United States District Court, S.D. Indiana, Indianapolis Division
JANE MAGNUS-STINSON, CHIEF JUDGE
Traci Franklin was arrested in Winchester, Indiana in 2016.
Ms. Franklin and her husband, William, brought suit against
Winchester Police Department patrolman Austin Highlen, the
City of Winchester, Randolph County Sheriff's Deputy
Jerry Hammons, the Randolph County Commissioners, and the
Randolph County Sherriff's Department, alleging a host of
claims arising out of Ms. Franklin's arrest.
Motions are currently pending. The first is a Motion for
Summary Judgment filed by the city of Winchester and Officer
Highlen, (collectively, the “Winchester
Defendants”), [Filing No. 51], and the
second is a Motion to Dismiss/Motion for Summary Judgment
filed by the Randolph County Commissioners, the Randolph
County Sheriff Department, and Deputy Hammons, (collectively,
the “Randolph County Defendants”),
[Filing No. 59]. For the reasons described herein,
the Court GRANTS the Winchester
Defendants' Motion, GRANTS IN PART the
Randolph County Defendants' Motion, and
REMANDS the remaining claims to the Randolph
the Randolph County Defendants styled their Motion as a
“Motion to Dismiss/Motion for Summary Judgment, ”
[Filing No. 59 at 1], given the parties'
reliance on matters outside of the pleadings, the Court will
construe the Randolph County Defendants' Motion as a
Motion for Summary Judgment.
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. SeeFed. R. Civ. P.
56(a). As the current version of Rule 56 makes clear, whether
a party asserts that a fact is undisputed or genuinely
disputed, the party must support the asserted fact by citing
to particular parts of the record, including depositions,
documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party
can also support a fact by showing that the materials cited
do not establish the absence or presence of a genuine dispute
or that the adverse party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.
Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in
opposition to a movant's factual assertion can result in
the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Williams v.
Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other
words, while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not
outcome-determinative. Montgomery v. Am. Airlines
Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes
that are irrelevant to the legal question will not be
considered. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
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). 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 Ind. Univ., 870 F.3d 562,
573-74 (7th Cir. 2017). Any doubt as to the existence of a
genuine issue for trial is resolved against the moving party.
Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th
following factual background is set forth pursuant to the
standards detailed in Part I. The facts stated are not
necessarily objectively true, but, as the summary judgment
standard requires, the undisputed facts and the disputed
evidence are presented in the light most favorable to
“the party against whom the motion under consideration
is made.” Premcor USA, Inc. v. American Home
Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
early months of 2016, Traci Franklin was working as a
licensed professional nurse at a long-term care center in
Richmond, Indiana. [Filing No. 52-1 at 5.] At the
time, she was living with her husband, William, in a home
they owned in Winchester, Indiana. [Filing No. 52-1 at
April 9, 2016, Ms. Franklin went to work at 2:00 p.m. and was
scheduled to work until 10:00 p.m. [Filing No. 52-1 at
11.] When another employee did not come into work, Ms.
Franklin worked until 11:30 p.m., or slightly later.
[Filing No. 52-1 at 11.] When she left work, it was
snowing, and visibility was poor. [Filing No. 52-1 at
11.] At some point during her drive home, Ms. Franklin
was run off the road by a large truck, which upset her.
[Filing No. 52-1 at 13.] As Ms. Franklin was driving
into Winchester, she came to a stop sign and did not come to
a complete stop due to the slick road. [Filing No. 52-1
after driving through the stop sign, Ms. Franklin turned left
into the driveway of her house, and, as she did so, she
noticed police lights behind her. [Filing No. 52-1 at
12.] Deputy Jerry Hammons then approached Ms.
Franklin's car and asked Ms. Franklin if she knew why he
was there. [Filing No. 52-1 at 12.] He explained
that she did not come to a complete stop at the stop sign.
[Filing No. 52-1 at 12.] Deputy Hammons then used a
flashlight to look through the windows of Ms. Franklin's
car. [Filing No. 52-1 at 13.] Ms. Franklin was
unable to produce her driver's license or car
registration when Deputy Hammons requested them. [Filing
No. 52-1 at 13.]
Hammons then went to his squad car and returned to Ms.
Franklin's car with a ticket. [Filing No. 52-1 at
14.] By this point, one or more other officers had
arrived on the scene, including Officer Austin Highlen.
[Filing No. 52-1 at 14.] Ms. Franklin took the
ticket from Deputy Hammons and said “with a little bit
of an attitude, ” “Okay. I've got it.
I'll take care of it.” [Filing No. 52-1 at
14.] Deputy Hammons then said, “You're coming
with me. You're under arrest.” [Filing No. 52-1
at 14.] Ms. Franklin asked why she was under arrest.
[Filing No. 52-1 at 14.]
point, Deputy Hammons instructed Ms. Franklin to get out of
her car and she opened her car door. [Filing No. 52-1 at
16.] As she struggled to get out of the car, Deputy
Hammons grabbed her arm and stretched it back against her car
aggressively. [Filing No. 52-1 at 16.] Deputy
Hammons told Officer Highlen to “tase her, ” and
then repeated the instruction four times. [Filing No.
