United States District Court, C.D. Illinois, Springfield Division
August 4, 2005.
MARY SALLENGER, as the Administrator of the Estate of ANDREW B. SALLENGER, Deceased, Plaintiff,
CITY OF SPRINGFIELD, et. al, Defendants.
The opinion of the court was delivered by: JEANNE SCOTT, District Judge
This matter comes before the Court on Defendants' Motion For
Summary Judgment (d/e 86) (Defendants' Motion).*fn1
Defendants seek judgment on all claims set forth in Plaintiff
Mary Sallenger's Second Amended Complaint (d/e 83), which alleges violations of Andrew
Sallenger's (Andrew) rights under the First, Fourth, Fifth,
Sixth, Eighth, and Fourteenth Amendments to the
U.S. Constitution, pursuant to 42 U.S.C. § 1983. The Second Amended
Complaint also asserts causes of action under various provisions
of Illinois state law and the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101, et seq. For the reasons set forth
below, Defendants' Motion for Summary Judgment is allowed in part
and denied in part.
STATEMENT OF FACTS
Early in the morning of April 30, 2002, 35 year-old, divorced
Caucasian male Andrew Sallenger experienced a severe psychotic
episode caused by mental illness. At the time of the episode,
Andrew's mother Mary Sallenger (who is the Plaintiff in this
action), his sister Kim Nolan, Ms. Nolan's four children, and
Andrew, were spending the night at Mary Sallenger's Springfield,
Illinois, residence. When Andrew woke the household with his
yells and disturbing behavior, the children, Ms. Nolan, and Ms.
Sallenger left the residence together to call 911.
Ms. Nolan made the 911 call. She reported to the operator that
Andrew was "completely naked and he keeps on yelling at us, keeps
saying that he's sorry and he's got the cat locked in the bedroom. He's
in there breaking all kinds of stuff." Plaintiff's Response to
Defendants' Motion for Summary Judgment (d/e 92) (Plaintiff's
Response), Exh. 1, Deposition of Sergeant Zimmerman (Zimmerman
Dep.), Deposition Exh. 1, 911 Call Transcript, pg. 1. She
requested that the 911 operator dispatch paramedics to the
residence "[t]o take him. I mean he's very, you know, he's very
psychotic. I mean he's running around naked in front of the kids
and everything." Id. at 2. She notified the dispatcher that her
brother was "schizophrenic bipolar manic depressive . . .", and
that she had gone "to the state's attorney today to try to have
[Andrew] involuntarily committed cause he wouldn't go on his own
and they said that they couldn't do nothing cause they didn't
have enough evidence. . . ." Id. at 1-3. She also reported that
Andrew ". . . was after us. We had to run out the door." Id. at
3. Ms. Nolan made the 911 call at 1:49 a.m. Defendants' Motion,
Defendants' Undisputed Fact (DUF) ¶ 2.
Three Department officers were immediately dispatched to the
scene: Sergeant James Zimmerman, Officer Brian Oakes, and Officer
Jason Oliver. All three officers arrived at the Sallenger home by
2:07 a.m. Id., DUF ¶¶ 5 & 7. By this time, Ms. Nolan, Ms.
Sallenger, and the children had returned and were waiting outside the residence for a response to Ms.
Nolan's 911 call.
Upon their arrival, Ms. Nolan notified the officers that Andrew
was mentally ill. Id., DUF ¶ 14. Both Ms. Nolan and the
Plaintiff asked the officers when the paramedics would arrive to
help Andrew, and the Plaintiff told the officers that she wanted
the paramedics to help Andrew, not the officers. Plaintiff's
Response, Additional Material Facts (AMF) ¶¶ 163-64. Nolan
also informed the officers that the back door to the Sallenger
residence was unlocked, and that they could enter the residence
from that point. Defendants' Motion, DUF ¶ 17. Further, she
told Officer Oakes that Andrew was going crazy, throwing things
around the house, chasing the cat, and chasing the members of the
household while naked. Id., DUF ¶¶ 15 & 16.
Officer Oakes informed Sergeant Zimmerman that Andrew had a
mental problem and that he was big and strong. Defendants'
Motion, Exh. 3, Zimmerman Dep., pgs. 54, 75. Officer Oliver
testified that Oakes and Zimmerman mentioned to him that Andrew
had recently had a conflict with Department officers on April 28,
2002. Id., Exh. 2, Oliver Dep., pgs. 34-35. He also testified
that he was informed "that one of the family members told Oakes and Zimmerman that [Andrew] would probably fight with
At the time of the events underlying this suit, Andrew weighed
262 pounds and stood approximately 6' tall. Id., Exh. 5,
Andrew Sallenger Autopsy Report, pg. 5. The officers were also
large men: Sergeant Zimmerman stood 5' 10" tall and weighed 260
pounds; Officer Oakes stood 5' 10" tall and weighed 220 pounds;
and Officer Oliver stood 6' 3" tall and weighed 215 pounds.
Id., Exh. 3, Zimmerman Dep., pg. 102; Exh. 1, Oakes Dep.,
pg. 50-51; Exh. 2, Oliver Dep., pg. 12. Further, both Officers
Oakes and Oliver were weight-lifters, each capable of
bench-pressing approximately 275 pounds. Id.
At the time of the encounter, Department policy was to treat
all individuals equally, regardless of mental illness. Id.,
Exh. 9, Deposition of Chief of Police John Harris (Harris
Dep.), pg. 55. The only support services available to Department
officers for dealing with the mentally disturbed was to have an
ambulance transport the individual to a hospital for observation
and treatment. Id., Exh. 3, Zimmerman Dep., pg. 79;
Plaintiff's Response, AMF ¶ 86. None of the officers had
training specifically designed to help them respond to a mentally
disturbed individual. Id., Exh. 1, Oakes Dep., pgs. 12, 37; Exh. 2, Oliver Dep., pg. 9; Exh. 3, Zimmerman
Dep., pgs. 39, 42, 57. Lieutenant William Pittman, who was the
Assistant Chief of Police responsible for the Field Operations
Division at the time of the incident, testified that Department
police officers encountered mentally ill individuals once per
week on average, and possibly as frequently as once per day.
Plaintiff's Response, Exh. 21, Deposition of Lieutenant
William Pittman (Pittman Dep.), pgs. 62-63. The April 30, 2002,
Department policy of officers treating the mentally ill as they
would any other individual differed from the policy adopted by
the International Association of Chiefs of Police (IACP), which
issued Model Policies for dealing with the mentally ill in April
1997. Id., AMF ¶ 157. That Model Policy stated that:
. . . unless a crime of violence has been committed
and/or a dangerous weapon is involved, officers
should normally respond to the incident or approach a
known mentally ill subject in a low profile manner . . .
officers should request backup and any
specialized crisis intervention assistance available
while taking initial steps necessary to moderate or
diffuse a situation.
Id., AMF ¶ 158.
As the ranking officer, Sergeant Zimmerman led the other
officers into the Sallenger residence. Both he and Officer Oliver
testified that they believed at that point, based on the
information they had received, that they would arrest Andrew for disorderly conduct,
720 ILCS § 5/26-1(a)(1), which is a Class C misdemeanor. Defendants'
Motion, DUF ¶¶ 22 & 23. Officer Oakes, however, testified that
he did not intend to arrest Andrew when he entered the home; he
wanted to get Andrew's side of the story. Id., Exh. 1, Oakes
Dep., pgs. 34-35. The officers entered the home with Sergeant
Zimmerman in the lead, Officer Oakes following, and Officer
Oliver in the rear.
Sergeant Zimmerman announced the officers' entrance into the
Sallenger home by calling out to Andrew and telling him they were
members of the Department. Id., Exh. 3, Zimmerman Dep., pg.
41. Sergeant Zimmerman was unsure when he entered the residence
whether Andrew was still present because Andrew could have exited
the building while his family was making the 911 call. Id. at
71-72. The residence was dark, and the officers used their
flashlights for illumination. Id. at 73. When the officers
first saw Andrew, he was sitting cross-legged on the floor of his
bedroom, completely naked, with his back against the side of his
bed, and his right side facing the officers. Id. The officers
could hear Andrew muttering something about colors and fishing.
Id. at 52-53, 77-78; Exh. 1, Oakes Dep., pg. 110. Sergeant
Zimmerman recalled that there were no lights on in Andrew's bedroom, but Officers Oakes and Oliver remember that
a small bedroom lamp was on. Compare id., Exh. 3, Zimmerman
Dep., pg. 73, with Exh. 1, Oakes Dep., pg. 106-07; Exh. 2,
Oliver Dep., pg. 42.
At first it appeared that Andrew was not aware of the officers'
presence, despite Sergeant Zimmerman's verbal announcements. The
officers advanced toward Andrew's bedroom. Andrew first
acknowledged the officers by saying, "Hey, what are you guys
doing here." Id., DUF ¶ 50. The officers claim that Andrew
next threw a small, white ashtray-shaped item that came to rest
near Sergeant Zimmerman. Id., Exh. 1, Oakes Dep., pg. 124;
Exh. 2, Oliver Dep., pg. 52; Exh. 3, Zimmerman Dep., pg. 88.
Plaintiff disputes this claim, however, based on the fact that
crime scene investigator Sergeant Paul Schuh found no such item
when he investigated the bedroom after the encounter.
Plaintiff's Response, Exh. 10, Schuh Dep., pg. 40.
Andrew then stood up and approached the officers, who had
paused at the threshold of the bedroom, approximately five to six
feet away from where Andrew was sitting. Defendants' Motion,
Exh. 3, Zimmerman Dep., pg. 90. Sergeant Zimmerman, who was
closest to Andrew, testified that after Andrew stood up he swore
at the officers, rushed at Zimmerman, grabbed his shoulder radio equipment, and knocked his flashlight
out of his right hand. Id. at 93-94. Officer Oakes, who was
just behind Zimmerman, testified that Andrew swore at the
officers, threatened to kill them, clenched his fists, and
quickly came at the officers with his fists up. Id., Exh. 1,
Oakes Dep., pg. 124, 127-28. Officer Oliver, who was farthest
away from Andrew and standing behind both Zimmerman and Oakes,
testified that Andrew swore at the officers, clenched his fists
and approached in a "boxing position," stopped in front of
Zimmerman, and then started to reach for Zimmerman with both
hands. Id., Exh. 2, Oliver Dep., pgs. 51, 59-62.
Next, Officer Oakes discharged oleoresin capsicum (OC) spray
into Andrew's face, simultaneously with Sergeant Zimmerman's
contact with Andrew.*fn2 Some of the OC spray also hit
Sergeant Zimmerman in the face. Sergeant Zimmerman pushed Andrew
backward and both fell into the bedroom, with Sergeant Zimmerman
on top of Andrew. Id., DUF ¶ 69. Andrew managed to turn
himself over onto his stomach as Officer Oliver grabbed Andrew's right arm; Officer Oakes moved to control
Andrew's legs, and Sergeant Zimmerman grabbed Andrew's left arm.
The officers struggled with Andrew to get Andrew's arms behind
his back, but Andrew tucked his arms under his torso to prevent
handcuffing. The officers began repeatedly telling Andrew that he
was under arrest and commanding him to stop resisting arrest.
Id., DUF ¶ 86. During the struggle, Andrew repeatedly told
the officers to leave his house and threatened to kill them.
Id., DUF ¶ 89.
Despite the officers' efforts to keep him prone, Andrew brought
himself up onto his hands and knees. Officer Oliver put his knee
across Andrew's shoulder blades to push him back down, but Andrew
was able to lunge to the bed, lifting his torso onto the bed,
with his knees on the floor. The officers found it difficult to
hold Andrew because he was naked, sweating, and covered in the
oil-based OC spray. Id., DUF ¶ 112. All three officers
followed Andrew to the bed, where Andrew tucked his arms under
his torso again. Id., DUF ¶ 116.
At some point in the struggle, the bedroom lamp was knocked
over, plunging the room into darkness. Officer Oakes threw his
flashlight onto the bed to illuminate the room. Ms. Nolan
witnessed the bedroom light go out from her position outside the
home, and then witnessed what she described as a flashlight beam ". . . moving around [inside the
bedroom]. Like a hitting motion. . . ." Id., Exh. 8,
Deposition of Kimberly Nolan (Nolan Dep.), pg. 82.
Soon after Andrew lunged to the bed, however, both Officer
Oliver and Sergeant Zimmerman were successful in getting Andrew's
right and left arms behind his back, and he was handcuffed.
Officers Oakes and Oliver reported that Officer Oakes handcuffed
Andrew, using Officer Oakes' handcuffs, while Officer Oliver and
Sergeant Zimmerman held Andrew's hands behind his back. Id.,
Exh. 1, Oakes Dep., pg. 151; Exh. 2, Oliver Dep., pg. 111.
Sergeant Zimmerman recalled that Officers Oakes and Oliver were
able to put a handcuff on Andrew's right arm before he was able
to control Andrew's left arm enough for it to be handcuffed.
Id., Exh. 3, Zimmerman Dep., pg. 101. Sergeant Zimmerman
reported that it was not until Andrew had reached the bed that
the officers "finally were able to get the arms out from
underneath [Andrew] and get them . . . handcuffed." Id. at
Before Andrew was handcuffed, the officers applied several
progressively severe means of force to get him to comply with
their orders. First, Officer Oliver used several pressure point
techniques, which were ineffective, and Sergeant Zimmerman used an armbar technique in
an attempt to bring Andrew's left arm behind his back. Second,
both Officer Oliver and Officer Oakes administered closed-fist
strikes to Andrew, with Officer Oliver striking Andrew's right
shoulder two or three times, and Officer Oakes striking the right
common peroneal area, a nerve area behind the right thigh, with
two sets of three punches each. Id., DUF ¶ 150; Exh. 1,
Oakes Dep., pgs. 145, 147; Exh. 2, Oliver Dep., pgs. 106-07.
Third, Officer Oakes struck Andrew with three sets of flashlight
strikes, three per set, in Andrew's right common peroneal area.
Id., DUF ¶ 127.
Andrew continued to struggle despite the handcuffs, trying to
pull his hands apart and telling the officers to remove the
handcuffs or he would kill them. Id., DUF ¶¶ 147, 165. In the
course of this struggle, Andrew kicked Officer Oakes several
times. Id., DUF ¶ 143. Officer Oakes was trying to control
Andrew's legs while Officer Oliver held Andrew's shoulders down.
Id., DUF ¶ 177. Both Officers Oakes and Oliver used
additional force, beyond open-hand control, on Andrew to prevent
him from struggling after the handcuffing. Officer Oakes struck
Andrew three more times with his flashlight in the right common
peroneal area. Id., DUF ¶ 149. Officer Oliver delivered two
closed-fist punches to Sallenger's shoulder area, and two flashlight strikes to Andrew's right upper arm, because he
thought Andrew was reaching for his duty belt. Id., DUF ¶¶
After Andrew was handcuffed, Sergeant Zimmerman left the
bedroom to wash out the OC spray that had inadvertently hit him
in the eyes when Officer Oakes sprayed Andrew earlier in the
encounter. Id., DUF ¶ 172. After attempting to wash out his
eyes, Sergeant Zimmerman returned to the bedroom to see if
Officers Oakes and Oliver were okay. They responded
affirmatively. Id., DUF ¶ 174. Then Sergeant Zimmerman left
again to continue to flush the OC spray from his eyes. Id.,
DUF ¶ 176. When Sergeant Zimmerman returned a second time,
Officer Oakes gave him his car keys and asked Sergeant Zimmerman
to bring Oakes the hobble he kept in his police car. Id., DUF
At the time of the incident, Department policy allowed, and
even directed, officers to use hobbles in some circumstances.
Department Special Order #88-20 stated that a hobble ". . .
device will be utilized on combative prisoners . . .", and "the
device shall be used in cases in which a prisoner is displaying
or has indicated signs of a hostile and combative nature."
Plaintiff's Response, Exh. 9, Expert Report of Michael D.
Lyman, Ph.D. (Lyman Report), pg. 11 (quoting Department
Special Order #88-20). No officer training was offered by the Department in the use of a
hobble. Id., AMF ¶ 55. Officer Oakes' hobble was not issued
by the Department, but was privately purchased from a retail
website. Defendants' Motion, Exh. 1, Oakes Dep., pgs. 77-76.
None of the officers had been trained in the use of a hobble,
although Officer Oakes testified that he had read the
instructions that came with the hobble, and had seen other
Department officers use a hobble. Defendants' Motion, Exh. 1,
Oakes Dep., pgs. 78-79, 98; Exh. 2, Oliver Dep., pg. 148;
Exh. 3, Zimmerman Dep., pgs. 122-23. Sergeant Zimmerman knew,
however, that it was important to turn a person restrained in a
hobbled position on his side "to make sure that the airway is
clear and that [the arrestee] can still breathe." Id., Exh. 3,
Zimmerman Dep., pg. 137. Officer Oakes was not aware until
after the incident in question that a hobble could create a risk
of positional asphyxiation. Id., Exh. 1, Oakes Dep., pgs.
When Sergeant Zimmerman returned with Oakes' hobble, Andrew's
torso was still on the bed, with his knees on the floor and his
body in a kneeling position. Defendants' Motion, DUF ¶ 186.
Officer Oliver was partially on the bed, with his right knee on
Andrew's right shoulder area, his right hand pressing on Andrew's
left shoulder, and his left hand pulling up on the handcuff chain to keep Andrew from slipping the handcuffs
or jerking at them. Plaintiff's Response, Exh. 2, Oliver
Dep., pgs. 117-120. Officer Oakes was still trying to control
Andrew's feet. Defendants' Motion, DUF ¶ 183. Sergeant
Zimmerman and Officer Oakes then placed the hobble on Andrew.
Id., DUF ¶ 189.
Officer Oakes described the hobble as a cord that looped around
both of Andrew's legs in the area between his ankles and calves,
connected to a strap that was then attached to the handcuffs.
Plaintiff's Response, Exh. 3, Oakes Dep., pgs. 76-82. Officer
Oakes testified that he pulled the strap connecting the leg
restraint to the handcuffs taunt enough that, although Andrew's
knees were on the floor, "his feet were no longer the toes of
the feet were no longer touching the ground; they were elevated,
more or less . . . [and] [h]is lower legs from below his knees
were . . . pointing towards his butt. . . ." Id. at 87-88.
After the hobble was applied, on Sergeant Zimmerman's command,
all three officers released Andrew and stepped back. Defendants'
Motion, DUF ¶ 195. Sergeant Zimmerman and Officer Oliver
stated that Andrew kept struggling after the hobble was applied.
Id., Exh. 3, Zimmerman Dep., pg. 133; Exh. 2, Oliver Dep.,
pg. 130-31. It is unclear from the record how closely the hobble
drew Andrew's feet and hands together. Plaintiff's Response, Exh. 3, Oakes Dep., pg.
The officers differ in their accounts of Andrew's position
after he was hobbled. Sergeant Zimmerman testified that he rolled
Andrew off the bed and onto his side after Officer Oakes applied
the hobble. Id., Exh. 3, Zimmerman Dep., pgs. 172-73. Yet
Officer Oakes testified that Andrew was hobbled with his torso
leaning up against the bed, and that "[h]e remained in that
position" after he was hobbled. Id., Exh. 3, Oakes Dep., pgs.
87-91. He stated that Andrew was not taken off the bed until
after Sergeant Zimmerman recognized that Andrew was no longer
breathing. Id. at 94-95. Further, Officer Oliver's testimony
agrees with Officer Oakes. Officer Oliver stated that it was not
until after Sergeant Zimmerman asked if Andrew was still
breathing that the officers "[r]olled [Andrew] off of the bed,
[and] took the hobble and the handcuffs off of him." Id., Exh.
2, Oliver Dep., pg. 132. Lieutenant Mark Bridges, of the
Department, testified that when he arrived (shortly before the
officers realized Andrew was no longer breathing), Andrew was
hobbled and leaning against the bed. Plaintiff's Response, Exh.
19, Deposition of Lieutenant Mark Bridges (Bridges Dep.), pgs.
Additionally, Sergeant Zimmerman, Officer Oakes, and Officer
Oliver recount that the time between the hobbling and their realization
that Andrew was no longer breathing was only a few seconds.
Defendants' Motion, Exh. 1, Oakes Dep., pg. 66; Exh. 2,
Oliver Dep., pg. 131; Exh. 3, Zimmerman Dep., pgs. 138-39.
Lieutenant Bridges stated that upon arrival he saw that Andrew
was hobbled and no longer a threat, and quickly checked in with
the officers present. Plaintiff's Response, Exh. 19, Bridges
Dep., pgs. 49-50. To him it appeared that Sergeant Zimmerman and
Officer Oakes were perspiring heavily and were out of breath.
Id., Dep. Exh. 1, pg. 1. It was at that time, according to
Lieutenant Bridges, that Officer Oakes indicated that he did not
think Andrew was breathing. Id. at 50. Sergeant Zimmerman then
checked and found that Andrew was no longer breathing, and
Lieutenant Bridges called for paramedics. Id. at 51. Ambulance
personnel from Springfield Area Ambulance were dispatched to the
Sallenger residence at 2:23 a.m. Defendants' Motion, DUF ¶
Ms. Nolan stated, however, that she witnessed Sergeant
Zimmerman retrieve the hobble from a police car, return with it
to the Sallenger home, and then come out some time later to wipe
off his face. Defendants' Motion, Exh. 8, Nolan Dep., pg.
105-06. Ms. Nolan testified that she heard Andrew scream three
times, and then she followed Sergeant Zimmerman back into the home and to Andrew's bedroom. Id. at 99, 105-06.
At the door to Andrew's bedroom, Ms. Nolan said she reached into
the bedroom, turned on the overhead light, and saw Andrew
handcuffed and hobbled, with his head and chest on the bed and
his knees on the ground. Id. at 103. Responding to Andrew's
appearance, Ms. Nolan stated that she started screaming, ". . .
oh, my God, you killed my brother, you killed my brother." Id.
at 106. She said the officers did not check for a pulse until
after she came into Andrew's bedroom and started screaming. Id.
Officer Oliver stated that he remembered Ms. Nolan coming into
the bedroom after Andrew was handcuffed, but before he was
hobbled. Defendants' Motion, Exh. 2, Oliver Dep., pg. 132-33.
After Sergeant Zimmerman determined that Andrew was not
breathing and had no pulse, the officers removed the hobble and
Andrew's right hand was uncuffed. Id., DUF ¶ 210. Officer
Oakes recalls that Sergeant Daley and Officer Kean entered the
bedroom at this time, and that an officer began cardio-pulmonary
resuscitation (CPR).*fn3 Id., Exh. 1, Oakes Dep., pg. 95. All lifesaving efforts were ultimately fruitless.
Andrew was transported to St. John's Hospital in Springfield,
Illinois. He never regained consciousness, and was declared brain
dead on May 1, 2002. Defendants' Motion, Exh. 5, Andrew
Sallenger Autopsy Report, pg. 1.
