Clark et al v. City of Chicago et al

Filing 230

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 2/6/2013: Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MATTHEW CLARK, et al.,

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Plaintiffs,
v.
CITY OF CHICAGO, et al.,
Defendants.

No. 10 C 1803

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Officer Brian Postrelko’s
(Postrelko), Defendant Officer Michael Torres’ (Torres), and Defendant Officer
Nelson Crespo’s (Crespo) (collectively referred to as “Individual Moving
Defendants”) motion for summary judgment. For the reasons stated below, the
motion for summary judgment is granted.

BACKGROUND
On February 6, 2010, Plaintiff Matthew Clark (Clark) and Plaintiff Gregory
Malandrucco (Malandrucco) allegedly stopped at a restaurant named Arturo’s Tacos
(Arturo’s) to eat. After Plaintiffs finished their meals, Malandrucco allegedly stood
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up to leave and encountered two men who were allegedly male plainclothes police
officers and a female who was allegedly a plainclothes police officer (Plainclothes
Officers), who had been dining at Arturo’s. One of the male Plainclothes Officers
allegedly shoved Malandrucco because Malandrucco had unintentionally obstructed
the Plainclothes Officers’ path to the cashier or exit. Malandrucco allegedly told the
officer that he was putting on his coat and would get out of the way shortly. When
Plaintiffs exited Arturo’s, the Plainclothes Officers were allegedly waiting in the
parking lot.
Plaintiffs allege that the Plainclothes Officers physically assaulted Plaintiffs in
the parking lot. Clark alleges that he was told by one of the Plainclothes Officers
that they were policemen. Uniformed police officers (Uniformed Officers) then
allegedly arrived on the scene and Malandrucco alleges that one of the Uniformed
Officers assaulted him. The Uniformed Officers also allegedly escorted the
Plainclothes Officers to their car and allowed them to leave the scene without getting
their names or otherwise questioning the Plainclothes Officers. In addition, the
Uniformed Officers allegedly told Plaintiffs to go home and then left the scene
without calling for any medical assistance for Plaintiffs.
Plaintiffs include in their amended complaint claims brought pursuant to 42
U.S.C. § 1983 (Section 1983) alleging excessive force, Section 1983 unlawful

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seizure claims, Section 1983 failure to provide medical aid claims, Section 1983
failure to intervene claims, a Section 1983 Monell claim, assault and battery claims,
intentional infliction of emotional distress claims, Section 1983 conspiracy claims,
state law conspiracy claims, and an indemnity claim. Defendants moved to dismiss
the instant action, and the court denied the motion in part and granted the motion in
part, dismissing the excessive force claims brought by Clark.

LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A
“genuine issue” of material fact in the context of a motion for summary judgment is
not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue
of material fact exists when “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In
ruling on a motion for summary judgment, the court must consider the record as a

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whole, in the light most favorable to the non-moving party, and draw all reasonable
inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v.
Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). When there are cross
motions for summary judgment, the court should “construe the evidence and all
reasonable inferences in favor of the party against whom the motion under
consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400
F.3d 523, 526-27 (7th Cir. 2005).

DISCUSSION
Individual Moving Defendants move for summary judgment on the claims
brought against them.

I. Failure to Provide Medical Assistance Claims
Individual Moving Defendants argue that they are entitled to summary
judgment on the failure to provide medical assistance claims because Plaintiffs were
never in police custody. Generally, the government “has no affirmative
constitutional duty to provide medical services to its citizens.” Brownell v. Figel,
950 F.2d 1285, 1290 n.4 (7th Cir. 1991). However, a duty to provide medical care

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can arise: (1) when a person is in government custody, or (2) when “state action []
creates, or substantially contributes to the creation of, a danger or renders citizens
more vulnerable to a danger than they otherwise would have been.” Id. (citing
DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189 (1989)); Reed
v. Gardner, 986 F.2d 1122, 1126-27 (7th Cir. 1993); Paine v. Cason, 678 F.3d 500,
506 (7th Cir. 2012)(stating that “[p]olice must provide care for the serious medical
conditions of persons in custody”); Estate of Stevens v. City of Green Bay, 105 F.3d
1169, 1174 (7th Cir. 1997)(explaining that a duty to provide medical assistance could
arise in “custodial settings in which the state has limited the individual’s ability to
care for himself, and . . . when the state affirmatively places the individual in a
position of danger the individual would not have otherwise faced”). Under the
second alternative, which is referred to as the state-created-danger-theory, the
plaintiff must establish that the state actors “knowingly and affirmatively create[d] a
dangerous situation for the public and fail[ed] to take reasonable preventative steps
to diffuse that danger.” Reed, 986 F.2d at 1126-27.

