United States District Court

Northern District of Indiana

Hammond Division

ELIAN M. SHEPHERD,

Plaintiff,

 

v. Civil Action No. 2:12-CV-23 JVB

TOWN OF MERRILLVILLE, INDIANA; J. 

MERKEL and N. SCHROCK, individually and

in their capacity as Merrillville Police Officers;

Defendants.

OPINION AND ORDER

Plaintiff has sued Defendants under 42 U.S.C. § 1983 as well as on several state law

claims. This matter is before the Court on Defendants’ motion for summary judgment (DE 86). 

Also before the Court are two motions to strike filed by Plaintiff (DE 91 and DE 99) and a

motion to strike filed by Defendants (DE 94).

A. Background

On December 18, 2009, Defendants Joseph Merkel and Nathan Schrock, both

Merrillville, Indiana, police officers, arrested the Plaintiff, Dr. Elian Shepherd, outside an

entrance to Methodist Hospital in Merrillville, where he is a staff member, for disorderly conduct

and resisting law enforcement. Plaintiff sued both officers and the Town of Merrillville under 42

U.S.C. § 1983, claiming his arrest was without probable cause and in retaliation for his speech

and that the officers used excessive force to arrest him; and under state law, claiming that the

officers’ conduct constitutes false arrest, false imprisonment, battery, and intentional infliction of

emotional distress (“IIED”). Plaintiff also sued Defendant Merkel for IIED for an incident that
occurred after Plaintiff filed his original complaint, when Plaintiff and Merkel were traveling

back to Merrillville on U.S. 30 at the same time after having attended depositions in Valparaiso,

Indiana.

Defendants maintain that there was probable cause to arrest Plaintiff for both disorderly

conduct and resisting law enforcement and their use of force was reasonable, or, alternatively,

the officers are entitled to qualified immunity. They also contend that Plaintiff has no § 1983

claim against the Town, and that Plaintiff fails to state a claim against Merkel for IIED.

B. Summary Judgment Standard

A motion for summary judgment must be granted “if the movant shows that 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). All the evidence must be construed in the light most favorable to the

non-moving party. Feliberty v. Kemper Corp., 98 F.3d 274, 277 (7th Cir. 1996). A court may

not make credibility determinations, weight the evidence, or decide which inferences to draw

from the facts. Rather, a court’s task is to decide on the basis of the evidence of record, whether

there is any material dispute of fact that requires a trial. Payne v. Pauley, 337 F.3d 767, 770 (7th

Cir. 2003). 

C. Facts

The undisputed facts are as follows: Plaintiff was riding with his daughter, Amanda, in

her vehicle when he received a call from Methodist Hospital about a patient. Amanda drove him

to the hospital so he could attend to the patient. She parked in the fire lane outside the entrance

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to the hospital. As they were leaving the vehicle to enter the hospital, Plaintiff spoke with a

hospital security guard, Adam Dolan. They left the vehicle in the fire lane and entered the

hospital. When they came out of the hospital after Plaintiff had attended to his patient and

returned to Amanda’s vehicle, Defendants Merkel and Schrock were present and were preparing

a citation for parking in the fire lane. Dolan was also present. Schrock, on being told by

Plaintiff that he, and not his daughter, had been driving, asked to see Plaintiff’s driver’s license. 

After looking at the license, Schrock went to his vehicle. Plaintiff spoke to Dolan. Merkel

approached Plaintiff and told him to stop talking to Dolan.

Plaintiff’s interaction with Merkel and Schrock was recorded on a hospital surveillance

video without audio. The video shows that while Schrock was in his vehicle, Merkel walked up

to Plaintiff and put his face very close to his. Plaintiff turned and started walking away. Merkel

held his left arm momentarily. Plaintiff turned away again. Merkel took hold of his left arm

again. Merkel then turned him around and attempted to handcuff him. At that moment, still in

his vehicle, Schrock looked up and saw Merkel’s interaction with Plaintiff. Schrock joined

Merkel and together they placed Plaintiff against Amanda’s vehicle and succeeded in

handcuffing him. Merkel led Plaintiff to his squad car and took him to the Lake County Jail. He

was charged with disorderly conduct and resisting law enforcement.

While the above facts are not in dispute, many other details of the incident are contested. 

In Merkel’s probable cause affidavit he stated that Plaintiff was “disorderly after being told to

quiet down and continued to use profanity and talk or yell in a boisterous manner and use

abusive language.” (Pl. Ex. 2, DE 92, at 4). Plaintiff asserts that when he talked to Dolan he

raised his voice a little bit but did not use profanity and did not yell. Moreover, he states that

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when Merkel told him to stop talking to Dolan and be quiet, he complied. Plaintiff maintains that

he never heard Merkel tell him he was under arrest. He attempted to walk away from Merkel but

Merkel grabbed him to continue their conversation. He claims that he did not resist the officers,

but simply twisted away in pain when Merkel grabbed his arm and twisted it behind his back. 

