Carranza v. Pool

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

ERIC CARRANZA, )

)

Plaintiff, )

)

v. ) Case No. 20-3087

)

BUTCH POOL and AARON ZEISLER, )

)

Defendants. )

OPINION AND ORDER

SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE:

Before the Court is a Motion for Summary Judgment (d/e 27)

and a Memorandum in Support thereof (d/e 28) filed by Defendants

Butch Pool and Aaron Zeisler (“Defendants”). Defendants have

shown that Plaintiff Eric Carranza (“Plaintiff”) cannot prove

essential elements of either Plaintiff’s malicious prosecution claim

or his civil conspiracy claim. However, Plaintiff has carried his

burden to show that Officer Pool’s actions in effectuating Plaintiff’s

arrest in December 2018 were excessive in light of then-existing

clearly established law. Defendants’ Motion (d/e 27) is, therefore,

GRANTED IN PART and DENIED IN PART.

I. FACTS

The Court draws the following facts from the parties’

statements of material facts, taking into account each party’s

objections thereto. The Court discusses material factual disputes, if

any, in its analysis. Any fact submitted by any party that was not

supported by a citation to evidence will not be considered by the

Court. See Civ. LR 7.1(D)(2)(b)(2). Any response to an allegedly

disputed fact unsupported by evidentiary documentation is deemed

admitted. Id.

This case arises from a traffic stop that occurred on December

15, 2018. Plaintiff Eric Carranza was driving a delivery truck for

his employer, Sleep Number, north on Interstate 55 when he was

stopped by Defendant Illinois State Police Officer Butch Pool at

approximately 10:13 a.m. near mile marker 52.5. Def.’s Mem. (d/e

28) pp. 3 & 7. A check of Plaintiff’s driver’s license showed an

outstanding warrant for Plaintiff’s arrest in an unrelated case in

Montgomery County, Illinois. Id. pp. 2–3. The Montgomery County

warrant, issued in the Circuit Court of the Fourth Judicial Circuit

for Montgomery County, Illinois case number 2016-TR-5073, was

issued as a result of a failure to appear for a hearing on a traffic

ticket dated November 1, 2016. Id. p. 2.

When Officer Pool learned of the outstanding arrest warrant,

he directed Plaintiff to proceed ahead from where the two vehicles

were stopped on the side of the interstate to a nearby gas station

parking lot so that Pool could conduct a truck inspection. Id. at p.

3. Officer Pool then messaged Defendant Illinois State Trooper

Aaron Zeisler that Officer Pool suspected he had stopped someone

for a motor carrier safety inspection who was also wanted for arrest.

Id. Officer Pool began performing a truck inspection on Plaintiff’s

truck, and Officer Zeisler eventually arrived on the scene. Id. Once

the inspection was complete, Officers Pool and Zeisler discussed the

outstanding warrant between themselves in Pool’s car. Id.

What happened next forms the basis of Plaintiff’s suit and was

captured by Pool’s dashcam video. While Officers Pool and Zeisler

were in Pool’s car, the audio of the dashcam cut out but the video

continued to record. Ex. 4 at 17:30. The video shows Officers Pool

and Zeisler walk from Pool’s car to the driver’s side of Plaintiff’s

truck and ask Plaintiff to exit the truck. Id. at 19:00–19:45.

Plaintiff obeyed, and Officer Pool informed Plaintiff about the

outstanding warrant. Def.’s Mem. at p. 4. The trio walked to the

back of Plaintiff’s truck so that they were between the front of

Officer Pool’s car and the rear of Plaintiff’s truck. Ex. 4 at 19:00–

19:45.

The video then shows Plaintiff calmly speaking with the

officers for about a minute. Ex. 4 at 19:40–20:35. Plaintiff, upon

learning of the warrant, stated that he was willing to go with

Defendants but wanted to contact his employer first. Def.’s Mem. at

p. 4; Pl.’s Resp. (d/e 29) at p. 3. Plaintiff testified that he “just

asked if [Plaintiff] could make a quick phone call to [his] manager to

let them know what was going on.” Pl.’s Resp. at p. 3. Plaintiff

initially placed his hands in his coat pockets but mostly removed

his hands at Officer Zeisler’s instruction, though Plaintiff’s thumbs

remained hooked in his coat pockets. Def.’s Mem. at p. 4; Ex. 4 at

19:27–19:32. According to Plaintiff, he “visibly held his hands

against the coat with [his] fingers spread so the officers could not

only see that [he] had nothing in [his] hands, but that there was no

way for [him] to even grab anything with [his] hands without [the

officers] very clearly being able to see it and react accordingly.” Pl.’s

Resp. at p. 6.

Officer Pool told Plaintiff he was under arrest and instructed

Plaintiff to place his hands behind his back. Def.’s Mem. at p. 4;

Pl’s Resp. at p. 5. Plaintiff responded by again asking the officers if

Plaintiff could call his boss at Sleep Number to inform him of the

situation. Pl.’s Resp. p. 3. Plaintiff remained still while facing the

officers during the entirety of their conversation. Ex. 4 at 19:40–

20:35.

Officer Pool then “performed a joint manipulation by grabbing

the inside of Plaintiff’s left arm and placing [Pool’s] forearm on the

back of Plaintiff’s shoulder to take [Plaintiff] to the ground.” Def.

Mem. at p. 5. Plaintiff did not resist the takedown and instead “just

went limp.” Def.’s Mem. at p. 8; Pl.’s Resp. at p. 6. Plaintiff was

handcuffed while face-down on the ground. Def.’s Mem. at p. 6.

Officer Pool then turned back on the dashcam’s audio. Id. The

officers stood Plaintiff up and performed a search in which they

recovered a small folding knife from Plaintiff’s right pant pocket. Id.

Officer Pool then placed Plaintiff in the patrol car and drove him to

the Montgomery County Jail. Id. at pp. 6 & 11.

In addition to the failure to appear charge, Plaintiff was

charged with resisting a peace officer in Circuit Court of the Fourth

Judicial Circuit for Montgomery County, Illinois case number 2018-

CM-405 on December 21, 2018. Def.’s Mem. at p. 6. The resisting

charge was eventually dismissed on motion of the Montgomery

County State’s Attorney on August 16, 2019. Id. The dismissal

order does not state a reason for the dismissal. See Motion and

Order for Dismissal, Circuit Court for the Fourth Judicial Circuit,

Montgomery County, Illinois Case No. 18-CM-405 (attached as

Appendix 1).

Plaintiff filed the present suit on December 13, 2019 in the

Circuit Court of the Fourth Judicial Circuit for Montgomery County,

Illinois case number 2019-LM-98. Notice of Removal (d/e 1). That

case was removed to this Court on March 30, 2020. Id.

Defendants filed a Motion for Summary Judgment (d/e 27) on

November 30, 2021 and Plaintiff filed a Response (d/e 29) on

December 21, 2021. Defendants did not file a reply brief. The

Court ordered supplemental briefing as to Defendant Pool’s

assertion of the defense of qualified immunity as to Count III on

July 21, 2022. Plaintiff filed his supplemental brief on August 4,

2022, (d/e 30). Defendants have not timely filed any supplemental

briefing as of the entry of this order.

II. LEGAL STANDARD

Defendants move for summary judgment under Federal Rule

of Civil Procedure 56. Summary judgment under Rule 56 is

appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). On such a motion, the facts

and all reasonable inferences derived therefrom are viewed in the

light most favorable to the non-moving party. Scott v. Harris, 550

U.S. 372, 380 (2007); Blasius v. Angel Auto., Inc., 839 F.3d 639,

644 (7th Cir. 2016) (citing Cairel v. Alderden, 821 F.3d 823, 830

(7th Cir. 2016)).

A genuine dispute as to any material fact exists if the evidence

is such that a reasonable jury could return a verdict for the non-

moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The moving party bears the burden of establishing that

there is no genuine dispute as to any material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986); Modrowski v. Pigatto,

712 F.3d 1166, 1168 (7th Cir. 2013) (explaining that Rule 56

“imposes an initial burden of production on the party moving for

summary judgment to inform the district court why a trial is not

necessary” (internal citation omitted)). After the moving party does

so, the non-moving party must then go beyond the pleadings and

“set forth specific facts showing that there is a genuine issue for

trial.” Anderson, 477 U.S. at 255 (quotation and footnotes omitted).

