Stone v. Porter County Sheriff's Department et al

Filing 31

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the Defendants' Motion for Summary Judgment 27 is GRANTED IN PART and DENIED IN PART. Summary Judgment is DENIED on Jeremiah Stone's excessive force claim to the ext ent that it alleges that allowing the canine to continue attacking him following his apprehension constituted excessive force, and it is DENIED on his failure to intervene claim against Officers Brockman and Boone. Summary Judgment is GRANTED as to all other claims. Signed by Judge Rudy Lozano on 9/28/2017. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JEREMIAH STONE,
Plaintiff,
vs.
PORTER COUNTY SHERIFF’S
DEPARTMENT, et al.
Defendants.

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CAUSE NO. 2:14-CV-287

OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for
Summary Judgment, filed on September 22, 1016 (DE #27).

For the

reasons set forth below, the motion is GRANTED IN PART and DENIED
IN PART.

Summary judgment is DENIED on Jeremiah Stone’s excessive

force claim against Officer Gill to the extent that it alleges that
allowing

the

canine

to

continue

attacking

him

following

his

apprehension constituted excessive force, and it is DENIED on his
failure to intervene claim against Officers Brockman and Boone.
Summary judgment is GRANTED as to all other claims.

BACKGROUND
On August 15, 2014, Plaintiff Jeremiah Stone (“Stone”) filed
a

complaint

against

the

Porter

County

Sheriff’s

Department

(“Sheriff’s Department”), Sheriff David Lain (“Sheriff Lain”),
Officer Brian Gill (“Officer Gill”), Officer Meredith Brockman

(“Officer Brockman”), and Officer Matthew Boone (“Officer Boone”).
The complaint stems from an incident on August 15, 2012.
vehicle Stone was traveling in was pulled over.

The

Stone fled and

Officer Gill directed his canine, Dolar, to apprehend him.

Stone

was injured during the apprehension, and alleges that the dog was
permitted to continue attacking him after he was secured.
Stone alleges that his Fourth and Fourteenth Amendment rights
were violated by the Defendants’ use of excessive force, in
violation of 42 U.S.C. § 1983.

He additionally alleges that his

Fourteenth Amendment due process rights were violated.

And, he

seeks a declaratory judgment that Sheriff Lain and the Sheriff’s
Department utilize unconstitutional

policies and procedures for

the use and deployment of canines.

The instant motion is fully

briefed and ripe for adjudication.

DISCUSSION
Summary judgment must be granted when “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).

A genuine

dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
every

dispute

between

the

parties

makes

summary

Not

judgment

inappropriate; “[o]nly disputes over facts that might affect the
-2-

outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”

Id.

In determining whether

summary judgment is appropriate, the deciding court must construe
all facts in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party’s favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

“However, our favor

toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”

Fitzgerald

v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.
C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion
may not rely on allegations or denials in her own pleading, but
rather must “marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010).

If the nonmoving party fails to

establish the existence of an essential element on which he or she
bears the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

Facts
Defendants have provided a “Statement of Undisputed Material
Facts” with citations to supporting evidence in compliance with the
requirements of Federal Rule of Civil Procedure 56 and Northern
District of Indiana Local Rule 56-1. Accordingly, to avoid summary
-3-

judgment, Stone must demonstrate that there is a genuine dispute by
citing material facts he contends are in dispute in a section
labeled

“Statement

of

Genuine

Disputes”

or

showing

that

the

materials cited by the Defendants do not establish the absence of
a genuine dispute.

Fed. R. Civ. P. 56(c).

Stone’s statement of genuine disputes contains facts that
Stone alleges are in dispute, but many of the citations point to
evidence that is not before the Court.

For example, this Court

does not have before it pages 56, 65, or 88 of Officer Gill’s
deposition, page 21 of Officer Boone’s deposition, or pages 43-44
of Officer Brockman’s deposition.

Other facts asserted in the

statement of genuine disputes are not supported by any citation.
Still other portions misconstrue the evidence that is cited.

And,

portions of the statement of genuine disputes consist of argument
rather than facts.
The

Court

will

not

consider

any

portion

of

either

the

Defendant’s statement of material facts or Stone’s statement of
genuine disputes that does not properly cite to evidence in the
record.

The Court need not “credit [a party’s] version of the

facts when the materials supporting those asserted facts are not
part of the record.”

Stevens v. Housing Auth. of South Bend, 663

F.3d 300, 311 (7th Cir. 2011).

Nor is this Court required to hunt

through the record to make a party’s case for him.
Town

of

Cicero,

Ill.,

619

F.3d
-4-

697,

702-03

(7th

See Gross v.
Cir.

2010)

(collecting cases).

Therefore, as in Gross, this Court “strikes

any of the parties’ factual assertions, in any section of their
briefs, that lack direct citation to easily identifiable support in
the record.” Id.

Because the Defendants’ statement of undisputed

material facts is well-supported and most of the facts contained in
it are undisputed, the Court has borrowed liberally from it.
In the early morning hours of August 15, 2012, Stone was
traveling eastbound in a maroon Dodge Stratus on U.S. Highway 6 in
Porter County, Indiana. (Def. Ex. B at

8-9).

