Rebolar et al v. City Of Chicago et al

Filing 97

MEMORANDUM Opinion and Order. Signed by the Honorable Jeffrey T. Gilbert on 9/21/2012. (ep, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID REBOLAR, a minor, by and
through his father and legal guardian,
ALEJANDRO REBOLAR,
Plaintiff,
vs.
CITY OF CHICAGO, ILLINOIS, and
CHICAGO POLICE OFFICER
JOHNSON, Star No. 8265, CHICAGO
POLICE OFFICER STACK, Star 2339,
CHICAGO POLICE OFFICER
HAWKINS, Star No. 13471,
Defendants.

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No. 10 C 5787
Jeffrey T. Gilbert
Magistrate Judge

MEMORANDUM OPINION AND ORDER
Plaintiff David Rebolar, a minor, by and through his father and legal guardian Alejandro
Rebolar, has sued the City of Chicago and Chicago Police Officers Jeremiah Johnson, Tim
Hawkins and Tom Stack for violations of federal and state laws claiming, among other things,
that the defendant officers arrested him without probable cause and used excessive force in
placing him under arrest.1 All of plaintiff’s claims arise out of events that occurred on
September 13, 2009 when plaintiff was taken into custody for at most ten to fifteen minutes as a
suspect in an auto burglary but immediately was released after the defendant officers
investigated and determined that plaintiff had not committed any crime.

1

Plaintiff also sued Chicago Police Officers Criscione and Fleischhacker in his First Amended
Complaint, but plaintiff since has dismissed those officers as named defendants in this case. See
[Dkt.##29, 36].

Plaintiff’s nine-count complaint asserts federal claims under 42 U.S.C. § 1983 for false
arrest, unlawful search, excessive force, failure to intervene, and conspiracy and state law claims
for battery, false imprisonment, intentional infliction of emotional distress, and respondeat
superior and indemnification. This matter is before the Court on defendants’ motion for
summary judgment [Dkt.#70]. For the following reasons, the motion is granted as to all of
plaintiff’s claims.2
I. BACKGROUND
A.

Standard of Review
Summary judgment is proper when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P 56(c). A genuine issue of material fact exists if “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). When resolving a motion for summary judgment, the
Court construes all facts favorably to the non-moving party and makes reasonable inferences in
that party’s favor. Eaton v. Ind. Dep’t of Corr., 657 F.3d 551, 552 (7th Cir. 2011).
Further, as the United States Supreme Court has recognized, “[w]hen the moving party
has carried its burden under Rule 56(c), its opponent must do more than simply show that there
is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

2

The parties consented to have a United States Magistrate Judge conduct any and all further
proceedings in this case, including trial and entry of final judgment pursuant to 28 U.S.C. § 636(c). See
[Dkt.##76,78].

2

trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)
(internal citations and footnote omitted), quoting FED. R. CIV. P 56(c). The Court’s role “is not
to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the
truth of the matter, but instead to determine whether there is a genuine issue of triable fact.”
National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).
“[T]he mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson, 477 U.S. at 247-48. “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Id. at 248.
B.

Northern District of Illinois Local Rule 56.1
The relevant background facts are derived from the parties’ submissions pursuant to

Local Rule 56.1, which governs summary judgment briefing in the Northern District of Illinois,
and assists the Court in “organizing the evidence, identifying undisputed facts, and
demonstrating precisely how each side propose[s] to prove a disputed fact with admissible
evidence.” Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000); see
also NORTHERN DISTRICT OF ILLINOIS LOCAL RULE (“L.R.”) 56.1. “For litigants appearing in the
Northern District of Illinois, the Rule 56.1 statement is a critical, and required, component of a
litigant’s response to a motion for summary judgment. The purpose of the local rule is to make
the summary judgment process less burdensome on district courts, by requiring the parties to nail
down the relevant facts and the way they propose to support them.” Sojika v. Bovis Lend Lease,
Inc., 686 F.3d 394, 398 (7th Cir. 2012).

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Local Rule 56.1(a)(3) requires the moving party to provide a “statement of material facts
as to which the moving party contends there is no genuine issue and that entitle the moving party
to a judgment as a matter of law.” L.R.56.1(a)(3). The opposing party then must file “a concise
response to the movant’s statement,” in which the nonmoving party must “admit or deny each
factual statement proffered by the defendant . . ., and designate with specificity and particularity
those material facts believed to establish a genuine dispute for trial.” Greer v. Board of Educ. of
the City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001); L.R.56.1(b)(3)(A). The nonmoving party
also may file a statement of additional facts that require the denial of summary judgment.
L.R.56.1(b)(3)(B). The moving party may respond to each additional fact. L.R.56.1(a) “All
material facts set forth in the statement filed pursuant to section (b)(3)(B) will be deemed
admitted unless controverted by the [response] statement of the moving party.” Id.; see also
Dimmitt & Owens Fin., Inc. v. Superior Sports Prods., Inc., 196 F. Supp. 2d 731, 737 (N.D. Ill.
2002).
C.

Plaintiff Failed To Comply With Local Rule 56.1
The Seventh Circuit repeatedly has held that a district court is within its discretion to

strictly enforce compliance with its local rules regarding summary judgment motions. See
Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 359 (7th Cir. 2009); Bordelon, 233 F.3d at
527. Plaintiff failed to comply with the requirements of Local Rule 56.1, and those failures have
consequences as discussed herein.
In some instances, plaintiff’s Local Rule 56.1(b)(3) responses contain significant
problems. The following example illustrates a typical problem. Paragraph 13 in defendants’
Local Rule 56.1(a)(3) statement of facts states: “At or around that time, a helicopter unit from

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the City of Chicago dispatched over the radio to all patrol officers that a group of people were
breaking into vehicles, directing the patrolling officers first to Tripp street, then East.” Defs’
L.R.56.1(a)(3) Statement of Facts (hereinafter referred to as “Defs’ SOF”) [Dkt.#71], at ¶13.
Plaintiff responds without admitting or denying directly many of the facts put forth by
defendants. Instead, plaintiff states as follows: “Plaintiff admits that Officer Johnson states in
his deposition testimony that sometime on September 13, 2009, he received a call from a
helicopter unit that a group of kids were breaking into vehicles. Plaintiff further admits that
according to Officer Johnson’s testimony, he did not know who was in the helicopter unit and he
received no description as to age, race, and gender of the suspects or types of vehicles. Plaintiff
admits Officer Johnson regarded the location as ‘tricky’ and he did not remember the exact
location the unit specified, but that they ran south on Tripp and could not find any kids. Plaintiff
further admits that according to the Affidavit of Officer Tim Hawkins, he received a report over a
Chicago Police Helicopter of an auto burglary in progress and the initial location that was
provided by the helicopter was later modified.” Pl’s L.R.56.1(b)(3) Response to Defendants’
Statement of Facts (hereinafter referred to as “Pl’s Resp. to Defs’ SOF”) [Dkt.#80], at ¶13
(internal citations omitted and emphasis added).
Local Rule 56.1 gives the opposing party the opportunity to either admit or deny each
statement of fact put forward by the movant and to provide record support for either assertion.
In this case, it often is impossible to tell from plaintiff’s Local Rule 56.1(b)(3)(A) submission the
facts plaintiff admits, denies or believes are in dispute. Plaintiff sometimes does unequivocally
admit or deny a fact. In many other instances, however, plaintiff’s responses do not specifically
admit or dispute the statements of fact set forth by defendants. Instead of admitting or denying

