UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

NANCY KUHLMEY, )

Personal Representative of the Estate )

of John Edward Brown, II, Deceased, )

)

Plaintiff, )

)

v. ) No. 2:16 CV 56

)

THE CITY OF HAMMOND, et al., )

)

Defendants. )

OPINION and ORDER

Plaintiff Nancy Kuhlmey, as personal representative of the Estate of John

Edward Brown, II, deceased, (“plaintiff”) brings this suit following the death of John

Edward Brown, II, from a fatal gunshot wound. (DE # 1.) Plaintiff has sued the City of

Hammond (“the City”), Hammond Chief of Police Brian Miller (solely in his official

capacity as Chief of Police for the Hammond Police Department) (“Miller”), and four

unnamed police officers from the Hammond Police Department referred to in the

complaint as John Doe, Jack Doe, Jane Doe, and Janet Doe (the “Doe Defendants”). (DE

# 1 at 1.) 

The matter is now before the court on two motions for summary judgment filed

by the defendants. Defendants City of Hammond and Brian Miller (the “City

Defendants”) filed a joint motion for summary judgment (DE # 33), and the Doe

Defendants filed a joint motion for summary judgment (DE # 35). Plaintiff has

responded to both pending motions. (DE ## 42, 43, 44, 45.) Replies were filed by both
the City Defendants (DE # 48) and the Doe Defendants (DE # 49). These motions are

fully briefed and are ripe for ruling.

I. BACKGROUND1

On February 16, 2014, the Hammond Police Department received a call that a

female was stabbed in the mouth by her husband. (DE # 42-2 at 2.) Officers Carmen

Ramirez and Michael Elkmann arrived at the scene. (Id. at 3.) Elkmann says he observed

John E. Brown, II, holding two large knives. (DE # 27-6 at 10.) Plaintiff, citing a witness,

asserts that Brown had only one knife. (DE # 42-6 at 30–31.)

Elkmann says that Brown began moving towards him, while still holding the

knives. (DE # 37-6 at 28, 31.) Another witness states that Brown moved towards the

officer “a step or two.” (DE # 42-7 at 21.) Elkmann then discharged his firearm three

times at Brown. (DE # 37-6 at 15.) Brown received two gunshot wounds from the

shooting. (DE # 42-3 at 2.) As a result of the shooting, John E. Brown, II, was

pronounced dead on February 16, 2014 at 9:46 p.m. (Id.)

Based on these events, plaintiff filed a complaint on February 2, 2016, against the

City of Hammond, Miller, and the four Doe Defendants. (DE # 1.) Plaintiff brings three

claims: (1) unreasonable seizure and excessive force, pursuant to 42 U.S.C. § 1983,

against the Doe Defendants in their individual and official capacities; (2) failure to train

or supervise, pursuant to 42 U.S.C. § 1983, against the City and Miller; and (3) wrongful

1

 In the summary that follows, any unattributed facts are undisputed. This

summary provides an overview. Additional relevant facts will be referred to in the

analysis that follows.

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death, pursuant to Indiana Code § 34-23-1-1, against the Does defendants in their

individual and official capacities. (DE # 1 at 7–14.) Discovery has been completed in this

case, and defendants have moved for summary judgment on all claims. The court will

now address the pending motions.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after

adequate time for discovery, against a party “who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). “[S]ummary judgment is appropriate—in fact, is mandated—where there are no

disputed issues of material fact and the movant must prevail as a matter of law. In other

words, the record must reveal that no reasonable jury could find for the non-moving

party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994)

(internal citations and quotation marks omitted).

The moving party bears the initial burden of demonstrating that these

requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th

Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing’—that is,

pointing out to the district court—that there is an absence of evidence to support the

nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the moving party has met his

burden, the non-moving party must identify specific facts establishing that there is a

genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);

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Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324).

In doing so, the non-moving party cannot rest on the pleadings alone, but must present

fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of

Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion

for summary judgment, the court must construe all facts in a light most favorable to the

non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC

Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).

III. DISCUSSION

A. Statement of Genuine Disputes

First, both sets of defendants assert that the court should enter summary

judgment because plaintiff has failed to comply with Northern District of Indiana Local

Rule 56-1(b)(2) in her response to the motions for summary judgment. (See DE ## 48 at

1; 49 at 1.) That rule states that a response brief to a motion for summary judgment—or

its appendix—“must include a section labeled ‘Statement of Genuine Disputes’ that

identifies the material facts that the party contends are genuinely disputed so as to

make a trial necessary.” N.D. Ind. L.R. 56-1(b)(2).

