United States District Court, N.D. Illinois, Eastern Division
January 10, 2005.
JAMES W. WOODS and TOI WOODS, Plaintiffs,
DAVID CLAY, in both his individual and official capacities; OSCAR FERRY, in both his individual and official capacities; ERIC PRINCE, in both his individual and official capacities; KEVIN RICHMOND, in both his individual and official capacities; JAMES McGEE, in both his individual and official capacities; RAMONE WILLIAMS, in both his individual and official capacities; CITY OF HARVEY, ILLINOIS, a municipal corporation; and 50 EXPRESS, INC., d/b/a/ THE FIFTY YARD LINE SPORTS BAR AND GRILL, Defendants.
The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, James W. Woods and Toi Woods, filed a ten count
complaint against defendants David Clay ("Officer Clay"), Oscar
Perry ("Sergeant Perry"), Eric Prince ("Officer
Prince"),*fn1 Kevin Richmond ("Officer Richmond"), James
McGee ("Officer McGee"),*fn2 Ramone Williams ("Officer
Williams") (collectively, "Harvey Police Officers"), the City of
Harvey (the "City"), and 50 Express, Inc. d/b/a The Fifty Yard
Line Sports Bar and Grill (the "Fifty Yard Line"), pursuant to 42
U.S.C. § 1983. Count I is against Officers Clay, Prince, Richmond,
McGee, Williams, and Sergeant Perry for the arrest and
imprisonment of plaintiffs without probable cause in violation of
§ 1983; count II is against the City and alleges that the conduct
of the Harvey Police Officers was undertaken pursuant to the
policy, custom and/or practice of the City in violation of §
1983; count III alleges that the Fifty Yard Line is responsible
for the conduct of the Harvey Police Officers because it acted
under color of state law by engaging in a joint action with the
City in the arrest of plaintiffs in violation of § 1983; counts
IV (false arrest), V (false imprisonment), VI (battery), VII
(malicious prosecution), VIII (intentional infliction of
emotional distress), and IX (violation of the Illinois
Constitution) allege state law claims against all of the
defendants; and count X seeks indemnification from the City in
the event that judgment is entered against Sergeant Perry and
Officers Prince, Richmond, and Williams. Before the court are the
City of Harvey defendants' motion for partial summary judgment,
Toi Woods' motion for partial summary judgment, and the Fifty
Yard Line's motion for summary judgment. This court has
jurisdiction pursuant to 28 U.S.C. §§ 1343 and 1367. For the
reasons stated below, the court denies Toi Woods' motion for
partial summary judgment; the court grants in part and denies in
part the City of Harvey defendants' motion for partial summary
judgment; and the court denies the Fifty Yard Line's motion for
I. Undisputed Facts
Plaintiffs James Woods ("Mr. Woods") and Toi Woods ("Mrs.
Woods") are residents of Cook County, Illinois and are married to
each other. Mr. Woods is a police officer for the City of
Chicago. On the night of November 18, 2000, Mr. and Mrs. Woods
arrived at the Fifty Yard Line, which is located in Harvey,
Illinois, between 10:30 and 10:45 P.M. to attend a birthday party
for their friend, Alicia Miller ("Miller"). Mrs. Woods was initially
hesitant about attending the party because the club had a
"history" and a "reputation." (Pls' Resp. to the City of Harvey
Defs' L.R. 56.1 Add'l Facts at ¶ 1). Apparently, some of the
Fifty Yard Line's clientele do not possess particularly peaceful
dispositions. Fights commonly break out in the parking lot when
the Fifty Yard Line closes. Assaults, batteries, and murders also
have occurred at the Fifty Yard Line. Because Miller's party was
held in a private room at the Fifty Yard Line, however, Mrs.
Woods agreed to attend. Mr. Woods, although off-duty, carried his
service weapon with him into the Fifty Yard Line and consumed at
least one alcoholic beverage.
Officer Clay, Officer McGee, and Deputy Marshall Joyce Jones
("Jones"),*fn3 were working as security personnel for the
Fifty Yard Line that night. In that capacity, Officer Clay,
Officer McGee, and Deputy Marshall Jones checked the
identification of the Fifty Yard Line's patrons, searched for
weapons, conducted "pat-downs," and worked the Fifty Yard Line's
hallway. The Fifty Yard Line paid Officer Clay, Officer McGee,
and Deputy Marshall Jones for their services. The City also
employed Officer Clay, Officer McGee, and Deputy Marshall Jones.
These officers learned of the employment opportunities at the
Fifty Yard Line by word of mouth from other City police officers
and from employees of the Fifty Yard Line. While working security
at the Fifty Yard Line, the officers reported to the Fifty Yard
Line's managers. In addition, the City employed Sergeant Perry,
Officer Williams, and Officer Richmond, each of whom were on-duty
Although the Fifty Yard Line did not specify the type of
clothing to be worn by Officer Clay, Officer McGee, and Deputy
Marshall Jones, the officers usually wore black "tactical"
outfits with caps that read "Police." On the evening in question, Officers
Clay and Deputy Marshall Jones were dressed in black "tactical"
outfits. In addition, Officer Clay wore his police badge on his
vest, Officer McGee wore his police badge around his neck, and
Deputy Marshall Jones wore her police badge on her vest. Officer
Clay also wore his duty belt, consisting of his gun, handcuffs,
and radio; Deputy Marshall Jones carried her handcuffs, Harvey
Police Department service revolver, and asp (steel baton); and
Officer McGee carried his Harvey Police Department service
revolver. The Harvey Police Department required its personnel to
carry their guns while working. In addition to the police
officers, the Fifty Yard Line employed non-police officers to
work security. These individuals were required to wear black
pants and red t-shirts with the Fifty Yard Line's name on the
back and "Security" on the front.
At some point after Mr. and Mrs. Woods arrived at the Fifty
Yard Line, a Fifty Yard Line security guard escorted Miller's
husband and brother-in-law from the premises after they had
engaged in a loud argument. Mr. and Mrs. Woods left the Fifty
Yard Line about two minutes later. Mr. Woods, however, returned
to the Fifty Yard Line to assist Miller in collecting her
belongings while Mrs. Woods stayed outside. Approximately fifteen
minutes passed before Mrs. Woods reentered the Fifty Yard Line
and found Mr. Woods laying face down on the floor. A police
officer had his knee in Mr. Woods' back and was in the process of
handcuffing Mr. Woods.
Officer Richmond arrived at the Fifty Yard Line and discovered
a crowd gathered around Mr. Woods, who was handcuffed and lying
on the floor. Mrs. Woods was subsequently arrested for disorderly
conduct. Officer Richmond did not hear Mrs. Woods say anything
while at the Fifty Yard Line. Although the Fifty Yard Line's
manager, Zach Basingame, was standing in the front lobby at that time, he did not attempt to interfere in the events leading
up to the arrests or in the arrests themselves.
Officer Prince completed an incident report, which Sergeant
Perry signed. The incident report stated that Mr. Woods stepped
in between Officer Clay and the unknown subject preventing
Officer Clay from removing the unknown subject from the club.
(Pl.'s L.R. 56.1, Ex. G at 1). The incident report continued:
"The suspect was told several times to step back in which the
suspect refused. The suspect became irate telling thats [sic]
my friend" and continued to stand between Officer Clay and the
unknown subject. Id. With regard to Mrs. Woods, the incident
report stated that she ran up to Clay "yelling and screaming
`That's my husband! Let him go.' At which time a crowd gathered.
Suspect #2 was taken into custody." (Pl.'s L.R. 56.1, Ex. G at
2). Sergeant Perry did not conduct an investigation or interview
the crowd at the Fifty Yard Line but he spoke with Officer Clay
at the scene.
Mr. and Mrs. Woods were transported to the Harvey Police
Department in separate cars. They arrived in booking at 2:55 a.m.
Mr. Woods was allowed to make two telephone calls and to receive
a call from a lawyer within forty-five minutes of his arrival.
Within an hour, Mr. Woods was charged with obstructing a peace
officer and disorderly conduct. Officer Clay signed the complaint
against Mr. Woods, which stated that Mr. Woods
KNOWINGLY ACTED IN SUCH AN UNREASONABLE MANNER AS TO
ALARM OR TO DISTURB ANOTHER AND TO PROVOKE A BREACH
OF THE PEACE TO WIT: THE DEFENDANT BECAME IRATE,
YELLING "THAT IS MY FRIEND" AND WHICH HE STOOD OFC.
CLAY #15 AND THE UNKNOWN OFFENDERS WHO WERE BEING PUT
(Pl. Add'l Facts in Resp. to Fifty Yard Line's L.R. 56.1, Ex.
A.). The complaint further stated that SAID DEFENDANT KNOWINGLY OBSTRUCTED THE PERFORMANCE
OF OFC. CLAY #15 OF AN AUTHORIZED ACT WITHIN HIS
OFFICIAL CAPACITY, BEING THE ARREST OF JAMES WOODS,
KNOWING OF OFC. CLAY #15 TO BE A PEACE OFFICER
ENGAGED IN THE EXECUTION OF HIS OFFICIAL DUTIES, IN
THAT THE DEFENDANT STEPPED IN BETWEEN OFC. CLAY #15
AND UNKNOWN SUBJECT WAY AFTER BEING TOLD SEVERAL
TIMES TO STEP BACK IN WHICH JAMES WOODS REFUSED.
Id. Officer Clay signed the complaint as "OFC. CLAY #15. Id.
