LOVELESS v. MCCORKLE et al

Filing 46

ORDER - This case arises from a failed attempt to serve civil process at the home of Plaintiff Murrell Loveless. Mr. Loveless alleges that Sheriff Richard McCorkle and Sheriff's Deputy Rex Harrold violated federal and state constitutional law , as well as state statutory and common law when Deputy Harrold entered Mr. Loveless' home without a warrant to serve civil process, and then assaulted Mr. Loveless while inside. Defendants have moved for summary judgment on some of Mr. Lovel ess' claims. For the reasons described in this Order, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion. The Court GRANTS Defendants' Motion as to: All claims for violation of Article I, Section 11 of the Indiana Consti tution; IIED claims against Sheriff McCorkle and Deputy Harrold; Individual capacity claims against Sheriff McCorkle for unreasonable search and seizure and excessive force, under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments of t he United States Constitution; Official capacity claims against Sheriff McCorkle and Deputy Harrold for unreasonable search and seizure and excessive force, under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments of the United States Constitution; and Common law battery, assault, and false imprisonment claims against Deputy Harrold. The Court DENIES Defendants' Motion as to: Individual capacity claim against Deputy Harrold for unreasonable search and seizure under 42 U.S .C. § 1983 and the Fourth and Fourteenth Amendments of the United States Constitution; and Common law trespass claim under Indiana law against Deputy Harrold. The Court requests that the Magistrate Judge confer with the parties at his earliest convenience regarding possible resolution of the remaining claims. See Order for remaining items of resolution and complete details. Signed by Judge Jane Magnus-Stinson on 9/20/2018. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MURRELL D. LOVELESS,

)
)
Plaintiff,
)
)
v.
)
)
RICHARD A. MCCORKLE Individually And In )
His Official Capacity As Sheriff of Henry County, )
REX A. HARROLD Individually And In His
)
Official Capacity As A Deputy Sheriff of Henry
)
County,
)
)
Defendants.
)

No. 1:17-cv-02206-JMS-MJD

ORDER
This case arises from a failed attempt to serve civil process at the home of Plaintiff Murrell
Loveless. Mr. Loveless alleges that Sheriff Richard McCorkle and Sheriff’s Deputy Rex Harrold
violated federal and state constitutional law, as well as state statutory and common law when
Deputy Harrold entered Mr. Loveless’ home without a warrant to serve civil process, and then
assaulted Mr. Loveless while inside. Defendants have moved for summary judgment on some of
Mr. Loveless’ claims. For the reasons described below, the Court GRANTS IN PART and
DENIES IN PART Defendants’ Motion.
I.
LEGAL STANDARD
A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear,
whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the
asserted fact by citing to particular parts of the record, including depositions, documents, or

affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the
materials cited do not establish the absence or presence of a genuine dispute or that the adverse
party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B).
Affidavits or declarations must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R.
Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion
can result in the movant’s fact being considered undisputed, and potentially in the grant of
summary judgment. Fed. R. Civ. P. 56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts
that are material to the decision. A disputed fact is material if it might affect the outcome of the
suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other
words, while there may be facts that are in dispute, summary judgment is appropriate if those facts
are not outcome-determinative. Montgomery v. American Airlines Inc., 626 F.3d 382, 389 (7th
Cir. 2010). Fact disputes that are irrelevant to the legal question will not be considered. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On summary judgment, a party must show the Court what evidence it has that would
convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896
(7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder
could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir.
2009). The Court views the record in the light most favorable to the non-moving party and draws
all reasonable inferences in that party’s favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717
(7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary
judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827

2

(7th Cir. 2014). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and
the Seventh Circuit Court of Appeals has repeatedly assured the district courts that they are not
required to “scour every inch of the record” for evidence that is potentially relevant to the summary
judgment motion before them. Grant v. Trustees of Indiana University, 870 F.3d 562, 573-74 (7th
Cir. 2017). Any doubt as to the existence of a genuine issue for trial is resolved against the moving
party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
II.
BACKGROUND
The following factual background is set forth pursuant to the standards detailed above. The
facts stated are not necessarily objectively true, but as the summary judgment standard requires,
the undisputed facts and the disputed evidence are presented in the light most favorable to “the
party against whom the motion under consideration is made.” Premcor USA, Inc. v. American
Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
Defendant Richard McCorkle is the Sheriff of Henry County, Indiana. [Filing No. 37-2 at
4.] Defendant Rex Harrold is a sheriff’s deputy in Henry County, and at the relevant time, he was
working as a civil process server for the county. [Filing No. 37-1 at 10.] Plaintiff Murrell Loveless
was approximately 70 years old at the time of the incident and lived in a house in Henry County,
along with several family members, including his granddaughter, Kayla. [Filing No. 37-3 at 7.]
On August 1, 2015, Deputy Harrold came to Mr. Loveless’ home to service civil process on Kayla.
[Filing No. 37-1 at 16; Filing No. 37-4 at 10; Filing No. 37-4 at 35.] The house is located at the
end of a 175-foot driveway off of a county road. [Filing No. 37-3 at 21.] As Deputy Harrold drove
up the driveway to the home, he did not see a front entry door. [Filing No. 37-1 at 18.] He exited
his vehicle and walked to the east side of the home, where he located a front door that “was being
worked on” and seemed “unapproachable,” as it was covered with or surrounded by boards.
3

