Williams v. Munster School Town of et al

Filing 26

OPINION AND ORDER: Court GRANTS IN PART AND DENIES IN PART 17 Motion for Summary Judgment. Signed by Magistrate Judge Andrew P Rodovich on 5/6/2014. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LOUIS WILLIAMS,
Plaintiff,
v.
SCHOOL TOWN OF MUNSTER, et al.,
Defendants.

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2:12-cv-225-APR

OPINION AND ORDER
This matter is before the court on the Motion for Summary Judgment [DE 17] filed by the
defendants on January 31, 2014. For the following reasons, the motion is GRANTED IN PART
and DENIED IN PART.

Background
The plaintiff, Louis Williams, an African American, went to the Munster High School
football game on October 1, 2010 to watch his son play. When he arrived, there were no seats
available, so he stood near the fence in front of the bleachers with his wife and daughter. While
watching the game, Williams received a telephone call. He walked away from the fence to a
grassy area near the outside fence.
Williams testified that while he was on the phone, one of the defendants, Donald Stopper,
grabbed and yanked his arm and yelled at him to get off the grass. Williams asked Stopper what
was going on, and Stopper replied that he told Williams to get off the grass. Williams responded
by explaining that he had been on the phone and had not heard anyone tell him to get off the
grass. Stopper then stated that he had been yelling at Williams for five minutes to get off the
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grass and that Williams stated “no problem.” Williams continued to talk on his phone and
Stopper attempted to pull him off the grass.
Williams turned around and saw the defendant, Lyon Alb, standing on the sidewalk
yelling that he had been told to get off the grass. By this time, Williams was off the grass and
stated to Alb that there were no signs telling him not to go on the grass. Williams pointed out
non-minorities walking on the grass to Alb. Williams continued to talk on his phone, and Alb
moved on the grass behind him, pushing Williams’ back with his forearm and getting into his
“private space.”
Alb and Stopper testified that once Williams was asked to leave the grassy area he
became aggressive and invaded Alb’s personal space. Williams completed his call and asked
Alb what was going on. Williams then asked Alb to move and started to walk away. Alb and
Stopper jumped in front of him. Williams asked them both to move, but they continued to block
his path. Williams suggested that they call the police, and Stopper and Alb agreed. They asked
Williams to go with them, but when he refused, they advised him that he was being removed
from the game. Alb and Stopper began hitting and shoving Williams with their closed fists and
flashlights in his back, stomach, and side. This lasted fifteen to twenty minutes. Williams
testfied that while the defendants were assaulting him, they also verbally taunted him saying,
“What wrong, what are you going to do now boy”. Once Williams stopped trying to leave, the
defendants stopped pushing him.
Stopper went to get the police. When Williams attempted to leave again, Alb stopped
him with his forearm. Stopper returned with the police, who then escorted Williams off the
premises. After the incident, Williams experienced pain in his side. He was seen for a fractured

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rib, abdominal bruising, shallow breathing, and lower back pain the next day at Community
Hospital.
At the time of the incident, Alb was employed by the School Town of Munster as a
teacher, and Stopper was an employee in student services. Both were responsible for supervising
the spectators on the night of the incident. As part of their duties, they were responsible for
ensuring that the spectators did not go on the newly planted grass and that no one went under the
bleachers. Neither received any training prior to being a supervisor for the Munster home
football games.
Williams filed a Tort Claim Notice on February 15, 2011. Because he did not receive the
relief he desired, he filed a complaint on June 6, 2012. Williams alleges that he has been denied
the right to liberty in violation of the Fourteenth Amendment of the United States Constitution
and Article I, §1 of the Indiana Constitution, that the defendants used excessive force to remove
him from the grassy area in violation of the Fourth Amendment of the United States Constitution
and Article I, § 11 of the State of Indiana Constitution, and that his removal constituted assault
under Indiana law. The defendants now move for summary judgment on all of Williams’ claims.