52-1 at 14; Filing No. 52-1 at 16.] Officer
Highlen refused and did not tase Ms. Franklin. [Filing
No. 52-1 at 15.] Around the time Officer Highlen
“stepped in, ” Ms. Franklin put her feet up and
hit either Deputy Hammons or Officer Highlen or both with her
feet or legs. [Filing No. 52-1 at 16.]
Franklin requested that a woman search her. [Filing No.
52-1 at 17.] Instead, Deputy Hammons put his hands on
Ms. Franklin, around the front of her and around the back and
said that he was an officer and could touch her wherever he
wanted. [Filing No. 52-1 at 17.] The pat-down search
took less than one minute and Officer Highlen did not
participate in the search. [Filing No. 52-1 at 18.]
During this time, Ms. Franklin's hands were cuffed behind
her back and she was wearing her scrubs from work.
[Filing No. 52-1 at 17; Filing No. 52-1 at
18.] The pants to Ms. Franklin's scrubs were falling
down and she requested help pulling them back up several
times, but was not given any help. [Filing No. 52-1 at
her interactions with Deputy Hammons and Officer Highlen, Ms.
Franklin was agitated and she “yelled out” that
if the officers “could hurry up, it would be
nice” because she was “really, really cold and it
was freezing.” [Filing No. 52-1 at 15.] She
“might have said a word or two” of profanity
because she was “very frustrated.” [Filing
No. 52-1 at 15.]
Franklin got into Deputy Hammons' squad car and was
transported to jail, during which time she complained about
being nauseated, complained about her arm “nonstop,
” and asked to be taken to the emergency room.
[Filing No. 52-1 at 18; Filing No. 52-1 at
she arrived at the jail, Ms. Franklin requested a menstrual
pad but was never provided with one. [Filing No. 52-1 at
20.] She also continued requesting medical attention for
her arm but was not provided with any. [Filing No. 52-1
April 13, 2016, a few days after her release from jail, Ms.
Franklin went to Ball Memorial Hospital for an X-ray.
[Filing No. 52-1 at 24.] The Hospital referred her
to an orthopedic specialist, who recommended that she wear a
sling and soft cast and attend physical therapy. [Filing
No. 52-1 at 24; Filing No. 52-1 at 26.] Ms.
Franklin's arm was not fractured. [Filing No. 52-1 at
10 and 11, 2016, Ms. Franklin visited the Center for
Psychological Development and met with a psychologist.
[Filing No. 52-1 at 27.] From May 11 through May 17,
2016, Ms. Franklin was admitted to the St. Vincent Stress
Center. [Filing No. 52-1 at 28.]
September 21, 2016, counsel for the Franklins sent a Notice
of Tort Claim to the Randolph County Commissioners, the Mayor
of Winchester, the Randolph County Sheriff, and the
Winchester Police Department. [Filing No. 53-1 at
1.] The Notice of Tort Claim stated that Ms. Franklin
believed that the officers involved in her traffic stop were
Jerry Hammons of the Randolph County Sheriff Department, and
Austin Highlen of the Winchester City Police. [Filing No.
53-1 at 2.] Further, the Notice provided as follows:
That the officers were employees of the Defendants, and each
of them, and were acting within the scope of their employment
Mrs. Franklin and her husband believe that the officers were
careless and negligent and used excessive force which was not
warranted in the instance described above, violated her civil
rights and caused her physical, emotional, and mental
injuries as a result of their unwarranted actions.
[Filing No. 53-1 at 2.]
April 9, 2018, the Franklins filed suit against the City of
Winchester, the Randolph County Commissioners, (the
“Commissioners”), and the Randolph
County Sheriff Department, (the
“Department”), in the Randolph Circuit
Court. [Filing No. 1-1 at 2.] On May 2, 2018, the
Commissioners and the Department removed the case to this
Court on the basis of federal question jurisdiction.
[Filing No. 1 at 1.] On July 9, 2018, the Franklins
sought leave to file an amended complaint in this matter,
[Filing No. 22], which was granted on August 2,
2018, [Filing No. 26]. The Franklins' Amended
Complaint added Deputy Hammons and Officer Highlen as
defendants in the matter. [Filing No. 22-1.]
their Amended Complaint, the Franklins allege that:
• the actions of Deputy Hammons and Officer Highlen
constitute a “Monell § 1983 violation of the Civil
Rights Act for which Randolph County Commissioners and the
City of Winchester, Indiana are liable, ” [Filing
No. 22-1 at 3];
• the officers “were careless and negligent and
used excessive force” against Ms. Franklin and
“violated her civil rights and caused her physical,
emotional, and mental injuries as a result of their
unwarranted actions, ” [Filing No. 22-1 at 4];
• “[a]s a direct and proximate result of the
carelessness and negligence of the Defendants, ”
William Franklin “lost the services and consortium of
his wife, ” and “will continue to incur such
damages in the future, ” [Filing No. 22-1 at
Winchester Defendants moved for summary judgment, and that
Motion is now fully briefed and ripe for the Court's
review. [Filing No. 51.] In addition, the Randolph
County Defendants filed a Motion to Dismiss/Motion for
Summary Judgment, which is also ripe for the Court's
review. [Filing No. 59].
order to rule on the Motions filed by the Winchester
Defendants and the Randolph County Defendants, the Court
first considers the Franklins' federal claims, beginning
with claims that the Franklins withdrew in response to the
pending Motions. Next, the Court considers claims that the
Franklins failed to address in their response briefs. The