Moriconi v. Williamson et al

Filing 97

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Defendants' Motion for Summary Judgment 85 is ALLOWED in part and DENIED in part; Plaintiff's Response to Defendants' Motion for Summary Judgment and Plaintiff's Motion for Summary Judgment 91 is STRICKEN; Defendants' Motion to Strike Plaintiff's Motion for Summary Judgment 90 and Defendants' Motion to Strike Plaintiff's Affidavit 92 are ALLOWED. See written order. (LB, ilcd)

E-FILED

Tuesday, 04 November, 2014 04:40:44 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

PAUL F. MORICONI,
Plaintiff,
v.
TRAVIS KOESTER, et al.,
Defendants,

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No. 11-cv-3022

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendants’ Motion for
Summary Judgment (d/e 85) (Motion 85); Plaintiff’s Response to
Defendants’ Motion for Summary Judgment and Plaintiff’s Motion for
Summary Judgment (d/e 91) (Motion 91); Defendants’ Motion to Strike
Plaintiff’s Motion for Summary Judgment (d/e 90) (Motion 90); and
Defendants’ Motion to Strike Plaintiff’s Affidavit (d/e 92) (Motion 92). The
parties consented to have this matter heard before this Court. Consent to
the Exercise of Jurisdiction by a United States Magistrate Judge and
Reference Order entered April 11, 2014 (d/e 74).

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Plaintiff Paul F. Moriconi was required to respond to Motions 90 and
92 within fourteen days of the date that those Motions were served on him.
He has not done so. Pursuant to Local Rule 7.1(B)(2), Plaintiff’s failure to
respond creates the presumption that there is no opposition to the motions.
Motions 90 and 92 are ALLOWED as unopposed. The Court strikes Motion
91 and the affidavit of Plaintiff Paul F. Moriconi attached to Motion 91 and
to Moriconi’s Response to Defendants’ Motion for Summary Judgment and
Plaintiff’s Motion for Summary Judgment (d/e 89) (Moriconi Response).
The only remaining Motion is Motion 85, Defendants’ Motion for
Summary Judgment. For the reasons set forth below, Motion 85 is
ALLOWED in part and DENIED in part.
STATEMENT OF FACTS
For purposes of Motion 85, the Court must view the evidence in the
light most favorable to Moriconi. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). The Court, therefore, will state the facts based on
Moriconi’s version of the events. The Court relies on Moriconi’s deposition
testimony and does not consider his stricken affidavit. The Court
recognizes that the Defendants dispute Moriconi’s version of the events.
Such disputes only establish that issues of fact exist and do not entitle the
Defendants to summary judgment.
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The relevant events occurred during the late evening of July 28 and
early morning of July 29, 2009. At that time, Moriconi was at a bar in
Springfield, Illinois, called Bootleggers Tavern (Bar). Moriconi was the
owner of the Bar. Late in the evening of July 28, two women started
fighting at the Bar. One woman was injured; Moriconi testified in his
deposition that “somehow she had her head busted open.” Moriconi
Response, attached Moriconi Deposition, at 16. At that point, Moriconi had
someone call the police. The boyfriend of the woman who started the fight
also started a fight. Moriconi wanted the persons responsible to be
arrested. Id. at 17.
The woman who started the fight tried to leave. A part-time employee
at the Bar named Nick Zitach (Zitach) caught the woman who started the
fight in the parking lot. Zitach held her down so that she could not leave.
Id. at 16-17. Defendant Sangamon County, Illinois, Deputy Sheriff Travis
Koester arrived at the scene. Sangamon County, Illinois, Deputy Sheriff
Brad Tweryon was also at the scene. Other officers arrived at the scene
during the incident.
Moriconi walked out of the Bar to the parking lot to talk to the officers.
Moriconi stated that he owned the Bar and he called the police. As soon as
Moriconi walked outside, Koester told Moriconi to stop and said, “I don’t
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care who you are, put your hands over your head.” Id. at 18, 20. Moriconi
testified that he stood still and told Koester that he could not put his hands
over his head because he was crippled. Koester said, “I’m not going to tell
you twice,” and shot Moriconi with a Taser. Id. at 18, 22. 1 Moriconi
testified that he did not yell at the police. Id. at 21. He testified that he did
not remember anything after he told Koester that he was crippled. Moriconi
testified in his deposition, “[N]ext thing I know I got hit in that incident. Next
thing, you know, I got to sit there and just get electrocuted basically.” Id. at
20-21.
Moriconi fell to the ground. Koester shocked Moriconi four more
times with the Taser while Moriconi was on the ground. Id. at 26. Koester
told Moriconi to put his hand behind his back. Moriconi testified that he told
Koester that could not put his hands behind his back because his arm was
paralyzed. Id. at 23. Moriconi testified that he did not struggle with the
officers. Id. at 27. Moriconi was handcuffed and placed in a squad car. He
did not remember who handcuffed him. Id. at 27-28. Koester arrested
Moriconi for obstruction of justice. No evidence has been presented that
Moriconi was ever tried on the charge or that a judge ever made a finding
of probable cause on the charge.
1

Moriconi’s testimony is ambiguous on this point. He said both that he was walking and standing still.
Moriconi Deposition, at 22. The Court views the evidence in the light most favorable to Moriconi.

