United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge
Timothy Johnson brought this lawsuit after an altercation
during his arrest left him with a compound leg fracture. The
parties agree on this, and not much else. Mr. Johnson
contends that Defendant Officer Michael Rogers used excessive
force in kicking his leg after he stood up (despite orders to
remain seated), ostensibly to get off of the cold grass. But
Mr. Johnson's version of events is flatly and
unequivocally contradicted by the surveillance video from
outside the Community Health Services where the incident
occurred. Moreover, though Mr. Johnson now contends that he
was just standing in the grass when Officer Rogers engaged
him, Mr. Johnson ultimately pleaded guilty to resisting law
enforcement. Mr. Johnson's Fourth Amendment claim under
§ 1983 therefore fails to clear the double barriers
posed by qualified immunity and Heck v. Humphrey,
512 U.S. 477 (1994). Mr. Johnson's state law
claims also fall short under the Indiana Tort Claims Act and
on their merits.
evaluating Defendants' Motion for Summary Judgment, the
Court is in the unfortunate situation of first having to
address several ancillary motions regarding briefing. Then,
the Court must parse Mr. Johnson's myriad evidentiary
objections to the evidence cited in Defendants' briefing.
Because Defendants failed to correct the easily fixable
evidentiary issues identified by Mr. Johnson, and because Mr.
Johnson did not substantially augment this record with his
own filings, the Court is left with an extremely sparse
record from which to draw its factual basis. Despite doing
themselves no favors in failing to correct the evidentiary
shortcomings, the videographic evidence places this case
beyond the purview of a jury and demonstrates that Defendants
are entitled to judgment as a matter of law. Therefore, after
resolving the ancillary matters and evidentiary objections,
the Court GRANTS Defendants' Motion for
Summary Judgment. [Filing No. 106.]
Johnson initially filed this lawsuit in Marion Superior Court
on September 9, 2016, naming Indianapolis Metropolitan Police
Department (“IMPD”) Officer Rogers in
his individual and official capacities, former IMPD Chief
Troy Riggs in his official capacity, and the City of
Indianapolis (“the City”). [Filing
No. 1-1 at 2-9.] In his Complaint, Mr. Johnson alleges
that Officer Rogers used excessive force by kicking him while
handcuffed. [Filing No. 1-1 at 4.] As a result, Mr.
Johnson alleges a Fourth Amendment excessive force claim
against Officer Rogers; a “failure to train”
Monell claim against Chief Riggs and the City; a
claim under Monell that IMPD's policies,
practices, procedures, and customs “permitted and
encouraged” excessive force, also against Chief Riggs
and the City; a state-law negligence claim against Officer
Rogers and the City; and a state-law battery claim against
Officer Rogers and the City. [Filing No. 1-1 at
2-8.] Defendants removed this matter to this Court on
October 10, 2016. [Filing No. 1.]
October 18, 2018, Defendants moved for summary judgment on
all of Mr. Johnson's claims. [Filing No. 106.]
That motion, as well as several ancillary motions and
objections, are ripe for the Court's consideration and
are addressed in turn below.
ancillary motions pend before the Court, two of which impact
the briefing the Court may consider in ruling upon
Defendants' Motion for Summary Judgment.
Motion for Leave to File Amended Brief
first is Mr. Johnson's Motion for Leave to File His
Amended Brief in Opposition to Defendants' Motion for
Summary Judgment, [Filing No. 124], to which he
attaches his proposed amended response brief, [Filing No.
124-2], and proposed amended appendix in support,
[Filing No. 124-1]. Mr. Johnson explains that he was
unable to complete a proper response brief by the original
deadline because of an impending trial in state court which
required counsel's attention and because he received
discovery close to his deadline for responding to summary
judgment which required review. [Filing No. 124 at
1-3.] Defendants oppose Mr. Johnson's Motion,
arguing that Mr. Johnson delayed seeking certain discovery,
that they would be prejudiced by an amended brief, that the
amended brief fails to comply with the Local Rules, and that
the Motion improperly attempts to “sidestep this
Court's denial of Plaintiff's motions for extension
of time.” [Filing No. 131 at 1-6.] In reply,
Mr. Johnson disputes Defendants' argument that he delayed
discovery, disputes Defendants' claim of prejudice, and
argues that the Court never addressed the merits of his
motions for extension of time, but instead denied them as
moot. [Filing No. 135.]
