United States District Court, S.D. Indiana, Evansville Division
MARQUELLE L. SMITH, Plaintiff,
HERBERT ADAMS OFFICER, BLAKE HOLLINS OFFICER, J.T. VANCLEAVE OFFICER, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT, DENYING PLAINTIFF MARQUELLE SMITH'S MOTION FOR
SUMMARY JUDGMENT, AND DIRECTING ENTRY OF
EVANS BARKER, JUDGE
Marquelle Smith brought this civil rights action pursuant to
42 U.S.C. § 1983 alleging that he was subjected to
excessive force and racial discrimination by Evansville
Police Department officers during a traffic stop on February
20, 2017. Dkt. 25 at 2. He further alleged that the officers
impeded his access to medical care after being tasered.
Id. The Court screened his Complaint on May 25,
2017, and allowed his claims against Officer Adams, Officer
Hollins, Officer Vancleave, and Sheriff Williams to proceed.
Id. The remaining claims and defendants were
dismissed. On May 9, 2018, the Court granted the
defendants' partial motion to dismiss. Dkt. 40. The only
claims remaining are Mr. Smith's excessive force and
impediment of medical care claims against Officers Adams,
Hollins, and Vancleave.
before the Court are cross motions for summary judgment filed
by the defendants, dkt. 57, and Mr. Smith, dkt.
Summary Judgment Legal Standard
motion for summary judgment asks the court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a). On summary judgment, a party must show the court what
evidence it has that would convince a trier of fact to accept
its version of the events. Gekas v. Vasilades, 814
F.3d 890, 896 (7th Cir. 2016). The moving party is entitled
to summary judgment if no reasonable fact-finder could return
a verdict for the non-moving party. Nelson v.
Miller, 570 F.3d 868, 875 (7th Cir. 2009). 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 court views the record in the
light most favorable to the non-moving party and draws all
reasonable inferences in that party's favor. Skiba v.
Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir.
2018). It cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are
left to the fact-finder. Miller v. Gonzalez, 761
F.3d 822, 827 (7th Cir. 2014). The court need only consider
the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh
Circuit Court of Appeals has repeatedly assured the district
courts that they are not required to “scour every inch
of the record” for evidence that is potentially
relevant to the summary judgment motion before them.
Grant v. Trustees of Indiana University, 870 F.3d
562, 573-74 (7th Cir. 2017). The non-moving party bears the
burden of specifically identifying the relevant evidence of
record. D.Z. v. Buell, 796 F.3d 749, 756 (7th Cir.
reviewing cross-motions for summary judgment, all reasonable
inferences are drawn in favor of the party against whom the
motion at issue was made. Valenti v. Lawson, 889
F.3d 427, 429 (7th Cir. 2018) (citing Tripp v.
Scholz, 872 F.3d 857, 862 (7th Cir. 2017)). The
existence of cross-motions for summary judgment does not
imply that there are no genuine issues of material fact.
R.J. Corman Derailment Servs., LLC v. Int'l Union of
Operating Engineers, Local Union 150, AFL-CIO, 335 F.3d
643, 647 (7th Cir. 2003).
Material Facts 
with the foregoing, the following facts were evaluated
pursuant to the standards set forth above. Moreover, certain
actions taken and statements made during the relevant
shooting, arrest, handcuffing, and subsequent medical care
are not in dispute because the Court can base its decision on
the audio and video evidence of the body camera videos taken.
See Scott v. Harris, 550 U.S. 372, 379-81 (2007)
(“[the court] should have viewed the facts in the light
depicted by the videotape”).
