Kuhlmey v. City of Hammond et al
Filing
51
OPINION AND ORDER The court GRANTS the Doe Defendants' 35 motion for summary judgment, GRANTS in part the City Defendants' 33 motion for summary judgment on the claims for unreasonable seizure, excessive force, and failure to train or supervise; DECLINES to exercise jurisdiction over the remaining state law claim and DISMISSES the remaining claim for lack of jurisdiction. Signed by Senior Judge James T Moody on 9/26/18. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
NANCY KUHLMEY,
Personal Representative of the Estate
of John Edward Brown, II, Deceased,
Plaintiff,
v.
THE CITY OF HAMMOND, et al.,
Defendants.
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No. 2:16 CV 56
OPINION and ORDER
Plaintiff Nancy Kuhlmey, as personal representative of the Estate of John
Edward Brown, II, deceased, (“plaintiff”) brings this suit following the death of John
Edward Brown, II, from a fatal gunshot wound. (DE # 1.) Plaintiff has sued the City of
Hammond (“the City”), Hammond Chief of Police Brian Miller (solely in his official
capacity as Chief of Police for the Hammond Police Department) (“Miller”), and four
unnamed police officers from the Hammond Police Department referred to in the
complaint as John Doe, Jack Doe, Jane Doe, and Janet Doe (the “Doe Defendants”). (DE
# 1 at 1.)
The matter is now before the court on two motions for summary judgment filed
by the defendants. Defendants City of Hammond and Brian Miller (the “City
Defendants”) filed a joint motion for summary judgment (DE # 33), and the Doe
Defendants filed a joint motion for summary judgment (DE # 35). Plaintiff has
responded to both pending motions. (DE ## 42, 43, 44, 45.) Replies were filed by both
the City Defendants (DE # 48) and the Doe Defendants (DE # 49). These motions are
fully briefed and are ripe for ruling.
I.
BACKGROUND1
On February 16, 2014, the Hammond Police Department received a call that a
female was stabbed in the mouth by her husband. (DE # 42-2 at 2.) Officers Carmen
Ramirez and Michael Elkmann arrived at the scene. (Id. at 3.) Elkmann says he observed
John E. Brown, II, holding two large knives. (DE # 27-6 at 10.) Plaintiff, citing a witness,
asserts that Brown had only one knife. (DE # 42-6 at 30–31.)
Elkmann says that Brown began moving towards him, while still holding the
knives. (DE # 37-6 at 28, 31.) Another witness states that Brown moved towards the
officer “a step or two.” (DE # 42-7 at 21.) Elkmann then discharged his firearm three
times at Brown. (DE # 37-6 at 15.) Brown received two gunshot wounds from the
shooting. (DE # 42-3 at 2.) As a result of the shooting, John E. Brown, II, was
pronounced dead on February 16, 2014 at 9:46 p.m. (Id.)
Based on these events, plaintiff filed a complaint on February 2, 2016, against the
City of Hammond, Miller, and the four Doe Defendants. (DE # 1.) Plaintiff brings three
claims: (1) unreasonable seizure and excessive force, pursuant to 42 U.S.C. § 1983,
against the Doe Defendants in their individual and official capacities; (2) failure to train
or supervise, pursuant to 42 U.S.C. § 1983, against the City and Miller; and (3) wrongful
1
In the summary that follows, any unattributed facts are undisputed. This
summary provides an overview. Additional relevant facts will be referred to in the
analysis that follows.
2
death, pursuant to Indiana Code § 34-23-1-1, against the Does defendants in their
individual and official capacities. (DE # 1 at 7–14.) Discovery has been completed in this
case, and defendants have moved for summary judgment on all claims. The court will
now address the pending motions.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after
adequate time for discovery, 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). “[S]ummary judgment is appropriate—in fact, is mandated—where there are no
disputed issues of material fact and the movant must prevail as a matter of law. In other
words, the record must reveal that no reasonable jury could find for the non-moving
party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994)
(internal citations and quotation marks omitted).
The moving party bears the initial burden of demonstrating that these
requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th
Cir. 2010). “[T]he burden on the moving party may be discharged by ‘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. Once the moving party has met his
burden, the non-moving party must identify specific facts establishing that there is a
genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);
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Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324).
In doing so, the non-moving party cannot rest on the pleadings alone, but must present
fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of
Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion
for summary judgment, the court must construe all facts in a light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC
Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).
III.
DISCUSSION
A.
Statement of Genuine Disputes
First, both sets of defendants assert that the court should enter summary
judgment because plaintiff has failed to comply with Northern District of Indiana Local
Rule 56-1(b)(2) in her response to the motions for summary judgment. (See DE ## 48 at
1; 49 at 1.) That rule states that a response brief to a motion for summary judgment—or
its appendix—“must include a section labeled ‘Statement of Genuine Disputes’ that
identifies the material facts that the party contends are genuinely disputed so as to
make a trial necessary.” N.D. Ind. L.R. 56-1(b)(2).
The defendants are correct that plaintiff has failed to include such a section in her
response to the motions for summary judgment.2 (See DE # 43.) However, she does
include a “Statement of Facts” in the response. (See DE # 43 at 2–5.)
2
Plaintiff filed a single response brief to both motions for summary judgment,
which appears on the docket as both docket entry number 43 and docket entry number
45.
4
Although plaintiff has not strictly complied with the local rules, this does not
require the court to strike her factual statements. Rather, “it is clear that the decision
whether to apply the rule strictly or to overlook any transgression is one left to the
district court’s discretion.” Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011) (affirming a
district court’s decision to consider a defendant’s summary judgment motion although
it did not comply strictly with all formal requirements of the local rule).
In the case at hand, plaintiff has presented a factual statement in her response
brief which outlines the relevant facts of the case from her perspective and cites to the
record in support of those facts. It may not be perfect compliance, but local rules are
“not intended to provide a maze of technical traps to complicate and delay litigation
without advancing merits.” Stevo, 662 F.3d at 887. Therefore, the court will not grant
summary judgment on this basis.
B.
Unreasonable Seizure and Excessive Force
Plaintiff brings her first claim under 42 U.S.C. § 1983 for unreasonable seizure
and excessive force and for violations of the “Fourth, Fifth, Eighth, and Fourteenth
Amendments.” (DE # 1 at 7–10.) Plaintiff brings this claim against the Doe Defendants
in both their individual capacities and their official capacities as agents of the City. (See
DE # 1 at 14.)
The Doe Defendants move for summary judgment on all claims against them in
their individual capacities. However, before they address the merits of this first claim,
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the Doe Defendants move for summary judgment on the basis that plaintiff failed to
identify any of them by name before the statute of limitations expired.
Plaintiff’s § 1983 claim against the Doe Defendants accrued on February 16, 2014,
on the date of the shooting. Plaintiff does not dispute this assertion. (See DE # 43.)
Actions brought under § 1983 must be commenced within a period permitted by the
forum state’s personal injury statute of limitations. Coopwood v. Lake Cnty. Cmty. Dev.
Dep’t, 932 F.2d 677, 678–79 (7th Cir. 1991). In Indiana, there is a two-year statute of
limitations governing actions for personal injury. Ind. Code § 34-11-2-4. Therefore, the
statute of limitations in this case has expired.
A plaintiff cannot, “after the statute of limitations period, name as defendants
individuals that were unidentified at the time of the original pleading.” Jackson v. Kotter,
541 F.3d 688, 696 (7th Cir. 2008); see also Gomez v. Randle, 680 F.3d 859, 864 n.1 (7th Cir.
2012) (“Accordingly, once the statute of limitations period expires, [plaintiff] cannot
amend his complaint to substitute a new party in the place of ‘John Doe.’”) According
to the Seventh Circuit, “it is pointless to include lists of anonymous defendants in
federal court; this type of placeholder does not open the door to relation back under
[Federal Rule of Civil Procedure] 15, nor can it otherwise help the plaintiff.” Wudtke v.
Davel, 128 F.3d 1057, 1060 (7th Cir. 1997) (internal citations omitted).
Discovery has now closed in this matter, which means plaintiff has been given
the opportunity to learn the names of the officers who were present at the scene of the
shooting. Nevertheless, plaintiff has made no attempt to amend her pleading to name
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any of the Doe Defendants. Even in plaintiff’s response to the motion for summary
judgment, she does not directly ask the court for leave to amend the complaint to name
any of the Does. However, she does argue generally that Rule 15(c)(1)(C) of the Federal
Rules of Civil Procedure allows for amendment and relation back where “the party to
be brought in by amendment . . . received such notice of the action that it will not be
prejudiced in defending on the merits; and . . . knew or should have known that the
action would have been brought against it, but for a mistake concerning the proper
party’s identity.”
