Hemphill v. Dart et al

Filing 110

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 12/7/2011.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEMETRIUS DARNELL HEMPHILL,
Plaintiff,
vs.
OFFICER KEVIN HOPKINS, SGT. THOMAS
SKINNER, BRENDAN LOMBARDI, OFFICER OTIS
NICHOLS, and LIEUTENANT MCNAMARA,
Defendants.

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08 C 157 & 08 C 902
Judge Feinerman

MEMORANDUM OPINION AND ORDER
On June 1, 2007, Plaintiff Demetrius Hemphill, then a pretrial detainee in the Cook
County Department of Corrections, had a physical altercation in his cell with Defendants
Brendan Lombardi and Otis Nichols, both of whom were correctional officers. Nichols says that
he hit Hemphill after Hemphill grabbed him and threw liquid into his face. Hemphill recalls
things differently, saying that Nichols hit him repeatedly in the face after the two exchanged
verbal insults. Lombardi says that when he sought to restrain Hemphill, Hemphill kicked him in
the mouth, chipping his tooth; Hemphill says that Lombardi’s tooth was chipped prior to the
incident. Lombardi and Nichols placed Hemphill in handcuffs and took him to receive medical
treatment. According to Hemphill, Nichols punched him in the head at least three times on the
way to the infirmary, causing several lost teeth and injuries to his head, ribs, back, and legs.
In January 2008, Hemphill brought this excessive force suit under 42 U.S.C. § 1983
against Lombardi and Nichols. The case (08 C 157) was stayed pending resolution of state
criminal proceedings against Hemphill arising out of the June 2007 altercation. Docs. 18-19, 23.

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On May 15, 2009, the state court found Hemphill guilty of three counts of battery and sentenced
him to several years in state prison. With the criminal proceedings concluded, the stay was
lifted. In the meantime, Hemphill brought another suit (08 C 902) alleging excessive force by
different officers at a different time, and the two cases were consolidated. Doc. 38. (All record
citations are to Case 08 C 157.) Hemphill filed an amended complaint combining his claims
from both suits. Doc. 46. Count I, which encompasses the claims from Case 08 C 157, alleges
that Nichols and Lombardi used excessive force against Hemphill on June 1, 2007. Count II,
which encompasses the claims from Case 08 C 902, pertains to the other incident involving the
other officers.
Lombardi and Nichols have moved for summary judgment on Count I. They assert three
separate grounds: (1) the bar imposed by Heck v. Humphrey, 512 U.S. 477 (1994); (2) collateral
estoppel; and (3) qualified immunity. Hemphill concedes he cannot prevail against Lombardi.
Doc. 95 at 1, 3 n.1. For the following reasons, summary judgment is denied as to Nichols.
I.

The Heck Doctrine
Heck precludes a § 1983 claim when “a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or sentence,” unless the conviction or sentence
has been set aside by appeal, collateral review, or pardon. 512 U.S. at 487; see also Gilbert v.
Cook, 512 F.3d 899, 900 (7th Cir. 2008). Thus, to determine whether Heck bars Hemphill’s
excessive force claim, the court asks whether the claim, if successful, necessarily would imply
the invalidity of any of his battery convictions. Settled precedent is clear: Heck does not bar an
excessive force claim if the plaintiff, putting aside any challenge to his conviction, proceeds on
the theory that the degree of force applied was unreasonable under the circumstances.

