Martin v. Fort Wayne Police Dept et al

Filing 97

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 87 MOTION for Summary Judgment filed by Unknown Officer, Mayor Henry, Unknown Sergeant, Fort Wayne City of, Officer Cline, Chief York; DENYING 92 RULE 12(f) MOTION to Strike 87 MOTION for Summary Judgment filed by Anthony C Martin; DENYING 94 RULE 56 MOTION to Strike Portions of Anthony C. Martin's Affidavit filed by Unknown Officer, Mayor Henry, Unknown Sergeant, Fort Wayne City of, Officer Cline, Chief York. Signed by Judge Rudy Lozano on 3/17/2014. (lns)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ANTHONY C. MARTIN,
Plaintiff,
vs.
FORT WAYNE POLICE
DEPARTMENT, et al.,
Defendants,

)
)
)
)
)
)
)
)
)
)

Case No. 1:11-CV-403

OPINION AND ORDER
This matter is before the Court on the: (1) “Defendants’
Motion for Summary Judgment and Designation of Evidence,” filed by
Defendants, on May 15, 2013 (DE #87); (2) “Plaintiff’s Motion to
Strike Defendants Summary Judgment and Affidavits Rule 12(f) of the
F.R.C.P.,” filed by pro se Plaintiff, Anthony C. Martin, on June
13, 2013 (DE #92); and (3) “Defendants’ Motion to Strike Portions
of Anthony C. Martin’s Affidavit,” filed by Defendants on June 26,
2013 (DE #94).

For the reasons set forth below, the Motion for

Summary Judgment (DE #87) is GRANTED IN PART and DENIED IN PART.
Summary judgment is GRANTED in favor of Defendants on the following
claims: alleged violation of First Amendment rights; failure to
intervene; alleged unlawful search of the vehicle; alleged illegal
search of Martin’s person; unlawful detainment, false imprisonment,
and malicious prosecution; alleged violation of Eighth Amendment

rights; alleged violation of Fourteenth Amendment rights; the 1983
claim against Defendant the City of Fort Wayne; the claims against
Defendant Fort Wayne Police Chief Russell York and Defendant City
of Fort Wayne Mayor Tom Henry; the claims against unknown officers;
the claim for punitive damages; and the state law claims.

Summary

judgment is DENIED as to Plaintiff’s claim of excessive force in
violation of his Fourth Amendment Rights and that claim remains
pending against Defendant Officer Matthew Cline.
Plaintiff’s Motion to Strike Defendants Summary Judgment and
Affidavits (DE #92) is DENIED.

Defendants’ Motion to Strike

Portions of Martin’s Affidavit (DE #94) is also DENIED.

BACKGROUND
On February 22, 2011, pro se Plaintiff, Anthony C. Martin
(“Martin”), filed a complaint in the Allen Superior Court.
#1).

(DE

Defendants removed the action to this Court on November 23,

2011, pursuant to 28 U.S.C. §§ 1441 and 1446, claiming this Court
has original federal question jurisdiction under 28 U.S.C. § 1331.
Later, this Court granted in part and denied in part a motion to
amend the complaint.

(DE #18.)

The current Defendants to this

action are the City of Fort Wayne, Officer Matthew Cline, Unknown
Officer, Unknown Sergeant, Mayor Tom Henry, and Police Chief

2

Russell York (collectively “Defendants”).1

Martin alleges that on

July 14, 2010, Defendants violated his First, Fourth, Eighth, and
Fourteenth Amendment rights.

He alleges they subjected him to

excessive force, an unlawful search of his person and vehicle, a
seizure, malicious prosecution, false imprisonment, and cruel and
unusual punishment.
harassment,

Additionally, Martin alleges state claims for

vindictive

behavior,

retaliation

or

retaliatory

behavior, negligence, defamation, mental stress, mental anguish,
and non-professional behavior.

Significant motion practice ensued

during discovery disputes in this case.
Defendants filed the instant Motion for Summary Judgment on
May 15, 2013 (DE #87) contending they are entitled to summary
judgment on all claims in the amended complaint.

Additionally,

they filed the requisite notice of summary judgment filing because
Plaintiff is pro se.

(DE #89.)

Martin filed a response in

opposition to the motion for summary judgment on June 12, 2013 (DE
#90), and Defendants filed a reply on June 26, 2013 (DE #93).
Thus, the motion for summary judgment is fully briefed and ready
for adjudication.
Additionally, there are two other outstanding related motions.
On June 13, 2013, Martin filed a Motion to Strike Defendants
Summary Judgment and Affidavits, arguing the summary judgment
1

Martin filed several other motions to amend/correct his
pro se complaint, but they were denied by Magistrate Judge Roger
B. Cosbey. (See DE ##57, 81.)
3

motion is “vague, untimely and considerate an ambush to plaintiff.”
(DE #92, p. 1.)

On June 26, 2013, Defendants filed a motion to

strike portions of Anthony C. Martin’s Affidavit, arguing his
affidavit contains inadmissible evidence. (DE #94.) Both of these
motions are also ready for adjudication.

DISCUSSION
Plaintiff’s
Affidavits

Motion

to

Strike

Defendants

Summary

Judgment

and

Martin has filed a motion to strike the summary judgment
motion

and

related

affidavits

filed

by

Defendants

(DE

#92).

According to the caption, Martin brings this motion pursuant to
Federal Rule of Civil Procedure Rule 12(f).
Rule 12(f) provides that a district court “may strike from a
pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.”

Fed. R. Civ. P. 12(f).

However, a summary judgment motion is not a pleading, and bringing
a motion to strike the motion for summary judgment under Rule 12(f)
is procedurally improper.

See Fed. R. Civ. P. 7(a) (defining

pleadings finitely with a list that does not include motions).
Furthermore, a motion to strike under Rule 12(f) is untimely at
this stage in the proceedings.

See Fed. R. Civ. P. 12(f)(2) (party

may move to strike “within 21 days after being served with the
pleading” if a response is not allowed). Although entitled to some
procedural protections, including liberal construal of documents,
4

even pro se litigants must comply with procedural rules.

Members

v. Paige, 140 F.3d 699, 702 (7th Cir. 1998). Thus, Martin’s motion
fails on procedural grounds.
Martin’s motion to strike also fails on substantive grounds.
As to the summary judgment motion itself, Martin refers to it as
“‘vague’,

untimely,

plaintiff.”

and

considerate

(DE #92 at 1.)

(sic)

an

‘ambush’

to

Martin does not expand upon the

alleged vagueness of the motion.

However, he does assert that the

“suppository and non-suppository motions” deadline was February 22,
2013, and he laments that Defendants waited until the day of the
deadline to file their motion.

(Id.)

The Court can only assume

that Martin is referring to the dispositive motion deadline, which
was set by this Court on April 9, 2013, via an oral order and
indicates that “any and all Dispositive and/or Daubert Motions are
to be filed on or before 5/15/2013.”

(See DE #98.)