The defendants are correct that plaintiff has failed to include such a section in her

response to the motions for summary judgment.2

 (See DE # 43.) However, she does

include a “Statement of Facts” in the response. (See DE # 43 at 2–5.)

2

 Plaintiff filed a single response brief to both motions for summary judgment,

which appears on the docket as both docket entry number 43 and docket entry number

45.

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Although plaintiff has not strictly complied with the local rules, this does not

require the court to strike her factual statements. Rather, “it is clear that the decision

whether to apply the rule strictly or to overlook any transgression is one left to the

district court’s discretion.” Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011) (affirming a

district court’s decision to consider a defendant’s summary judgment motion although

it did not comply strictly with all formal requirements of the local rule).

In the case at hand, plaintiff has presented a factual statement in her response

brief which outlines the relevant facts of the case from her perspective and cites to the

record in support of those facts. It may not be perfect compliance, but local rules are

“not intended to provide a maze of technical traps to complicate and delay litigation

without advancing merits.” Stevo, 662 F.3d at 887. Therefore, the court will not grant

summary judgment on this basis.

B. Unreasonable Seizure and Excessive Force

Plaintiff brings her first claim under 42 U.S.C. § 1983 for unreasonable seizure

and excessive force and for violations of the “Fourth, Fifth, Eighth, and Fourteenth

Amendments.” (DE # 1 at 7–10.) Plaintiff brings this claim against the Doe Defendants

in both their individual capacities and their official capacities as agents of the City. (See

DE # 1 at 14.)

The Doe Defendants move for summary judgment on all claims against them in

their individual capacities. However, before they address the merits of this first claim,

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the Doe Defendants move for summary judgment on the basis that plaintiff failed to

identify any of them by name before the statute of limitations expired.

Plaintiff’s § 1983 claim against the Doe Defendants accrued on February 16, 2014,

on the date of the shooting. Plaintiff does not dispute this assertion. (See DE # 43.)

Actions brought under § 1983 must be commenced within a period permitted by the

forum state’s personal injury statute of limitations. Coopwood v. Lake Cnty. Cmty. Dev.

Dep’t, 932 F.2d 677, 678–79 (7th Cir. 1991). In Indiana, there is a two-year statute of

limitations governing actions for personal injury. Ind. Code § 34-11-2-4. Therefore, the

statute of limitations in this case has expired.

A plaintiff cannot, “after the statute of limitations period, name as defendants

individuals that were unidentified at the time of the original pleading.” Jackson v. Kotter,

541 F.3d 688, 696 (7th Cir. 2008); see also Gomez v. Randle, 680 F.3d 859, 864 n.1 (7th Cir.

2012) (“Accordingly, once the statute of limitations period expires, [plaintiff] cannot

amend his complaint to substitute a new party in the place of ‘John Doe.’”) According

to the Seventh Circuit, “it is pointless to include lists of anonymous defendants in

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

[Federal Rule of Civil Procedure] 15, nor can it otherwise help the plaintiff.” Wudtke v.

Davel, 128 F.3d 1057, 1060 (7th Cir. 1997) (internal citations omitted).

Discovery has now closed in this matter, which means plaintiff has been given

the opportunity to learn the names of the officers who were present at the scene of the

shooting. Nevertheless, plaintiff has made no attempt to amend her pleading to name

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any of the Doe Defendants. Even in plaintiff’s response to the motion for summary

judgment, she does not directly ask the court for leave to amend the complaint to name

any of the Does. However, she does argue generally that Rule 15(c)(1)(C) of the Federal

Rules of Civil Procedure allows for amendment and relation back where “the party to

be brought in by amendment . . . received such notice of the action that it will not be

prejudiced in defending on the merits; and . . . knew or should have known that the

action would have been brought against it, but for a mistake concerning the proper

party’s identity.”

In order for Rule 15(c)(1)(C) to apply, plaintiff must have made a mistake in

determining the proper defendants’ identities. But, the Seventh Circuit has repeatedly

held that a “plaintiff’s lack of knowledge about a defendant’s identity is not a ‘mistake’

within the meaning of Federal Rule of Civil Procedure 15(c) such that the plaintiff could

amend his complaint outside the statute of limitations period upon learning the

defendant’s identity.” Gomez, 680 F.3d at 864 n.1; see also Jackson, 541 F.3d 688, 696 (7th

Cir. 2008) (“Not knowing a defendant’s name is not a mistake under Rule 15.”); Mihelic

v. Will Cnty., Ill., 826 F. Supp. 2d 1104, 1115 (N.D. Ill. 2011) (“Establishing the existence

of a mistake is a threshold requirement in a 15(c)(1) inquiry . . . .’” (quoting King v. One

Unknown Fed. Corr. Officer, 201 F.3d 910, 914 (7th Cir. 2000))). This is true even if the

unnamed defendants had knowledge that a lawsuit might be brought against them.

