DEMETREE WYNN v. CITY OF INDIANAPOLIS, INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT, RANDAL TAYLOR, KENDALE ADAMS, DE‘JOURE MARQUISE MERCER, аnd STEVEN SCOTT
1:20-cv-1638-JMS-MJD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION
October 26, 2020
Hon.
Document 31
ORDER
Plaintiff Demetree Wynn files this action following the fatal shooting of her son, Dreasjon Ire Reed. Ms. Wynn, individually, as the mother of Mr. Reed, and as the personal representative of the Estate of Mr. Reed, asserts various claims under federal and state law against Defendants the City of Indianapolis (“the City“), the Indianapolis Metropolitan Police Department (“IMPD“), IMPD Chief Randal Taylor, IMPD Deputy Chief Kendale Adams, IMPD Officer De‘Joure Marquise Mercer, and IMPD Officer Steven Scott in connection with Mr. Reed‘s death. Defendants have filed a Partial Motion to Dismiss, [Filing No. 15], which is now ripe for the Court‘s decision.
I.
STANDARD OF REVIEW
Under
II.
BACKGROUND
The following are the factual allegations contained in the Complaint, which, consistent with the standard of review articulated above, the Court must accept as true for purposes of deciding the Partial Motion to Dismiss.
At approximately 6:00 p.m. on May 6, 2020, Mr. Reed was driving a gray Toyota Corolla on Interstate 65 near West 30th Street in Indianapolis. [Filing No. 1 at 5.] According to the information provided by IMPD Assistant Chief Chris Bailey to the news media, Deputy Chief Adams was also driving on Interstate 65, in an unmarked vehicle, and observed the Corolla “being driven recklessly as the driver exited the highway.” [Filing No. 1 at 5.] Assistant Chief Bailey further stated to the media that Chief Taylor was also driving on the same highway, just behind Deputy Chief Adams. [Filing No. 1 at 6.] Deputy Chief Adams called for backup as he and Chief Taylor began to pursue the Corolla. [Filing No. 1 at 6.] “According to a subsequent but unsubstantiated police press statement, the driver of the Toyota Corolla almost struck another car.” [Filing No. 1 at 6.] At some point, Mr. Reed realized that he was being pursued by the police, and he positioned the camera on his cellular phone and activated his Facebook account to begin live streaming the pursuit. [Filing No. 1 at 6.]
According to information provided to the press by Assistant Chiеf Bailey, after ten minutes, a police sergeant ordered that the pursuit of the Corolla be terminated because of the speed at which the Corolla was travelling. [Filing No. 1 at 7.] For a moment, Mr. Reed believed that the police were no longer following his vehicle. [Filing No. 1 at 7.] However, as he approached West 62nd Street heading south on North Michigan Road, he noticed that the police were still pursuing him and decided to park the car at the back of a building and flee on foot. [Filing No. 1 at 7.]
Officer Mercer came upon the parked Corolla and continued to pursue Mr. Reed on foot. [Filing No. 1 at 7.] Seconds after Mr. Reed began running, Officer Mercer deployed his electronic control device
The Facebook live recording captured the sounds of the shooting and the conversations of the police officers that occurred immediately thereafter. [Filing No. 1 at 7.] Unaware that their conversation was being recorded, and in response to viewing the wounds on Mr. Reed‘s body, Officer Scott remarked, “I think it‘s going to be a closed casket, homie.” [Filing No. 1 at 7-8.] Shortly thereafter, the officers became aware that their conversations were being recorded, and at that point they “began to formulate a theory about what transpired just prior to the fatal shooting,” which “was contrary to the objective evidence.” [Filing No. 1 at 8.]
The Complaint alleges that the City “has a longstanding record of not providing IMPD officers with adequate training and not preventing excessive use of force against racial minorities,” including “the failure to provide meaningful training and supervision regarding the use of non-lethal force and the use of deadly force, such as force used against people fleeing from police officers; inadequate post-incident review; and a lack of meaningful discipline for excessive force, including the use of unjustified deadly force.” [Filing No. 1 at 8.] Specifically, Ms. Wynn alleges that the IMPD failed to provide: (1) adequate training to Officer Mercer and other officers concerning the use of ECDs and the use of deadly force; and (2) adequate training to Chief Taylor, Deputy Chief Adams, Officer Mercer, and others concerning the appropriate methods and techniques for initiating and terminating vehicle pursuits and foot pursuits. [Filing No. 1 at 10.]
