Harrison v. Jaques et al

Filing 90

OPINION AND ORDER: The Court hereby GRANTS the 85 Motion to Strike Non-Sworn Statements Contained in Plaintiff's Response to Defendants' Motion for Summary Judgment and GRANTS the 79 Motion for Summary Judgment. The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of Defendants Town of Griffith, Griffith Police Department, Jason Jacques, Tony Morris, Greg Mance, and David Borgetti and against Plaintiff Gary Joe Harrison. Signed by Magistrate Judge Paul R Cherry on 10/19/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GARY JOE HARRISON,
Plaintiff,
v.
TOWN OF GRIFFITH, GRIFFITH POLICE
DEPARTMENT, JASON JAQUES, TONY
MORRIS, GREG MANCE, and
DAVID BORGETTI,
Defendants.

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CAUSE NO.: 2:15-CV-37-PRC

OPINION AND ORDER
This matter is before the Court on a Motion for Summary Judgment [DE 79], filed by
Defendants Town of Griffith, Griffith Police Department, Jason Jaques, Tony Morris, Greg Mance,
and David Borgetti on April 28, 2017, and on a Motion to Strike Non-Sworn Statements Contained
in Plaintiff’s Response to Defendants’ Motion for Summary Judgment [DE 85], filed by Defendants
on June 6, 2017. All motions were fully briefed on June 20, 2017.
In his First Amended Complaint, filed on July 2, 2015, Plaintiff Gary Joe Harrison brings
claims under 42 U.S.C. § 1983 for alleged violations of the United States Constitution. In Count I,
Harrison alleges claims of excessive force by Defendants Officers Jason Jaques, David Borgetti, and
Tony Morris in violation of the Fourth and Fourteenth Amendments to the United States
Constitution. Harrison asserts that he suffered the following injuries from the officers’ alleged
excessive use of force: a broken left arm and wrist, stomach injuries, and injuries to his mouth. See
(ECF 80-7) (Resp. to Inter. No. 12).1 In Count II, Harrison alleges a claim of failure to train and

1

The exhibit containing Harrison’s Response to Interrogatory No. 12 was an email from Harrison’s counsel
to counsel for Defendants; thus, it was not signed by Harrison. See Fed. R. Civ. P. 33(b)(5) (“The person who makes
the answers must sign them . . . .”). Harrison did not provide evidence of having produced a signed copy of this
interrogatory response.

supervise with regard to the alleged excessive force against Defendants Chief of Police Greg Mance,
the Town of Griffith, and the Griffith Police Department. Counts III and IV are claims of deprivation
of necessary medical care against Defendants Officers Jaques, Borgetti, and Morris and against
Defendant Chief Mance, respectively. Count V alleges a claim of failure to train and supervise with
regard to the deprivation of necessary medical care against Defendants Chief Mance, the Town of
Griffith, and the Griffith Police Department.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure require that a motion for summary judgment be granted
“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). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “Summary judgment is appropriate when no material fact is disputed and the
moving parties are entitled to judgment as a matter of law, meaning that no reasonable [juror] could
find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566
(7th Cir. 2014).
A party seeking summary judgment bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, that it believes
2

demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.
Civ. P. 56 (a), (c). The moving party may discharge its initial responsibility by simply
“‘showing’—that is, pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case.” Celotex, 477 U.S. at 325; see also Spierer v. Rossman, 798
F.3d 502, 508 (7th Cir. 2015). When the nonmoving party would have the burden of proof at trial,
the moving party is not required to support its motion with affidavits or other similar materials
negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Spierer, 798 F.3d at 507-08;
Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).
“Once the moving party puts forth evidence showing the absence of a genuine dispute of
material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating
a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party
cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See
Fed. R. Civ. P. 56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must “do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)
(1986)). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion
and supporting materials—including the facts considered undisputed—show that the movant is
entitled to it . . . .” Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248-50.
In viewing the facts presented on a motion for summary judgment, a court must construe all
facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor
3