Dr. Kent Harshbarger, M.D., J.D., a Sangamon County medical
examiner, performed the autopsy on Andrew. He concluded that the
cause of death was "a cardiorespiratory arrest during prone
police restraint due to excited or agitated delirium. The death
[was] contributed to by clinical history of mental illness,
cardiomegaly, fatty liver, and obesity." Id., Exh. 5, Andrew
Sallenger Autopsy Report, pg. 3. In the course of reaching his
conclusion about the cause of death, Dr. Harshbarger noted that
he had considered "Information . . . provided by personal
conversations with Susan Boone, the Sangamon County Coroner,
hospital chart, Emergency Room Record and Sgt[.] Eric Hall of the
Illinois State Police." Id., Andrew Sallenger Autopsy Report,
Dr. Harshbarger explained that the phenomenon of excited or
agitated delirium is "characterized by agitation, hostility,
bizarre or hyperactive behavior, paranoia, shouting, thrashing,
ranting and usually performing feats of exceptional strength or
endurance without apparent fatigue." Id. In Andrew's case, Dr. Harshbarger opined that his death was "likely
related to the various neurophysiologic or neurochemical
stressors acting upon underlying natural disease processes as
opposed to any clinically relevant reduction in blood oxygenation
during the period of restraint." Id. Further, Dr. Harshbarger
identified Andrew's cardiomegaly, or abnormally large heart, as a
risk factor for sudden cardiac arrest. Id., Deposition of Dr.
Harshbarger (Harshbarger Dep.), pg. 42. In contrast to a normal
male heart of 350 grams, Andrew's heart weighed 550 grams. Id.
Dr. Harshbarger also acknowledged, however, that in cases like
Andrew's where prone restraint techniques are employed:
[m]any investigators focus on the potential for
"positional asphyxia" or reduction in blood
oxygenation as the underlying cause of death,
however, the data to date does not confirm
significant lowering of blood oxygen in healthy
volunteer subjects. The test subjects do demonstrate
a prolonged pulse recovery time when in the prone and
"hobbled" position confirming a physiologic mechanism
affecting the heart that is related only to body
Id., Andrew Sallenger Autopsy Report, pg. 3.
In his examination of Andrew's physical injuries, Dr.
Harshbarger concluded that "there were no injuries identified
internally or externally, at the time of autopsy, which would
explain a sudden death." Id. In his deposition, Dr. Harshbarger pointed out that ". . . the bruises
[on Andrew's body] are significant. . . . many of the contusions
are large and of great force. Particularly in the arms, and the
lateral sides of the arms, lateral sides of the thighs, exactly
where they should be in someone trying to be restrained. [But]
[t]hey're not lethal." Id., Harshbarger Dep., pg. 127.
On September 10, 2002, Chief of Police Harris prohibited
Department officers from using hobbles to subdue arrestees.
Plaintiff's Response, Exh. 9, Lyman Report, pg. 11 n. 24. At
some point thereafter, Officer Oakes destroyed both the hobble he
had used on Andrew during the events at issue here and the
instructions that came with the hobble, and threw them both away.
Id., AMF ¶ 115; Id., Exh. 3, pg. 174. Defendants seek
summary judgment on the Second Amended Complaint which contains
the following claims:
COUNT I 42 U.S.C. § 1983, under the First, Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments to
the U.S. Constitution;
COUNT II Assault and Battery;
COUNT III Unlawful Use of Excessive Force;
COUNT IV Unlawful Use of Deadly Force;
COUNT V Unlawful Arrest; COUNT VII Intentional Infliction of Emotional
COUNT IX Failure to Provide Medical and
COUNT XI Wrongful Death;
COUNT XII Americans With Disabilities Act, pursuant
to 42 U.S.C. § 12101 et seq.;
COUNT XIII Spoilation of Evidence.
See Second Amended Complaint.*fn4
Counts I and XII are
brought against the Individual Defendants and the City of Springfield. Counts II-XI
and XIII are brought against the Individual Defendants and
against the City of Springfield under a theory of respondeat
superior. For the reasons set forth below, Defendants' Motion
is allowed in part, and denied in part.
STANDARD OF REVIEW
At summary judgment, the movant must present evidence that
demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The
Court must consider the evidence presented in the light most
favorable to the non-moving party. Any doubt as to the existence
of a genuine issue for trial is resolved against the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Once the moving party has produced evidence showing that
it is entitled to summary judgment, the non-moving party must
present evidence to show that issues of fact remain. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
I. ADMISSIBILITY OF PLAINTIFF'S EXPERT TESTIMONY As an initial matter, Defendants challenge the admissibility
and sufficiency of the expert testimony Plaintiff relied upon in
responding to Defendants' Motion, based on the Federal Rules of
Evidence (Fed.R. Evid.) and the Federal Rules of Civil Procedure
(Fed.R.Civ.P.). First, Defendants challenge the testimony of
Plaintiff's experts Dr. Michael Lyman, Dr. John Taraska, and Dr.
Jane Velez, by arguing that their opinions are neither admissible
under the Fed.R. Evid. and Daubert v. Merrell Dow
Pharmaceuticals, Inc., nor supported by sufficient evidence to
create a genuine issue of material fact to defeat Defendants'
Motion for Summary Judgment, pursuant to Zenith Electronics
Corp. v. WH-TV Broadcasting Corp. See Daubert, 509 U.S. 579
(1993); Zenith, 395 F.3d 416 (7th Cir. 2005). Second,
Defendants challenge the admissibility of Dr. Kent E.
Harshbarger's testimony, by contending that Plaintiff did not
disclose Dr. Harshbarger as a Fed.R.Civ.P. 26(a)(2)(A) expert.
A. Admissibility of Plaintiff's Expert Opinion Under
Under Fed.R. Evid. 104(a), the Court is vested with the
responsibility of determining the admissibility of expert
testimony by a preponderance of proof.*fn5 Fed.R. Evid. 104(a); Daubert,
509 U.S. at 592 n. 10. In this task, the Court is guided by Fed.R. Evid.
702, which provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.
To determine whether an expert's opinions are based on
"scientific, technical, or other specialized knowledge," the
Supreme Court has set forth a non-exhaustive list of factors to
consider, which has been summarized as follows:
(1) whether the theory is scientific knowledge that
will assist the trier of fact and can be tested; (2)
whether the theory has been subjected to peer review
or publication; (3) the known or potential rate of
error and the existence of standards controlling the
technique's operation; and (4) the extent to which
the methodology or technique employed by the expert is
generally accepted in the scientific community.
Clark v. Takata Corp., 192 F.3d 750
, 757 n. 3 (7th Cir.
1999), citing Daubert, 509 U.S. at 593-94; see also
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999) (holding that Rule 702 applies to "technical, or other
specialized knowledge" as well, and that the Daubert factors
can be considered for those types of knowledge).
This test, however, is a flexible one. Bryant v. City of
Chicago, 200 F.3d 1092, 1098 (7th Cir. 2000). The Daubert
Court noted, "The inquiry envisioned . . . is, we emphasize, a
flexible one. Its overarching subject is the scientific validity
and thus the evidentiary relevance and reliability of the
principles that underlie a proposed submission. The focus, of
course, must be solely on principles and methodology, not on the
conclusions that they generate." Daubert, 509 U.S. at 594-95
(footnote omitted). Further, the Court noted that "[v]igorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence."
Id. at 596. In Kumho Tire Co., Ltd., the Court also explained
that "[t]he trial court must have the same kind of latitude in
deciding how to test an expert's reliability, and to decide whether or when special
briefing or other proceedings are needed to investigate
reliability, as it enjoys when it decides whether or not that
expert's relevant testimony is reliable." Kumho Tire Co., Ltd.,
526 U.S. at 152 (emphasis in the original).
Even if the means used to reach an expert conclusion are
proper, however, an expert's testimony may be inadmissible under
Fed.R. Evid. 702 if the expert fails to properly support his
opinion. The Seventh Circuit has noted:
A witness who invokes "my expertise" rather than
analytic strategies widely used by specialists is not
an expert as Rule 702 defines that term. [The expert]
may be the world's leading student of MMDS services,
but if he could or would not explain how his
conclusions met the Rule's requirements, he was not
entitled to give expert testimony. As we so often
reiterate: "An expert who supplies nothing but a
bottom line supplies nothing of value to the judicial
Zenith Electronics Corp., 395 F.3d at 419, quoting Mid-State
Fertilizer Co. v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333
1339 (7th Cir. 1989).
Defendants contend that the reports and opinions of Plaintiff's
experts, Dr. Michael Lyman, Dr. John Taraska, and Dr. Jane Velez,
do not pass muster under Fed.R. Evid. 702. The Court now turns
to the Defendants' arguments. 1. Dr. Michael Lyman
Defendants argue that Dr. Lyman's expert report, which relies
in part on the International Association of Chiefs of Police
(IACP) model policies and standard of care statement, lacks a
proper foundation because Dr. Lyman never explained why the model
policies of the IACP are a recognized authority in the field.
Defendants' Reply, pg. 32; see Plaintiff's Response, Exh.
9, Expert Report of Michael D. Lyman, Ph.D., pgs. 6-9. However,
Defendants accepted as undisputed the following Additional
Material Fact offered by the Plaintiff: "The model rules
proffered by the International Association of Chiefs of Police
are properly relied on by Chiefs of Police, experts, and
consultants in the law enforcement industry." Plaintiff's
Response, AMF ¶ 18; Defendants' Reply, pg. 4. Defendants are
correct that Dr. Lyman's expert report lacks a proper foundation
with regard to showing that the model policies are accepted as a
recognized authority in police work; however, that fault was
remedied when the Defendants accepted AMF ¶ 18.
2. Dr. John J. Taraska
Defendants object to Dr. Taraska's opinion as stated in his
deposition and Rule 26 report, and as used to support Plaintiff's
Additional Material Facts ¶¶ 98 and 156, because they are "completely devoid of any
reference to medical or scientific literature to support his
opinions." Defendants' Reply, pg. 33. Further, they contend
that Dr. Taraska improperly relied in his Rule 26 report on
Officer Oakes' testimony that a hobble could cause positional
asphyxia, despite the fact that Officer Oakes is not a doctor.
See Plaintiff's Response, Exh. 14, Expert Report of John J.
Taraska, M.D. (Taraska Report), pg. 1 (Dr. Taraska noting that,
"Officer Oakes indicated that a hobble restraint, when used in
this manner, is known to cause positional asphyxia."). Defendants
insist that Dr. Taraska's opinion offered "no medically accepted
and substantiated basis for the determination that a hobble may
cause positional asphyxia", and, therefore, that it cannot be
The Court must determine whether Dr. Taraska has sufficient
specialized knowledge to assist the factfinder in determining
issues of relevance to this case. To make this determination, the
Court reads Dr. Taraska's deposition and Rule 26 expert report
together. Dr. Taraska's curriculum vitae indicates that he is
board certified in anatomic and clinical pathology.
Dr. Taraska's Rule 26 report lists Andrew's cause of death as
"sudden cardiac arrest", caused by several factors, including: "a)
positional asphyxia which resulted in hypoxia, b) the violent
beating incurred at the hands of the three police officers, and
c) secretion of norepinephrine stimulated by the stress of his
beating and restraint by the police officers." Plaintiff's
Response, Exh. 14, Expert Report of John J. Taraska, M.D.
