United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING IN PART AND GRANTING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
WALTON PRATT, JUDGE
matter is before the Court on a Motion for Summary Judgment
filed by Defendants Kenneth Kunz (“Officer Kunz”)
and Kent Meier (“Officer Meier”) (collectively,
Defendants). Dkt. . Pro se Plaintiff Marquis
Lewins (“Lewins”) filed a civil rights complaint
alleging that he was subjected to excessive force by the
Defendants while they were serving a “no knock”
search warrant on his residence. Lewins argues that summary
judgment is not appropriate. For the reasons stated below,
the Motion for Summary Judgment is granted in part
and denied in part.
is currently incarcerated at the Correctional Industrial
Facility. The Court screened his complaint and determined
that Lewins adequately stated an excessive force claim
pursuant to the Fourth Amendment and a state law claim of
negligence. Dkt. . Claims against all unknown John Doe
defendants were dismissed for failure to state a claim upon
which relief can be granted because “it is pointless to
include [an] anonymous defendant [ ] in federal court; this
type of placeholder does not open the door to relation back
under Fed.R.Civ.P. 15, nor can it otherwise help the
plaintiff.” Wudtke v. Davel, 128 F.3d 1057,
1060 (7th Cir. 1997). Id. Lewins was instructed that
he may seek leave to refile or add a claim against them.
Id. No such leave was ever requested.
filed their Motion for Summary Judgment on December 5, 2017.
Dkt. . Lewins filed his Response in opposition on January
8, 2018, Dkt. , and a Motion for Extension of Time to
file exhibits, Dkt. . The Court granted Mr. Lewin's
motion for time to file exhibits through February 9, 2018.
The Court also ordered that any reply would be due fourteen
days after the exhibits were filed. Lewins never filed any
exhibits. On June 8, 2018, the Court directed the Defendants
to file a reply, and specifically requested briefing on
Lewins' argument that notice under the Indiana Tort
Claims Act (“ITCA”) was not required. Dkt. .
On June 25, 2018, Defendants filed their reply. Dkt. .
The Defendants' summary judgment motion argues that
Lewins' constitutional claim is without merit because
their use of force was reasonable and because they are
entitled to qualified immunity. They also argue that his
state law claim for negligence is barred by the ITCA.
following statement of facts is not necessarily objectively
true, but as the summary judgment standard requires, the
undisputed facts and the disputed evidence are presented in
the light most favorable to Lewins as the non-moving party
with respect to the Motion for Summary Judgment. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150
Kunz is a Special Weapons and Tactics (“SWAT”)
team officer with the Indianapolis Metropolitan Police
Department (“IMPD”). The SWAT team executes
“no knock” warrants. Dkt. -1, ¶ ¶
1, 2. On or about October 10, 2014, Officer Kunz received a
call from IMPD Detective Patrick Collins (“Det.
Collins”). Det. Collins had been investigating Lewins
for dealing cocaine out of a home located at 1924 North King
Avenue, Indianapolis, Indiana (“the King Avenue
address”). Dkt. -1, ¶ 3. On two previous
occasions, Lewins allegedly sold cocaine to a confidential
informant from the King Street address. Dkt. -1 at 1;
Dkt. -1 at 4-15. On October 10, 2014, Det. Collins
secured a “no knock” warrant to be executed at
the King Avenue address. Dkt. -1 at 1.
Collins and Officer Kunz agreed the SWAT team would execute
the “no knock” warrant the same day it was
issued. Dkt. -1 at 1. The SWAT team broke up into two
groups. One team tried to gain access to the residence
through the front door, but was unsuccessful because the door
was barricaded shut. Officer Kunz led a group of officers to
obtain entry through the back door of the home. Dkt. -1
Officer Kunz approached the back door, he saw a heavy-set
Black male in the rear bedroom through a
window. Dkt. -1 at 1. Lewins left the bedroom
and went into the bathroom to have a bowel movement. Dkt.
