UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

DELLIS MICHAEL BASKIN, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:16-CV-180-TLS

)

CITY OF FORT WAYNE, SERGEANT )

TRENT FARRELL, SERGEANT TODD )

HUGHES, OFFICER TIM HANNON, )

OFFICER DOUGLAS WEAVER, )

OFFICER DAVID TINSLEY, OFFICER )

ANDREW BECK, and OFFICER )

NICOLAS LICHTSINN, )

)

Defendant. )

OPINION AND ORDER

The Plaintiff, Dellis Michael Baskin, has sued the City of Fort Wayne and seven Fort

Wayne Police Department officers alleging various federal and state law violations stemming

from his interactions with police on July 20, 2014, and the state court criminal charges that

followed. This matter is before the Court on what the Plaintiff has titled as a Partial Motion for

Summary Judgment [ECF No. 24], asking for judgment as a matter of law on fewer than all

claims he asserts in this litigation. The Plaintiff believes that it is not necessary for a jury to

decide his claims for false arrest, excessive force while being handcuffed and placed in a squad

car, failure to intervene, or malicious prosecution because he has proven these claims as a matter

of law. The Defendants maintain that they have presented facts to dispute those that the Plaintiff

asserts in support of his Motion, and that these disputes and the accompanying credibility

determinations must be assessed and decided by a jury. 

For the reasons stated in this Opinion and Order, the Court will deny the Plaintiff’s
Motion. On summary judgment, the Court does not examine the credibility of the witnesses or

the weight of the evidence, and must construe all facts and take all reasonable inferences to favor

the nonmoving party. In this case, there are two very different stories of what happened on July

20, 2014, and it will be the jury’s task to determine whose version is accurate.

SUMMARY OF THE FACTS

The Three Rivers Festival took place in Fort Wayne, Indiana, on July 20, 2014. An

increased police presence in the vicinity of the intersection of two downtown streets, Columbia

Street and Harrison Street, was intended to provide crowd control for the mass of people leaving

the bars and beer tents that closed down at 3:00 a.m. Shortly before they closed, police were

called to assist with an individual who was asked to leave a beer tent because he had a gun. A

chaotic scene ensued, which included members of the crowd yelling at the officers and becoming

physically aggressive. The police made an arrest, but the agitated and aggressive behavior of the

crowd continued when the beer tent closed. Officer Hughs, after issuing a warning to disperse or

he would use OC spray (also referred to as pepper spray), directed six short bursts of OC spray

directly into the air. 

After the use of the OC spray, members of the crowd began to make their way toward

their vehicles and homes. Many people were attempting to leave a small area at one time, so

there was heavy foot traffic in the area of Columbia Street and Harrison Street. Columbia Street

was closed to vehicles, but Harrison Street was open to two-way traffic. The Plaintiff was one of

the people in the streets at this time, but he was on a motorcycle. He drove his motorcycle on

Columbia Street to where it created a “T” intersection with Harrison Street. The Plaintiff began

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to engage with the officers, expressing his concern over the use of OC spray. The parties offer

differing accounts of what transpired from this point. According to testimony from the

Defendants, the Plaintiff refused to leave the area despite instructions to do so, and continued to

yell at the officers until he was arrested for obstruction of traffic. In the Plaintiff’s version, he

was not obstructing traffic. The parties also provide differing accounts of the events during and

after the Plaintiff’s arrest. The Defendants describe the Plaintiff as ignoring their instructions and

actively resisting their attempts to place him in the squad car, while the Plaintiff describes natural

and non-threatening responses to aggressive police conduct that unreasonably elicited increased

force. The Court will discuss the specific differences that are relevant to the pending motion in

the analysis section below.

ANALYSIS

Summary judgment is appropriate “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). 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 not appropriate. See Shields Enters., Inc. v. First Chi. Corp., 975 F.2d

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

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A. False Arrest

“Where an arrest occurs without probable cause, the plaintiff may bring a claim for

unreasonable seizure” under § 1983 and the Fourth Amendment. Bentz v. City of Kendallville,

577 F.3d 776, 779 (7th Cir. 2009) (citing A.M. v. Butler, 360 F.3d 787, 798 (7th Cir. 2004); see

also Ienco v. Angarone, 429 F.3d 680, 683 (7th Cir. 2005) (“a false arrest is an unreasonable

seizure prohibited by the Fourth Amendment”). “The existence of probable cause to arrest a

suspect for any offense . . . will defeat a Fourth Amendment false-arrest claim.” Sroga v.

Weiglen, 649 F.3d 604, 608 (7th Cir. 2011); Fernandez v. Perez, 937 F.2d 368, 370 (7th Cir.

