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APOSTAL v. CITY OF CRYSTAL LAKE

November 22, 1995

NICHOLAS J. APOSTAL, Plaintiff,
v.
CITY OF CRYSTAL LAKE, ILLINOIS STATE POLICE, GREGORY ALLAN POURCHOT, LESTER LUNSMANN, INSPECTOR RHODE, Star # 9717, INSPECTOR WILLIAMS, Star # 9742, INSPECTOR D.E. KEARNS, Star # 9939, and INSPECTOR FETZER, Star # 9930, Defendants.



The opinion of the court was delivered by: REINHARD

MEMORANDUM OPINION AND ORDER

 INTRODUCTION

 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.

 BACKGROUND

 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 ...


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