Alicea v. Hammond Police Department et al
OPINION AND ORDER: Court GRANTS Plaintiff leave to proceed against Defendant Thomas and Defendant Alvarez in their individual capacities for monetary damages for using excessive force against him on March 29, 2011, in violation of the Fourth Amendmen t; DISMISSES all other claims; DISMISSES Defendant Miller; DIRECTS the United States Marshals Service, to effect service of process on Defendant Thomas and Defendant Alvarez; and ORDERS, that Defendant Thomas and Defendant Alvarez respond, as provided for in the Federal Rules of Civil Procedure and local rule 10-1(b), only to the claims for which the Plaintiff has been granted leave to proceed in this Order. Signed by Judge Theresa L Springmann on 9/17/2012. cc: USMS, Alicea (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND POLICE DEPARTMENT,
CAUSE NO.: 2:11-CV-445-TLS
OPINION AND ORDER
The Plaintiff, Mitchell Alicea, a pro se prisoner, filed his Amended Complaint [ECF No.
40] pursuant to 28 U.S.C. § 1983. To survive dismissal, a complaint must state a claim for relief
that is “plausible on its face.” Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602–03 (7th Cir.
2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Bissessur, 581 F.3d at 602 (quoting Iqbal). In determining whether the
complaint states a claim, a court must bear in mind that “[a] document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quotation marks and citation omitted).
Here, the Plaintiff claims that the Defendants, Sergeant Aubrey Thomas and Officer
Alejandro Alvarez of the Hammond Police Department, used excessive force against him during
his arrest. (Am. Compl. 3–4, ECF No. 40.) In order to state a claim under § 1983, a plaintiff must
allege: (1) that the defendant deprived him of a federal constitutional right or a right secured by
federal law; and (2) that the defendant acted under color of state law. Parker v. Franklin Cnty.
Cmty. Sch. Corp., 667 F.3d 910, 925 (7th Cir. 2012). The Plaintiff asserts that on March 29,
2011, he was fleeing from police officers when he climbed into an empty, five-foot tall, above
ground swimming pool in Hammond, Indiana. (Am. Compl. 3.) Once there, he discovered that
he was surrounded. (Id.) He then surrendered by raising his hands and saying that he was giving
up. (Id.) The Plaintiff alleges that Defendant Thomas then threw his police dog into the pool and
ordered the dog to attack the Plaintiff; the dog attack allegedly lasted for more than three
minutes. (Id. 3–4.) After the dog attack, Defendant Alvarez pulled the Plaintiff from the pool.
(Id. 4.) According to the Plaintiff, Defendant Alvarez then punched him in the ribs and back as
well and repeatedly stomped on his head. (Id.) In addition to Defendants Thomas and Alvarez,
the Plaintiff also names Defendant Miller, Chief of the Hammond Police Department. (Am.
Compl. 3.) Defendant Miller is not alleged to have had any personal involvement in these events.
He is merely named as the Chief of Police.
The question in a Fourth Amendment1 excessive use of force case is “whether the
officers’ actions are objectively reasonable in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397
(quotation marks omitted); see also Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th Cir.
2005). “The test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979), and the
Although the Plaintiff cites the Eighth Amendment as the basis for his excessive force claim
(Am. Compl. 3–4), the Fourth Amendment is the proper basis for a claim of excessive use of force during
an arrest. Graham v. Connor, 490 U.S. 386, 395 (1989).
question is “whether the totality of the circumstances” justifies the officers’ actions. Graham,
490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)); see also Gonzalez v. City
of Elgin, 578 F.3d 526, 539 (7th Cir. 2009). “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.” Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20–22
According to the Plaintiff, at the time of his arrest, Defendants Thomas and Alvarez used
excessive force against him despite his verbal surrender and cooperation with their orders.
Therefore, the Plaintiff has plausibly alleged a claim of excessive force against Defendant
Thomas and Defendant Alvarez because “a police officer may not continue to use force against a
suspect who is subdued and complying with the officer's orders.” Hayes v. City of Indianapolis,
No. 1:08–cv–006–DFH–JMS, 2009 WL 700232, at *4 (S.D. Ind. Mar. 16, 2009) (collecting
cases); see also Thomas v. City of Fort Wayne, No. 1:06–CV–320 PS, 2008 WL 282348, at *5
(N.D. Ind. Jan. 31, 2008) (stating that facts suggesting that plaintiff could have posed a threat to
the officers' safety would not justify strikes to plaintiff's head after officers determined he was
not resisting arrest); Norris v. Bain, No. 1:04–CV–1545DFHTAB, 2006 WL 753131, at *14
(S.D. Ind. Mar. 21, 2006) (“[It is] well established that the use of force unnecessary for an arrest,
particularly where force is applied to a suspect who is not fleeing or resisting, and who has been
overcome, cannot be considered constitutionally reasonable.”); Hill v. Miller, 878 F. Supp. 114,
116 (N.D. Ill. 1995) (“[T]he use of any significant force . . . not reasonably necessary to effect an
arrest—as where . . . the force is used after a suspect's resistance has been overcome or his flight
thwarted—would be constitutionally unreasonable.” (quoting Kidd v. O’Neil, 774 F.2d 1252,
1256–57 (4th Cir. 1985)).
However, the allegations involving Defendant Miller are different. He was not involved
in this incident. See Kuhn v. Goodlow, 678 F.3d 552, 555–56 (7th Cir. 2012) (stating that§ 1983
liability “is premised on the wrongdoer’s personal responsibility”). Indeed, the Court added
Defendant Miller to this lawsuit for the sole purpose of assisting the Plaintiff to identify the
names of the arresting officers. Perhaps the Plaintiff mistakenly believed that because the Court
added him as a party, it was necessary to name him in the Amended Complaint. Nevertheless,
Defendant Miller must now be dismissed because “[t]he doctrine of respondeat superior can not
be used to hold a supervisor liable for conduct of a subordinate that violates a plaintiff’s
constitutional rights.” Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001).
For the foregoing reasons, the Court:
(1) GRANTS the Plaintiff leave to proceed against Defendant Thomas and Defendant
Alvarez in their individual capacities for monetary damages for using excessive force against
him on March 29, 2011, in violation of the Fourth Amendment;
(2) DISMISSES all other claims;
(3) DISMISSES Defendant Miller;
(4) DIRECTS the Clerk to transmit the summons and USM-285 forms for Defendant
Thomas and Defendant Alvarez to the United States Marshals Service along with a copy of this
Order and a copy of the Amended Complaint [ECF No. 40];
(5) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to
effect service of process on Defendant Thomas and Defendant Alvarez; and
(6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Defendant Thomas and
Defendant Alvarez respond, as provided for in the Federal Rules of Civil Procedure and local
rule 10-1(b), only to the claims for which the Plaintiff has been granted leave to proceed in this
SO ORDERED on September 17, 2012.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?