In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2780

BOGI MILLER,

Plaintiff-Appellant,

v.

LIONEL A. SMITH,
and KEVIN BROWER,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:97CV0439--William C. Lee, Chief Judge.


Argued May 15, 2000--Decided July 10, 2000



  Before CUDAHY, FLAUM, and EVANS, Circuit Judges.

  EVANS, Circuit Judge. At least one too many U-
Haul trucks were motoring eastbound on the
Indiana toll road around midnight on a winter
night a few years ago. Because Bogi Miller was
driving one of them, he had an encounter with
Indiana law enforcement officers that led to this
lawsuit which was dismissed on summary judgment
by the district court. The encounter occurred
when state troopers mistook Miller’s U-Haul--
filled with deli supplies--for that of a group of
fleeing, armed felons. Miller’s suit against the
officers under 42 U.S.C. sec. 1983, as well as
Indiana common and statutory law, alleged that he
was kicked and punched by one of the officers
while he lay handcuffed on the ground, and that
when he and his companion were released, their
wallets were considerably lighter. We review the
grant of summary judgment de novo.

  On the morning of December 12, 1995, Miller and
his friend, Stanley Szeliga, drove a rented U-
Haul to Chicago to retrieve goods for Szeliga’s
Cleveland-based delicatessen. The trip went
smoothly, and after a successful afternoon’s
shopping the two piled back into the truck and
began their long drive back to Cleveland. As the
clock bore down on midnight, Miller, who was
driving, stopped at a toll road service area near
LaGrange, Indiana, to fill up the truck. Leaving
Szeliga asleep in the cab, Miller hopped out and
began refueling the U-Haul.

  Meanwhile, a few minutes earlier on a nearby
stretch of the tollway, Indiana State Troopers
Lionel Smith and Eric Dunn received word that
three armed men had just robbed a company in
Elkhart, Indiana, and that the robbers fled the
scene in a U-Haul truck. According to their
dispatcher--who was receiving reports from a
civilian motorist claiming to be following the
getaway truck--the suspects were heading east
toward Smith and Dunn. The troopers sped west to
head them off. Along the way they learned that
the race of the robbers was unknown, but that all
three had donned ski masks and that at least one
was wearing a blue hooded jacket. They also
learned that the men were packing pistols and a
sawed-off shotgun.

  By the time Smith and Dunn had nearly reached
the suspects, the dispatcher informed them that
the target U-Haul had pulled into a service area
near LaGrange. The troopers immediately made
their way there, cut off their lights, and
stealthily parked their squad cars in back of the
gas station so as not to be spotted from the gas
pumps. On the way in, both officers noted that
the man refueling a U-Haul was wearing a blue
jacket and stocking cap. Thus, feeling reasonably
sure that they had found the heavily armed
suspects, the troopers drew their shotguns and
moved in.

  While Dunn focused his attention on anyone who
might be in the truck’s cab, Smith took care of
the man at the pump, popping out from behind the
gas station with his shotgun trained on the
suspect, yelling "State Police! Let me see your
hands! Get down on the ground!" Miller, whose
tenuous command of English (he’s Polish and,
according to the district court, "understands
very limited English") was likely not sharpened
by facing the business end of Smith’s shotgun
during a groggy, midnight pit stop, did not
immediately hit the deck. Instead he froze and,
according to Smith, stared at the officer with
"this ’What are you doing?’ look on his face."
  Everyone involved agrees that Miller soon found
himself handcuffed, face-down on the concrete.
But how he got there and what happened next is
disputed. According to the defense, Miller
eventually dropped to his knees, at which point
Officer Kevin Brower of the LaGrange police
department, who had answered a call for back-up
help, cuffed Miller and laid him on the ground.
In this version of the story, Miller remained
harmlessly in custody for the 10 minutes it took
the police to discover that instead of a third
suspect, guns, and the money and equipment that
had been stolen from the factory, the U-Haul
contained only a variety of dried goods,
specialty foods (including some pickled eggs),
and a toll ticket showing that Miller and Szeliga
had been on the Interstate at the time of the
robbery. According to the police, Miller and
Szeliga were then released, unhurt, with their
possessions intact.

