1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

GEOFFREY FULTON ) 

 ) 

Plaintiff, ) 

 ) 

v. ) CASE NUMBER: 1:16 CV 010 

 ) 

STARKE COUNTY SHERIFF BILL DULIN ) 

AND OFFICER KYLE HINDS ) 

 ) 

Defendant. ) 

 ) 

OPINION AND ORDER 

 In this excessive force action against the Starke County Sheriff and the arresting officer, 

Kyle Hinds (“Hinds”), Plaintiff, Geoffrey Fulton (“Fulton”) challenges the use of a taser during 

the course of a traffic stop as well as force he claims was used after he was in handcuffs. Before 

the court are a slew of motions from the parties including: Defendants’ Motion for Summary 

Judgment [DE 69], Plaintiff’s Motion to Strike [DE 74], Defendants’ Motion to Strike Pages 4 

and 5 of Plaintiff’s Exhibit 5 [DE 78], Plaintiff’s Motion to File Supplemental Exhibits [DE 82] 

and Plaintiff’s Motion to Withdraw Admission [DE 83]. For the following reasons, Defendants’ 

Motion for Summary Judgment will be DENIED; Plaintiff’s Motion to Strike will be DENIED; 

Plaintiff’s Motion to File Supplemental Exhibits and Motion to Withdraw Admissions will be 

GRANTED; and Defendants’ Motion to Strike will be DENIED as MOOT. 

I. PROCEDURAL and FACTUAL BACKGROUND 

 Fulton filed the present action asserting an excessive force claim pursuant to 42 U.S.C. 

§1983 against Hinds in his individual capacity, a claim against Starke County Sheriff Bill Dulin 

(“the Sheriff”) for failure to train under 42 U.S.C.§1983, a state law battery claim against the 
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Sheriff under the theory of respondeat superior, and an official capacity state law claim against 

the Sheriff for failure to provide adequate jail medical care. These claims arise from the events 

surrounding Fulton’s arrest by Hinds on January 2, 2015 while Hinds was employed as a part-time 

deputy for the Starke County Sheriff’s Department (“the Department”). 

 On September 27, 2017, Fulton dismissed his 42 U.S.C. §1983 claim against the Sheriff 

for failure to train. This dismissal leaves the §1983 claim against Hinds, and the state law claims 

against the Sheriff as the sole remaining claims in the action. However, the present Motion for 

Summary Judgment addresses only the substantive claims against Hinds, the state law battery 

claim against the Sheriff, and the timeliness of the tort claim notice for the state law claims against 

the Sheriff. With this clarification the court turns first to the issues involving the timeliness of 

Fulton’s tort claim notice. 

A. Timeliness of the Tort Claim Notice 

As noted above, the events at issue in this case took place on January 2, 2015. Additional, 

events in Fulton’s Second Amended Complaint relating to his medical treatment at the jail took 

place on January 3-4, 2015. Pursuant to the Indiana Tort Claims Act, IC 34-13-3-1 et seq

(“ITCA”), a tort claims notice must be filed within 180 days, which all parties agree would have 

been July 1, 2015. The Complaint, Amended Complaint, and the Second Amended Complaint all 

represent that the tort claims notice was submitted on July 10, 2015 (DE 1, ¶4; DE 28, ¶5; DE 51 

¶5). This date is approximately 189 days from the date of the excessive force claims and 187 days 

from the date of his claims of inadequate medical care. The tort claims notice was also attached 

to all of the Complaints and bears the date June 30, 2015. However, in response to the Sheriff’s 

Request for Admission, Plaintiff admitted the notice was submitted on July 10, 2015. (Dfdt’s Exh. 

K, ¶1). 
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In response to the Defendants’ Motion for Summary Judgment relating to the notice’s 

timeliness, Plaintiff filed Exhibits 4 and 5 which are the tort claims notice itself as well as certified 

mail receipts. (Pltf’s Exhs. 4 and 5). Both of these documents bear the date of June 30, 2015. 

These exhibits spawned the filing of Defendants’ Motion to Strike [DE 78] arguing that Plaintiff 

cannot contradict his prior admission with these documents as Fed.R.Civ.P. 36(b) deems the fact 

“conclusively established.” In turn, this sparked Plaintiff’s Motion to Withdraw that admission 

(DE 83) and his Motion to File Supplemental Exhibits (DE 82) which include the certified mail 

receipts showing a mailing date of June 30, 2015. 

This is much ado about very little in the grand scheme of this case. Pursuant to 

Fed.R.Civ.P. 36(b): 

(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted 

under this rule is conclusively established unless the court, on motion, permits the 

admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit 

withdrawal or amendment if it would promote the presentation of the merits of the 

action and if the court is not persuaded that it would prejudice the requesting party 

in maintaining or defending the action on the merits. 

In its eighteen page opposition brief to Plaintiff’s Motion, Defendants argue that Plaintiff has not 

demonstrated good cause for the withdrawal, has waived its objection to the admission since 

discovery is closed, and they are prejudiced by learning that the tort claim notice was, in fact, 

timely filed. 

The Court begins first with the prejudice component. If “it is evident from the nature of 

the case that [the] merits [of the admission] are contested”, the court will not allow the admission 

to stand absent evidence of prejudice to the opposing party. Chima v. Hadady Corp., No. 2:10 CV 

339, 2012 WL 2192165, at *1–2 (N.D. Ind. June 14, 2012 (quoting Szatanek v. McDonnell 

Douglas Corporation, 109 F.R.D. 37, 40 (W.D.N.Y.1985)). An admission will aid the merits of 
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the case when it bears on a prima facie element. Moreover, the prejudice contemplated by the rule 

“relates to the difficulty a party may face in proving his case” because of the sudden need to obtain 

evidence required to prove the matter that had been admitted. Id. (quoting Gutting v. Falstaff 

Brewing Corporation, 710 F.2d 1309, 1314 (8th Cir.1983)). However, “[h]aving to prove one's 

case on the merits is not the type of prejudice that satisfies Rule 36(b).” Wells v. EMF Corp., 757 

F. Supp. 2d 796-97 (N.D. Ind. 2010) (quoting Van Hoose v. Nucor Corp., No. 1:06-cv-01565, 

2007 WL 2898697, at *1 (S.D. Ind. Apr. 13, 2007)). 

Here it is clear that the merits of the admission are contested. Plaintiff has certified mail 

documents disputing the admission that he filed the notice on July 10, 2015. These documents 

show the timely submission of a tort claims notice and the green certified mail cards show that an 

agent of the Sheriff signed them, acknowledging receipt, on July 2, 2015. (Pltf’s Exh. B to DE 83, 

at p. 4). Counsel also submitted an affidavit with his motion in which he certifies that he signed, 

reviewed, and mailed the notice on June 30, 2015. (Pltf’s Exh. C to DE 83). Plaintiff’s counsel 

further acknowledges that when reviewing the Requests for Admission, the reviewing attorney 

relied upon the scrivener’s error in the Complaint and thus, did not catch the error in the date. 