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The point is illustrated by Evans v. Poskon, 603 F.3d 362 (7th Cir. 2010). The § 1983
plaintiff in Evans alleged that he “was beaten mercilessly [by the defendant police officers] both
before and after the officers gained custody of him.” Id. at 363. The Seventh Circuit held that
Heck barred the plaintiff from pursuing an excessive force claim premised on the theory “that he
did not resist being taken into custody,” for that theory would be “incompatible” with the
plaintiff’s resisting arrest conviction. Id. at 364. But the court held that Heck would not bar the
excessive force claim if the plaintiff proceeded on the theories “that the police used excessive
force to effect custody” and “that the police beat him severely even after reducing him to
custody,” for those theories would be “entirely consistent” with the conviction. Ibid. The
Seventh Circuit allowed the plaintiff to pursue his excessive force claim because he was willing
to proceed only on the permissible theories. Ibid.; see also Hardrick v. City of Bolingbrook, 522
F.3d 758, 764 (7th Cir. 2008) (“The fact that Hardrick struggled while being handcuffed at one
point in time does not preclude the possibility that at another point in time, Hardrick was
peaceably waiting to be handcuffed. Whether a fact-finder would find this scenario plausible is
not for us to conclude, but in terms of Heck, it is not one that necessarily implies the invalidity of
the conviction, and does not bar Hardrick’s excessive force claim.”) (internal quotation marks
omitted); Gilbert, 512 F.3d at 901 (“Heck … do[es] not affect litigation about what happens after
the crime is completed. Public officials who use force reasonably necessary to subdue an
aggressor are not liable on the merits; but whether the force was reasonable is a question that
may be litigated without transgressing Heck.”).
Another illustrative case is Okoro v. Callaghan, 324 F.3d 488 (7th Cir. 2003). The
plaintiff in Okoro had been convicted of selling drugs to an undercover officer; his civil suit
alleged that he was trying to sell jewels, not drugs, and that the police stole his jewels. The
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Seventh Circuit held that the civil claim was incompatible with the conviction: “Although [the
plaintiff] might have tried to argue that he offered both drugs and gems, and that the officers
bought the former while stealing the latter—or that he sold drugs on one occasion while offering
jewels on another—he insisted that his inventory was jewelry and nothing else.” Gilbert, 512
F.3d at 902 (discussing Okoro). And because the claim was incompatible with the conviction, it
was barred by Heck. Okoro, 324 F.3d at 490.
Here, although Hemphill denies the facts underlying his batter conviction, Doc. 96 at
¶¶ 19-21, 24, 26, 28-29, 31, he also contends that no matter what sparked the June 2007 incident,
Nichols responded with unconstitutionally excessive force. Doc. 95 at 2, 3. That makes this
case like Evans, Hardrick, and Gilbert, where Heck was held not to apply, not like Okoro. “An
argument along the lines of ‘The guards violated my rights by injuring me, whether or not I
struck first’ does not present the sort of inconsistency that” warrants application of the Heck
doctrine. Gilbert, 512 F.3d at 902; see also McCann v. Nielsen, 466 F.3d 619, 621 (7th Cir.
2006) (a plaintiff convicted of assaulting or battering a police officer may bring a § 1983 action
“for excessive force stemming from the same confrontation” so long as the civil claim does not
necessarily undermine the validity of the criminal conviction). It follows that Hemphill’s
excessive force claim is not barred by Heck. See Van Gilder v. Baker, 435 F.3d 689, 692 (7th
Cir. 2006) (“Were we to uphold the application of Heck in this case, it would imply that once a
person resists law enforcement, he has invited the police to inflict any reaction or retribution
they choose, while forfeiting the right to sue for damages.”); Brengettcy v. Horton, 423 F.3d 674,
683 (7th Cir. 2005) (“Brengettcy is not barred by Heck because his challenge that Horton used
excessive force after he hit Horton does not undermine Brengettcy’s conviction or punishment
for his own acts of aggravated battery.”); Elcock v. Whitecotton, 434 F. App’x 541, 542-43 (7th
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Cir. 2011) (“a claim of excessive force … , if proved, will not undermine a finding that the
plaintiff attacked or wrongly resisted a police officer or prison guard”); Gregory v. Oliver, 226
F. Supp. 2d 943, 952 (N.D. Ill. 2002) (“it is obvious that the conviction of aggravated assault for
an attempted kick would not necessarily preclude an excessive force claim”); Rosenbach v.
Nordstrom, 2001 WL 199795, at *4 (N.D. Ill. Feb. 22, 2001) (“it is entirely possible to find both
that Rosenbach committed battery and that [the police officer’s] use of force in restraining
Rosenbach after the battery was excessive”).
To avoid offending Heck, Hemphill need not go so far as to “confess” to the battery
charges of which he was convicted. Moore v. Mahone, 652 F.3d 722, 723 (7th Cir. 2011).
Hemphill should not take this as an invitation to dispute his criminal convictions or their factual
predicates before or during trial. If Hemphill does so, the court will implement Heck “through
instructions to the jury at the start of trial, as necessary during the evidence, and at the close of
the evidence” informing the jury that the essential facts underlying Hemphill’s battery
conviction may not be contested. Ibid. (quoting Gilbert, 512 F.3d at 902). Specifically, the jury
will be told that Hemphill indeed struck Nichols during the June 2007 incident, that he was not
justified in doing so, and that “any statements to the contrary by [Hemphill, his lawyer,] or a
witness must be ignored, and that what the jurors need[] to determine [is] whether the guards
used more force than was reasonably necessary to protect themselves from an unruly prisoner.”
Ibid. (quoting Gilbert, 512 F.3d at 902).
II.