Defendants

filed their motion for summary judgment on May 15, 2013, and,
therefore, it is considered timely.2

Martin’s argument is without

merit.
Plaintiff also argues that the affidavits of Officer Cline and
Sergeant

Burton

should

be

stricken

because

“defendants

never

mentioned officer Klein or sergeant Burton name in plaintiff’s
2

Martin points out that Magistrate Judge Cosbey granted Defendants’
motion to strike Martin’s discovery requests because those requests were not
initiated thirty days before the discovery deadline as directed; however,
discovery deadlines and dispositive motion deadlines are not the same, and
there is no question that any dispositive motions filed on or before May 15,
2013, are considered timely by this Court. (See DE #75.)

5

discovery request, nor tried to amend their names to the official
record,” and so the affidavits are improper as “newly discovered
evidence.”

(DE #92, p. 2.)

However, Defendants point out that in

response to plaintiff’s first request for production of documents,
Defendants provided copies of Officer Matthew Cline, Officer David
Klein, and Sergeant Hollis Burton’s narrative reports pertaining to
the July 13, 2010 traffic stop at issue.

(DE #30.)

Further, in

response to Plaintiff’s second request for production of documents,
Defendants provided a copy of Sergeant Burton’s affidavit for
probable cause and copies of Officer Cline, Officer Klein, and
Sergeant Burton’s Daily Activity Reports from July 13, 2010.
#53.)

(DE

Additionally, Defendants’ answers to Plaintiff’s first set

of interrogatories numbers one and two mention Officer Cline,
Officer Klein, and Sergeant Burton.

(DE #55.)

As such, Plaintiff

was clearly on notice as to the identity and relevance of Officer
Cline and Sergeant Burton. Finally, to the extent Plaintiff argues
the affidavits are “vague, coerced, and unrealistic” (DE #92, p.
2), because a Sergeant Bubb allegedly advised Martin that an in-car
camera video from Officer Cline was available, but cannot be found,
this statement is unsupported hearsay and has no bearing on the
admissibility of Officer Cline’s affidavit (which makes no mention
of any alleged video).

(DE #87-1.)

For these substantive reasons

in addition to the procedural ones, Martin’s motion to strike is
DENIED in its entirety.

6

Defendants’ Motion to Strike Portions of Anthony C. Martin’s
Affidavit
Defendants

filed

Plaintiff’s affidavit.
plaintiff.
complying
judgment.

a

motion

to

strike

paragraphs

2-10

of

It is noteworthy that Martin is a pro se

However, his pro se status does not relieve him from
with

the

procedural

rules

associated

with

summary

See Ammons v. Aramark Uniform Servs., Inc., 368 F.3d

809, 817-18 (7th Cir. 2004) (requiring pro se plaintiff to strictly
comply

with

Northern

District

of

Illinois

Local

Rule

56.1);

Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001) (explaining
that pro se litigants must still comply with procedural rules).
Pursuant to Rule 56 and Local Rule 56-1, Plaintiff was given notice
of the filing of summary judgment, which cited, inter alia, the
requirement that:
An affidavit of declaration used to support or
oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent
to testify on the matters stated.
Fed. R. Civ. P. 56(c)(4) (quoted in the Notice of Summary-Judgment
Motion, DE #89.)
disregarded:

(1)

Therefore, the following statements should be
conclusory

allegations

lacking

supporting

evidence; (2) legal argument; (3) self-serving statements without
factual support in the record; (4) inferences or opinions not
grounded in observation or other first-hand experience; and (5)
mere speculation or conjecture.

Heltzel v. Dutchmen Mfg., Inc.,

No. 3:06-CV-0227 WCL, 2007 WL 4556735, at *4 (N.D. Ind. Dec. 20,
7

2007) (citations omitted).
In this case, Defendants argue that the Court should strike
paragraphs 2 through 10 of Plaintiff’s affidavit, contending it
sets forth inadmissible hearsay, vague and speculative statements,
and

legal

conclusions.

(DE

#95.)

The

remedy

requested

by

Defendants, which asks the Court to strike every paragraph except
the introductory paragraph in Plaintiff’s affidavit, is overly
broad.

Some of the material in the affidavit is proper.

For

example (and these are just some of the admissible statements his
affidavit for illustrative purposes), Martin certainly may attest
that only July 13, 2010, he was driving an all-white Nissan (DE
#90, p. 25, ¶ 2), that he and the car were searched (Id. ¶ 4), and
that he was tased by Officer Cline (Id. ¶ 5).
Additionally, with respect to the alleged hearsay objections,
the Court notes that in ruling on a motion for summary judgment,
the Court considers only evidence that would be admissible at
trial.

See Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir.

2000).

The Court is able to sift through the evidence and to

consider each piece under the applicable federal rules, thus there
is no need to strike all of Martin’s affidavit.

Accordingly, the

Court denies Defendants’ motion to strike paragraphs 2-10 of
Martin’s affidavit as overly broad and unnecessary.

Summary Judgment
The standards that generally govern summary judgment motions
are familiar. Pursuant to Rule 56(c) of the Federal Rules of Civil
8

Procedure, summary judgment is proper only if it is demonstrated
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.

See

Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).

In other words, the record

must reveal that no reasonable jury could find for the nonmovant.
Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th
Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986).

In deciding a motion for summary judgment, a court

must view all facts in the light most favorable to the nonmovant.
Anderson, 477 U.S. at 255; NUCOR Corp. v. Aceros Y Maquilas De
Occidente, 28 F.3d 572, 583 (7th Cir. 1994).
The burden is upon the movant to identify those portions of
"the

pleadings,

depositions,

answers

to

interrogatories,

and

admissions on file, together with the affidavits," if any, that the
movant believes "demonstrate the absence of a genuine issue of
material fact."

Celotex, 477 U.S. at 323.

Once the movant has met

this burden, the nonmovant may not rest upon mere allegations but
"must set forth specific facts showing that there is a genuine
issue for trial."

Fed. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill

Assocs., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v.
Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989).
"Whether

a

fact

is

material

depends

on

the

substantive

law

underlying a particular claim and 'only disputes over facts that
9

might affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.'"

Walter v.

Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988) (emphasis in original)
(citing Anderson, 477 U.S. at 248).
"[A] party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
material fact which requires trial." Beard v. Whitley County REMC,
840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original); see also
Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir. 1993).
Therefore, if a party fails to establish the existence of an
essential element on which the party bears the burden of proof at
trial, summary judgment will be appropriate.

In this situation,

there can be "'no genuine issue as to any material fact,' since a
complete failure of proof concerning an essential element of the
nonmoving

party's

immaterial."

case

necessarily

renders

all

other

facts

Celotex, 477 U.S. at 323.

Undisputed Facts
Defendant, Officer Matthew Cline, was a police officer for the
City of Fort Wayne, and was on duty on July 13, 2010.
DE #87-1, ¶¶ 2-3.)

(Cline Aff.,

On that day, he was dressed in uniform and

driving a marked police vehicle.

(Id. ¶ 3.)

