United States District Court, N.D. Illinois
March 18, 2004.
JOSE BERRUM, Plaintiff,
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.
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, where two
additional suspects were being questioned. Exhibit A at ¶ 8.
A few minutes later, Freyberger returned to the dining room where
Berrum still appeared to be calm, coherent, and cooperative. Exhibit A at
¶ 9. Martinez told Freyberger that Berrum had consented to have the
DEA search his three residences, and Martinez gave Freyberger the three
DEA forms, each of which specified one of Berrum's residences, each of
which was signed by Berrum, and each of which was signed by Martinez.
Exhibit A at ¶ 9; Exhibits G., H, I. Freyberger then signed each of
the three forms for evidentiary chain-of-custody purposes. Exhibit A at
¶ 9. Less than five minutes passed between the time that Freyberger
handed the blank DEA forms to Martinez and the time that Martinez handed
the signed DEA forms to
Freyberger. Exhibit A at ¶ 9.
Freyberger then walked through the Commercial Avenue residence, where
he saw a suitcase containing cocaine, a scale, a semi-automatic handgun,
and live ammunition. Exhibit A at ¶ 10.
Berrum admits that the search of his Commercial Avenue residence was
consensual. Exhibit C at 3; Exhibit J at II; Exhibit K at 5-6.
While Freyberger was in the Commercial Avenue residence with Berrum, he
did not speak directly to Berrum, he did not touch Berrum, and he saw no
one strike or in any way threaten Berrum. Exhibit A at ¶ 11.
Berrum was then taken to the Helfred Avenue residence. Exhibit B at 21.
Berrum remained outside while the officers searched that residence.
Exhibit B at 21; Exhibit D at 11. Freyberger did not participate in the
search of the Helfred Avenue residence. Exhibit A at ¶ 12.
Berrum was then taken to the Crystal Court Residence. Exhibit B at 21.
Freyberger participated in the search of the Crystal Court residence.
Exhibit A t ¶ 13. When Freyberger entered the Crystal Court
residence, he believed that Berrum voluntarily had consented to the
search of that residence. Id.
During the search of the Crystal Court residence, Berrum showed
Freyberger and Martinez the basement ceiling panel above which $10,000
in currency was hidden. Exhibit A at ¶ 14. The only other contraband
Freyberger saw was a semi-automatic handgun and live ammunition. Exhibit
A at ¶ 14. During the search of the Crystal Court residence, Berrum
appeared to Freyberger to be calm, coherent, and cooperative. Exhibit A
at ¶ 14.
Berrum was taken to the Chicago Heights Police Department. Exhibit B at
48. Freyberger saw Berrum briefly at the Chicago Heights Police
Department. Exhibit A at ¶ 15. He did not speak to or touch Berrum,
and he saw no one strike or in any way threaten Berrum. Exhibit A at
Berrum pled guilty to possession with intent to distribute cocaine, and
he was sentenced
to 66 months in prison. Exhibit E.
In his deposition, Berrum testified that he was slapped on the head two
times by one officer while sitting in the dining room at the Commercial
Avenue residence and slapped in the face two times by the same officer at
the Chicago Heights Police Department. Exhibit B at 15-16, 18, Berrum
testified that he did not remember who hit him and did not know the name
of the person who hit him. Exhibit B at 13-14. Berrum testified that the
person who hit him had black hair. Exhibit B at 14. Berrum stated several
times that the person who hit him appeared with him when he appeared
before the magistrate judge for the first time. Exhibit B at 14-15, 18-19,
24. Berrum also testified that he did not see the person who hit him
during the search of the Crystal Court residence, Exhibit B at 22.
Freyberger has blonde hair and had blonde hair on June 11, 1999.
Exhibit A at ¶ 16.
Freyberger never appeared before a magistrate judge in connection with
Berrum's criminal case. Exhibit A at ¶ 17.
B. Berrum's Local Rule 56.1 Statement of Uncontested Facts
The parties do not disagree as to the first five paragraphs of Berrum's
statement. Berrum then continues that on June 11, 1999, he was struck two
times by DEA agents in order to force him to consent to a search of his
three residences. Berrum's signing of the consent forms was involuntary
because of the assault, threat, and intimidation.