King, 201 F.3d at 914 (“[W]e have emphasized that the mistake requirement is

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independent from whether the purported substitute party knew that action would be

brought against him.”).

Plaintiff cites Stewart v. Special Adm’r of the Estate of Mesrobian, 559 Fed App’x. 543

(7th

 Cir. 2014), in support of her argument that Rule 15(c)(1)(C) applies to her case to

allow relation back. But nothing in that decision runs counter to the Seventh Circuit

holdings listed above which support the notion that a naming a John Doe is not a

mistake under the Rule.

Accordingly, the statute of limitations bars plaintiff’s claims against the

individual officers. Therefore, summary judgment is appropriate in favor of the Doe

Defendants and the claims against the Doe Defendants—in their individual capacities—

are dismissed.

Additionally, as stated above, plaintiff also brought this first claim against the

Doe Defendants in their official capacities. This official capacity claim is treated as a

claim against the City. See Kentucky v. Graham, 473 U.S. 159, 165–66 (1986). However, as

the City Defendants argue in their motion to dismiss, the City cannot be held liable on

this claim under a theory of respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

691 (1978). A municipality is “not vicariously liable for the constitutional torts of their

agents” and may only be held liable if the deprivation of the constitutional right is

caused by their own decisions or policies. Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir.

1992). Plaintiff’s second claim, for failure to train or supervise, attempts to allege such a

policy. (DE # 1 at 11.) However, plaintiff’s first claim for unreasonable seizure and

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excessive force does not refer to any municipal policy or custom, and so summary

judgment is also appropriate on this claim in favor of the City Defendants, as well.

C. Failure to Train or Supervise

Plaintiff’s second claim is for failure to train or supervise, under 42 U.S.C. § 1983,

against the City and Miller in his official capacity. (DE # 1 at 11–13.) The claim against

Miller in his official capacity is equivalent to the claim against the City. See Kentucky v.

Graham, 473 U.S. 159, 165–66 (1986). Therefore, the court will dismiss the claim against

Miller as redundant.

Next, for the City to be liable under § 1983, plaintiff must show either “(1) an

express policy that, when enforced, causes a constitutional deprivation; (2) a

widespread practice that, although not authorized by written law or express municipal

policy, is so permanent and well settled as to constitute a custom or usage with the

force of law; or (3) an allegation that the constitutional injury was caused by a person

with final policymaking authority.” Roach v. City of Evansville, 111 F.3d 544, 548 (7th Cir.

1997). To more specifically succeed on a failure-to-train claim, the plaintiff must show

that “the City’s employee violated his constitutional rights, that the City had a policy or

custom of failing to train its employees, and that the failure to train caused the

constitutional violation.” Id. at 549.

In the case at hand, plaintiff alleges police officers in the Hammond Police

Department do not receive adequate training on the use of firearms. (DE # 43 at 11.) She

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continues, “[a]pparently, the policy of the Hammond Police Department is to leave it to

the individual[] officer’s discretion as to when to use deadly force.” (Id.) 

To support this policy allegation, plaintiff cites portions of Officer Michael

Elkmann’s deposition where he testified that officers do not receive training on when to

draw their firearms, and that such a decision is left up to the individual officer’s

discretion. (DE # 42-4 at 15–16.) However, despite the evidence of a lack of training

regarding drawing firearms, the evidence before the court demonstrates Hammond

Police officers are trained regarding when to use their firearms to inflict deadly force.

Although not cited by plaintiff, Elkmann stated that in his firearms training, he was

trained to shoot “to stop a forcible felony from occurring and prevent serious bodily

harm or death to myself or someone else.” (Id. at 35–36.) However, the ultimate

determination of when to use force to stop such a felony or harm is left up to the

officer’s discretion. (Id. at 36.)

The undisputed evidence in the record does not support plaintiff’s argument that

Hammond Police officers received no training on the use of firearms or that the use of

deadly force is completely up to the discretion of the officers. Given Elkmann’s

statement, he did receive training and guidelines on when to shoot his weapon, which

limited his discretion to some extent. Furthermore, courts find it acceptable that officers

are given some discretion in deciding when to use deadly force. The Seventh Circuit has

written “we remain cognizant of the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain, and rapidly

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evolving—about the amount of force that is necessary in a particular situation.” Abbot v.

