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November 15, 2004.


The opinion of the court was delivered by: MARK FILIP, District Judge


Jose Diaz Trejo ("Trejo" or "Plaintiff") brings this action against the Village of Itasca as a municipal entity and Itasca Police Officer Jack Pearson (collectively "Defendants"). Plaintiff has filed a six-count amended complaint (D.E. 22) that alleges excessive force against Defendants in violation of 42 U.S.C. § 1983 ("Section 1983") (Count I), state law assault and battery (Count II), state law malicious prosecution (Count III), false arrest/unlawful seizure pursuant to Section 1983 (Count IV), state law respondeat superior (Count V), and state law indemnification (Count VI). Defendants have previously advanced several of the arguments opposing the state law claims in 2003 and 2004 in motions to dismiss. This Court rejected the 2004 motion largely on the grounds that Defendants advanced the bulk of their arguments in a procedurally improper manner and that many of Defendants' arguments potentially implicated factual issues and therefore were more properly resolved in the summary judgment setting. See Trejo v. Village of Itasca, No. 02-C-1193 (N.D. Ill. Apr 15, 2004) (Filip, J.) (D.E. 47). Defendants have now moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. As explained below, Defendants' motion is granted in part and denied in part.*fn1

I. FACTS*fn2

  Defendant Village of Itasca is an Illinois municipal corporation organized under the Illinois municipal code. (Defendants' Statement of Undisputed Facts ("Def. SF") ¶¶ 1-2.) Defendant Jack Pearson is a police officer employed by Itasca and has been trained at the Police Academy and through a variety of continuing education seminars throughout his time as a police officer. (Id. ¶ 2, 56.) Plaintiff is a 55-year-old resident of Itasca. (Id. ¶ 3.)

  For the sake of clarity, the recitation of the facts occurs in two parts. Part A discusses the relevant facts which relate to Plaintiff's arrest on March 7, 2000. Part B discusses the procedural history of this case in this Court.

  1. Events Relating to Plaintiff's Arrest on March 7, 2000

  Events began in the Fall of 1999, when Plaintiff, a fifty-five year old man who states that he lives with his mother, first met and first spoke with Jessica Galvez, a young woman who worked at the Itasca Bank as a teller during the relevant time period. (Id. ¶ 9-10.) On February 14, 2000, Ms. Galvez reported to an Itasca police officer that Trejo had spoken to her at her teller window, during which time Trejo asked if she had a boyfriend, asked for Ms. Galvez's phone number, and told Ms. Galvez that he had heard that she was a victim of kidnap and rape. (Id. ¶ 12.)*fn3 One week later, Ms. Galvez reported to Officer Pearson that Plaintiff had come into the bank saying that she was in danger of being kidnapped and that she should give him her telephone number. (Id. ¶ 15.)*fn4 Soon after this incident, Officer Pearson went to Plaintiff's home and explained to Plaintiff that he should not have any further contact with Ms. Galvez. (Id. ¶ 17.) In late February 2000, Trejo wrote numerous letters to several businesses, the Itasca Bank, the DuPage County State's Attorney, and the Itasca Police Department requesting videotapes of and documents concerning rapes occurring on business premises (including, in particular, any rapes of "Jessica G. ((teller at Itasca Bank and Trust Co.))"), and threatening legal action against the Itasca Bank. (Id. ¶ 18.)*fn5

  On March 7, 2000, Ms. Galvez again complained to Officer Pearson of Plaintiff's conduct towards her, and she signed a complaint for disorderly conduct against him. (Id. ¶ 19.) In that sworn complaint, Ms. Galvez states that Trejo told Ms. Galvez that he had heard she was a victim of a kidnapping and rape, asked if she had a boyfriend, sent numerous letters to the Itasca Bank and Itasca Police Department stating that he was Ms. Galvez's fiancé, stated that he had the right to protect her by using deadly force, and explained that Trejo had been asked to leave the Itasca Bank for causing a disturbance. (Id. ¶ 20. & Def. Ex. J.) Later that day, Ms. Galvez accompanied Officer Pearson to the DuPage County Courthouse, where Judge Minton issued a warrant for Plaintiff's arrest and a "no-contact" order. (Id. ¶ 21.)

