McKeon v. City of Morris et al

Filing 87

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/26/16. Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL MCKEON,

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Plaintiff,
v.
THE CITY OF MORRIS and MORRIS
POLICE OFFICERS DUSTIN SEALE
(STAR #111) and PAUL BURKE
(Star #122),
Defendants.

14 CV 2084
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff Michael McKeon brings this 42 U.S.C. § 1983 suit against the City of
Morris and two of its police officers, Dustin Seale and Paul Burke, for injuries
sustained during an arrest. Defendants have moved for summary judgment on all
six counts. The Court grants the motion with respect to Counts II and III, but finds
sufficient disputes of material fact to deny the motion as to the other four counts. 1
Factual Background
The following facts are undisputed unless noted otherwise. On October 17,
2013, McKeon’s wife, Patricia Adams, called 911 from a motel parking lot and told
the operator that McKeon was trying to physically attack her. See Defs.’ L.R.
56.1(a)(3) Stmt. ¶¶ 24–25, ECF No. 58. Morris police officers Burke and Seale

Each side has also filed a motion to bar the testimony of the opposing party’s
expert. The Court rules on those motions in a separate opinion.
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arrived on the scene in response to the call. Id. ¶ 24. After questioning him and
searching his motel room, the officers began to arrest McKeon. Id. ¶¶ 30–33.
What happened next is the central dispute in this case. The officers allege
that McKeon continued to yell at Adams during the arrest. Id. ¶¶ 30, 33. As Seale
tried to place McKeon in handcuffs, McKeon locked his arms out, attempted to pull
away, and turned aggressively toward Seale. Id. ¶ 37. In response, Seale says he
put his leg out and twisted McKeon to the ground, who landed on his knee. Id. ¶ 47.
McKeon admits that he did not put his arms behind his back when Seale
instructed him to do so and, instead, locked out his arm. Pl.’s L.R. 56.1(b)(3)(C)
Stmt. ¶¶ 3–4, ECF No. 62. McKeon denies pulling away or turning aggressively
toward Seale. Pl.’s Resp. to Defs.’ L.R. 56.1 Stmt. ¶ 14, ECF No. 63. McKeon says he
then felt a blow one inch below his left kneecap and was brought down to the
ground by Seale. Pl.’s L.R. 56.1(b)(3)(C) Stmt. ¶¶ 5–6.
Seale is highly trained in Ryukyu Kempo, a Japanese martial art that focuses
on striking pressure points in an opponent’s body, including pressure points around
the knee. Id. ¶¶ 15–17.
McKeon was taken to a hospital that night where he was diagnosed with a
left proximal tibia fracture and a left proximal fibula fracture. Defs.’ L.R. 56.1(a)(3)
Stmt. ¶ 57. After the injury, McKeon developed other health problems with his left
leg, including compartment syndrome and numbness. Pl.’s L.R. 56.1(b)(3)(C) Stmt.
¶¶ 26–34.

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McKeon pleaded guilty to resisting arrest during his October 17 interaction
with the police. Id. ¶ 40.
In Counts I and II, McKeon alleges excessive use of force by Seale and failure
to intervene by Burke. Counts III and IV present state law claims for assault and
battery against Seale. In Count V, McKeon seeks to have the City of Morris
indemnify the officers pursuant to 745 Ill. Comp. Stat. 10/9-102. In Count VI,
McKeon seeks recovery from Morris for the alleged actions of Seale and Burke
under a respondeat superior theory.
Legal Standard
Summary judgment shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The Court gives “the non-moving party the
benefit of conflicts in the evidence and reasonable inferences that could be drawn
from it.” Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 794 (7th
Cir. 2013). In order to survive summary judgment, the nonmoving party must “do
more than simply show that there is some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
and “must establish some genuine issue for trial such that a reasonable jury could
return a verdict in her favor,” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772–73
(7th Cir. 2012).

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Analysis
I.

Failure to Intervene and Assault Claims
Defendants moved for summary judgment on Counts II and III, the failure to

intervene claim against Burke and the assault claim against Seale respectively.
Plaintiff has conceded that both claims should be dismissed. See Pl.’s Resp. Mot.
S.J. at 15, ECF No. 64. Accordingly, the Court dismisses Counts II and III. Because
Burke was named only in Count II, he is dismissed as a defendant.
II.