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defendants’ asserted facts, plaintiff repeatedly limits his responses to an admission or statement
as what the underlying testimony of a witness may be rather than admitting or denying the
substance of the fact itself. Other times, plaintiff admits only that a witness has testified to a
fact. See e.g., Pl’s Resp. to Defs’ SOF [Dkt.#86], at ¶13 (“Plaintiff admits that Officer Johnson
states in his deposition testimony that sometime on September 13, 2009, he received a call from
a helicopter unit . . . .”).
Plaintiff’s ambiguous responses in this vein are insufficient to create a material issue of
fact, or to allow the Court to determine whether a fact truly is disputed, and therefore must be
taken as admissions under Local Rule 56.1(b)(3)(C) that defendants’ proposed facts are true.
Local Rule 56.1 statements that evade or improperly deny or otherwise respond to facts asserted
by the opposing party defeat the point of Local Rule 56.1, which is to identify precisely which
facts are actually in dispute. Bordelon, 233 F.3d at 528 (holding that the requirements for
responses under Local Rule 56.1 are “not satisfied by evasive denials that do not fairly meet the
substance of the material facts asserted”). Plaintiff’s failure to properly admit or deny certain
statements of facts in defendants’ statement of material facts, however, does not result in an
automatic grant of summary judgment in defendants’ favor. The Court still must evaluate all
facts in the light most favorable to plaintiff, the nonmoving party. O’Donnell v. City of Chicago,
2003 WL 22339285, at *1 (N.D. Ill. 2003).
In addition, at oral argument, counsel for plaintiff referred to and cited for the first time
testimony from the deposition of Tactical Flight Officer Anthony Bansley, a witness deposed in
this case. None of these references can be found in plaintiff’s Local Rule 56.1(b)(3) Response to
Defendants’ Statement Facts. In addition, the argument raised by plaintiff’s counsel during oral

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argument was not raised in his legal memorandum of law in opposition to defendants’ motion for
summary judgment. To the extent that plaintiff has attempted to introduce additional facts at
oral argument not previously cited in plaintiff's Local Rule 56.1 statement of facts nor discussed
in his legal brief, these facts have not been subject to the opposing side’s scrutiny nor properly
presented to the Court for review.
As the Seventh Circuit has stressed, facts are to be set forth in Local Rule 56.1
statements, and it is not the role of the Court to parse the parties’ exhibits to construct the facts.
Judges are not “like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991). It simply is not the Court’s job to sift through the record to find
evidence to support or refute a party’s claim. Davis v. Carter, 452 F.3d 686, 692 (7th Cir. 2006).
Plaintiff had all the facts available to him at the time that he filed his Local Rule 56.1(b)(3)(B)
statement in response to defendants’ statement of facts, and plaintiff will not be permitted to
inject additional facts into the record after the motions have been fully briefed. See Cutler v.
Quality Terminal Services, LLC, 2012 WL 669052, at *2 (N.D. Ill. 2012). Therefore, the Court
need not consider those new facts in ruling on defendants’ motion for summary judgment. See
Quality Oil Inc. v. Kelley Partners, Inc., 657 F.3d 609, 614-15 (7th Cir. 2011) (citation omitted)
(holding that arguments raised for the first time at oral argument and not raised in briefs are
waived).3
Finally, defendants did not submit any response to plaintiff’s Local Rule 56.1(b)(3)(B)
statement of additional facts. Therefore, plaintiff’s additional facts are deemed admitted to the

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While the Court need not consider the testimony of Officer Bansley for these reasons, even if
the Court were inclined to do so, it disagrees with Plaintiff’s characterization of Officer Bansley’s
testimony and its significance as explained infra at Section III.A.

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extent they are supported by cites to the record. L.R.56.1(a); Dimmett & Owens Fin., Inc., 196 F.
Supp. 2d at 737. This Court, however, previously granted defendants’ motion to strike plaintiff’s
Exhibit A, which was submitted in conjunction with plaintiff’s response to defendants’ statement
of facts, and also denied plaintiff’s motion for leave to amend plaintiff’s response to defendants’
statement of facts. See [Dkt.#95]. Therefore, any of plaintiff’s additional statements of fact that
cite to Exhibit A as sole support for that response are stricken.
II. RELEVANT FACTS
The events in question occurred on September 13, 2009 in the vicinity of the Mexican
Independence Day Parade in Chicago. Pl’s Resp. to Defs’ SOF [Dkt.#80], at ¶3. Defendant
Officers Johnson, Hawkins and Stack were assigned to a special detail to police the area and
provide security during the parade. Id. at ¶¶4, 5. Tactical Flight Officer Anthony Bansley was
assigned to a Chicago police department helicopter unit to oversee the Mexican Independence
Day Parade from the sky for, inter alia, possible burglaries. Id. at 14. Plaintiff David Rebolar
was twelve years old on September 16, 2009.4 Id. at ¶2.
On the day of the parade, plaintiff attended church and then, after the church service,
went to his father’s car, which was parked in the parking lot next to the church, to change clothes
so he could play soccer with his friends. Pl’s Resp. to Defs’ SOF [Dkt.#80], at ¶¶6, 8. Plaintiff
admits that his father’s gray Chevy Traverse was parked in the parking spot closest to the alley.
Id. at ¶8. Around that same time, the Chicago police department helicopter unit issued a radio
dispatch to all patrol officers that a group of kids was breaking into vehicles. Id. at ¶¶13, 14.
4

Officer Johnson testified that when he first encountered plaintiff he thought plaintiff was at least
16 years old. Def’s SOF [Dkt.#71], at ¶2. Plaintiff’s father admits that he has been told that his son looks
old for his age, but plaintiff’s father also states that when plaintiff was twelve he still looked like a kid.
Pl’s Resp. to Defs’ SOF [Dkt.#80], at ¶2.