In order for Rule 15(c)(1)(C) to apply, plaintiff must have made a mistake in
determining the proper defendants’ identities. But, the Seventh Circuit has repeatedly
held that a “plaintiff’s lack of knowledge about a defendant’s identity is not a ‘mistake’
within the meaning of Federal Rule of Civil Procedure 15(c) such that the plaintiff could
amend his complaint outside the statute of limitations period upon learning the
defendant’s identity.” Gomez, 680 F.3d at 864 n.1; see also Jackson, 541 F.3d 688, 696 (7th
Cir. 2008) (“Not knowing a defendant’s name is not a mistake under Rule 15.”); Mihelic
v. Will Cnty., Ill., 826 F. Supp. 2d 1104, 1115 (N.D. Ill. 2011) (“Establishing the existence
of a mistake is a threshold requirement in a 15(c)(1) inquiry . . . .’” (quoting King v. One
Unknown Fed. Corr. Officer, 201 F.3d 910, 914 (7th Cir. 2000))). This is true even if the
unnamed defendants had knowledge that a lawsuit might be brought against them.
King, 201 F.3d at 914 (“[W]e have emphasized that the mistake requirement is
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independent from whether the purported substitute party knew that action would be
brought against him.”).
Plaintiff cites Stewart v. Special Adm’r of the Estate of Mesrobian, 559 Fed App’x. 543
(7th Cir. 2014), in support of her argument that Rule 15(c)(1)(C) applies to her case to
allow relation back. But nothing in that decision runs counter to the Seventh Circuit
holdings listed above which support the notion that a naming a John Doe is not a
mistake under the Rule.
Accordingly, the statute of limitations bars plaintiff’s claims against the
individual officers. Therefore, summary judgment is appropriate in favor of the Doe
Defendants and the claims against the Doe Defendants—in their individual capacities—
are dismissed.
Additionally, as stated above, plaintiff also brought this first claim against the
Doe Defendants in their official capacities. This official capacity claim is treated as a
claim against the City. See Kentucky v. Graham, 473 U.S. 159, 165–66 (1986). However, as
the City Defendants argue in their motion to dismiss, the City cannot be held liable on
this claim under a theory of respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
691 (1978). A municipality is “not vicariously liable for the constitutional torts of their
agents” and may only be held liable if the deprivation of the constitutional right is
caused by their own decisions or policies. Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir.
1992). Plaintiff’s second claim, for failure to train or supervise, attempts to allege such a
policy. (DE # 1 at 11.) However, plaintiff’s first claim for unreasonable seizure and
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excessive force does not refer to any municipal policy or custom, and so summary
judgment is also appropriate on this claim in favor of the City Defendants, as well.
C.
Failure to Train or Supervise
Plaintiff’s second claim is for failure to train or supervise, under 42 U.S.C. § 1983,
against the City and Miller in his official capacity. (DE # 1 at 11–13.) The claim against
Miller in his official capacity is equivalent to the claim against the City. See Kentucky v.
Graham, 473 U.S. 159, 165–66 (1986). Therefore, the court will dismiss the claim against
Miller as redundant.
Next, for the City to be liable under § 1983, plaintiff must show either “(1) an
express policy that, when enforced, causes a constitutional deprivation; (2) a
widespread practice that, although not authorized by written law or express municipal
policy, is so permanent and well settled as to constitute a custom or usage with the
force of law; or (3) an allegation that the constitutional injury was caused by a person
with final policymaking authority.” Roach v. City of Evansville, 111 F.3d 544, 548 (7th Cir.
1997). To more specifically succeed on a failure-to-train claim, the plaintiff must show
that “the City’s employee violated his constitutional rights, that the City had a policy or
custom of failing to train its employees, and that the failure to train caused the
constitutional violation.” Id. at 549.
In the case at hand, plaintiff alleges police officers in the Hammond Police
Department do not receive adequate training on the use of firearms. (DE # 43 at 11.) She
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continues, “[a]pparently, the policy of the Hammond Police Department is to leave it to
the individual[] officer’s discretion as to when to use deadly force.” (Id.)
To support this policy allegation, plaintiff cites portions of Officer Michael
Elkmann’s deposition where he testified that officers do not receive training on when to
draw their firearms, and that such a decision is left up to the individual officer’s
discretion. (DE # 42-4 at 15–16.) However, despite the evidence of a lack of training
regarding drawing firearms, the evidence before the court demonstrates Hammond
Police officers are trained regarding when to use their firearms to inflict deadly force.
Although not cited by plaintiff, Elkmann stated that in his firearms training, he was
trained to shoot “to stop a forcible felony from occurring and prevent serious bodily
harm or death to myself or someone else.” (Id. at 35–36.) However, the ultimate
determination of when to use force to stop such a felony or harm is left up to the
officer’s discretion. (Id. at 36.)
