UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

D. SCOTT LOVE, )

)

Plaintiff, )

)

v. ) Cause No.: 3:14-CV-2039

)

PENN-HARRIS-MADISON SCHOOL )

CORPORATION, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the court on the motion for partial summary judgment filed by

Defendants Sergeant Eric Kaser, Sergeant John Kuhny, Sheriff Mike Grzegorek, and St. Joseph 1

County Board of Commissioners (DE 23). The Defendants filed a brief in support of their 2

motion (DE 24), Plaintiff D. Scott Love filed a brief in opposition to the motion (DE 42), and

Defendants filed a reply brief (DE 46). For the reasons set forth below, the motion for partial

summary judgment is GRANTED as to all of the Plaintiffs’ federal claims. The court declines to

exercise its supplemental jurisdiction over the Plaintiffs’ state law claims and REMANDS this

case to the St. Joseph County Superior Court. The Clerk of the Court is directed to effectuate the

remand of this case to the state court.

 In their Complaint the Plaintiffs spelled Kaser’s name as “Kaiser,” as did the 1

Defendants in their Answer. The correct spelling, as indicated in his deposition, is “Kaser,” so

the court uses that spelling in this order.

On March 23, 2016, the parties filed a stipulation of dismissal of Defendants Penn- 2

Harris-Madison School Corporation and Dr. Jerry Thacker (the superintendent of PHM).

Stipulation of dismissal with prejudice (DE 40). The remaining Defendants, then, include Eric

Kaser, John Kuhny, St. Joseph County Sheriff Mike Grzegorek, and the St. Joseph County Board

of Commissioners.
BACKGROUND

Plaintiff D. Scott Love brought this lawsuit on behalf of his minor son, D.L., a special

needs student who attended Penn High School, part of the Penn-Harris-Madison School District.3

At the time of the events giving rise to this lawsuit, D.L. was attending Penn and had in place “a

written Student Individualized Education Program (“IEP”) pursuant to the Individuals with

Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. and applicable Indiana law.”

Complaint (DE 3), p. 3. There was also a Behavioral Intervention Plan (“BIP”) in place that

purportedly outlined how school officials should “respond to any behavioral outbursts[]” on the

part of D.L. who, because of his special needs, would sometimes “make threatening statements,

[engage in] inappropriate name-calling, and inappropriate remarks toward staff.” Id. According

to Love, “[t]his meant that response to any behavioral problems was to follow a precise protocol

that was required to be known by and accessible to PHM staff.” Id.

According to Love, on “April 15, 2014, at approximately 8:09 a.m., D.L. was standing

and talking with other students in a school hallway. As [Defendant] Kaser, dressed in plain

clothes and acting as [an] SRO, passed by D.L., [D.L.] reached out and tapped him on the 4

shoulder. Sgt. Kaser did not stop, offer a warning, or otherwise respond. D.L. then began walking

 Love filed his Complaint in the St. Joseph County Superior Court and the Defendants 3

removed it to this court pursuant to 28 U.S.C. § 1441. See Docket at 1, Notice of Removal p. 2.

The parties agree that this court has federal question jurisdiction over this case pursuant to 28

U.S.C. § 1331.

 “SRO” stands for school resource officer. According to the Defendants, “Penn High

4

School utilized School Resource Officers . . . , which were typically police officers, who were

present at the school to maintain safety of all individuals in the school.” Defendants’ Brief (DE

24), p. 3. It is undisputed that Kaser and Kuhny were both police officers who also worked at

Penn as SROs. 

2
backwards and making large arm gestures as he said ‘What up?’ to Sgt. Kaser. This did not

interrupt the flow or attract the attention of students passing by.” Id., p. 4. Later that same day,

“at approximately 3:12 [p.m.],” D.L. was approached by Kaser and Kuhny in a school hallway.

Love maintains that D.L. did not “make any movement that was threatening, quick, or

aggressive.” Id., p. 5. Nonetheless, according to Love, “Sgt. Kaser pointed his finger in D.L.’s

face, [and] Sgt. Kuhny grabbed both of D.L.’s arms near his shoulders, pulling his arms out of

the crossed over the chest position and pinning them behind D.L., while simultaneously pulling

D.L. backward several steps. Sgt. Kuhny next spun D.L. around forcefully before pushing him

backwards with his left hand, pointing at him, and then kicking him in the leg with his left foot.”

Id. 

Love contends that while “D.L. was visibly agitated by the incident, the PHM staff did

not follow his IEP–which would have provided for an opportunity to calm down–and instead

simply put [D.L.] on the bus to go home.” Id. D.L. recounted the incident to the bus driver, who

responded by telling D.L. “that he had ‘probably done something that he needed to be grabbed’

and to ‘take it like a man.’” Id., p. 6. D.L. then responded by saying “at least I didn’t kill him.” 5

Id. Love concedes that “D.L. talked about bringing a gun to school and then took his seat on the

bus. The bus driver did not immediately report the incident or request assistance.” Id.

Kaser and Kuhny met the next day with PHM administrators, during which Kaser

allegedly “stated that he did not like D.L. and that D.L. gave him the ‘willies.’ Sgt. Kaser also

 On their face, the comments attributed to the bus driver might seem dismissive. But the 5

videotape of the conversation between D.L. and the bus driver reveals that the driver made a

sincere effort to calm D.L., shaking his hand, telling him he is “a good boy,” and taking time to

talk to D.L. about the encounter with Kaser and Kuhny. He also admonishes D.L. when D.L.

talks about bringing a gun to school.

3
reported several undocumented issues with D.L. After this meeting, Sgt. Kuhny went to the 6

Mishawaka Police Department and filed a complaint against D.L. for intimidation . . . .” Id. (This

allegation, it turns out, is not true, as discussed below.) “D.L. was arrested at Penn by the

Mishawaka Police Department[]” and “was charged with intimidation [although] the charges

were eventually dismissed.” Id., pp. 6-7. Then, on September 18, 2014, shortly after “school

recommenced at Penn for the 2014-15 academic year . . . Sgt. Kaser and an unknown PHM staff

member falsely reported to PHM that D.L. had previously kept invading Sgt. Kaser’s personal

space and that D.L. ‘went after’ Sgt. Kaser the morning of April 15, 2014[,] and again that

afternoon. . . . Sgt. Kaser has repeatedly displayed a disdain for D.L. and has manifested his

disdain in the form of physical violence against D.L.” Id., p. 7. Love adds that “[t]his matter was

investigated by the Indiana Department of Education who [sic] found that PHM and various

individuals failed to follow D.L.’s IEP.” Id.

Love contends that “[a]s a direct and proximate result of Defendants’ conduct . . . D.L.

has sustained personal injuries; Plaintiffs incurred and will incur medical, hospital,

pharmaceutical, and/or therapeutic expenses; D.L. suffered and will suffer physical pain and

suffering, mental anguish, emotional distress, loss of enjoyment of life; sustained an impairment

of their ability to earn wages in the future; and Plaintiffs incurred other injuries and damages of a

personal and pecuniary nature.” Id., pp. 7-8. Love, on behalf of D.L., asserts claims against the

 The Defendants contend that D.L. would “occasionally come up to the SROs on duty 6

and try to touch or grab their holstered firearms, sometimes hiding and shouting ‘Bang! I got

you!’ while pantomiming holding a gun. . . . These instances progressed to where D.L. would

approach the SROs and threaten to kill them.” Defendants’ Reply, p. 5. It is important to note,

however, that the Defendants do not contend that D.L. made any attempts to grab a firearm or

otherwise physically threaten Kaser or Kuhny on the day of the events giving rise to this lawsuit. 

4
Defendants for a violation of the IDEA (Id., p. 8, Count I), a claim for violation of D.L.’s equal

protection rights (Id., pp. 8-9, Count II), a claim for violation of D.L.’s procedural due process

rights (Id., pp. 9-10, Count III), a claim for unreasonable seizure in violation of D.L.’s Fourth

Amendment rights (Id., pp. 10-11, Count IV), a claim against Sheriff Grzegorek and Dr. Jerry

Thacker for failure to train school resource officers “on how to preserve and maintain the

constitutional rights of those with whom they came into contact[,]” (Id., pp. 12-13, Count VI), a

state law claim for battery (Id., p. 14, Count VII), a state law claim for assault (Id., p. 15, Count

VIII), a state law claim for false imprisonment (Id., pp. 14-15, Count IX), a state law claim for

false arrest (Id., pp. 15-16, Count X), a state law claim for intentional infliction of emotional

distress (Id., pp. 16-17, Count XI), a state law claim for negligent infliction of emotional distress

(Id., p. 18, Count XII), and a state law negligence claim (Id., p. 19, Count XIII). The Plaintiffs’

federal law claims are brought pursuant to 42 U.S.C. § 1983. 

In their motion for partial summary judgment, the Defendants request that the court enter

judgment in their favor “on the § 1983 federal claims against them in this case,” which include

Counts I, II, III, IV, V, and VI. Motion for Summary Judgment (DE 23), p. 1. The Defendants

state that their “motion . . . does not address the state law claims,” which include Counts VII

through XIII. Id., p. 2. 

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the record shows that there is “no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning

material facts are genuine where the evidence is such that a reasonable jury could return a verdict

5
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In

deciding whether genuine issues of material fact exist, the court construes all facts in a light most

favorable to the non-moving party and draws all reasonable inferences in favor of the nonmoving party. See id. at 255. However, neither the “mere existence of some alleged factual

dispute between the parties,” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt

as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc.,

209 F.3d 687, 692 (7th Cir. 2000).

Summary judgment is not a substitute for a trial on the merits nor is it a vehicle for

resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). 

Therefore, after drawing all reasonable inferences from the facts in favor of the non-movant, if

genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion,

summary judgment is inappropriate. See Shields Enterprises, Inc. v. First Chicago Corp., 975

F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). 

If it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish

his or her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S.

at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). 

DISCUSSION

In their opposition brief, the Plaintiffs concede that the discovery process resulted in

“insufficient evidence” to support Count I (violation of the IDEA), Count II (equal protection

violation claim), or Count III (due process violation claim) of Plaintiffs’ Complaint. Plaintiffs’

Response, p. 12. The Plaintiffs do not concede their other federal claims, including their

6
unreasonable seizure claim asserted in Count IV, their excessive force claim asserted in Count V,

or their failure to train claim asserted in Count VI. Id., pp. 12-13. The Plaintiffs state that “[w]ith

the exception of Counts I, II and II as noted above, Plaintiffs respectfully pray that the Court deny

the County Defendants’ Motion for Partial Summary Judgment as to Counts IV, V and VI.” Id.,

p. 14. Accordingly, summary judgment is GRANTED in favor of the Defendants as to Counts I,

II, and III of the Plaintiffs’ Complaint. As a result, Counts IV, V and VI are the only claims

remaining that are subject to the motion for partial summary judgment.

I. Count IV–Fourth Amendment unreasonable seizure claim.

The Plaintiffs contend that “sufficient evidence has been presented in the Statement of

Material Facts along with the video tape evidence submitted herewith to establish that D.L. was

the subject of a coordinated assault by Sgt. Kaser and Sgt. Kuhny that resulted in an unlawful

seizure of D.L. . . . [T]he County Defendants have presented no evidence to justify that seizure of

D.L. or the assaultive means with which the seizure took place.” Plaintiffs’ Brief, p. 12. The 7

Defendants contend that Love states no facts to support a Fourth Amendment unreasonable

seizure claim. According to the Defendants, “[a]t best, Plaintiff has alleged that [Kaser and

Kuhny] committed a state law battery upon D.L. (grabbing arms, pushing). Despite the fact that

both SROs were county police officers, neither Kaser nor Kuhny arrested or handcuffed D.L.

Absent a formal arrest, there can be no constitutional violation for a ‘seizure’ (no search has been

alleged) or for excessive force.” Defendants’ Brief, p. 13. The Defendants go even farther,

 The Plaintiffs provided evidence in the form of a videotape that includes “surveillance 7

coverage of the morning, afternoon and school bus events from April 15, 2014.” Notice of

Manual Filing (DE 43). The court has viewed the videotape several times and finds that it does

not support the Plaintiffs’ Fourth Amendment claim, as explained below.

7
pointing out that neither Kaser nor Kuhny “went to the Mishawaka Police Department the next

day to report the statements made to the bus driver and file a complaint against D.L. for . . .

making a threat . . . against a law enforcement officer . . . ; it was Mishawaka Police Officer Ryan

Corbett who took it upon himself to file criminal charges. In fact, Kaser did not want to make a

police report on it at all, but Corbett ‘didn’t feel it was right to just let it go.’ As for Kuhny, he

did not even know an arrest charge had been filed until after it occurred. . . . [N]either Kaser nor

Kuhny arrested D.L. or filed criminal charges against him leading to the arrest.” Id., p. 8 (quoting

Kaser Deposition (DE 42-5), pp. 60-61).

8

The Defendants are correct. The evidence does not support the Plaintiffs’ contention that

Kaser’s or Kuhny’s actions rose to the level of “a coordinated assault . . . that resulted in an

unlawful seizure of D.L.” Plaintiffs’ Brief, p. 12. The Plaintiffs maintain that “the County

Defendants have presented no evidence to justify that seizure of D.L. or the assaultive means

with which the seizure took place.” Id. But this statement is a conclusion, as it assumes that the

incident between D.L., Kaser and Kuhny on the afternoon of April 15, 2014, constituted a seizure

in the first place, and ignores the Defendants’ argument that it did not. 

The court watched the videotape provided by the Plaintiffs. The afternoon encounter that

is the basis for the Plaintiffs’ unreasonable seizure claim (and assault and battery claims, but

 Based on these facts, the Defendants state that the Plaintiffs’ allegations that Kuhny 8

“went to the Mishawaka Police Department and filed a complaint against D.L.,” and that Kuhny

“maliciously misinformed the [police] as to the 3:12 p.m. encounter with D.L. . . .” are flat out

wrong. Defendants’ Reply, p. 9. Also, the Defendants argue that “[w]hile there might have been a

legal issue if [Kaser or Kuhny] had caused D.L. to be arrested by a city police department (since

they were county police officers, i.e., whether causally that might amount to the same thing

because Kaser and Kuhny were also police officers), now it is clear that not even this happened.”

Defendants’ Reply, p. 9. 

8
those are not before the court) did not constitute a seizure. Here is how those events played out,

according to the videotape evidence. Shortly after 8:00 a.m. on April 15, 2014, D.L. was standing

in the school’s main lobby talking with other students. Officer Kaser walks by, D.L. reaches out

and pats Kaser on his right shoulder, Kaser looks at D.L. and then continues walking. D.L. then

makes rude gestures behind Kaser’s back. D.L. then walks away. That is the end of the morning

encounter between D.L. and Kaser.

The videotape of the afternoon encounter–the encounter that is the crux of this suit–is

also enlightening. Shortly after 3:00 p.m., when school was over for the day, D.L. is seen again in

the lobby of the school near the front doors–standing with his arms crossed in front of his chest, a

sweater or jacket draped over his left shoulder and carrying small backpack or book bag. Kaser

approaches D.L. and begins talking to him while Kuhny walks up behind D.L. Kuhny then clasps

D.L.’s biceps, D.L. lowers his arms, and Kuhny turns D.L. around about 180 degrees (in not an

unduly forceful manner) in an attempt to get D.L. away from Kaser and direct him out of the

school. D.L. reaches out toward Kaser with his right hand, although it is unclear whether D.L.

makes contact with Kaser. Kaser then points to D.L. with an outstretched arm, seemingly

directing him to leave the school or at least back away from the situation. (In fact, it is clear that

Kuhny and Kaser were trying to diffuse the situation, which the parties agree began with a verbal

exchange of some sort.) D.L. is obviously upset and continues to engage in a verbal exchange

with the SROs (the videotape does not include audio). At one point D.L. and Kaser “chest bump”

each other. The verbal exchange continues, then D.L. walks out the front doors of the school and

heads to his bus. The entire confrontation lasted about one minute.

9
This entire incident was most unfortunate and the court does not doubt the Plaintiffs’

contention that D.L. was very distraught about it. This is understandable given that D.L. is a

special needs student with admitted behavioral problems, and D.L.’s conversation with the bus

driver reflected his level of consternation. Whether the confrontation with Kaser and Kuhny

amounts to actionable assault or battery under Indiana state law is not before the court–but the

event does not amount to an actionable Fourth Amendment claim for unreasonable seizure.

The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const.

Amend. IV. The Fourth Amendment’s protections apply to arrests as well as to brief

investigatory stops . . . that fall short of traditional arrests. United States v. Arvizu, 534 U.S. 266,

273 (2002). “An officer’s temporary detention of an individual . . . constitutes a seizure of a

person . . . and thus must be reasonable under the circumstances. Huff v. Reichert, 744 F.3d 999,

1004 (7th Cir. 2014). See also, Still v. Indiana State Police, 2016 WL 1270338, at *9 (N.D. Ind.

Mar. 31, 2016) (the Fourth Amendment guarantees citizens the right “‘to be secure in their

persons . . . against unreasonable . . . seizures’ of the person.”) (quoting Graham v. Connor, 490

U.S. 386, 394 (1989)).

In the present case, the question is not so much whether the “seizure” of D.L. was

reasonable, but whether there was a seizure at all. The videotape evidence reveals there was not.

What occurred between D.L., Kaser and Kuhny on the afternoon of April 15, 2014, is fairly

characterized as a “confrontation” between the three. It could also be characterized as a very

minor “scuffle.” But it cannot be characterized as a seizure, let alone an unreasonable one. The

Plaintiffs claim that the actions of Kaser and Kuhny constituted a “coordinated assault” that

“completely ignor[ed] D.L.’s fundamental right to be free from an unlawful and unjustified

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seizure.” Plaintiffs’ Response, p. 8. Those are strong words indeed, but not accurate. Similarly,

the Plaintiffs’ contention that “Sgt. Kuhny grabbed both of D.L.’s arms near his shoulders,

pulling his arms out of the crossed over the chest position and pinning them behind D.L., while

simultaneously pulling D.L. backward several steps[,]” see Complaint, p. 5, ¶ 25, is also a rather

hyperbolic spin on the events. The Plaintiffs also state in their Complaint that Kuhny “next spun 9

D.L. around forcefully before pushing him backwards with his left hand, pointing at him, and

then kicking him in the leg with his left foot.” Id., ¶ 26. This statement is also a stretch. It is true

that Kuhny is seen pushing D.L. away from him, although the degree of “force” used by Kuhny

was minimal and occurred only after D.L. appears to confront Kuhny by moving toward him. As

for the Plaintiffs’ allegation that Kuhny kicked D.L., the videotape shows that at one point during

the confrontation, Kuhny does move his left foot towards D.L.’s leg, although it is unclear

whether Kuhny even made contact with D.L. The Plaintiffs’ statement that Kuhny kicked D.L.

conjures up an image of an adult–a police officer no less–battering a special needs student. But

once again the language used by the Plaintiffs to describe the encounter overstates the actions of

Kaser and Kuhny, as evidenced by the videotape of the incident. The Defendants’ rhetoric isn’t

much better at some points. For example, the Defendants state that the afternoon incident was

 This language in the Plaintiffs’ Complaint appears to have been taken, virtually 9

verbatim, from a report prepared by the Indiana Department of Education, which investigated the

April 15, 2014, incident. The Plaintiffs attached a copy of the report to their response brief (DE

42-4). The Defendants state that while they “have no objection to the filing of the video footage

submitted by Plaintiff[,] . . . the Indiana Department of Education Report . . . , which contains

someone’s interpretation of what someone saw on the video, is hearsay and should be stricken

from the record.” Defendants’ Reply, p. 8. The Defendants have not filed a motion to strike this

exhibit, but it doesn’t matter. The court agrees that the report is inadmissible hearsay and for that

reason did not consider it. And, in any event, striking the report would achieve nothing, since the

hearsay statements contained in it have already been incorporated into the Plaintiffs’ Complaint

and adopted as their own. 

