PASTORE v. ZELLERS et al

Filing 56

ENTRY ON MOTION FOR SUMMARY JUDGMENT - For the foregoing reasons, the Court GRANTS in part and DENIES in part the Motion for Summary Judgment filed by Defendants Dustin Dixon and Nathan A. Biddle. (Filing No. 38 ) summary judgment is granted with respect to Officer Biddle and he is dismissed from this action. Resolving factual disputes in Pastore's favor, a reasonable jury could find that Sergeant Dixon's use of force was objectively unreasonable. In addition, clearly establishe d law would have notified Deputy Biddle that the Fourth Amendment would prohibit his use of force under the circumstances present here. Pastore's claim against Sergeant Dixon for use of excessive force will proceed to trial. (See Entry.) Signed by Judge Tanya Walton Pratt on 12/30/2016. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LOUIS R. PASTORE,
Plaintiff,
v.
DUSTIN DIXON, Sergeant, in individual
capacity as officer of the Hamilton County
Sheriff’s Department, and
NATHAN A. BIDDLE, Deputy, in individual
capacity as officer of the Hamilton County
Sheriff’s Department,
Defendants.

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Case No. 1:15-cv-00892-TWP-DKL

ENTRY ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment filed pursuant to
Federal Rule of Civil Procedure 56 by Defendants Dustin Dixon (“Sergeant Dixon”) and Nathan
A. Biddle (“Deputy Biddle”) (collectively “Defendants”). (Filing No. 38.) During a traffic stop
by police officers, Plaintiff Louis R. Pastore (“Pastore”) was severely injured when a police dog
was released on him as he attempted to exit his vehicle. On May 8, 2015, Pastore filed a Complaint
asserting that the Defendants used excessive force in violation of 42 U.S.C. §1983 by using a forty
millimeter foam projectile launcher and a police K-9 when arresting him. (Filing No. 1-1.) On
July 6, 2016, Defendants filed a Motion for Summary Judgment, asserting that they are entitled to
qualified immunity and they did not use excessive force. For the following reasons, the Court
GRANTS in part and DENIES in part the Defendants’ Motion for Summary Judgment.
I.

BACKGROUND

Except where noted otherwise, the following facts reflect Pastore’s account of the events

as well as evidence from the police in-car videos 1. As with any summary judgment motion, the
facts are reviewed in the light most favorable to Pastore, the nonmoving party, and the Court draws
all reasonable inferences in Pastore’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009).
On March 7, 2014, after taking antidepressant medicine, smoking a marijuana cigarette,
and consuming four or five alcoholic beverages, Pastore left the Moon Dog Tavern located on
96th Street just east of Keystone Parkway in Indianapolis, Indiana. Pastore entered his vehicle and
headed west towards Keystone Parkway at approximately 11:50 p.m. While driving his patrol car
east on 96th Street from Keystone Parkway towards the Moon Dog Tavern, Andrew Zellers, an
officer with the Carmel Police Department, observed Pastore’s Jeep travelling at a high rate of
speed and switching lanes without using a turn signal. Officer Zellers visually estimated that
Pastore was driving at a speed of fifty-five miles per hour in a thirty-five miles per hour zone.
Officer Zellers made a U-turn and activated his emergency lights as he pulled behind Pastore’s
vehicle. Because the vehicle did not immediately stop, Officer Zellers activated his police siren as
he intended to issue citations for the traffic violations he had witnessed.
Pastore had his windows up and his radio on. He did not see the police lights or hear Officer
Zellers’ siren until he approached a left turn lane at the intersection of 96th Street and Keystone
Parkway. Officer Zellers believes this was nearly one minute after he activated his equipment.
Because his vehicle was in the left turn lane of 96th Street, Pastore considered the safest place to
pull over was after he went through the intersection. Thus, he turned left and travelled through
the intersection of 96th and Keystone Parkway. After turning left, Pastore pulled onto the right

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The Defendants designated as evidence five video-clips from Carmel Police Department’s In-Car Video
Equipment relating to the March 7-8, 2014 extraction of Plaintiff Louis R. Pastore from his vehicle and Mr.
Pastore’s arrest. (See Filing No. 40 and 42).

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shoulder of southbound Keystone Parkway. Pastore was not certain that he was the subject of the
traffic stop, so he continued to roll slowly in the shoulder lane. He made a complete stop after
several seconds and then placed his vehicle into park. Unsure as to why he had been pulled over,
Pastore remained in his vehicle and waited for the officer to approach his car and ask for his license
and registration.

However, Officer Zellers did not approach Pastore’s Jeep and remained

approximately thirty feet behind Pastore’s vehicle. Meanwhile, Pastore fell asleep (or passed out)
while waiting for Officer Zellers to approach his Jeep. While he was asleep and unresponsive in
his driver’s seat, Pastore vomited on himself and on his driver’s side window.
Officer Zellers exited his patrol car but still did not approach Pastore’s Jeep; instead, he
stood by his vehicle thirty feet away and commanded Pastore to put his hands outside the window.
Pastore did not hear the commands due to the distance, traffic noise, and because by this time he had
already passed out. When Pastore did not reply to the initial command, over the course of eight
minutes, another officer with the Carmel Police Department who had arrived on the scene, John K.
Govin, used a loud speaker and continued commanding Pastore to place his hands outside of the
window. Officer Govin also remained at least thirty feet behind Pastore’s vehicle and made the
commands in both English and Spanish. Pastore again did not respond. The officers noted that Pastore
was laying down and appeared to be passed out in the front seat. Soon thereafter, officers received
information through their dispatch radios that the vehicle was registered to Louis Pastore and that
Pastore had a driving status of “Suspending Infraction,” a prior arrest for Operating While Intoxicated
in 2010, as well as for Operating While Intoxicated and Resisting Law Enforcement in 2013.
At 12:13 a.m., twenty-five minutes had elapsed since Officer Zellers first pulled Pastore over.
Several officers from the Hamilton County Sheriff’s Department and Carmel Police Department
had arrived on the scene. Sergeant Dixon heard about the incident on his radio and offered his

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assistance, noting that he was nearby with his K-9, Dibo. (Filing No. 39-4.) Deputy Biddle heard
Officer Zellers radio for assistance, so he also traveled to the scene. Soon there were nine police
officers in total on the scene, including the Defendants, Sergeant Dixon and Deputy Biddle.
Pastore remained unresponsive and passed out in the front seat of his vehicle. Prior to Sergeant
Dixon’s and Deputy Biddle’s arrival to the scene, Officer Govin had commanded Pastore to get
out of the Jeep or he will be bit. Officer Govin repeated similar statements at 12:14 a.m. and 12:16
a.m. Sergeant Dixon did not observe any movement in Pastore’s vehicle or hear a vocal response
to the warnings. (Filing No. 39-3 at 2.)
The officers closed southbound Keystone Avenue to all traffic. At approximately 12:17
a.m., Sergeant Dixon and Deputy Biddle pulled alongside Pastore’s Jeep with their rifles aimed.
Deputy Biddle then fired a forty millimeter foam projectile launcher into the rear driver’s side
window of Pastore’s vehicle. The purpose of the foam projectile launcher was to break the window
to allow a chemical substance to enter the vehicle, allow a passage way for the K-9 to enter, or to
permit police officers to open the rear door. Rather than shattering the window as intended, the
foam projectile launcher created only a small hole in Pastore’s rear driver’s side window. An
officer then commanded Pastore to place both hands outside the window. However, Pastore
remained passed out and again did not respond.
At 12:18 a.m., several officers approached the vehicle with their weapons drawn and
placed stop sticks under Pastore’s tire to prohibit him from driving away. An officer then used
his baton and shattered Pastore’s front driver’s side window. After hearing the window shatter,
Pastore finally woke up. Officers commanded Pastore to show his hands, open his door, and exit
the vehicle. Pastore attempted to exit the Jeep with his hands raised, but he could not unlatch the
seat belt and turned back to release the button. While Pastore’s hands were raised up and outside

