Stewart v. Fort Wayne Police Department et al

Filing 165

OPINION AND ORDER: The Court GRANTS summary judgment in favor of Defendants, City of Fort Wayne, Tony Maze, Parkview Hospital, Tyler Johnson, Tony Maze, Professional Emergency Physicians, Mark Lowden, Amy Trabel, and Racheal Penny (Rachel Perry) and against Plaintiff Tyquan Stewart. Signed by Chief Judge Theresa L Springmann on 4/8/19. (Copy mailed to pro se party via certified mail, receipt no. 7018 0360 0001 4183 9467)(ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
TYQUAN STEWART,
Plaintiff,
v.

CAUSE NO.: 1:17-cv-346-TLS

CITY OF FORT WAYNE, LIEUTENANT
TONY MAZE, PARKVIEW HOSPITAL,
TYLER G. JOHNSON, D.O.,
PROFESSIONAL EMERGENCY
PHYSICIANS, INC., MARK LOWDEN,
AMY TRABEL, RACHEAL PENNY,
Defendants.
OPINION AND ORDER
This matter is before the Court on the Plaintiff Tyquan Stewart’s Motion for Summary
Judgment [ECF No. 141]. The Defendants, Parkview Hospital, Rachel Peery (named as Racheal
Penny) and Amy Trabel [ECF No. 147], City of Fort Wayne, Mark Lowden, and Tony Maze
[ECF No. 154], and Dr. Tyler Johnson and Professional Emergency Physicians, Inc. [ECF
No. 162] have also filed Motions for Summary Judgment.

BACKGROUND
The Plaintiff filed a Complaint on September 6, 2017 [ECF No. 1]. After a series of
motions to amend, the Plaintiff’s Fifth Amended Complaint is now the operative complaint in
this case [ECF No. 115]. The Plaintiff brings several causes of action against multiple
defendants. The Plaintiff alleges that Defendants Lowden and Maze violated his Fourth
Amendment rights when they committed an illegal search and seizure of his blood without a
warrant or probable cause. (Pl.’s Fifth Am. Compl. at 2.) The Plaintiff alleges that Defendants

Trabel, Penny, and Johnson invaded his privacy pursuant to HIPAA (identified as HIPPA) and
that Trabel committed felony battery. (Id.) Additionally, regarding Defendant Johnson, the
Plaintiff alleges that Johnson shared his information under “false pretense” and “false light” with
malicious intent. Finally, the Plaintiff alleges state law claims for negligence and negligent
infliction of emotional distress against all the Defendants.
The Plaintiff contends that the City of Fort Wayne is liable for the actions of its
employees, Maze and Lowden. The Plaintiff also argues that Parkview Hospital is liable for the
actions of its employees, Trabel, Penny, and Johnson, and that Professional Emergency
Physicians, Inc. is also liable for the actions of Johnson. (Id. at 4.) The Plaintiff requests
compensatory and punitive damages, in addition to attorneys’ fees, legal costs, and other
expenses the Plaintiff incurred during this litigation. (Id.)

STATEMENT OF FACTS
On June 4, 2016, Defendant Maze responded to a call about a motor vehicle accident.
Upon arrival at the scene of the accident, medics informed Maze that the Plaintiff and his
passenger were in very serious condition. The Plaintiff had suffered internal injuries and the
Plaintiff’s passenger had a serious gash to the thigh. Maze spoke with the Plaintiff and the
passenger while they waited to receive medical assistance and, in doing so, noticed a strong
smell of alcohol emanating from the Plaintiff’s vehicle. Maze was unable to perform field
sobriety tests due to the nature of the accident.
An ambulance transported the Plaintiff to the Parkview Hospital Emergency Room. Due
to the seriousness of the accident and Maze’s observations, Maze determined that both drivers
should be subjected to blood alcohol test (BAT). Maze requested that Defendant Lowden assist

