United States District Court, N.D. Illinois, Eastern Division
September 29, 2004.
Ronald Smith, Plaintiff,
Officer Joseph Boyle, Officer Patrick Purtill, Officer Brian Gallagher, Officer David Ribaldo, Sgt. Thomas Kush, Jim Dolehide Defendants.
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 occurring. Yang v. Hardin,
37 F.2d 282, 285 (7th Cir. 1994) quoting Anderson v.
Branen, 17 F.3d 552, 556 (2nd Cir. 1994) (parenthetical
information added) (emphasis in original).
A. November 8, 2000 Incident
Plaintiff alleges that Officer Boyle struck him in the groin
during a routine search and that Officers Ribaldo and Dolehide
and Sgt. Kush violated his constitutional rights by failing to
intervene and stop Boyle. Defendants Dolehide, Ribaldo, and Kush
have moved for summary judgment arguing that Plaintiff has failed
to prove that these Defendants had a reasonable opportunity to
intervene and prevent the harm from occurring.
Plaintiff testified at his deposition that he and Officer Boyle
were five or six inches apart when Boyle struck him with Boyle's
knee in his groin. Plaintiff testified that Officer Ribaldo was
five or six feet away down the hallway when Boyle struck him. He
further testified that there were other inmates, as well as other
unidentified officers, between Ribaldo and Boyle at the time Boyle struck Plaintiff. According to Plaintiff, Officer Dolehide
was approximately ten feet from him and Boyle. Plaintiff also
testified that there were other inmates and other unidentified
officers in the hallway between Dolehide and Plaintiff and Boyle
when Boyle struck him. It is uncontroverted that Officer Dolehide
did not even see Boyle strike Plaintiff with his knee. Therefore,
Dolehide certainly could not have prevented Boyle from striking
Plaintiff. Further, discovery has not produced any evidence to
show that Officers Ribaldo or Dolehide had any advance warning
that Plaintiff was in danger of being struck by Boyle.
Sgt. Kush did not see Boyle strike Plaintiff. He did not see
anything happen that he felt required intervention. Kush spoke to
Plaintiff and called for medical help, which arrived at the
courtroom bullpen shortly thereafter.
Based upon the foregoing, we conclude that Plaintiff has not
shown any facts or circumstances to suggest that Dolehide,
Ribaldo or Kush had a reasonable opportunity to intervene and
prevent Boyle from suddenly striking Plaintiff with his knee. The
incident occurred within a couple of seconds, and Ribaldo and
Dolehide were six and ten feet away, respectively, with other
officers and inmates between them and Plaintiff and Boyle.
Moreover, Plaintiff's own testimony shows that Sgt. Kush did not
appear on the scene of the incident until Plaintiff had already
dropped to the ground. There are no facts to show that he a
reasonable opportunity to intervene during Plaintiff's
confrontation with Boyle. Without evidence showing that they had
such an opportunity, Plaintiff's claim of failure to intervene in
violation of his constitutional rights fails.
For these reasons, we grant Defendants Dolehide, Ribaldo and
Kush's motion for summary judgment regarding the November 8, 2000
incident. B. November 13, 2000 Incident
Plaintiff was returning to court on November 13, 2000 when
Officer Boyle allegedly approached him, asked by how he felt, and
again struck him in the groin with his knee. Plaintiff claims
that seven to ten other inmates were walking with him to court
when Boyle approached him. Plaintiff testified at his deposition
that there were other officers around at the time Boyle struck
him, but he does not know their names. Plaintiff testified that
he did not know if Dolehide was present for this incident, but he
knew Dolehide as the regular deputy assigned to Judge Gaughan's
courtroom. Sgt. Kush was not present for the alleged incident of
November 13, 2000. Furthermore, there is no credible evidence
that Ribaldo was present and reasonably could have intervened to
stop the incident.
Therefore, the undisputed evidence shows that Plaintiff has not
proven that Dolehide, Kush or Ribaldo were present at the
November 13, 2000 incident. Therefore, Plaintiff cannot prove
that these Defendants failed to intervene. For these reasons,
Defendants Dolehide, Kush and Ribaldo's motion for summary
judgment is granted as to the November 13, 2000 incident.
