Marshall et al v. JP Morgan Chase Bank et al

Filing 145

OPINION AND ORDER: GRANTING 119 MOTION for Summary Judgment filed by Brandon Roundtree, Dale Pflibsen, Travis Snider, Elkhart City of, Michael Janis, Michael Windmiller.. Signed by Senior Judge James T Moody on 3/30/15. (jld)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
J. JOHN MARSHALL, ESTATE OF
MARJORIE MARSHALL, and
KIMBERLY WILEY

)
)
)
)
Plaintiffs,
)
)
v.
)
)
JP MORGAN CHASE BANK, AMERIPRISE )
BANK, FIDELITY NATIONAL FIELD
)
SERVICES, INC., JAKK MORTGAGE
)
COMPANY, LPS, FIELD SERVICES, ROBERT )
HASBERGER , CITY OF ELKHART, CHIEF
)
DALE PFLIBSEN, CPL. MICHAEL
)
WINDMILLER, PTLMN. BRANDON
)
ROUNDTREE, SGT. TRAVIS SNIDER,
)
PTLMN. MICHAEL JANIS,
)
)
Defendants.
)

No. 3:11 CV 332

OPINION AND ORDER
This matter is before the court on defendants the City of Elkhart, Chief Dale
Pflibsen, Cpl. Michael Windmiller, Ptlmn. Brandon Roundtree, Sgt. Travis Snider, and Ptlmn.
Michael Janis’s (“defendants”) motion for summary judgment on plaintiffs John

Marshall, the Estate of Marjorie Marshall, and Kimberly Wiley’s (“plaintiffs”)1 claims.
(DE # 119.) Plaintiffs have filed a response (DE # 132), and defendant has filed a reply.
(DE # 136.) For the following reasons, that motion is granted.

1

In an order being issued simultaneously with this one, the court will dismiss all
of plaintiff Wiley’s claims against all defendants for failure to prosecute. When the court
uses “plaintiffs” in the analysis section of this order, it will be referring to only John
Marshall and the Estate of Marjorie Marshall.

I.

Facts and Background
This case has been pending for quite some time, largely due to the fact that

plaintiffs have delayed their prosecution of this case at almost every stage of the
litigation. (See e.g., DE # 70.) Each group of defendants in this case has filed a separate
motion for summary judgment, and plaintiffs have filed a collective response to all
three motions for summary judgment. (DE # 132.) Plaintiffs’ response brief does not
have “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[,]” as
required by N.D. IND. LOCAL RULE 56-1(b)(2).2 Plaintiffs’ response is rife with
grammatical and spelling errors, and often references facts without any citation to
evidence. Additionally, plaintiffs’ response fails to address the substance of most of the
arguments made by defendants in their three motions for summary judgment. Despite
the inadequacies in plaintiffs’ response, the court will do its best to accurately
summarize the facts and arguments that the parties have set out in their briefs.
The following facts come from defendants’ brief in support of its motion for
summary judgment and the exhibits attached to that brief, unless otherwise noted.
(DE # 120.) Because plaintiffs have not addressed any of these facts in their response

2

Plaintiffs’ response brief is divided into three sections, with each section
addressing one of the moving defendant’s motions. (DE # 132.) The closest plaintiffs
come to including a “Statement of General Disputes” in their response brief is a list of
the factual disputes that exist with regard to one of the motions for summary judgment
filed by two other defendants. (Id. at 1.) Plaintiffs included no such similar content in
their response to defendants’ motion for summary judgment. (Id. at 5.)
2

brief, and in fact have included no citations to facts in the record in the portion of their
response that addresses defendants’ motion, the court will treat these facts as
undisputed. FED. R. CIV. P. 56(e)(2); (see also DE # 132).
This suit arises out of events that took place on August 20, 2009 at 1625
Brookwood Drive in Elkhart Indiana (“the property”). (DE # 37.) On August 20, 2009
plaintiffs John Marshall and Kimberly Wiley were both at the property. (DE # 120 at 2;
DE # 120-1 at 11; Marshall Dep. at p. 39:14-18.) Although both Marshall and Wiley had
keys to the house, the house was in foreclosure, and the locks had been changed.
(DE # 120 at 2; DE # 120-1 at 12; Marshall Dep. at pp. 42:24-44:8.) Despite not having a
key to gain access to the house, Wiley “managed to finally find a way into” the house,
and let Marshall in through the front door. (DE # 120 at 2; DE # 120-1 at 12; Marshall
Dep. at pp. 42:24-43:6.) Marshall was aware that the locks had been changed several
months before August 20, 2009. (DE # 120 at 2; DE # 120-1 at 12; Marshall Dep. at p.
43:23-25.) In fact, Wiley and Marshall had previously entered the house after the locks
had been changed, but their previous method of ingress was blocked on August 20,
2009. (DE # 120 at 2; DE # 120-1 at 17; Marshall Dep. at pp. 61:16-62:7.)
After Marshall and Wiley gained entry into the house, they had a confrontation
with a man, Robert Hashberger, who told Marshall and Wiley that they were not
supposed to be in the house. (DE # 120 at 3; DE # 120-1 at 22; Marshall Dep. at p. 82:1024.) Hashberger, who worked for JAKK Mortgage Services, and was contracted to do