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with the investigation and go to Parkview Hospital. Lowden asked medical staff for an updated
condition on Plaintiff and his passenger. Maze then asked Lowden to request that the Plaintiff’s
treating physicians perform a blood draw as part of their treatment of the Plaintiff. However,
neither Maze nor Lowden ordered the treating physicians to conduct a blood draw or perform
any specific testing.
As part of his medical care for the Plaintiff, Defendant Dr. Tyler Johnson, without orders
from law enforcement, ordered a trauma assessment that included blood testing. Ethanol testing,
as part of the blood testing, is an essential part of administering care to a trauma patient. The
Plaintiff was unconscious when Defendant Amy Trabel, a phlebotomist, performed a blood
draw. Maze and Lowden subsequently requested the results of the Plaintiff’s medical blood draw
pursuant to Ind. Code § 9-30-6-6, 1 which Defendant Rachel Perry then delivered to them. The
blood draw showed that the Plaintiff had a BAT above .15. Consequently, the Plaintiff was
charged with Operating While Intoxicated. Neither Defendant Johnson nor Trabel communicated
the BAT results to law enforcement.
On October 15, 2018, the Plaintiff filed a Motion for Summary Judgment [ECF No. 141]
and on November 6, 2018 Defendants Professional Emergency Physicians, Inc., and Johnson
filed a response [ECF No. 144]. Defendants Parkview Hospital, Perry, and Trabel filed a Motion
for Summary Judgment on November 6, 2018 [ECF No. 147] and a response [ECF No. 157] to
the Plaintiff’s Motion for Summary Judgment on November 9, 2018. Defendants City of Fort

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The statute reads as follows: “A physician or a person trained in obtaining bodily substance samples and
acting under the direction of or under a protocol prepared by a physician, who: (1) obtains a blood, urine,
or other bodily substance sample from a person regardless of whether the sample is taken for diagnostic
purposes or at the request of a law enforcement officer under this section; or (2) performs a chemical test
on blood, urine, or other bodily substance obtained from a person; shall deliver the sample or disclose the
results of the test to a law enforcement officer who requests the sample or results as a part of a criminal
investigation. Samples and test results shall be provided to a law enforcement officer even if the person
has not consented to or otherwise authorized their release.”

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Wayne, Lowden, and Maze filed a response [ECF No. 153] to the Plaintiff’s Motion for
Summary Judgment and a Motion for Summary Judgment [ECF No. 154] on November 9, 2018.
The Plaintiff filed a response [ECF No. 158] to the Defendants’, City of Fort Wayne, Lowden,
and Maze, Motion for Summary Judgment on November 15, 2018, and the Defendants filed a
reply [ECF No. 160] on November 29, 2018. Defendants Professional Emergency Physicians,
Inc., and Johnson filed a Motion for Summary Judgment [ECF No. 162] on December 17, 2018
and the Plaintiff filed a response [ECF No. 164] on December 19, 2018. The Plaintiff filed a
reply [ECF No. 161] supporting his summary judgment motion on November 30, 2018.

LEGAL STANDARD
Summary judgment is proper where the evidence of record shows that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial burden
of informing the court of the basis for its motion and identifying those portions of the record it
believes demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then
shifts to the non-movant to “go beyond the pleadings” to cite evidence of a genuine factual
dispute precluding summary judgment. Id. at 324. “[A] court has one task and one task only: to
decide, based on the evidence of record, whether there is any material dispute of fact that
requires a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). If the nonmovant does not come forward with evidence that would reasonably permit the finder of fact to
find in its favor on a material issue, then the Court must enter summary judgment against it. Id.
Bare assertions are insufficient to create a dispute of fact for summary judgment. Fed. R. Civ. P.
56(e).

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ANALYSIS
The Plaintiff brings various claims against all the Defendants. The Court will address the
allegations against Defendants City of Fort Wayne, Lowden, and Maze, Defendants Parkview
Hospital, Peery, and Trabel, and Defendants Emergency Room Physicians and Johnson
separately.

A.

Defendants City of Fort Wayne, Lowden, and Maze
The Plaintiff alleges that Defendants City of Fort Wayne, Lowden, and Maze committed

“constitutional torts” and “common law torts,” in addition to “illegal search of [sic] seizure due
process” when the Defendants “took [his] blood without a warrant or probable cause.” (Pl.’s
Fifth Am. Compl. at 2–3.) The Plaintiff states that the City of Fort Wayne is liable for the actions
of its employees, Maze and Lowden. (Id.) The Defendants argue that the Fourth and Fourteenth
Amendments are inapplicable to the Plaintiff’s claims, the Plaintiff’s retaliation claim is not a
recognized claim, and the Indiana Tort Claims Act bars the Plaintiff’s state law negligence and
negligent infliction of emotional distress. (Defs.’ Mem. in Supp. of Mot. for Summ. J. at 7–8.)
The Defendants also argue that Maze and Lowden are entitled to the defense of qualified
immunity and there is no basis for municipal liability. The Plaintiff argues, in response, that he
filed this claim within the appropriate window pursuant to the Indiana Tort Claims Act and
appears to ask for assistance with an ineffective assistance of counsel claim. (Pl.’s Resp. to Defs.
City of Fort Wayne, Lowden, and Maze’s Mot. for Summ. J. at 1–2.)

