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DURAN v. TOWN OF CICERO

October 7, 2005.

ALEJANDRO DURAN, et al., Plaintiffs,
v.
TOWN OF CICERO et al., Defendants.



The opinion of the court was delivered by: JOHN GRADY, District Judge

MEMORANDUM OPINION

Before the court are three motions. For the reasons explained below, (1) the motion of defendants Robert DeCianni and William Peslak for summary judgment with respect to the plaintiffs in Group I is denied; (2) the motion of certain defendants for summary judgment with respect to the plaintiffs in Group II is granted; and (3) the joint motion of the individual police officer defendants for partial summary judgment is granted in part and denied in part.

BACKGROUND

  This case is a civil rights action brought by nearly eighty plaintiffs against the Town of Cicero (the "Town") and seventeen Cicero police officers. It arises out of an incident occurring on September 2, 2000, at the home of Alejandro and Maria Concepcion Duran,*fn1 who were having a party to celebrate their daughter's baptism. Plaintiffs are the Durans and their guests at the party.*fn2

  We will briefly outline the facts of this case. Party guests began arriving at the Durans' home in Cicero in the late afternoon of September 2, 2000. At about 8:00 p.m., there were as many as seventy people at the party, which was in the back yard of the home. The Durans provided food and drink for their guests, including beer and wine, and some guests brought their own beer as well. Around 9:30 p.m., the Cicero Police Department (to which we will refer as the "Town") received a telephone call complaining about the party. Officers Waldemar Cruz and Robert DeCianni were sent to check on the party; they arrived at the Durans' home and asked that cars be moved from the alley and that the volume of the music be turned down. The officers then left. Shortly thereafter, the Town received a second telephone call from a neighbor of the Durans complaining about the party. DeCianni responded to the call from the police radio dispatcher by returning to the Durans' home. At this time there were approximately eighty or ninety people at the party. When DeCianni arrived, people in the front yard began arguing with him. Alejandro Duran argued that the music was not too loud and stated that he had a right to have guests at his house. DeCianni radioed the dispatcher and asked for additional officers to come to the house, stating that the owner was being uncooperative.

  Officer Michael McMahon was sent to the house. He became involved in arguments with the party guests as well, so DeCianni radioed the dispatcher to send a supervisor and other officers because people were "getting unruly." Officer Anthony Lewandowski arrived in a police wagon, followed by Officers David Richert and Jason Stroud, then Officers Dino Vitalo and Rhonda Gross, and then Sergeant Thomas Krummick (the aforementioned supervisor). In front of the house, several verbal confrontations occurred between the officers and the party guests, some of whom had moved from the back yard to the front yard. There is no dispute that there was shouting and use of profanities by both the officers and the party guests;*fn3 however, it is disputed whether the officers or the party guests were the aggressors.

  According to DeCianni, Gonzalo Duran threw a can at him, and DeCianni so informed Krummick upon his arrival. A short time later, Gross yelled into her police radio that "all units" should come to the scene immediately. The dispatcher stated that there was an emergency and called for every Town officer to go to the Durans' home, in addition to requesting assistance from the Berwyn and Chicago police departments for a "gang fight." (When and by whom the term "gang fight" was first used is unclear.) At some point, Officer Cruz returned to the home, and others arrived: Detective Attilio Fiordirosa and Officers Rudy Sirgedas, Michael Kirby, Scott Harris, William Peslak, Miguel Jimenez, and Thomas Kratochvil, as well as other officers who are not defendants in this case.

  The situation escalated into what the parties have referred to as a "melee" or a "riot." Some plaintiffs claim that they were hit, hit with asps (batons), shoved, knocked down, punched, pushed, kicked, grabbed, and/or that they had food thrown at them by the officers. Many plaintiffs contend that they were sprayed with pepper spray*fn4 and that officers "verbally abused" them with, among other things, ethnic slurs. Many plaintiffs also contend that they were forced into the Durans' home and that pepper spray was then sprayed into the home.

  The officers maintain that they were attempting to control and calm an angry crowd — not just the party guests, but also various neighbors of the Durans who had come out of their houses into the street. Various officers concede that they used their asps and pepper spray but argue that it was for the purpose of controlling plaintiffs who were attacking, biting, resisting, and struggling with them. Defendants concede that the officers were trying to direct party guests into the house but dispute that any officer sprayed pepper spray directly into the house. The discrete confrontations between plaintiffs and the officers are too numerous to describe here. Instead, we will set forth the relevant facts where necessary infra in our discussion.

