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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARA MANCINI and K. C. by his next friend
and father, CLYDE CLARK,
Plaintiff,
v.
CITY OF INDIANAPOLIS, DOES 1-50, and
ROE CORPORATIONS 1-10,
Defendants.

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ENTRY ON DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT TO EXCLUDE EXPERT
This matter is before the Court on a Motion for Summary Judgment (Filing No. 65) filed
by Defendant City of Indianapolis (“the City”). Also before the Court is the City’s Motion to
Exclude Testimony of Ernest Burwell, (Filing No. 75), Plaintiffs’ proposed expert witness.
Plaintiffs Mara Mancini (“Mancini”) and her son K.C. (“K.C.”) (collectively, the “Plaintiffs”) filed
this action alleging constitutional claims pursuant to 42 U.S.C. § 1983, as well as a Monell claim,
follow a tragic dog bite incident. For the reasons stated below, the Court grants the City’s Motion
for Summary Judgment and denies as moot, the Motion to Exclude.
I.

BACKGROUND

For the most part, the material facts are not in dispute. However, as the summary judgment
standard requires, the undisputed facts and any disputed evidence are presented in the light most
favorable to Mancini as the non-moving party. See Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 150 (2000). On July 16, 2015, at approximately 10:19 p.m., Indianapolis
Metropolitan Police Department (“IMPD”) Officer Jon King (“King”) initiated a traffic stop on a
car with an expired license plate. (Filing No. 66-1 at 7.) The driver, Dequarius Walker (“Walker”),

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stopped and exited his car while crouching down so that King could only see the top of Walker’s
head. Id. at 10. Because Walker took a position of cover, King feared that Walker was armed.
King stayed behind his car and requested backup officers over his radio and indicated he believed
the suspect was armed. Walker fled into an alley. King did not follow Walker because he believed
Walker was armed.

Several officers arrived on the scene including Officer Greg Stewart

(“Stewart”), with his canine partner Scooter. Id. at 11. King informed Stewart that the believed
Walker was armed, and that Walker had run into the alley. (Filing No. 66-4 at 29.) Since the
suspect could possibly be armed and in a residential area, Stewart decided to attempt to locate the
subject with his canine partner. (Filing No. 66-2 at 5.) Before he deployed Scooter, Stewart made
the following “loud announcements” into the alley, in both English and Spanish: “Police K-9.
Come out now and surrender or I’ll search [with] my dog. You may be bit.” Id. at 30. Getting no
response, Stewart returned to his patrol car to retrieve Scooter, hooked a leash onto Scooter’s
harness, and began tracking up the alley with Scooter on the leash. (Filing No. 66-2 at 5.) King
and another officer followed behind.
As they passed a backyard, Scooter began pulling Stewart back towards the yard. (Filing
No. 66-4 at 31.) When Stewart arrived at the yard fence line, Walker suddenly stood up. Id.
Stewart ordered Walker to show his hands. However, Walker did not show his hands and instead
fled over the fence. Id. at 32. As Walker fled, Stewart and Scooter ran after him in an adjacent
backyard and Stewart shouted, “Stop, police, or I’ll send the dog.” Id. at 70. Again, Walker did
not comply and continued to run. Knowing that Scooter was “locked onto” Walker as the target
of the pursuit, Stewart dropped Scooter’s leash and allowed Scooter to lead. Id. at 33.
Scooter was trained to apprehend only the suspect that he is targeted on and pursuing,
(Filing No. 66-2 at 2, Filing No. 66-4 at 57-60, 62-63). He is not trained to bite the first person he

