In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2188
M OUHAMADOU M. S OW,
Plaintiff-Appellant,
v.
F ORTVILLE P OLICE D EPARTMENT, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-0983—Richard L. Young, Chief Judge.
A RGUED D ECEMBER 8, 2010—D ECIDED F EBRUARY 11, 2011
Before F LAUM and E VANS, Circuit Judges, and
M C C USKEY, District Judge.
M CC USKEY, District Judge. Plaintiff-Appellant, Mouhama-
dou M. Sow, was arrested for forgery based upon infor-
mation that he tried to cash a fake money order. Plaintiff
The Honorable Michael P. McCuskey, United States District
Court for the Central District of Illinois, sitting by designation.
2 No. 10-2188
was later able to produce a receipt for the money order
and the charge against him was dismissed.
On July 24, 2008, he filed a Complaint in the Southern
District of Indiana. Plaintiff named as Defendants: the
United States of America, U.S. Postal Employees
Lynnette Hertzer and Brenda Rains, Fortville Police
Department, McCordsville Police Department, and
Officer Michael Fuller of the Fortville Police Department
in his individual and official capacities. Plaintiff’s action
was brought under 42 U.S.C. §§ 1983, 1985, and 1986.
Plaintiff also alleged numerous state law claims, asserting
that the district court had supplemental jurisdiction
over those claims.
On December 17, 2008, the district court dismissed the
U.S.A., Hertzer and Rains from the lawsuit. On April 13,
2010, the district court entered two orders and granted
summary judgment in favor of the three remaining De-
fendants—the Fortville Police Department, Fuller, and
the McCordsville Police Department. Plaintiff has
appealed from the final orders of the district court which
entered summary judgment. We affirm.
FACTS
Plaintiff is from Dakar, Senegal, West Africa. He has
been a citizen of the United States since 1996. In Novem-
ber 2007, Plaintiff was involved in selling African items
like old masks, statues and clothing. As part of his busi-
ness, Plaintiff purchased merchandise from Africa and
sold the merchandise all over the United States at state
fairs, county fairs and festivals.
No. 10-2188 3
Plaintiff owned a wrecked Toyota Sequoia. His friend,
Biran Tall, told him that he could get spare parts he
needed for the vehicle in Fortville, Indiana. On Novem-
ber 19, 2007, Plaintiff came to Fortville in a custom van
which had tinted windows and a cardboard temporary
plate posted in the back window. Before coming to
Indiana, Plaintiff had purchased money orders from the
Eastland Post Office in Columbus, Ohio. The price for
the parts Plaintiff needed was $775 and Plaintiff at-
tempted to purchase the parts with a $1000 money order.
The dealer did not have sufficient money for change
and directed Plaintiff to the Fortville Post Office.
At the Fortville Post Office, Plaintiff waited patiently
in line and then presented the $1000 money order to a
female clerk, Brenda Rains. Rains held the money order
up and told Plaintiff that it was fake because the serial
numbers were not right and the watermark did not resem-
ble Benjamin Franklin, the image present on all official
money orders. Rains thought the watermark looked like
Jesus Christ. Plaintiff advised Rains that he purchased
the money order at a U.S. Post Office in Columbus, Ohio.
Rains went to the back office to show it to her super-
visor. When she came back she told Plaintiff they
did not have enough cash to negotiate the money order.
Rains told Plaintiff there was a post office nearby in
McCordsville and gave Plaintiff directions how to get
there. While Rains was talking to Plaintiff, another postal
employee, Lynette Hertzer, searched the parking lot to
obtain a description of Plaintiff’s vehicle. After Plaintiff
left, Hertzer called the Fortville police “to report [her]
4 No. 10-2188
suspicions” and Hancock County dispatched a radio
transmission regarding the report.
Officer Fuller of the Fortville Police Department
received the transmission and soon arrived at the post
office. The employees informed Fuller that an individual
had attempted to pass a $1000 money order which ap-
peared to be fake. Fuller was also informed that Plaintiff
had just left and was traveling to the McCordsville
Post Office to attempt to cash the money order. Fuller
passed this information to the McCordsville Police De-
partment by radio and also provided a description of
Plaintiff’s van, which he had been given at the post office.
