Foutch v. Zimmer

Filing 29

ORDER denying 21 Motion for Summary Judgment. Signed by Magistrate Judge Stephen C. Williams on 3/8/2016. (anj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRUCE W. FOUTCH,
Plaintiff,
vs.
JEREMY ZIMMER,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 14-cv-1366-SCW

MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
INTRODUCTION
Pursuant to 42 U.S.C. § 1983, pro se Plaintiff Bruce Foutch, currently incarcerated
at Graham Correctional Center, filed his complaint alleging that Defendant Jeremy
Zimmer used excessive force while arresting him on July 28, 2013 (Doc. 1). Plaintiff
alleged that Zimmer used excessive force when he shot Plaintiff with a taser gun while
Plaintiff was returning to his car after an altercation with another individual (Doc. 9, p.
3). This matter is before the Court on Defendant‘s motion for summary judgment
(Docs. 21 and 22). Defendant Zimmer argues that he is entitled to summary judgment
under the doctrine of qualified immunity because his use of a taser to subdue Plaintiff
was reasonable. Based on the following the Court DENIES the motion for summary
judgment.

FACTUAL BACKGROUND
Plaintiff filed a complaint on December 11, 2014 alleging that Defendant Zimmer
used excessive force on him on July 28, 2013 (Doc. 1). Specifically, Plaintiff alleges that
Zimmer used a taser to shoot him after an altercation with the owner of a storage unit
over Plaintiff‘s property at the storage unit and that Zimmer deployed the taser without
warning and after the altercation had concluded (Id. at p. 4). After Plaintiff was hit by
the taser, he fell to the ground and hit his head on a rock (Id.). Plaintiff sustained a skull
fracture in the altercation (Id. at pp. 4 and 7).
The following facts are relevant to this summary judgment motion. On July 27,
2013, Defendant Zimmer responded to a local storage unit to deal with an issue
involving Plaintiff at the storage unit (Doc. 22-1 at ¶¶3-4). Plaintiff claimed that the
owner of the storage unit, Steven Wiechert, was selling his property improperly as
Plaintiff was current on his storage unit rent (Id. at ¶ 4; Doc. 24, p. 3). Defendant told
Plaintiff that the matter was civil in nature and that he would have to take Wiechert to
court to get his belongings back (Doc. 22-2, p. 1-2; Doc. 24, p. 3). Plaintiff informed
Defendant that he was going to beat Wiechert‘s ass if he did not return his property
(Doc. 22-2 at p. 2). According to Plaintiff‘s girlfriend, Anna Washburn, Plaintiff told
Defendant he would not leave until Wiechert returned Plaintiff‘s belongings and that if
Wiechert showed up without his property ―it would not be good‖ (Doc. 24, p. 3).
After Plaintiff‘s conversation with Defendant, Wiechert arrived at the scene (Doc.
22-2, p. 2). Plaintiff ran towards Wiechert as he exited his car and struck Wiechert in the
Page 2 of 9

face several times (Doc. 22-1 at ¶ 6; 22-2, p. 3; Doc. 24, p. 4). Plaintiff‘s girlfriend
acknowledges in her affidavit that Plaintiff and Wiechert were in a physical altercation,
although the exact extent of the ―altercation‖ is not indicated in her affidavit (Doc. 24, p.
4).

After striking Wiechert 3-4 times, the incident report from the Dupo Police

Department indicates that Wiechert retreated to his car and that Foutch continued to
throw punches at Wiechert (Doc. 22-2, p. 2). Washburn testified that when Wiechert
ran back to his vehicle, Plaintiff also began to head towards his own vehicle, not towards
Wiechart (Doc. 24, p. 4).
According to Defendant, when he saw Plaintiff continue to attack Wiechert at
Wiechert‘s car, he yelled for Plaintiff to stop and get on the ground (Doc. 22-2, p. 2; 22-1
at ¶6). Plaintiff did not comply and instead drew back to strike Wiechert (Id.). At that
point, Defendant fired the taser at Plaintiff, causing Plaintiff to fall on his right side,
striking his head on the ground (Doc. 22-2, p. 2; Doc. 22-1 at ¶ 6-7). Defendant testified
that he did not allow the taser to complete the full five second cycle but turned the taser
off at 3 seconds (Doc. 22-1 at ¶ 8). Plaintiff was then arrested and an ambulance was
brought to the scene to treat Plaintiff‘s injuries (Id. at ¶¶ 8-9).
Plaintiff, however, offers a different version of events. Anna Washburn testified
in her affidavit that Plaintiff did not continue to pursue Wiechert to Wiechert‘s vehicle
after their initial altercation. Instead, when Wiechert retreated to his vehicle, Plaintiff
also retreated towards his own vehicle (Doc. 24, p. 4).