[Filing No. 37-1 at 18.] He returned to the south side of the house, where he saw two garage doors
that were closed. [Filing No. 37-1 at 18.] He also identified a “service” entry door into the home’s
attached garage, where there was a doorbell. [Filing No. 37-1 at 18; Filing No. 37-3 at 20.]
Approximately 18 feet into the garage was a door that led from the garage into the interior of the
home. [Filing No. 37-1 at 20.] From here, the parties present differing accounts of the events that
transpired.
In Deputy Harrold’s version of events, the service door into the garage was “standing wide
open.” [Filing No. 37-1 at 19.] Deputy Harrold testified that he did not see a doorbell at that
door. 1 [Filing No. 37-1 at 48.] He entered via the open door and walked through the attached
garage to the interior door to the home. [Filing No. 37-1 at 19.] The interior door was open
approximately one inch, and Deputy Harrold knocked loudly on the door, announcing himself as
“Sheriff’s Department.” [Filing No. 37-1 at 19.] Mr. Loveless then opened the door, cursing and
shouting at Deputy Harrold to leave. [Filing No. 37-1 at 21.]
According to Mr. Loveless’ evidence, the service door into the garage was always kept
shut, as was the interior door into the house. [Filing No. 37-3 at 33; Filing No. 37-4 at 26; Filing
No. 37-5 at 31-33.] None of the adults in the home heard a doorbell ring. [Filing No. 37-4 at 27;
Filing No. 37-4 at 41; Filing No. 37-5 at 10; Filing No. 37-5 at 12-15.] Mr. Loveless heard a knock
at the interior door, but did not hear the words “Sheriff’s Department.” [Filing No. 37-3 at 24.]
He was upset to hear a knock at the interior door, because it was his expectation that visitors would

1

Mr. Loveless’ daughter and son-in-law, Lisa and Randy Garner, were both present in the home
during the incident. Both attested that at the time of the incident, Deputy Harrold stated that he
rang the doorbell prior to entering. [Filing No. 37-4 at 41-42; Filing No. 37-5 at 10-13.] When
other deputies arrived following the incident, they verified that the doorbell was operational.
[Filing No. 37-5 at 12-13.] During his deposition, however, Deputy Harrold testified that he did
not see a doorbell at the exterior door. [Filing No. 37-1 at 48.]
4

ring the doorbell at the exterior door in order to gain entry. [Filing No. 37-3 at 22-24.] Mr.
Loveless opened the door and did not recognize the person standing there as a police officer,
because he was wearing a t-shirt and did not have a visible badge. [Filing No. 37-3 at 24.] Mr.
Loveless told the individual to “get the f--- out” of his house. [Filing No. 37-3 at 24.]
A scuffle then ensued between Mr. Loveless and Deputy Harrold, about which the parties’
accounts also differ. Both parties agree that that the service entry door hit Deputy Harrold’s foot
as he attempted to walk out of the garage. [Filing No. 37-3 at 39; Filing No. 37-1 at 23.] Mr.
Loveless alleges that, at some point during the scuffle, Deputy Harrold hit him with his forearms,
[Filing No. 37-3 at 26], and pushed him down onto or into the trunk of a car, [Filing No. 37-3 at
28], injuring Mr. Loveless’ shoulder that was healing from a recent surgery, [Filing No. 37-3 at
39]. The parties agree that at some point, Deputy Harrold placed Mr. Loveless in handcuffs.
[Filing No. 37-1 at 28; Filing No. 37-3 at 26.]
As a result of this incident, Mr. Loveless filed suit against Deputy Harrold and Sheriff
McCorkle in their official and individual capacities, raising the following claims:
•

