IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

LOIS TRASK, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 2:13-CV-1

)

JOHN BISH, et al., )

)

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the “State Defendants’

Motion for Summary Judgment,” filed by Defendants, Edgar Rodriguez

and Antwan Sullivan, on March 11, 2014 (DE #97). For the reasons

set forth below, the motion for summary judgment (DE #97) is

GRANTED. The Clerk is hereby ORDERED to DISMISS the claims against

Defendants, Edgar Rodriquez and Antwan Sullivan, WITH PREJUDICE and

to CLOSE this case.

BACKGROUND

Defendants filed the instant motion for summary judgment on

March 11, 2014 (DE #97). Defendants also filed the requisite

notice of summary judgment filing because Plaintiff is pro se. (DE

#99). Thereafter, Plaintiff filed a motion to dismiss without

prejudice (DE #101), but it was not signed by all parties, and the

Defendants objected to a dismissal without prejudice. (DE #103.) 
On May 6, 2014, this Court entered an order denying Plaintiff’s

motion to dismiss without prejudice (DE #104), and ordering

Plaintiff to file a response to the instant motion for summary

judgment on or before May 21, 2014. The Court warned Plaintiff

that failure to file a response on or before June 2, 2014, could

result in a summary ruling. (DE #104.) 

To date, Plaintiff has not filed a response. Local Rule 7-

1.(d)(4) provides that, in the case of summary judgment, “[t]he

court may rule on a motion summarily if an opposing party does not

file a response before the deadline.” Thus, a summary ruling is

appropriate. However, “[s]trict enforcement of [local rules and

deadlines] does not mean that a party’s failure to submit a timely

filing automatically results in summary judgment for the opposing

party.” Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 568

(7th Cir. 1992). Rather, that failure “causes all factual

assertions alleged by the opposing party to be deemed admitted” and

this Court must still “make the further finding that given the

undisputed facts, summary judgment is proper as a matter of law.” 

Id. 

DISCUSSION

Pursuant to Rule 56(a) of the Federal Rules of Civil

Procedure, summary judgment is proper only if it is demonstrated

that there is no genuine issue as to any material fact and that the

2
moving party is entitled to judgment as a matter of law. See

Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). In other words, the record

must reveal that no reasonable jury could find for the nonmovant.

Karazanos v. Navistar Int’l Transp. Corp., 948 F.2d 332, 335 (7th

Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986). In deciding a motion for summary judgment, a court

must view all facts in the light most favorable to the nonmovant.

Anderson, 477 U.S. at 255; NUCOR Corp. v. Aceros Y Maquilas de

Occidente, 28 F.3d 572, 583 (7th Cir. 1994).

The burden is upon the movant to identify those portions of

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits,” if any, that the

movant believes “demonstrate the absence of a genuine issue of

material fact.” Celotex, 477 U.S. at 323. Once the movant has met

this burden, the nonmovant must support its assertion that a fact

is genuinely disputed by citing to particular parts of materials in

the record. Fed. R. Civ. P. 56(c); Becker v. Tenenbaum-Hill

Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v.

Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). 

“Whether a fact is material depends on the substantive law

underlying a particular claim and ‘only disputes over facts that

might affect the outcome of the suit under governing law will

properly preclude the entry of summary judgment.” Walter v.

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Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988) (emphasis in original)

(citing Anderson, 477 U.S. at 248).

“A party who bears the burden of proof on a particular issue

may not rest on its pleading, but must affirmatively demonstrate,

by specific factual allegations, that there is a genuine issue of

material fact which requires trial.” Beard v. Whitley Country

REMC, 840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original); see

also Hickey v. A.E. Staley Mfg., 955 F.2d 1385, 1391 (7th Cir.

1993). Therefore, if a party fails to establish the existence of

an essential element on which the party bears the burden of proof

at trial, summary judgment will be appropriate. In this situation,

there can be “’no genuine issue as to any material fact,’ since a

complete failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 323.

It is noteworthy that Trask is a pro se plaintiff. However,

her pro se status does not relieve her from complying with the

procedural rules associated with summary judgment. See Ammons v.

Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004)

(requiring pro se plaintiff to strictly comply with Northern

District of Illinois Local Rule 56.1); Anderson v. Hardman, 241

F.3d 544, 545 (7th Cir. 2001) (explaining that pro se litigants

must still comply with procedural rules). 