In Defendants’ account, Plaintiff refused to be quiet and continued to yell at Dolan. 

Merkel ordered Plaintiff to stop talking or he would be arrested. When Plaintiff refused to

comply, Merkel told him he was under arrest and must turn around. When Plaintiff turned to

walk away, Merkel grabbed his arm and struggled with him to effectuate the arrest. As this was

happening, Schrock looked up from what he was doing in his squad car, saw the struggle, and

came to assist Merkel. 

With regard to the incident on U.S. 30, Plaintiff explains that Merkel attended Plaintiff’s

deposition on November 15, 2012, in Valparaiso in full uniform with a visible firearm. After

Plaintiff’s counsel objected, he removed the firearm and his uniform shirt. During the

deposition, Plaintiff testified about his fear of police officers since the Methodist Hospital

incident. Merkel heard this testimony. When Plaintiff left the law office following the

deposition, he saw Merkel by his squad car. Plaintiff left quickly, wanting to avoid Merkel. At

some point on his journey west on U.S. 30, Plaintiff, driving in the left lane, noticed that Merkel

was several cars behind him in the same lane. They traveled in the same lane for a mile or two. 

Plaintiff then moved to the right lane. The cars that had been between Merkel and Plaintiff

passed Plaintiff. However, Merkel did not pass Plaintiff but remained a few feet behind him,

with Plaintiff in the right lane and Merkel in the left. They maintained this formation for about

five miles. When Plaintiff sped up or slowed down his vehicle, Merkel would do the same. 

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Finally, Merkel passed Plaintiff.

C. Discussion

(1) Plaintiff’s Motion to Strike Ezell Report and Opinions

Defendants support their motion for summary judgment in part with the report and

opinions of Jerome Ezell, who is an attorney and retired Indiana State Police officer. Plaintiff

moves to strike his report because it is unsworn and therefore does not constitute an affidavit or

otherwise admissible evidence for the purpose of Rule 56. Moreover, Plaintiff maintains that

Ezell’s opinions constitute legal conclusions that he reaches by crediting Defendants’ view of the

facts and disregarding Plaintiff’s account.

Ezell’s report includes opinions that Merkel and Schrock were justified in arresting

Plaintiff for disorderly conduct and resisting law enforcement and that the manner of the arrest

and force used were consistent with best law enforcement practices at the time of the arrest. 

Under Indiana’s disorderly conduct statute, Indiana Code § 35-45-1-3(a)(2), a person

who intentionally “makes unreasonable noise and continues to do so after being asked to stop”

commits the offense of disorderly conduct. Pursuant to Indiana Code § 35-44.1-3-1, a person

who intentionally “forcibly resists, obstructs, or interferes with a law enforcement officer . . .

while the officer is lawfully engaged in the execution of the officer’s duties” commits the offense

of resisting law enforcement. 

Ezell’s opinion that the officers had reasonable grounds to arrest Plaintiff for disorderly

conduct disregards Plaintiff’s testimony that he merely raised his voice a little when he spoke to

Dolan and that he stopped talking when he was ordered to. Similarly, his opinion that they had

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reasonable grounds to charge Plaintiff with resisting law enforcement and that the force used was

reasonable, disregards Plaintiff’s testimony that he never heard Merkel state that he was under

arrest and that his movements while the officers were handcuffing him were an involuntary

response to pain. Because the opinions expressed in the report depend on Ezell’s resolution of

credibility issues in favor of Defendants, they cannot not assist the Court in determining whether,

as a matter of law, there was probable cause to arrest Plaintiff or that the force used was

reasonable so as to warrant the conclusion that Defendants are entitled to summary judgment on

these issues. Because the Court does not rely on these opinions in deciding Defendants’ motion

for summary judgment, the motion is denied as moot.

(2) Defendants’ Motion to Strike Facts from Plaintiff’s Response

Defendants ask the Court to strike thirteen different matters from Plaintiff’s Appendix to

his memorandum in opposition to Defendants’ motion for summary judgment. Plaintiff uses a

number of conclusions of Merrillville police personnel who conducted an internal investigation

of Merkel’s and Schrock’s handling of the incident to bolster his claim that genuine issues of

material fact exist, which Defendants seek to have stricken. (See the five matters listed in

Defendants’ memorandum in support of their motion to strike, DE 96 at 5). Because the Court

does not rely on any of these conclusions in reaching its decision on the motion for summary

judgment, Defendants’ motion to strike is denied as moot as to them. 