(Taraska Report), pgs. 1-2. He states in his report that he
relied upon Andrew's hospital records of April 30, 2002, Dr. Kent
E. Harshbarger's Autopsy Report, photos from the autopsy, photos
taken by Andrew's family before and after the incident, the
Coroner's inquest, depositions, Andrew's death certificate, and
police reports of the incident in reaching his opinions. Id.
Defendants are correct that Dr. Taraska does not explain in his
report how these factors, which he claimed caused cardiac arrest,
combined to cause Andrew's sudden cardiac arrest. For example,
Dr. Taraska does not explain the significance of the secretion of
norepinephrine in causing cardiac arrest, or state an independent
basis (besides Officer Oakes' statement) for his opinion that a
hobble restraint can cause positional asphyxia. Defendants are
also correct that Dr. Taraska's report references no medical or
scientific literature to support his conclusions.
Dr. Taraska's deposition, however, provides some additional
basis for his opinion. In it, Dr. Taraska describes how the officers'
actions stopped Andrew's heart by depriving it of oxygen after he
had become agitated by the struggle. Dr. Taraska opined that
Andrew's heart stopped because it was beating quickly after the
struggle, and needed more oxygen but could not get it because
Andrew was pinned against the bed and his diaphragm could not
expand. Id. at 15. Dr. Taraska testified:
Q. . . . was [Andrew's death] a culmination of the
entire struggle that wound up putting him in a
position where he wasn't able to breathe and his
A. Yeah, that's because they're on top of him after
he's been hobbled. And the hobbling itself can cause
positional asphyxiation. And he's hobbled,
handcuffed, and then they are on top of him, and his
heart, like I said, is beating faster and faster
because of all the agitation, beating it needs more
oxygen and [Andrew is] not getting it because he
His diaphragm can't move because his abdomen is on
the bed being pinned down. His chest can't move
because Officer Oliver has got his knee in [Andrew's]
back and his two hands pressing down on his shoulder
Q. And is it your understanding that he was still
struggling at that point or that he completely
A. They said he got calmer. I think he was already
dead when they stopped struggling.
* * * Q. So it was your belief then that he was actually
dead before they released and got off of him?
Id., Deposition of Dr. John J. Taraska, pgs. 15-16.
Dr. Taraska's deposition testimony appears based on the
officers' incident reports and depositions with respect to the
positions of the parties and the pressure exerted by the officers
on Andrew's shoulders, back, and diaphragm. His opinion that
Andrew became unable to breathe and suffered cardiac arrest
appears based on the fact that the officers were on top of him
and his diaphragm couldn't move, as well as positional asphyxia
resulting from use of the hobble and secretion of norepinephrine.
Id. Dr. Taraska's deposition excerpt, however, also does not
explain the significance of the secretion of norepinephrine in
causing cardiac arrest, or state an independent basis (besides
Officer Oakes' statement) for his opinion that a hobble restraint
can cause positional asphyxia. Therefore, the Court finds that
Dr. Taraska's opinions that refer to the hobble's role in causing
Andrew's positional asphyxia and to the secretion of
norepinephrine, will not be considered in ruling on the pending
Motion because they are not adequately explained under
Fed.R.Evid. 702 in Dr. Taraska's Rule 26 Report and Deposition. Zenith Electronics Corp.,
395 F.3d at 419, quoting Mid-State Fertilizer Co., 877 F.2d at 1339. The
Court will consider his opinion on the role that the force used
by the officers, and the position of the parties, played in
causing Andrew's death.
3. Dr. Jane Velez
Defendants also dispute Plaintiff's Additional Material Facts
supported by the testimony of Dr. Jane Velez, Psy.D., A.B.P.S.
See Plaintiff's Response, pgs. 44-45, 51, ¶¶ 101-107, 153,
155. Defendants argue that,"Dr. Velez testified in her deposition
that she has no experience or qualifications in regard to police
procedures, therefore the statements in Plaintiff's Additional
Material Facts attributed to her which deal with such matters
have no evidentiary basis and should be stricken." Defendants'
Reply, pg. 33.
By her own admission, Dr. Velez has no expertise in police
procedure. Defendants' Exhibit 16 (d/e 97), Deposition of Dr.
Jane Velez (Velez Dep.), pgs. 49-50. Further, she has no
knowledge of the mental health resources available to Springfield
Police officers in April, 2002. Id. at 48. Accordingly, her
testimony as to the standard in police procedure for dealing with
the mentally ill is unsubstantiated. In light of that fact, her
testimony is irrelevant in this case and is barred.
B. Federal Rule of Civil Procedure 26(a)(2)(A) Disclosure
Defendants move the Court to strike Plaintiff's use of Dr. Kent
Harshbarger, M.D., J.D.'s testimony because Plaintiff did not
disclose Dr. Harshbarger as an expert witness by way of a
Fed.R.Civ.P. 26 report. In Musser v. Gentiva Health Services, the
Seventh Circuit confirmed that under Fed.R.Civ.P. 26, even
treating physicians must be disclosed as experts. Musser,
356 F.3d 751, 758 (7th Cir. 2004). Further, under Fed.R.Civ.P.
37(c)(1), "exclusion of non-disclosed evidence is automatic and
mandatory . . . unless non-disclosure was justified or harmless."
Id. at 758.
Defendants are correct that Plaintiff should have disclosed Dr.
Harshbarger as an expert. Id. at 757, n. 2. This error,
however, was a harmless one that does not justify striking Dr.
Harshbarger's testimony under Fed.R.Civ.P. 37. Dr. Harshbarger
is a public official who served as a Sangamon County medical
examiner at the time of Andrew's death. Dr. Harshbarger performed
the autopsy of Andrew, and filed a public report documenting the
results of that autopsy, on which Defendants rely. See
Defendants' Motion, Exh. 5, May 29, 2002, Report of Coroner's
Physician to the Coroner of Sangamon County, Illinois (Coroner's
Report). Accordingly, Defendants were already on notice that Dr.
Harshbarger was an expert based on his Coroner's Report, and they
have treated him as such. Plaintiff's failure to disclose Dr.
Harshbarger as a Rule 26 expert was a harmless error. Therefore,
Defendants' motion to strike Plaintiff's use of Dr. Harshbarger's
testimony is denied.
II. 42 U.S.C. § 1983 CLAIM AGAINST INDIVIDUAL DEFENDANTS
Plaintiff brings suit against the Individual Defendants in
Count I pursuant to 42 U.S.C. § 1983, for violations of Andrew's
rights under the First, Fourth, Sixth, Eighth, and
Fourteenth Amendments to the U.S. Constitution. Second Amended Complaint,
¶ 65. The Individual Defendants move for summary judgment on
Plaintiff's constitutional claims.
Plaintiff does not contest the Individual Defendants' Motion
with respect to her claims under the First, Sixth, and
Eighth Amendments. Therefore, those claims are dismissed. For the
following reasons, the Individual Defendants' Motion with respect
to Plaintiff's Fourth Amendment excessive force claim is denied;
the Motion is allowed with respect to Plaintiff's
Fourth Amendment failure to provide medical care claim, and the Motion
is allowed with respect to the Fourteenth Amendment claims.
A. Fourth Amendment Excessive Use of Force In Effecting
Plaintiff contends that Sergeant Zimmerman, Officer Oakes, and
Officer Oliver entered into the Sallenger home and proceeded to
illegally arrest Andrew with the use of "excessive and deadly
force".*fn6 Second Amended Complaint, ¶ 42. In opposition
to the Individual Defendants' Motion, Plaintiff states that the
officers "willfully and wantonly ignored the family's pleas for
medical attention and rushed [into] the house, cornered Andrew in
his bedroom, struck him over forty times, eventually causing his
death from positional asphyxiation."*fn7 Plaintiff's
Response to Defendants' Motion For Summary Judgment (Plaintiff's
Response), pg. 54.
Plaintiff's claim concerns Andrew's Fourth Amendment right "to
be secure in [his] person? . . . against unreasonable . . .
seizures. . . ." U.S. Const. amend. IV. Plaintiff's claim is
properly analyzed under the Fourth Amendment's "objective
reasonableness" standard, made applicable to the states through
the Fourteenth Amendment. Graham v. Connor, 490 U.S. 386, 388,
395 (1989). The reasonableness of a "particular seizure depends
not only on when it is made, but also on how it is carried
out." Id. at 395 (emphasis in the original).
To determine if the force used to effect a seizure is
reasonable, "`the nature and quality of the intrusion on the
individual's Fourth Amendment interests' [must be balanced]
against the countervailing governmental interests at stake."
Id. at 396, quoting Tennessee v. Garner, 471 U.S. 1, 8
(1985). Although this balancing test is "not capable of precise
definition or mechanical application," close attention should be
paid to "the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting
to evade arrest by flight." Id. (internal citations omitted).
"Due to the fact-specific nature of the inquiry, the
determination whether a police officer utilized excessive force
depends on the totality of the circumstances surrounding the
encounter." Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 592 (7th Cir. 1997).
The reasonableness of the use of force "must be judged from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight." Graham, 490 U.S. at 396.
Further, the balancing test must allow "for the fact that police
officers are often forced to make split-second judgments in
circumstances that are tense, uncertain, and rapidly evolving
about the amount of force that is necessary in a particular
situation." Id. at 397. To evaluate the "objective
reasonableness" of the use of force, the officers' state of mind
is not relevant.*fn8 Instead:
. . . the question is whether the officers' actions
are "objectively reasonable" in light of the facts
and circumstances confronting them, without regard to
their underlying intent or motivation. An officer's
evil intentions will not make a Fourth Amendment
violation out of an objectively reasonable use of
force; nor will an officer's good intentions make an
objectively unreasonable use of force constitutional.
Id. (internal citations omitted).
In the continuum of force used to effect an arrest, it is
unreasonable for an officer to use deadly force defined as a use of force
"with . . . a substantial risk of causing death or serious bodily
harm", Estate of Phillips, 123 F.3d at 593 unless "the
suspect threatens the officer with a weapon or there is probable
cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical
harm. . . ." Garner, 471 U.S. at 11. In Estate of Phillips,
however, the Seventh Circuit held that "[r]estraining a person in
a prone position is not, in and of itself, excessive force when
the person restrained is resisting arrest." Id. at 593.
Plaintiff urges the Court to evaluate the reasonableness of the
officers' actions at several different moments in time during
their encounter with Andrew (ranging from their initial entrance
into the Sallenger home, to their ultimate subduing of Andrew by
applying handcuffs and a hobble). See Plaintiff's Response,
pgs. 58-59. The Court's analysis, however, focuses primarily on
the force used by the officers to arrest Andrew. It is undisputed
that the officers used no force until they encountered Andrew in
his bedroom in the Sallenger home. Accordingly, the Court's
analysis begins there.
After announcing themselves, entering, and advancing through
the Sallenger home, the officers saw Andrew sitting naked and
cross-legged in his bedroom, with his right side facing toward the officers.
Defendants' Motion, Exh. 1, Oakes Dep., pg. 110; Exh. 3,
Zimmerman Dep., pgs. 52-53, 77-78. The officers claim that
Andrew threw a small, white object the size of an ashtray toward
Sergeant Zimmerman, thereby escalating the situation from an
investigation of possible disorderly conduct to assault. See
Defendants' Motion, Exh. 1, Oakes Dep., pg. 124; Exh. 2,
Oliver Dep., pg. 52; Exh. 3, Zimmerman Dep., pg. 88.
Plaintiff disputes this fact, because no such object was found at
the scene by crime scene investigator Sergeant Paul D. Schuh, and
Schuh reported that no officer mentioned the object to him at any
time during his investigation. Plaintiff's Response, Exh. 10,
Schuh Dep., pg. 40. Viewing the evidence in the light most
favorable to Plaintiff, the Court must assume at this stage that
Andrew did not throw an object at the officers.