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comes into contact with. (Filing No. 66-2 at 2.) Canines can be targeted to pursue a particular
suspect, (Filing No. 72-1 at 23), however, they cannot be trained to differentiate between a guilty
person and an innocent person and dogs have no cognitive reasoning (Filing No. 72-4 at 7-8).
As Scooter was about to apprehend him, Walker barrel-rolled over a fence into Mancini’s
front yard. Stewart instructed Scooter to jump over the fence, with the command “Hup, hup, hup”
(Filing No. 66-4 at 33), but Scooter did not jump the fence. Walker landed on the ground inside
the fenced yard. Scooter followed Walker down the fence row, on the opposite side of the picket
fence. Walker ran to the back of Mancini’s house, in which Mancini’s dogs were barking. Scooter
also made his way into Mancini’s backyard by pushing through a board connecting Mancini’s
house and a neighbor’s house. Id. As Scooter was pushing through the board, Walker went into
the neighbor’s fenced-in backyard. (Filing No. 66-4 at 34.) Stewart could tell from the barking
that there were multiple dogs. He could “hear the dogs in the commotion of moving”, but he could
not see Scooter, Walker, or what was going on anymore. Id. Therefore, Stewart began to recall
Scooter to Stewart’s position on the opposite side of the picket fence in the corner that Scooter had
pushed through. Id. While recalling Scooter, Stewart could hear King yelling “Go back inside.
Go back inside.” Id.
Meanwhile, Mancini heard her dogs barking in her back yard and went outside on her
porch, because she thought another dog had possibly entered her yard and was fighting her dogs.
(Filing No. 66-6 at 32.) Mancini observed Scooter next to her porch, but mistakenly believed it
was her dog, who is a German shepherd mix and the same color as Scooter. (Filing No. 72-2 at
11.) When she came outside, simultaneously (or within seconds) of hearing King yelling for her
“go back inside”, Scooter jumped onto Mancini. Id. at 12. Mancini recalls that Scooter was
“already jumping at me by the time I heard them tell me to go back into the house.” (Filing No.

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72-1.) Scooter bit Mancini’s arm initially while dragging her to the ground, and then bit her leg
once she was on the ground 1. Id. at 12-13. Mancini believes the mauling lasted no more than 1520 seconds, (Filing No. 72-2 at 12), and Stewart testified that all events occurred in “less than a
minute, in seconds”. (Filing No. 66-4 at 66.) Stewart reached Mancini and grabbed Scooter by
his harness, pulling him up. Id. at 51. Scooter released the bite as Stewart began to lift him up by
his harness.
Mancini does not remember how Scooter disengaged, but she remembers police officers
coming to her aid and providing care. (Filing No. 72-2 at 12-14.) King also injured his arm when
he smashed through Mancini’s fence in an attempt to assist her. (Filing No. 66-1 at 33.) The first
ambulance to arrive at the scene attended to Mancini, and the second ambulance attended to King.
(Filing No. 72-2 at 16; Filing No. 66-7 at 10.)
Mancini was pregnant with K.C. at the time of the attack. She sustained extensive fleshtearing injuries which required emergency care and surgery. (Filing No. 11 at 4-6.) Her wounds
became infected and additional emergency surgery was required. The extreme stress of the injuries
caused Mancini to experience complications with her pregnancy and K.C. was born one month
early with signs of his mother’s infection and he was addicted to the narcotics prescribed for
Mancini’s pain following the dog attack. Id. at 6.
On August 25, 2016, Plaintiffs filed an Amended Complaint alleging in Count I Fourteenth
Amendment claims against IMPD, the City, several named and unnamed police officers, and
former Chief of Police Rick Hite, in their individual and official capacities. Those claims were

1

There is a factual dispute as to whether Scooter was actually returning to Stewart just before dragging Mancini to
the ground. The City contends that once Mancini realized Scooter was not one of her dogs, she screamed, and then
Scooter diverted from his recall and bit her. (Filing No. 71 at 4; Filing No. 68 at 5.) However, as summary judgment
requires, the disputed evidence is considered in the light most favorable to Mancini, and the Court accept Mancini’s
version of what occurred.

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dismissed with prejudice, but the Court allowed Count II, a Monell claim alleging a Fourth
Amendment violation to proceed—noting in part that at the motion to dismiss stage it had to accept
the allegation that an officer intentionally released Scooter to seize whomever he might come
across. See Filing No. 52 at 9.
II.

LEGAL STANDARD

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Federal Rule of Civil Procedure 56 provides that summary
judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v.
Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary
judgment, the court reviews “the record in the light most favorable to the nonmoving party and
draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584
(7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a
particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific
factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth,
476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the
record in search of evidence to defeat a motion for summary judgment, nor is it permitted to
conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir.
2001) (citation and internal quotations omitted). Indeed, a court may not make credibility
determinations, weigh the evidence, or decide which inferences to draw from the facts. Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (“these are jobs for a factfinder”); Hemsworth, 476 F.3d

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at 490. When ruling on a summary judgment motion, a court’s responsibility is to decide, based
on the evidence of record, whether there is any material dispute of fact that requires a trial. Id.
III. DISCUSSION
The City contends they are entitled to summary judgment because the undisputed evidence
establishes that the Plaintiffs’ Fourth Amendment rights were not violated, and the Monell claim
in Count II fails as a matter of law because Plaintiffs rely on a theory of transferred intent. The
parties agree that Mancini’s Fourth Amendment claims hinge on one question: was she seized?
Additionally, the City moves to exclude Mancini’s expert witness, Ernest Burwell (“Burwell”),
from testifying at trial. (Filing No. 75.) The Court will first address the proposed disputed issues
of material facts.
A.

Genuine Issues of Material Facts
Mancini argues that there are two issues of material facts in dispute: “1) [w]hether K-9

Scooter was trained to attack the first person he came across, and 2) [w]hether K-9 Scooter was
being recalled at the time of the seizure.” (Filing No. 71 at 15.) The City responds that the
undisputed evidence forecloses both of these questions. (Filing No. 74 at 11, 13.)
1.

Whether Scooter was trained to attack the first person he came across

There is no evidence that disputes Stewart’s testimony regarding how Scooter was trained.
As Scooter’s handler, Stewart participated in Scooter’s training. Scooter is not trained to bite the
first person he comes into contact with, rather he is trained to apprehend only the suspect that he
is targeted on and pursuing (Filing No. 66-2 at 2). On July 16, 2015, Walker “was the only person
Stewart expected Scooter to contact because Scooter is trained to apprehend the person he is
targeted on and nobody else.” (Filing No. 74 at 11) (emphasis in original). The City is correct
that Stewart’s expectation that Walker would be the first person Scooter contacted is not evidence

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that Scooter is trained to attack whomever he came across. It is undisputed that Scooter was
unleashed to apprehend Walker—an intentional deployment.
Mancini contends that Scooter being trained and commanded to seize a person is sufficient
to constitute a Fourth Amendment seizure of her person.
Q: And when you released Scooter, did you intend for him to apprehend, you know
the first human he contacted?
A: (Officer Stewart): I expected him to get Mr. Walker when he was locked on to
here [sic], yes.
Q: And did you believe that Mr. Walker would be the first human that Scooter
contacted?
A: Yes.
(Filing No. 72-1 at 27.) Mancini argues there is a genuine issue of material fact regarding whether
Scooter was trained to attack the first person he comes across, because canines cannot be trained
to differentiate between apprehending a guilty person and an innocent person. Mancini points to
the City’s expert witness, Sergeant Craig Patton’s testimony that dogs don’t have cognitive
reasoning (Filing No. 72-4 at 8). However, nothing in Patton’s testimony supports Mancini’s claim
that Scooter was actually trained to attack whomever he came across. The unambiguous evidence
confirms that IMPD does not train and deploy police dogs to attack whomever they happen to
encounter, and Stewart’s testimony confirms that Scooter was not trained to attack the first person
he comes across. Drawing all reasonable inferences in favor of Mancini as the nonmoving party,
the Court finds no genuine issue of material fact regarding whether Scooter was actually trained
to attack the first person he encountered.
2.

Whether Scooter was being recalled at the time Mancini was attacked

The City contends that Stewart was recalling Scooter at the time Mancini stepped outside,
and thus Scooter was not being deployed to apprehend anyone when the alleged seizure occurred.
(Filing No. 68 at19.) It is undisputed that Mancini, King, and Stewart are the three people that

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witnessed the incident on the night in question. Mancini points out that while she and King
testified and recalled hearing Stewart and King telling Mancini to “go back inside”, Stewart is the
only witness with the recollection that he was verbally recalling Scooter as well. (Filing No. 72-5
at 10-11; Filing No. 72-2 at 5.) Mancini argues that based on these differing testimonies, a jury
could reasonably conclude that Stewart was not recalling Scooter when he attacked Mancini.
The City argues that neither King nor Mancini specifically contradicted Stewart’s
testimony that he was recalling Scooter both before and after Mancini stepped outside. However,
at the summary judgment stage, the Court will accept as true that Scooter was not being recalled
at the time of the attack and that the officers’ instructions for Mancini to “go back inside” occurred
simultaneously with Scooter’s attack on Mancini. Regardless, the disputed evidence of whether
Scooter was being recalled when he attacked Mancini is not material for purposes of determining
summary judgment. As explained below, the undisputed evidence confirms that Stewart never
directed any force at Mancini; rather she was an unintended bystander, and there was no Fourth
Amendment seizure.
B.

Fourth Amendment Claim
The Fourth Amendment provides the right to be secure against unreasonable searches and

seizures. The primary point of contention between the parties regarding Plaintiffs’ Fourth
Amendment claim surrounds the meaning of the words “through means intentionally applied” as
defined by the United States Supreme Court in Brower v. Cty. of Inyo, 489 U.S. 593 (1989). The
City contends that Plaintiffs fail to state a claim for unreasonable seizure because Mancini was
never “seized”. The City argues that one is seized under the meaning of the Fourth Amendment
where an actor directs an action at a specific person, that is, where the actor intends the resulting

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consequence. In contrast, Mancini advances the interpretation that “intentionally applied” refers
to a volitional act directed at any person.
Violation of the Fourth Amendment requires an intentional acquisition of physical
control. A seizure occurs even when an unintended person or thing is the object of
the detention or taking. . .but the detention or taking itself must be willful. This is
implicit in the word “seizure,” which can hardly be applied to an unknowing act.
Brower at 596 (emphasis added). The City contends Mancini was unintentionally injured, as a
bystander, and that “unintended injuries are the stuff of state tort laws, not federal constitutional
law.” (Filing No. 68 at 8.) Relying on Brower, Mancini responds that she is asking the Court for
relief under Constitutional law, and “not asking the Court to superimpose a claim under the
Constitution on what is really a tort claim.” (Filing No. 71 at 6.)
Brower distinguished between two scenarios where a parked and unoccupied police car
slips its brake and pins a passerby against a wall and a police car that pulled alongside a fleeing
car, sideswiped it, and produced a crash. Brower at 596. In both scenarios, the results were
unintended, however, in the latter scenario, a seizure occurred when the police officer intentionally
sideswiped the car, which effectively terminated the fleeing car resulting in a seizure. Id. As was
briefed extensively in the City’s Motion to Dismiss, it is undisputed that Mancini was an innocent
bystander, and the officers were in pursuit of Walker on the night in question. (Filing No. 52.)
The primary point of contention between the parties is a legal definition of Brower’s holding on
the words and interpretation of the phrase “through means intentionally applied.”
It is clear, in other words, that a Fourth Amendment seizure does not occur
whenever there is a governmentally caused termination of an individual's freedom
of movement (the innocent passerby), nor even whenever there is a governmentally
caused and governmentally desired termination of an individual's freedom of
movement (the fleeing felon), but only when there is a governmental termination
of freedom of movement through means intentionally applied.

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Brower, 489 U.S. at 596–97(emphasis added).