Discussion
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper only if it
is demonstrated that “there is no genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106
S. Ct. 2548 , 91 L. Ed. 2d 265 (1986); Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012);
Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009). The burden is upon the moving party
to establish that no material facts are in genuine dispute, and any doubt as to the existence of a
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genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Company,
398 U.S. 144, 160, 90 S. Ct. 1598, 1610, 26 L. Ed.2d 142, 155 (1970); Stephens, 569 F.3d at
786. A fact is material if it is outcome determinative under applicable law. There must be
evidence on which the jury could reasonably find for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986); Stephens,
569 F.3d at 786; Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). However, summary
judgment may be entered against the non-moving party if it is unable to “establish the existence
of an essential element to [the party’s] case, and on which [that party] will bear the burden of
proof at trial . . .”. Kidwell, 679 F.3d at 964 (citing Benuzzi v. Bd. of Educ., 647 F.3d 652, 662
(7th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986)).
Summary judgment is inappropriate for determination of claims in which issues of intent,
good faith, and other subjective feelings play dominant roles. Ashman v. Barrows, 438 F.3d
781, 784 (7th Cir. 2006). Upon review, the court does not evaluate the weight of the evidence,
judge the credibility of witnesses, or determine the ultimate truth of the matter; rather, the court
will determine whether there exists a genuine issue of triable fact. Wheeler, 539 F.3d at 634
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed.2d
202, 212 (1986)).
In deciding a motion for summary judgment, the trial court must determine whether the
evidence presented by the party opposed to the summary judgment is such that a reasonable jury
might find in favor of that party after a trial.
The inquiry performed is the threshold inquiry of determining
whether there is the need for a trial--whether, in other words, there
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are any genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in favor of
either party.
[T]his standard mirrors the standard for a directed verdict under
Federal Rule of Civil Procedure 50(a), which is that the trial judge
must direct a verdict if, under the governing law, there can be but one
reasonable conclusion as to the verdict.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505,
2511, 91 L.Ed.2d 202, 212 (1986).
See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149-51, 120 S.Ct. 2097,
2109, 147 L. Ed.2d 105, 120-22 (2000) (setting out the standard for a directed verdict); Celotex
Corp., 477 U.S. at 322-23, 106 S. Ct. at 2553; Stephens, 569 F.3d at 786; Argyropoulos v. City
of Alton, 539 F.3d 724, 732 (7th Cir. 2008)(stating that a genuine issue is one on which a
reasonable fact finder could find for the nonmoving party); Springer v. Durflinger, 518 F.3d
479, 483 (7th Cir. 2008)(stating that a genuine issue exists and summary judgment is
inappropriate if there is sufficient evidence for a jury to return a verdict for the nonmoving
party). Title 42 U.S.C. § 1983 provides a “federal cause of action for the deprivation, under
color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution
and laws of the United States . . . .” Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S.Ct. 2068,
2082, 129 L.Ed.2d 93 (1994). Section 1983 does not itself create substantive rights, but “it acts
as an instrument for vindicating federal rights conferred elsewhere.” Spiegel v. Rabinovitz, 121
F.3d 251, 254 (7th Cir. 1997). When analyzing a § 1983 claim, it is necessary to identify the
specific constitutional right that was violated. Spiegel, 121 F.3d at 254. Then, the validity of the
claim must be judged by reference to the specific constitutional standard that governs the right.
Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989).

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Williams alleges that the defendants violated his Fourth Amendment right by applying
excessive force and the Equal Protection Clause of the Fourteenth Amendment by discriminating
against him based on his race. Once a violation is identified, the plaintiff must show that the
alleged deprivation was committed by a person acting under color of state law. West v. Atkins,
487 U.S. 42, 48, 108 S.Ct. 2250, 2254–55, 101 L.Ed.2d 40 (1988); Payton v.
Rush–Presbyterian–St. Luke's Medical Center, 184 F.3d 623, 628 (7th Cir.1999). “To
constitute state action, the deprivation must be caused by the exercise of some right or privilege
created by the State . . . or by a person for whom the State is responsible, and the party charged
with the deprivation must be a person who may fairly be said to be a state actor. [S]tate
employment is generally sufficient to render the defendant a state actor.” West, 487 U.S. at
49–50, 108 S.Ct. at 2255 (internal quotations and citations omitted).
Additionally, it is well settled that liability may not be imposed against a municipal entity
under a theory of respondeat superior. McNabola v. Chicago Transit Authority, 10 F.3d 501,
509 (7th Cir.1993) (citing Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993)); Wilson
v. City of Chicago, 6 F.3d 1233, 1240 (7th Cir.1993). Rather, a municipal entity is liable
when execution of a government's policy or custom, whether made by its lawmakers
or those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury that the government as an entity is responsible under § 1983.
Cornfield by Lewis v. Consolidated High School District No. 230, 991 F.2d 1316,
1324 (7th Cir.1993) (quoting Monell v. Department of Social Services, 436 U.S.
658, 684, 98 S.Ct. 2018, 2037–38, 56 L.Ed.2d 611 (1978)).
In other words, “a local governmental entity will be responsible for the unconstitutional acts of its
employees only if those actions were taken pursuant to official policy or custom.” Eversole v.