11
precipitated by D.L. “[coming] at Kaser with his arms crossed, into Kaser’s ‘personal space,’

giving Kuhny the impression that D.L. would once again get within close proximity and try to

grab a gun” since D.L. had allegedly tried to do that on other occasions. Defendants’ Reply, p. 6

(quoting Kuhny deposition (DE 42-6), p. 36). Kuhny testified in his deposition that “all of a

sudden, [D.L.] appears and he’s freakin’ hell bent on going after Kaser.” Id., p. 35. This

description of the events also doesn’t jibe with the videotape. For one thing, D.L. does not appear

“all of a sudden.” He is standing in the school lobby when Kaser and Kuhny approach him. Also,

D.L. does not appear to “come at Kaser” in any way, let alone a threatening way, and at no point

in the video (which the parties do not dispute captured the entirety of the encounter) does D.L.

appear to be “freaking” about anything. In fact, apart from what appears to be a heated exchange

of words, some finger pointing, and some “chest bumping,” none of the participants appear to be

unduly agitated during the encounter (although both Kaser and Kuhny acknowledged in their

depositions that D.L. was upset during and after the incident). The entire encounter lasted about

one minute, D.L.’s freedom of movement was not infringed (with the arguable exception of a few

seconds when Kuhny grabs his arms to turn him away from Kaser), and the incident ended with

D.L. walking out of the school by himself to catch his bus. 

Obviously, the Plaintiffs and the Defendants present different subjective perceptions of

what occurred and why it occurred, but these perceptions–and the rather inflammatory language

used by both sides to articulate them–are of no moment to the court. These perceptions might be

important with regard to the Plaintiffs’ state law claims (to the extent that intent or credibility are

issues in those claims, for example), but they are not relevant to the issues before this court. The

resolution of the Plaintiffs’ constitutional claims does not turn on credibility issues or a weighing

12
of evidence, which of course would be the sole province of a jury. The videotape provides

sufficient undisputed evidence to establish that D.L. was not seized on April 15, 2014, and so his

Fourth Amendment rights were not violated (and, in fact, were not even implicated). And, even

assuming that D.L.’s very brief detention in the school lobby could be seen as a seizure, the

evidence establishes that it was not an unreasonable one. Kuhny’s actions were nothing more

than an attempt to defuse the situation and direct D.L. away from Kaser and out of the school,

which is what happened. Finally, it is undisputed that D.L. was not handcuffed, arrested, or

otherwise denied freedom of movement. Not only was D.L. free to leave at any point during the

encounter, he was being encouraged to do so by Kaser and Kuhny. This is the opposite of a

seizure and the incident does not give rise to a cause of action for violation of D.L.’s

constitutional rights.

As the Supreme Court has explained:

The reasonableness of limited seizures of the person recognized in Terry [v. Ohio]

and its progeny rests on a balancing of the competing interests to determine the

reasonableness of the type of seizure involved within the meaning of “the Fourth

Amendment’s general proscription against unreasonable searches and seizures.” . .

. We must balance the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the importance of the governmental interests

alleged to justify the intrusion. When the nature and extent of the detention are

minimally intrusive of the individual’s Fourth Amendment interests, the opposing

law enforcement interests can support a seizure based on less than probable cause.

United States v. Place, 462 U.S. 696, 703 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct.

1868, 1879 (1968)). In the present case, the evidence reveals that any “seizure” of D.L. on April

15, 2014, was “minimally intrusive of [his] Fourth Amendment interests” and was supported by

Kaser and Kuhny’s interest in defusing a potentially volatile situation. The court concludes that

there was no seizure of D.L. as a matter of law and, even assuming there was, it was minimally

13
intrusive, not unreasonable under the circumstances, and did not rise to the level of a Fourth

Amendment violation. “If it is clear that a plaintiff will be unable to satisfy the legal

requirements necessary to establish his or her case, summary judgment is not only appropriate,

but mandated.” Celotex, 477 U.S. at 322. That is the situation here and, accordingly, the

Defendants are entitled to summary judgment in their favor on the Plaintiffs’ claim of a Fourth

Amendment violation for unreasonable seizure of the person. 

