United States District Court, N.D. Illinois, Eastern Division
December 8, 2005.
EDUARDO GUDINO and OBDULIA PERALTA, Plaintiffs,
TOWN OF CICERO et al., Defendants.
The opinion of the court was delivered by: JOHN GRADY, District Judge
Before the court is the motion of defendants Thomas Krummick,
Dino Vitalo, and Waldemar Cruz for summary judgment, which is
granted for the reasons stated below.
This is a § 1983 civil rights action that is related to Duran
v. Town of Cicero, 01 C 6858.*fn1 The Duran case is a
civil rights action by numerous plaintiffs against the Town of
Cicero and various Cicero police officers. Both cases arise out
of incidents involving the Cicero police that occurred on
September 2, 2000, at and around the home of Alejandro and Maria
Duran, who were having a party. The plaintiffs in the instant
case, Eduardo Gudino and Obdulia Peralta, were neighbors of the
Durans who lived in separate houses across the street from the
Durans. The basic facts regarding each plaintiff in the instant case are different; the
commonality is that both Gudino and Peralta reacted to what was
happening at the Duran home and then became involved in
confrontations with the Cicero police. The relevant facts are
taken from plaintiffs' deposition testimony.
Like the Durans, Peralta was having a party in her backyard on
September 2, 2000. Peralta's party was much smaller than that of
the Durans, with about fifteen guests. When Peralta and her
guests heard screaming and commotion coming from the street in
the front of the house and saw police officers running through
yards toward the street, Peralta and her guests went out to stand
in front of her house to see what was happening.
Peralta saw police officers, some with asps, hitting people in
the Durans' front yard. She and her party guests began screaming
at the police officers, telling them not to hit people. Some
officers, using profanities, told them that they shouldn't be
watching and to be quiet and go inside the house. The officers
threatened to bring police dogs and that if Peralta and her
guests didn't go inside, they would be arrested. One officer then
started pushing Peralta and her guests to move them inside. When
the pushing was occurring, Peralta "slipped and  went back and
 banged against the [brick] wall [of her house]." (Peralta Dep.
at 16.) She was cut near her left shoulder blade by a nail
protruding from the brick.
Peralta identified two police officers at her deposition, only
one of whom is a defendant: Sergeant Thomas Krummick.*fn2
Peralta stated that she saw Krummick, who was wearing a white
shirt, in the street. He was one of the officers who used
profanities and told the group that they would be arrested if
they did not go inside.
On the night of September 2, 2000, Eduardo Gudino was sitting
in the front room of his apartment on the second floor of a
building across the street and three doors down from the Durans'
home. He heard police sirens outside. When Gudino looked out the
window, he saw police cars arriving and parking out front; a
number of officers got out of their cars and talked amongst
themselves. Gudino saw and heard the police officers, who seemed
very "agitated," shouting at the Durans' party guests, so he got
his video camera and began taping the events. He began taping
from inside the apartment and then went outside and across the
street to tape the events from a stairway at the house next door
to the Durans'. Gudino saw officers hitting and pushing people
and spraying them with pepper spray. At some point, Gudino moved from his vantage point; one of the
officers saw him and chased Gudino. Two officers stopped Gudino,
and one of them, whom Gudino was unable to identify at his
deposition, demanded that Gudino give them the video camera or
they would take it from him. The other officer, whom Gudino has
identified as Officer Robert DeCianni, then punched Gudino in the
stomach. The first officer started to hit Gudino, but Gudino used
the camera to block him. Then, according to Gudino, "they grabbed
my hand, and they took the camera from me, but when they took the
camera from me, I shook them off, and I started to run towards my
house." (Gudino Dep. at 19-20.) The officers chased Gudino for a
short time, but Gudino got away and eventually went back inside
Plaintiffs filed this § 1983 civil rights action on September
3, 2002. The First Amended Complaint names as defendants Sergeant
Krummick, Officer DeCianni, Officer Dino Vitalo, Officer Waldemar
Cruz, "other unidentified police officers," and the Town. Count I
(for Fourth Amendment violations) and Count II (for Fourteenth
Amendment violations) are brought against the individual
officers. In Count I, Peralta alleges that DeCianni, Vitalo, and
Cruz used excessive force on him, failed to intervene to prevent
the further use of excessive force, and confiscated his video
camera without cause or justification. As for Peralta, she
alleges in Count I that Krummick failed to intervene to prevent "the further use of
threats, profanity and excessive force." (First Amended
Complaint, ¶ 36.) In Count II, plaintiffs allege that the
individual defendants denied them equal protection. Against the
Town, plaintiffs bring a Monell claim (Count III); a claim for
spoliation of evidence (Count IV); and an indemnification claim
(Count V). Plaintiffs seek compensatory and punitive damages.
