BOND v. SIMPSON et al

Filing 59

ENTRY ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT: The Defendants' motion for partial summary judgment as to Bond's claims for warrantless entry, failure to intervene, equal protection and due process, and any remaining claims against Officer Layton is GRANTED ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 1/30/2012. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LESLIE BOND,

)
)
Plaintiff,
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)
vs.
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CONRAD SIMPSON, individually and in his )
representative capacity as an officer of the )
INDIANAPOLIS METROPOLITAN
)
POLICE DEPARTMENT, a division of
)
THE CITY OF INDIANAPOLIS, et al.,
)
)
Defendant.
)
)

Cause No. 1:10-cv-865-WTL-TAB

ENTRY ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
This cause is before the Court on the Defendants’ Motion for Summary Judgment (dkt. 42).
The motion is fully briefed, and the Court, being duly advised, GRANTS the Defendants’
motion for the reasons and to the extent set forth below.
I. STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the
admissible evidence presented by the non-moving party must be believed and all reasonable
inferences must be drawn in the non-movant’s favor. Hemsworth v. Quotesmith.com, Inc., 476
F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view
the record in the light most favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor.”). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,

that there is a genuine issue of material fact that requires trial.” Id. Finally, the non-moving
party bears the burden of specifically identifying the relevant evidence of record, and “the court
is not required to scour the record in search of evidence to defeat a motion for summary
judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
II. BACKGROUND1
On July 28, 2008, at approximately 11:30 p.m., dispatchers for the Marion County
Sheriff’s Department received an incomplete 911 call. The 911 call came from 5146 W. Naomi
Street and included a phone number registered to a Deana Bond. Based upon the disconnected
911 call, at 11:31 p.m. an operator dispatched Officer Conrad Simpson, an officer with the
Indianapolis Metropolitan Police Department (“IMPD”), to investigate.
In fact, the 911 call was initiated following an argument between the Plaintiff Leslie
Bond (“Bond”) and his wife Deana. The argument centered around a $2,500 charge that Bond

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In his response to the instant motion, Bond states that he does not respond to the
Defendants’ motion for summary judgment as to certain of his claims, namely, his claims for
failure to intervene, violation of equal protection, violation of substantive due process, and all
remaining claims against Officer Layton. Local Rule 56-1(f) provides that the Court will assume
that the facts claimed and supported by admissible evidence by the movant are admitted without
controversy except to the extent that the non-movant specifically controverts the facts in that
party’s “Statement of Material Facts in Dispute” with admissible evidence. In a footnote to his
fact statement, Bond explains that he has limited his “Statement of Material Facts in Dispute” to
those relating to the one claim to which he has responded, his unlawful entry claim, while noting
that other facts not germane to that claim are in fact disputed. Bond then cites a laundry list of
deposition testimony. To the extent that Bond has not specifically controverted the facts in the
Defendants’ statement relating to issues other than his unlawful entry claim, and furthermore to
the extent that Bond admittedly does not respond to these claims, the Court considers all
properly supported facts relating to these other claims to be admitted for the purposes of this
motion. See LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 389 (7th Cir. 1995) (“We have on
numerous occasions upheld a district court’s strict adherence to that rule. . . . Thus if the party
opposing summary judgment fails to respond to the facts set out by the movant, the court may
assume those facts to be admitted and use them in determining whether the movant is entitled to
judgment as a matter of law.”).
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had discovered on their credit card. After the Bonds’ daughter went to bed, Bond confronted his
wife. However, she attempted to get in the shower in what Bond believes was an effort to avoid
the conversation. The conversation escalated as both Bond and Deana raised their voices. At
some point, Bond yelled “Damnit, I want an answer,” and slammed the bathroom door, breaking
the top hinge. He then tore the shower curtain off the wall because he believed Deana “was
trying to go in [the shower] so she didn’t have to explain $2,500 on the credit card.” According
to Bond, after he broke the door, Deana said, “Don’t be doing that, I will call the cops.” This
further angered Bond, and he then dialed 911, handing the phone to his wife. Deana did not
know who Bond had called. Taking the phone, Deana said, “I don’t want it.” She then threw the
phone into the sink, breaking it.
Deana then remembers continuing to argue with the Plaintiff for “several minutes” after
she threw the phone in the sink and broke it, explaining that he did not leave the bathroom until
approximately fifteen minutes after Deana broke the phone. She explained that it was then
roughly five minutes before she walked into the living room and saw the police.
Bond remembers the following events differently. According to Bond, after Deana threw
the phone in the sink, Bond left the bathroom and went into his bedroom, and this ended the
argument. He did not speak to Deana again until after he was arrested. Bond does not remember
the amount of time that passed between the end of the argument and the arrival of police,
explaining at first, in his “guesstimation,” the argument had been over for about twenty minutes
before the police arrived, but later stating that “It’s rough when adrenaline is going, 10, 20
minutes. It could have been 10 minutes [when we were not arguing], I don’t know. I just know I
handed her the phone, walked in the room, got clothes together, I slid on my jean shorts, [and]