After observing the

Stratus cross left of center twice, Officer Brockman initiated a
traffic stop on suspicion of intoxication. (Def. Ex. B at 10).
When Officer Brockman initiated the traffic stop, Stone advised the
other two occupants of the vehicle, Michelle Sabich and Sarah
Myers, that he would run if the car was pulled over because he was
on probation in another county and could go to jail for drinking
that night. (Def. Ex. C at 30).1

When the car stopped, Stone

immediately exited the vehicle from the driver’s side and ran.
(Def. Ex. B at 15).

Officer Brockman began to run after Stone, but

he escaped. (Id.).

She returned to the vehicle and spoke with

Sabich and Myers. (Def. Ex. B at 19).

They advised Officer

Brockman that Stone told them he would run if they were pulled
over. (Id. at 21).

1

Defendants note that Stone was on probation for felony residential
entry and theft. (Def. Ex. C at 8). This was unknown to the officers at the
time Stone was apprehended and is irrelevant to the issues before this Court.

-5-

Officers Gill, his canine Dolar, and Officer Boone then
arrived to assist with the search for Stone.

(Def. Ex. D at 14;

Def. Ex. E at 61). Officer Boone attempted to chase Stone, yelling
out to stop and that he was the police, but Stone continued to run.
(Def. Ex. D at 17-18).

Officer Boone did not know whether Stone

was armed, but he believed it was a dangerous situation because
Stone seemed desperate to get away from the police.
33-34).

(Def. Ex. D at

Stone was running through a trailer park, where there are

many places to hide and it is very easy to break in to homes.
D at 34).

The officers had no reason to believe Stone would stop

running if Dolar had not apprehended him.

(Def. Ex.

D

Officer Gill has been a canine handler since 2009.
F

at

(Ex.

1).

He

obtained

Specialties in Elkhart.

his

canine,

Dolar,

from

(Def. Ex. E at 24).

at

34).

(Def. Ex.

Faus

Canine

He attended a

five-week course with Dolar, and they were certified as a team
through the National Police Working Dog Association (“NPWDA”).
(Id.).

He and Dolar recertified through NPWDA every September.

(Id. at 21).

They also trained monthly with other canine handlers

in Northwest Indiana on tracking, narcotics detection, obedience,
aggression control, and all of the NPWDA standards.

(Id. at

14-15).
Officer Gill was subject to and guided by the Sheriff’s
Department’s use of force policy in effect at the time of Stone’s
arrest.

(Def. Ex. E at 10).

He understands that Dolar is
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considered an instrumentality of force as an intermediate weapon in
accordance with the Sheriff’s Department policy on the use of
force.

(Def. Ex. E at 8-10; Ex. G).

The policy provides in part

as follows:
1. This policy establishes guidelines for the
Department concerning the use of force.
It
shall be the policy of this Department to use
only that degree of force that is reasonable
and necessary to perform official duties.
2. Officers shall not strike or use physical
force against any person except when necessary
in self-defense, in defense of another, to
overcome
physical
resistance
to
lawful
commands, or to prevent the escape of an
arrested person.
(Def. Ex. G at 1).
Intermediate weapons are non-deadly weapons such as tasers,
chemical spray, or mace.

(Def. Ex. E at 3).

The canine policy

provides that “[t]he handler shall allow the canine to use only
that level of force [that] is reasonably believed to be necessary
to apprehend or secure a suspect.”

(Def. Ex. E at 17; Ex. H ¶ J).

The same standard applies to the use of force regardless of the
mechanism of force.

(Def. Ex. E at 97).

considered the use of deadly force.

Releasing Dolar is not

(Def. Ex. E at 12).

Gill knows this from his training and experience.

Officer

(Def. Ex. E at

8). The Sheriff’s Department uses a “one plus one” model of force.
(Def. Ex. E at 10).
level

of

force

used

That means that they are able to take the
up

one

level

displaying. (Def. Ex. E at 11).
-7-

from

what

the

subject

is

Stone’s resistance would be

considered defensive resistance.

(Def. Ex. E at 11).

The use of force policy requires officers to fill out a use of
force form.

(Def. Ex. E at 10).

Officer Gill did not fill out the

required form for the use of force against Stone.

(Id. at 9-10).

He has never filled out the use of force form when Dolar has
apprehended a subject.

(Id.).

Other than the instant case, Officer Gill has never had a
complaint about any action taken by him and Dolar. (Def. Ex. E at
32, 98).

Officer Gill has no knowledge of any other complaints

regarding canine bites with the Sheriff’s Department.
at 102).

(Def. Ex. E

He has also never been disciplined for any action taken

by him and Dolar. (Def. Ex. E at 32).

Each canine bite is reviewed

by the head of the canine division, and Officer Gill was not
disciplined for Dolar’s apprehension of Stone in this incident.
(Def. Ex. E at 33, 38, 98).

Nobody said or suggested that Dolar’s

apprehension of Stone was an inappropriate use of force. (Def. Ex.
E at 38).
The first time that Officer Gill and Dolar located Stone,
Officer Gill called out for Stone to stop, but Stone jumped over a
fence and continued running.

(Def. Ex. E at 61).

In determining

whether to release Dolar, Officer Gill considers factors such as
the danger to the community, danger to the officers, the fact of a
fleeing suspect, the nature of the crime, and population density.
(Def. Ex. E at 39).