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Officer Bansley communicated with the patrol officers on the ground to direct them to the
vehicle in question. Id. at ¶16. From the helicopter, Officer Bansley confirmed that Officer
Hawkins was responding to the specific vehicle Officer Bansley had identified as a possible
subject of an auto burglary.5 Id.
Officer Hawkins observed plaintiff exiting the back passenger door of the SUV identified
by Officer Bansley, pointed his gun at plaintiff and requested confirmation from the police
officer in the helicopter unit that plaintiff was a suspect for the burglary in progress. Pl’s Resp. to
Defs’ SOF [Dkt.#80], at ¶¶12, 15, 17. Plaintiff admits that he overheard someone asking on the
radio, “Is this him in the white shirt?” and that plaintiff was in fact wearing a white shirt. Id. at
¶22. At his deposition, plaintiff stated he did not hear a response to the question. Id. However,
plaintiff’s father testified at his deposition that plaintiff told his father he heard someone on the
radio say “That’s the guy.” Id. at ¶23. In responding to the radio call about possible auto
burglaries in progress, Officers Hawkins and Johnson believed plaintiff was identified by the
helicopter unit as one of the suspects. Id. at ¶¶16, 17.
With their guns pointed at plaintiff, Officers Hawkins and Johnson yelled at plaintiff to
show his hands on at least two occasions, but plaintiff did not raise his hands. Pl’s Resp. to Defs’
SOF [Dkt.#80], at ¶¶20, 21. Neither Officer Johnson nor Officer Hawkins could see plaintiff’s
hands. Id. at ¶21. According to plaintiff, another uniformed officer then came from the alley,
walking fast or running toward him with a black stick raised in the air, grabbed plaintiff by his
arms and pushed him against plastic garbage cans. Id. at ¶24. Officer Johnson then grabbed

5

See Defs’ SOF Ex. F [Dkt.#84], at 41:1-5 (“Q: Did you describe any of the vehicles that they
were trying to get into? A: When the officers got on the scene, I pointed out the specific vehicle in
question, the exact vehicle.”).

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plaintiff’s hands and placed handcuffs on him. Id. at ¶25. Plaintiff says that he had the keys to
his father’s car in his hands when the officers’ guns were pointed at him but that he dropped the
keys while he was being handcuffed. Id. at ¶¶26, 37(c). There is testimony from another
witness, Ezequiel Zunun, however, that plaintiff had keys in his hand while he was being
handcuffed and then plaintiff threw them to the ground after he was handcuffed. Pl’s Statement
of Add’l Facts [Dkt.#80], at ¶¶9, 10.
Once plaintiff was placed in handcuffs, it is undisputed that the officers no longer pointed
their guns at him. Pl’s Resp. to Defs’ SOF [Dkt.#80], at ¶27. Plaintiff states that Officer Johnson
bumped into plaintiff while he was being handcuffed which caused plaintiff to trip, and plaintiff
and Officer Johnson to bump into some plastic garbage cans close by, but that Officer Johnson
held plaintiff so that he would not fall. Id. at ¶¶28, 29. Plaintiff says that he was pushed against
the plastic garbage cans when his hands were placed in handcuffs but that the defendant officers
did not touch any other part of his body other than grabbing his arms to handcuff them behind
his back. Id. at ¶¶30, 41.
Once plaintiff was handcuffed, Officers Johnson and Hawkins asked him questions but
plaintiff did not respond to the questions. Pl’s Resp. to Defs’ SOF [Dkt.#80], at ¶¶31, 32.
Plaintiff does not remember the officers asking him any questions before or during the time he
was being handcuffed. Id. at ¶32. Plaintiff states that he did ask the officers about what he did
at least twice and that he told the officers it was his father’s car but no one responded to him. Id.
at ¶¶32, 37(a). Plaintiff also states that he told the officers that the keys were behind the garbage
cans. Id. at ¶37(b).

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Plaintiff was handcuffed and detained for further investigation because of the helicopter
unit’s report of auto burglaries in progress and because he was observed exiting the car identified
by Officer Bansley as the subject of a possible auto burglary. Pl’s Resp. to Defs’ SOF [Dkt.#80],
at ¶¶16, 33. Plaintiff was not searched by Officer Johnson or Officer Hawkins, but Officer
Johnson did do a pat down on the outside of plaintiff’s clothing while he was in handcuffs. Id. at
¶40. Plaintiff does not remember the officers going through his pockets or checking the pockets
though his pants. Id. at ¶39. The defendant officers never entered or searched the SUV. Id. at
¶40. Plaintiff never was charged or formally arrested, and plaintiff admits that no one told him
he was under arrest. Id. at ¶33. Plaintiff never was placed in a police car or taken to the police
station. Id. at ¶38.
At his deposition, plaintiff testified that he had pain from the handcuffs, but he admitted
that he never told the officers that the handcuffs were too tight. Pl’s Resp. to Defs’ SOF
[Dkt.#80], at ¶42. Plaintiff states that he had red marks on his wrists but that he did not show
them to anyone, including the defendant officers or his father, and that he never saw any doctors
because of the pain. Id. at ¶45. However, plaintiff’s father said he saw red marks on his son’s
wrists and took him to Lawndale Clinic for the pain. Id. Plaintiff also testified at his deposition
that he was scared and crying because a gun was pointed at him and he thought he was going to
be hit with a stick, but plaintiff does not remember seeing any counselors after this incident. Id.
at ¶46. However, plaintiff’s father testified at his deposition that he took plaintiff to Lawndale
Clinic for the nightmares he was having about the incident. Id.; see also Pl’s Additional Facts
[Dkt.#80], at ¶50. Plaintiff has not submitted any medical records or bills for the wrist pain he
allegedly sustained. Id. at ¶58.

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Plaintiff’s father testified at his deposition that fifteen minutes after he had given his son
the keys to the car, he heard from fellow church members that his son was handcuffed with a gun
to his head. Pl’s Resp. to Defs’ SOF [Dkt.#80], at ¶49. Plaintiff’s father testified that he saw his
son on the ground with an officer’s knee on his back although plaintiff denies he was on the
ground in that position. Id. at ¶50. When plaintiff’s father arrived at the scene, he told the
officers that the vehicle in question was his car. Id. at ¶53. After confirming that the keys
belonged to the vehicle in question and that the vehicle belonged to plaintiff’s father, the officers
took the handcuffs off of plaintiff within two minutes and released plaintiff to his father. Id. at
¶53. Plaintiff told his father that he was in handcuffs for about five minutes. Id. at ¶54.
Plaintiff’s father was told by his friends on the scene that plaintiff was handcuffed for about ten
minutes. Id.
Plaintiff’s father testified that he never saw his son pushed or fall to the ground, nor did
he see any officer hit his son, but that his son told him that he was pushed against the garbage
cans. Pl’s Resp. to Defs’ SOF [Dkt.#80], at ¶56. Plaintiff’s father states that, in his opinion, his
son did not tell the truth about being pushed and falling to the ground and never being on the
ground at his deposition because he was scared of the police. Id. at ¶57.
There also is testimony from three other witnesses, including Manuel Viramontes, Marco
Salgado and Ezequiel Zunun. Manual Viramontes testified that he walked up to the scene only
after plaintiff had been placed in handcuffs and that plaintiff was standing up and crying. Pl’s
Resp. to Defs’ SOF [Dkt.#80], at ¶60. Viramontes testified that he did not see the officers touch,
push, hit, or point a gun at plaintiff. Id. at ¶62. Marcus Salgado testified that he saw plaintiff in
handcuffs and that he was shaking, but Saldago does not remember seeing a gun pointed at

