NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 2, 2015*
Decided October 7, 2015
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 15‐1957
JARREN L. AUSTIN, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Indiana,
Fort Wayne Division.
v.
No. 1:93‐cv‐217
JOHN NIBLICK,
Defendant, William C. Lee,
Judge.
CITY OF FORT WAYNE,
Intervenor‐Appellee.
O R D E R
Jarren Austin obtained a default judgment in 1995 against John Niblick, a police
officer for the City of Fort Wayne, Indiana, who violated his civil rights during an arrest.
Austin was unable to collect on the judgment from Niblick. Years later, he asked the
district court to enforce the judgment against Fort Wayne, Niblick’s former employer, on
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15‐1957 Page 2
the theory that local law required the city to indemnify Niblick. The district court denied
Austin’s request, reasoning in part that the law applies to only state‐law liabilities.
Construing Austin’s pro se filing as a motion for supplemental proceedings under
Federal Rule of Civil Procedure 69, we conclude that he may proceed against the city to
enforce his judgment, and so we vacate and remand.
The procedural history is simple. Austin, with the assistance of counsel, sued John
Niblick and other unnamed officers of the Fort Wayne Police Department for beating
him while arresting him in 1991. The complaint stated claims under both 42 U.S.C.
§ 1983 and state tort law. An attorney for the city entered an appearance on behalf of
only the unnamed officers, and Austin agreed to dismiss them from the suit with
prejudice after the city’s attorney argued that the claims against them were time‐barred.
The claims continued against Niblick, who apparently no longer worked for the police
department and had moved to Florida. Austin spent two years trying to locate Niblick,
but was able to achieve service only through publication. Niblick never responded to the
suit, and the district court entered a default judgment against Niblick in 1995, awarding
Austin $16,998.36.
After efforts to find and collect from Niblick failed, Austin filed a pro se motion
19 years after the judgment, asking the district court to enforce the judgment against the
City of Fort Wayne. He raised three arguments, but only one requires extended
discussion; we address the other two at the end of this order. Austin argued that the city
must pay him on his judgment against Niblick because the city indemnifies its
employees for their adjudicated liabilities. Austin relied on a state statute, IND. CODE
§ 34‐4‐16.7‐1 (1997) (it has since been amended and renumbered IND. CODE § 34‐13‐4‐1
(2015)), and a city ordinance, FORT WAYNE, IND., ORDINANCE § 31.05 (2015). Alerted to
the proceeding when Austin served the city with a copy of his motion, the city
intervened in the suit and opposed Austin’s motion. The district court rejected Austin’s
argument, reasoning that the indemnification statute did not create a private right of
action to sue a governmental entity to compel it to pay a judgment and that the city
ordinance applied only to state‐law claims, not claims under § 1983.
Before we reach the merits of Austin’s appeal, we clarify the nature of his motion
and the district court’s jurisdiction. “[C]ourts should look to the substance of the filing
rather than its label” in “determining the character of a pro se filing.” United States v.
Antonelli, 371 F.3d 360, 361 (7th Cir. 2004). Because Austin has asked the court to enforce
his judgment against a nonparty, his request is properly construed as a motion for
supplemental proceedings under Federal Rule of Civil Procedure 69(a). Rule 69(a)
No. 15‐1957 Page 3
allows successful litigants to collect on a judgment by using supplemental proceedings
based on the procedures of the state in which the district court sits. See Resolution Trust
Corp. v. Ruggiero, 994 F.2d 1221, 1223 (7th Cir. 1993). Supplemental proceedings under
Rule 69(a) may be used “to collect a judgment from a third person not party to the
original suit.” Yang v. City of Chicago, 137 F.3d 522, 526 (7th Cir. 1998). So long as “‘the
additional proceeding does not inject so many new issues that it is functionally a
separate case,’” the proceeding is within the district court’s ancillary jurisdiction. Id.
(quoting Wilson v. City of Chicago, 120 F.3d 681, 684 (7th Cir. 1997)). In Yang, we
concluded that a plaintiff with a civil‐rights judgment against Chicago police officers
could use Rule 69(a) to enforce his judgment against the city, a nonparty indemnitor of
the judgment debtor. Id. at 524, 526–27. A local indemnification law required Chicago to
indemnify its officers if they had acted within the scope of their employment, and we
held that the scope‐of‐employment issue may be determined during the supplemental
proceeding. Id. Based on Yang, the district court had jurisdiction to consider Austin’s
indemnification claim.