Officer Clay also signed a complaint against Mrs. Woods, which
stated that Mrs. Woods "KNOWINGLY ACTED IN SUCH AN UNREASONABLE
MANNER AS TO ALARM OR DISTURB ANOTHER AND TO PROVOKE A BREACH OF
THE PEACE, TO WIT: THE DEFENDANT RAN UP TO OFC CLAY, YELLING AND
SCREAMING `THAT'S MY HUSBAND! LET HIM GO', CAUSING A CROWD TO
GATHER." Id. Officer Clay signed the complaint against Mrs.
Woods as "OFC. Clay #15." Id.
Mr. and Mrs. Woods were held in jail for approximately eight
hours before being released. On December 5, 2000, one of the
charge against Mr. Woods was stricken off the call with leave to
reinstate (SOL'd) and the other charge was terminated with a
nolle prosequi when no complaining witnesses appeared at the
court hearing on December 5, 2000.*fn4 On December 28, 2000,
a nolle prosequi was entered terminating the charge of
disorderly conduct against Mrs. Woods when no complaining
witnesses appeared at her court hearing. II. Disputed Facts
The parties dispute most of what occurred on the night of
November 18 and early morning of November 19, 2000. Each provides
a different version of the triggering events and the behavior of
the parties during those events. The court reminds the parties
that "summary judgment cannot be used to resolve swearing
contests between litigants." Payne v. Pauley, 337 F.3d 767 at
770 (7th Cir. 2003) (citations omitted). Rather, "[o]n
summary judgment a court may not make credibility determinations,
weigh the evidence, or decide which inferences to draw from the
facts; these are jobs for a fact finder." Id. at 770 (citations
omitted). "[T]he court has one task and one task only: to decide
based on the evidence of record, whether there is any material
dispute of fact that requires a trial." Id. (quoting
Waldridge v. Am. Hoescht Corp., 24 F.3d 918, 920 (7th Cir.
To determine whether any genuine issue of fact exists, the
court must pierce the pleadings and assess the proof as presented
in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed R. Civ. P. 56(c)
Advisory Committee's notes. The party seeking summary judgment
bears the initial burden of proving there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). In response, the nonmoving party cannot rest on bare
pleadings alone but must use the evidentiary tools listed above
to designate specific material facts showing that there is a
genuine issue for trial. Id. at 324; Insolia v. Philip
Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact
must be outcome determinative under the governing law. Insolia,
216 F.3d at 598-99. Although a bare contention that an issue of
fact exists is insufficient to create a factual dispute,
Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000),
the court must construe all facts in a light most favorable to
the nonmoving party as well as view all reasonable inferences in
that party's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). The court may not grant summary judgment "if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202,
106 S. Ct. 2505 (1986)). Instead, the court must consider the evidence as a
jury might, "construing the record in the light most favorable to
the nonmovant and avoiding the temptation to decide which party's
version of the facts is more likely true." Id. (citing
Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th
A. Plaintiffs' Version of the Confrontation Between Mr. Woods
and the Harvey Police Officers
In plaintiffs' version of events, Miller asked Deputy Marshall
Jones if she could reenter the Fifty Yard Line to retrieve her
belongings, and Deputy Marshall Jones said no. (Pls' Resp. to
City of Harvey Defs' L.R. 56.1 Add'l Facts at ¶ 6). Miller asked
Deputy Marshall Jones who she was, and Deputy Marshall Jones
informed Miller that she was with the Harvey Police. Id.
Although Miller was calm, Deputy Marshall Jones swore at her and
then struck her. Id. Mr. Woods was standing next to Miller
after she was struck by Deputy Marshall Jones. Id. at ¶ 7. Mr.
Woods instructed Miller that they should leave and grabbed
Miller's arm in order to prevent the situation from escalating.
Id. at ¶ 8. Mr. Woods did not make a move toward Deputy
Marshall Jones. Id. Fifty Yard Line security then backed Mr.
Woods against the wall. Id. In response, Mr. Woods displayed
his Chicago Police Department badge and said that he was trying
to break up a fight. Id. Fifty Yard Line security responded,
"You Chicago cops think you're the sh_t." Id. Two uniformed
police officers for the City, Officers Richmond and Williams,
entered the Fifty Yard Line while Mr. Woods was displaying his
badge as he was backed against the wall. Id. One of the
uniformed officers began to handcuff Mr. Woods' left arm while he
was backed against the wall. Id. At that point, Officer Clay came up and tackled Mr. Woods, taking him to
the ground. Id. Officers Williams, Richmond, and McGee assisted
Officer Clay in restraining Mr. Woods. Id. Officers Clay and
McGee then escorted Mr. Woods outside. Id.
B. City of Harvey Defendants' Version of the Confrontation
Between Mr. Woods and the Harvey Police
In the Harvey Police Officers' version of events, Miller became
involved in a heated confrontation with Deputy Marshall Jones
while Mr. Woods was standing with or near Miller. (Defs' L.R.
56.1 at ¶ 9). Officer Clay was within the sight of the
confrontation. Id. at ¶ 10. Officer Clay claims to have
observed what he thought was Mr. Woods moving to strike Deputy
Marshall Jones. Id. at ¶ 11. Officer Clay then took Mr. Woods
to the ground and placed him under arrest. Id.
C. Plaintiffs' Version of Mrs. Woods' Arrest
The parties also dispute the events surrounding Mrs. Woods'
arrest. Plaintiffs contend that Mrs. Woods said, "That's my
husband, he's a Chicago cop, let him go," upon discovering her
husband laying on the floor while being handcuffed. (Pls' Resp.
to City of Harvey Defs' Add'l Facts at ¶ 10). In plaintiffs'
version of events, Mrs. Woods was then arrested and handcuffed at
which time she said, "He's a cop. What's going on, what's
happening?" Id. She then heard, "Well, nigger, this ain't
Chicago. You Chicago cops think you're the sh_t." Id. She also
heard, "Well, your ass can go too." (Pl.'s L.R. 56.1 at ¶ 17).
Her hands were grabbed, placed behind her back, and handcuffed.
Id. As Mr. Woods and Mrs. Woods were escorted from the Fifty
Yard Line, Mrs. Woods asked Fifty Yard Line security, "Why would
you be arresting him for breaking up a fight? He's a Chicago police officer." Id. She subsequently heard the
response, "Well, this ain't Chicago, punk." (Pls' Resp. to City
of Harvey Defs' L.R. 56.1 Add'l Facts at ¶ 10).
D. City of Harvey Defendants' Version of Mrs. Woods' Arrest
In defendants' version of events, Mrs. Woods stated, "He's the
deuce; he's with Chicago Police." (City of Harvey Defs' Resp. to
Pl.'s L.R. 56.1 at ¶ 16). As Officers Clay and McGee escorted Mr.
Woods from the Fifty Yard Line, Mrs. Woods went in front of the
officers and put herself in between Officer McGee and Mr. Woods.
Id. She was grabbing at Mr. Woods. Id. at ¶ 17. After Officer
Clay told Mrs. Woods to back off and to stop interfering, she
continued to yell, scream and cuss. Id. Defendants also
expressly dispute that anyone said, "Well, your ass can go too."
Id. The parties also disagree as to whether Mrs. Woods was
immediately handcuffed upon stating that her husband was with the
Chicago Police or whether Mrs. Woods was yelling, screaming,
cussing, and grabbing at her husband after being told to step
back by Officer Clay. Further, the parties dispute the extent of
alleged damages suffered by plaintiffs.
E. Additional Disputed Facts
The parties also dispute whether Officers Richmond and Williams
were involved in Mrs. Woods' arrest. Defendants contend that upon
arriving at the Fifty Yard Line, Officer Richmond did not see
Mrs. Woods and then proceeded to step outside for a minute or
two. Upon reentering the Fifty Yard Line, Officer Richmond found
Mrs. Woods handcuffed and silent. Mr. and Mrs. Woods, by
contrast, maintain that two uniformed police officers were
helping Mr. Woods to his feet when one of the two uniformed
officers said, "Well, your ass can go, too." At that point, one
of the uniformed officers grabbed Mrs. Woods' hands, placed them
behind her back, and handcuffed them. Both Officer Richmond and
Officer Williams were wearing uniforms. In addition, the parties dispute whether Officer Clay, Officer
McGee, and Deputy Marshall Jones were "on-duty" or "off-duty"
while working for the Fifty Yard Line. Although the parties agree
that the Fifty Yard Line, and not the City, paid Officer Clay,
Officer McGee, and Deputy Marshall Jones for their services as
security personnel at the Fifty Yard Line, plaintiffs contend
that Officer Clay, Officer McGee, and Deputy Marshall Jones
remained "on-duty" while defendants argue that they were
"off-duty." Officer Clay testified at his deposition that the
Harvey Police Department has "a policy stating that when you are
off duty when you're off duty, you are still on, and you're
still a policeman." (Pls' Resp. to Fifty Yard Line's L.R. 56.1.
Ex. F, P. 26, lines 15-20). On the night in question, Deputy
Marshall Jones identified herself as "Harvey police." (Pls' Resp.
to Fifty Yard Line's L.R. 56.1, Ex. L at 36, lines 21-24, at 37,
lines 1-5). In addition, former Chief of Police Philip Hardiman
testified at deposition that an officer is not precluded from
acting in the capacity as a police officer when he is off-duty.