McCordsville Police Officer Michael Schwamberger
stopped Plaintiff’s van in McCordsville. Schwamberger
stopped the vehicle because it did not appear to have
a proper registration plate and because it fit the descrip-
tion of the vehicle provided by Fuller. Officer Scott
Prather of the McCordsville Police Department arrived
at the scene during the stop. The stop was videotaped
and the videotape showed that the stop lasted more
than one hour. During the stop, Plaintiff produced a
Florida Driver’s License bearing a New York address
and did not produce a vehicle registration.
Fuller arrived on the scene and spoke to Plaintiff, who
produced the $1000 money order that he had tried to
cash at the post office. Fuller and Schwamberger both
inspected the money order and concluded the water-
mark did not resemble Ben Franklin but rather looked
like Jesus Christ. They asked Plaintiff for a receipt for the
money order and Plaintiff was unable to produce one.
No. 10-2188 5
Plaintiff did produce a backpack full of other money
order receipts and other documentation. During the
stop, Fuller called post office headquarters in Baltimore,
Maryland. Fuller was informed that the serial numbers
from the $1000 money order were not in a format used
or recognized by the U.S. Post Office. Fuller also
called Craig Jones, the postal inspector in Indianapolis,
who told him the same thing. Jones said that, due to the
watermark not being the picture of Benjamin Franklin,
the money order was fake. Jones also told Fuller that
the federal government would not prosecute the case
because of the small amount of money involved. Jones
concluded by saying that the matter would have to be
handled by local authorities.
Plaintiff gave Fuller a $500 money order that he had
purchased on the same day and at the same time as the
$1000 money order, along with a receipt for the $500
money order. The receipt included the telephone
number for the Columbus, Ohio post office where the
money order was purchased. Fuller failed to call the
Columbus, Ohio post office. In addition, according to
Plaintiff, the officers did not allow him to continue
looking in his back pack for the receipt for the $1000
money order. Fuller did contact Jerry Bean, the Chief
Deputy Prosecutor for Hancock County, and was advised
to arrest Plaintiff for forgery. Plaintiff was read his
Miranda rights and handcuffed.
Plaintiff testified that the officers searched his van
without permission. Moreover, according to Plaintiff,
the video shows that the officers searched the van.
Plaintiff testified that he was wearing three or four
6 No. 10-2188
African protection belts that he received from his
parents and believed were important to protect him
from bad things like accidents. During the arrest,
Schwamberger grabbed and cut the belts and threw
them into Plaintiff’s van. Plaintiff was very upset
because he did nothing wrong and this was the first
time he had had any trouble with the police. Plaintiff
testified that he was pushed into the police car and hit
his head as he was pushed and thrown into the vehicle.
He testified that he temporarily lost consciousness.
Plaintiff testified that he later suffered from headaches
and purchased over-the-counter pain medication and
sought psychiatric treatment and traditional African
treatment when he returned to Senegal two or three
weeks later. Plaintiff also testified that the handcuffs
were too tight and painful. Plaintiff said that he com-
plained to Fuller once that the handcuffs were too tight
and Fuller refused to loosen them.
Following the arrest, Schwamberger transported
Plaintiff to the McCordsville Post Office. Fuller met them
there in his own vehicle. Fuller and Schwamberger
spoke to the post office employees at McCordsville
who were of the opinion that the money order was coun-
terfeit. These postal employees provided the officers
with an official money order. The officers compared it to
the $1000 money order and concluded that the water-
marks were different. Fuller subsequently transported
Plaintiff to the Hancock County Jail. Plaintiff did not
complain to jail officials or receive treatment at the jail
for a bump on his head or handcuff pain. Plaintiff was
No. 10-2188 7
held for about 48 hours until his friends and family col-
lected money and posted his bond.
After Plaintiff was released from jail, he found the
receipt for the $1000 money order and hired counsel. The
criminal charge against Plaintiff was subsequently dis-
missed.