Unreasonable search and seizure, in violation of 42 U.S.C. § 1983 and the Fourth
and Fourteenth Amendments of the United States Constitution, and Article I,
Section 11 of the Indiana Constitution;

•

Excessive force, in violation of 42 U.S.C. § 1983 and the Fourth and Fourteenth
Amendments of the United States Constitution, and Article I, Section 11 of the
Indiana Constitution;

•

Common law battery;

•

Common law assault;

•

Common law trespass;

•

Violation of Ind. Code § 35-33-5-7(e);

•

Common law false imprisonment; and

5

•

Intentional infliction of emotional distress, (“IIED”). 2

[Filing No. 1; Filing No. 33.] Mr. Loveless appears to raise all of these claims against Sheriff
McCorkle and Deputy Harrold in both their official and individual capacities.
Defendants move for partial summary judgment, seeking resolution of the following
claims:
•

All Indiana constitutional claims, on the basis that the Indiana Constitution does not
provide a private cause of action for violations;

•

Section 1983 and Fourth Amendment search-and-seizure claim against Deputy
Harrold in his individual capacity, on the grounds of qualified immunity;

•

Both Section 1983 and Fourth Amendment claims (search-and-seizure and
excessive force) against Sheriff McCorkle in his individual capacity, on the basis
that he lacked individual involvement in any constitutional violation;

•

Both Section 1983 and Fourth Amendment claims (search-and-seizure and
excessive force) against Deputy Harrold and Sheriff McCorkle in their official
capacities, on the basis of a failure to establish liability under Monell;

•

Common law trespass and intentional infliction of emotional distress against
Deputy Harrold and Sheriff McCorkle in their official capacities, on the basis of
immunity under the Indiana Tort Claims Act; and

•

Common law trespass, intentional infliction of emotional distress, battery, assault,
and false imprisonment against Deputy Harrold in his individual capacity, on the
basis of immunity under the Indiana Tort Claims Act.

[Filing No. 36.] The Motion is now fully briefed and ripe for the Court’s review.
2

In his brief in opposition to the Motion for Summary Judgment, Mr. Loveless references a statelaw tort claim for “excessive force.” [Filing No. 38 at 7.] An Indiana statute governs the use of
force in the context of effecting an arrest, and Mr. Loveless does not invoke that statute in his
Complaint or his Statement of Claims. See Ind. Code § 35-41-3-3. In his Statement of Claims,
Mr. Loveless only refers to an excessive force claim in the context of his Fourth Amendment and
Indiana constitutional claims. Aside from the statutory provision cited above, under Indiana law,
“if an officer uses unnecessary or excessive force, the officer may commit the torts of assault and
battery.” Wilson v. Isaacs, 929 N.E.2d 200, 203 (Ind. 2010). Given the allegations in Mr.
Loveless’ Complaint, his Statement of Claims, and applicable Indiana law, the Court declines to
construe Mr. Loveless’ Complaint and Statement of Claims as alleging an independent tort for
“excessive force.”
6

III.
DISCUSSION
Mr. Loveless concedes that summary judgment is appropriate on the Indiana constitutional
claims and the IIED claim, and the Court therefore GRANTS Defendants’ Motion as to those
claims. The Court addresses the remaining claims in turn.
A. Deputy Harrold: Individual Capacity Search and Seizure Claim
Deputy Harrold argues that he is entitled to qualified immunity “as to a claim that he
committed a trespass in violation of the Fourth Amendment because it would not have been clear
to a reasonable police officer in the same or similar circumstances that a trespass was being
committed.” [Filing No. 36 at 7.] Deputy Harrold contends that it was not clearly established in
August 2015 that an officer could not walk through a home’s “open garage [service] door” into
the attached garage to knock on the door inside. [Filing No. 36 at 9.] In response, Mr. Loveless
points out that the parties dispute whether the garage service door was open. [Filing No. 38 at 9.]
And Mr. Loveless argues that at the time in question, the law was clearly established that the
Fourth Amendment draws a “firm line at the entrance to the house,” and that an officer may not
cross that line without a warrant. [Filing No. 38 at 11.] In reply, Deputy Harrold argues that the
situation was, at best, ambiguous, and that he is therefore entitled to qualified immunity. [Filing
No. 39 at 6.]
When a defendant asserts qualified immunity, “the plaintiff can proceed only if [he] can
show two things: first, that the facts, taken in the light most favorable to the plaintiff, make out a
violation of a constitutional right, and second, that the right was clearly established at the time of
the alleged violation.” Hurt v. Wise, 880 F.3d 831, 840-41 (7th Cir. 2018) (internal quotations and
citations omitted). And a plaintiff may not define the right based on generalities: the “showing
must be grounded in the particular context in which the problem arises.” Id.
7

