Gonzalez v. Marquez

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHRISTIAN A. GONZALEZ,

)

Plaintiff, ) No. 23-cv-15743

)

v. ) Judge Jeffrey I. Cummings

)

JOSE MARQUEZ, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Christian Gonzalez brings this action pursuant to 42 U.S.C. §1983,

alleging that his Fourteenth Amendment rights were violated when defendant Cook County

Sheriff’s Officers Edgar Lopez (“Sgt. Lopez”), Michael Borrero (“Officer Borrero”), Zachary

Finn (“Officer Finn”), and Jose Marquez (“Officer Marquez”) (collectively, the “Officers” or

“defendants”) used excessive force and/or failed to intervene during an incident at the Cook

County Jail on August 14, 2023. Defendants have collectively moved for summary judgment,

(Dckt. #37), arguing that: (1) no reasonable jury could conclude the Officers used excessive

force and/or failed to intervene during the incident; and (2) they are entitled to qualified

immunity. Plaintiff failed to respond to defendants’ motion in accordance with the briefing

schedule set by the Court. For the reasons set forth below, the Court grants defendants’ motion

for summary judgment, (Dckt. #37).

I. LEGAL STANDARD

Summary judgment is appropriate when the moving party shows “that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “A genuine dispute is present

if a reasonable jury could return a verdict for the nonmoving party, and a fact is material if it

might bear on the outcome of the case.” Wayland v. OSF Healthcare Sys., 94 F.4th 654, 657

(7th Cir. 2024); FKFJ, Inc. v. Village of Worth, 11 F.4th 574, 584 (7th Cir. 2021) (the existence

of a factual dispute between the parties will not preclude summary judgment unless it is a

genuine dispute as to a material fact).

When the moving party has met that burden, the non-moving party cannot rely on mere

conclusions and allegations to concoct factual issues. Balderston v. Fairbanks Morse Engine

Div. of Coltec Indus., 328 F.3d 309, 320 (7th Cir. 2003). Instead, it must “marshal and present

the court with the evidence [it] contends will prove [its] case.” Goodman v. Nat. Sec. Agency,

Inc., 621 F.3d 651, 654 (7th Cir. 2010); Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th

Cir. 2009). Thus, a mere “scintilla of evidence” supporting the non-movant’s position does not

suffice; there must be evidence on which the jury could reasonably find for the non-moving

party. Anderson, 477 U.S. at 248. Of course, “[i]t is not the duty of the court to scour the record

in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party

bears the responsibility of identifying the evidence upon which he relies.” Harney v. Speedway

SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008).

In determining whether a genuine issue of material fact exists, all facts and reasonable

inferences must be drawn in the light most favorable to the non-moving party. King v. Hendricks

Cnty. Commissioners, 954 F.3d 981, 984 (7th Cir. 2020). Yet, the nonmovant “is not entitled to

the benefit of inferences that are supported only by speculation or conjecture.” Boss v. Castro,

816 F.3d 910, 916 (7th Cir. 2016). Ultimately, summary judgment is granted only if “no

reasonable trier of fact could find in favor of the non-moving party.” Hoppe v. Lewis Univ., 692

F.3d 833, 838 (7th Cir. 2012) (cleaned up).

II. FACTUAL RECORD

A. Requirements of Northern District of Illinois Local Rule 56.1

Local Rule 56.1 governs the procedures for filing and responding to motions for

summary judgment in this court. The rule is intended “to aid the district court, ‘which does not

have the advantage of the parties’ familiarity with the record and often cannot afford to spend the

time combing the record to locate the relevant information,’ in determining whether a trial is

necessary.” Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (cleaned up). Local Rule

56.1(a) requires the moving party to provide a statement of material facts that complies with

Local Rule 56.1(d). LR 56.1(a)(2). In turn, Local Rule 56.1(d) requires that “[e]ach asserted

fact must be supported by citation to the specific evidentiary material, including the specific page

number, that supports it. The court may disregard any asserted fact that is not supported with

such a citation.” LR 56.1(d)(2).

The opposing party must then respond to the movant’s proposed statements of fact.

Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005); LR 56.1(e). If a party

fails to respond to the Rule 56.1 statement of uncontested facts, those facts are deemed admitted

to the extent they are supported by the evidence in the record. Keeton v. Morningstar, Inc., 667

F.3d 877, 880 (7th Cir. 2012); Parra v. Neal, 614 F.3d 635, 636 (7th Cir. 2010); L.R. 56.1(e)(3).

Here, because plaintiff is proceeding pro se, defendants served him with a “Notice to Pro

Se Litigant Opposing Motion for Summary Judgment” as required by Local Rule 56.2. (Dckt.

#36). This notice explains the meaning of a motion for summary judgment, the requirements for

responding to both the movant’s motion and its Rule 56.1 statement of material facts, and—

perhaps most significantly—the consequences of failing to properly respond to a summary

judgment motion and statement of material facts under Federal Rule of Civil Procedure 56 and

Local Rule 56.1.

Despite his receipt of the Local Rule 56.2 Notice (and the warnings contained therein),

plaintiff failed to respond to defendants’ motion for summary judgment at all, let alone submit a

response to defendants’ statement of material facts. As such, the Court deems defendants’

statement of material facts admitted to the extent that the assertions of fact therein are supported

by the evidence in the record. Keeton, 667 F.3d at 880. The Court does so even in consideration

of plaintiff’s pro se status given that defendants provided plaintiff with the requisite Local Rule

56.2 notice to unrepresented individuals. See Coleman v. Goodwill Indus. of Se. Wisconsin, Inc.,

423 Fed.Appx. 642, 643 (7th Cir. 2011). Indeed, it is well settled that “status as a pro se litigant

does not excuse [a party] from complying with Local Rule 56.1.” Brown v. Erickson, No. 16 C

50337, 2019 WL 1532887, at *1 (N.D.Ill. Apr. 9, 2019); Coleman, 423 Fed.Appx. at 643

(“Though courts are solicitous of pro se litigants, they may nonetheless require strict compliance

with local rules.”).

B. Relevant Facts

At all relevant times, plaintiff was a pretrial detainee housed in the Cook County Jail,

initially on charges of first-degree murder. (Dckt. #39, Defendants’ Statement of Material Facts

(“DSOF”) ¶¶1-2). Since arriving at the Jail, plaintiff’s behavior has caused him to receive

additional charges of: (1) first-degree murder deriving from an incident at the Jail; (2) attempted

first-degree murder deriving from an incident at the Jail; (3) and four charges of battery to staff

deriving from incidents at the Jail. (Id. ¶3). At all relevant times, the Officers were employees

of the Cook County Sheriff’s Office working at the Jail. (Id. ¶¶4-7).

On August 14, 2023, plaintiff was housed in Division 9, Tier 1F, a segregation unit,

following an incident the day before during which plaintiff assaulted a correctional officer. (Id.

¶¶19-20). Plaintiff was upset he was in the segregation unit because he did not have his personal

property. (Id. ¶¶21-22). At 4:02 p.m. on August 14, 2023, plaintiff was involved in an

altercation with officers after he tried to escape his cell and run down the stairs. (Id. ¶24). The

officers involved in the altercation tackled plaintiff to the ground. (Id. ¶25). Although he was

not injured during this altercation, plaintiff was escorted to medical where he was cleared of any

injury from the take down. (Id. ¶29).

Around 4:33 p.m., plaintiff was escorted back to his cell from medical. (Id. ¶30). At

4:34 p.m., the defendant Officers tried to remove plaintiff’s handcuffs in order to secure him

back in his cell. (Id. ¶31). Due to security concerns, the process for removal of handcuffs calls

for the handcuffed detainee to enter his cell, the cell door to be closed, and then for the detainee

to place his hands through the open foodport (or “chuckhole”) so that the handcuffs can be

removed. (Id. ¶32). Once the handcuffs are removed from the detainee, the foodport window is

closed and locked. (Id. ¶35). This is the preferred method because it ensures that the detainee

remains secured in handcuffs until he is safely in his cell. (Id. ¶33).

When the Officers attempted to use the preferred method for handcuff removal on

plaintiff, he actively resisted the Officers’ attempt to secure him in his cell, including first

refusing to put his hands in the foodport for uncuffing and later ignoring the Officers’ verbal

commands to move his hands back in, thereby hindering the Officers’ ability to close the

foodport. (Id. ¶¶34-42). Eventually, the Officers secured the foodport. (Id. ¶42). For his part,

plaintiff maintains that the Officers closed and locked the foodport on his hand, causing injury to

his right third finger, although he testified that “[the Officers] didn’t know [his] finger was there

at first.” (Dckt. #39-2 at 8).