  Based on Judge Minton's issuance of the warrant, Officer Pearson, Sergeant Moersch, and Officer Kauther of the Itasca Police Department drove separately to Plaintiff's residence to arrest him. (Id. ¶ 22.) As explained further below, the parties disagree about the particulars of the arrest, with Defendants contending that Trejo unlawfully resisted arrest and Trejo contending that he was the victim of excessive force that left him with a bruises on his arm and a strained finger. It is undisputed, however, that ultimately the police placed Plaintiff in handcuffs, placed him in the back of a police car, and took him to the Itasca Police Station. (Id. ¶¶ 27-38.) At the station, Trejo was fingerprinted, photographed, and released on bond. (Id. ¶ 38.) When Trejo returned home, he took no medication to relieve any pain from the bruises on his arm or his strained finger, and he thought the conditions would go away. (Id. ¶ 39.) The next day, March 8, 2000, Plaintiff sought medical attention for a bruised arm and injured finger at the emergency room of Alexian Brothers Hospital. (Id. ¶ 40.)

  After the arrest on March 7, Officer Pearson filed a criminal complaint against Plaintiff charging that he resisted arrest. (Id. ¶ 52.) This charge was added to the prior disorderly conduct charge that was the subject of the arrest warrant.

  Criminal proceedings were pursued by the DuPage County State's Attorney against Trejo in the Illinois state courts. On April 4, 2000, Plaintiff improperly attempted to remove his state-court criminal prosecution to federal court by filing a Notice of Removal, which was assigned Case No. 00-C-2199. (Id. ¶ 57-58.) That "notice of removal" — which was some 140 pages in length with all of the related attachments — included within it a "counter-claim" in which Plaintiff purported to assert various causes of action against Ms. Galvez and Officer Pearson relating to the April 2000 arrest and subsequent criminal prosecution, including a claim under Section 1983. (D.E. 1 in Case No. 00-C-2199.). Judge Matthew Kennelly of this Court, who was assigned Case No. 00-C-2199, remanded the case on May 3, 2000, to the Eighteenth Judicial Circuit Court in DuPage County, Illinois, for lack of federal jurisdiction. (Def. SF ¶ 58.) At the time of the remand in May 2000, Judge Kennelly informed Trejo that the criminal prosecution against him could not be removed under 28 U.S.C. §§ 1441-43. (D.E. 55, Exhibit V at 2.) At that same time — i.e., in May 2000, or well before the statute of limitations for state law claims had run under Illinois law — Judge Kennelly advised Trejo that, with respect to the civil "counterclaims" to the criminal prosecution that Plaintiff purported to remove to federal court, Plaintiff might "be able to maintain a civil lawsuit against the police officers or others claimed to have violated his rights, but he may do this only by filing a civil action, not by trying to remove the pending state criminal cases to federal court." (Id.) Following remand, in the Illinois courts, Ms. Galvez's complaint of disorderly conduct was nolle prossed. Plaintiff was tried on a charge of resisting a peace officer and found guilty by a jury of his peers on May 16, 2001. (Def. SF ¶ 53.)

  Not surprisingly, the bulk of the differing accounts of the facts surround what transpired after the officers arrived at Plaintiff's house and before Plaintiff arrived at the police station. Defendants contend that Officer Pearson and Sergeant Moersch made their presence known by ringing Plaintiff's doorbell and telling Plaintiff that they had a warrant for his arrest. (Id. ¶¶ 24-25.) Officer Pearson then showed the warrant to Plaintiff. (Id. ¶ 25.) When Plaintiff answered the door, he began shouting profanities at the officers and attempted to close the screen door. (Id. ¶¶ 26-28.) When Plaintiff began closing the screen door, Officer Pearson and Sergeant Moersch held the door open and stepped inside to arrest him. (Id. ¶ 28.) Defendants allege that Plaintiff vigorously resisted arrest by pushing and shoving the officers, swearing at the officers, grabbing hold of the handcuffs as Officer Pearson attempted to place them on him, and pushing Officer Pearson against a wall. (Id. ¶¶ 29-30.) After the struggle, Sergeant Moersch was able to handcuff Plaintiff's left wrist, but the cuff kept flailing because Plaintiff tried to keep his arm away from Sergeant Moersch. (Id. ¶ 32.) Finally, the officers were able to pull Plaintiff out the front door. (Id. ¶ 35.) Once outside the front door, Sergeant Moersch and Officer Pearson were finally able to secure handcuffs on both of Plaintiff's wrists. (Id. ¶ 37.)