of that party. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765
(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). A court’s role is not to
evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth
of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson,
477 U.S. at 249-50.
MOTION TO STRIKE
In the Motion to Strike, Defendants ask the Court to strike from the record two factual
assertions in Plaintiff’s Response Brief in Opposition of Defendants’ Motion for Summary Judgment
that contain inadmissible evidence. Defendants also ask the Court to strike the legal arguments made
based on the unsupported factual assertions. Harrison did not respond to the Motion to Strike.
First, Harrison’s “Statement of Genuine Disputes” includes the statement: “As Officer Jaques
was escorting Mr. Harrison out of the cell, he intentionally torqued Mr. Harrison’s wrist causing Mr.
Harrison severe pain.” (ECF 82, p. 2 (citing ECF 80-4) (Def. Ex. 4–Cam Cell 1 at 9:45:30)). The
only evidence cited in support of this factual assertion is the police video. However, the video does
not show that Officer Jaques “intentionally torqued Mr. Harrison’s wrist.” See (ECF 80-4). At the
time of 9:45:30 on Cam Cell 1, Harrison’s wrists are not visible. What is visible at that time on Cam
Cell 1 is that Harrison hit his upper arms on the cell door frame, stopping his forward motion. Id.
Harrison has not testified under oath or offered any sworn statement that Officer Jaques injured
Harrison’s wrist when his hands were behind his back as they were walking out of the cell.
Also, Harrison’s prior testimony contradicts this new, unsupported assertion made in his
response brief. Harrison previously testified that Officer Jaques attacked him in the cell and popped
his wrist while his wrist was in front of him when Harrison was on or near the bed; Harrison
gestured during his videotaped deposition to show how the events allegedly occurred. See (ECF 834

1, pp. 19:3-22; 46:16-53:18; 130:4-132:21; 147:10; 150; 3; 157:25-158:13); see also (ECF 85-1)
(Ex. 1 to Mot. to Strike–Video Dep. Gary Joe Harrison); (ECF 84, 86, 87, 88) (manual filing of
video).
As the new version of the events in the response brief is not supported by the videotape
recording and is contrary to Harrison’s prior deposition testimony, the Court grants the Motion to
Strike as to this statement and STRIKES from Harrison’s Statement of Genuine Issues the sentence:
“As Officer Jaques was escorting Mr. Harrison out of the cell, he intentionally torqued Mr.
Harrison’s wrist causing Mr. Harrison severe pain.” (ECF 82, p. 2 (citing Def. Ex–4 Cam Cell 1
9:45:30)).
Second, Harrison’s Statement of Genuine Issues provides that Officer “Jaques placed him
in handcuffs.” (ECF 82, p. 2 (citing generally Def. Ex. 4)). Harrison also indicates several times in
the Law and Argument section that Harrison was in handcuffs and that “it was clearly established
law that it was unlawful to use excessively tight handcuffs and apply significant force to suspects
that were not resisting arrest, did not disobey orders, and did not pose a threat.” (ECF 82, p. 4).
Harrison then reasons that “[a] reasonable jury can find that Jaques knew that applying unreasonable
force to Harrison’s wrists that were bound in handcuffs when he was not resisting violated
Harrison’s constitutional rights.” Id.
Harrison cites no evidence that Officer Jaques placed Harrison in handcuffs. Rather, Harrison
testified that Officer Jaques did not have handcuffs and did not place Harrison in handcuffs. (ECF
83-1, p. 50:3-51:15). The video also shows that Harrison was not placed in handcuffs. (ECF 80-4).
The Court grants the Motion to Strike as to this statement and STRIKES the asserted fact: “Jaques
placed him in handcuffs.” (ECF 82, p.2). As a result, the Court disregards Harrison’s legal citations
and arguments referencing unreasonable or excessive force in relation to the use of handcuffs.
5