1991). Law enforcement officers have probable cause to arrest a suspect when “‘the facts and

circumstances within their knowledge and of which they have reasonably trustworthy

information are sufficient to warrant a prudent person in believing that the suspect had

committed’ an offense.” Mustafa v. City of Chi., 442 F.3d 544, 547 (7th Cir. 2006) (quoting

Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998)). 

On July 20, 2014, Sgt. Farrell arrested the Plaintiff for obstructing traffic. Indiana law on

that date made it an offense to “recklessly, knowingly, or intentionally obstruct[] vehicular or

pedestrian traffic.” Ind. Code § 35-44.1-2-13 (modified 2015). The Plaintiff asserts that Sgt.

Farrell did not have probable cause to arrest him for obstructing traffic. As proof, the Plaintiff

designates Officer Hannon’s testimony that he instructed the Plaintiff to stop to avoid a collision

on Harrison Street. He also offers the testimony of a bystander about her cell phone video which,

he argues, shows that the Plaintiff’s motorcycle was not far enough into Harrison Street to block

any vehicular traffic.

The Plaintiff argues that the bystander’s testimony, the cell phone video, and Officer

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Hannon’s testimony all show that no reasonable jury could find that the Defendants had probable

cause to arrest the Plaintiff for obstructing traffic. This evidence, he argues, proves that he was

not in the way of traffic until he pulled out, but there was no basis to arrest him at that point

because an officer directed him to stop. The Defendants, however, have put forth evidence that

Sgt. Farrell and Officer Hannon instructed the Plaintiff to clear the intersection multiple times

before he finally pulled out onto Harrison Street as if to leave. The Defendant officers who

witnessed this state that the Plaintiff pulled out without looking for oncoming traffic. They admit

that the Plaintiff was told to stop to avoid a collision at that point, but they maintain that Sgt.

Farrell again told the Plaintiff to move on and that he failed to do so despite ample opportunity. 

Sgt. Farrell’s testimony on this point alone would create a genuine issue of material fact.

The Plaintiff asserts that the Court should not credit Sgt. Farrell’s testimony regarding the events

leading up to the arrest because the cell phone video “clearly shows that the motorcycle is not in

the intersection and is sitting several feet short of Harrison.” (Pl.’s Mem. 20, ECF No. 25.)

According to the Plaintiff, the Court would not be making an improper credibility determination

if it disregarded Sgt. Farrell’s account because “[w]hen opposing parties tell two different stories,

one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a

court should not adopt that version of the facts for purposes of ruling on a motion for summary

judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007) (court was not required to accept the

plaintiff’s version of a car chase as benign where it was refuted by videotape of the chase that

“more closely resembled a Hollywood-style car chase of the most frightening sort, placing police

officers and innocent bystanders alike at great risk of serious injury”).

The Plaintiff’s false arrest claim is not amenable to summary resolution. First, the

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Plaintiff presents and interprets all of the evidence in a light most favorable to himself, the

moving party. He ignores the fact that the Defendants have presented evidence that supports a

different version of the events leading up to the Plaintiff’s arrest. This includes not just Sgt.

Farrell’s testimony, but Officer Hannon’s testimony that the Plaintiff was indeed refusing to

move from a position that obstructed traffic on Harrison, despite being told to move and having

ample opportunity to do so. According to this testimony, he was told to stop only when he pulled

further into the street without looking and almost caused a collision with a vehicle. Thereafter, he

again had time to move, but instead chose to stare down the officers. Additionally, the cell phone

video is not as conclusive as the Plaintiff contends. The recording does not even begin until after

the Plaintiff has been placed in handcuffs. The video is not taken from a perspective that

conclusively shows how far the motorcycle extended onto Harrison Street, if at all. While the

Plaintiff has provided an expert’s analysis of the video that supports one interpretation, the

Defendants have also provided expert testimony, which contradicts the Plaintiff’s claim that the

video conclusively disproves Sgt. Farrell’s account. As the dissent in Scott noted, a video may

not tell the whole story and reasonable people can sometimes draw different conclusions from

the same video. 550 U.S. at 395–96 (Stevens, J., dissenting). 

Finally, the Court notes that the parties’ arguments focus exclusively on whether the

Plaintiff’s motorcycle was obstructing vehicular traffic. However, the statute also refers to

pedestrian traffic, and the evidence before the Court is that there was a large crowd on foot trying

to maneuver through the area. It is undisputed that one of the reasons the Defendant officers were

positioned in the area was to keep watch over the flow of traffic. These are factors a jury could

take into account. The probable cause determination must be made by a jury where, as here,

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“there is room for a difference of opinion concerning the facts or the reasonable inferences to be

drawn from them.” Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir. 2008) (quoting Maxwell v.

City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993)); see also Gonzalez v. City of Elgin, 578

F.3d 526, 537 (7th Cir. 2009) (“Only if the underlying facts claimed to support probable cause

are not in dispute may the court decide whether probable cause exists.”). A jury must determine

whether the Plaintiff is entitled to recover on his Fourth Amendment false arrest claim.

