United States District Court, N.D. Illinois
April 29, 2004.
LEANDER CARTER, Plaintiff,
CITY OF CHICAGO, et al., Defendants
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Leander Carter has brought claims, under 42 U.S.C. § 1983,
against the City of Chicago and Officers Whitehead, Wessel, Garcia,
Stahmer, and Farr for incidents that took place during and after his
arrest. Carter alleges that the Officers used excessive force during and
after his arrest and arrested him without probable cause. Carter alleges
that the City perpetuates customs that permit officers to take such
actions and to violate subjects' constitutional rights without fear of
The facts surrounding Carter's arrest and detention are as follows. On
the evening of July 10, 2000, Officers Garcia and Wessel responded to a
call for assistance from an alley off 91st street. Police officers had
found Basil McClaine, who had been kidnaped and threatened, handcuffed in
a Chevy Blazer. After arriving at the alley, Officers Wessel and Garcia
met up with Officer Whitehead, who was on foot behind a residence at 9146
Dauphin Street. Officer Wessel let Officer Garcia out of their red,
unmarked squad car and drove to the front of the residence where he saw
Carter exiting the front door. Officer Wessel was wearing plain clothes,
a black bulletproof vest, and his police star. Officer Wessel got out of
his car, identified himself, and yelled at Carter to stop. Carter claims that he did not see Officer
Wessel's badge and did not hear Officer Wessel identify himself as a
police officer. Carter ran around the house into the backyard toward
Officers Whitehead and Garcia. Officers Whitehead and Garcia identified
themselves and yelled at Carter to stop. Carter claims that he stopped,
put his hands up in the air, turned slightly toward the officers, and
dropped the black cell phone he was carrying. The Officers, however,
claim that Carter continued to move toward them with a black object in
his hand, which they believed was a weapon. Officer Whitehead shot Carter
in the leg and Carter fell to the ground. Carter was then handcuffed by
Officer Garcia who allegedly pressed his foot against Carter's neck.
After his arrest, Carter was taken to the Blue Island police station
where he was detained. Carter alleges that during his detention either
Officer Stahmer or Farr called him a "nigger," punched him in the groin,
and threatened him with further use offeree if he did not participate in
a lineup. Officers Farr and Stahmer, however, claim they never
interrogated Carter and were never alone with Carter. According to the
Officers, the only contact they had with Carter was in giving him
instructions during a lineup held on July 11, 2000 and, in Farr's case,
asking Carter some questions during "booking." Officer Frank
Podbielniak, the officer in charge of the investigation, claims that it
was he and Detective Douglas Hoglund who attempted to interview Carter
before the lineup, not Officers Farr and Stahmer. Officer Podbielniak
attests that Officer Farr and Stahmer were never alone with Carter and
did not question Carter outside the lineup and booking. Analysis
The City and the Officers now claim they are entitled to summary
judgment on each of Carter's claims. Summary judgment is proper when
there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322-323 (1986). In determining whether any genuine issue of
material fact exists, I must construe all facts in the light most
favorable to the non-moving party and draw all reasonable and justifiable
inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). The burden is on the moving party to identify portions of the
pleadings, depositions, and other discovery-related materials that
demonstrate an absence of a genuine issue of material fact. Celotex, 477
U.S. at 323, The burden then shifts to the non-moving party to "set forth
specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(c). Merely alleging a factual dispute is insufficient to
defeat a motion for summary judgment. Samuels v. Wilder, 871 F.2d 1346,
1349 (7th Cir. 1989). Instead, the non-moving party must set forth
specific facts, through affidavits or other materials, that demonstrate
disputed material facts. Anderson, 477 U.S. at 256. A genuine issue of
fact exists only when, based on the record as a whole, a reasonable jury
could find for the non-movant Pipitone v. United States, 180 F.3d 859,
861 (7th Cir. 1999).