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Moriconi testified that he may have drunk socially on the evening of
July 28 before the incident. Moriconi testified that he had been at the Bar
since 4:00 p.m., and had consumed two or three alcoholic drinks and some
soda since 4:00 p.m. Id. at 29-30. Moriconi had not taken any pain
medication that evening. Id.
Based on these facts, Moriconi brings claims against Defendant
Koester under 42 U.S.C. §1983 for violations of the Fourth Amendment for
illegal arrest without probable cause and for use of excessive force
(Count I). Moriconi brings a claim against Sangamon County, Illinois
(County), for indemnification of Koester under state law (Count III). Second
Amended Complaint (d/e 51).2 The Defendants move for summary
judgment.
ANALYSIS
Defendants now move for summary judgment. At summary
judgment, the Defendants must present evidence that demonstrates the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323-24 (1986). The Court must consider the evidence presented
in the light most favorable to Moriconi. Any doubt as to the existence of a
genuine issue for trial must be resolved against the Defendants.
2

Moriconi also brought a claim against Deputy Brad Tweryon in Count II of the Second Amended
Complaint. Moriconi voluntarily dismissed the claims against Tweryon with prejudice. Stipulation and
order of Dismissal With Prejudice (d/e 71).

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Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. Once the Defendants
have met their burden, Moriconi must present evidence to show that issues
of fact remain with respect to an issue essential to his case, and on which
he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S.
at 322; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). In this case, issue of fact exists.
Moriconi alleges two claims against Koester, excessive force and
false arrest without probable cause. Excessive force claims in this context
are measured by using a Fourth Amendment standard of Aobjective
reasonableness,@ in which the officer=s actions are viewed from, Athe
perspective of a reasonable officer on the scene, rather than with 20/20
vision of hindsight.@ Graham v. Conner, 490 U.S. 386, 396-97 (1989). The
use of force is unconstitutional if, Ajudging from the totality of circumstances
at the time of the arrest, [the officer] used greater force then was
reasonably necessary to make the arrest.@ Lester v. City of Chicago, 830
F.2d 706, 713 (7th Cir. 1987).
The evidence, when viewed in the light most favorable to Moriconi,
shows that the force was excessive. Moriconi walked out of the Bar.
Moriconi stated that he owned the Bar and he called the police. Moriconi
was not yelling at the officers. Koester told him to stop and raise his hands
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over his head. Moriconi stood still and told Koester that he could not
because he was crippled. Koester said that he would not warn Moriconi
twice and Koester shot Moriconi with a Taser. Moriconi fell to the ground.
Moriconi did not struggle with the officers while he was on the ground.
Koester shocked Moriconi four more times. Moriconi told Koester he could
not put his arm behind his back because it was paralyzed. A jury could
conclude that a reasonable officer under these circumstance would not
shoot such a person with a Taser and then shock the person four more
times.
The Defendants argue that Moriconi was intoxicated at the time of the
incident. Moriconi testified that he had three drinks over the course of six
to eight hours, from 4:00 p.m. on July 28, 2009, to the early morning of July
29, 2009. A jury could conclude that a person could consume three drinks
over eight hours without becoming intoxicated. Whether he was intoxicated
is an issue of fact.
Beyond just intoxication, the Defendants materially dispute Moriconi’s
version of the facts in many respects. That dispute, however, is for the jury
to decide. Issues of fact exist regarding whether Koester violated
Moriconi’s Fourth Amendment Rights by using excessive force.

