MANCINI et al v. CITY OF INDIANAPOLIS et al

Filing 34

REPORT AND RECOMMENDATIONS re 12 -The Magistrate Judge recommends that the Court GRANT Defendants' motion to dismiss 12 , DISMISS Plaintiffs' constitutional claims against all parties WITH PREJUDICE, and DISMISS Plaintiffs' Amended Complaint 11 WITHOUT PREJUDICE. Signed by Magistrate Judge Mark J. Dinsmore on 1/6/2017.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARA MANCINI,
et al.
Plaintiffs,
vs.
CITY OF INDIANAPOLIS,
et al.
Defendants.

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No. 1:16-cv-02048-TWP-MJD

REPORT AND RECOMMENDATION

This matter is before the Court on Defendants’ Motion to Dismiss. [Dkt. 12.] Plaintiff
Mara Mancini alleges that she was mauled by a police dog who was released in an effort to
apprehend a fleeing suspect. Ms. Mancini and son K.C., with whom Ms. Mancini was pregnant
at the time of the incident, allege constitutional claims pursuant to 42 U.S.C. § 1983. Plaintiffs’
Amended Complaint [Dkt. 11] alleges horrendous injuries and a grievous lack of discretion by
the actors. But because a grievous lack of discretion does not suffice to state a constitutional
cause of action under binding Seventh Circuit precedent, the Magistrate Judge recommends that
the Court GRANT Defendants’ Motion in its entirety.
I. Standard of Review
A motion to dismiss for failure to state a claim upon which relief can be granted
challenges the legal sufficiency of a plaintiff’s complaint. Fed. R. Civ. P. 12(b)(6). Federal Rule
of Civil Procedure 8 provides that a complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In assessing the
complaint under Rule 12(b)(6), Court takes all well-pleaded allegations as true and draws all

reasonable inferences in favor of the non-movant, Hayes, 670 F.3d at 813, “but legal conclusions
and conclusory allegations merely reciting the elements of the claim are not entitled to this
presumption of truth,” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). After
thus “excising” such conclusory allegations, McCauley, 671 F.3d at 616, the Court must
determine whether the plaintiff’s complaint “state[s] a claim to relief that is plausible on its
face,” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A complaint meets this standard where it contains
“factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
II. Background
On July 16, 2015, around 10:30 pm, officers from the Indianapolis Metropolitan Police
Department (IMPD) chased after a suspect fleeing a traffic stop. [Dkt. 11 at 4 (¶¶ 17).] At some
point in the chase, an officer released a dog to aid in their pursuit of the suspect. [Id. (¶18).] The
search led to Ms. Mancini’s neighborhood. [Id. (¶ 17).] This caused a commotion outside of
Ms. Mancini’s home, and Ms. Mancini’s dogs began barking. [Id. (¶ 23).]
Ms. Mancini stepped out of her home to see what was causing the commotion. [Id. (¶¶
24-25).] When she did so, the IMPD’s dog attacked and mauled her, dragging her to the ground
and biting her elbow, arm, and thigh. [Id. (¶¶ 25-30).] It took assistance from an officer at the
scene to free Ms. Mancini from the dog’s grasp, and Ms. Mancini was left bleeding on the
ground with puncture wounds. [Dkt. 11 at 4-5 (¶¶ 30-33).] Another officer was injured in the
struggle with the dog. [Dkt. 11 at 5 (¶ 32).]
Ms. Mancini, pregnant with Plaintiff K.C., required emergency care and surgery as a
result of the dog attack. [Dkt. 11 at 4-5 (¶¶ 21-22, 35-41).] The wounds became infected and, a