Summary judgment is warranted when the moving party carries its

initial burden and the non-moving party cannot establish an

essential element of its case on which it will bear the burden of

proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir.

2012). “[S]ummary judgment is the ‘put up or shut up’ moment in

a lawsuit, when a party must show what evidence it has that would

convince a trier of fact to accept its version of events.” Johnson v.

Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003).

III. ANALYSIS

Defendants move for summary judgment on Plaintiff’s three

Counts remaining in this case: Count II for Malicious Prosecution,

Count III for Excessive Force against only Defendant Pool, and

Count IV Conspiracy. Plaintiff opposes summary judgment on each

Count.

A. Plaintiff has not carried his burden to offer evidence from

which a reasonable jury could find in his favor on the

malicious prosecution claim.

Generally, “suits for malicious prosecution are not favored in

law.” Beaman v. Freesmeyer, 2019 IL 122654, ¶ 24, 131 N.E.3d

488, 494 (Ill. 2019). To prove a claim of malicious prosecution in

Illinois, a plaintiff must show “(1) the commencement or

continuance of an original criminal or civil judicial proceeding by

the defendant; (2) the termination of the proceeding in favor of the

plaintiff; (3) the absence of probable cause for such proceeding; (4)

the presence of malice; and (5) damages resulting to the plaintiff.”

Id. (quoting Swick v. Liautaud, 169 Ill.2d 504, 512 (1996)). A

plaintiff’s failure to offer evidentiary proof of any one of these

elements will defeat a malicious prosecution claim. Id.

The parties dispute whether Plaintiff can establish the second

element of his claim: that the underlying criminal proceeding was

terminated “in favor of the plaintiff.” Id. It is undisputed that the

Plaintiff’s underlying criminal case, Case No. 18-CM-405 in the

Circuit Court for the Fourth Judicial Circuit, Montgomery County,

Illinois, ended when the state court granted the State’s motion to

dismiss. See App. 1. Also beyond dispute is that the combined

Motion and Order does not specify any reason why the State sought

to dismiss the criminal proceeding. Id.

Whether a criminal proceeding which forms the basis of a

malicious prosecution claim and was abandoned via dismissal on

motion of the State can be said to have been dismissed in favor of

the defendant depends on the circumstances surrounding the

dismissal. Swick, 169 Ill.2d at 512–513.1 The general rule is that

“a criminal proceeding” is considered “terminated in favor of the

accused when a prosecutor formally abandons the proceeding”

through a motion to dismiss. Id. at 513. However, the general rule

does not apply when “the abandonment is for reasons not indicative

of the innocence of the accused.” Id. “[T]he bare fact that a case

has been” voluntarily dismissed “is not sufficient to establish that

the case was terminated favorably for the plaintiff. Rather, the

plaintiff must show that the prosecutor abandoned the case for

reasons indicative of the plaintiff's innocence.” Ferguson v. City of

Chicago, 213 Ill.2d 94, 102 (Ill. 2004). Importantly, “[t]he burden of

1 The Court notes that, while the U.S. Supreme Court has recently held that malicious

prosecution claims arising under the Fourth Amendment and 42 U.S.C. § 1983 need only show

that the underlying prosecution ended “without a conviction,” Thompson v. Clark, 142 S.Ct.

1332, 1335 (2022), Plaintiff’s claim here arises from the Illinois malicious prosecution tort, the

elements of which the Illinois Supreme Court has yet to consider in light of Thompson. The

Court, therefore, continues to analyze Plaintiff’s claims under Swick v. Liautaud, 169 Ill.2d 504

(1996), and current Illinois case law.

proof of a favorable termination . . . remains with the plaintiff.”

Swick, 169 Ill.2d at 513.