A. Waiver of State-Created-Danger-Theory
Individual Moving Defendants first argue that Plaintiffs waived the right to
pursue a state-created-danger-theory, based on a certain statement in Plaintiffs’

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response to Defendants’ motion to dismiss. Plaintiffs argue that they did not waive
the theory in response to the motion to dismiss. Regardless, the court made no
finding that such a theory was waived by Plaintiffs at the motion to dismiss stage. In
fact, in denying Defendants’ motion to dismiss on the failure to provide medical
assistance claim, the court specifically indicated that Plaintiffs could pursue a statecreated-danger-theory, and that at the summary judgment stage, Plaintiffs would
need to point to sufficient evidence to support such a theory. (MO 11/17/10, 6).
Although Defendants now contend that Plaintiffs waived their ability to pursue the
theory, Defendants never sought reconsideration of the court’s prior ruling on that
point. Thus, Plaintiffs did not waive their right to pursue the state-created-dangertheory.

B. State-Created-Danger-Theory
Individual Moving Defendants argue that Plaintiffs have not pointed to
sufficient evidence to support a claim under the state-created-danger-theory. In
regard to Torres and Crespo, Plaintiffs admit that neither Torres or Crespo ever
touched either Plaintiff. (R ID SF Par. 34). However, Plaintiffs argue that Torres
and Crespo observed Malandrucco getting beaten and that Torres and Crespo should
have understood that Malandrucco was seriously injured and needed medical

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attention. (ID SAF Par. 21, 22, 25). To proceed under the state-created-dangertheory, a plaintiff must show more than that a state actor observed someone being
injured. Reed, 986 F.2d at 1126-27.
Plaintiffs also claim that they asked officers, including Torres and Crespo, to
call for medical assistance. (ID SAF Par. 30). However, the evidence does not
reflect that the Individual Moving Defendants took part in placing Plaintiffs in
danger. Plaintiffs have failed to point to sufficient evidence that would indicate that
Torres or Crespo created a danger to Plaintiffs, or substantially contributed to the
creation of a danger, or made Plaintiffs more vulnerable to a danger than they
otherwise would have been.
In regard to Postrelko, Plaintiffs contend that Postrelko struck Malandrucco,
injuring him, and then left him to suffer without seeking medical assistance for him.
(ID SAF Par. 23, 30). The evidence presented at this summary judgment phase does
not support Plaintiffs’ contentions. Even if the court accepts Plaintiffs’ version of
events regarding Postrelko’s alleged use of excessive force, the undisputed facts
show that neither of Plaintiffs were left in a condition that rendered them unable to
seek medical assistance on their own. The court notes that, in denying Defendants’
motion to dismiss, the court stated that based on the allegations in the complaint at
the motion to dismiss phase, it was plausible that Plaintiffs were unable to seek

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medical attention on their own. (MO 11/17/10, 7). At this summary judgment stage
of the proceedings, the evidence clearly shows otherwise.
Plaintiffs admit that after the altercation at the scene had ended, Plaintiffs
called 911 themselves and never requested an ambulance or medical attention, and
Plaintiffs admit that they ultimately left the scene on their own and drove to Clark’s
home, rather than to a hospital. (R ID SF Par. 40-43, 48). Plaintiffs have not
presented evidence that would enable a reasonable trier of fact to conclude that
Plaintiffs were unable to request medical attention or were prevented by Individual
Moving Defendants from doing so. This case is distinguishable from Regalado v.
City of Chicago, 40 F.Supp.2d 1009 (N.D. Ill. 1999), which is cited by Plaintiffs.
(Ans. ID SJ 20). In Regaldo, the police beat the plaintiff and he was left by police
lying unconscious. Id. at 1011-12. The undisputed facts in this case show that
before Individual Moving Defendants left Plaintiffs, Plaintiffs were conscious and
able to call 911 and request medical assistance for themselves, and that Plaintiffs
never requested such assistance during their 911 calls. In fact, Plaintiffs chose to go
home, rather than seek emergency medical assistance at a hospital.
Plaintiffs contend that the delay in treatment for Plaintiffs’ injuries caused
additional pain and suffering. (R ID SF Par. 52). It is undisputed that Plaintiffs
agreed to go to the hospital only after police came to Clark’s residence and suggested