MATERIAL FACTS
On April 18, 2014, Griffith Police Department Officers Jason Jaques and David Borgetti
responded to a residence in Griffith, Indiana, as a result of a domestic violence disturbance call.
(ECF 80-1, ¶ 3; 80-2, ¶ 3). Upon arrival, Officers Jaques and Borgetti spoke with the complainant
Cathy McFerren, who represented that she was Plaintiff Gary Jo Harrison’s ex-wife. (ECF 80-1, ¶
4; 80-2, ¶ 4). The Officers observed blood coming from McFerren’s nose and a bump on the top of
her head. (ECF 80-1, ¶ 5; 80-2, ¶ 5). Harrison was detained on suspicion of domestic battery and was
transported to the Griffith Police Department. (ECF 80-3). Harrison showed no signs of being in
need of medical care, nor did he request medical treatment. (ECF 80-1, ¶ 10; 80-2, ¶ 10).
Once at the Griffith Police Department, Officers Jaques and Borgetti directed Harrison to
the Cell Hall where they searched him and had Harrison remove his personal belongings. (ECF 804) (Griffith Police Department Surveillance Video); (ECF 80-1, ¶ 11; 80-2, ¶ 11). The officers then
placed Harrison in Cell 1 and left the area. (ECF 80-4); (ECF 80-1, ¶¶ 12-13; 80-2, ¶¶12-13).
Harrison removed his shirt and started to secure it to the cell door bars in an attempt to hang himself.
(ECF 80-4); (ECF 80-1, ¶ 13; 80-2, ¶ 13). As soon as Harrison climbed onto the first rung of the cell
door bars, Officer Jaques, Officer Borgetti, and Defendant Officer Tony Morris entered the cell hall
and released Harrison’s shirt from the cell door bars. (ECF 80-4); (ECF 80-1, ¶ 14; 80-2, ¶ 14).
Harrison was not successful in his attempt to hang himself nor did he lose consciousness as a result
of his attempt. (ECF 80-4); (ECF 80-1, ¶ 15; 80-2, ¶ 15).
As the cell door was opening, Harrison jumped down and lay down on the cot inside the cell.
(ECF 80-4); (ECF 80-1, ¶ 16; 80-2, ¶ 16). Officer Morris removed the shirt from around Harrison’s
neck, attempted to calm Harrison down, and left the cell. (ECF 80-4); (ECF 80-1, ¶ 17; 80-2, ¶ 17).
Officers Jaques and Borgetti remained in the cell with Harrison to ensure his safety. (ECF 80-1, ¶
6

18; 80-2, ¶ 18). Shortly thereafter, Officer Borgetti left the cell. (ECF 80-1, ¶ 19; 80-2, ¶ 19). Officer
Jaques stayed in the cell with Harrison until Prompt Ambulance’s arrival at the Griffith Police
Department. (ECF 80-1, ¶ 20). After notification regarding the paramedics’ impending arrival,
Officer Jaques advised Harrison to stand up. (ECF 80-1, ¶ 21). Harrison placed his hands in the air.
(ECF 80-1, ¶ 22). Jaques slowly and without force placed Harrison’s hands behind his back. (ECF
80-1, ¶ 23). Harrison was escorted out of the cell to the door leading to the police parking lot without
incident. (ECF 80-1, ¶ 24).
Once outside, Officer Jaques escorted Harrison to the waiting gurney with Officer Borgetti
nearby. (ECF 80-1, ¶ 25). As Harrison started to sit on the gurney, he began to resist Officer Jaques
by planting his feet, screaming, and attempting to leave the gurney. (ECF 80-1, ¶ 26; 80-2, ¶ 25).
The ambulance rocked violently back and forth as a result of Harrison’s movements, and the
paramedics motioned to the officers to help with Harrison. (ECF 80-1, ¶ 21). Officer Jaques, Officer
Borgetti, and Officer Morris responded. (ECF 80-1, ¶ 32). The paramedics transported Harrison to
Community Hospital in Munster, Indiana, for evaluation following his attempted suicide. (ECF 80-1,
¶ 34); (ECF 80-3, ¶ 21). Harrison was later transferred to St. Catherine’s Hospital in East Chicago,
Indiana, on an emergency detention from April 18, 2014, to April 22, 2014. (ECF 80-1, ¶ 35); (ECF
80-3, ¶ 21).
On April 22, 2014, the Griffith Police Department received a call from St. Catherine’s
Hospital that Harrison was going to be released and that the Griffith Police Department could pick
him up since there was a police hold on him. (ECF 80-5, ¶ 5). Harrison was transported from St.
Catherine’s Hospital to the Griffith Police Department. Id. at ¶ 6. Officer Borgetti was not the
transporting officer on April 22, 2014. Id. On April 23, 2014, Harrison was transported to the Lake
County Jail. Id. ¶ 8; (ECF 80-6).
7