As a general matter, the Court is puzzled as to how this case has proceeded for two years 

without recognition from either side as to whether the tort claims notice was timely. While the 

Defendants squarely place all the blame on the Plaintiff, there are clear signs that should have put 

the Defendants on notice that the dates were incorrect, namely the fact that the green cards are 

signed by Defendants’ own agent on July 2, 2015 and not sometime after July 10. Rather, it 

appears that the Defendants either excuse their own lack of diligence or were lying in wait for 
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discovery to close to spring the admission on the Plaintiff in hopes of a blindside victory.1 While 

the Court certainly does not condone Plaintiff’s counsel’s inattention in allowing this case to 

proceed all the way to summary judgment before it recognized and corrected the error, this Court 

is hard-pressed to punish Fulton on the merits of his state law claims due to the shortcomings of 

all the lawyers in this case. 

This said, Defendants argue that they “have foregone significant discovery in reliance upon 

Plaintiff’s affirmative admission” and, in addition, “[d]efendants sought no discovery from the 

Jail’s third-party medical provider related to Plaintiff’s jail medical claim.” (Response, p. 11). 

Defendants further assert that they became aware during discovery of an amputation to Plaintiff’s 

toe which Plaintiff believed “was caused by the Jail’s alleged failure to properly care for Plaintiff’s 

diabetes while Plaintiff was incarcerated” and “but for Plaintiff’s affirmative admission, 

Defendants would have pursued this information from Plaintiff, deposed Plaintiff’s surgeon and 

any other doctor who treated Plaintiff...” (Response, pp. 11-12). Finally, Defendants state that 

“witnesses key to the Sheriff’s Department’s defense are no longer available” as they are no longer 

employed by the Sheriff’s Department and they have no information on the individual’s 

whereabouts. Thus, they assert that reopening discovery will result in substantial additional 

litigation costs, medical depositions and an independent medical examination, further prejudicing 

them. 

Unfortunately, the only true prejudice that the Defendants have demonstrated is being 

deprived of a swift and premature victory on a technicality. Defendants do not deny that they had 

notice of the Plaintiff’s claims or that they had the tort claims notice attached to the Complaints. 

                                                            

1 All of this time and expense is easily avoided where counsel, in the interest of collegiality, make a single 

phone call and resolve the dispute. Instead, the Court had to resolve 3 motions and a combined fifty 

pages of briefing over an issue which at the end of the day is a non-issue.
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They also do not deny receiving notice of the Tort Claim on July 2, 2015. Essentially, all of 

Defendants’ claims of prejudice above can be cured with the reopening of discovery. Although 

several witnesses may be no longer available, there is no allegation that these witnesses would be 

the sole witnesses and the only evidence available for the Defendants to defend the claims against 

them. Nevertheless, Defendants contend they have relied on the admission in prosecuting their 

case, including in filing their summary judgment motion. But as noted, having to defend the case 

on the merits is not the type of prejudice that satisfies Rule 36(b). Nor is the expense of preparing 

the motion for summary judgment. And, the additional discovery Defendants will need to conduct 

will be limited to the state law claims. 

In contrast, the prejudice to the Plaintiff in not being able to pursue his claim on the merits 

is great. Under the circumstances here, permitting withdrawal “would promote the presentation 

of the merits of the action” and will not unfairly prejudice the Defendants. For this reason, the 

Plaintiffs’ Motion to Withdraw Admission [DE 83] is GRANTED; the Motion to File 

Supplemental Exhibits [DE 82] is GRANTED; the Defendants’ Motion to Strike Exhibits [DE 78] 

is DENIED as MOOT. 

With this issue resolved, we turn to the facts relevant to the Defendants’ Motion for 

Summary Judgment.

B. Fulton’s Arrest2

 On January 2, 2015, Hinds arrested Fulton for Resisting Law Enforcement by flight. Hinds 

was a full-time officer with the Town of Hamlet Police and a part-time deputy for the Department. 

On January 2, Hinds was on duty for the Department. Fulton is a 62 year old bail bondsmen and 

                                                            

2 The facts of what occurred at the scene of the traffic stop are largely disputed. Where disputed facts 

exist, they are set forth as disputed but, as is required on summary judgment, the facts are interpreted 

favorably to the non-movant. 
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a former member of law enforcement in California and Indiana. Fulton is also an insulin dependent 

Type 1 diabetic and has a service animal, Rascal, certified by the American Diabetes Association. 

Fulton was traveling with Rascal at the time of these events. 

 At 9:40 p.m. on January 2, 2015, Hinds was sitting at an accident scene in a marked patrol 

vehicle on the northbound shoulder of US 35 with his emergency lights activated. A vehicle, later 

determined to be driven by Fulton, passed Hinds northbound without moving over or slowing 

down. Hinds’ partially closed squad car door rattled and his car shook as Fulton’s vehicle passed 

which made him notice the vehicle. Given the failure of the vehicle to slow or move over, Hinds 

considered this a disregard for officer safety and pulled out onto northbound US 35, turned his 

siren on, and attempted to initiate a traffic stop on Fulton. After Fulton did not immediately pull 

over and Hinds followed the vehicle for some distance – the facts suggest 1⁄2 to 3⁄4 of a mile. (Exh. 

10, at 77, 99). Hinds radioed dispatch and indicated he was in a low speed pursuit. The pursuit 

did not exceed the speed limit and ended after 38 seconds when Fulton eventually pulled over. 

The Department and local law enforcement utilize the same dispatch. Hamlet Police Chief 

Frank Lonigro (“Lonigro”) heard the dispatch, activated his lights and siren and responded as back 

up to Hinds. When Lonigro activated his lights and siren, his dashcam also activated. The 

complete dashcam video has been submitted to the court as well as a second video once Fulton 

was in custody of the events transpiring during Fulton’s transport. (See Defendants’ Exhibits A 

and C submitted with their Motion for Summary Judgment). 