  There are two existing videos of some of the events.*fn5 One was filmed by Onofre Barajas, a neighbor who lived across the street from the Durans. Barajas was sitting outside on his front porch when the officers arrived at the Durans' home. After the officers told neighbors and onlookers to go inside their homes, Barajas went inside and then began videotaping, from his window, the events occurring outside on the street, on the sidewalk, and in the Durans' front yard. The video is of insufficient quality or brightness to discern much detail other than the fact that there was a lot of activity and people milling about. It depicts a number of squad cars arriving at the home and several officers coming into the yard, where there were several party guests. At one point officers can be seen directing people into the back yard alongside the house, and someone can be heard shouting, "Move! Move! Move! Move! Let's go! Move!" There is a lot of shouting, screaming, and use of profanity; not much can be heard clearly, except for the officers' directions to people to "get inside the house," "get the fuck inside," "get the fuck in the house," "go inside," and "get inside the house." Some officers enter the house and then exit again shortly thereafter, some of whom are escorting arrestees.

  The other video was filmed by Luis Castaneda, who was the professional videographer hired by the Durans to film the day's events. Most of the video has little relevance because it depicts the baptism and the pre-police-arrival party events. The party scenes are of guests eating and drinking in the back yard in the afternoon and evening. At 1:48:11, after a scene of the cake-cutting in the back yard, a scene begins of officers standing outside the front fence speaking to one of the plaintiffs. Several party guests are standing around in the front yard and on the front porch. It is very noisy, but not many individual sounds can be heard. After about a minute, an officer is overheard telling Castaneda, who is standing on the sidewalk outside the yard, that he must leave. Castaneda gets into his car but continues to film for a couple of minutes (not capturing much of anything but guests on the front porch). At 1:52, Officer Lewandowski opens the car door and demands that Castaneda give him the videotape. Soon thereafter, the tape ends.

  After the situation had calmed down somewhat, the officers arrested seven of the plaintiffs — Alejandro Duran, Armando Duran, Adolfo Duran, Gonzalo Duran, Joel Uribe, Heriberto Uribe, and Juan Carlos Uribe — and brought them to the Town police station. Armando Duran alleges that the jail keeper at the Cicero police station lockup, defendant Walter Wirack, physically and verbally abused him. It is alleged that Wirack also directed racial slurs at the other plaintiffs who had been taken to the jail.

  Juan Carlos Uribe was released (evidently without being charged), and while criminal misdemeanor complaints were signed against Heriberto Uribe and Joel Uribe for obstructing a peace officer, plaintiffs state that those charges were not prosecuted. The four Durans, however, were prosecuted on charges of battery and obstructing or resisting a peace officer; the case was tried to a jury, and they were found not guilty.

  The complaint in this case has gone through several incarnations. The current complaint on file is the Fourth Amended Complaint, which alleges the following claims: § 1983 excessive force, false arrest, and denial of equal protection, brought by all plaintiffs against the individual defendants (Counts I-III); a Monell policy claim brought by all plaintiffs against the Town (Count IV); violation of the Illinois Hate Crime Act, brought by all plaintiffs (except for Alberto Duran Pineda, Sergio Duran, Joel Rico Duran, Maria Marisol Rico Duran, and Maria M. Hernandez (the "Pineda Group")) against all defendants (Count V); malicious prosecution, brought by plaintiffs Alejandro Duran, Armando Duran, Adolfo Duran, Gonzalo Duran, Heriberto Uribe Sr., Joel Uribe, and Juan Carlos Uribe against the individual defendants (Count VI); battery and intentional infliction of emotional distress, brought by all plaintiffs except the Pineda Group against the individual defendants (Counts VII and VIII); spoliation of evidence and respondeat superior claims, brought by all plaintiffs except the Pineda Group against the Town (Counts IX and X); and an indemnification claim brought by all plaintiffs against the Town (Count XI). Plaintiffs seek compensatory and punitive damages as well as reasonable attorney's fees and costs. The individual defendants have filed three motions for summary judgment or partial summary judgment, which we now discuss. Two of the motions refer to plaintiffs in certain "groups" on the "List of Potential Trial Plaintiffs and Defendants" (the "List"). The List was created by defendants at the court's request in order to simplify the analysis of summary judgment motions. The List divides the plaintiffs into four Groups that have claims against corresponding individual defendants. Group I consists of plaintiffs who claim they were inside the Durans' house and experienced ill effects from the pepper spray allegedly sprayed by Officers DeCianni and Peslak. Group II consists of plaintiffs who claim that they were inside the yard and were sprayed and defendants who were initially gathered outside the yard and are alleged to have used pepper spray, regardless of whether it can be shown which plaintiff they sprayed. Group III consists of plaintiffs who claim that they were assaulted by a particular defendant in some manner other than the use of pepper spray and the corresponding defendants. Group IV consists of plaintiffs who claim false arrest and the defendants alleged to have caused the arrests.

  Prior to defendants' filing of the List, plaintiffs had filed two Tables: "Plaintiffs' Table of Plaintiffs and the Defendants Responsible for Certain of Plaintiffs' Injuries" and "Plaintiffs' Table of Defendants and the Plaintiffs They Damaged." The Tables further clarify plaintiffs' claims by specifying exactly which plaintiffs are pursuing exactly which claims against the individual defendants. We will refer to some of the details of the Tables where appropriate.