3

inspections on the house, contacted the Elkhart Police Department to report what he
believed to be two burglars at the property. (DE # 120 at 3; DE # 120-3 at 1.)
Approximately 15-30 minutes after Marshall and Wiley’s encounter with
Hashberger ended, several Elkhart Police Officers arrived at the property. (DE # 120 at
3; DE # 120-1 at 23; Marshall Dep. at pp. 86:21-87:24.) Two or three officers came into
the house pointing their guns at Marshall, and told Marshall and Wiley they were
under arrest.3 (DE # 120 at 3; DE # 120-1 at 23; Marshall Dep. at pp. 86:21-87:24.) The
officers instructed Marshall to get down on the floor, and Marshall argued with them
regarding whether or not he was going to follow that command. Marshall did not go to
the ground voluntarily and was not taken to the ground by the officers. (DE # 120 at 34; DE # 120-1 at 37; Marshall Dep. at p. 143:7-15.) Instead, the officers handcuffed
Marshall and either “dragged” or “escorted” him out of the house. Marshall was
“probably not” walking and moving his feet voluntarily. (DE # 120 at 4; DE # 120-1 at
23; Marshall Dep. at pp. 87:19-88:11; DE # 120-1 at 37; Marshall Dep. at pp. 142:17143:1.)
Once outside the house, the officers suggested to Marshall that he was not
supposed to be there. (DE # 120 at 4; DE # 120-1 at 23; Marshall Dep. at p. 89:9-16.) At
that point, it became clear to Marshall that the officers thought that he and Wiley were
burglars, and also that the officers were likely there because Hashberger had called the

3

Once outside, there were a total of four officers present. (DE # 120-1 at 24;
Marshall Dep. at p. 91:10:15. DE # 120-1 at 37; Marshall Dep. at p. 141:11-19.)
4

police. (DE # 120 at 4; DE # 120-1 at 23; Marshall Dep. at p. 89:16-22.) The officers asked
Marshall for the deed to the property, but he did not have it. (DE # 120 at 4; DE # 120-1
at 23; Marshall Dep. at p. 89:22-25.) Marshall also did not show the officers a driver’s
license because his license had a Florida address on it. (DE # 120 at 4; DE # 120-1 at 23;
Marshall Dep. at p. 90:1-8.)
Marshall believes he then told the officers that the house was in foreclosure, and
that the locks had been changed so he had to find another way into the house. (DE # 120
at 4; DE # 120-1 at 39; Marshall Dep. at p. 150:3-13.) After 30-45 minutes outside, during
which time Marshall and Wiley were required to stand, Wiley suggested to the police
that they contact the city.4 (DE # 120 at 4; DE # 120-1 at 24; Marshall Dep. at pp. 90:1891:9.) A few minutes later, an officer came back and instructed the other officers to
remove plaintiffs’ handcuffs and let them go. (DE # 120 at 4; DE # 120-1 at 24, 26;
Marshall Dep. at p. 91:10-19; 99:7-11.) Weather reports from August 20, 2009 show that
the maximum temperature reached in Elkhart Indiana was 77 degrees, although
plaintiff testified that he believed it was 85 degrees that day. (DE # 120 at 4-5; DE # 1204 at 1; DE # 120-1 at 26; Marshall Dep. at p. 99:10-16.)
Marshall testified that one of the officers put his hands in Marshall’s pockets and
“let his hands wander a little bit too far.” (DE # 120 at 5; DE # 120-1 at 25; Marshall Dep.
at p. 93:1-7.) One of the officers also stomped on Marshall’s left foot as Marshall was
being guided out of the house, injuring Marshall’s foot. (DE # 120 at 5; DE # 120-1 at 25;

