Dodson v. Carter et al

Filing 35

OPINION AND ORDER: DENIES Lane Grant Dodson's Motion for Appointment of Counsel 33 ; GRANTS IN PART AND DENIES IN PART Plymouth Defendants David Bacon, Matthew Emenhiser, Bridget Hite, and Mark Senter's Motion to Dismiss 13 . All claims against Plymouth Defendants David Bacon, Matthew Emenhiser, Bridget Hite, and Mark Senter are DISMISSED WITHOUT PREJUDICE except Lane Grant Dodson's Fourth Amendment claims against Matthew Emenhiser and Bridget Hite; DISMISSES WITHOUT PREJUD ICE all claims against Indiana State Defendants William Ennis, Elmer Lamar Helmuth, Chad Larsh, Douglas Carter, and Gregory Zoeller except Lane Grant Dodson's Fourth Amendment Claim against William Ennis; DISMISSES WITHOUT PREJUDICE Lane Grant Dodson's Fifth and Sixth Amendment claims against Indiana State Defendant Donald Curl; GRANTS Lane Grant Dodson's Motion to Stay Proceedings 29 as to the claims that remain after this Opinion and Order pending resolution of Lane Grant Dodson's appeal of his criminal conviction; ORDERS Lane Grant Dodson to file a motion to lift the stay in this action once his appeal of his criminal conviction is complete; and GRANTS Lane Grant Dodson leave to file an amended complaint once the stay is lifted that addresses the deficiencies identified above and is CAUTIONED that failure to do so may result in dismissal of those claims with prejudice. Signed by Judge Philip P Simon on 7/14/2017. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LANE GRANT DODSON,
Plaintiff,
v.
DOUGLAS CARTER, ET AL.,
Defendants.

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CAUSE NO. 3:16-cv-775-PPS-MGG

OPINION AND ORDER
The action arises out of a series of events that occurred during a traffic stop
involving both the Plymouth Police Department and the Indiana State Police on
December 29, 2014 in Plymouth, Indiana that resulted in criminal charges against Lane
Grant Dodson. While the criminal case against him was pending, Dodson brought this
case against the various individuals he alleges were involved in the traffic stop and
subsequent criminal prosecution for violating his Constitutional rights. After this case
was filed, Dodson was convicted of one count of attempted murder, one count of
intimidation, and two counts of domestic battery, and a judgment was entered against
him.
The Defendants from the Plymouth Police Department moved to dismiss the
claims against them arguing, in part, that they are barred because a judgment in
Dodson’s favor would necessarily imply the invalidity of his criminal conviction or
sentence, which the United States Supreme Court held in Heck v. Humphrey is

impermissible. That is only partially correct, and so, for the reasons discussed below,
the Plymouth Defendants’ motion is granted in part, and denied in part.
Background
The facts come from the Complaint, which I accept as true for present purposes.
[DE 1.] On December 29, 2014 at or about 6:45pm, Indiana State Trooper William Ennis
pulled over Dodson who stopped in a K-Mart parking lot in Plymouth. [DE 1 at ¶1.]
Trooper Ennis asked Dodson for his license and the men spoke for several minutes.
[Id.] Plymouth Police Officers Matthew Emenhiser and Bridget Hite arrived on the
scene and approached Dodson’s van. [Id.] Officer Hite approached the front window
on the passenger side and was looking in with a flashlight. Officer Emenhiser asked
Trooper Ennis if Dodson was carrying a gun and Trooper Ennis responded that Dodson
had a gun but he had a permit and so, from Trooper Ennis’s point of view, everything
was okay. [Id.]
Exactly what transpired next is a bit difficult to glean from the Complaint.
Dodson alleges that Officer Emenhiser suddenly opened the driver’s door, telling
Dodson to get out of the van and hand over the gun. [Id. at ¶2.] Dodson’s foot was in
the door jamb of the car when Officer Emenhiser slammed the door, injuring Dodson’s
toe, as Officer Emenhiser yelled “gun” and drew his gun and started shooting at
Dodson while running to the front of the van. [Id.] Officer Emenhiser shot the van and
Dodson through the windshield, injuring Dodson’s neck, right shoulder, and hand.