  DISCUSSION

  Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering such a motion, the court construes the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. See Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). "Summary judgment should be denied if the dispute is `genuine': `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

  We will first address the status of the briefing of defendants' motions. Defendants' current summary judgment motions were filed in October 2004. Plaintiffs then filed a motion to strike defendants' motions on the ground that the briefs were too voluminous. We denied that motion and told plaintiffs they could file one response to all the motions (if they wished), the length of which would not be limited. We indicated that plaintiffs' counsel should use whatever format they believed would render their responses most intelligible to the court. We set a February 18, 2005 due date for plaintiffs' responsive brief or briefs.

  Thereafter, plaintiffs moved three times for extensions of time to submit their responses. In view of the complicated nature of the case and the multiple issues involved, each motion was granted. The latest due date for the response was June 30, 2005. That date passed without any brief from plaintiffs, and no motion for another extension of time was filed. In early August 2005, chambers staff contacted plaintiffs' counsel, who indicated that plaintiffs intended to move for another extension of time. Chambers staff informed plaintiffs' counsel that the next date the court would be hearing motions would be September 7, 2005, and that the motion for an extension of time should be noticed for that date. September 7 passed without a motion being filed by plaintiffs, as well as our next three motion hearings on September 14, 21, and 28, 2005.

  We have gone out of our way to give plaintiffs every opportunity to respond meaningfully to the motions, and they have failed to do so. A district court is entitled to, and indeed must, enforce its deadlines, and it has substantial discretion to manage its docket. See Reales v. Consolidated Rail Corp., 84 F.3d 993, 996 (7th Cir. 1996) (holding that district court did not abuse its discretion in denying plaintiffs a fourth extension of time to respond to summary judgment motion and in proceeding to decision on summary judgment).

  Thus, we will now consider the substance of defendants' motions without the benefit of a submission by plaintiffs. Of course, we will fully analyze the merits of defendants' motions before deciding them. See Fed.R.Civ.P. 56(e) (providing that if an adverse party does not respond to a motion for summary judgment, "summary judgment, if appropriate, shall be entered against the adverse party") (emphasis added)). Because plaintiffs have failed to respond to defendants' motions, those facts asserted in defendants' statement of material facts that have been properly supported with evidence are deemed admitted. See N.D. Ill. Local Rule 56.1(b); Waldridge v. American Hoechst Corp., 24 F.3d 918, 922-24 (7th Cir. 1994).

  A. Motion for Summary Judgment on Behalf of Robert DeCianni and William Peslak with Respect to Plaintiffs on List One*fn6

  The Group I plaintiffs allege that they were inside the house and experienced ill effects from the pepper spray that was purportedly sprayed into the back door of the Durans' house.*fn7 Officers DeCianni and Peslak move for summary judgment on their claims for resulting injuries.

  1. Affidavits

  The Officers' first argument is that they are entitled to summary judgment on the facts. The evidence that DeCianni sprayed into the house comes from a single plaintiff, Jose Refugio Paredes (who is not one of the Group I plaintiffs). Similarly, the evidence that Peslak sprayed into the house comes from a single plaintiff, Maria Alicia Moreno (who is also not one of the Group I plaintiffs). No other plaintiff can identify any particular officer as having sprayed into the house. We will refer to Jose Refugio Paredes as "Paredes" and to Maria Alicia Moreno as "Moreno" in this section for convenience.

  The evidence from Paredes and Moreno comes from the affidavits that were filed by several plaintiffs after defendants filed the first round of summary judgment briefs.*fn8 Over defendants' objection, we permitted those affidavits to be filed, and we denied defendants' subsequent motions to strike the affidavits. DeCianni and Peslak contend that the statements in the affidavits of Paredes and Moreno should not be allowed to create genuine issues of fact on summary judgment because they contradict prior testimony in interrogatories (Paredes) and at deposition (Moreno).

