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May 16, 2005.


The opinion of the court was delivered by: WILLIAM STIEHL, Senior District Judge


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." (Id.).*fn2

  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 ...

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