United States District Court, S.D. Illinois
May 16, 2005.
RONALD E. WITCHER, Plaintiff,
CITY OF WOOD RIVER, CITY OF WOOD RIVER POLICE DEPARTMENT, GEORGE DAVID, and ARTHUR CHAPMAN, Defendants.
The opinion of the court was delivered by: WILLIAM STIEHL, Senior District Judge
MEMORANDUM & ORDER
This matter is before the Court on defendants' motion for
summary judgment to which plaintiff has filed a response.
Plaintiff's first amended complaint alleges that the plaintiff
was incarcerated in May of 2002 in Wood River, Illinois. Count I
alleges that while incarcerated, defendant George*fn1 used
excessive force against the plaintiff by spraying him with pepper
spray without justification while plaintiff was in his cell.
Plaintiff alleges he suffered physical and emotional injuries,
including burning of his eyes, emotional trauma and distress
requiring medical treatment and counseling.
Count II, which details events before his incarceration,
alleges that defendant Officer Chapman approached plaintiff on a
parking lot and without authority arrested the plaintiff without
reasonable grounds to do so.
FACTUAL BACKGROUND 1. Events surrounding plaintiff's arrest.
The record reveals that Officer Chapman received a call from
the department that a subject was causing a disturbance at a bar
at the VFW in Wood River. (Chapman depo. p. 6.) Chapman and
Officer Redden responded to the call in separate vehicles. (Id.
at 7.) Redden went into the VFW while Chapman checked the area.
Chapman observed the plaintiff walking along Edwardsville Road,
(Id. at 8) about the time that Officer Redden relayed the
description of the person who had been making the disturbance.
(Id. at 9.) At that time, Chapman had been informed that the
VFW was not going to sign a complaint if the plaintiff would
agree not to return. (Id. at 9-10.) When Chapman approached the
plaintiff, he became aggressive and arrogant. (Id. at 10-11.)
Plaintiff admitted he had been at the VFW, (Id. at 11-12) and
continued to act aggressively toward Chapman and Redden, who had
just arrived on the scene. (Id.) Chapman determined the
plaintiff had been drinking, and that he could not safely walk
home. (Id. at 12.) The officers offered to call someone or a
cab to take the plaintiff home. The plaintiff responded by
clenching his fists and moving toward the officers and refused to
obtain a ride. He was arrested by Chapman for being an
intoxicated pedestrian. (Id. at 12-13.)
Plaintiff, in his deposition, acknowledged drinking 8 beers
over a seven hour period while taking a prescription medicine,
prior to going to the VFW. He denied being drunk or intoxicated.
(Plaintiff's depo. pp. 34, 44.) He also acknowledged that was
involved in an event that led to the bartender at the VFW making
a call to the Wood River Police. He stated that at approximately
7 PM he went to the VFW to check out membership and whether they
had some volunteer work for him. (Id. at 34-35.) When he
entered the bar he was told by some of the people there that it
was a "private club," and that he did not belong there. He stated
he was disturbed by the treatment he received and left, but then turned
around and went back in to show them his ID card. (Id. at
37-38.) At that point, the bartender said she was calling the
police and the plaintiff left the bar. (Id. at 38.) He denied
using any violence, vulgarity, yelling, or threatening anyone
while in the bar. (Id. at 43.)
Plaintiff stated that he knew the police would show up, so, at
first, he just waited for them. (Id. at 41, 43.) He then
decided to get some cigarettes and a Dr. Pepper, and to walk
towards his brother-in-law's house, but then turned around to go
get some food at Jack-In-The-Box. (Id. at 45-46.) He recalled
crossing the street and saw the police come into the VFW parking
lot and saw someone in front of the VFW point in plaintiff's
direction. (Id. at 46-47.) The officer came over to him, drew
his gun, then frisked plaintiff and asked him if he had been
involved in a disturbance at the VFW and whether plaintiff had
been drinking. (Id. at 47-48.) He was then arrested for public
intoxication. Plaintiff stated that the officer told him he
should have someone come pick him up, and that the officer was
arrogant, but not threatening. (Id. at 50.)
Plaintiff stated that the officer again asked him if he was
going to call to have someone pick him up, but then opened the
back door to the police car. (Id. at 51.) At that point,
plaintiff stated "there was no way I was voluntarily going to get
in that car if I didn't absolutely, positively have to."
