United States District Court, S.D. Indiana, Indianapolis Division
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.
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY
WALTON PRATT, JUDGE
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.
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).
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.)
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
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. (Filing No. 52-9 at 14-17.) Mahoy
did mention Day attempting to carjack anyone during her
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.)
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.
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.
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.
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