Flores v. City of East Chicago et al

Filing 47

OPINION AND ORDER GRANTING IN PART and DENYING IN PART the 38 MOTION for Partial Summary Judgment filed by Sam Maldonado, Garrick Manley. Partial summary judgment is granted as to defendants Maldonado and Manley on Count I and the e xcessive force claim in Count II, and those claims are DISMISSED WITH PREJUDICE. However, summary judgment is DENIED as to the false arrest claim in Count II, and that claim remains pending against Maldonado and Manley. Signed by Chief Judge Philip P Simon on 1/3/17. (ksp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ERIBERTO FLORES,
Plaintiff,
vs.
CITY OF EAST CHICAGO, et al.,
Defendants.

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NO. 2:15-cv-22

OPINION AND ORDER
This is a civil rights case brought by Eriberto Flores under Section 1983 alleging
First Amendment violations as well as wrongful arrest and excessive force. It is claimed
by Mr. Flores that two of the defendants, City of East Chicago police officers Sam
Maldonado and Garrick Manley, failed to intervene to prevent constitutional violations
being committed by a third officer. Officers Maldonado and Manley now seek
summary judgment. [DE 38.] Partial summary judgment is granted in part and denied
in part. Because I find there is no evidence that Flores’ protected speech was a
motivating factor in his arrest, and because neither Maldonado nor Manley had a
realistic opportunity to intervene to prevent the excessive force to Mr. Flores from
occurring, partial summary judgment is granted as to Count I and the excessive force
claim in Count II. However, because there is a triable issue of fact as to whether
Maldonado and Manley failed to intervene in the alleged false arrest of Flores,
summary judgment is denied as to the false arrest claim in Count II.

Factual Background
Flores tells me that he is a “well-known member and activist of the Concerned
Citizens of East Chicago.” [DE 15 at 2.] One of the issues addressed by the Concerned
Citizens is residential parking. On January 16, 2016, Flores contacted the East Chicago
police dispatcher to report a parking violation in front of his house. A van was illegally
parked on a handicap spot which Flores and his disabled mother regularly used. [DE
38-1 at 12.] But when no officer came to Flores’ residence in response to the call, he and
his friend, Ed Arambula, started to drive away. [DE 43 at 2-3.] As they were departing,
Flores saw two police cars in a parking lot near his house on 148th Street and Magoun
Avenue, so Flores stopped to chat. [DE 38-2 at 2.]
The officers, Sam Maldonado and Garrick Manley, were parked side by side with
their vehicles facing the opposite direction so they could communicate. [DE 43 at 3; DE
38-2 at 2.] Flores parked his car nearby and walked over to Maldonado and Manley;
they remained seated in their cars. [DE 38-2 at 2.] Flores asked the officers about the
status of his earlier call regarding the parking violation. [DE 39 at 2; DE 43 at 3; DE 38-1
at 19.] Maldonado responded with frustration: “Albert, why do you keep calling over
the bullshit calls? Don’t you think we have more important things to do?”and told
Flores that he was “a pain in the ass.” [DE 38-2 at 2.] Arambula, who had remained in
Flores’ car about thirty yards away, described the conversation between Flores and the
Officers—which he could see, but not hear—as follows: “they were laughing[] and – or
at ease, and he was waving his hands, and it was just a normal conversation from what
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I observed.” [DE 38-3 at 58.]
Flores then noticed a third police car allegedly driving the wrong way down
Magoun Avenue, a one-way street, without any lights or sirens. [DE 38-2 at 2.] He saw
the police vehicle brake hard, back up down the street, and pull into the parking lot
where Flores, Maldonado, and Manley were talking. [Id.] Flores assumed the vehicle
was there to observe the situation, so he turned back towards Maldonado to continue
his conversation. [DE 38-1 at 19.] Suddenly and without warning, Flores felt handcuffs
on his wrist and was pushed against the door of Maldonado’s police car. [DE 38-2 at 2;
DE 38-3 at 6.] His arms were twisted by the arresting officer behind his back and he
was told to quit resisting. [DE 38-1 at 19; DE 38-3 at 6.] Flores then heard, “[You’re]
under arrest for disorderly conduct!” [DE 38-2 at 2] and was slammed against the trunk
of the police car. [DE 38-1 at 19.]
