# Yarem v. Duda

> District Court, N.D. Illinois · July 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10645424

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** July 22, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RAYMOND YAREM,

Plaintiff,
No. 22 CV 3752
v.
Judge Manish S. Shah
OFFICER DAN DUDA and VILLAGE OF
EAST DUNDEE,

Defendants.

MEMORANDUM OPINION AND ORDER

Defendant Officer Dan Duda arrested plaintiff Raymond Yarem, a resident of
East Dundee, Illinois, for violating an order of protection. Yarem filed this suit
alleging that Duda wrongfully arrested him and used excessive force when doing so,
in violation of Yarem’s Fourth Amendment rights. Defendants Duda and the Village
of East Dundee filed a motion for summary judgment, [46]; Yarem failed to respond
to the motion with any legal argument or properly presented evidence. See [58]. After
reviewing the record in the light most favorable to Yarem, summary judgment is
appropriate for defendants because there are no issues of material fact about whether
Duda had probable cause to arrest Yarem or used excessive force in doing so.
Furthermore, there are no issues of material about whether Duda is entitled to
qualified immunity on the two constitutional claims. Yarem has not made a showing
that Duda acted in a manner that was willful and wanton, so Duda is protected by
the Illinois Tort Immunity Act against state law tort claims. Summary judgment is
entered for defendants.
I. Legal Standard
“Summary judgment is appropriate when, taking all reasonable inferences in
favor of the nonmoving party, there is no genuine issue of material fact, and the

movant is entitled to judgment as a matter of law.” Moorer v. City of Chicago, 92 F.4th
715, 720 (7th Cir. 2024); Fed. R. Civ. P. 56(a). “Material facts are those that might
affect the outcome of the suit and a factual dispute is genuine if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Biggs v.
Chicago Bd. of Educ., 82 F.4th 554, 559 (7th Cir. 2023) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). Summary judgment is also appropriate when

“a party fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
II. Facts
East Dundee Police Officer Dan Duda observed Raymond Yarem walking north
on a bike path directly in line with 210 N. River Street in East Dundee, Illinois, at
around 7:00 a.m. [48] ¶¶ 8, 9.1 Duda knew that Yarem was the respondent on an

1 Bracketed numbers refer to entries on the district court docket. Referenced paged numbers
are taken from the CM/ECF header placed at the top of filings. In accordance with Local Rule
56.1, defendants submitted a statement of facts and attached the evidence upon which those
facts relied. See [48], [48-1]–[48-5], [52], [53]. Plaintiff filed a one-page response to defendants’
motion and Local Rule 56.1 statement of facts, [58], which responds to several of defendants’
statements of facts and asserts some new facts. I compared the document to plaintiff’s
deposition testimony and accept only those facts that are supported by plaintiff’s testimony.
N.D. Ill. Local R. 56.1(d)(2) (all asserted facts must be supported by citation to specific
evidentiary material that supports it). Because plaintiff did not properly respond to
defendants’ Local Rule 56.1 statement of facts, those facts are deemed admitted. Cracco v.
Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); N.D. Ill. Local R. 56.1(e)(3).
order of protection that prohibited Duda from being within 500 feet of 210 N. River
Street and was familiar with Yarem due to prior encounters. [48] ¶¶ 10, 13.2 Duda
saw Yarem on the bike trail immediately west of the protected address. [48] ¶¶ 9, 11.

Duda was driving south in his car; he turned a corner, put his car into park, exited
the car, and began calling Yarem’s name. [48] ¶ 12. Yarem started walking faster
away from Duda. [48] ¶ 12.
Duda yelled again at Yarem to stop and told him he was in violation of an order
of protection; Yarem continued walking away and Duda yelled louder for Yarem to
stop and that Yarem was under arrest. [48] ¶ 12. Duda ran up to Yarem, grabbed his

arm, and ordered Yarem to stop. [48] ¶ 12. Yarem testified that when he saw Duda’s
squad car he “kept walking” and then one of the officers, “screamed out. He goes, you
are arrested. I go, for what. And they both came out, and that’s when he injured me[.]”
[48-5] at 26:12–21.3
Duda requested assistance over his radio and East Dundee Police Officer
Kasiba arrived at the scene. [48] ¶ 14. Duda walked Yarem to a parked vehicle and
placed Yarem against the vehicle to prevent Yarem from walking away. [48] ¶ 15.