4

Presumably to check the ownership of the house.
5

Marshall Dep. at p. 93:9-15.) Marshall also testified that he believed that the handcuffs
were tightened more than was necessary. (DE # 120 at 5; DE # 120-1 at 37; Marshall
Dep. at p. 144:10-15.) He also testified that the handcuffs were digging into his flesh,5
and asked the officers to loosen the handcuffs, but does not remember if the officers
loosened the handcuffs or not. (DE # 120 at 5; DE # 120-1 at 37; Marshall Dep. at p.
144:10-15.)
As a result of this incident, plaintiffs filed suit against defendants alleging a bevy
of claims, including claims of excessive force, false arrest, and illegal search under 42
U.S.C. § 1983, and state law claims of assault, battery, negligence, and intentional
infliction of emotional distress. (DE # 37 at 7-9.) Defendants have now moved for
summary judgment on plaintiffs’ claims.6
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.

5

Marshall was not bleeding anywhere after the incident. (DE # 120-1 at 37;
Marshall Dep. at 143:21-23.
6

Neither plaintiffs’ amended complaint (DE # 37) nor plaintiffs’ response brief
(DE # 132) make clear which claims plaintiffs are asserting on behalf of the Estate of
Marjorie Marshall. Plaintiffs also do not put forth any arguments specific to the Estate
of Marjorie Marshall. (DE # 132.) As the court will explain below, there are no genuine
issues of fact requiring a trial in this case, so the court will assume that plaintiffs are
asserting all remaining claims on behalf of the Estate of Marjorie Marshall.
6

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 nonmoving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.
1994) (citations and quotation marks omitted).
The moving party bears the initial burden of demonstrating that these
requirements have been met; it may discharge this responsibility by showing that there
is an absence of evidence to support the non-moving party’s case. Carmichael v. Village of
Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010) (citing Celotex, 477 U.S. at 323). To
overcome a motion for summary judgment, the non-moving party must come forward
with specific facts demonstrating that there is a genuine issue for trial. Id. (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The existence of
a mere scintilla of evidence, however, is insufficient to fulfill this requirement. Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The nonmoving party must
show that there is evidence upon which a jury reasonably could find for him. Id.
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
Cir. 1994). On summary judgment a court may not make credibility determinations,
weigh the evidence, or decide which inferences to draw from the facts; these are jobs for
a factfinder. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citing Anderson, 477 U.S. at

7

255). 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, 968 (7th Cir. 1998); Doe, 42 F.3d at 443. Importantly, the court is “not required to
draw every conceivable inference from the record [in favor of the non-movant]-only
those inferences that are reasonable.” Bank Leumi Le-Israel, B.M., v. Lee, 928 F.2d 232, 236
(7th Cir. 1991) (emphasis added).
III.

Analysis
As noted earlier, in their amended complaint, plaintiffs bring a host of state and

federal claims against defendants. (DE # 37.) Defendants moved for summary judgment
on all of plaintiffs’ claims. (DE # 120.) In their response to defendants’ motion for
summary judgment, however, plaintiffs only address one of the claims raised in their
amended complaint – their excessive force claim. (DE # 132 at 3-5.) Because plaintiffs
failed to address all of their other claims in their response brief, the court will deem
those claims abandoned. Nichols v. Michigan City Plant Planning Dept., 755 F.3d 594, 600
(7th Cir. 2014) (“The non-moving party waives any arguments that were not raised in
its response to the moving party’s motion for summary judgment.”); Witte v. Wisconsin
Dept. of Corrections, 434 F.3d 1031, 1038 (7th Cir. 2006) (“By failing to raise [the
argument] in his brief opposing summary judgment, [the plaintiff] lost the opportunity
to urge it in both the district court and this court.”), overruled on other grounds by Hill v.
Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013); Palmer v. Marion Cnty., 327 F.3d 588,

8

597–98 (7th Cir. 2003) (“[B]ecause [plaintiff] failed to delineate his negligence claim in
his district court brief in opposition to summary judgment . . . his negligence claim is
deemed abandoned.”); see also Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986) (“It is
not the obligation of this court to research and construct the legal arguments open to
parties, especially when they are represented by counsel.”).7 The court will therefore
proceed to analyze defendants’ motion as it relates to plaintiffs’ excessive force claim.
“Excessive-force claims in the context of an arrest are reviewed under the Fourth
Amendment’s objective-reasonableness standard.” Cyrus v. Town of Mukwonago, 624
F.3d 856, 861 (7th Cir. 2010). “This inquiry requires an examination of the ‘totality of the
circumstances to determine whether the intrusion on the citizen’s Fourth Amendment
interests was justified by the countervailing government[al] interests at stake.’” Id.
(quoting Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000)). The nature and extent
of the force an officer may reasonably use “to effectuate an arrest depends on the
specific circumstances of the arrest, 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
861-62 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). “Because law-enforcement
officers must make critical, split-second decisions in difficult and potentially explosive

