Child et al v. Gary City of et al

Filing 66

OPINION AND ORDER: Defendants' motion for summary judgment 48 is GRANTED in part and DENIED in part, consistent with this opinion. Defendants' motion to strike 61 is DENIED as moot. This case is REFERRED to Magistrate Judge John E. Martin for settlement proceedings; should those proceedings be fruitless, this case will be set for trial under separate order. Signed by Senior Judge James T Moody on 9/21/2021. (bas)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MINOR CHILD, and
SHEENA WALLACE, mother,
Plaintiffs,
v.
CITY OF GARY, a Municipal Corporation,
OFFICER DONALD BRIGGS, OFFICER
ANTOINE JAMAL GOFFIN, and OFFICER
DEAWN DONTAE KIMBLE,
Defendants.

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No. 2:18 CV 93

OPINION and ORDER
This matter is before the court on a motion for summary judgment filed by City
of Gary, Officer Donald Briggs, Officer Antoine Jamal Goffin, and Officer Deawn
Dontae Kimble, on all claims brought by plaintiff Minor Child and his mother, Sheena
Wallace. (DE # 48.) Also before the court is defendants’ related motion to strike. (DE #
61.) For the following reasons, defendants’ motion for summary judgment will be
granted in part and denied in part, and defendants’ motion to strike will be denied as
moot.
I.

BACKGROUND
On November 26, 2016, Minor (then age 16) was an occupant in a stolen vehicle

driven by his friend in Gary, Indiana. Police cars appeared behind them with lights
activated. Minor’s friend did not stop the car immediately, but eventually did so. Minor
and his friend got out of the car and ran. Minor claims he did not see anyone following

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him, and he hid inside a garage behind the door and put a basket on top of his shoes.
Minor claims he was in the garage for about 10 or 15 minutes before anyone discovered
him.
According to Minor, a dog then appeared, and started biting him. Minor claims
he did not hear anyone outside the garage before the dog entered. According to Minor,
the dog bit him on the face and ear. Minor started screaming and turned over on his
stomach on the ground. While Minor was screaming, the dog bit his leg and then Minor
heard two officers enter the garage. They told him to get down, even though he was
already down. Minor then screamed, “I’m only 16, I’m only 16.” According to Minor, an
officer said, “I don’t care,” and then one officer tased him and both officers kicked him.
The dog stopped biting him after the tasing and kicking started. According to Minor, he
did not know the car was stolen and had no idea why the police stopped the car and
chased him. Minor was taken to the hospital by ambulance, and had surgery on his ear
and stitches on his face. He later received plastic surgery to reconstruct his ear. (DE # 57
at 1-4.)
Officer Briggs was one of the police officers who joined the pursuit of the stolen
vehicle occupied by Minor on November 26. Officer Briggs had received information
that the car was going at a high rate of speed and that occupants were shooting out of
the window. Officer Briggs was accompanied by a police canine named Leo. It is not
genuinely disputed that Officer Briggs trained with the canine unit on a volunteer basis

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for six months or more before being assigned a canine, completed a six-week canine
course, and is continuously required to train with his canine sixteen hours per month.
The officers in pursuit of the stolen car activated their lights upon locating it, and
the car fled, causing a high-speed chase. According to the officers, the pursuit lasted for
several minutes. The stolen car came to a stop, and both occupants fled on foot. Officer
Briggs arrived in the area where the occupants were running, and deployed Leo for an
area search. Leo led Officer Briggs to an abandoned garage. Officer Briggs saw Minor’s
shoes underneath the door.
Officer Briggs claims that he said, two or three times, “Gary Police Department
canine, come out with his hands up or the dog will be sent in.” (DE # 49 Ex. 1, Briggs
Dep. 28:22-25.) According to Officer Briggs, he did not receive a response, so he ordered
Leo to apprehend Minor. Officer Briggs claims that Leo entered the garage, located
Minor after two sweeps around the garage, and grabbed Minor by the leg.
Officer Briggs, along with Officer Goffin, entered the garage, and Minor yelled
“I’m only 16.” According to defendants, Minor was on the ground at this point, and
Officer Briggs ordered Minor to put his hands behind his back, so Leo could be
removed. Defendants claim that after Minor placed his hands behind his back, Officer
Briggs grabbed Leo and commanded him to release; Leo complied and Minor was then
handcuffed. Both Officer Briggs and Officer Goffin deny tasing and/or kicking Minor.
(DE # 49 at 1-4.)