Ms. Wynn asserts various claims, organized into eight counts. At the outset, the Court notes that Ms. Wynn does not specify against which Defendant(s) eаch claim is asserted and seeks judgment “against Defendants“—presumably, all Defendants—with respect to each count. [Filing No. 1 at 10-18.] Ms. Wynn also uses vague phrases referencing the conduct of “Officer Mercer and others” or “the Defendants’ misconduct.” This practice is imprecise and unhelpful.
Nevertheless, the Court has done its best to determine which claims are lodged against which Defendants and, where appropriate, considers the claim to be asserted against all Defendants.
In Count I, “Violation of
In Count II, “Violation of
In Count III, “State Law Wrongful Death Claim; Intentional or Reckless Battery,” Ms. Wynn alleges that Mr. Reed died “[a]s a direct and proximate result of the foregoing willful and wanton acts of Officer Mercer and others, IMPD, and the City.” [Filing No. 1 at 14.] She further alleges that “[t]he individual defendants’ actions were the proximate cause of [Mr. Reed]‘s great bodily harm and death, as well as [Mr. Reеd]‘s great pain and suffering.” [Filing No. 1 at 14.] The Court interprets this count to assert claims for battery against Officer Mercer, the City, and the IMPD only, and wrongful death against all Defendants.
In Count IV, “Intentional Infliction of Emotional Distress” (“IIED“), Ms. Wynn references the comment made by Officer Scott following the shooting of Mr. Reed, and alleges that “[t]he conduct of the Defendants and each of them was intentional, oppressive, malicious and/or in wanton disregard of the rights and feelings of [Ms.] Wynn and constitutes despicable conduct.” [Filing No. 1 at 15.] Because only Officer Scott‘s conduct is mentioned specifically as the cause of emotional harm, the Court interprets this count to assert and IIED claim against Officer Scott, the City, and the IMPD, but not against any of the other individual Defendants.
In Count V, “Negligent Infliction of Emotional Distress” (“NIED“), Ms. Wynn alleges: “In doing each and all of the acts alleged herein, Defendants engaged in a course of conduct which was grossly negligent, extreme, and outrageous. Defendants engaged in said conduct with wanton and reckless disregard of the consequences or harm or injury that might result to [Ms.] Wynn.” [Filing No. 1 at 16.] She further alleges that “Defendants, despite knowledge and adequate opportunity to learn of the misconduct of their agents and employees, adopted, approved, and ratified the acts, omissions, and misconduct of their agents and employees.” [Filing No. 1 at 16.] The Court interprets this count to assert an NIED claim against all Defendants.
In Count VI, “42 U.S.C. § 1983 Denial of Medical Attention,” Ms. Wynn alleges that after Officer Mercer deployed his ECD against Mr. Reed, “[r]ather than seeking medical care for [Mr.] Reed, Officer Mercer fired several shots at [Mr.] Reed, thereby denying [Mr.] Reed necessary medical attention and causing him undue pain and suffering.” [Filing No. 1 at 16-17.] The Court interprets this count as asserting a claim only against Officer Mercer.
In Count VII, “Vicarious Liability – Respondeat Superior,” Ms. Wynn alleges that, at all relevant times, Chief Taylor, Deputy Chief Adams, Officer Mercer, Officer Scott, “and others” were acting within the scope of their employment and as agents of the City and the IMPD. [Filing No. 1 at 17.] Accordingly, Ms. Wynn alleges, liability is imputed to the City and the IMPD “under the principles of
Finally, in Count VIII, “Indemnification Claim,” Ms. Wynn alleges that Chief Taylor, Deputy Chief Adams, Officer Reed, and Officer Scott were at all relevant times acting within the scope of their employment, and therefore the City and the IMPD should indemnify them. [Filing No. 1 at 18.] The Court interprets this count to assert claims against the City and the IMPD only.