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month later, required additional emergency surgery. [Dkt. 11 at 6 (¶¶ 42-45).] Due to the
extreme stress from the injuries, Ms. Mancini experienced complications with her pregnancy and
delivered K.C. one month early. [Dkt. 11 at 5-6 (¶¶ 39-40, 46-49, 53).] K.C. was born with
signs of his mother’s infection and was addicted to the narcotics prescribed for Ms. Mancini’s
pain following the dog attack. [Dkt. 11 at 6-7 (¶¶ 50-53, 57-58).]
Ms. Mancini and K.C. brought suit in this Court on July 29, 2016 [Dkt. 1], filing their
operative Amended Complaint on August 25, 2016 [Dkt. 11]. Plaintiffs have sued various
officers by name in their individual and official capacities (“Officer Defendants”); anonymous
individuals and corporations (“Unnamed Defendants”); the former IMPD chief; the IMPD; and
the City of Indianapolis (“City”). Plaintiffs allege unreasonable seizure and substantive due
process claims under the Fourth and Fourteenth Amendments against the Officer Defendants and
against the City of Indianapolis pursuant to Monell v. Department of Social Services of the City
of New York, 436 U.S. 658 (1978). [Dkt. 11 at 7-9 (¶¶ 63-77).] Defendants filed their Motion to
Dismiss on September 8, 2016 [Dkt. 12], which Motion is now fully briefed and ripe for
determination [Dkt. 13; Dkt. 21; Dkt. 22].
III. Discussion
Defendants move to dismiss the Amended Complaint in its entirety. The Court first
addresses Defendants’ uncontested arguments that several Defendants were improperly named.
Defendants direct specific arguments to the merits of Plaintiffs’ excessive force and substantive
due process claims; argue that Plaintiffs may not maintain their Monell claim; and argue in the
alternative that the Officer Defendants are entitled to qualified immunity. The Court addresses
each of these issues in turn.

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A. Uncontested Issues
Defendants raise several issues to which Plaintiffs did not respond regarding the
Defendants named in the Amended Complaint. Where a movant provides “plausible reasons” to
support an argument for dismissal, Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1042
(7th Cir. 1999), “[f]ailure to respond to [the] argument . . . results in waiver,” Bonte v. U.S.
Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010).
Having considered Defendants’ arguments and Plaintiffs’ waiver, the undersigned
recommends that the Court DISMISS all claims against each of the following:
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the IMPD as an entity not subject to suit [Dkt. 21 at 7 (citing Sow v. Fortville
Police Dep’t, 636 F.3d 293, 200 (7th Cir. 2011))];

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the Officer Defendants in their official capacities as duplicative of the claims
against the City [id. (citing Ball v. City of Muncie, 28 F. Supp. 3d 797, 802, 809
(S.D. Ind. 2014))];

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Rick Hite in his official capacity because he no longer holds the position of chief
of IMPD [id. (citing Fed. R. Civ. P. 25(d))];

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all named police officers in their individual and official capacities for failure to
allege personal involvement in the constitutional deprivations [id. at 7-8 (citing
Kuhn v. Goodlow, 678 F.3d 552, 556 (7th Cir. 2012))].

Consistent with the foregoing, Plaintiffs only contest dismissal of their claims against the
Unnamed Defendants and the City, to which issues the Court now turns.
B. Unreasonable Seizure
Defendants argue that Plaintiffs fail to state a Fourth Amendment claim for unreasonable
seizure because Ms. Mancini was never “seized” by the actors. Rather, Ms. Mancini, a bystander