Collateral Estoppel
Nichols next argues that Hemphill’s excessive force claim is barred by collateral estoppel

because the state criminal judgment establishes that Hemphill “acted without legal justification
in his battery” of Nichols and Lombardi. Doc. 90 at 11. “Whether a plaintiff’s § 1983 claim is
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barred by a state court conviction is determined by the state’s rules of collateral estoppel.”
Brown v. City of Chi., 599 F.3d 772, 774 (7th Cir. 2010) (citing 28 U.S.C. § 1738). In Illinois,
issue preclusion applies if: “(1) the issue decided in the prior adjudication is identical with the
one presented in the suit in question; (2) there was a final judgment on the merits in the prior
adjudication; and (3) the party against whom the estoppel is asserted was a party or in privity
with a party to the prior adjudication.” Bajwa v. Metro. Life Ins. Co., 804 N.E.2d 519, 532 (Ill.
2004).
As Nichols concedes, the question whether he used excessive force after Hemphill
battered him was not presented to or decided by the state criminal court. Doc. 90 at 11 (arguing
that there was no excessive force “at least during the time prior and during [Hemphill’s]
battery”). Nichols’ concession is correct, as the state court did not decide—and had no occasion
to decide—whether Nichols used excessive force on Hemphill after Hemphill had committed
battery. This means that collateral estoppel does not bar Hemphill’s allegations of post-battery
excessive force: the issues decided in the criminal case were not identical to those here, and the
criminal case did not produce a final adjudication on the post-battery excessive force issue.
The same holds for the portion of Hemphill’s claim that Nichols used excessive force
before Hemphill completed his battery. The state court’s rejection of Hemphill’s submission
that he acted in self-defense, and therefore that he was not guilty of battery, “determined only
that [Hemphill] was not legally justified in hitting [Nichols]. It implied nothing about the degree
of force [Nichols] was allowed to use in responding to [Hemphill’s] assault.” Brengettcy, 423
F.3d at 683; see also Wilson v. Keske, 2010 WL 4065665, at *4 (N.D. Ill. Oct. 15, 2010)
(rejecting the defendant officer’s invocation of collateral estoppel in an excessive force case
because “the issues are not identical. The criminal case focused on [plaintiff’s] treatment of
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[the] officer … . In contrast, the focus of the § 1983 claims in the instant proceeding is on [the
officer’s] treatment of [the plaintiff], and whether it was excessive under the circumstances”);
Corbett v. Biggs, 2005 WL 991903, at *5 (N.D. Ill. Mar. 23, 2005) (same); Rosenbach, 2001 WL
199795, at *5 (same). It follows that collateral estoppel does not bar any component of
Hemphill’s excessive force claim.
III.

Qualified Immunity
Nichols contends that he is entitled to qualified immunity on Hemphill’s excessive force

claim. Stripped of its boilerplate, Nichols’ entire qualified immunity argument reads: “As stated
supra in Part II [regarding collateral estoppel], Plaintiff cannot challenge the conduct of
Lombardi and Nichols while they were trying to detain him following Plaintiff’s battery on
Nichols. As a result, Nichols and Lombardi should be entitled to qualified immunity for any
injuries incurred during the course of restraining Plaintiff incidentally and contemporaneous to
Plaintiff’s battery on Nichols and Lombardi.” Doc. 90 at 13; see also Doc. 98 (reply brief does
not mention qualified immunity). Nichols’ qualified immunity argument, then, is predicated
entirely on his collateral estoppel argument. Because the collateral estoppel argument is without
merit, so, too, is the qualified immunity argument. Nichols has forfeited any other contentions
he might have made in support of qualified immunity. See Alioto v. Town of Lisbon, 651 F.3d
715, 721 (7th Cir. 2011) (“Longstanding under our case law is the rule that a person waives an
argument by failing to make it before the district court. We apply that rule where a party fails to
develop arguments related to a discrete issue .…”) (citations omitted).
Conclusion
For the foregoing reasons, the motion for summary judgment on Count I is granted in
part (as to the claim against Lombardi) and denied in part (as to the claim against Nichols).
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Judgment is granted to Lombardi, who is terminated as a party defendant. Count I will proceed
to trial against Nichols.

December 7, 2011
United States District Judge

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