The officers also testified that Andrew stood up and approached
them, although they differed slightly in their accounts of the
sequence of events that triggered the use of force against
Andrew. Sergeant Zimmerman, who was closest to Andrew, testified
that after Andrew stood up, he swore at the officers, rushed at
Zimmerman, grabbed his shoulder radio equipment, and knocked his
flashlight out of his right hand. Defendants' Motion, Exh. 3, Zimmerman Dep., pgs. 93-94. Officer Oakes, who was just behind
Zimmerman, testified that Andrew swore at the officers, clenched
his fists, and quickly came at the officers with his fists up.
Id., Exh. 1, Oakes Dep., pg. 127-28. Officer Oliver, who was
farthest away from Andrew and behind Zimmerman and Oakes,
testified that Andrew swore at the officers, clenched his fists
and approached in a "boxing position," stopped in front of
Zimmerman, and then started to reach for Zimmerman with both
hands. Id., Exh. 2, Oliver Dep., pgs. 51, 59-62.
Plaintiff argues that these accounts differ sufficiently to
create a genuine issue of material fact as to whether Andrew
attacked the officers. Viewing this evidence in the light most
favorable to the Plaintiff, however, there is still sufficient
consistency between the officers' accounts to demonstrate that
Andrew approached the officers and put them in apprehension that
he was about to batter Sergeant Zimmerman. See
720 ILCS § 5/12-2(a)(6). Further, Plaintiff can offer no evidence, beyond
minor inconsistencies in the officers' accounts, to raise a
question of fact here. The undisputed evidence is that Andrew
initiated the aggressive behavior toward the officers. Questions
exist, however, with respect to the officers' response to
Andrew's initial aggression. Next, Officer Oakes fired a burst of OC spray into Andrew's
face, and all three officers laid hands on Andrew to take him
into custody. Andrew forcibly resisted the officers' attempts to
arrest him, despite the officers' orders to stop resisting. In
the course of the encounter, it is undisputed that the officers
used their physical strength and mass, various pressure point and
hold techniques, closed-fist strikes, flashlight strikes,
handcuffs, and a hobble device, to subdue Andrew. First, there is
medical evidence that Andrew suffered either a possible
flashlight or closed-fist strike to the head. See Plaintiff's
Response, Exh. 11, Harshbarger Dep., pg. 68 (testifying that
one of Andrew's head injuries was linear and consistent with a
flashlight or closed-fist blow). If Andrew's head injury was
caused by a deliberate blow to the head, that blow may have been
an unreasonable use of force under Garner. Garner,
471 U.S. at 11. The officers deny ever striking Andrew in the head
intentionally; however, viewing the evidence in the light most
favorable to Plaintiff, the Court finds that a question of fact
remains with respect to the reasonableness of the amount of force
Second, once Andrew was handcuffed, Officers Oliver and Oakes
continued to use maximum force flashlight and closed-fist strikes
to subdue him. Officer Oliver stated he delivered two closed-fist
strikes to Andrew's right shoulder, and two flashlight strikes to Andrew's right
shoulder blade area after Andrew was handcuffed. Defendants'
Motion, Exh. 2, Oliver Dep., pgs. 134-37, 142. Officer Oakes
testified that he struck Andrew with his flashlight three times
with maximum force in the rear of Andrew's right thigh after
Andrew was handcuffed. Id., Exh. 1, Oakes Dep., pgs. 155-56.
Both officers testified that they felt the blows were necessary
to control Andrew. Id.
During this time, however, Sergeant Zimmerman left the bedroom
on at least two occasions, to clear his eyes of OC spray, and on
another occasion to secure the hobble from Oakes' squad car.
Id., DUF ¶¶ 176, 182. Thus a question of fact exists regarding
the degree of control the officers had over Andrew when they
administered these strikes since Sergeant Zimmerman felt safe
leaving Officers Oakes and Oliver alone with Andrew on these
three separate occasions. Further, Plaintiff has presented
evidence in the form of expert testimony that closed-fist and
flashlight strikes on a handcuffed arrestee may be an
unreasonable use of force. See Plaintiff's Response, Exh. 15,
Saunders Dep., pgs. 127-28 (Officer Oliver's strikes after
handcuffing "probably should have been stopped").
Third, there is an issue of fact as to whether the hobbling
itself was a reasonable use of force. Officer Oakes testified that after he
administered the fourth and last set of three flashlight strikes
to Andrew's right common peroneal area, Andrew "stopped kicking,
stopped trying to move." Id., Exh. 3, Oakes Dep., pg. 61.
Officer Oakes subsequently contradicted this testimony when he
stated that Andrew still did not quiet down after the last set of
flashlight strikes. Id. at 71. Officer Oakes' testimony also
conflicts with both Sergeant Zimmerman and Officer Oliver's
recollection that Andrew was still struggling when the hobble was
applied. Id., Exh. 1, Zimmerman Dep., pgs. 133, 135; Exh. 2,
Oliver Dep., pg. 130-31. Accordingly, there is still an issue
of fact as to whether Andrew was still struggling when the hobble
was applied and whether the use of the hobble was necessary.
Fourth, there is an issue of fact as to whether the officers
properly positioned Andrew after hobbling him. Sergeant Zimmerman
knew that it was important to roll a hobbled individual onto his
side to keep the airway clear. Id., AMF ¶ 151. Further,
Sergeant Zimmerman testified that he rolled Andrew off the bed
and onto his side after Officer Oakes applied the hobble. Id.,
Exh. 1, Zimmerman Dep., pg. 135. Yet Officer Oakes testified
that Andrew was hobbled with his torso leaning up against the
bed, and that "[h]e remained in that position" after he was hobbled. Id.,
Exh. 3, Oakes Dep., pgs. 87-91. Officer Oakes stated that
Andrew was not taken off the bed until after Sergeant Zimmerman
recognized that he was no longer breathing. Id. at 94-95.
Officer Oliver stated that it was not until after Sergeant
Zimmerman asked if Andrew was still breathing that the officers
"[r]olled [Andrew] off the bed, [and] took the hobble and the
handcuffs off of him." Id., Exh. 2, Oliver Dep., pg. 132.
Lieutenant Mark Bridges testified that when he arrived (shortly
before the officers realized Andrew was no longer breathing),
Andrew was hobbled and leaning against the bed. Id., Exh. 19,
Deposition of Lieutenant Mark Bridges (Bridges Dep.), pgs.
Accordingly, on this claim there exist genuine issues of
material fact with respect to the timing and amount of force used
by the officers and the reasonableness of the force used.
B. Fourth Amendment and a Failure to Provide Medical Care
Plaintiff also contends that Sergeant Zimmerman, Officer Oakes,
and Officer Oliver failed to provide proper medical care to
Andrew when they arrived on the scene and when Andrew began
having difficulty breathing in that they failed to carefully
monitor Andrew's breathing after applying the hobble. Second Amended Complaint, ¶ 40. This claim is also
analyzed under the Fourth Amendment "objective reasonableness"
test. Although in this context the officers' actions, or more
properly alleged inaction is "not readily thought of as
`force,' the Fourth Amendment requires that seizures be
reasonable under all the circumstances; and . . . it would be
objectively unreasonable in certain circumstances to deny needed
medical attention to an individual placed in custody who cannot
help himself." Estate of Phillips, 123 F.3d at 596 (emphasis in
When the officers arrived at the scene, they could have taken
Andrew into custody to transport him to a mental health facility
if, "as a result of [their] personal observation, the [officers
had] reasonable grounds to believe that [Andrew was] subject to
involuntary admission and in need of immediate hospitalization to
protect [himself] or others from physical harm." See
405 ILCS § 5/3-606. To do so, however, the officers would have had to file a
petition giving a detailed statement of the reasons for
involuntary admission, as well as information about those
interested in Andrew's welfare, such as his family.
405 ILCS § 5/3-601. When the officers first entered the home, they observed
Andrew sitting on the floor and heard him muttering about colors
and fishing not causing physical harm to anyone then. Plaintiff concedes Andrew was not an
immediate threat to the safety of anyone then. Plaintiff's
Response, p. 58. However, as soon as the officers approached
Andrew, the altercation between Andrew and the officers began.
Thus, the failure to obtain medical treatment for Andrew before
the physical altercation began is not a basis of liability
against the officers in this case.
The second prong of Plaintiff's claim is that the officers
failed to obtain medical assistance for Andrew after the
altercation with the officers, when he was in police custody.
Sergeant Zimmerman, Officer Oakes, and Officer Oliver recount
that the time between the hobbling (when Andrew was effectively
detained in the officers' judgment) and their realization that
Andrew was no longer breathing was only a few seconds.
Defendants' Motion, Exh. 1, Oakes Dep., pg. 66; Exh. 2,
Oliver Dep., pg. 131; Exh. 3, Zimmerman Dep., pgs. 138-39.
Lieutenant Bridges stated that the officers realized Andrew was
not breathing very shortly after his arrival in Andrew's bedroom.
Plaintiff's Response, Exh. 19, Bridges Dep., pgs. 49-50.
Sergeant Zimmerman recalls Lieutenant Bridges being on the scene
shortly after Andrew was hobbled. Defendants' Motion, Exh. 3,
Zimmerman Dep., pgs. 135-36. Ms. Nolan stated, however, that she witnessed Sergeant
Zimmerman retrieve the hobble from a police car, return with it
to the Sallenger home, and then come out some time later to wipe
off his face. Id., Exh. 8, Nolan Dep., pg. 105-06. Ms. Nolan
testified that she heard Andrew scream three times, and then she
followed Sergeant Zimmerman back into the home into Andrew's
bedroom. Id. at 99, 105-06. At the door to Andrew's bedroom,
Ms. Nolan said she reached into the bedroom, turned on the
overhead light, and saw Andrew handcuffed and hobbled, with his
head and chest on the bed and his knees on the ground. Id. at
103. Responding to Andrew's appearance, Ms. Nolan stated that she
started screaming, ". . . oh, my God, you killed my brother, you
killed my brother." Id. at 106. She said the officers did not
check for a pulse until after she came into Andrew's bedroom and
started screaming. Id.
Viewing the evidence in the light most favorable to the
Plaintiff, and drawing all reasonable inferences therefrom, there
is no issue of material fact supporting the contention that the
officers failed to obtain medical assistance for Andrew in a
timely manner once he was detained.*fn9 After Ms. Nolan heard Andrew scream, she followed Sergeant
Zimmerman into the bedroom, screamed at the officers, and then
observed them check for Andrew's pulse. (She could not
realistically know if anyone had checked Andrew's pulse before
she came into the room). That sequence of events happened in
quick succession. Clearly Andrew was alive at the time Ms. Nolan
heard him scream. Dr. Taraska testified that he believed Andrew
was already dead when they [the officers and Andrew] stopped
struggling and that cardiac arrest manifests itself within
minutes of its occurrence. Plaintiff's Response, Exh. 14,
Taraska Dep., pg. 16; Taraska Report, pg. 2. Once it was
determined that Andrew was not breathing, the officers placed him
on his back on the floor, removed the hobble and the right
handcuff, called for medical assistance, and began CPR.
