UNITED STATES DISTRICT COURT 

 NORTHERN DISTRICT OF INDIANA 

 HAMMOND DIVISION

CHASE CALDWELL, ) 

) 

Plaintiff, ) 

) CAUSE NO. 2:14-CV-455 

vs. ) 

) 

JESSE KLEMZ, WILLIAM KNAPP, ) 

JAMIE EROW, and TIMOTHY BELL, ) 

) 

Defendants. ) 

OPINION AND ORDER

This matter is before the Court on “Defendants Jesse Klemz, 

William Knapp, Jamie Erow, and Timothy Bell’s Motion for Summary 

Judgment,” filed by the defendants on April 1, 2016. (DE #164.) 

For the reasons set forth below, the motion is GRANTED. The clerk 

is DIRECTED to close this case. 

BACKGROUND 

The plaintiff, Chase Caldwell (“Plaintiff”), filed his pro se

complaint in this matter on December 12, 2014, after an incident 

with officers from the Porter County Sheriff’s Department 

(collectively, “Defendants”). (DE #1.) In it, Plaintiff alleged 

that he was assaulted and Tased by Jamie Erow (“Officer Erow”) and 

was tackled and pushed by William Knapp (“Corporal Knapp”). 
2 

According to Plaintiff, when he fled from those officers he was 

confronted by Timothy Bell (“Officer Bell”) and Jesse Klemz 

(“Sergeant Klemz”), who eventually broke his right wrist. (Id. 

at 2-3.) Plaintiff purported to bring those claims pursuant to 

18 U.S.C. section 241. (Id. at 2.) At the preliminary pretrial 

conference, it was determined that any motion for leave to amend 

the pleadings was to be filed by April 30, 2015, by Plaintiff and 

by May 15, 2015, by Defendants. (See DE #19.) The discovery 

deadline was set for December 1, 2015. (Id.) 

On April 15, 2015, Plaintiff sought to amend his complaint in 

order to increase the amount of damages requested. (DE #23.) The 

motion was denied without prejudice by Magistrate Judge Paul R. 

Cherry for a variety or procedural defects. (DE #24.) Judge 

Cherry extended the deadline for filing a motion to amend the 

pleadings to May 9, 2015, for Planitiff and to May 22, 2015, for 

Defendants. Plaintiff refiled his motion to amend on April 27, 

2015, and that motion was granted by Judge Cherry on June 5, 2015. 

(DE #26 & DE #35.) The amended complaint was docketed on June 10, 

2015. (DE #40.) In it, Plaintiff requested additional monetary 

damages based on multiple injuries he suffered when Defendants 

allegedly punched him in the face, Tased him several times, and 

broke his right scaphoid. (Id. at 1.) Discovery commenced and 

was closed on December 1, 2015, without any requests to extend 
3 

that deadline. However, on November 30, 2015, one day prior to 

the close of discovery, Plaintiff filed a motion to amend the 

amended complaint, followed by a flurry of additional motions to 

amend. (DEs #127, #130, #131, #132, #133, #135, #136, #140.) On 

January 11, 2016, Judge Cherry granted the original motion to amend 

while denying the rest. (DE #145.) 

The second amended complaint describes the alleged conduct of 

Defendants on February 18, 2014, and references 18 U.S.C. sections 

241, 242, 245, and 249, as well as 42 U.S.C. section 14141, Article 

I, Section I of the Indiana Constitution, and Indiana Code 35-42-

2-1(a)(C). (DE #147.) Specifically, Plaintiff alleges that: 

I was grabbed by Officer William Knapp after 

complying with police order to supply 

Identification. After fleeing from officers 

both William Knapp and Jamie Erow, followed me 

in their police marked vehicles to the 

entrance of property of The Courts of 

Northwest Indiana were I was assaulted by all 

four officers at 127 E US-6 Frontage Rd 

Valparaiso IN 46383 . . . . As stated in my 

original complaint all four officers used 

their electronic stun guns (taser) on my body 

which includes permanent scarring. Officers 

Timothy Bell and Jamie Erow grabbed me in rude 

insolent manner. I recall Officer William 

Knapp using his electronic stun gun (taser) on 

my genitals and stomach. I recall Officer 

Jesse Klemz punching me in the face several 

times and breaking my right wrist.1

 1 The Court has inserted the allegations verbatim without attempting to 

reference spelling or grammatical errors. 

 
4 

 

(Id. at 1, 5.) 

On February 2, 2016, this Court set the dispositive motion 

deadline for April 1, 2016. (DE #155.) The following day, 

Plaintiff filed what he entitled an “Interrogatory to Plaintiff 

Chase Richard Caldwell.” (DE #156.) On February 16, 2016, 

Defendants filed a motion to strike that interrogatory. (DE 

#160.) On March 25 and 30, 2016, Plaintiff filed two documents 

entitled “Plaintiff’s Dispositive Motion,” in which he requested 

that the Court strike the police report attached to Defendants’ 

initial disclosures. (DE #161 & DE #162.) On April 1, 2016, 

Defendants filed a motion for summary judgment. (DE #164.) That 

same day, Defendants also served Plaintiff with a Notice of Summary 

Judgment. (DE #163.) On April 5, 2016, Plaintiff filed a 

response in opposition to that motion. (DE #166.) On April 15, 

2016, Plaintiff filed a motion for leave to amend his pleadings 

before trial. (DE #167.) Defendants filed a reply in support of 

their motion for summary judgment on April 18, 2016, and a response 

in opposition to the motion to amend on April 21, 2016. (DE #168 

& DE #169.) Subsequently, Plaintiff filed an additional motion 

for leave to amend his pleading, a memorandum in support of that 

motion, a reply and a corrected reply to Defendants’ response in 

opposition to his motions to amend, and two additional memorandums 
5 

in support of his motions to amend. (DEs #170, #171, #172, #173, 

#174, #175.) On May 11, 2016, Defendants filed a motion to strike 

docket entries number 170 through 175. (DE #176.) Plaintiff 

filed a response to that motion two days later. (DE #177.) 

Defendants filed a reply on May 19, 2016. (DE #178.) Plaintiff 

filed a sur-reply on May 23, 2016. (DE #179.) In an order dated 

September 2, 2016, the Court granted Defendants’ motion to strike 

(DE #160) and struck the document entitled “Interrogatory to 

Plaintiff Chase Richard Caldwell” (DE #156), denied the 

“dispositive motions” filed by Plaintiff (DE #161 & #162), denied 

the motions for leave to amend filed by Plaintiff (DE #167 & #170), 

and denied Defendants’ motion to strike. (DE #176.) The only 

motion remaining before the Court at this stage is Defendants’ 

motion for summary judgment. (DE #164.) 