Plaintiff argues that questions of fact exist surrounding the

dismissal of his underlying criminal proceeding because, according

to Plaintiff, he “rejected the State’s initial offer [sic] . . . because he

was innocent and because the State could not have proved that he

had resisted arrest.” Pl.’s Resp. (d/e 29) p. 12 (citing Ex. A, Decl. of

Eric Carranza, ¶ 15)). But “self-serving statements in affidavits

without factual support in the record carry no weight on summary

judgment.” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925

(7th Cir. 2004). Plaintiff offers no other evidence to either support

his statement that the case was dismissed because “he was

innocent.” (d/e 29) p. 12. Neither does Plaintiff offer any additional

evidence from which a reasonable jury could conclude that the

underlying criminal case was “abandoned . . . for reasons

indicative of the plaintiff’s innocence.” Ferguson, 213 Ill.2d at 102.

Accordingly, the Court cannot find a question of fact to preclude

summary judgment.

Plaintiff bears the burden at this stage to show what evidence

he has “that would convince a trier of fact to accept its version of

events.” Johnson, 325 F.3d at 901. In this case, that includes the

element of Plaintiff’s malicious prosecution claim that Plaintiff’s

underlying criminal proceeding was terminated in his favor. Swick,

169 Ill.2d at 513. Plaintiff has not carried that burden. Therefore,

summary judgment in favor of Defendants is appropriate as to

Plaintiff’s malicious prosecution claim.

B. Defendant Pool is not entitled to qualified immunity as to

Plaintiff’s excessive force claim for which Plaintiff has

raised a genuine dispute of fact for trial.

Plaintiff also claims that Officer Pool used excessive force while

arresting Plaintiff in violation of Plaintiff’s rights under the Fourth

Amendment. Officer Pool argues that he is entitled to qualified

immunity as to this claim because, in his view, Plaintiff was

resisting arrest when Defendant performed the joint manipulation

to take Plaintiff to the ground. Plaintiff argues that Officer Pool is

not entitled to qualified immunity because Plaintiff was, at most,

passively resisting and clearly established law required Officer Pool

to use only minimal force.

Generally, the doctrine of qualified immunity is a shield police

officers may use when faced with a suit for damages in which a

plaintiff claims constitutional violations. Ashcroft v. al-Kidd, 563

U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Whether an officer is entitled to qualified immunity

“involves a two-pronged inquiry: (1) whether the facts, read in favor

of the of the non-moving party, amount to a constitutional violation;

and (2) whether the constitutional right was clearly established at

the time of the alleged violation.” Rainsberger v. Benner, 913 F.3d

640, 647 (7th Cir. 2019) (Barrett, J.). Put another way, “officers are

entitled to qualified immunity . . . unless (1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of their

conduct was ‘clearly established at the time.’” Dist. of Columbia v.

Wesby, 138 S.Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566

U.S. 658, 664 (2012)).

The Court need not always address both questions in the

qualified immunity analysis. Pearson v. Callahan, 555 U.S. 223,

236–42 (2009). “[I]f the law was not clearly established, there is no

need to tackle the (often harder) question whether the challenged

conduct violated the Constitution.” Rainsberger, 913 F.3d at 647.

But where the law was clearly established, both qualified immunity

questions must be addressed. Id.

i. It was clearly established in 2018 that Officer Pool

could only use minimal force when arresting Plaintiff.

In December 2018, “it was of course clearly established that a

police officer may not use excessive force in arresting an individual.”

Becker v. Elfreich, 821 F.3d 920, 928 (7th Cir. 2016) (quoting

Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 687 (7th Cir.

2001)). The closer question, though, is whether “the right to be free

from the degree of force employed” in this case would “have been

clear to a reasonable officer at the scene.” Becker, 821 F.3d at 928

(quoting Bush v. Strain, 513 F.3d 492, 502 (5th Cir.2008)). “To be

clearly established the ‘contours of the right must be sufficiently

clear that a reasonable official would understand that what he is

doing violates the right.’” Id. (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). A party need not point to “a case directly on

point . . . for a right to be clearly established.” Phillips v. Cmty. Ins.

Corp., 678 F.3d 513, 528 (7th Cir.2012). All that is required is that

“the unlawfulness” of the conduct “must be apparent” in light of

pre-existing law. Becker, 821 F.3d at 928. Here, it was.