The video of the arrest confirms that Duda walked Yarem against a parked car. [53]

2 Yarem states that he had been told by the judge in the order of protection case that he could
walk through town when the offices at the protected address were closed. See [58] at 1; [48-
5] at 27:4–14. In his complaint, Yarem states that he was told he only had to stay 50 feet
away from the protected address and that Duda arrested him for being within 500 feet of the
address. [20] ¶ 10. Yarem therefore admits that he was somewhere between 50 and 500 feet
of the protected address at the time that Duda saw him.
3 Yarem asserts in his response that he did not hear Duda initially yelling him because he
was walking extremely fast, see [58] at 1, but that statement is not supported by Yarem’s
deposition testimony and he provides no other admissible evidence to support the assertion.
at 0:00–0:03.4 Duda put a pair of handcuffs on Yarem’s left wrist. [48] ¶ 16. Yarem
said, “be easy, that’s my same wrist you hurt last time.” [53] at 0:03–0:11.5 Officer
Kasiba, on Yarem’s right side, asked Yarem to set his phone down and Yarem

complied. [53] at 0:11–15. Yarem then shouted, “Ow”, “take it easy” and “I’m in pain,”
walked around, and addressed bystanders who were watching the encounter. [53] at
0:15–28.
Duda asked Kasiba for a second pair of handcuffs, put the second set of
handcuffs on Yarem’s right wrist, and interlocked them together. [48] ¶ 16. At some
point, one of the officers shouted, “Give me your hand” and “Knock it off.” [53] at 0:28–

0:35. Duda stated that he took the two-handcuff approach because Yarem was tensing
up in order to not be handcuffed. [48] ¶ 16. Duda checked both of Yarem’s wrists and
determined that he could get two fingers between Yarem’s wrist and the cuffs; he
then proceeded to double lock the handcuffs as per protocol. [48] ¶ 16. Yarem

4 Defendants submit a video of the encounter between Yarem, Duda, and Kasiba as Exhibit
A to their Local Rule 56.1 statement of facts. See [48-1], [52], [53]. Properly authenticated
video and tapes can be considered at summary judgment; “to authenticate an item, the
proponent must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001) (quoting
Fed. R. Evid. 901(a)). The exhibit submitted to the court is a video of a computer screen
playing a video. See [53]. Duda and Kasiba both attest that the “arrest and handcuffing of
Yarem … is accurately depicted in the video of this incident, which I have reviewed and
understand to be Exhibit A to Defendants’ Motion for Summary Judgment.” [48-2] ¶ 5; [48-
3] ¶ 3. Yarem acknowledged in his deposition that a video of the arrest existed, but nothing
in his deposition testimony establishes that the video he watched then is the same as Exhibit
A. See [48-5] at 28:9–29:9; [48] ¶ 20. However, Yarem does not dispute in his filing that
Exhibit A is a video of his arrest; his only comment is that the video does not accurately depict
the amount of force used because Duda’s body blocks the view. [58]. I review the video taking
all reasonable inferences in favor of Yarem, the non-moving party. See Moorer, 92 F.4th at
720.
5 Yarem says that Duda hurt his wrist in an earlier arrest made in November 2019 for
emptying a birdfeeder on communal property. [58] at 1; [48-5] at 16:24–17:02, 35:2–35:12.
continued to shout “ow” and “easy,” made comments about whether he is resisting
arrest, and referenced an earlier encounter with Duda while the officers handcuffed
him. [53] at 0:35–1:05.