-1 at 1.
time, Officer Kunz's group of officers had successfully
entered through the back door of the home. A large,
aggressive pit bull was in the living room. To disengage the
dog, an officer deployed a flash bang device into the living
room and the dog retreated to a second bedroom. Dkt. 42-1 at
Kunz pursued Lewins to the bathroom. Officer Kunz observed
Lewins, a 400-pound man, sitting on the toilet. Lewins told
Officer Kunz that the bathroom door was not locked. Dkt.
-1 at. 1. Prior to entering the bathroom, an officer
deployed a flash-bang device. Officer Kunz then knocked
Lewins to the floor and kicked him. In the meantime, a John
Doe officer stomped on Lewins' head, face, mouth, and
jaw. Officer Kunz also kicked Lewins in the body, head, and
mouth, knocking out his teeth. Dkt. -1 at 1. Officer Kunz
handcuffed Lewins and slammed his face into the bathroom
floor. Dkt. -1at 1.
received lacerations to his face and scalp and bruises and
abrasions on his arms, legs, torso, and head. Lewins was
handcuffed and placed in a chair while officers searched the
home. Dkt. 47-1 at 1. The search revealed, among other items,
cocaine, marijuana, $500.00 in cash, and three guns. Dkt.
-1 at 3. Despite asking to be transported to the
hospital, only medics appeared on scene to administer aid to
Lewins. Thereafter, he was arrested for dealing cocaine and
marijuana and illegal possession of a firearm. Dkt. -1 at
3. Officer Meier photographed Lewins'
injuries. Dkt. -1at 1. At no time prior to his
arrest did Officer Meier have any physical contact with
Lewins. Dkt. -1 a 3. Lewins did not file a notice of tort
claim with IMPD or the City of Indianapolis. Dkt. -2.
Statement of Facts in Dispute
Defendants present a very different version of the events.
The following facts are denied by Lewins and do not appear in
approaching the King Avenue address, the SWAT team was
immediately compromised. Individuals inside the residence
were peering out the windows of the home and saw the SWAT
team as it approached. Dkt.  at 2. As Officer Kunz
approached the back door, he saw Lewins through a bedroom
window. Officer Kunz began yelling commands, specifically,
“Police. We have a search warrant. Get your hands up
and lay flat on the ground.” Lewins did not comply.
Id. Officer Kunz then observed Lewins grab a bag of
cocaine and stuff it in the heater register of the bedroom
floor. Lewins then proceeded into the bedroom closet where
Officer Kunz saw him grab an item and put it in the waistband
of his pants. Officer Kunz assumed it was a gun. Id.
Kunz then followed Lewins to the locked bathroom. Upon
entering the bathroom, Officer Kunz observed Lewins sitting
on the toilet with his pants on; however, his body was leaned
into the shower with his hands behind the curtain. Dkt. 
at 3. Officer Kunz ordered Lewins to show his hands and get
on the ground. Lewins failed to comply with his orders.
Instead, he leaned his hands further behind the shower
curtain. Dkt.  at 3. Believing that Lewins was armed and
possessed a weapon behind the shower curtain, Officer Kunz
kicked Lewins twice in the stomach while continuing to yell
commands. Id. Officer Kunz's first two kicks
were unsuccessful, so he kicked Lewins again. However, as he
delivered the kick, Lewins lowered his head and the kick
landed on his chin causing a laceration. Id. The
final kick was effective and Lewins showed Officer Kunz his
hands. Officer Kunz then handcuffed Lewins. Id.
STANDARD OF REVIEW
motion for summary judgment asks that the court find that a
trial based on the uncontroverted and admissible evidence is
unnecessary because, as a matter of law, it would conclude in
the moving party's favor. See Federal Rule of
Civil Procedure 56. To survive a motion for summary judgment,
the non-moving party must set forth specific, admissible
evidence showing that there is a material issue for trial.
Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986).
The key inquiry is whether admissible evidence exists to
support a plaintiff's claims, not the weight or
credibility of that evidence, both of which are assessments
reserved to the trier of fact. See Schacht v. Wis.
Dep't of Corrections,175 F.3d 497, 504 (7th Cir.
1999). When evaluating this inquiry, the court must give the