Pantaleo vs. Hayes

Filing 292

Opinion and Order Signed by the Honorable Joan H. Lefkow on 9/20/2013: Defendants' motions for summary judgment [#218, 221, 224, 227] are granted in part and denied in part. Summary judgment is granted in favor of Hayes, Maraviglia, and the Vil lage on Counts I and III, in favor of the Village on Count II, and in favor of all defendants on Count V. Summary judgment is also granted in favor of all defendants on Counts II and IV with respect to application of the four-point restraints. This case will be called for a status hearing on October 15, 2013 at 8:30 a.m. The parties are directed to engage in a sincere effort to settle this case and to report their progress at the status hearing.Mailed notice(mad, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEANE PANTALEO,1
Plaintiff,
v.
OFFICER LOUIS HAYES, JR.,
OFFICER ANTHONY MARAVIGLIA,
VILLAGE OF HINSDALE, ROBERT
GRONER, SECURITY GUARD
SANCHEZ, NURSE PITTS, DR.
MARTINEZ, and ADVENTIST
HINSDALE HOSPITAL,
Defendants.

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No. 08 C 6419
Judge Joan H. Lefkow

OPINION AND ORDER
In this section 1983 civil rights suit against Officer Louis Hayes, Jr., Officer Anthony
Maraviglia, the Village of Hinsdale (the “Village”), Security Guard Robert Groner, Security
Guard William Sanchez, Nurse Melissa Pitts, Dr. Carlos Martinez, and Adventist Hinsdale
Hospital (the “Hospital”), plaintiff Deane Pantaleo alleges claims against Hayes, Maraviglia, and
the Village for false arrest and against all defendants for excessive force. Pantaleo also alleges
state law claims for assault and battery and intentional infliction of emotional distress (“IIED”)
against all defendants and for malicious prosecution against Hayes, Maraviglia, and the Village.
Pending before the court are defendants’ motions for summary judgment.2 For the following
1

The caption of the complaint identifies the plaintiff as “Dean Pantaleo,” but the correct spelling
of his first name appears to be “Deane.”
2

Hayes, Maraviglia, and the Village’s motion for summary judgment on all claims is Dkt. No.
218. Groner, Sanchez, and the Hospital’s motion for summary judgment on Pantaleo’s excessive force,
assault and battery, and IIED claims is Dkt. No. 221. Pitts and the Hospital’s motion for summary
judgment on Pantaleo’s excessive force and IIED claims is Dkt. No. 224. Martinez’s motion for

(continued...)

reasons, their motions for summary judgment [#218, 221, 224, 227] are granted in part and
denied in part.
LEGAL STANDARD
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine issue of fact exists, the court must pierce the pleadings
and assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed. R. Civ. P. 56(c) & advisory committee’s notes. The
party seeking summary judgment bears the initial burden of proving that there is no genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986). In response, the non-moving party cannot rest on mere pleadings alone but must use
the evidentiary tools listed above to designate specific material facts showing that there is a
genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir.
2000). A material fact is one that might affect the outcome of the suit. Insolia, 216 F.3d at
598–99. Although a bare contention that an issue of fact exists is insufficient to create a factual
dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all
facts in a light most favorable to the non-moving party and draw all reasonable inferences in that
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d
202 (1986).

(...continued)
summary judgment on Pantaleo’s excessive force, assault and battery, and IIED claims is Dkt. No. 227.
Defendants have also filed motions to bar Dr. Laurie Zoloth, one of Pantaleo’s disclosed rebuttal experts.
Those motions (Dkt. Nos. 229, 276, and 280) are addressed separately in a concurrently filed opinion.

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BACKGROUND3
I.

Events Leading Up To November 11, 2007
On October 31, 2007, Pantaleo traveled to Mexico with two friends. While there,

Pantaleo used alcohol and marijuana in excess, leading one of his friends to call Pantaleo’s
mother expressing concern about his well-being. Pantaleo’s mother and uncle then flew to
Mexico to bring Pantaleo back home. Upon arrival, Pantaleo’s mother believed him to be manic.
In addition to being agitated, Pantaleo pretended to overdose on Ambien and Seroquel in front of
his mother. Ultimately, Pantaleo agreed to return home to Chicago after his mother lied and told
him she was sick from a recent surgery.
Pantaleo, his mother, and his uncle arrived in Chicago on November 10, 2007. They
were met by Pantaleo’s father, who drove them straight to the Hospital. Pantaleo understood
that they were going there to have his mother evaluated and treated. Instead, the visit was
intended to get Pantaleo treatment. Pantaleo’s mother told Hospital staff that Pantaleo had tried
to kill himself in Mexico, explaining that he had pretended to overdose on Ambien and Seroquel.
Pantaleo’s mother sought to have him involuntarily admitted to the Hospital.4 Pantaleo was
3

The facts in the background section are taken from the parties’ Local Rule 56.1 statements of
fact and construed in the light most favorable to Pantaleo. Defendants argue that many of Pantaleo’s
responses and additional statements of fact are not properly supported by the record. Statements of fact
unsupported by admissible evidence will not be considered. Additionally, failure to comply with Local
Rule 56.1 in responding to a party’s statement of facts results in admission of those facts. See Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“[F]ailure to respond by the nonmovant as mandated by the
local rules results in an admission.”); McGuire v. United Postal Serv., 152 F.3d 673, 675 (7th Cir. 1998)
(“An answer that does not deny the allegations in the numbered paragraphs with citations to supporting
evidence in the record constitutes an admission.”). In accordance with its regular practice, the court has
considered the parties’ specific objections and responses and has included in this background section only
those portions of the Local Rule 56.1 statements and responses that are appropriately presented,
supported, and relevant to the resolution of this motion.
4

This was not the first time Pantaleo was involuntarily admitted to a hospital for mental health

(continued...)
3

placed in room 17 of the Hospital’s emergency room, a room used for patients with mental
health issues or who are displaying signs of agitation. Room 17 has a roll down wall to keep
patients from accessing the medical equipment and also has a camera that provides a live feed to
the nurses’ station. The door to room 17 has an inner part that can be opened out into the
hallway.
Pantaleo, not wanting to be admitted to the Hospital, started yelling and attempted to
leave. He was stopped, however, by a Hospital security guard. Hinsdale police officers were
thereafter called to the Hospital. After speaking with the officers, Pantaleo agreed to take
Geodon, a psychotropic medication used to treat manic episodes of bipolar disorder.
II.

November 11, 2007 Events
Pantaleo woke up on November 11, 2007 in the same room he had been in the night

before. Between 6:05 a.m. and 7:05 a.m., Pantaleo spoke with a DuPage County licensed
clinical social worker, Michael Gockman. During this interview, Pantaleo made various
threatening comments, including these: (1) “My family is affiliated with the mafia, and if you
f— with me, your family name goes out of existence;” (2) “If you f— with me, I’ll cut off your
kid’s head and send it to your grandma;” and (3) “I’ll kill myself before I go to the hospital; I’ll
punch out anyone in my way. I’m like the hulk, you can’t keep up with crazy.” Defs.’ Joint Ex.
T. Gockman also noted in his report of the meeting that Pantaleo was uncooperative, irritable,
anxious, angry, and presented a high danger to himself and others. Gockman concluded that

(...continued)
treatment.

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Pantaleo required immediate hospitalization for his own safety and that of others. Gockman did
not immediately report any of the above to the named defendants or any other Hospital staff.
Since Pantaleo’s admission, security guards had been stationed outside room 17. Around
7 a.m., shifts changed, and Groner and Sanchez, Hospital security guards, took up the post
outside room 17. They both had been informed that Pantaleo was agitated. Soon after they
began their shift, Pantaleo approached Groner and Sanchez and stated he wanted to speak to a
nurse or doctor.5 Groner then spoke with a nurse. Pantaleo followed with yelling out of his
room, closing the door, and pushing the gurney up against the door to keep it shut.6
Soon thereafter, Pantaleo grabbed an oxygen tank that was stored under the gurney in his
room. The parties dispute what happened next. Nurse Pitts,7 Groner, and Sanchez testified that
Pantaleo took the oxygen tank and held it up as if he was going to throw it out the window.
They recalled hearing him say something along the lines of “I’m going to throw this f—ing
oxygen tank out the window.” Defs.’ Joint Ex. J 47:13–18; see also Defs.’ Joint Ex. G

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Whether Pantaleo used profanity in requesting to speak to a nurse or doctor is disputed by the
parties. Pantaleo generally denies swearing that day. At the same time, he admits to having made
statements to Gockman that included profanity and testified that he “probably did swear” during the time
at issue, see, e.g., Defs.’ Joint Ex. B 287:16–18, undercutting his insistence in his response to defendants’
statements of fact that he did not swear. Pantaleo cites to Nurse Bielawa’s and Maraviglia’s testimony to
support the fact that he was not swearing. Nurse Bielawa did testify that she did not recall hearing any
profanity used by anybody. Maraviglia’s testimony, however, was confined to one interaction between
Pantaleo and one of the security guards. He testified to other instances during which Pantaleo was
swearing at the officers. This dispute is not material to resolution of the motion, however.
6

Pantaleo emphasizes that he could not barricade himself in the room because the room he was in
had a door within a door. There is no dispute, however, that he pushed the gurney up against the door.
7

Pitts had started her shift around 6:45 a.m. She had not had any contact with Pantaleo on
November 10, 2007. She first had her attention drawn to Pantaleo when he was holding up the oxygen
tank.