DISCUSSION 

Summary Judgment Standard

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 

dispute 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 
6 

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. In determining whether 

summary judgment is appropriate, the deciding 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). “However, our favor 

toward the nonmoving party does not extend to drawing inferences 

that are supported by only speculation or conjecture.” Fitzgerald 

v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v. 

C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)). A party 

opposing a properly supported summary judgment motion may not rely 

on allegations or denials in 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 non-moving 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). 

While it is undisputed that pro se filings must be construed 

liberally, even pro se litigants must follow the rules of civil 

procedure. Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) 
7 

(citing McNeil v. United States, 508 U.S. 106, 113 (1993)). Noncompliance with local summary judgment rules may warrant a penalty 

-- the court is within its discretion to ignore facts a litigant 

has proposed that are not submitted in compliance with those rules. 

Id. (citing Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 

809–10 (7th Cir. 2005)). In this district, Local Rule 56-1 

mandates that the moving party must include a “Statement of 

Material Facts” in its supporting brief and that a party opposing 

a summary judgment motion must file a response brief (or appendix) 

that includes “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.” N.D. Ind. 

L.R. 56-1(a),(b). Local Rule 56-1 also imposes a duty upon a 

party seeking summary judgment against an unrepresented litigant 

to serve that party with a Notice of Summary-Judgment Motion 

(“Notice”). N.D. Ind. L.R. 56-1(f) (citing to Appendix C). The 

Notice explains what a summary judgment motion is and what the 

responding party’s obligations are with regard to the motion. Id. 

The Notice includes copies of Federal Rule of Civil Procedure 56 

and Local Rule 56-1 itself, which, together, provide that factual 

positions must be supported with citations to the record and that 

the court is not required to consider materials that are not cited. 

Id. The Notice provides a warning that a failure to follow the 
8 

rules may result in an adverse ruling by the court. Id. The 

Seventh Circuit has also made it clear that: 

[a] district court is not required to wade 

through improper denials and legal argument in 

search of a genuinely disputed fact. And a 

mere disagreement with the movant’s asserted 

facts is inadequate if made without reference 

to specific supporting material. In short, 

judges are not like pigs, hunting for truffles 

buried in briefs. 

Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (internal 

quotation marks, brackets, and citations omitted). Thus, when a 

non-movant fails to controvert a moving party’s Statement of 

Material Facts with a properly supported Statement of Genuine 

Disputes, the movant’s facts may be deemed admitted. Id. (“We 

have consistently held that a failure to respond by the nonmovant 

as mandated by the local rules results in an admission.”). 

Material Facts

Because Defendants provided Plaintiff with the required 

Notice (DE #163), yet Plaintiff’s response is devoid of a 

“Statement of Genuine Disputes” or citations to the evidence,2 the 

well-supported facts presented by Defendants are considered 

 

2 Plaintiff has attached 256 pages of documents labeled exhibits A-G but 

fails to properly cite to any disputed facts. That said, the Court has 

reviewed the documents as discussed below and finds that none of the evidence 

that is presented would serve to establish a material disputed fact. 

 
9 

undisputed and will be accepted as true.3 Smith, 321 F.3d at 683; 

see also Timms v. Frank, 953 F.2d 281 (7th Cir. 1992). The facts4

are as follows: On February 18, 2014, Officer Erow was dispatched 

to 127 E. U.S. Highway 6, the location of a private commercial 

sports facility called The Courts of Northwest Indiana (“The 

Courts”), in response to a male subject running on the courts, 

refusing to leave, and talking to himself. Officer Erow spoke 

with the complainant and the building owner regarding the 

individual. Officer Erow learned that the individual, whom they 

had never seen before, was running back and forth on the courts, 

talking to himself, and harassing a softball team. The individual 

had refused to leave the facility when asked. Officer Erow then 

spoke with the individual, whom she later identified as Plaintiff, 

and asked him if he had paid the required entrance fee. Plaintiff 

replied that he did not know he had to pay, so Officer Erow 

explained to him that he either had to pay the fee or leave because 

The Court’s management felt he was disturbing the other patrons. 

Corporal Knapp arrived on the scene while Officer Erow was speaking 

with Plaintiff. Corporal Knapp heard Plaintiff say several times 

 

3 Defendants have submitted sworn affidavits from each officer and medical 

records from Porter Regional Hospital. (See DE #165-1 through DE #165-5.) 

4 Having verified that the cited evidence supports each of the facts 

presented in Defendants’ brief, the facts in this section are borrowed from 

the brief (DE #165) with only minor alterations. 
10 

that he should not have to pay the fee, so he intervened at that 

point and told Plaintiff that he could either leave or be charged 

with criminal trespass. Plaintiff gathered his belongings and 

left The Courts. 

Once outside, Officer Erow asked Plaintiff to produce his 

identification because she intended to issue him a trespass 

warning, and Plaintiff handed over his Indiana Driver’s License. 

As Officer Erow was providing Plaintiff’s information to dispatch, 

he started walking away and stated that he “had to go” and that he 

was “going to his car.” Officer Erow asked Plaintiff to wait for 

her to finish running his information, but Plaintiff did not 

acknowledge her and kept walking. According to Corporal Knapp, 

Plaintiff attempted to walk directly through him as if he was not 

even there. Corporal Knapp put up his left hand to prevent 

Plaintiff from crashing into him. Corporal Knapp then asked 

Plaintiff to stand still and wait until they were done running his 

Driver’s License, but Plaintiff did not acknowledge Corporal Knapp 

and continued to insist that he needed to go find his car. 

Corporal Knapp repeated his request that Plaintiff remain still, 

but Plaintiff proceeded to walk directly into Corporal Knapp, 

striking him with his shoulder in the process. As a result, 

Corporal Knapp asked Plaintiff to place his hands on top of Officer 

Erow’s vehicle. Plaintiff ignored the request, so Corporal Knapp 
11 

grabbed Plaintiff’s right wrist and placed his hand on the hood of 

Officer Erow’s vehicle. Plaintiff pulled his right arm free, 

dropped all of his belongings on the ground, and began to run away 

from Corporal Knapp and Officer Erow. 

After running a short distance, Plaintiff returned to where 

Officer Erow and Officer Knapp were standing. Due to Plaintiff’s 

behavior and the fact that he had struck Corporal Knapp with his 

shoulder, Corporal Knapp advised Plaintiff that he was going to 

place him in handcuffs for safety purposes until the encounter was 

complete. Before Corporal Knapp touched him, Plaintiff became 

aggressive and started yelling, “Why are you trying to hurt me?” 