Defendant's Motion, DUF ¶¶ 210, 211. These efforts to summon
aid for Andrew clearly came within the first few moments after
Andrew quit breathing. The Court, therefore, allows the
Defendants' Motion for Summary Judgment with respect to the
Fourth Amendment claim for failure to provide medical care. C. Fourteenth Amendment Due Process and Involuntary
Plaintiff also argues that Andrew was involuntarily committed
to the State's custody when the officers chose to confront him in
his home instead of calling for medical personnel. Accordingly,
Plaintiff contends that upon Andrew's "involuntarily commitment,"
the City acquired a duty under the Fourth and
Fourteenth Amendments to provide medical treatment to Andrew, and to train
its officers to provide the proper standard of care. Plaintiff
claims that the City failed in this duty and in support of her
claim Plaintiff cites the Court to Youngberg v. Romeo.
Youngberg, 457 U.S. 307 (1982).
However, Youngberg is distinguishable from Plaintiff's claim
on both the facts and on the constitutional principles at issue.
In Youngberg, the Court considered the Fourteenth Amendment
substantive due process rights possessed by a severely mentally
ill man named Romeo who was involuntarily committed through a
legal process to a state mental institution. The Court held that
"[t]he mere fact that Romeo has been committed under proper
procedures does not deprive him of all substantive liberty
interests under the Fourteenth Amendment. Indeed, the state concedes that respondent has a right to adequate food, shelter,
clothing, and medical care." Id. at 315 (internal citations
omitted). The Court also found that Romeo also retained "liberty
interests in safety and freedom from bodily restraint." Id. at
319. Further, the Court held that, the state institution must
work to habilitate or train Romeo to act in a way that will avoid
violation of his liberty interests, to the extent such training
is necessary to further his safety and prevent bodily restraint.
Id. at 322.
In the present case, the officers' interaction with Andrew
cannot be analogized to a commitment proceeding before a court of
law. Further, Graham clearly states that this type of
interaction must be analyzed as a seizure under the
Fourth Amendment. Graham, 490 U.S. at 395 ("all claims that law
enforcement officers have used excessive force deadly or not
in the course of an arrest, investigatory stop, or other
`seizure' of a free citizen should be analyzed under the
Fourth Amendment and its `reasonableness' standard, rather than under a
`substantive due process' approach." (emphasis in the original)).
Finally, Plaintiff misreads Youngberg to the extent that she
attempts to have it stand for the proposition that the City must
train its officers to any specific level. Youngberg's reference
to training focused on training given to Romeo, the mentally disabled respondent, not to the state employees charged
with his care. Youngberg, 457 U.S. at 322. Therefore,
Defendants' Motion for Summary Judgment on this
Fourteenth Amendment claim is allowed also.
D. Qualified Immunity
The Individual Defendants contend that even if Plaintiff has
presented evidence that they violated Andrew's constitutional
right to be free of the use of excessive force, they are entitled
to qualified immunity. "[G]overnment officials performing
discretionary functions generally are granted a qualified
immunity and are `shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.'" Wilson v. Layne, 526 U.S. 603, 609 (1999),
quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity "is `an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to
trial.'" Saucier v. Katz, 533 U.S. 194, 200-201 (2001),
quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
A federal court considering a defense of qualified immunity
must follow a two-step analysis. First, the court must rule on
"this threshold question: Taken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer's
conduct violated a constitutional right?" Saucier,
533 U.S. at 201. If so, then the court must determine whether the right in
question was clearly established at the time of the incident.
"`The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.'" Id. at 202, quoting Anderson,
483 U.S. at 640.
For a right to be clearly established, "it is not necessary
that there be earlier cases with materially similar facts.
Rather, `officials can still be on notice that their conduct
violates established law even in novel factual circumstances.'"
Finsel v. Cruppenink, 326 F.3d 903, 906 (7th Cir. 2003),
quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002). An officer
would not be entitled to qualified immunity if "various courts
have agreed that certain conduct is a constitutional violation
under facts not distinguishable in a fair way from the facts
presented in the case at hand. . . ." Saucier, 533 U.S. at 202.
As noted, supra, there exist genuine issues of material fact
as to whether the force used by Sergeant Zimmerman, Officer
Oakes, and Officer Oliver was excessive. For the purpose of
determining qualified immunity, however, the Court views the evidence in the light most favorable
to Plaintiff. In that light, the evidence is that the officers
delivered repeated, closed-fist blows and blows with flashlights
to the back of Andrew's shoulders and thighs after Andrew was
handcuffed, that the officers continued to strike Andrew and
hobbled him after he had stopped trying to kick or move, and that
the officers did not immediately put him on his side, to assist
his breathing, after hobbling him. The Court concludes when the
evidence is viewed with these assumptions, that the officers' use
of force was excessive. Accordingly, the Court turns to the
second question: whether the contours of the right in question
were clearly established at the time of the incident. Namely, did
Officers Oakes and Oliver's use of closed-fist and flashlight
strikes to Andrew's right arm, right shoulder, and right leg
after he was handcuffed but before he was hobbled, and Officer
Oakes and Sergeant Zimmerman's decision to apply the hobble
itself and the method with which they applied it, violate
Andrew's clearly established rights?
The right to be free of the use of excessive force was clearly
established before the incident in question by both Garner and
Graham. Garner, 471 U.S. 1; Graham, 490 U.S. 386. Although
the Court notes that the situation between Andrew and the
officers escalated into a physical confrontation rapidly, the Court concludes that Officers Oakes and Oliver are
not entitled to qualified immunity for the closed-fist and
flashlight strikes they administered after Andrew was
handcuffed.*fn10 Sergeant Zimmerman and Officers Oakes and
Oliver are also not entitled to qualified immunity for the act of
hobbling Andrew without immediately placing him on his side.
When the officers arrived on the scene, they had probable cause
to believe that Andrew had committed at most disorderly conduct,
a Class C misdemeanor, punishable at most by 30 days in jail.
See 720 ILCS § 5/26-1; 730 ILCS § 5/5-8-3. The officers
received notice from Andrew's family upon their arrival that he
was mentally ill. Further, after Andrew was handcuffed, the
threat to their safety diminished in relation to their increased
control over Andrew. The officers felt secure enough that
Sergeant Zimmerman left the room several times to wash OC spray
from his face. Finally, if Andrew had quit moving and kicking
before the hobble was applied, it is questionable whether a need
to use it existed. And at least one officer [Zimmerman] knew the
importance of turning the hobbled person on his side. Based on the totality of the circumstances surrounding the
incident, and viewing the evidence in the light most favorable to
the Plaintiff, the Court finds that the officers are not entitled
to qualified immunity. Their application of force was objectively
unreasonable when judged from the perspective of a reasonable
officer on the scene in those circumstances, and that right was
clearly established before the incident in question. Graham,
490 U.S. at 388, 395-96.
Therefore, the Individual Defendants' Motion for Summary
Judgment on Count I of Plaintiff's Second Amended Complaint for
violations of Andrew's constitutional rights under the Fourth and
Fourteenth Amendment, is allowed in part, and denied in part. It
is allowed in total with respect to Chief Harris (who was never
at the scene and never directed the officers), and Count I
against him in his individual capacity is dismissed. It is also
allowed with respect to Plaintiff's claim for denial of medical
assistance and involuntary commitment claims against all
Individual Defendants. It is denied, however, with respect to
Plaintiff's Fourth Amendment excessive use of force claims
against Defendants Sergeant Zimmerman, Officer Oakes, and Officer
III. 42 U.S.C. § 1983 CLAIM AGAINST CITY OF SPRINGFIELD Defendant City moves for summary judgment on Plaintiff's claim
against it under 42 U.S.C. § 1983.*fn11 The City cannot be
liable unless Plaintiff can show that Andrew's injuries were
caused by a formal "policy" of the municipality or were part of a
less formal "custom." Monell v. Dep't of Soc. Serv. of City of
New York, 436 U.S. 658, 691 (1978). The Supreme Court has noted
that the plaintiff must show that "deliberate action attributable
to the municipality itself is the `moving force' behind the
plaintiff's deprivation of federal rights." Bd. of County
Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 400
(1997). A municipality's actions can constitute a "moving force"
if a plaintiff can "show that the municipal action was taken with
the requisite degree of culpability and . . . demonstrate a
direct causal link between the municipal action and the
deprivation of federal rights." Id. at 404.
The Seventh Circuit has summarized Supreme Court precedent on
municipal liability under 42 U.S.C. § 1983 and concluded that for
a municipality to be held liable: There must be: (1) an express policy that would cause
a constitutional deprivation if enforced; (2) a
common practice that is so widespread and well
settled as to constitute a custom or usage with the
force of law even though it is not authorized by
written law or express policy; or (3) an allegation
that a person with final policy-making authority
caused the constitutional injury.
Lawrence v. Kenosha County, 391 F.3d 837, 844 (7th Cir.
2004). In this case, Plaintiff relies on the first method of
proving municipal liability. Plaintiff argues that two of the
City's express policies caused Andrew's death: (1) the City's
policy of treating all persons alike and correspondingly failing
to train police officers in how to deal with the mentally ill,
and (2) the City's policy of using hobbles on combative arrestees
without training officers how to properly administer a hobble.
To establish municipal liability for an express policy and
related failure to train, Plaintiff must present evidence showing
. . . in light of the duties assigned to specific
officers or employees the need for more or different
training is so obvious, and the inadequacy [in
training] so likely to result in the violation of
constitutional rights, that the policymakers of the
city can reasonably be said to have been
deliberately indifferent to the need.
City of Canton, Ohio v. Harris, 489 U.S. 378
, 390 (1989)
(emphasis added) (footnotes omitted). A. City Policy of Treating All Citizens Alike
The City contends that it had no express policy to deprive the
mentally ill of their constitutionally-protected rights. In
support, it cites its policy of treating the mentally ill the
same as other citizens.*fn12 Defendants' Motion, DUF ¶
29. On the first prong, Plaintiff has failed to present evidence
sufficient to create an issue of fact as to the adequacy of the
City's training program for its officers. The Seventh Circuit in
Palmquist v. Selvik admonished that "the focus must be on the
[City's training] program, not whether particular officers were
adequately trained." Palmquist, 111 F.3d 1332, 1345 (7th
Conspicuously absent from Plaintiff's case is evidence
regarding the type of training Department officers did receive.
The record indicates that Sergeant Zimmerman, Officer Oakes, and
Officer Oliver had no special training in dealing with the
mentally ill. However, the degree of training of particular
officers is not at issue here. Instead, Plaintiff must show that
the Department's training program itself was deficient. To do
that, one must first demonstrate what the training program was. It is possible
that an existing training program that entails training officers
in how to handle or approach other difficult or intoxicated
subjects would have application to the mentally ill as well. The
absence of proof on what the training actually provided is
critical. See Celotex, 477 U.S. at 323 (summary judgment
appropriate when non-moving party fails to present evidence on an
element on which the party has the burden of proof at trial).
On the second prong, Plaintiff argues that the City was
deliberately indifferent to the constitutional right at issue by
ignoring the 1997 IACP Model Policy for dealing with the mentally
ill, which Dr. Lyman opined is superior to the City's equal
treatment policy. There is evidence that Department officers
encountered the mentally ill on a regular basis. Yet the fact
that better policies were available to the City does not prove a
constitutional violation. "The existence or possibility of other
better policies which might have been used does not necessarily
mean that the [City] was being deliberately indifferent." Frake
v. City of Chicago, 210 F.3d 779, 782 (7th Cir. 2000). The
City's policy of treating the mentally ill the same as every
other citizen is not the type of policy that, on its face,
presents an obvious potential for a constitutional violation.
Further, Plaintiff presents no evidence to show that the Department's officers engaged in a
pattern of constitutional violations involving the mentally
disabled, which the City learned about but ignored.
