Klatt v. Doe #1 et al

Filing 78

OPINION AND ORDER re 75 MOTION for Summary Judgment by Defendants Kyle Dombrowski, Jonathon Gray, Devon Johnson, Anthony Ross, South Bend City of. The Motion is GRANTED as follows: Defendant City of South Bend is GRANTED summary judgment on all cl aims asserted in Plaintiff Richard W Klatt's Second Amended Complaint. Defendants Kyle Dombrowski, Jonathon Gray, Devon Johnson, and Anthony Ross are GRANTED summary judgment on Plaintiff's excessive force claims. Plaintiff's First Ame ndment claim is DISMISSED for failure to state a claim upon which relief can be granted. The Fourth Amendment claim of unlawful detention REMAINS PENDING as against Defendants Kyle Dombrowski, Jonathon Gray, Devon Johnson, and Anthony Ross. IN PERSON Status Conference set for 3/9/2017 at 10:00 AM (Eastern time) in US District Court - South Bend before Judge Philip P Simon. Plaintiff and counsel for Defendants Kyle Dombrowski, Jonathon Gray, Devon Johnson, and Anthony Ross are required to attend. Signed by Judge Philip P Simon on 2/13/17. (Copy mailed to pro se party).(cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RICHARD W. KLATT,
Plaintiff,
v.
CITY OF SOUTH BEND,
KYLE DOMBROWSKI,
ANTHONY ROSS,
DEVON JOHNSON, and
JONATHON GRAY,
Defendants.

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No. 3:14CV1768-PPS

OPINION AND ORDER
Richard Klatt, a pro se plaintiff, brings this civil rights action against the City of
South Bend, Indiana, and four of its police officers. Klatt alleges that his constitutional
rights were violated by the officers’ conduct when, in the course of a burglary
investigation, they removed Klatt from the van in which he was living and detained
him. In particular, Klatt alleges that the Defendants violated his First Amendment
rights by not allowing him to ask questions. He also brings two Fourth Amendment
claims against the City and the individual Defendants. One claim alleges excessive
force and the other alleges an unlawful search and seizure. [DE 20 at 3.] The discovery
phase of the case has been completed, and the Defendants now seek summary
judgment. Curiously, the Defendants have moved for summary judgment only on the
excessive force claim and concerning municipal liability generally. Just as curiously,