1.

Plaintiff’s Constitutional Claims

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The Plaintiff appears to bring his constitutional claims against the Defendants pursuant to
42 U.S.C. § 1983. Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress…
To state a claim under § 1983, a plaintiff must allege “(1) that defendants deprived him of a
federal constitutional right; and (2) that the defendants acted under color of state law.” Savory v.
Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
The Defendants argue that the Plaintiff’s Fourth Amendment rights were not violated
because Maze and Lowden properly secured the results of a medical blood draw pursuant to Ind.
Code § 9-30-6-6. (ECF No. 155, Def.’s Mem. at 8.) The Defendants contend that Indiana courts
have determined that there is no reasonable expectation of privacy in BAT results that a hospital
obtains and records during its treatment of a patient, when law enforcement requests those results
in the investigation of an automobile accident. See State v. Eichhorst, 879 N.E. 2d 1144, 1148–
49 (Ind. Ct. App. 2008). In response, the Plaintiff argues that the officers failed to obtain a
warrant for his BAT results. (ECF No. 158, Pl.’s Resp. at 2.)
Pursuant to Indiana law, consent to health care treatment is not required in an emergency
or when the patient is too intoxicated to give consent. Ind. Code § 34-18-12-9. Additionally,
Indiana courts have found no constitutional violation where “the blood draw was not performed
solely to serve the needs of law enforcement.” Eichorst, 879 N.E. 2d at 1150. Such is the case
here: The blood draw was performed for medical purposes (Lowden Aff. ¶ 17), and Stewart has
not disputed this fact, as he testified that he was unconscious during the procedure (Stewart Dep.
at 78:14–24.) As the Plaintiff has failed to establish that there is a genuine dispute of material
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fact as to whether he was deprived of a constitutional right, the Defendants are entitled to
judgment as a matter of law.
The Plaintiff also alleges that the Defendants violated his due process rights pursuant to
the Fourteenth Amendment. The Plaintiff’s arguments regarding this claim are based upon the
same allegations as his Fourth Amendment claim – that Defendants Lowden and Maze ordered a
blood draw improperly without a warrant. The Defendants argue that this claim is governed by
the Fourth Amendment and the Plaintiff’s claim must thus necessarily fail. (Defs.’ Mem. in
Supp. of Mot. for Summ. J. at 14.) The Plaintiff fails to address this argument in his response to
the Defendants’ Motion for Summary Judgment.
Federal Rule of Civil Procedure 56(e) provides that “[i]f a party fails to properly support
an assertion of fact or fails to properly address another party’s assertion of fact as required by
Rule 56(c), the court may…consider the fact undisputed for purposes of the motion [or[ grant
summary judgment if the motion and supporting materials—including the facts considered
undisputed—show that the movant is entitled to it….” Fed. R. Civ. P. 56(e)(2), (3). As the
Plaintiff failed to discuss his Fourteenth Amendment claim in his response to summary
judgment, this claim is deemed abandoned. Palmer v. Marion Cnty., 327 F.3d 588, 598 (7th Cir.
2003). “The law is clear that failure to respond to issues raised in a summary judgment motion
constitutes waiver.” Morgan v. Snider High Sch., 2007 WL 3124524, at *5 (N.D. Ind. Oct. 23,
2007).
Finally, the Plaintiff also asserts his Fourth and Fourteenth amendment claims against the
City of Fort Wayne. Local governments and municipalities may qualify as a “person” under §
1983. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). To allege
that a municipality has violated an individual's civil rights under ... § 1983, [a plaintiff must]

