of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.
If the party opposing a motion for summary judgment fails to submit a timely 12(n) statement, the uncontroverted statements set forth in the movant's 12(m) statement are deemed admitted. Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 567 (7th Cir. 1992); Appley v. West, 929 F.2d 1176, 1179 (7th Cir. 1991) (per curiam); Skagen v. Sears, Roebuck & Co., 910 F.2d 1498, 1500 (7th Cir 1990), Herman v. Chicago, 870 F.2d 400, 403-04 (7th Cir. 1989). The Seventh Circuit has upheld strict enforcement of Rule 12(n), even in instances where the parties have not engaged in the type of repeated, wilful and recalcitrant conduct which ordinarily warrants a pure default judgment. See Wienco, Inc., 965 F.2d at 567-68; Maksym v. Loesch, 937 F.2d 1237, 1240-41 (7th Cir. 1991). Likewise, the fact that the summary judgment respondent has submitted an affidavit or other documentation that would otherwise create a genuine issue of material fact is irrelevant to the application of Rule 12(n). See Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1102-03 (7th Cir. 1990) (noting that summary judgment respondent's affidavit "standing alone . . . would be sufficient to create genuine issues of material fact"). In the present case, Jones has failed to file a timely 12(n) statement and, hence, the allegations set forth in defendants' 12(m) statement--allegations which are bolstered by references to affidavits and other supporting material--are deemed admitted and will be drawn upon in disposition of the current motion for summary judgment.
According to defendants' 12(m) statement, Bernardo, an officer of the Villa Park Police Department, stopped Jones for a traffic violation on March 27, 1991. At the time of the stop, Officer Bernardo was on his way back to the Villa Park Police Station to replenish his supply of traffic tickets. Bernardo planned on issuing Jones two tickets, one for failing to have a child between the ages of four and six properly restrained and one for failing to wear his seat belt. Because Bernardo did not have any tickets on his person, he ordered Jones to follow him to the police station. Jones, however, did not follow Bernardo to the station, instead driving to his parents' home. Accordingly, Bernardo and Officer McNamara arrested Jones in his parents backyard for escaping from the traffic stop. Jones resisted the arrest in his parents backyard. Once Jones had been transported to the police station, Bernardo issued the two tickets. Jones was not injured during either his arrest or transport to the police station.
Jones was charged in the Circuit Court of DuPage County with four offenses: (1) escape in violation of Ill. Rev. Stat. ch. 38, P 31-6(c); (2) resisting a peace officer in violation of Ill. Rev. Stat. ch. 38, P 31-1; (3) failure to secure a child between four and six years of age in violation of Ill. Rev. Stat. ch. 95 1/2, P 1104a; and (4) failure to wear a seat belt in violation of Ill. Rev. Stat. ch. 95 1/2, P 12-603.1(a). Jones appeared before Judge James W. Jerz on August 19, 1991. Pursuant to a plea bargain, Jones pled guilty to reduced charges in Count 2 and to Count 3 of the criminal complaint. Further, plaintiff stipulated to the facts set forth in Count 2 (as reduced) and Count 3. In exchange, the State agreed to dismiss Counts 1 (escape) and 4 (driver's failure to wear seatbelt) by nolle prosequi.
The instant complaint stems solely from the charge of escaping from a police officer. In his eleven-count complaint, filed on March 24, 1992, Jones sets forth the following claims against Bernardo and the Village of Villa Park which we summarize in the chart below.
Summary of Claims
Count No. Defendant Nature of Claim Applicable Law
1 Bernardo Excessive Force Federal
2 Bernardo Malicious Prosecution Federal
3 Bernardo False Arrest Federal
4 Bernardo Malicious Prosecution Illinois
5 Bernardo False Arrest Illinois
6 Villa Park Excessive Force Illinois
7 Villa Park Malicious Prosecution Federal
8 Villa Park Malicious Prosecution Illinois
9 Villa Park False Arrest Federal
10 Villa Park False Arrest Illinois
11 Bernardo Excessive Force
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 815 F. Supp. 249.
In that the Village of Villa Park cannot be held liable under § 1983 under a theory of respondeat superior, see Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978), we granted Jones' motion to dismiss Counts 7 and 9 of his complaint without prejudice.
A. Malicious Prosecution (Counts 2, 4 and 8)
Unlike a claim of false arrest, malicious prosecution does not always give rise to a constitutional tort. Mahoney v. Kesery, 976 F.2d 1054, 1059-62 (7th Cir. 1992); Albright v. Oliver, 975 F.2d 343, 345-46 (7th Cir.), petition for cert. filed (Nov. 12, 1992). In such cases, the essential link to an action grounded in the United States Constitution is the establishment of a protected liberty interest Albright, 975 F.2d at 346-47. Although not a trifling infringement of the right to be free from oppression by public officials, malicious prosecution in itself is insufficient to establish the requisite liberty interest. Id. at 347. Rather, to be actionable as a constitutional wrong, malicious prosecution must be coupled with "incarceration or other palpable consequences." Id.; see also Mahoney, 976 F.2d at 1060. Whether this court should entertain Jones' claim for relief under § 1983 (Count 2) as an additive to the state-law remedy for malicious prosecution, however, is not an issue in the present case. Indeed, that Jones cannot establish a prima facie case of malicious prosecution under Illinois common law mandates summary judgment on defendants' behalf regarding Counts 2, 4 and 8.