  Miller says that once he gathered his wits he
followed Officer Smith’s instructions to the
letter, voluntarily lying face-down beside the
pumps. While he lay prone, he states that one of
the officers cuffed him and then proceeded to
kick him twice in the back, punch him, step on
his face, and yank him around by the hair. When
he was finally released, Miller claims that $750
had been removed from his wallet and that Szeliga
reported to him that cash was stolen from the
truck.

  As stated, Miller sued all six of the officers
who eventually arrived on the scene that
night./1 He claimed that the officers violated
his rights under the 4th, 5th, and 14th
Amendments by stopping and detaining him
unlawfully, depriving him of his property without
due process, and using excessive force. He also
sought compensation for the alleged conversion
(the alleged lifting of money from his wallet)
under Indiana common law and a provision of the
Indiana code permitting conversion victims to
recover treble damages.

  On the officers’ motion for summary judgment,
the district court made quick work of Miller’s
case. First, it dismissed the sec. 1983 claims
for unlawful stop and detention after Miller
conceded that the officers had reason to believe
he was an armed robber. It then dismissed all
claims relating to three officers (the ones we
haven’t named) who arrived on the scene too late
to have been involved in either the alleged use
of excessive force or the alleged conversion.
Next, the court found that Miller’s excessive
force claims against Officers Dunn and Smith were
barred by the 11th Amendment, and that even if
they were not, the claims (and those against
Brower) could not survive summary judgment
because Miller could neither identify the officer
who allegedly attacked him, or otherwise support
his claim with sufficient facts. The court then
determined that since Indiana provided Miller
with an adequate postdeprivation remedy for
conversion regarding the claimed loss of money,
he could not pursue related federal claims. See
Parratt v. Taylor, 451 U.S. 527, 543-44 (1981).

  Miller’s brief focuses on the district court’s
decision to dismiss his sec. 1983 excessive force
claims against Smith, Dunn, and Brower. We will
focus on that claim as well but we note that
Miller dismissed his case against Dunn after his
brief was filed.

  We begin by reviewing the determination that
the 11th Amendment barred Miller’s claims against
the state troopers. The court found that since
Miller failed to specify whether he was suing the
officers in their official or individual
capacities, under a line of our authority
beginning with Kolar v. County of Sangamon, 756
F.2d 564 (7th Cir. 1985), it was obliged to
presume that Miller sued the officers in their
official capacities--an assumption that
immediately ended the case. See, Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)
(the 11th Amendment bars sec. 1983 claims for
damages against state officers in their official
capacity because the State, in such a suit, is
the real party in interest).

  Miller agrees that Kolar and its progeny
establish such a presumption, but he argues that
he rebutted it. The state officers, in turn,
assert that the court correctly applied the rule
and thus correctly dismissed the claims.

  Hill v. Shelander, 924 F.2d 1370 (7th Cir.
1991), a case neither party discusses, is
instructive. In Hill, we said Kolar did not
contain a rigid rule that a sec. 1983 plaintiff
who fails to designate whether a defendant is
being sued in her official or individual capacity
shall be presumed to be bringing the action
against the defendant in her official capacity.
See 924 F.2d at 1373. Instead, we explained that
in Kolar we opted to treat the suit as against
the defendant in his official capacity partly
because the complaint referred to him by his
official title, but more importantly because the
suit itself challenged an official policy or
custom. Id. By contrast, in Hill we found that
the suit was properly construed as against the
defendant in his individual capacity because he
sought punitive damages--a remedy only available
in an individual capacity suit--and because "the
unconstitutional conduct alleged involve[d] [the
defendant’s] individual actions and nowhere
allude[d] to an official policy or custom." Id.
at 1374. We then spelled out a new regime for
sec. 1983 claims that do not specify the capacity
in which the defendant has been sued: Where the
plaintiff seeks injunctive relief from official
policies or customs, the defendant has been sued
in her official capacity; where the plaintiff
alleges tortious conduct of an individual acting
under color of state law, the defendant has been
sued in her individual capacity. Id. at 1373-
1374.
  Because the state officers rely on a series of
cases involving the presumption from Kolar, which
we rejected in Hill,/2 their attempts to defend
the summary judgment grant on that ground must
fail. As in Hill, it is clear here that Miller
filed suit against the officers for their alleged
individual torts--at no time did he suggest that
either Indiana or LaGrange espoused a custom or
policy of robbing and beating innocent motorists.
Thus, under Hill we can safely assume that he
intended to file suit against the officers in
their individual capacities. And this makes
sense. Why in the world would Miller have
bothered to sue the state troopers for damages in
their official capacities when such a suit would
run headlong into the 11th Amendment? Further, we
note that even were we to evaluate the case under
the pre-Hill regime where the manner in which
parties treated the claim could overcome the
governing presumption, see, e.g., Conner v.
Reinhard, 847 F.2d 384, 394 n.8 (7th Cir. 1988),
we would have reached the same result: The state
defendants not only failed to raise their 11th
Amendment arguments until nearly a year after
they filed their answers, but they had previously
raised the defense of qualified immunity--a
defense available solely to officials facing sec.
1983 suits in their individual capacities. Thus,
no matter how you slice it, it was error to
conclude that Miller brought his claims against
the state officers in their official capacities.
The case should not have been dismissed on 11th
Amendment grounds.