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Steele, 59 F.3d 710, 715 (7th Cir. 1995). See also Sams v. City of Milwaukee, Wisconsin, 117 F.3d
991, 994 (7th Cir. 1997). A suit against a public servant in his official capacity amounts to a claim
against the organization itself, and must comply with the same requirements to impose liability.
Soderbeck v. Burnett County, Wisconsin, 821 F.2d 446, 449 (7th Cir. 1987).
“A plaintiff may demonstrate an official policy through: (1) an express policy that causes a
constitutional deprivation when enforced; (2) a widespread practice that is so permanent and
well-settled that it constitutes a custom or practice; or (3) an allegation that the constitutional injury
was caused by a person with final policymaking authority.” Estate of Sims v. County of Bureau,
506 F.3d 509, 515 (7th Cir. 2007). A plaintiff cannot claim municipal liability unless he can
demonstrate that the enforcement of the policy was the “moving force” behind the constitutional
violation. Cornfield by Lewis, 991 F.2d at 1324. See also Oklahoma City v. Tuttle, 471 U.S. 808,
823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985) (plurality opinion) (“At the very least, there must
be an affirmative link between the policy and the particular constitutional violation alleged.”).
Here, Williams asserts that the School Town of Munster failed to train Stopper and Alb.
Such inadequacies may be said to constitute a custom for which the city is responsible if “the need
for more or different [procedures] is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of the city can reasonably be said to have
been deliberately indifferent to the need.” Gibson v. City of Chicago, 910 F.2d 1510, 1521 (7th Cir.
1990) (quoting City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412
(1989)); Cornfield by Lewis, 991 F.2d at 1327. “Where . . . a claim of municipal liability is
predicated upon a failure to act, the requisite degree of fault must be shown by proof of a
background of events and circumstances which establish that the ‘policy of inaction’ is the

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functional equivalent of a decision by the city itself to violate the Constitution.” Canton, 489 U.S.
at 394-398, 109 S.Ct. at 1208. “A single isolated incident of wrongdoing by a non-policymaker is
generally insufficient to establish municipal acquiescence in unconstitutional conduct.” See City
of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985);
Jones v. City of Chicago, 787 F.2d 200, 204 (7th Cir. 1986); Strauss v. City of Chicago, 760 F.2d
765, 769 (7th Cir. 1985) (omission may be “sufficiently egregious that plaintiff's injury alone
suggest[s] an established policy”).
The Supreme Court has addressed this issue on at least two occasions. In Canton, the
Supreme Court explained that a municipality can be held liable for a failure to train where the failure
amounts to a deliberate indifference. In Connick v. Thompson, --- U.S.---, 131 S.Ct. 1350, 179
L.Ed.2d 417 (2011), the Supreme Court interpreted Canton to leave open the possibility that a single
incident could result in municipal liability when it was highly predictable that the municipality’s
failure to provide any training would result in a constitutional deprivation. The Canton court posed
the hypothetical example that a city could be liable for failure to train absent a pattern of violations
if it armed its police officers with firearms without providing training on the constitutional limits
of deadly force. Canton, 489 U.S. at 390, n.10, 109 S.Ct. 1197 at 1205. The court explained that
liability was warranted in situations such as this because of the frequency of situations where police
officers could exert force and the predictability that officers lacking training might exceed the
constitutional limits on the use of deadly force. Connick, 131 S.Ct. at 1361. However, the Connick
court determined that the county could not be held liable for failing to train its attorneys on their
obligations to turn over exculpatory evidence because the suggested training was nuanced.
Courts have interpreted Canton and Connick to hold municipalities liable when they have