Without more, the Court cannot conclude that an issue of fact
exists tending to show that the need for more or different
training was so obvious, and the inadequacy of the officers'
training so likely to result in a violation of constitutional
rights, that the City was deliberately indifferent to the needs
of the mentally ill. Therefore, the City's Motion for Summary
Judgment on Plaintiff's claim for failure to train officers with
regard to the mentally ill is allowed. Likewise, the claim that
the City engaged in a pattern and practice of discriminating
against the mentally ill fails.
B. City Policy Regarding Use of Hobble Devices
While the City admits that it had an express policy calling for
the use of hobbles in certain situations, it asserts that
Plaintiff ". . . can point to no incident whatsoever that would
have put officers of the Springfield Police Department or the
City of Springfield on notice that use of such devices was
improper." Defendants' Reply, pg. 38. The City can only be
liable under § 1983 for failing to train officers on how to use
the hobble if Plaintiff can demonstrate that: (1) the training
program at issue is inadequate for the tasks the particular officers must perform; (2) the inadequacy
arises from the city's deliberate indifference to the
constitutional right at issue; and (3) the inadequacy is "closely
related to" or "actually caused" the plaintiff's injury. City of
Canton, 489 U.S. at 389-91. The first prong is satisfied because
the City admits both that it had no training program for the use
of hobbles, and that "it is important for police officers to be
trained in potential causes of positional asphyxiation. . . .
[and that it] . . . is especially important where [the]
department allows the use of hobbles and hog ties." Plaintiff's
Response, AMF ¶¶ 19, 55.
A City can be guilty of deliberate indifference if it fails to
train its employees to handle a recurring situation that presents
an obvious potential for a constitutional violation. The City's
hobble policy called for the use of hobbles on "combative
prisoners", a situation officers can be expected to face
recurrently. Plaintiff's Response, Exh. 9, Lyman Report, pg.
11 (quoting Department Special Order #88-20). The parties
agree that training in positional asphyxiation "is especially
important where [the] department allows the use of hobbles and
hog ties". Id., AMF ¶ 19. Thus, the obvious potential for a
constitutional violation resulting from the use of a hobble is
acknowledged. On the third prong, however, Plaintiff has not presented
evidence to show that the lack of training in the application of
the hobble was closely related to or actually caused Andrew's
death. Even though the City had not trained the officers in the
proper use of the hobble with respect to guarding against
positional asphyxiation, at least one officer who was involved
with hobbling Andrew was aware of it. Sergeant Zimmerman stated
that he knew it was important to roll a hobbled individual onto
his side to enable breathing. Since an officer knew this, any
lack of training in this instance did not cause Andrew's injury.
The officers may have failed to do what they knew to do under
such circumstances, but their failure was not due to a lack of
training. There is no nexus in this case between the failure to
train and the injury to Andrew. Therefore, the City's Motion with
regard to Plaintiff's claim for failure to train officers in the
use of a hobble must also be allowed, and Count I against the
City is dismissed.
IV. STATE LAW CLAIMS AGAINST INDIVIDUAL DEFENDANTS
A. Illinois Tort Immunity Act
Defendants Sergeant Zimmerman, Officer Oakes, and Officer
Oliver argue that they are immune from Plaintiff's state law
claims under 745 ILCS § 10/2-201 because all of their actions
involved determination of policy and the exercise of discretion in performance of their duties as
police officers. Section 10/2-201 states: "Except as otherwise
provided by Statute, a public employee serving in a position
involving the determination of policy or the exercise of
discretion is not liable for an injury resulting from his act or
omission in determining policy when acting in the exercise of
such discretion even though abused." Plaintiff responds by
arguing that the officers' actions should be evaluated for
immunity protection under 745 ILCS § 10/2-202, not § 10/2-201.
Section 10/2-202 states: "A public employee is not liable for his
act or omission in the execution or enforcement of any law unless
such act or omission constitutes willful and wanton conduct."
Plaintiff is correct. The officers' testimony demonstrates that
they entered the Sallenger household to enforce the law. Based on
the representations of the Sallenger family, Sergeant Zimmerman
and Officer Oliver both believed they would arrest Andrew for
disorderly conduct. Officer Oakes wanted to gather more
information before making a decision on whether to arrest Andrew,
but his entry was designed to gather information to enforce the
law. The officers' actions must be evaluated under § 10/2-202,
not § 10/2-201. Accordingly, Defendants are not immune for any
conduct found to be willful and wanton. Willful and wanton conduct is defined by statute as ". . . a
course of action which shows an actual or deliberate intention to
cause harm or which, if not intentional, shows an utter
indifference to or conscious disregard for the safety of
others. . . ." 745 ILCS § 10/1-210. The Seventh Circuit has noted
that one engages in "willful and wanton conduct when he ignores
known or plainly observable dangerous conditions and does
something that will naturally and probably result in injury to
another." Carter v. Chicago Police Officers, 165 F.3d 1071,
1081 (7th Cir. 1998).
As noted, supra, Plaintiff has created a genuine issue of
material fact as to whether the officers used excessive force
after handcuffing Andrew and by applying the hobble. Viewing the
evidence in the light most favorable to the Plaintiff, the Court
finds that there are issues of fact as to whether the officers'
actions were willful and wanton. Therefore, the Individual
Defendants' Motion for Summary Judgment on Plaintiff's state law
claims based on immunity from suit is denied.
B. Illinois State Law Claims
1. Counts II, III, and IV: Assault and Battery, Unlawful Use
of Excessive Force, and Unlawful Use of Deadly Force
The Individual Defendants argue that their conduct was legally justified based on Andrew's resistance and their own right to
self-defense. They may prevail at trial on these issues, but
there are factual conflicts which preclude summary judgment.
Based on the Court's findings above, Plaintiff has created a
genuine issue of material fact as to whether the officers
"intentionally or knowingly without legal justification and by
any means, (1) cause[d] bodily harm to an individual or (2)
[made] physical contact of an insulting or provoking nature with
an individual." 720 ILCS § 5/12-3.
In addition, Plaintiff has created a genuine issue of material
fact as to whether the officers used force likely to cause death
or great bodily harm without justification. A police officer
making an arrest is only entitled to use such force:
when he reasonably believes that such force is
necessary to prevent death or great bodily harm to
himself or such other person, or when he reasonably
believes both that: (1) Such force is necessary to
prevent the arrest from being defeated by resistance
or escape; and (2) The person to be arrested has
committed or attempted a forcible felony which
involves the infliction or threatened infliction of
great bodily harm or is attempting to escape by use
of a deadly weapon, or otherwise indicates that he
will endanger human life or inflict great bodily harm
unless arrested without delay.
720 ILCS § 5/7-5. As discussed above, Plaintiff has presented
evidence showing that as the events unfolded, the officers achieved an
increased degree of control over Andrew by handcuffing him.
Plaintiff has also presented evidence which raises questions as
to whether the officers' continued use of force after handcuffing
Andrew, their decision to hobble Andrew, and the manner in which
they hobbled Andrew was reasonable, and whether they caused
Andrew's death. Therefore, the Individual Defendants' Motion for
Summary Judgment on Plaintiff's state law claims of assault and
battery and unlawful use of deadly force are denied.
The Court notes, however, that Plaintiff's claim in Count III
for excessive use of force is duplicative of Count II. Therefore,
Count III is dismissed.
2. Unlawful Arrest, Count V
Defendants are correct that Plaintiff has presented no evidence
to create an issue of fact as to whether probable cause existed
for the officers to arrest Andrew after he placed Sergeant
Zimmerman in apprehension of being battered. Even the initial
call to 911 would support a finding of probable cause to arrest
for disorderly conduct. Therefore, Defendants' Motion for Summary
Judgment as to Plaintiff's unlawful arrest claim is allowed, and
Count V is dismissed. 3. Intentional Infliction of Emotional Distress, Count VII
Plaintiff alleges that the Individual Defendants intentionally
inflicted emotional distress (IIED) upon Andrew as a result of
their willful and wanton acts, thereby causing "physical injury,
emotional trauma, medical expenses, severe mental anguish and
wrongful death." Second Amended Complaint, ¶ 87. Under Illinois
law, a plaintiff must establish three elements to state a claim
First, the conduct involved must be truly extreme and
outrageous. Second, the actor must either intend
that his conduct inflict severe emotional distress,
or know that there is at least a high probability
that his conduct will cause severe emotional
distress. Third, the conduct must in fact cause
severe emotional distress.
McGrath v. Fahey, 126 Ill.2d 78, 86, 533 N.E.2d 806, 809 (1988)
(emphasis in the original). The severity of the alleged emotional
distress is measured by "`[t]he intensity and duration of the
distress . . .'" Id., quoting Restatement (Second) of Torts
§ 46, comment j, at 77-78 (1965).
Based on the Court's holdings, supra, Plaintiff has created a
genuine issue of material fact as to whether the officers'
conduct was extreme and outrageous, which is the only basis on
which the officers move for summary judgment. Therefore, the
Individual Defendants' Motion is denied. 4. Failure to Provide Medical and Psychological Treatment,
Plaintiff alleges that the Individual Defendants failed to
provide Andrew with medical and psychological treatment. Second
Amended Complaint, ¶ 92. Based on the reasons stated above in
connection with Count I, however, Plaintiff has not created a
genuine issue of material fact as to whether the officers failed
to provide Andrew with medical treatment in a prompt manner.
Further, the officers had no right to take him into custody for
psychological treatment before personally observing his behavior,
which the officers were in the process of performing when the
physical confrontation occurred. 405 ILCS § 5/3-606. Therefore,
Defendants' Motion for Summary Judgment is allowed as to
Plaintiff's claim for failure to provide medical and
psychological treatment as alleged in Count IX.
5. Wrongful Death, Count XI
Plaintiff alleges that the Individual Defendants wrongfully
caused Andrew's death. Second Amended Complaint, ¶ 98. Under
Illinois law, wrongful death occurs when a person's death is
"caused by a wrongful act, neglect or default, and the act,
neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an
action and recover damages in respect thereof. . . ."
740 ILCS § 180/1. Defendant officers argue that there is no issue of fact as
to whether their actions were the proximate cause of Andrew's
Plaintiff has presented evidence from Dr. Taraska that shows
that Andrew died from the force used and the position of the
officers and Andrew. Further, Dr. Taraska's deposition testimony
relates this condition to the officers' actions in subduing him.
Therefore, Plaintiff has created a genuine issue of material fact
as to whether the officers' intentional actions were the
proximate cause of Andrew's death; therefore, Defendants' Motion
for Summary Judgment on Count XI is denied. V. STATE LAW CLAIMS AGAINST JOHN W. HARRIS, CHIEF OF POLICE
It is undisputed that Chief Harris was not present at any time
during the incident in question, and took no direct action
against Andrew. Therefore, his Motion for Summary Judgment as to
Counts II-XI is allowed, and those claims are dismissed against
VI. STATE LAW CLAIMS AGAINST THE CITY OF SPRINGFIELD AS
The City's only grounds for summary judgment for Plaintiff's
state law claims against it under respondeat superior are
derivative of the Individual Defendants' arguments that they are
entitled to summary judgment on all Plaintiff's state law claims.
Plaintiff's state law claims against Sergeant Zimmerman, Officer
Oakes, and Officer Oliver remain for Counts II, IV, VII, and XI.
