UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

BILLY JOE JOHNSON, )

)

Plaintiff, )

) CAUSE NO. 3:14CV2049-PPS 

vs. )

)

ALAN WEIGAND, et al., )

)

Defendants. )

**********************************************

)

ALAN WEIGAND & ANTHONY )

DAWSON, )

Counter-Plaintiffs, )

)

vs. )

)

BILLY JOE JOHNSON, )

)

Counter-Defendant. )

OPINION AND ORDER

Billy Joe Johnson, a pro se prisoner, is proceeding on a claim that the defendants

used excessive force during his arrest on October 29, 2014. The two remaining

defendants – South Bend, Indiana police officers – have moved for summary judgment.

(DE 39.) Despite being given proper notice of the motion for summary judgment (DE

43) and numerous opportunities to respond, (DE 42, 44), Johnson has not responded to

the motion for summary judgment. 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, this “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, I still must

make the finding that “given the undisputed facts, summary judgment is proper as a

matter of law.” Id. Because there is no evidence that either of these defendants used

excessive force, the motion for summary judgment will be granted.

Factual Background

Johnson did not respond to the defendants’ request for admissions served on

March 30, 2016. (See DE 37, 38.) As a result, they became his admissions pursuant to

Rule 36(a) of the Federal Rules of Civil Procedure. FED. R. CIV. P. 36(a)(3); Kalis v.

Colgate-Palmolive, 231 F.3d 1049, 1059 (7th Cir. 2000). Those admissions, along with the

other submitted evidence, establish the following undisputed facts.

On October 30, 2014, at approximately 1:52 a.m., South Bend Police Department

Officer Alan Wiegand (“ Officer Wiegand”) observed a person walking in the street

who matched the description of a theft suspect. (Wiegand Aff. ¶ 3; DE 40-1.) Officer

Wiegand pulled into a nearby parking lot in his marked South Bend Police Department

(“SBPD”) vehicle and stepped out wearing his uniform. (Id. at ¶ 5.) After stepping out

of his vehicle, Officer Wiegand approached the person and identified him as Billy Joe

Johnson, the theft suspect. (Id. at ¶ 6.) Johnson recognized Officer Wiegand as a SBPD

officer and fled. (Request Nos. 2, 3; DE 37.) Officer Wiegand instructed Johnson to stop,

but he continued to flee. (Wiegand Aff. ¶ 7; Request No. 3.) Officer Wiegand called for

backup.

2
Officer Dawson arrived, as well as Officer Sanchez with his K-9 dog, and they

began searching for Johnson. (Dawson Aff. ¶7, DE 40-2; Wiegand Aff. ¶ 8.) While

searching for Johnson, Officer Dawson noticed that a vacant home had been broken

into. (Dawson Aff. ¶ 8.) The officers decided to search the vacant home. (Id. at 9.) As the

officers went upstairs, Officer Sanchez’s K-9 alerted on a closed door. (Dawson Aff. ¶

10.) To elicit a surrender, Officer Sanchez made an announcement that he had a police

K-9 with him. (Id.) Receiving no response, Officer Dawson began to push the door open

when he saw a man on the other side. (Id. at ¶ 11.) Officer Dawson yelled for the man to

get on the ground but, instead, the man rammed the door back into Officer Dawson.

(Id.) Officer Dawson again tried to open the door, but the suspect had locked it. (Id. at ¶

12.) Officer Dawson kicked the door in and Officer Sanchez’s K-9 went in and

apprehended the suspect. (Id.) Officer Dawson then took the suspect to the ground and

placed him in handcuffs, using only the amount of force necessary to effectuate the

arrest. (Id. at ¶ 13.) Neither officer nor the K-9 unit dog harmed Johnson after he was

handcuffed. (Request Nos. 8, 9.)

Officer Wiegand positively identified Johnson as the person who had run from

him earlier. (Dawson Aff. ¶ 14; Wiegand Aff. ¶ 10.) Wiegand then placed Johnson in the

back seat of his police vehicle and placed him under arrest for Theft, Resisting Law

Enforcement and Battery Against an Officer. (Dawson Aff. ¶ 14; Wiegand Aff. ¶ 11.)

Discussion

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

3
any material fact and the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a). A party opposing summary judgment may not rely 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).

Johnson was granted leave to proceed on his claim that after he was handcuffed

and lying on his stomach, Officer Wiegand, Officer Dawson, and the K-9 unit dog all

attacked him, causing numerous injuries. Summary judgment “is the put up or shut up

moment in a lawsuit, when a party must show what evidence it has that would

convince a trier of fact to accept its version of the events.” Springer v. Durflinger, 518

F.3d 479, 484 (7th Cir. 2008). Johnson has not produced any evidence supporting the

allegations that he was granted leave to proceed on. To the contrary, he has since

admitted that he was not attacked after being handcuffed. (Request Nos. 8-11.) Thus,

summary judgment is appropriate on this claim. Moreover, in examining the entire

incident, I do not see anything unreasonable about the amount of force used before,

during or after Johnson’s arrest.

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

4
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 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

“calculus 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, based on the undisputed evidentiary record consisting of Johnson’s

admissions and affidavits from Officers Wiegand and Dawson, the grant of summary

judgment on this claim is inevitable. There is no evidence that Johnson suffered a

Fourth Amendment violation. At the time of this incident, the officers were faced with

an individual who was a suspect in three thefts, fled from police officers, refused their

verbal commands to surrender, and then assaulted Officer Dawson in actively resisting

efforts to arrest him. Faced with this volatile scenario, the use of a K-9 to apprehend and

then momentarily detain Johnson was not objectively unreasonable, and did not

5
constitute excessive force. Tilson v. City of Elkhart, 96 Fed. Appx. 413, 416 (7th Cir. 2004)

(collecting cases that the use of a K-9 to bite and hold a suspect until officers could

apprehend him is not an unconstitutional seizure per se). Simply put, there was no more

force used than necessary to effectuate the arrest. And, after Johnson was arrested, there

is no evidence that any further force was used. Based on these undisputed facts, the

defendants’ use of force was reasonable under the circumstances.

The only thing that remains is what to do with the state law claims. In their

answer, the defendants asserted state-law counterclaims of assault, battery, negligence

and negligence per se. (DE 9 at 6.) “[T]he general rule is that, when all federal claims are

dismissed before trial, the district court should relinquish jurisdiction over pendent

state-law claims rather than resolving them on the merits.” Kennedy v. Schoenberg, Fisher

& Newman, Ltd., 140 F.3d 716, 727 (7th Cir. 1998). As all of the federal claims have been

dismissed, I decline to exercise supplemental jurisdiction over the defendants’ state-law

counterclaims. 28 U.S.C. § 1367(c)(3); Cady v. South Suburban College, 152 Fed. Appx. 531,

534 (7th Cir. 2005); Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999). Accordingly,

the defendants’ state-law counterclaims will be dismissed without prejudice.

Conclusion

For these reasons, the court:

(1) GRANTS defendants Weigand and Dawson’s motion for summary judgment

(DE 39);

(2) DIRECTS the clerk to enter judgment in favor of all the defendants on the

6
claims contained in the plaintiff’s complaint;

(3) DISMISSES defendants Weigand and Dawson’s state-law counterclaims

without prejudice; and

(4) DIRECTS the clerk to close this case.

SO ORDERED.

ENTERED: October 7, 2016.

 /s/ Philip P. Simon 

Chief Judge

United States District Court

7