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BERRUM v. FREYBERGER

March 18, 2004.

JOSE BERRUM, Plaintiff,
v.
DOUG FREYBERGER, Individually and In His Official Capacity as a DEA Special Agent; and Other Unknown DEA Special Agents, Individually and In Their Official Capacity as DEA Special Agents Defendants



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. Page 2

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 (1986).
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. Page 3

 II. Facts

 A. Freyberger's Local Rule 57.1 Statement of Uncontested Facts

  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 cocaine. Id.

  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 ¶ 3.

  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. Page 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, ...


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