In order to maintain a cause of action under Illinois law for malicious prosecution, Jones must establish: "(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff." Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 473, 564 N.E.2d 1222, 1231, 151 Ill. Dec. 560 (1990) (citing Joiner v. Benton Community Bank, 82 Ill. 2d 40, 411 N.E.2d 229, 44 Ill. Dec. 260 (1980); Ritchey v. Maksin, 71 Ill. 2d 470, 376 N.E.2d 991, 17 Ill. Dec. 662 (1978)); see also Magnuson v. Cassarella, 812 F. Supp. 824, 1992 U.S. Dist. LEXIS 9767, slip op. at 11 (N.D. Ill. 1992) (interpreting Illinois law). As Jones concedes, in that the escape charge was dismissed as a result of a plea agreement, we cannot conclude that the prior criminal proceeding terminated in a manner indicative of Jones' innocence. See Joiner v. Benton Community Bank, 82 Ill. 2d 40, 45, 411 N.E.2d 229, 232, 44 Ill. Dec. 260 (1980). Accordingly, we grant defendants' motion for summary judgment on Counts 2, 4 and 8 of Jones' complaint.
B. False Arrest (Counts 3, 5, 9, and 10)
Whether maintained under § 1983 or pursuant to Illinois common law, a claim for false arrest must entail a restraint of an individual's liberty without probable cause. See Albright, 975 F.2d at 344-45; Williams v. Kobel, 789 F.2d 463, 468 (7th Cir. 1986); Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 475, 564 N.E.2d 1222, 1231, 151 Ill. Dec. 560 (1990). Conversely, a police officer who arrests an individual with probable cause is not liable for false arrest under either § 1983 or Illinois state law, regardless of whether the innocence of the suspect is later proved. See Mosley v. LaMastus, 741 F. Supp. 724, 726 (N.D. Ill. 1990). The existence of probable cause is a question of law. Beck v. Ohio, 379 U.S. 89, 96, 85 S. Ct. 223, 228, 13 L. Ed. 2d 142 (1964) ("It is the function of a court to determine whether the facts available to the officers at the moment of arrest would 'warrant a man of reasonable caution in the belief" that an offense has been committed.") (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543 (1925)). Whether a police office possessed probable cause to arrest is ascertained by looking to the facts known to the officer at the time of the arrest and determining whether a reasonably prudent police officer could have believed that the suspect had committed or was committing an arrestable offense. Id. at 91, 85 S. Ct. at 225-26.
In the instant case, the uncontradicted facts set forth in defendants' 12(m) statement establish that Officer Bernardo had probable cause to arrest Jones. Officer Bernardo stopped Jones in order to assess two tickets for moving violations. Because he was temporarily out of tickets, Bernardo ordered Jones to follow him to the police station. Jones disobeyed this order, instead driving to his parents' house. Ill. Rev. Stat. ch. 38, P 31-6(c) (Supp. 1992) provides in relevant part: "[A] person in the lawful custody of a peace officer for the alleged commission of a misdemeanor offense and who intentionally escapes from custody commits a Class A misdemeanor." Under the circumstance as they existed at the time of the arrest, a reasonably prudent officer could believe that Jones violated Ill. Rev. Stat. ch. 38, P 31-6(c). Additionally, and equally dispositive, Jones is "estopped" from denying the existence of probable cause for his arrest for escape by virtue of the dismissal of that charge pursuant to plea agreement. See Joiner, 82 Ill. 2d at 46, 411 N.E.2d at 232. Consequently, we grant defendants' motion for summary judgment on Counts 3, 5, 9 and 10 of Jones' complaint.
C. Excessive Force (Counts 1, 6 and 11)
At the threshold, we note that Jones' claim under § 1983 (Count 1) is governed by the "reasonableness" standard of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989) (Fourth Amendment applies to excessive force claims arising out of an arrest or investigatory stop); see also Tom v. Voida, 963 F.2d 952, 958 (7th Cir. 1992); Kinney v. Indiana Youth Center, 950 F.2d 462, 465 (7th Cir. 1991), cert. denied, 112 S. Ct. 2313, 119 L. Ed. 2d 232 (1992). The Fourth Amendment protects against any use of force during the course of an arrest which is not "objectively reasonable" in light of the totality of the circumstances. Graham, 490 U.S. at 397, 109 S. Ct. at 1872; Kinney, 950 F.2d at 465. These circumstances include factors such as "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S. Ct. at 1871-72; Tom, 963 F.2d at 958.