Seventh Circuit has explained in a slightly different
context, “In the normal course of events, justice is
dispensed by the hearing of cases on their merits . . .
.” Schilling v. Walworth Cnty. Park & Planning
Comm'n, 805 F.2d 272, 275 (7th Cir. 1986).
And without wading into the sideshow of the parties'
ongoing discovery disputes, Mr. Johnson's counsel's
trial schedule provides a legitimate basis for requesting
additional time to prepare an adequate response brief. That
is not to say that Mr. Johnson's counsel did an exemplary
job of managing this situation. For starters, Mr.
Johnson's counsel waited 22 days after Defendants filed
their Motion for Summary Judgment to file his Motion for
Extension of Time, [see Filing No. 112],
despite only having 28 days allotted to file the response,
S.D. Ind. L.R. 56-1(b), and despite surely knowing about his
impending state court trial date well in advance of the
response deadline. Mr. Johnson's counsel also surely
understood that, absent court order, Defendants were entitled
to a 14-day window for responding to his Motion for Extension
of Time from the date he filed the Motion. See S.D.
Ind. L.R. 7-1(c)(3)(A). Mr. Johnson could have substantially
increased the likelihood of receiving a ruling on the merits
of his Motion for Extension of Time by simply proactively
filing the motion in the first 14 days of his summary
judgment response time to allow time for Defendants to
respond and for the Court to rule. Of course, this will not
always be practicable where the need for additional time is
unforeseeable. But this is not such a case.
Mr. Johnson has the better of the argument. First, Mr.
Johnson is correct that the Court never ruled on the
substance of his Motions for Extension of time. Rather, the
Court denied the motions as moot after Mr. Johnson timely
filed a response to Defendants' Motion for Summary
Judgment. [Filing No. 120; Filing No. 121.]
Defendants are incorrect to suggest that Mr. Johnson's
instant Motion for Leave is somehow improper or filed in bad
faith. Second, Mr. Johnson has, as explained above, set forth
a legitimate basis for requiring additional time to complete
a proper brief. Third, given the ultimate result in this
case, Defendants will not be prejudiced by consideration of
the Amended Response. But most importantly, the Court
strongly prefers to resolve cases on their merits, and the
considerations identified by Defendants are not outweighed by
this preference. The Court therefore GRANTS
Mr. Johnson's Motion to Amend, [Filing No. 124],
and has fully considered the arguments raised in the Amended
Response, [Filing No. 124-2], in addressing
Defendants' Motion for Summary Judgment.
Motion to Strike
Second, Defendants move to strike most of Mr. Johnson's
surreply, arguing that it exceeds the scope of a permissible
surreply under Local Rule 56-1(d). [Filing No. 133.]
Given the ultimate result of Defendants' Motion for
Summary Judgment, and the Court's interest in having a
fully developed record, the Court DENIES
Defendants' Motion to Strike. The Court has considered
Mr. Johnson's surreply in ruling herein; to the extent it
went beyond addressing Defendants' new evidence raised in
reply, it added little to Mr. Johnson's arguments.
Request for Oral Argument
Mr. Johnson has filed a Request for Oral Argument,
[Filing No. 129], which Defendants oppose,
[Filing No. 132]. The Court finds that the
undisputed videographic evidence and well-established legal
doctrines at issue obviate any need for additional, oral
presentations on the issues raised in Defendants' Motion
for Summary Judgment. In the main, the case requires nothing
more than a straightforward application of qualified
immunity, Heck, and state tort doctrines to the
events depicted in the surveillance video, as informed by the
limited portions of factual background which are supported by
the admissible evidence. The Court therefore
DENIES Mr. Johnson's Request for Oral
Court next addresses the scope of the evidence which may be
properly considered in evaluating Defendants' Motion for
Summary Judgment. Mr. Johnson lodges what are largely
authenticity objections to all or parts of Defendants'
exhibits 6 through 10 and 14, found at Filing No.