I. Officers Whitehead. Garcia, and Wessel
The Officers argue they are entitled to summary judgment on Carter's §
1983 claims of use of excessive force and false arrest for the following
reasons: (A) the claims are barred by Heck v. Humphrey, (B) the claims
are barred by collateral estoppel, (C) the claims are without merit, and
(D) they are entitled to qualified immunity. A. Heck v. Humphrey
The Officers argue that Carter's § 1983 claims of excessive use of
force and false arrest are barred by Heck v. Humphrey, 512 U.S. 477
(1994) because findings on those claims would invalidate Carter's
conviction and sentence. In Heck the Supreme Court held that:
"in order to recover damages for . . . harm caused by
actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus."
Id. at 486-7.
It is important to note, however, that Heck is not an automatic bar
against all § 1983 claims. "If the district court determines that the
plaintiff's [§ 1983] action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff,
the action should be allowed to proceed." Id. at 487. The Seventh Circuit
has held that a false arrest claim "does not inevitably undermine a
conviction" because "one can have a successful wrongful arrest claim and
still have a perfectly valid conviction." Booker v. Ward, 94 F.3d 1052,
1056 (7th Cir. 1996).
Carter's conviction was based on evidence that included witness
testimony, the victims' identification of Carter in a photographic array,
a lineup, and in court as well as his proximity, at the time of his
arrest, to the victim, the other defendants, and the instrumentalities of
the crime. The Officers do not indicate what, if any, pieces of evidence
would be deemed inadmissable if Carter's § 1983 claim successful.
Worst case, I think it is possible that the lineup identification and the
fact that Carter fled from the police could become inadmissible. Given
the weight of the evidence presented at trial, the exclusion of this
evidence would not have affected Carter's conviction. Thus, I find Carter's § 1983 claims for false arrest and use
of excessive force are not barred by Heck.
B. Collateral Estoppel
The Officers argue that Carter's false arrest and excessive use of
force claims are barred by collateral estoppel because they were resolved
in his criminal case. "The doctrine of collateral estoppel bars the trial
of an issue that has been fairly and completely resolved in a prior
proceeding." Talarico. v. Dunlap, 281 111. App.3d 662, 665 (III App. Ct.
1996). After the close of his criminal trial, Carter brought a Motion for
a New Trial before Judge Thomas Panichi in which he alleged, among other
things, a lack of probable cause for his arrest. On November 8, 2001,
Judge Panichi found all of Carter's claims, including the lack of
probable cause claim, "to be without merit." (Def. Ex. P at 56). Since
Carter's false arrest claim was adjudicated and resolved in his
underlying criminal case, I find his current § 1983 claim for false
arrest is barred by collateral estoppel.
Unlike the false arrest claim, the use of excessive force claim was not
directly determined in the criminal case. Nonetheless, the Officers argue
that it is also barred because it is "piggybacked" on Carter's
allegations that the Officers lacked probable cause to arrest him.
However, I disagree. A close relationship to a previously adjudicated
claim is not enough to confer collateral estoppel. Thus, I find Carter's
§ 1983 use of excessive force claim is not precluded by collateral
C. The Merits
The Officers argue they are entitled to summary judgment on the merits
of Carter's false arrest and excessive use offeree claims. In order to
succeed with a § 1983 claim for false arrest, a plaintiff must show that the arrest was made without probable cause.
Booker v. Ward, 94 F.3d 1052, 1057 (7th Cir. 1996). "The existence of
probable cause for an arrest is an absolute bar to a § 1983 claim for
unlawful arrest." Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir.
1989). When officers are working in concert on an investigation, probable
cause for an arrest may be established by information possessed by any of
those officers. People v. Holveck, 524 N.E.2d 1073 (III. App. Ct. 1988).
While Carter claims that he was arrested without probable cause, all
the evidence is to the contrary. Carter's proximity to the victim, the
instrumentalities of the crime, and his co-conspirators created probable
cause for his arrest. One officer saw the Blazer attempt to pull into
Carter's garage. Officer Wessel saw Carter exiting his house. Carter ran
from Officer Wessel carrying what Officer Wessel believed was a gun.
While Officers Whitehead and Garcia were placing Carter under arrest,
Officer Wessel found Theodore Parish, who was wearing a police scanner,
and a gun in the bushes a few feet away from Carter's backyard.
