Wheeler v. Bair et al

Filing 8

OPINION AND ORDER - grants Plaintiff leave to proceed against Bair in his individual capacity for compensatory damages in violation of Fourth Amendment; dismisses all other claims; dismisses Cpl Blake Paturalski and South Bend City of Police Department; direct USM to effect service. Signed by Judge Rudy Lozano on 8/31/2011. (kds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ISAIAH WHEELER, JR.,

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Plaintiff,
vs.
CORI BAIR, et al.,
Defendants.

CAUSE NO. 3:11-CV-263

OPINION AND ORDER
Isaiah Wheeler, Jr., a pro se plaintiff who was incarcerated
at the time he initiated this action, filed a complaint under 42
U.S.C. § 1983 (DE #1).

For the reasons set forth below, the Court:

(1) GRANTS Plaintiff leave to proceed against Officer Cori Bair in
his

individual

capacity

for

compensatory

damages

for

using

excessive force in effectuating his arrest in violation of the
Fourth Amendment; (2) DISMISSES all other claims; (3) DISMISSES
Officer Blake Paturalski and the South Bend Police Department; (4)
DIRECTS the United States Marshals Service, pursuant to 28 U.S.C.
§ 1915(d), to effect service of process on Officer Cori Bair; and
(5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Officer Cori Bair
to respond, as provided for in the Federal Rules of Civil Procedure
and N.D. IND. L.R. 10.1, only to the claim for which Plaintiff has
been granted leave to proceed in this screening order.

BACKGROUND
Isaiah Wheeler, Jr., filed this action on June 27, 2011, while
he was incarcerated at Branchville Correctional Facility. (DE #1.)
He has since been released from prison.

(See DE #6.) In his

complaint, Wheeler alleges that two officers from the South Bend
Police Department, Cori Bair and Blake Paturalski, used excessive
force in effectuating his arrest.
According to the complaint, Wheeler was at his residence
located at 926 N. Adams Street in South Bend on the evening of June
24, 2010, having a social gathering with his girlfriend and various
family members.

Officer Bair arrived and spoke with Wheeler’s

girlfriend outside the front door, telling her that the group was
being too loud. Wheeler claims Officer Bair then got into a verbal
altercation with several of his female family members, telling
them, “Shut the fuck up you bitches, I run this motherfucker!” (DE
#1 at 3.)

He then threatened to tow their cars if they continued

to “play games.”

(Id.)

The group exchanged further words and Officer Bair, who was
still standing outside the front door, allegedly called another
female at the gathering a “bitch.”

(Id.)

Wheeler claims that he

then went over to Officer Bair and asked, “who he was calling a
bitch?”

(Id.)

At that point, Officer Bair allegedly “barged in

the door” and grabbed Wheeler by the neck, trying to rip his shirt
off.

Officer Paturalski also entered the home and both officers

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proceeded to handcuff Wheeler and physically remove him from the
home.

Wheeler claims that as the officers were taking him out,

Officer Bair began shocking him in the neck with a tazer gun, and
continued to do so as he was lying on the ground, even though he
was not resisting.

DISCUSSION
Pursuant to 28 U.S.C. § 1915A, the court must review a
complaint filed by a prisoner and dismiss it if the action is
frivolous or malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915A(a), (b).

The court

applies the same standard as when deciding a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6).

Lagerstrom v.

Kingston, 463 F.3d 621, 624 (7th Cir. 2006).
To survive dismissal, a complaint must state a claim for
relief that is plausible on its face.

Bissessur v. Indiana Univ.

Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009).

“A claim has

facial plausibility when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

defendant is liable for the misconduct alleged.”

that

Id. at 603.

the
In

other words, the plaintiff “must do better than putting a few words
on paper that, in the hands of an imaginative reader, might suggest
that something has happened to her that might be redressed by the

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law.”

Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010)

(emphasis in original). The court must bear in mind, however, that
“[a] document filed pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Under the Fourth Amendment, an officer’s right to arrest an
individual includes the right to use some degree of physical force,
but the use of force must be objectively reasonable in light of the
totality of the circumstances. Graham v. Connor, 490 U.S. 386, 396
(1989). “Determining whether the force used to effect a particular
seizure is reasonable under the Fourth Amendment requires a careful
balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing
governmental

interests

citations omitted).

at

stake.”

Id.

(quotation

marks

and

Factors to consider include the severity of

the crime at issue, whether the suspect posed an immediate threat
to the safety of the officers or others, and whether he was
resisting arrest or attempting to evade arrest by flight.

Id.

Here, giving Wheeler the inferences to which he is entitled at
this stage, he has alleged an excessive force claim against Officer
Bair.

Specifically, he alleges that he was arrested not for any

type of violent criminal offense, but for making a comment to
Officer Bair after the officer used obscenities toward his family

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members.

He further alleges that Officer Bair tazed him after he

was handcuffed and again while he was lying on the ground, even
though he was not offering any resistance.

It can be reasonably

inferred that Wheeler is alleging Officer Bair tazed him not for
any legitimate purpose but because he was angry about their earlier
verbal exchange.

Taking Wheeler’s allegations as true, he has

alleged a Fourth Amendment claim against Officer Bair.
Wheeler also names Officer Paturalski as a defendant, but his
only involvement was to assist Officer Bair with handcuffing
Wheeler, and there is nothing from which it can be plausibly
inferred

that

he

used

excessive

force

against

Wheeler.

Accordingly, he will be dismissed as a defendant.
Additionally, Wheeler names the South Bend Police Department
as

a

defendant.

As

a

procedural

matter,

municipal

police

departments are not suable entities under Indiana law and thus
cannot be sued under 42 U.S.C. § 1983.

Sow v. Fortville Police

Dept., 636 F.3d 293, 300 (7th Cir. 2011).

Assuming Wheeler could

overcome this procedural problem by naming a proper municipal
defendant, it is apparent that he is seeking to hold the city
liable as Officer Bair’s employer.

(DE #1 at 6.)

However, there

is no general respondeat superior liability under 42 U.S.C. § 1983.
Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001).
Nor is there any basis in the complaint from which it can be
plausibly

inferred

that

the

City

5

of

South

Bend

has

an

unconstitutional practice or policy, or deliberately fails to train
its officers, regarding the constitutional rights of arrestees. See
City of Canton v. Harris 489 U.S. 378, 388 (1989); Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 701 (1978). Accordingly, the South
Bend Police Department will be dismissed as a defendant.

CONCLUSION
For the reasons set forth above, the Court:
(1) GRANTS the Plaintiff leave to proceed against Officer Cori
Bair in his individual capacity for compensatory damages for using
excessive force in effectuating his arrest in violation of the
Fourth Amendment;
(2) DISMISSES all other claims;
(3) DISMISSES Officer Blake Paturalski and the South Bend
Police Department;
(4) DIRECTS the United States Marshals Service, pursuant to 28
U.S.C. § 1915(d), to effect service of process on Officer Cori
Bair; and
(5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Officer Cori
Bair to respond, as provided for in the Federal Rules of Civil
Procedure and N.D. IND. L.R. 10.1, only to the claim for which the
plaintiff has been granted leave to proceed in this screening
order.

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DATED: August 31, 2011

/s/ RUDY LOZANO, Judge
United States District Court

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