Relying on Brower, this Court previously

acknowledged that seizure results from intentional actions.
The Supreme Court in Brower explained under what circumstances the
government’s termination of freedom of movement would be construed to be
“through means intentionally applied.” Brower distinguished between two
scenarios where a parked and unoccupied police car slips its brake and pins a
passerby against a wall and a police car that pulled alongside a fleeing car,
sideswiped it, and produced a crash. In both scenarios, the results were unintended,
however, in the latter scenario, a seizure occurred when the police officer
intentionally sideswiped the car, which effectively terminated the fleeing car
resulting in a seizure.
(Filing No. 52 at 8) (citations omitted).
We think it enough for a seizure that a person be stopped by the very instrumentality
set in motion or put in place in order to achieve that result. It was enough here,
therefore, that, according to the allegations of the complaint, Brower was meant to
be stopped by the physical obstacle of the roadblock – and that he was so stopped.
Id. (quoting Brower at 599).
The Seventh Circuit’s decision in Bublitz v. Cottey, 327 F.3d 485 (7th Cir. 2003), forecloses
Mancini’s theory. Bublitz involved a high-speed chase of a fleeing armed robber that ended
tragically “[w]hen police officers attempted to stop a fleeing armed robber by using a tire-deflation
device, [and after the suspect’s car drove over the spikes, it] veered across the highway, colliding
with the minivan in which the Bublitz family was riding. The crash killed Mrs. Bublitz and son
Nathaniel.” Id. at 486. The court found no Fourth Amendment seizure in Bublitz because the
police intended to stop the suspect using the tire deflation spikes, and there was no intent to stop
him by means of some subsequent collision. Id. at 489. In ruling on the City’s Motion to Dismiss,
this Court found that Bublitz was distinguishable from the case at bar and not inconsistent with
Brower because the Seventh Circuit’s holding that the police did not seize plaintiffs was based on
the fact that the plaintiffs were hit by a suspect’s vehicle. (Filing No. 52 at 8.) Although the
suspect’s vehicle crashed into the plaintiffs’ vehicle due to the officers’ intentional deployment of
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a spike system to end a high speed chase, the plaintiffs were seized by a different instrumentality
than that which the officers had intentionally deployed. The Seventh Circuit termed the plaintiffs’
argument as “a kind of transferred-intent argument.” Bublitz, 327 F.3d at 489.
The police officers involved in the high-speed pursuit of Kevin James did not
intentionally apply any means in an attempt to terminate the freedom of movement
of the Bublitz family – the unfortunate collision between James and the Bublitzes
was not a means intended by police to stop the family, but rather an unintended
consequence of an attempt to seize James.
Bublitz, 327 F.3d at 489 (emphasis in original). The City contends that “[w]hether the fleeing
suspect’s car hit the tire-deflation device then hit the Bublitzes’ car or whether the tire-deflation
device hit the Bublitzes’ [sic] directly was immaterial to the transferred-intent argument.” (Filing
No. 74 at 5.) However, as noted previously, the Seventh Circuit explicitly held that the police
officers did not apply any means to terminate the Bublitzes’ freedom of movement; rather it was
the subsequent collision caused by the fleeing suspect’s car that terminated the Bublitzes’ freedom
of movement. Id. at 489. Thus, the fact that it was the fleeing suspect’s car instead that hit the
Bublitzes was material.
The City contends that the dispositive question is whether Mancini was the intended object
of the officer’s force contending that bystander theories have been rejected as transferred-intent
arguments by numerous courts, including the Bublitz court. The parties do not dispute that a
bystander fits squarely under the category of an unintended person. The court agrees that Mancini
misreads Brower, and that the Brower court was necessarily referring to mistaken-identity cases.
(Filing No. 74 at 3.) That Stewart released Scooter intending to seize the fleeing suspect does not
mean that the officers intended to seize any other person—just as in Bublitz, the officer’s decision
to set up a spike strip did not mean that the officer intended to seize just any driver that happened