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of the Jeep, Sergeant Dixon ordered Dibo to attack Pastore. Sergeant Dixon did not issue a warning
that he was about to release his K-9. Dibo bit into Pastore’s left arm and started to pull Pastore
from the car, but Pastore was still restrained by his seatbelt. Officer Zellers then cut Pastore’s seat
belt, which had become tangled around Pastore’s left arm. Dibo continued to bite Pastore for
approximately thirty seconds. Officers pushed Pastore to the ground on his stomach and pressed
their knees into his back while they handcuffed him. After Pastore was placed in handcuffs,
Sergeant Dixon physically removed Dibo.
The Carmel Fire Department transported Pastore to Riverview Hospital where he was
treated for his injuries before he was transported to jail. In August 2014, Pastore pled guilty to
Class A misdemeanor Resisting law Enforcement and Class D felony Operating a Vehicle while
Intoxicated while having a prior conviction. On May 8, 2015, Pastore filed a Complaint in the
Marion Superior Court asserting the Defendants used excessive force when arresting him in
violation of his Fourth Amendment rights. (Filing No. 1-1.) On June 5, 2015, Defendants removed
the case to federal court. Defendants now seek summary judgment, asserting that Pastore’s Fourth
Amendment rights were not violated, they are entitled to qualified immunity, and Deputy Biddle
should not be liable for failing to remove Sergeant Dixon’s K-9. (Filing No. 38.)
II.

SUMMARY JUDGMENT STANDARD

The purpose of summary judgment is to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Under Federal Rule of Civil Procedure 56, summary
judgment is appropriate only where there exists “no genuine issue as to any material facts and . . .
the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. In ruling on a
motion for summary judgment, the court reviews “the record in the light most favorable to the

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non-moving party and draw[s] all reasonable inferences in that party’s favor.” Zerante, 555 F.3d
at 584 (citation omitted). “However, inferences that are supported by only speculation or
conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d
624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[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.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489–90 (7th Cir. 2007) (citation
omitted). “The opposing party cannot meet this burden with conclusory statements or speculation
but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp.,
900 F. Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).
“In much the same way that a court is not required to scour the record in search of evidence
to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits
of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation
marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties
nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion
for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir.
1997) (citations and quotation marks omitted).
III.

DISCUSSION

The Defendants moved for summary judgment on Pastore’s Fourth Amendment claim of
excessive force, asserting the force was reasonable because Pastore failed to comply with the
officers’ commands, and he was a possible danger to the community and the officers. The
Defendants also moved for summary judgment on Pastore’s claim that Deputy Biddle should be

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held liable for failing to intervene when Sergeant Dixon ordered the K-9 to attack Pastore. The
Defendants also assert they are entitled to qualified immunity, which the Court will address first.
A.

Qualified Immunity
The Defendants assert that they are entitled to qualified immunity against Pastore’s alleged

Fourth Amendment claim. “[G]overnment officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments and protects all but the plainly
incompetent or those who knowingly violate the law.” Messerschmidt v. Millender, 565 U.S. 535,
546 (2012) (citation and quotation marks omitted).
To determine whether qualified immunity applies, the Court must determine whether,
“[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the
officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). The
Court also determines “whether the right was clearly established. This inquiry, it is vital to note,
must be undertaken in light of the specific context of the case, not as a broad general proposition.”
Id.
1.

Violation of a Constitutional Right

Pastore alleges that the Defendants violated his Fourth Amendment right when they used
excessive force while arresting him. Excessive force claims are analyzed using the Fourth
Amendment’s “reasonableness” standard in the context of “an arrest, an investigatory stop or any
other type of seizure.” Stainback v. Dixon, 569 F.3d 767, 771 (7th Cir. 2009). The Fourth
Amendment protects against the use of force that is not “objectively reasonable.” Kinney v. Ind.

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Youth Ctr., 950 F.2d 462, 465 (7th Cir. 1991). The “right to make an arrest . . . necessarily carries
with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v.
Connor, 490 U.S. 386, 396 (1989). However, this right is not without limits; 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) (citation and quotation marks omitted).
To determine reasonableness, courts must “balance the nature and quality of the intrusion
on the individual’s Fourth Amendment interests against the importance of the governmental
interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8–9 (1985) (citation
and quotation marks omitted). In considering this balance, the court considers the severity of the
crime at issue, whether the suspect posed an immediate threat to the safety of others, and whether
the suspect was actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S.
at 396. When considering this balance, the court views the circumstances “from the perspective
of a reasonable officer on the scene.” Id. The ultimate question is whether the officers’ actions
are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation. Graham at 397. And, “[b]ecause questions of
reasonableness are not well-suited to precise legal determination, the propriety of a particular use
of force is generally an issue for the jury.” Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994).
Accord. Phelps v. City of Indianapolis, No. 1:02-cv-1912-DFH-VSS, 2004 WL 1146489, at *9
(S.D. Ind. May 10, 2004) (noting that reasonableness “is often a question for a jury, though in
some cases the issue can be decided as a matter of law”).
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490