Corporal Knapp attempted to grab Plaintiff’s right arm and wrist 

to place him in handcuffs, but before Corporal Knapp could get his 

handcuffs out, Plaintiff yanked his arm away. In the same motion, 

he turned to engage Corporal Knapp physically by using his hands 

to push off and away from him, which knocked Corporal Knapp to the 

ground. Corporal Knapp reached up to grab Plaintiff’s jacket 

sleeve, but Plaintiff twisted his arm away and out of his coat. 

Officer Erow was able to see the struggle between Plaintiff 

and Corporal Knapp from where she was standing. When Officer Erow 

saw Corporal Knapp on the ground, she drew her Taser in a display 

of force. Officer Erow saw Plaintiff starting to run away as 

Corporal Knapp grabbed Plaintiff’s jacket sleeve. Both Officer 
12 

Erow and Corporal Knapp yelled verbal commands at Plaintiff to 

stop, but he did not comply. Officer Erow then deployed her Taser. 

One of the Taser probes made contact with Plaintiff’s left lower 

back, but Plaintiff pulled free from his jacket, ripped off the 

probe, and proceeded to run away. Officer Erow and Corporal Knapp 

repeated their verbal commands for Plaintiff to stop, but he 

continued to flee. In light of Plaintiff’s behavior, Officer Erow 

believed that Plaintiff presented a safety threat to officers, the 

public, and to himself. 

Corporal Knapp followed Plaintiff on foot as he ran across 

the parking lot, through knee deep snow, and over into neighboring 

properties. Corporal Knapp repeatedly ordered Plaintiff to stop 

running and come towards him, but Plaintiff ignored those commands. 

Corporal Knapp chased Plaintiff for approximately two-tenths of a 

mile, issuing commands for Plaintiff to stop the whole time. When 

Corporal Knapp observed Plaintiff hiding behind a tree at a 

neighboring residence, he gave Plaintiff verbal commands to 

surrender and come towards him with his hands visible. Plaintiff 

ignored those commands and turned to run through the snow back 

onto the driveway of The Courts. 

While Corporal Knapp pursued Plaintiff on foot, Officer Erow 

returned to her patrol vehicle and proceeded down the driveway of 

The Courts towards an access road for neighboring homes. She 
13 

heard over the radio that Corporal Knapp had lost Plaintiff. 

Officer Erow spotted Plaintiff running away from a residence near 

the access road. She then witnessed Plaintiff change directions 

and head towards the access road where she was positioned. Officer 

Erow attempted to cut Plaintiff off with her vehicle, but he veered 

away in a different direction and headed through the snow covered 

area. Officer Erow exited her vehicle to pursue Plaintiff on 

foot. As she was doing so, she repeatedly gave Plaintiff verbal 

commands to stop and get on the ground. Plaintiff ignored those 

commands and continued running. 

Officer Bell arrived on the scene and saw Officer Erow 

pursuing Plaintiff on foot near the access roads to The Courts. 

Officer Bell could hear Officer Erow yelling the verbal commands 

at Plaintiff. Officer Bell got out of his vehicle and started 

running down the driveway of The Courts in order to attempt to cut 

Plaintiff off, but Plaintiff abruptly changed direction and headed 

back onto the snow covered are between the access road and the 

driveway, away from both Officer Bell and Officer Erow. 

As he ran, Officer Bell repeatedly yelled at Plaintiff to 

stop. Because Plaintiff refused to comply with his commands and 

those of Officer Erow, Officer Bell drew his Taser, turned it on, 

and aimed it at Plaintiff in a display of force. Officer Bell 

continued to yell loud and clear commands for Plaintiff to stop. 
14 

Plaintiff slowed to a walk and proceeded towards Officer Bell, but 

as he approached, Plaintiff quickly side-stepped Officer Bell and 

proceeded to run away again. When Plaintiff was approximately 

seven to nine feet away from him, Officer Bell deployed his Taser, 

and the probes made contact with Plaintiff’s lower abdomen. 

According to Officer Bell, the Taser appeared to have no 

effect on Plaintiff, who continued to ignore the commands to stop 

and proceeded to rip out the probes. Officer Bell closed the 

distance between them and attempted to apply the Taser in drive 

stun mode to Plaintiff’s back. Officer Bell did so because, based 

on his training and experience, he believed applying the Taser 

probes in drive stun mode would complete the electrical circuit 

and ensure that a connection was made with Plaintiff. While the 

Taser in drive stun mode appeared to slow Plaintiff down a little, 

it did not stop him, and he continued moving away. 

However, civilian traffic hindered Plaintiff’s ability to 

continue to run down the driveway, and Officer Erow and Officer 

Bell were able to close the gap to get in position on either side 

of Plaintiff. As they closed in, Officer Bell and Officer Erow 

repeated requests for Plaintiff to calm down. When they attempted 

to gain control of Plaintiff’s arms, he began aggressively kicking, 

swinging his arms, and striking both officers. Officer Erow and 

Officer Bell continued to request that Plaintiff calm down and 
15 

ordered him to stop resisting. When Officer Bell attempted to 

grab Plaintiff’s left arm/shirt area to stop him from pulling away 

and striking the officers, Plaintiff responded by using an openhanded strike to hit Officer Bell in the face, which caused him 

pain. 

Corporal Knapp headed towards the group and was able to hear 

Officer Erow and Officer Bell repeatedly give Plaintiff verbal 

commands to calm down and stop resisting. He was also able to see 

Plaintiff kicking, swinging his arms, and striking Officer Bell 

and Officer Erow. When Corporal Knapp got close enough to the 

group, he began issuing verbal commands as well, but Plaintiff 

ignored those commands. As a result, Corporal Knapp deployed his 

Taser, and the probes struck Plaintiff’s lower abdomen. Because 

the Taser probes appeared to be ineffective, Corporal Knapp 

proceeded to apply the Taser in drive stun mode to Plaintiff’s 

back area to ensure a connection was made. According to Corporal 

Knapp, the Taser did not appear to have any effect on Plaintiff 

who continued kicking, swinging his arms, and striking Officer 

Erow and Officer Bell. 

In order to attempt to get Plaintiff to comply with the 

repeated requests to calm down and stop resisting, Corporal Knapp 
16 

applied a bilateral vascular restraint on Plaintiff. 5 The 

application of this restraint allowed Officer Erow, Officer Bell, 

and Corporal Knapp to get Plaintiff on the ground in a seated 

position. Corporal Knapp released the restraint at that point so 

the officers could attempt to roll Plaintiff onto his stomach to 

be handcuffed. However, once the pressure was removed, Plaintiff 

began to kick and hit the officers again. 

