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October 21, 2002


The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge


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 entirety and
3. and 4. as to both abuse of process claims is granted.

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)

Qualified Immunity

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 S.Ct. ...

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