Brown v. City Of Chicago

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GEORGE BROWN, )

Plaintiff,

V. No. 12 C 1764

CITY OF CHICAGO, et al., Honorable Charles R. Norgle Sr.

Defendants.

OPINION AND ORDER

Defendants’ motion for partial summary judgment [115] is granted in part and denied in part.

Defendants’ motion is granted as to Plaintiffs Count I unlawful pretrial detention claim and Count

V intentional infliction of emotional distress claim. However, Plaintiff's claim of excessive force,

which he couches within Count I, and assault (Count II) may proceed.

STATEMENT

Plaintiff brings this action for damages pursuant to 42 U.S.C. § 1983 (“§ 1983”) against

Defendants City of Chicago, Officer George Moussa, and Officer Joseph Lopez (collectively

“Defendants”). He claims that Officers Moussa and Lopez (“Defendant Officers”) violated his

Fourth and Fourteenth Amendment rights by using excessive force and fabricating evidence,

leading to his unlawful detention that was not supported by probable cause (Count I). In addition

to these civil rights claims, Plaintiff brings claims of assault (Count II), battery (Count III),

malicious prosecution (Count IV), intentional infliction of emotional distress (Count V), and

Respondeat Superior (Count VI). This Court has already dismissed the malicious prosecution

claim. Dkt. 101. Defendants move for partial Summary Judgment as to Counts I, II, and V. For the

following reasons, the motion is granted in part and denied in part.

Background

A party’s response to a statement of facts must, in the case of any disagreement, include

“specific references to the affidavits, parts of the record, and other supporting materials relied

upon[.]”. N.D. Ill. L.R. 56.1. “A party's obligation to support its facts with evidence is mandatory,

and the Seventh Circuit repeatedly has held that the district court is within its discretion to enforce

strict compliance with the requirements of Local Rule 56.1.” Hanover Ins. Co. v. House Call

Physicians of Illinois, No. 15 C 3684, 2016 WL 1588507, at *2 (N.D. Ill. Apr. 19, 2016); see, e.g.,

Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th Cir. 2011). “Irrelevant or unnecessary facts

do not preclude summary judgment even when they are in dispute.” Outlaw v. Newkirk, 259 F.3d

833, 837 (7th Cir. 2001). Material facts are those “facts pertinent to the outcome of the issues

identified in the summary judgment motion.” Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. III.

2000). “All material facts set forth in the statement required of the moving party will be deemed

to be admitted unless controverted by the statement of the opposing party.” N.D. Ill. L.R.

56.1(b)(3)(C); Banks v. Dart, No, 12 C 4333, 2014 WL 625865, at *2 (N.D. Ill. Feb. 18, 2014).!

These are the material, undisputed facts.? In March of 2011, Officers Lopez and Moussa

were assigned to the Chicago Police “mobile task force” patrolling high-crime areas. Around 11:55

p.m. on March 10, 2011, Plaintiff was driving a black Chevy Tahoe in the area of Quincy Street

and Laramie Avenue, Chicago, IL, which is a high crime area. At that time Officer Lopez was a

passenger in a Chicago Police vehicle driven by Sergeant John Cannon. Officers Keany and Pruger

| Plaintiff did not respond to paragraphs 48-56 in Defendants’ Statement of Facts, so they are deemed admitted. Dkt.

These facts were taken from Defendants’ LR 56.1 Statement of Material Facts; Plaintiff's Response to Defendants’

LR 56.1 Statement of Material Facts; Plaintiff's Statement of Additional Facts; and Defendants’ Response to

Plaintiff's Statement of Additional Facts.

were also in the vehicle. Officer Moussa was in a different Chicago Police vehicle with Officers

Bracho and Rashan.

As Plaintiff was driving on Quincy, the squad car with Sgt. Cannon and Officer Lopez

came to a stop in front of Plaintiff's vehicle. The squad car beamed a bright light, and Plaintiff

could not see much with the light shining on him. Plaintiff did see the vehicle in front of him and

began to back his car away from the vehicle. Plaintiff asserts that he did not know it was a police

vehicle. Officer Lopez and Sgt. Cannon exited their vehicle and approached Plaintiff's vehicle

with their guns drawn, allegedly because Plaintiff's car did not have its headlights on. Plaintiff

exited his vehicle and ran.