  The Seventh Circuit has "long followed the rule that parties cannot thwart the purposes of Rule 56 by creating `sham' issues of fact with affidavits that contradict their prior" sworn statements. Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996). "When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Id. at 1170 (quoting Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984)). The rule "serve[s] an important purpose of weeding out non-meritorious claims for which a trial is not necessary. . . . [but] must be applied with caution." Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 638 (7th Cir. 2004). In light of the jury's role in resolving questions of credibility,
A definite distinction must be made between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence. . . . To allow every failure of memory or variation in a witness's testimony to be disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the witness . . . was stating the truth. Variations in a witness's testimony and any failure of memory throughout the course of discovery create an issue of credibility as to which part of the testimony should be given the greatest weight if credited at all.
Bank of Illinois, 75 F.3d at 1169-70 (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953-54 (11th Cir. 1986)). Stated a bit differently, the assessment is "whether a subsequent statement so squarely contradicts an earlier one as to create only a sham issue of fact." Bank of Illinois, 75 F.3d at 1170. A "contradiction" exists only when the two statements are "inherently inconsistent" and not when the later statement merely clarifies an earlier statement that is ambiguous or confusing or is based on newly discovered evidence. See Flannery, 354 F.3d at 638; Bank of Illinois, 75 F.3d at 1171-72.
  We begin with Paredes, whose affidavit states in relevant part:
3. Defendant Robert DeCianni sprayed me in the face with pepper spray for no reason. I was holding my son, Jose Paredes, Jr., then age 2, in my arms at the time. Jose was sprayed with pepper spray. My daughter, Amanda Paredes, then age 9, was holding onto my leg at the time. Amanda was sprayed with pepper spray as well.
4. I saw Robert DeCianni spray pepper spray into the rear door of the Duran home and then close the door.
(Affidavit of Jose Refugio Paredes, Ex. 135 of Plaintiffs' Exhibits in Support of Plaintiffs' Table of Defendants.) Defendants assert that Paredes' earlier answers to interrogatories contradict these statements. Defendants point to Interrogatory No. 12 and the answer, which are as follows:
INTERROGATORY NO. 12: Identify each person you claim to be responsible for causing your injury(ies) . . ., and identify with particularly [sic] how each person acted to cause your injury. If you are unable to identify each person by name, provide a description of the individual, . . . and/or the letter of the photograph depicting the person in the photograph reproductions previously supplied in discovery.
ANSWER: I was sprayed, but do not recognize who did it. There were many police officers. Plaintiff relies on identification made by other plaintiffs.
(Plaintiff Jose Refugio Paredes's Responses to the Individual Defendants' Interrogatories, Ex. 35 of Plaintiffs' Exhibits in Support of Plaintiffs' Table of Defendants.) Defendants also point to Paredes's answers to interrogatories on behalf of his son and daughter, Jose and Amanda, in which Paredes stated that he did not know who was responsible for Jose and Amanda's injuries and was relying on identification made by other plaintiffs.

  According to defendants, at the time the interrogatories were answered, plaintiffs had access to photographs of the officers as well as the two videotapes of the events on September 2, 2000 (in which DeCianni is visible). Moreover, DeCianni had sat for two videotaped depositions. Defendants contend that the "mysterious identification of Officer DeCianni by someone who could not previously identify him, despite having access to photographs, live testimony and videotape, renders the testimony dubious and of no weight." (Mem. in Support of Motion No. 1 at 5.)

  There are two statements in Paredes's affidavit that must be compared to his prior interrogatory answers: (1) DeCianni sprayed him in the face; and (2) DeCianni sprayed into the house and then closed the door. The second statement is really the only statement that is critical to this particular motion; the first statement goes only to Paredes's own claim against DeCianni and not that of the Group I plaintiffs. Nonetheless, we will have to address the first statement in any event, and might as well do so now.

  "I was sprayed, but do not recognize who did it" (emphasis added) is a statement that Paredes, at that particular point in time, was unable to identify who sprayed him. Paredes's later identification of DeCianni as having sprayed him in the face does not strike us as being so "inherently inconsistent" with earlier having been unable to identify DeCianni as to constitute a sham. Identification of the officer who injured him is in part a function of Paredes's memory. In Bank of Illinois, the Seventh Circuit warned against "allow[ing] every failure of memory or variation in a witness's testimony to be disregarded as a sham." 75 F.3d at 1170 (quoting Tippens, 805 F.2d at 953). This variation in testimony creates an issue of credibility that defendants will be free to point out at trial, but it does not rise to the level of an "inherent inconsistency" that requires it to be disregarded on summary judgment.

  Paredes's second statement, which is more important for purposes of this motion, is that DeCianni sprayed into the house. Paredes is not one of the Group I plaintiffs, so he does not claim that he was in the house at the time and he does not claim that he himself was injured by this particular act of spraying into the house. Paredes was asked in Interrogatory Number 12 to identify who caused his particular injuries, not the injuries of others. Therefore, his statement that he did not recognize who caused his injuries does not conflict with his statement that he saw DeCianni spray into the rear door of the house and then shut the door. To the extent that defendants contend that the statements conflict simply because Paredes identified DeCianni as doing something in particular whereas earlier he could not identify him at all, our analysis regarding Paredes's first statement applies.