Krummick, Vitalo, and Cruz now move for summary judgment on the
claims that are asserted against them. (DeCianni and the Town
have not moved for summary judgment.)
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)). The court will enter summary
judgment against a party who does not "come forward with evidence
that would reasonably permit the finder of fact to find in [its]
favor on a material question." McGrath v. Gillis, 44 F.3d 567,
569 (7th Cir. 1995).
A. Obdulia Peralta
In Count I, Peralta alleges that Sergeant Krummick "witnessed
the use of threats, profanity and excessive force" against
Peralta and failed to intervene to prevent the "further use of
threats, profanity and excessive force," thereby violating her
Fourth Amendment rights. Count II is an equal protection claim;
Peralta alleges that Krummick's conduct was motivated by her
ethnicity. Defendants point out, correctly, that Peralta's
excessive force claim appears to be brought under the Fourth
Amendment alone and that only in Peralta's response brief does
she seem to assert an excessive force claim based on the
Fourteenth Amendment. Because complaints need not identify legal
theories, however, see Mid America Title Co. v. Kirk,
991 F.2d 417, 421 (7th Cir. 1993), we will treat the failure to
intervene claim as being brought under both the Fourth and
Peralta has no Fourth Amendment claim because she was not
seized. For Fourth Amendment purposes, a seizure occurs when an
officer intentionally uses physical force or a show of authority
to restrain a person's liberty. See United States v.
Mendenhall, 446 U.S. 544, 552 (1980). Peralta must show not only that her
personal liberty was restrained, but that she actually yielded to
a show of authority. See McCoy v. Harrison, 341 F.3d 600, 605
(7th Cir. 2003) (affirming grant of summary judgment in favor of
defendant officer on Fourth Amendment excessive force claim where
no seizure had taken place; officer was alleged to have hit
plaintiff, but plaintiff walked away and defendant did not
attempt to restrain her). There must be "an intentional
acquisition of physical control," with the officer restraining
the freedom of a person to walk away, thereby seizing that
Peralta does not even argue that she was seized. The evidence
is merely that she was jostled by someone else in her group and
fell when the group was being pushed back toward the house by an
officer. There is no evidence that the officer acquired physical
control over Peralta or that she submitted to the officer's
authority. Therefore, her failure to intervene claim must be
analyzed under the Fourteenth Amendment.
The threshold issue is whether there is any evidence creating a
genuine issue that Krummick failed to intervene in the pushing.
"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
In response to defendants' motion, Peralta submits an affidavit
that states in relevant part:
4. I stood on the sidewalk just outside my home. With
me were several of my relatives and friends.
5. We started yelling at the Police Officer not to
beat up innocent women and children.
6. A Cicero Police Officer in a white shirt came over
to us and ordered us to get inside the house.
7. After seeing photographs of the Cicero Police
Officers, I now know that the Cicero Police Officer
in the white shirt was Sergeant Krummick.
8. Sergeant Krummick was yelling at us to get inside,
not to watch or otherwise we would be arrested and he
would bring dogs. Sergeant Krummick was using
vulgarities in English when he was yelling at us. I
do not remember exactly what the vulgarities were,
but before or after the vulgar words Sergeant
Krummick said the word Mexican. I could tell by the
tone of his voice and by what he said that he was
swearing at me.
9. The front of my house comes right to the sidewalk,
except for a small area by the gangway. A few feet
into the gangway there is a metal fence.
10. When Sergeant Krummick yelled at us, I stepped
back [sic] the sidewalk onto the gangway area.
11. Another Cicero Police Officer that was with
Sergeant Krummick came to us and started shouting
vulgarities and ordered us inside the house.
12. Sergeant Krummick was present and near that
officer when this occurred. Sergeant Krummick was
close enough to stop the Officer [sic] acts, but Sergeant Krummick
did not stop that Officer, he did not call him back,
and he did not order that officer to refrain from
13. When we did not move, the Cicero Police Officer,
in the presence of Sergeant Krummick, violently
pushed the group of people I was in toward the brick
wall of my house.
14. The whole group was pushed back and I was pushed
against the brick wall of my house.
15. On the wall was a protruding nail which cut me in
the upper back.
(Peralta Aff. at 1-2.)
As defendants point out, this affidavit significantly expands
upon and in some respects contradicts Peralta's deposition
testimony. At her deposition, Peralta testified that after she
and her guests began shouting at the police to stop hurting
people, two officers came across the street. She was shown
photographs of Cicero police officers, but she could not identify
either one and could not identify which officer pushed her group.
Peralta did identify Krummick and stated that he was wearing a
white shirt and was standing in the street. Her testimony was
that Krummick was shouting at her group, but that he did not
cross the street all the way and come over to her group. She was
asked whether Krummick crossed the short fence and came onto her
property, and she answered no, that Krummick was in the street.