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to the pursuit of the fleeing felon, was unintentionally injured. In response, Plaintiffs argue that
whether Ms. Mancini was a bystander is irrelevant and that she was in fact seized. In reply,
Defendants distinguish the cases to which Plaintiffs cite.
The Fourth Amendment guarantees the “right of the people to be secure . . . against
unreasonable . . . seizures.” U.S. Const. amend. IV. In Brower v. County of Inyo, the Supreme
Court held that
a Fourth Amendment seizure does not occur whenever there is a governmentally
caused termination of an individual's freedom of movement (the innocent passerby),
nor even whenever there is a governmentally caused and governmentally desired
termination of an individual's freedom of movement (the fleeing felon), but only
when there is a governmental termination of freedom of movement through means
intentionally applied.
489 U.S. 593, 596-97 (1989) (emphasis in original). The primary point of contention between
the parties surrounds the meaning of the words “through means intentionally applied.”
Defendants argue that one is seized only where an actor directs an action at a specific person;
that is, where the actor intends the resulting consequence. Plaintiffs, on the other hand, advance
a broader interpretation of “intentionally applied” as referring to a volitional act directed at any
person. This dispute is readily resolved by reference to Seventh Circuit case law.
The Seventh Circuit’s reasoning in Bublitz v. Cottey, 327 F.3d 485, 489 (7th Cir. 2003)
forecloses Plaintiffs’ theory. Bublitz involved a high speed car chase. The defendant officers, in
an effort to stop the fleeing vehicle, set up a spike strip. The fleeing vehicle ran over the spike,
veered to the side, and struck the vehicle of an innocent bystander, killing two of its occupants.
The court held that summary judgment was required because the defendants “did not
intentionally apply any means in an attempt to terminate the freedom of movement” of the
injured bystanders. Id. (emphasis in original). Rather, the car crash was “an unintended
consequence of an attempt to seize” the fleeing vehicle. Id. The mere intent to seize the one
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particular car did not mean that the defendants “intended to stop any other car”—including the
bystanders’, which “was simply not the intended object of the defendant officers’ attempts to
seize the fleeing” driver. Id.
Unlike in Bublitz, this case is before the Court solely on the pleadings. But Plaintiffs’
own allegations demonstrate that Ms. Mancini “was simply not the intended object” of
Defendants’ efforts to seize the fleeing suspect. [See, e.g., Dkt. 11 at 4 (¶ 18) (“An unknown
IMPD officer released the IMPD canine during the pursuant [sic] of Mr. Walker.”).] That
Defendants released a dog intending to seize the fleeing suspect does not mean that Defendants
intended to seize any other person—just as in Bublitz, the officer’s decision to set up a spike strip
did not mean that the officer intended to seize just any driver that happened to drive by. Bublitz
specifically rejected the broad reading of “intentionally applied” advanced by Plaintiffs. Rather,
“intentionally applied” requires the intent to restrain a particular person.
Plaintiffs seek to distinguish Bublitz, citing to several cases from outside of this Circuit.
In addition to not binding this Court, they are largely inapposite. Vathekan v. Prince George’s
County, a Fourth Circuit case, involved a police dog attack on an innocent person. 154 F.3d 173
(4th Cir. 1998). But that is where the similarities between Vathekan and this case end. In
Vathekan, the police officers were investigating a robbery in a basement apartment. The canine
officer failed to call out to warn persons inside the apartment of the dog and unleashed the dog—
despite the fact that the dog had “alerted” the officer to the presence of a person behind an
interior door. Id. at 178. The officer “believed at that time that the person behind that door
might have been a burglar.” Id. But by releasing the dog with the “inten[t] that the dog find and
bite that person” behind the door—the person to whose presence the dog had previously
alerted—the officer intended to stop that person. Id. (additional emphasis added). The fact that

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the officer did not know the identity of the seized person (or only “intended” to seize a guilty
person) was irrelevant to his intent to direct the dog to seize the particular person located in the
house. This is because, as the Vathekan court noted, “a fourth amendment seizure may occur
notwithstanding that the person restrained was mistakenly thought to be another, because he
nevertheless is the intended object of the specific act of physical restraint.” Id. (emphasis
added) (quoting Rucker v. Harford Cnty., 946 F.2d 278, 281 (4th Cir. 1991)). In this case,
Plaintiffs allege that the “intended object of the specific act of physical restraint” was the fleeing
suspect; Plaintiffs do not allege (as in Vathekan) that the officers unleashed the dog at her in the
mistaken belief that she was the sought-after suspect.
As Defendants explain, this understanding of Vathekan is consistent with the Fourth
Circuit’s own understanding of that case. Despite Plaintiffs’ protestations that “there is no
requirement of a specific intent directed at a specific person” [Dkt. 21 at 8], that court later
observed in Milstead v. Kibler that mistakes in the application of force by police fall into two
broad categories. 243 F.3d 157, 163-64 (4th Cir. 2001), abrogated in part on other grounds by
Pearson v. Callahan, 555 U.S. 223 (2009). Where the “means of the seizure [are] not
deliberately applied to the victim,” such as where an officer shoots at a suspect but hits a
bystander, the shooting does not give rise to a Fourth Amendment claim. Id. (emphasis added).
On the other hand, cases where an “officer deliberately directs his force against an innocent
victim” implicate the Fourth Amendment—such as the actions in Vathekan. Id. (emphasis
added). The Amended Complaint does not allege that the officers deliberately directed the dog
at Ms. Mancini. Vathekan therefore is of no assistance to Plaintiffs’ case.
Second, Plaintiffs quote heavily from an Eastern District of California opinion, Rodriguez
v. City of Fresno, 819 F. Supp. 2d 937, 946-47 (E.D. Cal. 2011), in support of their categorical