Washburn testified that

Defendant then fired the taser on Plaintiff without warning (Doc. 24, p. 4).
Page 3 of 9

LEGAL STANDARDS
A. Summary Judgment Standard
Summary Judgment is proper only ―if the admissible evidence considered as a
whole shows there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.‖ Dynegy Mktg. & Trade v. Multi Corp., 648
F.3d 506, 517 (7th Cir. 2011) (internal quotation marks omitted) (citing FED. R. CIV. P.
56(a)). See also Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 607
(7th Cir. 2005). A fact is material if it is outcome determinative under applicable law,
and a genuine issue of 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).
The

party

seeking

summary

judgment

bears

the

initial

burden

of

demonstrating—based on the pleadings, affidavits, and the other information
submitted—the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). After a proper motion for summary judgment is made, the adverse
party ―must set forth specific facts showing that there is a genuine issue for trial.‖
Anderson, 477 U.S. at 250 (quoting FED. R. CIV. P. 56(e)(2)).

A mere scintilla of

evidence in support of the nonmovant‘s petition is insufficient; a party will be successful
in opposing the motion when it presents definite, competent evidence to rebut it.
Szymanski v. Rite-Way Lawn Maintenance Co., Inc., 231 F.3d 360, 364 (7th Cir. 2000).
On summary judgment, the Court considers the facts in the light most favorable
Page 4 of 9

to the non-movant, and adopts reasonable inferences and resolves doubts in the
non-movant‘s favor. Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). Even if the
material facts are not in dispute, summary judgment is inappropriate when the
information before the Court reveals that ―alternate inferences can be drawn from the
available evidence.‖ Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004), abrogated on other
grounds by Spiegla II, 481 F.3d at 966 (7th Cir. 2007).
B. Excessive Force
Claims that an officer used excessive force in the course of an arrest are governed
by the Fourth Amendment‘s reasonableness standard. Acevedo v. Canterbury, 457 F.3d
721, 724 (7th Cir. 2006) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104
L.Ed.2d 443 (1989)).

In evaluating the reasonableness of the force the operative

question ―is whether, in light of the facts and circumstances that confronted the officer
(and not 20/20 hindsight), the officer behaved in an ‗objectively reasonable‘ manner.‖
McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010). The Court considers three factors
in determining the reasonableness of the officer‘s actions:
(1) the severity of the crime at issue; (2) whether the suspect poses an
immediate threat to the safety of officers or others; and (3) whether the
suspect is actively resisting arrest by flight.
Id.(citing Graham, 490 U.S. at 396, 109 S.Ct. 1865, 104 L.Ed.2d 443); see also Padula v.
Leimbach, 656 F.3d 595, 602 (7th Cir. 2011) (quoting Jacobs v. City of Chicago, 215 F.3d
758, 773 (7th Cir. 2000). Other factors to consider are whether the individual was under
arrest or a suspect in a crime, whether the individual was armed, and whether the
Page 5 of 9

individual was attempting to interfere with an officer‘s duties. Padula, 656 F.3d at 602.
―In the end, the excessive force inquiry looks to whether the force used to seize the
suspect was excessive in relation to the danger he posed – to the community or to the
arresting officers – if left unattended.‖ Id. (quoting Jacobs, 215 F.3d at 773).
C. Qualified Immunity
Defendant Zimmer argues that he is entitled to summary judgment under the
doctrine of qualified immunity. Qualified immunity is an affirmative defense that
shields government officials from liability for civil damages where their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable
person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Pearson v.
Callahan, 555 U.S. 223, 231 (2009); Denius v. Dunlap, 209 F.3d 944, 950 (7th Cir. 2000).
It protects an official from suit ―when [he] makes a decision that, even if constitutionally
deficient, reasonably misapprehends the law governing the circumstances [he]
confronted.‖ Brosseau v. Haugen, 543 U.S. 194, 198 (2004). It applies only to state
officials who occupy positions with discretionary or policymaking authority and who
are acting in their official capacities. Harlow, 457 U.S. at 816; Denius, 209 F.3d at 950.
The qualified immunity test has two prongs: (1) whether the facts shown, taken in
the light most favorable to the party asserting the injury, demonstrate that the officer‘s
conduct violated a constitutional right, and (2) whether the right at issue was clearly
established at the time of the alleged misconduct.

