail bondsmen and a former member of law enforcement in California and Indiana. Fulton is also an insulin dependent Type 1 diabetic and has a service animal, Rascal, certified by the American Diabetes Association. Fulton was traveling with Rascal at the time of these events.

         At 9:40 p.m. on January 2, 2015, Hinds was sitting at an accident scene in a marked patrol vehicle on the northbound shoulder of U.S. 35 with his emergency lights activated. A vehicle, later determined to be driven by Fulton, passed Hinds northbound without moving over or slowing down. Hinds' partially closed squad car door rattled and his car shook as Fulton's vehicle passed which made him notice the vehicle. Given the failure of the vehicle to slow or move over, Hinds considered this a disregard for officer safety and pulled out onto northbound U.S. 35, turned his siren on, and attempted to initiate a traffic stop on Fulton. After Fulton did not immediately pull over and Hinds followed the vehicle for some distance - the facts suggest ½ to ¾ of a mile. (Exh. 10, at 77, 99). Hinds radioed dispatch and indicated he was in a low speed pursuit. The pursuit did not exceed the speed limit and ended after 38 seconds when Fulton eventually pulled over.

         The Department and local law enforcement utilize the same dispatch. Hamlet Police Chief Frank Lonigro (“Lonigro”) heard the dispatch, activated his lights and siren and responded as back up to Hinds. When Lonigro activated his lights and siren, his dashcam also activated. The complete dashcam video has been submitted to the court as well as a second video once Fulton was in custody of the events transpiring during Fulton's transport. (See Defendants' Exhibits A and C submitted with their Motion for Summary Judgment).

         Hinds trailed Fulton for some distance after radioing dispatch without Fulton pulling over his vehicle. Eventually, Fulton pulled over near the top of an overpass on northbound U.S. 35, but did not place his vehicle into the parked position. Hinds, having noticed that the vehicle was not in park, proceeded with caution as he considered the failure to put the vehicle in park a continued defiance of his lawful authority. Hinds remained at his patrol vehicle and ordered Fulton to place his hands outside the window. Fulton rolled his window down partially but the window was frozen and would not immediately roll down all the way. Hinds, not realizing the window was stuck, believed Fulton was willfully refusing to follow his command to place his hands out of the window as ordered. Hinds then unholstered his firearm and radioed dispatch that Fulton was ignoring officer commands. After repeated commands, Fulton's window was fully down and his hands were outside the window.

         It is at this point that the dashcam from Lonigro's vehicle shows him arriving at the scene and parking his patrol vehicle beside Hinds's vehicle. In their briefing, both sides take great liberties in their assessment of what the dashcam video shows or does not show and what can be heard to transpire on the video.

         What can be readily discerned from the dashcam video shows Hinds at his squad car with his firearm drawn and Fulton inside his vehicle with his hands outside the window as Lonigro approaches the scene, stops his vehicle and exits. (Exh. A, file ending in 22.27.23 beginning at 2:53). Hinds can be heard yelling commands to Fulton outside Lonigro's vehicle although not all the commands are clearly discernible since the recording takes place from inside the vehicle. At 2:55, Hinds is heard yelling to Fulton “with your right hand put the car in park and then put your hands outside the window.” At 3:14, Hinds demands Fulton open the car door from the outside. Fulton can be heard shouting “I have a dog in the car” as well as something else. Hinds then again demands he open his car door from the outside using one of his hands and then to remove his seatbelt with one hand. Hinds stated that Fulton brought both hands inside the vehicle to remove his seat belt and Hinds can be heard yelling “one hand.” (Exh. A, ...

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.