The Fourth Amendment protects a person’s right to be free

from unreasonable searches and seizures. The Amendment also

governs excessive force claims, which are “reviewed under the

Fourth Amendment’s objective reasonableness standard.” Dawson

v. Brown, 803 F.3d 829, 833 (7th Cir. 2013) (citing Graham v.

Connor, 490 U.S. 1, 8 (1989)); Morfin v. City of East Chicago, 349

F.3d 989, 1004 (7th Cir. 2003) (same)). Under this standard, courts

consider whether a “reasonable officer under the circumstances”

would have acted as the officer in question acted. Id. This inquiry

“requires a careful balancing of the nature and quality of the

intrusion on the individual's Fourth Amendment interests against

the countervailing governmental interests at stake.” Morfin, 349

F.3d at 1004 (quoting Graham, 490 U.S. at 8 (additional citation

and internal quotation omitted)). The question is whether, “judging

from the totality of the circumstances at the time of the [seizure],

the officer use[d] greater force than was reasonably necessary to

effectuate the [seizure].” Phillips, 678 F.3d at 519.

Whether the force used to effectuate an arrest was necessary

“requires careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest or attempting

to evade arrest by flight.” Morfin, 349 F.3d at 1004–1005 (quoting

Graham, 490 U.S. at 396). Officer Pool argues that Plaintiff was

actively not complying which justified Officer Pool’s use of force

against Plaintiff when Pool performed the joint manipulation to take

Plaintiff to the ground. Plaintiff, in turn, argues that the joint

manipulation was excessive because Plaintiff was, at most,

passively not complying when Officer Pool took Plaintiff to the

ground.

The Court agrees with Plaintiff. While there is no test for when

a plaintiff is exhibiting active or passive noncompliance, the

Seventh Circuit has found multiple times passive noncompliance, at

most, where a nonaggressive individual’s only fault was failure to

comply with orders from law enforcement. In Becker v. Elfreich, the

Seventh Circuit held that the plaintiff was “a nonresisting (or at

most passively resisting) suspect” where the plaintiff did not comply

with officer’s command to get on the ground and where the plaintiff

was being bit by a police dog. 821 F.3d at 929. In Abbott v.

Sangamon County, Illinois, the Seventh Circuit held that the

plaintiff “at most exhibited passive noncompliance and not active

resistance” when the plaintiff did not comply with orders to roll over

after falling to the ground when the plaintiff was tasered. 705 F.3d

706, 730 (7th Cir. 2013). And in Phillips, the Seventh Circuit held

that the plaintiff’s conduct was passive noncompliance, “[t]o the

extent that [the plaintiff’s] perceived conduct could be considered

‘resistance’ at all,” where the plaintiff smoked a cigarette, rested her

feet out of her parked car’s driver-side window, and picked up a

water bottle, all while officers continuously ordered her to show her

hands and exit her vehicle for approximately ten minutes. 678 F.3d

at 525. See also id. (collecting cases).

Here, Plaintiff’s conduct was, at most, passive noncompliance.

It is undisputed that Plaintiff followed Officer Pool’s directions to

exit his truck and follow both Officer Pool and Officer Zeisler to the

rear of the truck. As evidenced by the video, it also cannot be

disputed that Plaintiff remained still during the entire episode and

had his hands removed from his pockets but for hooking his

thumbs. Plaintiff was told he was under arrest for failing to appear

for a hearing on Plaintiff’s previous traffic ticket. Plaintiff

responded by asking Officer Pool if he could call Plaintiff’s employer

to inform his employer of the situation. The parties’ entire

conversation lasted fewer than two minutes, during the entirety of

which Plaintiff did not appear to become agitated, attempt to flee, or

even move in the slightest. Such behavior cannot be described as

anything more than passive noncompliance if that.