Duda and Kasiba escorted Yarem back to Duda’s squad car, which was about
100–150 feet away; Duda stated that Yarem spoke to him and Kasiba in a rude and
insulting manner the entire time. [48] ¶ 17. Yarem was put in the back seat of Duda’s
car and driven to the station; Duda announced via radio that he had a subject in
custody and was bringing him to the station. [48] ¶ 18.
At the station, Yarem got out of the car and walked into the booking room. [48]

¶ 23. East Dundee Police Officer Andrews was at the station; as she held the door
open to the booking room, she heard Duda tell Yarem that he was going to remove
the handcuffs and Yarem responded that the cuffs were on too tight. [48] ¶ 24.
Andrews put her hands around Yarem’s right arm and told him that she could fit two
fingers between his wrist and the handcuffs. [48] ¶ 25. Andrews observed Yarem’s
wrist to be turned in a manner that pressed his wrist against the handcuffs; Andrews
tried to help Yarem turn his wrist to be more comfortable, but he continued to keep

it pressed up against the handcuff. [48] ¶ 26.
Once Yarem was placed into a holding cell, he picked up the phone in the cell
and called the dispatch center to report that his wrist was injured and that he needed
an ambulance. [48] ¶¶ 28–29. East Dundee firefighters arrived and transported
Yarem to Sherman Hospital. [48] ¶ 30. Yarem acknowledged that his wrist was not
broken as a result of the arrest. [48] ¶ 35. At his deposition, Yarem testified that he’d
had issues with his right wrist dating back to November 2019. [48] ¶ 35. Yarem had
surgery for “carpal tunnel syndrome” on his right wrist several months after the July
2020 arrest. [48] ¶ 35; [48-5] at 34:13–35:16. Yarem had been receiving chiropractic

treatments to his right wrist prior to 2020. [48] ¶ 35.
Yarem was later convicted of violating the order of protection, and Officers
Duda, Kasiba, and Andrews were acting in their official capacities as police officers.
[48] ¶¶ 36–37.
III. Analysis
Yarem’s amended complaint, [20], is the operative complaint in this case and

it can be read to bring three claims—the first is a constitutional claim for false arrest,
the second is a constitutional claim for excessive force, and the third is a general claim
for all state law protections that may be implicated by his factual allegations, such as
false arrest, assault, battery, false imprisonment, malicious prosecution, etc. [20]
¶¶ 6, 10, 14.
A. Fourth Amendment Violation – Wrongful or False Arrest
“To state a claim under the Fourth Amendment, a plaintiff must show that a

search or seizure occurred and that the search or seizure was unreasonable.” Hess v.
Garcia, 72 F.4th 753, 761 (7th Cir. 2023). A seizure is reasonable when the officer has
probable cause that the individual is engaging in criminal activity. Ewell v. Toney,
853 F.3d 911, 919 (7th Cir. 2017) (“In other words, if an officer has probable cause to
arrest a suspect, the arrest was not false.”). “Probable cause” is determined by
considering whether “the facts and circumstances within the officer’s knowledge are
sufficient to warrant a prudent person, or one of reasonable caution, in believing that
the suspect has committed, is committing, or is about to commit an offense.” Id.
(cleaned up). Probable cause is an absolute defense to a false arrest claim. Id.

Officer Duda had probable cause to arrest Yarem for violating the order of
protection because he observed Yarem less than 500 feet from a protected location.
Jump v. Village of Shorewood, 42 F.4th 782, 789 (7th Cir. 2022) (Probable cause
“exists at arrest when a reasonable officer with all the knowledge the on-scene officers
would have believed that the suspect committed an offense defined by state law.”).
Violating an order of protection is a criminal offense. See 720 ILCS 5/12-3.4(a). Duda

knew that Yarem had an order of protection entered against him and that the order
of protection prevented Yarem from being within 500 feet of 210 N. River St. [48]
¶ 10. Duda observed Yarem across the street from protected address and Yarem does
not deny he was within 500 feet of the protected address. See [48] ¶ 9; [20] ¶ 10.
Qualified immunity shields officers from liability if “a reasonable officer in the
same circumstances and possessing the same knowledge as the officer in question
could have reasonably believed that probable cause existed in light of well-established