Hinds trailed Fulton for some distance after radioing dispatch without Fulton pulling over 

his vehicle. Eventually, Fulton pulled over near the top of an overpass on northbound US 35, but 

did not place his vehicle into the parked position. Hinds, having noticed that the vehicle was not 

in park, proceeded with caution as he considered the failure to put the vehicle in park a continued 
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defiance of his lawful authority. Hinds remained at his patrol vehicle and ordered Fulton to place 

his hands outside the window. Fulton rolled his window down partially but the window was frozen 

and would not immediately roll down all the way. Hinds, not realizing the window was stuck, 

believed Fulton was willfully refusing to follow his command to place his hands out of the window 

as ordered. Hinds then unholstered his firearm and radioed dispatch that Fulton was ignoring 

officer commands. After repeated commands, Fulton’s window was fully down and his hands 

were outside the window. 

 It is at this point that the dashcam from Lonigro’s vehicle shows him arriving at the scene 

and parking his patrol vehicle beside Hinds’s vehicle. In their briefing, both sides take great 

liberties in their assessment of what the dashcam video shows or does not show and what can be 

heard to transpire on the video. 

What can be readily discerned from the dashcam video shows Hinds at his squad car with 

his firearm drawn and Fulton inside his vehicle with his hands outside the window as Lonigro 

approaches the scene, stops his vehicle and exits. (Exh. A, file ending in 22.27.23 beginning at 

2:53). Hinds can be heard yelling commands to Fulton outside Lonigro’s vehicle although not all 

the commands are clearly discernible since the recording takes place from inside the vehicle. At 

2:55, Hinds is heard yelling to Fulton “with your right hand put the car in park and then put your 

hands outside the window.” At 3:14, Hinds demands Fulton open the car door from the outside. 

Fulton can be heard shouting “I have a dog in the car” as well as something else. Hinds then again 

demands he open his car door from the outside using one of his hands and then to remove his 

seatbelt with one hand. Hinds stated that Fulton brought both hands inside the vehicle to remove 

his seat belt and Hinds can be heard yelling “one hand.” (Exh. A, file ending in 22.27.43 at 3:31). 

According to Fulton, because the car was a console shift Camaro, he needed two hands to engage 
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the brake, put his car in park, and remove his seatbelt. Thus, it does not appear he disputes bringing 

both hands inside the vehicle briefly. 

 Fulton is then asked to exit the vehicle with his hands in the air. He does so, although 

Hinds reminds him twice to keep his hands higher in the air. (Id. at 3:35). Hinds instructs Fulton 

to turn his back to him and begin walking backward toward the sound of his voice. Again, Fulton 

complies. At this point, Fulton leaves the view of the dashcam. However, Hinds can still be heard 

yelling commands, albeit they are very difficult to understand. Beginning at 3:50 of the video, 

Hinds can be clearly heard yelling 4 or more times for Fulton to get on his knees. At some point 

during all of these events, Fulton admits (although he contradicts it later in his deposition 

testimony) that he told Hinds he “may” have a firearm in the vehicle. (Exh. A, file 23.07.43 at 

2:26: “I told him I could possibly have a gun in the car.”). From 4:00 onward in the video, the 

audio is inaudible and the exchange between the officers and Fulton is unable to be discerned. 

Likewise, the actual employment of the taser is neither seen on the video nor is there any clear 

audio of that event. 

 That said, according to Hinds, once Fulton was not observing the command to get on his 

knees, he holstered his firearm and drew his taser. Lonigro testified he provided a warning to 

Fulton that if he did not get down on his knees, Hinds would employ a taser. This warning is not 

readily heard on the video. The parties then seem to agree that Hinds deployed a single cycle of 

his taser on Fulton, Fulton fell to the ground and officers Hinds and Lonigro handcuffed him. It 

is not clear exactly where the taser hit Fulton. Fulton testified he did not recall falling to the ground 

after he was tased. (Exh. M at p. 83). It is undisputed that Fulton did not resist the officer’s 

attempts to handcuff him after he was tased. The parties are also in agreement that prior to 

employing the taser, Fulton was not in handcuffs or otherwise subdued by the officers. 
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 It is at this point that the parties’ versions of the arrest vary considerably. According to 

Hinds, once Fulton was handcuffed and searched, Hinds found a folding pocket knife and Fulton’s 

diabetic insulin pump in his possession. (Exh. M at 282; Exh. M-15 photo of knife). Hinds 

inquired if Fulton was having a diabetic incident, and called for an ambulance. Fulton responded 

that he felt fine. (DE 70-13 at p. 8). Hinds also called for a tow truck and performed an inventory 

search of the vehicle. Fulton remained on the ground handcuffed during this time. Hinds did not 

locate a weapon in the vehicle. 

 Fulton has a separate account of the events surrounding his handcuffing and arrest. 

According to Fulton, when he was handcuffed and face-down on the ground, Hinds began the 

inventory search of his vehicle. Fulton testified that he yelled to Rascal to remain calm as the dog 

was still in the backseat of the vehicle. Fulton further indicates that Hinds located his cell phone 

in his car, noticed that it was recording and the screen read “save or delete?” He testified that 

Hinds questioned him about the recording and then Hinds intentionally deleted the recording. 

Fulton testified that Hinds repeatedly asked him about the location of the gun in the vehicle 

while he was doing the inventory search. In Fulton’s words: 

Officer Hinds, while I was handcuffed with my hands behind my back, laying flat 

on the ground in front of the Starke County Patrol car, pulled my hair and head up 

and said ‘I am going to punt your head across the road unless you tell me where 

your secret gun compartment is.’ 

(Exh. M at p. 76). Fulton further testified in his deposition that when he was asked about the gun 

by Hinds, he told him “I don’t have a gun.” (Id. at 79). However, this testimony is in direct 

conflict with the statement Fulton made to Officer Lonigro in the squad car at the scene of the 

events that is recorded in the in-camera video. Despite this inconsistency, Fulton testified in his 

deposition that Hinds kneed him in his right eye when he pulled his hair and head up, shattering 
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his glasses and causing his eye to bleed. (Id. at 90: “He raised my head up and kneed me with 

his right knee to my right eye.”; Id. at 92-94: “He broke my safety glasses...”). Fulton has no 

recollection as to why the ambulance was called. 

