UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

BILLY JOE JOHNSON, )

)

Plaintiff, )

) CAUSE NO. 3:14-CV-2049 PS 

vs. )

)

ALAN WEIGAND, et al., )

)

Defendants. )

OPINION AND ORDER

Billy Joe Johnson, a pro se prisoner, filed a complaint alleging South Bend Police

Officers used excessive force against him during an October 29, 2014, arrest. Johnson

alleges Officer Alan Weigand was dispatched to a local 7-11 convenience store just after

midnight on October 29, 2014. Upon Officer Weigand’s arrival, he noticed Johnson

walking on a sidewalk in front of the store. Officer Weigand pulled his vehicle over, yelled

for Johnson to stop walking, and brandished his weapon. Afraid, Johnson crossed to the

other side of street and then stopped, got on his knees and placed his hands in the air. 

Officer Weigand handcuffed Johnson and had him lie down on his stomach.

K-9 Officer Anthony Dawson then arrived on the scene. Officer Weigand turned

Officer Dawson’s K-9 unit dog loose and it attacked Johnson. Officer Dawson kicked and

punched Johnson while he was handcuffed and lying on the ground. Other officers then

arrived on the scene. They, too, kicked, punched and choked Johnson. Johnson has

brought suit against Officer Weigand, Officer Dawson, the South Bend Police Department

and the City of South Bend.
Pursuant to 28 U.S.C. § 1915A, I must review the merits of this complaint and

dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may

be granted, or seeks monetary relief against a defendant who is immune from such relief. 

 Nevertheless, I must bear in mind 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

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 “core requirement” for an excessive force

claim is that the defendants “used force not in a good-faith effort to maintain or restore

discipline, but maliciously and sadistically to cause harm.” Hendrickson v. Cooper, 589 F.3d

887, 890 (7th Cir. 2009) (internal citation omitted).

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Here, the complaint can be read to allege that Johnson was handcuffed and lying

face down on the ground when Officer Weigand directed a police dog to attack Johnson,

and Officer Dawson, along with other unnamed officers, assaulted Johnson. Giving

Johnson the inferences to which he is entitled at this juncture, he has alleged enough to

proceed further against Officers Weigand and Dawson. Further factual development may

show the officers acted reasonably under the circumstances, but Johnson has alleged

enough at this stage.

Johnson also brings suit against the City of South Bend and the South Bend Police

Department. It appears he is trying to hold these entities liable as the police officers’

employer. However, there is no general respondeat superior liability under 42 U.S.C. § 1983,

and the city cannot be held liable simply by virtue of the fact that it employed the officers

involved in this incident. Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001).

Similarly, Johnson’s claim against the South Bend Police Department cannot be maintained

either. “[T]he Indiana statutory scheme does not grant municipal police departments the

capacity to sue or be sued.” Sow v. Fortville Police Dep’t, 636 F.3d 293, 300 (7th Cir. 2011).

Therefore both the City of South Bend and the South Bend Police Department must be

dismissed. 

What Johnson has not done is identify or attempt to sue any of the unnamed officers.

 Because “public employees are responsible for their own misdeeds” Burks v. Raemisch, 555

F.3d 592, 596 (7th Cir. 2009), Johnson could bring suit against any of the individual

unnamed officers whom he alleges used excessive force against him. Though he has not

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included their names in this complaint, there is no indication that he is unaware of who

was involved in the incident on October 29, 2014. In the event Johnson learns the names

of the unnamed officers whom he alleges engaged in the use of excessive force, he can seek

leave to amend his complaint and add those individuals as defendants. As a practical

matter his case cannot proceed against an unnamed defendant. See Wudtke v. Davel, 128

F.3d 1057, 1060 (7th Cir. 1997) (“[I]t is pointless to include lists of anonymous defendants

in federal court; this type of placeholder does not open the door to relation back under Fed.

R. Civ. P. 15, nor can it otherwise help the plaintiff.”). 

For these reasons, the court: 

(1) GRANTS the plaintiff leave to proceed against Officer Alan Weingard and

Officer Anthony Dawson in their individual capacities for compensatory and punitive

damages for using excessive force during his arrest on October 29, 2014, in violation of the

Fourth Amendment;

(2) DISMISSES all other claims;

(3) DISMISSES the City of South Bend and the South Bend Police Department;

(4) DIRECTS the clerk to transmit the summons and USM-285 for Officer Alan

Weingard and Officer Anthony Dawson to the United States Marshals Service along with

a copy of the complaint and this order;

(5) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d),

to effect service of process on Officer Alan Weingard and Officer Anthony Dawson; and 

(6) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Officer Alan Weingard and

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Officer Anthony Dawson respond, as provided for in the Federal Rules of Civil Procedure

and N.D.IND.L.R. 10-1(b), only to the claims for which the plaintiff has been granted leave

to proceed in this screening order. 

SO ORDERED.

ENTERED: February 2, 2015. s/Philip P. Simon 

Philip P. Simon, Chief Judge

United States District Court

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