ANALYSIS
Defendants seek summary judgment in their favor on all of Harrison’s claims. In his
response brief, Harrison abandons all claims except for the claim of excessive force against
Defendant Officer Jaques for an alleged wrist injury; however, Harrison has offered no admissible
evidence in support of this claim. See Palmer v. Marion Cty., 327 F.3d 588, 597-98 (7th Cir. 2003)
(holding that claims not addressed in a summary judgment opposition brief are abandoned (citing
Laborers’ Int’l Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999))). The Court
addresses each claim in turn.
A. Count I – § 1983 Excessive Force
Defendants seek summary judgment on Harrison’s claims of excessive force in violation of
the Fourth Amendment to the United States Constitution against Officers Jaques, Borgetti, and
Morris. Allegations that a police officer used excessive force are analyzed under the Fourth
Amendment’s standard of “objective reasonableness.” Graham v. Connor, 490 U.S. 386, 396-97
(1989). This standard “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.” Id. at 388, 396; see also Williams v. Ind. State Police Dep’t, 797 F.3d 468, 472-73
(7th Cir. 2015).
1.

Officer Jaques
In their Motion for Summary Judgment, Defendants argue that the undisputed videotape

recording of Harrison’s cell contradicts Harrison’s version of the events and demonstrates that
Officer Jaques did not violate Harrison’s Fourth Amendment rights. First, Defendants note that
Harrison alleges in his First Amended Complaint that Officer Jaques grabbed Harrison’s arm with
8

excessive force while subduing Harrison in the cell after his suicide attempt. Defendants then cite
Harrison’s Response to Interrogatory No. 12, which asserts that Officer Jaques broke Harrison’s
wrist while Harrison was on or near his cot, facing Officer Jaques, with his left arm up in a defensive
position:
While I was in a holding cell at the Griffith Police Department, I attempted to hang
myself with my own clothes. Officers found me and the Lieutenant got him down
and laid me down on the cot. Lieutenant left to call the ambulance. Officer [Jaques]
was left to keep an eye on me. Officer [Jaques] approached me and ordered that I
stand up. I was unable to stand up due to the effects of attempting to commit suicide.
Officer [Jaques] approached me and said “you people.” As Officer [Jaques]
approached me and I saw that he was becoming very aggressive so I put my left arm
up in defense. Officer [Jaques] broke my left arm and wrist. I was able to stand up
and he would not let go of my arm despite my frantic plea. I attempted to walk out
of the cell and down to the other officers with Officer [Jaques] on my back.
(ECF 80-7).
Harrison’s deposition testimony similarly specifies that his wrist was injured while he was
in the cell near the bed:
A:
Q:
A:
...
A:

. . . I tried to point to try to get some help and he grabbed the wrist, man.
In the cell?
In the cell. He popped it, man.
I heard the pop, so something said get out the cell or you’re going to die.

(ECF 80-8, pp. 49:24-25; 50:1-2; 50:17-18).
When questioned by his own attorney, Harrison again confirmed:
Q:
A:
Q:
A:
Q:
A:
Q:
A:

Okay. And I hate to do this to you, but we’re going to go back to when
you’re in the jail cell for the first time. Okay?
Yeah.
And Jack came up to you, you pointed to the camera, you put your left arm
up. Okay?
Uh-huh.
And then Jack grabbed a hold of your arm?
As soon as he did it, it twists, he popped it.
And he popped it?
Yeah.
9

Id. at pp. 157:25; 158:1-10.
Defendants then cite the videotape recording of the events in the holding cell. The video
shows that no force was used against Harrison in the cell, much less any force that would signify
a constitutional violation. The video shows that, after Harrison’s attempt to hang himself with his
shirt, he lay down on the cot inside the cell. (ECF 80-4). After some time, Harrison proceeded to get
up from the cot, placing his hands in the air. Id. At that point, Officer Jaques placed Harrison’s
hands behind his back, slowly and without any force. Id. Contrary to both Harrison’s interrogatory
response and deposition testimony, there is nothing on the video that depicts a violent grab of
Harrison’s wrist. Nor is there any indication of pain on Harrison’s face or any body language that
would accompany the breaking of a person’s wrist. Defendants argue in their motion that nothing
in the video supports Harrison’s assertion that his left wrist was broken as a result of any force on
Officer Jaques’ part.
In his response brief, Harrison does not acknowledge the videotape recording, offer argument
regarding the videotape recording, or attempt to explain the discrepancy between his version of the
events and what is depicted in the videotape recording. Thus, Harrison does not dispute that the
videotape recording contradicts his version of the events given in his interrogatory response and his
deposition testimony.
Similarly, Defendants argue in their Motion for Summary Judgment that the videotape
recording does not show that Harrison escaped out of the cell with Officer Jaques “on his back,”
which contradicts Harrison’s deposition testimony:
A:

All I know by that time he was there talking about some cuff up and pop and
I turned sideways, grabbed him and here we go because I ain’t standing in
that cell. I just tried to hang myself. I’m not going to stand there with him,
10

no. I tried to run, but he knew how to do something with your feet. He knew
how to—he already got the arm.
So he knew how to do some things with your feet and they still—I get
medicine for both of them. He knew how to do something with your feet. He
knew how to almost flip me, but he couldn’t because I already had him
sideways and I was going through the cell and then the people was yelling at
me get off of him like they know his stuff. . . .
So then I– he was just still standing there, he wasn’t saying nothing,
but he still got my arm. So I just turned sideways again and I seen the
ambulance and all of them and I’m about two, three cells to get to the door.
So I picked him up again, come on, I’m not going to stand here and get no
help. So I got all the way out there and stepped outside . . . .
(ECF 80-8, pp. 131:14-25; 132:1-3, 9-15). Again, in his response brief, Harrison does not dispute
the events in the video or offer any explanation for why his version of the events do not appear in
the video.
Defendants argue that Harrison’s conflicting version of the facts should not be credited in
light of the contradictory and undisputed video evidence. Thus, Defendants argue that there is no
genuine issue of material fact for trial and Harrison cannot carry his burden as to his claim of
excessive force against Officer Jaques. The Court agrees. See Scott v. Harris, 550 U.S. 372, 378, 380
(2007). In Scott, the United States Supreme Court held that, “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion
for summary judgment.” Id. at 380. As in Scott, there is no allegation by Harrison that “this
videotape was doctored or altered in any way” nor is there “any contention that what it depicts
differs from what actually happened.” Scott, 550 U.S. at 378. And, the videotape “quite clearly
contradicts the version of the story told by [Harrison].” Id. Harrison’s “version of the events is so
discredited by the record that no reasonable jury [could believe] him.” Id. at 381. The videotape
11

recording does not support a claim that Officer Jaques violated Harrison’s Fourth Amendment
rights. See id.; see, e.g., Boyd v. Pollard, 621 F. App’x 352 (7th Cir. 2015).
Nevertheless, in his response brief, Harrison attempts to create a genuine issue of material
fact by asserting for the first time that Officer Jaques injured his wrist as they were walking out of
the cell with Harrison’s arms being held behind his back. But, Harrison offers no sworn affidavit
or declaration in support of this new version of the facts. Even if Harrison had provided such an
affidavit, “a party cannot create a genuine issue of fact sufficient to survive summary judgment
simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that
flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or
attempting to resolve the disparity.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)
(recognizing the agreement among the circuits on this issue); see also Cocroft v. HSBC Bank USA,
N.A., 796 F.3d 680, 687 (7th Cir. 2015); Abraham v. Washington Grp. Int’l, Inc., 766 F.3d 735, 741
(7th Cir. 2014) (citing Cleveland, 526 U.S. at 806; Pourghoraishi v. Flying J, Inc., 449 F.3d 751,
759 (7th Cir. 2006)). In this case, there is no such affidavit and accompanying explanation; Harrison
offers only the unsupported assertion in his brief.
Although the Court granted Defendants’ Motion to Strike above, the Court briefly addresses
the videotape recording evidence offered by Harrison in support of the assertion that Officer Jaques
injured Harrison’s wrist while leading him out of the cell. The video shows Officer Jaques taking
Harrison’s thumbs/hands behind his back without the use of handcuffs. (ECF 80-4 (9:45:17)).
Officer Jaques then walked Harrison out of the cell from behind. Harrison’s upper arms got lodged
in the cell door, which is immediately followed by the facial reaction noted by Harrison in the
response brief. See (ECF 82, p. 2). Officer Jaques placed Harrison’s thumbs in one of his hands and
used his right arm to assist Harrison, turning Harrison slightly to get out of the cell without touching
12

