Peterson v. Maris et al

Filing 45

WRITTEN Opinion entered by the Honorable Frederick J. Kapala on 7/27/2011: Defendants' motions for summary judgment 29 31 are granted as to Counts I, II, and VII. Counts III, IV, V, and VI are dismissed without prejudice. This case is closed. [For further details see order.] Electronic notice(jat, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Frederick J. Kapala

CASE NUMBER
CASE
TITLE

Sitting Judge if Other
than Assigned Judge

09 C 50120

DATE

7/27/2011

Peterson v. Meris, et al.

DOCKET ENTRY TEXT:

Defendants’ motions for summary judgment [29] [31] are granted as to Counts I, II, and VII. Counts III, IV, V,
and VI are dismissed without prejudice. This case is closed.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
On May 22, 2009, plaintiff, Christy Peterson, filed a seven-count complaint against defendants, Marianne
Meris , Lori Tidwell, Sheriff Richard Meyers, and Winnebago County, arising out of force used against plaintiff
by Meris while plaintiff was detained at the Winnebago County Jail. In Count I, in a claim brought pursuant to
42 U.S.C. § 1983, plaintiff alleges that Meris violated her Fourth Amendment rights when Meris used excessive
force against her. In Count II, plaintiff seeks to hold Tidwell liable under § 1983 for her failure to intervene
while observing the alleged use of excessive force by Meris. In Counts III and IV, plaintiff asserts state law
claims for intentional assault and battery (Count III) and intentional infliction of emotional distress (Count IV)
against Meris. In Counts V and VI, plaintiff asserts claims for indemnification (Count V) and vicarious liability
(Count VI) against Sheriff Meyers and the County of Winnebago. In Count VII, plaintiff asserts a claim against
Sheriff Meyers and the County of Winnebago for an unconstitutional policy and practice pursuant to § 1983 and
Monell v. New York Department of Social Services, 436 U.S. 658 (1978). Defendants have filed motions for
summary judgment on Counts I, II, V, VI, and VII. For the following reasons, defendants’ motions for summary
judgment as to Counts I, II, and VII are granted, and Counts III, IV, V, and VI are dismissed without prejudice.
1