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104:1–11, 122:11–14. Martinez, one of the emergency room physicians on duty that morning,8
observed Pantaleo raising the oxygen tank on the live feed of Pantaleo’s room. Pantaleo, on the
other hand, testified that he held the oxygen tank up because he wanted it removed from the
room so it did not pose a hazard if anyone (Hospital staff or police) forced their way into the
room. Groner and Sanchez testified that they told Pantaleo to put the oxygen tank down. While
this was going on, a code gray alert was called, alerting Hospital staff that there was an agitated
patient and that extra help was needed in room 17. Pantaleo testified that after he heard the code
gray called, he gave the oxygen tank to Groner because he knew the police were coming and did
not want a problem. Groner instead testified that Pantaleo moved the gurney away from the
door, and then Groner opened the door to the room and retrieved the oxygen tank himself.
During the oxygen tank incident, Groner requested that the Hinsdale police be called to
assist. Hayes and Maraviglia, who were on duty at that time, responded to the dispatch call.
Dispatch advised them that there was a patient at the Hospital who was becoming violent and
needed to be restrained. They also were told that officers had been sent to the Hospital the night
before to deal with the same patient. Hayes arrived first, followed by Maraviglia.
Meanwhile, after observing the situation in room 17 from the live feed, Martinez
reviewed Pantaleo’s chart. He noted that the chart indicated that Pantaleo was suicidal, was not
complying with medication, refused care, had been aggressive with his family and staff the prior
evening, and had been administered Geodon. He concluded that the situation was an emergency

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Martinez had started his shift around 7:00 a.m. He had been briefed by the outgoing emergency
room physician that there was a psychiatric patient in Room 17 who was involuntarily admitted, suicidal,
and in the process of being placed in a psychiatric facility. Martinez’s attention was drawn to the
situation in Room 17 with the oxygen tank by Nurse Bielawa, another nurse on duty who is not a named
defendant.

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and dangerous and thus awaited the police officers’ arrival before entering Pantaleo’s room to
speak with him, as he wanted to use a “show of force” to attempt to get Pantaleo to calm down.
When Hayes and Maraviglia arrived at the Hospital, Pantaleo had calmed down. Hayes
and Maraviglia spoke with Groner, Sanchez, Martinez, and Bielawa. Groner testified that he
told Hayes that Pantaleo was threatening to throw an oxygen tank out the window and was
swearing. Martinez testified that he told Hayes and Maraviglia that Pantaleo had been
involuntarily committed based on a suicide attempt, that he was agitated and violent, and that he
had barricaded himself in the room. Martinez and Bielawa told Hayes that Pantaleo was being
involuntarily committed and so was not free to leave. Hayes also learned that Pantaleo had not
been taking his medication. Martinez told Hayes that the medication was legally ordered.
Martinez did not give the officers any instructions to restrain Pantaleo. Hayes, however, testified
that he “had a discussion with the medical staff that we had already been able to determine that
they were going to take action against the patient’s will and that the police were there with this
lawful basis of authority to take action to use certain powers that are given to the police to help
administer the medicine.” Defs.’ Joint Ex. C 154:9-15. Between themselves, Hayes and
Maraviglia discussed their role, including the use of a taser on Pantaleo if necessary. Hayes
testified that he was prepared to use physical acts to assist the medical staff. The other named
defendants were not aware of the officers’ decision to use the taser if necessary.
After discussing the situation with the police officers and security guards, Martinez
entered Room 17 and asked Pantaleo to sit on the gurney, which he did. Whether the police
officers and security guards entered behind Martinez in a “show of force” is in dispute. Even if
they did not enter the room, their presence was known. Martinez testified that he could tell by

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speaking to Pantaleo that he was manic and psychotic. Based on Pantaleo’s medical condition,
history, and behavior, Martinez believed that there was a high likelihood that Pantaleo would
require medication. Martinez testified that he told Pantaleo that he had to calm down or
otherwise medicine would be administered.9 Pantaleo, however, continued to insist that he did
not want any medicine. Pantaleo testified that he was calm and non-combative while speaking to
Martinez and making his wishes known. According to defendants, however, Pantaleo became
agitated, upset, and loud and proceeded to yell, scream, and swear. Pantaleo spoke about how he
had been tricked into coming to the Hospital and that he wanted to renounce his citizenship and
move to Mexico. Pitts testified that she recalled that Pantaleo began doing pushups and yelled
“it’s on,” although Pantaleo denies ever saying that and claims he was doing pushups as part of
his normal morning exercise routine. Martinez testified that Pantaleo jumped off the gurney and
looked as if he was trying to push through the officers standing at the door to his room.
Martinez then concluded that medication was necessary to prevent harm to Pantaleo and
others and ordered Pitts to prepare a Geodon injection.10 None of the other defendants was
involved in making this decision, although they later testified they believed Pantaleo to be a
serious threat to himself and those in the emergency room at this point. With the injection ready,
Pitts attempted to enter room 17 behind Groner and Sanchez. Pantaleo, however, ran towards
the doorway to block their entrance. He tried to close the door, but the officers and security
guards pushed it open. Pantaleo then retreated from the door, while Hayes and Maraviglia

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Pantaleo admitted that Martinez was speaking in a calm and professional way.

10

Martinez testified that in emergency situations involving agitated or violent patients, his
practice is generally to use Geodon as opposed to placing the patient in restraints because, in his
experience, Geodon has a consistent response, is less dangerous to the staff, and is proven to work.

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entered the room. Pantaleo pushed the gurney between him and the officers. Maraviglia thought
Pantaleo was trying to hit him with the gurney, and indeed the gurney struck Maraviglia’s left
hand. Hayes then told Pantaleo to get on the ground. Hayes and Maraviglia testified that
Pantaleo did not obey this command and instead took up a fighting stance with his fists closed.
Martinez testified that Pantaleo assumed a Heisman-like pose. Maraviglia testified that Pantaleo
was motioning for the officers to come at him, and Groner remembered Pantaleo stating “Bring
it on, f—ers.” Defs.’ Joint Ex. J 90:8–10. Pantaleo, however, testified that he assumed a fetal
position in the corner of the room. Hayes then pulled out his taser, testifying that at this point he
was afraid Pantaleo would strike him. Pantaleo testified that once he heard the electronic
clicking of the taser, he said “I’ll take the medication, just please don’t tase me.” Defs.’ Joint
Ex. B 207:20–23.11 Pitts did not recall hearing Pantaleo say anything regarding the use of the
taser. Hayes then used the taser once, discharging the probes into Pantaleo’s back for one fivesecond cycle. Pantaleo was then handcuffed. Pitts proceeded to administer the Geodon to
Pantaleo, after which the probes and handcuffs were removed. Pantaleo was moved to the
gurney, where Groner and Sanchez secured him in four-point restraints.
III.

Subsequent Events
Throughout the morning of November 11, Martinez continued to monitor Pantaleo’s

condition. Pantaleo showed no abnormal signs or problems, and Martinez did not observe any
injury or damages resulting from the Geodon injection. A little over an hour after the altercation,
Pantaleo was calm, cooperative, and even apologetic with Martinez. Subsequently, Pantaleo’s

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Gockman, the social worker, also testified that, from the other side of the emergency room, he
heard Pantaleo screaming “you’re not going to tase me, you’re not going to tase me.” Defs.’ Joint Ex. F
88:12–24; 129:19–23.

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mental health stabilized, although he suffered a relapse after his father died in a plane crash in
2010. Pantaleo has two red marks on his back from the taser, but he has never sought medical
attention as a result of being tased nor has he experienced any negative physical effects as a
result.
Although Pantaleo had not been told he was under arrest while at the Hospital, Hayes
subsequently authorized criminal complaints against Pantaleo for aggravated assault to a police
officer and resisting arrest based on the morning’s events. After a trial, Pantaleo was acquitted
of these charges.
IV.

Patient Rights
The Illinois Mental Health Code, 405 Ill. Comp. Stat. 5/2-100 et seq., sets forth the rights

of patients receiving mental health services. It provides that an adult recipient of services, such
as Pantaleo, has the right to refuse medication “unless such services are necessary to prevent the
recipient from causing serious and imminent physical harm to the recipient or others and no less
restrictive alternative is available.” 405 Ill. Comp. Stat. 5/2-107(a). Pantaleo has also submitted
an Illinois Department of Human Services form entitled “Rights of Individuals Receiving Mental
Health and Developmental Disabilities Services.”12 The form tracks the statute, advising a
patient who refuses services, including medication, “[You] will not be given such services
except when necessary to prevent you from causing serious harm to yourself or others.” Pl.’s
Ex. 14 at 2. It also provides that restraints will be used “only to protect you from physically

12

Martinez challenges the exhibit submitted as being without foundation and from a prior visit of
Pantaleo’s to the Hospital. This is a standard form that is publically available, and Martinez does not
argue that it does not accurately reflect the information that would be provided to mental health patients.

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harming yourself or others.” Id. Finally, the form states that the patient may tell the facility the
preferred form of intervention, to which the facility must then give consideration. Id.13
IV.

