Gutierrez v. City of Indianapolis

CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
Citation886 F.Supp.2d 984
Docket NumberCase No. 1:11–cv–0185–TWP–DML.
PartiesMiguel GUTIERREZ, Plaintiff, v. The CITY OF INDIANAPOLIS, Michael R. Kermon, and Jason M. Thalheimer, Defendants.
Decision Date13 August 2012

OPINION TEXT STARTS HERE

Richard A. Waples, Waples & Hanger, Indianapolis, IN, for Plaintiff.

Alexander Phillip Will, Office of Corporation Counsel, Travis E. Shields, City of Indianapolis, Corporation Counsel, Indianapolis, IN, for Defendants.

ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

TANYA WALTON PRATT, District Judge.

This matter is before the Court on Defendants' Motion for Summary Judgment. This dispute arises from allegations by Plaintiff, Miguel Gutierrez, (Mr. Gutierrez) against Defendants, The City of Indianapolis (“the City”), Michael R. Kermon (Officer Kermon), and Jason M. Thalheimer (Officer Thalheimer) (collectively, Defendants), alleging violations of his constitutional rights under 42 U.S.C. § 19831 and state law claims of false arrest and battery. Specifically, Mr. Gutierrez alleges Officer Kermon violated his Fourth Amendment rights under the Constitution by unreasonably seizing him, unlawfully arresting him, and using excessive force in the process of arresting him. Additionally, he argues that Officer Thalheimer's failure to intervene and prevent Officer Kermon from infringing on his constitutional rights is a violation of § 1983. Furthermore, Mr. Gutierrez alleges Defendants violated his equal protection rights under the Fourteenth Amendment. Lastly the Mr. Gutierrez asserts various tort claims and false arrest claims against the City. Defendants counter by arguing that they are entitled to qualified immunity from the federal claims, and the remaining state claims are barred by the Indiana Tort Claims Act or fail for lack of evidence. For the reasons set forth below, Defendants' Motion for Summary Judgment(Dkt. 39) is GRANTED in part and DENIED in part.

I. BACKGROUND

Because this Entry addresses a motion for summary judgment, the following facts are either undisputed or reflect evidence in the light most reasonably favorable to the non-moving party, Gutierrez. See Luster v. Ill. Dep't of Corrs., 652 F.3d 726, 728 (7th Cir.2011). On March 8, 2009, at approximately 9:40 p.m. Officer Kermon of the Indianapolis Metropolitan Police Department (“IMPD”) received a dispatch directing him to go to 428 North Forest Avenue in Indianapolis, Indiana to investigate a report of two African American males chasing a third individual. Officer Kermon then proceeded to that address in a fully-marked IMPD police car. Once Officer Kermon arrived at 428 North Forest Avenue, he approached the house going southbound along the road and observed Mr. Gutierrez near the entryway of 428 North Forest Avenue. Mr. Gutierrez appeared to be walking northbound along the street. As Officer Kermon drove his marked police car along North Forest Avenue, he proceeded slowly because he was not sure “what kind of danger there might have been[.]

Mr. Gutierrez began walking northbound on North Forest Avenue at approximately 9:30 p.m. after performing maintenance work on his commercial truck.2 As he walked northbound on the west side of the street, he was carrying a golf club with him for protection because it was dark and “because this area was a very high crime area.” Mr. Gutierrez testified that he observed a vehicle parked along the west side of the street ahead of him with its headlights shining. Fearing for his own safety and in an attempt to avoid any problems stemming from the parked vehicle, Mr. Gutierrez decided to cross the street and walk along the east side walk. While attempting to cross the street, Mr. Gutierrez observed the slow moving car coming toward him in the southbound lane. Notably, Mr. Gutierrez did not know the vehicle was a police car driven by a police officer because it was dark, the car's headlights were turned off, and there was a row of parked cars obstructing his view. Concerned about the slow moving vehicle, Mr. Gutierrez immediately ceased his attempt to cross North Forest Avenue and returned to the west side sidewalk.

After Mr. Gutierrez returned to the sidewalk, he heard someone shout behind him, “Hey, you, stop right there. Hey, you, stop.” 3 Dkt. 46–1 at 75:19–22. Mr. Gutierrez did not initially heed to these commands because he did not recognize the voice, nor did Officer Kermon identify himself as a police officer. Officer Kermon testified that he approached Mr. Gutierrez under the premise that he may be the victim from his dispatch.4 According to Officer Kermon, Mr. Gutierrez's clothes were dirty, and he appeared “clearly agitated[,] “a little animated[,] “swaying[,] and lacked “full control” of his leg. When it appeared that Mr. Gutierrez was not complying with his commands, Officer Kermon ran in front of Mr. Gutierrez to stop him. Officer Kermon then pointed his gun and shined a flashlight at Mr. Gutierrez.

