UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

ANTHONY CYRIL MARTIN, )

)

Plaintiff, )

) Case No. 1:13-CV-244-JVB

v. )

)

MARK WENTZ, et al., )

)

Defendants. )

OPINION AND ORDER

Anthony Cyril Martin, a pro se prisoner, filed two vague complaints which were stricken.

He has now filed a second amended complaint which the court screens pursuant to 28 U.S.C. §

1915A. “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). Nevertheless, a complaint must

contain sufficient factual matter to “state a claim that is plausible on its face.” Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual

content allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

556). Legal conclusions can provide a complaint’s framework, but unless well-pleaded factual

allegations move the claims from conceivable to plausible, they are insufficient to state a claim.

Id. at 680. “[C]ourts are not bound to accept as true a legal conclusion couched as a factual

allegation.” Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986)

(quotation marks omitted). “[A] plaintiff’s obligation to provide the grounds of his entitlement to

relief requires more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do. Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Id. (quotation marks, citations and footnote omitted). “[I]n considering the

plaintiff’s factual allegations, courts should not accept as adequate abstract recitations of the

elements of a cause of action or conclusory legal statements.” Brooks v. Ross, 578 F.3d 574, 581

(7th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not shown—that the

pleader is entitled to relief.’” Iqbal at 679 (quotation marks and brackets omitted). Thus, “a

plaintiff must do better than putting a few words on paper that, in the hands of an imaginative

reader, might suggest that something has happened to her that might be redressed by the law.”

Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010). 

Martin alleges that on July 23, 2013, he was involved in an auto accident. According to

him, Fort Wayne Police Officers Robert Hollo, Thomas Strausborger, and Derrick DeMorest

caused him to crash his vehicle into a utility pole. He alleges that when he exited his vehicle,

Fort Wayne Police Officers Chris Hoffman,1

 Jason Fuhrman, Charles Taylor, and Todd

Battershell threw him to the ground. He alleges that while on the ground, Fort Wayne Police

Officers Robert Hollo, Derrick DeMorest, Thomas Strausborger, Chris Hoffman, Craig

Fairchild, and Sam Adams kicked and punched him. He alleges that while on the ground, Fort

Wayne Police Officers Todd Battershell, Jason Fuhrman, and Charles Taylor used unnecessary

pressure points. He alleges that while on the ground, Fort Wayne Police Officers Stephanie

Souther and Angela Reed tazed him several times.

1

 Martin did not list Fort Wayne Police Officer Chris Hoffman as a defendant in his amended complaint, but

Martin named him in the body of the complaint and described events which by inference can be read to state a claim.

Therefore Officer Hoffman will be added as a defendant. 

2
The question in Fourth Amendment excessive use of force cases is “whether the officers’

actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them,

without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397

(1989). “The test of reasonableness under the Fourth Amendment is not capable of precise

definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). Rather, the

question is “whether the totality of the circumstances” justifies the officers’ actions. Graham at

396. The “reasonableness” of a particular use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the perfect vision of hindsight. “Not every push

or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” violates the

Fourth Amendment. Id., 396. Martin’s description of his arrest is sketchy and the officers

involved here may well have been justified in using the force that they did. Nevertheless, given

the inferences to which he is entitled at the pleading stage of this proceeding, he has stated a

Fourth Amendment claim for an excessive use of force during his arrest on July 23, 2013, by

Fort Wayne Police Officers Robert Hollo, Thomas Strausborger, Derrick DeMorest, Chris

Hoffman, Jason Fuhrman, Charles Taylor, Todd Battershell, Craig Fairchild, Sam Adams,

Stephanie Souther, and Angela Reed.2

Martin alleges that, after he was taken to the police station for questioning, Fort Wayne

Police Officers Mark Wentz, Todd Battershell, and Thomas Strausborger held him without water

or access to a toilet for four hours. Martin does not allege that he asked for water or that he

suffered any ill effects as a result of this delay. Martin alleges that he asked to use the toilet, but

2

 Though Martin has included Fort Wayne Police Officer Gary Hensler in a list of officers he says used

excessive force against him, the only activity that he alleges that Officer Hensler participated in was searching his

vehicle. This search, which is discussed later in this opinion, does not plausibly allege an excessive use of force and

therefore Martin may not proceed on an excessive use of force claim against him. 