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assertion that the rule in Bublitz “does not apply to dog bite cases and other circuits have
explicitly found as such.” [Dkt. 21 at 6.] Rodriguez, like Bublitz and Vathekan, recognized the
distinction between cases where “an innocent victim [is] the object of police application of
force” and cases where the innocent victim is injured where police target a third party. Id. at
946. However, the court also stated the following regarding dog attack cases:
In Vathekan, 154 F.3d at 173, and in Garcia v. City of Sacramento, 2010 WL
3521954 (E.D.Cal.2010), the deployment of a police dog into a building for the
purpose of seizing a suspect was held to constitute a seizure under the Fourth
Amendment where the dog bit bystanders who were not the object of the police
action. In both cases, the courts reasoned that when officers intentionally deploy a
dog, which is incapable of discriminating suspects from bystanders and is trained
to bite whoever it encounters, the officers effectively intend to seize anyone in the
space where the dog was deployed. See Vathekan, 154 F.3d at 178–
179; Garcia, 2010 WL 3521954 at *2.
Id. at 946-47. But Rodriguez reads Vathekan too broadly. As explained above, the result in
Vathekan turned on the fact that the police set the dog on a particular person they knew to be in
the home; later Fourth Circuit cases have reemphasized this point. Garcia, to the extent the court
held that allegations of a general “intent to use . . . a force to terminate [any person’s] freedom of
movement” is sufficient to allege a seizure under the Fourth Amendment, is contrary to the
binding Seventh Circuit precedent cited above. No. 10-cv-00826-JAM-KJN, 2010 WL 3521954,
at *2 (E.D. Cal. Sept. 8, 2010). More to the point, however, Rodriguez and the cases cited
therein provide no support for Plaintiffs’ argument that “other circuits have explicitly found” that
a different standard of intent applies to dog bite cases. 1 [Dkt. 21 at 7.]

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Plaintiffs place much emphasis on its argument that a “dog, as trained and as deployed [is] unable to
distinguish between suspects and innocent citizens.” [Dkt. 21 at 8.] While the holding and reasoning of
Bublitz alone foreclose Plaintiffs’ argument, the Court notes that a spike strip, as deployed, likewise
cannot distinguish between suspects and innocent citizens.

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Third, Plaintiffs cite to the Eleventh Circuit’s opinion in Doe I v. Valencia College Board
of Trustees, 838 F.3d 1207 (11th Cir. 2016) for the proposition that “the Fourth Amendment does
not contain a purpose requirement.” [Dkt. 21 at 8.] Doe stands for the straightforward
proposition that the purpose behind a governmental actor’s search or seizure is irrelevant to the
determination of whether the Fourth Amendment applies. See id. at 1212 (concluding that it was
irrelevant to applicability of Fourth Amendment whether governmental action had an
“‘investigative’ or ‘administrative’ purpose”). But Doe is utterly inapplicable to this case
because it says nothing about when a seizure occurs.
Finally, Plaintiffs briefly raise a wholly different alleged seizure, premised upon the
“officers encourag[ing] the paramedics to address the injuries of another officer, while leaving
Ms. Mancini on the ground.” [Dkt. 21 at 9.] Defendants challenge this contention on two
grounds. First, the Amended Complaint pleads no such claim. This argument is well taken. All
that the Amended Complaint actually states is: “When emergency medical technicians arrived on
the scene, the injured IMPD Officer was treated first.” [Dkt. 11 at 5 (¶ 34).] That allegation
does not remotely lend itself to the reasonable inference that the officers on the scene told the
medical professionals to leave the bloodied Ms. Mancini on the ground and instead treat the
officer. Nor does it lend itself to the reasonable inference that the officers were in any way
personally involved in the alleged constitutional violation. See Backes v. Vill. Of Peoria Heights,
662 F.3d 866, 869 (7th Cir. 2011) (noting that the terms “subjects” and “causes to be subjected”
limit the applicability of § 1983 to defendants who are “personally responsible for the
deprivation of the right at the root” of a plaintiff’s claim).
Second, even if the Amended Complaint did allege that officers instructed the paramedics
to first treat the police officer, Defendants argue that such action does not constitute a seizure.