In the order granting summary judgment to Fuller and
the Fortville Police Department, the district court found:
(1) there was ample evidence providing probable cause
to arrest Plaintiff so his false arrest claim failed; (2) Plain-
tiff’s excessive force claim failed because he com-
plained about his handcuffs only once and did not com-
plain to any officer about his bumped head; (3) there
was no evidence to support Plaintiff’s claim of racial
profiling under the Equal Protection Clause of the Four-
teenth Amendment; (4) Plaintiff’s claim of conspiracy
under §§ 1985 and 1986 failed because it was based on
nothing but conjecture and speculation; (5) the Fortville
Police Department was not a proper party because it
lacked the capacity to sue or be sued; and (6) Plaintiff
did not respond to the arguments regarding his state
law claims, except for his claim of negligent supervision,
which failed because Plaintiff did not sue the proper
party, the Town of Fortville.
The district court also stated that there was no merit to
Plaintiff’s negligent supervision claim, which was really
a failure to train claim. The court concluded there was
no evidence that Fuller engaged in racial profiling at the
time he investigated and arrested Plaintiff. The court
further concluded that the evidence showed Fuller was
8 No. 10-2188
in fact trained regarding racial profiling at the police
academy. Because of these conclusions, the district court
did not reach the issue of qualified immunity.
The district court granted summary judgment to the
McCordsville Police Department because it found the
police department was not a proper party in this case.
Following the two orders granting summary judgment,
the case was terminated, and Plaintiff appealed.
ANALYSIS
Plaintiff has raised four issues on appeal: (1) whether
the district court improperly considered hearsay testi-
mony when determining that the police officers had
probable cause to arrest him on charges of committing
forgery under Indiana law; (2) whether the district
court erred by granting summary judgment on his claims
that he was arrested without probable cause in violation
of his Fourth Amendment rights against unreasonable
searches and seizures and his Fourteenth Amendment
rights to equal protection; (3) whether the district court
erred when it granted summary judgment in connection
with his claims under §§ 1985 and 1986; and (4) whether
the district court erroneously held that Plaintiff failed
to discuss his state law claims thus granting summary
judgment on those claims.
We review a district court’s order granting summary
judgment de novo. Tibbs v. City of Chicago, 469 F.3d
661, 663 (7th Cir. 2006). In doing so, this court construes
all facts and reasonable inferences in favor of the non-
No. 10-2188 9
moving party. Stainback v. Dixon, 569 F.3d 767, 770 (7th Cir.
2009). “Summary judgment is appropriate when there
is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.”
Antonetti v. Abbott Labs., 563 F.3d 587, 591 (7th Cir. 2009),
citing Fed. R. Civ. P. 56(c) (Rule 56 was amended, effective
December 1, 2010, and the standard is now included
in Rule 56(a)).
In a § 1983 case, the plaintiff bears the burden of proof
on the constitutional deprivation that underlies the
claim, and must present sufficient evidence to create
genuine issues of material fact to avoid summary judg-
ment. McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).
The district court entered summary judgment in favor of
the McCordsville Police Department based on the court’s
finding that it was not a proper party in this action. The
district court also concluded that the Fortville Police
Department was not a suable party. We agree that the
McCordsville Police Department and the Fortville Police
Department were not proper parties. The United States
Supreme Court has instructed that local government
liability under § 1983 “is dependent on an analysis of state
law.” McMillian v. Monroe County, 520 U.S. 781, 786 (1997).
Under Indiana law, a “[m]unicipal corporation” is a
“unit, . . . or other separate local governmental entity
that may sue and be sued.” Ind. Code § 36-1-2-10. A
“ ‘[u]nit’ means county, municipality, or township,” Ind.
Code § 36-1-2-23, and a “[m]unicipality” is a “city or
town,” Ind. Code § 36-1-2-11. Thus, the Indiana statutory
scheme does not grant municipal police departments
10 No. 10-2188
the capacity to sue or be sued. See Martin v. Fort Wayne
Police Dep’t, 2010 WL 4876728, at *3 (N.D. Ind. 2010).
Therefore, the district court properly concluded that
the McCordsville Police Department and the Fortville
Police Department are not suable entities.