3
he does not say when, nor how long he waited after asking. He alleges that at some point he

urinated on himself because he was unable to wait. Though delaying his access to a toilet had an

unpleasant result, there is no indication that it was objectively unreasonable under the

circumstances. Therefore these events do not give rise to a claim against these officers. 

Martin alleges that, while being interviewed, Officers Wentz and Battershell hit him in

the head. He alleges that Officer Wentz choked him. Martin’s description of his interrogation

provides few details, but given the inferences to which he is entitled at the pleading stage of this

proceeding, he has stated a Fourth Amendment claim for an excessive use of force during his

interrogation on July 23, 2013, by Fort Wayne Police Officers Mark Wentz and Todd

Battershell.3

Martin alleges that Robert Hollo, Thomas Strausborger, Derrick DeMorest, Mark Wentz,

Chris Hoffman, Jason Fuhrman, Charles Taylor, Todd Battershell, Craig Fairchild, Sam Adams,

Stephanie Souther, Angela Reed, Gary Hensler, and the Allen County Sheriff’s Department

denied him medical treatment. He does not explain when or how any of these defendants were

deliberately indifferent to his need for medical care. In medical cases, the question is whether the

defendant was deliberately indifferent to the plaintiff’s serious medical needs. Gutierrez v.

3

 In connection with this claim, Martin alleges that several unknown officers were also involved. “[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.” Wudtke v. Davel, 128 F.3d 1057, 1060

(7th Cir. 1997) (citations omitted). If through discovery or otherwise he is able to learn the names of these defendants,

he may file a motion to amend if he attaches a proposed amended complaint which includes all of the claims against all

of the defendants which he seeks to litigate in this case. See Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999) 

“[W]hen a plaintiff files an amended complaint, the new complaint supersedes all previous complaints and controls the

case from that point forward . . . [b]ecause a plaintiff's new complaint wipes away prior pleadings . . ..” (citation

omitted). See also French v. Wachovia Bank, 574 F.3d 830, 835 (7th Cir. 2009). If Martin files a motion to amend, the

court will determine whether it is appropriate to permit the amendment. But because retaining the unknown defendants

serves no purpose, they will be dismissed. 

Martin also includes reference to unknown defendants in connection with other claims as well. For the same

reasons, they too will be dismissed without further discussion in this opinion. 

4
Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). Deliberate indifference is “something approaching

a total unconcern for [the plaintiff’s] welfare in the face of serious risks, or a conscious, culpable

refusal to prevent harm.” Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992).

[C]onduct is deliberately indifferent when the official has acted in an intentional

or criminally reckless manner, i.e., the defendant must have known that the

plaintiff was at serious risk of being harmed and decided not to do anything to

prevent that harm from occurring even though he could have easily done so.

Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (quotation marks, brackets, and citation

omitted). 

Negligence on the part of an official does not violate the Constitution, and it is not

enough that he or she should have known of a risk. Instead, deliberate

indifference requires evidence that an official actually knew of a substantial risk

of serious harm and consciously disregarded it nonetheless.

Pierson v. Hartley, 391 F.3d 898, 902 (7th Cir. 2004) (citations omitted). It is not enough to

show that a defendant merely failed to act reasonably. Gibbs v. Franklin, 49 F.3d 1206, 1208

(7th Cir. 1995). Here, it is not plausible to infer that any of these defendants were deliberately

indifferent because Martin was taken to the jail where he was seen by a doctor and a nurse. 