(Peralta Dep. at 10-11.) To the extent that Peralta's affidavit
attempts to imply that Krummick was standing immediately next to
the officer who is alleged to have pushed the group, it contradicts her earlier
deposition testimony and therefore will be disregarded as an
attempt to create a sham issue of fact. See Bank of Illinois
v. Allied Safety Signal Restraint Sys., 75 F.3d 1162, 1168 (7th
Cir. 1996) (a party cannot thwart the purposes of summary
judgment by creating sham issues of fact with affidavits that
contradict prior deposition testimony).
Plaintiffs devote much attention to the use of profanity, but
that is irrelevant to our analysis because it is not a
constitutional violation. The harm, for constitutional purposes,
is the use of excessive force the pushing. There is no evidence
here that Krummick even knew that the unidentified officer was
pushing the group. The evidence is that he was in the street, not
on the sidewalk or inside Peralta's fence. There were a number of
other altercations taking place in and around the street at the
time as well. Even if Krummick had been standing next to the
officer who pushed the group and could have seen it, there is no
evidence that could have anticipated the push or had a realistic
opportunity to prevent the harm from occurring. There is no
evidence that the push was anything other than brief or that
there were several pushes. Accordingly, summary judgment for
Krummick and against Peralta will be granted on Count I (and
Count II, to the extent that it asserts a Fourteenth Amendment
claim based on the failure to intervene). Because the factual predicate for the equal protection claim in
Count II is the alleged failure to intervene, summary judgment
for Krummick on that claim will be granted as well.*fn3
B. Eduardo Gudino
In Count I, Gudino alleges that DeCianni, Vitalo, and Cruz used
excessive force, failed to intervene to prevent the use of
excessive force, and took his video camera. In Count II, Gudino
alleges that DeCianni, Vitalo, and Cruz denied him equal
Vitalo and Cruz contend that they are entitled to summary
judgment on Gudino's claims because there is no evidence that
either of them was involved in the altercation with Gudino.
Gudino concedes that he has no evidence of Vitalo's involvement.
Thus, summary judgment will be granted in favor of Vitalo and
against plaintiff on Counts I and II.
As for Cruz, Gudino did not identify Cruz at his deposition as
one of his two assailants. Gudino now submits an affidavit
stating in pertinent part:
3. On September 2, 2000, I saw Cicero Police Officers
beating up civilians at the Duran home. 4. I took out my video camera, loaded a video tape
and started video taping the Cicero Police Officers
. . .
6. Two Cicero Police Officers saw me and chased me.
7. After seeing photographs of the Cicero Police
Officers, I now know that these officers were
Waldemar Cruz and Robert Dicianni [sic].
8. Officer's [sic] Cruz and Dicianni chased me and
demanded my video camera.
9. I refused to turn over my video camera and I was
punched by Officers Cruz and Dicianni.
10. Officer Dicianni pulled my video camera away from
me and took it away from me.
(Gudino Aff. at 1-2.)
At his deposition, however, Gudino testified that two officers
chased him DeCianni and an officer with "white hair." (Gudino
Dep. at 26.) Cruz does not have white or blond hair and has never
had white or blond hair. (Cruz Aff., ¶¶ 2, 3.) Gudino also
testified that only one officer, DeCianni, punched him, and that
both officers took the camera from him. Although Gudino did
identify Cruz as being one of the officers at the Durans' home,
he did not state that Cruz was one of his assailants. Instead,
Gudino testified that he saw Cruz in the Durans' yard and said of
Cruz: "That guy is very evil. Very evil." When asked what he saw
Cruz do, Gudino replied that Cruz was "hitting people [at the
Durans' home] mercilessly" and "one of the guys [who] was pushing
people." Gudino never mentioned that Cruz was one of the officers who
confronted him. (Gudino Dep. at 21-22.)
Gudino's statements in his affidavit that Cruz chased him,
demanded his video camera, and punched him so squarely contradict
his earlier deposition testimony that they will be disregarded as
an attempt to create a sham issue of fact. Because there is no
evidence that Cruz used any excessive force against Gudino, or
indeed was involved with Gudino at all, summary judgment in favor
of Cruz and against plaintiff on Count I will be granted. Summary
judgment in favor of Cruz and against plaintiff on Count II will
also be granted because there is no factual predicate for an
equal protection claim.*fn4
For the foregoing reasons, the individual defendants' motion
for summary judgment is granted.
Summary judgment in favor of Thomas Krummick, Dino Vitalo, and
Waldemar Cruz will be entered on Counts I and II. The case is
terminated as against these defendants because Counts I and II
are the only claims asserted against them. The remaining
defendants are Robert DeCianni and the Town of Cicero.
© 1992-2006 VersusLaw Inc.