Officer Cline responded to the intersection of Columbia Avenue
10

and Crescent Avenue to assist Sergeant Hollis Burton (also of the
Fort Wayne Police Department) with a traffic stop.

(Id. ¶ 4.)

Sergeant Burton had stopped a vehicle for speeding.

Id.

Sgt.

Burton requested a squad car with a prisoner cage to transport a
male subject.

Id.

Sgt. Burton told Officer Cline that the male

subject had assaulted police officers in the past.

Id.

When Officer Cline arrived at the traffic stop, Officer David
Klein of the Fort Wayne Police Department was speaking with Sgt.
Burton.
the

(Id. ¶ 5.)

vehicle

Officer Cline was advised that the driver of

stopped

by

suspended/misdemeanor.

Sgt.

Burton

was

driving

while

Id.

Officer Klein and Officer Cline approached the vehicle on the
driver’s side.

(Id. ¶ 6.)

Officer Klein advised the male subject

(later identified as Anthony Martin), to exit the vehicle and put
his hands behind his back because he was going to be arrested.

Id.

Martin hesitated and looked upset.

Id.

Martin exited the vehicle.

Id.

Id.

He was argumentative.

Officer Cline drew his electronic

control device (Taser) and pointed it at Martin’s upper thigh area
to cover Officer Klein who was preparing to handcuff Martin.

Id.

Officer Cline handed Officer Klein his handcuffs to place on Martin
because Officer Klein was going to transport Martin to the Allen
County Justice Center.

Id.

Officer Klein handcuffed Martin.

(Cline Aff., ¶ 7.)

Officer

Klein and Officer Cline patted down Martin’s person to check for
11

weapons for the officers’ safety.

Id.

Martin was argumentative

and claimed that his driver’s license was not suspended.
8.)

(Id. ¶

Officer Cline placed Martin in the rear of his police squad

car.

(Id. ¶ 9.)

Officer Cline transported Martin to the Allen

County Justice Center without incident. Id. During the transport,
Martin was verbally upset.

Id.

Upon arrival at the Allen County Justice Center, Officer Cline
transferred custody of Martin to the Allen County Justice Center
lock-up staff.

(Id. ¶ 10.)

Martin was charged with driving while

suspended/misdemeanor. Id. As Officer Cline was leaving the Allen
County Justice Center, Martin stated he was going to show the judge
tomorrow that his license was not suspended and then file a
lawsuit.

Id.

Officer Cline states in his affidavit that he did not use his
electronic control device on Anthony Martin.

(Id. ¶ 11.)

Officer

Cline claims he did not use any force whatsoever against Martin.
Id.

In contrast, Martin’s affidavit states that Officer Cline

tased him on July 13, 2010.

(Martin Aff. ¶ 5.)

Officer Cline also

states in his affidavit that he did not search the vehicle that
Martin was driving. (Cline Aff. ¶ 11.) Martin states in his
affidavit that his car was searched by the Officers.
¶ 4.)

(Martin Aff.

According to Officer Cline, he had no contact whatsoever

with Martin or his vehicle or property on July 14, 2010.
12.)
12

(Id. ¶

Defendants also submitted an Affidavit for Probable Cause by
Sergeant

Hollis

Burton.

(DE

#87-2.)

It

states

that

at

approximately 1738 on July 13, 2010, Sgt. Burton was operating the
stationary radar in the 800 block of Columbia Avenue when he saw a
white Nissan traveling at a high rate of speed and passing several
cars on the right.

Id.

Sgt. Burton was able to obtain the speed

of the vehicle locked in at 45 miles per hour in a 30 miles per
hour zone.

Id.

A traffic stop was initiated and contact was made

with the driver who was identified as Anthony C. Martin by his
Indiana Driver’s license.

Id.

A check of Martin’s driving status

through the Indiana Bureau of Motor Vehicles showed him to be
driving while suspended (misdemeanor).

Id.

Martin was taken into

custody and transported to Allen County Lock-up for the offense.
Id.
Martin testified in his deposition that at the time of the
incident he was driving a white Nissan. (Martin Dep., DE #87-3, p.
21.)

Amanda Delagrange owned the white Nissan.

Id.

First Amendment Rights
The

amended

Plaintiff’s

first

complaint

alleges

amendment

rights

that
by

Defendants

“searching

the

violated
vehicle

plaintiff/petitioner was driving on or about July 14, 2010 without
probable cause.” (DE #11, p. 1.)

Additionally, in his response

memorandum, Martin claims Defendants violated his First Amendment

13

rights

by denying him “the right of the ‘people’ to be free,

peaceably, and the right to petition the government for a ‘Redress
of Grievances’, or right to be heard.”

(DE #90, p. 8.)

The First

Amendment provides for religious and political freedom as well as
freedom of speech.

U.S. Const. Amend. I.

Plaintiff has presented

absolutely no admissible evidence to support this claim, and
summary judgment is warranted as there is no genuine issue as to
any material fact, and Defendants are entitled to judgment as a
matter of law.

Fourth Amendment Rights - Excessive Force
Martin also alleges Defendants violated his Fourth Amendment
Rights by using excessive force. Martin states, under penalty of
perjury, that he was “tazed by officer Cline.”

(Martin Aff. ¶ 5.)

In contrast, Officer Cline attests that, “Anthony Martin was
argumentative” and he “drew [his] electronic control device (Taser)
and pointed it at Anthony Martin’s upper thigh area to cover
Officer Klein who was preparing to handcuff Anthony Martin” but
Officer Cline “did not use [his] electronic control device on
Anthony Martin” and Officer Cline did not search the vehicle that
Martin was driving. (Cline Aff. ¶¶ 6, 11.)

A

claim of “excessive

force in the course of an arrest . . . [is] properly analyzed under
the Fourth Amendment’s ‘objective reasonableness’ standard . . . .”
Graham v. Connor, 490 U.S. 386, 388 (1989).

14

This analysis gives

rise to the overall question of “whether [the officer’s] actions
were objectively reasonable.”
(2007).

Scott v. Harris, 550 U.S. 372, 381

Answering this inquiry “requires careful attention to the

facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.”

Graham, 490 U.S. at 396.

In determining

whether an officer’s actions were objectively reasonable under the
circumstances,

the

Court

should

view

the

matter

“from

the

perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.”

Id.

Thus, an officer’s use of

force is unconstitutional if, “judging from the totality of the
circumstances at the time of the arrest, the officer used greater
force than was reasonably necessary to make the arrest.”

Payne v.

Pauley, 337 F.3d 767, 778 (7th Cir. 2003) (quoting Lester v. City
of Chicago, 830 F.2d 706, 713 (7th Cir. 1987)).
The Court notes that such a determination of whether force was
reasonable “nearly always requires a jury to sift through disputed
factual contentions, and to draw inferences therefrom, [therefore]
we have held on many occasions that summary judgment or judgment as
a

matter

of

sparingly.”

law

in

excessive

force

cases

should

be

granted

Drummond ex rel Drummond v. City of Anaheim, 343 F.3d

1052, 1056 (9th Cir. 2003) (citation omitted).