The Court begins by addressing the issue of the open or closed door. Deputy Harrold seeks
to define the right at issue as whether it was clearly established that an officer may not enter an
open garage door to knock on an interior door. But Mr. Loveless asserts that the door was closed,
and he supports that assertion with his own deposition testimony, and the testimony of both his
daughter and son-in-law. Defendants seem to suggest in a footnote that the Court must accept as
true Defendants’ factual assertion that the door was closed, because Mr. Loveless’ evidence does
not meet the personal knowledge requirement imposed by Federal Rule of Evidence 602. [Filing
No. 36 at 4 (“Loveless claims that the door was closed. However, there is absolutely no indication
that he had personal knowledge of this fact as of the time of Harrold’s arrival, and other witnesses
were also unable to personally know whether the door was open or closed. Loveless’ daughter
and son-in-law had not been in the garage before Harrold arrived.”).]
Contrary to Defendants’ contention, the personal knowledge requirement does not require
that the Court ignore circumstantial evidence offered in support of a factual assertion. Mr.
Loveless, his daughter, and his son-in-law all testified that the door into the garage was routinely
or always kept closed. This testimony constitutes circumstantial evidence of the factual assertion
that the door was closed when Deputy Harrold approached it. As this Court routinely instructs
jurors, “the law makes no distinction between the weight to be given either to direct or
circumstantial evidence.” See Federal Jury Instructions of the Seventh Circuit (2017 ed.), pg. 17.
Moreover, Federal Rule of Evidence 406 specifically provides for the admission of evidence
regarding a person’s habit or routine practice as evidence that on a particular occasion, the person
acted in accordance with the habit or routine practice. See Fed. R. Evid. 406. And “[t]he Court
may admit this evidence regardless of whether it is corroborated or whether there was an
eyewitness.” Id. In short, Mr. Loveless has proffered sufficient admissible evidence to create a

8

genuine dispute of material fact as to whether the garage entry door was open or closed at the time
that Deputy Harrold approached it.
Deputy Harrold’s argument as to qualified immunity is based upon his contention that the
garage entry door was open, and therefore that his right to enter under the Fourth Amendment was,
at best, ambiguous. But Mr. Loveless has provided admissible evidence in support of the factual
assertion that the door was closed. And all parties agree that the garage service door provided the
only entrance to the house, and there was a doorbell outside of it. Under the law existing in this
Circuit at the time of the incident, a home’s attached garage is subject to the Fourth Amendment’s
prohibition against unreasonable searches and seizures. Vinson v. Vermillion Cty., Ill., 776 F.3d
924, 929 (7th Cir. Jan. 27, 2015) (“The [plaintiffs’] attached garage and the areas immediately
surrounding their home and garage fit comfortably within the scope of the Fourth Amendment’s
protections of the home.”) Viewing the facts in the light most favorable to Mr. Loveless, the
nonmoving party, the Court DENIES Deputy Harrold’s Motion for Summary Judgment on the
basis of qualified immunity.
B. Sheriff McCorkle: Individual Capacity Section 1983 Claims
Sheriff McCorkle moves for summary judgment as to all Section 1983 and Fourth
Amendment claims against him in his individual capacity, on the basis that he lacked any personal
involvement in any constitutional violation. [Filing No. 36 at 14.] Sheriff McCorkle argues that
he was not present at Mr. Loveless’ home during the incident in question, and that he only learned
about those events when he returned to the office on the following Monday. [Filing No. 36 at 14.]
Mr. Loveless responds that Sheriff McCorkle may be held liable in his individual capacity if action
“pursuant to an official policy or custom of the Department caused a constitutional tort.” [Filing
No. 38 at 5-6.]