Defendants also ask the Court to strike seven other matters, which they claim are

irrelevant because they consist of information Merkel and Schrock did not have at the time of the

incident. The first such matter is found in paragraph 2 on page 3 of Plaintiff’s Appendix. This

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paragraph simply provides background information as to how Plaintiff and his daughter came to

be at the hospital on the day of the incident. Accordingly it will not be stricken. 

Of the remaining matters Defendants claim were outside the officers’ knowledge, the

Court relies only on Plaintiff’s statement that his movements during the time Merkel and

Schrock were handcuffing him were in reaction to pain and that he did not hear anyone say he

was under arrest to decide Defendants’ motion for summary judgment. The Court agrees with

Plaintiff that if a jury believes Plaintiff’s explanation, it could infer that Merkel and Schrock

perceived he was reacting to pain and not resisting them. Moreover, a reasonable inference from

Plaintiff’s testimony that he did not hear Merkel tell him he was under arrest is that Merkel never

said it. The statements are relevant and will not be stricken. 

Defendants also maintain that Plaintiff’s testimony that his daughter told the officers to

be careful when they were handcuffing him and as to what Dolan said to him when he first

arrived at the hospital should be stricken as hearsay. Once again, because the Court does not

rely on either of these matters to determine whether summary judgment is appropriate,

Defendants’ motion to strike them will be denied as moot.

(3) Plaintiff’s Motion to Strike Arguments in Defendants’ Reply Memorandum

Plaintiff asks the Court to strike from Defendants’ reply memorandum three arguments

because, he maintains, they were not raised in their original memorandum. 

Plaintiff first argues that Defendants did not seek summary judgment on his claim that his

arrest and detention were in retaliation for his speech but nonetheless argued in their reply brief

that he has no First Amendment claim for retaliatory arrest. The Court agrees and will strike

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Defendants’ argument in section IV of their reply brief.1

Next Plaintiff maintains that the Court should strike the portion of Defendants’ reply

brief that argues for rejection of Monell liability on a failure to train theory because he did not

plead that theory. Because of the Court’s resolution of Defendants’ other argument against

failure to train liability, it is not necessary to decide whether Plaintiff properly pleaded such a

basis for liability and the motion to strike will be denied on this issue.

Plaintiff also asks the Court to strike Defendants’ argument that he never pleaded a

failure to intervene claim against Schrock and thus should not be permitted to raise such a claim

in his response to Defendants’ summary judgment motion. Plaintiff maintains that his allegation

that Schrock assisted Merkel in arresting him implies a failure to intervene. The Court agrees

with Defendant that after Plaintiff raised this basis for liability in his opposition to their motion

for summary judgment, Defendants are entitled to address the claim in their reply. The argument

will not be stricken.

(4) Unreasonable Seizure and State Law Claim for False Arrest/False Imprisonment

Defendants argue that they are entitled to summary judgment on these claims because the

undisputed facts show that Merkel and Schrock had probable cause to arrest Plaintiff for

disorderly conduct and resisting arrest. The Court disagrees. The disputed facts the Court noted

above preclude summary judgment on these issues. 

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Defendants insist that Plaintiff’s First Amendment claim for retaliatory arrest cannot stand either

substantively or on qualified immunity grounds. They suggest the Court should allow Plaintiff to file a sur-response

brief rather than allow his retaliatory arrest claim to go forward. The cases Defendants rely on to dispose of this

claim involve situations where probable cause to arrest the Plaintiff on some grounds was found to be present. 

However, because of the Court’s resolution of Defendants’ summary judgment motion on the probable cause issue in

this case, such additional briefing would serve no purpose.

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Moreover, the same disputed facts prevent the Court from determining that Merkel and

Schrock are entitled to qualified immunity. In order to survive summary judgment on the

grounds of qualified immunity, a plaintiff must demonstrate a violation of a valid legal right and

show that it would be clear to a reasonable officer that his conduct was unlawful in the situation

he confronted. Abdullahi v. Madison, 423 F.3d 763, 775 (7th Cir. 2005). If Plaintiff’s version of

the facts is believed, it would be clear to a reasonable officer that probable cause to arrest him

was lacking. Thus summary judgment is denied on this issue. 

(5) Unreasonable Use of Force and State Law Battery Claims

Defendants maintain that the undisputed facts and video evidence show that Merkel and

Schrock used no greater force than was necessary under the circumstances. However, once

again, disputed facts preclude summary judgment on these issues. Plaintiff alleges that when

Merkel grabbed him, he had not been told he was under arrest, that Merkel used force not to

effectuate an arrest but to compel Plaintiff to continue the conversation with him, and that any

resistence on his part was not intentional, but a reaction to pain. Under these circumstances,

summary judgment is not appropriate. Moreover, because of the existence of these disputed

facts, the Court cannot conclude that Merkel and Schrock are entitled to qualified immunity.

