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November 10, 1994

JAMES A. TURNER, et al., Defendants.


The opinion of the court was delivered by: RUBEN CASTILLO

This civil rights action is brought pursuant to 42 U.S.C. § 1983 and state common law theories of negligence and assault and battery. Plaintiff, Cynthia Medley ("Medley" or "plaintiff") has named as defendants two Illinois State Troopers, James A. Turner ("Turner") and Craig Thompson ("Thompson"), individually and as police officers of the State of Illinois, and three members of the 16th District Chicago Police Department ("16th or CPD"), John Culloton ("Culloton"), Dermitt Kavanagh ("Kavanagh"), and Richard Larson ("Larson"), individually and as police officers of the City of Chicago, a municipal corporation.

 In Count I, Medley claims that while she was in the custody of Turner and Thompson, Turner assaulted her and Thompson failed to intervene, denying her right to due process by use of excessive force in violation of 42 U.S.C. § 1983. In Count II, Medley claims that Turner and Thompson have conspired to "cover-up the use of excessive force upon [her]," in violation of 42 U.S.C. § 1985. In Count III, Medley alleges that Turner committed an assault and battery upon her while she was handcuffed to a metal bar for purposes of "interrogation." In Count IV, Medley seeks relief for intentional infliction of emotional distress, alleging that Turner assaulted her, and Thompson, who saw Turner begin to assault her, "did nothing to prevent" him from acting. In Count V, Medley contends that Culloton, Kavanagh and Larson ("CPD defendants"), violated § 1983 when they failed to protect her from the alleged assault and battery by Turner. In Count VI, Medley claims that the CPD defendants were negligent when they failed to protect Medley from assault.

 Currently pending before the court are motions for summary judgment filed by defendant Thompson (# 108) and the CPD (# 115). Medley has not filed cross-motions. Also before the court is CPD's Motion to Substitute (# 132-1) and Strike (# 132-2) portions of Medley's Rule 12(n) statement of facts. After careful review, the court finds that the CPD defendants are entitled to summary judgment. *fn1" Thompson's Motion for Summary Judgment is denied. CPD's Motion to Substitute and Strike is moot.


 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1985). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact." Id. at 248.

 "The substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. Factual disputes that are irrelevant or unnecessary are not material. Id.

 "Summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). As stated in Anderson, "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 477 U.S. at 249. "When a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial." Id. at 250. "There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id. at 249. If the evidence is merely colorable, or is not significantly probative, or is no more than a scintilla, summary judgment may be granted. Id. at 249-250.


 The following facts are relevant and undisputed. Sometime after 1:30 a.m., on the morning of October 8, 1992, Medley was transported by Trooper Turner to the 16th to process her DUI arrest. 12(m) P 9. Turner escorted Medley through the CPD's front door, walked past the CPD's front desk (where the CPD defendants were on duty), without saying anything more than "hello" or "good morning," and walked down a CPD corridor into a CPD interrogation room with a CPD bench, a CPD metal bar and two CPD desks. 12(m) P 10; Exhibit O. At approximately 1:55 a.m., Trooper Turner uncuffed Medley's right hand, cuffed her left wrist to the metal bar, directed Medley to sit on the bench, and then read the "Warning to Motorist" ("Warning") to her. CPD 12(m), P 13; Exhibit 2, P 78; Turner Dep. at 314, P 11-21; Turner Dep. at 324, P 15-16.

 Officer Kavanagh testified that Medley was crying and yelling profanities at Turner after they walked past the swing doors leading to the interrogation rooms and when Turner cuffed her to the metal bar. CPD 12(n) P 32. This initial noise was apparently loud enough that Officer Culloton and two or three CPD officers stopped, looked into the open interrogation room, and inquired whether Turner needed assistance. CPD 12(n) P 34-41. Turner rejected their offers. Turner Dep. at 336. After investigating, Culloton reported to the other CPD defendants that Medley was "physically fine." Kavanagh Dep. at 111-115. Turner testified that he closed the CPD door, CPD 12(n) P 42, "to keep the noise volume down," Turner Dep. at 317 P 20-21, but recalls only that he shut the door after the Warning was given and the CPD officers offered assistance. Turner Dep. at 333 P 19-20.

 At 1:57 a.m., Trooper Thompson arrived at the 16th. Thompson 12(n) P 27. Although he was not present when Turner read the "Warning," Thompson subsequently entered the closed interrogation room with Turner to inquire if Medley was willing to take a breath test. Thompson 12(m) P 21; CPD 12(n) P 44. Plaintiff refused. Thompson 12(m) P 22.

 At this point, the material facts become disputed. Thompson claims that he left the room immediately after Medley's refusal. Thompson 12(m) P 22. Medley claims that when Turner and Thompson entered the interrogation room, Thompson sat behind a desk and Turner began to assault her. Thompson 12(n) P 28. Medley also alleges that Thompson did not leave the room until after Turner pulled her leg out from underneath her, bent her handcuffed wrist backwards and forced her to lay prone so that her head and elbow hit the bench. Thompson 12(n) P 28. Medley concedes, however, that she did not scream, yell or request Thompson to stay in the room or to help her. Medley Dep. at 169. According to Medley, after Thompson left, Turner began to assault her by pressing her "against the wall," "climbing on top of her," "pawing every part of her body" and stating: "see what can happen to you? This can happen to you" as some kind of weapon was being shoved into her groin area. Thompson 12(n) P 29, 33. After the alleged assault, Medley was left in the room alone. Thompson 12(n) P 33; CPD 12(n) P 44.

  All parties concede that, at approximately 2:20 a.m. on the morning of plaintiff's arrest, a female Illinois State Trooper named Tamara Schenkel arrived at the 16th. Thompson 12(n) P 30. As Trooper Schenkel walked past the front desk area of the 16th, Schenkel perceived that CPD personnel gave her "funny looks." Thompson 12(n) P 31; Schenkel Dep. at 43-44. Trooper Schenkel then proceeded to the back of the station, saw defendants Turner and Thompson, Thompson 12(n) P 32, and asked Trooper Turner where his female arrestee was located. Thompson 12(n) P 33. Turner told Schenkel that Medley was handcuffed to a detention bar in the interrogation room across the hall. Id. After a short discussion, Turner agreed to have Schenkel talk to Medley. Id. Schenkel then went into the interrogation room and saw Medley lying on her back on the bench with her wrist twisted in the handcuffs. Id. Medley was crying uncontrollably. Id. When questioned by Schenkel, Medley stated that she had been abused by the trooper who arrested her and that the trooper had slammed her down on the bench and gotten on top of her. Id. Trooper Schenkel left the interrogation room where plaintiff was being held and went across the hall to speak with Turner. Thompson 12(n) P 34. Turner agreed to release plaintiff on an individual recognizance bond, and the two officers agreed that Schenkel would drive Medley to her home. Id. Turner also agreed with Trooper Schenkel to deviate from the normal practice of Illinois State Police Officers by not personally concluding Medley's bonding process, Thompson 12(n) P 35, and leaving the 16th through the back door prior to the plaintiff being let to bond. Id. Trooper Schenkel uncuffed the plaintiff and took her through the bonding process. Id. Plaintiff Medley told the CPD defendants at the front desk what allegedly had happened to her and showed them some of her injuries. Thompson 12(n) P 37. Trooper Schenkel then drove Medley home. Thompson 12(n) P 36.


 The issues in this case involve several federal and state law questions. The federal claims will be discussed first, since resolution of these issues establishes the framework for deciding Medley's pendant common law claims.

 A. Federal Claims

 In her federal claims against Thompson (Count I) and the CPD (Count V), Medley alleges that Thompson and the CPD failed to protect her from Turner's use of excessive force (e.g., assault) while she was in their custody. Medley claims that the defendants' failure to act was motivated by "deliberate indifference" and constitutes a breach of the defendants' constitutional duty to protect detainees from harm which might or actually does result from custody in violation of § 1983.

 1. Section 1983

 Liability under § 1983 requires proof of two essential elements: that the conduct complained of (1) "was committed by a person acting under color of state law" and (2) "deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part on other grounds by, Daniels v. Williams, 474 U.S. 327, 331-32, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). In the present case, there is no dispute that Medley has proved the first element: all defendants were on duty wearing state or city police uniforms and working out of the 16th District Chicago Police Department. The dispute in this case is whether the failure to intervene by Thompson and the CPD defendants deprived Medley of her liberty rights under the Due Process Clause of the Fourteenth Amendment.

 The seminal case in this circuit on the duty of an officer to intervene to prevent summary punishment is Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1994). In Byrd, the court of appeals held:

One who is given a badge of authority . . . 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.

 In Yang v. Hardin, 37 F.3d 282, 1994 WL 528452, * 2 (7th Cir. 1994), the Seventh Circuit recently summarized the scope of this responsibility:

An officer who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens is liable under § 1983 if that officer had reason to know that: (1) excessive force was being used; (2) a citizen has been unjustifiably arrested, or (3) any constitutional violation has been committed by a law enforcement ...

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