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failed to provide any training, so long as the matter on which they failed to train was not too
nuanced. For example, in Thomas v. Cumberland County, --- F.3d ---, 2014 WL 1395666 (3rd Cir.
2014), the defendant corrections officers did not receive any training in conflict de-escalation and
intervention. Following an attack, an inmate brought an action against the county and corrections
officers, alleging that the county failed to train the officers in these areas. The court explained that
based on the frequency of fights and the volatile nature of a prison, the predictability that an officer
who lacked training in de-escalating conflicts would violate an inmate’s constitutional rights was
great. Thomas, 2014 WL 1395666 at *7.
Similarly, in Jimenez v. Hopkins, 2014 WL 176578 (W.D. Ky. 2014), the plaintiff alleged
that the county violated his rights under the Eighth, Tenth, and Fourteenth Amendment by acting
with deliberate indifference to his medical needs. The plaintiff presented a single violation of
federal rights, seeking to hold the county liable under a failure to train theory. The court explained
that other than CPR and first-aid training, the county did not provide any training to its officers to
look for or to be aware of symptoms of physical illness, how to recognize and respond to medical
needs, how to document requests for medical care, or how to pass on medical concerns to jail
nursing staff. Jimenez, 2014 WL 176578 at *18. The court explained that this was a recurring
situation with an obvious potential for a violation. Jimenez, 2014 WL 176578 at *18.
The courts have considered the single incident violations on a spectrum between “the plainly
obvious need to train armed officers ‘in the constitutional limitations of deadly force’ in Canton .
. . and the lack of such an obvious need in Connick where prosecutors had a legal education and
ethical obligations and the allegedly necessary training was nuanced.” Thomas, 2014 WL 1395666
at *7. The courts begin by looking at the likelihood that such an incident might occur.

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Here, the need to train the individuals who served as supervisors at the football games
perhaps was not as obvious as Canton because Alb and Stopper were not provided with weapons.
However, the purpose of having supervisors was to ensure safety and to enforce the school’s
policies. There certainly was a strong likelihood that situations would arise during the course of
providing security that would involve the discretionary task of determining how to break up an
incident or enforce a policy. The predictability that an untrained supervisor could exceed the
constitutional limitations on excessive force or enforce the policies in a discriminatory manner
without training was great. This is not a situation like in Connick where the government actors had
prior training that would have put them on notice of what was expected of them. Williams is not
asserting that the school should have provided training in a nuanced area. Rather, he is alleging that
the School Town of Munster failed to provide training on how to carry out the predominate tasks
the defendants were asked to perform. For these reasons, the court finds that Williams has submitted
sufficient evidence for a reasonable jury to conclude that the School Town of Munster’s failure to
provide any training on how to provide security and enforce its policies was the result of its
deliberate indifference to the constitutional rights of the attendees.
The defendants also argue that Williams cannot prove that Alb and Stopper applied excessive
force in violation of the Fourth Amendment. The use of force is gauged according to a Fourth
Amendment reasonableness standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871,
104 L.Ed.2d 443 (1989); Holmes v. Village of Hoffman Estates, 511 F.3d 673 (7th Cir. 2007);
Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 592 (7th Cir. 1997). This analysis looks to
the totality of the circumstances, assessing whether the force used was excessive in light of the
severity of the plaintiff’s actions, whether the plaintiff posed a threat to the safety of the officers or

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to other persons, and whether the plaintiff was resisting the officers or attempting to flee. Graham,
490 U .S. at 396, 109 S.Ct. at 1872; Holmes, 511 F.3d at 673. See also Fidler v. City of
Indianapolis, 428 F.Supp.2d 857, 862 (S.D.Ind. 2006). The measure of reasonableness is made
“from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight,” and pays “careful attention to the facts and circumstances of each particular case.”
Graham, 490 U.S. at 396, 109 S.Ct. at 1872. The court must ask whether the officer “used greater
force than was necessary to make the arrest.” Payne v. Pauley, 337 F.3d 767, 778 (7th Cir. 2003).
In determining reasonableness, the court must account for the fact that police officers often have to
make split – second decisions in tense situations. For this reason, not every push or shove violates
the Fourth Amendment. Graham, 490 U.S. at 396, 109 S.Ct. at 1872.
The defendants argue that Stopper and Alb’s actions were reasonable because Williams was
acting aggressively and that the defendants “simply attempted to move him off the grass.” (Dft.’s
Br. p. 11) However, the facts do not support only the defendants’ description of the events.
Williams’ testified that after he moved from the grass, Alb continued to push him from behind.
Williams later wanted to leave, but Alb and Stopper got in his way and would not allow him to
leave. This is what led to Alb and Stopper hitting him in the ribs. If Alb and Stopper simply were
trying to get Williams off the grass, they would not have continued to push him after he moved and
would not have impeded his ability to leave. The defendants argue that Williams became hostile and
that such actions were necessary. However, the true course of events and reasonableness of the
defendants’ actions should be determined by a jury. At this stage, the evidence shows that Williams
has a plausible claim for excessive force against the defendants. Accordingly, the defendants’
motion is DENIED with respect to this claim.

