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January 21, 2004.

LEMARK GREEN, Plaintiff,

The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge


Plaintiff has sued defendants under 42 U.S.C. § ("section") 1983 for violating his Fourth and Fourteenth Amendment rights. Defendants have filed a Federal Rule of Civil Procedure ("Rule") 56(c) motion for summary judgment, which we have construed as a motion to exclude evidence and a motion for summary judgment on plaintiffs failure to provide medical care claim.*fn1 For the reasons stated below, the motion to exclude is granted in part and denied in part and the motion for summary judgment is granted. Page 2


  On October 1, 1997, defendants Lopez, Galvin, Zawilla and DeLopez were conducting undercover surveillance from unmarked cars near the intersection of Ogden and Racine in Chicago. (Defs.' LR 56.1(a)(3) Stmt., Ex, I, People v. Green, 791 N.E.2d 134, 137 (Ill.App. Ct. 1993).) Plaintiff fired a gun in the officers' direction. (Id.; Pl's LR 56.1(b)(3)(A) Start. § 13.) Ultimately, defendants arrested plaintiff. (Pl's LR 56.1(b)(3)(B) Start. § 6.)

  Plaintiff says that he peacefully submitted to the arrest, but was nonetheless beaten severely by defendants. (Id. ¶¶ 9-16.) Defendants say that plaintiff tried to escape and violently resisted arrest, injuring himself in the process. (Defs.' Am. LR 56.1(a)(3) Start., Ex. X, 1/13/99 Trial Tr. at 56-60, 96.)

  Though plaintiff was obviously bleeding, defendants did not take him immediately to the hospital. (Id. at 60.) Rather, they first took him to the police station for processing and, two and one-half hours later, took him to St. Anthony's Hospital for treatment. (Pl.'s LR 56.1(b)(3)(B) Start, ¶¶ 17, 19.)

  At the hospital, plaintiff was given several x-rays and a CT scan of his head, which were normal. (Id. ¶¶ 22-23.) He received forty stitches for cuts on his face and head, intravenous fluids, antibiotics and a tetanus shot. (Id. § 21.)

  Subsequently, plaintiff was tried in state court for the attempted murder of defendants DeLopez, Lopez, Galvin and Zawilla and for aggravated discharge of a firearm. He was convicted of attempting to murder Galvin and Lopez and of aggravated discharge of a firearm. He was acquitted of attempting to murder DeLopez and Zawilla. (Pl's App. Exs. Supp. Pl's LR 56.1(b)(3)(B) Start., Ex. 3, Jury Verdict at 129-30.) Page 3


 Motion to Exclude Evidence

  Defendants argue that the doctrine of collateral estoppel bars plaintiff from relitigating in this case any issue decided against him during the state criminal proceedings. As a general matter, they are correct. See AlLen v. McCurry, 449 U.S. 90, 104(1980) (holding that state criminal proceedings may estop section 1983 actions); Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81-83 (1984) (federal court must give a state court judgment the same preclusive effect that the rendering state would accord it); American Family Mut. Ins. Co. v. Savickas, 739 N.E.2d 445, 449-51 (Ill. 2000) (overruling Thomton v. Paul, 384 N.E.2d 335 (Ill. 1978), and holding that criminal convictions can estop subsequent civil actions). Collateral estoppel is an affirmative defense. Adair v. Sherman, 230 F.3d 890, 894 (7th Cir. 2000). Thus, defendants have "the burden to set forth facts sufficient to satisfy each element of the defense." Id.

  Under Illinois law, collateral estoppel applies if: (1) the issue decided in the prior action is identical to the one currently presented; (2) a court of competent jurisdiction rendered a final judgment on the merits in the prior action; (3) the party against whom the doctrine is asserted was a party to the prior action or in privity with a party; (4) the issue was actually and necessarily litigated and determined in the prior action; and (5) the party to be estopped had a full and fair opportunity to litigate the issue in the prior proceeding. American Family, 739 N.E.2d at 451. Defendants say the following facts were determined against plaintiff in the state criminal case: (1) that he did not fire a gun at the officers; and (2) that he was arrested in retaliation for a previous encounter he had with defendants Delatorre and Solis. The Court agrees, in part.

  Plaintiff's criminal case was tried to a jury, not a judge. Thus, mere were no findings of fact, per se. Of course, the jury had to have accepted certain facts and rejected others to reach the verdicts Page 4 that it did. Given its guilty verdicts on the counts of attempted murder of Galvin and Lopez and aggravated discharge of a firearm, one of the facts the jury had to have accepted was that plaintiff fired a gun at Galvin and Lopez. See 720 ILL. COMP. STAT, 5/8-4(a) ("A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense."); 720 ILL. COMP. STAT. 5/9-1(a) ("A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death; (1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or (2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) he is attempting or committing a forcible felony other than second degree murder,"); 720 ILL. COMP. STAT. 5/24-1.2(a) ("A person commits aggravated discharge of a firearm when he or she knowingly or intentionally . . . [d]ischarges a firearm in the direction of another person or in the direction of a vehicle he or she knows or reasonably should know to be occupied by a person."). Thus, plaintiff is collaterally estopped from arguing in this case that he did not fire a gun at those defendants.

  Defendants have not, however, demonstrated that the criminal case actually and necessarily determined that plaintiff fired the gun at defendants DeLopez and Zawilla. Though there was evidence that plaintiff fired at all four of the undercover officers, (Defs.' LR 56.1(a)(3) Stmt., Ex. I. People v. Green, 791 N.E.2d 134, 137(Ill.App. Ct. 2003), and the guilty verdict on the aggravated discharge of a firearm charge is consistent with that notion, the acquittals on the charges that plaintiff attempted to murder DeLopez and Zawilla muddies the waters. It may be that the jury believed he shot at those officers, but did so without the requisite intent. But an equally plausible explanation is that the jury believed Galvin and Lopez were his only targets and Zawilla and DeLopez just happened to be in the vicinity. In any event, absent some evidence that the state court ...

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