7

Plaintiffs appear to allege a a municipal liability claim against the City of
Elkhart and its police chief. (DE # 37 at 8.) In their response brief, plaintiffs make no
mention of this claim or any argument as to how the City of Elkhart or its police chief
are liable in this case. (DE # 132.) The court therefore deems this claim abandoned as
well.
9

situations . . . .[the court must evaluate] the reasonableness of the officer’s actions ‘from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight [ . . . .]’” Id. at 862 (quoting Graham, 490 U.S. at 396).
Before addressing the arguments defendants make in their motion for summary
judgment, it is important to note exactly which actions by the officers plaintiffs contend
amounted to excessive force. As best the court can tell, Marshall is contending that the
following actions constituted excessive force: (1) handcuffing Marshall during the
entirety of the incident; (2) tightening the handcuffs on Marshall more than necessary;
(3) making Marshall stand the entirety of the incident on a hot summer day; (4)
stomping on Marshall’s foot while leading him out of the house; and (5) one of the
officers putting his hands in Marshall’s pockets and “let[ting] his hands wander a little
bit too far.” (DE # 120 at 5; DE # 120-1 at 25; Marshall Dep. at p. 93:1-7.)
First, defendants argue that plaintiffs’ excessive force claim fails because
Marshall has failed to identify any of the officers that took the actions noted above.
(DE # 120 at 5-6.) Plaintiffs do not respond to this argument directly. (DE # 132 at 3-5.) It
is undisputed that plaintiffs have not identified which officer actually committed any of
these acts. Plaintiffs apparently did not determine which officers committed these acts
during discovery, and they have failed to direct the court to evidence of any effort they
undertook to do so.
As the court noted above, there were four officers present during the incident at
the property. (DE # 120-1 at 24; Marshall Dep. at p. 91:10:15. DE # 120-1 at 37; Marshall

10

Dep. at p. 141:11-19.) Plaintiffs, however, have failed to identify which officers
committed the specific acts noted above. “[I]n order to recover damages under § 1983, a
plaintiff must establish that a defendant was personally responsible for the deprivation
of a constitutional right.” Knight v. Wiseman, 590 F.3d 458, 462-63 (7th Cir. 2009) (citation
omitted); see also Allen v. Wine, 297 F. App’x 524, 531 (7th Cir. 2008) (“To hold a person
liable under § 1983 . . . the plaintiff must prove that the defendant was personally
involved in the deprivation of a constitutional right.”). By failing to identify which
officers committed these acts, it would appear that plaintiffs cannot recover against the
officers for the individual acts noted above. Cherry v. Washington County, Wis., 526 F.
App’x 683, 688 (7th Cir. 2013) (“The district court noted . . . that [the plaintiff] did not
identify who shoved him during the arrest, nor did he make any effort during
discovery to find out which of the three defendants was responsible. The judge
reasoned that this omission is also dispositive, and again we agree.”).
As plaintiffs correctly point out in their reply brief (DE # 132 at 4), however, “it is
possible to hold a named defendant liable for his failure to intervene vis-à-vis the
excessive force employed by another officer, even if the plaintiff cannot identify the
officer(s) who used excessive force on him.” Sanchez v. City of Chicago, 700 F.3d 919, 926
(7th Cir. 2012); see also Cherry v. Washington County, Wis., 526 F. App’x at 688 (“We add
the caveat, though, that a plaintiff who was assaulted by one police officer in the
presence of others need not identify the officer who struck him if the assault was
ongoing and other officers had a realistic opportunity to intervene. (citations and