 That said, upon its arrival, it appears the ambulance checked Fulton’s blood sugar using a 

glucometer and it was in a range normal for Fulton. (DE 70-13 at p. 12). However, because a 

taser was employed, Starke County Sheriff advised Hinds that Fulton should be cleared by the 

hospital before transported to the jail. At that point, Fulton was taken to Lonigro’s squad car for 

transport. He did not require separate ambulance transport to the hospital. 

As for Rascal, by all accounts during all of these events, he was a dutiful service dog. 

Fulton testified that while he was on the ground handcuffed he instructed his dog to remain quiet 

and stay in the back seat of the car. According to Lonigro, he would not have known a canine 

was in the car but for Fulton notifying him of the dog’s presence. (Exh. 6, pp. 11-12). Hinds also 

indicated the dog was friendly and did not interfere or become threatening. Hinds testified that 

at Fulton’s request, Hinds retrieved his cell phone so that Fulton could contact his wife to come 

get Rascal. Hinds assisted Fulton in dialing his wife and held the phone for him so he could speak 

with her. Hinds testified that he did not delete any recordings from the phone. The facts set forth 

by the parties make no mention of whether Fulton concurs with these events regarding the call 

initiated by Hinds to his wife. Fulton only discusses his belief that Hinds deleted the video 

recording he had on his phone. 

 While in custody in the squad car with Lonigro, Fulton and Lonigro engaged in 

conversation. During that conversation, when Fulton was advised that he was being taken to the 

hospital, he stated “I don’t need to go to the hospital.” (Exh. A, file ending in 23.17.43, at 5:35). 

He further stated that maybe “he should blame it on my diabetes ... (laughter) ... that would be 
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the easy out wouldn’t it?” (Exh. A, file ending in 23.28.30, at 1:08). A few minutes later, after 

Lonigro inquired if he had ever been arrested before, Fulton stated “no, not in my whole life ...And 

I never got treated like I got treated tonight either ... I’m not saying necessarily I was treated 

bad...look at my glasses.” (Id. beginning at 3:54). Lonigro stated his belief that the glasses were 

damaged when Fulton fell forward to the ground after being tased. Fulton then disputed this and 

told Lonigro that the damage to his glasses occurred before he was tased. (Id.). Fulton has since 

stated the damage to his glasses occurred after he was tased. 

Hinds testified that he saw no weapons in Fulton’s hands at any time before or after Fulton 

exited the car. (Exh. 7, p. 21). No illegal items and no firearms were found either on Fulton’s 

person or in his car. (Exh. 8, Interrogatory 11). The only item found on Fulton when he was 

searched was the pocket knife. 

After receiving a medical clearance at the hospital, Fulton was transported to the Jail. Once 

at the jail, Fulton asserts that he received inadequate medical care as he suffered a diabetic episode 

at the jail. As noted in the discussion relating to the tort claims notice, Defendants have not moved 

for summary judgment on the substance of this claim. 

 On November 18, 2015, Fulton was tried and found guilty of Resisting Law Enforcement 

by fleeing from Hinds in his vehicle on January 2, 2015 (Exh. F). Fulton was sentenced to serve 

one year in prison, all but 30 days of which was suspended, with the 30 days executed to be served 

on house arrest with 11 months probation to follow. Fulton’s probation was terminated early and 

his felony conviction was reduced to a misdemeanor. 

C. Expert Testimony 

Both sides of this case have retained so-called “use of force experts” to opine on whether 

the actions of Hinds were reasonable and justified under the circumstances. The court need not 
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detail the opinions of these experts other than to say that their opinions, like the facts in this case, 

are largely at odds with each other. Plaintiff’s expert, Robert Johnson, generally opines that it was 

per se unreasonable for Officer Hinds to deploy his taser and contrary to the model Use of Force 

Continuum and the Electronic Control Weapons Model Policy (April 2010). In contrast, 

Defendants’ expert, Charles Braun, II, generally opines that the use of force under the circumstance 

was consistent with the training of the officers. 

II. APPLICABLE STANDARD 

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). The movant bears the initial responsibility of informing the district court of the basis of its 

motion, and identifying those portions of designated evidence that demonstrate the absence of a 

genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After “a 

properly supported motion for summary judgment is made, the adverse party must set forth specific 

facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 250 (1986) (quotation marks and citation omitted).

A factual issue is material only if resolving the factual issue might change the outcome of 

the case under the governing law. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A 

factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict 

in favor of the non-moving party on the evidence presented. See Anderson, 477 U.S. at 248. In 

deciding a motion for summary judgment, the court “may not ‘assess the credibility of witnesses, 

choose between competing reasonable inferences, or balance the relative weight of conflicting 

evidence.’ ” Bassett v. I.C. Sys., Inc., 715 F. Supp. 2d 803, 808 (N.D. Ill. 2010) (quoting Stokes v. 

Bd. of Educ. of the City of Chi., 599 F.3d 617, 619 (7th Cir. 2010)). Instead, it must view all the 
14 

evidence in the record in the light most favorable to the non-moving party and resolve all factual 

disputes in favor of the non-moving party. See Anderson, 477 U.S. at 255. 

III. DISCUSSION 

 Before turning to the substance of the Motion for Summary Judgment the court will first 

address the Plaintiff’s Motion to Strike which bears directly on the evidence submitted for the 

excessive force portion of the Plaintiff’s claims. 

A. Plaintiff’s Motion to Strike 

In his motion to strike, the Plaintiff seeks to strike three pieces of evidence: (1) Defendants’ 

Exhibit B which purports to be a “Transcript of selected portions of Exhibit A”; (2) Defendants’ 

Exhibit M-15 (photos of a knife discovered during the search of the Plaintiff); and (3) Defendants’ 

Exhibit P, paragraphs 1-19 (questions posed to the Plaintiff’s expert). 

 With respect to the first item, according to Plaintiff, the transcript of selected portions of 

the videotapes purports to have been prepared by defense counsel “neither under oath or by a 

certified court reporter” and it is “at best only the Defendants’ version of portions of conversations 

purportedly recorded on audio and/or video files produced by the Defendant as their Exhibit ‘A.’” 

Fulton further argues that it is the recording itself that is the actual evidence of the events and not 

the transcript provided by the Defendants. 