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[Id.] After Officer Emehiser initiated fire, Trooper Ennis shot at Dodson from behind.
[Id.]
After Dodson was shot, he alleges that he was dragged away from the van and
handcuffed with his hands behind him and Officer Emenhiser searched Dodson’s
person and allegedly removed Dodson’s gun from the holster under Dodson’s left arm
saying, “We have to get a story straight.” [Id. at ¶3.] Dodson alleges that the officers
walked away, leaving him bleeding and unattended. [Id.] Dodson alleges that when
the EMTs arrived and asked the officers to uncuff Dodson, the officers refused several
times before finally doing so. [Id.]
Dodson alleges that nearly two months later, on February 23, 2015, a search was
done at his property but without a warrant signed by a judge; it was allegedly signed
instead by Indiana State Police Detective Don Curl. [Id. at ¶4.] Dodson alleges that
during that search, his $4,000 gun safe was damaged in an attempt to obtain firearms,
firearm clips, and ammunition. [Id.]
Dodson alleges nothing else regarding these incidents. To understand what
happened next, I turn to the Indiana state court dockets and public filings.1 On March
13, 2015, a probable cause affidavit was filed against Dodson alleging that the December
Although the state court dockets and orders regarding Dodson’s convictions
and subsequent appeal is a matter outside the four corners of Dodson’s complaint, I can
take judicial notice of public records in deciding motions to dismiss. See Fed. R. Evid.
201; In re Salem, 465 F.3d 767, 771 (7th Cir. 2006). A court may consider judicially
noticed documents without converting a motion to dismiss into a motion for summary
judgment. Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 600 (7th Cir. 2004).
1

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29, 2014 incident was precipitated by a complaint of domestic violence. The probable
cause affidavit states that Dodson attempted to kill Officer Emenhiser by firing a gun at
him. The Court found that probable cause existed for the arrest of Dodson on the
charges of attempted murder, intimidation, two counts of domestic battery, and one
count of battery with moderate bodily injury. [DE 14-1; DE 14-2.] Dodson eventually
was charged with one count of attempted murder, one count of intimidation, two
counts of domestic battery, and one count of battery with moderate bodily injury. [DE
14-3.]
Dodson filed this action on November 15, 2016, while the criminal case against
him was still pending, alleging that various members of the Indiana State Police
Department, the Plymouth Police Department, and the Mayor of Plymouth violated his
constitutional rights. [DE 1.] A couple of weeks later, on December 2, 2016, Dodson
was found guilty in state court of attempted murder, intimidation, and two counts of
domestic battery and judgment was entered against him. [DE 14-4.] On December 21,
2016, the Plymouth Defendants filed a motion to dismiss all claims against them for
failure to state a claim. [DE 13.] Dodson did not initially respond to that motion. On
January 9, 2017, the Indiana State Defendants filed an Answer and Statement of
Defenses. [DE 16.] On February 23, 2017, Dodson filed an appeal of his criminal
conviction, which remains pending.
This case was reassigned to me in May 2017. [DE 18.] That same month, I
ordered Dodson to file a response to the Plymouth Defendants’ motion to dismiss by
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June 23, 2017 or face dismissal for want to prosecution. [DE 21.] On June 19, 2017,
Dodson filed a Motion to Stay Proceedings claiming that he never received a copy of the
motion to dismiss. [DE 29.] That same day, Dodson also filed a response to the motion
to dismiss, undermining his claim that he had not received a copy of it. [DE 30.] On
June 26, 2017, Dodson filed a Motion for Appointment of Counsel. [DE 33.] I will
address these motions in turn below.
Discussion
I will begin with Dodson’s motion for appointment of counsel. [DE 33.] Dodson
brought this action as a pro se prisoner and now asks me to appoint him counsel because
he claims that he is unable to represent himself because he is ignorant of the law and
legal procedures, is under psychiatric care and on psychotropic medication, and is
suffering from physical impairments including headaches that require him to be on a
ventilator. “There is no right to court-appointed counsel in federal civil litigation.”
Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014) (citing Pruitt v. Mote, 503 F.3d 647, 649
(7th Cir. 2007)). But in some circumstances, the court may ask an attorney to volunteer
to represent indigent parties pursuant to 28 U.S.C. § 1915(e)(1). “When confronted with
a request under § 1915(e)(1) for pro bono counsel, the district court is to make the
following inquiries: (1) has the indigent plaintiff made a reasonable attempt to obtain
counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of
the case, does the plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503
F.3d 647, 654 (7th Cir. 2007) (en banc).
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Here, while I am sympathetic to Dodson’s sitaution, he makes no mention of
having attempted to obtain counsel on his own. When “the indigent has made no
reasonable attempts to secure counsel (unless circumstances prevented him from doing
so), the court should deny any [such requests for counsel] outright.” Jackson v. County of
McLean, 953 F.2d 1070, 1073 (7th Cir. 1992); see also Pruitt v. Mote, 503 F.3d 647, 654-55
(7th Cir. 2007) (en banc), Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir. 2010). Dodson’s
failure to make an attempt to secure counsel is reason enough to deny the request that I
recruit a lawyer to volunteer to represent Dodson for free at this point.
Next, I turn to Dodson’s motion to stay the proceedings. [DE 29.] As I discuss in
greater detail below, to the extent that any of Dodson’s claims in this action would
necessarily undermine his conviction in state court, they must be dismissed pursuant to
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). If Dodson’s conviction is reversed on
direct appeal by the state appellate court, he may then return here and bring his related
civil claims. But I am not required to stay his claims that might otherwise by barred by
Heck while the appeal of his conviction is pending. See Edwards v. Balisok, 520 U.S. 641,
649 (1997) (“[A]bsent some other bar to the suit, a claim either is cognizable under §
1983 and should immediately go forward, or is not cognizable and should be
dismissed.”).
As we’ll see in a moment, some of Dodson’s claims must survive dismissal
notwithstanding Heck. For the claims that are surviving I will hold off from considering
those claims until Dodson’s criminal appeal is resolved to avoid federal-state friction.