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Minor and his mother, Sheena Wallace, sued Officer Briggs, Officer Goffin,
Officer Kimble (another officer who appears to have played no role in the events other
than establishing a perimeter), and the City of Gary, alleging excessive use of force in
violation of the Fourth Amendment and loss of familial relations in violation of the
Fourteen Amendment, citing 42 U.S.C. § 1983 as the mechanism for the civil action. (DE
# 1.) Defendants have now moved for summary judgment on all claims. (DE # 48.)
Plaintiffs responded (DE # 57), and defendants replied (DE # 63); defendants also
moved to strike certain evidence submitted by plaintiffs (DE #61). The motions are fully
briefed and ripe for ruling.
II.

LEGAL STANDARD
Summary judgment is proper when there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). Rule 56 mandates the entry of summary judgment against a party “who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
To establish a genuine issue of fact, the non-moving party “must do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus., Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat’l Bank of
Cicero v. Lewdco Sec. Corp., 860 F.2d 1407, 1411 (7th Cir. 1988). The non-moving party
must come forward with specific facts that there is a genuine issue for trial. Matsushita,
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475 U.S. at 587. A scintilla of evidence in support of the non-moving party’s position is
not sufficient to successfully oppose summary judgment; “there must be evidence on
which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). Further, the non-moving party cannot rest on the pleadings
alone, but must present fresh proof in support of its position. Id. 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.

Official Capacity Claims

Defendants seek summary judgment on the official capacity claims against the
individual officers, as duplicative of the claims against the City itself. This request is
legally sound, see Jungels v. Pierce, 825 F.2d 1127, 1129 (7th Cir. 1987), and the court
grants it.
B.

Claims against Officer Kimble

Defendants have moved for summary judgment on all claims against Officer
Kimble, and plaintiffs agree that such action is appropriate. (DE # 57 at 10.)
Accordingly, summary judgment is granted for Officer Kimble on all claims.

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C.