(Pls' Resp. to Fifty Yard Line's L.R. 56.1, Ex. K at 28, lines
The parties also dispute whether the Fifty Yard Line had a
security policy and whether it trained the police officers who
worked security at the Fifty Yard Line. The Fifty Yard Line
claims that it maintained a security policy in which its security
personnel were instructed to not put their hands on patrons
causing a problem; instead, security was supposed to talk the
patron out of the building. Plaintiffs, however, contend that the
Fifty Yard Line had no safety precautions in place, that there
were no written policies, and that the Fifty Yard Line's security
personnel did, in fact, physically put their hands on Officer
Woods on the night in question. Plaintiffs further argue that the
Fifty Yard Line gave directions and instructions to the officers
hired to work security as to their obligations when working
security, including checking identification, searching patrons,
patting down patrons, telling them to leave the club if they smelled
alcohol and who to allow into the Fifty Yard Line. The parties
also dispute the level of involvement and various roles of the
police officers in arresting plaintiffs.
Moreover, the parties dispute whether the conduct of plaintiffs
caused a crowd to gather. In particular, the Harvey Police
Officers contend that there were no patrons outside before
Officers Clay and McGee brought Mr. Woods out of the Fifty Yard
Line. Patrons began to emerge from the club as Mr. Woods was
escorted outside. About a minute after they were outside, Mrs.
Woods started a "commotion" (City of Harvey Defs' Response to
Pl.'s L.R. 56.1 at ¶ 22), by yelling, screaming, cussing, and
grabbing at her husband. (City of Harvey Defs' L.R. 56.1 Add'l
Facts at ¶ 10). Mrs. Woods, by contrast, contends that the crowd
was already gathered when she spoke to the police. (Pl.'s L.R.
56.1 at ¶ 15).
Notwithstanding the differing versions of events, all of the
parties have filed motions for summary judgment and/or partial
summary judgment. The court addresses each party's motion in
I. Plaintiff Toi Woods' Motion for Partial Summary Judgment
A. Count I § 1983
In order to prevail on their claim of unlawful arrest under §
1983, plaintiffs must establish the absence of probable cause for
their arrests. See Kelley v. Myler, 149 F.3d 641, 646 (7th
Cir. 1998). In count I, plaintiffs allege that they were arrested
without probable cause and seek relief against Sergeant Perry and
Officers Clay, Prince, Richmond, McGee and Williams under 42
U.S.C. § 1983. Mrs. Woods filed a motion for partial summary judgment
against the Harvey Police Officers with regard to Count I of the
Second Amended Complaint.
The primary argument raised by Mrs. Woods is that the Harvey
Police Officers lacked probable cause to arrest her as a matter
of law because no reasonable police officer could have believed
that she was guilty of disorderly conduct. She contends that upon
seeing her husband held to the ground with a knee in his back and
his arms about to be hand-cuffed she stated, "That's my husband.
He's a police officer. Let him go." (Pl. L.R. 56.1 at ¶ 16).
Probable cause to arrest a suspect exists "if at the time of
arrest the facts and circumstances within the arresting officer's
knowledge and of which [he] has reasonably trustworthy
information would warrant a prudent person in believing that the
suspect had committed or was committing an offense." Gower v.
Vercler, 377 F.3d 661 at 668 (7th Cir. 2004), quoting
Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999).
"Probable cause demands even less than probability; it requires
more than bare suspicion but need not be based on evidence
sufficient to support a conviction nor even a showing that the
officer's belief is more likely true than false." Woods v.
City of Chicago, 234 F.3d 979, 996 (7th Cir. 2000)
(internal quotations and citations omitted). This is necessarily
a fact-intensive inquiry. Jones by Jones v. Webb, 45 F.3d 178
at 180 (7th Cir. 1995). As a consequence, summary judgment is
inappropriate where material facts regarding the existence of
probable cause are in dispute. See Morfin v. City of Chicago,
349 F.3d 989 at 1000 (7th Cir. 2003) ("Where there is a
genuine issue of material fact surrounding the question of
plaintiff's conduct, the court cannot determine, as a matter of
law, what predicate facts exist to decide whether or not the
officer's conduct clearly violated established law.") (citation
omitted). See also Schertz v. Waupauca County, 875 F.3d 578
at 582 (7th Cir. 1989) ("While Section 1983 claims presenting the question of probable cause are generally inappropriate for
disposition on summary judgment, this is true only where there is
room for a difference of opinion.").
Under Illinois law, a person commits the misdemeanor of
disorderly conduct if "he knowingly: (1) Does any act in such
unreasonable manner as to alarm or disturb another and to provoke
a breach of the peace." 720 ILCS 5/26-1(a)(1). The Seventh
Circuit has noted that "the emphasis of the statute is upon the
tendency of the conduct to disturb others and to provoke
disruptions of public order upon the unreasonableness of the
activity when viewed in the context of the surrounding
circumstances." Gower, 377 F.3d at 670 (citations omitted).
In support of her motion for summary judgment as to count I,
Mrs. Woods relies upon a number of cases in which courts have
held that arguing with a police officer, even when arguing in a
loud voice or using profanity or offensive language, does not
constitute disorderly conduct. See Payne, 337 F.3d at 777
("Illinois courts have time and again held that arguing with a
police officer, even if done loudly, or with profane or offensive
language, will not in and of itself constitute disorderly
conduct."); People v. Trester, 969 Ill. App. 3d 553,
421 N.E.2d 959 at 960, 52 Ill. Dec. 96 (Ill.App.Ct. 1981); People
v. Justus, 57 Ill. App. 3d 164, 372 N.E.2d 1115, 1117,
14 Ill. Dec. 836 (Ill.App.Ct. 1978).
Defendants, however, allege that Mrs. Woods did more than yell,
scream, and cuss at them; they allege that she positioned herself
in front of the officers arresting Mr. Woods while grabbing at
Mr. Woods. Mrs. Woods likens the facts as alleged by defendants
to the scenario presented in Justus in which the Appellate
Court of Illinois reversed the decision of the circuit court
following a bench trial. Justus, 372 N.E.2d at 1118. The
circuit court had convicted the defendant of disorderly conduct
under the Municipal Code of the City of Chicago as a result of
the defendant's screaming and yelling hysterically at a police officer for
writing her a parking ticket. Id. at 1117. After the officer
finished writing the ticket, the defendant followed him back to
his squad car whereupon she grabbed at the pen in his pocket.
Id. Because the only reference to a public disorder was the
officer's testimony that a crowd had gathered in the area, the
appellate court determined that there was no proof that the
defendant's actions caused a public disorder. Id.
The present situation, as alleged by defendants, is readily
distinguishable from Justus. While the parties in both the
instant matter and in Justus provide differing versions of
events, the instant matter is only at the summary judgment stage
while Justus involved a decision on the merits regarding
whether the defendant was guilty of disorderly conduct. At this
point in the present matter, the court and parties are concerned
with whether the Harvey Police Officers had probable cause to
arrest Mrs. Woods, not whether she was guilty of disorderly
conduct. In addition, according to defendants' version of events,
Mrs. Woods did far more than yell and scream and grab at a pen.
The defendants allege that Mrs. Woods, while yelling, screaming,
and cussing, placed herself in between an arresting police
officer and a suspect who was found carrying a concealed weapon
in a club known for having a rather volatile clientele.
Defendants further allege that she was grabbing at the suspect.
Obviously, such a scenario presents different considerations for
the arresting officers from those presented by a person grabbing
for a pen. In addition, even though Officer Clay considered Mrs.
Woods' actions to be those of a normal wife who was concerned
about her husband, see Pl. L.R. 56.1, Ex. J at 109, a genuine
issue of material fact exist with regard to whether the Harvey
Police Officers had probable cause to arrest Mrs. Woods for
disorderly conduct, as evidenced by the differing versions of the
incident provided by the parties. Thus, the court denies Mrs.
Woods' motion for summary judgment as to count I. Because genuine issues of material fact exist with regard to
the existence of probable cause to arrest Mrs. Woods, the court
also denies Mrs. Woods' motion for summary judgment as to count
IV (false arrest), count V (false imprisonment), count VII
(malicious prosecution), and count IX (violation of the Illinois
Constitution) as against the Harvey Police Officers. See
Schertz, 875 F.2d at 582 ("[T]he existence of probable cause for
arrest is an absolute bar to a Section 1983 claim for unlawful
arrest, false imprisonment, or malicious prosecution.")
B. Plaintiff Toi Woods' Claims Against the Fifty Yard
The Fifty Yard Line failed to respond or in any way controvert
any of the statements contained Mrs. Woods' Local Rule 56.1
Statement of Facts. As a consequence, all of the material facts
contained therein are deemed admitted as against the Fifty Yard
Line. See L.R. 56.1(b)(3)(A) and (B). See also Bordelon v.
Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir.
2000); Dimmitt & Owens Fin. v. Superior Sports Prods., Inc.,
196 F. Supp. 2d 731, 736 (N.D. Ill. 2002). Nevertheless, the
Fifty Yard Line's failure to comply with Local Rule 56.1 does not
mean that summary judgment will automatically be granted in favor
of Mrs. Woods. The court still must evaluate all facts in the
light most favorable to the Fifty Yard Line, the non-moving
party. See Austin-Edwards v. Loyola Univ. Med. Ctr., 2004 U.S.
Dist. LEXIS 10126, *6 (N.D. Ill. June 3, 2004).
Mrs. Woods' Statement of Facts established that Officer Clay
was a duly appointed police officer for the City and also worked
as a security guard for the Fifty Yard Line during the time
relevant to the lawsuit. (Pl.'s L.R. 56.1 at ¶ 4). In addition,
security guards for the Fifty Yard Line were present when a uniformed police officer was in the process
of handcuffing Officer Woods. Id. at ¶ 15. Officer Clay signed
the misdemeanor complaint against Mrs. Woods. Id. at ¶ 21.