II. Count V–Excessive force claim.

The Defendants argue that the Plaintiffs cannot pursue a Fourth Amendment excessive

force claim for two reasons. First, the Defendants note that “neither Kaser nor Kuhny arrested or

handcuffed D.L.” (Defendants’ Brief, p. 13) and claim that “[w]here there has been no formal

arrest, there can be no claim for excessive force in violation of the Fourth Amendment.” Id., p.

15 (citing Hemmer v. Vaughn, 2005 WL 2372852 at * 3 (S.D.Ohio Sept. 27 2005)). This

overstates the principle, since an excessive force claim can also arise out of a simple

investigatory stop, see Graham v. Connor, 490 U.S. 386 (1989), which is more akin to what

happened in this case. But the Defendants are correct that absent a seizure of some sort, there can

be no basis for an excessive force claim. Cty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998).

Since the court has determined as a matter of law that D.L. was not seized in violation of his

constitutional rights, he cannot pursue an excessive force claim and is left with his state law

claims of assault and battery to redress his allegations that Kaser and Kuhny caused him physical

and emotional harm.

For their part, the Plaintiffs argue that their claim for excessive force should survive

summary judgment because “[a] trier of fact, in hearing all of the evidence in regard to the

14
assaultive seizure, the pinning of D.L.’s arms behind his back, being spun around, push[ed] and

an attempted kick by the SRO could all fairly be determined to be excessive.” Plaintiffs’

Response, pp. 12-13. In fact, that is basically the entirety of the Plaintiffs’ argument on this issue.

Once again, however, the Plaintiffs’ argument is premised on a legal conclusion. The Plaintiffs

are assuming that D.L. was seized in violation of the Fourth Amendment, thereby providing a

valid basis for an excessive force claim. Since the court has already determined that D.L. was

not seized, he has no foundation for an excessive force claim. Again, no unreasonable seizure

means no excessive force claim under the Fourth Amendment. 

The Defendants’ second argument–that the degree of force used by Kaser and Kuhny was

objectively reasonable under the circumstances–is also supported by the undisputed evidence

(which is to say, the videotape). Even assuming that the encounter between D.L. and the officers

constituted a seizure, the Defendants are still entitled to summary judgment on this claim because

the amount of force that Kaser and Kuhny used was quite clearly reasonable under the

circumstances. As one court summarized recently, “‘[i]n order to establish an excessive force

claim under § 1983, plaintiffs must demonstrate that a state actor’s use of force was ‘objectively

unreasonable’ under the circumstances.’” Jones v. Philips, et al., 2016 WL 3255022, at *3 (E.D.

Wis. June 13, 2016) (quoting Thomas v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006). . . .

“An officer’s use of force is unreasonable from a constitutional point of view only if, ‘judging

from the totality of the circumstances at the time of the arrest, the officer used force greater than

necessary to make the arrest.’” Gonzalez v. City of Elgin, 578 F.3d 526, 539 (7th Cir. 2009)

(quoting Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987)).

15
Just as the Plaintiffs failed to raise any genuine issue of fact regarding their seizure claim,

they likewise fall short on their excessive force claim. The claim is based on the same allegations

recounted in detail above, i.e., what the Plaintiffs referred to as the “coordinated assault” on D.L.

by Kaser and Kuhny. The evidence, however, does not support the claim. The analytical

framework the court follows to assess such claims is as follows:

Where, as here, an excessive force claim “arises in the context of an arrest or

investigatory stop of a free citizen, it is most properly characterized as one

invoking the protections of the Fourth Amendment . . . ” Graham v. Connor, 490

U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). Determining

whether force used to effect a seizure is “reasonable” under the Fourth

Amendment[:]

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

the individual’s Fourth Amendment interests’” against the countervailing

governmental interests at stake . . . Our Fourth Amendment jurisprudence

has long recognized that the right to make an arrest or an investigatory stop

necessarily carries with it the right to use some degree of physical coercion

or threat thereof to effect it.

Graham, 490 U.S. at 396, 109 S.Ct. at 1871 (citations omitted). The test, in short,

is one of “objective reasonableness,” to be determined from the totality of the

circumstances. O’Toole v. Kalmar, 1990 WL 19542 . . . (N.D.Ill.1990). Because

the governing test is objective, excessive force claims are “susceptible to

summary judgment determinations . . . fewer cases should require a full-blown

trial for resolution.” Id.

Smith v. City of Joliet, 809 F.Supp. 48, 49-50 (N.D. Ill. 1991), aff’d, 965 F.2d 235 (7th Cir. 1992)

(italics added). The uncontroverted evidence in this case shows that the degree of force employed

by Kaser and Kuhny against D.L. on April 15, 2014, was objectively reasonable under the

circumstances of that encounter (or confrontation) and the Defendants are entitled to judgment as

a matter of law on the Plaintiffs’ Fourth Amendment excessive force claim. 

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III. Count VI–Failure to train claim. 