Fourth Amendment Claims

The crux of plaintiffs’ case is the Fourth Amendment excessive force claim
against Officers Briggs and Goffin. Defendants seek summary judgment on this claim,
first arguing that the officers did not use excessive force or violate Minor’s
constitutional rights. The use of force against a suspect is a seizure subject to the
reasonableness requirement of the Fourth Amendment. Smith v. Finkley, 10 F.4th 725
(7th Cir. 2021). When determining the reasonableness of the force used, the court should
consider the factors articulated in Graham v. Connor, 490 U.S. 386 (1989). Id. The Graham
factors include the severity of the crime at issue, the immediate threat the suspect posed
to the safety of the police officers and others, and if the suspect actively resisted or
attempted to evade arrest by flight. 490 U.S. at 396. In addition, the court should
consider “whether the individual was under arrest or suspected of committing a crime;
whether the individual was armed; and whether the person was interfering or
attempting to interfere with the officer’s duties.” Dawson v. Brown, 803 F.3d 829, 833 (7th
Cir. 2015).
The analysis requires an inquiry into “whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397.
Courts must examine the reasonableness of the actions “from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. An
officer acts reasonably when deploying force if he “has probable cause to believe that
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the suspect poses a threat of serious physical harm, either to the officer or to others.”
Tennessee v. Garner, 471 U.S. 1, 11 (1985). Ultimately, the fundamental question is
“whether the totality of the circumstances justified a particular sort of . . . seizure.” Id. at
8–9.
Defendants have also raised the affirmative defense of qualified immunity. The
defense of qualified immunity shields government officials performing discretionary
functions from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known. Marshall v. Allen, 984 F.2d 787, 791 (7th Cir. 1993). Qualified
immunity protects “all but the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). The United States Supreme Court holds
that if no constitutional right was violated, there is no necessity for further inquiries.
Saucier v. Katz, 533 U.S. 194, 201 (2001). However, if a violation could be made, the next
step is to ask whether the right was clearly established; this inquiry must be undertaken
in light of the particular circumstances of the case. Id. The relevant, dispositive inquiry
in determining whether a right is clearly established is whether it would be clear to a
reasonable officer that the conduct was unlawful in the situation the officer confronted.
Id. “A constitutional right is ‘clearly established’ for qualified-immunity purposes
where [t]he contours of the right [are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Abbott v. Sangamon County, Ill., 705
F.3d 706, 731 (7th Cir. 2013). “A case holding that the exact action in question is
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unlawful is not necessary.” Alicea v. Thomas, 815 F.3d 283, 291 (7th Cir. 2016). With
respect to qualified immunity, it is clearly established that an officer cannot use more
force than is reasonably necessary to execute an arrest. Phillips v. Cmty. Ins. Corp., 678
F.3d 513, 529-30 (7th Cir. 2012).
Because plaintiff alleges two distinct uses of force, first the deployment of the
police dog and then the subsequent use of a taser and kicking, the court addresses the
potential merits of a Fourth Amendment claim and the application of the doctrine of
qualified immunity with respect to each alleged use of force in turn. Dockery v.
Blackburn, 911 F.3d 458, 467 (7th Cir. 2018); Deering v. Reich, 183 F.3d 645, 652 (7th Cir.
1999) (“[W]e carve up the incident into segments and judge each on its own terms to see
if the officer was reasonable at each stage.”).
1.

Deployment of Police Dog

The first alleged excessive use of force was Officer Briggs’s deployment of Leo
into the garage where Minor was hiding. The parties dispute whether Officer Briggs
verbally warned Minor that he might deploy Leo. The Seventh Circuit addressed an
officer’s duty to warn suspects of possible police dog deployment in Bey v. Cimarossa,
202 F.3d 272 (7th Cir. 2000). The court stated: “We note that at least one circuit has held
that ‘failure to give a warning before releasing a police dog is objectively unreasonable
in an excessive force context.’” Id. (citing Vathekan v. Prince Georges County, 154 F.3d 173,
179 (6th Cir. 1998)). The Seventh Circuit went on to decide that the district court had
erred by crediting the testimony of the officer who claimed to have warned a suspect
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that he might deploy a police dog, where the suspect oppositely claimed that the
warning never occurred. The court ultimately reversed the district court’s decision to
grant summary judgment on the merits of the Fourth Amendment claim and to grant
the officer qualified immunity, holding that whether the officer did actually offer a
warning was material to resolution of both questions. Id.
This court will not commit a similar error by granting summary judgment or
qualified immunity with respect to Officer Briggs’s deployment of Leo. Whether Officer
Briggs actually issued a warning beforehand is disputed. At this point, the evidence
taken in a light most favorable to Minor could yield the reasonable inference that
Officer Briggs deployed Leo without a warning against a non-resisting or passively
resisting suspect in violation of the Fourth Amendment, so summary judgment on the
issue is inappropriate, as is any decision regarding qualified immunity.
The court notes that defendants rely heavily upon Johnson v. Scott, 576 F.3d 658,
661 (7th Cir. 2009), in which the Seventh Circuit held that reasonable force was
employed when a police dog apprehended a suspect who was fleeing on foot after a car
chase, and no verbal warning about the dog was given beforehand. However, the
Seventh Circuit noted that under the circumstances of the case (a fast-paced situation
involving a suspect who was actively running on foot away from a car chase, only to
suddenly halt, turn around, and attempt to surrender), the officer had no real
opportunity to issue a warning, nor would a warning have made any difference. Id. The
Seventh Circuit noted that, in any event, the suspect-plaintiff had not even argued the
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point. Id. Presumably, then, any commentary on the issue of warning in Johnson is dicta,
and even if it were not, the case at hand is hardly comparable. At most, Johnson might
support an argument that a warningless dog-deployment could have been reasonable
while Minor was racing away from Officer Briggs on foot after exiting the stolen car.
However, as the circumstances change, so must the officers’ calculation of the
reasonableness of actions to be taken. Smith, 10 F.4th at 725 (“[A]n exercise of force that
is reasonable at one moment can become unreasonable in the next if the justification for
the use of force has ceased.”) (quotation marks omitted); see also Strand v. Minchuk, 910
F.3d 909, 915 (7th Cir. 2018) (“[w]hen an officer faces a situation in which he could
justifiably shoot, he does not retain the right to shoot at any time thereafter with
impunity”) (quotation marks omitted). Once Minor was no longer actively fleeing, but
merely passively hiding in the garage, the situation became less like Johnson and more
like Bey, where there was ample opportunity for a warning to be issued with potential
meaningful effect. Whether that warning occurred and the overall reasonableness of the
use of a police dog in this context remains to be determined.
2.