Sergeant Klemz arrived on the scene and observed Corporal 

Knapp, Officer Erow, and Officer Bell physically struggling on the 

ground to gain control of Plaintiff’s arms and legs as he kicked, 

hit, flailed uncontrollably, and struck all three officers with 

his hands, feet, and fists. Sergeant Klemz heard the officers 

yell commands for Plaintiff to calm down and stop resisting, but 

he refused to obey and continued to kick and push the officers 

away. As Sergeant Klemz approached, one of the officers informed 

him that the three earlier Taser deployments seemingly had no 

effect on Plaintiff, who was exhibiting abnormal strength, a high 

pain tolerance, and senseless chatter. As such, Sergeant Klemz 

decided to use an alternative method to subdue Plaintiff, and he 

attempted to strike a nerve point located in the side of 

Plaintiff’s neck in order to briefly stun him and allow time for 

 

5 According to Corporal Knapp, this restraint is conducted by applying 

pressure on both sides of the neck. 
17 

the officers to place him in handcuffs. However, because 

Plaintiff continued to erratically flail his head about, Sergeant 

Klemz’ hand inadvertently made contact with the side of Plaintiff’s 

face near his jaw instead of the nerve point in his neck, so 

Sergeant Klemz was unable to subdue Plaintiff utilizing that 

method. 

Sergeant Klemz was able to gain control of Plaintiff’s left 

arm though, and Officer Erow placed one handcuff on his left wrist. 

Plaintiff continued to kick, swing, and strike all of the officers 

during this process, and he ignored the repeated commands to calm 

down and stop resisting. Officer Erow was eventually able to get 

the remaining handcuff onto Plaintiff’s right wrist. However, due 

to Plaintiff’s flailing body movements, the cuffs were placed in 

front rather than behind his back. At no point while the officers 

were attempting to handcuff Plaintiff did he advise them that he 

was in any pain or that the handcuffs were too tight. 

Additionally, Plaintiff never made any comments about any injury 

or pain to his wrist during the encounter. 

Once Plaintiff was handcuffed, he was restrained on the ground 

until the EMS arrived, and he was transported to Porter Regional 

Hospital moments later. Plaintiff was seen by medical staff for 

a physical and mental evaluation. Upon assessment, Plaintiff was 

found to have scrapes and abrasions on his shoulder and neck area, 
18 

abrasions on his stomach and the back side of his right upper arm, 

and a small hematoma on his right temple.6 When asked, Plaintiff 

informed the hospital staff that he had no pain, and it was noted 

that there was “no obvious deformities to any extremities . . . 

only abrasions and a small hematoma on his right temple.” 7 

Plaintiff was diagnosed with a psychotic disorder and held for a 

mental health commitment.8 

 

Analysis 

A plaintiff may bring a cause of action under 42 U.S.C. 

section 1983 against “[e]very person who, under color of any 

statute, ordinance, regulation, custom, or usage, of any State . 

. . subjects, or causes to be subjected, any citizen of the United 

States or other person within the jurisdiction thereof to the 

deprivation of any rights, privileges, or immunities secured by 

the Constitution and laws.” 42 U.S.C. ' 1983. In order to prevail 

on a section 1983 claim, a plaintiff must show that he “was 

deprived of a right secured by the Constitution or federal law” 

“by a person acting under color of law.” Thurman v. Vill. of 

 

6 (DE #165-5, pp. 4, 15.) 

7 (DE #165-5, p. 4.) 

8 (See generally DE #165-5.) 
19 

Homewood, 446 F.3d 682, 687 (7th Cir. 2006). 

Fourth Amendment - Excessive Force Claims 

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 Court must look at the totality of the 

circumstances to determine if the governmental interests during 

the encounter outweighed the intrusion upon the citizen’s 

constitutional rights. See Cyrus v. Town of Mukwonago, 624 F.3d 

856, 861 (7th Cir. 2010) (quoting Jacobs v. City of Chicago, 215 

F.3d 758, 773 (7th Cir. 2000)). Whether the type of force used 

was reasonable depends on the specific details of each arrest, and 

factors to be considered include “the severity of the crime at 

issue, whether the suspect poses an immediate threat to the safety 

of the officers or others, and whether he is actively resisting 

arrest or attempting to evade arrest by flight.” Cyrus, 624 F.3d 

at 861-62 (quoting Graham, 490 U.S. at 396). 

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 

question is whether the officers’ actions are 
20 

objectively reasonable in light of the facts 

and circumstances confronting them, without 

regard to their underlying intent or 

motivation. 

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

(internal quotations marks, brackets, and citations omitted). The 

Seventh Circuit has recognized that a person has a right to be 

free from intentional infliction of pain during law enforcement 

handcuffing incidents; however, “a reasonable officer cannot be 

expected to accommodate an injury that is not apparent or that 

otherwise has not been made known to him.” Stainback v. Dixon, 

569 F.3d 767, 773 (7th Cir. 2009).

Defendants contend that summary judgment should be granted on 

Plaintiff’s excessive force claims because it is undisputed that 

Defendants acted reasonably with regard to their treatment of him 

during the encounter at The Courts. Plaintiff responds by 

referencing photographs of his wrist and a scar on his stomach, 

pointing to medical documents related to doctor visits that began 

in May of 2014 (nearly three months after the incident at The 

Courts), and reiterating the allegations in his second amended 

complaint with regard to Defendants’ use of force during the 

arrest.9 However, as noted above, Plaintiff’s response brief fails 

 

9 Plaintiff also seems to argue that Defendants’ summary judgment motion was 

untimely, but this argument is frivolous as it was filed by the dispositive 

motion deadline set by this Court. (See DE #155.) Additionally, Plaintiff 
21 

to comply with the Local Rules and does not properly cite to 

admissible evidence that would support his claims; of note, he has 

not submitted a sworn affidavit detailing his version of events. 

In essence, Plaintiff has provided no admissible evidence to create 

a genuine dispute that would be relevant to proceeding with these 

claims. See United States v. 5443 Suffield Terrace, Skokie, Ill., 

607 F.3d 504, 510 (7th Cir. 2010) (“At summary judgment, 

unfortunately for [the plaintiff], saying so doesn’t make it so; 

summary judgment may only be defeated by pointing to admissible 

evidence in the summary judgment record that creates a genuine 

issue of material fact, and it was not the district court’s job to 

sift through the record and make [the plaintiff’s] case for him.”); 

Sow v. Fortville Police Dep’t, 636 F.3d 293, 300 (7th Cir. 2011) 

 

states that he was “arrested and later transported to Porter Starke Services 

before an arrest warrant was filed” and that he was a “victim of involuntary 

mental treatment at Porter Regional Hospital.” (DE #166, p. 2.) He 

references the arrest warrant and his medical records at Exhibits E, F, and 

G. (Id.) In the closing section of his response brief, he states, without 

elaboration, that Defendants “used excessive force, unlawful arrests, and 

false arrest of Plaintiff Chase Richard Caldwell.” (Id. at 3.) However, as 

noted by Defendants in their reply brief, Plaintiff’s second amended 

complaint does not allege any false arrest claims, even construing it 

liberally (nor, for that matter, do the original or first amended complaint). 