9

Individual liability under § 1983 “requires personal involvement in the alleged
constitutional deprivation.” Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017). Section
1983 “does not allow actions against individuals merely for their supervisory role of others.”
Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003). A plaintiff “must demonstrate a
causal connection between (1) the sued officials and (2) the alleged misconduct.” Colbert, 851
F.3d at 657 (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (“Section 1983 creates
a cause of action based on personal liability and predicated upon fault. An individual cannot be
held liable in a § 1983 action unless he caused or participated in an alleged constitutional
deprivation.... A causal connection, or an affirmative link, between the misconduct complained of
and the official sued is necessary.”) (emphasis in original)). Although direct participation is not
necessary, a supervisor “must know about the conduct and facilitate it, approve it, condone it, or
turn a blind eye for fear of what they might see. They must in other words act either knowingly
or with deliberate, reckless indifference.” Morfin v. City of E. Chicago, 349 F.3d 989, 1001 (7th
Cir. 2003).
In the context of a municipal official, the standards for individual and official capacity
liability differ. In support of his argument for individual capacity liability, Mr. Loveless cites only
to a string of official capacity cases, which discuss the “policy or practice,” Monell theory of
liability that applies in the official capacity context. But Mr. Loveless provides no argument or
evidence as to Sheriff McCorkle’s personal involvement in the events at issue, as required in the
individual capacity context. The Court addresses the official-capacity claims in a separate section,
but as to the § 1983 individual capacity claims, it GRANTS Sheriff McCorkle’s Motion for
Summary Judgment.

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C. Sheriff McCorkle and Deputy Harrold: Official Capacity Section 1983 Claims
Defendants move for summary judgment on Mr. Loveless’ official-capacity Section 1983
and Fourth Amendment claims, arguing that Mr. Loveless has failed to put forward evidence that
would establish the existence of any unconstitutional policies or customs. [Filing No. 36 at 1214.] Defendants contend that while Mr. Loveless alleges that Defendants have engaged in an
unconstitutional custom of failing to train sheriff’s deputies, he has pointed to no evidence to
support such allegations. [Filing No. 36 at 13-14.] In response, Mr. Loveless argues that the
Sheriff’s Department either trained its deputies, or operated based on an unwritten policy, to
unconstitutionally enter homes based on a nonexistent Indiana “Clear View Statute”. [Filing No.
38 at 13.] In reply, Defendants contend that the evidence does not establish that any training
Deputy Harrold received on the “Clear View Statute” came from the Sheriff. [Filing No. 39 at 3.]
Under Section 1983, a suit brought against an officer in his official capacity is actually a
suit against the government entity for which he works. Kentucky v. Graham, 473 U.S. 159, 165
(1985). And while there is no respondeat superior liability under Section 1983 for municipalities,
they may be held liable when a violation results from a municipal policy or custom. See Ball v.
City of Indianapolis, 760 F.3d 636, 643 (7th Cir. 2014). A custom or policy can take three forms:
“(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread
practice that, although not authorized by written law or express municipal policy, is so permanent
and well settled as to constitute a ‘custom or usage’ with the force of law; or (3) an allegation that
the constitutional injury was caused by a person with final policy-making authority.” Brokaw v.
Mercer Cty., 235 F.3d 1000, 1013 (7th Cir. 2000).
“A failure-to-train claim is actionable only if the failure amounted to deliberate
indifference to the rights of others.” Miranda v. Cty. of Lake, 900 F.3d 335 (7th Cir. 2018) (internal

11

citation omitted). Deliberate indifference exists where the defendant either “(1) failed to provide
adequate training in light of foreseeable consequences; or (2) failed to act in response to repeated
complaints of constitutional violations by its officers.” Id. (citing Sornberger v. City of Knoxville,
434 F.3d 1006, 1029-30 (7th Cir. 2006)). The Seventh Circuit has explained that the failure to
train must “reflect a conscious choice among alternatives.” Miranda, 900 F.3d 335 (citing Rice ex
rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012)).
As a threshold matter, the Court addresses the scope of Defendants’ Motion and Mr.
Loveless’ response. Defendants move for summary judgment on both the illegal search and the
excessive force claims raised under Section 1983 and the Fourth Amendment. Mr. Loveless does
not address the excessive force claim in his briefing, and the only allegedly offending policy or
practice he identifies relates to the illegal search claim. Mr. Loveless has therefore waived any
argument in opposition to Defendants’ Motion on the excessive force claim, and the Court
GRANTS Defendants’ Motion as to that claim. See Crespo v. Colvin, 824 F.3d 667, 673 (7th Cir.
2016) (undeveloped arguments are considered waived).
In support of his failure-to-train claim, Mr. Loveless cites to Deputy Harrold’s deposition
testimony as supporting the assertion that Sheriff McCorkle trained deputies to enter homes in
violation of the Fourth Amendment, based on a “Clear View Statute” that does not exist. Deputy
Harrold testified that his training indicated that under the “Clear View Statute…if you have a clear,
unobstructed view of your territory that you need to go, then you can approach that territory.”
[Filing No. 37-1 at 40.] When asked whether that information was provided to him by the Sheriff
of Henry County, Deputy Harrold responded, “[t]hat was in training through Law Enforcement
Academy, the University of Missouri, going through constitutional law and the trainings, so on