Use of Taser and Kicking

Plaintiffs also allege that Officer Briggs and Officer Goffin employed excessive
force when they tased and kicked Minor after Leo’s deployment. According to
plaintiffs, after Leo bit his face and ear, Minor turned onto his stomach on the ground
and began screaming, “I’m only 16, I’m only 16.” Then, according to plaintiffs, an officer
said “I don’t care,” and then one of the officers tased Minor and both of them kicked
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Minor while he was screaming. According to plaintiff, Leo did not stop biting him until
after the tasing and kicking began.
It is “clearly established that using a significant level of force on a non-resisting
or a passively resisting individual constitutes excessive force.” Alicea, 815 F.3d at 292;
Abbott, 705 F.3d at 733 (“Permitting substantial escalation of force in response to passive
noncompliance would be incompatible with our excessive force doctrine and would
likely bring more injured citizens before our courts.”). In the context of this situation,
the use of a taser and/or kicking a non-resisting or passively resisting suspect would
constitute excessive force. See, e.g., Dockery, 911 F.3d at 467 (“an officer may not use
significant force (like a Taser) against a ‘nonresisting or passively resisting’ subject”);
Johnson v. Rogers, 944 F.3d 966, 970 (7th Cir. 2019) (“[T]here is no doubt that an
unnecessary kick, after a suspect is under control, violates the suspect’s clearly
established rights.”); Abbott, 705 F.3d at 733 (officers could not repeatedly use an impact
weapon to beat into submission a person who was not resisting or was merely passively
resisting officers’ orders).
The evidence, viewed in favor of Minor, demonstrates that, after Leo had
apprehended Minor, the officers kicked and tased Minor despite the fact that Minor was
on his stomach, was not resisting, and was already in Leo’s grasp on the ground. A
reasonable jury could find that the officers knew that Minor did not pose an immediate
threat, yet proceeded to use force in the form of kicking and tasing. Therefore, summary

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judgment must be denied on the issue of the reasonableness of the use of tasing and
kicking in this case.
Similarly, the court must reject defendants’ request that the court find that the
officers are entitled to qualified immunity with respect to the alleged use of a taser and
kicking. Qualified immunity protects officers even when they err, so long as the
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known. Marshall, 984 F.2d at 791. However, as explained
above, it was clearly established at the time of the incident that using a significant level
of force like tasing or kicking on a non-resisting or passively-resisting individual
constituted excessive force. See, e.g., Abbott, 705 F.3d at 733. If the court views the facts in
a light most favorable to plaintiffs, as it must in the context of the present motion, then
Minor was tased and kicked while he was not resisting in violation of clearly
established law. Accordingly, the officers are not entitled to qualified immunity at this
phase of the proceedings. See Morfin v. City of East Chicago, 349 F.3d 989, 1005 (7th Cir.
2003) (rejecting claim of qualified immunity where officers used force against a suspect
who posed no threat and did not resist).
D.