His actions are the result of his experiences
-8-

in police work, and he considered the unpredictable nature of
Stone’s behavior and his desperation to get away from the police.
(Def. Ex E at 70).

In his almost ten years of police work, he has

learned that a person desperate to escape the police poses a danger
to the community.

(Def. Ex. E at 70).

Out of tens of thousands of

traffic stops, a situation such as this has only happened two or
three times.

(Def. Ex. E at 70).

This is, in Officer Gill’s

opinion, very abnormal behavior for someone who just had a few
drinks and did not want to be caught by the police.
at 70).

(Def. Ex. E

Someone that determined and desperate would have almost

certainly ended up in a physical altercation.
12, 78).

(Def. Ex. E at 11-

According to Officer Gill, when a suspect exhibits

desperation such as what Stone exhibited, they either had a lot of
liquor or they just committed a very serious crime.

(Def. Ex. E at

82).
Officer Brockman did not know if Stone was carrying a weapon.
(Def. Ex. B at 27).

The assumption when someone runs from the

police is that they pose a danger.

(Id. at 27).

She believed

Stone posed a danger to society because he ran from police for an
unknown reason, and they did not know his mindset.

(Id. at 30).

In pursuing Stone, Officer Brockman believed they were defending
the public because Stone ran in a trailer park — a highly populated
area.

(Id. at 30-31).

The police encountered two individuals,

Harley Jewitt (“Jewitt”) and Samantha Satrioano (“Satriano”),
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delivering papers while searching for Stone. (Pl. Ex. 1 at 10, 15;
Pl. Ex. 2 at 7-8, 15).

They were stopped twice and asked if they

had seen anyone in the area, but the officers did not indicate that
the person they were looking for might be dangerous.

(Pl. Ex. 1 at

16-19, 22; Pl. Ex. 2 at 14-15).
Officer Gill and Dolar located Stone a second time, and
Officer Gill yelled for Stone to stop or he would release Dolar.
(Def. Ex. D at 23; Def. Ex.
(Def. Ex.
his

D

training,

at

25;

Def. Ex.

Officer

apprehend Stone.

E at 78).

Gill

E

issued

at

Stone continued to run.
78).

the

(Def. Ex. E at 78).

In accordance with

command

for

Dolar

to

Dolar apprehended Stone

mid-stride while he was attempting to continue running. (Def. Ex.
D at 25; Ex. E at 79). According to the Defendants, Officer Gill
placed Stone in handcuffs, released Dolar, and called for an
ambulance, which arrived shortly thereafter.

(Def. Ex. D at 29;

Def. Ex. E at 92-93; Def. Ex. C at 41).
Stone

presents

a

very

following his apprehension.

different

version

of

the

events

According to Jewett, a witness, there

were three squad cars and five officers surrounding Stone while he
was laying on the ground face down with his hands cuffed behind his
back “and the dog was tearing that guy up.”

(Pl. Ex. 1 at 22-24).

Stone was unable to protect himself and was screaming “stop.”
(Id.).

According to Jewett, “the handler let the dog just chew on

him for about five minutes before he finally called it off.”
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(Id.

at 25). Jewett recounts that the handler, Officer Gill, pulled the
dog off Stone after he saw Jewett and made eye contact with him.
(Id. at 25-26). Jewett estimates that he was 15-20 feet away while
witnessing these events, and that the area was illuminated by a
street light.

(Id. at 28).

Satriano, the woman with Jewett, offers a similar version of
events.

She saw five officers surrounding Stone.

(Pl. Ex. 2 at

17-20).

Stone was on his belly with his hands and feet cuffed

behind his back while the dog chewed on him for about five minutes.
(Id.).

She reports that the officers stood five feet away with

their hands folded across their chests while the dog mauled Stone
until they noticed they were being watched by herself and Jewett.
(Id.).

Stone was screaming for help while the dog was “going

crazy” and biting Stone multiple times.

(Id. 19-22).

No force other than Dolar was used in effectuating Stone’s
arrest.

(Def. Ex. E at 104; Def. Ex. C at 41).

apprehend Stone, Officer Gill was pursuing
stopping any danger Stone posed.

In using Dolar to

the police interest in

(Def. Ex. E at 103).

It was

Officer Gill’s sole intention to apprehend Stone, not to harm him.
(Def. Ex. E at 103).

Officer Gill explained that sending his

canine to apprehend a suspect is a last resort.

(Def. Ex. E at 18,

59).
Stone does not contest that the officers had probable cause
for his arrest. (Def. Ex. C at 20).
-11-

There was no time when Stone

considered stopping and submitting to the officers. (Def. Ex. C at
31-32).

He did not want the police to find him.

(Def. Ex. C at

30).
Sheriff Lain had no involvement in Stone’s arrest.
E at 104).

(Def. Ex.

Stone has no knowledge of how a police canine is

trained to apprehend a fleeing suspect. (Def. Ex. C at 19). Stone
has no knowledge of Sheriff’s Department policies. (Def. Ex. C at
39).

He has no knowledge of any instances in which something like

this happened to someone else.

(Def. Ex. C at 39).

He has no

knowledge of prior complaints to the Sheriff’s Department regarding
dog bites.

(Def. Ex. C at 40).

He has no knowledge that any

supervisors knew about any complaints.