Although Flores was initially confused and didn’t know who was arresting him,
he soon learned that he was being arrested by Officer Arcuri, the East Chicago police
officer who had happened upon the scene. [Id.] Flores is well familiar with Arcuri;
they’re cousins. [DE 38-2 at 2.] While attempting to place Flores into the police vehicle,
Arcuri caused Flores’ head to hit the door jamb at least two times, the second blow
causing his hat to be knocked from his head. [DE 38-2 at 2-3; DE 38-4 at 1.] Flores
called out to Arambula, who was still seated in Flores’ vehicle. [DE 38-2 at 2; DE 38-4 at
1.] Flores and Arambula claim that after Flores yelled, Arcuri’s demeanor changed; he
was evidently surprised that there was a witness (Arambula) to the events. [DE 38-2 at
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2-3; DE 38-3 at 7.]
For the first time since the incident began, Maldonado and Manley exited their
police cars. [DE 38-1 at 20; DE 38-4 at 1.] Flores asked Arambula to take his vehicle
back to his house a half block away, but Arcuri ordered the vehicle to be impounded.
[DE 38-2 at 3; DE 38-4 at 1.] Arcuri directed Manley to “get [Flores] out of here.” [DE
38-1 at 20.]
There is a history of Flores calling the East Chicago police dispatcher to report
parking ordinance violations. [DE 38-1 at 11-13; DE 38-2 at 2.] Admittedly, Flores called
the police “more than a few times” about parking violations. [DE 38-1 at 21.] But Flores
had difficulties getting the parking ordinance enforced in front of his house. [DE 38-1 at
11-13.]
There is also a history of Arcuri harboring negative feelings towards Flores. [DE
38-1 at 11, 16.] Flores claims that other officers told him that Arcuri wanted him
arrested. [DE 38-1 at 11.] Flores also states that relatives told him Arcuri hated Flores,
and he didn’t consider Flores a relative. [DE 38-1 at 16.]
Flores’ amended complaint [DE 15] is brought against Officers Arcuri,
Maldonado and Manley, in their individual and official capacities. Flores alleges a
violation of civil rights premised on First Amendment retaliation (Count I) and false
arrest and excessive force (Count II). [DE 15.] Curiously, the amended complaint also
includes a claim against Mark Becker, the East Chicago Chief of Police (in his individual
and official capacities), although there appears to be no evidence that Becker was
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involved in the Flores arrest in any manner. The issue of Becker’s involvement in this
case can be sorted out at the Final Pretrial Conference, but for now the issue to be
addressed is whether the claims against Maldonado and Manley, the two bystander
officers, can proceed to trial with the case against Arcuri, who is bound for trial since he
did not seek summary judgment in this matter.
Discussion
Summary judgment must be granted when “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 of material fact exists when “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 response to the instant motion for summary
judgment, Flores filed what he entitled “Plaintiff’s Motion to Deny Defendants’ Motion
for Summary Judgment,” which I construe as a response in opposition to the summary
judgment motion.
Count I - First Amendment Protected Conduct
The relevant standard for a plaintiff’s burden of proof on these types of claims
has changed a number of times over the years. Defendants state, “[i]n order to
establish a prima facie case of First Amendment retaliation, a Plaintiff must
demonstrate that (1) his conduct was Constitutionally protected; and (2) his conduct
was a ‘substantial factor’ or ‘motivating factor’ in the Defendants’ challenged actions.”
Abrams v. Walker, 307 F.3d 650, 654 (7th Cir. 2002) (citations omitted). Abrams was
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abrogated by Spiegla v. Hull, 371 F.3d 928 (7th Cir.2004), but later revived by Fairley v.
Andrews, 578 F.3d 518 (7th Cir.2009) (“Some decisions say that a plaintiff just needs to
show that his speech was a motivating factor in defendant's decision. These decisions
do not survive Gross, which holds that unless a statute provides otherwise,
demonstrating but-for causation is part of the plaintiff's burden in all suits under
federal law.”) (referring to Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)).
However, as later noted by the Seventh Circuit in Surita v. Hyde, 665 F.3d 860, 874 (7th
Cir. 2011):
Recently, in Greene v. Doruff, 660 F.3d 975 (7th Cir.2011), we
addressed the tension in our cases between motivating-factor
causation and but-for causation, clarifying that First Amendment
cases are governed not by Gross but by Mt. Healthy City School
District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50
L.Ed.2d 471 (1977). Greene, 660 F.3d at 977. We noted that Spiegla
and Fairley are correct to an extent because the burden of proof
relating to causation is divided between the parties in First
Amendment cases. Id. at 979–80. To meet the prima facie burden
regarding causation in a First Amendment case, a plaintiff needs to
show only that the defendant's conduct was a motivating factor,
i.e., a “sufficient factor,” meaning when something present makes
something else bound to happen. Id. at 978–79. The defendant can
then rebut that showing, but only by establishing that his or her
conduct was not a but-for or “necessary condition” of the harm, i.e.,
that the harm would have occurred anyway. Id. at 979. . . .