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Even the most generous interpretation of Plaintiffs’ mischaracterization of their Amended
Complaint could not yield the conclusion that the officers intended to terminate Ms. Mancini’s
“freedom of movement” as opposed to intending to render assistance to the injured officer. 2
Brower v. Cty. of Inyo, 489 U.S. 593, 597 (1989). If the officers in fact acted as Plaintiffs
suggest in their brief (but do not allege in their Amended Complaint), such behavior was
certainly untoward. It does not, however, give rise to an unreasonable seizure claim under the
Fourth Amendment.
Plaintiffs Amended Complaint fails to plausibly allege that Defendants intended to stop
Ms. Mancini and thus fails to allege a seizure under the Fourth Amendment. The Court should
therefore GRANT Defendants’ Motion with respect to Plaintiffs’ unreasonable seizure claims.
C. Substantive Due Process
Defendants next contend that the Amended Complaint fails to state a substantive due
process claim, arguing that the allegations do not amount to conscience-shocking conduct.
Plaintiffs do not directly respond to Defendants’ arguments, but instead turn to a 1991 Northern
District of Indiana case that permitted a substantive due process claim to proceed past a motion
to dismiss. [Dkt. 21 at 10 (citing Frye v. Akron, 758 F. Supp. 1320, 1321-22 (N.D. Ind. 1991)).]
In reply, Defendants distinguish Frye and reiterate their arguments.
As the Seventh Circuit has made clear, Supreme Court precedent “establishes a heavy
burden for a plaintiff to bear when making a § 1983 claim based on the Fourteenth Amendment.

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The inapposite cases to which Plaintiffs cite do not affect this conclusion one iota. [See Dkt. 21 at 9
(citing Tennessee v. Garner, 471 U.S. 1, 7 (1985) (concluding that “deadly force” may not be used “to
prevent the escape of an apparently unarmed suspected felon” except where it is necessary to prevent the
escape and the officer has probable cause to believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others”); Saunders v. Duke, 766 F.3d 1262 (11th Cir. 2014)
(holding that plaintiff’s claim that police slammed his head against pavement after being handcuffed
stated Fourth Amendment claim)).]

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‘To this end, for half a century now we have spoken of the cognizable level of executive abuse of
power as that which shocks the conscience.’” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir.
2007) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). Thus, substantive due
process claims are available only where a defendant engages in “deliberate action to harm
another” that is “‘unjustifiable by any government interest.’” Bublitz, 327 F.3d at 491 (emphasis
in original) (quoting Lewis, 523 U.S. at 849). The “conscience-shocking” standard with its intent
requirement is the correct standard for police chases—on foot or otherwise—under the
Fourteenth Amendment. See, e.g., Lewis, 523 U.S. at 853-54 (“Just as a purpose to cause harm
is needed for Eighth Amendment liability in a riot case, so it ought to be needed for due process
liability in a pursuit case.”); Steen, 486 F.3d at 1023; Bean v. Indiana Univ., 855 F. Supp. 2d
857, 864 (S.D. Ind. 2012) (concluding on motion to dismiss that complaint failed to adequately
allege that officer “acted with malicious or sadistic intent” in case where officer injured plaintiff
while pursuing fleeing suspect on foot). 3
The application of the conscience-shocking standard to this case is straightforward: the
Amended Complaint does not contain a single allegation that could lead to the reasonable
inference that Defendants engaged in a “deliberate action to harm” Ms. Mancini. Bublitz, 327
F.3d at 491 (emphasis omitted). The only allegations to which Plaintiffs cite to support their
argument is that Defendants used “excessive and unreasonable force” [Dkt. 21 at 11 (quoting
Dkt. 10 at 8 (¶ 66))] and “acted with oppression, malice, deliberate indifference, and/or willful or

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The Bublitz court and other courts have noted that, “[o]n some occasions, courts have spoken of a
‘deliberate indifference’ standard for measuring whether conduct violates the Fourteenth Amendment.”
Id. at 490. But, to the extent that “deliberate indifference” “present[s a] different inquir[y],” such
indifference must still rise to the level of “conscience shocking.” Id. Moreover, “the deliberate
indifference articulation should only be used when actual deliberation by a defendant was possible.” Id.
In this case, the conventional application of this well-established standard is warranted particularly
because Plaintiffs have not offered any discernible argument suggesting that a different standard is
applicable.