law.” Mwangangi v. Nielsen, 48 F.4th 816, 825 (7th Cir. 2022) (describing “arguable
probable cause”). Duda certainly had “arguable probable cause” to believe that Yarem
was violating the terms of the order of protection because he knew that Yarem was
not supposed to be near the protected address and based on the facts in the record, it
was reasonable for Duda to believe Yarem was within 500 feet of the protected
address. See Mwangangi, 48 F.4th at 830–31 (qualified immunity determined by
whether officer’s subjective belief was objectively reasonable).
Summary judgment is appropriate for defendants on the Fourth Amendment

wrongful arrest claim.
B. Fourth Amendment Violation – Excessive Force
Even when a seizure is otherwise reasonable under the Fourth Amendment, a
law enforcement officer may not use excessive force in seizing an individual. Abbott
v. Sangamon County, Ill., 705 F.3d 706, 724 (7th Cir. 2013). The law recognizes that
along with the right to make an arrest comes “the right to use some degree of physical

coercion.” Graham v. Connor, 490 U.S. 386, 396 (1989); Rabin v. Flynn, 725 F.3d 628,
636 (7th Cir. 2013). But the physical force must not be more than was “reasonably
necessary to effectuate the arrest” based on the “totality of the circumstances at the
time of the arrest.” Gupta v. Melloh, 19 F.4th 990, 996 (7th Cir. 2021). Whether an
officer used excessive force is an objective inquiry based on 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.”
Gupta, 19 F.4th at 996 (quoting Graham, 490 U.S. at 396).
When assessing an excessive-force claim, it is “useful to pin down the quantum
of force [used], which represents the nature and significance of the governmental
intrusion on their Fourth Amendment interests.” Abbott, 705 F.3d at 725. A law
enforcement “officer may not knowingly use handcuffs in a way that will inflict
unnecessary pain or injury on an individual who presents little or no risk of flight or
injury.” Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009). But handcuffing an
arrestee is a routine action and where there is no “indication that an arrest was

effected in an unusual or improper manner,” an excessive force claim “has no possible
merit.” Gibson v. Picou, 101 Fed. App’x 154, 157 (7th Cir. 2004) (quoting Braun v.
Baldwin, 346 F.3d 761, 763 (7th Cir. 2003)). Nothing suggests that Duda and Kasiba’s
arrest of Yarem was effectuated in an unusual manner; the evidence in the record is
that Duda followed protocol for handcuffing an arrestee. Duda used two handcuffs
linked together, which provides more distance between the arms, double-locked the

handcuffs so they would not tighten over time, and he and Andrews confirmed that
two fingers could be placed between the cuffs and Yarem’s wrist. [48] ¶¶ 16, 25.
Yarem cried out as the officers were handcuffing him and reminded the officers
that his wrist had been previously injured, which is a factor in determining whether
the officers behaved reasonably. See Rabin, 725 F.3d at 636 (when arrestee told officer
about pre-existing condition that could have been exacerbated by tight handcuffs, it
was unreasonable to keep the handcuffs so tight). But Yarem’s complaints did not tell

the officers what it was they were doing that was hurting him—he yelled “easy” and
“that’s my injured wrist” while the officers were handling both wrists, see [53] at 0:03–
0:35, and did not indicate whether the position of his arm or the placement of his
wrists caused him pain. See Stainback, 569 F.3d at 773 (“[G]eneralized complaints,
without elaboration of preexisting injury or other infirmity, would not have placed a
reasonable officer on notice that [plaintiff] would be injured by these actions.”);
Howell v. Smith, 853 F.3d 892, 899–900 (7th Cir. 2017) (officer had “nonspecific
information” about injury to defendant so could not properly evaluate the risk of
injury as compared to the need to detain the individual). No jury reviewing the video