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that is all I got done when I heard the police knock on the door. I’m not exactly sure how long it
was from the time I dialed 911 and the police responded.”
In fact, Officer Simpson arrived at the Bonds’ residence at approximately 11:31 p.m.
Upon arrival, Officer Simpson walked to the front of the house to investigate the incomplete call.
Officer Simpson testified that he heard people “arguing” toward the back of the house. Officer
Simpson then walked down the driveway toward the back of the house, where he later testified
that he heard a female voice say “No, stop it, don’t” and “Stop it, stop it, no.” Ryan Thompson,
the son of Bond’s neighbor, told Officer Simpson that he also heard a female voice yelling.
Officer Simpson then looked in a side window that faced the driveway. This window is
tinted and, according to the Bond’s neighbor, Robert Thompson, is it not possible to see through
the window. However, according to Officer Simpson, because it was dark outside and there was
a light on inside the house, he could see through the window and into the bathroom of the
residence. While there were wood blinds that could have obstructed Simpson’s view, the blinds
were tilted at an angle so that Officer Simpson could see down toward the floor of the interior.
There he saw the unhinged bathroom door leaning against a wall and a shower curtain and
broken curtain rod on the floor. Because of what he witnessed, Officer Simpson began knocking
loudly on the door closest to the source of the voices he heard—the back door of the house. No
one answered the door.
As he continued to knock on the back door, Officer Simpson heard yelling, and also
heard “some shuffling noises and some thuds, which [he] believed to be somebody…being
physically assaulted or wrestling inside the house.” Officer Simpson described the noises
further: “somebody getting thrown into a wall or it could have been moving furniture.”

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However, “based on the time of night, an incomplete [911] phone call and what was being
said,” he believed that someone could have been “physically assaulted and not able to yell
for help.”
Officer Simpson continued knocking loudly on the back door for a minute to a minute
and a half, but no one answered the back door. Officer Simpson then radioed for additional
officers to back him up. Officer Simpson also radioed the dispatcher and indicated that he heard
arguing but that no one was answering the door.The dispatcher included this radio
communication in the incident history detail or “CAD report” for the run at 11:34:55 p.m.,
noting “SUBJ NOT ANSWERING THE DOOR, WHEN OFFICERS ARRIVED THEY WERE
FIGHTING.”
Shortly after Officer Simpson radioed for additional help, Officers Patrick Bragg and
Nikolas Layton arrived on scene. Officer Bragg arrived at 11:34 p.m., and Officer Layton arrived
about a minute later. They walked to the front door of the residence and began knocking on the
front door, while Officer Simpson continued knocking on the back door. Eventually, Bond made
his way to the front door, and Officers Bragg and Layton told Bond to “open up” more than once
and identified themselves as police. The second and third times they asked him to open the door,
Leslie refused, saying “I ain’t opening shit.” Because Officers Bragg and Layton had made
contact with Bond, Officer Simpson made his way to the front door. Based on what he had heard
and seen, Officer Simpson then decided that he had enough information to “justify forcing
entry.” He did so by kicking at the door, forcing it open.
Once he forced entry to the residence through the front door, Officer Simpson, Officer
Bragg, and Officer Layton entered a dark living room. Officer Simpson saw Bond near the living

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room couch, although Bond and Officer Simpson dispute what exactly Bond was doing. Officer
Simpson testified that Bond was in a dark room, standing “like he is going to physically fight
us.” Officer Simpson testified Bond’s body was “bladed” “like a boxer” and that his fists were
clenched. He also ordered Bond to put his hands up by saying “Show me your hands” or “Put
your hands up,” but Bond refused. Officer Simpson then discharged his taser. The prongs fired
from the taser, hit Bond, and discharged for one five-second cycle. Officer Simpson did not use
his taser again.
In contrast, Bond testified that the force of the kicking on the door sent Bond, who had
been standing on the other side of it, backward and he landed on his living room couch in a nearprone position. Officer Simpson then discharged his taser.
Officer Bragg then attempted to place Bond into handcuffs. Bond refused to comply with
the officers’ commands to put his hands behind his back and the officers forcibly had to pull his
hands back.
Around this time, Deana, who was not wearing any clothing, came into the living room
from the bathroom. She saw her husband on the floor with “a couple cops” and her daughter
sitting in a living room chair. As soon as she saw this, Deana realized that she was naked.
Officer Layton took her and her daughter to the kitchen. Officer Layton “asked [Deana] if [she]
was okay” and then escorted Deana to her room so that she could put on some clothes.
After Bond was placed in handcuffs, Officer Bragg escorted him outside. At this point,
while Bond was being taken outside with his hands handcuffed behind his back, he fell, striking
the ground with his face and breaking his jaw. The parties dispute how this occurred, but the
officers maintain that Bond physically pulled away from Officer Bragg, dragging him out the