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U.S. at 396. But an officer’s perceptions justify his use of force only to the extent his perceptions
are reasonable. E.g., Baird v. Renbarger, 576 F.3d 340, 344–45 (7th Cir. 2009) (“Renbarger’s
subjective concerns do not transform this setting into one calling for such a heavy-handed use of
force.”). Therefore, “[t]he reasonableness of the force used depends on the totality of the facts and
circumstances known to the officer at the time the force is applied.” Abbott, 705 F.3d at 724.
The alleged excessive force consists of Deputy Biddle firing a forty millimeter foam
projectile launcher into Pastore’s rear window and Sergeant Dixon ordering his K-9 to attack
Pastore. The Defendants claim that they did not use unreasonable force against Pastore because
Pastore previously resisted law enforcement, Pastore did not respond to numerous orders or
commands, and the officers were unaware if Pastore had a weapon or was planning to flee.
Under the factors articulated in Graham, questions of fact remain that should be resolved
by a jury. The severity of the crimes at issue—speeding, driving with a suspended status, and
switching lanes without using a turn signal—were minimal. These traffic violations did not involve
physical violence or damage to property. Additionally, as Pastore persuasively argues, his prior
arrests for resisting arrest and operating while intoxicated are not relevant to the incident that
occurred on March 7, 2014. See Becker v. Elfreich, 821 F.3d 920 (7th Cir. 2016) (holding an
officers’ force was not justified when the underlying crime occurred several weeks earlier, there
was no evidence that the plaintiff was still armed, and the plaintiff did not resist or attempt to flee).
Pastore argues that he did not pose a danger nor was he resisting arrest because it was
clearly visible to all officers that Pastore was unconscious. Defendants contend that their actions
were objectionably reasonable because they did not know whether Pastore had access to a weapon
or was planning to flee. The Court respectfully disagrees. To begin, officers had no articulable
rational basis for believing that Pastore was armed and there was no evidence that he was known

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to carry or possess weapons. The Court recognizes that officers are often forced to make splitsecond decisions, however, in this case the evolving situation does not justify the amount of force
used. Over the course of thirty minutes, the officers discussed their tactical plan for removing
Pastore from the vehicle. Whether it was objectively reasonable for Sergeant Dixon to perceive
Pastore’s unresponsiveness as a threat to the officers’ safety that warranted ordering a K-9 to attack
Pastore, severely injuring him, is highly disputed and an issue for trial.
With respect to the officers’ concern that Pastore was planning to flee, Pastore was visibly
passed out. Throughout the videos, the officers discussed that Pastore appeared to be passed out in
the front seat, he was not responsive to light and was not moving. Officers broadcast over the radio
that “there was no movement or response from the driver of the vehicle”, and that “he must be
laying down in the front seat or something because I can’t see him”. Whether it was objectively
reasonable for Sergeant Dixon to believe Pastore was planning to flee is an issue for trial. In
addition, whether it was objectively reasonable to perceive Pastore’s slowness to stop his vehicle
thirty minutes earlier as actively resisting or attempting to evade arrest, is also highly disputed and
an issue for trial. Upon review of the designated evidence and the totality of the circumstances,
the reasonableness of Sergeant Dixon’s actions during the encounter with Pastore should be
determined by the trier of fact and summary judgment is not appropriate in this regard.
The Court, however, determines from the totality of circumstances that Deputy Biddle did
not use greater force than was reasonably necessary to make the arrest when he fired the foam
projectile launcher. “Force is reasonable only when exercised in proportion to the threat posed…”
Cyrus v. Town of Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010). Deputy Biddle unsuccessfully
fired a forty millimeter foam projectile launcher, intending to shatter Pastore’s window but instead
created only a small hole in Pastore’s rear driver’s side window. His intent in firing the projectile