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See Simpson v. Rowan, 73 F.3d 134, 138 (7th Cir. 1995) (finding that the district court
properly abstained under Younger v. Harris, 401 U.S. 37 (1971) from deciding the
plaintiff’s claims until the plaintiff’s appeal of his criminal conviction had been
resolved); see also Nesbitt v. City of Champaign, 34 Fed. App’x 226, 228, 2002 WL 521394,
at *2 (7th Cir. 2002) (“[A] federal court must stay a Fourth Amendment claim filed while
a related state criminal appeal is ongoing.”) The Seventh Circuit has held that in these
circumstances a stay, rather than a dismissal is appropriate. Simpson, 73 F.3d at 138 (“A
stay allows the state case to go forward ‘without interference from its federal sibling,
while enforcing the duty of federal courts to assume jurisdiction where jurisdiction
properly exists.’” (quoting Deakins v. Monaghan, 484 U.S. 193, 202 (1988)). As such, I will
dismiss those claims barred by Heck and stay any remaining claims pending resolution
of Dodson’s appeal of his conviction.
Finally, I turn to the Plymouth Defendants’ motion to dismiss for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). [DE 13.] To survive such a
motion, “a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)
(internal quotation marks and citations omitted); accord Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). I must accept as true all factual allegations in the Complaint and
draw all reasonable inferences in favor of the plaintiff, but I am not required to accept
“threadbare recitals of a cause of action’s elements, supported by mere conclusory
statements.” Ashcroft, 556 U.S. at 663.
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The Plymouth Defendants make two arguments in their motion to dismiss. The
first is that Dodson’s claims are barred by Heck v. Humphrey. [DE 14 at 4.] “[U]nder
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), a prisoner may not bring a civil rights suit
when a favorable outcome of the suit would necessarily undermine the prisoner’s
conviction. Codling v. Trgovich, No. 98-3199, 1999 WL 313741, at *1 (7th Cir. 1999).
Rather, “[i]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a . . . plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called into question by a
federal court’s issuance of a Writ of Habeas Corpus.” Heck v. Humphrey, 512 U.S. 477,
486-487 (1994).
Dodson cannot meet this burden because his conviction is still pending on
appeal. As such, all of Dodson’s claims based on the Defendants’ activities related to
his convictions and subsequent imprisonment must be dismissed. While the Indiana
State Defendants did not move to dismiss the claims against them, they raised a Heck v.
Humphrey defense in their statement of defenses. [DE 16 at 3.] Furthermore, I am under
a continuing obligation to review the legitimacy of all of Dodson’s claims because he
sought, and was granted, leave to file this case free of charge. See 28 U.S.C.
§1915(e)(2)(B). Because of this, pursuant to 28 U.S.C. §1915(e)(2)(B), I must screen the
complaint for frivolous or inadequate claims and may dismiss them at any time. As
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such, I also will dismiss the claims against the Indiana State Defendants that clearly are
barred by Heck v. Humphrey, as pleaded, because they relate to Dodson’s conviction and
incarceration.
Heck v. Humprhey, however, does not bar Dodson’s Fourth Amendment claims
regarding Emenhiser, Ennis, and Hite’s search of Dodson and his vehicle. His Fourth
Amendment claims, if successful, would not necessarily undermine the validity of his
conviction. See Simpson, 73 F.3d at 136. “Because an illegal search or arrest may be
followed by a valid conviction, a conviction generally need not be set aside in order for
a plaintiff to pursue a § 1983 claim under the Fourth Amendment.” Id. As such, these
claims survive the Plymouth Defendants’ motion to dismiss and my screen of the claims
against the Indiana State Defendant.
To summarize, Heck v. Humphrey bars all claims against Plymouth Defendants
Matthew Emenhiser, Bridget Hite, and David Bacon, and Indiana State Defendants
William Ennis and Elmer Lamar Helmuth except the Fourth Amendment claims against
Defendants Matthew Emenhiser, Bridget Hite, and William Ennis. All other claims
against those defendants are dismissed without prejudice.
The Plymouth Defendants also argue that the claims against Plymouth Police
Chief David Bacon and Plymouth Mayor Mark Senter fail because there is no factual
allegation of any personal involvement in the activities that allegedly gave rise to
Dodson’s claims. [DE 14 at 7.] I start by acknowledging that Dodson did not assert
whether he is suing Bacon and Senter in their official or individual capacities. “Where
the plaintiff seeks injunctive relief from official policies or customs, the defendant has
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been sued in her official capacity; where the plaintiff alleges tortious conduct of an
individual acting under color of state law, the defendant has been sued in her
individual capacity.” Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000). Here, Dodson
does not at any point mention the policies or customs of either the Plymouth Police
Department or Indiana State Police Department or indicate that any of his claims are
based on them, nor does he seek injunctive relief. Dodson only seeks damages. For this
reason, I will understand his claims against Bacon and Senter as brought against them
in their individual capacity.
“[I]n order to recover damages against a state actor under § 1983, a plaintiff must
show the actor was personally responsible for the constitutional deprivation.” J.H. ex
rel. Higgin v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003) (internal quotation marks
omitted); see also Kuhn v. Goodlow, 678 F.3d 552, 556 (7th Cir. 2012) (“An individual
cannot be held liable in a § 1983 action unless he caused or participated in an alleged
constitutional deprivation.”). I already found that the claims against David Bacon
should be dismissed because they are barred by Heck. Dodson alleges that Bacon
“[v]iolated [Dodson’s] 6th and 14th Amendment right by knowingly dismissing
witnesses.” [DE 1 at ¶8.] These claims appear to be related to the investigation and
subsequent trial that resulted in Dodson’s conviction and, because a favorable outcome
on these would undermine Dodson’s conviction, they are barred by Heck. Accordingly,
these claims are dismissed without prejudice.
Turning to Dodson’s claim against Mayor Mark Senter, there is very little meat
on the bones. Dodson alleges Senter “[v]iolated [Dodson’s] 14th Amendment right by
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failing to provide equal protection under the law.” [DE 1 at ¶9.] This claim is
completely conclusory without alleging a single fact as to how Senter was involved in
the arrest of Dodson, including how his Fourteenth Amendment right to equal
protection allegedly was violated (by him or any of the Defendants in this action).2
Without any allegations as to personal involvement, the claim against Senter must be
dismissed. Accordingly, this claim is dismissed without prejudice and I will provide
Dodson one more opportunity to sufficiently plead it.
Finally, in reviewing Dodson’s claims against the Indiana State Defendants for
purposes of my Heck analysis, I noticed that Dodson makes the same conclusory
allegation against three individuals, Chad Larsh, Douglas Carter, and Gregory Zoeller,
that he does against Senter. [DE 1 at 5.] Dodson alleges that all three of these
gentlemen “[v]iolated my 14th Amendment right by failing to provide equal protection
under the law.” [Id.] As part of my obligation under 28 U.S.C. §1915(e)(2)(B), even
though the Indiana State Defendants did not move to dismiss these claims, I must
screen the complaint for frivolous or inadequate claims and may dismiss them at any
time. Like Dodson’s identical claim against Senter, his claims against Larsh, Carter, and
Zoeller are conclusory without alleging a single fact as to how they were involved in the
arrest and/or subsequent prosecution of Dodson, including how his Fourteenth
Amendment right to equal protection allegedly was violated, and fail to meet the