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to drive by. Bublitz specifically rejected the broad reading of “intentionally applied” advanced by
Mancini. Rather, “intentionally applied” requires the intent to restrain a particular person.
Mancini relies not only on Brower, but also McKay v. City of Hayward, as cases which
considered facts similar to the case at hand in the context of a police dog biting an innocent
bystander when the police officers were in pursuit of a suspect who fled after a traffic violation.
949 F. Supp.2d 971, 979 (N.D. Cal. 2013). In McKay, although an innocent bystander was bitten,
the court held that a seizure did occur. Id. (“That [the plaintiff] was not the robber or the target of
the search does not matter. What creates the seizure is the government’s—here the [police
department and police dog handler] in particular—intentional deployment of a police dog trained
to track and bite a person.”). The City notes persuasively that the Ninth Circuit has since rejected
a bystander cause of action, espoused in McKay, by pointing to the decision in Gangstee v. County
of Sacramento, affirming a district court’s grant of summary judgment to defendants. 567
Fed.Appx. 500, 501 (9th Cir. 2014). (Filing No. 74 at 7.)
Gangstee is a bystander dog bite case holding that a plaintiff bitten by a police canine can
maintain a claim under the Fourth Amendment only if she was the intended object of the force.
Mancini attempts to distinguish the facts in Gangstee from her case by arguing that the police
officer in Gangstee did not deploy the canine, rather the canine “got away from his handler”.
(Filing No. 71 at 12.) In Gangstee, the plaintiff, an innocent bystander, was bitten by a police dog
when the police handler removed his dog from his car without a leash. The plaintiff noticed her
son in the vicinity of the police and ran outside towards her son. The unleashed canine chased
after the plaintiff and bit her, until the canine officer reached the plaintiff releasing her. The court
first noted “police-dog cases, though, require a special breed of analysis. Once deployed, a policedog is generally unable to discriminate between suspects and innocent parties and is generally

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trained to bite whomever it encounters, facts suggesting the officer’s intention to seize whomever
the dog ultimately does encounter.” Id. at *5. The police officer, as well as the plaintiff’s
witnesses, declared that the police officer did not give any commands to the canine prior to the
canine chasing Gangstee. Because there was no command given to the canine, the court held that
having the dog unleashed outside of the car, was insufficient for intentional deployment, and thus
plaintiff’s Fourth Amendment claim could not survive summary judgment. Id. at *7.
Peterson v. City of Federal Way, 2007 WL 2110336, at *1 (W.D. Wash. July 18, 2007),
also involved an innocent bystander bitten by a police canine when an officer used the canine to
track a suspect through a residential area. The court held that because indisputably the wrong
person was seized, no seizure occurred under the Fourth Amendment. Id. at *4. As noted
previously, consistent with Brower, unintended persons may be the object of a seizure, so long as
the act is intentional. Brower, 489 U.S. at 596–97.
The City also cites Warfield v. City of Chicago, a case involving an innocent bystander that
was hit by an officer’s bullet as the officers pursued a fleeing suspect in the bystander’s vicinity.
565 F.Supp.2d 948 (N.D. Ill. 2008). The district court rejected the transferred-intent argument and
held that no seizure had occurred. Id. at 963-64. The City also cites several other bystander-bullet
cases in which courts have held no Fourth Amendment seizures occurred. (Filing No. 68 at 1214.) Mancini responds that these cases “should be distinguished for the simple reason that a bullet
– which generally follows a predictable trajectory – is not the same thing as a dog.” (Filing No.
71 at 12.) The Court is not persuaded by this argument and Mancini offers no authority to support
her contention.
Mancini argues that this is not a transferred-intent case. (Filing No. 71 at 11) (“[T]he IMPD
intended to stop a person using K-9 Scooter, and that is what happened.”). However, transferred

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intent is precisely the basis of Mancini’s argument. As noted by the City, “the many cases rejecting
transferred intent in the police-canine context are directly on point and belie the plaintiffs’ claim
that some special constitutional rule applies in dog-bite cases”. (Filing No. 74 at 9.) This case is
no longer before the Court solely on the pleadings. The undisputed evidence is that Mancini was
not the intended object of the officers’ efforts to seize the fleeing suspect. Stewart’s release of
Scooter, intending to seize the fleeing suspect does not mean that the officers intended to seize any
other person—just as in Bublitz, the officer’s decision to set up a spike strip did not mean that the
officer intended to seize just any driver that happened to drive by. Bublitz specifically rejected the
broad reading of “intentionally applied” advanced by Plaintiffs. There are a plethora of cases
which confirm that “intentionally applied” requires the intent to restrain a particular person.
Accordingly, the Court finds that no seizure occurred and summary judgment is granted on the
Fourth Amendment claim.
C.