  We now turn to the district court’s finding
that Miller could not bring excessive force
claims against any of the officers because he
could not specify which one of them attacked him.
Citing Rascon v. Hardiman, 803 F.2d 269 (7th Cir.
1986), the district court stated that "[t]he law
is clear that a plaintiff must prove the personal
unlawful actions of a particular defendant in
order to recover from the defendant." It then
explained that since Miller cannot identify his
assailant--he said he was lying face-down on the
ground at the time of the attack--his claims
against all the officers necessarily failed. We
respectfully disagree.

  Rascon merely restates the familiar decree that
sec. 1983 does not support respondeat superior
liability. 803 F.2d at 273 ("Without a showing of
direct responsibility for the improper action,
liability will not lie against a supervisory
official."). And while it is true that a
plaintiff must establish a defendant’s personal
responsibility for any claimed deprivation of a
constitutional right, a defendant’s direct
participation in the deprivation is not required.
See, e.g., Smith v. Rowe, 761 F.2d 360, 369 (7th
Cir. 1985). "An official satisfies the personal
responsibility requirement of sec. 1983 if she
acts or fails to act with a deliberate or
reckless disregard of the plaintiff’s
constitutional rights." Crowder v. Lash, 687 F.2d
996, 1005 (7th Cir. 1982). Under this rule,
police officers who have a realistic opportunity
to step forward and prevent a fellow officer from
violating a plaintiff’s rights through the use of
excessive force but fail to do so have been held
liable. See, e.g., Yang v. Hardin, 37 F.3d 282,
285 (7th Cir. 1994).

  Miller contends that either Smith or Brower
(with Dunn nearby) smacked him around while he
lay cuffed on the ground. If, as we are required
to do at this point in the case, Miller’s
allegations are taken as true, whichever officer
was not directly responsible for the beating was
idly standing by. If Miller can show at trial
that an officer attacked him while another
officer ignored a realistic opportunity to
intervene, he can recover. Since he alleges facts
to support these claims, they should not have
been dismissed.

  And because Miller presents a viable claim on
the facts alleged, the final reason for granting
summary judgment--that Miller failed to introduce
sufficient evidence to support his claim--must be
rejected. In essence, what we have here is a
credibility question. If the officers’ version of
the events is true, Miller was not mistreated. If
the claims in Miller’s lonely affidavit, however,
are true, he has a case. To quote from the
district court’s opinion, "In ruling on a summary
judgment motion the court accepts as true the
non-moving party’s evidence, draws all legitimate
inferences in favor of the non-moving party, and
does not weigh the evidence or the credibility of
witnesses." Following this rule leads to the
conclusion that a trier of fact must sort out the
truth of whether or not Miller was assaulted next
to the U-Haul back in December of 1995.

  The grant of summary judgment on the sec. 1983
excessive force claims against Officers Brower
and Smith are REVERSED and the case is REMANDED for
further proceedings. The district court’s
decision on the other claims remains undisturbed.



/1 Szeliga originally joined in the complaint, but
he died 7 months later and was dropped from the
suit.

/2 See Yeksigian, 900 F.2d 101 (7th Cir. 1990);
Meadows v. State of Indiana, 854 F.2d 1068 (7th
Cir. 1988); Shockley v. Jones, 823 F.2d 1068 (7th
Cir. 1987).