Expert Opinions
Dr. Alan Goldberg, Pantaleo’s treating psychiatrist since September 2007, opined that

Pantaleo was experiencing a psychotic break on November 11, 2007. He also opined to a
reasonable degree of medical and psychiatric certainty that Pantaleo did not know right from
wrong that day. Dr. Phillip McCullough, a psychiatrist disclosed by defendants, agreed with Dr.
Goldberg’s diagnosis of Pantaleo’s condition on November 11, 2007.
Martinez testified that an emergency existed the morning of November 11, 2007. He
testified that the Geodon injection was the least restrictive alternative available given the
circumstances. He also stated that it was necessary to place Pantaleo in physical restraints and
administer medication to him even after Pantaleo had been tased for the protection of Pantaleo
and others. He testified that his experience was that patients would continue their same behavior
if they were not medicated when they were in a manic, psychotic, and agitated state.

13

Pantaleo also cites to federal regulations governing participation in Medicare by psychiatric
hospitals, 42 C.F.R. § 482 et seq., as setting the standard of care and rights Pantaleo was entitled to.
These regulations do not allow for a private right of action. Neiberger v. Hawkins, 208 F.R.D. 301, 310
(D. Colo. 2002). Neither do they do not set a standard of care. Id. Instead, they provide standards with
which hospitals must comply in order to participate in Medicare. See Sepulveda v. Stiff, No. 4:05cv167,
2006 WL 3314530, at *8 (E.D. Va. Nov. 14, 2006) (“Sections 482.1 et seq. are merely intended to set out
the guidelines for determining whether a hospital may participate in Medicaid or Medicare; indeed, that is
its stated purpose.”). Defendants also argue that these regulations are not applicable because there is no
evidence that Pantaleo was a Medicare beneficiary. Even assuming that these regulations set forth rights
that Pantaleo can enforce, they provide for the same “emergency” exception as state law. See 42 C.F.R.
§ 482.13(e) (“Restraint or seclusion may only be imposed to ensure the immediate physical safety of the
patient, a staff member, or others and must be discontinued at the earliest possible time.”); id.
§ 482.13(e)(2) (“Restraint or seclusion may only be used when less restrictive interventions have been
determined to be ineffective to protect the patient[,] a staff member or others from harm.”).

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Dr. John Ortinau, a board certified emergency medicine physician, reviewed the record
and testified that a medical emergency existed on November 11, 2007. He further opined that
Martinez’s treatment of Pantaleo, including the decision to order the Geodon injection, complied
with the appropriate standard of care for emergency medicine physicians. He also testified that
no less restrictive alternative was available for the situation.
Pantaleo disclosed two rebuttal experts, Dr. Junig, who is board certified in
anesthesiology and practices psychiatry, and Dr. Laurie Zoloth, Ph.D., a bioethicist.14 Dr. Junig
provided coverage for the psychiatric crisis unit during his residency at the Milwaukee County
Behavioral Health Center and, upon completion of his residency, worked as a psychiatrist for the
Wisconsin Department of Corrections. Dr. Junig opined that less restrictive alternatives to
administering Geodon existed under the circumstances, including de-escalation and seclusion.
ANALYSIS
I.

False Arrest Claim against Hayes and Maraviglia
Pantaleo alleges that he was falsely arrested by Hayes and Maraviglia. Hayes and

Maraviglia argue that Pantaleo cannot prevail on his false arrest claim because they had probable
cause to arrest Pantaleo for the crimes charged and also could have charged him with disorderly
conduct. To prevail on his claim of false arrest under 42 U.S.C. § 1983, Pantaleo must establish
the absence of probable cause for his arrest. See Kelley v. Myler, 149 F.3d 641, 646 (7th Cir.
1998). Police officers have probable cause to make an arrest when “the facts and circumstances
within their knowledge and of which they have reasonably trustworthy information are sufficient
to warrant a prudent person in believing that the suspect had committed an offense.” Mustafa v.

14

Dr. Zoloth’s proposed testimony has been barred under Fed. R. Evid. 702. See Dkt No. 291.

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City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006) (citation omitted) (internal quotation marks
omitted). Probable cause is evaluated “not on the facts as an omniscient observer would
perceive them but on the facts as they would have appeared to a reasonable person in the
position of the arresting officer – seeing what he saw, hearing what he heard.” Mahoney v.
Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992). The court’s inquiry is limited to the information
known to the officers at the time of arrest. Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1057
(7th Cir. 2011). “[P]robable cause demands even less than probability; it requires more than
bare suspicion but need not be based on evidence sufficient to support a conviction, nor even a
showing that the officer’s belief is more likely true than false.” Woods v. City of Chi., 234 F.3d
979, 996 (7th Cir. 2000) (citations omitted) (internal quotation marks omitted); see also
Maryland v. Pringle, 540 U.S. 366, 370–71, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003) (“The
probable-cause standard is incapable of precise definition or quantification into percentages
because it deals with probabilities and depends on the totality of the circumstances.”).
Determining whether probable cause exists is necessarily a fact-intensive inquiry. Jones by
Jones v. Webb, 45 F.3d 178, 180 (7th Cir. 1995). Consequently, summary judgment is
inappropriate where material facts regarding the existence of probable cause are in dispute. See
id. (“Whether an officer had probable cause to make an arrest generally will present a question
for the jury, although the court can decide it when the material facts are not disputed.”);
Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir. 1989) (“While Section 1983 claims
presenting the question of probable cause are generally inappropriate for disposition on summary
judgment, this is true only where there is room for a difference of opinion.”).

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Pantaleo was charged with aggravated assault and resisting a peace officer. A person
commits aggravated assault when he commits an assault knowing the individual assaulted is a
peace officer (1) performing his official duties, (2) assaulted to prevent performance of his
official duties, or (3) assaulted in retaliation for performing his official duties. 720 Ill. Comp.
Stat. 5/12-2. An assault is committed when, without lawful authority, a person knowingly
engages in conduct placing another in reasonable apprehension of receiving a battery. 720 Ill.
Comp. Stat. 5/12-1. Resisting a peace officer consists of knowingly resisting or obstructing the
performance by a peace officer of any authorized act within his official capacity. 720 Ill. Comp.
Stat. 5/31-1. An individual may not commit “a physical act that impedes, hinders, interrupts,
prevents, or delays the performance of the officer’s duties, such as by going limp or forcefully
resisting arrest.” People v. Agnew-Downs, 936 N.E.2d 166, 173, 404 Ill. App. 3d 218, 344 Ill.
Dec. 24 (2010).
Hayes and Maraviglia also argue that Pantaleo could also have been arrested for
disorderly conduct. Although Pantaleo was not charged with disorderly conduct, “an arrest is
reasonable under the Fourth Amendment so long as there is probable cause to believe that some
criminal offense has been or is being committed, even if it is not the crime with which the
officers initially charge the suspect.” Fox v. Hayes, 600 F.3d 819, 837 (7th Cir. 2010); see also
Sroga v. Weiglen, 649 F.3d 604, 608 (7th Cir. 2011) (“The existence of probable cause to arrest
a suspect for any offense, even one that was not identified by the officers on the scene or in the
charging documents, will defeat a Fourth Amendment false-arrest claim.”). To commit
disorderly conduct, an individual must knowingly engage in conduct that (1) is unreasonable, (2)
alarms or disturbs another, and (3) provokes a breach of the peace. 720 Ill. Comp. Stat. 5/26-

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1(a)(1); People v. McLennon, 957 N.E.2d 1241, 1249, 2011 IL App (2d) 091299, 354 Ill. Dec.
448 (2011). “The breach-of-the-peace element requires nothing more than the unreasonable
harassment of a single person, even in a nonpublic location.” Maniscalco v. Simon, 712 F.3d
1139, 1144 (7th Cir. 2013). Whether an individual has committed disorderly conduct depends
on “the conduct’s unreasonableness in relation to the surrounding circumstances.” Biddle v.
Martin, 992 F.2d 673, 677 (7th Cir. 1993).
Here, Hayes and Maraviglia were called to the Hospital upon a report that there was a
patient who was becoming violent and needed to be restrained. Once they arrived, they were
told that Pantaleo was threatening to throw an oxygen tank out the window, had been swearing,
was agitated and violent, and had barricaded himself in his room. Pantaleo disputes that he tried
to throw the oxygen tank out a window, that he was swearing, and that it was possible to
barricade himself in the room. But he does not dispute that this is what the officers were told,
which is the relevant inquiry in determining whether probable cause existed. See, e.g., Abbott v.
Sangamon County, Ill., 705 F.3d 706, 716 (7th Cir. 2013) (officer not required to do any
independent investigation after being apprised of situation because “[o]nce a reasonably credible
witness informs an officer that a suspect has committed a crime, the police have probable cause
to arrest the suspect” (alteration in original) (quoting Mustafa v. City of Chicago, 442 F.3d 544,
548 (7th Cir. 2006))); Mustafa, 442 F.3d at 548 (“The existence of probable cause does not
depend on the actual truth of the complaint. The officers were entitled to take Qadeer at his
word as to Mustafa’s actions.” (citation omitted)).
Although Pantaleo may have been calm when Hayes and Maraviglia first arrived, the
situation thereafter escalated. The facts surrounding what happened after Martinez entered the