Although Plaintiff did not raise this as one of his listed
issues on appeal, he has argued that the Town of
McCordsville and Town of Fortville can be found
liable in this case. As to the Town of McCordsville,
Plaintiff argued that it can be liable because two of its
officers were involved in Plaintiff’s arrest. This argument
is not persuasive. The Town of McCordsville was not
named as a party nor were either of the McCordsville
police officers, in any capacity. Therefore, the district
court properly entered summary judgment in favor of
the McCordsville Police Department.
As to the Town of Fortville, Plaintiff argued that it can
be liable because Fuller was sued in his individual and
official capacities. Plaintiff is correct that he sued Fuller
in his official capacity and an official capacity suit is
another way of pleading an action against an entity of
which the officer is an agent. See Kentucky v. Graham, 473
U.S. 159, 165-66 (1985), citing Monell v. New York City
Dep’t of Social Servs., 436 U.S. 658, 690 n.55 (1978). There-
fore, Plaintiff’s official capacity suit against Fuller can be
treated as a suit against the Town of Fortville. Neverthe-
less, we conclude that Plaintiff has not provided evidence
which would provide a basis for liability on the part of
the Town of Fortville under Monell. As thoroughly dis-
cussed below, Plaintiff has not shown that he suffered
No. 10-2188 11
a constitutional deprivation. Accordingly, Plaintiff
has not shown that a constitutional deprivation was
caused by an official policy or custom, which is neces-
sary for municipal liability under Monell. See Monell,
436 U.S. at 694.
With this preliminary issue out of the way, we will
now discuss each of the issues raised by Plaintiff in this
appeal.
I. Objection to Hearsay Evidence
Plaintiff first argues that the district court should
have stricken from the record evidence of statements
made to Fuller by the post office headquarters in
Baltimore, Maryland, by Craig Jones, by Deputy Prosecu-
tor Bean and by the post office employees who were
consulted regarding the validity of the $1000 money
order. Plaintiff insists the evidence regarding state-
ments made by third parties is inadmissible hearsay
which could not be considered in ruling on the motions
for summary judgment.
Plaintiff is correct that a court may consider only admis-
sible evidence in assessing a motion for summary judg-
ment. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009),
citing Haywood v. Lucent Techs., Inc., 323 F.3d 524, 533 (7th
Cir. 2003). However, we conclude that the district court
properly considered the statements made by third
parties to Fuller in determining whether there was proba-
ble cause for the arrest. The statements were not offered
for their truth, but to show the basis for Fuller’s decision
12 No. 10-2188
to arrest Plaintiff. “The determination of whether an
arresting officer has probable cause to arrest an alleged
offender turns on whether a reasonable person in the
officer’s position would have probable cause to believe
that an offense has been committed.” Woods v. City of
Chicago, 234 F.3d 979, 987 (7th Cir. 2000). Therefore, the
inquiry “depends upon whether the facts and circum-
stances communicated to the arresting officer at the time
of the arrest would warrant a reasonable officer in
holding such a belief.” Id. at 987; see also Thompson v.
Wagner, 319 F.3d 931, 934 (7th Cir. 2003) (probable cause
is determined by “the facts and circumstances within
[the officer’s] knowledge at the time of the arrest”). It is
therefore proper for the district court to consider state-
ments made to the officers to determine “the effect that
they would have upon the arresting officers when com-
municated to them by a presumptively reliable citizen.”
Woods, 234 F.3d at 987.
II. Summary Judgment on § 1983 claims
Plaintiff has presented detailed arguments regarding
the length of the traffic stop, the search of his vehicle
and other aspects of his treatment during his arrest.
A. Waiver of claim regarding search
Defendants have pointed out that Plaintiff did not
include a claim in his complaint regarding the search of
his vehicle. Therefore, because it was not raised as a
claim, the district court did not discuss the search in
No. 10-2188 13
its orders granting summary judgment for Defendants.