Defendants collectively filed a Partial Motion to Dismiss, sеeking to dismiss all claims against the IMPD; all claims against Chief Taylor, Deputy Chief Adams, and Officer Scott; the wrongful death claim; the IIED claim; the NIED claim; the respondeat superior claim; and the indemnification claim. [Filing No. 15.] Defendants assert that the indemnification claim should be dismissed without prejudice, but the other claims should be dismissed with prejudice. [Filing No. 15 at 1-2.]
III.
DISCUSSION
A. Claims Against the IMPD
Defendants argue that the IMPD is not a suable entity, and therefore all claims against it must be dismissed. [Filing No. 16 at 3.] Specifically, Defendants assert that although municipal corporations have the capacity to sue and be sued under Indiana law, their individual departments and agencies do not, and courts have consistently recognized that the IMPD is not suable except in the context of lawsuits for access to public records, which is not the case here. [Filing No. 16 at 3-4.]
In response, Ms. Wynn acknowledges that “[c]ourts generally support the defendants’ argument in this regard.” [Filing No. 20 at 14.] Ms. Wynn summarizes Indiana law regarding municipal corporations and states, “[a]lthough the IMPD is a substantially autonomous agency of the city, Plaintiff has not found an instance where the courts have allowed a lawsuit to proceed against the IMPD as an agency of the State of Indiana.” [Filing No. 20 at 7.]
Defendants did not file a reply.
Ms. Wynn essentially concedes that that the IMPD is not a suable entity. Moreover, the Court observes that local government liability is dependent upon an analysis of state law, and the Seventh Circuit Court of Appeals has expressly stated that “the Indiana statutory scheme does not grant municipal police dеpartments the capacity to sue or be sued.” Sow v. Fortville Police Dep‘t, 636 F.3d 293, 300 (7th Cir. 2011) (affirming the district court‘s holding that the McCordsville, Indiana Police Department and the Fortville, Indiana Police Department are not suable entities). See also Perry v. Thomas, 2011 WL 693622, at *4 (S.D. Ind. Feb. 18, 2011) (concluding that “[t]he IMPD is not a suable entity and thus not a proper party” to an action asserting claims under
B. Excessive Force Under § 1983
Defendants argue that Ms. Wynn has failed to state a
In response, Ms. Wynn argues that responsibility for Mr. Reed‘s death “rests squarely on the shoulders of these named police officers.” [Filing No. 20 at 13.] Ms. Wynn points to allegations in the Complaint that Officer Mercer‘s use of excessive force was the result of a policy or custom of the IMPD and the City, that Chief Taylor and Deputy Chief Adams initiated the pursuit of Mr. Reed and ignored the order to stop, and that they were not properly trained on how to initiate or terminate vehicle pursuits. [Filing No. 20 at 12-13.]
Individual liability pursuant to
“In certain cases liability under
Here, although Ms. Wynn asserts her claim for excessive force against all Defendants, the only act of force she refers to in the Complaint is the fatal shooting of Mr. Reed, and potentially the use of an ECD, by Officer Mercer. She does not allege that Chief Taylor, Deputy Chief Adams, or Officer Scott participated in the shooting or were present at the scene when the shooting occurred. Accordingly, Ms. Wynn has not stated a claim for excessive force under
C. State Law Claims
1. The Parties’ Arguments
Defendants argue that, pursuant to the Indiana Tort Claims Act (“ITCA“), they are immune from liability for Ms. Wynn‘s state law claims for IIED, NIED, and wrongful death. [Filing No. 16 at 4-5.] They assert that Ms. Wynn has alleged that Officers Mercer and Scott were acting within the course and scope of their employment, and therefore the ITCA immunizes them from these claims. [Filing No. 16 at 5.] Defendants further argue, without elaboration, that “under the same analysis, the City is not liable under a theory of respondeat superior for these claims.” [Filing No. 16 at 5.]
Defendants also argue that Ms. Wynn‘s IIED claim fails as a matter of law because she has not alleged that Officer Scott acted with an intent to harm. [Filing No. 16 at 6.] Because the Complaint alleges that the officers did not know that they were being recorded or streamed on Facebook, Defendants assert, Officer Scott had no knowledge that Ms. Wynn would hear his remark and therefore could not have intended to harm her. [Filing No. 6 at 16.]