  We move on to Moreno, whose affidavit states in pertinent part:
3. I was in the backyard holding my son, Jose Adrian Moreno, and I was sprayed indirectly with mace.
. . .
  5. Thereafter, I saw William Peslak go up the back stairs and I followed him. I saw William Peslak open the door that enters on the kitchen and spray mace into the kitchen. I then heard screams. William Peslak turned to me and sprayed me in the face with mace and told me to get out. I was holding my son, Jose Adrian Moreno, then one year old, in my arms at the time and he was covered with spray. (Affidavit of Maria Alicia Moreno, Ex. 132 of Plaintiffs' Exhibits in Support of Plaintiffs' Table of Defendants.)
  Defendants argue that the affidavit contradicts Moreno's deposition testimony (which was provided through an interpreter), the relevant portion of which is as follows:
Q. Now, you said in your interrogatory answers that you were sprayed with pepper spray, is that correct?
A. Not directly, but from what was there, I got it and also my child did.
. . .
Q. You said that you weren't sprayed directly by spray but that you still had the effects of spray, and just because we want the record clear, could you tell us what you meant by that?
A. Well, I was in the back in the yard with my child. Because my husband was in the front. He was looking for the other children. I don't even know how the policemen got directly throwing the tables.
I was sitting down giving cake to my child. The policeman came behind Gonzalo with the spray. I heard that the people were screaming. I heard the people saying that they were throwing spray, and they were crying. And I know they throwed the spray on Gonzalo maybe because they wanted him to fall down. I don't know.
I was able to put my baby with his head in the back. It didn't fall on my eyes, but it fell — uh-huh — it didn't fall directly. I closed my eyes. I went to the side. If I hadn't covered myself, it would have hit my eyes. . . . That's how it happened.
(Tr. of Maria Alicia Moreno Dep. at 7-9.)

  As with Paredes's affidavit, there are two statements in Moreno's affidavit that must be analyzed separately, and the second statement is more pertinent to the instant motion: (1) Peslak sprayed her in the face; and (2) Peslak opened the door leading to the kitchen and sprayed into the kitchen.*fn9 The first statement squarely contradicts Moreno's earlier deposition testimony. Moreno was asked if she was sprayed, and she responded, "not directly." When she was again asked what she meant (prefaced by the introductory phrase "you said that you weren't sprayed directly"), she described feeling the effects of pepper spray that had been used in the yard. Moreno did not say that she was ever sprayed directly in the face, let alone sprayed directly by Peslak. Therefore, the statement that "William Peslak turned to me and sprayed me in the face with mace" will be stricken from Moreno's affidavit and disregarded.

  The statement that Peslak sprayed into the kitchen, on the other hand, does not contradict the above-quoted deposition testimony. It pertains to a completely different subject than the manner in which Moreno was sprayed: what Moreno witnessed that injured others. Defendants do not point to any follow-up questions they asked Moreno, such as "Did you see anyone else getting sprayed?", and we can find none in the transcript excerpt. Moreno's statement that Peslak opened the door to the kitchen and sprayed into the kitchen will not be stricken.

  2. Qualified Immunity

  Officers DeCianni and Peslak's second argument is that they are entitled to qualified immunity on the excessive force claims for the alleged spraying of pepper spray into the house. The qualified immunity analysis has two parts. We consider (1) whether the alleged conduct establishes a constitutional violation; and (2) whether the constitutional standards were "clearly established" at the time of the events. See Green v. Butler, 420 F.3d 689, 700 (7th Cir. 2005).

  As for the "constitutional violation" prong, plaintiffs maintain that the spraying of pepper spray into the house violated the Fourth Amendment. Defendants argue that the Group I plaintiffs cannot make out a Fourth Amendment claim because they were not seized and that plaintiffs' claims therefore fall under the Fourteenth Amendment. Plaintiffs have a higher burden under the Fourteenth Amendment analysis because they must prove that the officers' conduct "shocks the conscience"; under the Fourth Amendment, the officers' conduct is assessed by the "objective reasonableness" standard. See County of Sacramento v. Lewis, 523 U.S. 833 (1998); Graham v. Connor, 490 U.S. 386 (1989). During oral argument on defendants' initial motions for summary judgment, we indicated that we were likely to reject defendants' argument that there was no seizure of the Group I plaintiffs and provided our reasoning. Our view has not changed.

  Defendants characterize the Group I plaintiffs as falling into three categories: (1) those who were already inside the house when the spraying took place; (2) those who went inside the house when the melee began outside; and (3) those who went inside the house because they heard a police officer tell people to go inside.*fn10 According to defendants, plaintiffs in the first two categories cannot make out a Fourth Amendment claim because a seizure occurs only when an individual's freedom of movement is terminated by means that are intentionally applied, and neither officer took any action to seize plaintiffs who were already inside the house or who voluntarily went inside the house. (Mem. in Support of Motion No. 1 at 11.) As to the third category of Group I plaintiffs, defendants contend that there is no evidence that DeCianni or Peslak "ordered these Plaintiffs into the house or acted in concert with some other officer who may have ordered the Plaintiffs into the house." (Id.)

  A seizure can occur when an officer "by means of physical force or show of authority has in some way restrained the liberty of a citizen." United States v. Mendenhall, 446 U.S. 544, 552 (1980) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)). A person is "seized" under the Fourth Amendment "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Id. at 554.

