Allen v. City of Des Plaines et al

Filing 79

MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 3/20/2017. Mailed notice. (mgh, )

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

Dayna A Allen,

v.
City
al.,

of

)
)
)
Plaintiff,
)
)
)
Des Plaines, et )
)
)
)
Defendants.
)

No. 14 C 9362

MEMORANDUM OPINION AND ORDER
In this action, plaintiff asserts claims against the City
of Des Plaines and four of its police officers arising out of
her arrest following an altercation in a suburban McDonald’s
drive-through. Although her complaint does not state separate
counts or identify the legal theories on which she proceeds (nor
must it to comply with federal pleading standards), plaintiff
does not dispute defendants’ characterization of her currently
pending claims as proceeding under 42 U.S.C. § 1983 and claiming
injury

due

to

excessive

force;

failure

to

provide

medical

attention; false arrest; and failure to intervene.1 Before me is
defendants’

motion

for

partial

summary

judgment,

which

seeks

resolution of plaintiff’s false arrest and failure to provide

1

Plaintiff’s complaint contains additional federal and state
claims, but I dismissed those on April 21, 2015. See DN 16.

medical attention claims.

For the reasons that follow, I grant

the motion.
I.
The

events

leading

up

to

plaintiff’s

arrest

can

be

summarized, at a high level of generality, as follows: In the
early morning hours of November 23, 2012, plaintiff drove into a
McDonald’s drive-through in Des Plaines, Illinois and placed a
food

order.

Dissatisfied

with

what

she

received,

plaintiff

waited at the pick-up window and refused to move her car while
McDonald’s employees tried to resolve her complaint. The manager
on duty called the Des Plaines police, which dispatched officers
to

the

scene,

informing

them

that

plaintiff

was

causing

a

disturbance by throwing food and refusing to leave. Upon their
arrival,

the

officers

spoke

to

plaintiff

and

to

McDonald’s

employees. Plaintiff still refused to move her car and refused
to comply with the officers’ orders that she get out of the car.
Officers then got into the car and tried physically to get her
out.

When

that

was

unsuccessful,

they

tased

her

repeatedly.

Plaintiff ultimately got out of the car with the officers’ help
and was arrested for disorderly conduct and resisting a peace
offer. Plaintiff was taken from the McDonald’s to the police
station,

and

from

there

to

the

treatment.

2

hospital,

where

she

refused

A

more

detailed

account

of

the

facts—undisputed

or

otherwise—is somewhat difficult, given counsel’s general noncompliance with the requirement under L.R. 56.1 “to set forth
and respond to concise factual statements, and to identify the
specific portions of the record that support their assertions.”
Grabianski v. Bally Total Fitness Holding Corp., 169 F. Supp. 3d
785,

788

(N.D.

Ill.

2015).

As

I

have

observed

on

multiple

occasions, “the purpose of L.R. 56.1...is to assist courts in
determining which facts are material and genuinely in dispute.”
Id.

(citing

factual
counsel’s

cases).

statements

Where,
with

statements

as

here,

argument,
with

attorneys

and

lengthy

respond

pepper
to

narratives

their

opposing
that

“recharacterize, rather than respond to, the asserted facts,”
Wiegel v. Stork Craft Mfg., Inc., 946 F. Supp. 2d 804, 810 (N.D.
Ill. 2013), their L.R. 56.1 statements encumber, rather than
streamline, the court’s task.2

2

For example, in ¶ 22 of their factual statements, defendants
state: “In order to obtain Allen’s compliance, Allen was
eventually tased by Officers Kerfman and Harrison. (Harrison
Dep. 168; Kerfman Dep. 138). Allen was warned that if she did
not comply with the officers’ direction to exit her vehicle she
would be tased. (Allen Dep. 69). After Allen was tased, she
complied and exited her car. (Allen Dep. 87; Harrison Dep. 208).
Allen was able to physically exit the car on her own with some
assistance from the officers. (Allen Dep. 87). She was also able
to walk on her own into the police car for transport to the
police department. (Allen Dep. 93). Plaintiff admitted she did
not ask for medical attention at the McDonald’s. (Allen Dep. 9394).” While this statement includes multiple assertions, they
can be reduced to a short set of discernable facts: plaintiff
was tased; plaintiff was warned before being tased; plaintiff
3

Fortunately, defendants’ motion can be resolved without the
need to untangle fully the web of the parties’ competing L.R.
56.1 statements. Indeed, the two claims at issue—false arrest
and

failure

to

provide

medical

care—can

be

decided

with

reference to a relatively small subset of facts that I conclude,
based on my own review of the record, are not genuinely in
dispute.
II.

was able to exit the car with assistance after being tased;
plaintiff was able to walk to the police car without assistance;
plaintiff admitted that she did not ask for medical attention at
the McDonald’s. Yet, rather than respond to these facts,
plaintiff embarks on a two-and-a-half page exposition touching
on the different modes in which tasers can be used; how “best”
to apply a taser in the “drive stun mode”; how much pain tasers
cause; the number of times the officers tased her; where on her
body she was tased; the content of the officers’ “Discharge of
Weapon” reports; and the officers’ history of taser training and
use, among other topics. Pl.’s L.R. 56.1 Resp. at ¶ 22, DN 68 at
12-15. The only sentence in plaintiff’s response that responds
directly to any of the asserted facts is the last one, which
states: “Finally, Allen never ‘admitted that she did not ask her
(sic) medical attention at the McDonald’s” on pages 93-94 of her
deposition. (Ex. 16., pp. 93-94).” On this point, plaintiff is
correct; she made no such admission on the cited pages. Instead,
plaintiff responded to questions about “anything else” she said
to the officers while at the scene, and her response omits any
mention of a request for medical assistance. Had defendants
simply formulated their factual statement as, “plaintiff did not
ask for medical assistance at the McDonald’s,” plaintiff would
have been put to her proof on this question. Instead, defendants
asserted a different and apparently irrelevant fact about what
plaintiff “admitted,” which plaintiff appropriately disputed as
unsupported by the cited evidence. The result of all of this is
that the parties’ submissions provide no clear answer to whether
the relevant facts are genuinely disputed.
4

Summary judgment is appropriate when the evidence “show[s]
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). With respect to her false arrest claim,
plaintiff may proceed to trial only if she can show that a jury
could reasonably conclude, based on the facts as construed in
her

favor,

Williams

that

v.

probable

Rodriguez,

cause

509

for

F.3d

her

392,

arrest
398

(7th

was

lacking.

Cir.

2007)

(absence of probable cause is an “essential predicate to any
§ 1983 claim for unlawful arrest) (citation omitted). “Whether
probable cause exists depends upon the reasonable conclusion to
be drawn from the facts known to the arresting officer at the
time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152, 160
L.Ed.2d 537 (2004).
Because probable cause exists “whenever an officer or a
court has enough information to warrant a prudent person to
believe
evaluate

criminal
the

conduct

information

has

occurred,”

brought

to

the

courts

“need

arresting

only

officer’s

attention and assess whether the officer reasonably trusted that
information at the time.” Maniscalco v. Simon, 712 F.3d 1139,
1143 (7th Cir. 2013). That the information may later turn out to
be untrue is irrelevant. Id. While the existence of probable
cause is usually a question for the jury, it can be resolved at
summary

judgment

when

the

facts
5

bearing

on

the

inquiry

are

undisputed. Abbott v. Sangamon County, Ill., 705 F.3d 706, 714
(7th Cir. 2013).
“A person commits disorderly conduct as defined by Illinois
law if he ‘act[s] in such unreasonable manner as to alarm or
disturb

another

and

to

provoke

a

breach

of

the

peace.’”

Maniscalco, 712 F.3d at 1144 (citing 720 Ill. Comp. Stat. 5/26–
1). In addition, physical resistance to the lawful order of a
peace

officer

constitutes

a

violation

of

720

ILCS

5/31-1

(resisting or obstructing a peace officer). Ryan v. County of
DuPage, 45 F.3d 1090, 1093 (7th Cir. 1995).
Defendants argue that the undisputed facts establish that
the

officers

disorderly

had

conduct

probable
and

for

cause

to

resisting

arrest
or

plaintiff

obstructing

a

for
peace

officer. I agree. Plaintiff herself states that “Officer Kerfman
was told that Allen was causing a disturbance, throwing food and
refusing to leave,” that Officer Anderson “was told that there
was a disturbance at McDonald’s where a subject would not leave
the drive-thru,” and that Officer Harrison “was told that there
was a lady that would not move from the drive-thru and there
were patrons suck behind her waiting to get their food.” Pl.’s
L.R.

56.1

Resp.

at

¶ 11.

Indeed,

the

dispatch

transcript

reflects that the dispatcher stated, “looks like a disorderly
conduct...there’s going to be an issue with a customer at the
drive-thru...looks like, maybe, she’s not moving. She’s got a
6

bunch of other people behind her.”

Id.; Def.’s L.R. 56.1 Stmt.,

Exh. 2 (dispatch transcript).
The information provided by the dispatcher was confirmed
when the officers reached the scene and observed plaintiff’s car
stopped at the drive-through window with other cars behind her.
Def.’s L.R. 56.1 Stmt. at ¶ 15. It was further confirmed by the
statements of Juana Sandoval, the McDonald’s employee who had
called

911,

and

who,

as

plaintiff

concedes,

told

Officer

Harrison that plaintiff “was causing her problems and wouldn’t
move and that she tried to throw food at her,” Def.’s L.R. 56.1
Stmt., Exh. 5 at 129:5-8; told Officer Anderson that plaintiff
“wo[uld]n’t leave the drive-thru,” Def’.s L.R. 56.1 Stmt., Exh.
4 at 98:13-14; and told Officer Hernandez that after “becoming
very

upset,”

plaintiff

had

thrown

food

at

her

and

another

employee, and that the employees were scared by her conduct.
Def.’s

L.R.

56.1

Stmt.,

Exh.

6

at

67:5-8,

11-12.

Officer

Hernandez also observed physical evidence that was consistent
with

these

statements:

French

fries

on

the

ground

between

plaintiff’s vehicle and the drive-through window. Id. at 69:1013, 121:17-19.
In addition, there is no genuine dispute that although each
of the officers asked plaintiff multiple times to move her car
forward to allow other customers access to the drive-through,
plaintiff refused. Pl.’s Resp. to Def.’s L.R. 56.1 Stmt. at
7

¶¶ 14, 17.3 Plaintiff also acknowledges that Officer Anderson
“believed she was intoxicated because she was being loud and
unreasonable.” Pl.’s Resp. to Def.’s L.R. 56.1 Stmt. at ¶ 18.
These facts amply support probable cause for plaintiffs’
arrest.

Plaintiff

argues

that

factual

disputes

must

be

resolved to determine whether probable cause existed, but the
only factual dispute she identifies relates to whether other
cars were behind her during the time she refused to move her car
away

from

the

drive-through

window.

But

plaintiff’s

evidence

that there were none--which consists of her own testimony that
she did not “notice” any other cars; the officers’ inability to
recall the make, model, or color of the cars they observed; and
the fact that her order was the last one taken by the McDonald’s
employee

whose

shift

was

ending

around

that

time--does

not

controvert the officers’ and Sandoval’s affirmative statements
3

Defendants assert that “each of the four police officers asked
Allen several times to move her car forward away from the drivethru
window....Each
officer
specifically
asked
Allen
at
different times to move her car.” Plaintiff responds: “Admit
that the testimony is accurately cited. Officer Anderson claims
he asked Allen to move her car ten times in fifteen seconds.” DN
68 at ¶ 14. Defendants also state, “Allen did not comply with
the officers’ directions and repeated requests to move her car,”
id. at ¶ 17, to which plaintiff responds with a lengthy
narrative that does not controvert defendants’ assertion.
Accordingly, I deem these facts admitted, notwithstanding
plaintiff’s statement elsewhere that the officers “never asked
her to move her car forward out of the drive-thru lane.” Id. at
¶ 42. See Hudgens v. Wexler and Wexler, 391 F. Supp. 2d 634, 637
(N.D. Ill. 2005) (any L.R. 56.1 statement not controverted by
the statement of the opposing party may be deemed admitted). At
all events, there is no dispute that plaintiff refused to move
her vehicle either before or after the officers’ arrival.
8

that

other

cars

were

indeed

behind

plaintiff.

Moreover,

the

transcript of Sandoval’s 911 call, which reflects that the 911
operator heard honking in the background, support defendants’
account of the facts.4 And while plaintiff disputes that she ever
raised her voice, swore, or threw food, she does not dispute
that

Sandoval

told

the

911

operator

and

the

officers

that

plaintiff had done so, or that Officer Hernandez saw physical
evidence corroborating Sandoval’s account.
Plaintiff further argues that probable cause must be tried
to a jury because there is no evidence that she verbally nor
physically threatened the officers. But such threats are not
required to establish either disorderly conduct or resisting or
obstructing a peace office. Accordingly, their absence does not
reasonably suggest that probable cause to arrest her for these
offenses was lacking. When considered in light of the record as
a whole, I conclude that that the facts known to the officers at
the time of the arrest, which included plaintiff’s admittedly
“loud

and

unreasonable”

behavior,

Sandoval’s

statement

and

corroborating physical evidence that plaintiff threw her food at
McDonald’s

4

employees,

and

plaintiff’s

undisputed

refusal

to

The transcript reads: “Female caller: ‘Because, she’s in our
driveway. And, she doesn’t let us take the other money from our
customers, and the customers are leaving behind her. She’s in
our first booth, where we take the money and everything.
Dispatcher: Oh. Is that all of them honking? Female Caller:
Yeah. They’re honking they’re – well, some customers left
already.’” Def.’s L.R. 56.1 Stmt., Exh. 2 at 3-4.
9

comply

with

the

officers’

simple

and

objectively

reasonable

request that she move her car to an area where she would not
obstruct operation of the drive-through, are sufficient as a
matter of law to justify the officers’ conclusion that probable
cause existed for her arrest.5 See Maniscalco, 712 F.3d at 1144;
Ryan 45 F.3d at 1093 (7th Cir. 1995).
Turning

briefly

to

plaintiff’s

claim

for

failure

to

provide medical care, which she clarifies in her opposition is
asserted under the Fourth Amendment, I likewise conclude that
the

evidence

Under

the

is

insufficient

Fourth

to

Amendment,

defendants’

failure

to

“objectively

unreasonable

withstand
plaintiff

provide
under

summary
must

medical

the

judgment.

prove

attention

circumstances.”

that
was

Williams,

509 F.3d at 403 (explaining the lower standard that applies to
such

claims

under

the

Fourth

Amendment,

as

compared

to

the

“deliberate indifference” standard under Eighth and Fourteenth
Amendments). The evidence here does not reasonably support that
conclusion.
Plaintiff does not dispute that she was taken by ambulance
from the police station to the hospital for evaluation. She
likewise
5

acknowledges

that

she

refused

treatment

at

the

I emphasize that because my conclusion rests on plaintiff’s
failure to comply with the officers’ request to move her car, I
need not resolve any factual dispute as to whether plaintiff
could physically have exited her vehicle while stopped at the
drive-through window and while one of the officers was in the
passenger seat.
10

hospital, and told hospital personal that she did not “request
to come here.”

Def.’s L.R. 56.1 Stmt. at ¶¶ 24-25. Plaintiff’s

theory seems to be that defendants violated her right to medical
care by taking her first to the police station and then to the
hospital,

rather

than

directly

to

the

hospital

from

the

McDonald’s. But even assuming that a jury could find that this
delay was “objectively unreasonable,” it could not rationally
conclude that plaintiff was injured by it, given that plaintiff
refused treatment once she ultimately got to the hospital. Nor
is plaintiff’s theory supported by the cases she cites, Rosen v.
King, 913 F. Supp. 2d 666 (S.D. Ind. 2012) and Lewis v. Tazewell
County, 2013 WL 869949 (C.D. Ill. Mar. 7, 2013), both of which
involved cases in which the plaintiff requested, but was denied,
medical treatment.
III.
For the foregoing reasons, defendants’ motion for partial
summary judgment is granted.
ENTER ORDER:

Elaine E. Bucklo
United States District Judge
Dated: March 20, 2017

11