chance, Tomasso promises to have more than circumstantial evidence implicating the defendants by the time of trial. This request comes almost five years after his arrest, however, and almost a year after the close of discovery. On December 6, 1989, more than one and a half years ago, Tomasso asserted in deposition testimony that he doubted his ability to identify any of the police officers involved in his arrest. With the passage of time the likelihood of an affirmative identification grows less likely. Therefore, this Court has a difficult time believing that a photographic show-up would produce a positive identification for trial. Moreover, Tomasso's argument that his confinement since the time of his arrest has prevented him from attempting an identification at an earlier time, is not persuasive. The importance of identifying the officers allegedly involved in Tomasso's mistreatment has always been obvious, and Tomasso has failed to give any reason that would mandate an extension of the discovery cut-off date. To reopen discovery at this late date would unfairly prejudice the defendants.
In defending against this motion for summary judgment, Tomasso must establish that there is a genuine issue of fact for trial. This burden is not satisfied by plaintiff's promise to present other evidence at the time of trial. See Celotex, 477 U.S. at 332 n. 3. The Court, accordingly, looks to the evidence already submitted to determine whether Tomasso has raised a triable issue with respect to any of the individual defendants.
Tomasso claims that the plainclothes officer who had been seated in the front passenger seat during the drive from the site of the arrest to the tavern, followed him into the squadrol and beat him. The police arrest report identifies that person as Officer Ignoffo. Accordingly, Tomasso has included Officer Ignoffo among the named defendants. Tomasso admits that he would probably be unable to identify his assailant, however. In fact, the sole identifying characteristic that Tomasso could definitively offer was that his alleged assailant was white. Ignoffo has submitted an affidavit swearing that he did not enter the squadrol with Tomasso, and that he did not, at any time, use any force against Tomasso or hit Tomasso with his fists or any other objects.
The evidence creates an issue of fact that should go to the jury. Whether or not Ignoffo was responsible for beating Tomasso cannot be decisively determined. The issue is reduced to a credibility battle between the two. Accordingly, the motion for summary judgment of the § 1983 claim against Officer Ignoffo is denied.
Tomasso has also alleged that he was treated with excessive force by several officers who attempted to revive him once the squadrol arrived at the police station. He claims that at least one, and possibly two or three officers gathered around him while one held ammonia capsules under his nose. Because he was drifting in and out of consciousness, he could not walk into the police station. Consequently, he claims that one or two officers dragged him by his handcuffed arms up the steps and into the station. The officers deny this claim.
Tomasso can offer no evidence as to which, if any, officers might have been involved in this particular incident of alleged mistreatment. He recalls that they were uniformed officers, all of them white--except perhaps one, who may have been black. When asked whether they were the same officers as those involved in his arrest, he stated that he could not remember. Finally, he admitted that he would most likely be unable to identify them if given the opportunity. This evidence is certainly insufficient to establish the personal responsibility of any one defendant for this incident. The plaintiff's allegations merely suggest that any one of the uniformed officers in the sixteenth district might have been responsible for dragging him into the station. Because Tomasso has failed to support this claim with any probative evidence, each of the individual defendants is dismissed from these particular allegations of excessive force, which are contained in Count I.
The other officers whom Tomasso has sought to implicate under § 1983 are those who failed to intervene to prevent those directly involved from beating him. A police officer "may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge." Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972). In Byrd, although the plaintiff could not specifically identify the officers who beat him, he could identify some of the officers who were present and observed the beating. Id. The Seventh Circuit determined that the plaintiff should be allowed to argue on remand that the identified officers were liable for negligently failing to intervene.
In this case, however, Tomasso can neither identify nor describe any one of the officers who might have been present during the alleged beating. Again, he has merely recited the names of those officers identified in the arrest report. He is unable to give the number of officers who witnessed his beating or, in fact, a definite assurance that anyone at all witnessed it. While Tomasso suggested during deposition testimony that any officers present were most likely those who had accompanied him in the unmarked car, he admitted that he could not state for certain that this was the case. These vague suppositions are insufficient to create a triable issue of fact. Consequently, neither the unidentified nor the named individual defendants can be held liable under Byrd.
B. Count II - Assault and Battery
Just as Tomasso has failed to present enough evidence to survive a motion for summary judgment on the § 1983 claims against all but one of the individual officers, so too has he failed to implicate anyone but Ignoffo under a common law theory of assault and battery. As was true with regard to the constitutional claims, plaintiff has not produced any facts to support his claim. Discovery was closed long ago. Because plaintiff has failed to provide sufficient evidence to implicate five of the named defendants or any unnamed officers in the excessive force claims set forth in Counts I and II, the defendants are entitled to summary judgment as a matter of law. Although it is a borderline issue, however, Tomasso has proffered enough evidence in support of Counts I and II to counter the motion for summary judgment as it pertains to defendant Ignoffo.
C. Qualified Immunity
The defendants argue that the individual defendants are qualifiedly immune. Accordingly, this Court must decide whether Ignoffo may be sued for his alleged role in the beating of Tomasso. The doctrine of qualified immunity shields public officials "from liability for civil damages insofar as the 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, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). At the time of Tomasso's arrest, the standard applied in excessive force cases was that established in Gumz v. Morrissette, 772 F.2d 1395, 1400 (7th Cir. 1985), overruled in part by Lester v. Chicago, 830 F.2d 706 (7th Cir. 1987). Under Gumz, the use of force was considered unconstitutional if it "1) caused severe injuries, 2) was grossly disproportionate to the need for action under the circumstances, and 3) was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience." Id. If Tomasso's claims were merely that the officers had handcuffed him roughly, causing soreness in his wrists and shoulders, Ignoffo would clearly be qualifiedly immune. See, e.g., Boyd v. Angarone, 729 F. Supp. 1194 (N.D. Ill. 1990); Alm v. Moreth, 694 F. Supp. 1322 (N.D. Ill. 1988). Tomasso, claims, however, that Ignoffo grabbed the back of his hair and repeatedly smashed his head and face into the side of the squadrol. The resulting injuries, which required a three day stay in the hospital, could certainly be termed "severe." See, e.g., Brown v. Triche, 660 F. Supp. 281, 286 (N.D. Ill. 1987). As the Seventh Circuit stated in Gumz, "the ultimate question here is, after all, whether the use of force was so egregious as to be constitutionally excessive, and the presence of some physical injury is certainly relevant to that determination." 772 F.2d at 1401. Tomasso's allegations rise to that level. Moreover, given that the plaintiff was already handcuffed and in the squadrol, and had offered no resistance since his arrest on the C.T.A. bus, it is also clear that the alleged actions of Ignoffo were both grossly disproportionate to any need for action and inspired by malice. The alleged beating satisfies the "shocks-the-conscience" standard established in Gumz. Accordingly, Ignoffo is not qualifiedly immune from § 1983 liability and the defendants' motion for summary judgment as to Counts I and II are denied with respect to Officer Ignoffo.
II. The City
A. Count III - Monell Policy Claim:
In Count III of his complaint, Tomasso charges the City with § 1983 liability for violating his Fourth and Fourteenth Amendment rights. He claims that it was the custom and policy of the City of Chicago "to condone and ratify the assault and battery of those persons in the custody of the Chicago Police Department by failing to impose appropriate sanctions when such events occur." The City has moved for judgment on the pleadings and, if its motion is granted, for dismissal of the City from Count II for lack of pendent jurisdiction over the common law claims of assault and battery. Because matters outside the pleadings have been referred to both in support of and in opposition to this motion, which was consolidated with the motion of the individual defendants, this Court will treat it as a motion for summary judgment. Fed.R.Civ.P. 12(c).
The Supreme Court has held that municipalities can be held liable under § 1983 for constitutional violations caused by their official policies, including unwritten customs. Monell v. Department of Social Services, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). To hold a municipality liable on a policy claim, the Court must find that the alleged policy or custom proximately caused the plaintiff's injury. Id. at 693-94. As the Supreme Court stated, "it is when execution of a government's policy or custom . . ., 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 Section 1983." Id. Therefore, to hold the City liable, Tomasso must establish that he was injured, and that some municipal policy, custom or practice proximately caused the injury. Polk County v. Dodson, 454 U.S. 312, 326, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981).
Even if Tomasso were able to convince a jury that he was maliciously beaten by Officer Ignoffo at the time of his arrest on September 15, 1986, there is no evidence to support his claim that this incident was more than an isolated one, unrelated to municipal policy. An allegation of a single incident of unconstitutional conduct does not usually establish municipal liability. Strauss v Chicago, 760 F.2d 765, 767 (7th Cir. 1985); Powe v. Chicago, 664 F.2d 639, 650 (7th Cir. 1981). Moreover, allegations of municipal liability premised on a City's acquiescence in prior misconduct must be supported by more than conclusory statements. Strauss, 760 F.2d at 767.
Tomasso has failed to set forth any factual basis for his § 1983 claim against the City. The sole basis for his allegation of municipal liability is the City's alleged failure to reprimand the six officers for their treatment of him at the time of his arrest. In deposition testimony, Tomasso admitted that while he was certain it would be easy to find others who had been similarly treated, he could not give the names of any such people or could he provide any factual support for his claim that the City ratified and condoned the assault and battery of people taken into custody. Claims based on wholly conclusory allegations of a de facto municipal policy, the existence of which is sought to be inferred not from something the municipality did but rather from its claimed inaction, constitutes one of the most prevalent forms of abuse in § 1983 actions. Rodgers v. Lincoln Towing Service, Inc., 596 F. Supp. 13, 20 (N.D. Ill. 1984).
Because the plaintiff's conclusory allegations of a municipal policy are wholly unsupported, the City is entitled to summary judgment with respect to Count III. The City has already been dismissed from Count I. The only remaining claim against the City is a common law claim of assault and battery alleged in Count II. Because all of the federal claims against the City have been dismissed, this Court must decide whether the City should be retained as a pendent party in this litigation.
B. Pendent State Claims
A court may retain pendent party jurisdiction over a defendant if such an exercise of jurisdiction is permissible under Article III of the Constitution, and if it is not prohibited under relevant statutory provisions. See, e.g., Finley v. United States, 490 U.S. 545, 109 S. Ct. 2003, 2006, 104 L. Ed. 2d 593 (1989). The constitutional considerations are satisfied when 1) there is a federal claim of sufficient substance to confer federal jurisdiction, and 2) the federal and state claims are derived "'from a common nucleus of operative fact' such that a plaintiff 'would ordinarily be expected to try them all in one judicial proceeding."' Zabkowicz v. West Bend Co., Div. of Dart Indus., Inc., 789 F.2d 540, 546 (7th Cir. 1986), quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).
The statutory prong, on the other hand, requires "an examination of the posture in which the nonfederal claim is asserted and of the specific statute which confers jurisdiction over the federal claim, in order to determine whether 'Congress in 437 U.S. 365, 373, 57 L. Ed. 2d 274, 98 S. Ct. 2396 (1978), quoting Aldinger, 427 U.S. at 18. Recently, the Supreme Court has moved away from assuming that silence in a federal statute confers jurisdiction over pendent parties and has apparently taken the position that "an affirmative grant of pendent-party jurisdiction" is required. See Finley, 109 S. Ct. at 2006.
[810140007-opinionfn2" NAME="#sthat statute) has . . . expressly or by implication negated' the exercise of jurisdiction over the particular nonfederal claim."' Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373, 57 L. Ed. 2d 274, 98 S. Ct. 2396 (1978), quoting Aldinger, 427 U.S. at 18. Recently, the Supreme Court has moved away from assuming that silence in a federal statute confers jurisdiction over pendent parties and has apparently taken the position that "an affirmative grant of pendent-party jurisdiction" is required. See Finley, 109 S. Ct. at 2006.
Even if a court has the power to hear a pendent party claim, however, a court must still determine whether it should exercise its discretion to do so. Human v. Hains, 865 F.2d 920, 922, 923 (7th Cir. 1989). This inquiry involves an analysis of such factors as judicial economy and the convenience of and fairness to the litigants. See, e.g., Gibbs, 383 U.S. at 726; Montgomery v. Chicago, 670 F. Supp. 230 (N.D. Ill. 1987).
These substantive hurdles have led the Seventh Circuit to term pendent party jurisdiction an "embattled" concept, Huffman, c 865 F.2d at 922, and to express its doubt as to the plausibility of pendent party jurisdiction ever being applicable in a suit brought under § 1983, Ross v. United States, 910 F.2d 1422 (7th Cir. 1990). In any event, this Court does not consider the exercise of pendent party jurisdiction to be appropriate in this case. If the City were retained in this suit under the Count II allegations of assault and battery, any liability assessed would be based on respondeat superior. To allow this would defeat the prohibition in Monell against using a respondeat superior theory of recovery under § 1983. See 436 U.S. at 691. Accordingly, the Court declines to exercise its pendent party jurisdiction over the City of Chicago.
The defendants' motion for summary judgment is granted as to all individual defendants under Counts I and II except for Officer Ignoffo. The defendants' motion for judgment on the pleadings with respect to Counts II and III is treated as a motion for summary judgment and is granted as to the City. Accordingly, only Officer Ignoffo remains as a defendant to this action, under Counts I and II.
Because this case has been pending since 1988, it is important that it be set for trial as soon as possible. Therefore, the Court orders the parties to appear at a Final Pretrial Conference on September 18, 1991, at 4:30 p.m. The Court further orders the parties to submit their final pretrial order at that time, pursuant to the applicable rules.