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allege that (1) the City had an express policy that, when enforced, causes a constitutional
deprivation; (2) the City had a widespread practice that, although not authorized by written law
or express municipal policy, is so permanent and well settled as to constitute a custom or usage
within the force of the law; or (3) plaintiff's constitutional injury was caused by a person with
final policymaking authority. McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir.2000).
Although there is no heightened pleading standard for a municipal liability claim under § 1983,
see Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163,
183 (1993), a plaintiff still must “set forth sufficient allegations to place the court and defendants
on notice of the gravamen of the complaint.” Latuszkin v. City of Chicago, 250 F.3d 502, 504
(7th Cir.2002).
The Plaintiff does not allege that there was an express policy or widespread practice and
offers no evidence to that point. Further, in response to the Defendants’ Motion for Summary
Judgment, the Plaintiff does not address municipal liability. As with his Fourteenth Amendment
claim, the Court finds that the Plaintiff has abandoned this claim. See Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 562 n.2 (7th Cir. 1996) (finding that a plaintiff has abandoned a
claim when he or she fails to respond to arguments on that claim in the defendant’s motion for
summary judgment).

2.

The Plaintiff’s State Law and Other Claims
The Plaintiff alleges state law negligence and negligent infliction of emotional distress

against the Defendants. The jurisdiction of the Court over the state-law claims is based on the
supplemental jurisdiction statute, 28 U.S.C. § 1367(a), which extends the jurisdiction of federal
district courts to all claims that are sufficiently related to the claim or claims on which their

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original jurisdiction is based to be part of the same case or controversy within the meaning of
Article III of the Constitution.
The Defendants argue that the Maze and Lowden acted within their employment when
they obtained the results of the Plaintiff’s BAT, and the Indiana Tort Claims Act immunity
applies. The Plaintiff argues that he filed the claim within “the 180 days required, and if proper
notice was not establish [sic] It [sic] was defense fault…” (Pl.’s Resp. to Defs.’ Mot. for Summ.
J. at 1.) Thus, the Plaintiff does not dispute the applicability of the Indiana Torts Claims Act to
the Defendants.
The Indiana Tort Claims Act, Ind. Code § 34-13-3-3-(8) states that: “A governmental
entity or an employee acting within the scope of the employee’s employment is not liable if a
loss results from the…adoption and enforcement of or a failure to adopt or enforce a law
(including rules and regulations), unless the act of enforcement constitutes false arrest or false
imprisonment.” Id. Negligence and intentional infliction of emotional distress claims do not
survive, even when they relate to a claim that escapes the immunity provision of the Indiana Tort
Claims Act. See Foster v. Land, No. 2:16-CV-45-RLM-PRC, 2016 WL 3971699, at *6 (N.D.
Ind. July 25, 2016). The Plaintiff provides no legal argument in rebuttal, and thus his claim fails
as a matter of law. Beard v. Whitley Cnty. REMC, 840 F.2d 405, 410 (7th Cir. 1988) (nothing
that 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.”); see Allstate Ins. Co. v. Kundrat, No. 2:03 CV 481 RL, 2006
WL 516780, at *10 (N.D. Ind. Mar. 2, 2006) (holding that a party is obligated to provide the
Court with both the factual and legal basis for their arguments.).

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Lastly, the Plaintiff alleges in his Fifth Amended Complaint that he was charged with
crimes related to his motor vehicle accident “out of retaliation.” (Pl.’s Fifth Am. Compl. at 2.)
The Defendants argue that the Plaintiff’s retaliation claim has no legal nor factual basis. The
Plaintiff argues, in response, that the Defendants retaliated against him due to his participation in
Stewart v. Fort Wayne Police Department (1:16-cv-316) and Bey v. Allen Cnty. Jail. However,
the Plaintiff fails to identify the legal basis for his claim. A non-moving party cannot rest on the
allegations or denials contained in its pleadings, but must present sufficient evidence to show the
existence of each element of its case on which it will bear the burden at trial. See Celotex Corp.,
477 U.S. at 322–23. The Plaintiff has neither identified the legal framework for his retaliation
claim, nor identified facts that demonstrate the Defendants committed retaliation.
As both a movant and non-movant to summary judgment, the Plaintiff has failed to carry
his burden in respect to all his allegations against the Defendants, the City of Fort Wayne,
Lowden, and Maze. Therefore, the Court DENIES the Plaintiff’s Motion for Summary Judgment
[ECF No. 141] and GRANTS the Defendants’ Motion for Summary Judgment [ECF No. 154].

B.