See Carver v. Condie, 169 F.3d 469, 472 (7th Cir. 1999) (“Once the amended 

complaint was filed . . . it became the governing document in the case and 

any allegations ... not brought forward fell by the wayside.”). The Court 

finds that it is too late for Plaintiff to amend his second amended complaint 

at this stage, so these claims cannot proceed. See Conner v. Illinois Dept. 

of Nat. Resources, 413 F.3d 675, 679–80 (7th Cir. 2005) (a passing reference 

in a response brief is not a proper way to amend a complaint); Grayson v. 

O’Neill, 308 F.3d 808, 817 (7th Cir. 2002) (a plaintiff “may not amend his 

complaint through arguments in his brief in opposition to a motion for 

summary judgment”). 
22 

(“In a ' 1983 case, the plaintiff bears the burden of proof on the 

constitutional deprivation that underlies the claim, and must 

present sufficient evidence to create genuine issues of material 

fact to avoid summary judgment.”); Tibbs, 469 F.3d at 663 n. 2 

(mere allegations in a complaint and unsupported assertions in a 

response brief need not be considered). 

The Seventh Circuit has stated: 

When material facts are in dispute, then the 

case must go to a jury, whether the argument 

is that the police acted unreasonably because 

they lacked probable cause, or that they acted 

unreasonably because they responded 

overzealously and with too little concern for 

safety. But when material facts (or enough 

of them to justify the conduct objectively) 

are undisputed, then there would be nothing 

for a jury to do except second-guess the 

officers, which Graham held must be prevented. 

Since Graham we have regularly treated the 

reasonableness of force as a legal issue, 

rather than an analog of civil negligence. 

This appears to be the accepted rule; the 

[plaintiffs] do not cite, and we could not 

find, any post-Graham appellate opinion 

holding that the reasonableness of using force 

is a jury question even if no factual disputes 

require resolution. 

Bell v. Irwin, 321 F.3d 637, 640 (7th Cir. 2003) (emphasis in 

original, citations omitted). We are left with the undisputed 

facts set forth in the preceding section, and the question now 

before the Court is “whether the totality of the circumstances” 

justified Defendants’ actions. Graham, 490 U.S. at 396. It is 
23 

undisputed that the individual Defendants used varying degrees of 

force during the arrest. However, when viewed in totality, the 

Court finds that the conduct of each Defendant was objectively 

reasonable. While the nature of the initial crime (alleged 

criminal trespassing) was not in and of itself particularly severe, 

the situation soon escalated, and it became clear that Defendants 

were faced with an individual who repeatedly refused to comply 

with directives, actively resisted arrest, became increasingly 

physically combative throughout the encounter, was exhibiting 

abnormal strength, a high pain tolerance, and senseless chatter, 

and presented a safety threat to the officers, the public, and 

himself. 

At the time Corporal Knapp first made physical contact with 

Plaintiff by grabbing his wrist and placing his hand on the hood 

of Officer Erow’s vehicle, Plaintiff had already ignored repeated 

requests to remain in place while his identification was being run 

for purposes of issuing him a trespass warning, had struck Corporal 

Knapp with his shoulder while attempting to walk away, and had 

ignored commands to place his hands on the vehicle. Other than 

Plaintiff’s unsupported assertion that he was “grabbed by Corporal 

Knapp after supplying his identification,” there is nothing in the 

record to show that this type of minimal physical coercion used on 

an uncooperative individual was excessive, as it is clear that not 
24 

every push or shove violates the Fourth Amendment. Graham, 490 

U.S. at 396; Fitzgerald v. Santoro, 707 F.3d 725, 734 (7th Cir. 

2013) (use of “minimally forceful techniques designed to subdue 

non-compliant subjects and prevent escalation” was not excessive). 

Similarly, when Plaintiff subsequently twisted his arm free and 

began to run away, Corporal Knapp’s attempt to grab Plaintiff’s 

right arm in order to place him in handcuffs for safety and 

compliance purposes until the encounter was complete was 

objectively reasonable. Id. 

It is undisputed that the situation deteriorated quickly 

thereafter. Plaintiff yanked his arm away, pushed off of Corporal 

Knapp which knocked the officer to the ground, twisted out of his 

coat, and began to run away despite commands to stop. Officer 

Erow then deployed her Taser once, which had no effect on Plaintiff 

who continued to flee through an area that included a residence 

and civilian traffic, while ignoring repeated commands to stop. 

When Officer Bell arrived on the scene and witnessed the foregoing, 

he joined the chase on foot, issued repeated commands of his own 

which Plaintiff also ignored, and eventually deployed his Taser 

making contact with Plaintiff’s lower abdomen before applying it 

in drive stun mode to Plaintiff’s back. The Taser had little 

effect on Plaintiff who persisted in fleeing. When Officers Erow 

and Bell were finally able to close in on him, Plaintiff actively 
25 

resisted arrest and began kicking, swinging his arms, and striking 

them. Corporal Knapp witnessed this when he approached, issued 

repeated verbal commands to Plaintiff to cease resisting, and then 

deployed his Taser in the same manner as Officer Bell.10 The Taser 

had no effect on Plaintiff who continued kicking, swinging, and 

lashing out. In light of the repeated attempts at flight and 

increasing level of resistance and aggression shown by Plaintiff, 

the Court finds that the use of force by each Defendant was 

objectively reasonable when viewing the circumstance as a whole. 

The Tasers were not deployed simultaneously or in rapid succession; 

rather, each officer evaluated the situation as it unfolded and 

applied measured force in order to attempt to de-escalate the 

rapidly changing and potentially dangerous encounter. Not only 

was Plaintiff refusing verbal commands by continuing to flee 

towards a residence and among civilian traffic, but he became 

physically violent towards the officers when apprehended. As 

such, it is clear that the responses by Defendants were within 

legally acceptable bounds. See Smith v. Ball State Univ., 295 

 

10 In his response brief, Plaintiff states that Corporal Knapp admitted via 

his interrogatories that he Tased Plaintiff in his genitals. This is an 

inaccurate statement of the record, as Corporal Knapp specifically denied 

using his Taser on Plaintiff’s genitals. (See DE #166-1, p. 108.) Plaintiff 

also states that “all four officers used their electronic stun guns on my 

body, and all four defendants admit to it in Exhibit D,” but this is also an 

inaccurate statement of the record, as Sergeant Klemz does not admit to using 

a Taser on Plaintiff in his interrogatory. (See DE #116-1, pp. 119-122.) 
26 

F.3d 763, 770 (7th Cir. 2002) (“When police officers face what is 

essentially a fluid situation, they are entitled to graduate their 

response to meet the demands of the circumstances confronting 

them.”); see also Clarett v. Roberts, 657 F.3d 664, 674–75 (7th 

Cir. 2011) (affirming jury verdict for officer who Tased a noncompliant suspect three times in an attempt to avoid a greater 

physical altercation); U.S. v. Norris, 640 F.3d 295, 303 (7th Cir. 

