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April 29, 2004.

CITY OF CHICAGO, et al., Defendants

The opinion of the court was delivered by: JAMES ZAGEL, District Judge


Factual Background

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 discipline.

  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 ...

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