DAVIS v. CITY OF INDIANAPOLIS, et al

Filing 56

Entry on Defendants' Motion for Guidance - The Defendants' motion for guidance, (Filing No. 55 ), is granted to the extent that no further action is required by them at this time and further proceedings will be directed as necessary. Th e Clerk is directed to reopen this action on the docket. Davis shall have through June 20, 2017, in which to file a Second Amended Complaint which relies on factual allegations that are not inconsistent with his guilty plea, if such a filing is ap propriate. Davis shall also have through June 20, 2017, in which to explain (show cause) how the filing of this action could be interpreted as anything other than frivolous or malicious. If no such filings are made or if Davis concedes that this action should not continue, the action will be dismissed. (See Entry.) Copy to Petitioner via U.S. Mail. Signed by Judge Tanya Walton Pratt on 5/26/2017. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MAJOR P. DAVIS, II,
Plaintiff,
vs.
CITY OF INDIANAPOLIS, OFFICER
NICHOLAS GALLICO, ESTATE OF
OFFICER PERRY RENN,
Defendants.

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Case No. 1:16-cv-00090-TWP-MPB

Entry on Defendants’ Motion for Guidance
This matter is before the Court on the Defendants’ City of Indianapolis, Officer Nicholas
Gallico, and the Estate of Officer Perry Renn’s (collectively the “Defendants”) Notice of Final
Judgment in the Underlying Criminal Case and Motion for Guidance. (Filing No. 55.) For the
reasons stated below the Court grants the motion for guidance and finds that Plaintiff Major P.
Davis, III (“Davis”) shall be granted an opportunity to file a Second Amended Complaint and
Davis is directed to show cause why this action should not be dismissed.
DISCUSSION
In this action, Davis filed a Complaint which alleges a violation of his Fourth Amendment
rights and several state law claims. Specifically, Davis alleges the following:
July 5, 2014, at 9:23 p.m., Officers Renn and Gallico were dispatched to investigate shots fired
near 34th Street and Forest Manor Avenue in Indianapolis, Indiana. When the officers arrived,
Davis was with two women who were his acquaintances. The women told Officer Gallico that
everything was okay and they could leave. Officer Gallico allowed Davis and the two females to
proceed in walking to his vehicle. While walking, the sounds of popping fireworks were present
at a nearby party. As Davis proceeded to his vehicle he was shot in the back, torso, and head by
Officer Renn or Officer Gallico. During the time of this incident Davis did not possess or control

a deadly weapon. He asserts that he made no verbal threats and his body language did not suggest
a threat to the lives of Officers Gallico and Renn. Davis sustained critical injuries and was not
given medical treatment for approximately 45 minutes. Davis alleges that the defendants Officer
Gallico and Officer Renn are liable to him for violating his Fourth Amendment rights and that the
City is liable to him for intentional infliction of emotional distress and negligent hiring.
See Filing No. 29 (screening Amended Complaint).
The action was stayed and administratively closed pending the resolution of the criminal
proceedings against Davis, which were based on the same facts alleged in the Complaints. Those
proceedings concluded after Davis plead guilty to the murder of Officer Renn on April 21, 2017.
(Filing No. 55-1.) Davis was sentenced to a term of life imprisonment and final judgment was
entered on April 27, 2017. (Filing No. 55-2.) This Court now takes judicial notice of Davis’
underlying criminal proceedings filed in dockets 55-1 through 55-4 (state court records); see
Adkins v. VIM Recycling, Inc., 644 F.3d 483, 493 (7th Cir. 2011), Green v. Warden, U.S.
Penitentiary, 699 F.2d 364, 369 (7th Cir. 1983). (“federal courts may also take notice of
proceedings in other courts, both within and outside of the federal judicial system, if the
proceedings have a direct relation to matters at issue”).
The criminal record reflects that Davis specifically admitted to the intentional killing of
Officer Renn, while Officer Renn was acting in the course of his official duty and that the killing
was motivated by the fact that Officer Renn was responding to a report of shots fired. Davis agreed
with the following statement:

Filing No. 55-1 at p. 3.
Because the criminal trial is now over, the clerk is directed to reopen this action on the
docket.
II. Opportunity to File a Second Amended Complaint
Because Davis has been convicted of Officer Renn’s murder his claims in this case appear
to be barred by Heck v. Humphrey, 512 U.S. 477 (1994). That case “forbids a prisoner in his civil
rights case to challenge a finding in his criminal or prison-discipline case that was essential to the
decision in that case; if he insists on doing that, the civil rights case must be dismissed.” Moore v.
Mahone, 2011 WL 2739771, *1 (7th Cir. 2011) (citing Okoro v. Callaghan, 324 F.3d 488, 490
(7th Cir. 2003)). A plaintiff’s § 1983 suit must be dismissed if “a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487; see
McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir.2006).
In the abstract, some constitutional violations can coexist with a valid conviction. Hoeft v.
Anderson, 409 F. App’x 15, 18 (7th Cir. 2011). But in this case, no such claims could be identified
by this Court. To the contrary, the violations alleged by Davis appear both frivolous and malicious
given the facts surrounding Davis’ guilty plea. Heck “forbids a prisoner in his civil rights case to
challenge a finding in his criminal or prison-discipline case that was essential to the decision in

that case; if he insists on doing that, the civil rights case must be dismissed.” Moore v. Mahone,
2011 WL 2739771, *1 (7th Cir. 2011) (citing Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir.
2003)). For example, Davis can no longer claim that he was unarmed or that he was not responsible
for Officer Renn’s death. Not only would such statements be barred by Heck, they are directly
contracted by Davis’ admissions in his criminal proceedings. Further having shot and killed an
officer because that officer was responding to a report of shots fired necessarily negates a claim of
excessive force during his arrest or that the City of Indianapolis is liable for subjecting Davis to
intentional infliction of emotional distress or for its alleged negligent hiring.
Davis shall have through June 20, 2017, in which to file a Second Amended Complaint
which relies on factual allegations that are not inconsistent with his guilty plea. See Evans v.
Poskon, 603 F.3d 362, 363–64 (7th Cir. 2010).
III. Order to Show Cause
Given the fact that Davis has plead guilty to intentionally killing defendant Officer Renn
because the officer (along with Defendant Officer Gallico) responded to a report of shots fired,
Davis shall also have through June 20, 2017, in which to explain how the filing of this action
could be interpreted as anything other than frivolous or malicious. An action or claim is frivolous
if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Frivolousness is an objective standard that refers to a claim that any reasonable person would find
meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). A claim is malicious if it was
filed with the purpose of harming the defendants.
Davis’ failure to comply with this Order will result in the dismissal of this action pursuant
to 28 U.S.C. § 1915A.

CONCLUSION
The Defendants’ motion for guidance, (Filing No. 55), is granted to the extent that no
further action is required by them at this time and further proceedings will be directed as necessary.
The Clerk is directed to reopen this action on the docket. Davis shall have through June
20, 2017, in which to file a Second Amended Complaint which relies on factual allegations that
are not inconsistent with his guilty plea, if such a filing is appropriate. Davis shall also have
through June 20, 2017, in which to explain (show cause) how the filing of this action could be
interpreted as anything other than frivolous or malicious. If no such filings are made or if Davis
concedes that this action should not continue, the action will be dismissed.
IT IS SO ORDERED.

Date: 5/26/2017

Distribution:
MAJOR P. DAVIS, II
249215
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
All Electronically Registered Counsel