In response, Ms. Wynn argues that because Defendants denied in their Answer that Chief Taylor and Deputy Chief Adams were acting within the scope of their employment when they initiated the pursuit that led to the death of Mr. Reed, Defendants cannot now assert that the ITCA shields them from liability. [Filing No. 20 at 9.] Ms. Wynn asserts that Defendants’ argument as to Officers Mercer and Scott “ignores the fact that the police involved in the shooting death of [Mr.] Reed were named in their individual and official capacities.” [Filing No. 20 at 9.] Ms. Wynn argues that Defendants rely upon “cases that do not address the ITCA, but rather general immunity.” [Filing No. 20 at 10.] She further asserts that Defendants do not explain how they are not liable under a theory of respondeat superior. [Filing No. 20 at 10.] Because “[t]here is рotential in this case that Officer Mercer and possibly other police officers will be criminally prosecuted,” Ms. Wynn argues, “[i]t is without question that liability can be imposed upon the city of Indianapolis under respondeat superior for the tortious or criminal acts of its employees.” [Filing No. 20 at 10.] Ms. Wynn also argues that Indiana law does not provide blanket immunity to police officers engaged in law enforcement activities. [Filing No. 20 at 14.]
Regarding the IIED claim, Ms. Wynn asserts that “[i]t is true that Officer Scott may not have been unaware (sic) that Reed‘s telephone was capturing his conversation with the other police officers present. However, his utterance was reckless and done with callous disregard for human life.” [Filing No. 20 at 11.] She argues that because Officer Scоtt was speaking in an open area and given the ubiquity of recording devices in modern society, he should have known that there was a high probability that Ms. Wynn and others would hear his remarks. [Filing No. 20 at 12.]
2. Immunity Principles Under the ITCA
The ITCA,
In addition, the law enforcement immunity provision of the ITCA provides that a “governmental entity or an employee acting within the scope of the employee‘s employment is not liable if a loss results from . . . [t]he adoption and enforcement of or failure to adopt or enforce . . . a law . . . unless the act of enforcement constitutes false arrest or false imprisonment.”
The Indiana Supreme Court has recognized, however, that police conduct that brеaches an independent statutory duty is not immunized by the law enforcement provision of the ITCA. Wilson v. Isaacs, 929 N.E.2d 200, 203 (Ind. 2010) (discussing Patrick v. Miresso, 848 N.E.2d 1083 (Ind. 2006)). For example, because
barred by law enforcement immunity, courts must look to the conduct forming the foundation of the claim, rather than relying on the legal theory upon which the claim is based. See Bowens v. City of Indianapolis, 2014 WL 4680662, at *7 (S.D. Ind. Sept. 19, 2014) (“[I]mmunities afforded governmental defendants focus not on legal theories but on conduct. The court must therefore focus on whether the alleged conduct is immunized under the law enfоrcement immunity provision at
The Complaint expressly alleges that Officers Mercer and Scott were acting within the scope of their employment at all relevant times. [Filing No. 1 at 4.] Accordingly, they cannot be
held personally liable for Ms. Wynn‘s state law claims for IIED, NIED, or wrongful death.3
4. Claims Against Chief Taylor and Deputy Chief Adams
a. Immunity
The Complaint alleges that Chief Taylor and Deputy Chief Adams were acting within the scope of their employment at all times relevant to this lawsuit. [Filing No. 1 at 4.] However, Defendants expressly deny this allegation in their Answer, [Filing No. 17 at 3], but simultaneously argue that Defendants are immune because they were acting within the scope of their employment, [Filing No. 16 at 4-5]. Although the Court generally does not consider a defendant‘s answer in ruling on a
Defendants to take one position in their Partial Motion to Dismiss and the opposite position in the Answer. The Court will hold Defendants to their pleading. See Ocasio v. Turner, 19 F. Supp. 3d 841, 860-61 (N.D. Ind. 2014) (“If a plaintiff alleges that an employee was acting within the scope of his employment, the plaintiff is barred from bringing a state law tort claim against the employee personally
b. Suffiсiency of the Allegations Against Chief Taylor and Deputy Chief Adams
Defendants also assert, without elaboration, that the Complaint “does not allege that Chief Taylor and Deputy Chief Adams engaged in any tortious conduct” and instead “merely indicates that they were the first officers to encounter [Mr.] Reed.” [Filing No. 16 at 7.] Defendants argue that, because “Chief Taylor and Deputy Chief Adams may not be held liable for their actions in enforcing the law under Indiana law,” they cannot be held liable for any of Ms. Wynn‘s state law claims. [Filing No. 16 at 7-8.]