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Undisputed Findings of Fact

Local Rule 56-1 provides that a party opposing summary

judgment must file a response brief and “any materials that the

party contends raise a genuine dispute.” L.R. 56-1(b)(1)(B). 

Additionally, the response brief or its appendix must specifically

“include a section labeled ‘Statement of Genuine Disputes’ that

identifies the material facts that the party contends are genuinely

disputed so as to make a trial necessary.” L.R. 56-1(b)(2). 

In this case, Plaintiff failed to file an opposition, and

therefore did not dispute any of the facts identified by Defendants

in their statement of material facts, and did not set forth any

additional facts or evidence. Consequently, the Court must take

the facts in Defendants’ statement as admitted. L.R. 56-1;

Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994)

(noting the Seventh Circuit has routinely sustained “the entry of

summary judgment when non-movant has failed to submit a factual

statement in the form called for by the pertinent rule and thereby

conceded the movant’s version of the facts.”).

Because the facts are undisputed, the Court will only briefly

summarize them. Defendant, Sullivan, is a gaming agent employed by

the Indiana Gaming Commission. (Sullivan Aff. ¶¶ 1-2.) Defendant,

Rodriguez, is also a gaming agent employed by the Indiana Gaming

Commission. (Rodriguez Aff. ¶ 1.) Collectively, Defendants

Sullivan and Rodriguez are referred to as the “State Defendants.”

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On January 3, 2012, Trask was at the Horseshoe Casino. Video

footage from the casino shows that while at a change machine,

Plaintiff picked up a twenty-dollar bill off the floor. (McDonald

Aff. ¶ 4; Ex. A.) Although Trask claims she believed the twenty

dollars to be her money, the video footage clearly shows that the

twenty-dollar bill belonged to the man in front of her at the

change machine. Id. When he walked away from the change machine,

he dropped the bill, and then Trask picked it up. (Trask Dep., pp.

69, 83, 169-70; McDonald Aff. Ex. A.) After picking up the twenty

dollar bill, Trask went to gamble. (Trask Dep., p. 73; McDonald

Aff.) 

Several hours later, while gambling, Trask was approached by

Joan Bish, who was a security supervisor at the Horseshoe Casino. 

(Trask Dep., p. 74; McDonald Aff. Ex. A.) Bish coaxed Trask to

accompany her to the security podium, where they met up with

Defendants Rodriguez and Sullivan. (Trask Dep., pp. 74-76; McDonald

Aff. Ex. A.) Defendant Sullivan told Trask she believed she had

taken twenty dollars, and Trask became verbally combative, agitated

and un-cooperative. (Sullivan Aff. ¶ 6.) Trask also made multiple

phone calls on her cell phone near the security booth. (Id. ¶ 7.) 

At some point, Rodriguez asked Trask to discontinue her call, and

to go with him to the security office. (Rodriguez Aff. ¶ 8.) 

Trask continued with her call and was uncooperative. (Id.;

Sullivan Aff. ¶ 9.) When Plaintiff failed to cooperate, Rodriguez

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temporarily confiscated her cell phone and pulled the sleeve of her

coat to encourage her cooperation. (Rodriguez Aff. ¶ 9.) Trask

was escorted to the interior security room, and during the lengthy

walk, at times, Rodriguez placed a hand on her arm and/or shoulder

of her coat to guide her to the back room. (Sullivan Aff. ¶ 9;

Rodriguez Aff. ¶ 10.) 

In the security office, Rodriguez told Trask they needed to

pat her down for their safety and hers, and Trask told them to go

ahead. (Rodriguez Aff. ¶¶ 13-14; Sullivan Aff. ¶ 14.) Rodriguez

helped Trask out of her floor-length coat, patted the coat down,

and placed it in a chair beside her. (Sullivan Aff. ¶ 14;

Rodriguez Aff. ¶¶ 13-14.) Sullivan ultimately did not

search/conduct a pat down of Trask’s person. (Sullivan Aff. ¶¶ 13-

15.) Trask could not locate her identification, so she was

escorted to her car to retrieve her identification, and the

Defendants confiscated five dollars she had in the car. (Trask

Dep., p. 111-15; Sullivan Aff. ¶ 16; Rodriguez Aff. ¶ 16.) After

returning to the security office, Defendant Sullivan told Trask she

was free to go, but they would be keeping the five dollars, and

that she was not allowed to come back to the casino because they

believed Trask had taken money. (Trask Dep., pp. 114-16). Bish

asked Trask to sign some papers, but Trask refused. (Id., p. 116.) 