106-6 through Filing No. 106-10 and Filing
No. 106-14, [Filing No. 124-2 at 1-5], and to
much of Defendants' additional evidence tendered on reply
at Filing No. 127-1 and Filing No. 127-2,
[Filing No. 128 at 6-7]. Mr. Johnson additionally
objects to Defendants' reliance upon the affidavit of
Officer Aaron Sullivan, which Mr. Johnson maintains
constitutes undisclosed expert testimony. [Filing No.
124-2 at 4-5.]
reply, Defendants argue that they properly supported their
factual contentions with citations to record evidence in
compliance with the Federal Rule of Civil Procedure
56(c)(1)(A), Local Rule 56-1(e), and the
undersigned's Practices and Procedures. [Filing No.
126 at 2-5.] Specifically, Defendants argue that Mr.
Johnson's objections should be overruled because certain
documents were “tendered . . as exhibits tendered
during [a] deposition” and because others are
judicially noticeable. [Filing No. 126 at 3-4.]
Defendants also argue that the plea agreement and partial
transcript from the change-of-plea hearing are subject to
judicial notice. [Filing No. 126 at 4.] Finally,
Defendants argue that Officer Sullivan's affidavit
contains only lay testimony regarding the policies and
training in place at the time of the incident. [Filing
No. 126 at 4-5.]
and foremost, it is clear that Defendants have operated under
a misunderstanding of what is required of evidence on summary
judgment. Compliance with Rule 56(c)(1)(A), Local Rule
56-1(e), and the Practices and Procedures are necessary but
not sufficient conditions that must be met for evidence to be
considered on summary judgment. Thus, Defendants'
recitation of the law in their reply brief is incomplete.
They are correct that parties must cite “to particular
parts of materials in the record, ” Fed. R. Civ. P.
56(c)(1)(A), and must “support each fact the party
asserts in a brief with a citation” to evidence, S.D.
Ind. L.R. 56-1(e). They are also correct, as a general
matter, that the types of submissions which may be considered
on summary judgment include materials disclosed in discovery
or tendered at a deposition. Cf. S.D. Ind. L.R.
56-1(e) (noting that parties may support factual assertions
with citations “to a discovery response, a deposition,
an affidavit, or other admissible evidence”). But these
requirements explain only how factual assertions must be
supported. They do not address what makes the evidence cited
in support of those factual assertions substantively
admissible on summary judgment. As to that issue, the case
law is clear: “In [considering] summary judgment, a
court may consider any material that would be admissible or
usable at trial, including properly authenticated and
admissible documents or exhibits.” Smith
v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001)
(emphasis added) (internal quotations omitted). Put another
way, Defendants' argument regarding compliance with the
citation provisions has it backwards-“[a]dmissibility
is the threshold question because a court may consider only
admissible evidence in assessing a motion for summary
judgment.” Gunville v. Walker, 583 F.3d 979,
985 (7th Cir. 2009) (collecting authorities).
assess admissibility, courts turn to the Federal Rules of
Evidence. See id.; Fed. R. Evid. 1101. As
set forth above, most of Mr. Johnson's objections deal
with authentication. In general, “[t]o satisfy the
requirement of authenticating . . . an item of evidence, the
proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it
is.” Fed. R. Evid. 901(a). Rule 901(b) sets
forth many forms of evidence that one may offer to meet this
burden, though many documents of the type offered by
Defendants may be self-authenticating under Rule 902. Public
documents and records of regularly conducted activities are
generally self-authenticating (requiring no additional
evidence to demonstrate authenticity) if accompanied by seal
or certification. See, e.g., Fed. R. Evid.
902(1)-(2), (4), (11).
problem for Defendants is that the challenged exhibits lack
any evidence supporting authentication. Exhibits 6 through 10
and 14, which are attachments to Filing No. 106,
purport to be internal affairs transcripts (Exhibits 6 and
7), documents relating to a “Citizens Police
Complaint” (Exhibit 8, except page 4), Mr.
Johnson's guilty plea agreement (exhibit 9), an excerpt
from Mr. Johnson's change-of-plea hearing (exhibit 10),
and documents which purport to be Officer Rogers'
personnel records (exhibit 14). Aside from the inclusion of
an index from the depositions at which they were offered and
other miscellaneous discovery materials, Defendants'
evidentiary submissions on reply appear to be mere duplicates
of Exhibit 8, [see Filing No. 127-2 at
5-11], and Exhibit 14, [see Filing No.