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Dodson does not even allege of what protected class he is a member.
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requirements of Iqbal and Twombly. Accordingly, these claim are dismissed without
prejudice and I will provide Dodson one more opportunity to sufficiently plead them.
The only claims in Dodson’s complaint that I have not yet addressed are
Dodson’s claims against Donald C. Curl of the Indiana State Police Department.
Dodson alleges that Curl “[v]iolated my 4th, 6th, and 5th Amendment rights by
conducting an unreasonable search and seizer[sic] of my home to obtain firearms
without a warrant signed by a Judge and not investigating the dismissed witnesses.”
[Id. at 5.] As they pertain to the validity of the warrant and the lack of investigating
“the dismissed witnesses,” success on these claim would necessarily undermine
Dodson’s conviction and are barred by Heck. But, Dodson’s claim that his property was
unreasonably damaged during the execution of the search potentially is a violation of
Dodson’s Fourth Amendment rights, see Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003),
and is not barred because success on that claim would not undermine Dodson’s
conviction. Therefore, Dodson’s claim against Curl for property damage in violation of
the Fourth Amendment remains, and his Fifth and Sixth Amendment claims against
Curl are dismissed without prejudice.
To summarize, after this Opinion and Order, the only claims that remain are
Dodson’s Fourth Amendment claims against Matthew Emenhiser, William B. Ennis,
Bridget Hite, and Donald C. Curl. All other claims are dismissed without prejudice.
The remaining claims are stayed pursuant to Younger v. Harris, 401 U.S. 37 (1971) until
Dodson’s appeal of his criminal conviction is complete. At that time, he must move to
lift the stay in this action to pursue his Fourth Amendment claims against those
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defendants. In addition, because Dodson is pro se and may have viable claims against
Mark Senter, Chard Larsh, Douglas Carter, and Gregory Zoeller for which he
unknowingly provided insufficient detail, once Dodson moves to lift the stay, I will give
him a single opportunity to file an amended complaint and to clarify those claims. His
amended complaint must comply with Federal Rule of Civil Procedure 8 and contain a
short and plain statement of the claims against these individuals showing that he is
entitled to relief.
CONCLUSION
For the aforementioned reasons, the Court:
C