Officers Adams, Hollins, and Vancleave have been patrolmen
with the City of Evansville Police Department
(“EPD”) for over five years each. Officer
Amuzie has been a patrolman with the EPD for
three years. Officers Adams, Hollins, Vancleave, and Amuzie
have all received training through the Indiana Law
Enforcement Academy and the Southwestern Indiana Law
Enforcement Academy and receive regular training on an annual
February 20, 2017 at approximately 10:20 p.m., multiple EPD
officers, including the defendants, were dispatched to the
area of Jefferson Avenue and Bedford Avenue in Evansville,
Indiana based on a 911 call for “shots fired and six
males [sic] subjects fighting” and that someone had a
gun. Multiple witnesses in the area confirmed shots had been
fired, including Randy Wolfe (“Wolfe”) and his
girlfriend, Connie DeWeese (“DeWeese”), and
Latiess Reed (“Reed”), a resident of 831
Jefferson Avenue. Dkt. 59-5 at 9-10.
the officers arrived at the scene, they were in fully marked
police cars and wearing their police uniforms with police
badges on display. The officers were familiar the area
because of similar runs prior to February 20, 2017, including
the specific address of 831 Jefferson Avenue as being a
residence involved with prior runs for “shots
February 20, 2017, when the EPD officers, including the
defendants arrived, they observed 10-15 people near Jefferson
Avenue and Bedford Avenue. Officers Hollins and Amuzie
arrived first with Officer Adams arriving shortly thereafter.
Officers Adams, Hollins, and Amuzie observed three males near
a parked car that was facing eastbound on Jefferson Avenue.
One of the males - later identified as Mr. Smith - appeared
to be arguing near a car with the other two subjects. Ms.
Reed confirmed that Mr. Smith was “mad” because
someone had damaged his passenger side mirror. Dkt. 59-5 at
9. Mr. Smith also confirms he was upset at that time and had
been drinking that night. Dkt. 59-6 (Smith Depo) at 28:9-10,
Adams, Hollins, and Amuzie all took defensive positions with
their firearms drawn but aimed at the ground and flashlights
out. They told the subjects near the car to show their hands,
be quiet, and move away from the car. Two of the subjects,
but not Mr. Smith, moved towards the sidewalk and away from
the car and showed their hands, while Mr. Smith remained by
Adams, Hollins, and Amuzie did not know whether Mr. Smith had
a firearm but continued issuing commands to Mr. Smith to show
his hands and to not get in the car. Mr. Smith did not stop
and, instead, entered his car and started the engine.
Officers Hollins, Adams, and Amuzie continued to yell at Mr.
Smith to exit the car. Dkt. 60 (Ex. 7) (Off. Hollins Camera)
at 00:03. At that time, Officer Adams was standing in the
middle of the street on Jefferson Avenue. Mr. Smith put the
car in drive and accelerated toward Officer Adams. Dkt. 60
(Ex. 7) at 00:08. The tire tracks from Mr. Smith's car
can be seen in the road. Dkt. 60 (Ex. 8) (Off. Adams Camera)
at 4:08. As Mr. Smith's car passed Officer Adams, it
veered towards Officer Hollins, and Officer Adams believed
Mr. Smith could be attempting to run Officer Hollins over.
Officer Adams was also hit with something in his knee.
EPD officers, including Officers Hollins, Adams, and Amuzie,
heard Mr. Smith's tires squeal as he was accelerating and
believed Mr. Smith was accelerating his car toward Officer
Adams in an attempt to cause serious bodily injury or deadly
harm to Officer Adams. Officers Hollins, Adams, and Amuzie
were also concerned that Mr. Smith's car could cause
serious bodily injury to Officer Hollins, who was in the path
of the car, and other civilians who were in the area. Witness
Wolfe also observed Mr. Smith's car drive east on
Jefferson Avenue “towards the direction of the
officers” and “heard the driver accelerate the
car.” Dkt. 59-5 at 9.
result of their belief, Officer Adams and Officer Hollins
each fired his EPD-issued firearm at the tires and body of
the car attempting to stop Mr. Smith's car. Officer Adams
fired his EPD-issued firearm three times. Officer Hollins
fired his EPD-issued firearm one time. The bullets struck Mr.