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Williams also alleges that the defendants violated his rights under the Equal Protection
Clause of the Fourteenth Amendment by intentionally discriminating against him on the basis of
race. The Equal Protection Clause of the Fourteenth Amendment states that no state shall “deny to
any person within its jurisdiction the equal protection of the laws.” U.S. CONST. AMEND. XIV. It
is firmly established that “[a] plaintiff alleging an Equal Protection violation under §1983 must
establish that he has been the victim of intentional discrimination . . . .” Harper v. Madison
Metropolitan School District, 110 Fed. Appx. 684, 687 (7th Cir. 2004). It is not sufficient to show
that race was a “substantial” or “motivating” factor. Mt. Healthy City Board of Education v. Doyle,
429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Rather, the
plaintiff must show “but for” his race he would not have experienced the discriminatory action.
The defendants argue that summary judgment is appropriate on this claim because Williams
has no evidence that similarly situated non-minorities were treated more favorably or that the
defendants took the actions because of his race. Williams testified that other non-minorities were
on the grass and that he pointed out these individuals to the defendants. However, the defendants
did not yell at the non-minorities to get off the lawn or use force against them. He also explained
that the defendants made at least one disparaging racial insult during the course of events that gave
rise to his actions. This evidence tends to show that the defendants acted with the intent to
discriminate. Whether the defendants actions were in fact intentional is better reserved for the jury
to determine. At this stage, Williams has presented sufficient evidence to show that the defendants
may have acted with a discriminatory intent.
The defendants also move for summary judgment on Williams’ claims under Article I, § 1

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and Article I, § 11 of the Indiana Constitution. Article I, § 1 of the Indiana Constitution provides
that “all people are created equal; that they are endowed by their CREATOR with certain inalienable
rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in
the People; and that all free governments are, and of right ought to be, founded on their authority,
and instituted for their peace, safety, and well-being. For the advancement of these ends, the People
have, at all times, an indefeasible right to alter and reform their government.” Indiana does not have
a provision comparable to 42 U.S.C. § 1983 that creates an explicit civil remedy for constitutional
violations by individual officers or governmental entities. See Cantrell v. Morris, 849 N.E.2d 488,
493 (Ind. 2006) (“Indiana, however, has no statutory provision comparable to 42 U.S.C. section
1983 creating an explicit civil remedy for constitutional violations by either individual officers or
governmental entities.”). However, the courts will recognize a civil remedy where it is clear that
the legislature intended to create such a remedy. See Cantrell, 849 N.E.2d at 497-498.
It does not appear that Article 1, § 1 creates a civil remedy, and Williams has not argued that
it does, particularly under this set of facts. See Morrison, 821 N.E.2d 15, 31-32 (Ind. App. 2005)
(considering whether Article 1, § 1 is capable of independent judicial enforcement). In Doe v.
O’Connor, 790 N.E.2d 985, 991 (Ind. 2003), the Indiana Supreme Court considered this issue by
analyzing provisions similar to Article 1, § 1 in other state constitutions and explained that such
provisions generally have not been interpreted to embody enforceable rights. Indiana Supreme
Court cases dating back more than fifty years used Article 1, § 1 to invalidate statutes that impinge
on individuals’ economic rights, but the court has not employed this provision since. See Morrison,
821 N.E.2d at 31-32. Nor has Williams pointed to any cases where Article 1, § 1 ever was used to
provide redress for depriving an African American of liberty as he sets forth in his complaint.

