IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

BILLY L. HARRIS, )

)

Plaintiff, )

)

vs. ) NO. 1:12-CV-12

)

D. LIEWELLYN, et al., )

)

Defendants. )

OPINION AND ORDER

Billy L. Harris, a pro se prisoner, filed a complaint under 42

U.S.C. § 1983. (DE# 1.) For the reasons set forth below, the Court: 

(1) GRANTS the plaintiff leave to proceed against Officers D.

Liewellyn, N. Nicklow, M. Dickey, and P. Ealing in their individual

capacities for compensatory damages for using excessive force in

effectuating his arrest in violation of the Fourth Amendment; (2)

DISMISSES all other claims; (3) DIRECTS the United States Marshals

Service, pursuant to 28 U.S.C. § 1915(d), to effect service of

process on Officers D. Liewellyn, N. Nicklow, M. Dickey, and P.

Ealing; and (4) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2),

Officers D. Liewellyn, N. Nicklow, M. Dickey, and P. Ealing to

respond, as provided for in the FEDERAL RULES OF CIVIL PROCEDURE and N.D.

IND. L.R. 10.1, only to the claim for which the plaintiff has been

granted leave to proceed in this screening order.
BACKGROUND

Billy L. Harris filed this action on January 17, 2012.

(DE# 1.) In his complaint, Harris alleges that four officers from

the Fort Wayne Police Department used excessive force in

effectuating his arrest on December 3, 2011. Specifically, he

alleges that, on the date in question, he was driving in Fort Wayne

with his fiancee. As he was making a left turn, he noticed a squad

car with its lights activated driving behind him. He pulled over,

as did the squad car, and Officer M. Dickey approached the vehicle.

According to Harris, Officer Dickey approached the passenger side

first, and asked Harris’s fiancee for a license and registration.

She replied that she had recently bought the vehicle and had her

paperwork at home. Officer Dickey then asked Harris, “What’s your

name an[d] do you have [a] license?” Harris replied that he did

not. 

Harris claims that Officer Dickey then put his fiancee in

handcuffs, despite the fact that she was seven months pregnant at

the time. Harris became upset and said to the officer, “What are

you doing with her she’s pregnant.” Harris claims that upon hearing

the officer’s angry “tone” he began to “fear[] for [his] life,” so

he “took of running on foot.” He claims that he slipped and fell in

the mud a few yards away, at which point Officer D. Liewellyn put

his knees in the center of Harris’s back and handcuffed him. He

claims the officer then put him in a choke hold until he lost

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consciousness. When he regained consciousness he felt a “hot

stinging sensation” on the right side of his face and smelled mace.

He claims that Officers Dickey and Liewellyn had been joined by two

more officers, Officers N. Nicklow and P. Ealing, all four of whom

were punching him repeatedly as he lay on the ground. He claims

that he almost lost consciousness again due to the beating. When it

ended, he was taken to Officer Liewellyn’s squad car and began

spitting out blood.

He claims that the officers then took him to the hospital.

When they arrived he was handcuffed to a hospital bed, and was seen

briefly by a doctor. He claims the doctor basically asked him where

he was hurting, and Harris replied that he had “excruciating pain” 

in his head, and also pain in his throat, neck, and jaw. The doctor

then left the room, and a female officer arrived to take pictures

of Harris’s injuries. Before the pictures were taken Officer Dickey

and an unnamed officer uncuffed him and “cleaned” him up. They then

transported him to the jail lock-up. He later saw a nurse while in

the lock-up and was prescribed penicillin and other medications for

his injuries.

DISCUSSION

Pursuant to 28 U.S.C. § 1915A, the Court must review a

complaint filed by a prisoner and dismiss it if the action is

frivolous or malicious, fails to state a claim upon which relief

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may be granted, or seeks monetary relief against a defendant who is

immune from such relief. 28 U.S.C. § 1915A(a), (b). The court

applies the same standard as when deciding a motion to dismiss

under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). Lagerstrom v. Kingston,

463 F.3d 621, 624 (7th Cir. 2006). 

To survive dismissal, a complaint must state a claim for

relief that is plausible on its face. Bissessur v. Indiana Univ.

Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “A claim has

facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. at 603. The

court must bear in mind, however, that “[a] document filed pro se

is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.

89, 94 (2007). 

Under the Fourth Amendment, an officer’s right to arrest an

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

but the use of force must 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

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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 threat to

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

arrest or attempting to evade arrest by flight. Id.

Here, Harris acknowledges that he was driving without a

license and also fled from police. However, he alleges that the

officers choked, maced, and beat him while he was lying on the

ground handcuffed and not offering any resistance. Although further

factual development may show that Harris was resisting or that the

use of force was otherwise reasonable under the circumstances,

taking the allegations in the complaint as true, Harris has alleged

a plausible Fourth Amendment claim against the officers. 

CONCLUSION

For the reasons set forth above, the Court: 

(1) GRANTS the plaintiff leave to proceed against Officers D.

Liewellyn, N. Nicklow, M. Dickey, and P. Ealing in their individual

capacities for compensatory damages for using excessive force in

effectuating his arrest in violation of the Fourth Amendment;

(2) DISMISSES all other claims;

(3) DIRECTS the United States Marshals Service, pursuant to 28

U.S.C. § 1915(d), to effect service of process on Officers D.

Liewellyn, N. Nicklow, M. Dickey, and P. Ealing; and

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(4) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Officers D.

Liewellyn, N. Nicklow, M. Dickey, and P. Ealing to respond, as

provided for in the FEDERAL RULES OF CIVIL PROCEDURE and N.D. IND. L.R.

10.1, only to the claim for which the plaintiff has been granted

leave to proceed in this screening order.

DATED: February 9, 2012 /s/RUDY LOZANO, Judge

United States District Court

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