2011) (officer’s use of Taser to subdue a suspect was reasonable 

because the suspect had shown an “unwillingness to accede to 

reasonable police commands, and his actions suggested an intent to 

use violence to fend off further police action”). 

When it became clear that the Tasers were not sufficient to 

subdue Plaintiff who appeared to be exhibiting abnormal strength 

and an unusually high pain tolerance, Corporal Knapp and Sergeant 

Klemz attempted to use alternative methods of force to keep 

Plaintiff from injuring the other officers and/or himself. 

Corporal Knapp applied pressure to both sides of Plaintiff’s neck 

for compliance purposes but released the pressure as soon as the 

other officers were able to gain some control over Plaintiff’s 

arms. Unfortunately, the control was short lived as Plaintiff 

began resisting again almost immediately. Similarly, Sergeant 

Klemz tried to make contact with the nerve points located in the 

side of Plaintiff’s neck twice in order to subdue him, but once he 
27 

realized that Plaintiff’s movements were too erratic to ensure 

correct contact, he ceased trying. The record indicates that both 

the pressure applied by Corporal Knapp and the strikes administered 

by Sergeant Klemz were measured and not performed in a gratuitous 

manner. Thus, while neither Corporal Knapp’s bilateral vascular 

restraint nor Sergeant Klemz’ stunning technique were ultimately 

successful, the attempts were objectively reasonable in light of 

the fact that the previous use of Tasers had failed yet Plaintiff 

was still actively resisting arrest. See Padula v. Leimbach, 656 

F.3d 595, 603 (7th Cir. 2011) (baton strikes that were “‘stern,’ 

but not ‘severe’” were objectively reasonable in response to 

kicking and flailing of plaintiff). 

Finally, it is undisputed that Plaintiff was ultimately 

handcuffed by Defendants. Sergeant Klemz and Officer Erow were 

able to cuff Plaintiff’s wrists one at a time, but they had to do 

so in front of his body as opposed to behind his back because 

Plaintiff continued to kick, flail, and strike them during the 

cuffing process. While Plaintiff argues that Sergeant Klemz broke 

his right wrist, there is no evidence in the record to support 

this claim.11 As pointed out by Defendants, Plaintiff has not 

 

11 As noted above, Plaintiff has not properly cited to any admissible 

evidence that would create a genuine dispute. That said, the Court has gone 

through the record and notes that Plaintiff’s Exhibit A (DE #166-1, pp. 1-7) 

contains photographs of a hand that appears to have some bruising and 
28 

presented any admissible evidence showing he complained of pain or 

injury to his wrist while he was being handcuffed, and there is no 

indication that the handcuffs were applied improperly. 

Furthermore, the hospital records confirm Plaintiff advised the 

medical staff he was in no pain upon arrival at the hospital and 

they further note that there were “no obvious deformities to any 

extremities . . . only abrasions and a small hematoma on his right 

temple.”12 Considering Plaintiff’s behavior leading up to the 

handcuffing and the fact that Plaintiff failed to complain of pain 

or injury, it was objectively reasonable for Sergeant Klemz and 

Officer Erow to handcuff Plaintiff in the manner in which they 

attest. See Howell v. Smith, 853 F.3d 892, 899 (7th Cir. 2017) 

 

abrasions; however, the photographs were allegedly taken the day after the 

incident at The Courts, and the medical records establish that Plaintiff was 

in restraints during his hospital stay (DE #165-5, pp. 4, 19). It is not 

clear, based on the photographs alone, whether those injuries were inflicted 

during the initial handcuffing or during the time he was restrained in the 

hospital. Either way, this evidence does not establish Plaintiff’s wrist was 

broken by Defendants. While Exhibit B (DE #166-1, pp. 8-104) contains 

medical records from Lakeshore Bone & Joint Institute showing a diagnosis of 

and treatment for a fractured wrist, Plaintiff admits that he did not begin 

treating with Lakeshore Bone & Joint until May 22, 2014, which was several 

months after the events in question. The Court agrees with Defendants that 

Plaintiff has not created a genuine dispute related to causation that would 

preclude summary judgment. Moreover, even if it could be established that an 

injury to his wrist did occur while in police custody, Plaintiff’s 

unsupported assertions in his response brief that Sergeant “twisted his 

wrist” is insufficient. See Cyrus v. Town of Mukwonago, 624 F.3d 856, 864 

(7th Cir. 2010) (“[A] plaintiff cannot ask a jury to infer that an officer 

used excessive force based solely on the fact that an injury occurred. The 

plaintiff must instead identify the specific conduct of the officer that is 

alleged to be excessive and unreasonable; the fact of an injury while in 

police custody is not enough.) 

 

12 (DE #165-5, p. 4; see also DE #165-5, p. 15 - diagram showing no 

abrasions or other injuries on Plaintiff’s wrist.) 
29 

(finding that officer did not use excessive force because he had 

only “minimal and nonspecific information about the extent to which 

the handcuffs were causing distress and injury”); Rooni v. Biser, 

742 F.3d 737, 742 (7th Cir. 2014) (“A person has the right to be 

free from an officer’s knowing use of handcuffs in a way that would 

inflict unnecessary pain or injury, if that person presents little 

or no risk of flight or threat of injury.”) (emphasis added); 

Tibbs, 469 F.3d at 666 (excessive force claim dismissed because 

plaintiff complained the handcuffs were on too tight but did not 

indicate the degree of pain). 

Thus, because all force used by Defendants during the 

encounter on February 18, 2014, was objectively reasonable in light 

of the totality of the circumstances, Defendants are entitled to 

summary judgment on Plaintiff’s Fourth Amendment excessive force 

claims as a matter of law. 

Federal Criminal Statutes & Conspiracy Claims 

 Plaintiff’s second amended complaint references several 

federal criminal statutes, namely 18 U.S.C. sections 241, 242, 

245, and 249. Defendants argue that Plaintiff cannot sustain any 

claims brought pursuant to the aforementioned statutes because 

private citizens cannot compel the enforcement of criminal laws. 

