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November 22, 1995


The opinion of the court was delivered by: REINHARD



 Plaintiff, Nicholas J. Apostal, filed a two-count complaint against defendants pursuant to 42 U.S.C. § 1983. Count I against officers Pourchot, Lunsmann, Rhode, Williams, Kearns, and Fetzer, both individually and in their official capacities, alleges the use of excessive force in violation of the Fifth and Fourteenth amendments. *fn1" Count II against the City of Crystal Lake and the Illinois State Police alleges the use of excessive force and a conspiracy to deny plaintiff's constitutional rights, pursuant to custom and policy, in violation of the Fifth and Fourteenth amendments. *fn2" This court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and venue is proper in that all the alleged events occurred in the Northern District of Illinois, Western Division. The above-named officers move for summary judgment.


 The following facts are taken from the statements submitted by the parties pursuant to Local Rules 12 M and 12 N of the Northern District of Illinois. All factual averments that are properly referenced and supported by the record are accepted as true. Where plaintiff has failed to support his disagreements with defendants' 12 M statement with specific references to the record, those facts in defendants' 12 M statement are deemed admitted. Flaherty v. Gas Research Inst., 31 F.3d 451, 453 (7th Cir. 1994).

 Each of the named defendants in this case were members of various local law enforcement departments and were assigned to the North Central Narcotics Task Force ("Task Force") of the Illinois State Police at the time of plaintiff's arrest. *fn3" In December of 1991, members of the Task Force learned that plaintiff was selling cannabis from his family's home in Crystal Lake, Illinois, based on information provided by a confidential informant. On December 3, 1991, in the presence of Kearns and Pourchot, the informant made a telephone call to plaintiff and arranged to Purchase cannabis. Kearns drove the informant to plaintiff's residence to make the purchase, and Fetzer, Pourchot, and Lunsmann maintained surveillance of plaintiff's residence. The informant emerged from plaintiff's residence within a couple of minutes with the purchased cannabis. On December 6, 1991, members of the Task Force had the informant arrange for another drug purchase. During the second purchase, Pourchot, Rhode, Williams, and Lunsmann maintained surveillance of plaintiff's residence. Upon returning with the purchased cannabis, the informant advised defendants that plaintiff had a large amount of cannabis in the house and that plaintiff said he would have a pound of cannabis if the informant came back later. The informant also advised defendants that plaintiff had weapons in the house.

 After the second drug purchase, Pourchot left for the McHenry County State's Attorney's office in order to procure a search warrant for plaintiff's residence. A warrant was obtained and signed at approximately 3:30 p.m. that day. During this period after the second purchase, Rhode, Kearns and Lunsmann maintained surveillance of plaintiff. At approximately 3:30 p.m., plaintiff was driving his car from a nearby restaurant heading back towards his residence. Upon being advised that a warrant had been obtained, Kearns and Lunsmann made the decision to arrest plaintiff before he could return to his residence. Kearns and Lunsmann were in an unmarked police car directly behind plaintiff's, and Rhode was in another unmarked car behind Kearns and Lunsmann. When plaintiff stopped at an intersection, Kearns and Lunsmann exited their vehicle and approached plaintiff's car. Kearns identified himself as "State Police" and ordered plaintiff out of the car.

 At this juncture there is some disagreement as to how plaintiff was taken into custody. *fn4" Plaintiff claims he was pulled from his vehicle and pushed down on the driver's side of the trunk of his car by Kearns and Lunsmann, and that "other plainclothesed officers joined in." *fn5" Plaintiff was searched for weapons and then handcuffed. According to plaintiff, prior to being handcuffed, his arms were extended in front him. Plaintiff put his right arm back so that he could be handcuffed. Plaintiff then tried to put his left arm behind his back but Kearns and Lunsmann would not allow him. Twice they told him to relax his arm. While Kearns and Lunsmann were adjusting his left arm, they bent it at his elbow, tilted his wrist, and brought his arm behind his head and it rubbed off his shoulder. When Kearns and Lunsmann brought his arm behind his head and proceeded to push down, "something popped and [plaintiff] cried out in pain." Plaintiff also claims the handcuffs were put on too tightly and "hurt" his right wrist. After plaintiff was handcuffed by Lunsmann, plaintiff complained about his shoulder and the handcuffs to Kearns and Lunsmann. Only a minute elapsed from the time he was removed from his vehicle to the time he was handcuffed, and plaintiff admits that the handcuffing only took a few seconds. Rhode remained in his car as backup. At this time, uniformed Crystal Lake police officers also arrived at the scene.