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Williams also claims that his rights were violated under Article I, § 11. Article I, § 11,
addresses injuries caused during an unreasonable seizure. See e.g. Fidler v. City of Indianapolis,
428 F.Supp.2d 857, 865 (S.D. Ind. 2006) (considering claim for unreasonable seizure under Article
I, § 11). However, the Indiana Constitution does not provide an implied right to sue for damages
under this provision. See Fidler, 428 F.Supp.2d at 865; McConnell v. McKillip, 573 F.Supp.2d
1090, 1103 (S.D. Ind. 2008)(explaining that there is no implied right of action for damages under
the Indiana Constitution for damages arising from arrest). This is fatal to Williams claims under the
Indiana Constitution.
Williams finally alleges that he is entitled to recover for assault. The defendants first argue
that Williams cannot recover because there is no evidence that Alb or Stopper acted with the intent
to cause Williams imminent apprehension of a harmful or offensive contact. An assault occurs
“when one acts intending to cause harmful or offensive contact with the person of the other or an
imminent apprehension of such contact.” Rivera ex rel. Rivera v. City of Nappanee, 704 N.E.2d
131, 133 (Ind. App. 1998) (citing Cullison v. Medley, 570 N.E.2d 27, 30 (Ind. 1991)). The
defendants attempt to distinguish an assault from a battery, claiming that although Williams
allegedly suffered injuries as a result of Alb and Stopper’s conduct, there is no evidence of
apprehension preceding the battery. The defendants are mistaken. “Every battery necessarily
involves an assault.” McGlone v. Hauger, 104 N.E. 116, 120 (Ind. App. 1914). “Any act of such
a nature as to excite an apprehension of a battery may constitute an assault. It is an assault to shake
a fist under another's nose, to aim or strike at him with a weapon, or to hold it in a threatening
position, to rise or advance to strike another, to surround him with a display of force . . . .” W.
Prosser & J. Keaton, Prosser and Keaton on Torts § 10 (5th ed. 1984). Certainly, the defendants

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assaulted Williams when they raised their hands or flashlights to hit Williams under Williams’
account of the events.
The Indiana Torts Claim Act governs torts committed by government employees acting
within the scope of their employment. City of Bloomington Utilities Dept. v. Walker, 904 N.E.2d
346, 349 (Ind. App. 2008). “Pursuant to the ITCA, ‘governmental entities can be subjected to
liability for tortious conduct unless the conduct is within an immunity granted by Section 3 of [the]
ITCA.’ ” Walker, 904 N.E.2d at 349 (quoting Brown v. Alexander, 876 N.E.2d 376, 380 (Ind. App.
2007)). The party asserting the immunity bears the burden of establishing that it applies. Walker,
904 N.E.2d at 349.
The defendants assert that they are entitled to immunity from Williams’ assault claim under
Ind. Code § 34–13–3–5(c). This subsection provides that a lawsuit against a government employee
personally must allege that the act that caused the loss is criminal, outside the scope of the
employee’s employment, malicious, or willful and wanton. Although this subsection, if applicable,
would provide immunity to Alb and Stopper personally, it does not provide immunity for Williams’
official claims against them or his claims against the School Town of Munster. Rather, Ind. Code
§ 34–13–3–3(7)-(8) provides immunity for the government entity or employee acting within the
scope of his employment who is engaged in the enforcement of a school policy. However, the
defendants did not raise this subsection to show that they are entitled to immunity, have waived their
right to do so, and have not satisfied their burden. See Hernandez v. Cook County Sheriff’s Office,
634 F.3d 906, 913 (7th Cir. 2011) (waive argument if not addressed); Palmer v. Marion County, 327
F.3d 588, 597 (7th Cir. 2003) (same); Laborers' Intern. Union of North America v. Caruso, 197
F.3d 1195, 1197 (7th Cir. 1999) (same); Wright v. United States, 139 F.3d 551, 553 (7th Cir. 1998)

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(same). The School Town of Munster and Alb and Stopper in their official capacity do not have
immunity under Ind. Code § 34-13-3-5(c).
Immunity from personal liability under Ind. § 34-13-3-5(c) can be overcome upon a showing
that the government employee’s actions were outside the scope of employment, criminal, or willful
and wanton. Williams alleged that the assault was a tortious act in violation of the law of Indiana.
“Indiana Courts have made clear that the ITCA goes so far as to protect officers from liability for
both tortious and even criminal acts where the purpose of the employee's conduct was to further the
employer's business.” McConnell v. McKillip, 573 F.Supp.2d 1090, 1103 (S.D. Ind. 2008) (citing
City of Anderson v. Weatherford, 714 N.E.2d 181, 186 (Ind. App. 1999)). Because Williams does
not dispute that the defendants were acting within the scope of their employment at the time of the
incident, “the only possible state law claims that [Williams] would have would be false arrest, false
imprisonment, or excessive force.” McConnell, 573 F.Supp.2d at 1103. Therefore, Stopper and Alb
cannot be held personally liable for Williams’ assault claim.
Based on the foregoing reasons, the defendants’ Motion for Summary Judgment [DE 17] is
GRANTED IN PART and DENIED IN PART.
ENTERED this 6th day of May, 2014
/s/ Andrew P. Rodovich
United States Magistrate Judge

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