Burns v. Rekeweg
Filing
63
OPINION AND ORDER GRANTING 46 MOTION for Summary Judgment by Defendants Officer Mendoza, Shane L Rekeweg, 59 MOTION to Deem Motion for Summary Judgment filed on July 13, 2020 by Defendants Officer Mendoza, Shane L Rekeweg and 57 MOTION to Strike by Defendants Officer Mendoza, Shane L Rekeweg. Signed by Judge William C Lee on 12/2/2020. (lhc)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
TAMMY BURNS
Plaintiff,
v.
ADAMS COUNTY SHERIFF and
OFFICER MENDOZA,
Defendants.
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CIVIL NO. 1:18cv160
OPINION AND ORDER
This matter is before the Court on a Motion for Summary Judgment filed by the
Defendants, Adams County Sheriff and Officer Mendoza (“Mendoza” or “Deputy Mendoza”) on
July 13, 2020. Plaintiff, Tammy Burns (“Burns”), filed a response on September 18, 2020, to
which the Defendants replied on October 2, 2020.
Also before the Court is a Motion to Strike, filed by the Defendants on October 2, 2020.
Burns responded to the motion on October 16, 2020, to which Defendants replied on October 23,
2020.
For the following reasons, both motions will be granted.
Standard of Review
A court must grant a motion for summary judgment if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56 (a). Material facts are those facts that are outcome-determinative under the
applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). To survive summary
judgment, the non-movant must muster specific, admissible evidence permitting a reasonable jury
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to find in her favor. Grant v. Trs. of Indiana Univ., 870 F.3d 562, 568 (7th Cir. 2017). Although
the non-movant receives the benefit of all facts and reasonable inferences, the non-movant cannot
rely upon inferences supported by mere speculation or conjecture. Singer v. Raemisch, 593 F.3d
529, 533 (7th Cir. 2010). Self-serving generalizations lacking factual support in the record also
cannot preclude the entry of summary judgment. Taylor v. ADS, Inc., No. 00 C 7554, 2002 U.S.
Dist. LEXIS 14308, *16-18, and n. 4 (N.D. Ill. Aug. 2, 2002) (citing Albiero v. City of Kankakee,
246 F.3d 927, 833 (7th Cir. 2001); Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.
1993)). What is more, neither legal argument alone, nor opinions not based on observation or
first-hand experience, will withstand a motion of summary judgment. Taylor, 2002 U.S. Dist.
LEXIS 14308, at *18 n. 4.
Discussion
Burns alleges, pursuant to 42 U.S.C. § 1983, that Adams County Sheriff’s Deputy Mike
Mendoza violated her constitutional rights on or about June 6, 2017 when he removed her from
her apartment and began to place her into handcuffs. Burns alleges that the force used by Deputy
Mendoza was excessive under the Fourth Amendment. Burns additionally asserts that Deputy
Mendoza committed battery under Indiana tort law, for which the Adams County Sheriff is liable
under respondeat superior. Defendants, however, contend that the force that Deputy Mendoza
employed to remove Burns from the apartment and to handcuff her was objectively reasonable.
Defendants further contend that Deputy Mendoza is entitled to qualified immunity because he
did not violate Burn’s clearly-established rights. Because Indiana law incorporates the Fourth
Amendment objective-reasonableness standard, Defendants assert that a finding that Deputy
Mendoza did not violate Burns’ Fourth Amendment rights also bars Burns’ state-law battery
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claim.
Burns asserts the following facts.1 In June 2017, Burns was a resident of the Waterbury
Apartments in Decatur Indiana, where she lived with her two minor children and her adult
daughter Danielle Selking (“Selking”). (Burns Dep., pp. 14, 16,18; Burns Aff., ¶¶ 3-4; Mendoza
Aff., ¶¶5-6,10.)
On the evening of either June 4th or June 6th2 of that year Burns and Selking called 911
and reported that a man named Eric Davis was walking around the apartment complex hallway
with a knife, talking to himself and acting “weird”, “like a fool” and “like he is hallucinating”.
(Burns’ Dep, pp. 22, 25-26, 160-166.) They made the 911 call from outside their apartment, then
returned, but exited their apartment again once police arrived. (Burns Dep, pp.27-28.) When the
two women left this second time, they locked the apartment door, leaving Burn’s two minor
children, and her minor nephew alone. (Burns Dep, pp.28, 30.)
Police were dispatched to the apartment complex. (Grimm Aff. ¶ 7, Def. Ex. D-1, dispatch
record at p.1-2.) Among those that arrived were officers Bessessen and Brooks from the Decatur
Police Department, and Defendant Deputy Mendoza from the Adams County Sheriff’s
Department. (Mendoza Aff., ¶¶ 7,8,10.) Bessessen and Brooks located Eric Davis at the
apartment of Burn’s friend and neighbor Mara Davis. (Def. Ex. C-1, Narrative of Officer
Bessessen, p.5.) At some point, while Burns and Selking were still outside of their own
apartment, one of Burns, other daughters (S.B.) left the apartment, leaving the two younger
1
For purposes of their motion for summary judgment, Defendants accept Burns’ version
of the facts.
2
Burns disputes the exact date of the incident, which is irrelevant.
3
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children alone inside. (Burns Dep. pp.130-131.) The two younger children then left and went over
to Mara Davis’ apartment, where they reportedly informed Officer Bessessen and Officer Brooks
that a man was on their balcony. (Bessessen Narrative, p.6.) In response, Bessessen and Brooks
went to Burns’ apartment, and removed the man, Izaiya Newcomber, from Burns’ apartment.