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was to gain entry into the vehicle and not to harm Pastore. The evidence presented shows that
Pastore was not injured by the launcher, and Pastore concedes that he remained unresponsive, even
after Deputy Biddle fired the launcher. In considering the issue of qualified immunity, the Court
finds that Pastore has not shown that Deputy Biddle used excessive force. Pastore cites Phillips
for the proposition that Deputy Biddle’s use of the projectile exceeded minimal force. Phillips v.
Cmty. Ins. Corp., 678 F.3d 513, 522 (7th Cir. 2012). The Court concludes, as the Defendants
persuasively argue, the instant case is distinguishable from Phillips because the plaintiff in Phillips
was injured when the officers fired the launcher directly at her. Deputy Biddle did not target
Pastore when firing the launcher, and Pastore was unharmed by the use of the launcher. Pastore
has not shown that Deputy Biddle used excessive force against him. Accordingly, the Court finds
the evidence supports Deputy Biddle’s qualified immunity against the excessive force claim for
using the foam projectile launcher.
2.

Clearly Established Right

Pastore’s Fourth Amendment rights must also be clearly established. “To be clearly
established, at the time of the challenged conduct, the right’s contours must be sufficiently clear
that every reasonable official would have understood that what he is doing violates that right.”
Humphries v. Milwaukee Cnty., 702 F.3d 1003, 1006 (7th Cir. 2012) (citation and quotation marks
omitted). “While a case directly on point is not required, existing precedent must have placed the
statutory or constitutional question beyond debate.” Id. (citation and quotation marks omitted).
In the context of a claim for excessive force, “there is no doubt that [case law] clearly
establishes the general proposition that use of force is contrary to the Fourth Amendment if it is
excessive under objective standards of reasonableness.” Saucier, 533 U.S. at 201–02.
Yet that is not enough. Rather, we emphasized in Anderson “that the right the
official is alleged to have violated must have been ‘clearly established’ in a more
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particularized, and hence more relevant, sense: The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” 483 U.S. at 640. The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.
Id. at 202.
The Defendants rely on Smith to argue that they are entitled to qualified immunity
regarding the K-9 because Pastore failed to comply with the officers’ commands to exit the vehicle,
he resisted arrest when the officers attempted to pull him from the Jeep, and Pastore pled guilty to
resisting arrest. See Smith v. Ross, No. 1:13-CV-00341-TWP-DML, 2014 WL 5285954, at *3
(S.D. Ind. Oct. 15, 2014) (holding officers were entitled to qualified immunity where a plaintiff,
who fled, locked himself in a garage and was attacked by a K-9, had not shown a “clearly
analogous case establishing a right to be free from the specific conduct at issue” or “conduct [that]
is so egregious that no reasonable person could have believed that it would not violate clearly
established right”). The Defendants also assert that their actions were objectionably reasonable
because they did not know whether Pastore had access to a weapon or was planning to flee.
Pastore relies on Becker when responding to the Defendants’ qualified immunity claim and
asserts that it was clearly established at the time of his arrest in 2014 that no more than minimal
force was permissible.
[P]rior to 2011 it was well-established that “police officers cannot continue to use
force once a suspect is subdued.” Abbott, 705 F.3d at 732. And “it was wellestablished in this circuit that police officers could not use significant force on
nonresisting or passively resisting suspects.” Id. Further, it was clearly established
that [] only minimal force is warranted where the accused is passively resisting.
Phillips, 678 F.3d at 529. Additionally, we have previously held that it was clearly
established “that officers could not repeatedly use an impact weapon to beat into
submission a person who was not resisting or was merely passively resisting
officers’ orders.” Abbott, 705 F.3d at 733.