Sangamon County, Ill., 705 F.3d 706, 724 (7th Cir. 2013) (internal quotation marks

omitted). “As a result, we give considerable leeway to law enforcement officers’

assessments about the appropriate use of force in dangerous situations.” Id. at 724–25

(internal quotation marks omitted).

Plaintiff also highlights Elkmann’s statement that he did not receive training for

the “exact circumstances” which occurred on the night he shot John Edward Brown, II.

(DE # 42-4 at 35.) However, he immediately clarified that he had been trained on how to

act in “similar circumstances” (id.), and it cannot be expected that a police officer could

be trained how to act in every possible set of circumstances. Moreover, “[a] Monell

failure-to-train plaintiff must do more than demonstrate that an ‘injury or accident

could have been avoided if an officer had had better or more training, sufficient to

equip him to avoid the particular injury causing conduct,’ since even adequately trained

officers make mistakes.” Young v. Village of Romeoville, No. 10 C 1737, 2011 WL 1575512,

*4 (N.D. Ill. April 27, 2011) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 391

(1989)).

Instead, to satisfy § 1983, a municipality’s failure to train its employees must

amount to “deliberate indifference to the rights of persons with whom the [untrained

employees] come into contact.” City of Canton, 489 U.S. at 388. Only then “can such a

shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under

§ 1983.” Id. at 389. As the Supreme Court recognized in Bd. of County Com’rs of Bryan

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County, Okl. v. Brown, 520 U.S. 397, 410 (1997), “‘deliberate indifference’ is a stringent

standard of fault, requiring proof that a municipal actor disregarded a known or

obvious risk of his action.” Thus, when city policymakers are on notice that a particular

omission in their training program causes city employees to violate citizens’

constitutional rights, the city may be deemed deliberately indifferent if the

policymakers choose to retain that program. Id. at 407. A less stringent standard for a

failure-to-train claim “would result in de facto respondeat superior liability on

municipalities.” Canton, 489 U.S. at 392.

That is why “[a] pattern of similar constitutional violations by untrained

employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes

of failure to train.” Connick v. Thompson, 563 U.S. 51, 62 (2011). The City’s continued

adherence to an approach that they know or should know has failed to prevent

constitutional violations may establish the “deliberate indifference” necessary to trigger

liability. Id. at 62–63. For “[w]ithout notice that a course of training is deficient in a

particular respect, decisionmakers can hardly be said to have deliberately chosen a

training program that will cause violations of constitutional rights.” Id.

Here, plaintiff has not presented evidence of a pattern of similar constitutional

violations. Nor has she presented any evidence of an awareness on the part of the City

that—by training its officers as it did—it was creating constitutional violations.

Instead, plaintiff seems to rely on the supposition that by allowing officers some

discretion in using their firearms, and by not training them in the exact circumstances of

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this case, there must be some actionable failure on the part of the City because the risk

of constitutional violations was obvious. However, plaintiff’s evidence alone is not

enough to demonstrate that a municipal actor disregarded a known or obvious risk. For

the reasons stated above, some discretion is allowed when officers encounter changing

circumstances. Allowing officers leeway to adapt to their individual situations does not

create an obvious risk of constitutional violations.

Therefore, the court finds there is no genuine issue of fact for trial and that

plaintiff has failed to provide support for this claim. Summary judgment is appropriate

in the City Defendants’ favor on this issue, and the claim for failure to train or supervise

is dismissed.

D. Wrongful Death

Given the court’s decisions above, the sole remaining claim in this case is the

wrongful death claim under Indiana law. Plaintiff brings this claim against the Doe

Defendants in both their individual capacities and their official capacities as agents for

the City. (See DE # 1 at 14.) Although the Doe Defendants have been dismissed from the

case, the official capacity claim against them survives because it is treated as a claim

against the City. See Kentucky v. Graham, 473 U.S. 159, 165–66 (1986).

Pursuant to 28 U.S.C. § 1367(a), the court originally had supplemental

jurisdiction over the wrongful death state-law claim. But now, all federal claims have

been dismissed from the case. The supplemental jurisdiction statute provides that the

district court “may decline to exercise supplemental jurisdiction” over state-law claims

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if the court “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.