Defendants Parkview Hospital, Rachel Peery, and Amy Trabel

The Plaintiff brings multiple claims against these Defendants. The Plaintiff alleges that
Defendant Amy Trabel committed battery because she obtained his blood without a warrant. The
Plaintiff alleges that Defendants Perry and Trabel violated Parkview Hospital policy and
committed an invasion of privacy pursuant to HIPAA when she shared the Plaintiff’s medical
information without his consent “under false pretense and false light.” The Plaintiff claims that

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Defendant Parkview Hospital is liable for its employees, including Defendants Trabel, Perry, and
Johnson.2
The Defendants argue that the Plaintiff presents no legal basis for his claims that the
Defendants committed battery, “false pretense under false light,” and retaliation. (Defs.’ Resp. to
Pl.’s Mot. for Summ. J. at 6–7.) The Plaintiff does not offer any argument in rebuttal, and the
time to do so has passed. “It is not the Court's job to conduct legal research and construct legal
arguments for the parties.” Means v. St. Joseph Cnty. Bd. of Comm’rs, No. 3:10-CV-003 JD,
2011 WL 4452244, at *8 (N.D. Ind. Sept. 26, 2011) (citing Gross v. Town of Cicero, 619 F.3d
697, 704 (7th Cir.2010)). The Plaintiff has failed to connect the facts in the record to any legal
basis to support his motion for summary judgment, which is his burden. See, e.g., Toddco, Inc. v.
Nextel W. Corp., No. 2:04-CV-3, 2005 WL 1174220, at *6 (N.D. Ind. Apr. 28, 2005). Where a
Plaintiff fails to set forth any legal basis for the court to conclude that summary judgment is
appropriate, it must be denied. See, e.g., Range v. Brubaker, No. 3:07 CV 480, 2009 WL 857499,
at *5 (N.D. Ind. Mar. 31, 2009). Therefore, the Court finds no basis to grant the Plaintiff’s
summary judgment motion as to his allegations regarding battery, false pretense under false
light, and retaliation.
The Plaintiff’s remaining claims against the Defendants are negligence and negligent
infliction of emotional distress. As noted above, the jurisdiction of the Court over the state-law
claims is based on the supplemental jurisdiction statute, 28 U.S.C. § 1367(a). In Indiana, to
demonstrate negligence, a Plaintiff must show: (1) a duty owed to the plaintiff by the defendant;
(2) a breach of that duty by allowing conduct to fall below the applicable standard of care; and

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While the Defendants address the Plaintiff’s Fourteenth Amendment claims against Trabel in their
Motion for Summary Judgment, the Plaintiff’s Fifth Amended Complaint makes no mention of such an
allegation and, accordingly, the Court will not address the Defendants’ argument here.

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(3) compensable injury proximately caused by the breach of duty. See Smith v. Walsh Constr.
Co. II, LLC, 95 N.E.3d 78, 84 (Ind. Ct. App.), reh'g denied (Apr. 18, 2018), transfer denied sub
nom. Walsh Constr. Co., II, LLC v. Case Found. Co., 110 N.E.3d 1146 (Ind. 2018). The
Defendants argue that the Plaintiff fails to satisfy any of the foregoing elements to prevail on a
common law negligence claim. (Defs.’ Resp. to Pl.’s Mot. for Summ. J. at 5.) Specifically, the
Plaintiff fails to identify any duty that the Defendants owed to him, as well as a breach of any
duty. (Id.) The Plaintiff does not offer any argument in rebuttal. As discussed above, mere
recitations of allegations will not suffice at the summary judgment stage. Therefore, the Court
finds that it cannot grant the Plaintiff summary judgment on this point.
Additionally, the Defendants argue that the Plaintiff cannot sustain an allegation of
negligent infliction of emotional distress. (Defs.’ Resp. to Pl.’s Mot. for Summ. J. at 6.) To
maintain a cause of action for negligent infliction of emotional distress, a plaintiff must satisfy
the “impact rule.” Alexander v. Scheid, 726 N.E.2d 272, 283 (Ind. 2000). A plaintiff must
demonstrate that he or she suffered a direct physical impact, but this impact need not cause a
physical injury to the plaintiff and the emotional trauma the plaintiff suffered does not need to
result from a physical injury caused by the impact. See Conder v. Wood, 716 N.E.2d 432, 434
(Ind. 1999).
Finally, the Plaintiff alleges that the Defendants violated HIPAA when they disclosed his
BAT results to police officers. It is well-settled that “HIPAA does not furnish a private right of
action.” Carpenter v. Phillips, 419 Fed. Appx. 658, 659 (7th Cir. 2011). “HIPAA provides civil
and criminal penalties for improper disclosures of medical information, but it does not create a
private cause of action, leaving enforcement to the Department of Health and Human Services
alone.” Doe v. Board of Tr. Of the Univ. of Ill., 429 F. Supp. 2d 930, 944 (N.D. Ill. 2006).