Pearson, 555 U.S. at 232, see

Brosseau, 543 U.S. at 197; Wilson v. Layne, 526 U.S. 603, 609 (1999). While it is often
Page 6 of 9

beneficial to first inquire into whether the plaintiff has shown a constitutional violation,
the Court has discretion to address the second prong first in light of the circumstances of
the case. Pearson, 555 U.S. at 236.
ANALYSIS
Here, the Court cannot award summary judgment to Defendant Zimmer on the
basis of qualified immunity because there are still issues of fact as to whether his actions
constituted a violation of Plaintiff‘s constitutional rights. See Lewis v Downey, 581 F.3d
467, 478 (7th Cir. 2009). There is a dispute of fact over whether the force that Defendant
deployed was excessive under the circumstances. The parties do not dispute that when
Wiechert arrived that he and Plaintiff got into an altercation (Doc. 24, p. 4; Doc. 22-1 at
¶6). However, the parties dispute what happened after Wiechert retreated back to his
car after the initial altercation. Defendant testified that Plaintiff continued to pursue
Wiechert and continued to hit him even after orders to stop and get on the ground by
Defendant (Doc. 22-2, p. 2). However, Anna Washburn, Plaintiff‘s girlfriend, testified
that when Wiechert retreated to his car, Plaintiff also retreated towards his own car and
did not pursue Wiechert (Doc. 24, p. 4). The parties also dispute how Defendant
deployed his taser. Defendant testified that he gave Plaintiff the order to stop and
when Plaintiff reached back to throw another punch at Wiechert, Defendant deployed
his taser (Doc. 22-2, p. 2). However, Washburn testified that Defendant did not give a
warning and instead deployed his taser at Plaintiff as Plaintiff retreated to his vehicle
(Doc. 24, p. 4). Thus, at the time that Defendant deployed his taser, Plaintiff, in viewing
Page 7 of 9

the facts in the light most favorable to him, was not a threat to anyone and was retreating
to his vehicle with no order from Defendant to stop.
Defendant Zimmer points to the case of Abbott v. Sangamon County, 705 F.3d
706 (7th Cir. 2013) to support his position that the use of a taser does not constitute
excessive force. While in that case the Seventh Circuit noted that ―the use of the taser
against an actively resisting suspect either does not violate clearly-established law or is
constitutionally reasonable‖, here there is a dispute of fact as to whether Plaintiff was
actively resisting or whether he was an immediate threat to Defendant or Wiechert.
Abbott, 70 F.3d at 727. The Court finds that there is a dispute of fact over whether
Plaintiff posed an immediate threat to anyone as Plaintiff has offered evidence that he
was retreating to his vehicle at the time that Defendant deployed his taser. Cyrus v.
Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010) (when material fact is in dispute,
the case must go to jury). As the Court finds the disputes to be material and bear on
the issue of whether the force deployed was excessive under the circumstances, the
Court finds that summary judgment is inappropriate at this time.
Further, the Court finds that the right was clearly established at the time of the
incident, preventing summary judgment. It is clearly established law that an officer
may not use excessive force and that ―using a significant level of force on a non-resisting
or a passively resisting individual constitutes excessive force.‖ Alicea, 2016 WL 805529,
at * 7.

It is also well settled that an officer may not continue to use force once a suspect

has been subdued and complies with an officer‘s orders. Johnson v. Scott, 576 F.3d 658,
Page 8 of 9

660 (7th Cir. 2009) (citing Dye v. Wargo, 253 F.3d 296, 298 (7th Cir. 2001)). Viewing the
facts in the light most favorable to Plaintiff, Defendant deployed his taser after he was in
a physical altercation with Wiechert, but at the time the taser was deployed, Plaintiff was
no longer in the confrontation and was retreating. Thus, if Plaintiff was not posing a
threat to anyone at the time the taser was deployed, Defendant‘s actions could be
considered excessive despite Plaintiff‘s previous actions. See Alicea v. Thomas, --F.3d
--, 2016 WL 805529, at * 4 (2016) (“[T]he prohibition against significant force against a
subdued suspect applies notwithstanding a suspect’s previous behavior --- including
resisting arrest, threatening officer safety, or potentially carrying a weapon.” (internal
citations omitted)). Accordingly, the Court finds that Defendant is not entitled to
summary judgment on the grounds of qualified immunity.
CONCLUSION
Accordingly, the Court DENIES Defendants‘ motion for summary judgment
(Docs. 21 and 22).
IT IS SO ORDERED.
DATED:
March 8, 2016.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge

Page 9 of 9