Smith's tire and rear door and caused Mr. Smith to crash
his car into a garage across the street. Dkt. 59-6 at
45:4-10; Dkt. 59-7 (EPD Photographs) at 1-2. Officer Adams
and Officer Hollins did not fire their weapons again after
Mr. Smith's car stopped. Officer Vancleave arrived on the
scene after Mr. Smith's car crashed into the garage.
Hollins and Officer Adams then quickly approached Mr.
Smith's car with their firearms out and issued
additional, verbal commands to Mr. Smith for him to show his
hands and exit the car. Dkt. 60 (Ex. 8) at 00:01; Dkt. 60
(Ex. 7) at 00:13. Mr. Smith heard the officers tell him to
turn off the car and put his hands out the window. Dkt. 59-6
at 47:13-16. Witness Wolfe also observed the EPD officers
approach Mr. Smith's car and give him commands to exit
the car. Dkt. 59-5 at 7. While Mr. Smith initially put his
hands outside of his car, dkt. 60 (Ex. 8) at 00:05, he pulled
them back into his car outside the view of the officers. Dkt.
60 (Ex. 8) at 00:16. Mr. Smith then threw what the officers
believed to be drug contraband out the window of his car and
continued to keep his hands inside the car. Dkt. 60 (Ex. 8)
Hollins approached Mr. Smith's car with Officers Adams
covering him. Dkt. 60 (Ex. 8) at 00:27; Dkt. 60 (Ex. 7) at
00:38. When Officer Hollins attempted to open the car door,
he realized it was locked and proceeded to unlock it in order
to get Mr. Smith out of his car and onto the ground. Dkt. 60
(Ex. 8) at 00:27; Dkt. 60 (Ex. 7) at 00:50. At the same time,
Mr. Smith put his hands down towards his waist band and
appeared to be reaching for something inside of the car. Dkt.
60 (Ex. 8) at 00:30. The officers then told Mr. Smith to keep
his hands outside the car and not to reach for anything. Dkt.
60 (Ex. 8) at 00:30. They also ordered Mr. Smith to get out
of the car and give them his hands, but Mr. Smith refused.
Dkt. 60 (Ex. 8) at 00:32. At some point though, Mr. Smith
began repeating, “Pull me out.” Dkt. 60 (Ex. 8)
at 00:35; Dkt. 60 (Ex. 7) at 00:55. Officer Vancleave grabbed
Mr. Smith's arm in an attempt to keep Mr. Smith's
hands in view of the officers while pulling Mr. Smith out of
the car through the window. Dkt. 60 (Ex. 8) at 00:35; Dkt. 60
(Ex. 7) at 00:55. Midway through Officer Vancleave's
effort to pull Mr. Smith out of the window, Mr. Smith began
forcibly pulling away from the officers and hooked his foot
inside the car in an apparent attempt not to allow himself to
be pulled out of the car. Mr. Smith also then again appeared
to reach for something inside of his car. Mr. Smith admits
that after the officers told him to show his hands, he still
reached into his car towards his waist but claims he was
attempting to unbuckle his seatbelt. Dkt. 59-6 at 51:7-15. As
a result of Mr. Smith's movements, Officer Vancleave
tased Mr. Smith one time not knowing for what Mr. Smith was
reaching. Dkt. 60 (Ex. 8) at 00:37; Dkt. 60 (Ex. 7) at 00:57.
Mr. Smith was then pulled from the car.
to Mr. Smith, only Officer Hollins and Officer Vancleave
touched Mr. Smith once he was outside his car. Dkt. 59-6 at
55:7-10. Once Mr. Smith was outside the car, the officers
continued to give commands to Mr. Smith to give them his
hands, but his hands remained under his stomach and out of
sight of the officers. Dkt. 60 (Ex. 8) at 00:50. The officers
attempted to lift Mr. Smith up to get his hands, but he
continued to forcibly resist the officers by pulling away and
pulling his body away from the officers. Dkt. 60 (Ex. 7) at
1:13. The officers were eventually able to handcuff Mr.
