Kenneth R. Lax v. City of South Bend

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-4200
K ENNETH R. L AX ,
Plaintiff-Appellant,
v.
C ITY OF S OUTH B END , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:02-CV-621—Robert L. Miller, Jr., Chief Judge.
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S UBMITTED M AY 3, 2006—D ECIDED M AY 31, 2006
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Before POSNER , E ASTERBROOK , and W OOD , Circuit Judges.
P OSNER , Circuit Judge. This is a pro se suit against vari-
ous state officials, charging violations of the plaintiff’s
civil rights. 42 U.S.C. § 1983. The district judge granted
summary judgment for the defendants. Only one issue
requires discussion, and that is whether the plaintiff has
presented a genuine issue of material fact concerning
the claim in his complaint that an officer of the county
sheriff’s department “violently, and without provocation,
remov[ed him] from the [county] courthouse,” where the
plaintiff had appeared in connection with a speeding

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2 No. 05-4200
charge, “caus[ing] plaintiff physical and psychological
pain.” The plaintiff submitted an affidavit in which he
said he’d been “attacked” by the officer, who “threw [the
plaintiff] out of the courthouse.” The officer submitted an
affidavit which stated that the plaintiff, mistakenly thinking
he had a court date, had been cursing and screaming and
the officer had ordered him to leave and had escorted him
down the staircase to the exit with his hand on the plaintiff’s
elbow but no other use of force. If true, this “soft-hand
control,” as the officer described it, would not amount to a
use of excessive force to effect the seizure of the plaintiff,
and thus would not violate the plaintiff’s constitutional
rights. Graham v. Connor, 490 U.S. 386, 396 (1989); Lawrence
v. Kenosha County, 391 F.3d 837, 843 (7th Cir. 2004).
The district judge accepted the officer’s version of what
had happened, on the ground that it didn’t really differ
from the plaintiff’s version. That is incorrect. If all the
plaintiff had said in his affidavit was that he’d been
“thrown out” of the courthouse, that would not imply any
use of physical force—indeed, any physical contact—let
alone excessive force. But in context the word “attacked”
does connote such use; surely the officer would not describe
what he did as “attacking” the plaintiff.
In his brief in this court the plaintiff elaborates his version
of the incident, contending that the officer “ran up to [him]
and grabbed him by the nape of his coat yelling, ‘Boy, who
the hell do you think you are, I’ll take your ass to jail.’ He
continued to drag [the plaintiff] down the stairs of the
courthouse rotunda until he got him to the entry door of the
courthouse, where he shoved [him] in the back, pushing
him out the door, and saying, ‘Now boy, what do you think
about that, don’t come back!’ ” Had the district court
dismissed the complaint for failure to state a claim, the
factual elaboration in the brief, though not made under oath

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No. 05-4200 3
and hence not evidence, would be permissible to indicate
that in alleging that the defendant had “violently, and
without provocation, remov[ed the plaintiff] from the
[county] courthouse,” the complaint stated a claim. E.g.,
Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997).
The plaintiff would have demonstrated that if he proved
certain facts consistent with his complaint, he would be
entitled, at least prima facie (for the defendant might have
good affirmative defenses), to relief. But once the case has
moved beyond the pleading stage, the plaintiff cannot ward
off an adverse judgment by asserting hypothetical facts. He
needs evidence. Well, Lax had evidence—his affidavit. The
affidavit was vague, and the district judge could have asked
for more detail, but did not. What the judge could not
properly do was equate vagueness to an absence of evi-
dence, especially when the plaintiff, by indicating what he
hoped to prove, made clear that the vagueness of his
affidavit was not an acknowledgment that the officer had
not used excessive force. The district judge thus erred in
granting summary judgment for the officer, though in all
other respects the decision is correct.
A FFIRMED IN P ART ,
R EVERSED IN P ART , AND R EMANDED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-31-06

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