UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

BRET S. BEILER, )

)

Plaintiff, )

) 

v. ) No. 1:12 CV 2

)

DUNKIRK POLICE DEPARTMENT, et al., )

)

Defendants. )

OPINION AND ORDER

Bret S. Beiler, a pro se plaintiff, is proceeding on a claim that officers from the

Dunkirk Police Department used excessive force against him in violation of the Fourth

Amendment. The two remaining defendants—Captain Michael E. Kreps and Officer

Brad Miller—move for summary judgment. (DE 50.) For the reasons stated below, the

motion will be granted.

I. Legal Standards

Summary judgment must be granted when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a). A genuine issue of material fact exists when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes

summary judgment inappropriate; “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of

summary judgment.” Id. To determine whether a genuine issue of material fact exists,
the court must construe all facts in the light most favorable to the non-moving party

and draw all reasonable inferences in that party’s favor. Ogden v. Atterholt, 606 F.3d 355,

358 (7th Cir. 2010). A party opposing a properly supported summary judgment motion

may not rely merely on allegations or denials in his or her own pleading, but rather

must “marshal and present the court with the evidence she contends will prove her

case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the

nonmoving party fails to establish the existence of an essential element on which he or

she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson,

457 F.3d 711, 716 (7th Cir. 2006).

Beiler did not file a response to the motion for summary judgment, despite being

given proper notice of the motion. (See DE 49.) Pursuant to N.D. IND. LOCAL RULE 7-

1(d)(4), a party’s failure to file a response within the time prescribed may subject the

motion to summary ruling. Nevertheless, “[s]trict enforcement of [local rules] 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.” Id. The court still must “make the further finding that

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

II. Undisputed Facts

The following facts are undisputed. On April 17, 2010, at approximately 1:00 a.m,

Captain Kreps and Officer Miller were on patrol in full uniform driving an unmarked

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police vehicle. (Defs.’ Facts at 3.) As they approached the intersection of Lincoln Avenue

and Angle Street, they observed a car parked in a mobile home parking lot with its

passenger door open.1 (Id.) They could see a leg sticking out of the vehicle on the

passenger side. (Id.) They pulled over and exited their car to investigate. (Id.) 

When the officers reached the car, they saw a man later identified as Beiler. (Id.)

He was slumped over, and they could not determine if he was asleep, awake, or

perhaps injured. (Id.) Captain Kreps shook Beiler, and when Beiler woke up he asked to

see his identification. (Id.) They could smell the odor of alcohol, and noticed he had

bloodshot eyes and his speech was slurred. (Id. at 4.) The officers also saw that his belt

was unbuckled and his pants unzipped, and they noticed a wet spot on the ground

outside the vehicle which smelled like urine. (Id.) Captain Kreps asked Beiler why he

was in the car, and he responded that his roommate “had locked him out because he

was drunk.” (Id.) Captain Kreps was concerned about Beiler’s medical condition and

wanted to assess his intoxication level, so he asked Beiler to step out of the car. (Id.)

Beiler refused. (Id.) The officer told him they wanted to check and make sure he was

alright, and if so he could go home. (Id.) Beiler began yelling profanities at the officers

and refused to exit the car. (Id. at 68.) At that point, Captain Kreps reached into the car,

grabbed a hold of Beiler’s arm, and attempted to pull him out. (Id.) Beiler tried to shut

1 The car was parked in a common area in front of three mobile homes. (Defs.’

Facts at 3.) The parking lot was open to anyone visiting the area. (Id.)

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the door on Captain Kreps’ hand, grabbed onto the center console so he could not be

pulled out of the car, and continued yelling profanities. (Id.)

Captain Kreps then took out his taser, warning Beiler that if he did not exit the

car he would be tased. (Id.) Beiler still refused, so Captain Kreps stunned him with the

taser. (Id.) Beiler still refused to comply, and continued to push on the door with his foot

so the officers could not remove him from the car. (Id.) Captain Kreps applied his taser a

second time, and the officers were then able to remove Beiler from the car. (Id.) Once

out of the car, Beiler continued to struggle, kick, and yell profanities at the officers. (Id.)

They were eventually able to restrain him, and they placed him under arrest. (Id.) He

was later charged with public intoxication and resisting law enforcement. (Id.) A jury

found him guilty as charged, and his conviction was affirmed by the Indiana Court of

Appeals. Beiler v. State of Indiana, No. 38A02-1109-CR-839 (Ind. Ct. App. May 24, 2012).

III. Analysis

A. Res Judicata

The defendants first argue that Beiler’s Fourth Amendment claim is barred by res

judicata, because the issue of whether the officers acted reasonably was already litigated

in the criminal case. (DE 51 at 5.) “A fundamental precept of common-law adjudication,

embodied in the related doctrines of collateral estoppel and res judicata, is that a right,

question or fact distinctly put in issue and directly determined by a court of competent

jurisdiction. . . cannot be disputed in a subsequent suit between the same parties or their

privies[.]” Ross v. Bd. of Educ. of Tp. H.S. Dist. 211, 486 F.3d 279, 282 (7th Cir. 2008)

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(internal citation and quotation marks omitted). These companion doctrines “protect

against the expense and vexation attending multiple lawsuits, conserve judicial

resources, and foster reliance on judicial action by minimizing the possibility of

inconsistent decisions.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008).

Because the prior case was litigated in state court, the court must look to Indiana

law to determine whether the present action is barred. See 28 U.S.C. § 1738; Marrese v.