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front door and toward the driveway while Officer Bragg held on to Bond by the handcuffs.
Officer Bragg told Bond to sit down multiple times, but Bond continued to pull away from him.
Officer Simpson testified that he then saw Officer Bragg “attempt to move [Bond’s] foot in order
to adjust his balance so he could help him sit down on the porch,” a move that Officer Bragg
described to Officer Simpson as a “foot sweep.” Officer Simpson did not see what happened
next.
In contrast, Bond maintains that he fell when Officer Bragg kicked him in the mid-back
area. Bond speculates this happened because he believes Officer Bragg observed what “he
thought was running” when Bond “stumbled” and “tripped over [a] step and landed in his
driveway.” Bond alleges he “stumbled” because Officer Bragg “jerked” and “spun him.” Bond
then alleges that once he landed on his face, Officer Bragg “kneed” him, placing one knee in his
left leg and one knee in his back to restrain Bond from getting up. He was not struck again by
any officer.
As Bond lay injured in the driveway, Officer Simpson came out and sat Bond down on
the porch. Later Officer Layton came out of the house, fixed Bond’s glasses, and “tried to get
[the front] door frame squared away so it was lockable.”
Bond was arrested for resisting law enforcement for pulling away from Officer Bragg.
His case was tried before a jury in Marion Superior Court and he was found not guilty of the
charges.
Bond now brings this action against the officers under § 1983.2 Bond alleges that Officer

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Insofar as Bond asserted claims against the officers in their official capacities, the Court
granted the Defendants’ motion for judgment on the pleadings as to these claims. (dkt. no. 18)
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Simpson’s conduct (1) deprived him of his right to be secure from unreasonable searches and
seizures under the Fourth Amendment; (2) violated his due process and equal protection rights
by using excessive force when Officer Simpson deployed his taser; (3) deprived Bond of his due
process rights when he deployed his taser because he placed Bond in a position of danger that
Bond would not have otherwise faced; (4) violated his due process rights by falsely arresting
Bond, and (5) constituted a failure to intervene when he did not intervene in Officer Bragg’s use
of the foot sweep maneuver.
Bond alleges that Officer Bragg’s conduct (1) deprived him of his right to be secure from
unreasonable searches and seizures under the Fourth Amendment; (2) violated his due process
and equal protection rights by using excessive force in the form of a foot sweep; (3) deprived
Bond of his due process rights when he executed the foot sweep because he placed Bond in a
position of danger that Bond would not have otherwise faced; (4) violated his due process rights
by falsely arresting Bond, and (5) constituted a failure to intervene when he did not intervene in
Officer Simpson’s use of his taser.
Bond alleges that Officer Layton’s conduct (1) deprived him of his right to be secure
from unreasonable searches and seizures under the Fourth Amendment; and (2) constituted a
failure to intervene when he did not intervene in Officer Simpson’s use of his taser and Officer
Bragg’s use of the foot sweep maneuver
III. DISCUSSION
The Defendants have moved for partial summary judgment as to Bonds’ claims against
all the officers for (1) warrantless entry into Bond’s home; and (2) failure to intervene. The
Defendants have also moved for summary judgment as to all claims against Officer Layton on

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the ground that there is no evidence of personal involvement in any purported claim. Finally, the
Defendants argue that there is no evidence to support Bond’s due process or equal protection
claims.3
The Defendants also assert that they are entitled to qualified immunity on the above
claims because they did not violate a clearly established right. The Court addresses each of these
claims in turn.
A. Unlawful Entry
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated.” “The physical entry of the home is the chief evil against which the wording of the
Fourth Amendment is directed, and accordingly, warrantless entries are considered
presumptively unreasonable.” United States v. Ellis, 499 F.3d 686, 689 (7th Cir. 2007) (citations
omitted). However, “the Fourth Amendment does not bar police officers from making
warrantless entries and searches when they reasonably believe that a person within is in need of
immediate aid.” Mincey v. Alabama, 437 U.S. 385, 392 (1978). “This so-called ‘emergency
doctrine’ is an exception to the ordinary requirement of a warrant for entry into a home.” SheikAbdi v. McClellan, 37 F.3d 1240, 1244 (7th Cir. 1994). “Thus, the burden falls upon the officer
to show the existence of an objectively reasonable belief that this intrusion was made to ‘render
assistance or prevent harm to persons or property within.’” Id. “[A]s is normally the case for
Fourth Amendment inquiries, the test is objective: ‘the government must establish that the