(Burns Aff., ¶; Bessessen Narrative, p.6.) Officer Bessessen then re-entered Burns’ apartment,
with Deputy Mendoza following him inside. ( Mendoza Aff., ¶ 10.)
Shortly thereafter, Burns returned to her apartment, because she had heard officers were
upstairs, heard yelling, and was worried about her kids. (Burns Dep., pp. 31,112.) She re-entered
her residence to discover Deputy Mendoza and Officer Bessessen performing a search. (Id., pp.
31,44.) Burns did not know why they were there, even though she was the one that called the
police for help, and was concerned that the children were gone from the apartment, even though
she was the one that left them alone. (Id. p.32.)
Both Deputy Mendoza and Officer Bessessen told Burns to leave. (Id. p. 32.) She asked
“where are my kids?”; they ignored her question, and Deputy Mendoza responded “I told you to
leave”, or words to that effect. (Id. p. 33.) Burns informed them she needed to know where her
children were. (Id.) Neither officer gave her any information about her children or nephew.(Id.)
Burns remained only briefly in the apartment talking to the two officers, between a few
seconds and to a few minutes. (Id. p. 35.) At some point, in response to being told to leave,
Burns responded “I’m going, don’t threaten me”. (Burns Dep., p.171). Burns placed her keys on
a table, put her hands up, and without walking towards either officer, walked directly to the front
door to leave. (Burns Dep.. pp. 34, 75; Burns Aff., ¶ 7.)
While Burns was exiting through the front doorway, Mendoza came up behind her, put his
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hand in the middle of her back, and pushed her hard out the door, pushing her all the way to the
other side of the hall, and shoved her against the wall facing her front doorway.3 (Burns Dep.
pp.35-37; Mendoza Aff. ¶ 21.) The push was forceful and made Burns fall against the wall, where
she hit the left side of her head. (Burns Dep. p. 37.) She put her hands against the wall to avoid
falling down. (Id. p. 101-102.) When Burns made contact with the wall, Mendoza continued to
push her against it. (Id. p. 37-39.)
Mendoza kept Burns’ hands on the wall, and pulled the left hand down, while keeping her
left shoulder also on the wall; Mendoza wrenched the arm, hurting Burns. (Id. pp. 39, 117-118.)
He cuffed her left hand. (Id. p. 46.) Selking, who was standing nearby in the hallway, dropped to
her knees and pleaded with Mendoza. (Id. p. 47.) Mendoza then uncuffed Burns and had her sit
down on the floor with Selking, where the two women cried. (Id. p.47.) During all of this, Officer
Bessessen had remained inside the apartment and continued the search on his own. (Bessessen
Narrative, p.6.)
Burns asserts that at no time inside the apartment, in the apartment doorway, or in the
hall, had Burns tried to argue or fight with the officers, struggle with them, or struggle against
Mendoza’s effort to handcuff her. (Burns Aff., ¶¶ 9, 12.) Burns had been unarmed the whole time.
(Id., ¶12.) She never threatened the officers, cursed at them, or verbally abused them. (Id) The
Court again notes that Burns and Selking were the ones that called 911 for help, and thus should
not have been surprised or argumentative about officers appearing in their apartment.
3
Defendants dispute that the events occurred as testified to by Burns. Defendants aver
that Mendoza did not engage in any physical contact with Burns until after she placed her hand on
Mendoza’s chest. [ECF 47-2 at paragraph 20]. However, Defendants accept as true, for purposes
of this motion, Burns’ testimony about the circumstances of the push across the hallway.
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Burns was never arrested or charged for anything that took place that night. (Burns Aff.,
¶11.) Before leaving the apartment building that night, she permitted Mendoza to search the
apartment; nothing illegal was found. (Id.) Before Mendoza left, he apologized to Burns. (Id.)
In her October 7, 2019 deposition, Burns stated that following her encounter with Deputy
Mendoza and his use of force, her left shoulder “hurt me, it hurt me bad, and I was scared at the
time because…I was suffering. My left shoulder hurt and …probably never would be the same,
and actually is not [the same]”. (Burns Dep, p. 115.) Burns also suffered nightmares from the
Mendoza incident for at least six months. (Burns Dep, p. 94.) Burns went to a doctor about the
shoulder pain, and was prescribed medication. (Burns Dep., p.51; Plaintiff’s Resp. to Interrog.
Nos. 8, 10.) She also made, but did not keep, a mental health appointment for counseling. (Burns
Dep, pp. 51, 77, 94.)
In support of their motion for summary judgment, Defendants first argue that Mendoza is
entitled to qualified immunity as to Burns’ Fourth Amendment excessive force claim. Qualified
immunity protects government officials sued in their individual capacities “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Qualified immunity is “an immunity from suit rather than a mere defense to liability. . . .”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)(emphasis removed). There are two prongs to the
qualified immunity analysis. Pearson v. Callahan, 555 U.S. 223, 236 (2009). A government
official will be protected by qualified immunity if either (1) the official has not violated the
plaintiff’s constitutional rights or (2) the right at issue was not clearly established at the time of
the challenged action. Tolan v. Cotton, 134 S. Ct. 1861, 1865-66 (2014). The Court has
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discretion to address either prong first if it will be dispositive of the case, Pearson v. Callahan,
555 U.S. 223, 236-43 (2009). Defendants assert that the first prong of the analysis should be
addressed here because it is dispositive of Burns’ state-law battery claim. Defendants further
assert that Mendoza is entitled to qualified immunity under both prongs of the analysis.
Defendants contend that the force Mendoza used to push and handcuff Burns was
objectively reasonable.4 A claim that a police officer used excessive force in seizing an individual
is “analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Graham v.
