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STEWART v. ROE

November 1, 1991

MICHAEL J. STEWART, Plaintiff,
v.
KARY ROE, in his individual capacity and in his official capacity as a police officer for the City of Aurora; ROBIN TRETTENERO, in her individual capacity and in her official capacity as a police officer for the City of Aurora; DAVID PIERCE, in his individual capacity and in his official capacity as Mayor of the City of Aurora; and THE CITY OF AURORA, a municipal corporation, Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 Plaintiff Michael Stewart has brought suit against Aurora police officers Kary Roe and Robin Trettenero; the Mayor of Aurora, David Pierce; and the City of Aurora claiming that they engaged in or sanctioned conduct that deprived him of his constitutional rights in violation of 42 U.S.C. § 1983.

 Plaintiff's suit is based upon allegations of excessive force used by police officers of the Aurora police department. Specifically, plaintiff alleges that on April 4, 1990, he was arrested and taken to the booking area of the Aurora Police Department. While in a holding cell, defendant Roe supposedly attacked plaintiff, threw him to the floor, and repeatedly kicked plaintiff about the face and body while he was laying on the floor. Plaintiff Stewart also alleges that defendant Trettenero struck him and/or assisted defendant Roe in holding him down as defendant Roe attacked him, or that defendant Trettenero failed to intervene to prevent defendant Roe from administering the beating. Plaintiff alleges that the Mayor of Aurora and the City of Aurora permitted this pattern of police brutality which caused a violation of plaintiff's constitutional rights. As a result of defendants' actions, plaintiff claims that he suffered physical injury, mental anguish and economic loss.

 Defendants Roe and Trettenero have responded with motions to dismiss Counts One, Two, Three, Six, Seven and Eight of plaintiff's complaint. For the reasons stated below, the court denies their motions.

 I. Count One

 Defendant Roe seeks to dismiss Count One for a number of reasons. First, Roe claims that the count has not been pled with enough specificity to put him on notice. The court disagrees. Count One, as pled, states the time, the place, the participants and, briefly, a description of the events which unfolded. The count also sets forth a constitutional basis for the 42 U.S.C. § 1983 claim. Therefore, the court finds that Count One has been sufficiently pled.

 In addition, Roe questions whether plaintiff has alleged a proper constitutional basis to bring an excessive force claim under Section 1983. In analyzing an excessive force claim brought under Section 1983, a court must first identify the specific constitutional right allegedly infringed and then judge the validity of the claim by reference to the constitutional standard which governs that right. Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989). To identify the proper constitutional right and standard, a court looks to when the excessive force was allegedly exerted and what the plaintiff's status was at that time. Edwards v. May, 718 F. Supp. 1379, 1382 (N.D. Ill. 1989).

 Here, plaintiff Stewart had been arrested and taken to the police station. At the time of the alleged contact, he was in a holding cell at the Aurora Police Department. For all appearances, then, he was a pretrial detainee. Determining which standard applies in his case, though, is a bit more difficult.

 Generally, claims that law enforcement officers have used excessive force in the course of an arrest, investigatory stop, or other "seizure" of a free citizen trigger the protections of the Fourth Amendment and must be judged under the reasonableness standard. *fn1" Graham, 109 S. Ct. at 1871 (1989); Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987)(Fourth Amendment standard governs all excessive force in arrest claims); Titran v. Ackman, 893 F.2d 145, 147 (7th Cir. 1990)("Force during arrest must be reasonable within the meaning of the Fourth Amendment.").

 It has not been determined, though, whether the Fourth Amendment continues to protect individuals against the use of excessive force beyond the point at which the arrest ends and pretrial detention begins. Thus far, the Supreme Court has only recognized that "the Due Process Clause clearly protects a pretrial detainee from the use of excessive force that amounts to punishment." Graham, 109 S. Ct. at 1871 n. 10 (citing Bell v. Wolfish, 441 U.S. 520, 535-539, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979)).

 The Seventh Circuit has sent mixed signals on the issue. In Wilkins v. May, 872 F.2d 190 (7th Cir. 1989), cert. denied, 493 U.S. 1026, 107 L. Ed. 2d 752, 110 S. Ct. 733 (1990), the court held that, after police complete an initial seizure, subsequent use of excessive force is not governed by the Fourth Amendment, but is instead a deprivation of liberty governed by the Due Process Clause. Id. at 194-195. As a consequence, plaintiff was required to "show misconduct that a reasonable person would find so beyond the norm of proper police procedure as to shock the conscience, and that is calculated to induce not merely monetary fear or anxiety, but severe mental suffering, in the plaintiff." Id. at 195.

  However, Wilkins was followed by Titran v. Ackman, 893 F.2d 145 (7th Cir. 1990), a case which involved facts very similar to those before the court. In Titran, plaintiff had been brought into the county jail, booked, and was in the process of being put into a cell. The court found that "although [plaintiff] had not been placed in a cell at the time of the events in question, her presence in the jail and the completion of the booking marked the line between 'arrest' and 'detention.'" Id. at 147. Since plaintiff was in pretrial detention, the court emphasized that plaintiff could not be subject to punishment. And, in considering what constitutes punishment, the court stated that "most of the time the propriety of using force on a person in custody pending trial will track the Fourth Amendment: the court must ask whether the officials behaved in a reasonable way in light of the facts and circumstances confronting them." Id.

 In this case, plaintiff was in a holding cell when the alleged use of force occurred. Plaintiff Stewart's position, then, was similar to that of the plaintiff in Titran. This court, therefore, will engage in an analysis similar to that of Titran: did Roe behave in a reasonable manner in light of the circumstances? Because this is a motion to dismiss, the court must accept all well-pleaded allegations as true. As pled, it is conceivable that conduct may have occurred that was not reasonable in light of the circumstances. Indeed, "if the officers intentionally restrained, jolted, and roughed up [Stewart] without physical provocation from [him], their behavior [would be] unreasonable." Titran, ...


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