The Statement of Facts, however, did not contain any material
facts establishing that Officer Clay or any other individual
involved in Mrs. Woods' arrest was acting as the agent, servant,
or employee of the Fifty Yard Line or acting within the scope of
his employment at the time of Mrs. Woods' arrest. In her
supplemental reply brief, Mrs. Woods attempts to stretch the
facts as set forth in her Statement of Facts to cover the Fifty
Yard Line's alleged vicarious liability. See Pl.'s Supplemental
Reply Brief In Support of Motion for Summary Judgment at 2 ("Clay
was a Harvey Police officer who was acting as both a Fifty Yard
Line security guard and in his official capacity as a Harvey
police officer as he participated in the arrests of James and Toi
Woods."). The evidence on which Mrs. Woods relied in support of
this statement was the admission of the City of Harvey
Defendants' Answer to Plaintiffs' Second Amended Complaint. In
their answer, the City of Harvey Defendants admitted that
Officers Clay and McGee were duly sworn and appointed police
officers for the City of Harvey and also worked as security
guards for the Fifty Yard Line at all relevant times to this
lawsuit. (Pl's L.R. 56.1, Ex. B1 and B2 at ¶ 3. Notably, neither
the admission of the City of Harvey defendants nor Mrs. Woods'
Statement of Facts established that Officer Clay was acting as
both a security guard for the Fifty Yard Line and in his official
capacity as a Harvey police officer when participating in the
arrests of Mr. and Mrs. Woods.
In her Statement of Material Facts, Mrs. Woods failed to
include any material facts establishing what Officer Clay's
duties as a security guard for the Fifty Yard Line consisted of,
Mrs. Woods also did not present any material facts specifically
establishing that Officer Clay acted as both a police officer and
as a security guard while participating in the arrest of Mrs.
Woods. Mrs. Woods implicitly acknowledges these deficiencies in her Statement of
Material Facts by referring the court to the exhibits attached to
her Statement of Facts rather than to the facts themselves. See
Plaintiff's Supplemental Reply Brief In Support of Motion for
Summary Judgment at 4. Without material facts demonstrating that
Officer Clay was acting within the scope of his employment with
the Fifty Yard Line while participating in the arrest of Mrs.
Woods, it is impossible for the court to conclude there is no
genuine issue of material fact with regard to the Fifty Yard
Line's vicarious liability. The court, therefore, denies summary
judgment as to Mrs. Woods' state law claims against the Fifty
II. The Harvey Police Officers' Motion for Partial Summary
A. Sergeant Perry
Sergeant Perry has moved for partial summary judgment as to
count I with regard to the claims of Mr. and Mrs. Woods that they
were arrested without probable cause in violation of § 1983.
Sergeant Perry contends that the extent of his involvement in the
events surrounding the arrests of Mr. and Mrs. Woods was limited
to signing off on the incident report prepared by Officer Prince.
Plaintiffs contend, however, that Sergeant Perry is liable under
§ 1983 because he failed to intervene in the deprivation of their
constitutional rights. In support thereof, plaintiffs point to
Sergeant Perry's presence at the Fifty Yard Line while both
plaintiffs were in handcuffs, his discussion with Officer Clay at
the scene, and his status as supervisor of the Harvey Police
An officer may be liable for failing to intervene or prevent
another law enforcement officer from infringing the
constitutional rights of a citizen if the officer knows "(1) that
excessive force was being used, (2) that a citizen has been
unjustifiably arrested, or (3) that any constitutional violation
has been committed by a law enforcement officer, and the
officer had a realistic opportunity to intervene to prevent the harm from occurring." Yang v.
Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (emphasis in
original). This test applies equally to supervisory and
nonsupervisory officers. Id. However, "[t]o be liable for the
conduct of subordinates, a supervisor must be personally involved
in that conduct. Supervisors who are merely negligent in failing
to detect and prevent subordinates' misconduct are not liable. . . .
The supervisors must know about the conduct and facilitate
it, approve it, condone it, or turn a blind eye for fear of what
they might see." Morfin, 349 F.3d at 1001 (citations omitted).
Whether an officer had sufficient time to intervene or was
capable of preventing the harm caused by the other officer is
generally an issue for the trier of fact unless, considering all
of the evidence, a reasonable jury could not possibly conclude
otherwise. Lanigan v. Village of E. Hazel Crest, 110 F.3d 467
at 478 (7th Cir. 1997) (citation omitted).
Taking the facts in the light most favorable to plaintiffs and
accepting that they were unlawfully arrested, the court finds a
genuine issue of material fact exists as to whether Sergeant
Perry had a realistic opportunity to intervene to prevent
additional violations of plaintiffs' constitutional rights.
Although both plaintiffs were arrested before Sergeant Perry
arrived at the Fifty Yard Line, Sergeant Perry was advised of the
bases for plaintiffs' arrests before they were transported to the
police station. Sergeant Perry was not in a position to prevent
plaintiffs from being arrested without probable cause, but he may
have been in the position to prevent plaintiffs from being
falsely imprisoned. Thus, the court denies summary judgment to
the § 1983 claims of Mr. Woods and Mrs. Woods against Sergeant
Sergeant Perry also seeks summary judgment as to count IV
(false arrest), count V (false imprisonment), and count VI
(battery) as against Mr. Woods and Mrs. Woods. Sergeant Perry argues that since he had no physical contact with either
plaintiff and because he had no involvement in the arrest and/or
restraint of either plaintiff, he cannot be held liable for these
state law claims.
In order to state a claim of false arrest, the plaintiff must
prove "a restraint or arrest, caused or procured by defendants,
without their having reasonable grounds to believe an offense is
being committed by plaintiff." Karow v. Student Inns, Inc.,
357 N.E.2d 682 at 686, 43 Ill. App. 3d 878, 2 Ill. Dec. 515
(Ill.App.Ct. 1976). As discussed above, Sergeant Perry arrived at
the Fifty Yard Line after Mr. Woods and Mrs. Woods were placed
under arrest, and, consequently, did not participate in the
arrest of either plaintiff or cause or procure the arrest of
either plaintiff. Therefore, summary judgment is granted in favor
of Sergeant as to count IV.
With regard to count V, "false imprisonment consists of the
unlawful restraint, against his will, of an individual's personal
liberty or freedom of locomotion." Id. (citation omitted). In
order to hold an individual liable for false imprisonment, "it
must appear that he personally participated therein by direct act
or indirect procurement. Campbell v. Kaczmarek, 350 N.E.2d 97
at 101, 39 Ill. App.3d 465 (Ill.App.Ct. 1976) (citation
omitted). "Not only will the officer making an illegal arrest be
liable therefor, but any person who by making an affidavit to
support an arrest warrant, or otherwise aids, advises, or abets
the procurement of an arrest under a void process will also be
liable in damages to the injured person. Luker v. Nelson,
341 F.Supp. 111 at 120 (N.D. Ill. 1972), citing Develing v.
Sheldon, 83 Ill. 390 (Ill. 1876); Gill v. Lewin,
53 N.E.2d 336, 321 Ill.App.633 (Ill.App.Ct. 1944). Moreover, "[e]ven when
the arrest itself is perfectly valid and legally sustainable, an
unlawful detention following the arrest can be in and of itself
false imprisonment. Id. (citations omitted). Officer Perry did not assist in the actual arrest of
plaintiffs. He played no role in their subsequent transport to
the police station or their confinement. Although Officer Perry
supervised the arresting officers, under the Illinois Local
Governmental and Local Governmental Tort Immunity Act (the
"Act"), Sergeant Perry cannot be held liable in his capacity as
supervisor for the acts of the other police officers. See
745 ILCS 10/2-204. The Act provides: "Except as otherwise provided by
statute, a public employee, as such and acting within the scope
of his employment, is not liable for an injury caused by the act
or omission of another person." Id. Plaintiffs have not alleged
or offered any evidence that Sergeant Perry was acting outside
the scope of his employment, and, consequently, he cannot be held
liable for the false imprisonment of plaintiffs committed by the
other police officers. Thus, summary judgment is granted as to
count V with regard to Officer Perry.
Similarly, plaintiffs cannot maintain their claim of battery
against Sergeant Perry. In order to maintain a claim of battery,
a plaintiff must establish that the defendant "intentionally and
knowingly without legal justification and by any means, (1)
causes bodily harm to an individual or (2) makes physical contact
of an insulting or provoking nature with an individual."
720 ILCS 5/12-3. Here, there are no allegations that Sergeant Perry
touched either Mr. Woods or Mrs. Woods in any manner. Sergeant
Perry cannot be held liable in his capacity as the supervisor of
the Harvey Police Officer for the battery committed by the other
officers. See 745 ILCS 10/2-204. Since plaintiffs have not
alleged or offered any evidence that Sergeant Perry was acting
outside the scope of his employment, he cannot be held liable for
the battery committed by the other police officers. Thus, summary
judgment is granted in favor of Officer Perry as to count VI. B. Officers Clay, Williams, and Richmond
Officers Clay, Williams, and Richmond similarly seek summary
judgment as to count I but only as to the claim of Mrs. Woods on
the basis that they were not involved in the actual arrest of
Mrs. Woods. As discussed above, however, "while it is true that a
plaintiff must establish a defendant's personal responsibility
for any claimed deprivation fo a constitutional right, a
defendant's direct participation in the deprivation is not
required." Miller v. Smith, 220 F.3d 491 at 495 (7th Cir.
2000), citing Smith v. Rowe, 761 F.2d 360, 369 (7th Cir.
1985). "An official satisfies the personal responsibility
requirement of § 1983 if she acts or fails to act with a
deliberate or reckless disregard of the plaintiff's
constitutional rights." Id., quoting Crowder v. Lash,
687 F.2d 996, 1005 (7th Cir. 1982) (emphasis in original). Thus,
"police officers who have a realistic opportunity to step forward
and prevent a fellow officer from violating a plaintiff's rights
. . . but fail to do so have been held liable." Id., citing
Yang, 37 F.3d at 285.
In the instant matter, Officers Clay, Williams, and Richmond
were present at the Fifty Yard Line at the time of Mrs. Woods'
arrest. Officer Clay was escorting Mr. Woods from the Fifty Yard
Line when Mrs. Woods informed Officer Clay that Mr. Woods was her
husband. This was the incident giving rise to Mrs. Woods' arrest,
an incident which Officer Clay witnessed and then summarized in
the misdemeanor complaint that he executed against Mrs. Woods.
The Harvey Police Officers' attempt to analogize the actions of
Officer Clay to those of the defendant in Jenkins v. Keating,
147 F.3d 577 (7th Cir. 1998), is unavailing. In Jenkins,
the Seventh Circuit affirmed summary judgment in favor of the
defendant police officer who merely signed the criminal complaint
against the plaintiff. Id. at 583. In the present matter,
however, Officer Clay's involvement in Mrs. Woods' arrest
involved more than the ministerial task of signing the complaint;
the very basis of the complaint was Mrs. Woods' behavior toward Officers Clay and
McGee. Taking the facts in the light most favorable to Mrs.
Woods, Officer Clay would have recognized that the officers
lacked probable cause to arrest Mrs. Woods for simply stating,
"That's my husband. Let him go." Consequently, a genuine issue of
material fact exists as to whether Officer Clay failed to act
with a deliberate or reckless disregard of Mrs. Woods'
In addition, while the parties dispute who actually placed Mrs.
Woods under arrest, both Mr. and Mrs. Woods maintain that two
uniformed police officers were helping Mr. Woods to his feet
after he was handcuffed at which time one of the uniformed police
officers placed Mrs. Woods under arrest. Although neither Mr.
Woods or Mrs. Woods can specify which officer placed Mrs. Woods
under arrest, both Officer Richmond and Officer Williams were
wearing uniforms. Taking the facts in the light most favorable to
Mrs. Woods, both officers were present at the time of her arrest
and witnessed or were involved in the events giving rise to Mrs.
Woods' arrest and her actual arrest. Consequently, summary
judgment is denied as to Mrs. Woods' § 1983 claims against
Officers Richmond and Williams because a genuine issue of
material fact exists regarding whether they failed to act with a
deliberate or reckless disregard of Mrs. Woods' constitutional
The Harvey Police Officers also moved for summary judgment as
to Mrs. Woods' claims in counts IV, V, and VI. The court denies
summary judgment as to each of the Harvey Police Officers with
regard to counts IV and V. As discussed above, genuine issues of
material fact exist as to the existence of probable cause and the
extent of each of their involvement in Mrs. Woods' arrest and
imprisonment. In addition, the court denies summary judgment with
regard to count VI with regard to Officer Richmond and Officer
Williams. Since Mrs. Woods has not offered any evidence that she was touched in any way by Officer Clay, however, summary judgment
is granted in favor of Officer Clay with regard to Mrs. Woods'
claims in count VI.
C. Count VII Malicious Prosecution
Malicious prosecution in Illinois requires "(1) the
commencement or continuance of an [sic] civil or criminal
judicial proceeding by the defendant, (2) the termination of the
proceeding in the plaintiff's favor, (3) the absence of probable
cause for the proceeding, (4) the presence of malice, and (5)
damages to the plaintiff resulting from the commencement or
continuance of that proceeding." Rodgers v. Peoples Gas, Light
& Coke Co., 733 N.E.2d 835, 840, 315 Ill.App.3d 340,
248 Ill. Dec. 160 (Ill.App.Ct. 2000). Defendants contend that plaintiffs
failed to establish a prima facie case of malicious
Defendants argue that plaintiffs cannot meet the third prong of
a prima facie case of malicious prosecution because they failed
to establish that the charges against them were terminated in
their favor. With regard to Mr. Woods, one charge was SOL'd while
the other charge was terminated with a nolle prosequi.
Likewise, the charge against Mrs. Woods was terminated with a
nolle prosequi. In determining whether proceedings are
terminated favorably, the Illinois Supreme Court follows the
approach set forth in the Restatement (Second) of Torts, which
Termination in favor of the person against whom civil
proceedings are brought. Civil proceedings may be
terminated in favor of the person against whom they
are brought * * * by (1) the favorable adjudication
of the claim by a competent tribunal, or (2) the
withdrawal of the proceedings by the person bringing
them, or (3) the dismissal of the proceedings because
of his failure to prosecute them. A favorable
adjudication may be by a judgment rendered by a court
after trial, or upon demurrer or its equivalent. In
either case the adjudication is a sufficient
termination of the proceedings, unless an appeal is
* * * Whether a withdrawal or an abandonment constitutes a
final termination of the case in favor of the person
against whom the proceedings are brought and whether
the withdrawal is evidence of a lack of probable
cause for their initiation, depends upon the
circumstances under which the proceedings are
withdrawn. (Emphasis added.) Restatement (Second) of
Torts § 674, Comment j (1977).
Velez v. Avis Rent a Car Sys., 721 N.E.2d 652
308 Ill. App. 3d 923
, 242 Ill. Dec. 373
(Ill.App.Ct. 1999), quoting
Cult Awareness Network v. Church of Scientology Int'l,
685 N.E.2d 1347 at 1352, 177 Ill. 2d 267, 226 Ill. Dec. 604 (1997).
Under this approach, dispositions that do not reach the merits of
the underlying case may satisfy the favorable determination
requirement depending upon the circumstances under which the
disposition is obtained. Id. "[A] nolle prosequi may serve as
a favorable termination unless the prosecution was abandoned for
reasons not indicative of the innocence of the accused." Id. at
655-56, citing Swick v. Liautaud, 662 N.E.2d 1238, 1242-43,
169 Ill. 2d 504, 215 Ill. Dec. 98 (1996). Abandoned proceedings that
are not indicative of a favorable termination include "when the
nolle prosequi is the result of an agreement or compromise with
the accused, misconduct on the part of the accused for the
purpose of preventing trial, mercy requested or accepted by the
accused, the institution of new criminal proceedings, or the
impossibility or impracticability of bringing the accused to
trial." Id. at 656 (citations omitted). An SOL, under certain
circumstances, also may indicate a defendant's innocence
sufficient to support a malicious prosecution claim. See Cult
Awareness Network, 685 N.E.2d at 1353.
In this case, the parties dispute the precise circumstances
giving rise to the termination of the charges against Mr. Woods
and Mrs. Woods but both parties agree that the charges were
terminated following Officer Clay's failure to appear in court.
According to defendants, Officer Clay, the complaining witness,
failed to appear in court as the result of an "administrative
glitch" because the cases were given the wrong court dates and
not scheduled on Officer Clay's court key. (Def. Mem. at P. 19). Plaintiffs, however, argue that it was Officer Clay's
duty to give the reporting officer the court dates and that
Sergeant Perry ordered Officer Clay to appear in court. The
orders themselves did not specify any reason for their
In any event, the circumstances surrounding the entry of the
SOL and nolle prosequi orders demonstrate a genuine issue of
material fact as to whether the charges were terminated in
plaintiffs' favor. Officer Clay failed to appear in court, and,
as a consequence, those charges were dismissed. See Farris v.
Messimore, 219 Ill. App. 582, 583 (Ill.App.Ct. 1920)
(dismissal for failure of witness to appear is favorable
termination). See also Velez, 721 N.E.2d at 655 ("An
involuntary dismissal resulting from a plaintiff's failure to
comply with discovery serves as a favorable termination due to
the fact that a party who fails to produce evidence, in essence,
fails to prosecute.") (emphasis added).
Sergeant Perry, Officer Williams, and Officer Richmond also
argue that summary judgment should be granted in their favor
because only Officer Clay initiated the criminal proceedings.
Under Illinois law, "[a] defendant is considered to have
commenced criminal proceedings if he `initiated a criminal
proceeding or his participation [was] of so active and positive a
character as to amount to advice and cooperation." Fabiano v. City of Palos Hills,
784 N.E.2d 258 at 270, 336 Ill.App.3d 635, 271 Ill. Dec. 40
(Ill.App.Ct. 2002), citing Denton v. Allstate Ins. Co.,
504 N.E.2d 756, 759, 152 Ill. App. 3d 578, 105 Ill. Dec. 471
(Ill.App.Ct. 1986). In Illinois, "a prosecution is commenced by a
complaint, an information, or an indictment." Mulligan v.
Village of Bradley, 475 N.E.2d 1029, 1032,
131 Ill. App. 3d 513, 86 Ill. Dec. 650 (Ill.App.Ct. 1985). In the present
matter, plaintiffs have failed to bring forward any evidence that
Sergeant Perry, Officer Williams, or Officer Richmond had any
involvement in the commencement of the criminal proceedings.