despite being warned as to the perils of not responding to a summary judgment motion
(see DE 77), Plaintiff Klatt has filed no response to the motion.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine dispute of material facts
exists only if the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Undisputed Facts
In support of their motion, the Defendants have offered a number of facts they
say are not or cannot be genuinely disputed, supporting each by a citation to particular
parts of the evidence of record, as required by Rule 56(c)(1)(A). Most of the evidence
discussed below comes from either the police reports or from the deposition of Mr.
Klatt. The Defendants have not bothered to submit affidavits from the officers. Because
Klatt failed to file any opposition to the motion, and therefore has not raised any
objections to my consideration of the police reports, I will consider them despite the fact
that they are obviously hearsay.
On August 1, 2012, at approximately 2:52 am, South Bend Police Department
received a 911 call that there had been a burglary at Mini Storage Depot. [DE 55 at 7.]
Officer Kyle Dombrowski responded to the call. [DE 55 at 8.] Observing that several
storage units had been forced open, Officer Dombrowski called for back-up. [Id.]
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Officers Jonathon Gray and Devon Johnson, and Sergeant Anthony Ross arrived in
response. [Id.] During a protective sweep of the property, the officers found three rifles
and a large knife. [Id.] It is entirely unclear from the record where those weapons were
found on the property. In any event, according to the police reports, the officers were
worried that the perpetrator might still be on the property and could be armed with a
weapon, so the officers cautiously continued to search the property. [Id. at 17.]
During this time, Klatt was asleep in the backseat of his van parked in front of his
storage unit. [DE 76-1 at 4, 15, 30.] The rear windows of Klatt’s van are tinted and had
sunscreens on them with hanging clothes obstructing the view of the van’s interior. [Id.
at 4, 9.] The incident reports of Officers Dombrowski, Johnson and Gray indicate that as
they approached the van and used flashlights to examine the interior, they found it to
be jam-packed with objects, and they heard an occupant inside yelling. [DE 55 at 9, 15,
17.] Klatt disputes this; he says he was as quiet as a church mouse. [DE 76-1 at 5.] Klatt
testified that the officers banged on the back window and asked, “Is anybody in there?”
[Id. at 4-5, 12.] Not knowing what was going on or that they were police officers, Klatt
did not respond to the officers. [Id. at 5, 10, 12.] The officers asked again if anyone was
in the van, and again Klatt did not respond. [Id. at 5, 12.] An officer, whom Klatt
identifies as the African American officer, then used a window punch to break out a
back window of Klatt’s van. [Id. at 5, 18; DE 4 at 2.]
Klatt is only able to identify the officers by their characteristics, such as the “big
and tall guy,” the “black guy,” and the “assault rifle guy.” [DE 76-1 at 13.] The “big
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guy” pulled Klatt by his shoulder out of the car, pushed Klatt by the top of his head to a
seated position on the ground and handcuffed him behind his back. [DE 20 at 2; DE 761 at 18, 26-27.] The African American officer and the “big and tall officer” both had
handguns pointed at Klatt, and another officer had an assault rifle pointing at him. [DE
76-1 at 27.] They told Klatt to sit on the ground and not to say anything. [Id. at 15.]
None of the officers made physical contact with Klatt after this. [Id. at 26, 27-28.] Klatt
claims that officers talked tough, making remarks about using a taser him, putting the
“K9" on him, and saying “give him a reason” while pointing an assault rifle at Klatt. [Id.
at 28.]
The officers pulled a few items out of his van (the sunscreens and a coat that had
been hanging in front of a window), but Klatt admits that they did not take anything.
[Id. at 14-15, 31.] A K9 officer arrived and started moving towards Klatt but the dog led
the officer in a different direction. [Id. at 16.] Neither the K9 officer nor the dog
approached Klatt. [Id.] Klatt’s only complaint about the K9 officer is his “failure to
intervene.” [Id. at 32-33.] The officers covering Klatt began to walk away, and Klatt
told them he had to go to the bathroom but was refused. [Id. at 22-23.] The “big guy”
came back once to ask Klatt for his Social Security number. [Id. at 23-24.]
About 20 minutes later, two of the officers returned, removed Klatt’s handcuffs,
and told him he was free to go. [Id. at 17, 25.] Klatt walked toward the storage facility’s
office, noticing the units that appeared to have been broken into. [Id. at 32.] Given that
the 911 call was received at 2:52 a.m., Officer Gray arrived as backup at about 3:13 am,
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and the first incident report was entered into the police department’s system by Officer
Dombrowski at 4:04 a.m., the entirety of the Defendants’ on-scene investigation lasted
approximately 45 minutes at most, and Klatt’s involvement even less. [DE 55 at 7-8, 16.]
Klatt admitted that it was reasonable for an officer to want to investigate a car parked at
the site of the burglary, to think a suspect might be hiding somewhere in the facility,
and to think that a burglary suspect might be armed. [DE 76-1 at 34-35.]
Discussion
Giving a liberal construction to the pro se Plaintiff’s second amended complaint,
Klatt alleges that his First Amendment rights were violated when he was told not to
speak, and that his Fourth Amendment rights were violated because he was unlawfully
detained. He also claims that the officers subjected him to excessive force. [DE 20 at 23.] As noted at the outset, the motion for summary judgment addresses only the
excessive force claim and the larger issue of municipal liability.
I’ll start with the First Amendment claim. Klatt invokes the First Amendment in
conjunction with his allegation that he was told by the police “not to say a word” and
“told [he] could not talk or ask questions.” [DE 20 at 2, 3.] A police officer threatening
an arrest if a subject doesn’t “shut up” does not state a First Amendment claim if the
plaintiff “fail[s] to allege that his speech was altered or deterred by the officer’s threat.”
Marner v. City of Aurora, 624 Fed.Appx. 665, 666 (10th Cir. 2015) Here Klatt’s pleading
expressly acknowledges that his speech was not in fact restrained by the officer’s
directive: “I could not help it, I asked ‘please’ tell me what is happening.” [DE 20 at 2.]
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The officers temporarily detained Klatt in the course of their protective sweep and
search of the Mini Storage Depot premises. “It is reasonable to conclude that directing
