The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
This case is before the Court on the motion of Defendants,
Officer Joseph Boyle, Officer Patrick Purtill, Officer Jim
Dolehide, Officer David Ribaldo, Sergeant Thomas Kush and Officer
Brian Gallagher for partial summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure. For the following
reasons, the motion is granted in part and denied in part.
Plaintiff s pro se complaint alleges four separate incidents
of excessive force and failure to intervene against the Defendant
Cook County Sheriff Deputies. Plaintiff was a pretrial detainee
at the Cook County Jail on the charge of first degree murder in
November 2000. On November 8, 2000, Plaintiff was being escorted
with other inmates to a court appearance. During the walk to
court, Plaintiff was stopped for a routine search of his person
by Cook County Sheriff's deputies. There was a disagreement
between Plaintiff and Defendant Officer Boyle that resulted in
Plaintiff's file folder containing his court papers being thrown
to the ground. Plaintiff and Boyle exchanged words about who
should pick up the papers. During this confrontation, Defendant deputies Ribaldo and
Dolehide were standing in the same hallway several feet away from
Plaintiff and Boyle. Plaintiff claims that Defendant Boyle
suddenly struck him in the groin with his knee, causing Plaintiff
to drop to the ground. Plaintiff further claims that Defendants
Dolehide and Ribaldo, who were standing nearby, failed to
intervene to stop Boyle. According to Plaintiff, Defendant Sgt.
Kush came on to the scene and asked Plaintiff where he wished to
go, instead of summoning medical help. A short time later,
paramedics from Cermak Health Services, the jail health facility,
arrived to care for Plaintiff. Plaintiff was taken first to
Cermak Health Services, and then to Cook County Hospital where he
was treated for a blood clot in his testicle.
On November 13, 2000, Plaintiff was returning to court when he
was allegedly stopped and asked by Officer Boyle about his
physical condition. Plaintiff claims that during this
questioning, Boyle again struck him in the groin with his knee.
Plaintiff claims that deputies Dolehide and Ribaldo and Sgt. Kush
were standing nearby and failed to intervene.
On February 16, 2001, Defendant Deputy Purtill was performing a
routine search of Plaintiff's clothing in preparation for court.
Plaintiff alleges that Purtill took Plaintiff's shoes and struck
him in the side of the head several times during the search.
Plaintiff claims that Defendant Gallagher was sitting nearby and
laughed rather than help him or intervene. Plaintiff was arrested
and charged with battery to Officer Purtill for striking Purtill
in the head with the shoes.
Finally, on April 26, 2001, Officer Purtill testified about the
February 16 incident at the sentencing hearing following
Plaintiff's murder conviction. After the court sentenced
Plaintiff to 35 years in prison, Plaintiff left the courtroom,
escorted by Defendant Officer Dolehide. Plaintiff claims that as
he walked from the courtroom to the lockup area for the
courtroom, Dolehide pushed him head first into a closed door, causing the door to
open quickly, striking a female detainee. Plaintiff claims that
Defendants Boyle, Purtill and Ribaldo, who were in the courtroom
during the sentencing hearing, followed Dolehide into the lockup
area and failed to prevent Dolehide from pushing him against the
door. Plaintiff alleges he suffered a headache as a result of
hitting the door.
Plaintiff's complaint alleges violations under the Civil Rights
Act, 42 U.S.C. Section 1983. Plaintiff names as Defendants six
individuals who allegedly either used excessive force against him
or failed to intervene to prevent the excessive force.
Summary judgment is appropriate when the parties' evidentiary
materials show that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The Court must construe all allegations and favorable
inferences in the light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
However, in order to create a question of fact, a party
responding to a summary judgment motion must set forth specific
facts showing that there is a genuine issue of material fact for
trial. LINC Financial Corp. v. Onwuteaka, 129 F.3d 917, 920
(7th Cir. 1997).
In support of their motion for summary judgment, Defendants
Boyle, Purtill, Dolehide, Ribaldo, Kush and Gallagher argue that
the facts established by Plaintiff are not sufficient to support
his claim of failure to intervene or cruel and unusual punishment
in violation of the Eighth Amendment. Specifically, they claim
that Plaintiff fails to establish that certain Defendants had a
reasonable opportunity to intervene and prevent the alleged
excessive force and that two of the incidents did not result in the "unnecessary and
wanton infliction of pain" on Plaintiff because the use of force
was de minimis.
I. Opportunity To Intervene And Prevent The Excessive Force
A law enforcement officer can be held liable under § 1983 for
failure to intervene when he fails to stop other officers who
"summarily punish" another in his presence. Byrd v. Brishke,
466 F. 2d 6, 13 (7th Cir. 1972). In order for an officer to
be held liable for failure to intervene in for such an omission,
Plaintiff must show that "the officer had reason to know: (1)
that excessive force was being used, (2) that a citizen has been
unjustifiably arrested (for unlawful seizure cases) (3) that any
constitutional violation has been committed by a law enforcement
official; and the officer had a realistic opportunity to
intervene to prevent the harm from ...