(Def. Ex. C at 40).

He has

no knowledge regarding Dolar’s bite history. (Def. Ex. C at 40).
He has no knowledge of the existing Sheriff’s Department procedure
to review dog bites.

(Def. Ex. C at 40).

Stone agrees that if he had not run from the traffic stop, he
would not have been apprehended by Dolar. (Def. Ex. C at 41).

He

does not believe that it is likely he will encounter police and be
apprehended by a canine again. (Def. Ex. C at 41-42).

He has no

evidence that responsible police departments only train handlers
and dogs to search and find suspects.
relies only on his opinion.

(Def. Ex. C at 42).

(Def. Ex. C at 42).

He

He has no

evidence that the Sheriff’s Department trains its canines to attack
suspects. (Def. Ex. C at 43).
-12-

He has no evidence that the

Sheriff’s Department fails to monitor the deployment of police
dogs. (Def. Ex. C at 43).

He has no knowledge of the system that

the Sheriff’s Department uses to track when there is a bite and the
follow up that occurs. (Def. Ex. C at 43).

He has no evidence of

Sheriff Lain participating, approving of, or ratifying any of the
events of the night of his arrest.

(Def. Ex.

C

at

43).

He has

no knowledge of how many dog bites there have been with the
Sheriff’s Department canines.

(Def. Ex. C at 44).

He has no

knowledge of any problems with Officer Gill. (Def. Ex. C at 44).
He has no evidence that the Sheriff’s Department employs dog
handlers who are prone to use excessive force.

(Def. Ex. C at 44).

On August 12, 2012, the Sheriff’s Department had regulations
about the use of force and the use of canines, and all officers
were required to follow these regulations.

(Def. Ex. G, H).

The

canine policy precluded any officer other than the canine handler
from becoming involved in the use of a canine, except in an
emergency.

(Def. Ex. E at 103).

Officer Boone was present during the apprehension. (Def. Ex.
D at 36; Ex. E at 104).

According to both Officer Boone and

Officer Gill, no emergency existed that would warrant Officer Boone
becoming involved with the apprehension.

(Id.).

Boone viewed the use of force as reasonable.

Further, Officer

(Def. Ex. D at 36).

Officer Brockman asserts that she was not present for Stone’s
apprehension, and she arrived after Dolar was removed.
-13-

(Def. Ex.

B at 31).

The testimony of Jewett and Satriano that five officers

were present while Stone was handcuffed and being bitten casts some
doubt on this assertion. (Pl. Ex. 1 at 22-24; Pl. Ex. 2 at 17-20).
Officers Gill, Brockman and Boone each attended the Police Academy
and receive continuing training through the Sheriff’s Department.
(Def. Ex. B at 4; Ex. D at 6; Ex. E at 5).

ANALYSIS
Excessive Force Claim Against Officer Gill
Defendants argue that, as a matter of law, Stone’s excessive
force claim against Officer Gill fails.

To prevail on a Section

1983 claim, a plaintiff must show that he was deprived of a right
secured by the Constitution or laws of the United States and that
“the deprivation was caused by a person acting under color of state
law.”

Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007).
Excessive

force

claims

brought

against

law

enforcement

officers which stem from an arrest, investigatory stop, or other
seizure of a citizen are analyzed under the Fourth Amendment’s
objective reasonableness standard. Graham v. Connor, 490 U.S. 386,
395 (1989); Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th
Cir. 2005).
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.
The
question is whether the officers’ actions are
objectively reasonable in light of the facts
-14-

and circumstances confronting them, without
regard
to
their
underlying
intent
or
motivation.
Tibbs v. City of Chicago, 469 F.3d 661, 665 (internal quotations
marks,

brackets,

and

citations

omitted).

Specific

facts

to

consider in determining whether a police officer used excessive
force include the severity of the crime, whether the suspect posed
an immediate threat to the safety of the officer or others, and
whether the suspect was actively resisting arrest or attempting to
evade arrest by flight.

Graham, 490 at 396.

With regard to the decision to utilize Dolar to apprehend
Stone, these factors weigh in favor of the Defendants. The vehicle
Stone was traveling in was stopped on suspicion that the driver was
driving while intoxicated.

Stone immediately fled, and Officer

Brockman learned that he told the other occupants of the vehicle
that he would run if they were pulled over.
Officer Gill and Dolar and told to stop.
fleeing, jumping over a fence.

He was located by

Instead, he continued

When he was located a second time,

he was warned that he needed to stop or Dolar would be released.
He still did not surrender.
manner,

causing

the

He continued to flee in a desperate

officers

to

reasonably

believe

he

would

physically resist any attempt to apprehend him and could pose a
risk to the community.

Under these facts, the decision to use

Dolar to apprehend Stone did not violate the Fourth Amendment. See
Johnson v. Scott, 576 F.3d 658, 660-61 (7th Cir. 2009)(finding no
-15-

excessive force where a suspect in a shooting engaged in vehicular
flight and then fled on foot, even where the suspect encountered a
fence that blocked his progress and surrendered moments before he
was bit by the canine and struck by the officer); see also Tilson
v. City of Elkhart, 317 F.Supp.2d 861 (N.D. Ind. 2003)(finding no
excessive force where the plaintiff fled in his car and then by
foot given the felony committed, threat to residents, and the
resistance plaintiff displayed).
According to Stone, police dogs should be used to locate a
suspect, but the officer should then call off the dog and have
officers physically apprehend the suspect.
supporting this assertion.