  Defendants are correct that some of the Group I plaintiffs were already inside the Durans' home before the officers arrived. There is evidence that when the officers arrived, several additional plaintiffs who were outside in the yard were told by officers to "get inside the house" and "get the fuck inside." Those commands can be heard on the Barajas videotape. At the time, there were numerous police officers in the yard, outside the yard, alongside the house, and entering and exiting the house. In addition, several plaintiffs, including Juan Carlos Uribe Pineda and Joel Uribe, testified at deposition that they were told to "get the fuck inside" and that they complied by going inside. Alejandro Duran testified at deposition that an officer or officers told several plaintiffs to go inside, that the plaintiffs did not want to go inside, and that the officers pushed people into the house. (Tr. of Alejandro Duran Dep. at 123.) Other plaintiffs, including Jesus Uribe, Juana Soto, and Serafin Rios, state in their affidavits that they were pushed or forced inside the house by officers. Officer Miguel Jimenez testified that after he arrived at the scene and went up the front stairs to the porch, he heard other officers "asking" people to go inside, and that several plaintiffs complied. (Tr. of Miguel Jimenez Dep. at 11-12.)

  Once the officers managed to get some of the plaintiffs into the house, there is evidence that everyone who was inside the house was instructed to stay in the house. (Tr. of Alejandro Duran Dep. at 123; Tr. of Adolfo Duran Dep. at 62.) Several Group I plaintiffs (Alejandro Duran, Alma Rodriguez, Juan Carlos Uribe Pineda, and Heriberto Uribe Sr.) testified at deposition that shortly thereafter, pepper spray was then sprayed under the back door. As discussed supra, Jose Refugio Paredes and Maria Alicia Moreno have stated in their affidavits that they saw DeCianni and Peslak spray into the back door (and, in DeCianni's case, then shut the door).

  We have no doubt that those plaintiffs who were ordered or forced inside the house were seized. Their liberty was restrained, and there is evidence that several of the Mendenhall factors were present: the threatening presence of numerous police officers; the physical pushing of some of the plaintiffs into the house; and the officers' use of a tone of voice and profanity, which indicated that compliance with their orders might be compelled.

  Furthermore, given the existence of evidence that the Group I plaintiffs were instructed by officers to remain inside the house, whether they were told to go inside or whether they had gone inside earlier of their own accord, there is no need to categorize the Group I plaintiffs into three groups as defendants have done. All of the Group I plaintiffs were seized when they were told to stay inside, regardless of how the plaintiffs got there. The plaintiffs who had already been in the house likely could hear what was going on outside and could see what was happening with the plaintiffs who were ordered inside. In view of all the circumstances, a reasonable person in the plaintiffs' shoes would not have believed that he or she was free to leave the house. We are not persuaded by defendants' contention that the Group I plaintiffs were "just being moved away from the scene." (Mem. in Support of Motion No. 1 at 12.) The interior of the Duran house was part of the "scene."

  The spraying of pepper spray into the house, a small, enclosed space, constituted another seizure. It was another means of physical force and a show of authority that restricted plaintiffs' movement. See Yelverton v. Vargo, Nos. 3:04CV556-T(WO) & 3:04CV562-T(WO), 2005 WL 2179784, at *2 (M.D. Ala. Sept. 7, 2005) (holding that police officer's act of pepper-spraying a suspect constituted a seizure because it was an application of physical force to restrain movement). A reasonable jury could conclude from the evidence that the spraying was for the purpose of keeping the plaintiffs at bay inside the house. (Another conclusion could be that it was a deliberate action intended to cause harm; that determination would meet the Fourteenth Amendment standard, see Lewis, 523 U.S. at 848.) There is evidence that, after the spraying, the plaintiffs did not leave the house until instructed by officers to leave or told by officers that they were free to leave.

  Alternatively, the spraying of pepper spray into the house could be characterized as an act of force that occurred during a seizure and thus still must be evaluated under the Fourth Amendment. Defendants contend that there is no evidence that DeCianni or Peslak themselves ordered anyone into the house or knew that other officers had ordered people inside the house. However, viewing the evidence in the light most favorable to plaintiffs, a reasonable jury could conclude that the officers were aware that the Group I plaintiffs had been ordered into the house. At least one plaintiff, Alma Rodriguez, states that Peslak and DeCianni were present when she was pushed into the house.

  We conclude that plaintiffs have made a showing that the spraying of the Group I plaintiffs with pepper spray occurred in the context of a seizure and constituted a violation of the Fourth Amendment. DeCianni and Peslak contend that even if plaintiffs' allegations, if true, establish a constitutional violation, there was no violation of a clearly established right. (Or, in other words, it would not be clear to the reasonable officer that his conduct was unlawful.) Defendants assert that "there is no clearly established law that spraying pepper spray in the doorway to deter egress during a riot violates the Fourteenth Amendment." (Mem. in Support of Motion No. 1 at 15.)