The undisputed evidence in the record does not support plaintiff’s argument that
Hammond Police officers received no training on the use of firearms or that the use of
deadly force is completely up to the discretion of the officers. Given Elkmann’s
statement, he did receive training and guidelines on when to shoot his weapon, which
limited his discretion to some extent. Furthermore, courts find it acceptable that officers
are given some discretion in deciding when to use deadly force. The Seventh Circuit has
written “we remain cognizant of the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly
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evolving—about the amount of force that is necessary in a particular situation.” Abbot v.
Sangamon County, Ill., 705 F.3d 706, 724 (7th Cir. 2013) (internal quotation marks
omitted). “As a result, we give considerable leeway to law enforcement officers’
assessments about the appropriate use of force in dangerous situations.” Id. at 724–25
(internal quotation marks omitted).
Plaintiff also highlights Elkmann’s statement that he did not receive training for
the “exact circumstances” which occurred on the night he shot John Edward Brown, II.
(DE # 42-4 at 35.) However, he immediately clarified that he had been trained on how to
act in “similar circumstances” (id.), and it cannot be expected that a police officer could
be trained how to act in every possible set of circumstances. Moreover, “[a] Monell
failure-to-train plaintiff must do more than demonstrate that an ‘injury or accident
could have been avoided if an officer had had better or more training, sufficient to
equip him to avoid the particular injury causing conduct,’ since even adequately trained
officers make mistakes.” Young v. Village of Romeoville, No. 10 C 1737, 2011 WL 1575512,
*4 (N.D. Ill. April 27, 2011) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 391
(1989)).
Instead, to satisfy § 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.” City of Canton, 489 U.S. at 388. Only then “can such a
shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under
§ 1983.” Id. at 389. As the Supreme Court recognized in Bd. of County Com’rs of Bryan
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County, Okl. v. Brown, 520 U.S. 397, 410 (1997), “‘deliberate indifference’ is a stringent
standard of fault, requiring proof that a municipal actor disregarded a known or
obvious risk of his action.” Thus, when city policymakers are on notice that a particular
omission in their training program causes city employees to violate citizens’
constitutional rights, the city may be deemed deliberately indifferent if the
policymakers choose to retain that program. Id. at 407. A less stringent standard for a
failure-to-train claim “would result in de facto respondeat superior liability on
municipalities.” Canton, 489 U.S. at 392.
That is why “[a] pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes
of failure to train.” Connick v. Thompson, 563 U.S. 51, 62 (2011). The City’s continued
adherence to an approach that they know or should know has failed to prevent
constitutional violations may establish the “deliberate indifference” necessary to trigger
liability. Id. at 62–63. For “[w]ithout notice that a course of training is deficient in a
particular respect, decisionmakers can hardly be said to have deliberately chosen a
training program that will cause violations of constitutional rights.” Id.
Here, plaintiff has not presented evidence of a pattern of similar constitutional
violations. Nor has she presented any evidence of an awareness on the part of the City
that—by training its officers as it did—it was creating constitutional violations.
Instead, plaintiff seems to rely on the supposition that by allowing officers some
discretion in using their firearms, and by not training them in the exact circumstances of
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this case, there must be some actionable failure on the part of the City because the risk
of constitutional violations was obvious. However, plaintiff’s evidence alone is not
enough to demonstrate that a municipal actor disregarded a known or obvious risk. For
the reasons stated above, some discretion is allowed when officers encounter changing
circumstances. Allowing officers leeway to adapt to their individual situations does not
create an obvious risk of constitutional violations.
Therefore, the court finds there is no genuine issue of fact for trial and that
plaintiff has failed to provide support for this claim. Summary judgment is appropriate
in the City Defendants’ favor on this issue, and the claim for failure to train or supervise
is dismissed.
D.
Wrongful Death
Given the court’s decisions above, the sole remaining claim in this case is the
wrongful death claim under Indiana law. Plaintiff brings this claim against the Doe
Defendants in both their individual capacities and their official capacities as agents for
the City. (See DE # 1 at 14.) Although the Doe Defendants have been dismissed from the
case, the official capacity claim against them survives because it is treated as a claim
against the City. See Kentucky v. Graham, 473 U.S. 159, 165–66 (1986).