American Academy of Orthopaedic, 470 U.S. 373, 380 (1985). Under Indiana law, four

requirements must be satisfied for a claim to be precluded under the doctrine of res

judicata: 1) the former judgment must have been rendered by a court of competent

jurisdiction; 2) the former judgment must have been rendered on the merits; 3) the

matter now in issue was, or could have been, determined in the prior action; and 4) the

controversy adjudicated in the former action must have been between the parties to the

present suit or their privies. MicroVote General Corp. v. Indiana Election Com’n, 924 N.E.2d

184, 191 (Ind. Ct. App. 2010). A subset of res judicata, issue preclusion, bars the

subsequent relitigation of a fact or issue that was necessarily adjudicated in the prior

lawsuit. Miller Brewing Co. v. Ind. Dep’t of State Rev., 903 N.E.2d 64, 68 (Ind. 2009). The

primary consideration in deciding whether the doctrine applies is whether the party

who would be precluded had a full and fair opportunity to litigate the issue. Id.

As pertains to this case, Beiler was found guilty of resisting law enforcement. The

issues of excessive force and resisting arrest are not necessarily coexistensive; in other

words, a finding that a defendant resisted arrest does not always require a

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determination of whether the arresting officer used excessive force. See Hardrick v. City

of Bolingbrook, 522 F.3d 758, 764 (7th Cir. 2008). Here, however, Beiler expressly raised

the issue of whether the officers used excessive force against him, which in his view

gave him the right to resist. See Beiler, No. 38A02-1109-CR-839, slip op. at 12. The

Indiana Court of Appeals rejected his argument, concluding that the officers’ actions

were entirely reasonable under the circumstances. Id. at 14-17. There is no dispute that

the state court had jurisdiction to decide this issue, Beiler was a party to the prior case

and had a full and fair opportunity to litigate this issue, and it is clear that a final

judgment was entered against him. Under these circumstances, the court agrees that

Beiler’s excessive force claim is barred by res judicata.

B. Excessive Force

The defendants alternatively argue that, even if Beiler’s claim is not barred by res

judicata, it fails on the merits. (DE 51 at 8.) The court agrees. An officer’s right to arrest

an individual includes the right to use some degree of physical force, but the Fourth

Amendment requires that force to be objectively reasonable in light of the totality of the

circumstances. Graham v. Connor, 490 U.S. 386, 396 (1989). “Determining whether the

force used to effect a particular seizure is reasonable under the Fourth Amendment

requires a careful balancing of the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the countervailing governmental

interests at stake.” Id. (quotation marks and citations omitted). Factors to consider

include the severity of the crime at issue, whether the suspect posed an immediate

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threat to the safety of the officers or others, and whether he was resisting arrest or

attempting to evade arrest by flight. Id. The court must employ an objective standard,

viewing the matter “from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Id. Furthermore, the “calculous of

reasonableness must embody allowance for the fact that police officers are often forced

to make split-second judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular situation.” Id. at

396-97. Thus, “[n]ot every push or shove, even if it may later seem unnecessary in the

peace of a judge’s chambers,” will violate the Fourth Amendment. Id. at 396. 

Here, the undisputed facts show that at the time of this incident, the officers were

faced with an individual who was combative, partially undressed, and showing signs of

heavy intoxication. The officers wanted him to exit the vehicle so they could determine

whether he was in need of assistance. However, he refused their verbal commands,

cursed at them, and actively resisted their efforts to physically remove him from the car.

The officers warned him that he would be tased if he did not exit the vehicle, but he still

refused to comply, and instead yelled profanities at them. After being tased the first

time, he still refused to exit the car, and so he was tased again. After he was removed

from the car, he continued to struggle, kick, and evade the officers’ attempts to restrain

him. Based on these undisputed facts, the defendants’ use of force was reasonable

under the circumstances. See Clarett v. Roberts, 657 F.3d 664, 674-75 (7th Cir. 2011)

(affirming jury verdict for officer who tased suspect three times, where suspect

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disobeyed officer’s verbal commands and circumstances were such that a physical

confrontation could escalate quickly); United States v. Norris, 640 F.3d 295, 303 (7th Cir.

2011) (officer reasonably used taser to subdue suspect who failed to accede to police

commands and whose actions “suggested an intent to use violence to fend off further

police action”). 

Furthermore, even if the defendants used more force than was necessary under

the circumstances, they would be protected by qualified immunity. (See DE 51 at 12.)

The doctrine of qualified immunity protects government officials from liability for civil

damages “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The protection of qualified immunity will apply if

the official made a mistake of fact, a mistake of law, or a combination of the two. Pearson

v. Callahan, 555 U.S. 223, 231 (2009). In essence, qualified immunity protects all but the

“plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502

U.S. 224, 227-29 (1991). 

Assuming the officers made a mistake in tasing Beiler, it was not unreasonable

for them to conclude in the heat of the moment that use the taser was necessary. It was

late at night, dark, and Beiler was attempting to barricade himself in his car. He was

combative, appeared heavily intoxicated, refused to comply with their verbal

command, and resisted their efforts to remove him from the car. Under these

circumstances, any mistake in using the taser was reasonable. See Brooks v. City of

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Aurora, 653 F.3d 478, 486-87 (7th Cir. 2011) (officer who pepper sprayed plaintiff

stopped for minor traffic offense was entitled to qualify immunity where plaintiff failed

to accede to officer’s authority and arguably posed a threat of flight or resistance); Smith

v. Ball State Univ., 295 F.3d 763, 770-71 (7th Cir. 2002) (officer was entitled to qualified

immunity where he forcibly removed plaintiff from a vehicle, tackled him, and

handcuffed him, as plaintiff was combative and appeared drunk, even though plaintiff

was actually suffering from complications of diabetes). Accordingly, the defendants are

entitled to summary judgment.

IV. Conclusion

For the reasons set forth above, the motion for summary judgment (DE 50) is

GRANTED, and the clerk is DIRECTED to enter judgment in favor of Captain Michael

Kreps and Officer Brad Miller. 

SO ORDERED.

Date: August 7, 2013

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT