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August 16, 2004.

VILLAGE OF VILLA PARK, an Illinois municipal corporation, JAMES CIHAK, in his individual capacity, and ARTHUR STILLWELL, in his individual capacity, Defendants.

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 part.


  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 concrete wall.

  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. ยง 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).


  I. Village of Villa Park

  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.

  II. Qualified Immunity

  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 ...

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