Ms. Wynn does not specifically address this argument, as it relates to the sufficiency of the state law claims independent of the immunity issue, in her response. [See Filing No. 20 at 13-14 (arguing in a section titled “Whether Chief Taylor and Deputy Chief Adams are not alleged to have engaged in any tortious conduct” that: (1) “a claimant may impose personal liability on a government official under
As stated above, the Court will not grant immunity to Chief Taylor and Deputy Chief Adam at this juncture, given that Defendants deny in their Answer that Chief Taylor and Deputy Chief Adams were acting within the scope of their employment. Accordingly, the Court will consider whether the allegations in the Complaint are sufficient to state claims against Chief Taylor and Deputy Chief Adams for wrongful death and NIED under Indiana law, disregarding any potential immunity defense.
i. Wrongful Death
Pursuant to Indiana‘s wrongful death statute, the personal representative of the decedent may maintain an action for wrongful death against a defendant “[w]hen the death of [the decedent] is caused by the wrongful act or omission of [the defendant].”
ii. NIED
In order to state a claim for NIED, a plaintiff who did not herself suffer a direct impact must satisfy the requirements of the bystander rule. Spangler v. Bechtel, 958 N.E.2d 458, 466 (Ind. 2011). Under this rule, the plaintiff must “establish ‘direct involvement’ by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant‘s negligent or otherwise tortuous conduct.” Groves v. Taylor, 729 N.E.2d 569, 573 (Ind. 2000).
Ms. Wynn alleges that Chief Taylor and Deputy Chief Adams‘s commencement of and participation in the vehicle chase, and failure to terminate the chase when it was called off—all of which were viеwable to others on Facebook—were negligent, caused Mr. Reed‘s death, and caused emotional distress to Ms. Wynn. Again, Defendants did not raise or develop any specific argument as to why these allegations are insufficient to state a claim for NIED. See Draper, 664 F.3d at 1114. The Court concludes that Ms. Wynn‘s allegations meet the minimum requirements of notice pleading, and therefore Defendants’ Partial Motion to dismiss is DENIED as to the NIED claim against Chief Taylor and Deputy Chief Adams, which shall proceed.
5. Claims Against the City
It is well settled in Indiana that, under the doctrine of respondeat superior, an employer is vicariously liable for an employee‘s tortious conduct if that conduct occurred within the scope of employment. E.g., Cox v. Evansville Police Dep‘t, 107 N.E.3d 453, 460 (Ind. 2018). As noted above, Ms. Wynn alleges in her Complaint that Officers Mercer and Scott were acting within the scope of their employment аt all relevant times and therefore claims based on their conduct are properly asserted against the City.5 The Court will next consider whether and to what extent each of the claims against the City are barred by law enforcement immunity.
a. Wrongful Death
Regarding the wrongful death claim, the Complaint alleges that Officer Mercer used excessive force against Mr. Reed by fatally shooting him and that this force resulted in Mr. Reed‘s wrongful death. [Filing No. 1 at 2; Filing No. 1 at 10-11; Filing No. 1 at 14-15.] Because Indiana law prohibits the use of excessive force and prohibits the use of deadly force unless certain circumstances are present,
b. IIED
As for the IIED claim, the Complaint specifically references Officer Scott‘s remark about a “closed casket,” [Filing No. 1 at 15], and Ms. Wynn‘s response to Defendants’ Partial Motion to Dismiss focuses only on Officer Scott‘s comment, [see Filing No. 20]. Because Ms. Wynn alleges that Officer Scott was acting within the scope of his employment when he made the comment in question, and because his utterance does not constitute the use of excessive force or violate any other identified Indiana statute, Ms. Wynn‘s IIED claim is barred by law enforcement immunity. See Parish v. City of Elkhart, 2010 WL 4054271, at *4 (N.D. Ind. Oct. 15, 2010) (applying law enforcement immunity where the plaintiff was “not arguing that the City of Elkhart violated any statute in connection with the IIED claim“). Defendants’ Partial Motion to Dismiss is therefore GRANTED to the extent that the IIED claim against the City is dismissed.7
c. NIED
Ms. Wynn alleges that the individual Defendants were negligent in initiating the pursuit, continuing the pursuit, and ultimately shooting Mr. Reed, which resulted in Mr. Reed‘s death. [Filing No. 1 at 16.] To the extent that this claim is based upon conduct allegedly constituting excessive force, it is not barred by the law enforcement immunity provision. See Bowens, 2014 WL 4680662, at *7; Todero, 383 F. Supp. 3d at 842. Defendants’ Motion to Dismiss is DENIED to the extent it seeks dismissal of this claim based on law enforcement immunity.