He has produced no law

Stone’s suggestion, sometimes referred

to as the “circle and bark” method of apprehension, may very well
be a better policy.

This Court, however, is tasked with deciding

what is constitutional, not what is preferable.

See Jarrett v.

Town of Yarmouth, 331 F.3d 140 (1st Cir. 2003)(reversing a jury
verdict based on the jury’s belief that the bite-and-hold policy
was unconstitutional, finding that the position “finds no support
in the case law.”).
Stone, however, alleges more than merely that the decision to
utilize Dolar to apprehend him constituted excessive force.

He

alleges that Officer Gill’s failure to call the dog off once he was
subdued also constitutes excessive force.
disagreement regarding the facts.
-16-

Here, there is a

Defendants assert that, once

Stone was handcuffed, the dog was removed. Stone, however, has two
witnesses that testified that, after Stone was handcuffed, the
officers watched while the dog mauled Stone for a considerable
period of time: they estimate five minutes.

On summary judgment,

this Court cannot weigh the evidence and must accept the facts in
the light most favorable to the non-moving party.

“It is well

established that a police officer may not continue to use force
against a suspect who is subdued and complying with the officer’s
orders.” Johnson, 576 F.3d 660 (citing Dye v. Wargo, 253 F.3d 296,
298 (7th Cir. 2001); Priester v. Riviera Beach, 208 F.3d 919, 927
(11th Cir. 2000)).

If the facts presented by Stone are believed,

a reasonable jury could find in Stone’s favor on his claim that
Officer Gill used excessive force by allowing the dog to continue
to attack him after he was subdued.

Failure to Intervene by Officers Brockman and Boone
The Defendants argue that the excessive force claim fails as
to Officers Brockman and Boone because there was no constitutional
violation,

they

were

not

personally

involved

in

the

alleged

constitutional violation, and they could not have intervened.

To

succeed on a failure to intervene claim, a plaintiff must show that
the officer was present, failed to intervene to prevent other law
enforcement officers from infringing on his constitutional rights,
had reason to know that a constitutional harm was being committed,
-17-

and had a realistic opportunity to intervene to prevent the harm
from occurring.

Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994).

Because this Court has found that the decision to use Dolar to
apprehend Stone was not an unconstitutional use of excessive force,
Officers Brockman and Boone cannot be liable for failing to
intervene in the canine apprehension of Stone.
As to the continued assault of Stone after being handcuffed,
Officer Brockman cannot be liable for failing to intervene if she
was not present and capable of intervening.

There is, however, a

question of fact regarding whether Officer Brockman was present at
the scene when Stone was apprehended.

While Officer Brockman

asserts that Dolar had already been removed from Stone when she
arrived at the scene of Stone’s apprehension, Stone’s witnesses
place five officers at the scene watching him being attacked after
being

handcuffed.

The

record

establishes

that

the

officers

involved in this incident included Officer Gill, Officer Brockman,
Officer Boone, and Officer Hugunin.2

When the facts and all

reasonable inferences are considered in the light most favorable to
Stone, this Court concludes that there is a question of fact
regarding whether Officer Brockman was at the scene while Dolar was
still attacking Stone.
Defendants also argue that Officers Brockman and Boone did not

2
Officer Hugunin is referenced repeatedly in Officer Brockman’s
deposition, although he is not a defendant in this case.

-18-

have an opportunity to intervene because only a trained canine
handler may attempt to control a police canine.

Further, no

emergency existed that would warrant interference by an officer not
trained as a canine handler. While the canine policy precluded any
officer other than the canine handler from becoming involved in the
use of a canine in the absence of an emergency, if a trier of fact
believed Stone’s witnesses, then the situation could be viewed as
an emergency.

When considering the facts in the light most

favorable to Stone, this Court concludes that a reasonable jury
could find that Officers Brockman and Boone had both an obligation
and an opportunity to intervene.

Qualified Immunity
Officers

Gill,

Brockman,

and

Boone

argue

that

they

are

entitled to qualified immunity because they reasonably believed the
canine apprehension of Stone was lawful.

“Qualified immunity

protects public servants from liability for reasonable mistakes
made while performing their public duties.”

Findlay v. Lendermon,

722 F.3d 895, 899 (7th Cir. 2013) (citation omitted).

“Whether a

government official is entitled to qualified immunity is a legal
question for resolution by the court, not a jury.”

Purtell v.

Mason, 527 F.3d 615, 621 (7th Cir. 2008) (citations omitted).

In

determining whether an official is entitled to qualified immunity,
a court asks two questions: “(1) whether the facts, taken in the
-19-

light most favorable to the plaintiff, make out a violation of a
constitutional right, and (2) whether that constitutional right was
clearly established at the time of the alleged violation.”

Burton

v. Downey, 805 F.3d 776, 784 (7th Cir. 2015) (citation omitted).
“Although the privilege of qualified immunity is a defense, the
plaintiff bears the burden of defeating it.”

Betker v. Gomez, 692

F.3d 854, 860 (7th Cir. 2012) (citation omitted).
Stone did not have a clearly established right to not be
apprehended using a canine, and the officers are entitled to
qualified immunity for actions related to the use of Dolar to
apprehend Stone.

