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HUMPHREY v. DEMITRO

June 5, 1996

FRANK HUMPHREY, Plaintiff,
v.
M. DEMITRO, et al., Defendants.



The opinion of the court was delivered by: SHADUR

 Frank Humphrey ("Humphrey") has filed suit under 42 U.S.C. § 1983 ("Section 1983") against four City of Chicago police officers, alleging that his constitutional rights were violated when he was arrested on September 12, 1992. Humphrey asserts that officers Michael Demitro ("Demitro"), Norbert Staszak ("Staszak"), Lawrence Pajowski ("Pajowski") and Gerald Neuffer ("Neuffer") falsely arrested him, violated his right to equal protection under the law and engaged in a conspiracy to deprive him of his constitutional rights.

 Defendants now move for summary judgment under Fed. R. Civ. P. ("Rule") 56. Both sides have substantially complied with this District Court's General Rule ("GR") 12(M) and 12(N), *fn1" and the motion is fully briefed and ripe for decision. For the reasons set forth in this memorandum opinion and order, defendants' motion is granted in part and denied in part.

 Summary Judgment Principles

 Under familiar Rule 56 principles defendants have the burden of establishing both the lack of a genuine issue of material fact and that they are entitled to a judgment as a matter of law ( Celotex v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Summary judgment is appropriate only if the record reveals that no reasonable jury could conclude that defendants violated Humphrey's constitutional rights. This Court is called upon to draw inferences in the light most favorable to nonmovant Humphrey, but it is "not required to draw every conceivable inference from the record--only those inferences that are reasonable" ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there).

 As already hinted in n.1, defendants have done themselves a considerable disservice by their inattention to the express warning in GR 12(M)(3):

 
All material facts set forth in the statement filed pursuant to section N(3)(b) will be deemed admitted unless controverted by the statement of the moving party.

 Throughout their GR 12(M)(3) response defendants have asserted that they "deny the additional facts set forth by plaintiff in this paragraph" or that they "disagree with the facts set forth in paragraph --," in each instance without pointing to evidence in the record as grounds for their denial or disagreement. To that extent Humphrey's additional facts are left uncontroverted and will therefore be deemed admitted for purposes of this motion, a measure repeatedly approved by our Court of Appeals (e.g., LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 389 (7th Cir. 1995) and cases cited there).

 Both the earlier-described basic summary judgment principles and the just-stated doctrine are especially important in this case, in which the record consists only of deposition testimony about the facts surrounding Humphrey's arrest, and in which the stories told in those depositions are at sharp odds. Defense counsel have repeatedly asserted that if all Humphrey can point to is his own version of the facts surrounding his arrest, defendants are then entitled to summary judgment. *fn2" That of course is dead wrong. Defendants seem to believe that Humphrey's rendition of the facts--his sworn version of what happened--means nothing. But what is defendants' own deposition testimony other than their sworn rendition of the facts?

 When two sworn factual versions thus conflict, there is a genuine issue of fact. Humphrey's version of the facts must be credited at this stage, for it will be up to the factfinder later--and not to this Court now--to decide whether to believe Humphrey or the police officers. As Door Sys., Inc. v. Pro-Line Door Sys., Inc., No. 95-3808, 1996 WL 225600, at *4 (7th Cir. May 6) (citations omitted) has recently reconfirmed:

 
Summary judgment is not to be used to resolve evidentiary conflicts, but merely to identify their presence or absence. Before it can properly be granted, therefore, the court must have a very high degree of confidence that any disagreement over the facts is spurious. The heavy caseloads that press on federal district courts today, especially in the large metropolitan districts such as the Northern District of Illinois, from which this case comes to us, make it tempting to use summary judgment as an abbreviated form of trial. We have warned against yielding to that temptation.