15

room to speak with Pantaleo are disputed, but there is no dispute that Pantaleo closed the door to
keep Pitts from entering to administer the Geodon injection and that he thereafter pushed the
gurney at the officers as they sought to restrain Pantaleo so that the Hospital staff could do their
job. Maraviglia testified that he believed Pantaleo was trying to hit him with the gurney, and the
gurney did strike Maraviglia’s hand. Taken together, Hayes and Maraviglia had probable cause
to believe that Pantaleo had committed aggravated assault and engaged in disorderly conduct.
See Abbott, 705 F.3d at 715 (probable cause existed to arrest plaintiff for assault where plaintiff
had threatened animal control officers with words and an accompanying gesture and officers had
considered threats serious enough to warrant calling for police help); Biddle, 992 F.2d at 677–78
(probable cause existed to arrest plaintiff for disorderly conduct where he drunkenly had been
screaming profanities and making violent arm gestures).
In his response, Pantaleo does not address the elements of the crimes with which he was
charged or could have been charged but rather focuses on the fact that charges were only brought
against him after he was tased. But Pantaleo does not cite to any case law that probable cause is
undermined by a criminal complaint being sworn out only after the events forming the basis of
the charges occurred. Pantaleo may be arguing that there could be no probable cause for a
charge of resisting a peace officer because he had not been told he was under arrest. Being told
that one is under arrest is not a prerequisite to such a charge, however. See 720 Ill. Comp. Stat.
5/31-1(a) (“A person who knowingly resists or obstructs the performance of one known to the
person to be a peace officer . . . of any authorized act within his official capacity commits a Class
A misdemeanor.”); Johnsen v. Vill. of Rosemont, No. 10 C 07097, 2013 WL 3668819, at *3
(N.D. Ill. July 12, 2013) (probable cause existed for resisting a peace officer where actions

16

interfered with officers’ investigation of a domestic dispute). Here, Pantaleo took physical
action—attempting to block entrance to his room and pushing the gurney at the officers—to
impede the officers’ attempts to ensure his safety and the safety of those around him, providing
the officers with sufficient probable cause to charge him with resisting a peace officer. But even
if a charge of resisting a peace officer required resistance to an arrest and not just resistance to
the officer’s performance of an authorized act, this alone does not support denying summary
judgment here because the officers had probable cause to arrest him for two other offenses, as
discussed above.
Pantaleo also argues that his false arrest claim should proceed because Hayes and
Maraviglia engaged in a conspiracy to manufacture false charges as a cover-up for the use of the
taser on him. The defense replies that there was no claim of conspiracy set out in the First
Amended Complaint, nor do allegations exist in the complaint to support such a claim. Because
the court is granting summary judgment on the false arrest claim, there is no need to consider
whether a conspiracy existed to manufacture false charges. Summary judgment is warranted for
Hayes and Maraviglia on Pantaleo’s false arrest claim and any recently conceived conspiracy
claim.
II.

Excessive Force
Pantaleo also claims that all defendants are liable for excessive force. Pantaleo’s claim

encompasses not only the use of the taser but also the subsequent administration of Geodon and
application of the four-point restraints. See First Am. Compl. ¶ 53 (defendants conspired to “use
excessive force against [him], restrain him, and administer sedative medication without his
consent and against his clearly stated protestations to the contrary”). Pantaleo alleges that this

17

violated his Fourth Amendment right to be free from unreasonable search and seizure. Id. ¶ 50.
But Pantaleo had been involuntarily admitted to the hospital by the time of the events in
question, and thus his claim is more appropriately analyzed under the Fourteenth Amendment.
While the Fourth Amendment “applies in the civil setting to seizures of individuals for
psychiatric evaluations or involuntary confinement,” the Fourteenth Amendment “provides
involuntarily committed individuals with the right to be free from undue bodily restraint in the
course of their treatment by the State.” Lanman v. Hinson, 529 F.3d 673, 680–81 (6th Cir. 2008)
(“Even though by bodily restraining a patient State actors are using physical force to restrain the
liberty of a citizen, the constitutional right [to be free from undue bodily restraint during
treatment] is not governed by the specific provisions of the Fourth Amendment. This is because
the act of physically restraining the patient is for the purpose of medical treatment, which the
State has determined is a necessary condition of the patient’s confinement.” (citations omitted)).
Under the Fourteenth Amendment, Pantaleo retained a liberty interest in freedom of
movement but that interest was not absolute. Youngberg v. Romeo, 457 U.S. 307, 319–20, 102
S. Ct. 2452, 73 L. Ed. 2d 28 (1982). Instead, it had to be balanced against relevant state
interests, including the interest in protecting the individual as well as others from violence. Id. at
320. Courts analyzing claims under the Fourteenth Amendment have often analogized to Eighth
Amendment doctrine. See Collignon v. Milwaukee County, 163 F.3d 982, 986–87 (7th Cir.
1998) (“[T]here is minimal difference in what the two standards [the Fourteenth Amendment and
the Eighth Amendment] require of state actors.”). The court in Youngberg, however, recognized
that “[p]ersons who have been involuntarily committed are entitled to more considerate
treatment and conditions of confinement than criminals whose conditions of confinement are

18

designed to punish.” Id. at 321–22. A decision with respect to the use of restraints, “if made by
a professional, is presumptively valid” and “liability may be imposed only when the decision by
a professional is such a substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible actually did not base the decision on such
a judgment.” Id. at 323.
Despite the applicability of the Fourteenth Amendment, the Fourth Amendment’s
reasonableness standard informs the court’s analysis, particularly in the analysis surrounding the
Hayes’s deployment of the taser. Davis v. Phillips, No. 09-CV-3336, 2012 WL 912857, at *6
n.7 (C.D. Ill. Mar. 16, 2012) (“[T]he Fourth Amendment’s objective standard may be relevant in
excessive force claims under the Fourteenth Amendment.” (collecting cases)). Whether
defendants’ actions were objectively reasonable must be considered in light of the totality of the
circumstances. Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 519 (7th Cir. 2012). To determine
whether the force used was reasonable, the court must engage in a “careful balanc[ing] of the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Chelios v. Heavener, 520 F.3d 678, 689 (7th
Cir. 2008) (citations omitted) (internal quotation marks omitted). “An officer’s use of force is
unreasonable if, judging from the totality of the circumstances at the time of the [seizure], the
officer uses greater force than was reasonably necessary to effectuate the [seizure].” Phillips,
678 F.3d at 519. The court considers the specific circumstances of the seizure, 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.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).

19

Reasonableness is evaluated “from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Id. “[S]ummary judgment is often inappropriate in
excessive-force cases because the evidence surrounding the officer’s use of force is often
susceptible of different interpretations.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (7th
Cir. 2010).
A.

Existence of a Conspiracy

Pantaleo seeks to hold liable for excessive force not only Hayes and Maraviglia,
indisputably state actors, but also the remaining individual defendants, who are all private
citizens. Pantaleo does not argue that they acted under state law but rather that they conspired
with state actors to use excessive force in violation of his constitutional rights. A private party
may be held liable under § 1983 “by engaging in joint action with state officials to deprive a
person of a federally protected right.” Hughes v. Meyer, 880 F.2d 967, 972 (7th Cir. 1989).
“[T]o establish § 1983 liability through a conspiracy theory, ‘a plaintiff must demonstrate that:
(1) a state official and private individual(s) reached an understanding to deprive the plaintiff of
his constitutional rights, and (2) those individual(s) were willful participant[s] in joint activity
with the State or its agents.’” Lewis v. Mills, 677 F.3d 324, 333 (7th Cir. 2012) (alteration in
original) (quoting Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007)).
Martinez, Pitts, Groner, and Sanchez argue that they did not act under state law by
merely calling on the police officers for assistance, citing to Hughes, 880 F.2d 967. But Hughes
recognized that an agreement to deprive an individual of a constitutional right between private
and state actors could subject private actors to § 1983 liability. Id. at 972. Similarly, Spencer v.
Lee, 864 F.2d 1376 (7th Cir. 1989), is distinguishable, for in that case, there was no allegation

20

that the private physician had entered into a conspiracy with state actors to administer
medication or commit the plaintiff; instead, the issue was whether, by virtue of initiating
commitment proceedings, a private physician and private hospital became state actors. Pantaleo
acknowledges that the process of involuntary commitment is not itself enough to transform all
actions by the non-state actor defendants into state action and instead seeks to proceed only on a
conspiracy theory. Here, defendants spoke together before the actions alleged to constitute
excessive force occurred. The officers were informed that Pantaleo was not taking his
medication. More importantly, Hayes testified that he “had a discussion with the medical staff
that we had already been able to determine that they were going to take action against the
patient’s will and that the police were there with this lawful basis of authority to take action to
use certain powers that are given to the police to help administer the medicine.” Defs.’ Joint Ex.
C 154:9–15. Although defendants argue that there is no evidence of a meeting of the minds,
Hayes’s testimony is sufficient to create a question of fact as to whether defendants joined
together with a common goal of administering psychotropic medication to Pantaleo in violation
of his constitutional right to refuse such medication. Because a jury must determine whether
defendants reached such an agreement, the non-state actor defendants cannot be dismissed on
this basis.
B.