the door frame. Again, there is no sworn testimony from Harrison that, at the very moment
Harrison’s upper arms hit the door frame, Jaques injured Harrison’s wrist in a show of force.
Harrison has always maintained that Officer Jaques injured his wrist while Harrison was in
the holding cell near his bed and facing Officer Jaques, which is discredited by the video evidence.
And, at no time has Harrison testified that he was injured by Officer Jaques while exiting the holding
cell with his hands behind his back; the unsupported assertion in the response brief does not create
a genuine issue of material fact. The Court grants summary judgment in favor of Defendant Jason
Jaques on Harrison’s § 1983 claim of excessive force in Count I.
2.

Officer Borgetti and Officer Morris
Defendants also move for summary judgment on the excessive force claims brought against

Officer Borgetti and Officer Morris. Defendants note that in his deposition, Harrison testified that
Officer Borgetti and Officer Morris assaulted him once he left the cell:
A:

. . . . So I got all the way out there and stepped outside. They got cameras
everywhere at the hospital–I mean, at the jail all over. I can get some help
here. Get out there and by that time they got me. There was three of them.
Picked me up, slammed me down and then I told you what happened with
[Jaques].

(ECF 80-8, p. 132:14-21). Similarly, Harrison’s response to Interrogatory No. 12 provides,
appearing to refer to Officer Morris as the “lieutenant”:
The ambulance then arrived and I was placed on the cart. Officers attempted to cuff
me to the gurney using my broken arm. I was in severe pain. The lieutenant jumped
on top of me and knocked all the wind out of me and blood came out of my mouth.
I passed out and woke up in the hospital.
(ECF 80-7). Harrison elaborates in his deposition testimony that this alleged use of excessive force
occurred outside the ambulance, after being secured on the gurney:

13

A:

Q:
A:
Q:
A:
Q:
A:
Q:
A:

. . . . I mean, the lieutenant, the Devil Devil2 come around here and jumped
up in the air. You know all them keys he had on? I’ll show you. Want to see
the marks? I still got those and that’s been a year and a half ago. I still got
those bruises. You see them a year and a half? You see the bruise? You know
what that’s from? That means somebody came down with some keys because
you never had those.
Okay. Let me ask you —
He came down. Yes, ma’am.
Let me ask: Where did that happen, the bruises on your stomach?
I’m going to show you. You just stopped the conversation.
No. I’m —
I’m telling you about the lieutenant.
Where at?
I haven’t even got in the ambulance yet.

(ECF 80-8, pp. 22:14-25; 23:1-7).
Defendants then cite the videotape recording of the incident that shows Officer Jaques
leading Harrison to the gurney. As Officer Jaques attempted to help place Harrison onto the gurney,
Harrison began resisting the efforts of Officer Jaques and the paramedics. The video shows Harrison
turning his head toward Officer Jaques and planting his feet on the ground in an act of resistance.
In an attempt to counter Harrison’s efforts to resist being secured to the gurney, Officer Jaques
leaned Harrison forward, applied pressure to gain control of Harrison, and placed Harrison’s upper
body on the gurney. Officer Morris then assisted with lifting Harrison’s legs onto the gurney. For
a short while afterwards, Officers Morris and Jaques maintained their position to ensure Harrison’s
compliance with the paramedics’ attempt to secure Harrison for transfer to the hospital. Nowhere
in the video is there an assault by the three officers with Officer Morris jumping on Harrison with
sufficient force to knock the wind out of him or cause blood to exit his mouth. Also, the video does
not show any contact by Officer Borgetti with Harrison. Nor does the video show Harrison
unconscious after he was placed on the gurney; in fact, once Harrison was in the ambulance, the

2

It is believed that Harrison refers to Officer Morris as the “Lieutenant” and as the “Devil Devil.”