  First, we are analyzing plaintiffs' claim under the Fourth Amendment, not the Fourteenth, so defendants' conduct is evaluated for objective reasonableness. Moreover, defendants' framing of the "clearly established law" inquiry is much too narrow. (Defendants' characterization of the events as a "riot," moreover, would likely be disputed by plaintiffs.) "The salient question is not whether there is a prior case on all fours with the current claim but whether the state of the law at the relevant time gave the defendants fair warning that their treatment of the plaintiff was unconstitutional." Green, 420 F.3d at 701 (7th Cir. 2005) (quoting McGreal v. Ostrov, 368 F.3d 657, 683 (7th Cir. 2004)). At the time of the events in this case, it was clearly established that "police officers do not have the right to shove, push, or otherwise assault innocent citizens without any provocation whatsoever." Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996). Pepper-spraying is a type of "assault." A clearly-established constitutional right can be demonstrated not only by pointing to a closely analogous case that established a right to be free from the type of force the police officers used on plaintiffs, but also by "showing that the force was so plainly excessive that, as an objective matter, the police officers would have been on notice that they were violating the Fourth Amendment." Id. Here, the facts could support a finding that defendants used plainly excessive force by assaulting plaintiffs with pepper spray without justification (when those plaintiffs were confined in the house and not provoking the officers). Under the facts, there was no reason for the officers to believe that spraying into the house was justified. We therefore conclude that Officers DeCianni and Peslak are not shielded by qualified immunity from the Group I plaintiffs' claim of excessive force in spraying into the Durans' house.

  B. Motion for Summary Judgment on Behalf of Individual Police Officer Defendants with Respect to Plaintiffs on List Two

  Ten officers — Dino Vitalo, Waldemar Cruz, Robert DeCianni, Michael McMahon, David Richert, Jason Stroud, Rhonda Gross, Anthony Lewandowski, Thomas Krummick, and Scott Harris — move for summary judgment on the "failure to intervene" claim of the Group II plaintiffs. (These are the all of the defendants against whom the Group II plaintiffs assert failure to intervene claims, see Plaintiffs' Table of Defendants and the Plaintiffs They Damaged.) The Group II plaintiffs — Alejandro Duran, Anna Maria Duran, Gonzalo Duran, Luz Maria Pineda, Ana Rodriguez, Lisbeth Moreno, Ruben Pineda, Silvia Pineda, Marlene Pineda, Edwin Pineda, Kalyn Pineda, Lorena Paredes, Jorge Enrique Perez, Sr., and Armando Duran — are those who claim that they were pepper-sprayed when officers first entered the yard of the Durans' home. The Group II plaintiffs allege that they were sprayed, but they cannot identify their assailant; the Group II defendants are those officers who were in the yard.

  "An officer who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens is liable under § 1983 if that officer had reason to know: (1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring." Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994).

  Defendants contend that the only evidence is that they were in the vicinity when alleged constitutional violations were taking place and that there is no evidence that any of them were in a position to prevent the violations from occurring. Defendants point out that the front yard of the Durans' home is extremely small and was teeming with people — as many as seven police officers and over twenty party guests — which makes it even less likely that any officer was in a position to know that another officer was infringing or about to infringe one of the plaintiffs' constitutional rights and had a realistic opportunity to intervene to prevent the harm from occurring.

  As with DeCianni & Peslak's motion, we previously indicated to the parties our view of this argument. We agree with defendants. We recognize that the intervention issue is generally an issue for the jury, see Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 478 (7th Cir. 1997), but the lack of evidence here (considering that we are treating defendants' statement of material facts as having been admitted) is such that no reasonable jury could conclude that any particular one of these officers had a realistic ability and opportunity to intervene to prevent any particular alleged spraying. There is no evidence that any of the spraying of any plaintiff occurred for anything other than a very short period of time — seconds — which reduces the window of time available for a reasonable opportunity to intervene to almost none. More importantly, there is no evidence regarding exactly where any given officer was positioned when a particular plaintiff was purportedly sprayed. There simply is no evidence regarding who failed to intervene with respect to whom.

  The Group II defendants are entitled to summary judgment on the Group II plaintiffs' failure to intervene theory.

  C. Motions of Individual Police Officer Defendants for Partial Summary Judgment Each of the individual police officers moves for summary judgment on certain claims which, in their view, are insufficient to be tried and/or on which they argue qualified immunity applies.*fn11 The following claims of the Fourth Amended Complaint are asserted against the individual defendants: Counts I (excessive force), II (false arrest), III (equal protection), V (Hate Crime Act), VI (malicious prosecution), VII (battery), and VIII (intentional infliction of emotional distress, or IIED).*fn12 Plaintiffs' Table of Defendants, however, effectively (and considerably) narrows which and whose claims are being asserted against which defendants, and we have relied on that Table.*fn13 The Table, however, is not part of the Fourth Amended Complaint, which alleges all of the above-listed claims against all of the individual defendants. We still need to make summary judgment determinations regarding those claims.