Connor, 490 U.S. 386, 388 (1989).
Determining whether the force used to effect a particular seizure is
“reasonable” under the Fourth Amendment requires a careful balancing of
the nature and qualify of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at
stake. Our Fourth Amendment jurisprudence has long recognized that the
right to make an arrest or investigatory stop necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it.
Because the test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application, however, its
proper application 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.
The reasonableness of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight. . . . Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers violates the Fourth
Amendment. The calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly
4
Burns initially alleged that Mendoza pointed his gun at her when she entered the
apartment, and claimed that that was excessive force. However, in her response brief, Burns
states: “After further review, the Plaintiff will not be proceeding on her excessive force claim
regarding Mendoza pointing a gun.” ECF 56 at 14 n.4.
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evolving—about the amount of force that is necessary in a particular
situation.
Id. at 396-97 (citations and some internal quotation marks omitted). Whether the force used was
reasonable will depend upon the totality of the circumstances. Id. (citing Tennessee v. Garner,
471 U.S. 1, 8-9 (1985)). Because the “reasonableness” inquiry is an objective one, the officer’s
underlying intent or motivation is irrelevant. Id. at 397.
Defendants argue that the force employed to push Burns across the hall was minimal and
not unreasonable. Defendants point out that when Burns and Selking entered the apartment while
Officer Bessessen and Deputy Mendoza were searching it, she became subject to the officers’
control. Supreme Court precedent has long recognized that police officers are entitled to and do
“routinely exercise unquestioned command of the situation” when performing searches,
particularly where there may be weapons or armed persons in the areas being searched. E.g.,
Michigan v. Summers, 452 U.S. 692, 702-703 (1981). When Burns and Selking entered the area
being searched, Officer Bessessen and Deputy Mendoza had a right to order them out and/or
detain them. E.g., Bailey v. U.S., 568 U.S. 186, 195 (2013)(recognizing that Supreme Court
precedent “go[es] quite far in allowing seizure and detention of persons to accommodate the
necessities of a search,” and that, if the occupant of a residence had returned to the residence
during the search, “the police could have apprehended and detained him”); U.S. v. Jennings, 544
F.3d 815, 818-19 (7th Cir. 2008)(reasonable for officers to briefly detain suspect who entered
security perimeter surrounding apartment being searched).
Officer Bessessen and Deputy Mendoza initially elected to order Burns and Selking
out of the apartment. Burns, however, instead of exiting as ordered, argued with them. After
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Burns repeatedly failed to comply with Officer Bessessen’s and Deputy Mendoza’s lawful
orders, Deputy Mendoza decided to detain her, as there existed probable cause for the offense of
refusal to aid an officer. I.C. 35-44.1-3-3. Mendoza’s right to detain Plaintiff included a right to
use physical coercion to do so. E.g., Charles v. City of Chicago, 2018 WL 318484, *3 (N.D. Ill.,
Jan. 8, 2018)(citing Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000)).
As noted, the Supreme Court has long recognized that “[n]ot every push or shove,
even if it may later seem unnecessary in the peace of a judge’s chambers violates the Fourth
Amendment.” Graham, 490 U.S. at 396. Defendants argue that the undisputed evidence
establishes that Mendoza used a minimal amount of force when he pushed Burns against the wall
on the other side of the hallway, where he began to cuff her. Defendants point out that Burns did
not hurtle face-first into the wall or fall to the ground upon impact—she caught herself with her
hands when she hit the wall. She did not suffer any head injury or loss of consciousness. Rather,
Burns reports only temporary pain from hitting the wall. Burns Dep. at 36. When Mendoza had
Burns pressed up against the wall, Burns was able to breathe and push against the wall with her
arms. Thus, Defendants conclude that the force that Deputy Mendoza used did not violate Burns’
constitutional rights.
Defendants argue that this result is consistent with the Seventh Circuit’s opinion in Cherry
v. Washington County, 526 Fed. Appx. 683 (7th Cir. 2013). In Cherry, the plaintiff had not
attempted to flee or resist arrest when police officers stopped him on suspicion of burglary. Id. at
686. However, he defied an order to look straight ahead and not turn around; one of the officers
then pushed him to the ground and pressed his face against the road, causing excruciating pain.
Id. The district court granted summary judgment in favor of the officers on this claim, and this
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decision was affirmed on appeal. The Seventh Circuit described the amount of force used as
“modest,” and as “caus[ing] at most only ‘temporary pain and discomfort.’” Id. at 687-88. The
Court held that “Cherry was under arrest for a serious crime—a home invasion—and in light of
his acknowledged defiance of the officers’ orders and the momentary nature of the pain and
discomfort he claims to have suffered, we agree with the district court that the excessive-force
claim fails as a matter of law.” Id. at 688. Defendants point out that Deputy Mendoza used even
less force that the officer-defendant in Cherry.
Burns, in response, contends that a jury could find the force used unreasonable because
she committed no crime, she did not threaten anyone, and she painfully hit her head on the wall.
However, it is clear that, based on Burns’ repeated refusals to exit the apartment when ordered to
do so, a reasonable officer could have believed that probable cause existed for the offense of
refusal to aid a police officer. See Low v. State, 580 N.E.2d 737, 740 (Ind. Ct. App. 1991). Even
taking the facts as presented by Burns, that she was leaving the apartment at the time Mendoza
made contact with her, an officer does not lose the right to arrest someone when they stop
violating the law.