127-1 at 21-50]. Absent from any of these filings are
any seals, certificates, or signatures that would allow for
self-authentication under Rule 902(1), (2), and (4). Also
absent is any independent evidence-such as sworn
declarations-suggesting that the documents are “what
the proponent claims” they are under Rule 901(a) and
(b). Defendants' only responses to these objections are
that they were offered at a deposition or produced to Mr.
Johnson in discovery. But neither response has anything to do
with the authenticity of the documents. Depositions, for
example, are not limited to questioning about authentic
documents. And production in discovery does not preclude Mr.
Johnson from challenging authenticity-again, the threshold
issue before the Court.
Seventh Circuit very recently “examine[d] . . . how
district courts manage summary judgment practice,
particularly with respect to the presentation of evidence for
purposes of summary judgment.” Cehovic-Dixneuf v.
Wong, 895 F.3d 927, 930-31 (7th Cir. 2018) (Hamilton,
J.). In its in-depth examination of summary judgment
procedure, the court addressed how situations much like this
one may be handled, observing:
It is not unusual for parties to submit documentary evidence
to support or oppose summary judgment, as happened here,
without fully authenticating the documents with affidavits
thorough enough to overcome any and all evidentiary
objections that could be raised.
When that happens-when one side fails to cross all
evidentiary t's and dot all procedural i's-it is also
not unusual for opposing lawyers to choose to overlook
available evidentiary or other procedural objections. Lawyers
should know their cases. Courts are entitled to rely on
lawyers to decide which potential objections are worth
raising and which are not. This is especially so when many
such defects in summary judgment evidence could be cured
quickly with a supplemental affidavit or two. Neither the
rules of evidence nor the rules of civil procedure require
lawyers or judges to raise all available evidentiary
Id. at 931-32 (citations omitted). But the court
also anticipated that a party might well raise such
evidentiary objections, as they are entitled to do. When that
happens, the other party is entitled to respond, perhaps
“with a supplemental affidavit or two[, ] to cure the
problems.” Id. at 932.
“Nevertheless”-even where it is abundantly clear
that the problems could have easily been cured by submission
of authenticating affidavits or self-authenticating
certifications-“when an objection is raised, the court
must apply Rule 56(e) and sustain the objection.”
Elghanmi v. Franklin Coll. of Ind., Inc., 2000 WL
1707934, at *1 (S.D. Ind. 2000) (Hamilton, J.) (cited
with approval in Cehovic-Disneuf, 895 F.3d at 932).
it is abundantly clear that most if not all of the
authenticity issues in Defendants' exhibits could have
been cured with affidavits attesting to their authenticity or
certifications and signatures from the appropriate public
officials. The unsworn statements in the internal affairs
transcriptions could have been brought within the purview of
Rule 56(c)(1) with affidavits from the interviewees
attesting, under penalty of perjury, that the statements are
true. But instead of simply curing these deficiencies,
Defendants replied with inapposite arguments about the
documents' use in depositions.
remaining argument is that the documents relating to Mr.
Johnson's guilty plea are subject to judicial notice.
Rule 201 allows the Court to take judicial notice of
adjudicative facts which are “not subject to reasonable
dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b). As noted
above, the documents themselves (the plea agreement and the
change-of-plea transcript) lack authenticating evidence under
Rule 901(a) or seals or certifications which would render the
documents self-authenticating under Rule 902. In any event,
Rule 201 permits the Court to take judicial notice of facts,
not documents. Cf. In re Lisse, 905 F.3d 495, 497 (7th
Cir. 2018) (Easterbrook, J., in chambers) (“That
document is not subject to judicial notice because it is not
evidence of an adjudicative fact. . . . If the document were
being offered just to show that it had been filed, that fact
might be subject to judicial notice, but the
‘Request' does not suggest that appellant wants
this court to take notice that a particular document was
filed on a specific date in some other tribunal.”).