14

ambulance can be seen violently rocking back and forth and the paramedics motion for the officers’
help. In his response brief, Harrison offers no response in support of these claims, abandoning them.
See Palmer, 327 F.3d at 597-98. Harrison has offered no evidence to support a claim of excessive
force during these events outside of the ambulance.
In the Motion for Summary Judgment, Defendants note that Harrison also alleges that the
use of excessive force caused injuries to his mouth when he was restrained in the back of Borgetti’s
patrol car on April 22, 2014. See (ECF 41, ¶¶ 22-24). In his Response to Interrogatory No. 12,
Harrison wrote, in relevant part:
After the hospital an officer came to transport me back to the Griffith Police
Department. I was placed in the back of the squad car. When he attempted to buckle
my seatbelt he hit me in the mouth with the seatbelt buckle and knocked my tooth
out. I was taken to the Griffith Police Department then transported to the Lake
County Jail. The Lake County Jail took pictures prior to allowing me to be booked.
(ECF 80-7).
Defendants also note Harrison’s deposition testimony:
A:
Q:
A:
Q:
A:

...
A:
Q:
A:

. . . . When the young kid took me from the hospital—
That’s what I want to talk about now. Yes, tell me.
And he took me back to the same jail that I hung myself, —
yeah.
— but he had — before that he threw a buckle to try to get it over me, but I
had the air bubble. It couldn’t fit, so it hit me in the mouth with him throwing
the buckle.
. . . . So he threw it trying to throw it over the—he tried to throw it over the
air bubble.
The cast?
And the lady told him you can’t put him in the car, you have to take him to
the hospital through an ambulance, you can’t take him to the — do anything.
You have to take him and he said, man—she told him something and he tried
to throw the buckle and it didn’t make it across, so it caught the tooth and it
knocked one, two, three of them in. You know how you throw it? It knocked
them in and that’s where the blood all came from.

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(ECF 80-8, pp. 61:5-14, 22-24; 62:1-9). Harrison then maintains that he was ultimately transported
to the Lake County Jail where pictures were taken. Id. at p. 31.
First, the evidence of record is that Officer Borgetti was not the officer who transported
Harrison on April 22, 2014. Second, as argued by Defendants, the Lake County Jail booking
photograph does not appear to show any injury to Harrison’s mouth. Defendants argue that under
the objective standard, even if Harrison could present a material fact as to when the alleged mouth
injury occurred, any alleged injury to his mouth attributed to the seatbelt was unintentional based
on Harrison’s own testimony and interrogatory response and, thus, cannot form the basis of an
excessive force claim. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015) (recognizing that
the “defendant must possess a purposeful, a knowing, or possibly a reckless state of mind” because
“‘liability for negligently inflicted harm is categorically beneath the threshold of constitutional due
process’” (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998))). Harrison offers no
response in support of this claim of an injury to his mouth by Officer Borgetti or any other
transporting officer in his response brief. Thus, he has abandoned this claim, and there is no genuine
issue of material fact that would support a claim of excessive force during the transport.
The Court grants summary judgment in favor of Defendants on Harrison’s claims in Count
I for excessive force against Defendants Officers Borgetti and Morris as well as in relation to
Harrison’s transport on April 22, 2014.
B. Counts III and IV – § 1983 Deprivation of Medical Care
To succeed on his § 1983 claim for deliberate indifference to his medical needs, Harrison
must demonstrate that the officers’ actions were “objectively unreasonable under the
circumstances.” Estate of Perry v. Wenzel, — F.3d —, —, 2017 WL 4112409, at *8 (7th Cir. Sept.
18, 2017) (quoting Williams v. Rodriquez, 509 F.3d 392, 403 (7th Cir. 2007)). The Court considers
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four factors when determining whether an officer’s response to the medical needs of a person in
custody is objectively unreasonable: (1) whether the officer has notice of the detainee’s medical
need; (2) the seriousness of the medical need; (3) the scope of the requested treatment; and (4) police
interests, including administrative, penological, or investigatory concerns. Ortiz v. City of Chicago,
656 F.3d 523, 530 (7th Cir. 2011) (citing Williams, 509 F.3d at 403).
In Count III of the First Amended Complaint, Harrison alleges that the officers deprived him
of necessary medical care when they took him to the Griffith Police Department instead of
dispatching paramedic assistance to treat his apparent manic depressive episode, which he further
alleges proximately caused his suicide attempt. First, the named officers in this lawsuit were not the
officers who responded to an earlier March 8, 2014 call to Harrison’s residence, which is the
incident Harrison references to establish prior knowledge of his medical condition. See (ECF 80-9).
Harrison has offered no evidence that the named officers in this case were aware of the prior
incident or had notice of any medical condition suffered by Harrison. Second, even if knowledge
regarding a medical disorder could be imputed to the officers in this case, there is no evidence to
suggest that they had notice of any actual medical attention needed by Harrison on April 18, 2014.
See (ECF 80-1; 80-2). There is no evidence that anyone told the officers that Harrison was suicidal;
there is no evidence that anyone requested treatment for Harrison. Defendants move for summary
judgment on the claim in Count III on these bases. Harrison offers no response in support of this
claim and offers no evidence to support a claim of deliberate indifference to his medical needs on
April 18, 2014, abandoning the claim. See Palmer, 327 F.3d at 597-98. Because Harrison has not
offered any evidence to create a genuine issue of material fact for trial on this claim, the Court grants
summary judgment in favor of Defendants on Count III of the First Amended Complaint.