There is no evidence that they participated in the drafting or
signing the criminal complaints, that they testified against
plaintiffs, or that they had any involvement with plaintiffs or
their prosecution following their arrests. Thus, the court grants
summary judgment in favor of Sergeant Perry, Officer Williams,
and Officer Richmond as to count VII.
D. Count VIII Intentional Infliction of Emotional Distress
Under Illinois law, the following elements are required to
state a claim for the tort of intentional infliction of emotional
distress: (1) extreme and outrageous conduct; (2) intent to cause
severe emotional distress or knowledge that there is a high
probability of causing severe emotional distress; (3) the conduct
actually caused severe emotional distress. Pub. Fin. Corp. v.
Davis, 360 N.E.2d 765, 767, 66 Ill.2d 85, 4 Ill. Dec. 652 (Ill.
1976); Doe v. Calumet City, 641 N.E.2d 498, 506,
161 Ill. 2d 374, 204 Ill. Dec. 274 (Ill. 1994). Defendants contend that
plaintiffs have failed to establish a prima facie case of
intentional infliction of emotional distress and, as a result,
plaintiffs' claims should fail as a matter of law. 1. Extreme and Outrageous Conduct
"Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency." Pub. Fin. Corp.,
360 N.E.2d at 767, quoting Restatement (Second) of Torts § 46,
comment d (1965). Whether conduct is extreme and outrageous is
"judged on an objective standard based on all of the facts and
circumstances of a particular case." Doe, 641 N.E.2d at 507
(citation omitted). "Conduct is of an extreme and outrageous
character where recitation of the facts to an average member of
the community would arouse his resentment against the actor, and
lead him to exclaim, `Outrageous'" Id. (quotation omitted).
Although "mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities" are insufficient, id.
conduct may be characterized as extreme and outrageous where "(1)
the character of the conduct itself is extreme and outrageous (2)
the conduct arises out of an abuse of a position or relationship
in which the defendant has authority over the plaintiff, or (3)
the defendant knew of some peculiar susceptibility of the
plaintiff's to emotional distress." Rudis v. Nat'l College of
Educ., 548 N.E.2d 474, 476, 191 Ill. App. 3d 1009,
139 Ill. Dec. 89 (Ill.App.Ct. 1989)); see also Doe, 641 N.E.2d at 507,
161 Ill.2d 374.
Defendants argue that the conduct of Sergeant Perry toward
plaintiffs was not so extreme and outrageous as to sustain a
claim for intentional infliction of emotional distress, citing
Sergeant Perry's lack of contact with plaintiffs and his lack of
involvement in their arrests. Plaintiffs do not respond to
defendants' argument with regard to Sergeant Perry and, thus,
have waived any argument in opposition. See Arendt v. Vetta
Sports, Inc., 99 F.3d 231, 237 (7th Cir. 1996) (failure to
respond to arguments in response to summary judgment motion
results in waiver). The court grants summary judgment as to count
VIII in favor of Sergeant Perry. Defendants also maintain that Mrs. Woods cannot state a claim
of intentional infliction of emotional distress against Officers
Clay, Williams, and Richmond because they were not involved in
the arrest and restraint of Mrs. Woods. They further argue that
the record is void of evidence that defendants knew severe
emotional distress was certain or substantially certain to result
from their conduct. As previously discussed in this opinion,
however, a genuine issue of material fact exists regarding the
roles played by Officers Clay, Williams, and Richmond in the
arrest and restraint of Mrs. Woods.
Taking the evidence in the light most favorable to Mrs. Woods,
she was arrested without probable cause when informing the
officers arresting her husband that he was a police officer. (Pl.
Resp. Facts at ¶ 16). At that time one of the defendants said in
response, "Well, nigger, this ain't Chicago. You Chicago cops
think you're the shit." (Pls' Resp. to City of Harvey Defs' L.R.
56.1 at ¶ 15). Mrs. Woods then said that her husband was a
Chicago police officer who was merely attempting to break up a
fight when she heard, "Well, this ain't Chicago, punk." Id. at
¶ 15. She was placed under arrest in front of a crowd. Following
her arrest, she was transported to the police station and placed
in a jail with a prostitute who was ranting, raving, and cussing.
Id. at ¶¶ 22, 38, 41. The prostitute also asked Mrs. Woods,
"What the f_ck are you looking at?" Id. at ¶¶ 22, 38, 41. These
facts suggest that Officers Clay, Williams, and Richmond abused
their authority as police officers and create a genuine issue of
material fact as to whether Officers Clay, Williams, and Richmond
intended to cause Mrs. Woods severe emotional distress or knew
that their conduct was certain or substantially certain to result
in Mrs. Woods' severe emotional distress. 2. Severe Emotional Distress
Defendants further argue that plaintiffs failed to establish
that they experienced severe emotional distress. "The emotional
distress required to support the cause of action must be so
severe that no reasonable person could be expected to endure it."
Adams v. Sussman & Herzberg, Ltd., 684 N.E.2d 935, 941,
292 Ill. App. 3d 30, 225 Ill. Dec. 944 (Ill.App.Ct. 1997) (citation
omitted). "[T]he infliction of such emotional distress as fright,
horror, grief, shame, humiliation and worry is not sufficient to
give rise to a cause of action." Id. The purpose of the
resulting severe distress element is to "prevent fictitious
claims." Doe, 641 N.E.2d at 508. Moreover, "[t]he intensity and
the duration of the distress are also factors to be
considered[.]" Pub. Fin. Corp., 360 N.E.2d at 767. Indeed,
physical harm is not a requirement "if the conduct is
sufficiently extreme and outrageous there may be liability for
the emotional distress alone[.]" RESTATEMENT (SECOND) OF TORTS §
46, Comment k).
Plaintiffs assert that Officer Woods experienced humiliation,
shame, guilt and embarrassment as a result of his arrest and
detention. He also fears losing his job as a police officer and
being falsely accused and has experienced sleepless nights, panic
and anxiety. Mrs. Woods also has experienced anxiety and
sleepless nights, as well as shame, depression, humiliation, and
a damaged sense of security. Unfortunately for plaintiffs, such
emotional distress, without more, does not constitute severe
emotional distress. See Adams, 684 N.E.2d at 942 (plaintiff
failed to prove severe emotional distress where he experienced a
general fear and fear of losing his job and being falsely
accused); Knysak v. Shelter Life Ins. Co., 652 N.E.2d 832,
273 Ill. App. 3d 360, 210 Ill. Dec. 30 (Ill.App.Ct. 1995)
(plaintiff failed to prove severe emotional distress where he
testified that he was very upset, very nervous, and very
depressed). There also is no evidence of the severity of the emotional
distress that plaintiffs suffered, i.e., that they were
hospitalized, sought and received psychiatric treatment, or even
were prescribed medication. Id. See also Farrar v.
Bracamondes, 332 F.Supp. 2d 1126 (N.D. Ill. 2004) ("Stress,
nervousness, anxiety, and sleeplessness that do not require
medical treatment are not severe emotional distress."), citing
Swanson v. Swanson, 257 N.E.2d 194, 196, 121 Ill. App. 182
(Ill.App.Ct. 1970), Knierim v. Izzo, 174 N.E.2d 157, 164,
22 Ill.2d. 73 (Ill. 1961); Knysak, 652 N.E.2d at 840 (plaintiff
failed to show requisite severity of emotional distress where
there was no evidence that plaintiff was hospitalized, sought or
received psychiatric treatment, or was prescribed medication). It
is undisputed that Mr. Woods and Mrs. Woods did not seek medical
treatment or mental health treatment for any of their emotional
injuries, nor did they take or receive any medications for their
emotional injuries. See Pls' Resp. City of Harvey Defs' L.R.
56.1 at ¶¶ 44-45. This suggests that their distress does not rise
to the level of severity necessary to maintain a claim for
intentional infliction of emotional distress. Accordingly, the
court grants summary judgment in favor of the City of Harvey
defendants on the plaintiffs' claims of intentional infliction of
III. City of Harvey's Motion for Summary Judgment
In count II of the second amended complaint, plaintiffs seek
relief against the City pursuant to § 1983. Arguing that
plaintiffs have failed to produce any evidence that the alleged
misconduct of the Harvey Police Officers was undertaken pursuant
to a policy, custom, or practice of the City, the City has moved
for summary judgment as to count II.
"Although a municipality is subject to suit under § 1983,
respondeat superior liability will not suffice to impose § 1983
liability on the City." Baskin v. City of Des Plaines,
138 F.3d 701, 704 (7th Cir. 1998). Instead, a municipality may be held
liable under § 1983 in one of three ways: (1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice
that, although not authorized by written law or
express municipal policy, is so permanent and well
settled as to constitute a custom or usage with the
force of law; or (3) an allegation that the
constitutional injury was caused by a person with
final policymaking authority.
Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734-35 (7th
Cir. 1994), citing Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 690 (1978). Where, as here, plaintiffs attempt to establish
liability against a municipality based on the widespread practice
of the municipality, "there must be an `affirmative link' between
the custom at issue (especially when the custom itself does not
establish wrong-doing) and the constitutional deprivation alleged
to cast blame on the City." Jones v. City of Chicago,
787 F.2d 200 at 204 (7th Cir. 1986), citing City of Oklahoma v.
Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L. Ed. 2d 791 (1985).
This affirmative link requires some knowledge or awareness on the
part of the municipality of both the custom and its
unconstitutional consequences, "showing the municipality's
approval, acquiescence, or encouragement of the alleged
unconstitutional violation." Id. In order to hold the
municipality liable for the constitutional deprivation, the
evidence must permit an inference of deliberate indifference or
tacit authorization of the violative conduct. See id. at 205.