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wanton recklessness” [Id. (quoting Dkt. 10 at 7 (¶ 62))]. These allegations do nothing more than
parrot legal standards, and therefore do nothing to support the sufficiency of their complaint.
Plaintiffs’ reliance upon Frye, 759 F. Supp. 1320, is misplaced. First, Plaintiffs rely upon
Frye to support their argument that a Fourteenth Amendment claim may lie in cases where a
Fourth Amendment claim fails for want of a seizure. But Defendants do not argue that
Plaintiffs’ claim is foreclosed merely because it looks akin to an unreasonable seizure claim; in
any event, such an argument would plainly be foreclosed by Lewis. 523 U.S. at 844 (1998)
(“Graham [v. Connor, 490 U.S. 386 (1989)]’s more-specific-provision rule is therefore no bar to
respondents’ suit [under the Fourteenth Amendment].”).
Second, Plaintiffs quote the Frye court’s characterization of the allegations in the
complaint, where the plaintiffs alleged that the officer “operated his vehicle with recklessness
and conscious disregard,” to support the sufficiency of the Amended Complaint in this case. But
whatever the actual allegations in the Frye complaint may have been, such conclusory
allegations must be disregarded under the Twombly/Iqbal regime. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Frye, of course, could
not apply the Twombly/Iqbal rule because those cases were decided after Frye. There is a more
fundamental problem with Plaintiffs’ position: Lewis addressed “whether a police officer violates
the Fourteenth Amendment’s guarantee of substantive due process by causing death through
deliberate or reckless indifference to life.” 523 U.S. at 836. The answer to that inquiry, the
Supreme Court held, was “no, . . . only a purpose to cause harm unrelated to the legitimate object
of arrest will satisfy the element of arbitrary conduct shocking to the conscience.” Id. (emphasis

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added). Again, Frye was decided before Lewis and thus Frye could not anticipate that holding—
but Lewis clearly rendered that portion of Frye obsolete. 4
The Amended Complaint fails to plausibly allege that the Officer Defendants’ conduct
rose to the level of conscience-shocking. Accordingly, the Court should GRANT Defendants’
Motion with respect to Plaintiffs’ substantive due process claims. 5
D. Monell Claim
Defendants next argue that Plaintiffs’ Monell claims against the City must be dismissed
due to the failure to allege an underlying constitutional claim. Plaintiffs respond that they have
in fact pleaded a constitutional claim. An underlying constitutional claim “is a necessary
element of a Monell claim.” White v. City of Chicago, 829 F.3d 837, 844 (7th Cir. 2016).
Consistent with the Magistrate Judge’s conclusions that the Amended Complaint does not state a
constitutional claim against any of the Individual Defendants, the Court should GRANT
Defendants’ Motion with respect to Plaintiffs’ claims against the City.
E. Qualified Immunity
Defendants argue that, in the alternative to an adjudication of the constitutional claims on
the merits, the Individual Defendants are entitled to qualified immunity. Defendants argue that

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Plaintiffs note that Lewis cited Frye with approval—but it did so only to demonstrate that the rule in
Graham was no bar to a Fourteenth Amendment substantive due process claim where the allegations at
issue are akin to a seizure. Lewis did not cite Frye for its discussion of the state of mind required for a
substantive due process claim, which is plainly at odds with the Supreme Court’s decision.

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Plaintiffs again briefly return to their unpled theory that the Officer Defendants “directed” the
emergency personnel on the scene to tend to the wounded officer instead of Ms. Mancini. [Dkt. 21 at 11.]
This presents the same shortcomings as the Fourth Amendment claim. The Amended Complaint does not
remotely allege this claim, and even if it did, asking (or “directing”) medical personnel to aid one injured
person instead of another would not be a “deliberate action to harm another” as required to state a
Fourteenth Amendment claim. Bublitz, 327 F.3d at 491 (emphasis omitted).