12

and so forth.” [Filing No. 37-1 at 40-41.] Deputy Harrold testified that he had received such
training as recently as “two years ago.” [Filing No. 37-1 at 41.]
Mr. Loveless does not allege that the Sheriff’s Department failed to act in response to
repeated complaints of constitutional violations by its officers, so he must seek to proceed under
the second route: that the Sheriff’s Department failed to provide adequate training in light of
foreseeable consequences. Deputy Harrold’s testimony regarding the source of the “Clear View
Statute” training he received is unclear. He neither specifically states nor specifically denies that
he received that training from the Sheriff’s office. But he testified that he had been employed by
Henry County for four years, so training he received two years prior could have been conducted
by Sheriff McCorkle or another individual at the Sheriff’s Department. Defendants point to no
testimony by Sheriff McCorkle stating that he did not provide the subject training, and Sheriff
McCorkle testified that he requires a 40-hour training course for reserve units. A reasonable
inference could be drawn from this testimony that Deputy Harrold received the subject training
from the Sheriff’s office, particularly when viewing the evidence in the light most favorable to Mr.
Loveless, as the non-moving party.
But the threshold for proving a failure-to-train claim is high, and it requires more than
simply identifying the source of the training. It requires that Mr. Loveless show that the failure to
train “reflect[s] a conscious choice among alternatives.” Miranda, 900 F.3d 335. This he has not
done. Mr. Loveless’ failure to point to any evidence as to the source or content of the training
means that he has provided no basis upon which a reasonable jury could conclude that the training
reflects a conscious choice among alternatives. Defendants are therefore entitled to summary
judgment as to this claim, and the Court GRANTS that Motion.

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D. Sheriff McCorkle and Deputy Harrold: Common-Law Trespass
Defendants argue that they are entitled to summary judgment on Mr. Loveless’ commonlaw trespass claim, because they are immune from suit under the Indiana Tort Claims Act. [Filing
No. 36 at 15.] Defendants contend that they are entitled to “law enforcement immunity” as to any
official-capacity claim, because Deputy Harrold was acting within the scope of his employment
when he entered Mr. Loveless’ property, and was engaged in law enforcement at the time of the
incident. [Filing No. 36 at 16-17.] In response, Mr. Loveless argues that Defendants are not
entitled to law enforcement immunity because Deputy Harrold exceeded his authority for serving
civil process, and was therefore not enforcing a law at the time of the trespass. [Filing No. 38 at
7.] Defendants do not provide a reply regarding this claim.
The Indiana Tort Claims Act generally governs tort claims against governmental entities
and public employees. Ind. Code § 34-13-3-1 et seq. One provision provides that a governmental
entity or an employee acting within the scope of the employee’s employment is not liable for a tort
when any loss suffered results from “[t]he adoption and enforcement of or failure to adopt or
enforce…a law (including rules and regulations)…unless the act of enforcement constitutes false
arrest or false imprisonment.” Ind. Code § 34-13-3-3(8). The resulting non-liability regime is
commonly referred to as “law enforcement immunity” under the ITCA.
Indiana Code § 34-13-3-3 does not define “enforcement of a law.” Defendants take the
position that the service of process always constitutes the enforcement of a law. In support of that
position, they point to Indiana Code § 35-44.1-3-1. That statute provides, in relevant part, that a
person who knowingly or intentionally:
(1) forcibly resists, obstructs, or interferes with a law enforcement officer or a
person assisting the officer while the officer is lawfully engaged in the execution
of the officer’s duties; [or]