DENIES Lane Grant Dodson’s Motion for Appointment of Counsel [DE
33];

C

GRANTS IN PART AND DENIES IN PART Plymouth Defendants
David Bacon, Matthew Emenhiser, Bridget Hite, and Mark Senter’s
Motion to Dismiss [DE 13]. All claims against Plymouth Defendants
David Bacon, Matthew Emenhiser, Bridget Hite, and Mark Senter are
DISMISSED WITHOUT PREJUDICE except Lane Grant Dodson’s
Fourth Amendment claims against Matthew Emenhiser and Bridget Hite;

C

DISMISSES WITHOUT PREJUDICE all claims against Indiana State
Defendants William Ennis, Elmer Lamar Helmuth, Chad Larsh, Douglas
Carter, and Gregory Zoeller except Lane Grant Dodson’s Fourth
Amendment Claim against William Ennis;

C

DISMISSES WITHOUT PREJUDICE Lane Grant Dodson’s Fifth and
Sixth Amendment claims against Indiana State Defendant Donald Curl;

C

GRANTS Lane Grant Dodson’s Motion to Stay Proceedings [DE 29] as to
the claims that remain after this Opinion and Order pending resolution of
Lane Grant Dodson’s appeal of his criminal conviction;

C

ORDERS Lane Grant Dodson to file a motion to lift the stay in this action
once his appeal of his criminal conviction is complete; and

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C

GRANTS Lane Grant Dodson leave to file an amended complaint once
the stay is lifted that addresses the deficiencies identified above and is
CAUTIONED that failure to do so may result in dismissal of those claims
with prejudice.

SO ORDERED.
ENTERED: July 14, 2017.
_s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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