However, Stone did have a clearly established

right that he not be subjected to the continued use of force once
subdued.
Defendants argue that “the contours of the Fourth Amendment
with

respect

to

canine

apprehensions

is

[sic]

not

clearly

established with respect to what occurs after apprehension.” (DE
#20 at 8).

Defendants cite four separate cases to support this

assertion, but none are persuasive.
The first case Defendants rely upon, Crenshaw v. Lister,
utterly fails to support their position.
F.3d

1283,

1292

differentiates

the

(11th

Cir.

2009).

case

before

it

Crenshaw v. Lister, 556
The

from

Court,

one

that

in

dicta,

involved

a

continuing attack after the suspect is secured, such as Stone has
alleged:
-20-

While
it
would
have
been
objectively
unreasonable for Lister to allow the canine to
continue attacking Crenshaw after he was
secured, see Hadley, 526 F.3d at 1130 (“Our
cases hold that gratuitous use of force when a
criminal suspect is not resisting arrest
constitute excessive force.”), Crenshaw does
not allege that this occurred.
Thus, under
Crenshaw’s version of the facts, there is no
indication that Lister’s use of the canine
involved greater force than necessary or was
in any way “malicious” or “sadistic.”
Id. (emphasis in original).

Because the use of the canine did not

constitute excessive force in Crenshaw, both the canine handler and
an officer that witnessed the attack and failed to intervene
received qualified immunity.

Id. at 1293-94.

Stone’s allegations

more closely resemble the hypothetical considered in Crenshaw than
the facts before the court in Crenshaw.
In Priester v. City of Riviera Beach, another case relied on
by Defendants, the Eleventh Circuit denied qualified immunity to
both a canine handler and an officer that failed to intervene:
Defendant Wheeler ordered and allowed his dog
to attack and bite Plaintiff; threatened to
kill Plaintiff when Plaintiff kicked the dog
in an effort to resist the unprovoked attack;
and let the dog attack Plaintiff for at least
two minutes.
Considering these facts, no
particularized preexisting case law was
necessary for it to be clearly established
that what Defendant Wheeler did violated
Plaintiff’s constitutional right to be free
from the excessive use of force.
No
reasonable police officer could believe that
this force was permissible given these
straightforward circumstances.
Priester v. City of Rivera Beach, 208 F.3d 919, 927 (11th Cir.
-21-

2000).

Officer Cushing, who was present at the time the dog

attacked the plaintiff, fared no better:
When we defer to the jury’s implicit fact
finding, the excessive force in this case was
obvious and was such that every reasonable
officer would have known that it was clearly
in violation of Priester’s constitutional
rights.
Cushing observed the entire attack
and had the time and ability to intervene, but
he did nothing.
No particularized case law
was necessary for a reasonable police officer
to know that, on the facts of this case and
given that the duty to intervene was clearly
established, he should have intervened.
Id.
In Mendoz v. Block, the defendants made an argument similar to
the Defendants in the instant case: that there are few cases
addressing the use of police dogs to locate fleeing suspects, and
the law is therefore not clearly established.
F.3d 1357, 1361 (9th Cir. 1994).

Mendoz v. Block, 27

In Mendoz, the court found that

the use of a police dog to find Mendoz and secure him until he was
handcuffed was objectively reasonable.

Id. at 1363.

In so

finding, the court again differentiated between using a canine to
locate and secure a suspect and using a canine after a suspect has
been secured:
The reasonableness of force is analyzed in
light of such factors as the requirements for
the officer’s safety, the motivation for the
arrest, and the extent of the injury
inflicted.
This analysis applies to any
arrest situation where force is used, whether
it involves physical restraint, use of a
baton, use of a gun, or use of a dog. We do
not believe that a more particularized
-22-

expression of the law is necessary for law
enforcement officials using police dogs to
understand that under some circumstances the
use of such a “weapon” might become unlawful.
For example, no particularized case law is
necessary for a deputy to know that excessive
force has been used when a deputy sics a
canine on a handcuffed arrestee who has fully
surrendered and is completely under control.
An officer is not entitled to qualified
immunity on the grounds that the law is not
clearly established every time a novel method
is used to inflict injury.
Id. at 1362 (internal quotations and citations omitted).

When

considered in the light most favorable to Stone, this is precisely
the scenario that is before this Court.
Jarrett v. Town of Yarmouth is no more helpful to Defendants
than the preceding cases.
140 (1st Cir. 2003).

Jarrett v. Town of Yarmouth, 331 F.3d

A canine was used to apprehend Jarrett,

biting him twice before the officer arrived and commanded the
canine to release.

A jury ruled in Jarrett’s favor, but the court

overturned the verdict.

The court determined that the jury’s

verdict was based on a conclusion that the town’s bite-and-hold
policy was unconstitutional.

The court determined that the policy

was not in fact unconstitutional, and that Jarrett therefore
suffered no constitutional injuries.

Id. at 150-51.

Jarrett did

not involve allegations that the canine was permitted to continue
to attack Jarrett after he was secured.

Id. at 149.

Each of the aforementioned cases relied upon by Defendants
confirm that qualified immunity is not appropriate on Stone’s
-23-

claims that excessive force was used after he was secured.