14

(2) forcibly resists, obstructs, or interferes with the authorized service or execution
of a civil or criminal process or order of a court…
commits “resisting law enforcement.” Indiana Code § 35-44.1-3-1. Defendants contend that this
constitutes an implicit recognition that service of process is inherently a “law enforcement
function.” [Filing No. 36 at 17.]
A case from the Indiana Court of Appeals, however, undermines Defendants’ contention
that service of process always constitutes enforcement of a law. Casselman v. State, 472 N.E.2d
1310 (Ind. Ct. App. 1985). In that case, a sheriff’s deputy attempted to execute a writ of body
attachment as to Mr. Casselman at his home. Casselman, 472 N.E.2d at 1311. After opening the
door to the deputy’s knock, Mr. Casselman directed the deputy to contact his attorney and
attempted to close the door. Id. at 1312. The deputy grabbed the door and put his foot in front of
it to prevent it from closing. Id. After a “shoving match,” Mr. Casselman retreated into his house.
Id. The deputy followed, pulling his service revolver and ultimately taking Mr. Casselman into
custody. Id. Mr. Casselman was convicted of resisting law enforcement, in violation of an earlier
version of the statute relied upon by Defendants here. Id. He appealed his conviction. Id.
The court noted, as has this Court in exploring the parameters of civil process in the state
of Indiana, that “‘[i]t is remarkable that upon a question of such frequent recurrence in practice,
and of so much importance in relation to the service of civil process and the powers and duties of
officers therein, no direct judicial authority is to be found.’ These words which remain applicable
today were written by Chief Justice Shaw.” Id. at 1313 (quoting Ilsley v. Nichols (1831), 29 Mass.
(12 Pick.) 269). The court noted generally that the sheriff’s deputy was serving a writ of body
attachment, and not an arrest warrant, and therefore that the deputy could not claim the right to
exercise the powers associated with the service of an arrest warrant. Id. at 1212. The indictment

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did not specify whether Mr. Casselman was being charged with violating the first or second subpart
of the provision, so the court analyzed both.
As to subpart one, or obstruction of a law enforcement officer while lawfully engaged in
the execution of the officer’s duties, the court concluded that existing caselaw “[stood] for the
proposition that in matters concerning merely civil process, the courts of this land have been
zealous in protecting against the authority of government to force entry into a private dwelling.”
Id. at 1314. The court then concluded that because the deputy overstepped his authority in
preventing Mr. Casselman from closing the door to his home, the deputy was not lawfully engaged
in the execution of civil process. Id. As to subpart two, the same subpart invoked by Defendants
here, the court concluded that:
[i]f the term ‘authorized’ is intended to express the lawful manner of service, [the
sheriff’s deputy’s] actions were unauthorized as discussed above. If the term is
meant to describe the fact that the service of process had been approved by a judicial
officer, we reach the same result. The court did authorize [the deputy] to arrest
[Mr.] Casselman pursuant to the writ. However, the extent of that authority is
necessarily limited.
Id. at 1317-18.
In short, the Indiana Court of Appeals concluded that an individual could not be held
criminally liable under the statute invoked here by Defendants when a law enforcement officer has
exceeded his lawful authority in serving process. That court’s treatment of the issue of service of
process suggests at a minimum that facts regarding the type of process and the circumstances of
service should factor into a court’s determination as to whether the subject activities constitute
enforcement of a law. Defendants have provided no information regarding the process at issue,
although the Court gathers from deposition testimony that it involved a child support issue. [Filing
No. 37-4 at 34-35.] On this record, the Court simply cannot conclude that Defendants are entitled

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to immunity under the ITCA, on the basis that Deputy Harrold was “enforcing a law.” The Court
therefore DENIES Defendants’ Motion as to that claim.
E. Deputy Harrold: Individual Capacity State-Law Tort Claims
Defendants argue that even if law enforcement immunity does not apply, Deputy Harrold
cannot be held individually liable for “any torts defined by state law,” which here include Mr.
Loveless’ claims for battery, assault, false imprisonment, and trespass. [Filing No. 36 at 18.]
Defendants contend that Mr. Loveless has conceded that Deputy Harrold was acting within the
scope of his employment, and therefore that the ITCA immunizes Deputy Harrold from personal
liability. [Filing No. 36 at 18-19.] Mr. Loveless responds that because Deputy Harrold’s actions
were willful and wanton or malicious, Deputy Harrold is not entitled to individual immunity.
[Filing No. 38 at 14-15.]
The parties’ briefing as to this issue presents an example of the proverbial ships passing in
the night: Defendants do not raise any argument as to Mr. Loveless’ contentions regarding willful
and wanton or malicious conduct, so their Motion turns only on whether Mr. Loveless has alleged
that Deputy Harrold was acting within the scope of his employment. Mr. Loveless, in turn,
addresses only the willful, wanton, or malicious element of the statutory scheme, not addressing
whether Deputy Harrold was acting within the scope of his employment.
Indiana Code § 34-13-3-5(b) provides, in relevant part, that a lawsuit “alleging that an
employee acted within the scope of the employee’s employment bars an action by the claimant
against the employee personally.” This provision provides a government employee with a
“complete defense” where an employee is sued for actions that occurred within his scope of
employment. See Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind. 2003). Where a complaint
does not allege that an employee acted within the scope of his employment, it must “allege that an