Monell Claim
Mancini alleges her unreasonable seizure claim under the Fourth Amendment against the

City pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658
(1978). An “underlying constitutional injury is a necessary element of a Monell claim.” (Filing
No. 68 at 9) (quoting White v. City of Chicago, 829 F.3d 837, 844 (7th Cir. 2016)).
Therefore, a ‘municipality is only responsible for its employees’ actions if taken
pursuant to an unconstitutional policy or custom of the municipality itself’ or when
a ‘valid policy is unconstitutionally applied by a municipal employee’ who has not
been adequately trained and the constitutional wrong has been caused by that failure
to train.
Roddy v. Canine Officer, 293 F. Supp. 2d 906, 914 (S.D. Ind. 2003) (quoting Garrison v. Burke,
165 F.3d 565, 571 (7th Cir. 1991)). Because summary judgment is appropriate on Mancini’s
Fourth Amendment claim her Monell claim also necessarily fails because there is no underlying

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constitutional injury. (Filing No. 68 at 9.) Accordingly, summary judgment is granted on the
Monell claim.
D.

Motion to Exclude Expert from Testifying at Trial
The City moves to exclude Mancini’s expert witness, Ernest Burwell, contending that he

lacks the requisite credentials to offer expert testimony and that his testimony does not comply
with Rules 401, 403, 702, and 704 (b). Because summary judgment has been granted, this Motion
(Filing No. 75.) is denied as moot.
E.

Defendants DOES 1-50 and ROE Corporations 1-10
The only remaining defendants is this action are Doe’s 1-50 and Roe Corporations 1-10.

Under federal law, a plaintiff may name a fictitious defendant and utilize discovery to learn the
defendant’s proper identity. Although there is no prohibition on filing suit against unknown
defendants, “John Doe defendants must be identified and served within 120 days of the
commencement of the action against them.” Aviles v. Village of Bedford Park, 160 F.R.D. 565,
567 (N.D.Ill.1995); see also Fed.R.Civ.P. 4(m) (“If service of the summons and complaint is not
made upon a defendant within 120 days after the filing of the complaint, the court, upon motion
or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to
that defendant....”). See Redd v. Dougherty, 578 F.Supp.2d 1042, 1048 (N.D. ILL. 2008).
Plaintiff’s filed their Complaint on July 29, 2016. More than 120 days have passed since
the filing of Plaintiff's Complaint, and the unknown defendants have not been identified or served.
Accordingly, the Doe and Roe defendants are dismissed without prejudice.
IV. CONCLUSION
Mancini and her son K.C., suffered horrendous injuries and a grievous lack of discretion
by the officers; however, a grievous lack of discretion does not suffice to state a constitutional

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 Case 1:16-cv-02048-TWP-MJD Document 80 Filed 09/28/18 Page 16 of 16 PageID #: 1099

cause of action under binding Seventh Circuit precedent. For the foregoing reasons, the Court
GRANTS the City’s Motion for Summary Judgment (Filing No. 65) and the City’s Motion to
Exclude Expert Testimony of Ernest Burwell (Filing No. 75) is DENIED as moot. Moreover the
claims against defendants’ Does 1-50 and Roe Corporations 1-10 are dismissed without prejudice.
Final judgment will be issued in a separate document.

SO ORDERED.
Date: 9/28/2018

DISTRIBUTION:
Jessica A. Wegg
SAEED & LITTLE LLP
jessica@sllawfirm.com
Jonathan Charles Little
SAEED & LITTLE, LLP
jon@sllawfirm.com
David E. Miller
SAEED & LITTLE
david@sllawfirm.com
Thomas J.O. Moore
OFFICE OF CORPORATION COUNSEL
thomas.moore@indy.gov
Donald Eugene Morgan
OFFICE OF CORPORATION COUNSEL
donald.morgan@indy.gov
Adam Scott Willfond
OFFICE OF CORPORATION COUNSEL
adam.willfond@indy.gov

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