Defendants assert that Burns’ claim is materially indistinguishable from the excessive force
claim at issue in Sow v. Fortville Police Department, 636 F.3d 293, 304 (7th Cir. 2011). In Sow,
the plaintiff was arrested for forgery, and testified that he was “pushed into the police car and hit his
head as he was pushed and thrown into the vehicle,” causing him to temporarily lose consciousness. Id.
at 298. The Seventh Circuit, in holding that the officer-defendants were entitled to summary judgment
on the Fourth Amendment excessive force claim, held that:
The push in the case at hand occurred after Plaintiff was arrested based upon probable
cause to believe that he had committed the crime of forgery. Accordingly, the facts here
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are clearly distinguishable from Baird [v. Renbarger, 576 F.3d 340 (7th Cir. 2008),]
and Clash [v. Beatty, 77 F.3d 1045 (7th Cir. 1996)]. The right to make an arrest
necessarily carries with it the right to some degree of physical coercion to effect it.
Graham, 490 U.S. at 396, 109 S. Ct. 1865. “’Not every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers,’” violates the Fourth
Amendment. Id. at 396, 109 S. Ct. 1865, quoting Johnson v. Glick, 481 F.2d 1028,
1033 (2d Cir. 1973). In this case, we conclude that the fact that Plaintiff bumped his
head while being placed into the squad car following his arrest is not sufficient to
establish a genuine issue of material fact whether excessive force was used in effecting
the arrest.
Sow, 636 F.3d at 304. Even though Sow had testified that he hit his head so hard that he lost
consciousness when he was “pushed and thrown into the vehicle,” the Seventh Circuit, as set out
above, held that he had no excessive force claim. Cf. Smith v. Ball State Univ., 295 F.3d 763,
766-67, 770-71 (7th Cir. 2002)(force used was objectively reasonable where the plaintiff had
apparently refused to exit his vehicle when ordered to; three police officers then dragged him out
of the car, one of the officers attempted a knee strike which resulted in tackling the plaintiff to the
ground, and the officers held the plaintiff’s face to the ground while handcuffing him, resulting in
bruising to his face).
The Seventh Circuit’s holding in Sow is directly applicable to Burns’ claim that
Mendoza used excessive force when he shoved her towards the wall to handcuff her. The
undisputed facts establish that Mendoza used even less force than the officer-defendants
in Sow. Whereas Sow hit his head so hard that he lost consciousness, Burns did not go hurtling
face-first into the wall, did not fall to the ground upon hitting the wall, experienced only
momentary discomfort, and did not lose consciousness or suffer any head injury whatsoever.
Further, Burns was able to breathe and push against the wall with her arms when Mendoza had
her pressed against the wall to handcuff her. These facts fall far short of creating a genuine issue
on reasonableness under Sow. Under Sow, this is true even if Plaintiff happened to hit her head
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when she was placed against the wall to be handcuffed. Burns has never accused Deputy
Mendoza of purposefully slamming her head against the wall.
Burns does not dispute that Deputy Mendoza did not know that the armed and dangerous
person had been located, and does not dispute that Deputy Mendoza believed that he was
assisting in searching the apartment for that person. Clearly, a reasonable officer could certainly
have believed that Burns’ presence inside the apartment during a search for an armed and
dangerous person was a danger to both the officers and to Burns. The officers were entitled to
exercise “unquestioned command of the situation.” Michigan v. Summers, 452 U.S. 692, 702-703
(2013). When Burns questioned the officers’ command, the officers were entitled to use physical
coercion to ensure that Burns did not further interfere with the search. E.g., Aponte Matos v.
Toledo Davila, 135 F.3d 182, 191-92 (6th Cir. 1998)(cited approvingly in Baird v. Renbarger,
576 F.3d at 343-44).
Burns argues that her “momentary delay in physical compliance with an officers’ [sic]
order” was no big deal. [ECF #56 at 16]. However, in the 6 seconds it took Burns to finally turn
to leave, if there had been an armed and dangerous person in the apartment, as Deputy Mendoza
believed there could be, the suspect could have used the distraction to attack the officers and/or Burns.
If an armed and dangerous suspect had been hiding in the apartment and took advantage of the
6-seconds-plus distraction created by Burns to attack the officers and/or Burns, people could have
died. This is exactly why the Supreme Court authorizes police officers to exercise unquestioned
command in situations such as these. Summers, 452 U.S. at 702-703.
Accordingly, this court finds that the force Deputy Mendoza used to push Burns across
the hallway and against the wall was objectively reasonable, satisfying the first prong of the
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qualified immunity analysis.
Burns has also alleged that Mendoza’s act of placing Burns’ arm behind her back
constituted unreasonable force. Defendants, however, claim that Mendoza’s actions were not
objectively unreasonable. Police officers are afforded significant leeway when judging the amount
of force that is necessary to handcuff someone. Unless a police officer “knowingly use[s]
handcuffs in a way that will inflict unnecessary pain or injury on an individual who presents little
or no risk of flight or threat of injury,” Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009), the
force used to place someone into handcuffs will generally be considered objectively reasonable.
Experiencing pain from being handcuffed is insufficient, without more, to create a triable issue
about Fourth Amendment reasonableness. Id.
Defendants contend that Mendoza “did not use handcuffs in a manner that would clearly
injure or harm a typical arrestee,” id. at 773. It would not clearly injure or harm a typical arrestee
to pull the arrestee’s arm down and behind their back in order to cuff them, which is in most cases
necessary in order to handcuff someone. Defendants argue that even if an officer pulls a suspect’s
arm down quickly, this would not clearly injure someone. Nor could the simple act of pulling
someone’s arm down quickly be considered objectively unreasonable without greatly expanding
the scope of liability for police officers. Defendants point out that Burns had repeatedly defied
Deputy Mendoza’s and Officer Bessessen’s orders to exit the apartment, so Deputy Mendoza had
every reason to believe that Burns may attempt to resist his efforts to physically control her and
place her into handcuffs.