While Plaintiff was running, he was holding his right side and pulled out one marijuana

cigarette from his pants pocket. Officer Lopez went over the police radio to inform the other

officers that Plaintiff was fleeing, including his direction of flight and that Plaintiff was holding

his waist. Officer Moussa heard these radio transmissions. After Plaintiff ran, the squad car that

Officer Moussa was in went around the block and came to a stop at the west end of Quincy, the

direction that Plaintiff had run. At some point, Plaintiff put the marijuana cigarette in his mouth.

A physical altercation ensued between Plaintiff and the Officers. Officer Lopez testified

that Plaintiff punched him in the face with a closed fist, and that Officer Moussa tased Plaintiff.

But according to Plaintiff, he was tackled to the ground from behind, he balled-up, Officer Lopez

punched him in the head and choked him, and Moussa tased him 4 times. Plaintiff states that he

was told to “open your mouth” and “spit it out” as he was being choked. However, Plaintiff did

eventually swallow the marijuana cigarette.

Plaintiff asserts that the taser left a hole in his back, that he had scabs on his head and

puncture wounds, that for two weeks he could not feel his legs and that his throat hurt, that he

sweated for three days at Cook County Jail and that he there sought medical treatment for a sharp

pain on his left side. Defendants deny these allegations.

As a result of the incident, Plaintiff was arrested by Officer Lopez and charged with

resisting a police officer and aggravated battery. Officer Moussa filed criminal complaints against

Plaintiff alleging reckless conduct nearly striking pedestrians, criminal trespass to motor vehicle,

resisting arrest and a traffic ticket for no headlights.

A preliminary hearing was held on March 24, 2011, in the Circuit Court of Cook County

before the Honorable Judge Kenneth Fletcher. Officer Moussa testified that Plaintiff fled from the

officers, specifically Officer Lopez, on foot while holding his side and that the Officers detained

Plaintiff only after he continued to flee. Ultimately, the presiding Judge Kenneth Fletcher made a

finding of probable cause, and decided to detain Plaintiff pending bail payment of $100,000.00.

On March 31, 2011, the Cook County State’s Attorney brought an information

charging Plaintiff with aggravated battery, and all other charges were dropped. On February 7,

2012, Plaintiff's case proceeded to a bench trial before Judge Clayton Crane, where Plaintiff

testified. He testified that a police vehicle stopped in front of him and the officers waved their

hands at him. Plaintiff asserted that he figured they were trying to get past him, which is why he

backed up. After he backed his car away, the officers exited the vehicle with their guns drawn and

ordered him out of his car. Plaintiff then panicked and ran. At the conclusion of the trial, Judge

Crane found Plaintiff guilty of a misdemeanor resisting arrest and not guilty of the felony

aggravated battery charge. Plaintiff was sentenced to 300 days in the Cook County Department of

Corrections, time served.

Plaintiff disputed his conviction and a new trial was ordered. On October 14, 2015 and

October 15, 2015 Plaintiff's case was retried before a jury on an Information charging him with

aggravated battery; while the State never amended the Information charging Plaintiff with

aggravated battery, the State proceeded to try Plaintiff for resisting arrest. At the conclusion of

Plaintiff's second trial, on October 15, 2015, Plaintiff was again found guilty of a misdemeanor

resisting arrest. Plaintiff was never convicted of Aggravated Battery. Plaintiff was again sentenced

to 300 days in the Cook County Department of Corrections, time served.

Plaintiff appealed his conviction. On August 21, 2017, the Appellate Court reversed and

remanded Plaintiffs case. The Appellate Court reversed Plaintiff’s conviction based on the stale

charging document used by the Cook County State’s Attorney’s Office; a new charging document

was not filed prior to the second trial. The Appellate Court also reversed the conviction for the

failure of the Court to give a jury instruction regarding self-defense.