 After he was handcuffed, Kearns and Lunsmann placed plaintiff in the back of their car and drove around to the rear of a nearby restaurant, where they transferred him into a marked Crystal Lake squad car. Plaintiff claims that he continued to complain about his shoulder and that he was "taunted," "made sport of," and told to "shut up" by the officers. Plaintiff remained in the squad car for approximately thirty to forty-five minutes and was guarded by uniformed Crystal Lake police officers. When Lunsmann returned, Lunsmann removed the handcuffs and rubbed plaintiff's shoulder. Plaintiff admits that the rubbing helped him feel better.

 At approximately 4:00 p.m., plaintiff was brought to his house, where Pourchot had arrived with the search warrant. Plaintiff gave Kearns his keys, and the officers began searching his residence. During the search, plaintiff was allowed to have his hands cuffed in front of him. Plaintiff remained seated and was allowed to smoke. At some point during the search, plaintiff's handcuffs were tightened, but plaintiff does not know which officer did it. During the search, plaintiff requested that the officers call John Raadsen, plaintiff's brother-in-law, so that he could witness what was happening. Raadsen, who at the time was a Crystal Lake police officer, was called by the police officers. Raadsen arrived during the search, and Plaintiff was permitted to talk privately with him. Plaintiff admits that he never told Raadsen that he was hurt or needed medical attention, or that he had any kind of physical injury. Plaintiff further admits that he never told Raadsen that officers pushed him around, called him names or taunted him. Raadsen did not observe any signs of mistreatment. Raadsen did observe "indentations" on plaintiff's wrists and described them as "not uncommon."

 The search of plaintiff's residence yielded over $ 60,000 in cash, various weapons, and approximately two pounds of cannabis. After the search, plaintiff was taken from his residence at approximately 8:00 p.m. to be processed at the county jail, and the handcuffs were removed at approximately 10:00-10:30 p.m. Plaintiff admits that he never requested medical attention while in jail or upon his release the following morning. Once the handcuffs were removed, plaintiff noticed that his wrist had been "punctured" by the handcuffs. Plaintiff, however, admits that he never told anyone about the alleged injuries to his wrist. Plaintiff pled guilty to possession of marijuana with intent to distribute, and he received a $ 5,000 fine, court costs, two years' probation, 50 hours of public service, and intensive drug evaluation.

 Some four months later after his arrest and release, plaintiff saw a physician for injuries he received in a car accident in April of 1992. Those injuries were to plaintiff's neck, upper middle back, and jaw. Plaintiff also complained about his shoulder injury at this time. Plaintiff admits, however, that he did not tell his physician that his shoulder injury was caused by the arrest. Plaintiff was later diagnosed with tendonitis in the rotator cuff of his left shoulder.

 Plaintiff admits that neither Fetzer, Williams, Pourchot, or Rhode ever used physical force against him. Neither Williams, Pourchot, or Fetzer were present at the scene of the arrest. Fetzer was not even on duty on December 6, 1991. Plaintiff further admits that he sued Williams because his name was on a police report, and that he does not know what Williams looks like or if he was present at the scene of the arrest. Apart from the injury to the shoulder, plaintiff admits that the degree of force used to place him under arrest was extremely minimal to none.


 Defendants first contend that they are entitled to judgment as a matter of law on the grounds of qualified immunity. Defendants contend that bringing plaintiff's hands behind his back in order to handcuff him and putting the handcuffs on tightly does not constitute excessive force. Defendants further contend that the right to be free from such use of force was not "clearly established" at the time of plaintiff's arrest. Defendants Fetzer, Pourchot, Williams, and Rhode contend that they each lack the requisite personal involvement to be liable under 42 U.S.C. § 1983 because they were not responsible for handcuffing plaintiff. Lastly, defendants contend that they are entitled to judgment as a matter of law as to the conspiracy claim in Count II on the grounds that the allegations are vague, conclusory, and unsupported by any evidence.

 Plaintiff contends that defendants are not entitled to summary judgment on grounds of qualified immunity because the force used on plaintiff's arm and shoulder was excessive and unreasonable under the circumstances. Plaintiff also contends that Fetzer, Pourchot, Williams, and Rhode each possessed requisite personal involvement on the grounds that they failed to assist plaintiff when he complained about his injuries and the tightness of his handcuffs. Plaintiff further contends that defendants have been obstructing him from investigating his claims in the discovery conducted in this case. Lastly, plaintiff contends that a conspiracy exists between Kearns and Lunsmann to use excessive force during plaintiff's arrest.


 Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); UAW v. Randall Div. of Textron, Inc., 5 F.3d 224, 228 (7th Cir. 1993). In weighing a motion for summary judgment, the court must take the facts in the light most favorable to the party opposing the motion and draw all reasonable inferences in that party's favor. Condo v. Sysco Corp., 1 F.3d 599, 601 (7th Cir. 1993), cert. denied, 510 U.S. 1110, 127 L. Ed. 2d 373, 114 S. Ct. 1051 (1994). The party opposing a properly supported motion for summary judgment, however, may not defeat it simply by resting upon the allegations and denials of his pleadings, but must present affirmative evidence raising a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Where a party fails to present evidence on an element essential to its case and on which it would bear the burden of proof at trial, summary judgment is appropriate, as all other facts are rendered immaterial by the failure of proof. See Celotex, 477 U.S. at 322-23.

 A. Qualified Immunity

 The doctrine of qualified immunity shields public officials performing discretionary functions from damages actions unless their conduct was unreasonable in light of "clearly established law." Elder v. Holloway, 510 U.S. 510, 127 L. Ed. 2d 344, 114 S. Ct. 1019, 1021 (1994). The central purpose of affording public officials qualified immunity is to protect them from "undue interference with their duties and from potentially disabling threats of liability." 114 S. Ct. at 1022 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S. Ct. 2727, 2732, 73 L. Ed. 2d 396 (1982)). A law enforcement officer's entitlement to qualified immunity is a question of law. Jones v. Webb, 45 F.3d 178, 183 (7th Cir. 1995). In determining whether a public official is entitled to qualified immunity, courts approach the issue using a two-step analysis: (1) whether the alleged conduct sets out a constitutional violation, and (2) whether the constitutional standards were clearly established at the time in question. Kernats v. O'Sullivan, 35 F.3d 1171, 1176 (7th Cir. 1994). The plaintiff bears the burden of establishing the existence of a clearly established constitutional right. Id. The right allegedly violated must have been "clearly established" in a "particularized" sense and "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right" at the time of the incident. Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S. Ct. 3034, 3038-39, 97 L. Ed. 2d 523 (1987)).

 The first issue for this court to determine, therefore, is whether the alleged conduct by defendants constitutes a constitutional violation. At the time of plaintiff's arrest in December of 1991, a section 1983 claim based on the excessive use force was governed by the Fourth Amendment's "reasonableness" standard. Graham v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865, 1867, 104 L. Ed. 2d 443 (1989). *fn6" Under the Fourth Amendment, a police officer's use of force in arresting a suspect violates the Constitution, if, judging from the totality of circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to make the arrest. Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987). Factors for a court to consider are 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 1872. Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. Id. The inquiry in an excessive use of force case, however, is an objective one, without regard to the officer's underlying intent or motivation. Id. at 397, 109 S. Ct. at 1872.

 On this motion for summary judgment, the court must accept plaintiff's version of the facts and view them in a light most favorable to the plaintiff as the non-moving party. Plaintiff's misconduct, possession and distribution of cannabis, is a fairly serious offense, especially in light of the fact that he had several weapons at his residence where he sold the drugs. Plaintiff admits that the arresting officers, Kearns and Lunsmann, had probable cause to arrest him for the two marijuana sales made from his house. Plaintiff further admits that they were aware of his possession of weapons in his house. Assuming that either Kearns or Lunsmann did pull plaintiff from his vehicle, such conduct was reasonable. Similarly, pushing him to the rear side of the vehicle while he was searched and handcuffed was also reasonable under the circumstances.

 Once plaintiff was searched for weapons, the officers were justified in placing handcuffs on him. Their use of force-- bringing his arms behind his back to place handcuffs on-- appears to be nothing out of the ordinary in a typical arrest, but for the fact that plaintiff claims he cried out in pain and received a shoulder injury. These alleged complaints of pain, however, are tempered by his admitted conduct after the arrest. Significantly, while plaintiff claims he initially complained about his shoulder, he admits that throughout the rest of the day and evening, he never requested or asked for medical attention. Plaintiff further admits that he never once complained to Raadsen, his brother-in-law, whom he had called to his residence to witness what was happening. Likewise, he never sought or requested medical attention while in custody at the county jail, or upon his release. Not until four months later, when plaintiff sought medical attention for injuries sustained in an auto accident, did plaintiff seek medical attention for his shoulder, which was eventually diagnosed as tendonitis of the rotator cuff. While in hindsight Kearns and Lunsmann may have moved plaintiff's arm harder than was strictly necessary in order to handcuff him, a court's hindsight judgment does not determine the scope of qualified immunity. Rather, as stated earlier, the test is whether the use of force was objectively reasonable under the totality of the circumstances.

 Obviously, police officers must use some physical force in handcuffing an arrestee. Likewise, in order to be effective, the handcuffs must be tight enough to prevent the arrestee's hands from slipping out. Lunsmann admits that at some point plaintiff did complain about the tightness of the handcuffs, after which he transferred the handcuffs to the front. While not everyone who is arrested develops tendonitis in his shoulder and a "punctured" wrist, these injuries here are attributable to the fact that Kearns and Lunsmann did not apply the absolute least amount of necessary force, not to the fact that the officers applied an unreasonable amount of force. See Platek v. Village of Lisle, 1994 U.S. Dist. LEXIS 11436, No. 92- C-7479, 1994 WL 444787, at *12 (N.D. Ill. Aug. 15, 1994) (holding that grabbing wrist, twisting arm, pushing it behind arrestee's back, and handcuffing so as to cause bruises on wrists was not "excessive"); Nelson v. City of Elmhurst, 691 F. Supp. 122, 125 (N.D. Ill. 1988) (holding that degree of force "reasonably necessary" does not mean degree of force "strictly necessary"); cf. Alm v. Moreth, 694 F. Supp. 1322, 1324 (N.D. Ill. 1988) (holding that placement of handcuffs on arrestee who had recently undergone wrist surgery was not "grossly disproportionate"). Accordingly, even accepting plaintiff's version of the events, the court finds that as a matter of law, no constitutional violation occurred from the amount of force used by Kearns and Lunsmann.

 Even if this court were to find a constitutional violation, the court would be unable to conclude that such right had been clearly established so that reasonable officers in defendants' positions would have understood that this conduct violated the Fourth Amendment. It was, of course, clearly established in December of 1991 that a police officer's use of excessive force during an arrest would violate the Fourth Amendment, but such general proposition is insufficient to lift the immunity barrier. Jones v. Webb, 45 F.3d 178, 184 (7th Cir. 1995). Rather, this court must make a more specific inquiry. This court must determine whether a reasonable officer would have believed that pulling plaintiff's arm behind his back and up to his shoulder, and tightly handcuffing plaintiff within seconds was excessive in light of the fact that plaintiff was being arrested for a drug offense and offered little or no resistance.

 Plaintiff relies primarily on three different cases in an attempt to carry his burden of proving that the right to be free from such force was clearly established. While it is not necessary for such case law to be directly on point, it must be at least "closely analogous" to the present case. Kernats, 35 F.3d at 1176. In East v. City of Chicago, 719 F. Supp. 683 (N.D. Ill. 1989), officers kicked an arrestee in the head and between the legs and hit him with a night stick while he was in a police station interrogation room ducked under a desk. Such conduct is not sufficiently analogous to the case before this court. Furthermore, plaintiff's two other cases, Winder v. Leak, 790 F. Supp. 1403 (N.D. Ill. 1992) and Rubeck v. Sheriff of Wabash County, 824 F. Supp. 1291 (N.D. Ind. 1993), were not decided at the time of plaintiff's arrest in December of 1991. In short, plaintiff has not demonstrated that Kearns' and Lunsmann's use of force was excessive and "clearly established" at the time of his arrest. *fn7" Accordingly, Kearns and Lunsmann are entitled to summary judgment on the grounds of qualified immunity.

 B. Lack of Personal Involvement

 Fetzer, Pourchot, Williams, and Rhode contend that they lack requisite personal involvement under section 1983. In order to be liable under section 1983, a plaintiff must establish defendant's personal responsibility for the claimed deprivation of the constitutional right. Maltby v. Winston, 36 F.3d 548, 559 (7th Cir. 1994), cert. denied, 132 L. Ed. 2d 827, 115 S. Ct. 2576 (1995). Direct participation, however, is not required. Rather, an official satisfies the personal responsibility requirement if he "acts or fails to act with a deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at [his] direction or with [his] knowledge and consent." Id.

 Plaintiff contends that the failure of these officers to do anything for plaintiff when he complained about his injuries and the tightness of his handcuffs constitutes sufficient personal involvement. This contention fails for several reasons. First, as this court has already noted, plaintiff has not established a constitutional violation as to the tightness of his handcuffs or as to the shoulder injury. On this basis alone, Fetzer, Pourchot, Williams, and Rhode are entitled to summary judgment. Second, no evidence exists that plaintiff made any complaints to any of these officers. Plaintiff's complaints were made to two uniformed Crystal Lake police officers, Kearns, and Lunsmann while at the scene of his arrest. Plaintiff admits that Fetzer, Pourchot, and Williams were not present at the scene of the arrest. *fn8" Likewise, while Rhode was at the scene of the arrest, he remained in his vehicle throughout the arrest and did not see plaintiff grimace in pain nor hear him complain of any injuries. Accordingly, Fetzer, Pourchot, Williams, and Rhode are entitled to summary judgment on the grounds that they lacked sufficient personal involvement.

 C. The Conspiracy

 Defendants seek dismissal of plaintiff's allegations of a conspiracy contained in the complaint. The conspiracy claim is contained in Count II and is against the Illinois State Police and the City of Crystal Lake. As noted at the outset of this opinion, Count II has been dismissed in its entirety by this court's orders on November 20, 1995, dismissing the City of Crystal Lake and November 29, 1994, dismissing the Illinois State Police. Hence, this issue is moot and the court need not reach the merits.


 For the foregoing reasons, defendants' motion for summary judgment is granted as to Gregory Pourchot, John Williams, Lester Lunsmann, Doyle Kearns, Jeffrey Rhode, and Edward Fetzer, individually and in their official capacities. *fn9" This case is hereby dismissed in its entirety.




 DATED: November 22, 1995

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