Defendants contend that this case is a far cry from other cases in which there was a triable
issue found concerning the reasonableness of force used in handcuffing someone. In Payne v.
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Pauley, the record established that officers fought over the plaintiff’s arm for 30 minutes, forcing
her arm behind her back, twisting her arm, and over-tightening the handcuffs, even though she
was not a threat to anyone and was not resisting or attempting to flee. 337 F.3d 767, 779 (7th Cir.
2003). In Rooni v. Biser, “[w]hile in the process of handcuffing Rooni, Biser grabbed Rooni by
the back of the neck and jerked him back, almost pulling Rooni over,” he ignored Rooni’s
repeated complaints of pain, and “purposefully twisted the handcuffs so that they would hurt
[Rooni].” 742 F.3d 737, 739 (7th Cir. 2014). In Ramusack v. Swanson, the defendant-officers
forced the plaintiff’s arms up behind her back while she was handcuffed and “almost lifted” her by
her handcuffed arms as they dragged her to the squad car. 2005 WL 3359114, *3 (N.D. Ind.,
Dec. 9, 2005). There are no such accusations in this case, where Deputy Mendoza did not even
cuff both of Burns’ hands before he released her.
The holding in Payne v. Pauley demonstrates that Deputy Mendoza did not use
objectively unreasonable force in pulling Burns’ arm behind her back to apply the handcuff.
Here, it is undisputed that Burns repeatedly refused to comply with orders to exit the apartment,
and it is undisputed that the force Deputy Mendoza used to cuff Burns’ left arm was far less than
the force used in Payne. Thus, Deputy Mendoza was entitled to significant leeway in judging the
amount of force employed to handcuff Plaintiff, and the force he used was not objectively
unreasonable.
Burns, however, argues that there is a genuine dispute of material fact concerning her
claim that Deputy Mendoza used too much force to pull her arm behind her back because Deputy
Mendoza pulled down strongly and because Burns claims to have continuing pain in her left
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shoulder.5 However, Burns presents no facts whatsoever from which a jury could find that Deputy
Mendoza used excessive force under the legal standards applicable to this claim. Burns does not
dispute the relevant legal standards applicable to handcuffing claims. As discussed above, police
officers are afforded significant leeway when judging the amount of force that is necessary to
handcuff someone. Unless a police officer “knowingly use[s] handcuffs in a way that will inflict
unnecessary pain or injury on an individual who presents little or no risk of flight or threat of
injury,” Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009), the force used to place someone
into handcuffs will generally be considered objectively reasonable. Experiencing pain from being
handcuffed is insufficient, without more, to create a triable issue about Fourth Amendment
reasonableness. Id. In the usual case, if the officer “did not use handcuffs in a manner that would
clearly injure or harm a typical arrestee,” id. at 773, there can be no liability for the officer.
Clearly, Defendants are entitled to summary judgment on this aspect of Burns’ excessive
force claim because Burns has failed to present any evidence that Mendoza did anything other
than pull her arm down and put it behind her back to handcuff her. Burns does not accuse
5
Defendants have moved to strike certain evidence and argument from Burns’ response to
Defendants’ Motion for Summary Judgment. Specifically, Defendants move to strike evidence
and argument that Burns attributes her ongoing left shoulder pain to Mendoza’s actions.
Defendants point out that there are multiple potential etiologies for Burns’ pain, as medical
records show that Burns has sought repeated treatment for pain in her left shoulder due to her
work as a waitress, and also due to a car accident. It is clear that because there are multiple
potential etiologies for Burns’ shoulder pain, expert testimony is necessary to establish causation
and lay a foundation for Burns to testify about her continuing left shoulder pain. Haack v.
Bongiorno, 2011 WL 862239, *4 (N.D. Ill., Mar 4. 2011)(“No lay witness, however, is permitted
to opine that an accident proximately caused Plaintiff’s physical health problems or to offer a
detailed medical diagnosis (or self-diagnosis) of Plaintiff’s alleged injuries.”); see also
Hendrickson v. Cooper, 589 F.3d 887, 892 (7th Cir. 2009)(holding that, if the plaintiff had claimed
tht the defendant’s actions “exacerbated his back problems, we might require Hendrickson to
support his theory with some objective medical evidence,” but that ‘[t]his case presents no such
complicated question of medical causation.”). Thus, the motion to strike will be granted.
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Mendoza of doing anything that would clearly injure a typical arrestee, which is the standard that
Burns must meet. Burns does not accuse him of pulling her arm behind her back and then up into
an unnatural and obviously painful position. Burns does not accuse him of dragging her out of the
building by her handcuffed wrists. He is not accused of pulling Burns’ handcuffed arms up behind
her back in a manner that would obviously inflict pain. He is not accused of tightening the
handcuff so tight that it would obviously inflict pain. Unless the action of the officer will clearly
inflict pain or injury on a typical arrestee, there is no violation of the Fourth Amendment. It would
not clearly injure a typical arrestee to pull their arm down and behind their back, even if the officer
pulled the arrestee’s arm down hard. A reasonable officer, in the exigencies of the undisputed
facts of this case, could have believed that they needed to get Burns handcuffed as quickly as
possible in case the other officer, who was believed to be still searching for a dangerous person
with a knife, encountered violent resistance. A contrary finding would cause police officers to be
timid in uncertain circumstances out of fear of personal civil liability if they pulled someone’s arm
down “too hard” to cuff them, contrary to the purposes of qualified immunity. Accordingly, this
court holds that Defendants are entitled to summary judgment as to this aspect of Burns’
excessive force claim.