I. BACKGROUND2
On May 27, 2008, plaintiff was arrested without a warrant for misdemeanor domestic battery of her
brother and taken to the Winnebago County Jail where she was issued a Ferguson blanket3 and taken by officers
to a holding cell to await arraignment and booking. Plaintiff was unable to complete her booking process at that
time because of her alleged intoxication. Hours later, on May 27, 2008, at 6:02:46 a.m., as captured by video
surveillance, Winnebago County Sheriff’s Department corrections officer Meris entered the cell occupied by
plaintiff for the purpose of getting plaintiff up and dressed so that she could be taken to booking to complete her
intake process. Plaintiff was initially unresponsive to Meris’s attempts to wake her. Because of this, Meris
pulled the Ferguson blanket off of plaintiff, causing her naked body to be exposed. At this point, plaintiff and
Meris exchanged derogatory comments, in which Meris called plaintiff a “drunken bitch,” and plaintiff called
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STATEMENT
Meris a “fat bitch.” No physical contact between the parties occurred during this exchange of words.
After plaintiff failed to get up as ordered by Meris, Winnebago County Sheriff’s Department corrections
officer Tidwell joined them. She walked up to where plaintiff was lying, unfolded the jail issued clothing
plaintiff had been given, and talked plaintiff into getting up and dressed. Plaintiff then got off the bed, stood next
to a wall, and started putting on the jail issued clothing. As plaintiff started getting dressed, she called Meris a
“fat ass.” At 6:04:24 a.m., Meris started to walk around the head of the cell bed towards where plaintiff was
standing, and at 6:04:27 a.m., Meris, with one hand, grabbed plaintiff by the neck, and then with her other arm
on plaintiff’s chest pushed plaintiff against the wall. Meris did not squeeze plaintiff’s neck, and plaintiff did not
appear to be under physical distress. When Meris physically grabbed plaintiff, Tidwell walked around the foot
of the cell bed towards plaintiff and Meris and encouraged plaintiff to continue to get dressed. By 6:04:32 a.m.,
Meris had let go of, and backed away from, plaintiff.
Plaintiff began changing into her jail-issued pants, and as she did this, she told Meris that the pants were
too big for her (plaintiff) so they must be Meris’s pants. Between 6:05:07 a.m. and 6:05:10 a.m., Meris again
approached plaintiff, grabbed plaintiff by the neck with one hand, and pushed plaintiff against the wall. Tidwell
then stepped up to plaintiff and Meris and encouraged them to proceed with getting dressed and getting to
booking. At 6:05:12 a.m., Meris let go of, and backed away from, plaintiff. Tidwell escorted plaintiff out of the
cell as soon as plaintiff finished dressing. At no time during the incident in question did plaintiff make any
threatening movement or physical contact that would create a threat to jail security. Tidwell stated that she did
not tell Meris to leave because first, plaintiff’s cell was located within Meris’s own housing unit, and second,
because it was not evident at the time that someone was going to get hurt. She did, however, find Meris’s actions
to be “out of character.”
Plaintiff stated that this incident caused her to urinate slightly upon herself. Plaintiff also experienced
red marks on her neck from Meris’s interaction, which were seen by Tidwell and another corrections officer,
Patsy Davis, in the booking area, within ten minutes after the incident. Plaintiff was unsure when the red marks
disappeared, but she knew that they were gone before she left the Winnebago County Jail two days later. Meris
was subsequently criminally charged with, and pled guilty to, two counts of battery for grabbing plaintiff by the
neck. Meris was also terminated from her position on May 29, 2008 as a direct result of the incident.
II. DISCUSSION
Defendants now move for summary judgment on Counts I, II, V, VI, and VII of plaintiff’s claim.
Defendants argue that the force suffered by plaintiff was de minimis, that Tidwell did intervene, that Meris and
Tidwell did not act within the scope of their employment, that there is no basis for vicarious liability because
there is no respondeat superior liability under Monell, and that plaintiff has failed to demonstrate an
unconstitutional policy, practice, or procedure under Monell. Summary judgment is proper when “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). This assertion must be supported by materials in the record, including
depositions, documents, electronically stored information, affidavits, declarations, interrogatories and other
materials. Fed. R. Civ. P. 56(c)(1)(A). Summary judgment is mandated “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). This burden may be met by pointing out an absence of evidence to support
the nonmoving party’s case. Id. at 325. A “genuine dispute” in the context of a motion for summary judgment
is not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). For the purposes of a motion for summary judgment, the court must look at
the evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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STATEMENT
255 (1986).
A. Count I - Excessive Force
Meris argues that summary judgment should be granted as to Count I because the force used against
plaintiff was de minimis, and therefore, does not demonstrate that plaintiff was deprived of her Fourth
Amendment rights. For the following reasons, the court agrees.
The Fourth Amendment guarantees citizens the right to be secure in their persons against unreasonable
seizures and applies when a claim pertains to excessive force used against a person under a warrantless arrest.
Lopez v. City of Chi., 464 F.3d 711, 719 (7th Cir. 2006) (“[T]he Fourth Amendment governs the period of
confinement between arrest without a warrant and the preliminary hearing at which a determination of probable
cause is made . . . .” (quotation marks omitted)); see also Sallenger v. City of Springfield, Ill., 630 F.3d 499, 503
(7th Cir. 2010) (stating that inquiry into Fourth Amendment rights is proper when there has not yet been
conviction or sentencing). In this case, the Fourth Amendment is a proper basis for inquiry because plaintiff was
arrested without a warrant and had not yet completed her booking process or probable cause hearing.