After the foodport incident, plaintiff was transported back to medical. (DSOF ¶45).

While being transported, he refused napkins when asked if he needed anything for his bleeding

hand. (Id. ¶¶46-47). Plaintiff was treated in the Jail’s urgent care on the same day by Dr. Yan

Yu Do, who diagnosed a nail avulsion of his right third finger. (Id. ¶48). At that time, plaintiff

refused removal of his nail and refused dressing of his finger. (Id. ¶49). At 2:00 a.m. and 3:00

a.m. on August 15, 2023, Dr. Do offered to remove plaintiff’s nail two additional times, but

plaintiff again refused. (Id. ¶50). Plaintiff returned on the evening of August 15, 2023, at which

time Dr. Do removed plaintiff’s nail with no complications. (Id. ¶51). A few months later, in

January 2024, plaintiff demanded and received an x-ray of his right third finger. (Id. ¶¶52-53).

The x-ray showed no evidence of fracture, dislocation, swelling or other abnormality, and

plaintiff’s nail eventually grew back. (Id. ¶¶54-55).

Both the Office of Professional Review (“OPR”) and the Use of Force Supervisory

Review investigated plaintiff’s allegations of excessive force during the foodport incident. (Id.

¶¶59, 62). OPR determined that the evidence did not show any staff misconduct or policy

violations. (Id. ¶60). The Use of Force Review determined that the force used during the

incident was in accordance with the Jail’s use of force policies. (Id. ¶63).

Again, in this action, plaintiff alleges that Officers Borrero and Marquez violated his

Fourteenth Amendment rights when they used excessive force by closing the foodport on his

finger and that Sgt. Lopez and Officer Finn failed to intervene. Defendants now seek summary

judgment in their favor.

III. ANALYSIS

As the Seventh Circuit has emphasized, a plaintiff’s failure to comply with Local Rule

56.1 “does not, of course, automatically result in judgment for the movant.” Keeton, 667 F.3d at

884. Instead, “[the movant] must still demonstrate that it is entitled to judgment as a matter of

law.” Id. In support of their motion, defendants argue that they are entitled to summary

judgment because: (1) no reasonable jury could conclude the Officers used excessive force

and/or failed to intervene during the incident; and (2) they are entitled to qualified immunity.

The Court begins and ends with qualified immunity and determines that defendants are entitled

to summary judgment.

A. Defendants are entitled to qualified immunity.

Government officials like the Cook County correctional officers here are protected by

qualified immunity “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223 (2009) (cleaned up). “There are two inquiries in determining whether qualified

immunity applies: [1] whether the facts, taken in the light most favorable to the party asserting

the injury show that the officer’s conduct violated a constitutional right; and [2] whether the right

at issue was ‘clearly established’ at the time of the officer’s alleged misconduct.” Tousis v.

Billiot, 84 F.4th 692, 697 (7th Cir. 2023) (cleaned up). Although this is ordinarily a two-step

process, where the undisputed facts taken in the light most favorable to the plaintiff fail to

establish a cognizable violation of constitutional rights, defendants are entitled to qualified

immunity. See, e.g., Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 472 (7th Cir. 1997).

Therefore, the Court begins with an analysis of whether there is any merit to plaintiff’s

underlying constitutional claims. Once more, plaintiff asserts that he was subjected to excessive

force by Officers Borrero and Marquez (in which Sgt. Lopez and Officer Finn failed to

intervene) when they closed plaintiff’s finger in the foodport on August 14, 2023. The Due

Process Clause of the Fourteenth Amendment governs claims of excessive force by a pretrial

detainee such as plaintiff. See Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015). Under the

Fourteenth Amendment, an officer’s use of force is excessive when it amounts to punishment.

Id. at 397. This can occur when force is used with “an ‘expressed intent to punish,”’ is “not

‘rationally related to a legitimate governmental purpose,’” or “‘appear[s] excessive in relation to

that purpose’” when viewed objectively. Id. at 398, quoting Bell v. Wolfish, 441 U.S. 520, 538,

561 (1979).