The Defendants’ arguments regarding the Plaintiffs’ failure to train claim rest on the same

premise as their arguments regarding the Plaintiffs’ unreasonable seizure and excessive force

claims, to wit: the claim cannot be maintained since there was no underlying constitutional

violation to support it. As the Defendants state it: “The Complaint states no operative facts with

regard to [St. Joseph County] Sheriff Grzegorek. Count Six of the Complaint states only that the

Sheriff . . . failed to properly train the school resource officers, without identifying what

constitutional provision or federal law was violated.” Defendants’ Brief, p. 16. The Defendants

also argue that “[a]n allegation of a ‘failure to train’ is available only in limited circumstances.

To prevail, Plaintiff must show that the Sheriff’s ‘failure to train [his] employees in a relevant

respect evidences a ‘deliberate indifference’ to the rights of students.” Id., p. 17 (quoting

Cornfield by Lewis v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993)).

The Plaintiffs’ allegations regarding this claim include the following:

Plaintiffs bring this claim pursuant to 42 U.S.C. § 1983 against Defendants,

Sheriff Mike Grzegorek, individually and in his official capacity and Dr. Jerry

Thacker, individually. Said Defendants were charged with training SROs and to

train them on how to preserve and maintain the constitutional rights of those with

whom they came into contact. Said Defendants[’] failure to train SROs on the

rights of students was tantamount to deliberate indifference to the rights of D.L.

and other Penn students and the consequences of the failure to train were patently

obvious. Said Defendant[’]s failure to train resulted in the misconduct perpetrated

by Sgt. [Kaser] and Sgt. Kuhny and thus in the resultant damages to Plaintiffs[.]

Complaint, p. 12, ¶¶ 68-71. In their brief, the Plaintiffs point out that “[i]n regard to any specific

training that might have been provided to Sgt. Kuhny or Sgt. Kaser from Sheriff Grzegorek, both

reported that they [had] received zero [sic] instruction from the Sheriff prior to assuming their

duties as Special Resource Officers within the local schools in regard to physical contact with

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students or any other training relative to dealing with students. This complete lack of any

applicable training could be determined by the trier of fact to equate to a deliberate indifference

to the rights of students and the actions of Sgt. Kaser and Sgt. Kuhny support that this

indifference did result in the deprivation of D.L.’s constitutionally protected rights.” Plaintiffs’

Response, p. 13. Once again, the Plaintiffs’ argument rests on the same faulty premise–the

incorrect legal conclusion that D.L.’s constitutional rights were violated as a result of what they

contend was an unconstitutional seizure and an unconstitutional use of force. Since this is not the

case, the Plaintiffs cannot pursue a failure to train claim.

The Plaintiffs’ failure to train claim against Sheriff Grzegorek is brought pursuant to

Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978). As the Defendants correctly point out, 10

 A housekeeping point is necessary here. In their reply brief, the Defendants state that

10

they “included the Saint Joseph County Commissioners in their Motion for Partial Summary

Judgment, and then forgot to mention them. The argument for Sheriff Grzegorek that no

Monell claim is stated in the Complaint would apply to the County Commissioners as well . . . .”

Defendants’ Reply, p. 2, n. 1. The Defendants then argue that “as a governmental entity, the

Board of County Commissioners is an improper party to this claim[]” since “Indiana sheriffs and

their deputies are not subject to the authority of the county commissioners of the county where

they hold office.” Id. (citing Radcliff v. County of Harrison, 627 N.E.2d 1305, 1306 (Ind. 1994))

(additional citations omitted). It is well established that there is no agency relationship between a

county or its board of commissioners and the sheriff. Delk v. Board of Commissioners of

Delaware Co., 503 N.E.2d 436, 440 (Ind.Ct.App. 1987). For these reasons, the Defendants argue

that “the St. Joseph County [Board of] Commissioners [is] an improper party to respond to the

claims in this case.” Defendants’ Reply, p. 2, n. 1. All of this is true with regard to the Plaintiffs’

federal claims, including their Monell claim, but that does not entitle St. Joseph County to

summary judgment in this case, since the Plaintiffs have not asserted a Monell claim, or any other

federal claim, against the County. The Plaintiffs’ Monell claim is asserted only against Sheriff

Grzegorek and Dr. Thacker (the latter of whom, of course, is no longer a defendant in this case).

The Plaintiffs do not even mention the County in their failure to train count. In fact, in their

Complaint, the Plaintiffs expressly state that “[t]he Saint Joseph County Board of Commissioners

. . . is named as a party herein under respondeat superior for the state law claims against Sheriff

Grzegorek, Sgt. Kuhny, and Sgt. Kaser.” Complaint, p. 2, ¶ 12. Therefore, the claims before the

court now do not implicate the County. The County, then, remains a defendant in this case as to

the Plaintiffs’ state law claims.

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“[t]o establish municipal liability under § 1983 . . . a plaintiff must present sufficient evidence to

show that the constitutional violation resulted from a municipal policy, custom, or practice. . . .

