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
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,