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Becker, 821 F.3d at 928–29 (citing Abbott v. Sangamon Cty., Ill., 705 F.3d 706 (7th Cir. 2013);
Phillips, 678 F.3d at 529). Pastore contends that he was not resisting arrest, and his failure to
respond was at most “passive non-compliance of a different nature than the struggling that [courts]
have found warrants escalation of force.” Becker, 821 F.3d at 927 (citing Phillips, 678 F.3d at
525). Pastore asserts that prior to Deputy Biddle shooting the forty millimeter foam projectile
launcher into Pastore’s rear window and Sergeant Dixon ordering the K-9 to attack Pastore for
nearly forty seconds, the Defendants were aware that Pastore was unconscious, unresponsive, and
not resisting.
Pastore also distinguishes the case at issue from Smith. Unlike Smith, Pastore did not flee,
he was visible to the Defendants at all times, and the Defendants had over thirty minutes to consider
alternative minimal force solutions to remove Pastore from the Jeep. Pastore argues that alternative
solutions included simply approaching his vehicle and knocking on the driver’s window to awaken
him. When removing him from the Jeep, the officers could have used voice commands and hand
pressure rather than the K-9. Pastore lastly contends, and the Defendants do not dispute, that
Pastore’s pleading guilty to resisting law enforcement and drunk driving following the incident
has no bearing on his excessive force claim.
Pastore has shown that Sergeant Dixon’s force was “so plainly excessive under the
circumstances that a reasonable officer would have known of the constitutional violation” and that
“it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” The use of excessive force is understood to be a constitutional violation, and
Pastore’s evidence and facts show the force used by Sergeant Dixon, specifically Sergeant Dixon
releasing the K-9 as Pastore attempted to exit the vehicle with his hands up, was so clearly

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excessive to defeat the claim for qualified immunity. Therefore, the Court determines that the
evidence does not support Sergeant Dixon’s qualified immunity claim.
B.

Failure to Intervene
The Defendants also argue that Deputy Biddle is entitled to summary judgment regarding

Pastore’s claim that Deputy Biddle failed to intervene when Sergeant Dixon ordered his K-9 to
attack Pastore.
[O]ne who is given a badge of authority of a police officer may not ignore the duty
imposed by his office and fail to stop other officers who summarily punish a third
person in his presence or otherwise within his knowledge. [] This responsibility to
intervene applies equally to supervisory and nonsupervisory officers. [] An 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.
Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). The Defendants contend that Deputy Biddle
did not have a realistic opportunity to intervene to prevent harm from occurring to Pastore because
releasing the K-9 was made after a split second determination. The Defendants further argue that
Sergeant Dixon alone is the K-9’s handler, and there is no evidence that the K-9 would have
listened to Deputy Biddle, even if he had attempted to issue a release command. In response,
Pastore contends that, despite Sergeant Dixon directing the K-9, Deputy Biddle implicitly
approved the tactical plan to use force. Pastore argues that releasing the K-9 was not a split second
decision because, while he was unconscious and not resisting, the Defendants had time to figure
out alternative methods in order to elicit a response from Pastore.
Pastore is correct that the officers had nearly a half hour to figure out how to remove him
from the vehicle; however, the decision to actually release Dibo rested solely with Sergeant Dixon.
Pastore has designated no evidence to show that Deputy Biddle implicitly approved a tactical plan
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to release Dibo without regard to the fact that Pastore was attempting to exit the vehicle with his
hands up. This decision was Sergeant Dixon’s alone. Likewise, it is undisputed that Deputy Biddle
was not the K-9 handler, and he had no realistic opportunity to intervene by recalling Dibo, thus
preventing harm from occurring to Pastore prior to or after Dibo was released.
For these reasons, the Court grants summary judgment on behalf of Deputy Biddle on the failure
to intervene claim.
IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES in part the Motion for
Summary Judgment filed by Defendants Dustin Dixon and Nathan A. Biddle. (Filing No. 38.)
Summary judgment is granted with respect to Officer Biddle and he is dismissed from this action.
Resolving factual disputes in Pastore’s favor, a reasonable jury could find that Sergeant Dixon’s
use of force was objectively unreasonable. In addition, clearly established law would have notified
Deputy Biddle that the Fourth Amendment would prohibit his use of force under the circumstances
present here. Pastore’s claim against Sergeant Dixon for use of excessive force will proceed to
trial.
SO ORDERED.

Date: 12/30/2016

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Distribution:
Darren J. Murphy
HOWARD & ASSOCIATES
[e-mail]
Michael K. Sutherlin
MICHAEL K. SUTHERLIN & ASSOCIATES, PC
[e-mail]
Donald B. Kite, Sr.
WUERTZ LAW OFFICE LLC
[e-mail]

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