On the merits, the district court’s and the city’s two reasons for preventing Austin
from enforcing his judgment through indemnification are incorrect. The first reason they
identified was the proposition that state law provides Austin with no right to have the
city pay his judgment. That is incorrect. The indemnification statute in force at the time
of the judgment, IND. CODE § 34‐4‐16.7‐1 (1997), provided that a “governmental entity…
shall … pay any judgment” if “the governing body” of the entity “determines that
paying the judgment … is in the best interest of the governmental entity.” We have held
previously, in the context of Rule 69(a) proceedings, that this statute requires a
municipality to pay for a judgment against one of its employees if (but only if) it has
agreed to do so. Kapitan v. City of Gary, 12 F.3d 678, 680 (7th Cir. 1993); see also City of
Muncie v. Peters, 709 N.E.2d 50, 56 (Ind. Ct. App. 1999). Fort Wayne, by its local
ordinance, has agreed. It has chosen to “hold harmless” any employee from “any
liability” if the employee acted “in good faith in the performance of duty.” FORT WAYNE,
IND. ORDINANCE § 31.05(B). Under this state law and local ordinance, Austin may pursue
the city for indemnification by showing that Niblick was performing duties in good
faith, and, as in Yang, that issue may be decided in supplemental proceedings.
Under the present version of the indemnification statute, IND. CODE § 34‐13‐4‐1
(2015), (neither party addresses which version should apply) the city’s obligation to pay
judgments is even more plain. The new version largely eliminates a municipality’s
option to decline to pay the judgments of employees acting within the scope of
employment. It provides that in a suit against a public employee, the public employer
No. 15‐1957 Page 4
“shall … pay … any judgment,” unless it is for punitive damages, in which case
indemnification remains voluntary. Id. (Indemnity is also not required if the city had no
notice of the suit against the employee. Id. But the city’s counsel appeared on behalf of
the unnamed officers in this suit, and the city has not argued here that it lacked the
opportunity to defend Niblick.) Accordingly, regardless of which version of the state law
applies, the city must pay the judgments of covered employees.
The district court’s and city’s second reason for rejecting Austin’s motion is also
incorrect. They suggest that the city’s ordinance indemnifies only state‐law liabilities.
But this argument is refuted by the text of the ordinance, which expressly covers “any”
liability. Here is the full text:
The city shall hold harmless any officer, employee or agent, or former
officer, employee or agent, from any liability or damages if it is determined
that the act or failure to act which gave rise to liability or damages was
done in good faith in the performance of duty; provided, that this section
shall have no application to any case where the city or state may bring an
action against an officer, employee or agent, or former officer, employee or
agent.
FORT WAYNE, IND. ORDINANCE § 31.05(B). And even if the ordinance were limited to
state‐law claims, the district court was wrong to think that it therefore did not apply to
Austin’s judgment, which was based on a complaint that included claims under state
law.
The case must therefore be remanded, but we briefly address Austin’s remaining
two contentions. First, he contends that respondeat superior is a basis for municipal
liability under § 1983. But his complaint did not allege that Niblick followed a custom or
policy of the Fort Wayne Police Department, and he did not obtain a judgment against
the city on that (or any other) basis. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 691
(1978). Supplemental proceedings are not the proper forum for determining new
substantive theories of liability. See Lewis v. Rex Metal Craft, Inc., 831 N.E.2d 812, 817
(Ind. Ct. App. 2005); Gallants Ins. Co. v. Wilkerson, 720 N.E.2d 1223, 1229 (Ind. Ct. App.
1999). Second, Austin maintains that the city must pay for the judgment against Niblick
because, he asserts, his attorney entered into a stipulation dismissing the other unnamed
officers from the suit without his authority. That is an issue between Austin and his
attorney, not the city.
No. 15‐1957 Page 5
We close with an observation about the remand. We have addressed only those
arguments raised here and adopted by the district court; the parties are free to litigate
other issues about the indemnity obligation. For example, if it is properly raised, the
district court may consider the timeliness of Austin’s motion, given that he filed it 19
years after the judgment was issued. We note that federal courts adopt the time limits
specified in state law for proceedings under Rule 69(a). See Dexia Credit Local v. Rogan,
629 F.3d 612, 627 (7th Cir. 2010); Andrews v. Roadway Express, Inc., 473 F.3d 565, 568 (5th
Cir. 2006). And at least some Indiana authority treats supplemental proceedings as part
of the original action and therefore not subject to the ten‐year statute of limitations that
otherwise governs “actions” on judgments. See IND. CODE § 34‐11‐2‐11; Lewis, 831 N.E.2d
at 821; but see Borgman v. Aikens, 681 N.E.2d 213, 219 (Ind. Ct. App. 1997) (concluding
that party is barred from executing on judgment after ten years because such execution
requires leave of court, see IND. CODE § 34‐55‐1‐2 (formerly § 34‐1‐34‐2), and requesting
leave of court is an action on the judgment within the scope of § 34‐11‐2‐11). Other issues
that may arise on remand include which version of the indemnification statute applies
and whether the city had an opportunity to defend Niblick, as required under the new
statute.
The district court’s order denying Austin’s motion requesting that the City of
Fort Wayne pay the judgment against Niblick is VACATED. The case is REMANDED for
further proceedings consistent with this order.