Officer Kermon ordered Mr. Gutierrez to “get on the ground, raise your hands,” and to “drop the stick.” Due to the flashlight shining in his face Mr. Gutierrez initially hesitated because he did not yet realize he was being confronted by a police officer. However, at some moment during the encounter, Officer Kermon's flashlight lowered slightly giving Mr. Gutierrez a clearer view of the officer's badge and uniform and he began to follow Officer Kermon's orders. According to the complaint, Mr. Gutierrez immediately threw the golf club backwards.5 In the process of throwing the golf club, Mr. Gutierrez claimed that he said, “Hey, what's going on? I live right there [,] pointing to a house further north along the road from their position. Dkt. 46–1 at 77:16–17. The complaint alleges that [before] he could finish his sentence, [Officer Kermon] raised his hand close to Mr. Gutierrez's face, and sprayed him directly in the eyes with OC/CS spray.” After being blinded by the chemical spray, Mr. Gutierrez was immediately forced to the ground by Officer Kermon. Once on the ground, Officer Kermon attempted to secure Mr. Gutierrez's arms so that he could handcuff him. Officer Kermon testified that Mr. Gutierrez's left hand was between his stomach and the ground, and he believed Mr. Gutierrez was resisting his attempts to free his arm. At this moment, Officer Thalheimer arrived and assisted Officer Kermon in extracting Mr. Gutierrez's arm from underneath his stomach. Officer Thalheimer gave a knee strike to one of Mr. Gutierrez's legs while attempting to remove his left arm from underneath him. Mr. Gutierrez was then handcuffed by one of the officers. Immediately after he was handcuffed, Mr. Gutierrez felt a strong kick to his stomach which was immediately followed by another kick.6 The pain of the first kick caused Mr. Gutierrez to curl his body.

After being kicked, Mr. Gutierrez began to verbally protest the officers' treatment of him to other officers in the area. During his protest, Mr. Gutierrez asked what right did the officers have to treat him like this and complained that he had been kicked by the officers. According to Mr. Gutierrez, Officer Kermon admitted to kicking him and when he asked Officer Kermon, “do you have a right to do what you did to me?”, officer Kermon responded “Of course, I can do whatever I want to you, you filthy Mexican.” According to Mr. Gutierrez, each time he raised his head off the ground in an attempt to see what was going on, Officer Thalheimer would put his boot on his head “stomping” it very hard “back to the ground”.

Eventually, Mr. Gutierrez was arrested and brought to the Marion County Arrestee Processing Center. Officer Kermon filed an incident report and affidavit for probable cause for charges of public intoxication and resisting law enforcement. Mr. Gutierrez was released from custody the following day and went to Wishard Memorial Hospital because of pain on his side and eye problems associated with the chemical spray. The medical report from Wishard Hospital indicated that Mr. Gutierrez had scatter abrasions but no apparent fractures. Subsequently, in August 2009, Mr. Gutierrez visited a doctor at the Alivio Medical Center because the pain in his side had not subsided. During his visits to the medical center, an x-ray was taken revealing that Mr. Gutierrez had a non-displaced fracture of the 11th rib.

On September 4, 2009, Mr. Gutierrez submitted a notice of tort claim to the City of Indianapolis indicating that he was “verbally and physically abuse [d].” The criminal charges against Mr. Gutierrez were dismissed by the Marion County Prosecutor on October 23, 2009, after a magistrate ruled that the initial stop was illegal. Additional facts are added below as needed.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489–90 (7th Cir.2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party's favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.2009) (citation omitted). However, [a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation 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 a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir.2001) (citation and internal...

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  • Gutierrez v. Kermon
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 12, 2013
    ...he was entitled to qualified immunity. The district court granted the motion in part and denied it in part. Gutierrez v. City of Indianapolis, 886 F.Supp.2d 984, 1001 (S.D.Ind.2012). The court granted summary judgment for Officer Kermon on Gutierrez's Terry claim, concluding that Kermon had......
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    ...v. Gomez, 692 F.3d 854, 864 (7th Cir. 2012); Payne v. Pauley, 337 F.3d 767, 775-76 (7th Cir. 2003); Gutierrez v. City of Indianapolis, 886 F. Supp. 2d 984, 995-96 (S.D. Ind. 2012). Plaintiff's Fourth Amendment unlawful arrest and state false arrest and malicious prosecution claims in Counts......
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    ...attention was on restraining the plaintiff rather than on the officer accused of using excessive force); Gutierrez v. City of Indianapolis, 886 F. Supp. 2d 984, 998 (S.D. Ind. 2012) (same). Thus, it is of no surprise that neither officer saw the Plaintiff with a firearm or warned Defendant ......
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