Plaintiffs assert that citizen complaints against the City's
police officers almost never result in official censure, which
causes the City's police officers to believe that their actions
will not be scrutinized. Plaintiffs rely upon the deposition
testimony of Commander Camille Damiani ("Damiani"), the police
department's former Internal Affairs commander, and the
resolution of internal affairs investigations of complaints of
violations of civil rights under from 1995 to 2000 in support of
their § 1983 claim against the City. During this period, Damiani
sustained only one of thirty-nine civil rights-related complaints.*fn7 The vast
majority of these civil rights complaints involved allegations of
excessive force. In the four or five instances in which a person
complained of false arrest, that person would be advised to go to
court and to return to file a complaint with the police
department after the lawsuit was resolved or the person was found
not guilty. Damiani explained the rationale for advising
individuals complaining of false arrest to go to court as
follows: "Because that is the judge's responsibility to make that
determination. Officers aren't going to change their story when
they come into my office. It is always your word against their
word, so you go to court. If the judge finds you not guilty, come
on back and file a complaint. They don't ever come back." (Pls'
Amended Resp. to City of Harvey Defs' L.R. 56.1, Ex. N at 49-50).
Only one individual filed a complaint after proceeding with a
lawsuit, and the City investigated his complaint.
Plaintiffs maintain that Damiani also chose not to memorialize
oral complaints into written complaints between ten and fifty
times and chose not to turn approximately ten citizen complaints
into case reports.*fn8 Damiani never had the occasion to
take a complaint of false arrest or malicious prosecution;
however, the police department always took complaints of
excessive force and conducted investigations. While commander of
Internal Affairs, Damiani recommended the termination of two
police officers, one in a matter involving rape and the other in
a matter involving theft. Damiani never recommended the termination of a police
officer for claims of false arrest, battery, false imprisonment,
or malicious prosecution.
Plaintiffs also note Damiani's lack of training in Internal
Affairs. Damiani was selected to become an Internal Affairs
investigator after working as a patrol officer for three and a
half years. She did not receive any formal training for this
position. She worked as an Internal Affairs investigator for
three years, transferred out for a year, and then took over as
commander of the Internal Affairs department. Damiani's training
involved a one or two-day course on investigations. There were no
specific requirements for becoming commander of Internal Affairs,
and there was no manual for Internal Affairs. Although she
received on-the-job training in carrying out her duties, Damiani
never received formal training on terminating employees.
The City's Chief of Police, Phillip Hardiman ("Hardiman"), also
took complaints directly from citizens on approximately twenty to
twenty-five occasions. If a general complaint was made with a
request to speak with the police officer, Hardiman was unlikely
to report the incident to Internal Affairs or file a written
report; instead, he would speak with the police officer
directly.*fn9 Out of forty-three citizen complaints of
police misconduct, the City disciplined two officers for civil
rights violations, and Hardiman concurred with all of the
conclusions that did not sustain civil rights complaints against
the police officers. In addition, the police department did not
require investigators to advise their Internal Affairs commander
when they decided against transcribing oral complaints into
written complaints. There was also no written policy regarding
which complaints must be transcribed. Plaintiffs further point to the rehiring of
Officer McGee*fn10 by the City after he was terminated for
destroying evidence and the promotion of Officer Williams to
detective after he was reprimanded or suspended at least eight
times as evidence that the City does not act to punish its police
officers. Officer Williams is currently a defendant in another
lawsuit in which the plaintiff alleged false arrest. No complaint
has been filed with the Internal Affairs department regarding the
lawsuit, and the Internal Affairs department has not conducted a
formal investigation into the allegations of that lawsuit.
Essentially, plaintiffs are asking the court to infer that the
City improperly investigated and resolved the forty-three citizen
complaints because only two complaints were sustained, and,
therefore, the City's police officers believe that their actions
will not be scrutinized. At this late stage, however, plaintiffs
have not provided any evidence that more of the complaints should
have resulted in the censure of police officers or that the City
failed to adequately investigate complaints of false arrest,
battery, false imprisonment, or malicious prosecution. Plaintiffs
also failed to provide evidence concerning the nature or
circumstances of the civil rights violations alleged in the
forty-three complaints.*fn11 In construing the evidence submitted by plaintiffs as an
attempt to show that the City ignored or improperly disposed of
complaints involving its police officers, plaintiffs failed to
establish an issue of material fact. By itself, the fact that the
City did not sustain more citizen complaints against its police
officers does not establish a widespread custom of ignoring or
improperly disposing of complaints, and plaintiffs have not shown
that the City should have punished more police officers or that
it ignored complaints involving batteries, false arrests, or
false imprisonments. See Bryant v. Whalen, 759 F. Supp. 410,
412 (N.D. Ill. 1991) ("The fact that a low percentage of cases
are ultimately sustained cannot in and [of] itself be read to
establish a policy of indifference.").
The court is certainly troubled by the lack of training and
experience of Damiani and presumably other members of the City's
Internal Affairs department, the lack of written guidelines for
investigating citizen complaints, and the failure of the City to
document all complaints made against its police officers.
Plaintiffs, however, must offer "further evidence tending to show
that meritorious claims were either being deliberately ignored or
perfunctorily dismissed." Id. See also Vukadinovich v. Zentz,
995 F.2d 750 at 755 (7th Cir. 1993) (citing Bryant with
approval). Such evidence may have included expert testimony
demonstrating contemporary standards for procedures to handle citizen complaints, what could be an expected number of
meritorious complaints under proper procedures, or some actual
evidence that complaints lodged in the City of Harvey were
meritorious. See, e.g., Robinson, 2001 U.S. Dist. LEXIS 1930
at *24. See also Sledd v. Lindsay, 102 F.3d 282 at 287
(7th Cir. 1996) (defendant city's motion to dismiss denied
where plaintiff's complaint contained statistical allegations
involving the number of complaints filed with the police
department, the number of investigations conducted, and the
estimated percentage of complaints with merit, as well as
detailed allegations concerning the police officers' "code of
silence"). Without any such evidence no basis exists for a
finding that City's policy caused plaintiff's injury. Thus, the
court grants summary judgment in favor of the City as to count II
of the second amended complaint.
IV. The Fifty Yard Line's Motion for Summary Judgment
The Fifty Yard Line moved for summary judgment as to
plaintiffs' § 1983 claims in count III, arguing that there is no
evidence of joint action between the City and the Fifty Yard Line
and that there is no evidence that an official policy of the
Fifty Yard Line caused the alleged deprivation of plaintiff's
It is not necessary that a defendant be an officer of the State
in order to be held liable under § 1983. Dennis v. Sparks,
449 U.S. 24, 27, 66 L.Ed.2d 185, 101 S.Ct 183 (1980). Instead,
"[i]t is enough that he is a willful participant in joint action
with the State or its agents. Private persons, jointly engaged
with state officials in the challenged action, are acting `under
color' of law for purposes of § 1983 actions." Id. at 27-28,
citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970);
United States v. Price, 383 U.S. 787, 794 (1966). It is undisputed that the Fifty Yard Line hired Officer Clay,
Officer McGee, and Deputy Marshall Jones to work security at the
Fifty Yard Line as a result of word of mouth that employment was
available. It is also undisputed that the Fifty Yard Line, not
the City, paid Officer Clay, Officer McGee, and Deputy Marshall
Jones to work security. The parties also do not dispute that
Officer Clay, Officer McGee, and Deputy Marshall Jones wore black
"tactical" outfits, carried their City-issued service weapons,
and wore their police badges. In addition, the Fifty Yard Line's
management instructed the police officers acting as security
personnel that they were to work the hallway and check for
weapons and identification. (Pls' Resp. to Fifty Yard Line's L.R.
56.1, Ex. F at 20-21). Essentially, the Fifty Yard Line employed
Officer Clay, Officer McGee, and Deputy Marshall Jones to
function as police officers and to demonstrate to its patrons by
virtue of the outfits, weapons, and badges worn by the officers
and deputy marshall that the officers were protecting the
premises and its patrons.
The present matter is similar to the situation presented in
Groom v. Safeway, Inc., 973 F. Supp. 987 (W.D. Wash. 1997).
In Groom, the plaintiff brought a § 1983 action after an
off-duty police officer who worked as a security guard for
Safeway detained and handcuffed her on the belief that she was
shoplifting after being notified by a store manager that the
plaintiff might have been attempting to shoplift. Id. at 989.
While working as a security guard, the off-duty police officer
wore his Seattle Police Department uniform, he was armed, and
Safeway was paying him for his time. Id. Following a jury trial
in which the jury found Safeway liable under § 1983, the court
affirmed its earlier decision that Safeway acted under color of
state law. The court explained:
In the instant case, Safeway did more than cloak
itself with the authority of the state: it hired an
instrument of the state's power. Officer Hori, his
uniform, his badge, and his gun were all hired to
serve Safeway's goal of deterring theft in its stores. Although Hori acted in his capacity as a
police officer, he did so on Safeway's time. . . .
Thus, the employment relationship gives the private
entity and the state agent an overlapping identity
and interest and sufficiently involves the state in
the relevant actions of the private entity to bring
those actions under color of state law.
Id. at 991. Nevertheless, the court specified that is was not
holding Safeway automatically liable for every action that the
off-duty police officer took. Id. at 992. As a result, it was
possible that the off-duty police officer's actions resulted in a
deprivation of the plaintiff's civil rights while Safeway's
actions did not. Id. The court merely held that "whatever
Safeway did, it did under state law."