Officer Pool argues that Plaintiff’s behavior in keeping his

thumbs hooked inside Plaintiff’s coat pockets constitutes active

resistance. Pool also asserts that Plaintiff “started to look around”

during the conversation, which Pool believed could “be a sign that a

suspect is about to engage in fight or flight.” Pl.’s Mot. p. 25 (citing

Pool Decl.). But the video clearly shows Plaintiff’s head not moving

during his conversation with Pool. And even if the video didn’t

refute Pool’s assertion, at this stage, the facts are to be viewed in

the light most favorable to Plaintiff as the nonmoving party, so such

an assertion would amount to, at most, a dispute among the parties

for the trier of fact to decide. Instead, the video gives an account of

Plaintiff’s actions that cannot be disputed and cannot be said to be

anything more than, if at all, passive noncompliance. Indeed,

“[w]illful non-compliance is not the same as ‘actively resisting’ but

instead a passive ‘resistance.’” Becker, 821 F.3d at 927(quoting

Phillips, 678 F.3d at 525). That is what occurred here. The only

question that remains is whether and to what extent force was

permissible under clearly established law.

As indicated above, “[f]orce is reasonable only when exercised

in proportion to the threat posed.” Phillips, 678 F.3d at 528. In

this case, Plaintiff was informed he was placed under arrest for

failing to appear in court for a traffic ticket and was at most

passively noncompliant. Prior to December 2018 when Officer Pool

effectuated the arrest here, “it was well-established in this circuit

that police officers could not use significant force on nonresisting or

passively resisting suspects” and that “only minimal force is

warranted where the accused is passively resisting.” Becker, 821

F.3d at 928–929 (quoting Phillips, 678 F.3d at 529). Given the facts

of this case, the Court, therefore, finds that a reasonable officer

would have known that he could not use more than minimal force

to effectuate Plaintiff’s arrest under clearly established law.

ii. Under clearly established law, Plaintiff has raised an

issue of fact as to whether Officer Pool used excessive

force to effectuate arrest.

Plaintiff has presented evidence from which a reasonable jury

could conclude that the force Officer Pool used was more than

minimal. The Seventh Circuit has not announced any test for

determining what force is “minimal.” The Seventh Circuit has,

however, found that permissible minimal force includes removing

an unresponsive, passively-noncompliant driver from his car, Smith

v. Ball State Univ., 295 F.3d 763, 770–71 (2002), and holding an

intoxicated, actively-resistant person’s wrist in a “wrist lock”

technique to prevent her from freeing herself from handcuffs while

in an ambulance, Fitzgerald v. Santoro, 707 F.3d 725, 734–35 (7th

Cir. 2013). In contrast, the Seventh Circuit has found minimal

force is exceeded where an officer sets a police dog on a

nonresistant suspect and sends the suspect to the ground by

grabbing the suspect’s shirt. Becker, 821 F.3d at 928–929. Other

cases in which the force used was held to have exceeded minimal

force include cases where a taser was used against a “nonviolent

misdemeanant who . . . made no movement when . . . the officer

instructed her to turn over,” Abbott, 705 F.3d at 732, and where

officers used an impact weapon which employed a “less lethal”

bean-bag projectile to subdue a woman who was passively

noncompliant, Phillips, 678 F.3d at 521–22.

Closer to the facts of the present case is the Seventh Circuit’s

analysis in Brooks v. City of Aurora, Illinois. 653 F.3d 478 (7th Cir.

2011). In that case, the plaintiff was barbecuing outside his

apartment when defendant-officers arrived to effectuate an arrest

warrant for driving on a suspended license. Id. at 480–81. An

officer informed the plaintiff that he was under arrest. Id. at 481.

The plaintiff then backpedaled away from the officer while

attempting to bat away the officer’s hands. Id. The officer pepper-

sprayed the plaintiff, placed him under arrest, and took him to the

police station where he was charged with driving on a suspended

license and resisting a peace officer in the performance of his

duties. Id.

The Seventh Circuit held that the use of pepper spray to

subdue the plaintiff in Brooks was not excessive and that the

defendants were entitled to qualified immunity. 653 F.3d at 486–

87. The court based its conclusion on the facts that the plaintiff

was backing away from the officers, was batting away the officer’s

hands, and was at his home where he could have been able to

“fortify himself or . . . escaped before the officer employ[ed]

reasonable means of incapacitation.” Id. at 487.