Martin alleges that, after he was taken to the jail, Allen County Jail Head Nurse Jennifer

denied him medical treatment by refusing to send him to the hospital and refusing him adequate

medical care. “For a medical professional to be liable for deliberate indifference to an inmate’s

medical needs, he must make a decision that represents such a substantial departure from

accepted professional judgment, practice, or standards, as to demonstrate that the person

responsible actually did not base the decision on such a judgment.” Jackson v. Kotter, 541 F.3d

688, 697 (7th Cir. 2008) (quotation marks and citations omitted). Medical malpractice and

incompetence do not state a claim of deliberate indifference. Walker v. Peters, 233 F.3d 494 (7th

5
Cir. 2000). “Under the Eighth Amendment, [a prisoner] is not entitled to demand specific care.

She is not entitled to the best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir.1997). 

Here, Martin has not provided any factual details from which it can be determined that he has

stated a plausible claim against Head Nurse Jennifer and a “disagreement with medical

professionals [does not] state a cognizable Eighth Amendment Claim under the deliberate

indifference standard of Estelle v. Gamble [429 U.S. 97 (1976)].” Ciarpaglini v. Saini, 352 F.3d

328, 331 (7th Cir. 2003). Martin says that he thought he had a broken bone, but he does not even

say whether his suspicions were later confirmed. Moreover, since Martin was examined by the

Jail Doctor at the same time, he has not provided any basis for finding that the nurse had any

basis for believing that he needed to go to the hospital. 

Martin alleges that the City of Fort Wayne has a policy, procedure, or custom which

violates his Constitutional rights. “To establish a municipal policy or custom, [the plaintiff] must

allege a specific pattern or series of incidents that support the general allegation of a custom or

policy.” Hollins v. City of Milwaukee, 574 F.3d 822, 827 (7th Cir. Wis. 2009). Here, Martin has

neither explained what practice the city has adopted, nor described any pattern of events. Though

he alleges that the City of Fort Wayne failed to train its employees, he has not provided any

factual basis for this claim. “The inadequacy of police training may serve as the basis for § 1983

liability, but only where the failure to train amounts to deliberate indifference to the rights of

persons with whom the police come into contact.” Id. In sum, these allegations are wholly

devoid of any facts or context and they do not plausibly state a claim. 

Martin alleges that Fort Wayne Police Officer Mark Wentz filed a false probable cause

affidavit to obtain a warrant for his arrest for robbery and resisting arrest which mentioned a red

6
SUV with Indiana plate 964LSM even though he knew that there were no reports of a red SUV

having been seen at the robbery. He has not attached the affidavit or the warrant and he makes

no mention of how this false statement was relevant to the charge of resisting arrest. Because he

has not alleged “that the false statements were necessary to the judicial officers’ determinations

that probable case existed,” Beauchamp v. City of Noblesville, 320 F.3d 733, 742 (7th Cir. 2003),

to issue a warrant for resisting arrest, he has not plausibly alleged that the warrant was invalidly

issued or that he was falsely arrested pursuant to it. 

Martin alleges that he was “falsely imprisoned because a 72 hour investigation was

commenced which plaintiff was never read no warrant nor was any formal charges read, or

presented to plaintiff before the allotted time frame. (7-24-13 [to] 7-29-13).” DE 12 at 7.

However, this does not state a plausible claim. The dates provided by Martin imply that he was

held for five days before he was charged, but Indiana Code 35-33-7-3(b) provides that “If the

prosecuting attorney states that more time is required to evaluate the case and determine whether

a charge should be filed, or if it is necessary to transfer the person to another court, then the court

shall recess or continue the initial hearing for up to seventy-two (72) hours, excluding

intervening Saturdays, Sundays, and legal holidays.” Here, July 27, 2013, was Saturday and July

28, 2013, was Sunday. Martin does not say when he was arrested on July 24, 2013. He does not

say what time his initial hearing was held. He does not say what time the hearing was continued

to on July 29, 2013. The Supreme Court has held that “an individual subjected to a warrantless

arrest must receive a probable cause determination within forty-eight hours of the arrest. See

Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991). [But t]he Court did not hold that an

individual must be charged with a crime within that same forty-eight hour period.” Holloway v.