Taser Use

Although the parties analyze Pantaleo’s complaint regarding the use of the taser under
the Fourth Amendment, the court will proceed to consider whether he can establish a claim
under either the Fourth or Fourteenth Amendment standards. Cf. Wilson v. Spain, 209 F.3d 713,
716 (8th Cir. 2000) (“[I]f [the plaintiff] cannot win his case under Fourth Amendment standards,

21

it is a certainty he cannot win it under the seemingly more burdensome, and clearly no less
burdensome, standards that must be met to establish a Fourteenth Amendment substantive due
process claim.”). Some courts have even suggested that the analysis is the same. See Davis v.
Peoria County, No. 08-CV-1118, 2009 WL 3258318, at *5 (C.D. Ill. Oct. 8, 2009) (analysis of
whether officers’ conduct constituted excessive force would be the same under the Fourth and
Fourteenth Amendments, requiring determination of whether officers’ conduct was reasonable
under the circumstances).
Pantaleo first argues that the amount of force used was excessive in part because Hayes
and Maraviglia knew that they were dealing with a patient of diminished mental capacity. “If
the suspect is mentally ill, the officer’s awareness of his mental illness is also a factor in the
analysis.” Cyrus, 624 F.3d at 862; see also Phillips, 678 F.3d at 526 (“There is a commonsense
need to mitigate force when apprehending a non-resisting suspect, particularly when the suspect
is known to have diminished capacity. An arrestee may be physically unable to comply with
police commands.”). This factors as one consideration in determining whether the force was
reasonable.
Pantaleo next argues that the force was unreasonable because he was never actively
resisting arrest or seizure. The evidence on this point is in dispute. Pantaleo testified that he was
calm and retreated to a corner in the fetal position, saying that he would take the medicine so as
not to be tased. Under Pantaleo’s version, a jury could find that the use of the taser was not
objectively reasonable. Defendants, however, testified that Pantaleo was agitated and assumed a
fighting position, telling them that “it’s on.” They testified that Pantaleo pushed the gurney at
them, as if he were attempting to impede them from getting to him. They further testified that

22

the officers ordered Pantaleo to the floor and that he did not comply. According to defendants,
Pantaleo never agreed to the injection. These competing versions of events create a genuine
dispute as to whether Pantaleo was actively resisting and whether the single use of the taser was
appropriate. But this is a dispute not for the court to resolve on summary judgment. See Cyrus,
624 F.3d at 862–63 (summary judgment not appropriate where evidence was conflicting on the
extent to which the deceased resisted arrest).
If defendants’ version of the events is accepted, Phillips, which Pantaleo relies on, is
distinguishable. In Phillips, the plaintiff “never exhibited any sort of aggressive behavior toward
the officers before or after they located her car, nor did she make any attempt to escape.”
678 F.3d at 524. Under defendants’ version, Pantaleo’s actions cannot be described as the
“passive noncompliance” found in Phillips. Id. at 525. Further, the type of force used here is
different from that in Phillips. In Phillips, the officers fired multiple rounds of an SL6 baton
launcher, which the court observed was “reserved for ‘resistive, assaultive, or otherwise
dangerous behavior,’” and caused injuries including a six-inch wound that required thirty
stitches. Id. at 518, 524, 527. Here, on the other hand, Hayes deployed a taser only once, with
no subsequent escalation of force. See Monday v. Oullette, 118 F.3d 1099, 1105 (6th Cir. 1997)
(officer’s use of pepper spray to get plaintiff onto stretcher and to hospital was not excessive
where officer “used only a single burst of pepper spray to get plaintiff on the stretcher, unlike the
allegation in [a separate case] that the plaintiff was unnecessarily sprayed a second time after he
was subdued”). Further, although both tasers and SL6 baton launchers are considered “lesslethal” weapons, an SL6 baton launcher, unlike a taser, is on the “high end of the spectrum of
less-lethal force.” Phillips, 678 F.3d at 521–22; see also Abbott, 705 F.3d at 726 (“[W]e have

23

also acknowledged that the use of a taser, like the use of pepper spray or pain-compliance
techniques, generally does not constitute as much force as so-called impact weapons, such as
baton launchers and beanbag projectiles. The use of a taser, therefore, falls somewhere in the
middle of the nonlethal-force spectrum.” (citations omitted)). Nonetheless, even under
defendants’ version, whether the degree of force used to address Pantaleo’s actions was
reasonable remains at issue, particularly considering that Pantaleo was in a confined space with
little chance of escaping from two officers and two security guards and was being seized for his
own protection and those of others around him, not because he had committed a felony. Cf.
Fitzgerald v. Santoro, 707 F.3d 725, 734–35 (7th Cir. 2013) (where plaintiff was subject to civil
seizure for self-protection, use of “minimally forceful techniques designed to subdue noncompliant subjects and prevent escalation” that did not involve “attempt[s] to completely disable
her” were objectively reasonable); Phillips, 678 F.3d at 525 (noting that plaintiff had “nowhere
. . . to go” and thus any threat she presented “had already been substantially contained,” and
collecting cases where only minimal use of force was appropriate because plaintiff was passively
resisting arrest); Cyrus, 624 F.3d at 863 (summary judgment inappropriate where court could
conclude that use of force was excessive in light of fact that deceased had at most committed
misdemeanor, was not exhibiting violent behavior, and officer was aware of deceased’s mental
illness).
The same result would be reached analyzing the use of the taser under the Fourteenth
Amendment. Borrowing from Eighth Amendment jurisprudence, to determine whether the use
of force was excessive, the court must consider whether it “was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.” Lewis v. Downey,

24

581 F.3d 467, 475 (7th Cir. 2009) (quoting Hudson v. McMillian, 503 U.S.1, 7, 112 S. Ct. 995,
117 L. Ed. 2d 156 (1992)). “In many circumstances–often when faced with aggression,
disruption, or physical threat–compelling compliance with an order is a valid penological
justification for use of a taser.” Id. at 477. But determining whether force was applied in good
faith or to cause harm turns on a variety of factors, similar to those considered under the Fourth
Amendment analysis, “including the need for force, the amount of force used, the threat
reasonably perceived by the officer, efforts made to temper the severity of the force, and the
extent of the injury caused by the force.” Id. Because the parties dispute the events leading to
Hayes’s deployment of the taser and the facts must be viewed in the light most favorable to
Pantaleo, there is a genuine issue of fact regarding Hayes’s mental state. See id. at 477–78
(where plaintiff claimed he was lying on his bed in a weak and sluggish state when he was
ordered to get up one time without warning that failure to comply would result in taser use,
summary judgment was precluded); Bailey v. County of Kittson, No. Civ. 07-1939 ADM/RLE,
2008 WL 906354, at *22 (D. Minn. Feb. 19, 2008) (whether use of taser on pretrial detainee held
in secure room at hospital who was refusing to take oral medicine was reasonable under
Fourteenth Amendment analysis was question of fact for jury), adopted in part and overruled in
part, 2008 WL 906349, at *16 (D. Minn. 2008) (agreeing that an issue of fact remained as to
whether use of taser was objectively reasonable). But see Forrest v. Prine, 620 F.3d 739, 745
(7th Cir. 2010) (use of taser was permissible where plaintiff “posed an immediate threat to safety

25

and order within the jail”). Thus, under either analysis, defendants are not entitled to summary
judgment with respect to Hayes’s deployment of the taser.15
C.

Qualified Immunity

Hayes and Maraviglia also argue that they are entitled to qualified immunity for the
deployment of the taser because the law regarding the use of a taser to incapacitate a suspect
who is mentally ill and resisting was insufficiently clear at the time to put them on notice that the
taser use was unlawful. Hayes and Maraviglia are entitled to qualified immunity if “their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Estate of Escobedo v. Bender, 600 F.3d 770, 778 (7th
Cir. 2010) (quoting Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007)). The qualified
immunity inquiry has two prongs: (1) whether, taking the facts in the light most favorable to
Pantaleo, the officers’ conduct violated a constitutional right; and (2) whether the constitutional
right was clearly established at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). The court need not consider the two prongs in
sequence. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).
The parties focus their arguments on the second prong, whether the use of the taser in this
situation was clearly established on November 11, 2007. Pantaleo has the burden of establishing
that the right was clearly established. Escobedo, 600 F.3d at 779. Pantaleo “can demonstrate

15

Maraviglia also argues that he cannot be held liable for excessive force because he did
not deploy the taser. As already discussed, Pantaleo has established a question of fact as to
whether the parties conspired to deprive Pantaleo of his constitutional rights. Further, there is
evidence that Hayes and Maraviglia agreed to the use of the taser, supporting Pantaleo’s
allegations that at least these two officers conspired to use excessive force against him. Thus,
the court need not address Pantaleo’s newfound contention that Maraviglia failed to intervene.
See Griffin, 356 F.3d at 830.
26

that the right was clearly established by presenting a closely analogous case that establishes that
the Defendants’ conduct was unconstitutional or by presenting evidence that the Defendant’s
conduct was so patently violative of the constitutional right that reasonable officials would know
without guidance from a court.” Id. at 780. The court looks to controlling precedent from the
Supreme Court and the Seventh Circuit and may look at cases from other circuits in the absence
of controlling precedent. See Pearson, 555 U.S. at 244 (on qualified immunity defense,
defendants may rely on cases from other circuits even though own circuit had not yet addressed
the issue); Escobedo, 600 F.3d at 782 (“In the absence of controlling precedent from our circuit,
courts look to other circuits to ascertain whether there was such a clear trend in the case law that
the recognition of the right by a controlling precedent was merely a matter of time.”). A case
need not be directly on point; “the salient question here is not whether there is a prior case
identical to [Pantaleo’s] current claim but whether the state of the law at the relevant time gave
the Defendants fair warning that their treatment of [Pantaleo] was unconstitutional.” Escobedo,
600 F.3d at 782.
Hayes and Maraviglia argue that, at the time of the incident, there was a “dearth” of
authority regarding the use of a taser to incapacitate a non-compliant individual. Only if
defendants’ version of events is accepted would this be the case, however. See Abbott, 705 F.3d
at 727–28 (“Courts generally hold that the use of a taser against an actively resisting suspect
either does not violate clearly established law or is constitutionally reasonable.” (collecting
cases)). But the court takes the disputed facts in the light most favorable to Pantaleo in deciding
whether Hayes and Maraviglia are entitled to qualified immunity. Nanda v. Moss, 412 F.3d 836,
841 (7th Cir. 2005). Viewed in this light, there is a question as to whether Pantaleo was non-

