The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Marcus Gregory ("Gregory") has filed a 42 U.S.C. § 1983 ("Section
1983") action against the City of Waukegan ("City") and three officers in
the narcotics division of its Police Department ("Department"): Jon
Oliver ("Oliver"), Scott Chastain ("Chastain") and Gabriel Guzman
("Guzman"). Gregory charges that he was deprived of his constitutional
rights under the Fourth Amendment*fn1 in having been (1) falsely
arrested and also subjected to (2) excessive force, (3) abuse of process
in withholding exculpatory information and (4) abuse of process in
pressuring him to be an informant.
All defendants have collectively filed a Fed.R.Civ.P. ("Rule") 56
summary judgment motion, and they and Gregory have complied with this
District Court's related LR 56.1.*fn2 For the reasons set forth in this
memorandum opinion and order, defendants' motion for summary judgment:
1. as to the false arrest claim is granted in part and
denied in part,
2. as to the excessive force claim is denied in its
3. and 4. as to both abuse of process claims is
Summary Judgment Standards
Familiar Rule 56 principles impose on parties moving for summary
judgment the burden of establishing the lack of a genuine issue of
material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
For that purpose this Court must "consider the evidentiary record in the
light most favorable to the non-moving party . . . and draw all
reasonable inferences in his favor" (Lesch v. Crown Cork & Seal Co.,
282 F.3d 467, 471 (7th Cir. 2002)). And Pugh v. City of Attica,
259 F.3d 619, 625 (7th Cir. 2001) has echoed the teaching of Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 248 (1986)
A genuine issue of triable fact exists only if "the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party."
As with any summary judgment motion, this Court accepts nonmovant
Gregory's version of any disputed facts, but only so long as it is
supported by record evidence.*fn3 What follows in the Facts section is
culled from the parties' submissions.
Members of the Department stopped Gregory numerous times during
mid-1998 and solicited him (without success) to become an informant (G.
Add. St. ¶ 14). When Gregory again refused to become an informant on
August 25, 1998, Chastain and Officer Thomas Granger ("Granger") issued
four tickets charging him with traffic violations (id. ¶ 16). Three
days later, when Chastain, Granger and Guzman stopped Gregory for another
traffic violation, Guzman noted cocaine in plain view in the car (id.
¶¶ 17-18). One of the officers told Gregory he was under arrest for
possession of cocaine (id. ¶ 18). But before the arrest was
processed, Guzman offered not to do so if Gregory would agree to serve as
a drug informant (id. ¶ 19). Once more Gregory refused the offer
(id.). Although Gregory claims that the officers singled him out for
recruitment (id. ¶ 14), he also acknowledges that defendants' actions
were not limited to him, but were part of an effort to catch "bigger
fish" such as drug dealers (id. ¶ 12).
Gregory was charged with possession of cocaine for the August 28, 1998
incident (G. Add. St. ¶ 20). During the bench trial the prosecutor
stated that Guzman and Chastain had found a rock of crack cocaine in the
car's back seat (G. Ex. 10 at 3-5) and that a woman of an unknown
identity was present in the front seat (id. at 3-4). That information is
contradicted by testimony given by Granger, who said that the cocaine was
on the front seat and located near the female passenger (G. Add. St.
¶ 18). Additionally, Granger's knowledge differed from those of other
officers in that he knew the name of the female passenger, Beverly Dixon
(id.). Gregory was acquitted by the trial judge, who found there was
insufficient evidence to show that he knowingly possessed the drugs (D.
St. ¶ 11).
On November 5, 1998 Gregory visited his cousin Stan McNulty at 5805.
Genessee Street (D. St. ¶ 13). After consuming a little alcohol
there, Gregory left the premises to use a pay telephone (G. Add. St.
¶ 21). While he was gone, Guzman, Oliver, Chastain, Granger and other
City police officers executed a valid search warrant that authorized them
to search the residence and a woman named Leola at the residence (D. St.
¶ 12; G. Ex. 2 at 58). When Gregory returned to the house, he saw that
a door had been broken by a battering ram (G. Exs. 1 at 39 and 4 at
39-40). Gregory was approached by Guzman (G. Ex. 4 at 45-46), who
— although he knew nothing about Gregory (id. at 37) —
insisted that Gregory enter the house (G. Ex. 1 at 39-40). Although
Gregory wanted to leave and said he would return to visit his cousin Stan
later (G. Add. St. ¶ 24), instead he entered the house at Guzman's
continued insistence (id. ¶ 25)
Gregory was handcuffed and raised to a standing position by Oliver
(id. at 50). According to defendants, Gregory then attempted to kick
Guzman (D. St. ¶ 19), and Oliver responded by pulling Gregory down by
the handcuffs (G. Ex. 2 at 81). In Gregory's contrasting version (which
is credited here), he was being asked to sit down when Oliver violently
kicked his feet out from under him (G. Add. St. ¶ 28). Gregory's foot
was caught beneath the couch, breaking his ankle (id.).
That entire episode resulted in police charges being instituted against
Gregory for resisting arrest and possession of drug equipment, both
misdemeanors (G. Ex. 7). Ultimately Gregory pleaded guilty to charges of
aggravated assault (a felony) and resisting arrest (D. St. ¶ 21)
Because all three officer defendants claim protection against all of
Gregory's claims under the mantle of qualified immunity, a brief
rehearsal of the principles of that doctrine is in order before the
claims are examined individually. Although the review of the doctrine at
the current summary judgment stage of the proceedings cannot serve the
goal of Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) — to
insulate defendants against suit as well as liability even before
discovery has taken place — this procedure may still satisfy the
directive of Saucier v. Katz, 533 U.S. 194, 200 (2001) for a ruling
sufficiently "early in the proceedings so that the cost and expenses of
trial are avoided where the defense is dispositive."
To that end the contours of Fourth Amendment protection against the use
of excessive force are of course well developed. And whether such force
violates a "clearly established" right is a function of "whether it would
be clear to a reasonable official that his conduct was unlawful in the
situation he confronted" (Saucier, 533 U.S. at 202). That test is met,
for example, if various courts have agreed that certain conduct is a
constitutional violation under facts not distinguishable in a fair way
from the facts presented in the case at hand" (id.). Even beyond that,
however, "officials can still be on notice that their conduct violates
established law even in novel factual circumstances" (Hope v. Pelzer, 122