B. Excessive Force

The Plaintiff claims that the officers used an unreasonable amount of force when they

handcuffed him and removed him from the motorcycle, and while they were placing him in the

squad car for transport. He claims that the Defendants had no right to touch him and remove him

from the motorcycle because he was not offering any physical resistance. The Plaintiff asserts

that his only reactions during the pat down search were unintentional, and that they did not

warrant Sgt. Farrell’s strikes to his peroneal nerve. Moreover, Sgt. Farrell should have known

that it was those strikes that caused the Plaintiff to be uncooperative in moving his legs, and thus

it was unreasonable to resort to the use of pepper spray. Because it was the use of the spray that

rendered the Plaintiff unable to respond to the Defendant’s orders, Sgt. Todd Hughes acted

unreasonably when he drive stunned the Plaintiff’s right thigh with a taser. The Plaintiff asserts

that Defendants “unreasonably characterized [his] movements as resisting law enforcement,

when a reasonable officer would have recognized that [he] was not resisting and that the

escalation of force was making the issues worse.” (Pl.’s Mem. 24, ECF No. 25.) 

The Defendants’ designated evidence tells a difference story. According to the

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Defendants’ evidence, the Plaintiff was instructed to put his hands behind his back after he failed

to comply with commands to get off of the motorcycle. Then, when Sgt. Farrell and Officer

Hannon handcuffed the Plaintiff, they used proper precautions to ensure their safety and the

safety of bystanders posed by the Plaintiff’s possession of a handgun. Sgt. Farrell denies that he

used any peroneal strikes on the Plaintiff during the pat down. When it came to placing the

Plaintiff in the squad car, the Defendants characterize the Plaintiff’s actions as active resistance.

The Plaintiff refused verbal commands to get in the car, so Sgt. Farrell tried to push on the

Plaintiff’s joints where he would naturally bend when sitting down. Their use of minimal force

only increased when the Plaintiff continued to resist by tensing his muscles, pushing back against

Sgt. Farrell, and kicking at Sgt. Farrell. Moreover, the Plaintiff was given an opportunity to

comply before each use of force, but he continued to resist. 

A claim that a police officer has used excessive force in the course of an arrest,

investigatory stop, or other “seizure” of a citizen is addressed to the reasonableness of the seizure

under the standards established by the Fourth Amendment. Graham v. Connor, 490 U.S. 386,

395 (1989); Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th Cir. 2005). The reasonableness

inquiry involves 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.”

Graham, 490 U.S. at 396 (internal quotation marks omitted). Courts must give “careful attention

to the facts and circumstances of each particular case, 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.” Id. The reasonableness

inquiry must allow for the fact that “police officers are often forced to make split-second

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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. This “reasonableness inquiry

nearly always requires a jury to sift through disputed factual contentions, and to draw inferences

therefrom.” Sallenger v. Oakes, 473 F.3d 731, 742 (7th Cir. 2007) (internal quotation marks

omitted).

In the present case, the material differences between the Plaintiff’s and the Defendants’

versions of events raises issues that render summary judgment an inappropriate litigation tool. As

the Defendants’ note, the disagreement regarding the Plaintiff’s behavior and how the officers

would have reasonably perceived his behavior, creates a dispute as to whether the amount of

force used was reasonable. Indeed, each side has obtained its own expert, and these experts have

arrived at differing conclusions because they focus on different versions of the July 20 events.

The task of ascertaining who is telling the truth, choosing between competing inferences, and

balancing the relative weight of conflicting evidence about the events of July 20, 2014, belongs

to a jury. It is well established that “the district court cannot weigh credibility issues at the

summary judgment stage.” AutoZone, Inc. v. Strick, 543 F.3d 923, 934 (7th Cir. 2008) (quoting

Stuart v. Quaker Oats Co., 978 F.2d 947, 963 (7th Cir. 1992)); Payne v. Pauley, 337 F.3d 767,

770 (7th Cir. 2003) (“As we have said many times, summary judgment cannot be used to resolve

swearing contests between litigants.”). 

The Court has no difficulty concluding that factual disputes and credibility issues

preclude summary judgment on the Plaintiff’s claims for violations of his Fourth Amendment

rights based on the reasonableness of the force used during his detention and arrest. When the

facts are viewed in a light most favorable to the Defendants, as they must be when considering

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the Plaintiff’s Motion, a jury would not be required to find in the Plaintiff’s favor. 

C. Bystander Liability

The Plaintiff has moved for summary judgment on his bystander liability claims against

all of the Defendants who were present at the scene of the arrest: Sgt. Farrell, Officer David

Tinsley, Sgt. Hughes, and Officer Hannon. He maintains that there is no dispute regarding their

proximity to the events in question, or their ability to intervene. The Defendants respond that the

Plaintiff cannot satisfy one of the essential elements of a bystander claim—that an officer

witnessed a violation and failed to intervene despite a realistic opportunity to do so.

