Clemons v. City of Hobart et al

Filing 69

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 48 Officer Viator's Motion for Summary Judgment; DENYING 52 CEC Entertainment Inc's Motion for Summary Judgment; GRANTING 58 Motion for Summary Judgment filed by Sergeant Clausse n, City of Hobart and the City of Hobart Police Department. This matter is REFERRED to Magistrate Judge Andrew P Rodovich for purposes of holding a settlement conference within 60 days of the date of this order. The court will set a trial date under separate order, if necessary. Signed by Senior Judge James T Moody on 3/13/19. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAMON CLEMONS,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF HOBART, CITY OF HOBART
)
POLICE DEPARTMENT, OFFICER G.
)
VIATOR #104, in his individual and official )
capacity, SERGEANT CLAUSSEN, in his
)
individual and official capacity, and
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CEC ENTERTAINMENT, INC.,
)
)
Defendants.
)

No. 2:17 CV 11

OPINION and ORDER
I.

BACKGROUND
Officer G. Viator, a police officer with the Lake Station Police Department, was

“working security”1 at the Chuck E. Cheese restaurant in Hobart, Indiana, on October
19, 2014. (DE # 50-6 at 1.) Plaintiff Damon Clemons was also there; he had accompanied

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The circumstances surrounding Officer Viator’s “work” at Chuck E. Cheese that
night – and in particular, who he was working for and in what capacity – is terribly
murky. David Deck, Deputy General Counsel of CEC, attests that Officer Viator was an
“off-duty police officer who was assigned by an officer of the City of Hobart’s Police
Department in charge of scheduling officers assigned to the subject Chuck E. Cheese’s
restaurant.” (DE # 54-3 at ¶ 6.) This is interesting, as by all accounts Officer Viator was
employed by the Lake Station Police Department, not the City of Hobart Police
Department. But the situation only gets more foggy, because CEC appears to avoid the
issue of whether it paid Officer Viator in its briefing. Specifically, in a section of the brief
devoted to compensation, where one would reasonably expect compensation to be
addressed, CEC provides one sentence: a recitation of Deck’s statement that Officer
Viator was assigned by the City of Hobart’s Police Department. (DE # 53-1 at 8.) It is
unclear whether opacity regarding this subject was strategic or simple oversight, but the
murkiness persists.

his brother, JR Clemons, and his niece to the restaurant. Pl. Dep. 31 (DE # 61-1). At one
point, JR discovered that their coats had been moved by other individuals, and an
argument broke out between them and JR. Pl. Dep. 33-34. According to plaintiff’s
version of the events, by the time he got over to JR, Officer Viator was already on the
scene. Pl. Dep. 35:6-9.
Video surveillance of the restaurant (DE # 57, Exs. B, C, D) reveals that plaintiff
interacted with Officer Viator while Officer Viator was attempting to handle JR. (DE #
57, Ex. D, at 5:29:13-20.) The video shows plaintiff inserting his hands into the space
between Officer Viator and JR. At one point, plaintiff places his hand directly in front of
Officer Viator’s face, appearing to block Officer Viator’s view of JR. (Id. at 5:29:17.)
Officer Viator argues in his brief that plaintiff put both hands on his arm (DE # 49-1 at
3), while plaintiff asserts that he “never interfered” and was merely telling JR to “cuff
up.” Pl. Dep. 36:15-17, 121:17.
The video evidence shows that plaintiff then moved back a few feet. (DE # 57, Ex.
D, at 5:29:20-21.) Plaintiff claims that, at this point, a Chuck E. Cheese manager
instructed plaintiff to stay where he was. Pl. Dep. 37:5-9. Plaintiff asserts that he felt that
another patron was about to hit him, so he attempted to move away, but the manager
blocked him with an arm. Pl. Dep. 37-39. Plaintiff claims that he tried to go under his
arm, and the manager tried to get him in a choke hold. Pl. Dep. 40:14-22.
Next, according to plaintiff, the manager attempted to restrain him by the legs.
Pl. Dep. 126:7-10. Plaintiff admits that he attempted to avoid being restrained during