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going to the hospital. (R ID SF Par. 47-48). Thus, the undisputed facts show that
any delay in treatment resulted from Plaintiffs’ own decision not to seek immediate
medical attention. In denying Defendants’ motion to dismiss, the court noted that at
the summary judgment stage, Plaintiffs would need to point to sufficient evidence to
show that the Individual Moving Defendants’ actions substantially contributed to an
increased danger to Plaintiffs. (11/17/10 MO 6). Plaintiffs have failed to do so and
have not shown that a reasonable trier of fact could rule in their favor under the statecreated-danger-theory.

C. Custody of Plaintiffs
Defendants also argue that Plaintiffs have not shown that they were ever in
custody for the purposes of their failure to provide medical assistance claims.
Plaintiffs contend that they did not feel free to leave the scene while Individual
Moving Defendants were present. (ID SAF Par. 32). However, Plaintiffs admit that
they were never handcuffed, were never placed in a squad car, and were ultimately
told to leave the scene. (R ID SF Par. 36, 38). In addition, there is no evidence
showing that Plaintiffs had any reason to believe that they were going to be arrested
or charged with any crime. In support of their contention that Plaintiffs were in
custody, Plaintiffs cite, for example, Estate of Stevens v. City of Green Bay, 105 F.3d

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1169 (7th Cir. 1997), (Ans. ID SJ 25), in which the Seventh Circuit concluded that
the plaintiff was not in custody such that a duty to provide medical services arose.
Id. at 1176. In Stevens, the Court noted that the plaintiff was not handcuffed, was not
given Miranda warnings, and had no reason to believe that he was going to be
charged with a crime. Id. Plaintiffs also cite Dorsey v. St. Joseph County Jail
Officials, 98 F.3d 1527 (7th Cir. 1996). (Ans. ID SJ 25). However, unlike in the
instant action, the plaintiff in Dorsey had been arrested and was in a detention facility
when he was allegedly harmed by jail guards. Id at 1528-29. Based on the
undisputed facts, no reasonable trier of fact could conclude other than that Plaintiffs
were not in custody and that there was no duty by Individual Moving Defendants to
provide medical assistance to Plaintiffs. Therefore, Individual Moving Defendants’
motion for summary judgment on the failure to provide medical assistance claims is
granted.

II. Excessive Force Claim
Individual Moving Defendants argue that Plaintiffs have not pointed to
sufficient evidence to support the excessive force claim against Postrelko. For an
excessive force claim, the court must employ the Fourth Amendment objective
reasonableness standard, under which a plaintiff must show that “the officer’s actions

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are objectively reasonable in light of the facts and under the circumstances
confronting the officer at the time of the incident, without regard to the underlying
motive or intent of the officer, and without the benefit of hindsight.” Common v.
City of Chicago, 661 F.3d 940, 943 (7th Cir. 2011). Individual Moving Defendants
argue that Postrelko’s use of force on Malandrucco, as seen in the videos of the
incident (Videos), was reasonable under the circumstances. In the Videos, Postrelko
is seen turning Malandrucco onto his back and momentarily restraining
Malandrucco. Plaintiffs do not dispute that when Individual Moving Defendants
pulled up in the squad car, they saw an unknown while male (Unknown Male)
kneeling next to Malandrucco, holding him to the ground. (R ID SF Par. 25).
Individual Moving Defendants contend that the Unknown Male told the officers that
if he let go of Malandrucco, Malandrucco would attack him and start fighting again.
(ID SF Par. 27). Plaintiffs dispute that fact, pointing to Malandrucco’s deposition,
but the cited portion of Malandrucco’s deposition fails to contradict Individual
Moving Defendants’ position. (R ID SF Par. 27). At his deposition, Malandrucco
recites his recollection of what happened when Postrelko approached Malandrucco
and restrained him. (Mal. Dep. 233-25). Malandrucco did not testify as to whether
the Unknown Male spoke to Postrelko, or testify that the Unknown Male said
something different than what Individual Moving Defendants claim. (Mal. Dep.