In its conclusion, the Appellate Court stated that “[v]iewing the [POD camera] video in

conjunction with all the testimony in the record, there are reasons to believe that the first car the

officers confronted was defendant’s car with its lights on and, therefore, that the officers lacked a

legal basis to arrest defendant.” Dkt. 133, 5.2 However, the Appellate Court urged the State to

consider whether a retrial of this case would be worthwhile because Plaintiff has already

discharged his sentence. The Appellate Court further stated that its opinion was not a vindication

of Plaintiff in any way.

Plaintiff alleges that as a result of this incident he was “kind of upset” about the charges

that were brought against him. He further alleges that he was “kind of upset” about the number of

times he was tased. Plaintiff testified at deposition that he has not sought treatment from a

psychiatrist, psychologist, or therapist as a result of this incident.

3 It is unclear whether Defendants admit or deny that Plaintiff's headlights were on. See Dkt. 133 at 5; but see Dkt.

133 at 10. Ultimately, this admission is irrelevant to the Court’s findings.

On September 18, 2018, this Court issued a written order on Defendants’ Partial Motion to

Dismiss the present case. This Court held that Plaintiff had pled himself out of court regarding his

malicious prosecution claim because Plaintiff admitted that he fled from the officers. This Court

concluded that Defendant Officers had probable cause to arrest Plaintiff for resisting law

enforcement.

PlaintifPs remaining claims proceeded to discovery, and Defendants now move for

summary judgment on Plaintiff’s civil rights claims of unlawful pretrial detention and excessive

force (Count I), assault (Count II), and intentional infliction of emotional distress (Count V).

Legal Standard

“Summary judgment is appropriate when ‘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.’”

Northfield Ins. Co. v. City of Waukegan, 701 F.3d 1124, 1128 (7th Cir. 2012) (quoting Fed. R.

Civ. P. 56(a)). “There is no express or implied requirement in Rule 56 that the moving party

support its motion with affidavits or other similar materials negating the opponent’s claim.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Crawford v. Countrywide Home

Loans, Inc., 647 F.3d 642, 648 (7th Cir. 2011) (“A party moving for summary judgment need not

introduce evidence rendering its opponents’ claims altogether impossible in order to trigger the

opponent’s burden to answer with its own supporting evidence.”). “When the moving party has

carried its burden under Rule 56(c), its opponent must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986).

The Court does not “judge the credibility of the witnesses, evaluate the weight of the

evidence, or determine the truth of the matter. The only question is whether there is a genuine

issue of fact.” Gonzalez v. City of Elgin, 578 F.3d 526, 529 (7th Cir. 2009) (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). “Summary judgment is the ‘put up or shut up’

moment in a lawsuit.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (quoting Johnson

v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003)). “Once a party has made a properly-

Supported motion for summary judgment, the nonmoving party may not simply rest upon the

pleadings but must instead submit evidentiary materials that ‘set forth specific facts showing that

there is a genuine issue for trial.’” Id. (quoting Fed. R. Civ. P. 56(e)). If the nonmovant “is unable

to ‘establish the existence of an element essential to [his] case, and on which [he] will bear the

burden of proof at trial,’ summary judgment must be granted.” Benuzzi v. Bd. of Educ. of City of

Chicago, 647 F.3d 652, 662 (2011) (quoting Celotex Corp., 477 U.S. at 322).

The Court must view “the record in the light most favorable to the nonmovant and [avoid]

the temptation to decide which party’s version of the facts is more likely true.” Payne v. Pauley,

337 F.3d 767, 770 (7th Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)).

Count | ~ Civil Rights Claims

In Count I of his Second Amended Complaint, Plaintiff brings civil rights claims under the

Fourth and Fourteenth Amendments. He asserts that these rights were violated because Officer

Moussa used excessive force when tasering Plaintiff, the Officers fabricated evidence when

testifying against Plaintiff, and the Officers’ actions—unsupported by probable cause—led to

Plaintiff's unlawful pre-trial detention of nearly one year. Dkt. 89 at 8-10. Among other specific

allegations, Plaintiff asserts that POD camera evidence showed that Defendant Officers’ testimony

was fabricated because, contrary to the Officers’ testimony, his car lights were in fact on and there

was therefore no reason or probable cause to arrest him in the first place. He also contends that

Defendant Officers “covered” their use of excessive force by fabricating that Plaintiff hit Officer

Lopez, and falsely charged Plaintiff with aggravated assault. He argues the aggravated assault

charge “was the reason for Plaintiffs incarceration” and pushed his bond to $100,000, whereas

“had [Plaintiff] been charged with a misdemeanor resisting arrest, he would have received an I-

Bond.” Dkt. 125, 4 44.