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The Defendants do not move for summary judgment as to Bond’s claims for excessive
force and false arrest.
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circumstances as they appeared at the moment of entry would lead a reasonable, experienced law
enforcement officer to believe that someone inside the house, apartment, or hotel room required
immediate assistance.’” United States v. Richardson, 208 F.3d 626, 629 (7th Cir. 2000)(quoting
United States v. Arch, 7 F.3d 1300, 1304 (7th Cir. 1993)). The existence of exigent
circumstances is a mixed question of law and fact. United States v. Kempf, 400 F.3d 501, 503
(7th Cir. 2005).
In this case, the circumstances as they appeared at the moment Officer Simpson kicked
down the door and entered the Bonds’ home with Officers Bragg and Layton are disputed in the
generic sense – Bond asserts that it was “impossible” for Office Simpson to have seen what he
claims he had seen before he decided to kick down the Bonds’ door.4 More specifically,
however, Bond’s arguments boils down to an allegation that Officer Simpson is lying.
“However, when challenges to a witness’ credibility are all that a plaintiff relies on, and he has
shown no independent facts–no proof–to support his claims, summary judgment in favor of the
defendant is proper.” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Insofar as Bond

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Bond argues in his affidavit that it is “impossible” to see through the window because it
is tinted, dressed with wooden blinds, and those blinds were closed. Furthermore, in his
“Statement of Material Facts in Dispute,” Bond argues that it was impossible for Officer
Simpson to have seen through the window and that Officer Simpson could not have heard
arguing coming from inside the house because Bond had stopped arguing with Deana
immediately after the incomplete 911 call and the officers did not arrive until approximately ten
to twenty minutes after the phone call had been placed. In response, the Defendants argue that
Bond’s affidavit and Statement include arguments, not facts, because Bond addresses matters
about which he has no personal knowledge. To the extent that Bond does argue about matters not
within his personal knowledge (i.e., what Officer Simpson saw and when Officer Simpson
arrived), the Defendants’ argument is well taken and these statements do not constitute evidence.
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presents no evidence contradicting Simpson’s assertions,5 the Court considers Simpson’s
testimony as to what he had seen before he kicked in the Bonds’ front door as the established
circumstances surrounding the event.
The question thus becomes whether the circumstances as they appeared to Simpson at the
moment of entry would lead a reasonable, experienced law enforcement officer to believe that
someone inside the house required immediate assistance. Certain “911 calls reporting an
emergency can be enough to support warrantless searches under the exigent circumstances
exception, particularly where . . . the caller identifie[s] himself.” Richardson, 208 F.3d at 630.
While the caller in this case did not identify himself, the 911 call is not the only evidence upon
which Simpson relied when he decided to enter the home. The undisputed evidence establishes
that Simpson: (1) had been dispatched to a residence registered to a female following a
disconnected 911 call; (2) had seen through a window an unhinged bathroom door leaning
against a wall and shower curtain and broken curtain rod on a bathroom floor; (3) had been
knocking on the back door but had received no answer; (4) had heard shuffling noises and thuds;
and (5) had encountered a male subject who refused to open the door. The incomplete 911 call,
combined with the damage in the bathroom, the failure to answer the door, the shuffling noises
and thuds, and Bond’s refusal to open the door, supports a reasonable belief that someone inside
the house required immediate assistance. The officers’ entry thus falls within the immediate aid