Plaintiff has not responded to this argument. The Court agrees 
30 

with Defendants that these federal criminal statutes do not provide 

a private cause of action for civil liability. See e.g. Ragsdale 

v. Turnock, 941 F.2d 501, 509 (7th Cir. 1991) (in general, our 

legal system provides no right for private persons to enforce 

criminal statutes); Weiland v. Byrne, 392 F. Supp. 21, 22 (N.D. 

Ill. 1975) (plaintiff has no standing to sue under criminal 

statutes including 18 U.S.C. §§ 241, 242); see also Andrews v. 

Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) (criminal statutes 

that do not provide a private right of action are not enforceable 

via a civil lawsuit). 

To the extent that Plaintiff’s second amended can be construed 

liberally as attempting to bring a civil conspiracy claim under 

section 1983, 13 the Court notes that “conspiracy is not an 

independent basis of liability in [section] 1983 actions.” Smith 

v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008); see also Goldschmidt 

v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982) (“Section 1983 does 

not, however, punish conspiracy; an actual denial of a civil right 

is necessary before a cause of action arises.”). The purpose of 

the doctrine is “merely to yoke particular individuals to the 

specific torts charged in the complaint.” Jones v. City of 

Chicago, 856 F.2d 985, 992 (7th Cir. 1988). To establish a civil 

 

13 Plaintiff cites to the federal criminal conspiracy statute at 18 U.S.C. 

section 241. 
31 

conspiracy, a plaintiff must show that a defendant voluntarily 

participated in a common venture and understood, accepted, and 

agreed to further the general objectives of the scheme. Id. 

Speculative evidence cannot be used to prove its existence. 

Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003). Here, not 

only has Plaintiff failed to establish that his rights were 

violated (constitutionally or otherwise), but he has also failed 

to produce any evidence whatsoever that an agreement sufficient to 

sustain a conspiracy existed between Defendants. Summary judgment 

is warranted on all of these claims. 

Discrimination Claims 

 Plaintiff’s second amended complaint contains a boilerplate 

section taken from Title II of the Civil Rights Act of 1964, 42 

U.S.C. section 2000a, et seq. (“Title II”). Defendants argue 

that, while it is unclear exactly what type of claim Plaintiff is 

intending to pursue, there is no evidence in the record to sustain 

any type of discrimination claim. Plaintiff has not responded to 

this argument. Title II prohibits discrimination or segregation 

in places of public accommodation. See generally 42 U.S.C. § 

2000a. As an initial matter, the Court notes that a Title II 

plaintiff must comply with certain written notice provisions 

before filing suit in federal court. Stearnes v. Baur’s Opera 
32 

House Inc., 3 F.3d 1142, 1145 (7th Cir. 1993). Section 2000a–3(c) 

requires that, if one is available, the appropriate state agency 

must be given “written notice” of the “alleged act or practice” at 

least 30 days before a federal action is brought. 42 U.S.C. § 

2000a-3(c). A “failure to notify the appropriate state agency 

when one exists dooms a Title II plaintiff’s case.” Stearnes, 3 

F.3d at 1145. Indiana has a statute prohibiting discrimination 

in the use of public accommodations14 and has established a state 

authority, the Indiana Civil Rights Commission (“ICRC”), from 

which to seek relief.15 As such, Plaintiff was required to notify 

the ICRC prior to filing any Title II claims in the instant 

lawsuit. Because he has submitted no evidence that he has complied 

with the notice provisions, this Court lacks jurisdiction over 

Plaintiff’s Title II discrimination claims, and they must be 

dismissed.16 See Id. 

 

14 See Ind. Code § 22-9-1-2 (classifying equal access to public conveniences 

and accommodates as a civil right and declaring that “[t]he practice of 

denying these rights to properly qualified persons by reason of the race, 

religion, color, sex, disability, national origin, or ancestry of such person 

is contrary to the principles of freedom and equality of opportunity and is a 

burden to the objectives of the public policy of this state and shall be 

considered as discriminatory practices”). 

15 Indiana Code section 22–9–1–4 establishes the ICRC, and under Indiana 

Code section 22–9–1–6, the ICRC is empowered to receive, investigate, and 

adjudicate complaints alleging discriminatory practices. 

16 Moreover, even if Plaintiff had provided the ICRC with timely notice, 

there is no evidence in the record to support any type of discrimination 

claim against the individual officer Defendants. Assuming, arguendo, that 

Defendants could somehow be held responsible under Title II for Plaintiff’s 
33 

Pattern or Practice Claims 

The second amended complaint contains a reference to 42 U.S.C. 

§ 14141,17 which makes it unlawful for any person acting on behalf 

of a governmental authority to engage in a practice or pattern of 

conduct that deprives juveniles of their constitutional rights. 

Defendants point out that Plaintiff was not a juvenile at the time 

of the events in question and could not bring a civil claim under 

the statute even if he was. Plaintiff responds by pasting a 

section of the statute into his brief and arguing in full that 

“[a]ll citing of admissible evidence contained within Exhibits AG show the defendants’ Officer William Knapp, Jesse Klemz, Jaime 

Erow, and Timothy Bell used excessive force, unlawful arrests, and 

false arrest of Plaintiff Chase Richard Caldwell.” (DE #166, p. 

3.) However, as pointed out by Defendants, Plaintiff (who was not 

 

ejection from The Courts, the undisputed evidence establishes that Plaintiff 

was asked to leave because he refused to pay the entrance fee, not because of 

his race, color, religion, or national origin. See 42 U.S.C. § 2000a 

(prohibiting discrimination in places of public accommodation “on the ground 

of race, color, religion, or national origin”) (emphasis added). There is 

simply no evidence to the contrary. Furthermore, Plaintiff seeks only 

monetary damages, and Title II does not provide for monetary relief. See 

Petrovic v. Enter. Leasing Co. of Chicago, LLC, 513 Fed. Appx. 609, 611 (7th 

Cir. 2013) (citing Newman v. Piggie Park Enter., Inc., 390 U.S. 400, 402 

(1968)). 

17 42 U.S.C. § 14141 was transferred to 34 U.S.C. § 12601, effective 

September 1, 2017. 
34 

a juvenile at the time of the events in question)18 has failed to 

provide even a scintilla of evidence that a pattern or practice of 

such conduct existed. Moreover, section 14141 does not confer a 

private right of action under which to sue. See Rangel v. 

Reynolds, 607 F. Supp. 2d 911, 925, n. 6 (N.D. Ind. 2009) (only 

Department of Justice may file suit for violations of the statute). 

Summary judgment is warranted on these claims. 

State Law Tort Claims 

 The second amended complaint cites to the Indiana criminal 

battery statute19 and references Plaintiff’s physical and emotional 

distress allegedly caused by the encounter at The Courts. 