Excessive Force Claim
In Count I, McKeon alleges that Seale used excessive force in violation of his

Fourth Amendment right to be free from unreasonable searches and seizures. The
force that may be reasonably used to effectuate an arrest depends on the specific
circumstances of the arrest, “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 (1989). The test for determining whether the
force applied was reasonable is an objective one. See id. at 397.
Defendants contend that, even taking all inferences in favor of McKeon, the
circumstances of the arrest are sufficient to hold that the force Seale used was
reasonable. See Defs.’ Mem. Supp. S.J. at 4–12, ECF No. 57. McKeon, on the other
hand, argues that there are various material facts in dispute. In particular, he
argues that there are disputes about (1) whether Seale kicked McKeon or merely
twisted him to the ground and (2) how much of a threat McKeon posed when he

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resisted. When viewed in the light most favorable to himself, McKeon contends that
the facts surrounding his arrest show that Seale used unreasonable force.
Determining the force used is a key component in any excessive force suit.
Here, Defendants contend that there is no evidence that McKeon was kicked. See
Defs.’ Mem. Supp. S.J. at 7 (“While his Complaint alleged that he was kicked, his
testimony establishes that he was not kicked.”); Defs.’ Reply at 9, ECF No. 72
(“There is simply no evidence that Officer Seale kicked Plaintiff.”). Contrary to
Defendants’ contention, McKeon testified that he felt a blow to his leg and then fell
to the ground. See Pl.’s Stmt. Addt’l Facts ¶ 5. And although Seale denies kicking
McKeon’s leg and the triage nurse testified that McKeon’s initial description was
more consistent with a trip than a kick, it is for the jury to decide which version of
the events to believe. At this stage, McKeon’s own testimony requires, for purposes
of determining the reasonableness of the force used, that the Court assume it was
Seale’s kick that broke McKeon’s leg.
Next, the reasonableness of Seale’s actions also depends on McKeon’s
behavior during the arrest. That determination rests not only on whether McKeon
resisted arrest, but on how he did so. Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 527
(7th Cir. 2012) (holding that passive non-compliance does not make a “substantial
escalation of force” reasonable). McKeon admits that he did not fully cooperate with
the officers and locked his arm out while Seale was trying to arrest him. See Pl.’s
Resp. to Defs.’ L.R. 56.1 Stmt. ¶ 14. Defendants allege that McKeon did more than
that. According to the officers, McKeon attempted to pull away from Seale and he

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turned toward Seale in an aggressive manner. See Defs.’ L.R. 56.1(a)(3) Stmt. ¶ 37.
Defendants argue that McKeon cannot dispute that his resistance included turning
aggressively toward Seale because he pleaded guilty to resisting a peace officer.
Defendants’ argument is based on the doctrines of collateral estoppel and Heck v.
Humphrey, 512 U.S. 477 (1994).
Defendants first argue that McKeon is collaterally estopped from arguing
that his resistance was passive because the issue was conclusively decided in his
criminal case. In determining whether an issue is precluded, the district court must
look to the underlying state law standard. Brown v. City of Chi., 599 F.3d 772, 774
(7th Cir. 2010). Under Illinois law, a litigant is estopped from raising an issue from
a previous preceding if “(1) the party against whom the estoppel is asserted was a
party to the prior adjudication, (2) the issues which form the basis of the estoppel
were actually litigated and decided on the merits in the prior suit, (3) the resolution
of the particular issue was necessary to the court’s judgments, and (4) those issues
are identical to issues raised in the subsequent suit.” Wells v. Coker, 707 F.3d 756,
761 (7th Cir. 2013) (quoting Wozniak v. DuPage Cty., 845 F.2d 677, 682–83 (7th Cir.
1988)).
During McKeon’s guilty plea proceedings, his attorney stipulated that if
Seale had testified he would have stated that McKeon actively resisted arrest by
“locking his arms out, attempting to pull away, and turning toward Officer Seale in
an aggressive manner.” See Tr. Criminal Case at 12:23–13:2, Defs.’ L.R. 56.1(a)(3)
Stmt., Ex. 18. McKeon then pleaded guilty to the offense of resisting a peace officer.

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See id. at 13:6–9. Defendants contend that the stipulation in conjunction with the
guilty plea preclude McKeon from asserting that he did not turn toward Seale in an
aggressive manner. The Illinois Supreme Court, however, takes a very strict view of
issue preclusion: “[I]t is absolutely necessary that there shall have been a finding of
a specific fact in the former judgment or record that is material and controlling.”
Kessinger v. Grefco, Inc., 672 N.E.2d 1149, 1156 (Ill. 1996); see also Wells, 707 F.3d
at 762. Given this approach, collateral estoppel does not apply when “there are
multiple independent bases that could be sufficient to support the outcome in an
earlier case.” See Wells, 707 F.3d at 762.
The facts in this case are strikingly similar to Wells. In that case, the court in
the criminal case read Wells the factual basis of the offense: discharging a firearm
in the air and then pointing the gun at an officer. See id. at 759. After reading the
facts alleged, Wells pleaded guilty to the charge of reckless conduct. See id. The
court in Wells’ civil case held that, because there were two sufficient bases for the
conviction, Wells was not precluded from arguing that he did not point his gun at
the officer. See id. at 761–62. Here, because it was sufficient for the conviction to
find that McKeon locked his arm, he is not precluded from arguing that he did not
aggressively turn towards Seale.
Defendants’ attempts to distinguish Wells are unavailing. First, Johnson v.
Reiter, 2015 WL 6674531 (N.D. Ill. Oct. 30, 2015), a case Defendants urge the Court
to follow, did not present the same factual scenario as in this case and in Wells. As
the court in Johnson admits, the “guilty plea did not rest on two alternative

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grounds.” Id. at *7. Instead, the factual basis for the conviction was that Johnson
pointed a gun at an officer. Without that allegation, he could not have been
convicted of the underlying crime. See id. (“Without Johnson’s concession that he
pointed his gun at Officer Reiter, there is no factual basis for Count 3.”). That alone
makes the case different from Wells and McKeon’s conviction, in which the facts
mentioned at the criminal hearing contained multiple sufficient reasons for the
conviction.
In a separate but similar argument, Defendants contend that McKeon’s
§ 1983 claim would necessarily invalidate McKeon’s criminal conviction in violation
of Heck. But McKeon’s excessive force claim does not negate or deny the fact that he
resisted arrest. Rather, McKeon contends that Seale’s leg-breaking kick was not a
reasonable response to his resistance—which he alleges consisted only of locking his
arm to prevent Seale from handcuffing him. See VanGilder v. Baker, 435 F.3d 689,
692 (7th Cir. 2006) (“Were we to uphold the application of Heck in this case, it
would imply that once a person resists law enforcement, he has invited the police to
inflict any reaction or retribution they choose, while forfeiting the right to sue for
damages.”). Because a favorable result for McKeon in this case is not incompatible
with his criminal conviction, the Heck bar is inapplicable.
The two disputes—whether Seale kicked McKeon and whether McKeon
turned aggressively toward Seale—are questions for the jury to decide. Accordingly,
Defendants’ motion for summary judgment on the excessive for claim is denied.

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III.

Battery Claim
McKeon’s battery claim draws upon the same set of allegations as his § 1983

excessive force claim. A battery is the unauthorized touching of the person of
another. Fiala v. Bickford Sr. Living Grp., LLC, 43 N.E.3d 1234, 1240 (Ill. App. Ct.
2015). For the reasons discussed above, the record contains facts that, if accepted,
would meet this definition. Defendants make no further argument with respect to
the battery claim other than the arguments addressed above. Thus, the Court
denies Defendants’ motion as to Count IV.
IV.

The Vicarious Liability Claims
In Count V, McKeon demands that Morris indemnify its officers for their

actions. In Count VI, McKeon seeks damages from Morris under a respondeat
superior theory. 2 Defendants’ only argument in their motion for summary judgment
as to Counts V and VI is that, if the other Counts are dismissed, the vicarious
liability claims should also be dismissed. See Defs.’ Mem. Supp. S.J. at 14. Because
the motion is denied with respect to the excessive force and battery claims, Counts
V and VI will go forward.

Although McKeon’s complaint is not clear on the matter, the Court interprets
the respondeat superior claim as arising from his battery claim rather than the
§ 1983 claim. Municipalities like the City of Morris cannot be held liable under
§ 1983 solely on the grounds of respondeat superior. See Rossi v. City of Chi., 790
F.3d 729, 737 (7th Cir. 2015).
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Conclusion
For the reasons stated herein, the Court grants the motion for summary [56]
judgement as to Counts II and III. Burke is dismissed as a defendant. The motion is
denied in all other respects.
IT IS SO ORDERED.

ENTERED

9/26/16

__________________________________
John Z. Lee
United States District Judge

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