In response, the Defendants argue that the transcript is not intended to substitute as 

evidence of what occurred but rather is a demonstrative exhibit to assist the Court in analyzing the 

video evidence that was likewise submitted. The Defendants further cite to Stringel v. Methodist 

Hospital of Indiana, Inc., 89 F.3d 415, 418 (7th Cir. 1996), for the proposition that the transcript is 

admissible for demonstrative purposes only and that it may be used as a guide by the Court but not 

relied upon if it inaccurately reflects what transpired on the video. In that case, the Seventh Circuit 
15 

concluded that “the transcript is, in any event, no more than a guide; and there is no evidence that 

the district court treated it as anything more.” Id. at 423. In this instance, like in Stringel, the 

undersigned has not utilized the transcript provided at all in reaching a determination on summary 

judgment as to whether the case may move forward. The video evidence supplied by the parties 

is sufficient for the Court to determine that genuine issues of material fact require a jury to assess 

the video evidence along with the credibility of the witnesses to determine the facts of the case. 

For this reason, the Motion to Strike the transcript is DENIED.

Next, Plaintiff seeks to strike photographs of the knife identified by Plaintiff as the one he 

had in his possession when he was arrested. Plaintiff asserts that Exhibit M-15 should be stricken 

because there was no evidence that Fulton threatened Hinds with the knife or that Hinds was aware 

of the knife at the time of the events leading to his arrest. Rather, the knife was located on the 

Plaintiff after he was in custody and during a pat-down search. As a result, Plaintiff contends the 

photographs of the knife are irrelevant since they could not possibly have affected the officers’ 

judgments on the scene and simply serve to prejudice the Court against the Plaintiff. 

Defendants respond that the existence and presence of the knife is relevant to dispute some 

of the testimony provided by the Plaintiff’s expert, Johnson. Johnson opined that use of the taser 

was not justified against an unarmed individual who is not actively resisting the police. 

Defendants, however, point out that the Plaintiff was in fact “armed” with a pocket knife at the 

time the taser was employed and thus, this serves to call into question the expert’s ultimate 

conclusion about whether force was justified in this case. 

Again, however, this is much ado about nothing at this stage in the litigation. The court, 

as will be explained in detail below, has determined that whether Officer Hinds utilized reasonable 

force in tasing the Plaintiff is the ultimate question for the jury to decide. The parties do not 
16 

disagree that the knife was found on Plaintiff’s person during the pat down search. What they 

dispute is the importance of that evidence in the ultimate conclusions in this case. For instance, 

the presence of the knife on the Plaintiff may very well be relevant to discredit Johnson’s 

conclusions at trial. Likewise, depending on who the jury believes, it may very well believe that 

it was reasonable for Officer Hinds to treat the Plaintiff as armed, especially if they believe 

Fulton’s own statements to Lonigro that he “told them he may have a gun.” However, presently 

this court is not entitled to weigh the credibility or evidence and thus, based on the facts submitted, 

the Motion to Strike the photo of the knife is DENIED. 

Lastly, Plaintiff seeks to strike testimony from Johnson’s deposition wherein he is asked 

by defense counsel about whether a different expert might conclude that the use of the taser was 

justified. Plaintiff seeks to strike the testimony because he asserts the testimony implies that the 

Plaintiff had initially retained a different expert but that expert was released because his conclusion 

was unfavorable to the Plaintiff. 

Defendants again respond that there is no basis to strike this testimony at this stage and the 

Court agrees since none of these questions factor into the Court’s determination on summary 

judgment. The Motion to Strike testimony from Johnson’s deposition is, therefore, DENIED. 

However, a word of caution to the parties regarding their experts. The Court has some 

serious reservations about the appropriateness of not only Johnson’s testimony but the Defendants’ 

expert’s testimony at trial as to the ultimate legal conclusion of whether the force employed against 

Fulton by Hinds was reasonable. Federal Rule of Evidence 704(a) provides that an opinion is not 

objectionable just because it embraces an ultimate issue. Experts, however, are not permitted to 

testify as to their legal conclusions. Good Shepherd Found. v. Momence, 323 F.3d 557, 564 (7th 

Cir. 2003). Indeed, it has long been recognized that expert witnesses are prohibited from reaching 
17 

legal conclusions in their testimony or from telling jurors what result to reach on the ultimate issues 

in a case. See Berry v. City of Detroit, 25 F.3d 1342, 1353-54 (6th Cir. 1994); Summerland v. Cty. 

of Livingston, 240 Fed.Appx. 70, 81 (6th Cir. 2007) (affirming exclusion of expert opinion that 

“reasonable” force was not used as inadmissible legal conclusion); Estate of Wright v. Lake Cty., 

No. 2:13-CV-333 JVB, 2017 WL 3896270, at *4 (N.D. Ind. Sept. 6, 2017) (excluding expert from 

testifying that jail officials were “deliberately indifferent” to the plaintiff as a legal conclusion). 

Telling jurors the defendants acted “without justification” or that they acted “reasonably” appears 

to be precisely such inadmissible expert testimony. Woods v. Lecureux, 110 F.3d 1215, 1220 (6th 

Cir. 1997) (“[T]estimony offering nothing more than a legal conclusion—i.e, testimony that does 

little more than tell the jury what result to reach—is properly excludable under the Rules.”). This 

limitation is critical because “[i]f an expert's opinion tells the jury what result to reach it usurps 

the role of the jury and is inadmissible.” James T. Scatuorchio Racing Stable, No. 5:11-374-DCR, 

2014 WL 1664263, at *5. Moreover, an expert’s “opinion as to what ‘current law’ ‘mandates’ or 

whether defendants were ‘legally’ ‘justified’ in using the force applied against [the plaintiff] usurps 

the jury’s role.” Taylor v. Lemus, 2015 WL 12698306, at *6 (C.D. Cal. June 17, 2015) (citing 

Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th Cir. 1994). Accordingly, while it is of little 

consequence here, at trial the scope of these experts’ testimony may very well be limited in 

observation of the rules of evidence. This would seemingly be an issue ripe for discussion and 

presented thoughtfully in a Motion in Limine prior to trial. In the meantime, the Plaintiff’s Motion 

to Strike is DENIED in its entirety. 