Trask was escorted to her car and asked to leave immediately. 

(Id., p. 117.)

7
Trask filed the instant lawsuit on January 2, 2013. According

to Sherry Green, information analyst and records custodian for the

Indiana Gaming Commission, Trask did not file a tort claim notice

against Indiana Gaming Agents Sullivan or Rodriguez. (Green Aff.

¶ 5.) The agency has no record of a tort claims notice from Trask

regarding any matter. Id. Additionally, the Indiana Attorney

General’s Office did not receive a tort claim notice from Lois

Trask regarding any matter. (Ward Aff. ¶ 5.) 

Tort Claims

Defendants Rodriguez and Sullivan are entitled to judgment as

a matter of law on Trask’s tort claims because she failed to comply

with the requisite notice requirements of the Indiana Tort claims

Act (the “ITCA”).

The ITCA provides that a claim against a political subdivision

is barred unless the prescribed notice is filed within 180 days

after the loss occurs. Ind. Code 34-13-3-8; see also Davidson v.

Perron, 716 N.E.2d 29, 33-34 (Ind. Ct. App. 1999). Specifically,

notice must be filed: (1) with the governing body of that political

subdivision; and 2) the Indiana Political Subdivision Risk

Management Commission. Ind. Code 34-13-3-8. “The notice

requirements of the ITCA apply not only to suits against political

subdivisions but also to suits against employees of a political

subdivision.” Davidson, 716 N.E.2d at 33-34 (citing VanValkenburg

8
v. Warner, 602 N.E.2d 1046, 1048 (Ind. Ct. App. 1992)). The

claimant bears the burden of establishing substantial compliance

with the notice provisions and it is a question of law. Chang v.

Purdue Univ., 985 N.E.2d 35, 52 (Ind. Ct. App. 2013). 

Because the State Defendants have raised the defense of

failure to comply with the notice requirements, the burden is on

Trask to prove compliance with the ITCA notice provisions. Hedges

v. Rawley, 419 N.E.2d 224, 227 (Ind. Ct. App. 1981). Here,

Defendants argue “Trask failed entirely to file the required tort

claim notice with the Indiana Gaming commission or the Indiana

Attorney General prior to initiating this suit,” (DE #98, p. 12),

and Trask has not controverted this argument or provided any

evidence that she did file notice. Trask’s failure to file a tort

claims notice bars her from asserting state tort claims against

Defendants Sullivan and Rodriguez. See, e.g., Meury v. Eagle-Union

Community School Corp., 714 N.E.2d 233 (Ind. Ct. App. 1999). 

Judgment is therefore appropriate for the State Defendants on all

of the asserted tort claims including, but not limited to assault,

battery, fraud, civil conspiracy, infliction of emotional distress,

false imprisonment, malicious prosecution, negligence, and

defamation (humiliation).

Section 1983 Claims 

Trask alleges in the complaint that Defendants Sullivan and

9
Rodriguez searched and unlawfully detained her (Compl. ¶¶ 4,5), and

that Rodriguez used excessive force in violation of her

constitutional rights. 

The Fourth Amendment states it is “[t]he right of the people

to be secure in their person, houses, papers, and effects against

unreasonable searches and seizures[.]” U.S. Const. Am. IV. To

determine whether a cause of action has been stated, courts

determine whether the alleged conduct constituted a search or

seizure, and if so, whether it was unreasonable in light of the

facts. A person has been “seized” for purposes of the Fourth

Amendment “if, in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that he was not

free to leave.” United States v. Mendenhall, 446 U.S. 544, 554

(1980). “The test of reasonableness under the Fourth Amendment is

not capable of precise definition or mechanical application, and

its proper application requires careful attention to the facts and

circumstances of each particular case.” Brokaw v. Mercer Cnty.,

235 F.3d 1000, 1010 (7th Cir. 2000) (quoting Graham v. Connor, 490

U.S. 386, 396 (1989)). 

Probable cause is not necessary for police to conduct an

investigatory stop, limited in scope and executed by reasonable

means. Terry v. Ohio, 392 U.S. 1, 18-20 (1968). To make an

investigatory stop, an officer needs only reasonable suspicion

supported by articulable facts that criminal activity is afoot. 

