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CROOMS v. MERCADO

March 3, 1997

EDWARD CROOMS, Plaintiff,
v.
P.O. MERCADO, NO. 41, Defendant.



The opinion of the court was delivered by: ALESIA

 Before the court is defendant Sabas Mercado's (identified in the complaint as "P.O. Mercado, No. 41") motion for summary judgment. For the reasons that follow, the court grants defendant's motion.

 I. BACKGROUND1

 On August 25, 1994, defendant Sabas Mercado ("Mercado"), who was working as a patrol officer for the Zion Police Department, was dispatched to a domestic dispute at 3240 Gideon Avenue, Zion, Illinois. The domestic dispute was between plaintiff Edward Crooms ("Crooms") and his girlfriend Della Sims ("Sims").

 Mercado and his partner, Officer Timothy Bartlett, went to that location and spoke first to Sims. Sims, who appeared to be very nervous, told the officers that she wanted Crooms out of her home. Sims then signed a complaint against Crooms. After Sims signed the complaint, Mercado spoke to Crooms, advising him to leave Sims' residence and twice warning him that he would be arrested for trespass if he did not leave. After the second warning, Crooms picked up some of his bags and took them to the trunk of his car. Mercado followed Crooms to his car. Crooms then came back into the residence, picked up more of his bags, and started to head to his car again. Mercado again followed Crooms to his car. Mercado went back into the residence. Crooms reentered the residence and gathered more items.

 Mercado contends that after gathering the items, Crooms started to leave the residence but stopped and started arguing with Sims. (Def.'s Rule 12(M) Statement of Uncontested Facts [hereinafter "12(M) Statement"] P 24.) Mercado then told Crooms to leave and when he did not, Mercado put his hand on Crooms' shoulder. (Id. PP 25-26.) At that point, Crooms turned, put both of his hands on Mercado's chest and pushed him. (Id. P 27.) Mercado then told Crooms that he was under arrest, grabbed Crooms by the shirt, turned him around and pushed him against a wall about five feet away. (Id. P 28.)

 In contrast, Crooms alleges that as he was leaving the residence for the last time, he remembered that he had forgotten his robe. (Pl.'s Add'l Facts P 5; Trial Tr. at 81; Pl.'s Aff. P 12.) As he turned around and pointed to the robe, his index finger brushed Mercado's chest. (Pl.'s Add'l Facts PP 6-7; Trial Tr. at 81; Pl.'s Aff. P 13.) Mercado then grabbed Crooms by his neck and his waistline and pushed him toward the wall. (Pl.'s Add'l Facts P 8; Trial Tr. at 82; Pl.'s Aff. P 14.)

 Adjacent to the wall against which Mercado pushed Crooms was a door with a glass window. Though normally closed, at the moment Mercado pushed Crooms towards the wall, the door was open so that it was touching the wall on a diagonal. If the door had been closed, it would have been facing a different direction. As Mercado pushed Crooms to the wall, Crooms extended his arm which then went through the glass window in the door.

 Mercado contends that Crooms extended his arm out to the side and, as a result, Crooms' arm went through the glass window that was several feet to his side. (12(M) Statement P 29.) In contrast, Crooms contends that he extended his arms straight out in front of him in order to avoid hitting the wall. (Pl.'s Add'l Facts P 11; Pl.'s Aff. P 15.) Crooms denies that the door was several feet to his right, (12(N) Statement P 33); rather, Crooms alleges that the door was partially covering the part of the wall against which Mercado pushed Crooms. (Pl.'s Aff. P 17.) Crooms further alleges that he did not spread his arms to his side when pushed towards the wall. (Pl.'s Add'l Facts P 16; Pl.'s Aff. P 25.) Finally, Crooms alleges he would not have had to extend his arms if Mercado had not pushed him against the wall with such force. (Pl.'s Add'l Facts P 13; Pl.'s Aff. P 19.)

 By information, Crooms was charged with the following offense:

 
On the 25th day of August, 1994 in Lake County, Illinois, the defendant knowingly resisted the performance of Officer Sabas Mercado of an authorized act within his official capacity, being the investigation of a complaint involving Eddie Crooms, knowing Officer Sabas Mercado to be a peace officer engaged in the execution of his official duties in that said defendant pushed Officer Mercado in the chest with his hand.

 After a full trial was held, a jury found Crooms guilty of the offense of resisting a peace officer *fn2" and the trial court entered a judgment on the conviction. On July 17, 1996, Crooms filed this one-count action against Mercado, alleging that Mercado used unreasonable and excessive force against him in violation of his civil rights under 42 U.S.C. §§ 1983 and 1988, the Fourth Amendment of the United States Constitution, and the laws of Illinois. Mercado has moved this court to enter summary judgment in his favor and against Crooms.

 II. DISCUSSION

 A. Standard for deciding a motion for ...


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