Stone

has produced evidence that five officers stood with their arms
crossed over their chests while he was handcuffed and laying on his
belly and Dolar mauled him for several minutes.

Stone has a

clearly established right to be free from force of this nature
unrelated to any legitimate law enforcement purpose.

When “the

defendants’ conduct is so patently violative of the constitutional
right that reasonable officials would know without guidance from
the courts” that the action was unconstitutional, closely analogous
pre-existing case law is not required to show that the law is
clearly established.

Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th

Cir. 1993). Qualified immunity does not extend to Officer Gill for
the failure to remove Dolar after he was subdued.
Likewise, if the events happened as Stone alleges, Officers
Brockman and Boone had an affirmative obligation to intervene to
stop the alleged constitutional violation.
version

of

events,

the

attack

lasted

Further, under Stone’s
sufficiently

long

that

Officers Brockman and Boone had the time necessary to intervene.
See Priester, 208 F.3d at 927.
The policy of the Sheriff’s Department preventing officers
from intervening with a canine in the absence of an emergency does
not alter this analysis.

If the unconstitutional mauling of a

suspect by a dog for approximately five minutes after the suspect
is secured does not constitute an emergency, then that word has
-24-

lost all meaning.

Qualified immunity is denied to Officers

Brockman and Boone on Stone’s claims that they failed to intervene
when

Officer

Gill

allowed

Dolar

to

continue

attacking

Stone

following his apprehension and handcuffing.

Municipal Liability
Defendants also assert that the Section 1983 claims against
the Sheriff’s Department must be dismissed because Stone has no
evidence of any procedure, policy or practice that allegedly caused
his deprivation.1

A municipality may only be held liable for

constitutional violations caused by the municipality through its
own policy, practice, or custom.

Monell v. Dep't of Soc. Servs. of

the City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed.
2d 611 (1978). To recover under Monell, a plaintiff must establish
that: (1) he suffered a deprivation of a federal right (2) as a
result of an express municipal policy, a widespread custom, or a
deliberate

act

of

a

decision-maker

with

final

policymaking

authority for the municipality that (3) was the proximate cause of
his injury.

King v. Kramer, 763 F.3d 635, 649 (7th Cir. 2014).

“The existence of a policy or custom can be established in a number
of ways: the plaintiff may point to an express municipal policy
1

Stone’s claim against Sheriff Lain in his official capacity as Sheriff will be
treated as a claim against the Sheriff’s Department because “[a]n official
capacity suit is tantamount to a claim against the government entity itself.”
Guzman v. Sheahan, 495 F.3d 852, 859 (citations omitted); see McLaughlin v.
Freeman, No. 2:08-CV-58-PRC, 2013 WL 5407041, at *8 (N.D. Ind. Sept. 26, 2013)
(holding that claims against Lake County Jail deputy warden in his official
capacity were claims against the Lake County Sheriff's Department).

-25-

responsible for the alleged constitutional injury, or demonstrate
that there is a practice that is so widespread that it rises to the
level

of

a

municipality.”

custom

that

can

fairly

be

attributed

to

the

Id.

Defendants argue that Stone’s Monell claims fail because his
underlying constitutional claims fail. As to Stone’s claim that it
was unconstitutional to apprehend him using the canine, this is
correct.

Stone’s excessive force claims based on the attack

continuing after he was secured and failure to intervene in that
attack require further analysis.
Stone, however, has not pointed to a policy that caused this
violation of his constitutional rights.

Nothing in the policy

provisions that Stone relies upon suggest that Sheriff Lain or the
Sheriff’s Department endorsed or approved of a policy of continuing
to use force, canine or otherwise, against a suspect that has been
subdued.
Stone argues that the use of force against him violated a
provision of the use of force policy that provides that “[o]fficers
shall not strike or use physical force against any person except
when necessary in self-defense, in defense of another, to overcome
physical resistance to lawful commands, or to prevent the escape of
an arrested person.”

(Def. Ex. G at 1).

He asserts that Stone’s

actions did not fall into any of these categories.

According to

Stone, fleeing does not constitute physical resistance.
-26-

It is

unnecessary to parse out this language, because this policy was not
a proximate cause of the violation of Stone’s constitutional
rights. The policy in no way indicates that allowing a canine to
continue to attack a suspect after they have been handcuffed is
permissible.
Stone further argues that, “under the canine policy, Officer
Gill was required to apprehend any suspect no matter how minor the
crime.”

(DE #29 at 10).

According to Stone, this would be

required for jaywalking, illegal parking, and littering.

The

policy states that “[t]he handler shall allow the canine to use
only that level of force [that] is reasonably believed to be
necessary to apprehend or secure a suspect.”
Ex. H ¶ J).

(Def. Ex. E at 17;

The policy simply does not require that canines be

used to apprehend suspects involved in minor crimes or infractions.
Furthermore, the constitutional harm at issue here is not the
apprehension of Stone but the continuing attack after apprehension,
and Stone cannot demonstrate a causal link between this policy and
that harm.
Stone asserts that Sheriff Lain and the Sheriff’s Department
failed to adequately train its officers with respect to excessive
force

and

the

use

of

canines.

In

certain

circumstances,

a

municipality’s decision not to train employees about their legal
duty to avoid violating citizens’ rights may rise to the level of
a municipal policy for purposes of Section 1983.
-27-

See Connick v.