“It is axiomatic that issues and arguments which were
not raised before the district court cannot be raised for the
first time on appeal.” Keck Garrett & Assocs., Inc. v. Nextel
Commc’ns, Inc., 517 F.3d 476, 487 (7th Cir. 2008), quoting
Boyers v. Texaco Ref. & Mktg., Inc., 848 F.2d 809, 811-12 (7th
Cir. 1988). Consequently, the constitutionality of any
search of Plaintiff’s vehicle is not an issue before this court.
B. Unlawful arrest claim
Plaintiff did claim that he was unlawfully arrested. The
constitutionality of a warrantless arrest for a criminal
offense turns on the existence of probable case for the
arrest. Woods, 234 F.3d at 992. “Probable cause is an
absolute bar to a § 1983 claim for false arrest.” McBride v.
Grice, 576 F.3d 703, 707 (7th Cir. 2009). “A police officer
has probable cause to arrest if a reasonable person
would believe, based on the facts and circumstances
known at the time, that a crime had been committed.”
Id. at 707, citing Beck v. Ohio, 379 U.S. 89, 91 (1964).
Plaintiff insists that Fuller intentionally disregarded
readily available and pertinent information regarding
the origin of the money order. Plaintiff argues Fuller had
a receipt containing the phone number of the post office
in Ohio where the money order was purchased but
rejected Plaintiff’s request that he contact the Ohio post
office. At oral argument, Plaintiff’s counsel cited BeVier
v. Hucal, 806 F.2d 123 (7th Cir. 1986), to support his argu-
ment that Fuller should have called the Ohio post office
14 No. 10-2188
as part of his investigation. We do not agree that
Plaintiff’s arrest was unlawful because of Fuller’s failure
to contact the Ohio post office.
Based upon all of the information Fuller received from
various sources, he had ample reason to conclude that
the $1000 money order in Plaintiff’s possession was
fake and reasonably concluded that Plaintiff had com-
mitted the offense of forgery. When an officer receives
information from a third party whom it seems rea-
sonable to believe is telling the truth, the officer has
probable cause to effectuate an arrest. See Kelley v.
Myler, 149 F.3d 641, 647 (7th Cir. 1998). In this case,
Fuller received information from employees at the
Fortville Post Office, from the post office headquarters
in Baltimore, Maryland, and from the postal inspector
in Indianapolis. Fuller had every reason to believe that
these people were giving him truthful, accurate infor-
mation. Therefore, it was reasonable for Fuller to
believe that no further action was necessary on his part.
As this court has noted, “ ‘[p]robable cause does not
depend on the witness turning out to have been right;
it’s what the police know, not whether they know the
truth, that matters.’ ” Id. at 647, quoting Gramenos v. Jewel
Cos., Inc., 797 F.2d 432, 439 (7th Cir. 1986). Also, in addi-
tion to the information received from these sources,
Fuller relied on his own observations and the fact that
Plaintiff could not produce a receipt for the $1000 money
order.
We conclude that, because Fuller had probable cause to
arrest Plaintiff, he was not required to contact the Ohio
post office as Plaintiff requested. “An officer should
No. 10-2188 15
pursue reasonable avenues of investigation and may
not close his eyes to facts that would clarify the situa-
tion, but once an officer has established probable cause,
he may end his investigation.” McBride, 576 F.3d at 707.
The Fourth Amendment imposes no duty to investigate
whether a defense is valid. Id. at 707.
We also conclude that BeVier, the case relied on by
Plaintiff, is distinguishable from the case at hand and
does not support Plaintiff’s argument. In BeVier, the
plaintiffs were arrested and charged with child neglect,
even though the police officer did not question the
babysitter watching the children or the parents about the
children’s condition. BeVier, 806 F.2d at 126-27. This court
held that the police officer did not have probable cause
to arrest the plaintiffs, noting that he did not obtain
information which was necessary before concluding
that the plaintiffs had intentionally neglected their chil-
dren. Id. at 127-28. The court stated that “[r]easonable
avenues of investigation must be pursued especially
when, as here, it is unclear whether a crime had even
taken place.” Id. at 128.
Here, in this case, Fuller received information from
sources he reasonably believed were reliable that the
money order Plaintiff had attempted to cash at the
Fortville Post Office was fake. From this evidence, we
conclude that there was no reason for any uncertainty
regarding whether a crime had taken place. Accordingly,
Fuller had probable cause to arrest Plaintiff and was not
required to pursue any further investigation.