In the instant case, Jones' sole complaint regarding the use of force is that Bernardo handcuffed him during the arrest, keeping the handcuffs tightly fastened. This use of force, however, was clearly warranted and reasonable under the circumstances confronting Bernardo at the time of the arrest. According to the undisputed facts set forth in defendants 12(m) statement, Bernardo confronted Jones in his parents' backyard after he had fled from Bernardo's lawful custody. Rather than peacefully surrendering, Jones resisted arrest. As admitted in the course of pleading guilty to the reduced charges in Count 2 of the criminal complaint file in DuPage County, Jones disobeyed Bernardo's order to place his hands on the rear of his car during the arrest. This defiance coupled with Jones' initial flight from lawful custody makes Bernardo's use of handcuffs objectively reasonable. Accordingly, we grant Bernardo summary judgment on Count 1 of Jones' complaint.
Counts 6 and 11 of Jones' complaint represent claims of assault and battery under Illinois law against both Bernardo and Villa Park, and are based on the same application of force as described above. Assuming that such force in fact constitutes assault and battery under Illinois law, Jones nonetheless cannot prevail on either Counts 6 or 11. Under Illinois common law, the doctrine of public official immunity has developed out of the notion that "public officials should not be impeded from acting in ways that are in the public's best interest because of fears of personal liability." Oppe v. State of Missouri, 171 Ill. App. 3d 491, 495, 525 N.E.2d 1189, 1192, 121 Ill. Dec. 882 (4th Dist.), appeal denied, 122 Ill. 2d 579, 530 N.E.2d 250 (1988). The doctrine as originally espoused provided that public officials are immune from liability where their conduct is a good faith exercise of discretionary, rather than ministerial, duties. Mora v. State of Illinois, 68 Ill. 2d 223, 233-34, 369 N.E.2d 868, 873, 12 Ill. Dec. 161 (1977); People ex rel. Scott v. Briceland, 65 Ill. 2d 485, 502, 359 N.E.2d 149, 158, 3 Ill. Dec. 739 (1976). However, as noted in Oppe, "this standard has been stretched and pulled to fit individual cases to the point that the immunity applies to the exercise of any governmental function, rather than a discretionary, nongovernmental function such as a maintenance person deciding where to drive a nail." Oppe, 171 Ill. App. 3d at 495, 525 N.E.2d at 1192 (citing Madden v. Kuehn, 56 Ill. App. 3d 997, 372 N.E.2d 1131, 14 Ill. Dec. 852 (2d Dist. 1978)). Respecting Officer Bernardo's action, there is no question that the use of handcuffs during his arrest of Jones was both a uniquely governmental function and discretionary. In the absence of any bad faith on the part of Officer Bernardo, the doctrine of public official immunity applies and Bernardo cannot be held personally liable to Jones. See Magnuson v. Cassarella, 813 F. Supp. 1321, 1992 U.S. Dist. LEXIS 17863, slip op. at 7 (N.D. Ill. 1992) (applying doctrine to nearly identical circumstance). Accordingly, we grant defendants' motion for summary judgment on Counts 6 and 11 of Jones' complaint.
For the reasons set forth above, defendants' motion for summary judgment is granted. It is so ordered.
MARVIN E. ASPEN
United States District Judge
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED that Jones cannot establish a prima facie case of malicious prosecution under Illinois common law mandates summary judgment on defendants' behalf regarding Counts 2, 4 and 8. Accordingly, we grant defendants' motion for summary judgment on Counts 2, 4 and 8 of Jones' complaint. Additionally, and equally dispositive, Jones is "estopped" from denying the existence of probable cause for his arrest for escape by virtue of the dismissal of that charge pursuant to plea agreement. See Joiner, 82 Ill.2d at 46, 411 N.E.2d at 232. Consequently, we grant defendants' motion for summary judgment on Counts 3, 5, 9 and 10 of Jones' complaint. In the instant case, Jones' sole complaint regarding the use of force is that Bernardo handcuffed him during the arrest, keeping the handcuffs tightly fastended. As admitted in the course of pleading guilty to the reduced charges in Count 2 of the criminal complaint file in DuPage County, Jones disobeyed Bernardo's order to place his hands on the rear of his car during the arrest. This defense coupled with Jones' initial flight from lawful custody makes Bernardo's use of handcuffs objectively reasonable. Accordingly, we grant Bernardo summary judgment on Count 1 of Jones' complaint. Counts 6 and 11 of Jones complaint represent claims of assault and battery under Illinois law against both Bernardo and Villa Park, and are based on the same application of force. In the absence of any bad faith on the part of Officer Bernardo, the doctrine of public official immunity applies and Bernardo cannot be held personally liable to Jones. Accordingly, we grant defendants' motion for summary judgment on Counts 6 and 11.