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There is a genuine dispute as to whether there was any yelling to be heard after the 911
phone call; Bond claims that he and Deana stopped arguing after she threw the phone in the sink,
but Officer Simpson claims that he heard yelling when he arrived at the house. Accordingly, the
Court has not considered this evidence in making its determination.
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exception and does not run afoul of the Fourth Amendment.6 For this reason, the Defendants’
motion for summary judgment as to Bond’s claim for warrantless entry is GRANTED.
B. Failure to Intervene
Bond specifically explains that he makes no response to the Defendants’ motion for
partial summary judgment as to his claims for failure to intervene. However, this does not
automatically entitle the Defendants to summary judgment. Rather, “[e]ven if the opposing party
completely fails to respond to a summary judgment motion, Rule 56(e) permits judgment for the
moving party only ‘if appropriate-that is, if the motion demonstrates that there is no genuine
issue of material fact and that the movant is entitled to judgment as a matter of law.’” Johnson v.
Gudmundsson, 35 F.3d 1104, 1112 (7th Cir. 1994) (citing Tobey v. Extel/JWP, Inc., 985 F.2d
330, 332 (7th Cir. 1993) (emphasis supplied by Court in Johnson).
Under certain circumstances, a police officer may be liable for failing to stop other
officers who perpetrate constitutional violations against a third person in his presence or within
his knowledge. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Specifically
[a]n officer who is present and fails to intervene to prevent other law enforcement
officers from infringing the constitutional rights of citizens is liable under § 1983
if that officer had reason to know: (1) that excessive force was being used; (2)
that a citizen has been unjustifiably arrested; or (3) that any constitutional
violation has been committed by a law enforcement official; and the officer had a
realistic opportunity to intervene to prevent the harm from occurring.
Id. (emphasis in original).

1. Failure to Intervene in Officer Simpson’s Conduct

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Bond focuses on what Officer Simpson knew and then lumps analysis of the entry by
Officers Bragg and Layton with Simpson’s entry. The Court will do so as well.
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Bond asserts a claim for failure to intervene against Officers Bragg and Layton with
respect to Officer Simpson’s deployment of his taser against Bond. The undisputed evidence
establishes that Officers Bragg and Layton were present when Officer Simpson deployed his
taser. However, assuming that Officer Simpson’s use of the taser constitutes excessive force,
Bond must still show that Officers Bragg and Layton had reason to know that Officer Simpson
was using excessive force, and that the officers had a realistic opportunity to intervene. In
choosing not to respond to the Defendants’ motion for summary judgment as to this claim, Bond
puts forth no evidence establishing either these elements or a genuine issue of material fact as to
these elements. For this reason, the Defendants’ motion to summary judgment as to Bond’s
claims for failure to intervene against Officer Simpson is GRANTED.
2. Failure to Intervene in Officer Bragg’s Conduct
Bond alleges that Officers Simpson and Layton are liable for failing to intervene in
Officer Bragg’s use of the foot sweep. Assuming for the purposes of this argument that Officer
Bragg’s use of the foot sweep constitutes excessive force, Bond’s claim for failure to intervene
in this conduct fails as to Officer Layton because Officer Layton was not present. The
undisputed evidence establishes that Officer Layton was inside the home, talking with Deana and
the Bonds’ daughter and helping Deana find some clothing.
Officer Simpson, on the other hand, saw Officer Bragg perform the foot sweep, but did
not see what happened thereafter. Assuming again for the purposes of this inquiry that the foot
sweep constitutes excessive force, Bond must put forth evidence establishing that Officer
Simpson had reason to know that Officer Bragg’s use of the foot sweep was excessive force, and
that Officer Simpson had a realistic opportunity to intervene in Officer Bragg’s conduct, or Bond

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must demonstrate a genuine issue of material fact as to these elements. Bond has done neither.
For these reasons, the Defendants’ motion for summary judgment as to Bond’s claims for
failure to intervene in Officer Bragg’s activities is GRANTED.
C. Equal Protection and Due Process
While Bond broadly alleges violations of the Equal Protection Clause and the Due
Process Clause in his Complaint, he makes no response to the Defendants’ motion for summary
judgment on these claims. In doing so, Bond does not articulate his theory supporting these
claims, much less carry his burden to assert prima facie cases. See Zerante, 555 F.3d at 584 (“[a]
party who bears the burden of proof on a particular issue may not rest on its pleadings, but must
affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material
fact that requires trial”). Summary judgment as to Bond’s claims for equal protection and due
process is accordingly GRANTED.
E. Remaining Claims Against Officer Layton
To the extent that any claims remain against Officer Layton, Bond has not put forth the
theory of his case nor asserted any evidence in support of his remaining claims. Summary
judgment as to any remaining claims against Officer Layton is GRANTED.
IV. CONCLUSION
The Defendants’ motion for partial summary judgment as to Bond’s claims for
warrantless entry, failure to intervene, equal protection and due process, and any remaining
claims against Officer Layton is GRANTED.7

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Because the Court grants summary judgment as to these claims on the bases articulated
above, the Court need not address the Defendants’ alternative qualified immunity argument.
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SO ORDERED: 01/30/2012

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic communication

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