could find that Yarem was in so much pain that he was incapable of informing the
officers of what it was they were doing that was hurting him.
Furthermore, because a person has the right to be free from an officer’s
knowing use of handcuffs in a way that causes unnecessary pain or injury, whether
an injury actually occurred can be relevant to determining whether the force used
was excessive. See Tibbs v. City of Chicago, 469 F.3d 661, 666 (7th Cir. 2006) (relying

in part on lack of injury to find that force used was not excessive). Yarem has not put
any evidence into the record about his injury other than his deposition testimony that
he had to have surgery on his right wrist several months after his arrest. [48] ¶ 35.
There is no evidence in the record that the surgery to Yarem’s wrist was a direct
result of the force used against him during the July 2020 arrest.
Considering the other Graham factors, the crime for which Yarem was being
arrested, violation of an order of protection, can be quite serious, but there is no

evidence to suggest that Yarem was posing a threat to others or to the officers. On
the other hand, the quantum of force exercised against Yarem was minimal and there
is no evidence in the record to suggest that the officers intended to cause Yarem
harm—indeed Duda made sure to check that the handcuffs were not on too tight. A
jury reviewing the evidence in the record could not reasonably find that Duda used
more force than was reasonably necessary to restrain Yarem; there was no violation
of Yarem’s constitutional rights.
Even were a jury to find that Duda used more force than was reasonably

necessary to restrain Yarem, Duda would be protected by qualified immunity.
Officers are entitled to qualified immunity against excessive force claims when their
conduct does not violate a clearly established constitutional right. Tousis v. Billiot,
84 F.4th 692, 697 (7th Cir. 2023). “Clearly established means that, at the time of the
officer’s conduct, the law was sufficiently clear that every reasonable official would
understand that what he is doing is unlawful.” Id. at 698 (cleaned up). Defendants

raised the defense of qualified immunity, so it is incumbent on Yarem to point to a
clearly established right that Duda violated. See Fosnight v. Jones, 41 F.4th 916, 924
(7th Cir. 2022). Yarem has not done so here.
There is a clearly established right to be free from handcuffing performed in a
way to cause unnecessary pain or injury, and an officer must take into account known
preexisting medical problems when acting to subdue an arrestee. See Stainback, 569
F.3d at 772. But there is no evidence that Duda or Kasiba acted to cause Yarem pain.

Duda took Yarem’s complaints into account by checking to make sure that he could
fit two fingers between Yarem’s wrist and the cuffs. There is no authority to support
the proposition that Duda’s behavior was in violation of a clearly established
constitutional right and he is entitled to qualified immunity.
C. State Law Claims
Defendants argue that summary judgment is appropriate on Yarem’s state law
claims because Yarem does not point to any specific facts to support his claims and
local law enforcement officers are protected from tort liability unless their behavior
“constitutes willful and wanton conduct.” See [47] at 8-9; 745 ILCS 10/2-202.¢ “Willful
and wanton” is defined by the statute as “a course of action which shows an actual or
deliberate intention to cause harm or which, if not intentional, shows an utter
indifference to or conscious disregard for the safety of others or their property.” 745
ILCS 10/1-210. There is no evidence in the record on which a reasonable jury could
rely to find that Duda, Kasiba, or Andrews acted with a deliberate intention to cause
harm or with utter indifference or conscious disregard for Yarem’s safety. Summary
judgment is thus appropriate for defendants on all state law tort claims.
IV. Conclusion
Defendants’ motion for summary judgment, [46], is granted. Enter judgment
in favor of defendants and terminate civil case.

ENTER:
fis SSA
Manish 8. Shah
United States District Judge
Date: July 22, 2024

8 T choose to continue to exercise supplemental jurisdiction over Yarem’s state law claims
because the claims are based on the same underlying facts, the parties have already been
given the opportunity to complete discovery and summary judgment briefing on the claims,
and it is clear that the claims are barred by the Illinois Tort Immunity Act. See Doe v. Village
of Arlington Heights, 782 F.3d 911, 920-21 (7th Cir. 2015).
12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10645424. Public record. Not legal advice.