10
Terry, 392 U.S. at 30; United States v. Jackson, 300 F.3d 740, 745

(7th Cir. 2002). Reasonable suspicion is "some objective

manifestation that the person stopped is, or is about to be,

engaged in criminal activity." United States v. Jackson, 300 F.3d

740, 745 (7th Cir. 2002) (quoting United States v. Cortez, 449 U.S.

411, 417 (1981)). 

The reasonableness of a Terry stop is evaluated by looking at

"whether the officers' actions were justified at the inception of

the stop" and "whether the stop was reasonably related in scope to

the circumstances that justified the stop in the first place." 

Jackson, 300 F.3d at 745 (citing United States v. Swift, 220 F.3d

502, 506 (7th Cir. 2000)). The totality of circumstances known to

the officer at the time of the stop must be considered in making

the evaluation. Id. (citing Swift, 220 F.3d at 506). 

Based upon the totality of the circumstances, the State

Defendants had reasonable suspicion to stop and detain Trask. 

Indeed, they witnessed her on the casino video taking money that

clearly did not belong to her. (McDonald Aff. Ex. A.) There is no

evidence she was detained longer than necessary to investigate the

alleged theft, obtain her identification, and attempt to recover

the money. As such, the investigative stop was justified at its

inception and “reasonably related in scope to the circumstances

which justified the interference in the first place.” Terry, 392

U.S. at 19-20. 

11
Trask also argues that she was unlawfully searched in

violation of her constitutional rights. “The Fourth Amendment

allows privacy interests protected by the Fourth Amendment to be

balanced against the interests of officer safety.” Wilson v.

State, 745 N.E.2d 789, 792 (Ind. 2001) (citing Terry, 392 U.S. at

23-27). To justify a pat down, Terry dictates an objective

standard that “a reasonably prudent man in the circumstances would

be warranted in the belief that his safety or that of others was in

danger.” Terry, 392 U.S. at 27; United States v. Rivers, 121 F.3d

1043, 1045 (7th Cir. 1997). 

In this case, upon arriving in the security office, Defendant

Rodriguez assisted Trask in removing her oversized floor length

coat and conducted a pat down search of the coat - Rodriguez

attested he searched the coat for “safety reasons.” (Rodriguez

Aff. ¶ 14.) No one patted down her person. In light of the

totality of circumstances, it was reasonable to pat down Trask’s

coat. Trask had been brought back to a small room where she could

at various times be alone with the State Defendants, alone with

casino employees, or by herself in the room. There is testimony

that she was verbally combative, agitated and uncooperative. 

(Sullivan Aff. ¶ 6; Rodriguez Aff. ¶ 8.) As such, it was

reasonable for Defendant Rodriguez to conduct a pat down of the

coat for his safety and that of the others involved. See Wilson,

745 N.E.2d at 792 (holding that “when an officer places a person

12
into a patrol car that will be occupied by the officer or other

persons, there is a significantly heightened risk of substantial

danger” and that “it is generally reasonable for a prudent officer

to pat-down persons placed in his patrol car, even absent a belief

of dangerousness particularized to the specific detainee”). 

Because Defendant Rodriguez’s actions in patting down the coat were

reasonable, as a matter of law, there was no violation of Trask’s

Fourth Amendment rights.1

Last, Trask claims Defendant Rodriguez used excessive force

when he escorted her across the casino floor to the security

office. Excessive force claims brought against law enforcement

officers which stem from an arrest, investigatory stop, or other

seizure of a citizen are analyzed under the Fourth Amendment’s

objective reasonableness standard. Graham v. Connor, 490 U.S. 386,

395 (1989); Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th

Cir. 2005). 

The reasonableness of a particular use of

force must be judged from the perspective of a

reasonable officer on the scene, rather than

with the 20/20 vision of hindsight. The

1

 Even assuming, arguendo, the search of the coat was not

reasonable, Trask’s claim would still fail because she gave

consent to the search. See, e.g., United States v. Duran, 957

F.2d 499, 501 (7th Cir. 1992) (Warrantless searches are

constitutionally permissible when “an authorized individual

voluntarily consents to the search”.). There is no evidence in

the record that Trask’s consent was not freely and voluntarily

given. When Rodriguez told Trask they needed to pat her down for

their safety and hers, Trask told them to go ahead. (Rodriguez

Aff. ¶¶ 13-14; Sullivan Aff. ¶ 14.) 

13
question is whether the officers’ actions are

objectively reasonable in light of the facts

and circumstances confronting them, without

regard to their underlying intent or

motivation. 