Thompson, 563 U.S. 51, 60–61 (2011)(“A municipality’s culpability
for a deprivation of rights is at its most tenuous where a claim
turns on a failure to train.”).

To satisfy Section 1983, a

municipality’s failure to train its employees “must amount to
deliberate indifference to the rights of persons with whom the
[untrained employees] come into contact.”
internal quotation marks omitted).

Id. (citation and

“[D]eliberate indifference is

a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action.”
Id. (internal quotations and citation omitted).
The evidence before this Court demonstrates that each of the
officers involved graduated from the Police Academy.
Officer

Gill

training.

and

Dolar

both

received

significant

Further,
additional

There is no evidence that the Sheriff’s Department or

Sheriff Lain failed to train employees adequately, or failed to
respond adequately after learning of a pattern of constitutional
violations.

Stone has not addressed the failure to train claim in

his response brief and it is therefore deemed waived.

See Palmer

v. Marion Cnty., 327 F.3d 588, 597–98 (7th Cir. 2003) (holding that
a party abandoned his claim where he failed to delineate the claim
in opposition to a motion for summary judgment); Laborers' Int'l
Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999)
(stating that arguments not presented in response to a summary
judgment motion are waived).
-28-

Stone has also failed to produce evidence of any custom or
practice that resulted in the alleged constitutional violations.
He points to no decisions by anyone, including Sheriff Lain, with
final

policymaking

authority

constitutional violations.

that

resulted

in

his

alleged

At best, Stone has alleged an isolated

incident of misconduct by Officer Gill and an isolated incident of
failure to intervene by Officers Brockman and Boone.
City of Chicago, 664 F.2d 639, 650 (7th Cir. 1981).

See Powe v.
Accordingly,

Stone’s claims against the Sheriff’s Department and Sheriff Lain in
his official capacity fail.

Supervisory Liability
To the extent Stone intended to pursue a supervisory liability
theory against the Sheriff’s Department or Sheriff Lain, that claim
cannot

succeed.

The

doctrine

of

respondeat

superior,

or

supervisory liability, does not apply to Section 1983 actions. See
Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000) (“However,
§ 1983 does not allow actions against individuals merely for their
supervisory role of others.”).

Sheriff Lain in his Individual Capacity
Stone’s complaint alleges claims against Sheriff Lain in his
individual

capacity

in

addition

to

his

official

capacity.

Defendants produced evidence that Sheriff Lain was not personally
-29-

involved in the apprehension of Stone. Stone offers no evidence to
the contrary.

Because Stone does not proffer any admissible

evidence raising a genuine issue of material fact as to whether
Lain

was

personally

involved

in

the

alleged

constitutional

deprivation, the Section 1983 claim against Lain in his individual
capacity

must

(dismissing

§

be

dismissed.

1983

claims

See

against

Palmer,
sheriff

327
in

F.3d

his

at

594

individual

capacity where plaintiff failed to make any showing that sheriff
was aware of the risk faced by plaintiff).

Fourteenth Amendment Due Process
Stone argues that Defendants failed to render prompt first aid
to him, in violation of his right to be secure from the depravation
of life, liberty or property without due process of law.
Const. Amend. XIV.

U.S.

Defendants have produced evidence to the

contrary, and Stone has offered no evidence in support of his
claim.

Because he does not address this claim in his response

brief, it is deemed waived. See Palmer, 327 F.3d at 597–98; Caruso,
197 F.3d at 1197.

Declaratory Judgment
Stone seeks a ruling from this Court that the policies and
procedures of Sheriff Lain and the Sheriff’s Department regarding
the deployment and use of dogs violates the Fourth and Fourteenth
-30-

Amendments, and an injunction barring the use and deployment of
dogs to apprehend persons by attacking and biting except where
there is probable cause to believe the person poses an immediate
threat of serious physical injury or death to the officers or
others.

He also seeks an injunction against all use of dogs to

assist in finding persons or taking them into custody until
additional training occurs and policy initiatives are in place.

A

declaratory judgment action that addresses the same issues as the
substantive claims serves no purpose.
Inc., 219 F. Supp.2d 942 (N.D. Ill. 2002).

Amari v. Radio Spirits,
Stone is unlikely to be

subjected to another canine apprehension and concedes as much.

A

declaratory judgment will not remedy his past harms. Additionally,
Stone has offered no argument in response to the Defendants’
request

that

summary

judgment claim.

judgment

be

granted

This constitutes a waiver.

on

his

declaratory

See Palmer, 327 F.3d

at 597–98; Caruso, 197 F.3d at 1197. Accordingly, summary judgment
will be granted on this claim.

CONCLUSION
For the reasons set forth above, the Defendants’ Motion for
Summary Judgment (DE #27) is GRANTED IN PART and DENIED IN PART.
Summary judgment is DENIED on Jeremiah Stone’s excessive force
claim to the extent that it alleges that allowing the canine to
continue attacking him following his apprehension constituted
excessive force, and it is DENIED on his failure to intervene claim

-31-

against Officers Brockman and Boone.

Summary judgment is GRANTED

as to all other claims.
DATED: September 28, 2017

/s/ RUDY LOZANO, Judge
United States District Court

-32-