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Day v. City of Indianapolis

United States District Court, S.D. Indiana, Indianapolis Division

May 13, 2019

SHANIKA DAY Individually, and as the Administrator for the Estate of TERRELL DAY, and HARVEY MORGAN Individually, Plaintiffs,
THE CITY OF INDIANAPOLIS, FRANKLIN WOOTEN Sergeant, Individually, and as an IMPD Officer, and RANDALL DENNY Officer, Individually, and as an IMPD Officer, Defendants.



         This matter is before the Court on a Motion for Summary Judgment (Filing No. 51) filed by Defendants City of Indianapolis (“Indianapolis”), Sergeant Franklin Wooten (“Sergeant Wooten”), and Officer Randall Denny (“Officer Denny”) (collectively, “Defendants”). After Terrell Day (“Day”) died while in the custody of the Indianapolis Metropolitan Police Department (“IMPD”), Shanika Day, his mother and the Administrator of his estate, and Harvey Morgan, Day's father (collectively, “Plaintiffs”), brought this suit alleging unreasonable seizure and excessive force in violation of the Fourth Amendment to the United States Constitution, negligence under Indiana law, and loss of child's services (Filing No. 19). Defendants argue the undisputed evidence shows that neither officer violated Day's constitutional rights, they are entitled to qualified immunity, and that Plaintiffs' state law claims fail as a matter of law. (Filing No. 53 at 7.) For the following reasons, Defendants' Motion for Summary Judgment is granted in part and denied in part.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Plaintiffs as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         The facts of this case begin with a confrontation between Day, an eighteen-year-old with a medical history of obesity, and Michael Nesbitt (“Nesbitt”), a loss-prevention officer at a Burlington Coat Factory (“Burlington”) located in Washington Square Mall in Indianapolis, Indiana. On September 26, 2015, Nesbitt observed Day, and a friend enter Burlington on the store's surveillance cameras. (Filing No. 52-8 at 10.) Nesbitt believed that he recognized Day as an individual he had observed stealing from the store on two prior occasions. Id. at 8-9, 41. On both prior occasions, Nesbitt had asked Day to leave the store and said he would be arrested if he returned. Id. at 8.While watching the stores surveillance video, Nesbitt believed he saw Day pick up a watch, put it in his pocket, and exit the store. Id. at 10. He followed Day out of the store to confront him about the watch and radioed mall security. Nesbitt was soon joined by mall security officer Anna Mahoy (“Mahoy”) in the mall common area. Day first denied having taken anything from Burlington, but ultimately returned a watch to Nesbitt. Id. Nesbitt requested that Day return to the store, but Day refused and began to walk away. (Filing No. 52-9 at 10.)

         Nesbitt and Mahoy's testimony differ vastly as to what happened next. Mahoy testified that she noticed the handle of what looked like a gun sticking out of Day's pocket, but she never observed him point or remove a gun, instead he just returned the watch and disagreed with returning to the story and he ran. Id. at 12. Nesbitt alleges that Day removed a gun from his pocket and pointed it at him, pushed Day and took cover, and Day began “running through the mall with the gun in his hand. (Filing No. 52-8 at 13.)

         Nesbitt called 911 and reported the events to the operator. Id. While on the telephone with the 911 dispatcher, Nesbitt alleges that he observed Day unsuccessfully attempt to carjack two vehicles. Id. at 17-20. Mahoy's recollection of events again differs-she testified that Nesbitt chased Day out of the mall and across the parking lot toward Mitthoeffer Road and then, when Day changed course, toward 10th Street.[1] (Filing No. 52-9 at 14-17.) Mahoy did mention Day attempting to carjack anyone during her deposition.[2]

         Nesbitt continued to chase Day into the parking lot of a Speedway gas station until Day slipped and fell on a grassy downslope (Filing No. 52-8 at 21-22.) As Day laid in the grass behind the Speedway, law enforcement arrived on the scene. Cumberland Police Department (“CPD”) reserve officer John Covington (“Officer Covington”) was the first officer to arrive in response to a radio call of an armed shoplifter running from the Burlington store across 10th Street to the Speedway gas station. (Filing No. 52-2 at 7.) Officer Covington encountered Nesbitt in the Speedway parking lot, and Nesbitt pointed out Day's location-laying on his back on the grassy slope just north of the gas station. (Filing No. 52-5 at 10-11.) Officer Covington parked his vehicle just east of the Speedway station, three or four car-lengths south of Day. Id. at 11-12. Believing Day was armed, Officer Covington drew his firearm and exited his police cruiser. Id. at 12. Day was on his stomach with his arms out to the side or to the top. Id. At 8. While waiting for other officers to arrive, Officer Covington ordered Day to show his hands and to point to his gun, which was no longer on his person. Id. at 13. Day complied with both orders, pointing out a gun in the grass, which was out of his reach. Id., Filing No. 52-2 at 8. Officer Covington kept Day “under cover” until Officer Denny arrived on the scene, (Filing No. 52-2 at 8). Officer Covington then exited his vehicle, approached Day on foot. Day showed his hands and complied with the officer's orders.