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plaintiff. Id. at ¶63. Eziquiel Zunun testified that he saw plaintiff running away from the
officers who were telling plaintiff not to run, to stop and put his hands up. Id. at ¶67. Zunun
testified that he did not see the officers have any physical contact with plaintiff other than
pointing a gun at him and grabbing his hands to put handcuffs on him and searching him. Id. at
¶69.
III. ANALYSIS
Title 42 U.S.C. § 1983 “creates a federal cause of action for ‘the deprivation, under color
of [state] law, of a citizen’s rights, privileges, or immunities secured by the Constitution and
laws of the United States.’” Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997), quoting
Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). Section 1983 does not create substantive rights;
rather, “it is a means for vindicating federal rights conferred elsewhere.” Id. In Section 1983
cases, “the plaintiff bears the burden of proof on the constitutional deprivation that underlies the
claim, and thus must come forth with sufficient evidence to create genuine issues of material fact
to avoid summary judgment.” McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010); see
also Celotex v. Catrett, 477 U.S. 317, 322 (1986) (“[Federal Rule of Civil Procedure 56]
mandates the entry of summary judgment ... against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.”).
In their motion for summary judgment, defendants argue that the defendant officers are
entitled to summary judgment because: (1) the defendant officers had probable cause to arrest,
search and detain plaintiff; (2) the defendant officers did not use excessive force when they
detained plaintiff; and (3) the defendant officers are entitled to qualified immunity. Defs’ Joint

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Motion and Memorandum of Law in Support of their Motion for Summary Judgment
(hereinafter “Defs’ Motion”) [Dkt.#70], at 4-11.
A.

Defendant Officers Had Probable Cause To Detain, Arrest And Search Plaintiff As
A Matter Of Law
Plaintiff has sued Chicago Police Officers Johnson, Hawkins and Stack for false arrest

and unreasonable search and seizure pursuant to 42 U.S.C. § 1983, alleging that the defendant
officers seized, arrested and searched him without a warrant and probable cause in violation of
his Fourth and Fourteenth Amendment rights. First Am. Compl. [Dkt.#27], at ¶¶15, 20. Plaintiff
argues that there are disputed facts as to whether the defendant officers had probable cause to
arrest plaintiff, and therefore, the issue should go to the jury. Pl’s Memorandum of Law in
Opposition to Defs’ Motion for Summary Judgment (hereinafter “Pl’s Opposition”) [Dkt.#79], at
3-5.
To succeed on a claim under Section 1983 against the officers, a plaintiff must show that
a person acting under color of state law deprived him of a right, privilege, or immunity secured
either by the Constitution or federal law. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922,
929 (1982). Defendants do not dispute that they were acting under color of state law at the time
they detained plaintiff. Rather, they argue that they had probable cause to arrest plaintiff or, in
the alternative, that they are entitled to qualified immunity.
As a threshold matter, the parties disagree as to whether plaintiff was, in fact, arrested.
Pl’s Opposition [Dkt.#79], at 4-5. Plaintiff argues that he was arrested. In his response to
defendants’ Local Rule 56.1 statement of facts, however, plaintiff admits that no one ever told
him he was under arrest. See Pl’s Resp. to Defs’ SOF [Dkt.#80], at ¶33. Defendants argue that

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plaintiff was not arrested but rather was handcuffed and detained for a short period of time and
then released after the defendant officers further investigated the situation.
The Court highly doubts that plaintiff was arrested in this case. The Seventh Circuit has
recognized that even “using handcuffs, placing suspects in police cars, drawing weapons, and
other measures of force more traditionally associated with arrests may be proper during an
investigatory detention, depending on the circumstances.” United States v. Bullock, 632 F.3d
1004, 1016 (7th Cir. 2011). It is not disputed in this case that plaintiff was detained for no more
than ten to fifteen minutes, that the defendant officers’ guns were drawn for only a short period
of time until plaintiff was handcuffed, and that plaintiff never was placed in a police car nor was
he transported to the police station. Significantly, plaintiff also admits that no one ever told him
he was arrested. Based on the facts presented, it seems clear that plaintiff was not arrested.
However, the Court will give plaintiff the benefit of any doubt and assume for the purpose of this
motion that he was arrested and determine whether the defendant officers had probable cause to
arrest him.
“Probable cause to arrest is an absolute defense to any claim under Section 1983 against
police officers for wrongful arrest, false imprisonment, or malicious prosecution.” Mustafa v.
City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006), citing Potts v. City of Lafayette, 121 F.3d
1106, 1113 (7th Cir. 1997). “This is so even where the defendant officers allegedly acted upon a
malicious motive.” Id., citing Simmons v. Pryor, 26 F.3d 650, 654 (7th Cir. 1993). Police
officers have probable cause to arrest an individual when “the facts and circumstances within
their knowledge and of which they have reasonable trustworthy information are sufficient to
warrant a prudent person in believing that the suspect has committed” a crime. Kelley v. Myler,

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149 F.3d 641, 646 (7th Cir. 1998). The Court evaluates probable cause by applying an objective
standard — whether a reasonable officer would have believed the person had committed a crime.
If the test is satisfied, “the arrest is lawful even if the belief would have been mistaken.” Id. at
646. Thus, probable cause has been described as a zone within which reasonable mistakes will
be excused. Id.
The inquiry into whether the police had probable cause is an objective one focusing on
the facts known to the officer at the time of arrest. Graham v. Connor, 490 U.S. 386, 398 (1989);
Carmichael v. Village of Palatine, 605 F.3d 451, 457 (7th Cir. 2010). The determination of
probable cause is not based upon “the facts as an omniscient observer would perceive them,” but
instead is determined by the facts “as they would have appeared to a reasonable person in the
position of the arresting officer.” Mustafa, 442 F.3d at 547. It is a “practical, common sense
determination.” Sornherger v. City of Knoxville, 434 F.3d 1006, 1013 (7th Cir. 2006).
When the underlying facts supporting probable cause are not in dispute, a court may
decide whether probable cause exists. Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir.
2009), citing Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993). Once probable
cause relating to an offense is established, all Section 1983 liability against the arresting officer
is barred, “even if the person was arrested on additional or different charges for which there was
no probable cause.” Holmes v. Village of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007),
citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004); Pourghoraishi v. Flying J. Inc., 449 F.3d
751, 762 (7th Cir. 2006). Thus, as long as an officer has probable cause to believe that an
individual “has committed even a very minor criminal offense in his presence,” the officer may

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arrest the offender without violating the Fourth Amendment. Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001).
In this case, the defendant officers received a radio call of an auto burglary in progress
being witnessed by Officer Bansley from a police helicopter. They were given a location by
Officer Bansley and went to that location. Officer Bansley specifically identified the vehicle in
question, and plaintiff was observed exiting that vehicle. After being alerted to the auto burglary
in progress, Officer Hawkins observed plaintiff exit the vehicle in question, and the defendant
officers determined that a crime appeared to be occurring.
For the first time at oral argument, plaintiff’s counsel argued that the defendant officers
did not have probable cause to arrest plaintiff because Officer Bansley never specifically
identified plaintiff as the suspect. In making this new argument, plaintiff’s counsel cited and
relied upon facts not cited in either his Local Rule 56.1(b)(3) response to defendants’ statement
of facts or in his Local Rule 56.1(b)(3)(C) statement of additional facts even though these “new”
facts were available to him when he responded to defendants’ statement of facts and submitted
his brief in opposition to defendants’ motion for summary judgment.
Plaintiff argued at oral argument that these additional facts create material issues of
disputed facts that prevent summary judgment. Plaintiff attempts to create a disputed issue of
fact by arguing that Officer Bansley never identified plaintiff as the suspect in question, and
therefore, the defendant officers did not have probable cause to arrest plaintiff. This argument,
however, is not persuasive. It is not disputed that the defendant officers found the vehicle that
Officer Bansley identified as the subject of a possible auto burglary in progress and that, when

17

the officers approached the vehicle specifically identified by Officer Bansley, they saw plaintiff
exiting the vehicle.
The Court disagrees with plaintiff’s characterization of the underlying testimony. It is
clear from Officer Bansley’s deposition that he does not recall if any of the patrol officers asked
him to identify plaintiff. Defs’ SOF Ex. F [Dkt.#84], at 46:19-14 and 47:1-14. As the Seventh
Circuit has explained, a statement that a witness does not remember is not enough to put that fact
into dispute at summary judgment. See Glover v. Sitel Corp., 2010 WL 2429714, at *1 (W.D.
Ill. 2010), citing Tinder v. Pinkerton Security, 305 F.3d 728, 735-36 (7th Cir. 2002). More
important, however, is what clearly is not in dispute — that the defendant officers found the
vehicle that Officer Bansley identified from the helicopter as the possible subject of an auto
burglary (Defs’ SOF Ex. F [Dkt.#84], at 53:11-15) and that, when the officers approached that
vehicle, an individual (plaintiff) got out of the vehicle (Defs’ SOF Ex. F [Dkt.#84], at 53:22-24
and 54:1-6).
Given the undisputed facts, a reasonable person in the position of the arresting officers
would have believed that plaintiff could have been in the process of committing a crime even
though the officers were later proved to be mistaken. The defendant officers reasonably
approached plaintiff with their guns raised. It is not disputed that the defendant officers could
not see plaintiff’s hands and ordered plaintiff more than once to show his hands. Plaintiff did not
do so. Without any response from plaintiff, the defendant officers restrained plaintiff and
ultimately placed him in handcuffs.
While plaintiff says that he did not have the keys to his father’s car in his hands and that
he dropped the keys when he was being placed in handcuffs, there is testimony from another

18

witness, Ezequiel Zunun, that plaintiff had the keys to his father’s car in his hand while he was
being handcuffed and then plaintiff threw them to the ground after he was handcuffed. Even if
this testimony creates a dispute as to whether plaintiff had keys in his hand when he was being
handcuffed, it is not a material fact dispute. Whether plaintiff dropped the keys before being
handcuffed, had the keys in his hand while he was being placed in handcuffs or threw the keys to
the ground after he was handcuffed is not material and does not detract from a finding of
probable cause in this case.
Significantly, there is no evidence that the defendant police officers ever saw keys in
plaintiff’s hands or on the ground while they were placing plaintiff in handcuffs. It is undisputed
that the defendant officers could not see plaintiff’s hands when they encountered him as he
exited the car identified as the possible subject of a burglary, and that plaintiff did not raise his
hands when the officers directed him to do so. Even if the officers had seen keys in plaintiff’s
hand or on the ground, there is no evidence that they should have realized then, without further
investigation, that those were the keys to the vehicle in question and the keys were lawfully in
plaintiff’s possession.
Once an officer has probable cause to arrest an individual, he need not continue to
investigate or seek out exculpatory evidence. Matthews v. City of East St. Louis, 675 F.3d 703,
707 (7th Cir. 2012); see also Sow v. Fortville Police Dept., 636 F.3d 293, 302 (7th Cir. 2011).
The Court recognizes that probable cause is based on the totality of the circumstances and that
“exculpatory evidence is also relevant.” Cervantes v. Jones, 188 F.3d 805, 813 (7th Cir. 1999),
overruled on other ground Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001). However,
“[w]hile an officer may not close his or her eyes to clearly exculpatory facts, the Fourth

19

Amendment does not require an officer with probable cause to arrest to wait while pursuing
further investigation.” Stokes v. Board of Educ. of the City of Chicago, 599 F.3d 617, 625 (7th
Cir. 2010).
In this case, the defendant police officer received information from a fellow police officer
on which, without question, the defendant officers were entitled to reasonably rely, and
therefore, the defendant officers objectively had probable cause to effectuate an arrest. It is clear
to the Court that the defendant officers had probable cause to detain or arrest plaintiff. It is
undisputed that plaintiff was in handcuffs for a short period of time — at most five to ten
minutes — while the defendant officers investigated what they had been told by a fellow police
officer was an auto burglary in progress. After plaintiff was handcuffed, the officers continued
their investigation and in short order confirmed that the vehicle he was seen exiting belonged to
plaintiff’s father and that plaintiff had permission to be in the vehicle. Once the defendant
officers confirmed plaintiff had not committed any crime, plaintiff immediately was released
from custody.
After the fact, it is clear that plaintiff, very unfortunately, was in the wrong place at the
wrong time on September 13, 2009. The undisputed facts, however, taken in the light most
favorable to plaintiff demonstrate as a matter of law that the defendant officers had probable
cause to arrest plaintiff and that the defendant officers’ conduct was objectively reasonable under
the circumstances. Therefore, plaintiff’s claims of false arrest and unreasonable search and
seizure do not survive as a matter of law, and defendants’ motion for summary judgment is
granted as to Counts I and II of plaintiff’s First Amended Complaint.

20

B.

Defendant Officers Did Not Use Excessive Force When They Arrested Plaintiff
Plaintiff also has asserted a claim of excessive force under 42 U.S.C. § 1983, alleging

that the defendant officers subjected plaintiff to excessive force when they arrested him. First
Am. Compl. [Dkt.#27], at ¶24. Plaintiff’s excessive force claim is based upon the defendant
officers pointing their guns at him before he was handcuffed, his being pushed against plastic
garbage cans when he was put into handcuffs, his discomfort while in handcuffs for up to ten
minutes and possibly a claim of being pushed but not falling to the ground while being
handcuffed. Plaintiff argues that the evidence establishes genuine issues of material facts that
the defendant officers used excessive force when they took plaintiff into custody. Pl’s
Opposition [Dkt.#79], at 5-6. The Court disagrees.
A police officer’s ability to make an arrest “necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396.
Nonetheless, the Fourth Amendment prohibits the use of excessive force during the execution of
a seizure, and a claim that law enforcement officers have used excessive force in the course of an
arrest, investigatory stop, or other seizure must be evaluated according to the Fourth
Amendment’s reasonableness standard. Id. at 395.
“Law enforcement is a difficult job, as ‘police officers are often forced to make
split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving.’” Baird
v. Renbarger, 576 F.3d 340, 342 (7th Cir. 2009), quoting Graham, 490 U.S. at 397. Therefore,
the “reasonableness” of the use of force is judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight, and the officer’s subjective good or bad
intentions do not enter into the analysis. Graham, 490 U.S. at 396-97. Instead, the factors that a

21

court must consider are: “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.” Id. at 396. The Court also should consider whether the
citizen was under arrest or suspected of committing a crime, was armed, or was interfering or
attempting to interfere with the officer's execution of his or her duties. See McDonald v. Haskins,
966 F.2d 292, 292–93 (7th Cir. 1992). In the end, the excessive force inquiry “looks to whether
the force used to seize the suspect was excessive in relation to the danger he posed — to the
community or to the arresting officers — if left unattended.” Id. at 294, citing Wilkins v. May,
872 F.2d 190, 193 (7th Cir. 1989).
Plaintiff relies on Jacobs v. City of Chicago, 215 F.3d 758 (7th Cir. 2000), and Baird v.
Renbarger, 576 F.3d 340 (7th Cir. 2009), to support his claim that the officers pointing their
guns at him amounted to excessive force. Pl’s Opposition [Dkt.#79], at 5-6. In Jacobs, the
plaintiff brought a claim for excessive force against defendant officers for an allegedly illegal
search of his home. 215 F.3d at 763. The evidence established that a defendant officer
continued to point a gun at the plaintiff even after ascertaining that the plaintiff was not the
person he was looking for, and during which time the plaintiff did nothing more threatening than
give the officer his identification and ask permission to sit down. Id. at 773. The Seventh Circuit
held that the officer’s use of force against the plaintiff while executing an allegedly illegal search
of his home and an unlawful seizure of his person was out of proportion to any danger the
plaintiff could have posed to the officers or any other member of the community. Id. at 774. In
Baird, the defendants held a 9-millimeter submachine gun on a plaintiff for two hours when it
was clear that there was no sign of danger. 576 F.3d at 343.

22

The facts in this case are clearly distinguishable from Jacobs and Baird. In this case, the
defendant police officers pointed a gun at plaintiff when they first encountered him and holstered
their guns as soon as plaintiff’s hands were placed in handcuffs. It is not disputed that the
defendant officers ordered plaintiff to show his hands and that plaintiff did not immediately do
so, and the defendant officers kept their guns pointed at plaintiff until he was restrained. Once
plaintiff was in custody and being placed in handcuffs, it is undisputed that the officers holstered
their guns and did not continue to point them at plaintiff. The defendant officers’ guns were
pointed at plaintiff for less than five minutes, if even for that long. These facts are not sufficient
as a matter of law to establish that excessive force was used when plaintiff was detained and
taken into custody.
Plaintiff also argues that the defendant officers used excessive force because his
handcuffs were too tight. Pl’s Opposition [Dkt.#79], at 6-7. Again, the Court concludes that the
facts identified by plaintiff are not sufficient to establish a genuine issue of material fact that
excessive force was used when plaintiff was taken into custody. In Tibbs v. City of Chicago,
469 F.3d 661 (7th Cir. 2006), a plaintiff complained that his handcuffs were too tight twice, once
during the ride to the police station and once to an unknown officer at the police station. 469
F.3d at 663. In Tibbs, the officers removed the handcuffs approximately 25 minutes after the
plaintiff arrived at the police station; the plaintiff’s wrists were red for approximately
one-and-a-half days; and the plaintiff received no medical care for wrist pain. Id. at 663. The
Seventh Circuit concluded that, given such “mild allegations,” no reasonable jury could find that
the arresting officer’s actions were objectively unreasonable. Id. at 666.

23

In Tibbs, the plaintiff based his excessive use of force claim entirely on his allegations
that he complained to the defendant officer that his handcuffs were too tight and that the officer
refused to loosen them. That is not the case here. Plaintiff in this case never complained to the
defendant officers that his handcuffs were too tight. The undisputed facts taken in light most
favorable to plaintiff here indicate that plaintiff suffered some discomfort and pain from
handcuffs that may have been applied too tightly but never complained about it; that plaintiff
was handcuffed for no more than ten minutes; that he experienced redness on his wrists for a
short period of time; and that he may have sought medical care for an alleged wrist injury but
there is no record of his having done so. Plaintiff cites no cases in which any court has permitted
a plaintiff to go to trial based on such allegations.6
Finally, to the extent that plaintiff argues that the conduct of the defendant officers
constitutes excessive force because plaintiff was pushed against plastic garbage cans while he

6

On occasion, the Seventh Circuit has recognized valid excessive force claims based on overly
tight handcuffs. In Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003), there was evidence that the arresting
officers handcuffed the plaintiff so tightly she lost feeling in her hands and refused to loosen the cuffs
when she told them of the numbness. Id. at 774–75, 781. The plaintiff later underwent two carpal tunnel
surgeries she said were necessitated by the handcuffing, and the Seventh Circuit held summary judgment
under these circumstances was inappropriate. Id. at 775, 780–81. In another case, Herzog v. Village of
Winnetka, 309 F.3d 1041 (7th Cir. 2002), the Seventh Circuit held the plaintiff was entitled to a jury trial
on her excessive force claim when she produced evidence that the arresting officer lacked probable cause
for the arrest, shoved her to the ground even though she was not resisting, cracked her tooth by forcing a
breath-screening device into her mouth, waited over an hour to loosen handcuffs she complained were too
tight, and subjected her to blood and urine testing at a hospital, even though she had passed all field
sobriety tests and had registered a 0.00 Breathalyzer reading. Id. at 1043–44. Plaintiff does not cite these
cases. At any rate, none is analogous to his allegations. Arguably plaintiff may have experienced tight
handcuffs akin to the discomfort or pain the plaintiffs in Herzog and Lester experienced. Plaintiff,
however, did not complain about any pain or discomfort. In addition, the decisions in these cases hardly
were based on overly tight handcuffs alone. The plaintiffs in Herzog and Lester presented evidence they
had suffered numerous additional injuries, including a cracked tooth, plainly gratuitous blood and urine
testing, being kneed in the back, and being dragged down a hallway. Herzog, 309 F.3d at 1043–44;
Lester, 830 F.2d at 714. These additional allegations in those cases clearly factored in to the

Court’s excessive force analysis.
24

was handcuffed (though did not fall and instead was caught and held-upright by one of the
officers so he would not fall), or because plaintiff was treated in an abrasive manner and was
trembling, crying and afraid, the Court disagrees that such conduct amounts to use of excessive
force. Pl’s Opposition [Dkt.#79], at 6-7. The evidence shows that plaintiff may have been
pushed into some plastic garbage cans, or that plaintiff tripped and he and one of the officers fell
into some garbage cans when the officer was trying to restrain plaintiff. The right to make an
arrest necessarily carries with it the right to use some degree of physical coercion to effect it.
“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers,” violates the Fourth Amendment. Graham, 490 U.S. at 396 (internal quotation and
citation omitted).
Plaintiff acknowledges that an officer held him to prevent him from falling to the ground.
Plaintiff also acknowledges that the defendant officers did not have any other physical contact
with him other than grabbing his arms to handcuff them behind his back. Such contact and force
is de minimis and is not sufficient as a matter of law to establish that the defendant officers used
excessive force when plaintiff was taken into custody.
In summary, the record before the Court simply is devoid of any evidence establishing
that the defendant officers used excessive force against plaintiff. To the contrary, the undisputed
facts reveal that the defendant officers used minimal force when taking plaintiff into custody and
did not exert any amount of force that was greater than reasonably necessary to detain plaintiff.
Although plaintiff may have been scared and even traumatized because the officers pointed their
guns at him after he exited his father’s car and before he was handcuffed, these circumstances do
not amount to a constitutional violation as a matter of law.

25

As the Seventh Circuit recognized in Tibbs, “[i]n a perfect world police officers would
make no errors and innocent citizens like [plaintiff] would never be arrested and detained.
[Plaintiff’s] mistaken arrest was unfortunate and the inconvenience and indignity he suffered was
regrettable. But [the defendant officers’] actions did not violate [the plaintiff’s] Fourth
Amendment rights.” 469 F.3d at 665-66. Similarly, this Court concludes that no reasonable jury
could find that defendant officers’ actions in this case were objectively unreasonable, and the
undisputed facts show as a matter of law that the defendant officers did not use excessive force
when they detained plaintiff and took him into custody. Therefore, defendants’ motion for
summary judgment is granted as to Count III of his First Amended Complaint.
C.

Even If The Defendant Officers Did Not Have Probable Cause To Arrest Plaintiff,
They Have Qualified Immunity
Defendants also argue that the officers are entitled to qualified immunity.7 Defs’ Motion

[Dkt.#70], at 10-12. The question of whether the defendant officers actually had probable cause
to detain or arrest plaintiff is separate from the question relating to qualified immunity for the
defendant officers. “Qualified immunity protects public officials from liability for damages if
their actions did not violate clearly established rights of which a reasonable person would have
known.” Catlin v. City of Wheaton, 574 F.3d 361, 365 (7th Cir. 2009) (citations omitted).
There is no question that plaintiff’s constitutional right to be free from arrest without
probable cause was clearly established at the time of the incident. See Humphrey v. Staszak, 148
7

The Court notes for the record that plaintiff failed to respond to defendants’ argument on
qualified immunity and therefore has waived any argument before this Court and in any potential appeal
that the defendant officers are not entitled to qualified immunity. See Quality Oil, Inc. v. Kelley Partners,
Inc., 657 F.3d 609, 614-15; Keck Garrett & Assocs., Inc. v. Nextel Communications, Inc., 517 F.3d 476,
487 (7th Cir. 2008), quoting Boyers v. Texaco Ref. & Mktg., Inc., 848 F.2d 809, 811–12 (7th Cir.1988)
(“It is axiomatic that issues and arguments which were not raised before the district court cannot be raised
for the first time on appeal.”).

26

F.3d 719, 725 (7th Cir. 1998), citing Baker v. McCollan, 443 U.S. 137, 142 (1979); Gerstein v.
Pugh, 420 U.S. 103, 111 (1975). Yet a “corresponding doctrine of qualified immunity for police
officers has also long been recognized.” Id., citing Pierson v. Ray, 386 U.S. 547, 555-58 (1967).
That corresponding doctrine provides that a defendant is entitled to qualified immunity in a false
arrest case when, if there is no probable cause, “a reasonable officer could have mistakenly
believed that probable cause existed.” Id. (citations omitted). Thus, as long as a defendant officer
reasonably, albeit possibly mistakenly, believed that probable cause existed to arrest a plaintiff,
then the defendant officer is entitled to qualified immunity. Id. This standard is often dubbed
“arguable probable cause.” Id. (citations omitted). Arguable probable cause is established “when
‘a reasonable police officer in the same circumstances and with the same knowledge and
possessing the same knowledge as the officer in question could have reasonably believed that
probable cause existed in light of well-established law.’” Id., quoting Gold v. City of Miami, 121
F.3d 1442, 1445 (11th Cir. 1997).
Because the Court has found that the defendant officers had probable cause to detain and
arrest plaintiff in this case and that no constitutional violations occurred, an analysis of
“arguable probable cause” and a decision based on qualified immunity is not necessary to
resolve the case. However, even if this Court determined that there were disputed issues of fact
as to the issue of probable cause that would prevent the granting of defendants’ summary
judgment motion, the defendant officers at the very least would be entitled to qualified immunity
for the reasons discussed above. Police officers in the same circumstances and with the same
knowledge as these officers reasonably could have believed that probable cause existed in light
of well-established law. See supra Section III.A.

27

Police officers require the protection of qualified immunity to shield them from undue
interference with their duties. Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). A review of the
evidence in this case demonstrates that, even if defendants officers did not have actual probable
cause, at the very least they had “arguable” probable cause to arrest plaintiff given facts known
to them at the time plaintiff was taken into custody.
D.

Counts IV And V Are Dismissed Because Plaintiff Cannot Establish An Underlying
Constitutional Deprivation Of Rights
In Count IV of his First Amended Complaint, plaintiff alleges a claim for failure to

intervene and in Count V a conspiracy claim. First Am. Compl. [Dkt.#27], at ¶¶28-39. To
establish a civil conspiracy claim under Section 1983, plaintiff must show that defendants agreed
to deprive him of his constitutional rights. See Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir.
2007); see also Redwood v. Dobson, 476 F.3d 462, 466 (7th Cir. 2007) (“The minimum
ingredient of a conspiracy [ ] is an agreement to commit some future unlawful act in pursuit of a
joint objective.”). A claim for conspiracy, however, “is not an independent basis of liability in §
1983 actions.” See Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008). As such, if a plaintiff fails
to prove an underlying constitutional injury, any attendant conspiracy claim necessarily fails. See
Cefalu v. Village of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000). Similarly, an underlying
constitutional violation is required for a failure to intervene. Harper v. Albert, 400 F.3d 1052,
1064 (7th Cir. 2005).
Because the Court has found that the defendant officers had probable cause to take
plaintiff into custody, that the defendant officers did not use excessive force when they detained
plaintiff such that defendants are entitled to summary judgment on those claims, plaintiff’s
attendant claims for failure to intervene and conspiracy also fail because there is no underlying
28

constitutional deprivation of plaintiff’s rights to form the basis for liability under Section 1983
for either a failure to intervene or conspiracy claim. Id. Therefore, defendants are entitled to
summary judgment on Counts IV and V of plaintiff’s First Amended Complaint.
E.

The Monell Claims Against The City Of Chicago Are Dismissed As A Matter Of
Law
To the extent that plaintiff also alleges Monell claims against defendant City of Chicago,

a municipality is not liable under Section 1983 unless the plaintiff can demonstrate that a
constitutional deprivation occurred as a result of a city policy or custom. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978). As a threshold matter, boilerplate allegations of the existence
of a municipal policy without any factual support are insufficient. Sivard v. Pulaski City, 17 F.3d
185, 188 (7th Cir. 1994). In addition, to the extent plaintiff asserts Monell claims of liability
against defendant City of Chicago, those claims are dismissed as well because a Monell claim
depends entirely on the validity of the underlying constitutional violations. Bielanski v. County
of Kane, 550 F.3d 632, 645 (7th Cir. 2008); Jenkins v. Bartlett, 487 F. 3d 482, 492 (7th Cir.
2001) (“[T]here can be no liability under Monell for failure to train when there has been no
violation of the plaintiff’s constitutional rights.”); Windle v. City of Marion, Ind., 321 F.3d 658,
663 (7th Cir. 2003) (“[A] plaintiff must prove that the individual officers are liable on the
underlying substantive claim in order to recover damages from a municipality under [a theory of]
. . . failure to train.”).
F.

The State Law Claims Also Are Dismissed As A Matter Of Law
Plaintiff also alleges state law claims against defendants for battery (Count I [sic]), false

imprisonment (Count VI [sic]), intentional infliction of emotional distress (Count VIII), and

29

respondeat superior and indemnification (Count IX).8 First Am. Compl. [Dkt.#27], at ¶¶40-56.
The usual practice of courts is to relinquish jurisdiction over state supplemental claims when all
federal claims have been dismissed prior to trial. Wright v. Associated Ins. Companies, Inc., 29
F.3d 1244, 1251 (7th Cir. 1994). However, when “it is absolutely clear how the pendent claims
can be decided,” the court may retain jurisdiction over the state law claims. Id. at 1251.
1. False Imprisonment
Under Illinois law, probable cause is an absolute bar to a claim for false imprisonment.
Jones v. Webb, 45 F.3d 178, 1783 (7th Cir.1995); see also Lappin v. Costello, 232 Ill .App. 3d
1033, 598 N.E.2d 311, 317 (Ill. App. 4th Dist.1992) (“If probable cause existed for the arrest, an
action for false arrest cannot lie.”); Martel Enterprises v. City of Chicago, 223 Ill. App. 3d 1028,
584 N.E.2d 157, 161 (Ill. App. 1st Dist.1991) (probable cause is an absolute bar to a claim of
false imprisonment). Because the Court already has determined that probable cause existed for
the defendant officers’ actions, and because probable cause is a bar to plaintiff’s state law claim
of false imprisonment, Claims VI [sic] also fails.9 See also Rodriguez v. City of Chicago, 2012
WL 1021791, at * 5 (N.D. Ill. 2012).
2. Intentional Infliction of Emotional Distress
To survive summary judgment on a claim for intentional infliction of emotional distress,
plaintiff must present evidence showing that (1) the defendant officers’ conduct was truly

8

In plaintiff’s First Amended Complaint, he identified his claim for battery as Count I and his
claim for false imprisonment as Count VI. In reading the First Amended Complaint, it is clear that this
numbering was in error – that the battery claim is Count VI and the false imprisonment claim in Count
VII. However, in citing the First Amended Complaint, the Court is citing each count as it appears in the
document as filed with the Court.
9

See supra n.8.

30

extreme and outrageous, (2) the officers either intended to inflict emotional distress or knew
there was at least a high probability that they would cause severe emotional distress, and (3) the
conduct in fact caused severe emotional distress. See, e.g., Feltmeier v. Feltmeier, 207 Ill.2d 263,
798 N.E.2d 75, 80 (2003); McGrath v. Fahey, 126 Ill.2d 78, 533 N.E.2d 806, 809 (1988).
Plaintiff has not presented any evidence to establish truly extreme and outrageous
conduct as a matter of law. To satisfy this element, defendants’ conduct must be “so extreme as
to go beyond all possible bounds of decency and be regarded as intolerable in a civilized
community.” Feltmeier, 798 N.E.2d at 83. Taking the facts in the light most favorable to
plaintiff that the defendant officers pointed a gun a him, placed him in handcuffs for period of
time that did not exceed ten minutes, and mistakenly detained him in an investigation as a
suspect for auto burglary, the defendant officers’ actions were based on probable cause and did
not come close to being “truly extreme and outrageous,” even though the officers ultimately
were mistaken about plaintiff’s role in a burglary. The undisputed facts show as a matter of law
that the defendant officers’ conduct was neither extreme nor outrageous. Therefore, summary
judgment is granted as to Count VIII of plaintiff’s First Amended Complaint.

3. Battery
The primary issue underlying both an excessive force and battery claims is whether the
force used by police was objectively reasonable under the circumstances. See Rusinowski v.
Village of Hillside, 835 F. Supp. 2d 641, 649 (N.D. Ill. 2011), citing Wells v. Coker, 2011 WL
4381488, at *7 (C.D. Ill. 2011). If the force used was objectively reasonable, then both claims
are barred. Rusinowski, 835 F. Supp. 2d at 649. Here, because the Court has determined that the

31

defendant officers’ use of force was objectively reasonable, plaintiff cannot recover on his state
law battery claim. See Soriano v. Town of Cicero, 2010 WL 3418260, at *7 (N.D. Ill. 2010)
(“[I]f the force used by the Officers was reasonable and justified, [the plaintiff's] state-law
battery claim must fail”); Madlock v. City of Peoria, 2010 WL 3853273, at *6 (C.D. Ill. 2010)
(granting summary judgment in favor of the defendants on the state law assault and battery
claims where the court found the officers were objectively reasonable in their use of force).
Therefore, summary judgment is granted as to Count I [sic] of plaintiff’s First Amended
Complaint.10
4. Respondeat Superior and Indemnification
“A municipality may not be held liable under § 1983 based on a theory of respondeat
superior or vicarious liability.” Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007)
(citation and quotation omitted). If the state law claims are dismissed, so must the respondeat
superior claim because the only other claims asserted are the federal claims for false arrest,
unreasonable seizure and excessive force pursuant to section 1983. See Moore v. City of
Chicago, 2011 WL 1231318, at *5 (N.D. Ill. 2011).
Plaintiff’s state law indemnification claim against the City of Chicago also fails as matter
of law because plaintiff has not established liability against any of the City’s employees. The
Illinois Local Government and Governmental Employees Tort Immunity Act directs
municipalities to pay tort judgment and settlement for the liability of municipal employees acting
within the scope of their employment. 745 ILCS 10/9-102. But Illinois law exempts public
entities from liability “for any injury resulting from an act or omission of its employee where the

10

See supra n.8.

32

employee is not liable.” 745 ILCS 10/2-109. Because the Court concludes that the defendant
officers are entitled to summary judgment on all claims, plaintiff has not established the
employee liability necessary for indemnification. See Williams v. Edwards, 2012 WL 983788, at
*15 (N.D. Ill. 2012). Therefore, Count IX fails as a matter of law.
In the interest of judicial economy, convenience, fairness, and comity, the Court retains
jurisdiction over the state law claims and enters summary judgment on in favor of all of
defendants on each of plaintiff’s state law claims — Counts I [sic], VI [sic], VIII and IX.11
IV. CONCLUSION
Based on the undisputed evidence before the Court, plaintiff’s claims fail as a matter of
law. For all of the reasons set forth in the Court’s Memorandum Opinion and Order, defendants’
motion for summary judgment [Dkt.#70] is granted as to all claims. The Clerk is directed to
enter judgment in favor of defendants and against plaintiff. This is a final and appealable order.

11

See supra n.8.

33

It is so ordered.

___________________________________
Jeffrey T. Gilbert
United States Magistrate Judge

Dated: September 21, 2012

34