In his Reply Brief, the Plaintiff criticizes the Defendants for only substantively addressing

the Plaintiff’s assertions regarding the actions of Sgt. Hannon and Officer Tinsley, but remaining

silent about the actions of Sgt. Farrell and Officer Hughes as they relate to bystander liability.

The Plaintiff argues that because the Defendants did not address the actions of, or make

arguments on behalf of, Sgt. Farrell and Officer Hughes, the Defendants “have waived their

argument on summary judgment and have conceded that Sgt. Farrell and Officer Hughes failed to

intervene in their fellow officers’ unlawful uses of force.” (Pl.’s Reply 9, ECF No. 31.) The

Court does not agree with the Plaintiff’s assessment. 

The Defendants, in fact, did address all the Plaintiff’s bystander claims when they

asserted that there was a dispute as to whether any of the Defendants’ actions, whether witnessed

by another Defendant or not, violated the Plaintiff’s right to be free from the use of excessive

force during an arrest. In light of this dispute, there is a corollary dispute as to whether bystander

liability can be imputed to any of the Defendants. It is an essential element of a bystander liability

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claim that the bystander “had reason to know that a fellow officer was using excessive force or

committing a constitutional violation.” Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009).

Moreover, even in cases where excessive force has already been established, other aspects of a

failure to intervene claim “almost always implicate questions of fact for the jury: ‘Whether an

officer had sufficient time to intervene or was capable of preventing the harm caused by the other

officer is generally an issue for the trier of fact unless, considering all the evidence, a reasonable

jury could not possibly conclude otherwise.’” Abdullahi v. City of Madison, 423 F.3d 763, 774

(7th Cir. 2005) (emphasis omitted) (quoting Lanigan v. Vill. of E. Hazel Crest, Ill., 110 F.3d 467,

478 (7th Cir. 1997)). The crowded and chaotic scene described in this case does nothing to

eliminate the need for a jury to decide the issues that normally accompany a bystander liability

claim.

Although no additional discussion is needed to deny the request for summary judgment,

the Court also clarifies that the Defendants’ response to the Plaintiff’s summary judgment

arguments does not amount to waiver or a concession of liability. While a plaintiff may be

deemed to have abandoned a claim if he fails to set forth any evidence or to develop any

arguments in opposition to a defendant’s summary judgment motion, see, e.g., Palmer v. Marion

Cty., 327 F.3d 588, 597–98 (7th Cir. 2003) (deeming plaintiffs negligence claim abandoned

because he failed to delineate it in his brief to the district court in opposition to summary

judgment), a failure to address the movant’s assertions is not a concession of liability in

situations where the movant would bear the burden of proof at trial. As the party seeking

summary judgment on a claim to which he would bear the burden of proof at trial, the Plaintiff

was required to lay out the elements of the claim, cite the facts which it believes satisfies these

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elements, and demonstrate why the record is so one-sided as to rule out the prospect of a finding

in favor of the non-movant on the claim. See Reserve Supply Corp. v. Owens-Corning Fiberglass

Corp., 971 F.2d 37, 42 (7th Cir. 1992); Celotex Corp. v. Catrett, 477 U.S. 317, 331 (7th Cir.

1986) (“If the moving party will bear the burden of persuasion at trial, that party must support its

motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at

trial.”). Even an unanswered motion for summary judgment cannot be granted unless the movant

has shown that the facts warrant judgment in its favor. Johnson v. Gudmundsson, 35 F.3d 1104,

1112 (7th Cir. 1994). Thus, waiver is not an applicable concept and the Defendants had only to

identify one genuine issue of material fact concerning one element of the Plaintiff’s claim. They

have done so.

D. Malicious Prosecution

The elements of a federal malicious prosecution claim, borrowed from state law, require a

plaintiff to prove that “(1) the defendant ‘instituted or caused to be instituted an action against the

plaintiff; (2) the defendant acted with malice and (3) without probable cause; and (4) the action

‘was terminated in the plaintiff’s favor.’” Katz-Crank v. Haskett, 843 F.3d 641, 649 (7th Cir.

2016) (quoting City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001)). The issues of

fact that remain with respect to probable cause, as identified above, make summary judgment

inappropriate on the malicious prosecution claim. As the Defendants’ note, these disputes

regarding whether the Plaintiff was obstructing traffic also make it impossible to satisfy summary

judgment standard with respect to the malice requirement of a malicious prosecution claim.

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CONCLUSION

For the reasons set forth above, the Court DENIES the Plaintiff’s Partial [sic] Motion for

Summary Judgment [ECF No. 24].

SO ORDERED on October 20, 2017.

 s/ Theresa L. Springmann 

CHIEF JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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