Monell Claims

Defendants also seek summary judgment on plaintiffs’ claim against the City of
Gary under Monell v. Department of Social Services, 436 U.S. 658 (1978). In that claim,
plaintiffs argue that the municipality is liable for its failure to train its officers with
respect to the use of a police canine. Defendants’ primary argument in seeking
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summary judgment on this claim is that the City of Gary cannot be liable under Monell
for failure to train when there has been no violation of Minor’s constitutional rights. See
Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007). Obviously, this argument fails
because, as explained above, there are genuine issues of material fact regarding whether
a violation of Minor’s constitutional rights occurred.
Defendants next argue that they are entitled to summary judgment because
plaintiffs cannot demonstrate deliberate indifference on the part of the City. Under
Monell, a municipality will be held liable for failure to train its officers adequately only
when the inadequacy in training amounts to deliberate indifference to the rights of the
individuals with whom the officers come into contact. City of Canton v. Harris, 489 U.S.
378, 388 (1989). Proof of deliberate indifference requires more than “[a] showing of
simple or even heightened negligence.” Bd. of County Comm’rs of Bryan County v. Brown,
520 U.S. 397, 407 (1997). Deliberate indifference can be found on the part of
policymakers only when such indifference may be considered a municipal policy or
custom. Canton, 489 U.S. at 389.
As the Seventh Circuit Court of Appeals explained in Jenkins v. Bartlett, 487 F.3d
482, 492 (7th Cir. 2007), deliberate indifference may arise in either of two circumstances.
First, deliberate indifference may be found when a repeated pattern of constitutional
violations makes “the need for further training . . . plainly obvious to the city
policymakers.” Id. (quoting Canton, 489 U.S. at n.10). Second, a municipality can be said
to have acted with deliberate indifference when, in light of the duties assigned to
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specific officers or employees, “the need for more or different training is so obvious,”
and the inadequacy “so likely to result in the violation of constitutional rights” that the
deficiency exhibits deliberate indifference on the part of municipal policymakers, even
in the absence of evidence of a pattern of constitutional violations. Jenkins, 487 F.3d at
492 (quoting Canton, 489 U.S. at 390). Plaintiffs do not rely on the first theory of proof;
indeed, they point to no evidence of a pattern of violations. Therefore, the court is left
with the task of determining whether there are genuine issues of fact as to whether the
need for more training in this case was “so obvious” and the alleged lack of training “so
likely” to result in the violation of constitutional rights, that deliberate indifference can
be attributed to municipal policymakers. Jenkins, 487 F.3d at 492 (quoting Canton, 489
U.S. at 390).
It is rare for a plaintiff to successfully establish municipal liability in the absence
of evidence of a pattern of violations. The Seventh Circuit Court of Appeals has
acknowledged that the Supreme Court has yet to uphold liability on such grounds.
Flores v. City of South Bend, 997 F.3d 725, 732 (7th Cir. 2021) (“We realize that the
Supreme Court has yet to issue an opinion in which it upholds liability on this ground,
but we take the Court at its word that this does not mean it has disapproved the
theory.”); J.K.J. v. Polk Cty., 960 F.3d 367, 380 (7th Cir. 2020) (“[T]he Supreme Court has
yet to confront a case that presents a viable Monell claim based on a municipality’s
failure to act in absence of a pattern.”).

