The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants Robert Meyers'
("Meyers") and Jose Gomez's ("Gomez") joint motion for summary judgment
and on Plaintiff's motion to strike portions of the officers' 56.1
statement of facts. For the reasons stated below we grant the motion for
summary judgment and deny the motion the strike.
On July 19, 2000 near 2820 West Cortland in Chicago, Illinois, an
occupant of a gold colored vehicle fired shots intended for the occupants
of a beige colored van. The shooter missed his target and a twelve year
old girl was shot and killed.
Witnesses described the shooter as a male Hispanic, Defendants Myers
and Gomez are partners on the Chicago police force. The officers learned
of the shooting and learned from another officer that the shooting might
have involved the Latin Kings and YLO Cobras gangs. Gomez learned from
another source that it was the Cobras shooting at the Latin Kings. Myers
and Gomez received a tip that a girl named BeBe was a witness at the
shooting. The officers spoke to BeBe and she indicated that a YLO Cobra
with the nickname of JoJo had done the shooting. Myers claims that he
knew that Plaintiff Joseph Lopez ("Lopez") was nicknamed JoJo. Myers
claims that at a previous meeting on the street that Lopez admitted that
he belonged to the Cobras and that his nickname was JoJo. On July 20,
2000 the officers brought BeBe into the police station and she gave a
description of JoJo as 5'8" to 5"9' tall and approximately 150 pounds.
She also indicated that he was thin and medium to light skinned. Myers
claims that the physical description of JoJo matched his recollection of
the person he knew as Joseph Lopez. BeBe was later brought to the station
and interviewed by Detective Delucia. BeBe successfully picked Lopez out
of a photo lineup. Lopez was arrested the day after the shooting. In the
squad car on the way to the police station Gomez admits to punching
Lopez. Lopez has brought a nine count complaint based upon
42 U.S.C. § 1983 ("Section 1983") and state law actions. Gomez and Myers have
moved for summary judgment on Counts V, VI, and VII of Lopez's second
amended complaint and Meyers has moved for summary judgment on Count III
of the second amended complaint.
Summary judgment is appropriate when the record reveals that there is
no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c). In seeking a grant
of summary judgment the moving party must identify "those portions of
`the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,' which it believes
demonstrate the absence of a genuine issue of material fact." Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
56(c)). This initial burden may be satisfied by presenting specific
evidence on a particular issue or by pointing out "an absence of evidence
to support the non moving party's case." Id. at 325.
Once the movant has met this burden, the non moving party cannot
simply rest on the allegations or denials in the pleadings, but, "by
affidavits or as otherwise provided for in [Rule 56], must set forth
specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a motion for summary
judgment is not simply a "metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists
when "the evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596,
599 (7th Cir. 2000). The court must consider the record as a whole,
in a light most favorable to the non moving party, and draw all
reasonable inferences that
favor the non moving party. Anderson, 477 U.S. at
255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir.
I. Unlawful Detention Claim
If defendant officers can show probable cause it is an absolute bar to
a Section 1983 claim. Kelley v. Myler, 149 F.3d 641, 646 (7th
Cir. 1998). In determining whether officers hail probable cause the court
must consider the facts and circumstances known to the officers at the
time of the arrest. Beauchamp v. City of Nobelsville,
320 F.3d 733, 743 (7th Cir. 2003). In this case there is overwhelming evidence
that the defendant officers had probable cause. The officers had
information that the shooting was done by the Cobras. They had a
description of the shooter as a Hispanic male. They had spoken to BeBe
and she told them that JoJo was the shooter and gave a description that
matched Lopez's description. Myers knew from previous encounters with
Lopez what he looked like and he knew that Lopez was a Cobra and went by
the nickname JoJo. BeBe picked Lopez out of a photo lineup at the police
station. It is undeniably clear that Gomez and Lopez had probable cause.
There is no evidence at all that Myers and Gomez were responsible for the
extended detention of Lopez once he was at the station. See Gentry v,
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)(stating that a defendant
must have personal involvement in the alleged wrongful conduct or turn a
blind eye to be held
liable under Section 1983). Therefore we grant summary judgment on
the Section 1983 unlawful detention claim.
II. Alleged Police Torture
Lopez claims that he was shackled to the wall at the police station in
order to coerce him into confessing to the shooting. There is absolutely
no evidence in this case that Myers or Gomez had any responsibility for
or control over the manner in which Lopez was detained during his
detention. Therefore we grant Gomez' and Myers' motion for summary
judgment on Count VII.
III. Excessive Force Claim
Myers moves for summary judgment on Count III. For a Section 1983 claim
based on an officer's failure to intervene to prevent excessive force a
plaintiff must show that the officer failing to intervene had reason to
know that excessive force was being used and had a reasonable opportunity
to step in and prevent the excessive force. Yang v. Hardin,
37 F.3d 282, 285 (7th Cir. 1994). In this case the facts show that the punch
by Gomez was sudden and there was only one punch. There is no evidence
for a reasonable trier of fact to ...