Defendants are actually requesting is that the Court take
judicial notice of the charges to which Mr. Johnson pleaded
guilty in State v. Johnson, No. 49G09-1411-F6050357
(Marion Super. Ct. judgment entered Mar. 2, 2017), and any
admissions Mr. Johnson may have made during the
change-of-plea hearing. The Court may properly grant the
former request, inasmuch as Mr. Johnson does not dispute that
he was convicted of resisting law enforcement under Indiana
Code section 35-44.1-3-1(a)(1) and inasmuch as the judgment
and “Sentencing Order” are public records not
subject to reasonable dispute. The Court may not, however,
grant the second request. While the contents of the
transcript may be the type of evidence subject to judicial
notice, it cannot be “readily determined” because
the transcript appears nowhere on the publicly-available
docket. See State of Indiana v. Timothy Johnson,
“Case Number” field enter
“49G09-1411-F6-050357” and press
“Search”) (last accessed Jan. 11, 2019). Without
ready access to the document, the Court, as a practical
matter, is unable to take judicial notice of the facts
contained in it. The Court therefore declines to take
judicial notice of the state-court proceedings beyond the
fact of Mr. Johnson's guilty plea and convictions under
Indiana Code sections 35-44.1-3-1(a)(1) and 35-45-2-1(a)(2).
are problems of Defendants' own making. Had Defendants
simply replied to Mr. Johnson's objections with
authenticating affidavits or self-authenticating versions of
the previously-tendered exhibits, and proffered declarations
adopting unsworn statements under oath, they could have
addressed most of Mr. Johnson's objections. But on this
record, with the exception of the limited judicial notice of
Mr. Johnson's guilty plea and convictions for resisting
law enforcement and intimidation, “the court must apply
Rule 56(e)” and SUSTAIN Mr.
Johnson's objections to Exhibits 6 through 10 and 14 and
the duplicate exhibits offered on reply. Elghanmi, 2000
WL 1707934, at *1.
Objection to Officer Sullivan's Affidavit
Johnson's final objection is to Exhibit 11, [Filing
No. 106-11], the affidavit of Officer Sullivan, which
Mr. Johnson argues should be excluded as undisclosed expert
testimony. [Filing No. 124-2 at 4.] In reply,
Defendants do not dispute that Officer Sullivan was not
disclosed as an expert, but instead argue that Officer
Sullivan's affidavit contains only lay testimony.
[Filing No. 126 at 4-5.]
Seventh Circuit has explained,
Lay testimony results from a process of reasoning familiar in
everyday life, while expert testimony results from a process
of reasoning which can be mastered only by specialists in the
field. We have explained that a law-enforcement officer's
testimony is a lay opinion if it is limited to what he
observed or to other facts derived exclusively from a
particular investigation. On the other hand, an officer
testifies as an expert when he brings the wealth of his
experience as an officer to bear on those observations and
makes connections for the jury based on that specialized
United States v. Christian, 673 F.3d 702, 709 (7th
Cir. 2012) (alterations, quotations, and citations omitted).
The court acknowledged, however, that in application the
“distinction between expert and lay testimony is often
far from clear.” Id.
Sullivan's affidavit straddles this divide, meaning that
some of his observations must be excluded as undisclosed
expert testimony, while others may be considered in
evaluating Defendants' Motion for Summary Judgment.
Officer Sullivan's observations about what happened,
which are entirely based upon his review of the surveillance
footage, depend upon him “mak[ing] connections for the
[court] based on [his] specialized knowledge.”
Id. This includes paragraphs 19, 20, and 25 through
28, [Filing No. 106-11 at 3-4], all of which offer
Officer Sullivan's assessment and interpretation of the
incident. The other paragraphs addressing the training
officers undergo regarding use-of-force techniques constitute
permissible lay testimony, based upon Officer Sullivan's
personal experience as a use-of-force instructor. These
paragraphs do not opine that Officer Rogers complied with all
of the training and policies, but Officer Sullivan's
testimony regarding the training all IMPD officers underwent
is relevant to Officer Rogers' state of mind and Mr.
Johnson's Monell claims against the City.
See, e.g., Christian, 673 F.3d at 709
(concluding that testimony regarding agents' training was
lay testimony relevant to their state of mind). The Court
therefore SUSTAINS IN PART and
OVERRULES IN PART Mr. Johnson's
objection to Exhibit 11.