With regard to the second prong of the qualified immunity analysis, Defendants assert that
it was not clearly established that the force that Mendoza used would be objectively unreasonable.
The Supreme Court set out in District of Columbia v. Wesby the proper analysis for determining
whether a right was “clearly established” under the second prong of the qualified immunity
analysis:
“Clearly established” means that, at the time of the officer’s conduct, the law was
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sufficiently clear that every reasonable official would understand that what he is doing is
unlawful. In other words, existing law must have placed the constitutionality of the
officer’s conduct beyond debate. This demanding standard protects all but the plainly
incompetent or those who knowingly violate the law.
To be clearly established, a legal principle must have a sufficiently clear foundation in
then-existing precedent. The rule must be settled law, which means it is dictated by
controlling authority or a robust consensus of cases of persuasive authority. It is not
enough that the rule is suggested by then existing precedent. The precedent must be clear
enough that every reasonable official would interpret it to establish the particular rule the
plaintiff seeks to apply. Otherwise, the rule is not one that every reasonable official would
know.
The clearly established standard also requires that the legal principle clearly prohibit the
officer's conduct in the particular circumstances before him. The rule’s contours must be
so well defined that it is clear to a reasonable officer that his conduct was unlawful in the
situation he confronted. This requires a high degree of specificity. We have repeatedly
stressed that courts must not define clearly established law at a high level of generality,
since doing so avoids the crucial question whether the official acted reasonably in the
particular circumstances that he or she faced. A rule is too general if the unlawfulness of
the officer’s conduct does not follow immediately from the conclusion that the rule was
firmly established. In the context of a warrantless arrest, the rule must obviously
resolve whether the circumstances with which the particular officer was confronted
constituted probable cause.
We have stressed that the specificity of the rule is especially important in the Fourth
Amendment context. Probable cause turns on the assessment of probabilities in particular
factual contexts and cannot be reduced to a neat set of legal rules. It is incapable of
precise definition or quantification into percentages. Given its imprecise nature, officers
will often find it difficult to know how the general standard of probable cause applies in
the precise situation encountered. Thus, we have stressed the need to identify a case where
an officer acting under similar circumstances was held to have violated the Fourth
Amendment. While there does not have to be a case directly on point, existing precedent
must place the lawfulness of the particular arrest beyond debate. Of course, there can be
the rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently clear
even though existing precedent does not address similar circumstances. But a body of
relevant case law is usually necessary to clearly establish the answer with respect to
probable cause.
Wesby, 138 S. Ct. 577, 589-90 (2018)(citations, alterations, and some internal quotation marks
omitted). If “a reasonable officer, looking at the entire legal landscape at the time of the
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[challenged action], could have interpreted the law as permitting” it, then the officer-defendant is
entitled to summary judgment based upon qualified immunity. Id. It is Burns’ burden to
demonstrate that the right at issue was clearly established. Perry v. Sheahan, 222 F.3d 309, 315
(7th Cir. 2000). Defendants argue that Burns cannot meet this burden as it cannot be said that it
must have been clear to a reasonable officer in Mendoza’s position that any of the force employed
against Burns would violate Burns’ constitutional rights.
Defendants maintain that it was not clearly established that the force that Deputy Mendoza
employed in pushing Burns across the hall would violate Burns constitutional rights. As discussed
above, Deputy Mendoza had a right to detain Burns when she entered the apartment, and when
she refused repeated commands to exit the apartment he had the right to use physical coercion to
detain her.
Defendants also maintain that it was not clearly established that the minimal force that
Deputy Mendoza used when he pulled Burns’ left arm behind her back would violate Burns’
constitutional rights. As discussed above, police officers are afforded wide latitude in judging the
amount of force necessary to place someone into handcuffs, and Deputy Mendoza did nothing
that would obviously injure a typical arrestee.
In response, Burns cites Morfin v. City of Chicago in an attempt to defeat qualified
immunity. In Morfin, the undisputed evidence established that the plaintiff was “docile and
cooperative.” 349 F.3d 989, 1005 (7th Cir. 2003). There were no issues of officer or public safety
involved in Morfin. The officer was investigating tampering with voting machines, and the
plaintiff was not a suspect. Id. at 992-93 & n.1. That is in stark contrast to this case, where Burns
admittedly refused to comply with the officers’ repeated orders to exit the apartment where
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Mendoza believed that an armed and dangerous suspect may have been hiding. Morfin also
involved greater force than this case. In Morfin, two officers “grabbed him, twisted his arm,
shoved him toward the wall and took him to the floor.” Id. at 1005. Plaintiff does not accuse
Deputy Mendoza of twisting her arm or tackling her, as in Morfin. “[S]pecificity is especially
important in the Fourth Amendment context,” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015), and
the necessary specificity of the facts in Morfin to this case is lacking. A reasonable officer in
Deputy Mendoza’s position would not consider Morfin to “squarely govern,” id. at 309, the
specific facts of this case, where Burns repeatedly refused lawful orders, which created a risk to
the safety of the officers and to Burns herself. Thus, Morfin does not defeat qualified immunity.
The Seventh Circuit’s opinion in Sow v. Fortville Police Department is far more analogous to the
facts of this case, and under Sow a reasonable officer could have considered that the amount of
force used to secure Burns was objectively reasonable.
