United States District Court, S.D. Indiana, Indianapolis Division
M. Ali ATTORNEY AT LAW
Benjamin C. Ellis INDIANA ATTORNEY GENERAL
Benjamin Myron Lane Jones INDIANA ATTORNEY GENERAL
ORDER ON DEFENDANTS' MOTION FOR SUMMARY
EVANS BARKER, UNITED STATES DISTRICT COURT JUDGE
cause is before the Court on Defendants' Motion for
Summary Judgment [Dkt. 34], filed on June 10, 2019. Plaintiff
Kevin Windle has brought this action against Defendants State
of Indiana (“the State”), Indiana State Police
(“ISP”), Darnell Ledsinger, Dan Herron, David
Salley, and Nathaniel Raney, alleging various constitutional
violations under 42 U.S.C. § 1983 as well as a state law
claim for intentional infliction of emotional distress.
Defendants have moved for summary judgment on all claims
alleged in the Complaint, with the exception of the excessive
force claim alleged against Defendants Raney and Salley. For
the reasons detailed below, we GRANT IN PART and DENY IN PART
April 20, 2016, Mr. Windle attended a political rally for
then-presidential candidate Donald Trump at the Indiana State
Fairgrounds (“the Rally”). No. surprise, a number
of protesters attended the Rally as well. At the end of the
Rally, as Mr. Windle was returning to his vehicle in the
parking lot, an unknown individual or individuals in the
crowd knocked the sign he was carrying out of his hand, spit
on him, and kicked him.
to Mr. Windle, he saw a man wearing “a Butler
t-shirt” in the crowd who was also being harassed by
“this mob of people [who] were all screaming fuck Trump
and poking [the man] and hitting him and putting the flag
around his head.” Windle Dep. at 12-13. Mr. Windle
“gave one of the guys the finger and told him to leave
[the man] the fuck alone or something to that nature.”
Id. In video footage of the incident, Mr. Windle is
seen flashing his middle finger at a woman wearing a light
blue dress and at another person wearing a black hoodie
sweatshirt and a mask and carrying a skateboard. Defs.'
these events unfolded, Lt. Ledsinger of the Indiana State
Police moved through the crowd toward the disturbance,
yelling to Mr. Windle and the protestors to step back.
Several protesters attempted to grab Mr. Windle's arm
and, he contends, hit, slapped, and poked him. An unknown
individual pulled Mr. Windle's hat off his head,
prompting Mr. Windle to reach out and move in the direction
of that person. Lt. Ledsinger reached Mr. Windle at this
point, extended his arms and separated Mr. Windle and the
other man as they were yelling at each other. In an effort to
control the situation, Lt. Ledsinger shouted instructions to
the men to “get back.” Defs.' Exh. 6. Mr.
Windle and a man wearing a polo shirt continued to argue as
Lt. Ledsinger stood between them with his arms extended in an
attempt to keep them separated. At approximately this point,
two plainclothes Indiana State Troopers, Defendants Trooper
Raney (wearing a gray shirt) and Det. Salley (wearing a green
shirt), along with three uniformed Indiana State Troopers,
including Defendant Trooper Herron, approached the scene from
behind Lt. Ledsinger.
Windle continued pointing and shouting at the man who had
taken his hat, shaking off various individuals in the crowd
who were trying to restrain him. According to Mr. Windle, he
was attempting to identify for Lt. Ledsinger the man who had
taken his hat. Lt. Ledsinger turned toward Mr. Windle and
with his hands on Mr. Windle's chest, began walking him
backward, pushing him away from the crowd to a location
between parked vehicles in the parking lot. In the process of
being walked backward, Mr. Windle stumbled and then fell
straight back onto the concrete. Unable to brace himself with
his hands as he fell, he hit his head on the pavement.
Defendants contend that Mr. Windle's fall occurred as a
result of his having simply lost his balance, but Mr. Windle
claims that his fall was caused by Lt. Ledsinger pushing him
roughly in the chest with both hands and “slam[ming
him] to the ground.” Windle Dep. at 197.
Windle fell, Trooper Raney and Det. Salley rushed in to
assist behind Lt. Ledsinger. When Trooper Herron saw two men
in street clothes coming up behind Lt. Ledsinger, he mistook
them as non-law enforcement and ran over to assist Lt.
Ledsinger, in the process shoving Trooper Raney with both
hands and knocking him to the ground on top of Mr. Windle.
No. video footage depicting what transpired after this point
is available, as far as we have been told. According to Mr.