 What follows in the Facts section, then, is a factual statement drawn from the parties' submissions, with any differences between them resolved in Humphrey's favor. *fn3"

 Facts4

 On Saturday, September 12, 1992 all four officers were assigned to the Chicago Police Department's Mass Transit Unit (D. 12(M) P1), and all were working in plain clothes (not in uniform) (id. P5). Humphrey was in Chicago for the weekend (he then lived in Madison, Wisconsin) to attend the wedding of a childhood friend. Humphrey is black and all four police officers are white.

 Humphrey drove to downtown Chicago on the morning of September 12, 1992 to pick up a tuxedo to wear at the wedding (Humphrey Dep. 55). He parked his car on Randolph Street just west of State Street (D. 12(M) P3). Meanwhile Demitro, Staszak and Neuffer were standing on the west side of State Street when they saw Pajowski chase a black man, Willie Kelly ("Kelly"), *fn5" out of the stairwell that leads from the subway to the street near the corner of State and Randolph (id. P2). All three officers took up the chase as Kelly headed west on Randolph Street, but Demitro and Neuffer caught Kelly about halfway down the block and arrested him (id. P3). Staszak trailed about 30 yards behind Demitro and Neuffer when they caught Kelly (Neuffer Dep. 12).

 Humphrey saw Kelly being arrested as he left his car. He testified (Humphrey Dep. 60-61)

 
I heard vulgar language, and I saw what appeared to be handcuffs go around this individual's hands. I heard language, and I saw the hair of this individual get pulled and--and language uttered to the effect that, Didn't I tell you not to ever try to run away from me, or something to that effect, the m-f word and other language.
 
One of the officers at that time looked over and saw me observing this and seemingly gave indication to the other officers to curtail their behavior.

 Because they were in plain clothes, Humphrey did not know at the time that Demitro, Neuffer and Staszak were police officers (id. 64, 77).

 As Demitro and Neuffer escorted Kelly east on Randolph back toward the subway entrance, Humphrey approached Staszak and asked him if he was a police officer and, if so, for his name and badge number (H. 12(N) P3). Staszak replied, "Go get fucked." Humphrey continued to press Staszak for information as Staszak walked east on Randolph toward State, and Staszak became "more belligerent and abusive" (id.). In response to further requests for his name and badge number, Staszak replied that it was "none of his damn business" and told Humphrey to "get the hell out of here" (id. P4).

 When Staszak and Humphrey reached the subway entrance, Demitro and Neuffer had already gone underground with Kelly to place him in a holding area *fn6" (Humphrey Dep. 86). At that point Staszak arrested Humphrey (id. 86-87):

 
[Staszak] wouldn't give me any more information. I said, I'm just asking. And as I recall him saying, You want to know who I am? You want to find out what I do? You can find it out at the police station.
 
That's the first time he said police.
 
And I said, What do you mean? He said, Well, you're going to be under arrest. And as I recall, he was very vague and really didn't say very much outside of some interfering.

 Staszak then handcuffed Humphrey (id. 93). At about the same time Demitro and Neuffer returned to the street from the subway, and Demitro asked Staszak what Humphrey was doing there (id. 100-01). Humphrey could not hear Staszak's response, but Demitro then said to Humphrey, "You want to be a good Samaritan. This is not any of your business" (id. 102). *fn7"

 Staszak, Demitro and Neuffer then took Humphrey down into the subway, where the police had an area for doing paperwork and holding arrestees. Pajowski, who had earlier returned to the subway to try to find out what Kelly had done before he began to flee Pajowski at the start of the incident, learned that Humphrey had been arrested only when he returned to the holding area (D. 12(M) P17). Pajowski remained present while Humphrey was detained, both in the subway and later at the First District police station at 11th and State Streets.

 Meanwhile Neuffer called for a vehicle to transport everyone--the officers, Humphrey and Kelly--to the First District station. Humphrey remained handcuffed for a short time until the vehicle arrived (H. 12(N)(3)(b) P3). At one point Humphrey told Staszak that "this hurts," referring to the handcuffs (H. 12(N) P20). It is uncontroverted that Humphrey experienced numbness and cramping in his wrists for a couple of days ...


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