Chelios v. Heavener, also cited by Burns in an effort to defeat qualified immunity, is even
less like the facts of this case. There, even though the plaintiff, Chelios, had not committed any
crime or presented any sort of threat to the officers or others, “Sergeant Heavener immediately
put his arms around Mr. Chelios’ neck, grabbed his shoulders, spun Mr. Chelios around and then
two other officers and Sergeant Heavener tackled Mr. Chelios.” 520 F.3d 678, 689 (7th Cir.
2008). The court held that “a jury could certainly find that his conduct in no way warranted being
tackled by three officers.” Id. at 690. In the present case, Burns was not tackled. Rather, she was
placed up against a wall. Although she claims that Mendoza was less than gentle, the undisputed
facts show that she was subjected to far less force than Chelios. Additionally, as discussed above,
the Seventh Circuit distinguished, in Sow v. Fortville Police Department, the legal principles
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expressed in Chelios in circumstances where, as here, probable cause existed to arrest the
plaintiff. A reasonable officer in Deputy Mendoza’s position would not consider Chelios to
“squarely govern” the circumstances that confronted him. Again, the facts of Sow v. Fortville
Police Department are far more analogous to this case.
Plaintiff relies on Strand v. Minchuk, 910 F.3d 909 (7th Cir. 2018), in an effort to defeat
qualified immunity, but that case cannot be considered here because it was issued subsequent to
the events of this lawsuit. Opinions issued after the events of this case “could not have given fair
notice to [Deputy Mendoza] and are of no use in the clearly established inquiry.” Brosseau v.
Haugen, 543 U.S. 194, 200 n.4 (2004). Further, Strand is far afield from the facts of this case.
Strand involved the use of deadly force following an assault on the officer and the suspect’s
apparent surrender. Id. at 912. The sole issue in that appeal was “whether the rapidly-evolving
nature of the altercation justified Officer Minchuk’s use of force, or whether he had time to
recalibrate the degree of force necessary, in light of the plaintiff’s statement of surrender.” Id. at
913. Clearly, the case at bar does not involve the use of deadly force or “recalibration” of an
officer’s response to violent resistance. Burns did not assault Mendoza, so, in addition to the fact
that it was issued after these events, Strand has no bearing on clearly-established law because that
opinion has no similarity whatsoever to the particular facts of this case.
Plaintiff presents Mitchell v. Village of Matteson, 2020 WL 3035965 (N.D. Ill., June 5,
2020), in an effort to defeat qualified immunity. Like Strand, the Mitchell decision is inapplicable
to the clearly-established prong of qualified immunity because it was issued subsequent to the
events of this case. More fundamentally, however, Mitchell is inapposite because it is a district
court opinion. District court opinions cannot create clearly-established law. Camreta v. Greene,
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563 U.S. 692, 709 n.7 (2011)(“[D]istrict court decisions—unlike those from the courts of
appeals—do not necessarily settle constitutional standards or prevent repeated claims of qualified
immunity.”). Recently, the Supreme Court has questioned whether even circuit court opinions can
create clearly-established law. See City of Escondido v. Emmons, 139 S. Ct. 500, 503
(2019)(“Assuming without deciding that a court of appeals decision may constitute clearly
established law for purposes of qualified immunity. . . .”). The facts of the Mitchell decision, in
which the plaintiff alleged that he was assaulted by three police officers when he was calmly
answering their questions and had presented no threat to anyone, are also dissimilar. Here, Burns
had repeatedly refused to comply with the officers’ commands, which Mendoza reasonably
believed created a danger to both Burns and the officers, and he used far less force than the three
officer-defendants in Mitchell.
Sow v. Fortville Police Department remains the most closely-analogous case. Also closely
analogous is Smith v. Ball State, which involved an apparent refusal to comply with a police
officer’s orders. Smith, 295 F.3d at 766-67, 770-71. Like in Sow, the officer-defendants in Smith
used more force than Burns accuses Mendoza of using. A reasonable officer could have
interpreted Smith as allowing the level of force that Mendoza used in this case, and Mendoza is
therefore entitled to qualified immunity under the clearly-established-law prong of qualified
immunity.
Finally, Burns presents no precedent involving handcuffing, and thus fails to satisfy her
burden to demonstrate that Mendoza violated clearly-established law when he pulled her arm
behind her back to cuff her.
Burns has failed to satisfy her burden to demonstrate that Mendoza violated her
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clearly-established rights. Burns presented no factually-similar precedent that would have put
Mendoza on notice that his actions would violate the Fourth Amendment. The precedents that
Burns cited were issued after the events of this case, were issued by a district court, or have no
similarity to the facts of this case. None of the precedents presented by Burns would “squarely
govern” the particular circumstances that confronted Mendoza. Nor is this the rare case of
“obvious” unconstitutional conduct to which the Supreme Court has referred. When viewing the
“entire legal landscape” at the time of these events, District of Columbia v. Wesby, 138 S. Ct.
577, 589-90 (2018), in particular the Seventh Circuit’s factually-similar opinions in Sow v.
Fortville Police Department and Smith v. Ball State, a reasonable officer could have believed that
the minimal force employed by Mendoza would be lawful. Therefore, Mendoza is entitled to
summary judgment based upon the clearly-established prong of the qualified immunity analysis.
Next, Defendants argue that this Court should grant summary judgment on Burns’ state
law battery claim. Burns asserts a state-law respondeat superior battery claim against the Adams
County Sheriff based upon the same alleged acts of excessive force pled against Mendoza.
Burns’ state-law battery claim fails because, as this Court held above, Mendoza did not use
unreasonable force.