Pursuant to 28 U.S.C. § 1367(a), the court originally had supplemental
jurisdiction over the wrongful death state-law claim. But now, all federal claims have
been dismissed from the case. The supplemental jurisdiction statute provides that the
district court “may decline to exercise supplemental jurisdiction” over state-law claims
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if the court “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). The court has broad discretion in making this decision. RWJ Mgmt. Co., Inc.
v. BP Prods. N. Am., Inc., 672 F.3d 476, 478 (7th Cir. 2012) (“When federal claims drop
out of the case, leaving only state-law claims, the district court has broad discretion to
decide whether to keep the case or relinquish supplemental jurisdiction over the statelaw claims.”). Furthermore, there is a “presumption” that courts will relinquish
jurisdiction over supplemental state-law claims where the federal claims drop out of the
case. Id. at 479. “The presumption is rebuttable, but it should not be lightly abandoned,
as it is based on a legitimate and substantial concern with minimizing federal intrusion
into areas of purely state law.” Id.
The Seventh Circuit has identified three situations that may displace the
presumption, namely:
(1) the statute of limitations has run on the pendent claim,
precluding the filing of a separate suit in state court; (2)
substantial judicial resources have already been committed,
so that sending the case to another court will cause a
substantial duplication of effort; or (3) when it is absolutely
clear how the pendent claims can be decided.
Sharp Elecs. Corp v. Metro. Life Ins. Co., 578 F.3d 505, 514–15 (7th Cir. 2009).
Regarding the first exception, plaintiff is not precluded from filing a separate
suit. Plaintiff may refile the action in state court pursuant to 28 U.S.C. § 1367(d) and
Indiana Code § 34-11-8-1.
Regarding the second exception, the court has devoted few judicial resources to
resolving the wrongful death claim. Excluding discovery orders and other procedural
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orders, the court has previously issued only one substantive order in this case. In that
order, the court denied the City Defendants’ motion to dismiss. (DE # 10.) That motion
challenged plaintiff’s failure to train claim against the City Defendants, and not the
wrongful death claim. Therefore, the court has not yet examined the merits of the statelaw claim. See RWJ Mgmt. Co., Inc., 672 F.3d at 481 (affirming relinquishment of
jurisdiction where “the extensive pretrial activity was largely attributable to discovery
disputes, not the merits of the state-law claims”).
The small amount of resources devoted to this case is unlike the efforts expended
in Miller Aviation v. Milwaukee County Board of Supervisors, 273 F.3d 722 (7th Cir. 2001), in
which the Seventh Circuit reversed a district court’s decision to relinquish jurisdiction
where the lower court had held 9 hearings and issued 19 orders, including a 71-page
decision. The court has expended relatively few judicial resources, and therefore, there
will be no substantial duplication of efforts.
Additionally, the court is not required to retain jurisdiction due to the length of
time this case has been under its jurisdiction. Although this case was filed over two
years ago, the Seventh Circuit has upheld an order relinquishing jurisdiction “just
before trial after five years of discovery.” Olive Can Co., Inc. v. Martin, 906 F.2d 1147,
1153 (7th Cir. 1990). Moreover, the question of whether or not to retain supplemental
jurisdiction did not arise until the federal claims were dismissed, earlier in this order.
For these reasons, the court concludes that the second exception to the
presumption does not apply. This is not a relinquishment that would “clearly
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disserve[ ]” judicial economy. See Williams Elecs. Games, Inc. v. Garrity, 479 F. 3d 904, 906
(7th Cir. 2007).
As to the third exception, the court notes, again, that it has not yet addressed the
merits of the state-law claim, and therefore it is not absolutely clear to this court how
the claim will be decided. In their motion for summary judgment, the City Defendants
ask the court to reach the merits of the wrongful death claim and to dismiss the claim
based on the state-law doctrine of contributory negligence. (DE # 34 at 11.) In making
this argument, they also ask the court to conclude that plaintiff has violated the Indiana
penal code, in order to find negligence per se. (Id.) Such determinations require an
understanding of Indiana state law that is more likely to be found in an Indiana state
court with relative expertise in those areas. Therefore, the third exception to the
presumption does not apply.
For the foregoing reasons, the court finds no reason to rebut the presumption of
relinquishment of jurisdiction.
IV.
CONCLUSION
For the foregoing reasons, the court
(1) GRANTS the Doe Defendants’ motion for summary judgment (DE # 35);
(2) GRANTS in part the City Defendants’ motion for summary judgment (DE
# 33) on the claims for unreasonable seizure, excessive force, and failure to train or
supervise;
(3) DECLINES to exercise jurisdiction over the remaining state law claim; and,
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(4) DISMISSES the remaining claim for lack of jurisdiction.
SO ORDERED.
Date: September 26, 2018
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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