16 No. 10-2188
C. Equal Protection claim
We also agree with the district court’s finding that
Plaintiff has not shown that he was the victim of racial
profiling in violation of his right of equal protection.
Racial profiling, or selective enforcement of the law, is
a violation of the Equal Protection Clause. See Chavez v.
Ill. State Police, 251 F.3d 612, 635 (7th Cir. 2001). However,
in order to survive summary judgment on this claim,
Plaintiff was required to provide evidence that Fuller
was “motivated by a discriminatory purpose.” See id. at
635-36; see also Nabozny v. Podlesny, 92 F.3d 446, 453-54
(7th Cir. 1996). We agree that there is no evidence
in the record which would support a finding of racial
profiling by Fuller.
D. Excessive Force claim
We further conclude the district court properly deter-
mined that Plaintiff has not shown the existence of a
genuine issue of material fact as to his claim of excessive
force. Plaintiff argues he was the victim of the excessive
use of force because he was out in the cold during the
lengthy stop, he bumped his head while being pushed
into the squad car following his arrest, and the handcuffs
were too tight.
All claims that law enforcement officers have used
excessive force in the course of an arrest, investigatory
stop, or other seizure are analyzed under the Fourth
Amendment and its “reasonableness” standard. Graham
v. Connor, 490 U.S. 386, 395 (1989). “Law enforcement is a
No. 10-2188 17
difficult job, as ‘police officers are often forced to make
split-second judgments-in circumstances that are tense,
uncertain, and rapidly evolving.’ ” Baird v. Renbarger, 576
F.3d 340, 342 (7th Cir. 2009), quoting Graham, 490 U.S. at
397. Therefore, the “reasonableness” of the use of force is
judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.
Graham, 490 U.S. at 396.
Plaintiff has cited no case law to provide support for his
argument that he was subjected to excessive force
merely because he was outside during the investiga-
tion. In fact, Plaintiff has failed to present evidence
that Fuller forced Plaintiff to remain outside in the cold.
Plaintiff’s bare assertion that he was outside in the cold
during the investigation does not support a claim of
excessive force.
Plaintiff has relied on Baird to support his claim that
his bumped head amounted to excessive force. In Baird,
this court found that a police officer violated the plain-
tiffs’ Fourth Amendment rights. In that case, the officer
used a submachine gun to round the plaintiffs up and
detain them during the execution of a search warrant
that was based on the crime of altering a vehicle iden-
tification number. Baird, 576 F.3d at 344-45. In doing so,
the court noted that “[p]laintiffs need not show physical
injury in order to sustain an excessive force claim.” Id.
at 344. The court also noted that it had previously ob-
served, in a slightly different context, that “ ‘police
officers do not have the right to shove, push, or otherwise
assault innocent citizens without any provocation what-
18 No. 10-2188
soever.’ ” Id. at 345, quoting Clash v. Beatty, 77 F.3d 1045,
1048 (7th Cir. 1996). In Clash, the plaintiff, who was not
arrested or charged with any crime, was treated for a
trauma injury to his knee after he was pushed into a
police car. Id. at 1047.
The push in the case at hand occurred after Plaintiff
was arrested based upon probable cause to believe that
he had committed the crime of forgery. Accordingly, the
facts here are clearly distinguishable from Baird and
Clash. The right to make an arrest necessarily carries
with it the right to some degree of physical coercion to
effect it. Graham, 490 U.S. at 396. “ ‘Not every push or
shove, even if it may later seem unnecessary in the peace
of a judge’s chambers,’ ” violates the Fourth Amendment.
Id. at 396, quoting Johnson v. Glick, 481 F.2d 1028, 1033
(2d Cir. 1973). In this case, we conclude that the fact that
Plaintiff bumped his head while being placed into the
squad car following his arrest is not sufficient to
establish a genuine issue of material fact whether exces-
sive force was used in effecting the arrest.