         Officer Denny placed Day in a single set of chain handcuffs. Id. at 9, 16. While handcuffing Day, Officer Denny observed that Day was overweight, sweating, and breathing heavily. Id. at 16, 18. Officer Denny repositioned Day so that he was “sitting on his behind” at the top of the slope with his legs out in front of him and his hands cuffed behind his back. Id. at 10. Day informed the officers that he was having trouble breathing. Id. at 13. Officer Denny told Day that he had exerted himself by running and that he should take deep breaths in and out to slow his heart rate. Id. Officer Denny did not observe any signs of distress, and never observed that Day was having trouble breathing.

         Officer Denny instructed Day to remain seated upright in the position he had put him, believing that would be most comfortable for Day while the officers completed the investigation and effected the arrest. Id. at 79. Officer Denny preferred this position because, while it is comfortable for the detainee, it also makes it difficult for the detainee to stand because his hands are cuffed behind his back. Id. at 80. The next best position for the detainee, in Officer Denny's opinion, was to be lying on his side or back. Id. Officer Denny was aware of the risks posed by a standing detainee-that he could flee or attack the officers-because he had dealt with uncooperative detainees in the past. Id. at 80, 87-89.

         As Officer Denny repositioned Day, he noticed that Day had defecated on himself. Id. at 10. Under the circumstances, Officer Denny believed that Day had over-exerted himself. Id. at 86-88. Day was unable to follow Officer Denny's instructions about how to position himself while he was detained and in handcuffs. When Officer Denny moved Day so that he was seated upright, Day laid back onto his back and rolled down the slope a bit. Id. at 92-93. As he started to roll, Officer Denny sat him back up in the middle of the slope with his legs out in front of him. Id. Wary that Day could asphyxiate himself if he rolled onto his stomach, Officer Denny reprimanded Day to remain in an upright seated position. Id. at 10-11. Day did not heed Officer Denny's instructions and rolled down the rest of the hill to where the grass met the pavement. Id. at 11. At that point, Officer Denny decided the best course of action was to have Day lie down on his side. Id. at 93.

         Shortly after Officer Denny detained Day, Sergeant Wooten arrived on the scene to assist. Id. at 100. As the arresting officer, Officer Denny had investigative duties that precluded him from personally monitoring Day after initially detaining him. Id. at 89-90. Sergeant Wooten or a CPD officer remained near Day to monitor him from that point forward. Id. at 78; Filing No. 52-4 at 58-59. The last law enforcement officer to arrive on the scene was CPD Lieutenant Roger Waggoner.

         Sergeant Wooten observed Day roll from his side onto his stomach. (Filing No. 52-3 at 32.) Sergeant Wooten and the other officers repositioned Day several times when he attempted to roll onto his stomach. Id. at 56; Filing No. 52-2 at 94. Day complained to Sergeant Wooten that he could not breathe. (Filing No. 52-3 at 31-33.) Sergeant Wooten was skeptical of Day's complaints because Day also stated that he had done nothing wrong and was asking for the officers to let him go. Id. Sergeant Wooten called for an ambulance to evaluate Day approximately five minutes after Day was initially detained. Id. at 31; Filing No. 52-2 at 13. As Sergeant Wooten observed him, Day appeared to calm down and began to breathe normally. (Filing No. 52-3 at 31.)

         The ambulance, staffed by Douglas York (“York”), a paramedic, and James Brown (“Brown”), an emergency medical technician, arrived within several minutes. (Filing No. 52-6 at 14-15; Filing No. 52-14.) When York and Brown first encountered Day, he was lying on his back with his hands cuffed behind him. (Filing No. 52-6 at 21-22; Filing No. 52-7 at 33.) Day again complained of difficulty breathing but was able to speak to York and Brown in clear, full sentences. (Filing No. 52-6 at 25.) Although Day stated that he could not breathe, York did not observe Day to have any trouble breathing. Id. at 63. When asked by medics if he had any medical problems, Day stated that he did not. Id. at 32.

         The medics conducted an evaluation which involved checking Day's vitals, obtaining his heart rate, respiratory rate, and his blood oxygen saturation. (Filing No. 52-14.) They attempted to take Day's blood pressure, but he would not allow them to. (Filing No. 52-6 at 16.) They also listened to Day's lungs with a stethoscope and found bilateral breath sounds present and clear. (Filing No. 52-14.) Based on their evaluation, the medics concluded that Day was breathing regularly and normally. Id.

         The medics also conducted a Glasgow Coma Scale analysis on Day, which determines how oriented and responsive an individual is on a fifteen-point scale. Id.; Filing No. 52-6 at 35-36. Day scored a perfect fifteen. (Filing No. 52-14; Filing No. 52-6 at 36.) During the medical evaluation Day's hands remained behind his back, but at some point, the police and medics helped him to stand. (Filing No. 52-6 at 40, 82.) Based on their medical evaluation, York and Brown believed that Day did not need to be transported to the hospital for medical treatment. Id. at 62-64, 70.