15

In analyzing this

case under the Graham factors, the Court notes that there are “two
very different stories” here.

See Martin v. Fort Wayne Police

Dep’t, No. 1:09-CV-74-TLS, 2011 WL 781383, at *8 (Feb. 28, 2011)
(denying summary judgment in a case involving same plaintiff where
Court could not resolve “factual disputes at the summary judgment
stage.”).

Martin attests that Officer Cline tased him.

Officer

Cline attests that Martin looked upset and was argumentative, but
that he only placed his taser on his thigh preemptively, and never
activated the taser.

There is no other admissible evidence

whatsoever presented to the Court on this subject. This Court must
avoid “the temptation to decide which party’s version of the facts
is more likely true.”

Payne, 337 F.3d at 880 (citing Shepherd v.

Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999).

“Summary

judgment cannot be used to resolve swearing contests between
litigants.”

Id.

It is certainly possible that, were the jury to believe Martin
that he was tased, such act of being tased could potentially
constitute excessive force.

See, e.g, Cyrus v. Town of Mukwonago,

624 F.3d 856, 863 (7th Cir. 2010) (finding summary judgment
inappropriate where jury could conclude use of force excessive in
light of Graham factors).

On the other hand, depending upon the

totality of the circumstances, for example, if Martin was resisting
arrest or endangering the safety of the officer (and there is no
evidence of anything like this in the record at this time), the use
16

of force could be justified.

See Lewis v. Downey, 581 F.3d 467,

477 (7th Cir. 2009) (use of a taser is not per se unconstitutional
force).

Defendants cling to their argument that Officer Cline did

not tase Martin - they do not argue that, even if Martin was tased,
it was a justified use of force and did not constitute excessive
force.

And although Defendants claim that “[t]here is no evidence

that any defendant officer used any type of force against Anthony
Martin,” (DE #88, p. 7), this is just not true - Martin has a sworn
affidavit stating that Officer Cline tased him.

This Court is in

a frustrating position - it simply does not have enough information
in front of it to decide if the alleged use of force was excessive.
See, e.g., Stanley v. City of Portage, No. 2:08-cv-195, 2011 WL
830643, at *4 (N.D. Ind. Mar. 3, 2011) (summary judgment denied on
excessive force claim where court could not tell, due to factual
disputes, what the “facts and circumstances” were.)
While Defendants cite Meyer v. Robinson, 992 F.2d 734, 739
(7th Cir. 1993), and Lanigan v. Village of East Hazel Crest, 913 F.
Supp. 1202, 1209 (N.D. Ill. 1996), for the proposition that “no
injury gives weight to the assertion of no excessive force” (DE
#93, p. 2), that line of cases is not applicable here.

Meyer

itself states that “excessive force does not require injury.”
Meyer, 992 F.3d at 739.

Indeed, as the Supreme Court has said,

“pain, not injury, is the barometer by which we measure claims of
excessive force, and one need not have personally endured a taser
17

jolt to know the pain that must accompany it.”

Lewis, 581 F.3d at

475 (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)).

This

Court is unsure what physical evidence of injury Martin could have
pointed to after the incident if he was in fact tased.

Meyer and

Lanigan might be helpful if Martin was alleging excessive force
based upon physical injuries received if a police officer pushed
him down or shoved him (leaving cuts or bruises or other physical
evidence of injury), but those are not the allegations in this
case.

As such, because there is a material factual dispute,

summary judgment is denied on the 4th amendment claim for excessive
force against Defendant Officer Cline.

Qualified Immunity
Government officials performing discretionary functions are
generally shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.

Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995)

(citing Marshall v. Allen, 984 F.2d 787, 791 (7th Cir. 1993);
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Qualified

immunity is intended to protect "all but the plainly incompetent or
those who knowingly violate the law."

Hunter v. Bryant, 502 U.S.

224, 229 (1991) (quotation omitted).
A 2-part test determines whether a government official such as
18

Officer Cline is entitled to qualified immunity in a civil suit
under section 1983, and in this case, it makes sense to follow the
Saucier procedure.

Saucier v. Katz, 533 U.S. 194, 200 (2001); see

also Pearson v. Callahan, 129 S.Ct. 808, 821-22 (2009).

The

threshold inquiry is whether, taken in the light most favorable to
Plaintiff, "the facts alleged show the officer's conduct violated
a constitutional right."

Saucier, 533 U.S. at 201 (citing Siegert

v. Gilley, 500 U.S. 226 (1991)).

If the facts as alleged reveal no

constitutional violation, the inquiry ends and the officer will
prevail on the merits of the case.
Heller,

475

U.S.

796,

799

(1986)

See City of Los Angeles v.
(holding

if

there

is

no

constitutional violation, there can be no liability on the part of
the individual officer or the government body).
If, on the other hand, the facts alleged would amount to a
constitutional violation (as they do in this case), the Court next
examines "whether the right was clearly established." Saucier, 533
U.S. at 201.

The rationale behind this is "[i]f the law did not

put the officer on notice that his conduct would be clearly
unlawful,

summary

appropriate."

judgment

based

on

qualified

immunity

is

Id. at 202 (citing Malley v. Briggs, 475 U.S. 335,

341 (1986)). "The relevant inquiry in determining whether a right
is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation the officer
confronted."

Payne, 337 F.3d at 775-76 (citing Saucier, 533 U.S.

19

at 202).
showing

A plaintiff can defeat a qualified immunity defense by
that

“the

conduct

at

issue

is

so

egregious

that

no

reasonable person could have believed that it would not violate
clearly established rights.”

Wheeler v. Lawson, 539 F.3d 629, 639

(7th Cir. 2008) (quotation omitted).
At the time of Martin’s arrest, “it was of course clearly
established that a police officer may not use excessive force in
arresting an individual.” Holmes v. Village of Hoffman Estate, 511
F.3d 673, 687 (7th Cir. 2007); see also Norris v. Bain, 1:04-CV1545 DFH TAB, 2006 WL 753131, at *14 (S.D. Ind. Mar. 21, 2006)
(“[T]he Seventh Circuit [has] made clear that police officers do
not have the right to inflict ‘wholly gratuitous’ force on a
subdued suspect who was not resisting arrest.”).

Taking Martin’s

account as true, that he was tased by Officer Cline, there is again
a question of fact for the jury about whether Officer Cline could
have reasonably believed that the alleged force he employed against
Martin was justified.

See Holmes, 511 F.3d at 687.

unanswered

about

questions

Martin’s

conduct,

There are many

whether

he

was

resisting arrest, whether he was actually tased, and whether the
alleged tasing was necessary to subdue Martin.

See, e.g., Frazell

v. Flanigan, 102 F.3d 877, 884 (7th Cir. 1996) (overruled on other
grounds) (jury could reasonably conclude that officer who struck
subdued

suspect

in

back

with

nightstick

used

objectively

unreasonable force and was not entitled to qualified immunity).