Smith. Dkt. 60 (Ex. 8) at 01:02. For a moment, Mr. Smith
apologized to the officers stating, “I'm sorry
officers.” Dkt. 60 (Ex. 7) at 01:34; Dkt. 60 (Ex. 8) at
1:19. Even after Mr. Smith apologized, he continued to
forcibly struggle with the officers and pull his arms away
and even yelled, “Fuck that” and “I
don't give a fuck, ” at the officers. Dkt. 60 (Ex.
8) at 1:37; Dkt. 60 (Ex. 7) at 1:52. The officers then told
Mr. Smith to roll over, so they could get him off the ground.
Dkt. 60 (Ex. 7) at 1:52; Dkt. 60 (Ex. 8) at 1:37.
this time, EPD officers attempted to keep the peace with a
crowd of people that was forming. Dkt. 60 (Ex. 8) at 1:37. At
that point, a crowd of people began forming and an unknown
individual began walking towards the officers forcing the
officers to take their focus off of Mr. Smith and towards the
unknown male telling him to go inside his home. Dkt. 60 (Ex.
8) at 01:45; Dkt. 60 (Ex. 7) at 2:02. The unknown individual
continued walking towards the officers causing one officer to
state, “Watch this guy.” Dkt. 60 (Ex. 8) at 2:06.
Not knowing what the unknown male was doing, not knowing if
Mr. Smith still had a weapon on him, and as a result of Mr.
Smith's aggressive behavior, Mr. Smith had to be secured
by taking him to the ground again and taking Mr. Smith to
subdue him. Dkt. 60 (Ex. 8) at 2:07; Dkt. 60 (Ex. 7) at 2:14.
In the meantime, Mr. Smith became angry when he asked if he
could smoke a cigarette and when denied that request, stated,
“What do you mean, ‘Hell no?'” and
started to forcibly resist the officers again by trying to
pull away from the officers' grip and get away. Dkt. 60
(Ex. 7) at 2:16; Dkt. 60 (Ex. 8) at 2:09. Mr. Smith also
started screaming and cussing at the officers, including
“Fuck off” “Fuck y'all, ” and
“I don't give a fuck.” Dkt. 60 (Ex. 8) at
2:10; Dkt. 60 (Ex. 7) at 2:23. Mr. Smith continued to repeat
threatening statements to the officers. Dkt. 60 (Ex. 7) at
2:30; Dkt. 60 (Ex. 8) at 2:14.
Adams then approached the unknown male and asked him to back
away and go inside, which the unknown male would not do. Dkt.
60 (Ex. 8) at 2:17. At the same time, Mr. Smith was lifted up
from the ground so that the officers could search him. In
response, the unknown male stated, “Now you see why I
carry mine” and later referred specifically to carrying
a “gun.” Dkt. 60 (Ex. 8) at 2:26. Officer Adams
believed the unknown male was referring to carrying a
firearm. Mr. Smith continued to threaten the officers and
attempted to roll over from his stomach to face the officers.
Mr. Smith continued to issue what the officers believed were
threats, including “You a ho-ass nigga that's on
top of me. Bitch you better press yo energy on me. Bitch you
better press it.” The officers continued to issue
verbal commands to Mr. Smith to stop and attempted to use
their weight on Mr. Smith to subdue him. Mr. Smith continued
to yell, “I don't give a fuck what you do to
me.” Dkt. 60 (Ex. 7) at 3:03.
being escorted to a police car, Mr. Smith continued to
threaten the officers by stating he would “swing at
you.” Crack cocaine and marijuana were found on Mr.
Smith's person. Following his arrest, when asked why he
tried to kill two EPD officers, Mr. Smith would only state,
“Charge me, charge me.” When the officers
searched Mr. Smith's car, they found a large bag of