         When medics decide that a handcuffed prisoner is not going to go to the hospital, they have an officer sign as a witness that they are returning the prisoner back into officer custody. (Filing No. 52-2 at 94.) In order to memorialize that transfer, medics have a law enforcement officer on the scene sign a signature of release form. (Filing No. 52-11 at 3-4; Filing No. 52-2 at 95-98.) Using the screen on a tablet, the officer signs this form as a witness to the transfer, not as a representative of the detainee. Id. Sergeant Wooten signed the signature of release form so that law enforcement could regain custody of Day. (Filing No. 52-3 at 57-60.) Because Day was handcuffed, the officers did not request that he sign the form. Id. at 61.

         Sergeant Wooten used his finger to sign his name in a box on a laptop screen. He explained “[i]t's a laptop, and it's got all the information on there, all the stuff. And then in the lower right corner there's a box, and they said can you sign here to release, and I said yes.” (Filing No. 52-3 at 58-59.) Sergeant Wooten's signature was attached to an Indianapolis Emergency Medical Services form called “Treatment/Transport Refusal, ” which is meant to be signed by a patient when he refuses to be transported to the hospital after being evaluated by medics. (Filing No. 52-14 at 5.) Plaintiffs believe Sergeant Wooten refused hospitalization on Day's behalf, and had he not signed the Treatment/Transport Refusal form, the medics may have decided to transport Day to the hospital. (Filing No. 75 at 16.)

         Because Day was once again in law enforcement's custody, Officer Denny requested a “jail wagon” to transport Day to an appropriate detention facility. (Filing No. 52-2 at 35-36.) Marion County Sheriff's Deputy Steve Monday (“Deputy Monday”) was the driver of the jail wagon. When Deputy Monday arrived, he spoke to Sergeant Wooten, who explained why Day was under arrest and notified Deputy Monday that Day had been evaluated by medics. (Filing No. 52-10 at 14-15.) Day was lying on his back when Deputy Monday arrived, and Deputy Monday lifted Day's leg to begin searching his shoes for contraband. Id. at 15. Day was generally unresponsive to Deputy Monday, and his legs fell to the ground after Deputy Monday removed his shoes and Day was unable to answer when Deputy Monday asked if he was okay. Id. at 15-16. When Deputy Monday and Sergeant Wooten attempted to stand Day up, Day's legs straightened, and his knees locked. Id. Deputy Monday considered Day uncooperative.

         Deputy Monday was unsure whether Day was obstinate or was unresponsive because of a medical issue. He performed a sternum rub-the application of painful stimulus to an unresponsive subject's chest-to see whether Day would respond. Id. at 16. Day did not respond physically or verbally to the sternum rub, so Deputy Monday lifted his shirt and performed another one . Id. Although his eyes were open, and he was breathing, Day's lack of response to the sternum rubs led Deputy Monday to urge Sergeant Wooten to call for another ambulance. Sergeant Wooten called for a second ambulance and a different team of medics was dispatched to the scene. (Filing No. 52-3 at 82; Filing No. 52-15.) At some point after the first ambulance left the scene but before the second ambulance arrived, Officer Denny put a second pair of handcuffs on Day. (Filing No. 52-2 at 38.) Using two pairs of handcuffs is meant to make the detainee more comfortable. Day was telling Officer Denny that we was having problems breathing, and Officer Denny chose to add a second pair of handcuffs because they believed Day was having a medical problem. Id. at 39-40.

         When the second ambulance arrived, the medics asked the officers near Day to assist them in placing him on a gurney. (Filing No. 52-5 at 42.) At this point, Day's eyes were open, and he was breathing. Id. at 43; Filing No. 52-3 at 121. Officer Covington overheard one of the medics say that Day's pulse was very weak. (Filing No. 52-5 at 43.) Once Day was loaded into the back of the ambulance, medics performed CPR on him. Id.; Filing No. 52-3 at 119. If they are unable to transport someone to the hospital in stable condition, the medics are required to attempt to revive the person for thirty minutes at the scene. (Filing No. 52-2 at 15.) At 2:30 p.m., after thirty minutes of attempting to revive Day, the medics exited the ambulance and pronounced him dead. Id. at 16; Filing No. 52-15. Deputy Coroner Carrie England, dispatched to the scene as part of the Critical Incident Response Team, examined Day's body in the ambulance and noted that he had suffered no visible trauma. (Filing No. 52-19 at 5.) An autopsy later revealed that Day died of “Sudden Cardiac Death due to Acute Ischemic Change.” (Filing No. 52-18 at 2.) The autopsy report listed contributory causes as “Sustained respiratory compromise due to hands cuffed behind the back, obesity, underlying cardiomyopathy.” Id.

         Following Day's death, Plaintiffs brought this suit alleging unreasonable seizure and excessive force in violation of the Fourth Amendment to the United States Constitution against Officer Denny and Sergeant Wooten in both their official and individual capacities. (Filing No. 19 at 5-7.) The Complaint also alleges negligence under Indiana law against both officers and the City of Indianapolis. Id. at 7-8. Last, the Complaint alleges a claim of loss of ...

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