B. Excessive Force Allegations 

1. Objective Reasonableness 
18 

Turning now to Plaintiff’s excessive force claim, this court analyzes claims of excessive 

force, under the Fourth Amendment’s objective reasonableness standard. Graham v. Connor, 490 

U.S. 386, 388-89, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In determining whether the force used 

to effect a particular seizure is ‘reasonable’ under the Fourth Amendment, we must balance the 

nature and quality of the intrusion on the individual's Fourth Amendment interests against the 

importance of the governmental interest alleged to justify the intrusion. Id. at 396, 109 S.Ct. 1865; 

Fitzgerald v. Santoro, 707 F.3d 725, 733 (7th Cir.2013); Abbott v. Sangamon County, Illinois, 705 

F.3d 706, 724 (7th Cir.2013). Such an analysis is inherently fact-dependent, requiring 

consideration of such factors as the severity of the crime at issue, whether the person posed an 

immediate threat to the safety of the officers or others, and whether the person was actively 

resisting the officers. Graham, 490 U.S. at 396, 109 S.Ct. 1865; Miller v. Gonzalez, 761 F.3d 822, 

829 (7th Cir.2014); Abbott, 705 F.3d at 724. Accordingly, the reasonableness of an officer's actions 

must be assessed from the perspective of a reasonable officer on the scene, not based on the “20/20 

vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865; Fitzgerald, 707 F.3d at 733; City 

and County of San Francisco, California v. Sheehan, ––– U.S. ––––, 135 S.Ct. 1765, 1775, 191 

L.Ed.2d 856 (2015). That assessment must include a recognition that officers are often forced to 

make split second judgments in tense, uncertain, and rapidly evolving situations, as to the amount 

of force necessary in a particular situation. Graham, 490 U.S. at 396–97, 109 S.Ct. 1865; Abbott,

705 F.3d at 724; Sheehan, 135 S.Ct. at 1775. The Court thus gives considerable leeway to law 

enforcement officers' assessments regarding the degree of force appropriate in dangerous 

situations. Abbott, 705 F.3d at 724–25. Throughout the analysis, the reasonableness inquiry is an 

objective one, which examines whether the officer's actions are objectively reasonable in light of 

the totality of the facts and circumstances confronting him or her, without regard for consideration 
19 

of the officer's subjective intent or motivations. Graham, 490 U.S. at 397, 109 S.Ct. 1865; Miller,

761 F.3d at 828–29; Fitzgerald, 707 F.3d at 733. An officer's use of force is unreasonable if in 

light of all those circumstances at the time of the seizure, the officer used greater force than was 

reasonably necessary to effectuate the seizure. Id. 

In this case, even making as many allowances as the law allows to Officer Hinds, the Court 

finds that there are genuine issues of material fact as to whether Officer Hinds’ use of force violated 

the Fourth Amendment’s reasonable standards under the circumstances. Hinds was initiating a 

traffic stop because Fulton failed to move over for emergency vehicles engaged in the performance 

of their duties. Fulton had committed no serious or violent crime and certainly was not an 

immediate threat to Hinds or anyone else. Likewise, while Hinds pursued Fulton (and Fulton 

cannot dispute that he resisted by fleeing when he did not immediately pull over3), the pursuit, by 

all accounts was a low speed chase, Fulton made no attempt to truly “flee” by leaving the roadway 

and the entire incident spanned under a minute. There was no direct threat to the officer, no threat 

to other drivers on the road or citizens, and no attempts by Fulton to flee from the vehicle once he 

did stop his vehicle. While both sides significantly embellish what the dashcam videos actually 

show and Defendants make repeated exaggerated claims that Fulton acted in a threatening manner, 

see DE 70 at p. 14: (“The totality of the circumstances demonstrates that Plaintiff was defiant 

towards officers’ lawful authority, made veiled threats towards the officers, and had engaged in 

conduct that caused the officers to be reasonably concerned that he had a concealed weapon.”), 

what is absolutely clear is that reasonable minds may differ as to the reasonableness of Officer 

                                                            

3 Fulton was convicted of Resisting by Flight and thus, as a matter of law, Fulton cannot dispute his 

failure to pull over his vehicle. 
20 

Hinds’ decision to employ a taser to a suspect who had, from what the court can discern, seemingly 

surrendered to police. 

Hinds makes much of the fact that Fulton may have been armed or that Fulton had, at some 

point, stated he had a gun in the car. Certainly, it is possible that Fulton was carrying a concealed 

weapon, but at the time the force was employed, Fulton was walking backward with his hands in 

the air towards Hinds. No one has made any assertion that Fulton made any sudden movements 

during the course of walking with his back turned toward the officers, turned around to threaten 

officers, or did anything other than fail to accede to Hinds’ repeated commands to get on his knees. 

Moreover, Fulton claims once he was on the ground and handcuffed, Hinds forcefully 

kneed him in the eye causing his glasses to shatter and his eye to bleed. While Hinds adamantly 

denies that this occurred and spends much time arguing that such activity, had it occurred, would 

have been heard on the audio of the dashcam video, this argument is simply not convincing. He 

uses words like the dashcam “conclusively establishes” and the Plaintiff’s account is “blatantly 

contradicted” by the record. (Def. Brief at 18).4 The dashcam video from Officer Lonigro’s patrol 

car is anything but conclusive with respect to most of what the parties say occurred in this case. 

Fulton is only in view for a short period of time, and much of the time one of his hands or both of 

his hands that are in view. The audio from the dashcam recording is not discernible throughout 

the stop and the Court’s review of the video once Fulton exits the vehicle, shows him being 

                                                            

4

This is the second excessive force case in the last few months where defense counsel has made sweeping 

statements about what can be viewed on dashcam videos. In Sheehan v. Noble County Sheriff’s Dept., et 

al, 2016 WL 7100555, at *1 (N.D. Ind. Dec. 6, 2016), counsel repeatedly used the words “clearly,” 

“blatantly,” and “overwhelmingly” in an effort to convince the Court that the defendant officers’ actions 

were reasonable as a matter of law. The undersigned scolded counsel by noting that the use of these 

words were nothing more than a “linguistic jujitsu” and the evidence did not “as the Defendants contend, 

‘clearly’ contradict or ‘blatantly’ contradict or ‘overwhelmingly’ establish anything.” Id. at *7-*8. The 

same is absolutely true here.
21 

generally compliant with all the commands Hinds is shouting to him. There are also portions of 

the video where it is nearly impossible to discern what is being shouted between Hinds and Fulton 

and the parties seem to concede that the two had difficulty hearing one another. For these reasons 

alone, the video is only one piece of the puzzle that the jury will need to sort through in determining 

who it believes. 