20

In an analogous case in this circuit, the Court found:
As explained above, the Court has before it
evidentiary materials that call into dispute the
facts
put
forward
by
the
Defendants,
and
consequently genuine issues of material fact exist
as to the alleged deprivations of the Plaintiff’s
Fourth Amendment right to be free from an unlawful
search and seizure. The qualified immunity inquiry
cannot be disentangled from the disputed facts
concerning whether the Plaintiff was lawfully
stopped and [his detainment]. . . . Viewing the
facts in the light most favorable to the Plaintiff,
who is the party asserting an injury, the
Plaintiff’s claims that the Defendants deprived him
of constitutional rights are supported by evidence
in the record. Consequently, the Court finds that
the doctrine of qualified immunity does not warrant
summary judgment in favor of the Defendants on the
Plaintiff’s [section] 1983 clams.
Martin, 2011 WL 781383, at *10.

On the very limited record before

this Court at this time, Officer Cline is not entitled to qualified
immunity.

See White v. Gerardot, No. 1:05-CV-382, 2007 WL 541819,

at *7 (N.D. Ind. Feb. 15, 2007) (quotation omitted) (“[W]hen
factual disputes surrounding the conduct at issue bear directly
upon whether it was objectively reasonable for [the officer] to
believe he acted in compliance with clearly established law, then
summary judgment on the issue of qualified immunity must be
denied.”).

Failure To Intervene Claim
To

the

extent

Martin

alleges

that

Defendants

failed

to

intervene, even assuming, arguendo, that Martin was able to prove

21

that he was tased, and even assuming, arguendo, that the tase
constituted excessive force, Martin must still show other named
officers had reason to know that Officer Cline was using excessive
force and that they had a realistic opportunity to intervene. Bond
v. Simpson, 1:10-cv-856-WTL-TAB, 2012 WL 266946, at *6 (S.D. Ind.
Jan. 30, 2012).

Martin has presented no evidence establishing

these elements or evidence showing a material dispute of facts;
therefore, summary judgment is warranted on this claim.

(Id. at

*7.)

Search of Martin’s Vehicle
Once again, the Court has competing affidavits in front of it.
Martin attests that Defendants unlawfully searched the Nissan he
was driving.

(Martin Aff. ¶¶ 2, 4.)

In contrast, Officer Cline

attests he did not search the vehicle Martin was driving.
Aff. ¶ 11.)

(Cline

Again, there is no other admissible evidence before

the Court on this subject.
Even assuming, arguendo, that Martin could prove at trial that
he had a legitimate expectation of privacy in the vehicle despite
not being the owner, his claim would still fail because the
Officers had reasonable suspicion to justify the search based on
the totality of circumstances.

Police officers are permitted to

take reasonable steps to insure their own safety. United States v.
Jackson, 300 F.3d 740, 746 (7th Cir. 2002).
22

“[T]he scope of a

legitimate Terry search may be extended to include areas within the
immediate control and ready access of the detained suspect.” United
States v. Rainone, 586 F.2d 1132, 1136 (7th Cir. 1978). When an
officer has a reasonable suspicion that a motorist may be armed and
may be able to gain immediate control of a weapon, an officer is
permitted

to

conduct

a

protective

search

compartment of the vehicle without a warrant.

of

the

passenger

United States v.

Arnold, 388 F.3d 237, 239 (7th Cir. 2004).
Here, Officer Cline stated that, “Sergeant Burton told me that
the male subject had assaulted police officers in the past.” (Cline
Aff. ¶ 4.)

This is undisputed - Martin has put forth no contrary

evidence.

Additionally, it is uncontested that Martin “looked

upset” and “was argumentative.”

(Id. ¶ 6.)

Consequently, even if

an officer searched the vehicle, it would have been reasonable to
do so to insure the officers’ safety, and summary judgment is
warranted on this claim in favor of Defendants.

Search of Martin’s Person
Martin alleges that the officers illegally conducted a search
of his body.

Officer Cline concedes that, “[w]e patted Anthony

Martin’s person down to check for weapons for officer safety.”
(Cline Aff. ¶ 7.)
was reasonable.

As with the alleged search of the vehicle, this
“A traffic stop is similar to an investigative

23

detention and is thus governed by the principles set forth in Terry
v. Ohio.”

United States v. Finke, 85 F.3d 1275, 1278 (7th Cir.

1996) (citations omitted).

In Terry, the United States Supreme

Court determined a brief stop and superficial search does not
require

probable

cause,

suspicion of wrongdoing.

but

merely

a

reasonable,

articulable

Terry v. Ohio, 392 U.S. 1, 21 (1968). An

investigatory stop may be conducted when a police officer has a
“reasonable suspicion supported by articulable facts that criminal
activity is afoot.”

Jackson, 300 F.3d at 745.

Police officers may take reasonable steps to insure their own
safety, including a pat-down of the suspect’s clothing.
746.

Id. at

An officer may also order a suspect to exit a vehicle.

United States v. Hendricks, 319 F.3d 993, 1004 (7th Cir. 2003).
“The permissible scope of a Terry stop has expanded in recent years
to include the use of handcuffs and temporary detentions in squad
cars.”

United States v. Stewart, 388 F.3d 1079, 1084 (7th Cir.

2004) (citing United States v. Tilmon, 19 F.3d 1221, 1224-25 (7th
Cir. 1994)).
Here, Sergeant Burton stopped Martin’s car for speeding.
(Cline Aff. ¶ 4.)

Sgt. Burton requested a squad car with a

prisoner cage to transport a male subject.

Id.

Sgt. Burton told

Officer Cline that the male subject had assaulted police officers
in the past.

Id.

Officer Cline was also advised that Martin was

driving while suspended/misdemeanor.
24

(Id. ¶ 5; see also Affidavit

for Probable Cause, DE #87-2, attesting that “a check of Martin’s
driving status through the Indiana DMV showed him to be driving
while suspended (misdemeanor)”).

After Officer Klein and Officer

Cline approached Martin’s vehicle, Officer Klein ordered Martin to
exit the vehicle because he was going to be arrested.
¶ 6.)

Martin looked upset and was argumentative.

Id.

(Cline Aff.
Therefore,

it was reasonable for the officers to conduct a pat-down of Martin
to ensure officer safety.

Summary judgment is appropriate on this

claim.

Unlawful Detainment, False Imprisonment, and Malicious Prosecution
Claims

Martin alleges he was unlawfully detained, falsely imprisoned,
and maliciously prosecuted. In his affidavit, he states he was not
speeding or committing any crime that day.

(DE #90, p. 25, ¶ 7.)

Additionally, in his memorandum in opposition to the motion for
summary judgment, he argues (without evidentiary support), that he
was “stopped over 30 times within a 60 day period, and most of
the‘stops’ involved the same officers.” (DE #90, p. 4.) “Probable
cause to arrest is an absolute defense to any claim under Section
1983

against

police

officers

for

wrongful

arrest,

false

imprisonment, or malicious prosecution.”