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“[E]very court to have considered the issue…has concluded that HIPAA does not authorize a
private right of action.” Traveler v. Ott, No. 1:06-CV-304, 2006 WL 3450602, at *3 (N.D. Ind.
Nov. 29, 2006).
Thus, the Court DENIES the Plaintiff’s Motion for Summary Judgment in [ECF No. 141]
and GRANTS the Defendants’ Motion for Summary Judgment [ECF No. 147].

C.

Defendants Emergency Room Physicians and Dr. Tyler Johnson
The Plaintiff alleges that Defendant Johnson violated HIPAA by sharing the Plaintiff’s

information under false pretense and false light, committed retaliation, and that Emergency
Room Physicians is liable for the torts of its employee, Johnson. The Defendants contend that the
Plaintiff cannot state a cause of action pursuant to HIPAA, “sharing information under false
pretense and false light,” nor “retaliation.” (Def.’s Br. in Supp. of Mot. for Summ J. at 7, 9.)
Further, the Defendant argues that the Plaintiff cannot prevail on a negligence claim under
Indiana law. In response, the Plaintiff argues that the medical records show that Defendant
Johnson made false statements, he shared these records with the City of Fort Wayne, and that the
Defendant retaliated due to the previous lawsuit against Parkview Hospital.
As discussed above, the Plaintiff has failed to demonstrate that a legal cause of action
exists for his claims under HIPAA, false pretense and false light, or retaliation claims. While the
Defendants construed the Plaintiff’s arguments regarding false pretense and false light as
defamation claims, the Plaintiff made it clear in his reply to that his false light allegations were
premised upon neither libel nor slander. (ECF No. 161, Pl.’s Reply to Defs.’ Mot. for Summ. J.
at 2.) Accordingly, the Court DENIES the Plaintiff’s Motion for Summary Judgment [ECF No.
141] and GRANTS the Defendants’ Motion for Summary Judgment [ECF No. 162].

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D.

Dismissal of Action
A litigant proceeding in forma pauperis has the same right to amend a complaint as fee-

paying plaintiffs. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014 (7th Cir. 2013). “[C]ourts
have broad discretion to deny leave to amend where...the amendment would be futile.” Hukic v.
Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009). The Court may evaluate futility when a
corresponding motion for summary judgment is pending. See BKCAP, LLC v. Captec Franchise
Tr. 2000-1, No. 3:07-CV-637, 2010 WL 1222187, at *3 (N.D. Ind. Mar. 23, 2010) Further, “[i]f
a summary judgment motion is pending, futility may be shown with reference to the entire
summary judgment record.” Miller v. Account Mgmt. Servs., No. 1:07-CV-231, 2008 WL
2338300, at *2 (N.D. Ind. June 3, 2008); Sound of Music Co. v. Minn. Min. & Mfg. Co., 477 F.3d
910, 923–24 (7th Cir. 2007) (classifying amendment as futile where “the amended claim would
not survive a motion for summary judgment”). The record in this case demonstrates that any
further amendments to the complaint would be futile. The Plaintiff has had multiple
opportunities to amend his complaint to list cognizable causes of action against the Defendants
and time to marshal evidence in support of his summary judgment motion, but has failed to do
so. Therefore, the Court finds that the Plaintiff’s case should be dismissed with prejudice.

CONCLUSION
Based on the foregoing, the Court GRANTS summary judgment in favor of Defendants,
City of Fort Wayne, Tony Maze, Parkview Hospital, Tyler Johnson, Tony Maze, Professional
Emergency Physicians, Mark Lowden, Amy Trabel, and Racheal Penny (Rachel Perry) and
against Plaintiff Tyquan Stewart.

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SO ORDERED on April 8, 2019.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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