7
Del. County Sheriff, 700 F.3d 1063 (7th Cir. 2012) (parallel citations omitted). Here, Martin

acknowledges that he was arrested pursuant to a warrant. For the foregoing reasons, he has not

alleged facts which permit the court to plausibly infer that any defendant falsely imprisoned him

in violation of his Constitutional rights. 

Finally, Martin alleges that Fort Wayne Police Officers Robert Hollo, Thomas

Strausborger, Derrick DeMorest, Gary Hensler, and Charles Taylor searched his car. Martin

makes the conclusory allegation that the search was illegal, but he has not provided any factual

basis from which it can be plausibly inferred that the search was illegal. “[A]n automobile search

incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching

distance of the vehicle during the search, or (2) if the police have reason to believe that the

vehicle contains evidence relevant to the crime of arrest.” Davis v. United States, 131 S. Ct. 2419

(2011) (quotation marks omitted). Here, Martin does not say what was searched for nor what (if

anything) was found. He does not say whether the search occurred while he was within reaching

distance of the car. He does not explain why he believes that the search was not related to the

crime(s) of his arrest. Therefore he has not stated a claim for an illegal search of his car incident

to his arrest. 

For the foregoing reasons, the Court:

(1) DIRECTS the clerk to add Fort Wayne Police Officer Chris Hoffman as a

defendant;

(2) GRANTS Anthony Cyril Martin leave to proceed on a Fourth Amendment claim

for an excessive use of force during his arrest on July 23, 2013, against Fort

Wayne Police Officers Robert Hollo, Thomas Strausborger, Derrick DeMorest,

8
Chris Hoffman, Jason Fuhrman, Charles Taylor, Todd Battershell, Craig

Fairchild, Sam Adams, Stephanie Souther and Angela Reed;

(3) GRANTS Anthony Cyril Martin leave to proceed on a Fourth Amendment claim

for an excessive use of force during his interrogation on July 23, 2013, against

Fort Wayne Police Officers Mark Wentz and Todd Battershell;

(4) DISMISSES all other claims; 

(5) DISMISSES the City of Fort Wayne, Allen County Sheriff’s Department, Fort

Wayne Police Officer Gary Hensler, Unknown Allen County Correctional

Officers, Unknown Allen County Jail Doctor, Unknown Allen County Jail Nurse,

and Unknown Allen County Correctional Sargeant; 

(6) DIRECTS the clerk to transmit the summons and USM-285 for Robert Hollo,

Thomas Strausborger, Derrick DeMorest, Chris Hoffman, Jason Fuhrman,

Charles Taylor, Todd Battershell, Craig Fairchild, Sam Adams, Stephanie

Souther, Angela Reed, and Mark Wentz to the United States Marshals Service

along with a copy of the complaint (DE 12) and this order; 

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

to effect service of process on Robert Hollo, Thomas Strausborger, Derrick

DeMorest, Chris Hoffman, Jason Fuhrman, Charles Taylor, Todd Battershell,

Craig Fairchild, Sam Adams, Stephanie Souther, Angela Reed, and Mark Wentz;

and 

(8) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Robert Hollo, Thomas

Strausborger, Derrick DeMorest, Chris Hoffman, Jason Fuhrman, Charles Taylor,

9
Todd Battershell, Craig Fairchild, Sam Adams, Stephanie Souther, Angela Reed,

and Mark Wentz 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 on June 4, 2014.

 S/ Joseph S. Van Bokkelen 

JOSEPH S. VAN BOKKELEN

UNITED STATES DISTRICT JUDGE

10