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In this Circuit, few examples of successful non-pattern claims exist, and those
that have succeeded involved ample evidence of blatantly apparent shortcomings with
respect to training and oversight. For example, in Woodward v. Correctional Medical
Services of Illinois, Inc., 368 F.3d 917 (7th Cir. 2004), the Seventh Circuit held that a
correctional facility’s failure to train its employees on suicide prevention (among other
shortcomings) supported Monell liability, even without proof of any previous suicides.
In that case, the employee who conducted the deceased inmate’s intake proceedings
had never completed her 90–day orientation program, never reviewed the relevant
intake screening instructional video, never read the manual concerning conducting
intake screening and identifying and handling potential suicide risks, and never
documented that she completed any of the orientation steps. The correctional facility
had also condoned the practice of its employees not completing its mental health intake
forms. A social worker on staff testified that he did not review the intake forms, a
practice which management knew about and permitted. Evidence was also introduced
that the facility’s head nurse knew that the social worker would obstruct and resist
suicide watch referrals.
Overall, the court found that managers in the upper ranks of the organization
allowed the disregard of written policies and yet did nothing to ensure that procedures
were followed. Given this evidence, the Seventh Circuit concluded that Monell liability
could be established without any evidence of a pattern or history of prior suicides,

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because an inmate suicide was a “highly predictable consequence” of the municipality’s
failure to act. Id. at 929.
Similarly, in Glisson v. Indiana Department of Corrections, 849 F.3d 372, 382 (7th Cir.
2017), the Seventh Circuit held that an institution could be liable under Monell for
failing to adopt protocols for the coordinated and comprehensive medical treatment of
chronically ill inmates. That case involved an inmate who, as the result of laryngeal
cancer, had a gastrojejunostomy tube in his upper abdomen for supplemental feeding
and a permanent opening in his throat for a tracheostomy tube, and used a neck brace
to prevent head slumping. The inmate was given uncoordinated medical care described
by the Seventh Circuit as resembling “the blind men’s description of the elephant”; it
involved a long list of different doctors and nurses, none of whom seemed to be in
charge of coordination. Id. at 375. He died after thirty-seven days of incarceration
because of a “deliberate policy choice pursuant to which no one was responsible for
coordinating his overall care.” Id.
Though Monell liability is rarely found in absence of evidence of a pattern, the
Glisson court explained that “there is no magic number of injuries that must occur
before [a] failure to act can be considered deliberately indifferent.” Id. at 382. The court
noted that the institution “had notice of the problems posed by a total lack of
coordination,” but then “despite that knowledge, did nothing for more than seven years
to address that risk.” Id. The court held that, when faced with the facts of the case, a jury
could find that the prison knew for certain that its health providers “would be
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confronted with patients with chronic illnesses, and that the need to establish protocols
for the coordinated care of chronic illnesses is obvious,” even if there was no proof of a
pattern of inmates dying under the institution’s care. Id. at 382.
The only pieces of evidence plaintiffs cite to in support of their Monell claim are
long portions of canine policies from other municipalities (specifically, East Chicago
and Chicago), apparently in an attempt to demonstrate the deficiencies in the City of
Gary’s policy or lack thereof. (DE # 57 at 19-22.)1 It is unclear whether the City of Gary
has any written policy on the use of canines, but it would not be reasonable to infer a
complete lack of training based upon the (presumed) lack of a written canine policy. To
the contrary, it is not disputed that Officer Briggs trained with the canine unit on a
volunteer basis for six months or more before being assigned a canine, completed a sixweek canine course, and is continuously required to train with his canine sixteen hours
per month. Unlike Glisson and Woodward, this is not a case where a reasonable juror
could conclude that the training in this case was so obviously absent and overlooked
that deliberate indifference could be attributed to those making policies at the
municipal level based on this incident alone, without any evidence of a pattern of
constitutional violations.