Defendants argue that any state law tort claims are barred because 

Plaintiff failed to file a timely notice as required by the Indiana 

Tort Claims Act (“ITCA”). Plaintiff has failed to respond to this 

argument. The ITCA governs lawsuits initiated against a political 

subdivision and its employees. Fowler v. Brewer, 773 N.E.2d 858, 

861 (Ind. App. 2002). Under the ITCA, employees are immunized for 

conduct that falls within the scope of their employment. Id. 

“The purpose of the ITCA is to ensure that public employees can 

 

18 See DE #165-5, p. 1 (Plaintiff’s birthdate listed as 7/7/1991 and age 

listed as 22). 

 

19 See I.C. § 35-42-2-1(1)(a)(C). 
35 

exercise their independent judgment necessary to carry out their 

duties without threat of harassment by litigation or threats of 

litigation over decisions made within the scope of their 

employment.” Id. at 861-62 (citation omitted). To that end, 

providing early notice that a claim exists is required by a party 

wishing to bring suit. Id. at 861. Indiana Code section 34-13-

3-8 states that such suits are barred unless notice is filed with 

(1) the governing body of that political subdivision; and (2) the 

Indiana Political Subdivision Risk Management Commission within 

180 days after the loss occurs. See Brown v. Alexander, 876 N.E.2d 

376, 380-85 (Ind. Ct. App. 2007). “The notice requirements of the 

ITCA apply not only to suits against political subdivisions but 

also to suits against employees of political subdivisions.” 

Davidson v. Perron, 716 N.E.2d 29, 33–34 (Ind. App. 1999). If a 

defendant raises the failure to comply with the ITCA’s notice 

provisions as an affirmative defense, the burden shifts to the 

plaintiff to prove compliance. Id. at 34. Summary judgment is 

appropriate if the plaintiff fails to meet this burden. See 

Alexander v. City of S. Bend, 256 F. Supp. 2d 865, 875 (N.D. Ind. 

2003). 
36 

 Defendants raised Plaintiff’s failure to submit a timely ITCA 

notice in their answer20 and again in the instant motion. It is 

undisputed that Defendants were acting within the scope of their 

employment during the encounter with Plaintiff on February 18, 

2014, so the ITCA’s notice requirements apply. See e.g. Reiner 

v. Dandurand, 33 F. Supp. 3d 1018, 1032 (N.D. Ind. 2014) (“If an 

alleged action is within the general scope of an individual’s 

authority, it is authorized within the meaning of the Tort Claims 

Act, regardless of whether it was done negligently or with improper 

motive. The actions of pulling someone over, arresting him, etc. 

are within the general scope of a police officer’s authority under 

the law.”) (internal quotation marks and citation omitted). It 

is also undisputed that Plaintiff has not provided any evidence 

that he submitted a notice in compliance with the ITCA to date. 

Thus, summary judgment is appropriate on all of Plaintiff’s state 

law tort claims. 

Indiana Constitutional Claims 

 Finally, Plaintiff’s second amended complaint references the 

Indiana Constitution. Defendants argue that, to the extent 

Plaintiff is premising any of his claims upon a violation of his 

 

20    See DE #150, p. 4.
37 

Indiana constitutional rights, such claims cannot be maintained 

because Indiana courts have not recognized an implied right of 

action for civil damages under the Indiana Constitution. 

Plaintiff has not responded to this argument. The only section 

of the Indiana Constitution that Plaintiff cites to in his 

complaint provides: 

[t]hat all people are created equal; that they 

are endowed by their CREATOR with certain 

inalienable rights; that among these are life, 

liberty, and the pursuit of happiness; that 

all power is inherent in the People; and that 

all free governments are, and of right ought 

to be, founded on their authority, and 

instituted for their peace, safety, and wellbeing. For the advancement of these ends, the 

People have, at all times, an indefeasible 

right to alter and reform their government. 

Ind. Const. art. I, § 1. Based on the allegations in the second 

amended complaint that focus on Defendants’ use of excessive force, 

it is more likely that Plaintiff may be attempting to bring claims 

pursuant to Article I, Section 15, which mandates that “[n]o person 

arrested, or confined in jail, shall be treated with unnecessary 

rigor.” Ind. Const. art. I, § 15. Either way, Indiana has yet 

to recognize a civil remedy for such violations. Ball v. City of 

Indianapolis, 760 F.3d 636, 645 (7th Cir. 2014); see also Smith v. 

Indiana Dept. of Correction, 871 N.E.2d 975, 985 (Ind. App. 2007) 

(“no Indiana court has explicitly recognized a private right of 

action for monetary damages under the Indiana Constitution”). 
38 

Courts in this district have generally agreed that “recognizing an 

implied right of action is a step to be taken, if at all, by the 

Indiana courts and not the federal courts.” See Greater 

Indianapolis Chapter of N.A.A.C.P. v. Ballard, 741 F. Supp. 2d 

925, 934 (S.D. Ind. 2010) (collecting cases). This Court agrees. 

Moreover, even if such a remedy does exist, it is clear that 

Plaintiff has not presented any evidence that Defendants would be 

liable for damages in this situation. As stated by the Indiana 

Supreme Court: 

[c]ases recognizing violations of Article 1, 

Section 15 involve situations where a prisoner 

was tortured, had a tooth knocked out, was 

repeatedly beaten, kicked, and struck with a 

blackjack and beaten with a rubber hose while 

he was stretched across a table, Kokenes v. 

State, 213 Ind. 476, 13 N.E.2d 524 (1938), 

where a prisoner was beaten with police 

officer’s fists in both eyes, cut on the top 

of his head, and beaten with a rubber hose on 

the head and ears, Bonahoon v. State, 203 Ind. 

51, 178 N.E. 570 (1931), and where a prisoner 

was severely injured after being shot by 

police during a protest, Roberts v. State, 159 

Ind. App. 456, 307 N.E.2d 501 (1974). 

Ratliff’s treatment in prison, as asserted in 

her complaint, does not rise to the level of 

the “unnecessary rigor” contemplated by 

Article 1, Section 15. Ratliff's complaint has 

not stated a claim under Article 1, Section 15 

upon which relief can be granted. 

Ratliff v. Cohn, 693 N.E.2d 530, 541 (Ind. 1998). For the reasons 

set forth in detail above, the force used by Defendants during the 

encounter with Plaintiff at the Courts was objectively reasonable 
39 

and did not rise to the level of “unnecessary rigor” prohibited by 

Article 1, Section 15. Thus, Plaintiff cannot succeed on a claim 

premised on the Indiana Constitution and summary judgment is 

appropriate. 

CONCLUSION 

For the reasons set forth above, Defendants’ motion for 

summary judgment (DE #164) is GRANTED. The clerk is DIRECTED to 

close this case. 

ENTERED: October 12, 2017 /s/RUDY LOZANO, Judge 

United States District Court