United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
T. MOODY JUDGE
G. Viator, a police officer with the Lake Station Police
Department, was “working security” at the Chuck E.
Cheese restaurant in Hobart, Indiana, on October 19, 2014.
(DE # 50-6 at 1.) Plaintiff Damon Clemons was also there; he
had accompanied his brother, JR Clemons, and his niece to the
restaurant. Pl. Dep. 31 (DE # 61-1). At one point, JR
discovered that their coats had been moved by other
individuals, and an argument broke out between them and JR.
Pl. Dep. 33-34. According to plaintiff's version of the
events, by the time he got over to JR, Officer Viator was
already on the scene. Pl. Dep. 35:6-9.
surveillance of the restaurant (DE # 57, Exs. B, C, D)
reveals that plaintiff interacted with Officer Viator while
Officer Viator was attempting to handle JR. (DE # 57, Ex. D,
at 5:29:13-20.) The video shows plaintiff inserting his hands
into the space between Officer Viator and JR. At one point,
plaintiff places his hand directly in front of Officer
Viator's face, appearing to block Officer Viator's
view of JR. (Id. at 5:29:17.) Officer Viator argues
in his brief that plaintiff put both hands on his arm (DE #
49-1 at 3), while plaintiff asserts that he “never
interfered” and was merely telling JR to “cuff
up.” Pl. Dep. 36:15-17, 121:17.
video evidence shows that plaintiff then moved back a few
feet. (DE # 57, Ex. D, at 5:29:20-21.) Plaintiff claims that,
at this point, a Chuck E. Cheese manager instructed plaintiff
to stay where he was. Pl. Dep. 37:5-9. Plaintiff asserts that
he felt that another patron was about to hit him, so he
attempted to move away, but the manager blocked him with an
arm. Pl. Dep. 37-39. Plaintiff claims that he tried to go
under his arm, and the manager tried to get him in a choke
hold. Pl. Dep. 40:14-22.
according to plaintiff, the manager attempted to restrain him
by the legs. Pl. Dep. 126:7-10. Plaintiff admits that he
attempted to avoid being restrained during this time. Pl.
Dep. 119:21-22 (“I broke my legs free with my
feet.”); Pl. Dep. 119:14-16 (“He was frustrated
because he couldn't get ahold of me ‘cause I kept
moving.”); Pl. Dep. 125:17-18 (“I basically was
trying not to let him get a grip on me, that's
all.”). Then, Officer Viator hit him in the eye. Pl.
Dep. 126:7-10. Plaintiff claims he was then told
“[g]ive me your hands, ” at which point he
complied and was handcuffed. Pl. Dep. 126:13-17.
this, plaintiff alleges he was slammed “right on his
face.” Pl. Dep. 126:14-15. Plaintiff further alleges
that he was then punched in the ribs and face by Officer
Viator, while the manager grabbed his handcuffs and twisted
his hands and fingers. Pl. Dep. 127:5-6; 129:4-9. Ultimately,
plaintiff suffered a lacerated cornea, optical floor damage,
and an eye socket that was cracked in three different places.
Pl. Dep. 43:24-25, 44:1-5.
sued the City of Hobart, the City of Hobart Police
Department, another officer named Sergeant Claussen
(collectively, “the City defendants”), Officer
Viator, and CEC Entertainment, Inc. (“CEC”). (DE
# 3-1.) Plaintiff's suit alleges that defendants
committed state and federal constitutional violations
(specifically, unreasonable search and seizure, false arrest,
false imprisonment, and excessive use of force in violation
of the United States Constitution, and false arrest and false
imprisonment in violation of the Constitution of the State of
Indiana), and the state law torts of battery and intentional
infliction of emotional distress (“IIED”).
Viator, CEC, and the City defendants have each filed a motion
for summary judgment on all claims. (DE ## 48, 52, 58.) The
briefing period has expired for all motions, and they are
ripe for ruling. Each motion is addressed in turn below.
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). In responding to a motion for summary
judgment, 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). 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). A dispute about a material fact is genuine only
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. If no reasonable jury
could find for the non-moving party, then there is no
“genuine” dispute. Scott v. Harris, 550
U.S. 372, 380 (2007).
court's role in deciding a summary judgment motion is not
to evaluate the truth of the matter, but instead to determine
whether there is a genuine issue of triable fact.
Anderson, 477 U.S. at 249-50; Doe v. R.R.
Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.
1994). In viewing the facts presented on a motion for summary
judgment, a court must construe all facts in a light most
favorable to the non-moving party and draw all legitimate
inferences and resolve all doubts in favor of that party.
NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234
(7th Cir. 1995).
Officer Viator's Motion ...