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Kuhlmey v. City of Hammond

United States District Court, N.D. Indiana, Hammond Division

September 26, 2018

NANCY KUHLMEY, Personal Representative of the Estate of John Edward Brown, II, Deceased, Plaintiff,
THE CITY OF HAMMOND, et al., Defendants.



          Plaintiff Nancy Kuhlmey, as personal representative of the Estate of John Edward Brown, II, deceased, (“plaintiff”) brings this suit following the death of John Edward Brown, II, from a fatal gunshot wound. (DE # 1.) Plaintiff has sued the City of Hammond (“the City”), Hammond Chief of Police Brian Miller (solely in his official capacity as Chief of Police for the Hammond Police Department) (“Miller”), and four unnamed police officers from the Hammond Police Department referred to in the complaint as John Doe, Jack Doe, Jane Doe, and Janet Doe (the “Doe Defendants”). (DE # 1 at 1.)

         The matter is now before the court on two motions for summary judgment filed by the defendants. Defendants City of Hammond and Brian Miller (the “City Defendants”) filed a joint motion for summary judgment (DE # 33), and the Doe Defendants filed a joint motion for summary judgment (DE # 35). Plaintiff has responded to both pending motions. (DE ## 42, 43, 44, 45.) Replies were filed by both the City Defendants (DE # 48) and the Doe Defendants (DE # 49). These motions are fully briefed and are ripe for ruling.

         I. BACKGROUND[1]

         On February 16, 2014, the Hammond Police Department received a call that a female was stabbed in the mouth by her husband. (DE # 42-2 at 2.) Officers Carmen Ramirez and Michael Elkmann arrived at the scene. (Id. at 3.) Elkmann says he observed John E. Brown, II, holding two large knives. (DE # 27-6 at 10.) Plaintiff, citing a witness, asserts that Brown had only one knife. (DE # 42-6 at 30-31.)

         Elkmann says that Brown began moving towards him, while still holding the knives. (DE # 37-6 at 28, 31.) Another witness states that Brown moved towards the officer “a step or two.” (DE # 42-7 at 21.) Elkmann then discharged his firearm three times at Brown. (DE # 37-6 at 15.) Brown received two gunshot wounds from the shooting. (DE # 42-3 at 2.) As a result of the shooting, John E. Brown, II, was pronounced dead on February 16, 2014 at 9:46 p.m. (Id.)

         Based on these events, plaintiff filed a complaint on February 2, 2016, against the City of Hammond, Miller, and the four Doe Defendants. (DE # 1.) Plaintiff brings three claims: (1) unreasonable seizure and excessive force, pursuant to 42 U.S.C. § 1983, against the Doe Defendants in their individual and official capacities; (2) failure to train or supervise, pursuant to 42 U.S.C. § 1983, against the City and Miller; and (3) wrongful death, pursuant to Indiana Code § 34-23-1-1, against the Does defendants in their individual and official capacities. (DE # 1 at 7-14.) Discovery has been completed in this case, and defendants have moved for summary judgment on all claims. The court will now address the pending motions.


         Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary judgment is appropriate-in fact, is mandated-where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (internal citations and quotation marks omitted).

         The moving party bears the initial burden of demonstrating that these requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. Once the moving party has met his burden, the non-moving party must identify specific facts establishing that there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324). In doing so, the non-moving party cannot rest on the pleadings alone, but must present fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion for summary judgment, the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).


         A. Statement of Genuine Disputes

         First, both sets of defendants assert that the court should enter summary judgment because plaintiff has failed to comply with Northern District of Indiana Local Rule 56-1(b)(2) in her response to the motions for summary judgment. (See DE ## 48 at 1; 49 at 1.) That rule states that a response brief to a motion for summary judgment-or its appendix-“must include a section labeled ‘Statement of Genuine Disputes' that identifies the material facts that the party contends are genuinely disputed so as to make a trial necessary.” N.D. Ind. L.R. 56-1(b)(2).

         The defendants are correct that plaintiff has failed to include such a section in her response to the motions for summary judgment.[2] (See DE # 43.) However, she does include a “Statement of Facts” in the response. (See DE # 43 at 2-5.)

         Although plaintiff has not strictly complied with the local rules, this does not require the court to strike her factual statements. Rather, “it is clear that the decision whether to apply the rule strictly or to overlook any transgression is one left to the district court's discretion.” Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011) (affirming a district court's decision to consider a defendant's summary judgment motion although it did not comply strictly with all formal requirements of the local rule).

         In the case at hand, plaintiff has presented a factual statement in her response brief which outlines the relevant facts of the case from her perspective and cites to the record in support of those facts. It may not be perfect compliance, but local rules are “not intended to provide a maze of technical traps to complicate and delay litigation without advancing merits.” Stevo, 662 F.3d at 887. Therefore, the court will not grant summary judgment on this basis.

         B. Unreasonable Seizure and Excessive Force

         Plaintiff brings her first claim under 42 U.S.C. § 1983 for unreasonable seizure and excessive force and for violations of the “Fourth, Fifth, Eighth, and Fourteenth Amendments.” (DE # 1 at 7-10.) Plaintiff brings this claim against the Doe Defendants in both their individual ...

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