First, any claim that Plaintiff's pretrial detention was not based on probable cause is

incorrect. This Court has already held that Officers Lopez and Moussa had probable cause to arrest

Plaintiff because he fled. Dkt. 101. He also, admittedly, presented and swallowed a marijuana

cigarette. As Defendants point out, “regardless of the basis for Plaintiff's initial stop, at the time

Plaintiff fled from the police, Defendants obtained probable cause to arrest Plaintiff... and the

exclusionary rule does not apply in Sec[tion] 1983 cases.” Dkt. 133 at 2 (citing Vaughn v.

Chapman, 662 F. App'x 464, 467 (7th Cir. 2016) (“Although Vaughn alleges that this evidence

was the fruit of an illegal search of the car, this would not undermine its relevance to the question

of probable cause. The exclusionary rule does not apply in a § 1983 suit against police officers.”));

see also Townes v. City of New York, 176 F.3d 138, 145 (2d Cir. 1999) (“The fruit of the

poisonous tree doctrine cannot link the unreasonable seizure and search to Townes's conviction

and incarceration because this evidentiary doctrine is inapplicable to civil § 1983 actions.”).

Judge Crane decided to detain Plaintiff pending payment of bail, at least in part, based on

his resisting arrest. Plaintiff admits that Officer Lopez filed criminal complaints against him for

aggravated battery and resisting arrest, and that Officer Moussa filed criminal complaints against

him that included resisting arrest. Dkt. 125, 9 11. Probable cause existed to arrest Plaintiff on that

charge. Dkt. 101. Plaintiff argues that he did not know that Lopez and the other Officers were

police officers, and that “Lopez could not say that he identified himself as a police officer.” Dkt.

129 at 13. But probable cause is not based on the subjective mind of the arrestee; the analysis is

based on whether the “facts and circumstances within [the Officer’s] knowledge would warrant

a prudent person in believing that the suspect had committed or was committing an offense. Id.

(citing Xing Qian v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999)). Plaintiff cannot proceed to trial on

his pretrial detention claim simply because he was charged with aggravated battery, but ultimately

was never found guilty of it.

Plaintiff asserts that the Defendant Officers’ false testimony caused his unlawful pretrial

detention, but his claim here again fails. First, a Ҥ 1983 claim for unlawful pretrial detention rests

exclusively on the Fourth Amendment.” Lewis v. City of Chicago, 914 F.3d 472, 478 (7th Cir.

2019) (emphasis in original). “[A]ll § 1983 claims for wrongful pretrial detention—whether based

on fabricated evidence or some other defect—sound in the Fourth Amendment.” Id. at 479 (citing

Manuel v. City of Joliet, Illinois, 903 F.3d 667, 670 (7th Cir. 2018)). The Court abides by this

precedent and will not address Defendants’ argument that Plaintiff's claim fails under the

Fourteenth Amendment. And as the Court has already explained, fleeing from police is a form of

resisting or obstructing a police officer. E.g., People v. Jones, 245 Ill. App. 3d 302, 307, 613 N.E.2d

354, 357 (1993). Because the Officers had probable cause to detain Plaintiff, his pretrial detention

claim fails under the Fourth Amendment.*

However, Plaintiff's excessive force claim survives Defendants’ motion. Plaintiff and

Defendants disagree about the conduct of Defendant Officers and Plaintiff during their physical

altercation, including whether Plaintiff struck Officer Lopez and whether Officer Lopez struck,

hit, or choked Plaintiff. Dkt. 129 at 8. It is not for the Court to make credibility determinations at

4 The Court need not address Defendants’ argument that Plaintiff fails to prove that the officers fabricated evidence,

nor their claim of absolute immunity regarding Defendant Officers’ judicial testimony. See, ¢.g., Polzin v. Gage, 636

F.3d 834, 838 (7th Cir. 2011).

summary judgment or decide whose version of the facts is more likely true. Payne v. Pauley, 337

F.3d 767, 770 (7th Cir. 2003). The Court notes that Defendants do not, in this motion, seek

summary judgment regarding Plaintiff's battery claim (Count III). Plaintiff's claim of excessive

force by Defendant Officers may proceed.