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this time. Pl. Dep. 119:21-22 (“I broke my legs free with my feet.”); Pl. Dep. 119:14-16
(“He was frustrated because he couldn’t get ahold of me ‘cause I kept moving.”); Pl.
Dep. 125:17-18 (“I basically was trying not to let him get a grip on me, that’s all.”). Then,
Officer Viator hit him in the eye. Pl. Dep. 126:7-10. Plaintiff claims he was then told
“[g]ive me your hands,” at which point he complied and was handcuffed. Pl. Dep.
126:13-17.
After this, plaintiff alleges he was slammed “right on his face.” Pl. Dep. 126:1415. Plaintiff further alleges that he was then punched in the ribs and face by Officer
Viator, while the manager grabbed his handcuffs and twisted his hands and fingers. Pl.
Dep. 127:5-6; 129:4-9. Ultimately, plaintiff suffered a lacerated cornea, optical floor
damage, and an eye socket that was cracked in three different places. Pl. Dep. 43:24-25,
44:1-5.
Plaintiff sued the City of Hobart, the City of Hobart Police Department, another
officer named Sergeant Claussen (collectively, “the City defendants”), Officer Viator,
and CEC Entertainment, Inc. (“CEC”). (DE # 3-1.) Plaintiff’s suit alleges that defendants
committed state and federal constitutional violations (specifically, unreasonable search
and seizure, false arrest, false imprisonment, and excessive use of force in violation of
the United States Constitution, and false arrest and false imprisonment in violation of
the Constitution of the State of Indiana), and the state law torts of battery and
intentional infliction of emotional distress (“IIED”). (Id.)

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Officer Viator, CEC, and the City defendants have each filed a motion for
summary judgment on all claims. (DE ## 48, 52, 58.) The briefing period has expired for
all motions, and they are ripe for ruling. Each motion is addressed in turn below.
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). In responding to a motion for summary judgment, 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); Palmer v. Marion County, 327 F.3d 588, 595
(7th Cir. 2003). 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). A dispute about a material
fact is genuine only “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248. If no reasonable jury could find for
the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372,
380 (2007).
The court’s role in deciding a summary judgment motion is not to evaluate the
truth of the matter, but instead to determine whether there is a genuine issue of triable
fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th

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Cir. 1994). 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 and resolve all doubts in favor of that party. NLFC, Inc. v. Devcom
Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995).
III.

DISCUSSION
A.

Officer Viator’s Motion for Summary Judgment

Officer Viator moves for summary judgment on the claims against him, arguing
that he should not be held liable for any of the eight claims in this case. He also argues
that he is entitled to qualified immunity. It is useful to group the claims into two
categories for purposes of addressing this motion. In the first category are plaintiff’s
claims for unreasonable search and seizure, false arrest, and false imprisonment
(Counts I, II, V, VII, and VIII). The second set of claims includes excessive force, battery,
and intentional infliction of emotional distress (Counts III, IV, and VI).
1.

Search and Seizure, False Arrest, and False Imprisonment

The first set of plaintiff’s claims (federal and state claims for unreasonable search
and seizure, false arrest, and false imprisonment) can be grouped together because a
finding of probable cause forecloses each. This is true both at the federal level, Fleming
v. Livingston Cty., Ill., 674 F.3d 874, 878–79 (7th Cir. 2012); Gibbs v. Lomas, 755 F.3d 529,
537 (7th Cir. 2014); Hawkins v. Mitchell, 756 F.3d 983, 994 (7th Cir. 2014), and at the state
level, Row v. Holt, 864 N.E.2d 1011, 1017 (Ind. 2007). Federal jurisprudence instructs that
a police officer has probable cause when, at the moment the decision is made, the facts