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In Count IV, Harrison alleges that, after the transport from St. Catherine’s Hospital on April
22, 2014 (Harrison incorrectly alleges the date as April 24, 2014), he was in obvious need of medical
care. Harrison further alleges in Count IV that Chief Mance ordered Officer Borgetti to transport
Harrison to the Lake County Jail without first providing Harrison with immediate medical attention.
In the Motion for Summary Judgment, Defendants argue that Harrison has produced no evidence
in support of this claim. Defendants note that there is no evidence to suggest that Chief Mance had
knowledge regarding Harrison’s alleged mouth injury let alone that the mouth injury could have
posed a serious health problem. Defendants argue that, despite testifying that he was taken to the
hospital by a friend after being released from the Lake County Jail, Harrison has not produced any
medical records demonstrating treatment for a serious medical need on the date in question. Nor is
there any evidence that Harrison requested treatment. Again, Harrison offers no response or any
evidence in support of this claim in his response brief, abandoning the claim. See Palmer, 327 F.3d
at 597-98. Because Harrison has identified no facts to support this claim, the Court grants summary
judgment in favor of Defendants on Count IV of Harrison’s First Amended Complaint.
C. Monell Claims
Defendants move for summary judgment on Counts II and V of the First Amended
Complaint, in which Harrison alleges § 1983 failure to train claims against Chief Greg Mance, the
Town of Griffith, and the Griffith Police Department based on the allegations of excessive force in
Count I and of deprivation of medical care in Counts III and IV. The standard for municipal liability
is set forth in Monell v. Department of Social Services of the City of New York , 436 U.S. 658 (1978).
Municipalities cannot be held liable for § 1983 violations under the theory of respondeat superior;
rather, a local government may be held liable for a constitutional deprivation only “when [the]
execution of a government’s policy or custom . . . inflicts the injury” for which the government is
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sued under § 1983. Monell, 436 U.S. at 694; see also Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d
650, 675 (7th Cir. 2012). First, because Harrison’s claims of constitutional deprivations (excessive
force and deprivation of medial care) do not survive summary judgment, there is no basis for Monell
liability. Second, Harrison does not offer any argument or evidence supporting his claims of
municipal liability in his response brief; rather, he abandons his Monell claims. See Palmer, 327
F.3d at 597-98. There is no evidence in the record of a municipal policy or practice or of the actions
of a policymaker leading to a deprivation of Harrison’s constitutional rights. Thus, the Court grants
summary judgment in favor of Defendants Mance, the Town of Griffith, and the Griffith Police
Department on all claims brought against them in Counts II and V.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the Motion to Strike Non-Sworn
Statements Contained in Plaintiff’s Response to Defendants’ Motion for Summary Judgment [DE
85] and GRANTS the Motion for Summary Judgment [DE 79].
The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of Defendants
Town of Griffith, Griffith Police Department, Jason Jaques, Tony Morris, Greg Mance, and David
Borgetti and against Plaintiff Gary Joe Harrison.
So ORDERED this 19th day of October, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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