Mr. Carranza’s behavior and the circumstances of his arrest

were markedly different than the plaintiff’s in Brooks. Mr. Carranza

did not attempt to flee and did not become physical with Officer

Pool. Mr. Carranza did not “employ[] a number of moves designed

to thwart” Officer Pool’s “attempts to take him into custody.” Id. at

486. Instead, Mr. Carranza calmly spoke with Officer Pool for a

little over a minute and simply requested to inform his employer of

the situation since Mr. Carranza was performing his job at the time.

Mr. Carranza then went limp once Officer Pool performed the joint

manipulation, a far cry from actively resisting or attempting to flee.

Moreover, Mr. Carranza was being arrested for a minor infraction of

failing to appear in court on a traffic ticket. He did not pose a

threat to Officer Pool and was, as stated above, passively

noncompliant at worst. Mr. Carranza never attempted to interfere

with Officer Pool’s duties. Given the landscape of preexisting case

law, any reasonable officer would know in December 2018 that a

joint manipulation takedown of a calm, passively noncompliant

suspect would have been more than minimal. The constitutional

question having been put beyond debate in light of clearly

established law, the Court finds that Officer Pool is not entitled to

qualified immunity on Plaintiff’s excessive force claim.

C. Plaintiff has not carried his burden to offer evidence of an

agreement between Officers Pool and Zeisler, an essential

element of the conspiracy claim.

Defendants lastly seek summary judgment on Plaintiff’s civil

conspiracy claim. “To succeed in a claim of civil conspiracy under

Illinois law, the plaintiffs must eventually establish: (1) an

agreement between two or more persons for the purpose of

accomplishing either an unlawful purpose or a lawful purpose by

unlawful means; and (2) at least one tortious act by one of the co-

conspirators in furtherance of the agreement that caused an injury

to the plaintiff.” Borsellino v. Goldman Sachs Grp., 477 F.3d 502,

509 (7th Cir. 2007) (citing McClure v. Owens Corning Fiberglas

Corp., 188 Ill.2d 102, 241 (Ill. 1999)). “The agreement is a

necessary and important element” of any civil conspiracy claim. Id.

(additional quotation omitted).

Defendants argue that they are entitled to summary judgment

because Plaintiff has not provided sufficient evidence to prove an

agreement was made between Officers Pool and Zeisler. Plaintiff

responds by citing to the Complaint (d/e 1-3) and his own

Declaration, (d/e 29) Ex. A, in which Plaintiff lists the reasons

Plaintiff believes there was an agreement between the officers.

Plaintiff argues that his stated beliefs could lead a reasonable juror

to infer an “implicit agreement” between Officers Pool and Zeisler to

have Plaintiff “prosecuted for a crime he did not commit.” Def.’s

Resp. p. 13.

Plaintiff relies primarily on the Illinois Supreme Court’s

decision in Fritz v. Johnson, 209 Ill.2d 302 (Ill. 2004). Def.’s Resp.

p. 12. There, the Illinois Supreme Court held that the plaintiff’s in

that case had met their burden at the pleading stage to “allege facts

from which a conspiracy between [the defendants] could be

inferred.” Fritz, 209 Ill.2d at 317. But while Plaintiff is correct that

an agreement may be “express or implied,” Scherer v. Balkema, 840

F.2d 437, 442 (7th Cir. 1988), Plaintiff is incorrect in arguing that

his burden at this stage is merely to offer an inference of such an

agreement.

Fritz was decided at the motion to dismiss stage. At that

stage, in federal court, a plaintiff need only provide a short and

plain statement of his claim showing he is entitled to relief and

giving the defendants fair notice of the claims. Tamayo v.

Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). And in holding

that the Fritz plaintiff had “sufficiently allege[d] facts from which a

conspiracy between [the defendants] could be inferred,” the Fritz

Court applied the parallel Illinois pleading standard. 209 Ill.2d at

309 (“Because the issues arose in the context of a motion to dismiss

plaintiff's complaint, we are required to interpret all pleadings and

supporting documents in the light most favorable to the nonmoving

party. We must also accept as true all inferences that can

reasonably be drawn in plaintiff's favor.” (internal quotation and

additional citation omitted)).