an individual to be quiet during a search, or declining to answer the individual’s
questions, is reasonably related to the officer’s need to concentrate and act quickly, and
cannot therefore be said to impermissibly impinge upon the individual’s exercise of free
speech.” Ingram v. Sacramento Police Dep’t, No. CIV S-08-2547 LKK EFB PS, 2009 WL
2905774, at *6 (E.D.Cal. Sept. 4, 2009). Courts have held that “‘[a]rresting officers
simply do not violate their arrestee’s First Amendment rights by telling him or her to
shut up.’” Bradley v. Stupar, No. 4:15cv17, 2015 WL 9302388, at *4 (E.D.Va. Dec. 21,
2015), quoting Minyard v. Walsh, No. CV 13-00110, 2014 WL 1029835, at *4 (C.D.Cal.
Mar. 17, 2014). As in Ingram, the “gravamen of [Klatt’s] complaint is an alleged
unreasonable detention, search and use of force, not denial of his right of expression.”
Id. at *6. No viable First Amendment claim is stated by Klatt’s allegations, and the claim
will be dismissed.
I’ll move now to the claims brought against the City of South Bend. South Bend
argues that it is entitled to summary judgment because Klatt lacks the argument and
evidence necessary to establish municipal liability for the conduct of the four police
officer Defendants. [DE 76 at 5.] Such claims are governed by principles the Supreme
Court laid out in Monell v. Dep’t of Social Services, 436 U.S. 658 (1978). To support a
claim against South Bend for the allegedly unconstitutional actions of its officers, Klatt
“needed to present evidence that a [city] policy, practice or custom caused a
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constitutional violation.” Chatham v. Davis, 839 F.3d 679, 685 (7th Cir. 2016). This
requires proof of “(1) an express municipal policy; (2) a widespread, though unwritten,
custom or practice; or (3) a decision by a municipal agent with ‘final policymaking
authority.’” Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 629 (7th Cir. 2009), quoting
Simmons vs. Chi. Bd. of Educ., 289 F.3d 488, 494 (7th Cir. 2002). By failing to respond to
the summary judgment motion, Klatt has failed to meet this burden in order to keep his
claims against South Bend alive, and the City will be granted summary judgment.
Klatt’s next claim is for excessive force. Such claims are analyzed under an
“objective reasonableness” standard. Becker v. Elfreich, 821 F.3d 920, 925 (7th Cir. 2016).
In other words, “[a] police officer’s use of force is unconstitutional if, ‘judging from the
totality of circumstances at the time of the arrest, the officer used greater force than was
reasonably necessary to make the arrest.’” Payne v. Pauley, 337 F.3d 767, 778 (7th Cir.
2003), quoting Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987). “The inquiry is
fact specific and balances the intrusion on the individual against the governmental
interests at stake.” Payne, 337 F.3d at 778. The test is not “capable of precise definition
or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). The applicable
constitutional standard is rooted in the Fourth Amendment’s requirement that seizures
of persons be reasonable, and depends on an objective assessment of the officers’
conduct. As the Supreme Court noted in Graham v. Connor, 490 U.S. 386, 396-97 (1989),
“the calculus of reasonableness must embody allowance for the fact that police officers
are often forced to make split-second judgments – in circumstances that are tense,
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uncertain, and rapidly evolving – about the amount of force that is necessary in a
particular situation.”
Only a minimal level of force was employed against Klatt. Klatt wasn’t struck,
punched, tased or anything of the sort. He was simply removed from his van and put
on the ground and handcuffed. It was reasonable to handcuff him to insure the officers’
safety while they continued their investigation until they deemed him no risk, all of
which took less than 30 minutes. Although having firearms pointed at him was
certainly unwelcome or even disturbing for Klatt, it was not unreasonable in the
circumstances, given that potential suspects might be armed and Klatt had previously
been uncooperative by failing to respond to the officers’ inquiries. The facts here are
distinguishable from cases in which police unreasonably continued to point a gun at an
individual when he clearly presented no danger. See, e.g., Jacobs v. City of Chicago, 215
F.3d 758, 773-74 (7th Cir. 2000).
In sum, the officers’ actual use of force was minimal – pulling Klatt from the van
and pushing him to a seated position on the ground – and their show of force – drawn
weapons and tough talk – was brief. Both were reasonable in the circumstances as the
officers then understood them. Therefore, Defendants Dombrowski, Johnson, Gray and
Ross are entitled to summary judgment on Plaintiff Klatt’s excessive force claims, and
those claims are now dismissed.
Klatt has also pled a claim of wrongful detention under the Fourth Amendment.
The sum and substance of his claim is that the police had no right to seize his van by
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punching out the window and no right to detain him. The analysis of this claim will be
based on how the encounter between Klatt and the police is characterized. If the
encounter is deemed an arrest, then the police will have to show that they had probable
cause to detain him and seize his property through the breaking of the van’s window.
Neita v. City of Chicago, 830 F.3d 494, 497 (7th Cir. 2016). If, on the other hand, the
encounter is more akin to a stop and frisk then the police will have to “point to specific
and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968).
As I noted at the outset, the Defendants’ motion for summary judgment was a
narrow one. It was limited to the excessive force and municipal liability claims. This
means that Klatt’s Fourth Amendment claim of unlawful detention remains pending.
ACCORDINGLY:
Defendants’ motion for summary judgment [DE 75] is GRANTED as follows.
Defendant City of South Bend is granted summary judgment on all claims
asserted in Plaintiff’s second amended complaint.
Defendants Dombrowski, Ross, Johnson and Gray are granted summary
judgment on Plaintiff’s excessive force claims.
Plaintiff’s First Amendment claim is dismissed for failure to state a claim upon
which relief can be granted.
The Fourth Amendment claim of unlawful detention remains pending as against
Defendants Dombrowski, Ross, Johnson and Gray.
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An in-person status conference is set for Thursday, March 9, 2017 at 10:00
Eastern (South Bend) Time in the 3rd Floor Courtroom of the Robert A. Grant
Courthouse in South Bend, Indiana. Plaintiff Klatt and counsel for Defendants
Dombrowski, Ross, Johnson and Gray are required to attend.
SO ORDERED.
ENTERED: February 13, 2017.

/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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