‘Misbehaving employees are responsible for their own conduct; units of local government are

responsible only for their policies rather than misconduct by their workers.’” Defendants’ Brief,

pp. 16-17 (citations omitted). The Plaintiffs “evidence” on this issue consists of one fact and one

legal conclusion, to wit: neither Kaser nor Kuhny received any specific training from the sheriff’s

department prior to serving as SROs, and this lack of training resulted in the deprivation of

D.L.’s constitutional rights. The Plaintiffs’ claim fails since the second element–a root

constitutional deprivation–is not present in this case. As another district court recently noted,

“the Seventh Circuit has stated specifically that ‘there can be no liability under Monell for failure

to train when there has been no violation of the plaintiff’s constitutional rights.’” Harris v. City

of Chicago, 2016 WL 3261522, at *3 (N.D. Ill. June 14, 2016) (quoting Jenkins v. Bartlett, 487

F.3d 482, 492 (7th Cir. 2007)); see also Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504

(7th Cir. 2010) (municipality cannot be liable under Monell for a failure to train when there is no

underlying constitutional violation by an employee); Alexander v. City of South Bend, 433 F.3d

550, 557 (7th Cir. 2006) (same). Since D.L. suffered no constitutional deprivation he cannot

maintain a failure to train claim against Sheriff Grzegorek. 

IV. Remand to state court. 

Given that all of the Plaintiffs’ federal claims must be dismissed, the only basis remaining

for this court’s jurisdiction over the Plaintiffs’ state law claims is federal supplemental

jurisdiction under 28 U.S.C. § 1367. District courts have the discretion to exercise supplemental

jurisdiction, even after all federal claims have been dismissed, or to remand the case to the state

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court in which it originated. Brooks-Albrechtsen v. City of Indianapolis, 2016 WL 3213457 (S.D.

Ind. June 9, 2016). As the court explained in Brooks-Albrechtsen:

[Section 1367] explains that “district courts may decline to exercise supplemental

jurisdiction . . . if . . . the district court has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. 1367(c)(3); Williams Elec. Games, Inc. v.

Garrity, 479 F.3d 904, 906 (7th Cir. 2007) (“subsection (c)(3) expressly

authorizes the district judge to dismiss a supplemental claim when the federal

claims have dropped out of the case”). Further, the Seventh Circuit has noted that

the purpose of supplemental jurisdiction is “economy in litigation” and has

instructed that “if the federal claims drop out before trial, the district court should

relinquish jurisdiction over the state-law claims,” given that federal judicial

resources had not yet been utilized. Id. at 906-07 (emphasis omitted); Hankins v.

Dunkle, 2015 WL 500844, at *6 (S.D. Ind. Feb. 4, 2015).

Id. at * 5; see also Al’s Serv. Ctr. v. BP Prods. N. Am., Inc., 599 F.3d 720, 727 (7th Cir. 2010)

(“[w]hen all federal claims in a suit in federal court are dismissed before trial, the presumption is

that the court will relinquish federal jurisdiction over any supplemental state-law claims.”). This

is so for several reasons, which include the goals of “minimizing federal intrusion into areas of

purely state law,” Khan v. State Oil Co., 93 F.3d 1358, 1366 (7th Cir. 1996), and “respect[ing] . .

. the state’s interest in applying its own law, along with the state court’s greater expertise in

applying state law[.]” Huffman v. Hains, 865 F.2d 920, 923 (7th Cir. 1989). There are exceptions

to this presumption, and a district court might decide to exercise supplemental jurisdiction when,

for example, “significant federal judicial resources have already been expended to decide the

state claims, or when there is no doubt about how those claims should be decided.” RWJ

Management Co. v. BP Products North America, 672 F.3d 476, 481 (7th Cir. 2012) (citations

omitted).

This case has been pending in this court since the Defendants removed it here on

November 21, 2014. Less than nine months later, on August 12, 2015, the Defendants filed the

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present motion for partial summary judgment, which is the only substantive motion the court has

had to address. Briefing on the motion was delayed between the filing date and the completion of

briefing on April 18, 2016, but that was the result of procedural matters and not due to any innate

complexities in the case or other substantive issues. In other words, with the exception of this

Opinion and Order, the court has expended little in the way of judicial time or resources in this

case. Also, the court has not addressed the Plaintiffs’ state law claims at all and so cannot

conclude that their resolution “is absolutely clear.” The state court is better qualified to resolve

the remaining claims and this court therefore declines to exercise its supplemental jurisdiction

over those claims. 

CONCLUSION

For the reasons discussed above, the motion for partial summary judgment filed by

Defendants (DE 23) is GRANTED as to all of the Plaintiffs’ federal claims. The court declines to

exercise its supplemental jurisdiction over the Plaintiffs’ state law claims and REMANDS this

case to the St. Joseph County Superior Court. The Clerk of the Court is directed to effectuate the

remand of this case to the state court.

Date: June 23, 2016.

 /s/ William C. Lee 

William C. Lee, Judge

U.S. District Court

Northern District of Indiana

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