11

quotations omitted)); Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009)(“Even as a
bystander . . . [an officer] can be held liable under § 1983 if [the plaintiff] can show that
[the officer] (1) had reason to know that a fellow officer was using excessive force or
committing a constitutional violation, and (2) had a realistic opportunity to intervene to
prevent the act from occurring.”). Plaintiffs argue that any of the four officers could
have intervened by allowing Marshall and Wiley to sit down and could have also
undone their handcuffs. (DE # 132 at 4.)
With regard to the two acts Marshall complains of that can be attributed to an
individual officer instead of the group the group of officers as a whole – an officer
stomping on his foot and another officer putting his hands in Marshall’s pockets and
letting his hands “wander a little bit too far[]” – there is no evidence to suggest that any
of the officers “had a realistic opportunity to intervene to prevent the[se] act[s] from
occurring.” Downey, 581 F.3d at 472. Marshall testified that three officers were leading
him out of the house, and during this process, one of the officers stomped on his foot.
(DE # 120-1 at 25; Marshall Dep. at p. 93-10:25.) Yet this only happened once, and there
is no evidence that any of the other officers knew that this particular officer was going
to stomp on Marshall’s foot or had any chance to prevent it from happening.
Marshall also testified that one of the officers put his hands in Marshall’s pockets
and “let his hands wander a little bit too far.” (DE # 120-1 at 25; Marshall Dep. at p.
93:1-7.) Once again, however, there is no evidence that any of the other officers had an
opportunity to prevent this from happening or even knew that it had occurred. Thus,

12

plaintiffs have directed the court to no evidence that any of the officers “had a realistic
opportunity to intervene to prevent the act from occurring.” Downey, 581 F.3d at 472.
The officers could have intervened to stop the other acts that Marshall argues
constitute excessive force – (1) handcuffing Marshall during the entirety of the incident
(2) tightening the handcuffs on Marshall more than necessary; (3) making Marshall
stand the entirety of the incident on a hot summer day. Even assuming that these
officers could have put an end to these other acts, they are still only liable if those acts
constituted excessive force or a constitutional violation. Downey, 581 F.3d at 472; see also
See Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994).
In their brief in support of their motion for summary judgment (DE # 120 at 1216), defendants argue that none of the acts noted above amount to excessive force.8 With
regard to Marshall’s allegations about being tightly handcuffed for the entire 30-45
minute encounter, the Seventh Circuit has allowed for the possibility that overly-tight
handcuffs can amount to excessive force. In Payne v. Pauley, the Seventh Circuit
concluded that the plaintiff was entitled to a jury trial on her excessive force claim when
the plaintiff presented evidence that the officers refused to loosen her handcuffs despite
being told by the plaintiff that her hands were numb from the cuffs and that the plaintiff
underwent two wrist surgeries as a result of the overly-tight handcuffs. 337 F.3d 767,
774-75, 778-81 (7th Cir. 2003). Similarly, in Herzog v. Village of Winnetka, the Seventh

8

The court will limit this analysis to only the acts that the officers could have
prevented if they had intervened.
13

Circuit held that the plaintiff was entitled to a jury trial on her excessive force claim
after she presented evidence that “the arresting officer lacked probable cause for the
arrest, shoved her to the ground even though she was not resisting, cracked her tooth
by forcing a breath-screening device into her mouth, waited over an hour to loosen
handcuffs she complained were too tight, and subjected her to blood and urine testing
at a hospital, even though she had passed all field sobriety tests and had registered a
0.00 Breathalyzer reading.” Tibbs v. City of Chicago, 469 F.3d 661, 666 (7th Cir. 2006)
(citing Herzog, 309 F.3d 1041, 1043-44 (7th Cir. 2002)); see also Lester v. City of Chi., 830
F.2d 706, 714 (7th Cir. 1987) (concluding that reasonable jury could find for the plaintiff
when the plaintiff introduced evidence that one of the officers threatened to hit her with
his fist, one of the officers kneed the plaintiff in her back, one of the officers dragged the
plaintiff down a hallway, one of the officers handcuffed the plaintiff to a radiator, and
one of the officers handcuffed the plaintiff so tightly that her wrists were bruised.)
The Seventh Circuit reached the opposite conclusion in Tibbs v. City of Chicago,
where the plaintiff presented evidence that he had asked the officers to loosen his
handcuffs on the ride to the police station, and they refused. 469 F.3d at 662-63. Once at
the police station, the plaintiff again complained about the handcuffs being too tight,
and another officer refused to loosen them. Id. at 663. After 20-25 minutes at the station,
the plaintiff’s handcuffs were finally removed. Id. The plaintiff never sought any
medical treatment for his wrists. Id.

