UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

WENDELL MANUEL, )

)

Plaintiff )

)

v. ) CAUSE NO. 3:15-CV-307 RLM

)

CITY OF ELKHART, et al., )

)

Defendants )

OPINION AND ORDER

Wendell Manuel was injured when two Elkhart police officers tried to

restrain and arrest him. He brought an excessive force claim against the officers

under 42 U.S.C. § 1983 and a state law battery claim against the officers and the

City of Elkhart, alleging that the City was liable for the officers’ actions under a

respondeat superior theory. The defendants moved for summary judgment and the

court heard arguments on defendants’ motion on January 11. For the following

reasons, the court grants the defendants’ motion 

I. STANDARD OF REVIEW

Summary judgment is appropriate when there are no genuine issues of

material fact and that the movant is entitled to judgment as a matter of law. Fed.

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

Ins. Co. v. Hansen, 632 F.3d 388, 391-92 (7th Cir. 2011). The court construes the

evidence and all inferences that reasonably can be drawn from the evidence in the

light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The moving party bears the burden of informing the court

of the basis for its motion and identifying the parts of the record that demonstrate

the absence of any genuine issue of material fact. Celotex Corp. V. Catrett, 477

U.S. at 323. It can meet that burden by showing that there’s no evidence to

support the non-moving party’s case. Id. at 325. Once the moving party has met

its burden, the opposing party can’t rest upon the allegations in the pleadings,

but must “point to evidence that can be put in admissible form at trial, and that,

if believed by the fact-finder, could support judgment in his favor.” Marr v. Bank

of America, N,A., 662 F.3d 963, 966 (7th Cir. 2011); see also Hastings Mut. Ins.

Co. v. LaFollette, No. 1:07-cv-1085, 2009 WL 348769, at *2 (S.D. Ind. Feb. 6,

2009) (“It is not the duty of the court to scour the record in search of evidence to

defeat a motion for summary judgment; rather, the nonmoving party bears the

responsibility of identifying the evidence upon which he relies.”); Hammel v. Eau

Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (summary judgment is

“not a dress rehearsal or practice run; it 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 events”). 

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II. BACKGROUND

The evidence submitted in support of, and opposition to, the defendants’

motion for summary judgment was minimal, making it difficult to ascertain what

actually happened. But the following facts appear to be undisputed. 

Wendell Manual was staying with his friend, Nicole Williams, when they got

in an argument that culminated in Ms. Williams calling the police. When Officers

Ryan Weis and Jacqueline Davis arrived at the scene, Ms. Williams told them that

Mr. Manuel had “punched her in the eye” and that she wanted him out of her

house. The officers entered the house, asked Mr. Manuel to leave, and offered to

take him wherever he wanted to go. Mr. Manual refused, became increasingly

agitated and confrontational with the officers and Ms. Williams, and ignored

Officer Weis’s directives to sit down and stay “out of [his] face”. The parties

disagree about what happened next. 

Ms. Williams says that Mr. Manuel became aggressive toward the officers,

who told him he was under arrest, pushed him up against the wall, and tried to

put his arms behind his back. Ms. Williams says she told the officers that his left

arm wouldn’t bend because he had “cerebral palsy in that arm”, so the officers

stopped trying to force Mr. Manuel’s arms together, but held them in place while

they considered what to do next. It was at that point, according to Ms. Williams,

that Mr. Manuel began to resist. Ms. Williams says Mr. Manual’s arm broke when

he tried to pull away from the officers.

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Relying solely on his responses to interrogatories propounded by the

defendants, Mr. Manuel asserts that: 

• “[He] told the officers that he was retiring to his bedroom,” and was

walking toward his bedroom when Officer Weis, “without reasonable cause,

pushed [him] so forcefully that [he] was propelled forward and made to catch

himself from falling”; 

• Officer Davis “violently grabbed [his] right arm which, due to a congenital

abnormality, is smaller than [his] left and allows for only a limited range of

movement”, and “bent and contorted [it] in such a way to cause the fracture”; and

• “It is visibly apparent to a reasonable officer that [his] right are is

disabled.”

The defendants moved for summary judgment, contending that the force

used by the officers was objectively reasonable under the circumstances, that the

officers are entitled to qualified immunity, and that Mr. Manuel hasn’t established

a viable claim against the City under § 1983.1

1 The defendants misconstrue the nature of plaintiff’s claim against the City. Mr.

Manuel alleges that the City is liable for the battery, not the constitutional violation.