In contrast, Plaintiff is now at the stage of his case where he

must “set forth specific facts showing that there is a genuine issue

for trial.” Anderson, 477 U.S. at 255 (quotation and footnotes

omitted). As previously stated, Plaintiff must go beyond “self-

serving statements in affidavits without factual support in the

record” to satisfy his burden at summary judgment. Butts, 387

F.3d at 925. Plaintiff states in his Affidavit only that “[t]he reason

[he] believe[s] the Defendants conspired against [Plaintiff] is that

[Defendants] lied and exaggerated in their reports about various

details of the events of the incident.” Def.’s Ex. A at ¶ 21.

Specifically, Plaintiff asserts in his Declaration that Defendants

a. falsely stat[ed] that Mr. Carranza “pushed

back and attempted to remain standing”

when Defendant Pool used physical force

against him;

b. alleg[ed] that Mr. Carranza “began to look

around” as “an indicator that he was

planning a route to escape”;

c. overstat[ed] the number of times they

“ordered” Mr. Carranza to put his hands

behind his back before using physical force

against him;

d. characterize[ed] the small folding knife Mr.

Carranza was carrying as part of his job

with the Company as a “lethal cutting

instrument”; and

e. bizarrely [wrote] that, on the way to the jail,

Mr. Carranza “laughed softly to himself in a

maniacal sort of way.”

Id.

But those statements are not based on Plaintiff’s personal

knowledge of any agreement between Officers Pool and Zeigler and

do not set forth specific facts to support the conclusion that

Defendants made some agreement between themselves. See Payne

v. Pauley, 337 F.3d 767, 772–73 (7th Cir. 2003). Instead, they are

mere speculative conclusory statements about Plaintiff’s belief that

Defendants conspired in some way. Such conclusory statements,

without more, are insufficient to raise a genuine issue of fact to

defeat summary judgment. Butts, 387 F.3d at 925. Because

Plaintiff has not carried his burden to produce sufficient evidence

setting forth facts raising a genuine issue for trial, Defendants are

also entitled to summary judgment as to Plaintiff’s conspiracy

claim.

IV. CONCLUSION

Plaintiff has not carried his burden to provide evidence at this

stage from which a reasonable juror could find in his favor as to the

malicious prosecution claim or the conspiracy claim. Therefore,

Defendants’ Motion for Summary Judgment (d/e 27) is GRANTED

as to Counts II and IV. But because Plaintiff has shown that a

reasonable officer in Officer Pool’s position in December 2018 would

have known that the use of a joint manipulation to take Plaintiff to

the ground was more than the minimal force allowed in such

circumstances, the Court DENIES Officer Pool’s request for

qualified immunity on Count III and, for the same reason, his

Motion for Summary Judgment (d/e 27) as to that Count.

IT IS SO ORDERED.

ENTERED: August 24, 2022.

FOR THE COURT

/s/ Sue E. Myerscough____________

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE

Appendix 1

IN THE CIRCUIT COURT FOR THE FOURTH JUDICIAL CIRCUIT

MONTGOMERY COUNTY, ILLINOIS

The People of the State of Illinois ) □

Plaintiff, ) FILE

) □□□□

vs. ) NO. 18-CM-405 □□□ 718 2

LLY pe

) Cireuiy

ERNEST A. CARRANZA, ) 4TH □□□□□□□□ co!

Defendant. ) □□□□

MOTION TO DISMISS

Now on this 16th day of August, 2019, come the People of the State of Illinois by WES

POGGENPOHL, Assistant State’s Attorney, and moves for an entry of dismissal in the above-

entitled cause.

WES POGGENPOHL

Assistant State’s Attorne

y FILED

MS 46 2019 1

WES POGGENPOHL 19 2019

Assistant State’s Attorney Circolt □□ □□□□□

120 North Main 4TH Judicial Circuit

Hillsboro, Illinois 62049

Telephone: (217) 532-9551

ORDER GRANTING MOTION

It is hereby ordered that the above-entitled cause be dismissed, with prejudice.

ENTER: shuld __

Judge

The foregoing, instrument is a full, true and correct copy of the

original on file in this office ww

Attest ely oD 5 20 FD

DANIEL T. ROBBINS, Clerk of Circuit Court of the Fourth Judicial

Circuit, Montgomery County, Iilinois .

Lact Kibbiw — Clerk