Johnson v. Wiegand et al

Filing 6

OPINION AND ORDER GRANTING leave to proceed against Officer Alan Weingard and Officer Anthony Dawson in their individual capacities for compensatory and punitive damages for using excessive force during his arrest on 10/29/14; All other claims are DISMISSED, Party South Bend City of and South Bend Police Department DISMISSED. US Marshal Service to effect service on Officer Weingard and Officer Dawson. (cc: Plaintiff and USM) Signed by Chief Judge Philip P Simon on 2/2/15. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BILLY JOE JOHNSON,
Plaintiff,
vs.
ALAN WEIGAND, et al.,
Defendants.

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CAUSE NO. 3:14-CV-2049 PS

OPINION AND ORDER
Billy Joe Johnson, a pro se prisoner, filed a complaint alleging South Bend Police
Officers used excessive force against him during an October 29, 2014, arrest. Johnson
alleges Officer Alan Weigand was dispatched to a local 7-11 convenience store just after
midnight on October 29, 2014. Upon Officer Weigand’s arrival, he noticed Johnson
walking on a sidewalk in front of the store. Officer Weigand pulled his vehicle over, yelled
for Johnson to stop walking, and brandished his weapon. Afraid, Johnson crossed to the
other side of street and then stopped, got on his knees and placed his hands in the air.
Officer Weigand handcuffed Johnson and had him lie down on his stomach.
K-9 Officer Anthony Dawson then arrived on the scene. Officer Weigand turned
Officer Dawson’s K-9 unit dog loose and it attacked Johnson. Officer Dawson kicked and
punched Johnson while he was handcuffed and lying on the ground. Other officers then
arrived on the scene. They, too, kicked, punched and choked Johnson.

Johnson has

brought suit against Officer Weigand, Officer Dawson, the South Bend Police Department
and the City of South Bend.

Pursuant to 28 U.S.C. § 1915A, I must review the merits of this complaint 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.
Nevertheless, I must bear in mind 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 at stake.” Id. (quotation marks and citations omitted). 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. The “core requirement” for an excessive force
claim is that the defendants “used force not in a good-faith effort to maintain or restore
discipline, but maliciously and sadistically to cause harm.” Hendrickson v. Cooper, 589 F.3d
887, 890 (7th Cir. 2009) (internal citation omitted).

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Here, the complaint can be read to allege that Johnson was handcuffed and lying
face down on the ground when Officer Weigand directed a police dog to attack Johnson,
and Officer Dawson, along with other unnamed officers, assaulted Johnson. Giving
Johnson the inferences to which he is entitled at this juncture, he has alleged enough to
proceed further against Officers Weigand and Dawson. Further factual development may
show the officers acted reasonably under the circumstances, but Johnson has alleged
enough at this stage.
Johnson also brings suit against the City of South Bend and the South Bend Police
Department. It appears he is trying to hold these entities liable as the police officers’
employer. However, there is no general respondeat superior liability under 42 U.S.C. § 1983,
and the city cannot be held liable simply by virtue of the fact that it employed the officers
involved in this incident. Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001).
Similarly, Johnson’s claim against the South Bend Police Department cannot be maintained
either. “[T]he Indiana statutory scheme does not grant municipal police departments the
capacity to sue or be sued.” Sow v. Fortville Police Dep’t, 636 F.3d 293, 300 (7th Cir. 2011).
Therefore both the City of South Bend and the South Bend Police Department must be
dismissed.
What Johnson has not done is identify or attempt to sue any of the unnamed officers.
Because “public employees are responsible for their own misdeeds” Burks v. Raemisch, 555
F.3d 592, 596 (7th Cir. 2009), Johnson could bring suit against any of the individual
unnamed officers whom he alleges used excessive force against him. Though he has not

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included their names in this complaint, there is no indication that he is unaware of who
was involved in the incident on October 29, 2014. In the event Johnson learns the names
of the unnamed officers whom he alleges engaged in the use of excessive force, he can seek
leave to amend his complaint and add those individuals as defendants. As a practical
matter his case cannot proceed against an unnamed defendant. See Wudtke v. Davel, 128
F.3d 1057, 1060 (7th Cir. 1997) (“[I]t is pointless to include lists of anonymous defendants
in federal court; this type of placeholder does not open the door to relation back under Fed.
R. Civ. P. 15, nor can it otherwise help the plaintiff.”).
For these reasons, the court:
(1) GRANTS the plaintiff leave to proceed against Officer Alan Weingard and
Officer Anthony Dawson in their individual capacities for compensatory and punitive
damages for using excessive force during his arrest on October 29, 2014, in violation of the
Fourth Amendment;
(2) DISMISSES all other claims;
(3) DISMISSES the City of South Bend and the South Bend Police Department;
(4) DIRECTS the clerk to transmit the summons and USM-285 for Officer Alan
Weingard and Officer Anthony Dawson to the United States Marshals Service along with
a copy of the complaint and this order;
(5) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d),
to effect service of process on Officer Alan Weingard and Officer Anthony Dawson; and
(6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Officer Alan Weingard and

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Officer Anthony Dawson respond, as provided for in the Federal Rules of Civil Procedure
and N.D. IND. L.R. 10-1(b), only to the claims for which the plaintiff has been granted leave
to proceed in this screening order.
SO ORDERED.
ENTERED: February 2, 2015.

s/Philip P. Simon
Philip P. Simon, Chief Judge
United States District Court

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