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August 4, 2004.

VILLAGE OF BRIDGEVIEW, et al. Defendants.

The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge


Plaintiff Irene Manzella ("Manzella") has brought a civil rights claim under 42 U.S.C. § 1983 against the Village of Bridgeview (the "Village"), Bridgeview police officers Kevin Jankist and James Gilman, and Deputy Chief Ken Labuda, alleging that defendants deprived her of her constitutional rights by arresting her without probable cause and subjecting her to excessive force during the arrest. Manzella has also brought a pendant state law claim against Jankist, Gilman and Labuda for Battery. Defendants have moved for summary judgment, arguing that the undisputed facts establish as a matter of law that (1) the arresting officers had probable cause to arrest Manzella, (2) the arresting officers used a reasonable amount of force in executing that arrest, and (3) plaintiff has failed to provide any support for her Monell claim against the Village. For the reasons stated below, defendants' motion for summary judgment is granted in part and denied in part.


  This action arises out of a domestic dispute between Manzella's son, Nicholas Manzella ("Nicholas"), and his former live-in girlfriend, Sherri Bosi. Within a 24-hour period, Bridgeview police officers responded to three calls for assistance at the couple's apartment at 7026 W. 86th Street in Bridgeview, Illinois. The first call came on April 26, 2001, when Bosi contacted the Bridgeview Police Department to make a domestic violence complaint against Nicholas. Bosi claimed that Nicholas hit her during an argument. Officers responded to the call at the couple's apartment and placed Nicholas under arrest. Later that day, Bosi signed a complaint of battery and filled out the necessary paperwork to obtain an emergency order of protection against Nicholas.

  The following morning, on April 27, 2001, the Circuit Court of Cook County conducted a bond hearing on the charges against Nicholas. It is undisputed that Manzella was present at that hearing. At the hearing, the Circuit Court entered a protective order against Nicholas which prohibited him from having any contact with Bosi by any means, including "in person, by phone, mail, email or third party." The court also ordered that Bosi had 48 hours to remove her possessions from the apartment. To comply with that order, Bosi immediately hired movers and returned to the apartment to pack her things.

  That afternoon, Nicholas was released on bond and, despite the order of protection, returned to the couple's apartment to retrieve some belongings. When Nicholas arrived, Bosi called police for a second time. At approximately 1:30 that afternoon, defendant Jankist and another officer were dispatched to the apartment to "maintain the peace" between Nicholas and Bosi while Nicholas gathered his possessions. Although Nicholas and Bosi screamed at each other during this encounter, Jankist and his fellow officer were able to keep the couple separated. During this second confrontation, Bosi held the order of protection against Nicholas in her hand and told Jankist that Nicholas was not allowed to be there. Jankist did not read the order because he was focused on protecting the safety of everyone at the residence. Jankist remained at the apartment for at least 30 minutes until Nicholas left with his belongings. Approximately one hour later, Jankist received yet another call to respond to Bosi's residence. The police dispatcher directed Jankist to respond to a "violation of an order of protection" at the apartment. This time, Bosi called the police because Manzella had arrived at the apartment to confront Bosi about money Bosi allegedly owed Nicholas. Jankist testified that, as he approached the apartment, he heard a lot of "yelling and screaming" coming from inside the apartment building. When Jankist arrived at the unit, he observed Manzella standing in the hallway outside of Bosi's apartment yelling at Bosi "[w]here's my son's money!" He heard Bosi tell Manzella "[g]et out of here. You're not supposed to be here." Jankist described the conversation between Bosi and Manzella as "combative." Bosi told the officers that she had an order of protection and that Manzella was not allowed to be there.*fn2

  Defendant Gilman arrived at the scene at some point during this discussion and went inside the apartment to speak with Bosi. Bosi handed the order of protection to Gilman and asked him to get Manzella to leave the building. Gilman returned to the hallway and asked Manzella to provide identification. Manzella refused to provide identification and refused the officers' requests that she leave the premises. Jankist warned Manzella that if she did not comply, she would be placed under arrest. Manzella again refused to leave. Finally, the officers advised Manzella that she was under arrest and attempted to handcuff her.

  It is undisputed that when Jankist and Gilman attempted to handcuff Manzella she did not cooperate. She brought her arms up to her chest and refused to be handcuffed. Manzella claims that she brought her arms up to her chest to protect a chest bruise that she had suffered in an unrelated incident. The arresting officers asked Manzella to relax her arms but she refused to comply. When Manzella failed to place her hands behind her back, Jankist forced Manzella's hands into position so that he could apply the handcuffs. Jankist testified that Manzella resisted his efforts and that he used "as little force as possible" to overcome that resistence. Manzella testified, on the other hand, that Jankist used "extreme force" is this maneuver and injured her shoulder. She also claimed that she yelled out that she had an injury and could not be handcuffed behind her back. Bosi testified that, during the arrest, she returned to the doorway of her apartment and heard Bosi yell "Ouch, you are hurting me." Bosi heard Manzella tell the arresting officers that her shoulder hurt and they should handcuff her in front rather than behind her back. Bosi saw a look of pain on Manzella's face and thought that things were "out of control." After successfully handcuffing Manzella, officers led her out of the apartment building. Manzella testified that officers treated her "roughly" as they led her to their patrol car.

  Gary Mazur, a friend of Manzella's who had driven Manzella to Bosi's apartment, testified that he was waiting outside of the apartment building when he saw police officers escorting Manzella towards their patrol car. Mazur testified that (a) one of the officers "dragged" Manzella towards the patrol car, (b) Manzella fell on the way to the car and the escorting officer immediately yanked her to her feet, (c) Manzella yelled at the officer "you're hurting me" and "this isn't necessary," and (d) the escorting officer "literally threw [Manzella]" into the patrol car. Defendants dispute Mazur's testimony, claiming that they carefully placed Manzella in the back of the patrol car. Jankist testified that shortly before Manzella was placed in the car, he removed the handcuffs and reapplied the cuffs with Manzella's arms in front of her body.

  Defendants claim that defendant Labuda was not present at the scene of Manzella's arrest, Manzella testified that she could not remember whether Labuda was there or not.

  After the arrest, Jankist charged Manzella with violation of a protective order. Manzella was transported to Oak Lawn Police Department where she was detained overnight so she could attend a bond hearing the following morning. The court dismissed the charges and Manzella was released. ANALYSIS

  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). When considering a motion for summary judgment, the court must view the record and any inferences to be drawn from it in the light most favorable to the party opposing summary judgment. See Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991). The party opposing summary judgment may not rest upon the pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is no genuine issue for trial unless there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id.

  A. Manzella's Claims Against Defendant Gilman

  Defendants argue that all claims against defendant Gilman must be dismissed because Gilman was never served with the complaint. Manzella does not respond to defendants' argument or explain why Gilman was not served. In reviewing the case for potential settlement, Magistrate Judge Bobrick recommended to the court that defendant Gilman be dismissed from the case pursuant to Fed.R.Civ.P. 4(m). Manzella has not provided the court with any reason to deviate from ...

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