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and circumstances within his knowledge and of which he has reasonably trustworthy
information would warrant a prudent person in believing that the suspect had
committed or was committing an offense. Fleming, 674 F.3d at 878–79. This standard
does not require that the officer’s belief be correct or even more likely true than false, so
long as it is reasonable. Id. The probable cause standard is the same under Indiana law.
Row, 864 N.E.2d at 1017.
In this case, plaintiff’s own description of the events indicate that before he got
involved, a chaotic fight scene was taking place. Pl. Dep. 118:10-12 (“Then the guy came
in between and push my brother. JR hit him and then muffed that girl, you know what
I’m saying?”). The video evidence highlights the melee occurring. (DE # 57, Exs. B, D.)
It is undisputed that Officer Viator attempted to arrest JR. The video evidence shows
plaintiff’s interaction with Officer Viator while Officer Viator was attempting to handle
JR. (DE # 57, Ex. D, at 5:29:13-20.) Viewed in a light most favorable to plaintiff, the video
shows plaintiff inserting his arms into the space between Officer Viator and JR; at one
point, plaintiff places his hand directly in front of Officer Viator’s face, appearing to
block Officer Viator’s view of JR, with whom Officer Viator is struggling. (Id. at 5:29:17.)
It is unclear if plaintiff physically contacted Officer Viator at this point. In any case, the
video evidence contradicts plaintiff’s blanket assertion that he “never interfered” and
was merely telling JR to “cuff up” (presumably, to cooperate).
The question is whether, under these circumstances, a prudent person would be
warranted in believing that plaintiff was committing an offense – namely, interfering

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with Officer Viator’s attempts to control JR and the fight scene. Indiana law states that a
person who “forcibly resists, obstructs, or interferes with a law enforcement officer”
commits the Class A misdemeanor of resisting law enforcement. Ind. Code § 35-44.1-31(a)(1). The parties argue over what degree of force required to satisfy the statute.
Indeed, the courts of Indiana are conflicted on this subject, as well. Compare Spangler v.
State, 607 N.E.2d 720, 723 (Ind. 1993) (finding that passive resistance in form of walking
away from officers did not satisfy statute and holding: “[I]t is error to find that mere
action . . . falls within the statute, absent a showing of use of force.”), with Guthrie v.
State, 720 N.E.2d 7, 9 (Ind. Ct. App. 1999) (examining Spangler and concluding that
resisting in meaningful way that extends beyond mere passive resistance, such as by
leaning body back and stiffening legs while officers were attempting to walk with him,
qualifies under statute); Johnson v. State, 833 N.E.2d 516, 519 (Ind. Ct. App. 2005)
(examining Spangler and concluding that “stiffening up” and thereby requiring that the
officers exert force to place him inside transport vehicle satisfied statute).
Even viewing the evidence in a light most favorably to plaintiff (that is, viewing
the video evidence as suggesting plaintiff inserted his arms between Officer Viator and
JR and blocked Officer Viator’s view, but did not touch him), this case does not seem
akin to Spangler. In Spangler, the subject was walking away, which the Indiana Supreme
Court viewed as passive resistance. Here, plaintiff injected himself into an ongoing
arrest with his limbs, which is not passive at all. To this court, plaintiff’s behavior is
more like the subjects in Guthrie and Johnson, because he interfered in a meaningful way

