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Lewins v. Kunz

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

July 10, 2018




         This 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. [41]. 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.

         I. BACKGROUND

         A. Procedural Background

         Lewins 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. [6]. 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.

         Defendants filed their Motion for Summary Judgment on December 5, 2017. Dkt. [41]. Lewins filed his Response in opposition on January 8, 2018, Dkt. [46], and a Motion for Extension of Time to file exhibits, Dkt. [49]. 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. [58]. On June 25, 2018, Defendants filed their reply. Dkt. [59]. 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.

         B. Factual Background

         The 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 (2000).

         Kenneth 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. [42]-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. [42]-1, ¶ 3. On two previous occasions, Lewins allegedly sold cocaine to a confidential informant from the King Street address. Dkt. [42]-1 at 1; Dkt. [42]-1 at 4-15. On October 10, 2014, Det. Collins secured a “no knock” warrant to be executed at the King Avenue address. Dkt. [42]-1 at 1.

         Det. Collins and Officer Kunz agreed the SWAT team would execute the “no knock” warrant the same day it was issued. Dkt. [42]-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. [42]-1 at 2.

         As Officer Kunz approached the back door, he saw a heavy-set Black male in the rear bedroom through a window.[1] Dkt. [47]-1 at 1. Lewins left the bedroom and went into the bathroom to have a bowel movement. Dkt. [47]-1 at 1.

         By this 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 2.

         Officer 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. [47]-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. [47]-1 at 1. Officer Kunz handcuffed Lewins and slammed his face into the bathroom floor. Dkt. [47]-1at 1.

         Lewins 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. [42]-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. [42]-1 at 3. Officer Meier photographed Lewins' injuries.[2] Dkt. [47]-1at 1. At no time prior to his arrest did Officer Meier have any physical contact with Lewins. Dkt. [42]-1 a 3. Lewins did not file a notice of tort claim with IMPD or the City of Indianapolis. Dkt. [42]-2.

         C. Statement of Facts in Dispute

         The Defendants present a very different version of the events. The following facts are denied by Lewins and do not appear in his narrative.

         Upon 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. [42] 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.

         Officer 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. [42] 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. [42] 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.


         A 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 non-moving ...

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