2. Events at the Wood River Jail
Plaintiff stated in his deposition that during the booking
procedure, he tried to concentrate on remaining calm, and that he
cooperated with the booking officer. (Id. at 56.) Plaintiff
states that once in the cell, he tried to use the telephone to
call but "the only two numbers I know is [sic] my home phone number and the wife's cell phone. Every
time I punched up the numbers, it would come up, appears to be
the wrong number. I started to become more I became more and
more agitated. More and more basically, I was getting to the
point of hysterical." (Id. at 59-60.) He acknowledged that
while in the cell he had "extreme panic and anxiety attack," and
that the more he could not get a hold of anyone, the more
concerned he became. (Id. at 61.) He said that he could hear
officers outside the cell door ridiculing him,*fn3 and that
he became more upset and distraught, banged on the door and tried
to explain that the telephone was not working. At that point, he
could not relax or rest and put toilet tissue on the video camera
in the cell so that he could go to the bathroom in private.
(Id. at 63.)
He acknowledged becoming more agitated and that he unrolled the
mattress and the pillow setting them down on the ground and then
began banging his forearm against the door several times. He was
told to stop banging, to which he replied that he would do so if
they would let him notify someone that he was there. Later on he
tried to kick the door, but stopped because it hurt his toes.
(Id. at 64-65.) At this point, he was lying against the door.
Officer George came to the cell door and told him to get away
from the door and that he was going to remove whatever was on the
camera. (Id. at 65-67.) Plaintiff stated that he was laying
down with his back to the door, his feet toward the hinges of the
door. "As soon as I heard the keys and whatnot in the door, I
just sort of rolled over and got my back up against the opposite
wall. The back and shoulders. I was in, like, a crab position on my
hands, knees and butt or hands, knees and butt." (Id. at 66.)
Plaintiff said that George did not threaten him, (id.) but that
he wanted to remove whatever was on the camera. At that point,
plaintiff says that the rolled over parallel with the bunk and
was starting to get up when he was sprayed with pepper spray.
(Id. at 67.) Plaintiff denies doing anything wrong when he was
maced, but was only trying to get away from the door when Officer
George sprayed him in the face with mace, and then left the cell
with the mattress, pillow, and everything else. (Id.)
Officer George was the shift commander the night of the
plaintiff's arrest. He testified in his deposition that on the
night the plaintiff was arrested George was called to check out a
blocked monitor and the fact that the communication part of the
monitor had gone out. (George depo. pp. 7-8.) George knew the
plaintiff had been banging on the door, and that he was lying in
front of the door. (Id. at 9.) George stated that he warned the
plaintiff that he would pepper spray him if plaintiff tried to
hurt George or grab him, and that the pepper spray was out and
ready. (Id. at 10.) George stated that he had the pepper spray
ready because the plaintiff had been cursing and threatening the
police, "cops in general with physical violence." (Id. at 11.)
As soon as he got into the room, he could see toilet paper on the
monitor. The sound went off when the monitor went dead. (Id. at
11-12). George told the plaintiff to stay still and that he was
not going to hurt him, but when George stepped over the plaintiff
to remove the toilet paper the plaintiff swung at George, and
George sprayed plaintiff in the face with pepper spray. (Id. at
13, 14.) George left plaintiff's cell to get a chemical agent to
clean the pepper spray off, but plaintiff would not let George
back in to the cell. He was too aggressive, so George explained
to plaintiff to wash his face off with running water. George then
went back into the cell, and, for security reasons, removed the toilet paper from the camera and removed the
mattress, blanket and toilet paper from the cell. (Id. at
15-16.) George then tried to calm down the plaintiff, and to
reason with him, but was unsuccessful. Plaintiff continued to
kick the cell door with his hands and feet, and threatened to
kill all police officers. (Id. at 18.)
George further testified that shortly after this time the
plaintiff's wife arrived and wanted to take him to a Veteran's
hospital because, according to his wife, he had post-traumatic
stress disorder, that he had problems with authority and hated
policemen. (Id. at 18-19.) A community counselor was called in
to evaluate the plaintiff, who stated that the plaintiff was too
drunk and they could not do anything with him because he was so
intoxicated. (Id. at 19.) George charged the plaintiff with
obstructing a police officer and criminal damage to state
supported property. (Id. at 19-20.) George stated that the
plaintiff was under the influence of alcohol that night, that
George could smell it and the plaintiff admitted it. In addition,
he may have been under the other things. George stated that the
plaintiff, "acted like a drunk. And the strong smell and
everything. I know he had been drinking." (Id. at 23-24.)