  Plaintiffs' Table does not contain a column for claims for violation of the Illinois Hate Crime Act. We are unsure if the omission signifies that plaintiffs intend not to pursue the claim. Giving plaintiffs the benefit of the doubt, and in an abundance of caution, we will examine the evidence regarding the individual defendants' conduct and determine if it creates a genuine issue for trial as to any plaintiff on the Hate Crime Act claims.

  Before addressing each of the individual defendants' motions, we will first turn to an issue that applies to all defendants against whom state-law battery and intentional infliction of emotional distress claims are asserted. Defendants maintain that these claims are "odd" in that plaintiffs allege: "The defendants acted in concert with a common purpose and contributed to the same indivisible injuries sustained by plaintiffs." (Fourth Amended Complaint, ¶¶ 157, 162.)

  In the court's view, part of this allegation, contained in Counts VII and VIII, must be stricken as immaterial pursuant to Federal Rule of Civil Procedure 12(f).*fn14 "Immaterial" matter is that which has no essential or important relationship to the claim for relief. See Chicago Printing Co. v. Heidelberg USA, Inc., No. 01 C 3251, 2001 WL 1646567, at *1 (N.D. Ill. Dec. 21, 2001) (Grady, J.). Plaintiffs did not sustain "indivisible injuries"; each individual plaintiff allegedly sustained his or her individual injury allegedly inflicted by one or more particular individual defendants. The allegation that defendants "contributed to the same indivisible injuries sustained by plaintiffs" has no essential relationship to the battery or IIED claims. It constitutes surplusage that serves only to confuse matters. It is therefore stricken from Paragraphs 157 and 162 of the Fourth Amended Complaint.

  As for the "acting in concert" component of the allegation, there is no evidence that the defendants were consciously acting in concert to injure any particular plaintiff. Therefore, summary judgment for the individual defendants and against the plaintiffs will be granted as to the allegations in Paragraphs 157 and 162 (the battery and IIED claims) that defendants "acted in concert with a common purpose."

  1. Detective Attilio Fiordirosa

  There is no evidence supporting any plaintiff's claim against Fiordirosa for excessive force, false arrest, denial of equal protection, violation of the Illinois Hate Crime Act, battery, or IIED. Accordingly, summary judgment will be entered in favor of Fiordirosa and against all plaintiffs*fn15 on Counts I, II, III, V, VII, and VIII.

  As for Count VI, malicious prosecution, plaintiffs' Table reflects that only Gonzalo Duran is asserting a claim against Fiordirosa for malicious prosecution. Therefore, summary judgment will be entered in favor of Fiordirosa and against the other plaintiffs asserting malicious prosecution claims in Count VI.

  The elements of a malicious prosecution claim under Illinois law are as follows: (1) plaintiff was subjected to judicial proceedings; (2) for which there was no probable cause; (3) the defendant instituted or continued the proceedings maliciously; (4) the proceedings were terminated in the plaintiff's favor; and (5) there was an injury. See Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996).

  Gonzalo Duran's testimony is that after he was brought to the police station, he was interrogated in English, which he did not understand, so he just kept saying "yes." He was not advised of his rights in Spanish, nor was a right-to-counsel waiver form provided in Spanish, nor was a translator provided. Detective Fiordirosa and Officer Sirgedas asked him to sign a typed statement (in English) about the evening's events, and Gonzalo signed the statement: "He brought it to me. He told me sign it here, and I did. I didn't see what it said. I don't know how to read English. So why would I read it for. I just signed it. He told me to sign it here, and I did. That's it." (Tr. of Gonzalo Duran Dep. at 127.) (It appears that when Gonzalo says "he," he is referring to Fiordirosa.)

  The statement signed by Gonzalo reads in part: "Det's R. Sirgedas/Fiordirosa had the opportunity to interivew [sic] a one Gonzalo Duran . . . in regards to the incident. . . . Gonzalo stated that he didn't want to be arrested so he pushed [an] officer and then started fighting with him. During the altercation another officer assisted the officer in attempting to place Gonzalo in cuffs. Gonzalo related that that [sic] during the struggle he bit both officers on their arms trying to stop from being arrested." (Individual Defendants' Exhibit WW.)

  Thereafter, Gonzalo was prosecuted for battery to and resisting a police officer. The case was tried to a jury, and Gonzalo was found not guilty. It appears that the statement he signed was entered into evidence at the trial; defendants point out that no motion was made to suppress the statement. At the trial, Gonzalo testified. Among other things, he stated that he struggled with two officers and that he bit one of the officers. (He denies biting the other officer.)

  Fiordirosa was not the arresting officer, nor did he testify at the criminal trial. The battery was alleged to have been committed on another officer or officers, so Fiordirosa was not the complainant. He is simply alleged to have told Gonzalo to sign a statement containing admissions, which Gonzalo claims he signed without reading. Plaintiffs characterize the conduct as having "drafted a false confession" and "fraudulently inducing" or "coercing" Gonzalo to sign it. In light of Gonzalo's testimony at the criminal trial, ...


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