Therefore, the City's Motion for Summary Judgment on those claims
is denied, but is allowed with respect to Counts V, and IX, which
are hereby dismissed against the City. As previously noted, the
Court dismisses Count III as duplicative of the claims in Count
VII. SPOILATION OF EVIDENCE
Plaintiff asserts a claim for negligent spoilation of evidence
against all Defendants for failure to retain the hobble used to
restrain Andrew. Second Amended Complaint, Count XIII. Defendants argue that their
Motion for Summary Judgment as to Plaintiff's claim should be
allowed because they had no duty to Plaintiff to preserve the
hobble. They further argue that any failure by them to retain the
hobble did not cause prejudice to Plaintiff.
To state a claim for negligent spoilation, a plaintiff must
show "the existence of a duty owed by the defendant to the
plaintiff, a breach of that duty, an injury proximately caused by
the breach, and damages." Jackson v. Michael Reese Hosp. and
Medical Center, 294 Ill.App.3d 1, 10, 689 N.E.2d 205, 211
(1st Dist. 1997), citing Boyd v. Travelers Ins. Co.,
166 Ill.2d 188, 194-95, 652 N.E.2d 267 (1995). There is no common law
duty to preserve evidence, although "a defendant owes a duty of
care to preserve evidence `if a reasonable person in the
defendant's position should have foreseen that the evidence was
material to a potential civil action.'" Id. at 10-11, 212,
quoting Boyd, 166 Ill.2d at 195.
At his deposition, taken June 25, 2004, Officer Oakes testified
that he destroyed the hobble in question "about two years ago,
cut [it] in half, thrown away in the dumpster behind the building
here." Plaintiff's Response, Exh. 3, Oakes Dep., pg. 71. He
explained that he destroyed his hobble because "[a] notice came
out . . . that we are no longer allowed to use [hobbles], so it was rendered worthless. There was no point
to keep it anymore." Id. Further, the record reflects that
Chief Harris issued a notice prohibiting Department officers from
using hobbles to subdue arrestees on September 10, 2002. Id.,
Exh. 9, Lyman Report, pg. 11 n. 24. Accordingly, viewing the
evidence in the light most favorable to Plaintiff, the Court
determines that Officer Oakes destroyed the hobble on or around
September 10, 2002.
Plaintiff's initial Complaint was filed April 28, 2003, at
least seven months after Oakes says he destroyed the hobble.
Complaint (d/e 1). Although Plaintiff alleges in her Complaint
that her attorneys were present at the various Internal Affairs
oral examinations of "various Defendants", Plaintiff presents no
evidence to that affect. See Second Amended Complaint, ¶ 115.
The record is devoid of evidence as to when such oral
examinations occurred and who was present. Therefore, Plaintiff
has not created a genuine issue of material fact as to whether a
reasonable person in the Defendants' position would have
anticipated that the hobble would be material to a civil action
because she has not shown that the Defendants knew a civil action
Further, Plaintiff has also failed to show how her claim has
been prejudiced by Officer Oakes' destruction of the hobble. Plaintiff
contends that she "may be unable to prove her case, because she
may be required to show the distance between Andrew Sallenger's
ankles and hands at the time he was hogtied. . . . [in order to]
affect Dr. Harshbarger's opinion as to Andrew Sallenger dying
from positional asphyxiation." Plaintiff's Response, pg. 83.
When posed with a hypothetical regarding what it would take for
him to reconsider his diagnosis that Andrew died of cardiac
failure, not positional asphyxia, however, Dr. Harshbarger did
not describe the distance between Andrew's feet and hands as
A. . . . if he can't move, and the bed is up against
his abdomen, that's going to impede his ability to
breathe. There's weight applied to him, which impedes
his ability to expand his chest. And he's not
struggling so that he can't get out of that, there's
no release of that position, and we're talking a
period of five minutes then I would, probably,
reflect on [his position that Andrew died of cardiac
failure, not positional asphyxia].
Q. And you might come to a diagnos[is] of positional
A. In an individual case I would come closer to that.
Defendants' Motion, Exh. 5, Harshbarger Dep., pg. 114-15.
Therefore, Defendants' Motion for Summary Judgment on Plaintiff's
negligent spoilation of evidence claim is allowed. VIII. AMERICANS WITH DISABILITIES ACT CLAIM
All Defendants move for summary judgment on Plaintiff's Count
XII, brought pursuant to the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq., which seeks $75,000.00 plus
reasonable attorney's fees and costs from each Defendant.
Defendants Oakes, Oliver, Zimmerman, and Harris contend that the
ADA does not provide for individual liability. Defendant City
asserts that Andrew was neither wrongly arrested due to his
disability, nor denied the benefit of services provided by the
City. For the reasons set forth below, Defendants' Motion is
A. ADA Claim Against the Individual Defendants
Plaintiff alleges that the Individual Defendants are a "public
entity," pursuant to 42 U.S.C. § 12131, and are therefore subject
to suit under the ADA. Second Amended Complaint, ¶ 105. Section
12131 is under Title II of the ADA, which addresses
discrimination with regard to public services by a public entity.
In Walker v. Snyder, the Seventh Circuit held that Title II
does not support suits against individuals for monetary relief.
Walker, 213 F.3d 344, 346 (7th Cir. 2000). In Walker, the
court held that the entity is the proper defendant and that there
was no personal liability for individual defendants under Title
II. Walker, 213 f.3d at 347. In Walker, the court further found that there was no basis for prospective
injunctive relief against the State in federal court that Ex
Parte Young only permitted actions for prospective injunctive
relief against state officers as individuals and that those
officers, as individuals, were not proper defendants under Title
Later case law, however, clarified that a state official could
be sued in his official capacity in federal court for prospective
injunctive relief. See Board of Trustees of Univ. of Alabama
v. Garrett, 531 U.S. 356 (2001); Bruggeman ex rel. Bruggeman v.
Blagojevich, 324 F.3d 906 (7th Cir. 2003); Radaszewski ex
rel. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004). On
that point, Walker has been overruled. However, the balance of
the Walker decision, holding that there is no personal
liability for individual defendants for damages under Title II of
the ADA, remains viable. Plaintiff's contention that Walker has
been overruled on this point is erroneous. Count XII of
Plaintiff's Second Amended Complaint alleges a claim for monetary
damages, not injunctive relief, against the Individual
Defendants. Those Individual Defendants are not an entity. The
proper Defendant for this claim is the City (the public entity)
not the Individual Defendants. Therefore, the Individual
Defendants' Motion for Summary Judgment is allowed on Count XII.
B. ADA Claim Against the City of Springfield
Title II of the ADA states that "no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. § 12132 (Title II).
Defendant City does not dispute that Andrew was a "qualified
individual with a disability," or that it is a "public entity."
Instead, Defendant City asserts that it neither wrongly arrested
Andrew due to his disability, nor denied him the benefit of its
services. Defendants' Motion, pgs. 50-51, citing Gohier v.
Enright, 186 F.3d 1216, 1220-22 (10th Cir. 1999). In
response, Plaintiff argues that the City failed to accommodate
Andrew's disability during the course of the arrest. Plaintiff's
Response, pg. 71.
In Hainze v. Richards, the Fifth Circuit held that "Title II
does not apply to an officer's on-the-street responses to
reported disturbances or other similar incidents, whether or not
those calls involve subjects with mental disabilities, prior to
the officer's securing the scene and ensuring that there is no
threat to human life." Hainze, 207 F.3d 795, 801 (5th Cir. 2000), rehearing en banc denied, 216 F.3d 1081, cert.
denied, 531 U.S. 959 (2000). The Fifth Circuit's approach has
been adopted by various other courts. See Hogan v. City of
Easton, 2004 WL 1836992 (E.D. Pa. Aug. 17, 2004) (finding a
claim under Title II because the situation was secure when the
officers arrived on the scene); Vincent v. Town of Scarborough,
2003 WL 22757940, *25-26 (D. Me. Nov. 20, 2003) (finding that
exigent circumstances prohibited the existence of a Title II
claim); McCray v. City of Dothan, 169 F.Supp.2d 1260, 1274-75
(M.D. Ala. 2001) (finding it per se reasonable "to disregard
a suspect's disability until overriding concerns of public safety
are ensured."), aff'd in part, reversed in part on other
grounds, 2003 WL 23518420 (11th Cir. Apr. 24, 2003). The
Seventh Circuit does not appear to have addressed this issue.
Plaintiff urges the Court to follow the decision in Schorr v.
Borough of Lemoyne, 243 F.Supp.2d 232 (M.D.Pa. 2003). In
Schorr, however, the court stressed that the alleged ADA
violation did not occur at the moment of the violent encounter
between the officers and Ryan Schoor, the bipolar individual whom
the officers had been dispatched to take into custody subject to
an involuntary commitment petition. Instead, the court noted:
The alleged non-compliance with the training
requirements of the ADA did not occur the day that the officers shot
Ryan Schorr; it occurred well before that day, when
the Defendant policy makers failed to institute
polices to accommodate disabled individuals such as
Schorr by giving the officers the tools and resources
to handle the situation peacefully.
Schorr, 243 F.Supp.2d at 238. The Schorr court distinguished
Hainze by noting that it's "exigent circumstance" analysis
would not apply because "Plaintiffs have not brought this action
against any of the officers involved, nor are they challenging
the degree of force used by the officers, and any exigent
circumstances at the time of arrest are therefore irrelevant."
In the present case, however, Plaintiff has filed claims
against the officers involved and challenged their use of force.
There were exigent circumstances present during the 10-15 minute
struggle between Andrew and the officers. The melee began as soon
as Andrew saw the officers in the house.
After reviewing the cases cited above, the Court finds the
Hainze court's analysis most compelling. Hainze recognized
that the safety of the officers and other civilians must be
weighed in the context of Title II's mandate to accommodate a
disability. Hainze, 207 F.3d at 801. Further, the Hainze
court noted that its decision clearly did not foreclose all means
of recovery. Id. The same is true here. Plaintiff may proceed
to trial on her excessive use of force claims. While the Individual Defendants
may be found to have used too much force, there is no evidence
that they used more force against Andrew because of his mental
disability. Any requirement to accommodate his disability during
the course of his arrest would only come into play once the
exigent circumstances surrounding the struggle ceased. In this
case at that point, or very shortly thereafter, Andrew stopped
breathing. The officers then promptly summoned medical help.
Therefore, no genuine issues of material fact exist on this
claim. Defendant City's Motion for Summary Judgment on Count XII
THEREFORE, for the reasons set forth above, Defendants' Motion
For Summary Judgment (d/e 86) is ALLOWED in part, and DENIED in
part. All Plaintiff's claims against Defendant John W. Harris,
Chief of Police, are hereby dismissed. Defendants Sergeant James
Zimmerman, Officer Brian Oakes, and Officer Jason Oliver's Motion
for Summary Judgment on Count I is allowed in part, and denied in
part. It is allowed with respect to Plaintiff's claim of failure
to provide medical care and involuntary commitment claims, but it
is denied with respect to Plaintiff's excessive use of force
claim. It is also allowed with respect to Plaintiff's First, Sixth and Eighth Amendment claims in Count I. Defendants
Sergeant James Zimmerman, Officer Brian Oakes, and Officer Jason
Oliver's Motion for Summary Judgment on Plaintiff's state law and
ADA claims is allowed in part, and denied in part. It is allowed
with respect to Counts III, V, IX, XII, and XIII, but it is
denied with respect to Counts II, IV, VII, and XI. Defendant City
of Springfield's Motion for Summary Judgment is allowed in part,
and denied in part. It is allowed with respect to Counts I, III,
V, IX, XII, and XIII, but denied with respect to Counts II, IV,
VII, and XI.
IT IS THEREFORE SO ORDERED.
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