Count V — Intentional Infliction of Emotional Distress

Plaintiff's Count V claim for intentional infliction of emotional distress (“IIED”) fails on

summary judgment. First, Plaintiff's bar on this claim is a “high” one. Richards v. U.S. Steel, 869

F.3d 557, 566 (7th Cir. 2017). To state a claim for IIED under Illinois law, a plaintiff must allege:

(1) extreme and outrageous conduct; (2) that the actor intends to cause severe emotional distress

or that the actor is aware of a high probability of causing severe emotional distress; and (3) the

conduct actually caused severe emotional distress. Breneisen vy. Motorola, Inc., 512 F.3d 972, 983

(7th Cir. 2008). If any one of these elements is missing, a party cannot establish an IIED claim.

See, ¢.g., Smith v. Dominick’s Finer Foods, Inc., No. 05 C 4461, 2009 WL 2358580, at * 6 (N.D.

Ill. July 28, 2009) (“Plaintiff has the burden of establishing the elements of his ITED claim.”).

The Court takes the facts as most favorable to Plaintiff, and according to Plaintiff, he never

attacked an Officer and was instead punched in the head, choked, and tased at maximum capacity

4 times which caused him to have a hole in his back, scabs on his head, leg numbness, throat

soreness, excessive sweating, and sharp pain on his left side.

These allegations—taken as true—simply do not rise to the type of severe emotional

distress required to sustain Plaintiff's Count V claim. He fled from Officers who had probable

cause to arrest him, and swallowed a marijuana cigarette during the physical altercation that

ensued. The injuries claimed by Plaintiff have subsided. Most, if not all, did so in three days to

two weeks. In addition, Plaintiff stated that he was only “kind of upset” about the incident, the

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charges, and the amount of tasing, and that he has not sought treatment from a psychiatrist,

psychologist, or therapist as a result. Dkt. 116, 9] 51-53. This is not the type of distress such that

“no reasonable person could be expected to endure it.” Adams v. Sussman & Hertzberg, Ltd., 292

Ill. App. 3d 30, 39, 684 N.E.2d 935, 942 (1st Dist. 1997). Plaintiff may be able to show that—

under these circumstances—the force used on him was excessive, and the present motion does not

contest his battery claim. But his ITED claim fails as a matter of law.

Count I] — Assault

Under Illinois law, assault is defined as “conduct which places another in reasonable

apprehension of receiving a battery.” 720 ILCS 5/12-1(a). Assault requires (1) a threatening

gesture, or otherwise innocent gesture made threatening by accompanying words, and (2) creates

a reasonable apprehension of an imminent battery. Kijonka v. Seitzinger, 363 F.3d 645, 647 (7th

Cir. 2004).

While Defendants do not contest Plaintiff's battery claim in this motion, they move for

summary judgment on Count II, arguing that Plaintiff never actually alleges that he was in fear of

receiving a battery. Rather, say Defendants, Plaintiff alleges only that he was tackled from behind

and that he balled up on the ground without a chance to see who was attacking him and without

anticipating being tased. Plaintiff counters that his headlights were in fact on, the Officers exited

their vehicle and pointed a gun at him in a crime-ridden neighborhood, and they never identified

themselves as police officers.

Taking the facts in the light most beneficial to Plaintiff, the Court denies the motion with

regard to Count II, and Plaintiff's assault claim may proceed.

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Conclusion

For the reasons stated, the Court grants Defendants’ motion in part and denies in part.

Summary judgment is granted in favor of Defendants as to Count V. The Court also grants the

motion in favor of Defendants as to Plaintiff's Count I claim of unlawful pretrial detention based

on fabricated evidence and lack of probable cause. The Court denies the summary judgment

motion as to Plaintiff's claim of excessive force (Count I) and assault (Count II).

IT IS SO ORDERED.

ENTER:

CHARLES RONALD woh

United States District Court

DATE: October 16, 2019

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