27

compliant and resisting. The distinction makes a difference to the qualified immunity analysis.
See, e.g., Brooks v. City of Aurora, Ill., 653 F.3d 478, 486 (7th Cir. 2011) (“Courts often have
held that it is reasonable to use pepper spray against a suspect who is physically resisting arrest;
conversely, when the use of pepper spray is gratuitous or unprovoked, courts often have
considered it excessive.” (footnotes omitted)); Hagans v. Franklin County Sheriff’s Office,
695 F.3d 505, 509–10 (6th Cir. 2012) (“A suspect’s active resistance also marks the line between
reasonable and unreasonable tasing in other circuits.” (collecting cases)). “Prior to 2007, it was
well-established in this circuit that police officers could not use significant force on nonresisting
or passively resisting suspects.” Abbott, 705 F.3d at 732; see also id. at 733 (“[S]ince 2007,
many of our sister circuits have found the use of a taser against nonviolent, nonresisting
misdemeanants to violate clearly established law, the absence of taser case law
notwithstanding.”); Shannon v. Koehler, 616 F.3d 855, 864 (8th Cir. 2010) (“Long before
September 13, 2006, this court (among others) had announced that the use of force against a
suspect who was not threatening and not resisting may be unlawful.”).
Hayes and Maraviglia argue, however, that they are entitled to qualified immunity even
assuming Pantaleo ceased resisting, relying on Brooks. But in Brooks, it was undisputed that the
plaintiff had backpedaled away from the officer after being informed that he was under arrest,
had escaped the officer’s attempts to grab him, and had thrown out his arms in what could be
construed as a defensive posture. Brooks, 653 F.3d at 484. Here, however, there is a dispute
regarding whether Pantaleo was resisting, and Pantaleo’s disputed actions cannot be “construed
to belie” his professed willingness to submit. See id. at 486. Because there are conflicting
versions of events, “this is one of the unusual cases in which a definitive decision on the

28

[qualified immunity] issue cannot be had without further factual development.” Abbott, 705
F.3d at 733–34; Lewis, 581 F.3d at 479 (denying qualified immunity where, under plaintiff’s
version of events, “no reasonable officer would think that he would be justified in shooting
Lewis with a taser gun”).
D.

Administration of Psychotropic Medication

Pantaleo also complains that he was administered psychotropic medication against his
will, in violation of his liberty interest to be free from unwarranted restraints. “Freedom of
bodily movement is a substantive right derived from the due process clause, and it is breached
when [an involuntarily committed individual] is bodily restrained except pursuant to an
appropriate exercise of judgment by a health professional.” Wells v. Franzen, 777 F.2d 1258,
1261 (7th Cir. 1985). “Due process requires that the nature and duration of physical restraint
bear some reasonable relation to the purpose for which it is prescribed.” Wells, 777 F.2d at
1262. This right also encompasses “a significant liberty interest in avoiding the unwanted
administration of antipsychotic drugs under the Due Process Clause of the Fourteenth
Amendment.” Washington v. Harper, 494 U.S. 210, 221–22, 110 S. Ct. 1028, 108 L. Ed. 2d 178
(1990). In the context of a prison environment, the Due Process Clause permits the State to treat
a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the
inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.”
Id. at 227. A similar standard applies here. “[L]iability may be imposed only when the decision
by the professional is such a substantial departure from accepted professional judgment, practice
or standards as to demonstrate that the person responsible actually did not base the decision on
such a judgment.” Youngberg, 457 U.S. at 323; Estate of Cole by Pardue v. Fromm, 94 F.3d

29

254, 262 (7th Cir. 1996) (“The right to be free from bodily restraint is breached when an
individual is restrained unless the decision was made ‘pursuant to an appropriate exercise of
judgment by a health professional.’” (quoting Wells, 777 F.2d at 1261)). Some courts have
alternatively framed the analysis as whether the decision to administer the injection was made
“maliciously and sadistically to cause harm.” See Bomprezzi v. Kaprivnikar, No. 11-CV-03344REB-MEH, 2012 WL 7763089, at *6 (D. Colo. Aug. 3, 2012) (proper inquiry for allegations of
excessive force based on mandated injections administered against prisoner’s will is “whether
the allegations demonstrate the injections were applied maliciously and sadistically to cause
harm”); Yeldon v. Sawyer, No. 9:10-CV-266, 2012 WL 1995839, at *4–5 (N.D.N.Y. Apr. 26,
2012) (same), report & recommendation adopted, 2012 WL 1987134 (N.D.N.Y. June 4, 2012).
Here, defendants argue that it is undisputed that a medical emergency existed
necessitating the administration of psychotropic medication. Martinez testified to this effect, and
his determination is presumptively valid. See Youngberg, 457 U.S. at 323. Pantaleo’s own
testimony that he was calm and compliant is insufficient to create an issue of fact as to the need
for the injection.16 See Walker v. Shansky, 28 F.3d 666, 672 (7th Cir. 1994) (plaintiff was not
qualified to testify as to his medical condition and his self-serving statements regarding his
mental health were insufficient to withstand defendants’ motion for summary judgment as to

16

Defendants argue that Pantaleo must proffer a medical expert to establish the standard of care
applicable to this case. As the court has previously found, Pantaleo need not provide expert medical
evidence in his prima facie case to establish his excessive force claims. Dkt. No. 179 at 2; cf. Fleming v.
Livingston County, Ill., 2009 WL 596054, at *2 (C.D. Ill. 2009) (medical malpractice claims under state
law and claims under the Fourteenth Amendment for denial of medical care have different liability
standards and thus section 2-622 affidavit of medical expert not required for § 1983 claim). But see
Aruanno v. Glazman, 316 F. App’x 194, 195 (3d Cir. 2009) (plaintiff could not survive motion for
summary judgment on claim under Eighth Amendment or due process analysis for prescription of
antipsychotic drugs “absent expert testimony that would dispute the defendants’ assertions that the
treatment he received was medically necessary”).

30

whether administration of Haldol constituted excessive force); Stoltie v. Soares, No. 2:07-CV1479MCEJFMPC, 2009 WL 1513990, at *11 (E.D. Cal. May 27, 2009) (plaintiff’s statement
that no emergency existed because he was not exhibiting behavior that entailed a danger to
himself or others “was insufficient to rebut the psychiatrist’s medical findings that plaintiff was a
danger to himself”). But Pantaleo, through his expert Dr. Junig, has also presented evidence that
other alternatives should have been explored before administering psychotropic medication.
This calls into question Martinez’s conclusion that the injection was medically necessary. Cf.
Lewis v. Carroll, No. Civ.A. 06-778-GMS, 2011 WL 182844, at *9 n.8, 12 (D. Del. Jan. 20,
2011) (where undisputed medical evidence indicated that plaintiff was danger to himself and
others, reasonable jury could not find that force used to help in administration of injection was
excessive). Thus, summary judgment will be denied on Pantaleo’s claim that defendants
violated his rights by administering Geodon against his will.
E.

Use of Restraints

Pantaleo also appears to claim that the use of the four-point restraints was improper and
violated his right to be free from restraint. The legal framework is the same as for the
administration of the psychotropic medication. Martinez has testified that these restraints were
necessary due to the danger Pantaleo posed to himself and to others. The court’s analysis must
also take into account the fact that “[f]orce is reasonable only when exercised in proportion to
the threat posed, and as the threat changes, so too should the degree of force.” Cyrus, 624 F.3d
at 863. Here, at the time the restraints were applied, Pantaleo had already been subdued by the
use of the taser and the psychotropic medication. Nonetheless, Pantaleo does not offer any
evidence that would call into question Martinez’s (and defendants’ experts’) conclusion that

31

application of the restraints was necessary. In fact, his arguments essentially support a finding
that restraints should have been applied in place of administering the psychotropic medication, as
this would have been a less restrictive alternative. On the facts before the court, then, summary
judgment is warranted on Pantaleo’s excessive force claim related to the application of the fourpoint restraints.
III.

Monell Claims against the Village
The Village may not be held vicariously liable for the actions of its employees. See, e.g.,

Montano v. City of Chicago, 535 F.3d 558, 570 (7th Cir. 2008). But it may be held liable under
§ 1983 when “execution of a government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.”
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Liability may be based on (1) an express policy that, when enforced, causes a constitutional
deprivation; (2) a widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to constitute a custom or usage with the
force of law; or (3) a constitutional injury caused by a person with final policymaking authority.
Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734–35 (7th Cir.1994) (citing Monell, 436 U.S.
at 690–91).
Pantaleo seeks to hold the Village liable for false arrest, alleging that the “Hinsdale
Police Department has a custom and practice consistent with the Defendant Officer’s [sic]
actions.” First Am. Compl. ¶ 47. He also alleges that the Village is liable for excessive force, as
the “Hinsdale Police Department maintains a custom and practice consistent with the actions of
Police Officers Hayes and Maraviglia.” Id. ¶ 61. But Pantaleo has provided no support to

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establish that the Village maintains any custom or practice to support his false arrest or excessive
force claims against it. Because Pantaleo apparently concedes that he cannot establish these
claims against the Village by failing to address the Village’s argument, summary judgment will
be granted in the Village’s favor on Pantaleo’s § 1983 claims. See Palmer v. Marion County,
327 F.3d 588, 598 (7th Cir. 2003) (Monell claim failed because the “record [was] devoid of
evidence showing a pattern, custom, or policy of an unconstitutional nature”); De v. City of
Chicago, 912 F. Supp. 2d 709, 733–34 (N.D. Ill. 2012) (failure to oppose motion for summary
judgment with evidence and legal argument constitutes abandonment of claim, collecting cases).
IV.

