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RICE v. BURKS

May 28, 1992

RONNIE RICE and CHRISTOPHER SAMSON Plaintiffs, -vs- JAMES BURKS and MARK HARVEY Defendants.


The opinion of the court was delivered by: GEORGE W. LINDBERG

 MEMORANDUM OPINION AND ORDER

 Plaintiffs, Ronnie Rice and Christopher Samson, filed a four-count complaint in the Circuit Court of Cook County, Illinois. Defendants, James Burks and Mark Harvey, filed a timely notice of removal, bringing the case to this court. 28 USC §§ 1441(a), (b); 1446(a), (b). See also 28 USC §§ 1331, 1343; 42 USC § 1983. Defendants have moved for summary judgment on all claims in this case.

 Plaintiff Ronnie Rice contends in Count I that:

 5. On or about December 18, 1986, plaintiffs were walking in the parking lot at or near 7700 South Vincennes Avenue in the City of Chicago, County of Cook and State of Illinois.

 6. At all times relevant hereto, plaintiffs, and each of them, acted in a peaceable, non-threatening and lawful manner.

 7. While plaintiffs were walking in the aforesaid lot, defendants, without just and probable cause, illegally searched and seized plaintiffs, physically assaulted and beat plaintiffs, falsely imprisoned plaintiffs by handcuffing them and placed them under arrest.

 In Count II, plaintiff Rice realleges the paragraphs of Count I, adding:

 9. The actions of the defendants, as stated hereinabove, were committed in an intentional, willful, wanton and malicious manner.

 Plaintiff Christopher Samson's allegations in Count III are identical to plaintiff Rice's in Count I except for paragraph 8, in which plaintiff Samson alleges:

 8. As a direct and proximate result of the assault, battery, illegal seizure, false imprisonment and false arrest as stated hereinabove and committed by defendants in violation of 42 U.S.C. 1983, plaintiff, CHRISTOPHER SAMSON, was subjected to deprivation of his rights, privileges and immunities secured by the Constitution and the laws of the United States, sustained deprivation of his personal liberty and violations of his civil rights, and has suffered and will continue to suffer from physical injury, humiliation, embarrassment and fear, all to his damage.

 In Count IV, plaintiff Samson realleges paragraphs 1 through 8 of Count III, adding:

 9. The actions of the defendants, as stated hereinabove, were committed in an intentional, willful, wanton and malicious manner.

 It appears from these allegations that plaintiffs are alleging only Section 1983 claims, and not any state law claims.

 Defendants, out of an understandable caution, argue in their memorandum in support of their motion for summary judgment that they are entitled to summary judgment on any pendent state claims plaintiffs may have alleged. Plaintiffs in their memorandum in response to the motion for summary judgment address only defendants' arguments with respect to the Section 1983 claims, confirming that the complaint only alleges Section 1983 claims.

 Essentially, each plaintiff makes two claims; that he was arrested and searched without probable cause, and that excessive force was used in arresting him. These claims will be discussed in order.

 With respect to the claim of a lack of probable cause, the following facts are undisputed:

 14. A Marcus Bell told the officers that he observed Rice and Samson under the hood of his automobile and that his battery and graphic equalizer were missing. . . .

 A reading of the depositions from which this fact was taken shows that the officers were told this prior to their arrest and search of plaintiffs. This was certainly sufficient to give the officers probable cause to arrest plaintiffs for theft. Therefore, summary judgment will be granted in favor of defendants on the claims of plaintiffs that they were illegally arrested and searched.

 With respect to the claims of plaintiffs that defendants used excessive force in arresting them, the facts are somewhat different for each plaintiff. Those facts will be set forth before the contentions of defendants are examined.

 The undisputed facts are:

 9. Harvey and Burks announced that Rice and Samson were under arrest. . . .

 10. Rice was handcuffed and "laid lightly" face down on the ground. . . .

 11. While Rice was lying face down, Samson struggled with the officers. Samson was told to put his hands behind his back, but did not. . . .

 12. While all officers were attempting to handcuff Samson, Rice got to his feet and "trotted" away. . . .

 13. Rice claims that he felt something "touch his back" and he fell forward, striking his chin on the ground. . . .

 In addition to these undisputed facts, plaintiffs contend that there is evidence supporting the following facts, which also should be considered in ...


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