We reach a similar conclusion regarding Plaintiff’s
claim that the handcuffs were too tight. In Tibbs, the
plaintiff complained that his handcuffs were too tight
twice, once during the ride to the police station and once to
an unknown officer at the police station. Tibbs, 469 F.3d
at 663. The facts in Tibbs reflected that the officers
removed the handcuffs approximately 25 minutes after
the plaintiff arrived at the police station. In Tibbs, the
plaintiff’s wrists were red for approximately one-and-a-
half days, and the plaintiff received no medical care
No. 10-2188 19
for wrist pain. Id. at 663. This court noted that the plain-
tiff complained only once to the arresting officer in
Tibbs “without elaborating on any injury, numbness, or
degree of pain” and neither sought nor received medical
care for any alleged wrist injury. Id. at 666. This court
concluded that, given such “mild allegations,” no rea-
sonable jury could find that the arresting officer’s
actions were objectively unreasonable. Id. at 666.
In this case, the facts in many respects are indistin-
guishable from the facts in Tibbs. Plaintiff testified that
he complained once to Fuller that the handcuffs were
too tight. Plaintiff presented no evidence that he pro-
vided any elaboration to Fuller. Moreover, the evidence
shows that Plaintiff did not complain of any injury
when he was taken to jail and did not receive any treat-
ment resulting from the use of the handcuffs. These
facts are not sufficient to raise a genuine issue of material
fact regarding whether Fuller used excessive force. See
Tibbs, 469 F.3d at 666; see also Stainback, 569 F.3d at 773
(officers’ actions were reasonable under the circum-
stances even though the plaintiff claimed the officers’
actions in handcuffing him and keeping him in hand-
cuffs resulted in two torn rotator cuffs, due to a pre-
existing shoulder condition).
III. Conspiracy
Plaintiff alleged in his complaint that Fuller, Rains,
Hertzer and others “engaged in a conspiracy to deprive
[him] of his civil rights by collaboratively embarking in a
scheme that recklessly ascribed criminal conduct on
20 No. 10-2188
[Plaintiff] and caused his unlawful arrest and detention.”
Plaintiff alleged that Defendants were therefore liable
under 42 U.S.C. §§ 1985 and 1986. In this appeal, Plaintiff
argues that a reasonable jury could infer that Hertzer,
Rains, Fuller, and the officers from McCordsville con-
spired to deprive Plaintiff of his constitutional rights.
Plaintiff argued that the record contains circumstantial
evidence of a conspiracy, noting that it was well estab-
lished that “Fortville is a predominantly white town.”
We agree with the district court that Plaintiff presented
no evidence of a conspiracy other than speculation and
conjecture. To establish the existence of a conspiracy, a
plaintiff must demonstrate that the conspirators have
an agreement to inflict injury or harm upon him.
Hernandez v. Joliet Police Dep’t, 197 F.3d 256, 263 (7th Cir.
1999). “The agreement may be inferred from circum-
stantial evidence, but only if there is sufficient evidence
that would permit a reasonable jury to conclude that a
meeting of the minds had occurred and that the parties
had an understanding to achieve the conspiracy’s objec-
tives.” Id. at 262.
The district court correctly found from the record that
there was no evidence that Fuller or any of the other
individuals involved in this incident conspired to
deprive Plaintiff of his constitutional rights. A conspiracy
cannot be inferred solely based upon the fact that the
alleged conspirators were white and were from a predomi-
nantly white area. The district court also correctly deter-
mined that the absence of any underlying violation of
Plaintiff’s rights precludes the possibility of Plaintiff
No. 10-2188 21
succeeding on a conspiracy claim. See Indianapolis
Minority Contractors Ass’n, Inc. v. Wiley, 187 F.3d 743, 754
(7th Cir. 1999).
IV. State law claims
Finally, we agree that Plaintiff waived all but one of
his state law claims by failing to argue that the claims
were sufficient to survive summary judgment. The only
claim specifically argued by Plaintiff, negligent super-
vision, fails because there was no evidence presented
before the district court that would support a conclusion
that Fuller was negligently supervised or inadequately
trained.
CONCLUSION
For the reasons stated, the ruling of the district court
is A FFIRMED.
2-11-11