C. February 16, 2001 Incident
Plaintiff alleges that on February 16, 2001, Defendant Officer
Purtill struck him in the side of the head with Plaintiff's shoes
during a routine search on his way to court. Plaintiff claims
that Officer Gallagher violated his constitutional rights by
failing to intervene to prevent the alleged abuse. Defendant
Gallagher contends that Plaintiff has failed to demonstrate that
he had a realistic opportunity to prevent the alleged harm from
We find that Plaintiff has not produced evidence to support his
allegations that Defendant Gallagher failed to intervene to
prevent the February 16, 2001 incident. Gallagher did not see Purtill strike Plaintiff, nor did he see Purtill commit any act
that required intervention to prevent harm to Plaintiff.
Therefore, we grant Defendant Gallagher's motion for summary
judgment regarding the February 16, 2001 incident.
D. April 26, 2001 Incident
Plaintiff alleges that on April 26, 2001, Officers Purtill,
Boyle, and Gallagher violated his constitutional rights by
failing to intervene when Officer Dolehide allegedly pushed him
into a door while escorting him to a courtroom lockup. Plaintiff
claims that after his sentencing hearing before Judge Gaughan,
Dolehide was walking him back to the lockup behind the courtroom
and deputies Purtill, Boyle and Gallagher followed them.
Plaintiff did not turn around to look at the officers as he was
escorted back to the lockup, and he does not know how far they
were away from him. Plaintiff testified that when he hit the door
it was a sudden action that he did not have time to prevent.
Plaintiff claims that he had a headache as a result of hitting
the door open.
Based upon the foregoing, the undisputed evidence shows that,
if in fact Officer Dolehide pushed Plaintiff against the swinging
door, it happened suddenly. There is no evidence that Defendants
Purtill, Boyle or Gallagher even saw the incident in question.
Thus, there is simply no evidence to establish that the three
officers had a realistic chance to intervene.
For these reasons, Plaintiff has failed to produce evidence to
show that there is a genuine issue of material fact as to whether
Defendants Boyle, Purtill or Gallagher violated his
constitutional rights through inaction during this incident. They
are, therefore, entitled to summary judgment regarding the April
26, 2001 incident. II. Use Of Force
The Eighth Amendment of the U.S. Constitution prohibits the
"unnecessary and wanton infliction of pain" on prisoners. Hudson
v. McMillian, 503 U.S. 1, 5 (1992). What is necessary to
establish an "unnecessary and wanton infliction of pain" varies
according to the nature of the alleged constitutional violation.
Hudson, 503 U.S., at 5. In excessive force cases, "the core
judicial inquiry" is "whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm." DeWalt v. Carter, 224 F.3d 607
(7th Cir. 2000) (quoting Hudson, 503 U.S. at 6-7.) A court
should examine a variety of factors in conducting this inquiry,
including the need for application of force, the relationship
between that need and the force applied, the threat reasonably
perceived by the responsible officers, the efforts made to temper
the severity of the force employed, and the extent of the injury
suffered by the prisoner. Hudson 503 U.S. at 7. Although
significant injury is not required, a claim ordinarily cannot be
predicated upon a de minimis use of physical force. Id. at
In this case, Defendants Purtill and Dolehide argue that they
are entitled to summary judgment in their favor on the February
16, 2001 and April 26, 2001 incidents because they claim no more
than de minimis force was used. We disagree.
There is at least some evidence to support Plaintiff's position
that these two alleged attacks were unprovoked and led to
injuries to the Plaintiff. The Eighth Amendment prohibits
unnecessary and wanton infliction of pain on prisoners. We find
that disputed issues of material fact exist as to whether
Defendants Purtill and Dolehide violated the Eighth Amendment
during these incidents. For these reasons, Plaintiff has shown a genuine issue of
material fact as to whether the actions of Defendants Purtill
(February 16, 2001) and Dolehide (April 26, 2001) constituted
excessive force. Therefore, we deny the motion for summary
judgment on this issue.
For the foregoing reasons, we grant in part and deny in part
the motion for partial summary judgment (#46-1) brought by
Defendants Boyle, Purtill, Dolehide, Ribaldo, Kush and Gallagher.
The motion is granted in the following respects: judgment is
granted in favor of Defendants Dolehide, Ribaldo and Kush as to
the November 8, 2000 incident; judgment is granted in favor of
Defendants Dolehide, Kush and Ribaldo on the November 13, 2000
incident; judgment is entered in favor of Defendant Gallagher as
to the February 16, 2001 incident; and judgment is entered in
favor of Defendants Boyle, Purtill, and Gallagher as to the April
26, 2001 incident. Defendants Purtill and Dolehide's motion for
summary judgment as to the use of excessive force in the February
6, 2001 and April 26, 2001 incidents is denied.
This case is set for status on October 14, 2004 at 9:00 a.m.
It is so ordered.
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