Ploski v. City Of Chicago et al

Filing 70

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 8/26/2019. For the reasons stated below, the Court grants Defendants' motion for summary judgment on Count I on qualified immunity grounds, dismisses Count II with p rejudice, and declines to exercise supplemental jurisdiction over Count III, which is dismissed without prejudice. The Court will enter a Rule 58 final judgment and close this case. Civil case terminated. Mailed notice(cdh, )

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN PLOSKI,
Plaintiff,
v.
Chicago Police Officer B. MEDENICA,
Star # 13522, and the CITY OF
CHICAGO,
Defendant.

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Case No. 17-cv-2306
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff John Ploski (“Plaintiff”) brings this action against Defendant Officer Bogdan
Medenica (“Defendant Medenica”) and Defendant City of Chicago (“Defendant City”).
Specifically, Plaintiff asserts that Defendant Medenica used excessive force against him in
violation of 42 U.S.C. §1983 (Count I) and that Defendant City is required to indemnify Medenica
under Illinois law (Count III). 1 The facts in this case are straightforward and largely undisputed
except for whether the Defendant Officer’s conduct was accidental or intentional. For purposes
of the instant motion for summary judgment [51], the Court assumes the latter. The pivotal
question is whether that conduct—which consisted of Medenica striking Ploski in the head with a
baton at a police academy training exercise—raises a claim for battery under state law or for a
violation of the Fourth Amendment under the federal Constitution. Because there is no clearly
established law supporting the federal theory of liability, Medenica is entitled to qualified
immunity on Count I. And as that is the only federal claim, Ploski must pursue any recovery in a
refiled action in the Illinois courts, which remain open to him for a period of one-year (see 735
In his response brief [see 55, at 1], Plaintiff concedes that he cannot maintain a claim for respondeat
superior and thus has agreed to dismissal of Count II.

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ILCS 5/13-217). In sum, the Court grants Defendants’ motion for summary judgment on Count I
on qualified immunity grounds, dismisses Count II with prejudice, and declines to exercise
supplemental jurisdiction over Count III, which is dismissed without prejudice. The Court will
enter a Rule 58 final judgment and close this case.
I.

Background
The Court takes the relevant facts primarily from the parties’ Local Rule 56.1 statements,

[53], [56], [57], and [58]. The following facts are undisputed except where a disagreement
between the parties is noted.
This Court has subject matter jurisdiction over the Plaintiff’s federal claims pursuant to 28
U.S.C. § §1331 and 1367. Venue in this judicial district is proper because the events alleged in
Plaintiff’s complaint occurred within the Northern District of Illinois and Defendants reside in or
are located in this District.
On August 23, 2016, Defendant Medenica struck Plaintiff in the head with an expandable
metal baton. At the time of the incident, Plaintiff was a recruit in the Chicago Police Department
(“CPD”) Training Academy Class 16-3C. Plaintiff was attending a training on the use of batons
taught by Defendant Medenica, a police officer and gym instructor for the recruits. Plaintiff began
the session by standing with the other recruits in a block formation of approximately three rows of
nine. Defendant Medenica told the recruits not to hit anyone in the head, neck, or spine or back
with a baton.
Plaintiff’s account of the training session is as follows. Shortly after the session began,
Defendant Medenica pulled Plaintiff out of the front line of the formation by his collar and
performed an “arm-bar” type technique on him using a collapsible metal baton for leverage.
Defendant Medenica was showing the class how to use the baton to put pressure on someone’s

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shoulder. When Defendant Medenica released Plaintiff, he asked if the arm-bar hurt. Plaintiff
said “No,” in an effort to demonstrate that he was tough enough to be a police officer. Defendant
Medenica tapped Plaintiff on the chest with the baton and said, “That’s not good.” Plaintiff
returned to his position in the front line of the block formation and Defendant Medenica walked
to the end of the formation on Plaintiff’s left side. A few seconds later, Defendant Medenica
walked aggressively toward Plaintiff. Defendant Medenica was not holding the baton closed with
his thumb. He “loaded up” his baton-holding arm, made a punching motion towards Plaintiff with
the baton in his hand, and struck Plaintiff with the baton on the left side of his forehead.
Defendant Medenica does not recall which recruit he used for the armbar demonstration
and denies that he hit Plaintiff intentionally. Viewing the facts in the light most favorable to
Plaintiff for the purposes of this motion, the Court accepts that Defendant Medenica struck Plaintiff
intentionally. The parties agree that Defendant Medenica’s approach, swing, and baton strike were
not part of any training exercise or classroom demonstration.
When the baton hit him, Plaintiff’s vision went out briefly, he saw blood running down his
arm, and he began to fall. Defendant Medenica caught Plaintiff and directed him to a chair.
Defendant Medenica ran to another location, left Plaintiff alone in the chair, and returned with a
compress for Plaintiff’s head. Plaintiff walked to the locker room with a different instructor to
wash out the laceration on his head and was taken by ambulance to the emergency room. He
received stitches and was discharged that day. Plaintiff returned to the emergency room the next
day because of continuing symptoms and was then diagnosed with a concussion. He was referred
to a neurologist, who did not clear him to work for several weeks. Plaintiff sat out the rest of that
term at the academy. He later graduated and is now a Chicago Police Officer.

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On March 27, 2017, Plaintiff filed this lawsuit against Defendant Medenica and Defendant
City alleging an excessive force claim against Defendant Medenica (Count I), respondeat superior
liability against Defendant City (Count II), and indemnification against Defendant City (Count
III). Pending before the Court is Defendants’ motion for summary judgment [51].
II.

Legal Standard
Summary judgment is appropriate “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). A genuine dispute as to any 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). In determining summary judgment motions, “facts must be viewed in the light
most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott
v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56(c)). The party seeking summary
judgment has the burden of establishing that there is no genuine dispute as to any material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Summary judgment is proper where “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.” Gibbs
v. Lomas, 755 F.3d 529, 536 (7th Cir. 2014) (quoting Jewett v. Anders, 521 F.3d 818, 821 (7th Cir.
2008)). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other materials; or (B)
showing that the materials cited do not establish the absence or presence of a genuine dispute, or

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that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). “The court need consider only the cited materials, but it may consider other materials in
the record.” Fed. R. Civ. P. 56(c)(3).
The party seeking summary judgment has the burden of establishing the lack of any
genuine issue of material fact. See Celotex Corp., 477 U.S. at 323. “Once a party has made a
properly-supported motion for summary judgment, the opposing party may not simply rest upon
the pleadings but must instead submit evidentiary materials that ‘set forth specific facts showing
that there is a genuine issue for trial.’” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099,
1104 (7th Cir. 2008) (quoting Fed. R. Civ. P. 56(e)); see also Anderson, 477 U.S. at 250. In
evaluating a motion for summary judgment, the Court will construe all facts in the light most
favorable to the nonmoving party and draw all reasonable inferences in favor of the nonmoving
party. Bell v. Taylor, 827 F.3d 699, 704 (7th Cir. 2016).
III.

Analysis
The complaint [1] alleges an excessive force claim against Defendant Medenica (Count I),

and respondeat superior liability (Count II) and indemnification (Count III) against Defendant
City. By agreement, Count II is voluntarily dismissed with prejudice. And, because Defendant
Medenica is entitled to qualified immunity on the excessive force claim, the Court grants
Defendants’ motion on Count I and dismisses the state law indemnity claim, Count III, as well.
A.

Respondeat Superior Liability (Count II)

Plaintiff has agreed to dismiss Count II with prejudice. See [55] at 1.
B.

Qualified Immunity

Because qualified immunity is “an immunity from suit rather than a mere defense to
liability,” the Court begins its analysis there. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The

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doctrine of qualified immunity protects public officials performing discretionary functions against
suits for damages unless their conduct violates clearly established statutory or constitutional rights
of which a reasonable person would have known. Tangwall v. Stuckey, 135 F.3d 510, 514 (7th
Cir. 1998) (citations omitted); see also Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified
immunity protects “all but the plainly incompetent and those who knowingly violate the law”);
Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015). “Qualified immunity balances two
important interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson, 555 U.S. at 231). Here, Defendants have raised
qualified immunity as a defense.
Qualified immunity is an affirmative defense, but the plaintiff carries the burden of
defeating it once it is raised. Ewell v. Toney, 853 F.3d 911, 919 (7th Cir. 2017) “To defeat the
qualified immunity defense, a plaintiff must show: (1) that the defendant violated a constitutional
right, and (2) that the right was clearly established at the time so that it would have been clear to a
reasonable officer that her conduct was unlawful in the situation.” Id. at 919 (holding that these
questions can be addressed in either order). In short, Plaintiff must show that police recruits have
a constitutional right to be free from being struck by their instructors, and that right was clearly
established when Defendant Medenica struck him. Plaintiff has done neither.
First Plaintiff has failed to show that, as a police recruit, he had a clearly established
constitutional right to be free from being hit intentionally by an instructor during a training session
at the police academy. Plaintiff cites no cases directly on point, and the Court is not aware of any
precedent stating that freedom from battery in the police training context is a constitutional right.
Cf. Treiber v. Rompala, 2002 WL 1467673, at *5 (N.D. Ill. July 9, 2002) (“While Plaintiff [a police

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officer suing her supervisor] alleges contact * * * that might amount to a common law battery, she
offers no legal precedent showing, or even suggesting, that it is clearly established that Plaintiff’s
constitutional rights were relevant to this interaction.”). Furthermore, not every state law tort
becomes a federally cognizable constitutional tort under § 1983 simply because it was committed
by a state actor. See Baker v. McCollan, 443 U.S. 137, 146 (1979).
Instead, Plaintiff notes that violations of constitutional rights may be “clearly established”
if “a closely analogous case establishes that the conduct is unconstitutional,” citing Siebert v.
Severino, 256 F.3d 648, 654-55 (7th Cir. 2001). Plaintiff then asserts that under Titran v. Ackman
“it would have been obvious to a reasonable officer that intentionally striking a defenseless person
with a metal baton in the forehead violates the constitution[sic].” See [55] at 14 (citing Titran v.
Ackman, 893 F.2d 145, 148 (7th Cir. 1990)).
Titran is not “closely analogous” to the instant case. In Titran, an arrestee sued law
enforcement officers over their use of force while she was being moved from booking to pretrial
detention. When she refused to put on an orange jumpsuit, officers “took off Titran’s clothing and
stuffed her into an orange jumpsuit * * * [T]he officers wrestled her to the ground and broke her
wrist, and * * * also disabled her with a device that delivers a high-voltage shock (an XR 5000
“cattle prod”) and temporarily prevents physical coordination.” Titran, 893 F.2d at 145–46.
Plaintiff in this case was not an arrestee who refused to obey law enforcement personnel; he was
a police recruit who voluntarily attended the police academy. Plaintiff was not restrained by
multiple officers on his way to pretrial detention; he was participating in a police academy training.
And Plaintiff was struck by a baton during the class, not shocked with a cattle prod or similar
device on his way to lockup. Plaintiff’s concussion was a serious injury that seems comparable
to, if not worse than, a broken wrist, but that similarity, in the face of significant differences with

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the facts in Titran, does not make the two cases “closely analogous.” Furthermore, Plaintiff does
not explain why a case about an arrestee being moved to pretrial detention establishes a
constitutional right for a police recruit. Plaintiff cites no other cases to support the proposition that
Defendant Medenica is not entitled to qualified immunity, nor is the Court aware of any other
cases that might apply.
Second, Plaintiff has failed to show that a constitutional violation—specifically, a seizure
under the Fourth Amendment—took place. Claims of excessive force generally are analyzed
under the Fourth Amendment’s reasonable seizure standard. See Graham v. Connor, 490 U.S.
386, 395 (1989). Such a claim, however, requires a seizure of the complaining party. See Schaefer
v. Goch, 153 F.3d 793, 796 (7th Cir.1998). A seizure for purposes of the Fourth Amendment can
occur when an officer “by means of physical force or show of authority has in some way restrained
the liberty of a citizen.” United States v. Mendenhall, 446 U.S. 544, 552 (1980) (internal quote
omitted); see also Graham, 490 U.S. at 395 n. 10 (“A ‘seizure’ triggering the Fourth Amendment’s
protections occurs only when government actors have, by means of physical force or show of
authority, * * * in some way restrained the liberty of a citizen.”) (internal quotation omitted). A
person is “seized” under the Fourth Amendment “if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to leave.”
Mendenhall, 446 U.S. at 554; see also Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 720 (7th Cir.
2013). The Supreme Court further explained the circumstances that might indicate a seizure as
follows: “the threatening presence of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled.” Id. at 554; see also Duran v.
Sirgedas, 240 Fed. Appx. 104, 110–111 (7th Cir. 2007). To demonstrate a seizure without force,

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a plaintiff must show not only that her personal liberty had been restrained, Florida v. Bostick, 501
U.S. 429, 435–37 (1991), but also that she actually yielded to a show of authority. California v.
Hodari D., 499 U.S. 621, 626 (1991); see also Hawkins v. Mitchell, 756 F.3d 983, 993 (7th Cir.
2014) (“[S]eizure of a person without physical contact is also possible—the officer must make a
‘show of authority’ that a reasonable person would understand to mean that she is not ‘free to
leave,’ and she must submit to that show of authority.”).
The relevant undisputed facts are that Defendant Medenica walked up to Plaintiff and
struck him on the left side of his head with a baton. Plaintiff’s vision faded out momentarily, and
as he began to fall, Defendant Medenica caught him and directed him to a chair. Defendant
Medenica then ran to another location, leaving Plaintiff alone in the chair, and returned with a
compress for Plaintiff’s head. Plaintiff then walked to the locker room to wash out the laceration
on his head and was taken by ambulance to the emergency room.
Even when viewed in the light most favorable to Plaintiff, the facts do not show a seizure.
There is no evidence that Defendant Medenica “intended to or did acquire physical control over
[Plaintiff’s] person.” McCoy v. Harrison, 341 F.3d 600, 606 (7th Cir. 2003); see also Brower v.
Cty. of Inyo, 489 U.S. 593, 596, (1989) (“Violation of the Fourth Amendment requires an
intentional acquisition of physical control.”). After striking Plaintiff, Defendant Medenica did not
physically restrain him, or otherwise act or give orders that would lead a reasonable person to
believe he was not free to leave. See Mendenhall, 446 U.S. at 554. In fact, after helping Plaintiff
to a chair, Defendant Medenica left the gym. He did return shortly with a cold compress, but after
that Plaintiff walked away and went to the locker room. Cf. McCoy, 341 F.3d at 606 (plaintiff
testified that after a brief altercation with a police officer, he “let [the plaintiff] go and just walked
* * * back down the driveway”); Lewis v. City of Chicago, 2014 WL 1673377, at *3 (N.D. Ill.

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Apr. 28, 2014) (“The record indicates that there was some type of altercation, but immediately
after, Plaintiff went back into her home and Defendant Leveille left the premises.”) The record
does not contain evidence that Defendant Medenica made any show of authority without physical
force, and even if he had, there is no evidence Plaintiff yielded to it. Defendant Medenica left the
gym after striking Plaintiff, and after he returned, Plaintiff walked away toward the locker room,
and later left the building with paramedics. Because the record does not contain evidence to
support a finding of restraint or yielding to a show of authority, Plaintiff has failed to show that a
seizure under the Fourth Amendment occurred.
Plaintiff argues that the single blow from Defendant Medenica should constitute a seizure,
but the cases he cites are distinguishable. First, Plaintiff cites Acevedo v. Canterbury, in which a
police officer punched the plaintiff in the head at a car impound lot. 457 F.3d 721, 725 (7th Cir.
2006). While superficially similar, the details of the circumstances in Acevedo are distinct. In that
case, two officers approached Plaintiff late at night while he and three other men were attempting
to retrieve a car from an impound lot. After a brief verbal altercation, the parties turned away from
each other, then the police officer suddenly turned around and punched the plaintiff in the head.
Id. at 723. In determining that a seizure occurred, the Seventh Circuit cited not only the plaintiff’s
fall to the ground, but also the fact that he was in a location “under the general control of the police
(the auto pound),” that the plaintiff lost consciousness, and that the plaintiff “remained in a daze
for a time,” unable to move and unaware of his surroundings. Id. In contrast, the evidence before
the Court shows that Plaintiff’s condition, though serious, was not as severe as circumstances the
Seventh Circuit addressed in Acevedo. Furthermore, the parties do not cite, and the Court is not
aware of, any precedent that would allow the Court to treat a police instructor teaching a class for
police recruits the same as a police officer confronting the subject of an emergency call.

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Bernal v. Johnson is similarly distinguishable. 2014 WL 4976212 (N.D. Ill. Sept. 25,
2014). In that case, a correctional officer at a maximum-security prison sprayed four visitors to
the prison with pepper spray. In denying the defendant’s motion to dismiss, the Court determined
that “Defendant deploying pepper spray onto Plaintiffs sufficiently raises the plausible inference
that the restraint on their liberty was significant enough to constitute a seizure. Id. at *4. The court
reasoned that the pepper spray immobilized the plaintiffs, they were unable to immediately go into
their homes, and they were in a maximum-security prison, a “highly regulated environment under
the Defendant’s employer’s control—which * * * already restricts movement.” Id. Plaintiff in
this case was not in a prison, did not experience the restrictions on movement that plaintiffs in
Bernal did, and was able to move freely (to receive medical attention) after he was struck with a
baton.
Ali v. Vill. of Tinley Park is harder to square with the other decisions in this circuit. 79 F.
Supp. 3d 772, 774 (N.D. Ill. 2015). In Ali, the plaintiff was walking past a fire department when a
firefighter sprayed him with a “powerful” fire hose. Id. at 774. In denying a motion to dismiss
the court determined that “the allegation that [the defendant] intentionally used a fire hose to spray
Ali plainly qualifies as a statement that a seizure took place.” Id. at 778. While Ali seems to apply
a lower threshold for the application of force that qualifies as a seizure, a single non-precedential
decision about a firefighter hosing down a pedestrian does not allow Plaintiff in this case to
establish that an instructor striking a recruit at a police academy qualifies as a seizure under the
Fourth Amendment.
To be sure, as Defendants acknowledge, the evidence taken in the light most favorable to
Plaintiff does not establish a right to be free from any potential liability at all on these facts. Indeed,
if Plaintiff prevails at trial on his assertion that Defendant Medenica intentionally struck Plaintiff

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on the head with a baton, he may have a successful claim for battery under state law. But, for all
of the reasons stated above, Plaintiff has not shown a clearly established right under the
Constitution—as opposed to state law—to haul Medenica into court to account for his conduct
under the federal civil rights laws. Accordingly, the Court grants Defendants’ motion for summary
judgment on Count I.
C.

Plaintiff’s State Law Claim

Because the Court grants summary judgment on the sole claim (Count I) over which it has
original jurisdiction, it must now address whether to retain jurisdiction over any remaining state
law claim. See 28 U.S.C. § 1367(c)(3). In addition to a federal claim for excessive force, Plaintiff
has asserted a state law claim for indemnity. And, as just discussed, the facts pled also state a
plausible claim for state law battery. However, the Seventh Circuit consistently has stated that “it
is the well-established law of this circuit that the usual practice is to dismiss without prejudice state
supplemental claims whenever all federal claims have been dismissed prior to trial.” Groce v. Eli
Lilly, 193 F.3d 496, 501 (7th Cir.1999); Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th
Cir.1995); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir.1993). Finding
no justification for departing from that “usual practice” in this case, 2 the Court dismisses without
prejudice Plaintiff’s asserted state law claim for indemnification (Count III), as well as his

In Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251–53 (7th Cir.1994), the Seventh Circuit noted that
there occasionally are “unusual cases in which the balance of factors to be considered under the pendent
jurisdiction doctrine judicial economy, convenience, fairness, and comity-will point to a federal decision
of the state-law claims on the merits.” The first example that the Court discussed occurs “when the statute
of limitations has run on the pendent claim, precluding the filing of a separate suit in state court.” Id. at
1251. That concern is not present here, however, because Illinois law gives Plaintiff one year from the
dismissal on jurisdictional grounds of state law claims in federal court in which to re-file those claims in
state court. See 735 ILCS 5/13–217; Davis v. Cook County, 534 F.3d 650, 654 (7th Cir.2008). Dismissal
without prejudice also is appropriate here because substantial judicial resources have not been committed
to analyzing either the asserted count or the potential (yet unasserted) state law count of Plaintiff’s
complaint. Wright, 29 F.3d at 1251.
2

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unasserted yet viable state law battery claim. In dismissing Plaintiff’s federal constitutional
claims, the Court expresses no opinion on the ultimate merits of any state law claims that Plaintiff
may wish to bring. See Kernats v. O’Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994).
IV.

Conclusion
For the reasons explained above, the Court grants Defendants’ motion for summary

judgment on Count I on qualified immunity grounds, dismisses Count II with prejudice, and
declines to exercise supplemental jurisdiction over Count III, which is dismissed without
prejudice. The Court will enter a Rule 58 final judgment and close this case.

Dated: August 26, 2019

____________________________
Robert M. Dow, Jr.
United States District Judge

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