  Plaintiff, on the other hand, claims that Officer Pearson and Sergeant Moersch did ring the doorbell to alert him of their presence, but at no time did they state that they had a warrant for his arrest, nor did they show him a warrant. (D.E. 63 ¶¶ 24-25.) Nonetheless, Plaintiff immediately opened the door in response to the officers. (D.E. 54 ¶ 41.) He became agitated at not being served a document at his front door and told Officer Pearson to "[j]ust get the fuck out." (Id. ¶¶ 42-43.) According to Trejo, Officer Pearson then yelled "[g]et him," and the police officers forced open the door, catching Plaintiff's finger in the latch. (Id. ¶¶ 44-45.) Once the officers entered the house, Officer Pearson and Sergeant Moersch slammed Plaintiff up against a wall in the foyer, and Officer Kauther charged into his sternum. (Id. ¶¶ 46-47.) Then, as Plaintiff was holding out his arm, Sergeant Moersch placed a handcuff on it and started "ratcheting his arm, up and down on his wrist and whole arm, with an open handcuff." (Id. ¶ 48.) Although Officer Pearson told Sergeant Moersch to stop, the sergeant continued. (Id. ¶ 49.) Plaintiff alleges that he cooperated fully with the police and did not struggle, swear, or resist arrest whatsoever. (D.E. 63 ¶ 29-34.) Plaintiff then walked out onto the porch by himself, and then someone (presumably an officer) forced his head down on his chest and fastened the handcuffs. (Id. ¶ 50.) Plaintiff was then transported to the station. (Id. ¶ 51.)

  2. Procedural history in this court On February 20, 2002, Plaintiff filed a pro se complaint in this Court, alleging various causes of action against the Village of Itasca relating to his 2000 arrest and criminal prosecution. (D.E. 1.) The filing was denominated as a "Complaint," and the case was assigned case number 02-C-1193 and assigned to the calendar of Judge Marovich. (Id.)

  On January 27, 2003, Plaintiff, then represented by an attorney, filed an Amended Complaint, which added as Defendants Officer Pearson and other "Unknown Officers" of the Itasca Police Department. (D.E. 22.) The Amended Complaint alleged a variety of state and federal causes of action. (Id.) Count One advances an excessive force claim against the officers and a related failure to train claim against Itasca under Section 1983; Count Two is a state law "assault and battery" claim against "Defendant Officers"; Count Three is a state law malicious prosecution claim against "Defendant Officers"; Count Four is a Section 1983 claim for false arrest and unlawful seizure against "Defendant Officers"; and Counts Five and Six are state law claims against Itasca alleging liability under the theories of respondeat superior and indemnification. (Id.) On April 15, 2004, this Court denied Defendants' second motion to dismiss because it was procedurally defective and contained issues that were more properly resolved at the summary judgement stage. (D.E. 47.)

  On May 26, 2004, Defendants moved for summary judgment on all counts of the Amended Complaint. (D.E. 52.)*fn6 First, they argue that Plaintiff's state law claims are barred as a matter of law by the one-year statute of limitations under the Illinois Tort Immunity Act, 745 Ill. Comp. Stat. 10/8-101, because Plaintiff's 2002 federal suit (Case No. 02-C-1193, assigned initially to Judge Marovich) does not relate back to the Plaintiff's defective April 4, 2000, notice of removal (Case No. 00-C-2199, assigned to Judge Kennelly), as Plaintiff contends. (D.E. 53 at 5.) As to the assault and battery claim, Defendant Pearson also maintains that he enjoys qualified immunity from the lawsuit. (Id. at 22.) Defendant Pearson argues that the malicious prosecution claim must fail because probable cause existed for Plaintiff's arrest and because the prosecution against Plaintiff did not terminate in his favor. (Id. at 20-21.) Defendants assert that the Section 1983 claim alleging excessive force and failure to train must fail given the standards set forth in Heck v. Humphrey, 512 U.S. 477 (1994), and because no proof exists that any misconduct was part of an official policy or custom, respectively. (Id. at 12-14.) Finally, Defendant Pearson argues that Plaintiff's unlawful arrest allegation against him must fail because the Itasca police had probable cause under a valid arrest warrant, or, alternatively, that qualified immunity protects Officer Pearson from the claim in any event. (Id. at 9-11.)

  In response, Plaintiff first argues that the 2002 Complaint in Case No. 02-C-1193 "related back" under Federal Rule of Civil Procedure 15 to Trejo's April 2000 Notice of Removal (Case No. 00-C-2199), in which, as a criminal defendant, Trejo attempted to remove his state law charge of resisting arrest to the Northern District of Illinois. (D.E. 64 at 2.) Trejo responds to Defendants' other arguments by arguing that factual disputes exist such that it would be improper for this Court to grant summary judgment at this time (D.E. 64 at 12, 16, 20) and that the wanton and willful nature of Defendants' conduct precludes a finding of qualified immunity. (Id. at 8.) II. SUMMARY JUDGMENT STANDARD

  Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ. P. 56(c). The nonmovant cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Educ. Servs., Inc., 176 F.3d 934, 936 (7th Cir. 1999) (citation omitted). 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). Mere "metaphysical doubt as to the material facts" does not amount to a genuine issue for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Court views the record and all reasonable inferences drawn therefrom in the light most favorable to the nonmovant. See Fed R. Civ. P. 56(c); Foley 359 F.3d at 928. The party opposing ...

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