This Court’s jurisdiction over Burns’ state-law battery claim is premised upon 28 U.S.C. §
1367(a), which grants district courts supplemental jurisdiction over state-law claims that form the
same Article III case or controversy as the claims over which the district court has original
jurisdiction. This section provides that “[a] district court may relinquish jurisdiction over a
[supplemental state-law claim] if . . . the district court has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c). This subsection also applies where a district court has
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granted summary judgment on all federal claims. See, e.g., Hansen v. Bd. of Tr. of Hamilton S.E.
Sch. Corp., 551 F.3d 599, 608 (7th Cir. 2008). Rather than automatically losing jurisdiction over
supplemental state-law claims, the statute grants district courts broad discretion in determining
whether to retain or relinquish jurisdiction over supplemental claims. Van Harken v. City of
Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997). In deciding whether to retain jurisdiction over a
supplemental claim, a district court should weigh “the values of judicial economy, convenience,
fairness, and comity.” Hansen, 551 F.3d at 608.
A “district court may [retain supplemental jurisdiction and] decide the merits of a state
law claim if the claim does not present any ‘novel or unsettled’ questions of state law, or the
appropriate disposition of the claim is ‘crystal clear,’ and it is ‘otherwise efficient to do so.’”
Franklin v. Manek, 2004 WL 1629544, *11 (S.D. Ind., June 8, 2004)(citations omitted)(citing
Binz v. Brandt Constr. Co., 301 F3d 529, 532 (7th Cir. 2002); Bilow v. Much Shelist Freed
Denenberg Ament & Rubenstein, P.C., 277 F.3d 882, 896 (7th Cir. 2001)). “’If . . . an
interpretation of state law that knocks out the plaintiff’s state claim is obviously correct, the
federal judge should put the plaintiff out of his misery then and there, rather than burdening the
state courts with a frivolous case.’” Id. (ellipsis in original)(quoting Van Harken, 103 F.3d at
1354).
In Tom v. Voida, 1991 WL 343377 (S.D. Ind., May 3, 1991), the District Court for the
Southern District of Indiana granted summary judgment to the defendants on the plaintiff’s
Section 1983 deadly force claim due to the absence of a constitutional violation. Tom, 1991 WL
343377, *8. After granting summary judgment, the court relinquished jurisdiction over the
plaintiff’s state-law wrongful death, assault, and battery claims. Tom, 1991 WL 343377, *7.
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Later, the state-law claims were re-filed in Indiana state court. See Tom v. Voida, 654 N.E.2d
776, 780 (Ind. Ct. App. 1995). The trial court granted the defendants’ motion for summary
judgment and the plaintiff appealed. Tom, 654 N.E.2d at 781. The Court of Appeals held that
the defendants were entitled to assert collateral estoppel on the basis of the federal court’s
summary judgment on the Section 1983 claims. Id. at 785.
In Indiana, collateral estoppel “’bars relitigation of a fact or issue where that fact or issue
was necessarily adjudicated in an earlier suit and that fact or issue is presented in the subsequent
lawsuit.’” Id. at 781 (quoting Ind. Dept. of Envtl. Mgmt. v. Conard, 614 N.E.2d 916, 923 (Ind.
1993)). In the collateral estoppel analysis, “’the prime consideration is whether the party against
whom the prior judgment is pled had a full and fair opportunity to litigate the issue and whether
it would be otherwise unfair under the circumstances to permit the use of collateral estoppel.’” Id.
(quoting Sullivan v. Am. Cas. Co. of Reading, Pa., 605 N.E.2d 134, 138 (Ind. 1992)). In Tom,
the Indiana Court of Appeals held that the reasonableness of the officer’s use of force was
necessarily resolved against the plaintiff in the federal lawsuit, that the plaintiff had a fair
opportunity to litigate the issue, and that there were no special circumstances which would
render collateral estoppel unfair. Id. at 783-85. Because the federal court’s determination on the
reasonableness of deadly force estopped relitigation of the issue, there were no genuine disputes
of material fact and the defendants were entitled to summary judgment. Id. at 785.
The result is the same here. Indiana’s use-of-force standards mirror Graham v.
Connor, see IC 35-41-3-3(b) and O’Bannon v. City of Anderson, 733 N.E.2d 1, 3 (Ind. Ct. App.
2000), so the lawfulness of the use of force under state law will necessarily be resolved by a
finding on summary judgment that the force used by Mendoza was reasonable. Burns has had a
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full and fair opportunity to litigate the issue in this Court and there are no special circumstances in
this case that would make it unfair to apply collateral estoppel. Clearly, the finding by this Court
that deadly force was reasonable for the purposes of Burns’ Section 1983 claim will be afforded
collateral estoppel effect if the state-law battery claim is re-filed in state court.
Plaintiff argues, without citation to any authority whatsoever, that the Court should not
grant summary judgment on her state-law battery claim if the Court finds that Deputy Mendoza’s
actions were objectively reasonable under the Fourth Amendment. Plaintiff, however, agrees that
the Indiana standard for police officers’ use of force mirrors the Fourth Amendment standard.
Thus, it is clear that it is appropriate to grant summary judgment on Burns’ state-law battery
claim against the Sheriff because, as the Indiana courts have recognized, a finding against Burns
on the objective reasonableness of the force used is dispositive of Burns’ state-law battery claim.
Accordingly, summary judgment will be granted in favor of Defendant Adams County Sheriff, as
well as in favor of Defendant Deputy Mendoza, on all of Burns’ claims.
Conclusion
On the basis of the foregoing, Defendants’ Motion for Summary Judgment [DE 46, 59]
and Defendants Motion to Strike [DE 57] are both hereby GRANTED.
Entered: December 2, 2020.
s/ William C. Lee
William C. Lee, Judge
United States District Court
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