2. Qualified Immunity 

Taking the facts in the light most favorable to Fulton, a jury could reasonably conclude that 

Officer Hinds had violated Fulton's Fourth Amendment rights by using excessive force in arresting 

him. Hinds, however, argues that qualified immunity shields him from suit because it was not 

clearly established at the time he arrested Fulton that the force he used violated Fulton's Fourth 

Amendment rights. 

“Qualified immunity shields government officials from civil damages liability unless the 

official violated a statutory or constitutional right that was clearly established at the time of the 

challenged conduct.” Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 

(2012). In other words, qualified immunity “shields from liability police officers ‘who act in ways 

they reasonably believe to be lawful.’ ” Jewett v. Anders, 521 F.3d 818, 822 (7th Cir. 2008) 

(quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). 

Qualified immunity is an affirmative defense, but the plaintiff carries the burden of defeating it 

once it is raised. Rabin v. Flynn, 725 F.3d 628, 632 (7th Cir. 2013). To defeat the qualified 

immunity defense, a plaintiff must show: (1) that the defendant violated a constitutional right, and 

(2) that the right was clearly established at the time so that it would have been clear to a reasonable 

officer that her conduct was unlawful in the situation. Saucier v. Katz, 533 U.S. 194, 201–02, 121 

S.Ct. 2151, 150 L.Ed.2d 272 (2001). These questions can be addressed in either order. Pearson v. 
22 

Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Locke v. Haessig, 788 F.3d 

662, 667 (7th Cir. 2015).

Before proceeding further, it is necessary to clarify that Hinds has asserted qualified 

immunity but only, it appears, as to the use of the taser against Fulton. Hinds contends that it is 

absolutely incredulous to believe he kneed Fulton in the eye after he was handcuffed and on the 

ground given the dashcam video and thus, his arguments as to qualified immunity do not consider 

this allegation as even a possibility. Fulton testified that while he was on the ground handcuffed, 

Hinds pulled his head up, threatened him and kneed him in the right eye, breaking his glasses. 

However, as set out above, the Defendants speculation as to what may or may not have been 

capable of being seen or heard on the video “had it really occurred” is just that, speculative. While 

the videos will no doubt assist the jury's credibility determination, the videos are limited evidence 

as to what events occurred once the Plaintiff is viewed walking backwards from his vehicle (at 

which point, he appears to be complying with Hinds’ commands). The dashcam videos lack 

visibility as to the employment of the taser, what may or may not have been said prior to its use, 

do not show Plaintiff falling to the ground or being handcuffed, and do not show anything that 

occurred after he was handcuffed until the ambulance arrived. Moreover, the video recordings 

generally have inconclusive/inaudible sound and perspective. They are not entirely conclusive of 

anything, as the Defendants suggest in asserting their position. Thus, taking the facts in the light 

most favorable to Fulton, the Court has already concluded that there is a jury question to be 

resolved as to whether any force was employed at all after Fulton was handcuffed; if force was 

used, what force was it; and was any force employed once Fulton was subdued reasonable.5 

                                                            

5 This is not to say that the Plaintiff does not have significant credibility issues to overcome. The record 

is replete with contradictory statements from him once he was in Officer Lonigro’s patrol car, all of which 

he will need to explain at trial. But, this is for the jury to sort out and not the district court on summary 

judgment.
23 

Moreover, that officers cannot gratuitously batter arrestees once they are handcuffed is clearly 

established. Thus, on this basis, qualified immunity must be denied on this portion of Fulton’s 

excessive force claim. 

As for deploying the taser, this is a more complicated question to resolve given the 

underlying factual issues presented with respect to Fulton’s claim. “[T]he relevant, dispositive 

inquiry in determining whether a right is clearly established is whether it would be clear to a 

reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. 

at 202. This inquiry “must be undertaken in light of the specific context of the case, not as a broad, 

general proposition.” Id. at 201; Ashcroft v. al–Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 

L.Ed.2d 1149 (2011)) (stating that Courts must not define ‘clearly established law at a high level 

of generality.’ ”). Instead, “the clearly established law must be ‘particularized’ to the facts of the 

case.” Id. “The dispositive question is whether the violative nature of particular conduct is clearly 

established.” Id. (quoting Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 

(2015)). “This is not to say that an official action is protected by qualified immunity unless the 

very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 

(1987). 

With respect to the use of tasers, the Seventh Circuit has described tasers as “falling 

somewhere in the middle of the nonlethal-force spectrum.” Abbott, 705 F.3d at 726. Although 

describing it as more than a de minimis application of force and recognizing the pain that it can 

cause, the Seventh Circuit has “also acknowledged that the use of a taser, like the use of pepper 

spray or pain-compliance techniques, generally does not constitute as much force as so-called 

impact weapons, such as baton launchers and beanbag projectiles.” Id. For this reason, case law 
24 

in this Circuit is clear that employing a taser or pepper spray, albeit even though non-lethal, on an 

already subdued subject violates clearly established law. See Lewis v. Downey, 581 F.3d 467, 

478–79 (7th Cir.2009) (denying qualified immunity to officers who applied a Taser to a pretrial 

detainee lying “prone on [a] bed, weakened, and docile,” in response to his refusal of an order to 

get out of bed); Brooks v. City of Aurora, Ill., 653 F.3d 478, 487 (7th Cir.2011) (noting that prior 

cases had established the illegality of the use of pepper spray on an arrestee who was “already ... 

handcuffed and ... offering no physical resistance” or was “lying face down ... with both arms 

handcuffed behind his back” (internal quotation marks omitted)); see also Sallenger v. Oakes, 473 

F.3d 731, 741–42 (7th Cir.2007) (noting, in its evaluation of the officers' conduct for immunity 

purposes, that the fact that the force was applied after the arrestee was handcuffed was a significant 

factor in denying immunity); cf. Forrest v. Prine, 620 F.3d 739, 745 (7th Cir.2010) (finding force 

was not unconstitutionally excessive when Taser was applied “where the officers were faced with 

aggression, disruption, [and] physical threat” and where plaintiff “posed an immediate threat to 

safety and order within the jail” (alteration in original) (internal quotation marks omitted)). 

