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April 11, 1984


The opinion of the court was delivered by: Shadur, District Judge.


Stanley Anton ("Anton") originally filed suit under 42 U.S.C. § 1983 ("Section 1983") against:

    1. Downers Grove police officers Glen Lehpamer
  ("Lehpamer"), Joseph Degand ("Degand") and William
  Moore ("Moore"), charging their use of excessive
  force in effecting Anton's arrest; and
    2. DuPage County Jail law enforcement officers
  Louis Cook ("Cook") and Michael Blazek ("Blazek") and
  DuPage County Sheriff Richard Doria ("Doria"),
  asserting their failure to give Anton adequate
  medical treatment for an injury sustained during the

Cook and Doria (on May 13, 1982) and Blazek (on December 30, 1982) extricated themselves as defendants via the summary judgment route. Now Lehpamer, Degand and Moore also move for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, their motion is denied.


On December 21, 1978 Lehpamer, Degand and Moore responded to a dispatch call that an intoxicated man had created a disturbance in his home and had left carrying a .45 caliber gun.*fn2 Moore saw Anton walking down the street with his hands in his jeans pockets. Moore aimed his police vehicle spotlight at Anton and ordered him to stop walking. As the officers arrived on the scene, all three pointed weapons at Anton: Moore his service revolver, Degand a shotgun and Lehpamer his service revolver.

Lehpamer ordered Anton to take his hands out of his pockets and raise them over his head. After Anton had been told to do so more than once, he raised his hands over his head and then lowered them. Moore grabbed Anton from behind and wrestled him to the ground. Lehpamer assisted in restraining Anton until he was handcuffed. Then the officers removed the .45 caliber gun from the back of Anton's pants belt.

Anton claims defendants then started to drag him to the police vehicle without permitting him to regain an upright position. On reaching the police vehicle Lehpamer stepped on Anton's left leg behind the knee, causing an injury that required him to undergo surgery to repair torn ligaments.

Adequacy of an Available State Remedy

Defendants' entire argument is that for reasons marked out in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the adequacy of an available state law tort claim bars Anton's suit here. Parratt involved a prisoner's Section 1983 claim against state officials for their negligence in losing a hobby kit paid for with the prisoner's own funds. Justice Rehnquist (speaking for the Court, through the proliferation of other opinions clouds the precise contours of the Court's holdings) first said the prisoner had satisfied three of the four prerequisites to establish a violation of procedural due process (451 U.S. at 536-37, 101 S.Ct. at 1913-14, footnote omitted):

  Unquestionably, respondent's claim satisfies three
  prerequisites of a valid due process claim: the
  petitioners acted under color of state law; the hobby
  kit falls within the definition of property; and the
  alleged loss, even though negligently caused,
  amounted to a deprivation. Standing alone, however,
  these three elements do not establish a violation of
  the Fourteenth Amendment. Nothing in that Amendment
  protects against all deprivations of life, liberty,
  or property by the State. The Fourteenth Amendment
  protects only against deprivations "without due
  process of law." Baker v. McCollan, 443 U.S. [137],
  at 145, 99 S.Ct. [2689], at 2695 [61 L.Ed.2d 433].
  Our inquiry therefore must focus on whether the
  respondent has suffered a deprivation of property
  without due process of law. In particular, we must
  decide whether the tort remedies which the State of
  Nebraska provides as a means of redress for property
  deprivations satisfy the requirements of procedural
  due process.

After extended discussion, Justice Rehnquist concluded "due process" had been satisfied there because (1) Nebraska provided a tort remedy adequate to redress the deprivation and (2) no pre-deprivation hearing was possible (id. at 541, 101 S.Ct. at 1916).

Parratt — which after all dealt with a deprivation of property caused by negligence — quickly ignited a controversy over whether its analysis extended as well to deprivations of liberty and to intentional acts. At least in this Circuit, the Parratt approach does apply to deprivations of liberty interests. State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.), cert. denied, ___ U.S. ...

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