Additionally, McClaine identified Carter as his kidnapper. These
circumstances, which were likely considered by Judge Panichi, created
sufficient probable cause for Carter's arrest. Thus, the Officers are
entitled to summary judgment on Carter's false arrest claim.
Carter's claims for use of excessive force are judged by the Fourth
Amendment's objectively reasonable standard. Graham v. Connor,
490 U.S. 386, 396 (1989). Whether the force used is "objectively
reasonable" depends on the facts and circumstances in each case. Id.
Generally speaking, courts look at the "severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the
officers or others, and whether [the suspect] is actively resisting
arrest or attempting to evade arrest by flight." In this case, there is
some dispute over the events that occurred after Carter ran to the backyard. Officers
Whitehead and Garcia claim that Carter did not stop running toward them
even after they announced themselves as police officers and told him to
do so. Carter, on the other hand, claims that he stopped, dropped the
cell phone, put his hands in the air, and stood in front of the officers
for between ten and fifteen seconds. The differences in the Officers' and
Carter's recollections of events leading up to the shooting create a
genuine issue of material fact., making summary judgment inappropriate at
D. Qualified Immunity
Finally, the Officers argue that they are entitled to qualified
immunity. Under the doctrine of qualified immunity, public officials
"performing discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
(citations omitted). As the Supreme Court has explained "[a qualified
immunity defense] provides ample protection to all but the plainly
incompetent or those who knowingly violate the law," Malley v. Briggs,
475 U.S. 335, 341 (1986).
Qualified immunity shields the Officers from liability from Carter's
claims for false arrest. As discussed above, the Officers had sufficient
probable cause to arrest Carter. Since the arrest was well within the
limits of the law, the Officers are entitled to qualified immunity.
Qualified immunity does not, however, shield the Officers from Carter's
claims for use of excessive force. Unlike probable cause for the arrest,
the reasonableness offeree used during Carter's arrest has not been
established. If Officers Whitehead and Garcia knowingly used an unreasonable amount of force, as is claimed by Carter, they are not
entitled to qualified immunity.
II. Officers Farr and Stahmer
The Officers argue that they are entitled to summary judgment on
Carter's § 1983 claims for use of excessive force and intimidation
because Carter has not shown they were personally involved in Carter's
interrogation. Generally speaking, liability under § 1983 must be based
on personal responsibility. Schultz v. Baumgart, 738 F.2d 231, 238 (7th
Cir. 1984). "An individual cannot be held liable in a § 1983 action
unless he caused or participated in an alleged constitutional
deprivation." Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.
1983). The Officers argue that Carter cannot show they were personally
involved in his alleged mistreatment. The Officers claim that they were
never involved in interrogating Carter and were never alone with Carter.
Officer Podbielniak, the officer in charge of the investigation, confirms
these Officers' statements, However, Carter claims in his Complaint,
Deposition, and Affidavit that it was either Officer Farr or Stahmer who
threatened him, punched him in the groin, and called him a "nigger."
Carter's assertions are sufficient to create a genuine issue of material
fact on this issue.
The Officers also argue that summary judgment is appropriate because
Carter has failed to comply with Local Rule 56.1. The Officers point out
that Carter's response to their Statement of Undisputed Facts
affirmatively sets forth facts and fails to reference specific parts of
the record or supporting affidavits. Because of these deficiencies, the
Officers claim that their Statement of Undisputed Facts should be
accepted as true. However, district courts must construe pro se pleadings
liberally. Haines v, Kerner, 404 U.S. 519 (1972). "The essence of liberal construction is to give a pro se plaintiff a break when, although
he stumbles on a technicality, his pleading is otherwise understandable."
Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998). I have reviewed all
of Carter's filings with respect to this motion and find them to be
sufficiently understandable. Carter has gone through the Officers'
Undisputed Facts and responded to each one stating that he admits,
denies, or does not know. While he does not reference the record or
affidavits in his denials, he clearly and succinctly states the reason
for his denial. Additionally, the denials are generally consistent with
the record and with the supporting affidavits. For these reasons, I find
that summary judgment on Carter's claims for use of excessive force is
III. The City of Chicago
In his Complaint, Carter alleges that the City has allowed customs and
practices to exist that permitted the police officers to violate his
constitutional rights. Specifically, Carter alleges that the City failed
to adequately train its officers, allowed its officers to engage in
misconduct without fear of punishment, and allowed its officers to
maintain a "code of silence." The City claims it is entitled to summary
judgment on this claim because Carter cannot and has not met the
requirements of Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) and
its offspring. In Monell, the Supreme Court held that a local government
could only be held liable for the acts of its employees or agents when a
policy or custom, which was propagated by lawmakers or officials, caused
the injury. Id. at 694. To satisfy Monell, the plaintiff must show that
he sustained a constitutional injury and that the injury was caused by an
official policy of the municipality. See Thompson v. Boggs, 33 F.3d 847,
859 (7th Cir. 1994); Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986);
City of Canton v. Harris, 489 U.S. 378 (1989). Carter has presented no evidence tending to show that the City
promulgated customs or policies that allowed the Officers to violate
subjects' rights as required by Monell. Other than Carter's own
assertions, there is no evidence in the record that the City failed to
train or discipline its employees. The City, on the other hand, has
presented evidence that Chicago Police officers are taught the
requirements for use of deadly force and are trained in the use of such
force. Additionally, the Rules and Regulations promulgated by the City
expressly prohibit police officers from violating any law and state that
any misconduct will be investigated. The City has produced evidence that
those investigations have led it to discipline officers. Carter has
presented no evidence to the contrary. In fact, Carter even states in his
own Complaint that:
an Office of Professional Standards investigation . .
. was held on July 11, 2000 at 6:15am where several
Chicago Police Department, Bureau of Operational
Services, and Office of Professional Standards
personnel attended to discuss facts relevant to
Plaintiffs being shot and arrested. (P. Complaint at
The fact that the City investigated the Officers' use offeree in
Carter's own arrest directly contradicts Carter's allegations that the
City has a policy of allowing its officers to indiscriminately and
without fear of discipline violate suspects' rights.
There is also no evidence in the record, other than Carter's own
assertions, to support Carter's claim that there exists a "code of
silence" within the Chicago police force. The City has presented evidence
that it conducts investigations during which it requires officers to be
truthful and forthcoming with evidence of misconduct. Carter bases his
"code of silence" assertion on statements made by his parents and uncle,
who are former Chicago police officers. Carter, however, refuses to
supply any contact information concerning his parents or his uncle and
has not submitted any admissible evidence concerning these statements. Additionally, § 1983 usually requires that plaintiffs plead more than a
single unconstitutional incident to state a claim based on municipal
policy. Calusinski v. Kruger, 24 F.3d 931, 936 (7th Cir. 1994).
Generally, isolated acts committed by non-policymaking officials do not
amount to a "custom," which "implies a habitual practice or a course of
action that characteristically is repeated under like circumstances."
Sims v. Mulcahy, 902 F.2d 524, 542 (7th Cir. 1990). Carter has not
produced any evidence to suggest that the failure to train, failure to
discipline, or the "code of silence" was widespread. To support his
claims, Carter points to two cases-Mearday v. City of Chicago,
196 F. Supp.2d 700 (N.D. III. 2002) and Latanya Haggerty's case.
However, neither of these cases work to support Carter's claims. In
Mearday, the court found that the officer had acted in an objectively
reasonable manner, Id at 715, and in Latanya Haggerty's case the officers
involved were disciplined by the police force, Therefore, I find summary
judgment on Carter's § 1983 claim against the City is appropriate.
For the reasons stated herein, the Defendants' Motions for Summary
Judgment are GRANTED as to Carter's claims against the City and as to
Carter's claim of false arrest against Officers Whitehead, Garcia, and
Wessel. Defendants' Motions for Summary Judgment are DENIED as to
Carter's claims of use of excessive force against Officers Whitehead,
Garcia, Stahmer, and Farr.
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