§ 1367(c)(3). The court has broad discretion in making this decision. RWJ Mgmt. Co., Inc.

v. BP Prods. N. Am., Inc., 672 F.3d 476, 478 (7th Cir. 2012) (“When federal claims drop

out of the case, leaving only state-law claims, the district court has broad discretion to

decide whether to keep the case or relinquish supplemental jurisdiction over the statelaw claims.”). Furthermore, there is a “presumption” that courts will relinquish

jurisdiction over supplemental state-law claims where the federal claims drop out of the

case. Id. at 479. “The presumption is rebuttable, but it should not be lightly abandoned,

as it is based on a legitimate and substantial concern with minimizing federal intrusion

into areas of purely state law.” Id.

The Seventh Circuit has identified three situations that may displace the

presumption, namely:

(1) the statute of limitations has run on the pendent claim,

precluding the filing of a separate suit in state court; (2)

substantial judicial resources have already been committed,

so that sending the case to another court will cause a

substantial duplication of effort; or (3) when it is absolutely

clear how the pendent claims can be decided.

Sharp Elecs. Corp v. Metro. Life Ins. Co., 578 F.3d 505, 514–15 (7th Cir. 2009).

Regarding the first exception, plaintiff is not precluded from filing a separate

suit. Plaintiff may refile the action in state court pursuant to 28 U.S.C. § 1367(d) and

Indiana Code § 34-11-8-1.

Regarding the second exception, the court has devoted few judicial resources to

resolving the wrongful death claim. Excluding discovery orders and other procedural

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orders, the court has previously issued only one substantive order in this case. In that

order, the court denied the City Defendants’ motion to dismiss. (DE # 10.) That motion

challenged plaintiff’s failure to train claim against the City Defendants, and not the

wrongful death claim. Therefore, the court has not yet examined the merits of the statelaw claim. See RWJ Mgmt. Co., Inc., 672 F.3d at 481 (affirming relinquishment of

jurisdiction where “the extensive pretrial activity was largely attributable to discovery

disputes, not the merits of the state-law claims”). 

The small amount of resources devoted to this case is unlike the efforts expended

in Miller Aviation v. Milwaukee County Board of Supervisors, 273 F.3d 722 (7th Cir. 2001), in

which the Seventh Circuit reversed a district court’s decision to relinquish jurisdiction

where the lower court had held 9 hearings and issued 19 orders, including a 71-page

decision. The court has expended relatively few judicial resources, and therefore, there

will be no substantial duplication of efforts.

Additionally, the court is not required to retain jurisdiction due to the length of

time this case has been under its jurisdiction. Although this case was filed over two

years ago, the Seventh Circuit has upheld an order relinquishing jurisdiction “just

before trial after five years of discovery.” Olive Can Co., Inc. v. Martin, 906 F.2d 1147,

1153 (7th Cir. 1990). Moreover, the question of whether or not to retain supplemental

jurisdiction did not arise until the federal claims were dismissed, earlier in this order.

For these reasons, the court concludes that the second exception to the

presumption does not apply. This is not a relinquishment that would “clearly

15
disserve[ ]” judicial economy. See Williams Elecs. Games, Inc. v. Garrity, 479 F. 3d 904, 906

(7th Cir. 2007).

As to the third exception, the court notes, again, that it has not yet addressed the

merits of the state-law claim, and therefore it is not absolutely clear to this court how

the claim will be decided. In their motion for summary judgment, the City Defendants

ask the court to reach the merits of the wrongful death claim and to dismiss the claim

based on the state-law doctrine of contributory negligence. (DE # 34 at 11.) In making

this argument, they also ask the court to conclude that plaintiff has violated the Indiana

penal code, in order to find negligence per se. (Id.) Such determinations require an

understanding of Indiana state law that is more likely to be found in an Indiana state

court with relative expertise in those areas. Therefore, the third exception to the

presumption does not apply.

For the foregoing reasons, the court finds no reason to rebut the presumption of

relinquishment of jurisdiction. 

IV. CONCLUSION 

For the foregoing reasons, the court

(1) GRANTS the Doe Defendants’ motion for summary judgment (DE # 35);

(2) GRANTS in part the City Defendants’ motion for summary judgment (DE

# 33) on the claims for unreasonable seizure, excessive force, and failure to train or

supervise;

(3) DECLINES to exercise jurisdiction over the remaining state law claim; and,

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(4) DISMISSES the remaining claim for lack of jurisdiction.

SO ORDERED.

Date: September 26, 2018

s/James T. Moody 

 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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