D. Indemnification Claim
Defendants argue that Ms. Wynn‘s indemnification claim should be dismissed without prejudice because it is not yet ripe. [Filing No. 16 at 8.] Decisions about indemnification, Defendants assert, should be postponed until liability has been established. [Filing No. 16 at 8.]
“A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotations and citation omitted). An indemnification claim is not ripe unless and until liability is established. Med. Assur. Co. v. Hellman, 610 F.3d 371, 375 (7th Cir. 2010). The Seventh Circuit has made clear that the proper disposition of an unripe duty-to-indemnify claim is to dismiss it. Id.; see also Humphrey v. City of Anderson, 2020 WL 3060363, at *12 (S.D. Ind. June 8, 2020) (dismissing without prejudice as unripe a claim seeking to require the City of Anderson, Indiana to indemnify two of its police officers because the officers’ liability had not yet been established).
Because liability has not been established against any Defendant in this lawsuit, Ms. Wynn‘s indemnification claim is not ripe. Accordingly, Defendants’ Partial Motion to Dismiss is GRANTED to the extent that the indemnification claim is dismissed without prejudice.
IV.
CONCLUSION
Based on the foregoing, Defendants’ Partial Motion to Dismiss, [15], is GRANTED IN PART and DENIED IN PART as follows:
- The Motion is GRANTED to the extent that the freestanding respondeat superior claim is DISMISSED without prejudice as duplicative;
- The Motion is GRANTED to the extent that all claims against the IMPD are DISMISSED with prejudice as they are only properly asserted against the City of Indianapolis;
- The Motion is GRANTED to the extent that Ms. Wynn‘s
§ 1983 excessive force claims against Chief Taylor, Deputy Chief Adams, and Officer Scott are DISMISSED with prejudice; - The Motion is GRANTED to the extent that Ms. Wynn‘s state law claims for NIED, wrongful death, and IIED against Officers Mercer and Scott individually are DISMISSED with prejudice;
- The Motion is DENIED to the extent that it seeks dismissal of the NIED and wrongful death claims against Chief Taylor and Deputy Chief Adams individually based on immunity or failure to state a claim;
- The Motion is DENIED to the extent that it seeks dismissal of the NIED and wrongful death claims against the City based on law enforcement immunity;
- The Motion is GRANTED to the extent that Ms. Wynn‘s IIED claim in its entirety is DISMISSED with prejudice; and
- The Motion is GRANTED to the extent that Ms. Wynn‘s indemnification claim is DISMISSED without prejudice as unripe.
In addition, the Clerk is DIRECTED to terminate the Indianapolis Metropolitan Police Department and Officer Steven Scott as parties to this action.
The following claims shall proceed, either because Defendants did not ask the Court to dismiss them or because the Motion was denied as to these claims:
§ 1983 claim for excessive force against Officer Mercer individually and against the City under Monell;§ 1983 Monell claim for failure to train against the City;-
Wrongful death claim against the City, Chief Taylor, and Deputy Chief Adams; - Battery claim against Officer Mercer and the City;
- NIED claim against the City, Chief Taylor, and Deputy Chief Adams; and
§ 1983 claim for denial of medical care against Officer Mercer.
Date: 10/26/2020
Jane Magnus-Stinson
Hon. Jane Magnus-Stinson, Chief Judge
United States District Court
Southern District of Indiana
Distribution via ECF only to all counsel of record