Mustafa v. City of

Chicago, 442 F.3d 544, 547 (7th Cir. 2006).

Probable cause exists

when an officer reasonably believes, in light of he facts and
25

circumstances within his knowledge at the time of the arrest, that
the suspect has committed, or is committing, an offense.

Id.

Courts evaluate probable cause based on the facts “as they would
have appeared to a reasonable person in the position of the
arresting officer – seeing what he saw, hearing what he heard.”
United States v. Parra, 402 F.3d 752, 764 (7th Cir. 2005) (emphasis
in original) (quoting Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th
Cir. 1992)).

In determining whether probable cause exists, the

actual motives of the arresting officers are irrelevant; the
question

is

whether

the

officer’s

actions

were

objectively

reasonable in light of the facts and circumstances confronting him.
Scott v. United States, 436 U.S. 128, 138 (1978).
Here,

Martin

was

suspended/misdemeanor.

arrested

for

driving

while

Indiana Code 9-24-19-3 states:

A person who operates a motor vehicle upon a
highway when the person knows that the person’s
driving privilege, license, or permit is suspended
or revoked, when the person’s suspension or
revocation was a result of the person’s conviction
of an offense (as defined in IC 35-31.5-2-253)
commits a Class A misdemeanor.

Indiana Code 9-24-19-3.

Although Martin claims he had a valid

drivers license and was not speeding, he attached as exhibits his
tickets indicating he was pulled over for “driving while suspended
misdemeanor” and “speeding 45 mph in a 30 mph zone.”
Pl.’s Exs. 3 and 4.)

(DE #90,

Martin claims the “criminal charges were
26

later dismissed in favor of me,” and he attached an “Information
for Plea Agreement” that says “Defendant referred to IDP on Ct 2
state moves to dismiss Ct 1” and a chronological case summary that
seems to indicate that the charge in Count 1 was operating while
suspended (misdemeanor) and Count 2 was speeding. (DE #90, Pl.’s
Exs. 1 and 5.)

However, this Court has no information in front of

it regarding why Count 1 was dismissed, and Defendants fail to
address this point.

Even assuming, arguendo, that Count 1 for

driving on a suspended license was dismissed for lack of evidence,
or that Martin provided proof that his license was valid (and there
is no evidence as to why the Count was dismissed in the record),
probable cause still existed for the officers to arrest Martin.
There is evidence that Sgt. Martin initiated the traffic stop
because he saw Martin speeding and that he passed several cars on
the right. (DE #87-2.) A check of Martin’s driving status through
the Indiana Bureau of Motor Vehicles showed Martin to be driving
while suspended/misdemeanor, and Office Cline was advised of this
information when he arrived at the traffic stop.

Martin has set

forth no contrary evidence about the computer check or shown any
material disputed fact. Rather, it is uncontested that the computer
indicated Martin was driving while suspended.

Based upon these

facts, a reasonable officer would have believed there was probable
cause to arrest Martin.

Because there was probable cause for his

arrest, summary judgment is appropriate on the claims for unlawful

27

detainment and false imprisonment.
As to Martin’s claim for malicious prosecution, this also
fails.

To the extent he asserts a malicious prosecution claim

under Section 1983, Defendants are correct that a plaintiff “must
do more than merely claim that they arrested and detained him
without probable cause.”

Snodderly v. R.U.F.F. Drug Enforcement

Task Force, 239 F.3d 892, 901 (7th Cir. 2001).

For example, the

plaintiff “must allege that the officers committed some improper
act after they arrested him without probable cause, for example,
that they pressured or influenced prosecutors to indict, made
knowing misstatements to the prosecutor, testified untruthfully, or
covered up exculpatory evidence.”

Id.

Martin has shown no such

evidence of any alleged improper acts following his arrest. He does
argue in his memorandum that Defendants “made knowingly false
reports to the prosecutors and withheld exculpatory evidence that
could have cleared plaintiff.”

(DE #90, pp. 10.) However, at this

stage of the proceedings, Martin needs to do more.

See, e.g.,

Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir.
2010) (a party opposing summary judgment cannot merely rely on
allegations in pleadings, but must present the court will evidence
to prove his case).

Consequently, this claim fails and summary

judgment is appropriate.
To the extent Martin is asserting a claim for malicious
prosecution under state law, this also fails.
28

The Indiana Tort

Claims Act grants immunity to police officers in actions for
malicious prosecution. See Livingston v. Consolidated City of
Indianapolis, 398 N.E.2d 1302, 1306 (Ind. Ct. App. 1979).

8th Amendment
Martin claims that his Eighth Amendment rights were violated
when Officer Cline tased him and did not provide adequate medical
care.

The Eighth Amendment protects a sentenced prisoner from the

infliction of cruel and unusual punishment.
473.

Lewis, 581 F.3d at

Although pretrial detainees have not been convicted or

sentenced, are not yet “punishable” under the law, and may not be
punished in any way by the state, they can couch their excessive
force claims as violations of their Fourteenth Amendment rights to
due process.

Id.

The evidence before the Court shows that Martin was neither a
pretrial detainee nor a sentenced prisoner at the time Martin
alleges Officer Cline tased him. Consequently, summary judgment is
appropriate on Martin’s cruel and unusual punishment claims.

14th Amendment
Martin argues in his memorandum that Defendants violated his
14th Amendment rights when “defendants ‘deprive’ plaintiff his

29

Equal Protection safeguards and Due Process Clause” and he contends
he was “stopped over 30 times with in a 60 day period, in the same
fashion, by the same officers or within the ‘group’ of the same
officers committing the ‘wrong acts.’”

However, he has presented

no admissible evidence to the Court in support of these bald
allegations, which are simply insufficient.

See, e.g., Smith v.

City of Joliet, 965 F.2d 235 (7th Cir. 1992) (plaintiff’s bald
allegations regarding alleged use of excessive force insufficient
to show unconstitutional city policy or custom).
As discussed earlier in this opinion, the Fourth Amendment
objective reasonableness standard applies to excessive force cases
involving searches or seizures.
(6th Cir. 2010).

Aldini v. Johnson, 609 F.3d 858

It is only where there is no search or seizure

that the 14th Amendment’s due process clause applies.

Darrah v.

City of Oak Park, 255 F.3d 301, 305-06 (6th Cir. 2001). Under the
Fourteenth Amendment, the heightened inquiry for a substantive due
process

claim

is

whether

the

officer’s

conduct

shocked

the

conscience. Schaefer v. Goch, 153 F.3d 793, 798 (7th Cir. 1998).
This case should not be analyzed under the 14th Amendment rubric
since there was a search and seizure, but even if it was, and even
considering Martin’s affidavit and assuming, arguendo, that Officer
Cline did indeed tase him once, the Court does not believe that
rises to the level of shocking the conscience.