Plaintiff denies that he damaged the security camera and the
communications device. (Plaintiff depo. p. 77.) Plaintiff was not
charged with any offenses by the City of Wood River Prosecuting
Summary judgment is appropriate when "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). The moving party has the initial burden of demonstrating that no evidence exists to support the non-moving party's
contentions. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If the moving party meets this burden, then the
non-moving party must set forth specific facts showing that there
is a genuine issue of material fact requiring a jury trial. Id.
at 324. In reviewing a motion for summary judgment, the Court
must view the record and draw all inferences in the light most
favorable to the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). However, "this standard provides
that the mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no
genuine issue of material fact." Id. at 247-48 (emphasis in
original); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236
(7th Cir. 1991) (noting that court is required to draw "only
those inferences that are reasonable").
Defendants seek summary judgment on several grounds. The first
is that although plaintiff has named the individual officers in
Counts I and II, he is improperly attempting to hold the City and
Police Department vicariously liable. The defendants assert that
plaintiff has failed to allege or establish that Wood River had a
municipal policy that would have caused any infringement of
plaintiff's rights, or that the City did anything itself that
would have resulted in a violation of plaintiff's rights.
Particularly with respect to Count II, the count against Chapman,
plaintiff does not even allege, nor argue in response to the
motion, that the City or the Police Department were vicariously
liable. 1. SECTION 1983 LIABILITY
To be successful in a claim under § 1983, the Plaintiff must
demonstrate that: "(1) the defendant deprived the plaintiff of a
right secured by the Constitution and laws of the United States,
and (2) the defendant acted under color of state law." Higgin v.
Johnson, 346 F.3d 788, 791 (7th Cir. 2003) (citing Reed v.
City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996)).
A. Plaintiff's Claims Against the City and the Police
To bring an action against the municipality, the plaintiff must
allege and show that the deprivation of rights occurred as the
result of a municipal policy or custom. The Seventh Circuit has
Unconstitutional policies for purposes of § 1983
liability fall into three categories: "(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
Butera v. Cottey, 285 F.3d, 601 (7th Cir. 2002) (citing
Brokaw v. Mercer County, 235 F.3d 1000
, 1013 (7th Cir.
2000)) quoted in Palmer v. Marion Co., 327 F.3d 585, 592
(7th Cir. 2003). Put another way, in order to state a claim
against a municipality under section 1983, the plaintiff must
also show that the municipality was the "moving force" behind the
alleged injury "through its deliberate conduct." Board of County
Comm'rs of Bryan County v. Brown, 520 U.S. 397
, 404 (1997). The
amended complaint does not allege, nor has plaintiff argued in
response to the motion for summary judgment, that there was a
municipal policy, custom, or practice that would arise to a claim
for municipal liability. "[M]unicipalities cannot be held liable
for § 1983 claims under a theory of respondeat superior."
Garrison v. Burke, 165 F.3d 565
, 571 (7th Cir. 1999)
(citing Monell v. Dep't of Soc. Servs. of City of New York,
436 U.S. 658
, 690 (1978). Thus, to establish a genuine question of fact as to whether these government
entities were deliberately indifferent to plaintiff's safety,
plaintiff is required to establish that the entities have a
custom or policy that contributed to the arrest and to the
excessive use of force. Garrison, 165 F.3d at 571. "[T]here
must be an affirmative link between the policy and the particular
constitutional violation alleged." City of Oklahoma City v.
Tuttle, 471 U.S. 808
, 823 (1985).
Here there is nothing in the record to support a claim against
the municipality or the police department, or that would give
rise to evidence of liability for the corporate defendants under
§ 1983. Accordingly, the Court FINDS that the motion for
summary judgment on Counts I and II as to the City of Wood River
and the Wood River Police Department should be granted.
B. Plaintiff's Claims Against the Individual Officers
It is unclear from the complaint, and the plaintiff's response
to the motion for summary judgment, under what theory of
liability the individual defendants are being sued. When this is
the case, the Seventh Circuit applies the following rule: "Where
the plaintiff seeks injunctive relief from official policies or
customs, the defendant has been sued in [his] official capacity;
where the plaintiff alleges tortious conduct of an individual
acting under color of state law, the defendant has been sued in
[his] individual capacity." Miller v. Smith, 220 F.3d 491, 494
(7th Cir. 2000) (citing Hill v. Shelander, 924 F.2d 1370,
1373-74 (7th Cir. 1991)). In light of the finding above where
the plaintiff has not alleged that the individual defendants
acted in accordance with any municipal policy, practice or
custom, the Court assumes that plaintiff brings this action
against the officers in their individual capacities. 1. Plaintiff's Claim of False Arrest Against Defendant
In order to succeed with a § 1983 claim for false
arrest,*fn4 a plaintiff must show that the arrest was made
without probable cause. Booker v. Ward, 94 F.3d 1052, 1057
(7th Cir. 1996). "The existence of probable cause for an
arrest is an absolute bar to a § 1983 claim for unlawful arrest."
Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir.
1989). While plaintiff claims that he was arrested without
probable cause, all the evidence in the record is to the
contrary. Plaintiff, who acknowledged he had been drinking
(although claims that he was not drunk), was observed by Officer
Chapman walking along the road near the VFW hall in Wood River,
after being identified by people from the VFW hall as the person
who had been involved in the disturbance. After being questioned
by Chapman, plaintiff refused to find someone to drive him home.
Plaintiff acknowledged in his deposition that he was not going to
get into the police car. The record reveals that Chapman believed
that plaintiff had been drinking and could not safely walk home.
Rule 56 provides for the entry of summary judgment against a
party who fails to make a showing sufficient to establish the
existence of an essential element for which they bear the burden
of proof at trial. In order to do so, "a party must present more
than mere speculation or conjecture to defeat a summary judgment
motion." Sybron Transition Corp. v. Security Ins. Co. of
Hartford, 107 F.3d 1250, 1255 (7th Cir. 1997). Where a
plaintiff fails to present sufficient evidence, "there can be `no
genuine issue as to any material fact,' since a complete failure
of proof concerning an essential element of nonmoving party's
case necessarily renders all other facts immaterial." Celotex
Corp., 477 U.S. at 322-23. Therefore, the Court FINDS that it
is appropriate to enter summary judgment in favor of defendant
Chapman on plaintiff's claim of false arrest in Count II.
2. Plaintiff's Claim of Excessive Use of Force Against
To state a claim under § 1983 for excessive force in violation
of the Eighth Amendment, a plaintiff*fn5 must demonstrate
that the force used was applied "`maliciously and sadistically to
cause harm.'" Thomas v. Stalter, 20 F.3d 298, 301 (7th Cir.
1994) (quoting Hudson v. McMillian, 112 S.Ct. 995, 999 (1992)).
Not every malevolent touch by a prison guard gives rise to a
claim of cruel and unusual punishment. Hudson, 112 S.Ct. 995. In
determining whether the force used was "malicious and sadistic,"
the court must consider whether there was a need for the
application of force, the relationship between the need and the
amount of force used, and the extent of any resulting injury.
Whitley v. Albers, 475 U.S. 312, 320-21 (1986).
An excessive force claim requires an inquiry into whether the
defendant's actions were objectively reasonable in light of the
totality of the circumstances confronting them, without regard to
subjective intent or motivation. See Estate of Phillips v. City
of Milwaukee, 123 F.3d 586, 592 (7th Cir. 1997). A
demonstration of mere negligence is insufficient to establish an
excessive force claim under § 1983. See, e.g., Sevier v. City of
Lawrence, 60 F.3d 695, 699 n. 7 (10th Cir. 1995) (citing
Daniels v. Williams, 474 U.S. 327, 331-33 (1986)); Yates v.
City of Cleveland, 941 F.2d 444, 447 (6th Cir. 1991); see
also Roach v. City of Fredericktown, 882 F.2d 294, 297 (8th
A prisoner's exposure to pepper spray or similar chemical
agents can be sufficiently serious to raise Eighth Amendment
concerns. Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.
1984). However, the "use of mace, tear gas or other chemical agent
of the like nature when reasonably necessary to prevent riots or escape or to subdue recalcitrant
prisoners does not constitute cruel and inhumane punishment."
Soto, 744 F.2d at 1270.
Even considering plaintiff's claim that he was just trying to
get away from Officer George at the time he was sprayed with
pepper spray, under the totality of the circumstances, including
plaintiff's apparent intoxicated state, his aggressive prior
behavior of banging on the door, his covering of the video camera
with toilet paper, and the fact that he had threatened harm to
police officers while in the cell, the Court FINDS that the
actions of defendant George were reasonable under the
circumstances and were not deliberately indifferent to plaintiff.
At best, the actions of George were negligent, which does not
give rise to a claim of excessive use of force under § 1983.
Accordingly, the Court FINDS that it is appropriate to grant
summary judgment in favor of defendant George and against
plaintiff on the claim of excessive use of force.
Therefore, the Court GRANTS defendants' motion for summary
judgment in accordance with this Order. Judgment is entered in
favor of defendants the City of Wood River, City of Wood River
Police Department, David George (incorrectly sued as "George
David") and Arthur Chapman, and against plaintiff Ronald E.
Witcher on all claims. Each party shall bear its own costs.
The Clerk of the Court is DIRECTED to enter judgment
IT IS SO ORDERED.