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III. DISCUSSION

A. Section 1983 Claim

The Fourth Amendment’s reasonableness standard governs the evaluation

of Mr. Manuel’s claim that the officers used excessive force. Graham v. Connor,

490 U.S. 386, 395 (1989); Stainback v. Dixon, 569 F.3d 767, 771 (7th Cir. 2009).

Whether the force used was objectively reasonable depends upon the totality of the

circumstances as viewed “from the perspective of a reasonable officer on the

scene”, including “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.” Graham v. Connor, 490

U.S. at 396. See also Thompson v. City of Indianapolis, F.Supp.3d , 2016 WL

5253198, at * 4 (S.D. Ind. Sep. 22, 2016); Abbott v. Sangamon County, Ill., 705

F.3d 706, 724 (7th Cir. 2013). Courts must allow “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.” Graham v. Conner, 490 U.S. at 395.

Mr. Manual claims that the officers used excessive force when they pushed

him “forcefully” and “violently grabbed” his right arm and “bent and contorted [it]

in such a way to cause the fracture.” He asserts that his impairment or

“congenital abnormality” (the size of his right arm) was “visibly apparent”, and

that the officers failed to take it into consideration and to accommodate his

impairment when they forced his arms behind his back. The defendants contend

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that the officers weren’t aware of Mr. Manuel’s impairment when they initiated the

contact, that they stopped trying to force his arms together as soon as Ms.

Williams told them about the arm, that Mr. Manuel’s arm broke when he tried to

resist and break free from the officers, and that the amount of force they used was

objectively reasonable under the circumstances. The court agrees.

 A dispute exists as to whether the officers could see a size disparity between

Mr. Manuel’s arms. Ms. Williams testified that he was wearing long sleeves that

night and that Mr. Manuel’s impairment wasn’t noticeable; Mr. Manuel opines

that it was “visibly apparent to a reasonable officer.” For summary judgment

purposes, the court must accept as true Mr. Manuel’s assertion that his

impairment was visible. But seeing that one arm is smaller than the other isn’t the

same as knowing that the arm is more likely to fracture than most arms, and “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 at 773; see also Tibbs v. City of Chicago, 469 F.3d 661, 666 (7th Cir.

2006); Estate of Phillips v. City of Milwaukee, 123 F3d 586, 594 (7th Cir. 1997). 

Mr. Manuel was suspected of a violent crime (battery), posed a threat to the

safety of Ms. Williams, as well as the officers, and was resisting arrest when his

arm broke. Under the circumstances, no reasonable juror could find that the

officers’ actions were objectively unreasonable as a matter of law. Summary

judgment is appropriate on Mr. Manuel’s § 1983 claim.

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B. Battery Claim

Mr. Manuel also brought a claim for battery against the officers, and against

the city on a theory of respondeat superior. The court generally would relinquish

jurisdiction over supplemental state law claims rather than resolving them on the

merits, when all federal claims have been resolved before trial. 28 U.S.C. §

1367(c)(3); Al’s Service Center v. BP Products North America, Inc., 599 F.3d 720,

727 (7th Cir. 2010); Wright v. Associated Ins. Cos., Inc., 29 F.3d 1244, 1251 (7th

Cir. 1994). “This rule, however, is subject to three recognized exceptions: when the

refilling of the state claims is barred by the statute of limitations; where

substantial judicial resources have already been expended on the state claims;

and when it is clearly apparent how the state claim is to be decided.” Williams v.

Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007). The latter exception applies in this

case.

“Under Indiana law, a police officer may use only the force that is

reasonable and necessary for effecting an arrest. Ind. Code § 35-41-3-3(b).”

Thompson v. City of Indianapolis, F.Supp.3d , 2016 WL 5253198, at * 6 (S.D.

Ind. Sep. 22, 2016). If an officer uses “unnecessary or excessive force, the officer

may commit the tort of assault and battery.” Id. The state standard “effectively

parallels the federal standard” applied to Mr. Manuel’s § 1983 claim, id.; see also

Fidler v. City of Indianapolis, 428 F.Supp.2d 857, 866 (S.D. Ind. 2006), and the

court has already determined that the nature and extend of the force used to

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restrain Mr. Manuel can’t be found to be objectively unreasonable under the

circumstances. Mr. Manual’s battery claim fails for the same reasons.

IV. CONCLUSION

 For the foregoing reasons, the defendants’ motion for summary judgment 

[Doc. No. 38] is GRANTED, the March 6, 2017 final pretrial conference and April

4 trial dates are VACATED, and the motions to extend the pretrial order deadline

[Doc. Nos. 48 and 49] are DENIED as moot. The Clerk is directed to enter

judgment accordingly.

SO ORDERED.

ENTERED: March 1, 2017 

 /s/ Robert L. Miller, Jr. 

Judge

United States District Court

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