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Plaintiffs cannot point to a sufficiently similar case to clearly establish a constitutional violation.
In response, Plaintiffs cite to the Fourth Circuit cases addressed above.
“Government officials performing discretionary functions are entitled to qualified
immunity from suit ‘as long as their actions could reasonably have been thought consistent with
the rights they are alleged to have violated.’” Kiddy-Brown v. Blagojevich, 408 F.3d 346, 352
(7th Cir. 2005) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). Whether defendants
are entitled to qualified immunity is properly “resolved at the earliest stages of litigation.” Id.
“[O]nce the defense is raised, it becomes the plaintiff’s burden to defeat it.” Jewett v. Anders,
521 F.3d 818, 823 (7th Cir. 2008).
To deny defendants’ claim to qualified immunity at the pleading stage, “(1) ‘the
complaint must adequately allege facts that, if true, would constitute a violation of a
constitutional right,’ and (2) ‘the case law must be ‘clearly established’ at the time of the alleged
violation, so that a reasonable public official would have know[n] that his conduct was
unlawful.’” Kiddy-Brown, 408 F.3d at 353 (quoting Delgado v. Jones, 282 F.3d 511, 515 (7th
Cir. 2002)). The Court, in its “sound discretion,” may decide “which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances of the
particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Satisfying the second prong generally requires the plaintiff to “point to closely
analogous” precedential authority “decided prior to the defendants’ challenged actions.” Upton
v. Thompson, 930 F.2d 1209, 1212 (7th Cir. 1991) (internal quotation omitted); Anderson v.
Romero, 72 F.3d 518, 525 (7th Cir. 1995) (“[D]istrict court decisions cannot clearly establish a
constitutional right.”). This showing does not “require a plaintiff to produce a case that is
‘directly on point’ in order to show that a right is clearly established.” Kiddy-Brown, 408 F.3d at

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356 (quoting Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir. 1996)). However, “[a] plaintiff
can defeat qualified immunity by showing ‘that the violation was so clear that a government
official would have known that his actions violated the plaintiff's rights even in the absence of a
factually similar case.’” Lessley v. City of Madison, 654 F. Supp. 2d 877, 901 (S.D. Ind. 2009)
(Hamilton, C.J.) (quoting Lee v. Young, 533 F.3d 505, 512 (7th Cir. 2008)).
As explained above, the Fourth Circuit cases to which Plaintiffs cite do not clearly
establish the alleged constitutional violation in this case. Moreover, they are not precedential
authority; Plaintiffs fail to cite to a single binding case with similar facts wherein the court found
a constitutional violation. While a plaintiff may otherwise defeat qualified immunity by showing
that the violation is clearly established even in the absence of binding authority, Plaintiffs in this
case fail to put forth a cogent argument that such clarity is present here. Therefore, while the
Court should dismiss the constitutional claims on their merits, the Court should find in the
alternative that the Individual Defendants are entitled to qualified immunity. The Court should
thus GRANT Defendants’ Motion for this additional reason.
IV. Conclusion
Plaintiffs allege serious injury as a result of state action. But the Constitution does not
“extend . . . a right to be free of injury wherever the State may be characterized as the tortfeasor.”
Paul v. Davis, 424 U.S. 693, 701 (1976). Nor is it “a font of tort law to be superimposed upon
whatever systems may already be administered by the States.” Id. Whatever remedies Plaintiffs
may have in this case must come from state law, not the U.S. Constitution. Accordingly, the
Magistrate Judge recommends that the Court GRANT Defendants’ Motion to Dismiss [Dkt. 12],
DISMISS Plaintiffs’ constitutional claims against all parties WITH PREJUDICE, and
DISMISS Plaintiffs’ Amended Complaint [Dkt. 11] WITHOUT PREJUDICE.

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Any objections to the Magistrate Judge’s Report and Recommendation must be filed with
the Clerk in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b),
and failure to timely file objections within fourteen days after service shall constitute a waiver of
subsequent review absent a showing of good cause for such failure.

Dated: 06 JAN 2017

Distribution:
Service will be made electronically
on all ECF-registered counsel of record via
email generated by the court’s ECF system.

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