On June 11, 1999, when DEA agents searched the Helfred residence, they
pushed Berrum's minor son into the door when he answered their knock. The
agents rushed to the bathroom where Berrum's wife was showering, entered
the bathroom and snatched open the shower curtains. This caused Berrum's
wife to fall backward, hitting her neck and the back of her head. After
she regained consciousness, the agents taunted and ridiculed her and
refused to give her any assistance.
Berrum disagrees with Freyberger's statement that Freyberger entered
the Commercial Avenue residence after Berrum was handcuffed and lying on
the floor. Rather, Berrum states
that Freyberger was the first person he saw when the DEA agents
entered his residence.
Berrum disagrees with Freyberger's statement that he did not
participate in the search of the Helfred Avenue residence. Berrum
disagrees with Freyberger's statement that he never appeared before a
magistrate judge in connection with Berrum's criminal case. Berrum states
that Freyberger was present at a hearing on June 12, 1999, and asked the
magistrate judge to deny bond.
Berrum states that he was struck two times while at the Chicago Heights
Police Department. Berrum states that the DEA agent who struck him was at
the hearing on June 12, 1999.
When Freyberger filed his motion for summary judgment, he included a
"Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as
required by Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992);
Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982). This notice
clearly sets out the requirements of this court's Local Rule 56.1. In
particular, the notice explains:
You may rely upon your own declaration or the
declarations of other witnesses. A declaration is
a signed statement by a witness. The declaration
must end with the following phrase: "I declare
under penalty of perjury under the laws of the
United States that the foregoing is true and
correct," and must be dated. If you do not provide
the Court with evidence that shows that there is a
dispute about the facts, the judge will be
required to assume that the defendant's factual
contentions are true, and, if the defendant is
also correct about the law, your case will be
Berrum responded with a memorandum in support of plaintiff's motion for
summary judgment. However, he did not file a motion for summary judgment.
When Berrum moved to reinstate his motion for summary judgment, the court
examined the record and saw that he had never filed a motion for summary
judgment but had filed a memorandum. After reviewing this memorandum the
court determined that it would be fufile to allow plaintiff to file a
motion for summary judgment based on this memorandum. In its order of
December 8, 2003, the court explained:
The memorandum does not comply with Rule 56(e) of
the Federal Rules of Civil
Procedure or with this court's Local Rule 56.1. To
support his memorandum, plaintiff has attached
copies of his wife's medical bill and records.
However, this court informed plaintiff in its
April 18, 2001, order that he could not bring
claims on behalf of his wife. He has also included
a list of his psychological contacts, but that is
all it is-a list. However, because plaintiff is
pro se, the court will give him one final
opportunity to respond to defendant's motion for
The court then gave Berrum a "Notice to Pro Se Litigant Opposing Motion
for Summary Judgment."
Berrum responded with a motion for summary judgment, his Local
Rule 56.1 Statement of Uncontested Facts, and a Memorandum in Support of
Plaintiff's Motion for Summary Judgment. In spite of the court's notice
that his exhibits were not sufficient, he attached the same ones.
Moreover, in spite of the Assistant United States Attorney's explicit
explanation of how to make a declaration, Berrum has not declared under
penalty of perjury that his filings, in particular, his Local
Rule 56.1 Statement of Uncontested Facts, are true and correct.
Although pro se plaintiffs are entitled to lenient standards,
compliance with procedural rules is required. Jones v. Phipps,
39 F.3d 158, 163 (7th Cir. 1994). Despite being provided twice with the
Local 56.1 notice to pro se litigants opposing summary judgment, Berrum
has failed to support his motion with summary judgment. Moreover, neither
his Local Rule 56.1 Statement of Uncontested Facts nor his motion for
summary judgment can be deemed a declaration or affidavit for they are
not sworn under penalty of perjury. 28 U.S.C. § 1746; Eddings v.
Lefevour, No. 98 C 7968, 2000 WL 146610, at *7 (N.D.Ill. Sept. 29,
2000). Accordingly, Freyberger's Rule 56.1 facts are deemed admitted.
Jupiter Aluminum Corp. v. Home Ins, Co., 225 F.3d 868, 870 n. 3
(7th Cir. 2000). Oates v. Discovery Zone, 116 F.3d 1161, 1167
(7th Cir. 1997); Flaherty v. Gas Research Inst., 31 F.3d 451, 453
(7th Cir. 1994); L.R. 56.1(b)(2)(B).
Nonetheless, because Berrum is pro se, the court will examine both
motions for summary judgment in regard to the two remaining claims of use
of excessive force and involuntary consent to search.