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that extended beyond mere passive resistance. Accordingly, the court finds that
plaintiff’s conduct satisfied the Indiana resistance statute, supplying the underlying
offense necessary to support a finding that Officer Viator possessed probable cause to
effectuate plaintiff’s arrest and detention. A reasonable officer under these
circumstances would have believed that plaintiff, by imposing his arms between the
officer and JR and blocking his view at one point, was interfering with an arrest in
violation of Ind. Code § 35-44.1-3-1(a)(1). Accordingly, probable cause existed for
plaintiff’s arrest, negating plaintiff’s state and federal search and seizure, false arrest,
and false imprisonment claims.
Even if this case proved a closer one than this court has concluded, and Spangler
did control, qualified immunity would function to shield Officer Viator from liability on
the federal constitutional claims. In close cases such as this one, the law is not so clear
that a reasonable officer would know he lacked probable cause to arrest plaintiff when
he injected his arms into an ongoing arrest and blocked the officer’s view in the midst of
the chaos of the situation. Therefore, even if Officer Viator did lack probable cause to
arrest plaintiff in this instance, qualified immunity would apply to plaintiff’s federal
constitutional claims. Ferrell v. Bieker, No. 1:03-CV-27-TS, 2006 WL 287173, at *10 (N.D.
Ind. Feb. 3, 2006) (significant confusion created by Spangler and Indiana caselaw that
followed warranted grant of qualified immunity to officer who arrested defendant who
refused to exit car, locked doors, and rolled up window).

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2.

Excessive Force, Battery, and IIED

The second set of plaintiff’s claims consists of his federal claim for excessive force
and two state claims, battery and IIED. These claims possess overlapping issues of fact
which make it useful to consider them together.
The first of these claims is plaintiff’s federal excessive force claim. The facts
underlying this claim, taken in a light most favorable to plaintiff, are that plaintiff was
initially resisting arrest and attempting to avoid being restrained. Pl. Dep. 119:21-22; Pl.
Dep. 119:14-16; Pl. Dep. 125:17-18. Next, according to plaintiff, the manager restrained
him by the legs and the officer hit him in the eye. Pl. Dep. 126:7-10. Then, plaintiff was
told “Give me your hands,” at which point he claims he complied and was handcuffed.
Pl. Dep. 126:13-17. After this, plaintiff alleges he was slammed “right on his face.” Pl.
Dep. 126:14-15. Plaintiff further alleges that he was then punched in the ribs and face by
Officer Viator, while the manager grabbed his handcuffs and twisted his hands and
fingers. Pl. Dep. 127:5-6; 129:4-9.
If plaintiff’s version of the events are believed, a fact finder could determine that
excessive force was employed, including and especially after plaintiff was handcuffed.
The Seventh Circuit has stated: “[I]t is one thing to use force in subduing a potentially
dangerous or violent suspect, and quite another to proceed to gratuitously beat him. . . .
The fact that a certain degree of force may have been justified earlier in the encounter to
restrain [the subject] does not mean that such force still was justified once [he] had been
restrained.” Frazell v. Flanigan, 102 F.3d 877, 885 (7th Cir. 1996), overruled on other

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grounds by McNair v. Coffeey, 279 F.3d 463 (7th Cir. 2002). More specifically, Seventh
Circuit precedent has established that it is not reasonable as a matter of law to slam a
handcuffed arrestee against another object. Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir.
1996) (unreasonable as a matter of law to shove handcuffed arrestee into car). Further,
the Seventh Circuit has held that it violates one’s Fourth Amendment rights to be
beaten after handcuffing. Sallenger v. Oakes, 473 F.3d 731 (7th Cir. 2007) (administering
closed-fist punches and flashlight blows after arrestee was handcuffed, continuing to
strike arrestee after he had stopped resisting, and failing to place arrestee in proper
position after hobbling him violated his right to be free from excessive force). Under
these cases, this court cannot grant summary judgment to Officer Viator on the
excessive force claim. Questions of fact remain as to whether Officer Viator used
excessive force. In other words, a jury must decide if plaintiff’s version of the events is
true and whether the force it believes Officer Viator used was reasonable or not.
Qualified immunity can protect an officer from suit if applicable law was not
“clearly established” at the relevant time. Saucier v. Katz, 533 U.S. 194, 200–01 (2001).
However, the previously cited Seventh Circuit cases demonstrate that the law regarding
shoving and beating a defendant after handcuffing was clearly established at the time in
question. In those cases, the Seventh Circuit also determined that granting qualified
immunity was not appropriate. Clash, 77 F.3d at 1048 (affirming district court’s denial of
summary judgment based on qualified immunity); Sallenger, 473 F.3d 731 (arresting
officers were not entitled to qualified immunity). Accordingly, this is not a case where

