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SMITH v. BOYLE

September 29, 2004.

Ronald Smith, Plaintiff,
v.
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.

BACKGROUND

  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.

  DISCUSSION

  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 ยง 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 ...


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