A. Use of Excessive Force
In his motion for summary judgment Freyberger states that when he
entered the Commercial Avenue residence, Berrum was already handcuffed
and lying on the floor. Exhibit A at ¶ 3. Freyberger states he did
not touch Berrum and saw no one strike or in any way threaten Berrum
while at the Commercial Avenue residence. Exhibit A at ¶ 11.
Freyberger states that while at the Chicago Heights Police Department, he
did not speak to or touch Berrum and saw no one else strike or in any way
threaten Berrum. Exhibit A at ¶ 15. Freyberger states that he has
blonde hair and had blonde hair on June 11, 1999, Exhibit A at ¶ 16.
Freyberger states that he never appeared before a magistrate judge in
connection with Berrum's criminal case. Exhibit A at ¶ 17.
In his motion for summary judgment, Berrum states that he was struck
two times by DEA agents in order to force him to consent to a search of
his residences. However, he does not identify Freyberger as one of the
agents who struck him. Berrum states that the agent who struck him at the
Chicago Heights Police Department was also at the hearing on June
12, 1999, Berrum states that Freyberger was present at this hearing.
None of Berrum's statements is supported by the record. Moreover, in
his deposition, Berrum stated that he did not remember who hit him but
that this person had black hair. Exhibit B at 13-14. Even assuming that
Berrum was struck both at his residence on Commercial Avenue and at the
Chicago Heights Police Department assumptions that are not
supported in any way by the record before this court it is clear
that it was not Freyberger who struck him and that Freyberger was not
present when these alleged strikes took place.
The court accordingly grants Freyberger's motion for summary judgment
in regard to the claim of excessive force and denies Berrum's motion for
summary judgment in regard to this claim.
B. Involuntary Consent to Search
In his motion for summary judgment, Freyberger details the steps he
took in having Berrum sign the consent-to-search forms. Each statement is
supported by the record. The
exhibits, affidavits, and the like demonstrate that Berrum's
consent was voluntary,
Berrum alleges that he consented only after he was assaulted and that
he feared further assaults. However, Berrum has offered nothing to
support his version of the events other than his own assertions.
Freyberger has also offered into evidence a copy of the brief that
Berrum filed in support of his motion pursuant to Rule 21 section 881 for
"return of property" in United States v, Berrum, 99 CR 432-1.
Exhibit J. In the brief, Berrum wrote: "Incident to his arrest, law
enforcement officers conducted a consensual search of Berrum's
residence." Id at II. Berrum signed the brief. Id at 9.
Berrum argues that this statement is because the brief was prepared by
another inmate. However, Berrum is responsible for briefs and the like
that he files in court. Interestingly, the motion for return of property
was filed on September 19, 2000, after Berrum filed the instant complaint
claiming that the search was illegal.
The court accordingly grants Freyberger's motion for summary judgment
and denies Berrum's motion for summary judgment on Berrum's claim that
his consent to the search was not voluntary.
For the foregoing reasons; the court grants defendant Douglas
Freyberger's motion for summary judgment and denies plaintiff Jose
Berrum's motion for summary judgment. The Clerk is directed to enter
judgment in favor of defendant Douglas Freyberger and against plaintiff
Jose Berrum pursuant to Fed.R. Civ. P.56.
If Berrum wishes to appeal this dismissal, he may file a notice of
appeal with this court within 30 days of the entry of judgment.
Rule 4(a)(4), Fed.R.App.P. If he does so, he will be liable for the $255
appellate filing fee. Unless he is granted leave to proceed in forma
pauperis, he will have to pay the fee immediately. If he cannot do
so, the appeal will be dismissed, but he will remain liable for the fee
and it will be deducted from his inmate trust fund account in
installments. Evans v. Illinois Dept. of Corrections,
150 F.3d 810, 812 (7th Cir. 1998), If this
court finds that appeal is not taken in good faith, and the Court
of Appeals agrees, he will not be permitted to proceed in forma
pauperis and pay the fee in installments, but will have to pay the
fee immediately or the appeal will be dismissed. 28 U.S.C. § 1915(a)(3).
To avoid a finding that the appeal is not taken in good
faith, a motion to proceed in forma pauperis on appeal should
explain the grounds for the appeal. See Hyche v. Christensen,
170 F.3d 769, 771 (7th Cir. 1999); Fed.R.App.P. 24(a)(1)(C).
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