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TOMASSO v. CITY OF CHICAGO

August 26, 1991

ALBERT G. TOMASSO, Plaintiff,
v.
THE CITY OF CHICAGO, A Municipal Corp., and Chicago Police Officers, RICHARD BENDIXON #2858, CAPRIO, IGNOFFO, KALAS, SERGEANT ALLAN MAY #1303, ALAN LEE, and other unknown Chicago Police Officers, including those in beat numbers 1663A, 1631, 1630, 1663, and 1670, Defendants



The opinion of the court was delivered by: NORDBERG

 The plaintiff, Albert G. Tomasso, filed a complaint under 42 U.S.C. § 1983 against the City of Chicago, six named Chicago police officers, and other unnamed officers for alleged violations of his constitutional rights. This action is before the court on the individual defendants' motion for summary judgment on Counts I and II of the Complaint, and the City's motion for judgment on the pleadings of Count III and dismissal, for lack of supplemental jurisdiction, from Count II. For the reasons set forth below, the Court grants the defendants' motion as to all of the defendants except for Officer Ignoffo.

 STATEMENT OF FACTS

 Tomasso claims that certain Chicago police officers, in conformity with City policy, used excessive force in connection with his arrest on September 15, 1986. On that date, under the emboldening influence of two pints of vodka, Tomasso held up the Fort Dearborn Savings and Loan Association, making off with $ 1804. Officer Lee, an off-duty Chicago police officer moonlighting as a security guard at the bank, tried to arrest Tomasso at the scene, but the plaintiff escaped in a car he had stolen earlier that day. After driving a short distance, Tomasso abandoned the car in an alley and entered a nearby tavern, hoping to make a telephone call. When the telephone was not available, Tomasso left the tavern and boarded a C.T.A. bus, which is where he was eventually apprehended.

 Meanwhile, Officers Caprio, Ignoffo and Kalas, plainclothes tactical officers assigned to the area, heard the police radio report of the robbery and drove their unmarked car to the bank. At the bank, they were joined by Officer Lee, who helped them search the vicinity for the get-away car. Before long, they found it in the alley where Tomasso had left it.

 By this time other officers had joined the search in response to a police radio message announcing that a man fitting the robber's description had been seen boarding a bus. Sergeant May and Officer Bendixon, both in uniform and driving separate squad cars, located the bus and curbed it. Officers Caprio, Kalas and Ignoffo arrived moments later. Relying on reports that the bank robber was armed, Sergeant May boarded the bus with his revolver drawn. He was followed by the three tactical officers. The officers found the plaintiff sitting quietly with a brown bag in his lap, counting the stolen money. Tomasso offered no resistance as May handed him to the three tactical officers, who handcuffed him and led him off the bus.

 At this point, the officers left the scene of the arrest and retraced the steps Tomasso had taken, hoping to find evidence such as the weapon he had allegedly brandished at the time of the robbery. After a stop at the bank, Officer Lee and Sergeant May returned to the sixteenth district police station. Officer Bendixon drove to the tavern from which Tomasso had attempted to make the call; the plainclothes officers, Caprio, Kalas and Ignoffo, did the same, transporting the plaintiff in the back seat of their unmarked car. At the tavern, one of the officers called a squadrol to transport Tomasso to the police station.

 It is at this point that the stories diverge. The defendants allege that Officers Caprio and Kalas entered the tavern to search for evidence, while Officers Ignoffo and Bendixon stayed outside to guard Tomasso until the squadrol arrived. When it arrived driven by two uniformed officers, French and Hickey, Officer Ignoffo unlocked the door to the unmarked car and permitted Tomasso to exit the vehicle. Tomasso was then escorted to the squadrol by Officers Bendixon, Ignoffo and Hickey. After he had climbed the steps into the back of the wagon, the officers locked the door behind him. The officers claim that no officer set foot inside the squadrol. Once locked into the squadrol, however, the officers claim that Tomasso burst into a rampage. Alarmed by the din, Officers Bendixon and Ignoffo opened the rear door of the squadrol to check on the plaintiff. They claim to have found him kicking and pounding his head against the side of the vehicle. After quieting him down, they transported him to the district police station.

 At the police station, Tomasso was handed into the custody of Federal Bureau of Investigations agents David Moriguchi and Daryl O'Donnell. The FBI agents transported Tomasso to the FBI office. Noting a bruise above Tomasso's eye, the agents asked him if he needed medical attention. He declined the offer but requested aspirin, which he was given. At that point, Tomasso gave a statement to the agents admitting to the robbery. The statement did not include any allegations of police brutality or excessive force.

 In contrast with the defendants' version of events, plaintiff claims that his arrest was marred by the brutality of the arresting officers. Tomasso alleges that Officer Ignoffo, who had baited him en route to the tavern for resisting Lee's efforts to apprehend him at the bank, dragged him from the back seat of the unmarked car, and led him to the squadrol jerking his handcuffed arms up over his head. Ignoffo then, according to plaintiff, entered the squadrol with him and beat him, both by pummelling Tomasso with his fists and by repeatedly smashing his head against the side of the squadrol until he lost consciousness. This beating was witnessed by a uniformed police officer.

 He claims to have awakened to find two officers waiving ammonia capsules under his nose. As he faded in and out of consciousness, he claims the officers dragged him by his handcuffed arms into the police station, where he was placed in a room to await the arrival of the FBI agents. Although he saw the officer who had beaten him and asked a sergeant what the officer's name was, he was simply told to quiet down. Another officer, a plainclothes officer who had been at the scene of the arrest, also refused to identify the officer who had allegedly beaten him. Rather than offer him any assistance, the onlooking officers ridiculed him as the one who had "resisted arrest."

 When the FBI agents arrived, plaintiff claims that he did, in fact, request medical treatment but was told that he should make a signed statement first. Although he did not mention the beating in his statement, Tomasso claims that he was told by the agents that they would look into it. They then transported him to the Metropolitan Correctional Center in Chicago. According to the plaintiff, the officials at the MCC refused to accept him because of his medical condition. He claims he was taken to the hospital by ambulance, where he remained for three days under treatment for head injuries. *fn1"

 Tomasso subsequently plead guilty to the robbery charge. He has been incarcerated since that time in federal prison in Oxford, Wisconsin. Tomasso has not seen any of the individual defendants since the date of his arrest, September 15, 1986. At his deposition, he admitted that he could not identify by name or appearance the names of the officers involved in his arrest. The names were garnered from the arrest report and from accounts given in deposition testimony by the officers.

 Plaintiff has filed a three-count complaint based on his version of what transpired during the course of his arrest. Count I, brought under 42 U.S.C. § 1983, alleges a fourteenth amendment violation. Because § 1983 does not permit an action based upon respondeat superior, see Patton v. Przybylski, 822 F.2d 697, 701 (7th Cir. 1987), plaintiff has voluntarily dismissed the City from Count I. Count II sets forth a common law claim for assault and battery against the individual defendants and, under a theory of derivative liability, against the City. Count III charges the City with condoning a policy of assault and battery against those in the custody of the Chicago Police Department. The individual ...


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