30

Section 1983 Claim Against The City of Fort Wayne
In this case, Defendants argue that the City of Fort Wayne is
entitled to summary judgment because Plaintiffs cannot prove that
the City of Fort Wayne acted pursuant to an unconstitutional
custom, policy, or practice, as required by Monell v. Department of
Social Services of the City of New York, 436 U.S. 658 (1978).

When

a plaintiff brings suit against a municipality under section 1983,
the plaintiff must allege the existence of an unconstitutional
policy or custom of the municipality in order to survive summary
judgment.

St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988)

("[local] governments should be held responsible when, and only
when, their official policies cause their employees to violate
another person's constitutional rights"); see also Monell, 436 U.S.
at 690-91.

A municipality cannot incur liability in an action

under section 1983 merely because it employs a tortfeasor. Monell,
436 U.S. at 691.
limited.

Municipal liability under section 1983 is

In Monell, the Supreme Court restricted liability to

cases in which "the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation,
or decision officially adopted or promulgated” by that body's
officers.

Id. at 690.

A plaintiff seeking to find a municipality

liable under section 1983 must also establish a causal nexus
between his injury and the municipality's alleged policy or custom.
Id. at 693-94.
31

Martin claims that the “Fort Wayne Police Dept. Policy #PD972401 and PD2407 ‘Use of Force policy and a Stop and Frisk policy
I.C. 35-33-1-1,’ that is unconstitutional and are the ‘reasons’ or
justification of the acts of its employees taken pursuant to the
‘official policy’ or custom.”
specifically

set

forth

why

(DE #90, p. 12.)
these

policies

Martin fails to
are

allegedly

unconstitutional, and he sets forth no facts whatsoever regarding
the alleged policies and their application.

He has

offer any facts to demonstrate a genuine issue of

failed to

material fact

that the City of Fort Wayne had a policy of allowing illegal stop
and

frisks

or

sanctioning

certain individuals.

repeated

unnecessary

detainment

of

In fact, the record is void of any evidence

that the City customarily or habitually stopped certain individuals
(including Martin).

Although he alleges he was stopped over 30

times within a 60 day period, there are no facts in the record to
support this.

Moreover, Plaintiff has set forth no evidence

showing the alleged policy, practice or custom caused his alleged
constitutional deprivation.

See, e.g., Cook v. Lain, No. 2:10-CV-

411-PRC, 2013 WL 866876, at *14 (N.D. Ind. Mar. 7, 2013) (granting
summary judgment in favor of sheriff defendant where plaintiff
offered no evidence of express policy or custom, or that it caused
the alleged constitutional deprivation).

As such, the Court

grants summary judgment in favor of Defendant, the City of Fort
Wayne.

32

Claims Against Fort Wayne Police Chief Russell York and the City of
Fort Wayne Mayor Tom Henry
Martin has included Fort Wayne Police Chief Russell York and
the City of Fort Wayne Mayor Tom Henry as Defendants.3

Individual

liability under 42 U.S.C. § 1983 must be based upon a finding that
the defendant caused the alleged constitutional deprivation. Palmer
v. Marion Cnty., 327 F.3d 588, 594 (7th Cir. 2003).

Yet the

amended complaint does not set forth any allegations that either
Chief York or Mayor Henry were personally involved in any alleged
constitutional deprivation.

In his memorandum in opposition,

Martin claims that Chief York and Mayor Henry “failed to take
corrective action,” “”failed to train,” and failed to “implement
meaningful procedures to discourage ‘lawless’ official conduct.”
(DE #90, #13.)

Additionally, he claims that Chief York and Mayor

Henry are “aware of the ‘challenged’ policy or custom, due to
numerous complaints filed with the Internal Affairs and Metro Human
Relations (Risk Management), but have not taken the proper care nor
concern.”

Id.

Yet, Martin has not presented the Court any

evidence in support of these bare assertions.

Mere allegations in

a complaint and unsupported assertions in a response brief need not
be considered by the Court as evidence at the summary judgment

3

Martin argues in his opposition memorandum that “the Fort Wayne Police
Department should not be dismissed as a matter of law.” (DE #90, p. 14.) The
ship has sailed on this argument - the Court already dismissed Defendant, Fort
Wayne Police Department in an order dated January 26, 2012 (DE #18). Martin
presents no legal authority as to why this should be revisited or overturned,
and the Court is not aware of any.

33

stage.

See Tibbs v. City of Chicago, 469 F.3d 661, 663 n.2 (7th

Cir. 2006) (stating mere allegations of a complaint are not
evidence, and contentions must be supported with citations to
admissible evidence at the summary judgment stage); Johnson v.
Cambridge

Indus.,

Inc.,

325

F.3d

892,

901

(7th

Cir.

2003)

(quotation omitted) (“summary judgment is the ‘put up or shut up’
moment in a lawsuit, when a party must show what evidence it has
that would convince a trier of fact to accept its version of
events.”); Martin v. Fort Wayne Police Dep’t, No. 1:11-CV-348 RM,
2013 WL 310298, at *3 (N.D. Ind. Jan. 25, 2013) (granting summary
judgment “where [same plaintiff] hasn’t presented any evidence
identifying any action, policy, or custom that would support a
claim against the City of Fort Wayne, the Police Department, Mayor
Henry or Police Chief York” finding he “can’t rest upon the
allegations in his original and amended complaints, and had to
present evidence in an admissible form that, if believed, would
support judgment in his favor.”).
The amended complaint does not set forth allegations that
either Chief York or Mayor Henry could be liable as supervisors.
For a supervisor to be liable for a constitutional deprivation,
“the supervisors must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what they
might see.”
1988).

Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir.

Again, Martin’s speculative assertion in his response

34

memorandum that both Chief York and Mayor Henry were “aware” of the
alleged challenged policy or custom and that they failed to take
corrective action, is completely unsupported by any admissible
evidence in the record.
Finally, if Martin was suing Chief York and Mayor Henry in
their official capacity, his claims still fail because Martin has
not put forth any evidence that either of them implemented an
official policy or acquiesced in a department or city custom that
caused the alleged constitutional deprivation. Monell, 436 U.S. at
692-94.

As

such,

summary

judgment

is

granted

in

favor

of

Defendants on the claims against Chief York and Mayor Henry.

Claims Against Unknown Officers
Martin has not presented any evidence about any actions by
“unknown officers” which entitled him to relief, and he cannot go
to trial against “unknown officers.”

See Martin, 2013 WL 310298,

at *3 (quoting Copeland v. Northwestern Mem’l Hosp., 964 F. Supp.
1225, 1234 (N.D. Ill. 1997) (“Claims against unknown persons are
‘meaningless and uncompensable.’”).

As such, summary judgment is

warranted on the claims against the unknown officers.

Claim for Punitive Damages
Plaintiff’s prayer for relief includes a request for punitive
35

damages. Defendants contend summary judgment is appropriate on the
claim for punitive damages against the Fort Wayne police officers
and against the City of Fort Wayne.