 Fulton, while cognizant of these cases, maintains that the use of a taser against a subject 

who is not actively resisting and poses no threat to officer safety similarly violates clearly 

established law and, while it’s a close case, this Court agrees. Fulton points out that he can be 

seen on the video complying with Hinds verbal commands. He asserts there is no evidence of 

aggression on the video and that he is not shown threatening the officers in any way. In fact, he 

points out he is walking backward with his hands in the air toward the officer immediately prior 

to the time the taser is said to have been employed (the Court cannot view the actual use of this 

force from the video provided). Likewise, Hinds has not testified that Fulton acted aggressively 

toward him at the time he exited the vehicle (either physically or verbally), threatened him with a 
25 

weapon or did anything other than not follow commands as promptly as Hinds demanded. The 

only objective basis Hinds had for believing Fulton was either aggressive or non-compliant was 

his behavior which led to the traffic stop – that is, his failure to yield to stopped emergency vehicles 

the low-speed chase that ensued for less than a minute afterwards, and the extra time it took Fulton 

to roll his window down. However, the Seventh Circuit has also made clear that “as the threat 

changes, so too should the degree of force.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 863 

(7th Cir. 2010). Once Fulton pulled the car over, did not make any further attempt to flee, exited 

the vehicle without incident and was walking backwards toward Hinds and Officer Lonigro with 

his hands in the air, he had, for all intents and purposes surrendered to the lawful authority of the 

officers. 

 Nevertheless, Hinds asserts that he can be heard in the video telling Fulton four or five 

times to get on his knees and that Fulton was not doing so. He contends that by employing the 

taser he avoided a hands-on confrontation with Fulton. While certainly this could be a factor in 

his decision to employ a taser rather than some other manner of seizing Fulton, this court has 

already indicated that whether it was reasonable for Hinds to employ the taser is a question of fact 

reserved for the jury. 

As for clearly established law, the closest cases the Court can find on point are Clarett v. 

Roberts, 657 F.3d 664, 674–75 (7th Cir.2011) wherein the Seventh Circuit upheld the use of a 

taser in a situation in which a person was refusing to move from a doorway and an officer believed 

that fellow officers in the blocked room needed assistance, and in United States v. Norris, 640 F.3d 

295, 303 (7th Cir.2011) where a defendant “displayed an unwillingness to accede to reasonable 

police commands, and his actions suggested an intent to use violence to fend off further police 

action.” In both those cases, however, there was more than just a refusal to accede to lawful police 
26 

commands. There was an actual threat. Moreover, the Seventh Circuit has repeatedly recognized 

that officers may not use significant force on non-resisting or passively resisting suspects. Abbott,

705 F.3d at 732; see also, Estate of Starks v. Enyeart, 5 F.3d 230, 233 (7th Cir. 1993).6

 Here, accepting the facts favorably to Fulton as we must do, the court finds that genuine 

material fact issues preclude a determination of whether Hinds is entitled to qualified immunity on 

Plaintiff's excessive force claim relating to Hinds’ decision to employ the taser. Viewing the facts 

in the light most favorable to Plaintiff, a reasonable jury could find Hinds violated Plaintiff's right 

to be free from excessive use of force, a right clearly established at the time of his arrest. Indeed, 

if a jury accepts plaintiff’s version of events, that he was not actively resisting, complying with the 

officer’s commands and that he was shot in the back with a taser within seconds of being told to 

get on his knees, the jury could reasonably find that the use of the taser was excessive. Conversely, 

if a jury accepts Hinds version of events, that plaintiff was verbally resisting and non-compliant 

with his orders, it could reasonably find that the force used was not excessive under the 

                                                            

6 Other circuits have likewise drawn distinctions when officers are faced with a passively resisting subject 

versus one that is actively resisting or threatening officers. “If a suspect actively resists arrest and refuses 

to be handcuffed, officers do not violate the Fourth Amendment by using a taser to subdue him.” Hagans 

v. Franklin County Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012) (collecting cases). “By contrast, 

when we have found excessive force, the suspects were compliant or had stopped resisting.” Ibid. “A 

suspect’s active resistance also marks the line between reasonable and unreasonable tasing in other 

circuits.” Id. at 509-10 (citing Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010) (tasing 

non-resistant suspect was excessive force); Oliver v. Fiorino, 586 F.3d 898, 906–07 (11th Cir. 2009) (tasing 

suspect ten times was excessive force because he stopped resisting after the first shock); Brown v. City of 

Golden Valley, 574 F.3d 491, 498–99 (8th Cir. 2009) (tasing car passenger who was not attempting to flee 

or resist arrest was excessive force); Casey v. City of Fed. Heights, 509 F.3d 1278, 1282 (10th Cir. 2007) 

(tasing a non-violent misdemeanant who was not offering any resistance was excessive force)). In Thomas 

v. Plummer, 489 Fed.Appx. 116 (6th Cir. 2012), the Sixth Circuit plainly held as follows: “The question 

presented is whether an officer’s tasing a once-disobedient suspect who has stopped resisting constituted 

excessive force, as of August 23, 2009. We hold that it did.” Id. at 125. The court of appeals noted that it 

had “applied this general rule in the context of taser use, holding that a suspect not resisting arrest had a 

clearly established right not to be tased, as of October 28, 2006.” Id. at 126 (citing Kijowski v. City of Niles, 

372 Fed.Appx. 595, 601 (6th Cir. 2010)). 
27 

circumstances. Consequently, the Court denies Hinds’ motion for summary judgment on his 

entitlement to qualified immunity concerning Plaintiff's excessive force allegations. 

C. State Law Claim 

Defendants also seek summary judgment on Plaintiff’s state law respondeat superior 

battery claim against Sheriff Dulin. The parties agree that the state law claim as to whether 

reasonable force was used is identical to the federal standards. For the same reasons detailed 

above, the Court DENIES the Motion for Summary Judgment on the state law battery claim. 

IV. CONCLUSION 

Based on the discussion above, Defendants’ Motion for Summary Judgment is DENIED 

[DE 69]; Plaintiff’s Motion to Strike is DENIED [DE 74]; Plaintiff’s Motion to File Supplemental 

Exhibits [DE 82] and Motion to Withdraw Admissions [DE 83] are GRANTED; and Defendants’ 

Motion to Strike will be DENIED as MOOT [DE 78]. 

Within 14 days, the parties SHALL consult and present a joint motion to reopen discovery 

as to the limited issue of Plaintiff’s claim against Sheriff Dulin regarding the medical care he 

received in jail. In that motion, the parties SHALL include a deadline for the filing of supplemental 

dispositive motions that is no later than 30 days from the close of the reopened discovery. 

Entered: This 29th day of May, 2018 

 s/William C. Lee 

 United States District Judge