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MORGENSTERN v. COOK COUNTY SHERIFF'S OFFICERS MEGROMIS

United States District Court, N.D. Illinois


March 2, 2004.

JACOB MICHAEL MORGENSTERN, Plaintiff;
v.
COOK COUNTY SHERIFF'S OFFICERS MEGROMIS, STAR NO. 3355, 0'CONNOR, STAR NO. 4422, and DICARO, STAR NO. 1922, Defendants

The opinion of the court was delivered by: JOHN GRADY, Senior District Judge

MEMORANDUM OPINION

The defendants have moved for summary judgment on all three counts of the complaint. Count I is a Fourth Amendment excessive force claim and Counts II and III are state law claims. Plaintiff has withdrawn his opposition to the motion as far as the state law claims are concerned, and, accordingly, summary judgment will be entered in favor of the defendants and against the plaintiff on the state law claims, for the reasons asserted in defendants' motion. (Statute of Limitations and immunity.)

The situation is different as to Count I. Although defendants argue to the contrary, there is clearly a genuine issue as to whether the defendants 0'Connor and Megromis used excessive force in arresting the plaintiff. Defendants simply ignore the testimony of the plaintiff himself, who testified unequivocally that he did Page 2 not resist arrest and that the defendant O'Connor threw him to the floor and held him there by putting his knee into the plaintiff's back, causing him considerable pain. Handcuffs were then applied to plaintiff's wrists by defendants O'Connor and Megromis so tightly that plaintiff was caused further pain, and his complaints about the pain were ignored. This is sufficient evidence to create a genuine issue as to whether the defendants O'Connor and Megromis used excessive force.

  As for the defendant DiCaro, there is no evidence that he participated in the initial physical contact with plaintiff or that he helped to handcuff him. However, according to both plaintiff and Chicago police officer Malinowski, Deputy DiCaro was present during the incident and was present at the time defendant was handcuffed. (Plaintiff's Deposition of September 4, 2002, at 64; Malinowski Deposition at 44.) Therefore, there is a genuine issue of fact as to whether the defendant DiCaro heard the plaintiff complain of the tightness of the handcuffs and failed to intervene. Accordingly, we must deny DiCaro's motion for summary judgment as well. See Herzog v. Village of Winnetka, 309 F.3d 1041, 1043 (7th Cir. 2002) (tight handcuffs); Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (failure to intervene). Page 1

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