With regard to the Fort Wayne

police officers, Defendants argue that punitive damages may be
assessed

only

“when

the

defendant’s

conduct

is

shown

to

be

motivated by evil motive or intent, or when it involves reckless or
callous indifference to the federally protected rights of others,”
Merrit

v.

De

Los

Santos,

721

F.2d

598,

601

(7th

Cir.

1983)(quotation omitted), and Martin has provided no such evidence
in support of the claim.

While Martin claims in his amended

complaint that the officers harassed him and acted in a vindictive
behavior (DE #11, p. 2), Martin has simply failed to put forth any
evidence whatsoever that the officers had an evil motive or intent.
“A scintilla of evidence in support of the nonmovant’s position is
insufficient to successfully oppose summary judgment.” Brownell v.
Figel, 950 F.2d 1285, 1289 (7th Cir. 1991).

As we have said

before, summary judgment is the “put up or shut up moment in a
lawsuit, when a party must show what evidence it has that would
convince

a

trier

of

fact

Johnson, 325 F.3d at 901.

to

accept

its

version

of

events.”

Moreover, a party opposing a properly

supported summary judgment motion can’t rely merely on allegations
or denials in his or her own pleading, but rather “must marshal and
present the court with the evidence she contends will prove her
case.”

Goodman, 621 F.3d at 654.

36

As to the claim for punitive damages against the City of Fort
Wayne,

a

municipality

is

entitled

punitive damages liability.

to

absolute

immunity

from

City of Newport v. Fact Concerts,

Inc., 453 U.S. 247, 259-65 (1981); see also Hamm v. City of Fort
Wayne, No. F 83-299, 1984 WL 2856, at *1 (N.D. Ind. Apr. 11, 1984)
(finding City of Fort Wayne cannot be held liable for punitive
damages).

State Law Claims
In his amended complaint, Plaintiff sets forth state claims,
alleging

Defendants

harassed

him

and

were

vindictive,

they

retaliated against him, and are responsible for defamation, mental
stress and mental anguish. (DE #11, p. 2.) Defendants contend that
Martin’s state law claims are barred for failure to comply with the
notice provisions of the Indiana Tort Claims Act (“ITCA”).
The ITCA provides that a claim against a political subdivision
is barred unless the prescribed notice is filed within 180 days
after the loss occurs.

Ind. Code 34-13-3-8; see also Davidson v.

Perron, 716 N.E.2d 29, 33-34 (Ind. Ct. App. 1999).

Specifically,

notice must be filed: (1) with the governing body of that political
subdivision;
Management

and

2)

Commission.

the

Indiana
Ind.

Code

Political

Subdivision

34-13-3-8.

“The

Risk
notice

requirements of the ITCA apply not only to suits against political

37

subdivisions but also to suits against employees of political
subdivision.”

Davidson, 716 N.E.2d at 33-34 (citing VanValkenburg

v. Warner, 602 N.E.2d 1046, 1048 (Ind. Ct. App. 1992)).

The

claimant bears the burden of establishing substantial compliance
with the notice provisions and it is a question of law.

Chang v.

Purdue Univ., 985 N.E.2d 35, 52 (Ind. Ct. App. 2013).
“Substantial compliance with the statutory notice requirements
is sufficient when the purpose of the notice requirement is
satisfied.”

Schoettmer v. Wright, 992 N.E.2d 702, 707 (Ind. 2013)

(quoting Ind. State Highway Comm’n v. Morris, 528 N.E.2d 468, 471
(Ind.

1988)).

informing

the

“The

purposes

officials

of

of

the

the

notice

political

statute

include

subdivision

with

reasonable certainty of the accident and surrounding circumstances
so that the political subdivision may investigate, determine its
possible liability, and prepare a defense to the claim.”
crucial

consideration

is

whether

the

notice

Id.

supplied

by

“The
the

claimant of his intent to take legal action contains sufficient
information for the city to ascertain the full nature of the claim
against it so that it can determine its liability and prepare a
defense.”

Id. (quoting Collier v. Prater, 544 N.E.2d 497, 500

(Ind. 1989)).
In this case, Martin filed a “Notice to Inform the Court Proof
of

Compliance

‘ITCA’

Requirements

Notice)” on June 13, 2013.

(Plaintiff’s

(DE #91.)
38

State

Claims

Martin attached a letter

sent

from

the

Indiana

Political

Subdivision

Risk

Management

Commission to Martin, dated January 5, 2012, and stating in
pertinent part:
This letter shall serve as formal notice and
acknowledgment of our receipt of the Notice of Tort
Claim you recently filed against the Fort Wayne
Police Department. . . . The Commission can only
suggest that you file your claim directly with the
Fort Wayne Police Department.
(DE #91, p. 2.)
Because Defendants have raised the defense of failure to
comply with the notice requirements, the burden is on Martin to
prove compliance with the ITCA notice provisions.

Hedges v.

Rawley, 419 N.E.2d 224, 227 (Ind. Ct. App. 1981). Here, the letter
submitted by Martin is from the Indiana Political Subdivision Risk
Management Commission, and it is dated January 5, 2012.

The date

of the letter is much more than 180 days after the alleged incident
on July 13, 2010, and Martin has not otherwise showed that he filed
notice of his tort claim within 180 days of July 13, 2010.
Additionally, the letter does not reference this alleged incident,
and there is no indication that it related to the events underlying
the current lawsuit.

As such, Martin has failed to carry his

burden of showing substantial compliance with the ITCA mandatory
notice

provision

and

summary

judgment

Defendants on the state claims.
Scottsburg,

Ind.,

36

F.Supp.2d
39

is

proper

as

to

the

See, e.g., Dameron v. City of
821,

836-39

(S.D.

Ind.

1998)

(granting summary judgment in part where plaintiff’s state claim
was barred for failure to file proper notice under ITCA).

CONCLUSION
For the reasons set forth above, the Motion for Summary
Judgment (DE #87) is GRANTED IN PART and DENIED IN PART.

Summary

judgment is GRANTED in favor of Defendants on the following claims:
alleged violation of First Amendment rights; failure to intervene;
alleged unlawful search of the vehicle; alleged illegal search of
Martin’s person; unlawful detainment, false imprisonment, and
malicious

prosecution;

alleged

violation

of

Eighth

Amendment

rights; alleged violation of Fourteenth Amendment rights; the 1983
claim against Defendant the City of Fort Wayne; the claims against
Defendant Fort Wayne Police Chief Russell York and Defendant City
of Fort Wayne Mayor Tom Henry; the claims against unknown officers;
the claim for punitive damages; and the state law claims.

Summary

judgment is DENIED as to Plaintiff’s claim of excessive force in
violation of his Fourth Amendment Rights and that claim remains
pending against Defendant Officer Matthew Cline.
Plaintiff’s Motion to Strike Defendants Summary Judgment and
Affidavits (DE #92) is DENIED.

Defendants’ Motion to Strike

Portions of Martin’s Affidavit (DE #94) is also DENIED.

40

DATED: March 17, 2014

/s/ RUDY LOZANO, Judge
United States District Court

41