Tibbs v. Chicago, 469 F.3d 661, 665 (7th Cir. 2006) (internal

quotations marks, brackets, and citations omitted). Here, Trask

was seen on video taking money that did not belong to her. After

she was approached by casino security personnel and Defendants

Rodriguez and Sullivan, she became agitated and uncooperative. 

When asked to accompany the gaming agents to the security office,

Trask was resistant, and continued to speak on her cell phone

despite State Defendants’ instructions to discontinue her call. 

(Sullivan Aff. ¶¶ 6-9; Rodriguez Aff. ¶¶ 6-9.) Trask was resistant

to go to the security office, so Defendant Rodriguez pulled lightly

on her coat in the direction of the office and had to occasionally

place a hand on the arm and/or shoulder of her coat to guide her to

the back. (Rodriguez Aff. ¶¶ 9-10; Sullivan Aff. ¶ 9; McDonald

Aff. Ex. A; Trask Dep., pp. 88-90.) This can be seen in the video

footage, and was reviewed carefully by this Court, and it was the

only “force” exerted by Rodriguez. (McDonald Aff. Ex. A.) Under

the circumstances, the force was reasonable. 

Finally, Trask alleges a constitutional claim against the

State Defendants pursuant to 42 U.S.C. § 1986, which states that

“every person having knowledge that any of the wrongs conspired to

be done, and mentioned in section 1985 of this title, are about to

14
be committed, and having power to prevent or aid in preventing the

commission of the same, neglects or refuses to do so, if such

wrongful act be committed, shall be liable to the party injured .

. . for all damages caused by such wrongful act” and all claims

brought under section 1986 are “premised on a violation of section

1985.” Sims v. Kernan, 29 F.Supp.2d 952, 957 (1998) (citing Rhodes

v. Mabus, 676 F.Supp. 755, 760 (S.D. Miss. 1987)). Section 1985(3)

of Title 42 of the United States Code “prohibits persons from

conspiring to deprive any person, or any class of persons, of their

constitutional rights.” Vega Marrero v. Consorcio Dorado-Manati,

552 F.Supp.2d 157, 163 (D.P.R. 2007). To state a viable claim

under section 1985, a plaintiff “must allege the existence of (1)

a conspiracy, (2) conspiratorial purpose to deprive a person or

class of persons, directly or indirectly, of the equal protection

of the laws or equal privileges and immunities under the laws, (3)

an overt act in furtherance of the conspiracy, and (4) either (a)

an injury to person or property, or (b) a deprivation of a

constitutionally protected right or privilege.” Id. (citing Aulson

v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996); Concepcion v. Zorrilla,

309 F.Supp.2d 201, 213 (D.P.R. 2004)). Equal protection, as used

in this context, makes reference to actions motivated by “some

racial, or . . . otherwise class-based, invidiously discriminatory

animus.” Id. (citing Concepcion, 309 F.Supp.2d at 214).

Here, Trask makes no mention of Section 1985 in her Complaint. 

15
She brings no specific claim under it nor does she reference any of

its provisions. Instead, Trask simply alleges conspiracy and

claims she believes she was treated differently because of her age

and race. Trask provides absolutely no facts to support these

assertions. Moreover, Trask asserts her claim under Section 1986

against all Defendants. (Compl. ¶ 11.) “Section 1986 allows a

suit to be brought against persons who are not members of the

conspiracy but who are aware of it.” Craig v. Cohn, 80 F.Supp.2d

944, 947 (2000) (citing Hampton v. City of Chicago, 484 F.2d 602,

610 (7th Cir. 1973)). If all defendants to a suit are alleged to

be members of the conspiracy, then there can be no valid § 1986

claim. (Id. at 947.) Consequently, because Trask brings her

Section 1986 claim absent a viable factual basis rooted in Section

1985, stemming from a discriminatory animus, and her Complaint

alleges that the defendants all conspired against her, her claim

fails and judgment shall be entered in favor of State Defendants.

Conclusion

For the reasons set forth below, the motion for summary

judgment (DE #97) is GRANTED. The Clerk is hereby ORDERED to

DISMISS the claims against Defendants, Edgar Rodriquez and Antwan

Sullivan, WITH PREJUDICE and to CLOSE this case.

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DATED: June 17, 2014 /s/ RUDY LOZANO, Judge

 United States District Court

17