Tort Immunity from State Law Claims
Hayes and Maraviglia argue that they are entitled to immunity from Pantaleo’s state law

claims. The Illinois Tort Immunity Act (“ITIA”) provides that public employees like Hayes and
Maraviglia are not liable for their acts or omissions in the execution or enforcement of any law
unless those acts constitute willful and wanton conduct. 745 Ill. Comp. Stat. 10/2-202. Willful
and wanton conduct is “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 Ill. Comp. Stat. 10/1-210. In the case of Pantaleo’s state
law malicious prosecution claim, the ITIA provides immunity to Hayes and Maraviglia unless
they acted maliciously and without probable cause. 745 Ill. Comp. Stat. 10/2-208.
As already discussed with respect to Pantaleo’s false arrest claim, Hayes and Maraviglia
had probable cause to charge Pantaleo with aggravated assault and resisting a peace officer.
Thus, the ITIA provides them with immunity from the malicious prosecution claim, 745 Ill.
Comp. Stat. 10/2-208, and summary judgment will be entered in their favor on this claim. See

33

Holland v. City of Chicago, 643 F.3d 248, 255 (7th Cir. 2011) (presence of probable cause
establishes immunity).17
Neither side properly develops an argument as to whether Hayes and Maraviglia’s
conduct was willful and wanton. Hayes and Maraviglia only argue that “the facts do not
constitute any willful or wanton actions.” Dkt. No. 220 at 21; see also Dkt. No. 259 at 20.
Pantaleo, on the other hand, only submits “that the physical actions of Officers Hayes and
Maraviglia” demonstrate “an utter indifference to or conscious disregard for the safety of”
Pantaleo. Dkt. No. 237 at 17. “[P]erfunctory and undeveloped arguments . . . are waived.”
United States v. Hook, 471 F.3d 766, 775 (7th Cir. 2006) (quoting United States v. Lanzotti,
205 F.3d 951, 957 (7th Cir. 2000)). Even if the argument is considered, however, there remain
disputed facts preventing the application of the ITIA to the remainder of Pantaleo’s state law
claims. Whether conduct is willful and wanton is ordinarily a question of fact reserved for the

17

This same result would be reached by examining the substantive elements of the malicious
prosecution claim. See Holland, 643 F.3d at 255 (noting that Section 2-208 “essentially mirrors and
codifies the malicious prosecution standard”). In order to establish this claim, Pantaleo must show “(1)
the commencement or continuance of an original criminal or civil judicial proceeding by the defendant;
(2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such
proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.” Id. at 254 (7th Cir.
2011) (quoting Swick v. Liautaud, 662 N.E.2d 1238, 1242, 169 Ill. 2d 504, 215 Ill. Dec. 98 (1996)). A
finding of probable cause for the crime charged is an absolute bar to a claim for malicious prosecution
stemming from that charge. See Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 681–82 (7th Cir. 2007).
The pertinent time for making the probable cause determination for purposes of a malicious prosecution
claim is the time when the charging document is filed as opposed to the time of arrest. See Holland, 643
F.3d at 254. Under Illinois law, criminal charges may be commenced via an indictment, information, or
criminal complaint. Logan v. Caterpillar, 246 F.3d 912, 922 (7th Cir. 2001) (citing 725 Ill. Comp. Stat.
5/111–1). Pantaleo cites only to the allegations of his complaint to support his claim, but he cannot rely
on these on summary judgment. See Mosley v. City of Chicago, 614 F.3d 391, 399–400 (7th Cir. 2010)
(pointing to allegations in complaint to support claim is “not the proper standard for summary judgment”
for “[a]t this stage, [plaintiff] is required to offer support for those allegations”). The court has already
explained that probable cause existed for Pantaleo’s arrest and Pantaleo fails to cite any evidence tending
to show that those circumstances somehow changed between the time of the events in question and the
signing of the criminal complaint. Accordingly, Pantaleo’s malicious prosecution claim fails on the
substantive merits as well.

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jury but may be determined as a matter of law “if the evidence so overwhelmingly favors one
party that a contrary determination cannot stand.” Bielema ex rel. Bielema v. River Bend Cmty.
Sch. Dist. No. 2, 990 N.E.2d 1287, 1289, 2013 IL App (3d) 120808 (2013) (quoting Brown v.
Chicago Park Dist., 581 N.E.2d 355, 358, 220 Ill. App. 3d 940, 163 Ill. Dec. 404 (1991)). Here,
the officers were aware that Pantaleo was refusing the medication. Yet they nonetheless aided in
its administration. Moreover, there is a dispute as to whether their conduct in using the taser was
excessive. Under Pantaleo’s version of events, they could be found to have engaged in willful
and wanton conduct. See Lewis v. Tazewell County, No. 10-1268, 2013 WL 869949, at *7 (C.D.
Ill. Mar. 7, 2013) (under plaintiffs’ version of facts, jury must determine whether defendant
engaged in actions not protected by ITIA). Thus, the court will proceed to analyze the remaining
state law claims on their merits.
V.

Assault and Battery18
Pantaleo alleges that defendants conspired together to restrain him and administer

Geodon against his will. Initially, as discussed in connection with Pantaleo’s excessive force
claim, there is a question of fact as to whether a conspiracy existed, and thus no defendant will
be dismissed solely because he or she did not personally take an action that Pantaleo claims
constituted assault or battery.
Under Illinois law, an assault is committed when a person engages in conduct without
lawful authority that places another person in reasonable apprehension of receiving a battery.
720 Ill. Comp. Stat. 5/12-1. A battery occurs when a person intentionally or knowingly without
legal justification and by any means causes bodily harm to another or makes physical contact of

18

Pitts does not seek summary judgment on Pantaleo’s assault and battery claim.

35

an insulting or provoking nature with another. 720 Ill. Comp. Stat. 5/12-3. An officer “will be
immune from liability for the claim of assault and battery if it is deemed he used reasonable (and
not excessive) force at the time, necessary to prevent public or private injury greater than what
may reasonably result from the Police Officer’s own conduct towards the arrestee.” Bruce v.
Perry, No. 03-CV-558-DRH, 2006 WL 1777760, at *7 (S.D. Ill. June 23, 2006); 720 Ill. Comp.
Stat. 5/7-5; see also Stewart v. Harrah’s Illinois Corp., No. 98 C 5550, 2000 WL 988193, at *18
(N.D. Ill. July 18, 2000) (“Although Section 7-5 is part of the state criminal code, it has been
applied in cases where police officers are faced with civil liability for battery in effecting
arrests.”). As discussed in relation to Pantaleo’s excessive force claim, a dispute remains as to
whether the use of the taser was objectively reasonable, warranting denial of summary judgment
with respect to the use of the taser.19 See Brucato v. Dahl, No. 02 C 9401, 2006 WL 644470, at
*5 (N.D. Ill. Mar. 10, 2006) (“When a reasonable jury could find that the force used was
unreasonable, however, a claim for battery will survive summary judgment.”).
Pantaleo also argues that the administration of Geodon without his consent constituted a
medical battery. To recover under the tort of medical battery, Pantaleo must establish “that there
was no consent to the medical treatment performed, that the treatment was against [his] will, or
that the treatment substantially varied from the consent granted.” In re Estate of Allen,
848 N.E.2d 202, 210, 365 Ill. App. 3d 378, 302 Ill. Dec. 202 (2006). “Under such
circumstances, a battery has occurred because the person administering the medical care
intentionally touched the person of another without authorization.” Id. at 211. Both common

19

As the officers were not making an arrest at the time, there is also a question of whether the
defense provided by section 7-5 even applies here. The analysis would remain the same, however, if they
were acting pursuant to other lawful authority, as the officers argue.

36

law and statutory exceptions to the need for consent exist.20 Defendants seek to take advantage
of the exception provided by section 2-107 of the Mental Health Code. The court has previously
determined that this is an affirmative defense for which defendants, and not Pantaleo, bear the
burden of proof. Dkt. No. 179 at 2. Thus, the fact that Pantaleo has not put forth affirmative
evidence in his prima facie case with respect to this defense is of no matter. Id.
“[A] person subject to involuntary admission may refuse medical treatment under section
2-107 while hospitalized unless (1) under the parens patriae doctrine he has been adjudicated
incompetent in a separate proceeding or (2) if an emergency situation exists where the individual
poses an immediate threat of physical harm to himself or others.” Matter of Orr, 531 N.E.2d 64,
73, 176 Ill. App. 3d 498, 125 Ill. Dec. 885 (1988). If an emergency situation exists,
“psychotropic medications may be forcibly administered as a last resort, only after alternative
treatment plans have been considered” and found unavailable. Id.; see also 405 Ill. Comp. Stat.
5/2-107(a) (adult recipient of services has the right to refuse medication “unless such services
are necessary to prevent the recipient from causing serious and imminent physical harm to the
recipient or others and no less restrictive alternative is available”).
“The existence of a medical emergency involves the assessment of the patient’s medical
condition and, therefore, must be established by expert testimony.” Allen, 848 N.E.2d at 212.
Although Allen considered the common law emergency exception, the need for expert testimony

20

Pantaleo quotes passages from Sekerez v. Rush University Medical Center, 954 N.E.2d 383,
394–95, 2011 Il App (1st) 090889, 352 Ill. Dec. 523 (2011), to set forth the elements of a medical battery
claim. Pantaleo emphasizes statements from Sekerez that “where a patient expressly refused medical
treatment, or the patient’s instructions specifically preclude the treatment rendered, treatment contrary to
the patient’s will constitutes a battery even when an emergency exists.” Id. at 395. But despite this
statement, the court in Sekerez recognized that the emergency exception could defeat plaintiff’s medical
battery claim.