(6) Failure to Intervene

Plaintiff maintains that the facts viewed in his favor support a Fourth Amendment claim

that Schrock breached his duty to intervene to protect Plaintiff’s constitutional rights from

infringement by Merkel. Defendants insist that Plaintiff did not plead this claim and cannot raise

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it for the first time in his summary judgment response brief and further argue that the facts do not

support such a claim. They also assert that Schrock is entitled to qualified immunity.

Plaintiff did not need to state specifically in his complaint that Schrock failed to intervene

to prevent Merkel from violating his civil rights to proceed on this theory. An officer breaches

his duty to intervene if he had reason to know that a constitutional violation has been committed

by another officer and had a realistic opportunity to intervene to prevent the harm from

occurring. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). “Whether an officer had sufficient

time to intervene or was capable of preventing the harm caused by the other office is generally

an issue for the trier of fact unless, considering all the evidence, a reasonable jury could not

possibly conclude otherwise.” Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 478

(7th Cir. 1997). 

Nonetheless, summary judgment will be granted on this issue because Schrock is entitled

to qualified immunity. Plaintiff has not shown that it would be clear to a reasonable officer in

Schrock’s circumstances that failure to stop Merkel from grabbing Plaintiff and handcuffing him

violated Plaintiff’s rights. It is undisputed that Schrock was in his vehicle when he looked up to

see Merkel attempting to handcuff Plaintiff. Neither the video of the incident nor any other

designated evidence demonstrates that Schrock should have known Merkel lacked probable

cause to arrest Plaintiff or that he was using excessive force such that Plaintiff needed Schrock’s

protection.

(7) Monell Claims

Under Monell v. Department of Social Services, 436 U.S. 658 (1978), municipal entities

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may be subject to § 1983 liability when the violation of a plaintiff’s federally protected right can

be attributable to the enforcement of a municipal policy or custom. Id. at 694. Defendants assert

that Plaintiff cannot point to any express municipal policy or widespread custom or practice that

led to the constitutional violations he alleges. Plaintiff argues that the facts in this case support

an inference that a lack of training caused the incident at issue in this case. 

“Only where a municipality’s failure to train its employees evidences deliberate

indifference to the rights of its inhabitants can such a shortcoming be properly thought of as a

city custom or policy that is actionable under § 1983.” Canton v. Harris, 489 U.S. 378, 389

(1989). It is not enough “to prove that an injury or accident could have been avoided if an

officer had had better or more training, sufficient to equip him to avoid the particular injurycausing conduct.” Id. at 391. What a plaintiff must do is focus “on the adequacy of the training

program in relation to the tasks the particular officers must perform. That a particular officer

may be unsatisfactorily trained will not alone suffice to fasten liability on the city . . . .” Id. at

390. 

Even if the Court were to consider Chief Petruch’s conclusions that Merkel lacked

knowledge of the statutory definition of disorderly conduct and did not understand the law with

regard to arrest for disorderly conduct, Plaintiff has designated no evidence from which a

reasonable jury could conclude that the Town had a constitutionally deficient training program. 

Petruch’s assessment of Merkel suggests only that he may have been unsatisfactorily trained. 

Because there is an absence of evidence to support Plaintiff’s inadequate training claim,

summary judgment is granted in favor of the Town and Merkel and Schrock in their official

capacities on this claim.

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(8) IIED Claim against Merkel

 Defendants’ final argument is that the undisputed facts do not support an IIED claim

against Merkel for the incident on U.S. 30. The Court agrees. To establish an IIED claim,

Plaintiff must show that Merkel, by extreme and outrageous conduct, intentionally or recklessly

caused him severe emotional distress. See Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991). 

The conduct at issue must be so outrageous in character and so extreme in degree that it exceeds

all bounds of decency, so as to be utterly intolerable in a civilized community. Creel v. I.C.E. &

Assoc., 771 N.E.2d 1276, 1282 (2002). In an appropriate case, the question can be decided as a

matter of law. Id. Here, Merkel’s actions as described by Plaintiff—following several feet

behind Plaintiff’s vehicle for about five miles along U.S. 30, in the left hand lane while Plaintiff

traveled in the right lane, matching Plaintiff’s speed—do not rise to the level of extreme and

outrageous conduct as a matter of law. Accordingly, summary judgment will be granted as to

this claim.

D. Conclusion

For the reasons stated above, Plaintiff’s first motion to strike (DE 91) is DENIED. 

Defendants’ motion to strike (DE 94) is DENIED. Plaintiff’s second motion to strike (DE 99) is

GRANTED in part and DENIED in part. Defendants’ motion for summary judgment (DE 86) is

GRANTED in part and DENIED in part. 

SO ORDERED on March 6, 2015.

s/ Joseph S. Van Bokkelen 

Joseph S. Van Bokkelen

United States District Judge

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