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January 15, 1997

WILLIAM KINSELLA, DONALD HARTSOCK, and P. DUGGAN, in their official capacities, Defendants.

The opinion of the court was delivered by: HART

 Plaintiff Thomas Fantasia brings this action against three police officers for the Village of Orland Park, William Kinsella, Donald Hartsock, and Patrick Duggan, in connection with an altercation in his home and his subsequent arrest. Plaintiff alleges that defendants violated 42 U.S.C. § 1983 ("§ 1983") by using excessive force against him, failing to prevent the use of excessive force against him, falsely arresting him and conspiring to violate his constitutional rights. Plaintiff also brings an claim under Illinois state law for malicious prosecution. Presently pending is defendants' motion for summary judgment.


 Early in the day on May 22, 1994, plaintiff went to his neighbor's house in Orland Park to watch a Chicago Bulls basketball game on television. Over the course of the day, plaintiff drank three "Rum and Cokes" and had a sip of a Bloody Mary drink. The Bulls lost the game and plaintiff returned home. Plaintiff's wife, Mary Fantasia, also had returned home from a trip to the grocery store a short time earlier.

 After returning home, plaintiff argued with his wife over the actions of one of his daughters. At some point, a container of dry dog food and a ceramic container fell to the floor and spilled all over the kitchen floor. Both plaintiff and Mrs. Fantasia agree that plaintiff accidentally knocked both to the floor. During the argument with plaintiff, Mrs. Fantasia stated that if plaintiff did not quiet down she would call the police because she did not want her neighbors to hear their argument. Plaintiff then picked up the telephone and dialed 911 himself and handed the telephone receiver to his wife. The 911 operator answered and asked Mrs. Fantasia if she wanted "police or fire." Mrs. Fantasia answered "police," but when the police answered she said "never mind" and hung up the receiver. Nevertheless, the 911 operator dispatched officers to plaintiff's home.

 Responding to the call in separate squad cars, both Officers Kinsella and Hartsock arrived at plaintiff's home between five and ten minutes after Mrs. Fantasia spoke to the 911 operator. Officer Hartsock went to the back door and attempted to follow plaintiff's daughter into the house through a screen door on the patio, but plaintiff slid the screen door closed before Officer Hartsock could enter. Plaintiff yelled to Officer Hartsock that he was not needed. Meanwhile, Officer Kinsella had entered the house through the front door. Upon his entry, Mrs. Fantasia told Officer Kinsella, "The Bulls lost. Maybe you can help him." Plaintiff acknowledges that he was disappointed about the Bulls' loss. When plaintiff saw Officer Kinsella, he demanded that Officer Kinsella leave the house. Using profanity, Officer Kinsella responded that he was going nowhere. Plaintiff, who was holding a broomstick, then told Officer Kinsella that "if you were not a police officer, I'd kick your f***ing ass." Officer Kinsella told plaintiff to release the broomstick or he would arrest plaintiff. After repeating the command twice -- a time span of approximately five seconds -- plaintiff released the broom. Officer Kinsella took the broomstick and threw it into the living room.

 From this point on, the facts are disputed at nearly every turn. Because the facts must be viewed in a light favorable to the nonmovant, plaintiff's version of the facts will be used. See Titran v. Ackman, 893 F.2d 145, 147 (7th Cir. 1990). After throwing the broomstick into the living room, Officer Kinsella threw his hat to the floor and told plaintiff, "come on ***hole, let's go outside right now." Plaintiff responded that he would not do that but "if you were not a police officer, I would beat the living sh** out of you." *fn1" Officer Kinsella then hit plaintiff in the hip area with a baton. After several baton strikes to plaintiff's arm and elbow, plaintiff was pushed backwards into a set of closet doors, which then collapsed. Plaintiff got up and said, "Is that the best you can do?" Officer Kinsella punched plaintiff in the face. After recovering from the punch, plaintiff again asked Officer Kinsella, "Is that all you f***ing got?" Officer Kinsella responded with a second punch to plaintiff's face. After the second punch, Officer Hartsock pushed Officer Kinsella off of plaintiff and said "Do you know what you're doing?"

 Plaintiff retreated into the kitchen and proceeded to pick up the telephone receiver. Officer Duggan, now in the kitchen, motioned to Officer Kinsella to relate to him what was happening. Officer Kinsella indicated that "he's going" -- plaintiff was being arrested. Officer Duggan then asked plaintiff to hang up the telephone. Plaintiff hung up the telephone after Officer Duggan's second request to do so. Officer Duggan told plaintiff to step into the front room. At some point, Fantasia's seven year old son came up to Officer Kinsella, tugged on his pant leg and said, "Officer, please don't arrest my daddy. I love my daddy." Officer Duggan allowed plaintiff to lean over and talk to his son. Plaintiff told his son that Officer Kinsella was "an a**hole." With the assistance of Officer Kinsella, Officer Duggan placed handcuffs on plaintiff. Plaintiff was charged with aggravated assault.

 Later that day, plaintiff was treated at Palos Community Hospital for injuries he had sustained to his hip, upper left arm and left elbow. After a jury trial, plaintiff was acquitted of all charges against him.

 On February 16, 1996, plaintiff filed this action in the Law Division of the Circuit Court of Cook County. Defendants removed the action to federal district court in a timely manner. In Count I, plaintiff alleges that Officer Kinsella violated § 1983 by using excessive force against him. In Count II, plaintiff alleges that all three defendants violated § 1983 by failing to prevent the use of excessive force against plaintiff. In Count III, plaintiff asserts a false arrest claim against all defendants under § 1983. In Count IV, plaintiff claims that Officer Kinsella is liable for malicious prosecution under Illinois law for filing a complaint of aggravated assault against plaintiff. In Count V, plaintiff alleges that defendants violated § 1983 by conspiring to deprive plaintiff of his constitutional rights. Defendants move for summary judgment on all counts.


 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." The purpose of summary judgment is to assess the proof in order to see whether there is a need for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing the lack of any genuine issue of material fact rests with the movant. Jakubiec, 844 F.2d at 473. The nonmovant, however, "must set forth specific facts showing there is a genuine issue for trial, and cannot rest merely on the allegations contained in the pleadings." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 A. Count I - Excessive Force

 In Count I, plaintiff alleges that Officer Kinsella used excessive force against him in violation of his constitutional rights. Officer Kinsella claims that he is entitled to qualified immunity from liability in connection with the force he used against Plaintiff. "Claims that a law enforcement officer used excessive force in the course of an arrest, investigatory stop, or other seizure are analyzed under the Fourth Amendment's objective reasonableness standard, which requires the court to balance 'the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'" Frazell v. Flanigan, 102 F.3d 877, 1996 WL 709265, *4 (7th Cir. 1996) (quoting Graham v. Connor, 490 U.S. 386, 395-96, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989)). Although a police officer has the right to use some degree of physical coercion in making an arrest, ...

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