37

to establish an emergency under section 2-107 would be no different. In Allen, the court
concluded that plaintiff’s failure to present expert medical testimony that contradicted the
defendant’s testimony that a medical emergency existed meant that defendant’s testimony should
be taken as true. Id. As in Allen, here, Dr. Martinez testified that a medical emergency existed
necessitating the use of Geodon to protect Pantaleo’s safety and the safety of others.
Defendants’ experts agree. Pantaleo has not proffered any expert medical testimony to dispute
Martinez’s assessment of an emergency. Thus, the court must take Martinez’s testimony as true
in determining whether summary judgment is appropriate. See Allen, 848 N.E.2d at 212
(“Generally, an averment made in an affidavit or deposition in support of a motion for summary
judgment that is not controverted by a counteraffidavit or counterdeposition will be taken as true,
notwithstanding the opposing party’s contrary allegations in his complaint or answer that merely
purport to establish bona fide issues of fact.”). But see Threlkeld v. White Castle Sys., Inc.,
201 F. Supp. 2d 834, 845 (N.D. Ill. 2002) (jury could conclude that doctor violated sections 5/2102 and 2-107(a) of Mental Health Code by ordering administration of Ativan to plaintiff where
plaintiff testified she was calm except for when she was being restrained and testified she
suffered emotional distress as result of experience at hospital, despite doctor’s testimony that
Ativan was necessary and that it did her no harm);
But not only must defendants establish that a medical emergency existed, they must also
demonstrate that there is no dispute regarding whether less restrictive alternatives were available.
Martinez has testified that no less restrictive alternatives were available. Pitts testified, however,
that keeping Pantaleo in the room in restraints would have kept him from harming himself and
others. See Defs.’ Joint Ex. G 225:7–20. Moreover, Pantaleo’s expert, Dr. Junig, testified that

38

other less restrictive options, such as de-escalation and seclusion, were available and should have
been considered.
Defendants argue that Dr. Junig’s opinions are irrelevant as he is not of the same “school
of medicine” as Martinez. For an expert physician’s testimony to be admissible, two
requirements must be met: (1) “the physician must be a licensed member of the school of
medicine about which he proposes to express an opinion,” and (2) “the expert witness must show
that he is familiar with the methods, procedures, and treatments ordinarily observed by other
physicians, in either the defendant physician’s community or a similar community.” Purtill v.
Hess, 489 N.E.2d 867, 872–73, 111 Ill. 2d 229, 95 Ill. Dec. 305 (1986). It then lies within the
court’s discretion to determine whether the witness is qualified to express his opinion on the
standard of care. Id. Here, both Dr. Junig and Martinez are licensed physicians. Although Dr.
Junig is a psychiatrist while Martinez is an emergency room physician, this does not
automatically disqualify Dr. Junig from providing expert testimony on the availability of less
restrictive alternatives in this case. Contrary to defendants’ arguments, “[w]hether the expert is
qualified to testify is not dependent on whether he is a member of the same specialty or
subspecialty as the defendant but, rather whether the allegations of negligence concern matters
within his knowledge and observation.” Jones v. O’Young, 607 N.E.2d 224, 226, 154 Ill. 2d 39,
180 Ill. Dec. 330 (1992); see also Alm v. Loyola Univ. Med. Ctr., 866 N.E.2d 1243, 1248, 373
Ill. App. 3d 1, (2007). Defendants do not challenge Dr. Junig’s familiarity with psychiatric
patients or the various alternatives available when dealing with a patient experiencing a
psychotic break. Dr. Junig has not worked in a general hospital emergency department nor does
he have hospital privileges at this time, but he testified that the Milwaukee County Behavioral

39

Health Center, where he performed his residency, “was essentially an emergency room.” Defs.’
Joint Ex. 26:14–15. The court finds that Dr. Junig has sufficient familiarity with the standards of
care required in treating patients like Pantaleo and thus may opine on the medical issues here.
Dr. Junig’s and Martinez’s conflicting testimony regarding the availability of less restrictive
alternatives, in addition to Pitts’s testimony that placing Pantaleo in restraints would have kept
him from harming himself and others, creates a genuine issue of fact as to whether section 2-107
protects defendants from liability for medical battery. Cf. Banks v. Mills, 2013 WL 1438104, at
*8 (N.D. Ill. Apr. 9, 2013) (discussing whether plaintiff’s due process rights were violated when
doctor decided to forcibly medicate plaintiff after learning of violent episodes, noting that
deliberate indifference claim could not proceed where plaintiff “has offered no evidence of any
alternative treatment plan that Dr. Ahmed should have pursued, let alone that the chosen course
amounted to deliberate indifference”).
Finally, Pantaleo argues in a cursory fashion that the application of the four-point
restraints constitutes a battery. As discussed in connection with his excessive force claim, he has
failed to set forth evidence to create a dispute with respect to whether the use of restraints was
unreasonable or unjustified. Thus, summary judgment will be granted to defendants on
Pantaleo’s assault and battery claim with respect to the application of the four-point restraints.
VI.

IIED
Pantaleo also seeks to hold all individual defendants liable for IIED. Under Illinois law,

to establish a claim for IIED, Pantaleo must demonstrate that “(1) defendants’ conduct was
extreme and outrageous; (2) defendants either intended to inflict severe emotional distress or
knew that there was a high probability that its conduct would do so; and (3) defendants’ conduct

40

actually caused severe emotional distress.” Lifton v. Bd. of Educ. of City of Chicago, 416 F.3d
571, 579 (7th Cir. 2005) (quoting Thomas v. Fuerst, 803 N.E.2d 619, 625, 345 Ill. App. 3d 929,
281 Ill. Dec. 215 (2004)). “‘Severe emotional distress’ is distress so severe that no reasonable
person could be expected to endure it.” Id. “Distress such as humiliation and worry is not
sufficient to give rise to a cause of action in Illinois.” Knowles v. United Healthcare Servs. Inc.,
No. 05 C 1613, 2006 WL 1430212, at *10 (N.D. Ill. May 19, 2006). Nor are claims that the
conduct left a plaintiff “very upset, very nervous, and very depressed,” where the plaintiff did not
require medical treatment. Knysak v. Shelter Life Ins. Co., 652 N.E.2d 832, 839–40, 273 Ill. App.
3d 360, 210 Ill. Dec. 30 (1995); see also Adams v. Sussman & Hertzberg, Ltd., 684 N.E.2d 935,
942, 292 Ill. App. 3d 30, 225 Ill. Dec. 944 (1997) (denying relief where there was “no evidence to
show the severity of the distress [plaintiff] suffered, i.e., that he was hospitalized, sought and
received psychiatric treatment, or even was prescribed medication”).
Because the court has found a dispute with respect to whether the use of the taser was
objectively unreasonable and whether administration of the psychotropic medication was
appropriate, there is also a question as to whether this conduct was extreme and outrageous. See
Puch v. Village of Glenwood, Ill., No. 05 C 1114, 2012 WL 2502688, at *7 (N.D. Ill. June 27,
2012) (denying summary judgment on IIED claim where there were disputed facts regarding
excessive force claim). Regardless, Pantaleo sets forth no evidence to support a finding that he
suffered severe emotional distress as a result of the use of the taser or administration of the
psychotropic medication.21 Without any support for the assertion of severe emotional distress,

21

Pantaleo does reference recurrent mental health issues in 2010 but admits that these arose in
connection with his father’s tragic death.

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Pantaleo’s IIED claim fails. See Puch v. Village of Glenwood, Ill., No. 05 C 1114, 2008 WL
4442610, at *9 (N.D. Ill. 2008) (party opposing summary judgment has “an obligation to ‘identify
with particularity the evidence that precludes summary judgment’” (quoting Richards, 55 F.3d at
251)).
CONCLUSION AND ORDER
For the foregoing reasons, defendants’ motions for summary judgment [#218, 221, 224,
227] are granted in part and denied in part. Summary judgment is granted in favor of Hayes,
Maraviglia, and the Village on Counts I and III, in favor of the Village on Count II, and in favor
of all defendants on Count V. Summary judgment is also granted in favor of all defendants on
Counts II and IV with respect to application of the four-point restraints. This case will be called
for a status hearing on October 15, 2013 at 8:30 a.m. The parties are directed to engage in a
sincere effort to settle this case and to report their progress at the status hearing.

Dated: September 20, 2013

Enter: ___________________________________
JOAN HUMPHREY LEFKOW
United States District Judge

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