Moreover, at the summary judgment stage the burden-shifting test
is used to determine whether a plaintiff makes it to trial. Even as
we stated in Fairley, if evidence exists upon which a reasonable jury
could find but-for causation, no more is necessary to overcome a
defendant's summary judgment motion.
Regardless of whether “sufficient factor” causation is applied or “but-for” causation,
Flores has failed to satisfy any prima facie showing that his activist activities and
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reporting of parking violations was a factor in any First Amendment restriction of rights
by Maldonado or Manley.
Maldonado’s statement about “why do you keep calling over the bullshit calls?
Don’t you think we have more important things to do?” and “You’re a pain in the ass,”
did not restrict or diminish Flores’ right to political speech, and did not deny him any
rights - indeed the officers and Flores were by all accounts having a frank discussion. It
is uncontroverted that Maldonado and Manley did not exert any force against Flores;
their involvement in the incident was limited to Manley obeying Arcuri’s order to
transport Flores to the police station and Maldonado obeying Arcuri’s order to arrange
for the tow of Flores’ vehicle. Indeed, when asked during his deposition whether he
believed Arcuri beat him up because he exercised his right of free speech under the First
Amendment, Flores replied, “[u]nder oath what I believe it is is because since the other
officers wouldn’t arrest me like he wanted them to, he came and did it himself.” [DE 381 at 62.] Basically, Flores has produced no evidence showing Maldonado or Manley
restricted his First Amendment rights at all (much less that any alleged infringement
was due in at least part to his political activism or protected speech).
Moreover, it is common sense that the protected conduct “cannot be proven to
motivate retaliation [] if there is no evidence that the Defendants knew of the protected
[activity].” Stagman v. Ryan, 176 F.3d 986, 1000-01 (7th Cir. 1999) (quoting O’Connor v.
Chicago Transit Auth., 985 F.2d 1362, 1369-70 (7th Cir. 1993)). While Maldonado knew
Flores had called before regarding parking violations, there is no evidence that
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Maldonado or Manley knew about Flores’ involvement with the Concerned Citizens of
East Chicago or his community activism. Flores argues that the Chief of Police was
aware of his community activities, so Maldonado and Manley must have known about
it, but it is not proper to impute the Chief’s knowledge to the officers. For all of these
reasons, summary judgment is warranted on Count I.
Count II - Failure to Intervene
While Maldonado and Manley contend Flores’ only argument as to them on the
wrongful arrest and excessive force claims is that they failed to intervene to prevent
Arcuri from using excessive force, a close read of the first amended complaint shows
otherwise. Flores also alleges that Maldonado and Manley violated the Fourth
Amendment by refusing or neglecting to prevent his alleged false arrest. [DE 15 at 6-7.]
Here’s the standard governing these claims:
An officer who is present and fails to intervene to prevent other law
enforcement officers from infringing the constitutional rights of
citizens is liable under § 1983 if that officer had reason to know: (1)
that excessive force was being used, (2) that a citizen has been
unjustifiably arrested, or (3) that any constitutional violation has
been committed by a law enforcement official; and the officer had a
realistic opportunity to intervene to prevent the harm from
occurring.
Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (emphasis in original) (citations omitted);
see also Sanchez v. City of Chicago, 700 F.3d 919, 925-926 (7th Cir. 2012).
Let’s turn to the first prong regarding excessive force. Even if we suppose that
Arcuri used excessive force, Flores still has to show that Maldonado and Manley also

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had a realistic opportunity to intervene. “Whether an officer had sufficient time to
intervene or was capable of preventing the harm caused by the other officer is generally
an issue for the trier of fact unless, considering all the evidence, a reasonable jury could
not possibly conclude otherwise.” Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467,
477 (7th Cir. 1997). “[I]n deciding whether an officer had a realistic opportunity to
intervene, courts may consider, among other factors, the length of the excessive force,
the number of blows involved, and the positions of the bystander officers relative to the
altercation.” Howard v. Ealing, 876 F.Supp.2d 1056, 1072 (N.D. Ind. 2012) (citations
omitted).