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Moriconi also claims that Koester violated his rights by arresting him
and detaining him illegally. An illegal arrest occurs if the officer lacks
probable cause to arrest. Lawson v. Veruchi, 637 F.3d 699, 703 (7th Cir.
2011). The existence of probable cause is determined objectively based
on the facts and circumstances known to the officer at the time. Those
facts and circumstances must be “sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances shown, that
the suspect has committed . . . an offense.” Id.
Koester arrested Moriconi for obstruction of justice. Obstruction of
justice under Illinois law occurs when a person knows the officer is a peace
officer, and knowingly resists or obstructs the officer’s performance of an
authorized act. 720 ILCS 5/31-1(a). In this case, the evidence, viewed in
the light most favorable to Moriconi, shows that Moriconi stepped out of the
Bar, Koester told Moriconi to stop and raise his hands above his head,
Moriconi stood still and told Koester that he could not raise his hands
because he was crippled, and Koester shot Moriconi with a Taser and
arrested him. A jury that believed Moriconi’s version of the evidence could
conclude that a reasonable officer would not have a basis to believe that
Moriconi obstructed or resisted the officer, and so, would not have probable
cause to arrest Moriconi for obstruction.
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The Defendants again dispute Moriconi’s version of events. That
dispute is for the jury to decide. Issues of fact exist regarding whether
Koester violated Moriconi’s rights by arresting him without probable cause.
The Defendants argue in the alternative that Koester is entitled to the
affirmative defense of qualified immunity on Moriconi’s claims. Koester is
entitled to qualified immunity unless Moriconi can point to clearly
established constitutional law existing at the time of the incident that put
Koester on notice that his conduct was unconstitutional. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
Moriconi can show that Koester used unconstitutional excessive force
in light of clearly established controlling authority by:
(1) pointing to a closely analogous case that established a right
to be free from the type of force that police officers used on
him, or (2) showing that the force was so plainly excessive that,
as an objective matter, the police officers would have been on
notice that they were violating the Fourth Amendment.
Chelios v. Heavener, 520 F.3d 678, 691 (7th Cir. 2008) (quoting Clash v.
Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996).
If Moriconi’s version of the events is believed, the force was clearly
excessive. Moriconi stepped out of the Bar; Moriconi told Koester that he
owned the Bar and called the police; Moriconi was not yelling; Koester told
Moriconi to stop and raise his hands; Moriconi stood still and explained to
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Koester that he could not raise his arm because he was crippled. Moriconi
did not struggle with the officers. Shooting Moriconi with a Taser under
these circumstances was clearly excessive, and shocking him four more
times while he lay on the ground was also excessive. When the facts are
viewed in the light most favorable to Moriconi, Koester is not entitled to
qualified immunity on the excessive force claim.
With respect to the illegal arrest claim, existing constitutional law
clearly established that an officer could not arrest a person without
probable cause. See Lawson, 637 F.3d at 703. The Illinois Supreme Court
had also clearly established that Koester did not have probable cause to
arrest Moriconi for obstruction of justice based on Moriconi’s version of the
events. The Illinois Supreme Court established in People v. Raby, 40 Ill.2d,
240 N.E.2d 595 (Ill. 1968), that in order to commit the offense of obstruction
of justice, a person must take some affirmative act to interfere or obstruct a
police officer,
‘Resisting’ or ‘resistance’ means ‘withstanding the force or effect
of’ or the ‘exertion of oneself to counteract or defeat’. ‘Obstruct’
means ‘to be or come in the way of’. These terms are alike in
that they imply some physical act or exertion. Given a
reasonable and natural construction, these terms do not
proscribe mere argument with a policeman about the validity of
an arrest or other police action, but proscribe only some physical
act which imposes an obstacle which may impede, hinder,
interrupt, prevent or delay the performance of the officer's duties,
such as going limp, forcefully resisting arrest or physically aiding
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a third party to avoid arrest.' We agree with these observations,
....
People v. Raby, 40 Ill. 2d 392, 399, 240 N.E.2d 595, 599 (1968) (quoting
Landry v. Daley, 280 F.Supp. 939, 959 (N.D. Ill. 1968) (internal citation
omitted. If Moriconi’s version of events is believed, he did nothing to
interfere or obstruct any officer. He walked out of the Bar, he told Koester
he owned the Bar and had called the police, he stood still when Koester
told him to stop, and he told Koester he could not raise his arm because he
was crippled. According to Moriconi, he did nothing to interfere or obstruct
any officer. If so, Koester was on notice that he had no probable cause to
arrest Moriconi for obstruction. He also knew that arresting a person
without probable cause violated the Fourth Amendment. When the
evidence is viewed favorably to Moriconi, Koester is not entitled to
summary judgment based on a defense of qualified immunity.
The Defendants also argue that the County is entitled to summary
judgment on any claim in Count I of direct municipal liability against the
County for violation of Moriconi’s rights. See Monell v. Department of
Social Services of City of New York, 436 U.S. 658, 690-91 (1978).
Sangamon County is named as a Defendant only in Count III of the Second
Amended Complaint. It appears that no Monell claim is asserted against
Sangamon County as the complaint indicates that “Sangamon County is
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only named as a defendant for proposed [sic] of indemnification”. In any
event, Moriconi concedes that he has no evidence to establish direct
municipal liability against the County, and voluntarily dismisses any such
claim. Moriconi Response, at 38. The Court allows the County’s request
for partial summary judgment on any §1983 claim of direct municipal
liability against the County which may be alleged in Count I or Count III.
The County remains a Defendant for purposes of indemnification under the
state law claim under 745 ILCS 10/9-102 for indemnification in Count III.
Although Neil Williamson, Sheriff of Sangamon County, still remains
in the caption of the Second Amended Complaint, there is no allegation of
any claim against Williamson individually or in his official capacity in the
Second Amended Complaint, and, in fact, Williamson was previously
terminated as a defendant (Text Order, 10/5/2011) and remains terminated
as a defendant in this case (Text Order, 10/19/2011). There is no pending
claim against Sheriff Williamson.
WHEREFORE Defendants’ Motion for Summary Judgment (d/e 85) is
ALLOWED in part and DENIED in part; Plaintiff’s Response to Defendants’
Motion for Summary Judgment and Plaintiff’s Motion for Summary
Judgment (d/e 91) is STRICKEN; Defendants’ Motion to Strike Plaintiff’s

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Motion for Summary Judgment (d/e 90) and Defendants’ Motion to Strike
Plaintiff’s Affidavit (d/e 92) are ALLOWED.
ENTER: November 4, 2014

s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE

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