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qualified immunity can shield Officer Viator from a trial on the merits. A jury may
determine that excessive force was employed, or it may decide that the use of force was
reasonable, but the issue cannot be determined at this stage.
The same questions of fact that prevent summary judgment on the excessive
force claim also prevent the court from entering summary judgment in Officer Viator’s
favor on the battery claim. Put another way, if a jury finds that Officer Viator used an
unreasonable amount of force, it could also find that Officer Viator committed the tort
of battery. City of S. Bend v. Fleming, 397 N.E.2d 1075, 1077 (Ind. Ct. App. 1979) (officer
who uses unnecessary force is no longer privileged and is answerable for assault and
battery). The same is also true of the IIED claim. An element of the claim is that
defendant engaged in “extreme and outrageous conduct.” Waldrip v. Waldrip, 976
N.E.2d 102, 117 (Ind. App. 2012). Because a jury should decide whether the force Officer
Viator used was excessive, a jury should also decide whether Officer Viator’s conduct
was extreme and outrageous under the circumstances.
B.

CEC’s Motion for Summary Judgment

CEC moves for summary judgment, solely on the grounds that it was not Officer
Viator’s employer. However, genuine issues of material fact exist on this point. For
example, as CEC admits, a significant factor in determining whether Officer Viator was
CEC’s employee or not was whether CEC paid Officer Viator for his services. Moberly v.
Day, 757 N.E.2d 1007, 1012 (Ind. 2001). In the section of its memorandum on the issue of
payment, CEC appears to carefully sidestep the question; CEC devotes only one

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substantive sentence to the issue and uses it to state that Officer Viator was assigned to
CEC by an officer of the City of Hobart Police Department. (DE # 53-1 at 8.)
Another example of an issue of fact preventing summary judgment for CEC is
the question of whether CEC controlled Officer Viator’s work. The right to control the
work performed is “important and in many situations . . . determinative” of whether an
individual was functioning as a business’s employee. Id. at 1010. Here, issues of fact
exist as to whether CEC controlled Officer Viator’s work while at CEC, including when
the CEC manager and Officer Viator were working simultaneously to restrain plaintiff.
As these examples show, when taken in a light most favorable to plaintiff, genuine
issues of material fact exist as to whether CEC is Officer Viator’s employer for purposes
of this case. Accordingly, CEC’s motion for summary judgment is denied.
C.

City Defendants’ Motion for Summary Judgment

The City defendants have moved for summary judgment, arguing that they had
no involvement in any alleged deprivation of plaintiff’s rights. Plaintiff, who is
represented by counsel and not proceeding pro se, did not respond to this motion,
abandoning all claims he may have had against these defendants. Palmer v. Marion
County, 327 F.3d 588, 597-98 (7th Cir. 2003). Accordingly, the City defendants’ motion
for summary judgment is granted.
IV.

CONCLUSION
For the foregoing reasons, the court:
1.

GRANTS, in part, and DENIES, in part, the motion of Officer Viator for
summary judgment (DE # 48);
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2.

DENIES the motion of CEC Entertainment, Inc., for summary judgment
(DE # 52);

3.

GRANTS the motion of Sergeant Claussen, the City of Hobart, and the
City of Hobart Police Department for summary judgment (DE # 58); and

4.

REFERS this matter, pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ.
P. 72(a), to Magistrate Judge Andrew P. Rodovich for purposes of holding
a settlement conference within 60 days of the date of this order. The court
will set a trial date under separate order, if necessary.
SO ORDERED.

Date: March 13, 2019
s/ James T. Moody
________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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