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233-235). Pursuant to Local Rule 56.1, a denial is improper if the denial is not
accompanied by specific references to admissible evidence or at least evidence that
represents admissible evidence. Dent v. Bestfoods, 2003 WL 22025008, at *1 n.1
(N.D. Ill. 2003). Thus, pursuant to Local Rule 56.1, is it deemed undisputed that the
Unknown Male told the officers that if the Unknown Male let go of Malandrucco,
Malandrucco would attack him and start fighting again. (ID SF Par. 27); see also
Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009)(stating that “[b]ecause
of the important function local rules like Rule 56.1 serve in organizing the evidence
and identifying disputed facts, [the Court has] consistently upheld the district court’s
discretion to require strict compliance with those rules”)(internal quotations
omitted)(quoting FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 633 (7th Cir.
2005)). Plaintiffs also admit that after Postrelko had been told that Malandrucco was
a threat and the Unknown Male backed away, Malandrucco began to try and stand.
(Mal. Dep. 234). Under such circumstances, no reasonable trier of fact could
conclude other than that the momentary use of force by Postrelko to restrain
Malandrucco until Postrelko verified that Malandrucco was not a threat to the safety
of others, was a reasonable use of force. The Videos clearly show that after a
momentary restraint on Malandrucco, Postrelko ceased all use of force and backed
away from Malandrucco. Although Plaintiffs assert that it was the Unknown Male,

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as opposed to Malandrucco, who had engaged in an assault, there is no evidence that
shows that Individual Moving Defendants were present at the scene to view the
assault.
Plaintiffs argue that it is for the trier of fact to determine whether Individual
Moving Defendants saw the altercation occurring as they pulled up in the squad car.
Even when viewing the evidence in the light most favorable to Plaintiffs, the Videos
indicate that there was an altercation, and the Individual Moving Defendants arrived
on the scene at the last few seconds of the altercation as they pulled up. There is no
evidence showing that at that moment Individual Moving Defendants had
information concerning who started the altercation or the extent of the altercation.
All Individual Moving Defendants knew was that there had been some type of a
confrontation and that one person was being restrained on the ground. Whether
Plaintiffs were the victims in the altercation and whether Malandrucco actually posed
a threat to others is not relevant in considering what Postrelko understood in the first
few seconds when he arrived on the scene. Police officers are often confronted with
situations where they need to make instantaneous decisions to maintain public safety.
The evidence presented through the Videos and other evidence show that Postrelko
did exactly that to momentarily prevent a further altercation in order to maintain
public safety. Postrelko’s actions must be judged according to a reasonable officer

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standard and not according to arguments in hindsight. No reasonable trier of fact
could view the Videos and conclude other than that Postrelko used a minimal amount
of force to momentarily restrain an individual who was purportedly a threat and who
was attempting to stand.
Plaintiffs claim that Postrelko approached Malandrucco and “proceeded to
force Mr. Malandrucco’s face into the pavement by kneeing Malandrucco in his
back,” and then “proceeded to strike blows, including punching Malandrucco in his
face as he lay face down on the pavement.” (ID SAF Par. 23). However, a review of
the Videos fails to show any such conduct by Postrelko during his momentary
restraint on Malandrucco. The Videos do not show Postrelko kneeing Malandrucco
or striking blows to Malandrucco, or punching Malandrucco in his face as Plaintiffs
have claimed. The Videos at most show Postrelko restraining Malandrucco
momentarily as Malandrucco attempted to get up. Therefore, based on the above,
Individual Moving Defendants’ motion for summary judgment on the excessive force
claim brought against Postrelko is granted.

III. Failure to Intervene Claims
Individual Moving Defendants argue that Plaintiffs have not pointed to
sufficient evidence to support the failure to intervene claims brought against Torres

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and Crespo. For a Section 1983 failure to intervene claim, a plaintiff must show that
“[a]n officer who [w]as present and fail[ed] to intervene to prevent other law
enforcement officers from infringing the constitutional rights of citizens . . . had
reason to know: (1) that excessive force was being used, (2) that a citizen has been
unjustifiably arrested, or (3) that any constitutional violation has been committed by
a law enforcement official; and [that] the officer had a realistic opportunity to
intervene to prevent the harm from occurring.” Yang v. Hardin, 37 F.3d 282, 285
(7th Cir. 1994).
It is undisputed that Individual Moving Defendants did not arrive on the scene
until after the altercation between Plaintiffs and Plainclothes Officers had ended. (R
SF Par. 22-37); (Mal. Dep. 232-34). Thus, there was clearly no opportunity for
Individual Moving Defendants to intervene in that altercation. As to the force used
by Postrelko when momentarily restraining Malandrucco, as indicated above, no
reasonable trier of fact could conclude that the use of force was unreasonable.
Therefore, as to such use of force, no failure to intervene claim can stand against
Individual Moving Defendants. Therefore, Individual Moving Defendants’ motion
for summary judgment on the failure to intervene claims is granted.

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IV. Unreasonable Seizure Claims
Individual Moving Defendants argue that Plaintiffs have not pointed to
sufficient evidence to support the unreasonable seizure claims. A seizure in the
context of the Fourth Amendment occurs when “a reasonable person in those
circumstances would not feel free to leave.” United States v. Clements, 522 F.3d
790, 794 (7th Cir. 2008). Individual Moving Defendants argue that Plaintiffs were
never in custody, and therefore the evidence does support an unreasonable seizure
claim. The Videos indicate that when Postrelko arrived on the scene he momentarily
restrained Malandrucco after the Unknown Male told Postrelko that Malandrucco
would attack him if not restrained. After that momentary restraint, Plaintiffs contend
that they did not feel free to leave the scene. (ID SAF Par. 32). However, Plaintiffs
have failed to point to objective evidence to support such a belief. Plaintiffs admit
that they were never handcuffed, were never placed in a squad car, and were
ultimately told to leave the scene. (R ID SF Par. 36, 38). In addition, there is no
evidence showing that Plaintiffs had any reason to believe that they were going to be
arrested or charged with any crime. Thus, Plaintiffs have not pointed to sufficient
evidence to show that a reasonable trier of fact could conclude that Plaintiffs were in
custody. Therefore, Individual Moving Defendants’ motion for summary judgment
on the unreasonable seizure claims is granted.

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V. Conspiracy Claims
Individual Moving Defendants argue that Plaintiffs have failed to point to
sufficient evidence to proceed to trial on any underlying constitutional claim, and
that Plaintiffs cannot therefore proceed with a conspiracy claim. As indicated above,
Plaintiffs have failed to point to sufficient evidence for a reasonable trier of fact to
find for Plaintiffs on any constitutional claims brought against Individual Moving
Defendants. See, e.g, Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008)(stating that
“conspiracy is not an independent basis of liability in § 1983 actions”). Therefore,
Individual Moving Defendants’ motion for summary judgment on the conspiracy
claims is granted.

VI. Qualified Immunity
Individual Moving Defendants move for summary judgment based on
qualified immunity. Governmental actors, such as law enforcement officers,
“performing discretionary functions enjoy qualified immunity and are ‘shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
In re Escobedo v. Bender, 600 F.3d 770, 778 (7th Cir. 2010)(quoting in part Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982), and explaining the significance of Pearson

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v. Callahan, 129 S.Ct. 808 (2009)). To assess whether an officer is shielded from
liability by qualified immunity, a court must make two inquiries: “(1) has the
plaintiff alleged facts that, if proved, would establish a constitutional violation; and
(2) would a reasonable officer have known his actions were unconstitutional in light
of clearly established law?” Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir.
2010)(indicating that inquiries do not have to be made in a set sequence).
In the instant action, when faced with the circumstances presented in this case,
where an officer arrives at a scene where an individual is holding another on the
ground, claiming that the individual being held will attack him if not restrained, a
reasonable officer would believe that a momentary restraint of the individual on the
ground would be appropriate and reasonable and would not violate the individual’s
constitutional rights. Therefore, Individual Moving Defendants have shown that they
are entitled to summary judgment based on qualified immunity.

VII. State Law Claims
Individual Moving Defendants argue that Plaintiffs have not pointed to
sufficient evidence to support the state law claims. The Illinois Tort Immunity Act
protects governmental officers “from liability for actions committed ‘in the execution
or enforcement of any law unless such act or omission constitutes willful and wanton

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conduct.’” Chelios v. Heavener, 520 F.3d 678, 692-93 (7th Cir. 2008)(quoting in
part 745 ILCS 10/2-202). In the instant action, Plaintiffs have failed to point to
evidence that would enable a reasonable trier of fact to conclude that Individual
Moving Defendants’ conduct was willful and wanton. Therefore, Individual Moving
Defendants’ motion for summary judgment on the state law claims is granted.

CONCLUSION
Based on the foregoing analysis Individual Moving Defendants’ motion for
summary judgment is granted.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: February 6, 2013

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