United States District Court, N.D. Indiana, Hammond Division
NANCY KUHLMEY, Personal Representative of the Estate of John Edward Brown, II, Deceased, Plaintiff,
THE CITY OF HAMMOND, et al., Defendants.
OPINION AND ORDER
T. MOODY JUDGE
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.)
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.
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.)
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.
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.
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
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).
Statement of Genuine Disputes
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.
defendants are correct that plaintiff has failed to include
such a section in her response to the motions for summary
judgment. (See DE # 43.) However, she does
include a “Statement of Facts” in the response.
(See DE # 43 at 2-5.)
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).
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.
Unreasonable Seizure and Excessive Force
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