A wrongful death lawsuit filed on behalf of a man who died in the custody of South Bend police was reinstated Friday by the Indiana Court of Appeals.
In a memorandum decision, appellate judges reversed dismissal of the complaint by St. Joseph Superior Judge Jenny Pitts Manier. The complaint was filed two years after Michael Delshawn Anderson died in police custody. His parents claim in the suit he had been shot with a stun gun and assaulted by police before he died.
Pitts dismissed the case and rejected the Andersons’ motion to correct error, ruling in favor of South Bend and St. Joseph County defendants who argued summonses in the case had not been furnished at the time the complaint was filed.
“We conclude that the trial court erred in granting the City Defendants’ motion to dismiss because the Indiana Trial Rules require only that a plaintiff ‘furnish’ a summons contemporaneously with the filing of a complaint, and there is no indication in the record that the Plaintiffs failed to do so here,” Judge Terry Crone wrote for the panel. “Consequently, we reverse and remand for further proceedings.
“If, as the City Defendants assert, the summonses were not furnished with the complaint, there is no notation (in the chronological case summary) to this effect. As the party seeking dismissal, the City Defendants had the burden of establishing that the summonses were furnished after the statute of limitations expired, and on this record they failed to carry that burden,” Crone wrote.
The case is Tanya Anderson and Delmonte Anderson, Individually and as Personal Representatives of the Supervised Estate of Michael Delshawn Anderson, Deceased, et al v. Civil City of South Bend, et al (mem. dec.), 71A03-1502-CT-53.