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act or omission of the employee that causes a loss is: (1) criminal; (2) clearly outside the scope of
the employee’s employment; (3) malicious; (4) willful and wanton; or (5) calculated to benefit the
employee personally.” Ind. Code § 34-13-3-5(c).
In his Complaint, Mr. Loveless alleges that “[o]n the afternoon of Saturday, August 1,
2015, Deputy Harrold was working in furtherance of his employer, Sheriff McCorkle’s business[,]
attempting to serve Loveless’ granddaughter Kayla Garner with civil process at Loveless’
address.” [Filing No. 1 at 2.] And in his briefing, Mr. Loveless concedes that Deputy Harrold was
acting within the scope of his employment as to the events underlying the IIED claim. [Filing No.
38 at 7.] The allegations underlying Mr. Loveless’ assault, battery, and false imprisonment claims
overlap with the IIED allegations, and Mr. Loveless does not point to any additional, distinguishing
facts. These identical facts, along with Mr. Loveless’ IIED concession and the allegation as to
Deputy Harrold acting to further his employer’s business, lead the Court necessarily to the
conclusion that Deputy Harrold was operating within the scope of his employment as to those
claims. The Court therefore GRANTS Defendants’ Motion as to these claims.
The trespass claim is not so straightforward, for the reasons discussed above regarding
immunity under Ind. Code § 34-13-3-3(8). In support of their Motion, Defendants rely solely on
Mr. Loveless’ allegation that “Deputy Harrold was working in furtherance of his employer” when
the allegedly offending conduct occurred. They have not established that this statement alone,
however, is sufficient to confer individual liability, the facts differ from those underlying the IIED
claim, and Mr. Loveless has made no concessions as to scope of employment on this claim. See,
e.g., Hebert v. Porter Cty., Ind., 2007 WL 2363835, at *4 (N.D. Ind. 2007) (“It is true that Plaintiff
has alleged in the Complaint that the officers were employed by the Sheriff’s Department, and that
they were following an unconstitutional policy of the Sheriff’s Department in seizing his firearms

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and removing him from his home. But elsewhere in the complaint Plaintiff alleges that the officers
‘knowingly or intentionally exerted unauthorized control’ over his firearms, and ‘converted [them]
to their own value and use.’ He further alleges that the officers acted with ‘gross negligence,
malice or with reckless indifference.’ These allegations go beyond a claim that the officers were
acting within the scope of their employment.”). Given these issues, and that the question of the
scope of employment is typically one for the factfinder, the Court DENIES Defendants’ Motion
as to the trespass claim.
IV.
CONCLUSION
For the reasons described above, the Court GRANTS IN PART and DENIES IN PART
Defendants’ Motion for Summary Judgment, [35], as follows:
The Court GRANTS Defendants’ Motion as to:
•

All claims for violation of Article I, Section 11 of the Indiana Constitution;

•

IIED claims against Sheriff McCorkle and Deputy Harrold;

•

Individual capacity claims against Sheriff McCorkle for unreasonable search and
seizure and excessive force, under 42 U.S.C. § 1983 and the Fourth and Fourteenth
Amendments of the United States Constitution;

•

Official capacity claims against Sheriff McCorkle and Deputy Harrold for
unreasonable search and seizure and excessive force, under 42 U.S.C. § 1983 and
the Fourth and Fourteenth Amendments of the United States Constitution; and

•

Common law battery, assault, and false imprisonment claims against Deputy
Harrold.

The Court DENIES Defendants’ Motion as to:
•

Individual capacity claim against Deputy Harrold for unreasonable search and
seizure under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments of the
United States Constitution; and

•

Common law trespass claim under Indiana law against Deputy Harrold.

Remaining for resolution are:
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•

Individual capacity claims against Deputy Harrold for unreasonable search and
seizure and excessive force under 42 U.S.C. § 1983 and the Fourth and Fourteenth
Amendments of the United States Constitution;

•

Common law battery, assault, false imprisonment, and trespass against Sheriff
McCorkle;

•

Common law trespass against Deputy Harrold; and

•

Violation of Ind. Code § 35-33-5-7(e) against Sheriff McCorkle and Deputy
Harrold.

The Court requests that the Magistrate Judge confer with the parties at his earliest convenience
regarding possible resolution of the remaining claims.

Date: 9/20/2018

Distribution via ECF only to all counsel of record.

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