The Seventh Circuit has noted that the de minimis doctrine applies “[i]n constitutional tort cases
(including cases brought to vindicate rights created by the Fourth Amendment) as elsewhere in the law . . . .”
Williams v. City of Champaign, 524 F.3d 826, 829-30 (7th Cir. 2008). As such, an excessive force claim cannot
be predicated on a de minimis use of physical force. Cunningham v. Grozik, No. 01 C 6657, 2004 WL 1102294,
at *5 (N.D. Ill. May 3, 2004) (citing DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir. 2000)). At the same time, a
significant injury is not a prerequisite to an excessive force claim. Wilkins v. Gaddy, 559 U.S.__, 130 S. Ct. 1175,
1178 (2010); see Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011) (“We are not convinced, however,
that evidence of only de minimis injury necessarily forecloses a claim of excessive force under the Fourth
Amendment. The appropriate inquiry is ‘whether the force used to effect a particular seizure is reasonable.’”
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989))). Consequently, while a lack of injury may reflect upon
the amount of force used, it is not determinative of whether the force is de minimis. See Wilkins, 130 S. Ct. at
1178 (“An inmate who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to
state a valid excessive force claim.”).
There is no bright line rule as to whether the force used is de minimis. In DeWalt, the Seventh Circuit
affirmed the district court’s finding that the force used against a prisoner by a corrections officer was merely de
minimis where the officer shoved the prisoner against a door in response to the prisoner telling the officer that
his actions were “unprofessional.” DeWalt, 224 F.3d at 610-11, 620. The prisoner suffered bruising on his back
and was inspected by the prison medical staff, but there was no further visible injury. Id. at 611.
This case is analogous to DeWalt. As in Dewalt, Meris made minimal contact with plaintiff after plaintiff
made an inappropriate remark. The evidence shows that Meris responded to plaintiff’s insubordinate comments
by pressing plaintiff up to the wall by the neck. Plaintiff admits that Meris did not squeeze her neck or choke
her in any way during the first contact. Plaintiff describes the second contact to include more direct pressure on
her neck, however, both instances of contact lasted less than five seconds each. Although this happened twice,
it was within a thirty-second time span and part of the same series of conduct. There was no striking or jarring
force used against plaintiff’s body and no part of her body was slammed against the wall. Essentially, plaintiff
was held briefly while Meris said something to her. Furthermore, as in DeWalt, the resulting injury was very
minimal. Plaintiff did not seek medical attention for her injuries, and while the contact between Meris and
plaintiff caused plaintiff to have red marks on her neck and to slightly urinate, she did not experience any
bruising from the contact. Compare Dewalt, 224 F.3d at 620 (finding bruising to be a minimal injury and
evidence of a de minimis use of force). The red marks were gone by the time plaintiff left the facility. For these
reasons, the court finds that no reasonable jury could conclude that the force used by Meris was anything more
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STATEMENT
than de minimis. Accordingly, Meris’s motion for summary judgment as to Count I is granted.
B. Remaining Constitutional Claims
Summary judgment is also granted on plaintiff’s remaining constitutional claims. In Count II, plaintiff
claims that Tidwell violated plaintiff’s Fourth Amendment rights by failing to intervene and prevent or stop Meris
from exerting excessive force upon plaintiff. In order to be liable for failure to intervene under § 1983, it
logically follows that there must have been an underlying constitutional violation. Harper v. Albert, 400 F.3d
1052, 1064 (7th Cir. 2005) (holding that there could be no failure to intervene claim when a prisoner failed to
prove an underlying constitutional violation of excessive force). In this case, because plaintiff has been unable
to prove an underlying constitutional violation, there is no basis for a failure to intervene claim, and summary
judgment is granted as to Count II. See id.
Similarly, summary judgment must be granted on plaintiff’s Monell claim in Count VII. “[A]
municipality cannot be liable under Monell when there is no underlying constitutional violation by a municipal
employee.” Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504 (7th Cir. 2010). As stated above, this court
has found there to be no underlying constitutional violation of excessive force, and therefore, plaintiff’s Monell
claim cannot stand. As such, summary judgment as to Count VII is granted.
C. Remaining State-Law Claims
In light of summary judgment in favor of defendants in Counts I, II, and VII, the court will relinquish
jurisdiction over the remaining supplemental state-law claims rather than resolving them on the merits. See 28
U.S.C. § 1367(c)(3). Accordingly, Counts III, IV, V, and VI are dismissed without prejudice. See Williams
v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007); Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999)
(“[I]t 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.”).
III. CONCLUSION
For the foregoing reasons, defendants’ motions for summary judgment as to Counts I, II, and VII are
granted, and Counts III, IV, V, and VI are dismissed without prejudice.
1. Defendant is referred to as “Marian Maris” in plaintiff’s complaint and in the motion for
summary judgment submitted by Tidwell, Sheriff Meyers and the County of Winnebago. Defendant
is referred to as “Marianne Meris” in her own motion for summary judgment. For the purposes of
this motion, the court will call her Marianne Meris.
2. The parties have agreed to most of the facts. Where certain background facts did not appear in
the parties’ Rule 56.1 statements, they are gathered from evidence submitted by the parties. All facts
are construed in favor of the plaintiff, as this court must on a motion for summary judgment.
Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007).
3. A Ferguson blanket is a safety product designed to eliminate features that could be made into
potential weapons of self-harm, and it is used to keep volatile inmates from harming themselves or
others.

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