Here, considering all the evidence, I find that a reasonable jury could not
possibly come to any conclusion other than the officers didn’t have sufficient time to
intervene to prevent the excessive force. It is uncontroverted that Maldonado and
Manley were in their police cars when the alleged excessive force occurred. Flores’
police account, which is consistent with his deposition testimony, is that while he was
talking with Maldonado and Manley in their cars, “[s]uddenly without warning I felt
something hit my left wrist (handcuffs) and was instantly pressed into the drivers door
of the car containing the policeman I was talking with.” [DE 38-2 at 2.] Arcuri then
“pulled me away from the door and slammed me onto the trunk of car #78. . . . forced
me towards the rear door of car #78 . . . [and] violently forced my head into the door
jamb.” [DE 38-2 at 2.] The witness, Arambula, had a similar account, testifying during
his deposition that Arcuri “walk[ed] up to [Flores]” and “Arcuri grab [sic.] him from his
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left side, his left hand, without provocation, without warning . . . he is grabbing from
his wrist and . . . put his hand up behind his back almost touching the head. . . . [Flores]
looks over and says, hey, what you doing? Complete surprise. Then this Officer
Arcuri, he slams him against the police squad car.” [DE 38-3 at 6.]
It seems to me that when the excessive force consists of one or two sudden blows
in quick succession, in most circumstances, a bystander officer will not have a realistic
opportunity to intervene to prevent the harm. Of course, every case must be decided on
its own facts. But here, there is no evidence that Maldonado and Manley knew Arcuri
was going to slam Flores into the police car and throw him in the back seat. And even if
they did know, there is no evidence showing they had enough time to exit their
vehicles, approach Arcuri while the assault was occurring, intervene to protect Flores
and thereby prevent the excessive violence from occurring. While Flores argues the
officers should have known Arcuri was going to do something when he drove his car
the wrong way on a one-way street and then “had a very angry look on his face” [DE 43
at 10-11], I think it is unfair to assume an officer will execute an alleged false arrest and
knock the suspect’s head against a door jamb just because he looks agitated.
There is no evidence to suggest anything but that this was a sudden and
unexpected quick incident with no signs of what was going to happen until it actually
occurred. This case is similar to Taylor v. Kveton, in which the court found a bystander
officer did not have a realistic opportunity to intervene because “the act of throwing
[plaintiff] into the squad car, by his own account, was not a long drawn out process.”
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Taylor v. Kveton, 684 F.Supp. 179, 184 (N.D. Ill. 1988).
In sum, Flores completely failed to designate any evidence showing that
Maldonado and Manley had a realistic opportunity to intervene—that they had enough
time to act during the surprise and brief use of force by Arcuri, or the ability to prevent
the harm considering their positions inside the police cars. See Johnson v. Cambridge
Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (“[S]ummary judgment is the put up or shut
up moment in a lawsuit, when a party must show what evidence it has that would
convince a trier of fact to accept its version of events.”) (internal quotation marks
omitted). Accordingly, the motion for summary judgment is granted as to the
excessive force claim in Count II against Maldonado and Manley.
My analysis cannot end here though. Recall that a bystander officer can also be
liable under section 1983 if they had reason to know that a citizen has been unjustifiably
arrested and the officer had a realistic opportunity to intervene to prevent that harm
from occurring. Yang, 37 F.3d at 285; see also Sornberger v. City of Knoxville, Ill., 434 F.3d
1006, 1019 (7th Cir. 2006). Here, Maldonado and Manley knew that Flores was not
being disorderly, and yet Officer Arcuri stopped his car and immediately arrested
Flores on the bogus charge (if one believes Flores) of disorderly conduct. There is no
evidence in the record that Maldonado or Manley did anything to stop the arrest and
indeed they assisted at least in part by arranging the towing of Flores’ vehicle and
driving him to the police station. This is enough to create a triable issue of fact as to
whether Maldonado and Manley had reason to know that Flores was being
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unjustifiably arrested in their presence. In Wayne v. Kirk, No. 13 C 8540, 2015 WL
5950900, at *3 (N.D. Ill. Oct. 13, 2015), the court denied summary judgment on the
failure to intervene in a false arrest where the record showed that bystander officers
could have intervened in the false arrest as it was “undisputed that they knew plaintiff
had done nothing illegal and saw [the other officers handcuff him]”. Similarly,
summary judgment must be denied on Count II as to the claim that Maldonado and
Manley failed to intervene to prevent a false arrest because there is a triable fact issue as
to whether the officers could have intervened in Arcuri’s arrest of Flores.
Conclusion
For the reasons set forth above, the motion for partial summary judgment filed
by defendants Sam Maldonado and Garrick Manley [DE 38] is GRANTED IN PART
AND DENIED IN PART. Partial summary judgment is granted as to defendants
Maldonado and Manley on Count I and the excessive force claim in Count II, and those
claims are DISMISSED WITH PREJUDICE. However, summary judgment is
DENIED as to the false arrest claim in Count II, and that claim remains pending against
Maldonado and Manley.
SO ORDERED.
ENTERED: January 3, 2017
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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