The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Jose Berrum (Berrum), currently an inmate at FCI Texarkana,
Texas, brings this pro se complaint under the Constitution
("Bivens" Action), 28 U.S.C. § 1331 (a) and the International
Covenant on Civil and Political Rights (ICCPR). On March 19, 2002, the
court granted in part and denied in part defendant Douglas Freyberger's
Motion to Dismiss. Berrum's claims pursuant to the Fifth and Sixth
amendments and under the ICCPR were dismissed. Berrum's claims that his
arrest and the search of his residences were in violation of the Fourth
Amendment and that Freyberger used excessive force in violation of the
Eighth Amendment remain. Freyberger has filed a motion for summary
judgment. In response, Berrum filed a cross-motion for summary judgment.
For the following reasons, the court grants defendant Douglas
Freyberger's motion for summary judgment and denies plaintiff Jose
Berrum's motion for summary judgment.
I. Standard of Review on a Motion for Summary Judgment
Borcky v. Maytag Corporation, 248 F.3d 691
, 695 (7th Cir.
2001), details the criteria a district court must follow in ruling on a
motion for summary judgment:
(A district court) "must construe all facts in the
light most favorable to the non-moving party and
draw all reasonable and justifiable inferences in
favor of that party." Bellaver v. Quanex
Corp., 200 F.3d 485, 491-92 (7th Cir. 2000).
Summary judgment is proper if the record shows
"that there is no genuine issue as to any material
fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P.
56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
However, "[t]he mere existence of some alleged
factual dispute will not defeat an otherwise
properly supported motion for summary judgment,"
Liu v. T & H Mach, Inc.,
191 F.3d 790, 796 (7th Cir. 1999); only a "genuine" issue of
"material" fact precludes summary judgment,
Fed.R.Civ.P. 56(c). "Factual disputes are `material'
only when they `might affect the outcome of the
suit under the governing law.'" Oest v.
Illinois Dep't of Corrections, 240 F.3d 605,
610 (7th Cir. 2001) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct 2505, 91 L.Ed.2d 202 (1986)). Furthermore,
"[f]actual disputes are `genuine' only' if the
evidence is such that a reasonable jury could
return a verdict for the [nonmovant]."' Id.
(quoting Liberty Lobby, 477 U.S. at 248,
106 S.Ct. 2505). Speculation will not suffice. See
Liu, 191 F.3d at 796 ("A party must present
more than mere speculation or conjecture to defeat
a summary judgment motion."); Amadio v. Ford
Motor Co., 238 F.3d 919, 927 (7th Cir. 2001);
Gorbitz v. Corvilla, Inc., 196 F.3d 879,
882 (7th Cir. 1999) (stating that a plaintiff's
speculation is "not a sufficient defense to a
summary judgment motion").
The party moving for summary judgment has the initial burden of
submitting affidavits and other evidentiary material to show the absence
of a genuine issue of material fact. Celotex, 477 U.S. at 325.
Once the moving party has sustained the initial burden, the opposing
party may not rest upon the mere allegations or denials of the pleadings,
but instead must come forward with specific evidence, by affidavits or as
otherwise provided in Rule 56, showing that there is a genuine issue for
trial. Id. at 324.
Because both parties have moved for summary judgment, the court
evaluates each party's motion on its own merits, taking care in each
instance to draw all reasonable inferences against the party whose motion
is under consideration. Mingus Constructors, Inc. v. United
States, 812 F.2d 1387, 1391 (Fed. Cir. 1987). However, this does not
necessarily mean the court must grant judgment as a matter of law for one
side or the other; summary judgment in favor of either party is not
proper if disputes remain as to material facts. Id.
A. Freyberger's Local Rule 57.1 Statement of Uncontested
On June 11, 1999, Berrum owned three residences: one on Commercial
Avenue in South Chicago Heights, Illinois; one on Helfred Avenue in South
Chicago Heights, Illinois; and one on Crystal Court in Steger, Illinois.
Exhibit B at 8; Exhibit D at 4-5. Berrum lived with his wife and children
in the house on Helfred Avenue. Exhibit B at 8; Exhibit D at 4-5.
On June 11, 1999, Berrum took personal delivery and possession of
approximately 14.7 kilograms of cocaine at his residence on Commercial
Avenue. Exhibit C at 2. He then received into his residence an undercover
government agent who by prior arrangements had agreed to purchase cocaine
from Berrum at Berrum's stated price of $25,000 per delivered kilogram.
Exhibit C at 2-3. Berrum directed the agent into the kitchen and adjacent
dining room and personally displayed part of the 14.7 kilograms of
At the same time, Freyberger was in a car parked on a side street near
the Commercial Avenue residence. Exhibit A at ¶ 2. Freyberger heard
over the radio that the undercover agent had given the prearranged "bust"
signal. Exhibit A at ¶ 2. Freyberger then drove down the alley,
parked near the rear of the residence, and entered the residence through
the side door. Exhibit A at ¶ 2.
When Freyberger entered the residence, the arrest team, which was
composed of officers from the DEA and the Chicago Heights Police
Department, was outside the kitchen. Exhibit A at ¶ 3. Berrum was
already handcuffed and lying on the floor. Exhibit A at ¶ 3.
Freyberger then saw members of the arrest team help Berrum to his feet,
assist him to a chair, and remove his handcuffs. Exhibit A at
Freyberger asked whether Berrum spoke English and was told by Detective
James Martinez of the Chicago Heights Police Department, whom Freyberger
believes to be fluent in Spanish, that Berrum did not speak English.
Exhibit A at ¶ 4; see also Exhibit B at 4, 17. Freyberger
neither speaks nor reads Spanish. Exhibit A at ¶ 4.
Freyberger asked whether Berrum had been advised of his rights, and
a member of the arrest team told him that Berrum had been advised of his
rights. Exhibit A at ¶ 5.
Freyberger gave Martinez three blank DEA forms in Spanish and asked
Martinez to read them to Berrum and ask Berrum if he would consent to a
search of his three residences. Exhibit A at ¶ 6.
Freyberger obtained the DEA forms from a file folder in the DEA office
labeled "Consent to Search (Spanish)." Exhibit A at ¶ 7. These DEA
forms were entitled "Consentimiento de Registro" and contained
the designation "DEA Form-88." Exhibit A at ¶ 7. Although Freyberger
does not speak or read Spanish, he believes that the blank forms he gave
Martinez were Spanish-language versions of the DEA's "Consent to Search"
forms, which also contain the designation DEA Form-ii, and which state
that (1) the signer has been asked to permit special agents of the DEA to
search a specifically designated person, place, or thing; (2) the signer
has not been threatened, nor forced in any way; and (3) the signer freely
consents to the search. Exhibit A at ¶ 7; Exhibit F.
Freyberger then watched Martinez speak to Berrum in Spanish. Exhibit A
at ¶ 8. Berrum appeared to Freyberger to be calm, coherent, and
cooperative. Exhibit A at ¶ 8. Freyberger then left the dining room
and went to the front yard of the Commercial Avenue residence, ...