To prevail on an excessive force claim, “a pretrial detainee must show only that the force

purposely or knowingly used against him was objectively unreasonable.” Kingsley, 576 U.S. at

396–97. Whether the force was objectively unreasonable “turns on the facts and circumstances

of each particular case,” and depends on factors such as (1) the relationship between the need for

the use of force and the amount of force used; (2) the extent of the plaintiff’s injury; (3) any

effort made by the officer to temper or to limit the amount of force used; (4) the severity of the

security problem at issue; (5) the threat reasonably perceived by the officer; (6) and whether the

plaintiff was actively resisting. Id. at 397 (cleaned up). These factors should be considered from

the perspective of what a reasonable officer on the scene would have understood, not through the

use of hindsight. Id. The Seventh Circuit has emphasized that “[w]hether a particular use of

force was objectively reasonable ‘is a legal determination rather than a pure question of fact for

the jury to decide.’” Harris v. Ealey, No. 19-CV-2210, 2021 WL 5823513, at *5 (N.D.Ill. Dec.

8, 2021), quoting Dockery v. Blackburn, 911 F.3d 458, 464 (7th Cir. 2018).

Here, even viewing the evidence—including the video evidence of the incident—in the

light most favorable to plaintiff, the Court concludes, as a matter of law, that Officers Borrero

and Marquez used objectively reasonable force against plaintiff when they secured the foodport.

As the undisputed record establishes, plaintiff—who has a history of physical altercations with

officers and had just attempted to escape his cell—intentionally kept his hands in the foodport

because he was angry about his missing property. Before closing the foodport, the Officers gave

verbal commands directing plaintiff to remove his hands from the foodport, which he ignored.

Only then did the Officers close the foodport to secure plaintiff properly in his cell. Moreover,

while sympathetic to plaintiff’s nail avulsion and any resulting pain, plaintiff initially refused the

recommended medical treatment to his injury, his nail grew back, and a subsequent x-ray showed

no abnormalities.

These facts, taken together, tip the Kingsley factors in defendants’ favor and support a

finding that Officers Borrero and Marquez’s use of force was objectively reasonable and thus did

not violate plaintiff’s constitutional rights. See Outlaw v. Newkirk, 259 F.3d 833, 839-40 (7th

Cir. 2001) (no excessive force where the closing of cuffport door in response to prisoner’s threat

caused pain, swelling, and bruising of prisoner’s hand); White v. Matti, 58 Fed.Appx. 636, 638

(7th Cir. 2002) (no excessive force where plaintiff “was reaching through the trap with his right

arm in violation of prison rules” and suffered lacerations, bruises, cuts, and swelling as a result”);

see also Silas v. Anderson, No. 22-CV-1051-JBM, 2023 WL 2916554, at *3 (C.D.Ill. Apr. 12,

2023) (no excessive force where plaintiff ignored verbal commands to remove his arm from the

chuckhole and a subsequent x-ray showed no abnormalities); see also Earl v. Dretke, 177

Fed.Appx. 440, 441 (5th Cir. 2006) (concluding that losing a fingernail and bleeding were no

more than de minimis injuries). Moreover, because Officers Borrero and Marquez did not use

excessive force against plaintiff, any claim for failure to intervene against Sgt. Lopez and Officer

Finn also fails. Abdullahi v. City of Madison, 423 F.3d 763, 767–68 (7th Cir. 2005) (“[B]y

definition, if there was no excessive force then there can be no failure to intervene.”). Where, as

here, the undisputed facts taken in the light most favorable to the plaintiff fail to establish a

cognizable violation of constitutional rights, defendants are entitled to qualified immunity.

Finally, even if Officers Borrero and Marquez did use excessive force in violation of

plaintiffs constitutional rights, plaintiff would be hard-pressed to show that it was “clearly

established” on August 14, 2023 that that the type of force the Officers used, 7.e., closing the

foodport after plaintiff ignored commands to remove his arms, was unlawful under the

circumstances in light of the above precedent. See, e.g., Outlaw, 259 F.3d at 839-40.

For all of these reasons, defendants are entitled to qualified immunity.

CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment, (Dckt. #37), is

granted. Judgment will be entered in favor of defendants and against plaintiff.

Date: September 12, 2025

Jeffrey I. Cummings

United States District Court Judge

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