The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Village of Villa
Park's, James Cihak's ("Cihak"), and Arthur Stillwell's
("Stillwell") motion for summary judgment. For the reasons set
forth below, we grant the motion in part and deny the motion in
On September 15, 2000, Plaintiff Joseph Loveday ("Loveday") was
intoxicated at his residence. Loveday's wife, Lynne Loveday
("Lynne"), left the home with three of their four children because she feared for the
safety of her children. After reaching her parents' home, Lynne
called the Villa Park police department, informed the police that
her husband was intoxicated, and asked them if they would take
her other child, Trevor, out of her residence. According to
Loveday, the police then asked Lynne if Loveday was dangerous, to
which she replied that he was not, and that he had no weapons.
The police instructed Lynne to meet them at the Loveday
residence, which she then did.
Shortly after Lynne returned to the Loveday residence, Officer
Cihak of the Villa Park police department arrived. Loveday
weighed between 250 and 300 pounds and was approximately six
feet, two inches tall. Officer Cihak weighed approximately 195
pounds, and was six feet tall. Loveday admits that he was
intoxicated when Cihak arrived at his house and admits that he
swore at Cihak and told him to leave his property. Loveday
acknowledges that Cihak told him to calm down and that Loveday
again swore at Cihak. Cihak then pushed Loveday backward. Cihak
claims that he did so because he feared for his safety and he
wanted to create more space between himself and Loveday. Loveday
claims that he pushed back in self-defense. A scuffle ensued.
Loveday attempted to get away from Cihak and when Loveday
eventually detached himself from Cihak, he ran into his house.
Loveday admits that as he ran into his house he said to Cihak:
"Boy, are you in trouble." Loveday claims that he made the remark
because he was intending to call the police sergeant and complain
about Cihak. Cihak chased Loveday into his home and subdued him. According to Loveday, Cihak pinned him to
the ground by placing his knees in Loveday's back. Loveday
contends that Cihak pinned him down so that he could not move his
arms and that Cihak sprayed Loveday with pepper-spray because
Loveday would not extend his hands for Cihak's handcuffs. Cihak
contends that he used pepper-spray because Loveday was resisting
arrest by refusing to extend his arms.
Stillwell arrived on the scene when Cihak had Loveday pinned to
the ground. Loveday contends that Stillwell "kneed Plaintiff
Loveday in the ribs" apparently while Cihak "got off Plaintiff
Loveday's back." (SAF 60). Loveday was arrested and taken to the
police station. Loveday also contends that while at the station
he swore in Cihak's presence and Cihak pushed his head against a
Loveday was charged with aggravated assault and resisting
arrest. In Illinois state court, the jury found Loveday not
guilty of aggravated assault, but guilty of resisting arrest by a
peace officer. Loveday then brought the current three-count
complaint against Defendants Village of Villa Park, Cihak, and
Stillwell. The complaint contains a 42 U.S.C. § 1983 ("Section
1983") unreasonable use of force claim against all Defendants
(Count I), a Section 1983 arrest without probable cause claim
against Cihak and Stillwell (Count II), and an Illinois common
law claim of malicious prosecution claim against Cihak (Count
III). LEGAL STANDARD
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 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. 2000).
Loveday has brought an excessive force claim against the
Village of Villa Park. Loveday indicated in his answer to the
instant motion that he is not opposing summary judgment for
Defendant Village of Villa Park. (Ans. 2). Therefore, we grant
the Village of Villa Park's motion for summary judgment.
Cihak and Stillwell argue that they are entitled to qualified
immunity. Law enforcement officers are entitled to "qualified
immunity for conduct performed within the scope of their official
duties." Dunn v. City of Elgin, 347 F.3d 641, 648 (7th Cir.
2003). However, officers are not entitled to qualified immunity
"if the plaintiff has shown a violation of h[is] constitutional
rights, and . . . those constitutional rights were clearly
established at the time of the violation, `such that a reasonable
official would understand that what he was doing violates those
rights.'" Id. (quoting in part Morrell v. Mock,
270 F.3d 1090, 1094 (7th Cir. 2001)).
The defense of qualified immunity is an affirmative defense to
Section 1983 claims. Gossmeyer v. McDonald, 128 F.3d 481, 495
(7th Cir. 1997). A defendant is required to "set forth affirmatively accord and satisfaction,
arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure of
consideration, fraud, illegality, injury by fellow servant,
laches, license, payment, release, res judicata, statute of
frauds, statute of limitations, waiver, and any other matter
constituting an avoidance or affirmative defense . . ."
Fed.R.Civ. P. 8(c). The defense can be raised in the answer to the
complaint or in a motion to dismiss. Fed.R. Civ. P. 8(b) & (c);
Gossmeyer, 128 F.3d at 495; See Lanigan v. Village of East
Hazel Crest, Illinois, 110 F.3d 467, 471 (7th Cir. 1997)
(stating that "[q]ualified immunity is an affirmative defense
which must be pleaded."). A Defendant waives the affirmative
defense of qualified immunity if the Defendant fails to assert
the defense when Defendants have the opportunity to do so at any
stage of the proceedings. Maul v. Constan, 928 F.2d 784, 785-87
(7th Cir. 1991). In this action neither Cihak nor Stillwell
raised the defense of qualified immunity in their answer to the
complaint and neither filed a motion to dismiss. Defendants first
raise the defense in their motion for summary judgment. Loveday
argues that Defendants failed to raise the defense in a timely
fashion and Defendants' only response in their reply brief is
that "Defendants ...