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The Seventh Circuit determined that no reasonable jury could find that the
officer’s actions to be objectively unreasonable:
The plaintiff in Payne told the officers her hands were numb and ultimately
underwent two surgeries because of wrist injuries caused by the too-tight
handcuffs. Payne, 337 F.3d at 774–75, 780–81. Here, Tibbs complained only
once to Officer Kooistra, gave the officers no indication of the degree of his
pain, experienced minimal (if any) injury, and sought no medical care. The
plaintiffs in Herzog and Lester experienced tight handcuffing more akin to
the discomfort Tibbs alleges, but the decisions in those cases were hardly
based on overly tight handcuffs alone. The Herzog and Lester plaintiffs
presented evidence they had suffered numerous additional injuries,
including a cracked tooth, plainly gratuitous blood and urine testing, being
kneed in the back, and being dragged down a hallway. Herzog, 309 F.3d at
1043–44; Lester, 830 F.2d at 714.
[The plaintiff in Tibbs] likely suffered some discomfort and pain from
handcuffs that Officer Kooistra applied somewhat too tightly; [the plaintiff]
complained to Officer Kooistra once about his handcuffs without elaborating
on any injury, numbness, or degree of pain; [the plaintiff] was handcuffed for
about twenty-five to thirty minutes (from the time of his arrest to his arrival
at the lockup facility); he experienced redness on his wrists for less than two
days; and he neither sought nor received medical care for any alleged wrist
injury. [The plaintiff] cites no cases in which any court has permitted a
plaintiff to reach a jury based on such mild allegations.
Id. at 666.
The evidence in the record reveals that this case is far more analogous to the facts
of Tibbs than the facts of Pauley, Herzog, and Lester. Marshall was handcuffed for a total
of 30-45 minutes. Marshall testified that he felt the handcuffs were tightened more than
reasonably necessary. He also testified that he asked the officers to loosen the
handcuffs, but could not remember if the officers obliged his request or not. (DE # 120-1
at 37; Marshall Dep. at p. 144:10-15.) Marshall, however, has failed to direct the court to
any evidence that the handcuffs actually injured him in any way. This evidence is
15

clearly insufficient for a reasonable jury to conclude that the officers in this case are
liable for excessive force.
This is not the only evidence upon which plaintiffs rely, however. Marshall also
testified that he was forced to stand during the entire encounter, which lasted 30-45
minutes. Although Marshall has directed the court to evidence that it was hot that day
(DE # 120-1 at 26; Marshall Dep. at p. 99:10-16), Marshall has failed to direct the court to
any evidence that he was injured because he was forced to stand and has presented no
cases indicating that making a person stand for an extended period of time, in
uncomfortable temperatures or otherwise, amounts to excessive force. And the cases
that the court was able to find on its own indicate that the opposite is true. Pena-Ordonez
v. City of Farmers Branch Police Dept., No. 3:13–cv–420, 2013 WL 1187277, at *3 (N.D. Tex.
Feb. 27, 2013) (“Plaintiff appears to assert claims for excessive force, alleging that he was
improperly restrained while his blood was being drawn, forced to stand with his hands
behind his back while being questioned, handcuffed to a chair and gurney, and
threatened with a taser gun. . . . The undersigned concludes that Plaintiff’s allegations
do not establish a constitutional violation.”); Johnson v. Ciesielski, No. 1:10–cv–1453, 2013
WL 139673, at *4 (S.D. Ind. January 8, 2013) (“The motion for summary judgment on
Johnson’s Fourth Amendment allegation of excessive force for allegedly being
‘handcuffed in sub-freezing weather [and being] placed on the curb with no more than
a thin jacket and shorts, and held him for a time exceeding one (1) hour.’ Here,
defendant officers did not commit excessive force when Johnson was made to stand in

16

the cold weather, fully clothed, for a period of time.”); Williams v. Mitchell, No.
03-CV-842, 2006 WL 1876678, at *5 (S.D. Ill. July 5, 2006) (“No jury would find that being
made to stand against a wall for twenty to twenty-five minutes is excessive force.”).
In sum, the court concludes that no reasonable jury could find the defendant
officers in this case liable for excessive force on the evidence presented. Therefore,
defendants have met their initial burden on summary judgment. Because plaintiffs have
not come forward with evidence that would raise a genuine issue of material fact on
their excessive force claim, defendants’ motion for summary judgment will be granted.
IV.

Conclusion
For the foregoing reasons, defendants’ motion for summary judgment (DE # 119)

is GRANTED.
SO ORDERED.
Date: March 30, 2015
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT