Smith v. Stewart et al

Filing 90

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 3/10/2020. For the reasons stated above, Defendants' motion for summary judgment 55 is granted and Plaintiff's motion to dismiss 71 is denied. In view of the disposition in favor of Defendants on the merits, Defendants' motion for dismissal with prejudice as a sanction for Plaintiff's harassing and vulgar communications with defense counsel 65 is denied as moot. However, given the egregiou s and highly inappropriate nature of those communications, the Court will refer Plaintiff to the Executive Committee of the Northern District of Illinois for a determination of whether to impose filing restrictions or other sanctions and/or discipl ine on Plaintiff. Because this order resolves all of the remaining claims in the case, a final judgment will be entered under Federal Rule of Civil Procedure 58 in favor of Defendants and against Plaintiff and this civil case will be terminated. For further information see below. Mailed notice(cdh, )

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

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Plaintiff,
v.
JASON STEWART et al.,
Defendants.

Case No. 17-cv-9085
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
In his governing first amended complaint [41], pro se Plaintiff Nathaniel Smith asserts a
Section 1983 claim against the City of Mendota, Illinois, Sergeant Jason Stewart, Officer Paul
Peterson, and Police Chief Tom Smith for alleged use of excessive force during his arrest on
December 12, 2017. Currently before the Court are Defendants’ motion for summary judgment
[55], Defendants’ motion for sanctions [65], and Plaintiff’s motion to dismiss Defendants’ motion
for summary judgment [71].

For the following reasons, Defendants’ motion for summary

judgment [55] is granted and Plaintiff’s motion to dismiss [71] is denied. In view of the disposition
in favor of Defendants on the merits, Defendants’ motion for dismissal with prejudice as a sanction
for Plaintiff’s harassing and vulgar communications with defense counsel [65] is denied as moot.
However, given the egregious and highly inappropriate nature of those communications, the Court
will refer Plaintiff to the Executive Committee of the Northern District of Illinois for a
determination of whether to impose filing restrictions or other sanctions and/or discipline on
Plaintiff. Because this order resolves all of the remaining claims in the case, a final judgment will
be entered under Federal Rule of Civil Procedure 58 in favor of Defendants and against Plaintiff
and this civil case will be terminated.

I.

Summary Judgment
A.

Background

The following facts are taken from Defendants’ Local Rule 56.1 statement [57], which is
properly supported by citations to the record in accordance with Local Rule 56.1. The record
includes sworn declarations from Officer Peterson, Sergeant Smith, and Chief Smith; the Mendota
Police Department’s case report from December 12, 2017; video taken from Officer Peterson’s
body camera and from the in-house camera in the Mendota Police Department’s report room on
December 12, 2017; Plaintiff’s deposition transcript; Plaintiff’s medical records; and a transcript
of Plaintiff’s allegedly harassing text messages.1
Plaintiff has not filed a response to Defendants’ Local Rule 56.1 statement or supported
his arguments with affidavits or other materials, as required by the local rules. In particular, Local
Rule 56.1(b)(3) requires a party opposing summary judgment to file a response to the movant’s
56.1 statement with “specific references to the affidavits, parts of the record, and other supporting
materials relied upon.” Plaintiff also received notice that he “must submit evidence, such as
witness statements or documents, countering the facts asserted by the defendant and raising
material issues of fact for trial” and that “[a]ny witness statements must be in the form of
affidavits.” [69] at 1. Due to Plaintiff’s failure to comply with these rules, the Court would be
well within its discretion to deem all of Defendants’ factual statements admitted. See Wilson v.
Kautex, Inc., 371 Fed. Appx. 663, 664 (7th Cir. 2010) (explaining that it is “well within the district
court’s discretion” to strictly enforce Local Rule 56.1, even where the plaintiff “is a pro se
litigant”); Smith v. State Farm Ins. Co., 347 Fed. Appx. 228, 230 (7th Cir. 2009) (affirming grant

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Chief Smith’s declaration authenticates the case report, videos, and text messages. See [57-3] at 2-3.

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of summary judgment against pro se plaintiff who failed to rebut defendant insurer’s factual
assertions with admissible evidence after being apprised of the consequences of failing to do so).
Nonetheless, out of an abundance and taking into account Plaintiff’s pro se status and
various medical issues,2 the Court has also carefully reviewed and considered the full transcript of
Plaintiff’s deposition, see [57-7], as well as the unsworn factual allegations contained in Plaintiff’s
complaint [41] and various responses to summary judgment, see [61], [71], [74], [75], [86], [87].
However, to the extent that Plaintiff’s version of events is “blatantly contradicted” by the video
evidence submitted by Defendants, “so that no reasonable jury could believe it,” the Supreme
Court has instructed that the district could “should not adopt that version of the facts for purposes
of ruling” on Defendants’ motion for summary judgment. Scott v. Harris, 550 U.S. 372, 380
(2007); see also Horton v. Pobjecky, 883 F.3d 941, 944 (7th Cir. 2018) (“[W]hen video footage
clearly contradicts the nonmovant’s claims, we may consider that video footage without favoring
the nonmovant. This is because on summary judgment we view the facts in the light most
favorable to the nonmovant only if there is a genuine dispute about those facts. When video
footage firmly settles a factual issue, there is no genuine dispute about it, and we will not indulge
stories clearly contradicted by the footage.”). Instead, the district court is to view the facts in the
light depicted by the videotapes that captured the events underlying Plaintiff’s excessive force
claim. Scott, 550 U.S. at 381 (in considering motion for summary judgment that raised factual
issue of whether motorist fleeing law enforcement officials was driving in a way that endangered

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In his deposition, Plaintiff stated that he is schizophrenic, bipolar, and has a degenerative back injury
caused by a car accident when he was a teenager. See [57-7] at 4, Tr. p. 11. Plaintiff also stated that “I’m
disabled, and that is … partly why I had asked for an appointed counsel.” Id., Tr. p. 10:20-21. However,
the docket in this case shows that Plaintiff never filed a motion for attorney representation or an application
to proceed in forma pauperis, which are prerequisites for recruitment of counsel by the Court. See 28
U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford counsel.”).
In response to the Court’s order directing him to either pay the filing fee or submit an application to proceed
in forma pauperis [5], Plaintiff paid the filing fee, see [6].

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human life at the time police officer rammed motorist’s car from behind to put end to chase, courts
could not rely upon motorist’s version of events, which was so utterly discredited by the record
that no reasonable jury could have believed him, and instead had to view facts in the light depicted
by videotape that captured events underlying motorist’s excessive force claim); see also Johnson
v. Moeller, 269 Fed. Appx. 593, 596 (7th Cir. 2008) (police officers did not use excessive force
against pretrial detainee, despite detainee’s contention that officer struck him six to eight times in
head, where security tape showed that after detainee hit one officer, other officer struck him only
once in back with metal restraints, drove him to floor, and handcuffed him, medical evaluation that
was conducted same day as altercation contradicted detainee’s account of severe beating, and there
was no evidence that tape had been edited).3
At the time relevant to the complaint, Plaintiff Nathaniel Smith (“Plaintiff”) was a resident
of Mendota, Illinois. Defendant Paul Peterson (“Officer Peterson”) is a police officer with the
Mendota Police Department (“Department”). Defendant Jason Stewart (“Sergeant Stewart”) is a
police sergeant with the Department and Officer Peterson’s supervisor. Defendant Thomas Smith
(“Chief Smith”) was the Police Chief at the time relevant to the complaint, but has since retired.
On December 12, 2017, Plaintiff was at the Mendota Police Station (“Station”). Officer
Peterson and Sergeant Stewart were on duty at the Station. According to his declaration, Chief
Smith was not at the Station; Plaintiff also testified that he did not recall seeing Chief Smith at the
Station. Around 3:00 p.m., Plaintiff met with Officer Peterson concerning harassing text messages
that Plaintiff had allegedly sent to a woman (the “complainant”). Officer Peterson took Plaintiff

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There is no evidence that the videos have been altered in any way and Chief Smith has provided a sworn
declaration that the videos provided are true, accurate, and unedited video recordings made in the ordinary
course of business at the Mendota Police Department. Plaintiff claims that the videos contain gaps, but the
Court has reviewed them and at most the videos freeze for a few seconds here and there, but not in places
that are relevant to the parties’ arguments or the Court’s analysis.

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into the report room for questioning. Officer Peterson read Plaintiff his Miranda rights and then
questioned Plaintiff about his alleged threatening text messages and social media post directed at
the complainant and her brother. At his deposition, Plaintiff would neither admit nor deny sending
the messages. See [57-7] at 12, Tr. p. 42:6-10. At Plaintiff’s prompting, Plaintiff and Officer
Peterson also discussed other, unrelated events, including a murder that Plaintiff claimed to believe
occurred 14 years earlier. Plaintiff was not handcuffed or searched for this entire period, which
lasted for about 1 hour and 39 minutes and is captured on Officer Peterson’s body camera and the
in-house camera in the report room.
At the end of the interview, Officer Peterson left the room to speak to Sergeant Stewart and
the complainant. The complainant decided that she wanted to press charges against Plaintiff.
Officer Peterson and Sergeant Stewart re-entered the report room together. They explained to
Plaintiff that he was being charged with harassment. Officer Peterson asked Plaintiff to stand and
take off his jacket and two sweatshirts so that he could be searched. It is part of the Department’s
training and protocol to search a person when he is placed under arrest. This is done for the safety
of the arrestee, the arresting officer, and other persons in the area. The search includes the groin
and crotch area because, as officers are taught in training, weapons and contraband can be hidden
in those areas.
Plaintiff turned and faced the wall and Officer Peterson conducted the frisk by patting down
Plaintiff’s torso, legs, and groin area and emptying Plaintiff’s pants pockets. See [57-6], Ex. F,
video from in-house camera, approx. 4:40 to 4:42 p.m. The video shows that Plaintiff did not
verbalize any objection to or concerns about how he was positioned against the wall; the pat-down
lasted less than a minute; neither Officer Peterson nor Plaintiff made any sudden movements; and
Plaintiff gave no verbal indication that he was in pain at any point during the frisk. During the

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pat-down, Plaintiff offered, “if you want me to get naked I will”; Officer Peterson declined the
offer. Id. Officer Peterson conducted the frisk under the watch of his supervisor, Sergeant Stewart.
Officer Peterson and Sergeant Stewart were aware that the in-house camera would capture the
frisk. The video from the in-house camera obviously contradicts Plaintiff’s deposition testimony
that Officer Peterson “shook his pants hard and furiously,” [57-7] at 10, Tr. p. 34:11-22, which is
what Plaintiff claims injured his testicles, back, and knees, see id. at Tr. pp. 34-35. The video does
not record any shaking of Plaintiff’s pants, much less shaking that could be characterized as “hard”
or “furious.”
Immediately after he was frisked, Plaintiff sat down on the bench in the report room.
Officer Peterson handcuffed Plaintiff’s right wrist to the bench at approximately 4:41 p.m. Less
than two minutes later, Plaintiff complained that the handcuff was too tight and hurting his wrist.
Officer Stewart responded, “good,” but then immediately said “I can loosen it,” approached
Plaintiff, and proceeded to loosen the handcuff. See [57-6], Ex. F, approx. 4:42 to 4:43 p.m.
Officer Stewart noted that he could fit his finger through the handcuff on Plaintiff’s wrist. After
Officer Stewart loosened the handcuff on Plaintiff’s wrist, Plaintiff slid to the left, away from his
handcuffed wrist, pulling his right wrist against the handcuff, despite Officer Stewart repeatedly
telling him to move in the other direction. Plaintiff remained in the handcuff for approximately
seven minutes more. During that time, Plaintiff complained, in conversational tones, that he was
having extreme back pain, that Officer Stewart had hurt his testicles during the pat-down, and that
the handcuff was tight on his wrist. Officer Stewart offered Plaintiff the options of seeking medical
treatment immediately or proceeding to fingerprinting. Plaintiff chose to proceed to fingerprinting.
At approximately 4:50 p.m., Officer Peterson released Plaintiff from the handcuff so that he could
be taken for booking and fingerprinting. Plaintiff was in the handcuff for less than ten minutes

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total. During the time Plaintiff was cuffed, at least one officer was in the room, except for a period
of approximately 15 seconds around 4:43 p.m.
The video from the in-house camera obviously contradicts Plaintiff’s deposition testimony
that: (1) he was handcuffed behind his back, after asking the officers to handcuff him in the front,
rather than the back, because of an old injury, see [57-7] at 7-8, Tr. pp. 23:22-24:3, 25:14-17; 26:16; (2) he was handcuffed to the bench too tightly for “a period of hours” and “no less than an hour
and 40 minutes,” id. at 8, Tr. pp. 26:18-23, 28:17-22; (3) “for most of the time I was even in the
police station I was handcuffed, just sitting there with no officers in the room, begging for them to
loosen the cuffs,” id. at 10, Tr. p. 36:12-15; (4) his handcuffs were loosened only after “much
begging and screaming” for “over an hour,” id. at 8, Tr. p. 29:12-23; and (5) when the officers
loosened the cuff, “they did finally admit that it was too tight,” id. at 9, Tr. p. 30:11-15. In addition,
while Plaintiff testified that his wrist still hurt after the cuff was loosened due to “swelling,” he did
not testify that the cuff was still too tight after it was loosened. Id., Tr. p. 33:4-17; see also [74] at
2-4 (Plaintiff’s response to summary judgment asserting that Officer Peterson and Sergeant
Stewart “did not respond to my plea for them to loosen my handcuffs until it was too late” and
“[f]inally I believe over an hour later I then received help when Officer Peterson loosened the cuffs
only after the damage was done”).
Officer Stewart and Sergeant Smith escorted Plaintiff from the report room to be booked
and fingerprinted. In his complaint, Plaintiff alleged that on the way to be fingerprinted, Sergeant
Stewart “touched [him] twice, one time grabbing [his] shirt chest and pulling [him] with his
hands.” [41] at 7. Plaintiff did not mention this alleged contact in his deposition, and his medical
records from visiting the emergency room the next day do not mention such contact or any injury
to Plaintiff’s chest.

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After booking Plaintiff, Sergeant Stewart escorted Plaintiff back into the report room.
Plaintiff was not handcuffed when he re-entered the report room or at any time prior to leaving the
Station. After re-entering the report room, Plaintiff posted bond for $150. Instead of leaving after
paying bail, Plaintiff stayed for an additional 15 minutes to talk about the murder he believed
occurred 14 years ago.
The day after his arrest, on December 13, 2017, Plaintiff visited St. Elizabeth Hospital’s
emergency room. Plaintiff complained of back, wrist, and testicular pain allegedly from injuries
sustained during his arrest on December 12, 2017. According to the medical records included with
Defendants’ Local Rule 56.1 statement, Plaintiff had musculoskeletal back pain (which Plaintiff
had also reported when he visited the emergency room a week earlier); Plaintiff’s wrist showed no
loss of strength or range of motion, but had a contusion (i.e. bruise); and both of Plaintiff’s testes
were “normal” and showed “no swelling and no tenderness.” [57-8] at 26-27. Plaintiff returned
to the emergency room on December 23, 2017. The medical records provided by Defendants
indicate that Plaintiff complained of body aches, fever, and coughing; that Plaintiff was negative
for testicular pain and had a normal range of motion; and that Plaintiff did not report any back or
wrist pain.
B.

Legal Standard

Summary judgment is proper where “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 party asserting that a fact cannot be or is genuinely disputed must support the assertion
by *** citing to particular parts of materials in the record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). A genuine issue of material

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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). The party seeking summary
judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court “must construe all facts and draw all
reasonable inferences in the light most favorable to the nonmoving party.” Majors v. Gen. Elec.
Co., 714 F.3d 527, 532-33 (7th Cir. 2013) (citation omitted).
To avoid summary judgment, the nonmoving party must go beyond the pleadings and “set
forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 250.
Summary judgment is proper if the nonmoving party “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.” Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 646 (7th Cir.
2011) (quoting Celotex, 477 U.S. at 322). The non-moving party “must do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the “mere existence of a scintilla
of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence
on which the jury could reasonably find for the [non-movant].” Liberty Lobby, 477 U.S. at 252.
C.

Analysis

Plaintiff’s pro se amended complaint, which is brought pursuant to 42 U.S.C. § 1983,
alleges a Fourth Amendment excessive force claim against Defendants. “An excessive-force claim
requires an assessment of whether the officer’s use of force was objectively reasonable under the
circumstances.” Dockery v. Blackburn, 911 F.3d 458, 461 (7th Cir. 2018) (citing Graham v.
Connor, 490 U.S. 386, 395 (1989)). The Court must consider “the totality of the facts and
circumstances” and perform “a ‘careful balancing of the nature and quality of the intrusion on the

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individual’s Fourth Amendment interests against the countervailing governmental interests at
stake.’” Strand v. Minchuk, 910 F.3d 909, 914 (7th Cir. 2018) (quoting Plumhoff v. Rickard, 572
U.S. 765, 774 (2014)). The Court gives attention to “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, 490 U.S. at 396. “The
proper inquiry is one of ‘objective’ reasonableness that proceeds without regard to the subjective
‘intent or motivation’ of the officer.” Strand, 910 F.3d at 914-15 (quoting Graham, 490 U.S. at
397). “Whether a particular use of force was objectively reasonable ‘is a legal determination rather
than a pure question of fact for the jury to decide.’” Dockery v. Blackburn, 911 F.3d 458, 464 (7th
Cir. 2018) (quoting Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 520 (7th Cir. 2012)).
1.

The City

Defendants argue that the City is entitled to summary judgment because Plaintiff fails to
identify any custom or policy of the City that resulted in the alleged use of excessive force against
Plaintiff. Monell v. Department of Social Services of City of New York established that “a local
government may not be sued under § 1983 for an injury inflicted solely by its employees or
agents.” 436 U.S. 658, 694 (1978). “Instead, it is when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible under §
1983.” Id. Thus, “[a] local governing body may be liable for monetary damages under § 1983”
only “if the unconstitutional act complained of is caused by: (1) an official policy adopted and
promulgated by its officers; (2) a governmental practice or custom that, although not officially
authorized, is widespread and well settled; or (3) an official with final policy-making authority.”

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Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (citing Monell, 436
U.S. at 690; Valentino v. Village of South Chicago Heights, 575 F.3d 664, 674 (7th Cir. 2009)).
Plaintiff’s amended complaint does not identify any policy or widespread practice or
custom that led to the alleged use of excessive force against him. Nor does Plaintiff allege that his
injury was caused by an official with final policy-making authority.

Plaintiff’s deposition

testimony does nothing to cure these pleading defects. The closest Plaintiff comes is testifying
that he believed that Chief Smith “gave [his officers the] illegitimate tactic” of cuffing Plaintiff
behind the back, rather than in the front as Plaintiff had requested due to “an old injury.” [57-7]
at 7, Tr. p. 25:12-17. However, the video evidence “blatantly contradicts” any suggestion that
Plaintiff was cuffed in back when he was placed under arrest. Scott, 550 U.S. at 380. Instead, a
handcuff was placed on Plaintiff’s right wrist only, and attached to the bench at Plaintiff’s side.
Therefore, the City is entitled to summary judgment on Plaintiff’s Section 1983 claim.
2.

Chief Thomas

Defendants argue that Chief Thomas is entitled to summary judgment on Plaintiff’s
excessive force claim because there is no evidence that he had any involvement in the questioning
or arrest of Plaintiff. Section 1983 “does not establish a system of vicarious liability; a public
employee’s liability is premised on her own knowledge and actions, and therefore requires
evidence that each defendant, through her own actions, violated the Constitution.” Aguilar v.
Gaston–Camara, 861 F.3d 626, 630 (7th Cir. 2017); see also Williams v. Shah, 927 F.3d 476, 482
(7th Cir. 2019) (public employee may not be held liable under § 1983 “unless they had some
personal involvement in the alleged constitutional deprivation”). Chief Thomas provides a
declaration stating that he was not at the Station during the time Plaintiff was questioned and
arrested; Plaintiff testified that he did not recall seeing Chief Thomas at the Station on that date;

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and Chief Thomas does not appear in any of the videotapes that record the questioning and arrest
of Plaintiff. According to his undisputed declaration, the only knowledge Chief Smith had of the
events came after the fact when he reviewed and saved the surveillance video of Plaintiff’s
questioning and arrest. Based on this record, Chief Thomas is entitled to summary judgment.
3.

Officer Peterson and Sergeant Stewart

Officer Peterson and Sergeant Stewart both argue that they are entitled to summary
judgment on the merits of Plaintiff’s excessive force claim, as well as based on qualified immunity.
“The qualified immunity doctrine provides defendants immunity from suit, not just a defense to
liability.” Sebesta v. Davis, 878 F.3d 226, 233 (7th Cir. 2017) (citing Pearson v. Callahan, 555
U.S. 223, 231 (2009)). “Though it is an affirmative defense for pleading purposes, the plaintiff
carries the burden of showing that defendants are not immune.” Id. “When examining a qualified
immunity claim, we consider two questions: ‘(1) whether the facts, taken in the light most
favorable to the plaintiff, make out a violation of a constitutional right, and (2) whether that
constitutional right was clearly established at the time of the alleged violation.’” Allin v. City of
Springfield, 845 F.3d 858, 862 (7th Cir. 2017) (quoting Gibbs v. Lomas, 755 F.3d 529, 537 (7th
Cir. 2014)). The Court “may address these issues in whatever order seems best for the case at
hand.” Sebesta, 878 F.3d at 233. The Court may also “grant qualified immunity on the ground
that a purported right was not ‘clearly established’ by prior case law, without resolving the often
more difficult question whether the purported right exists at all.” Reichle v. Howards, 566 U.S.
658, 664 (2012). That is the course the Court will take here.
“The law is ‘clearly established’ when ‘various courts have agreed that certain conduct is
a constitutional violation under facts not distinguishable in a fair way from the facts presented in
the case at hand.’” Figgs v. Dawson, 829 F.3d 895, 905 (7th Cir. 2016) (quoting Campbell v.

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Peters, 256 F.3d 695, 701 (7th Cir. 2001)). The Court looks first to controlling Supreme Court
precedent and Seventh Circuit decisions on the issue. Reed v. Palmer, 906 F.3d 540, 547 (7th Cir.
2018). “If no controlling precedent exists, ‘we broaden our survey to include all relevant caselaw
in order to determine whether there was such a clear trend in the caselaw that we can say with fair
assurance that the recognition of the right by a controlling precedent was merely a question of
time.’” Id. (quoting Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 2000)). Alternatively,
in some “rare cases” the constitutional violation may be “patently obvious” and the plaintiff may
not be required to identify any analogous cases, if he can show that “the defendant’s conduct was
‘so egregious and unreasonable that … no reasonable [official] could have thought he was acting
lawfully.’ “ Id. (quoting Abbott v. Sangamon County, 705 F.3d 706, 724 (7th Cir. 2013)).
When determining whether the law was clearly established, “‘the right allegedly violated
must be defined at the appropriate level of specificity.’” Kemp v. Liebel, 877 F.3d 346, 351 (7th
Cir. 2017) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)). The Supreme Court has
“repeatedly told courts … not to define clearly established law at a high level of generality.” Kisela
v. Hughes, 138 S.Ct. 1148, 1148 (U.S. 2018). Although there need not be “‘a case directly on
point for a right to be clearly established, existing precedent must have placed the statutory or
constitutional question beyond debate.’” Id. at 1152 (quoting White v. Pauly, 137 S.Ct. 548, 551
(U.S. 2017)). “In other words, immunity protects all but the plainly incompetent or those who
knowingly violate the law.” White, 137 S. Ct. at 551.
The Court will first evaluate the frisk that Officer Peterson performed immediately after
informing Plaintiff that he was under arrest. Plaintiff claimed in his deposition that his testicles,
back and knees were injured during the frisk due to Peterson shaking his pants “hard and furiously”
while he was leaning against the wall with his hands up. [57-7] at 10, Tr. p. 34:11-22. However,

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as noted above, Plaintiff’s version of events is obviously contradicted by the video recording of
the pat-down, which does not show any shaking of Plaintiff’s pants or any sudden movements by
Officer Peterson or Plaintiff. Instead, the video shows that Officer Peterson patted down Plaintiff’s
torso, legs, and groin area and emptied Plaintiff’s pants pockets. See [57-6], Ex. F, video from inhouse camera, approx.. 4:40 to 4:42. Further, the video shows that Plaintiff did not make any
objections to the way he was positioned on the wall (for instance, he did not say that he was unable
to stand against the wall with his hands up due to his pre-existing back injury). Nor did Plaintiff
give any indication verbally that he was in pain while the search was being conducted (as one
might expect of someone who had just been “violently” hit in the testicles). Further, the medical
records from Plaintiff’s visit to the emergency room the next day recorded that Plaintiff’s testes
were “normal” and showed “no swelling and no tenderness.” [57-8] at 26-27. The Court
nonetheless assumes for purposes of its analysis that the search did cause pain to Plaintiff’s
testicles, back, and knees.
Under these facts, Officer Peterson did not violate any clearly established constitutional
right. “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the
Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no
additional justification.” Campbell v. Miller, 499 F.3d 711, 716-17 (7th Cir. 2007) (quoting United
States v. Robinson, 414 U.S. 218, 235 (1973)) (internal quotation marks omitted). Thus, “in the
case of a lawful custodial arrest a full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”
Id. at 717 (quoting Robinson, 414 U.S. at 235). In this case, it is undisputed that Officer Peterson
had probable cause to arrest Plaintiff for harassment based on the text messages Plaintiff allegedly
sent to the complainant. In his deposition, Plaintiff did not deny sending the harassing text

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messages, see [57-7] at 12, Tr. p. 42:6-10, copies of which Defendants have included as part of the
record, see [57-1], and authenticated through the declaration of Chief Smith, see [57-3] at 3.
Plaintiff also does not dispute that the complainant wanted to press charges against him. See [572] at 1, ¶ 6 (Declaration of Sergeant Stewart). Therefore, Officer Peterson had probable cause to
arrest Plaintiff and was justified in performing a full search of Plaintiff upon placing him under
arrest. See, e.g., Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003) (“The
complaint of a single witness or putative victim alone generally is sufficient to establish probable
cause to arrest unless the complaint would lead a reasonable officer to be suspicious, in which case
the officer has a further duty to investigate.”).
Of course, this does not mean that Officer Peterson was free to perform the search in any
manner he chose. A “relatively extensive exploration of the person” is permissible, but an
“extreme or patently abusive” search is not. Campbell, 499 F.3d at 717. Nonetheless, Plaintiff
has not identified, and the Court has not discovered, any clearly established law under which
Officer Peterson’s search of Plaintiff could be considered extreme or patently abusive when
considered in the light depicted by the in-house video, Scott, 550 U.S. at 381, and, to the extent
not “blatantly contradicted” by the video, id. at 380, the light most favorable to Plaintiff. Given
the facts in the record, “the only right plaintiff[] can assert” would be the right to be patted down
in a manner that does not result in his pants making contact with his testicles, and “[w]e find no
Seventh Circuit precedent clearly establishing such a right.” Day v. Wooten, 947 F.3d 453, 463
(7th Cir. 2020).
“[T]he search of a suspect’s crotch area incident to arrest is reasonable if the search is
calculated to uncover evidence or a weapon and the suspect’s private parts are not exposed to the
public.” Maldonado v. Pierri, 2010 WL 431478, at *7 (N.D. Ill. Feb. 1, 2010); see also United

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States v. Brown, 233 Fed. Appx. 564, 568–69 (7th Cir. 2007) (“[a] search of the private areas of a
suspect’s body is reasonable if the suspect’s private parts are not exposed to onlookers”); United
States v. Jackson, 377 F.3d 715 (7th Cir. 2004) (permitting search of crotch area incident to arrest).
Here, the pat-down of Plaintiff’s crotch area was performed over his clothes, resulted in no
exposure of his private parts to the public or the officers, was over in less than a minute, and was
not accompanied by any troublesome comments from Officer Peterson or Sergeant Stewart.
Compare Schmidt v. City of Lockport, 67 F. Supp. 2d 938, 944-45 (N.D. Ill. 1999) (police officer’s
alleged actions during custodial search incident to arrest, consisting of reaching under arrestee’s
sweater and feeling her bare breasts with both hands, went beyond proper scope of full search
incident to arrest and constituted extreme and unreasonable search in violation of Fourth
Amendment, absent specific suspicions that arrestee harbored contraband or weapons; officer also
was not entitled to qualified immunity); Stewart v. Rouse, 1999 WL 102774, at *4 (N.D. Ill. Feb.
22, 1999) (“Aggressively grabbing, groping or fondling the genitals of a handcuffed arrestee, while
joking about it to a fellow officer, may well not constitute a reasonable search under the Fourth
Amendment.”).
Further, Plaintiff does not dispute that the pat-down is “a standard protocol at the Mendota
Police Department” for “suspects that have been placed under arrest” and is intended “to ensure
the safety of the officers as well as inmates and visitors by making sure the suspect is not carrying
any weapons,” as well as “to preserve potential evidence,” since “weapons and other contraband
can be hidden in the crotch area of an arrestee’s pants.” [57-3] at 4 (Declaration of Chief Smith).
While the Court takes Plaintiff at his word that his testicles hurt due to the pat-down, the video
contradicts Plaintiff’s claim that this was due to Officer Peterson shaking his pants “hard and
furiously,” 57-7] at 10, Tr. p. 34:11-22, and Plaintiff offers no other explanation for his alleged

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extreme testicular pain that could be squared with the video (for instance, Officer Peterson
squeezing his testicles while removing objects from his pockets) and no medical evidence showing
any injury to his testicles. Based on this record, Officer Peterson’s pat-down of Plaintiff’s crotch
area did not violate any clearly established constitutional right.
The Court also takes Plaintiff at his word that the search caused pain in his back and knees.
But again, Plaintiff’s explanation that this pain was caused by Officer Peterson shaking his pants
“hard and furiously,” [57-7] at 10, Tr. p. 34:11-22, is clearly belied by the in-house video. Further,
Plaintiff does not claim, and the video does not show, the application of any force directly to
Plaintiff’s back or knees. Perhaps, given Plaintiff’s pre-existing back injury and back pain, being
placed against the wall with his hands up might have exacerbated his condition. According to
Plaintiff’s deposition testimony, Officer Peterson was aware of his back injury. “[A]n officer’s
otherwise reasonable conduct may be objectively unreasonable when the officer knows of an
arrestee’s medical problems.” Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009). However,
there is no suggestion from Plaintiff’s deposition testimony or the video evidence that Plaintiff
told Officer Peterson, or that Officer Peterson had any other way of knowing, that the simple act
of standing with his hands against the wall and legs apart while being patted down would injure or
cause pain to Plaintiff’s back or knees. Given the facts in the record, the only right Plaintiff can
assert would be the right of an arrestee not to be placed against a wall with hands up when the
officer conducting a pat-down knows that the arrestee has a pre-existing back injury. Once again,
“[w]e find no Seventh Circuit precedent clearly establishing such a right.” Day, 947 F.3d at 463;
cf. id. at 462 (“absent any indication an officer is aware the handcuff tightness or positioning is
causing unnecessary pain or injury, the officer acts reasonably in not modifying the handcuffs”).
The Court now turns to Plaintiff’s claim that he was handcuffed in a manner that constitutes

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the unreasonable use of force. The Seventh Circuit has “on occasion recognized valid excessive
force claims based on overly tight handcuffs.” Tibbs v. City of Chicago, 469 F.3d 661, 666 (7th
Cir. 2006) (citing Payne v. Pauley, 337 F.3d 767, 774–75, 780-81 (7th Cir. 2003) (denial of
defendants’ motion for summary judgment proper where there was evidence that arresting officers
handcuffed plaintiff so tightly she lost feeling in her hands and refused to loosen the cuffs when
she told them of the numbness and later underwent two carpal tunnel surgeries she said were
necessitated by the handcuffing); Herzog v. Village of Winnetka, 309 F.3d 1041, 1043-44 (7th Cir.
2002) (plaintiff was entitled to a jury trial on her excessive force claim where 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); Lester v. City of Chicago, 830 F.2d 706, 714 (7th Cir.
1987) (a properly instructed jury could have found excessive use of force if it believed plaintiff’s
testimony that even though she did not resist arrest, officers threatened to punch her with a closed
fist, kneed her in the back, dragged her along the floor down a hallway, and handcuffed her so
tightly her wrists were bruised; it was also for jury to determine whether there was probable cause
to arrest plaintiff for disorderly conduct when she came to pick up her father at the police station)).
The Court finds Tibbs most instructive here. In that case, the Seventh Circuit affirmed the
grant of summary judgment for defendant police officers on the merits of Tibbs’ excessive force
claim, rather than on qualified immunity. The record in Tibbs “indicat[ed] the following: Tibbs
likely suffered some discomfort and pain from handcuffs that Officer Kooistra applied somewhat
too tightly; Tibbs complained to Officer Kooistra once about his handcuffs without elaborating on

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any injury, numbness, or degree of pain; Tibbs was handcuffed for about twenty-five to thirty
minutes (from the time of his arrest to his arrival at the lockup facility); he experienced redness on
his wrists for less than two days; and he neither sought nor received medical care for any alleged
wrist injury.” 469 F.3d at 666. On these facts, the Seventh Circuit “agree[d] with the district court
that no reasonable jury could find Officer Kooistra’s actions were objectively unreasonable.” Id.
Similarly, in this case, the video from the in-house camera and the deposition testimony of
Plaintiff (to the extent it is not blatantly contradicted by that video) show the following: Plaintiff
may have suffered some discomfort and pain from Officer Peterson initially applying the handcuff
somewhat too tightly; Plaintiff complained to Officer Peterson and Sergeant Smith once about the
handcuff without elaborating on any injury, numbness, or degree of pain; Sergeant Smith
immediately loosened the handcuffs once Plaintiff complained; Plaintiff acknowledged in his
deposition that the handcuffs were not too tight once they were loosened, though claimed he was
still in discomfort due to swelling; Plaintiff was handcuffed for less than ten minutes total (from
the time of his arrest to his release when taken for booking); and Plaintiff had a contusion (bruise)
on his wrist the day after, but did not show any loss of strength or range of motion in his wrist or
require any medical treatment. Comparing this case to Tibbs, which involved similar facts but a
longer period during which the plaintiff was handcuffed and a refusal to loosen the handcuffs once
the plaintiff made a generalized complaint of pain—as well as Payne, Herzog, and Lester, which
all involved much more severe facts—the Court concludes that there is no clearly established right
of an arrestee not to have cuffs applied too tightly for less than two minutes, where the cuffs are
immediately loosened after the arrestee makes a generalized complaint of pain and the arrestee
requires no medical treatment. See also, e.g., Sow v. Fortville Police Dep’t, 636 F.3d 293, 304
(7th Cir. 2011) (affirming grant of summary judgment to defendant police officer on excessive

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force claim based on overly tight handcuffs where plaintiff complained once but presented no
evidence that he elaborated on the pain to the defendant or required any medical treatment);
Stainback, 569 F.3d at 773 & n.7 (affirming grant of summary judgment to defendant police
officers on excessive force claim based on overly tight handcuffs where, at most, the record
showed that plaintiff “said that he did not want to be handcuffed because he thought it would hurt”
and “complained generally about pain after he was handcuffed … without any elaboration
regarding a preexisting injury or other infirmity,” even though plaintiff suffered two torn rotator
cuffs that required medical treatment).
Finally, the Court considers the allegation from Plaintiff’s amended complaint that, when
Sergeant Stewart was escorting Plaintiff to the booking room for fingerprinting, Sergeant Stewart
“grabbed my shirt chest” and “move[d] me with his hands.” [41] at 12. In one of his responses to
summary judgment, Plaintiff also asserts: “After I was searched I was walked into the fingerprint
room as I was walking to the room [Sergeant] Stewart grabbed my chest and struck me causing
physical harm while he threatened me. [Sergeant] Stewart then acted in unreasonable force when
he hit my chest and with his arm and hands he pulled and pushed me into the Fingerprint Room
while doing this he threatened my and they also threatened me in the room I was detained.” [74]
at 4-5. In another response to summary judgment, Plaintiff makes no mention of being “struck”
or “hit” but instead asserts that during the walk to the fingerprint room, Sergeant Stewart “chest
bumped me and forceably used his hands to grab me and shove me in an unreasonable manner
practically sexually assaulting me on the walk … while he verbally threatened me.” [86] at 14.
Sergeant Smith and Officer Peterson provided sworn declarations stating that Plaintiff was
fingerprinted and booked without incident. See [57-1] at 4, ¶ 4; [57-2] at 3, ¶ 23. To counter these
declarations, Plaintiff was required by Federal Rule of Civil Procedure 56 and Local Rule 56.1 to

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provide his own affidavit or sworn declaration, or other evidence creating a factual dispute. See
Grant v. Trustees of Indiana Univ., 870 F.3d 562, 568 (7th Cir. 2017) (“As the put up or shut up
moment in a lawsuit, summary judgment requires a non-moving party to respond to the moving
party's properly-supported motion by identifying specific, admissible evidence showing that there
is a genuine dispute of material fact for trial.” (internal quotation marks and citation omitted)).
Plaintiff was specifically informed of this requirement, yet failed to comply. See [69] (“Notice to
Pro Se Litigant Who Opposes a Motion for Summary Judgment” informing Plaintiff: “Rule 56
provides that you may NOT oppose summary judgment simply by relying upon the allegations in
your complaint. Rather, you must submit evidence, such as witness statements or documents,
countering the facts asserted by the defendant and raising material issues of fact for trial. Any
witness statements must be in the form of affidavits. You may submit your own affidavit and/or
the affidavits of others. You may submit affidavits that were prepared specifically in response to
defendant’s motion for summary judgment.”).
Even if Plaintiff had provided a sworn statement or other evidence in support of his vague
accusations that Sergeant Stewart mistreated him on the way to be fingerprinted, none of these
allegations appear in Plaintiff’s sworn deposition testimony, during which Plaintiff was asked to
talk about his “injuries one at a time.” [57-7] at 7, Tr. p. 25:22-24. The Seventh Circuit has “long
followed the rule that parties cannot thwart the purposes of Rule 56 by creating ‘sham’ issues of
fact with affidavits that contradict their prior depositions.” Bank of Illinois v. Allied Signal Safety
Restraint Systems, 75 F.3d 1162, 1168 (7th Cir. 1996). In his deposition, Plaintiff claimed injuries
to his wrist (see id. at 8, Tr. p. 26), testicles, knees, and back (see id. at 9, Tr. p. 33). He makes no
mention of any force used on or injuries to his chest. Further, the medical records from Plaintiff’s
visit to the emergency room the day after the incident reflect no complaints about any pain or

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injury to Plaintiff’s chest or any diagnosis of or treatment for a chest injury. See id. at 16-17, Tr.
pp. 60-64; see also [57-8] at 21-29.
Even assuming Plaintiff failed to mention the alleged use of force on his chest due to a
“memory lapse,” see Kopplin v. Wisconsin Central Ltd., 914 F.3d 1099, 1103 (7th Cir. 2019)
(recognizing exception to “sham affidavit” rule where earlier testimony was result of a memory
lapse)—which Plaintiff does not claim to be the case—the allegations in his complaint and
response to summary judgment are too vague and conclusory to meet Plaintiff’s burden of
demonstrating that Defendants have violated any clearly established constitutional right. Cf.
Ybarra v. City of Chicago, 946 F.3d 975, 979 (7th Cir. 2020) (explaining that “[a]pplication of the
reasonableness test ‘requires careful attention to the facts and circumstances of each particular
case’” (quoting Graham, 490 U.S. at 396)).
“The right to make an arrest necessarily carries with it the right to some degree of physical
coercion to effect it,” and therefore “[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Sow, 636 F.3d
at 304 (town police officer did not use excessive force in allegedly pushing arrestee into police
car, causing arrestee to bump his head); see also Stainback, 569 F.3d at 772 (explaining that “[a]n
officer who has the right to arrest an individual also has the right to use some degree of physical
force or threat of force to effectuate the arrest,” though “that right is circumscribed by the Fourth
Amendment’s insistence on reasonableness”). Further, “alleged verbal abuse and ridicule” have
been held not to violate an arrestee’s rights under the Fourth Amendment. Doe v. City of Chicago,
931 F. Supp. 600, 602 (N.D. Ill. 1996); see also Slagel v. Shell Oil Refinery, 811 F. Supp. 378, 382
(C.D. Ill. 1993). Plaintiff’s nonspecific allegations that his shirt was grabbed, he was pushed and
pulled, subjected to verbal “threats,” and “practically sexually assaulted” are insufficient to support

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a Fourth Amendment violation. Further, none of Plaintiff’s submissions describe how he was
purportedly “hit” or “struck”—with a hand, closed fist or other object, soft or hard, unprovoked or
due to Plaintiff struggling or resisting? Nor does Plaintiff describe the “physical harm” he
allegedly suffered—harm that is not mentioned anywhere in his medical records or his deposition.
Based on this record, Plaintiff has entirely failed to demonstrate that Sergeant Stewart violated a
clearly established right to be free of the use of excessive force when he escorted Plaintiff to
fingerprinting.
To the extent that Plaintiff intended to bring failure to intervene claims against Officer
Peterson and Sergeant Stewart, Defendants are entitled to summary judgment on those claims, as
well. Since Plaintiff’s right to be free of the use of force alleged here “was not clearly established,”
it follows that Officer Peterson and Sergeant Stewart “would not have known that a constitutional
violation was committed, and therefore, cannot be liable for failure to intervene” to prevent one
another’s alleged uses of excessive force. Gill v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir.
2017).
II.

Sanctions
Defendants also have filed a motion seeking dismissal of this case with prejudice as a

sanction for Plaintiff’s harassing and vulgar communications with defense counsel throughout the
history of this litigation. In support of their motion, Defendants have provided a flash drive
containing voicemails that Plaintiff has left during the pendency of this litigation for defense
counsel as well as the current police chief of Mendota, Greg Kellen, who is not a defendant in this
case. The voicemails contain both unquestionably vulgar language (e.g., name-calling, including
“mother fu****” and “b**** of the day,” and a directive that counsel “go f*** his cousin”) as
well as physical threats (e.g., a threat to “smack [his] mouth”). Defendants submit that given the

23

persistence of Plaintiff’s behavior, it is unlikely that evidentiary or small monetary fines will
change Plaintiff’s behavior, and thus they request dismissal with prejudice as an appropriate
sanction.
As the Supreme Court has recognized, when parties misbehave during litigation, courts are
not powerless to intervene and in fact may “fashion an appropriate sanction for conduct which
abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). Sanctions
may be imposed pursuant to rule, statute, or the court’s inherent authority. See Roadway Express,
Inc. v. Piper, 447 U.S. 752, 765 (1980) (describing the “‘well-acknowledged’ inherent power of a
court to levy sanctions in response to abusive litigation practices”). However, “[b]ecause of their
very potency, inherent powers must be exercised with restraint and discretion.” Chambers, 501
U.S. at 44; see also Mach v. Will County Sheriff, 580 F.3d 495, 502 (7th Cir. 2009). This is
especially true when dealing with pro se litigants, and especially those who have self-reported
mental challenges, see [57-7] at 4, Tr. p. 11. Still, persistent, reprehensible conduct, even by a pro
se litigant, can warrant sanctions up to and including dismissal with prejudice.

See, e.g.,

Mohammad v. Anderson, 2019 WL 3943669, at *3-*5 (N.D. Ill. Aug. 21, 2019).
Here, as in Mohammad, the combination of vile insults and physical threats easily crosses
the line and warrants sanctions. However, in view of the disposition in favor of Defendants on the
merits, Defendants’ request for dismissal with prejudice [65] is denied as moot. But this does not
end the matter. Given the egregious and highly inappropriate nature of those communications, the
Court will refer Plaintiff to the Executive Committee of the Northern District of Illinois for a
determination of whether to impose filing restrictions or other sanctions and/or discipline on
Plaintiff.

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III.

Conclusion
For the reasons stated above, Defendants’ motion for summary judgment [55] is granted

and Plaintiff’s motion to dismiss [71] is denied. In view of the disposition in favor of Defendants
on the merits, Defendants’ motion for dismissal with prejudice as a sanction for Plaintiff’s
harassing and vulgar communications with defense counsel [65] is denied as moot. However,
given the egregious and highly inappropriate nature of those communications, the Court will refer
Plaintiff to the Executive Committee of the Northern District of Illinois for a determination of
whether to impose filing restrictions or other sanctions and/or discipline on Plaintiff. Because this
order resolves all of the remaining claims in the case, a final judgment will be entered under
Federal Rule of Civil Procedure 58 in favor of Defendants and against Plaintiff and this civil case
will be terminated.

Dated: March 10, 2020

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

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