1

Defendants have moved to strike the East Chicago and Chicago canine policies
from evidence, as they were not disclosed to defendants during discovery. (DE # 61.)
The court notes the objection, but denies the motion to strike as moot for purposes of
summary judgment proceedings, only, as the policies are not dispositive to the issues
before the court and make no difference to the court’s decision herein.
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Further, plaintiffs do not present any evidence or argument regarding how
training might have been deficient, nor how any deficiencies might have caused
Minor’s constitutional injuries. Oddly, plaintiffs’ summary judgment response brief
presents, instead, a list of questions: “1. What is Police Department Policy for training
police canine dogs? 2. What is custom of police department for: (a) Canine chasing
adults (b) Canine chasing children (c) When is dog leash used. 3. What is the
municipality’s training program for canine dog handlers? [etc.]” (DE # 57 at 24.)
Plaintiffs argue that defendants’ motion for summary judgment “fails to respond to and
address [these] questions.” (DE # 57 at 24.) But it is not defendants’ burden to do so.
Fitzpatrick v. Cath. Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990) (“There is no
requirement that the moving party negate his opponent’s claim.”).
Rather, summary judgment is the time for plaintiffs to present all possible
evidence in support of their case to show that a trier of fact could find for them. Hammel
v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (summary judgment is “not a
dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a
party must show what evidence it has that would convince a trier of fact to accept its
version of events”). Perhaps this list of questions would have been appropriate to direct
at the defendants during discovery, which has long since closed (DE # 37). But listing
questions which could have been answered during the discovery process does not
create a genuine issue of material fact preventing summary judgment; rather, it simply
highlights plaintiffs’ inability to meet their own burden at the summary judgment stage.
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See Fitzpatrick, 916 F.2d at 1256 (“The days are gone, if they ever existed, when the
nonmoving party could sit back and simply poke holes in the moving party’s summary
judgment motion.”).
As Glisson and Woodward demonstrate, the successful Monell claim premised on a
single incident (as opposed to a pattern of incidents) deals with factual circumstances
where the danger posed by the lack of training was so obvious and the need for more
training so clear that municipal policymakers can be labeled deliberately indifferent. As
explained herein, plaintiffs have failed to create a genuine issue of material fact as to
whether this is such a case. Accordingly, plaintiffs’ Monell claim must be dismissed.
E.

Familial Relations Claim

Plaintiffs argue that defendants’ actions caused Minor’s mother, Sheena, to suffer
great emotional distress and recurring Multiple Sclerosis episodes following Minor’s
arrest. Plaintiffs argue that Sheena was deprived of her “liberty interest in family
relations, which includes the right to establish a home and bring up children and to
control the education of their own, which right includes the right of a child to be raised
and nurtured by his parents.” (DE # 57 at 27.)
This claim has no basis in law or fact. As a legal matter, “[f]inding a
constitutional violation based on official actions that were not directed at the
parent-child relationship would stretch the concept of due process far beyond the
guiding principles set forth by the Supreme Court.” Russ v. Watts, 414 F.3d 783, 790 (7th
Cir. 2005); Mussa v. Town of New Chicago, No. 2:19-CV-406, 2020 WL 1956497, at *2 (N.D.
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USDC IN/ND case 2:18-cv-00093-JTM-JEM document 66 filed 09/21/21 page 20 of 20

Ind. Apr. 23, 2020) (dismissing “familial relations” claim by husband premised upon
defendant-officer’s alleged use of excessive force against wife). Further, factually,
plaintiffs point to no evidence that suggests that any right Sheena may have to raise and
nurture Minor has actually been affected. Accordingly, defendants are entitled to
summary judgment on this claim.
IV.

CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment (DE # 48)

is GRANTED in part and DENIED in part, consistent with this opinion. Defendants’
motion to strike (DE # 61) is DENIED as moot.
This case is REFERRED to Magistrate Judge John E. Martin for settlement
proceedings; should those proceedings be fruitless, this case will be set for trial under
separate order.
SO ORDERED.
Date: September 21, 2021
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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