The present case, like Groom, is distinguishable from the
cases cited by the Fifty Yard Line. In Profitt v. Ridgeway,
279 F.3d 503, 508 (7th Cir. 2002), the Seventh Circuit held
that a private citizen did not act as a state actor in assisting
a police officer in subduing the decedent because the private
citizen did not cross the line of becoming a temporary police
officer. Similarly, a conservation warden, whose position
consisted of enforcing game laws and not the general enforcement
of state law, did not become a state actor when complaining of
alleged criminal acts to deputy sheriffs. See Hughes v.
Meyer, 880 F.2d 967, 972 (7th Cir. 1989). Further, private
security guards employed by a department store were not state
actors under § 1983 where there was no evidence of a pre-existing
plan between the police and store officials. See Davis v.
Carson Pirie Scott & Co., 530 F. Supp. 799 (N.D. Ill. 1982).
None of these cases cited by the Fifty Yard Line involved police
officers who, while working for a private entity, cloaked
themselves with the authority of their position as police
officers and acted in accordance with that authority. Nor do
these cases involve a private entity employing police officers to
act in accordance with their police functions for the benefit of
the private entity. The Fifty Yard Line also relies upon Otani v. City & Cty. of
Hawaii, 126 F.Supp. 2d 1299 (D.Haw. 1998) in support of its
argument that the Fifty Yard Line was not acting under color of
law. In Otani, the plaintiff claimed that he was assaulted
twice and then arrested by an off-duty police officer who was
employed by a private company to direct traffic at its
construction site. Id. at 1302. The court granted summary
judgment in favor of the company on the plaintiff's § 1983 claim,
finding that the plaintiff had presented no evidence that
suggested that the company was acting in concert with the police
officer when the police officer arrested the plaintiff. Id. at
1306. Although the plaintiff described how the company supervised
and controlled the police officer's actions with respect to his
direction of traffic at the construction site, the company never
instructed the police officer as to how to perform his job of
directing traffic or when or how to arrest people who interfered
with his direction of traffic. Id. In addition, the company in
Otani was required by its contract with the state to hire a
police officer to direct traffic at its construction site. Id.
Unlike the situation presented in Otani, the Fifty Yard Line
hired Officer Clay, Officer McGee, and Deputy Marshall Jones to
police its premises and ensure the safety of its patrons and
staff. The fact that the Fifty Yard Line employed both police
officers and non-police security personnel demonstrates an
awareness on the part of the Fifty Yard Line that the police
officers possessed a different level of authority and
professional training than its non-police security personnel.
Accordingly, the court finds that the Fifty Yard Line was acting
under color of law by virtue of its employment of the police
officers as part of its security force.
A finding that the Fifty Yard Line acted under color of law,
however, is not sufficient to hold the Fifty Yard Line liable
under § 1983. The plaintiffs must also offer evidence that the
Fifty Yard Line caused the deprivation of their constitutional
rights through one of its official policies or practices. See Rodriguez v. Smithfield Packing Co., Inc.,
338 F.3d 348 at 355 (4th Cir. 2003) ("private corporations can
only be held liable under § 1983 if an official policy or custom
of the corporation causes the alleged deprivation of federal
rights") (internal quotations omitted).
In Rodriguez, the Fourth Circuit held that the district court
erred by denying the defendant-private company's motion for
judgment as a matter of law on the plaintiff's § 1983 claim.
Rodriguez, 338 F.3d at 356. An auxiliary deputy sheriff was
chief of security at the private company's plant. Id. at 351.
The auxiliary deputy sheriff was not on the payroll of the
sheriff's department but was nonetheless charged by the sheriff
with handling many law enforcement functions at the plant,
including criminal investigations and the service of civil papers
and criminal warrants. Id. Following an unsuccessful union
election, a fight broke out at the company's plant. The auxiliary
deputy sheriff pepper sprayed one plaintiff, kneed him in the
back, handcuffed him, and arrested him. Id. at 352. A sheriff's
deputy handcuffed and arrested another plaintiff. Id. Both
plaintiffs were taken to jail on a series of misdemeanor charges
at the direction of the auxiliary deputy sheriff. Id. The
plaintiffs argued that the auxiliary sheriff's deputy, as chief
of security for the plant, was the final policymaker for the
company with respect to all arrests an investigations at the
plant. Id. at 356. Therefore, the plaintiffs contended, the
decision of the auxiliary sheriff's deputy to arrest the
plaintiffs should be imputed to the company for the purpose of §
1983 liability. Id.
The Fourth Circuit, however, disagreed with this contention,
explaining that the plaintiffs ignored the fact the company could
not have delegated any policymaking authority to the auxiliary
deputy sheriff because the company lacked authority over county
law enforcement policies. Id. Instead, because the arrest of
[the plaintiffs] was explicitly executed under [the auxiliary
deputy sheriff's] authority as a sheriff's deputy seeking to enforce
North Carolina state law, it was a decision which flowed from the
authority delegated to the [auxiliary deputy sheriff] by the
County Sheriff." Id. The Fourth Circuit further explained,
"When a security guard is acting as a sheriff's deputy exercising
the quintessential state function of arrest . . . the assumption
is that state policies and state training would be guiding the
exercise of that authority, at least in the absence of evidence
that the private entity sought to supplant state policies or
training procedures with policies of its own." Id.
Here, the parties dispute whether the Fifty Yard Line had a
security policy and whether the Fifty Yard Line trained the
police officers who worked security at the Fifty Yard Line. The
deposition testimony of Zach Blasingame established that the
Fifty Yard Line had an unwritten security policy that its
security guards were not supposed to put their hands on patrons
who were causing problems but were instead supposed to ask such
patrons to leave. (Fifty Yard Line's L.R. 56.1, Ex. E at 28-30).
Blasingame discussed this policy in the context of the other
security personnel employed by the Fifty Yard Line, not the
police officers. The Fifty Yard Line also argues that plaintiffs
submitted no evidence of a policy of the Fifty Yard Line to
effectuate improper arrests. Plaintiffs, however, argue that the
Fifty Yard Line caused the deprivation of their constitutional
rights by maintaining a policy of hiring police officers to work
security, by instructing the police officers as to how to perform
their duties, by failing to have safety precautions in place, and
by failing to have a written security policy. In addition, rather
than reporting to the police department as in Rodriguez, the
officers reported to the Fifty Yard Line's management while
working security. This is sufficient to raise a genuine issue of
material fact as to whether the Fifty Yard Line attempted to
supplant the training and policies of the City with its own
security policies. See Groom, 973 F. Supp. at 992 ("Plaintiff's
only argument was that Safeway caused her to be subjected to a
deprivation of her constitutional rights through its hiring and training
policies, or lack thereof, and Plaintiff presented evidence based
on which the jury could have agreed."). Thus, the court denies
summary judgment as to the plaintiffs § 1983 claim against the
Fifty Yard Line.
V. Count IX Violation of the Illinois Constitution
In count IX of the second amended complaint, plaintiffs assert
that the actions of the defendants violated their rights under
Article I of the Illinois Constitution. The City and the Harvey
Police Officers make no argument specific to this count other
than to refer the court to their previous arguments. Based on the
court's own independent research, it would appear that the
plaintiffs may not maintain a separate, independent cause of
action under the Illinois Constitution for battery, false arrest,
excessive force, or malicious prosecution. See, e.g., Ingram v.
Jones, 1995 U.S. Dist. LEXIS 18412, 1995 WL 745849, *4 (N.D.
Ill. Nov. 29, 1995) ("because Illinois common law provides
Plaintiff the remedy of actions for false arrest and excessive
force, this Court finds that an Illinois court considering the
issue would not recognize a right to bring a separate cause of
action under Article I, § 6 of the Illinois Constitution.");
Doe v. V. of T., 2003 U.S. Dist. LEXIS 17570 (N.D.Ill. Sep.
30, 2003) (no cause of action for alleged constitutional where
plaintiff has access to adequate remedies under state common law
or federal law); Tidwell v. Teneyuque, 2001 U.S. Dist. LEXIS
3758, 2001 WL 321052, at *3 (N.D. Ill.Mar. 30, 2001) (no cause of
action existed under the Illinois Constitution for plaintiff's
claims of assault, battery, or false imprisonment because
adequate remedies existed under state common law and federal law,
specifically through § 1983). Defendants, however, failed to make
this or any other argument with regard to count IX and,
therefore, waive any such arguments. See, e.g., Williams v.
REP Corp., 302 F.3d 660, 666 (7th Cir. 2002) (party waives
an argument that it fails to develop). Thus, the court denies
summary judgment as to count IX. ORDER
For the reasons set forth above, Plaintiff Toi Woods' Motion
for Partial Summary Judgment is denied. The City of Harvey
Defendants' Motion for Partial Summary Judgment is granted with
regard to count II as to the City of Harvey; count IV, count V,
count VI, and VIII as to Sergeant Perry; Toi Woods' claims in
count VI as to Officer Clay; count VII as to Sergeant Perry,
Officer Williams, and Officer Richmond; count VIII as to Sergeant
Perry, Officers Clay, Williams, Richmond, and the City of Harvey.
The court denies the City of Harvey Defendant's Motion for
Partial Summary Judgment as to count I; counts IV, and V as to
Officers Clay, Williams, and Richmond; count VI as to Officers
Richmond and Williams; and count IX. The court also denies the
Fifty Yard Line's Motion for Summary Judgment as to count III.