Windle, Trooper Raney, Det. Salley, and Trooper Herron all
jumped on top of him while he was on the ground, grabbed his
legs and twisted them; one of the men put a knee in his back
and pressed down on his neck and head so that his face was
pushed onto the blacktop surface. Mr. Windle claims that
Defendants proceeded to yank his right arm upwards to a level
even with his head and he heard his shoulder pop. When he was
being handcuffed, one of the Defendants said to him,
“Give me your left arm, ” whereupon Mr. Windle
replied that he was unable to do so because he was
handcuffed, Mr. Windle was directed to stand up. He allegedly
repeatedly told Defendants that he could not get up off the
ground because of his disability. Each time he said this, he
alleges, the officers picked him up to a height where only
his knees were touching the ground before pushing him back
down again onto the blacktop, causing his face to hit the
hard surface approximately ten times before Defendants lifted
him up onto his feet and transported him by golf cart to a
staging area until being taken to the VA Hospital and
thereafter transferred to the Marion County Sheriff's
Department, where he was detained.
following day, April 21, 2019, Mr. Windle was arraigned in
Marion Superior Court on a charge of disorderly conduct, in
violation of Indiana Code § 35-45-3(a)(1). Based on the
probable cause affidavit executed by Trooper Raney, the court
determined there was probable cause to support Mr.
Windle's arrest. Mr. Windle was released from custody
following his arraignment and the charge of disorderly
conduct was dismissed on August 31, 2016. On September 13,
2016, a new charge of disorderly conduct was brought against
Mr. Windle as well as two counts of resisting law
enforcement, in violation of Indiana Code §
34-44.1-3-1(a)(1). The Marion Superior Court again found
probable cause for Mr. Windle's arrest, based on a second
affidavit executed by Trooper Raney. Mr. Windle eventually was
acquitted on all charges on December 14, 2017, following a
jury trial. This civil litigation ensued.
resolving the substantive issues raised in Defendants'
Motion for Summary Judgment, we must address certain
evidentiary issues. Defendants have interposed objections to
the following evidentiary submissions by Mr. Windle: (1) the
criminal trial transcript; and (2) the opinions of Mr.
Windle's experts. The parties also disagree over whether
Mr. Windle should be permitted to withdraw his admissions. We
address each of these issues in turn below.
Criminal Trial Transcript
challenge the admissibility of the transcript from Mr.
Windle's criminal trial on the charges of disorderly
conduct and resisting arrest arising from the incident
underlying this litigation on grounds that it is
unauthenticated and constitutes inadmissible hearsay. For the
following reasons, we are not persuaded by Defendants'
Seventh Circuit has recognized that “transcripts of
testimony may be considered in support of, or opposition to,
a motion for summary judgment.” Williams v.
Vasquez, 62 Fed. App'x 686, 692 (7th Cir. 2003);
accord Kelley v. Price-Macemon, Inc., 992 F.2d 1408,
1415 n.12 (5th Cir. 1993) (“It is well-settled that a
certified transcript of a judicial proceeding may be
considered on a motion for summary judgment.”);
Beiswenger Enters. Corp. v. Carletta, 46 F.Supp.2d
1297, 1299 (M.D. Fla. 1999) (“Trial testimony, even
when from a proceeding in which the parties, subject matter,
and counsel are not the same can be used because it is sworn
testimony which is at least as reliable as that found in
affidavits.”); Kraft Gen. Foods, Inc. v.
Cattell, 18 F.Supp.2d 280, 284 (S.D.N.Y. 1998)
(“Sworn testimony from another trial is admissible on a
motion for summary judgment.”). Here, the transcript of
Mr. Windle's state court trial is certified as
“full, true, correct, and complete” by the
Official Court Reporter for the Marion Superior Court
Criminal Division 7 and contains the court reporter's
electronic signature. This is sufficient for authentication
purposes at this stage of the litigation, particularly
considering that Defendants have not pointed out any specific
errors in the trial transcript. See, e.g., Ball v. A.O.
Smith Corp., 321 B.R. 100, 105-07 (N.D.N.Y. 2005)
(holding that trial transcripts of unrelated proceedings were
admissible under Rule 902(4) even without an authenticating
witness, where transcripts contained court reporter
regard to Defendants' hearsay objection,
“transcripts are not ‘hearsay' merely because
they consist of statements made by a witness in a prior
proceeding, any more than an affidavit or a deposition
offered in support of a motion for summary judgment is
inherently hearsay.” Ricupero v. Wuliger, Fadel
& Beyer, No. 1:91CV0589, 1994 WL 483871, at *4 (N.D.
Ohio Aug. 26, 1994). To the extent the testimony in the
criminal trial itself contains hearsay statements, we will
not consider that portion of the testimony unless it falls