The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On July 16, 2004, Plaintiffs Lee Graham, Seniece Graham, and William Graham, proceeding pro se, initiated this action pursuant to 42 U.S.C. § 1983. Following several rounds of motions to dismiss, only Defendants W.K. Hildebrand, William Lawler, John Bennett, and Barbara Hilke remain. The complaint centers around Plaintiffs' arrests following a incident in Charleston, Illinois. All of the remaining Defendants have filed Motions for Summary Judgment (#182, #184, #187, #188). Plaintiff William Graham has also filed a Motion to Voluntarily Dismiss (#195) his remaining claims against Defendants. The matters are now fully briefed.*fn1 For the reasons that follow, Defendants' Motions for Summary Judgment are GRANTED and Plaintiff William Graham's Motion to Voluntarily Dismiss (#195) is DENIED.
The incidents which form the basis of this case occurred on September 25, 2003. On that date, Seniece, William and Lee, all of whom are siblings and African-American, went with some friends to a bar in Charleston, Illinois by the name of Stix. Seniece drove William's car, a white Chevy Caprice, to the bar and parked it outside the door at approximately 11:45 p.m. Lee arrived separately at Stix. Stix closed at 1 a.m., and the Grahams departed the bar. Lee, accompanied by his friend Nick Jefferson, walked to Jefferson's car in a nearby parking lot across the street from Stix. Lee was joined in the parking lot by Seniece and other friends. They noticed a crowd forming in the parking lots of two nearby restaurants, EL Krackers and La Bamba. Lee decided to go to La Bamba to get some food, and Seniece gave him some money for the food.
Around this time, Charles Spence, an African-American, allegedly hit a Caucasian woman by the name of Laura O'Donnell and yelled racial epithets at her. A significant number of people were in the area at the time of this incident due to the recent closing of the bars. As a result of this incident, the crowd, which was predominately Caucasian, became agitated and also began yelling racial epithets. The crowd began pushing and shoving and moved into the adjacent street, thus blocking the entrance to La Bamba. As Lee walked up to the entrance to La Bamba, he heard someone say, "He hit a girl!" Lee observed that the crowd's aggression was directed towards Charles Spence. Lee informed Charles he should leave before the situation got out of hand. Lee then proceeded into the restaurant. A friend of Lee's entered the restaurant and informed him he should go outside because something happened to Seniece. According to Seniece, a Caucasian man punched her in the jaw and she began arguing with him. Seniece testified in deposition that she thought she struck the Caucasian man back.
Lee proceeded outside the restaurant and observed William exclaim, "Who the fuck hit my sister?" The crowd was responding with statements like, "Fuck your sister!" and, "Who give a fuck about your sister when this girl got hit by that nigger?" Lee asked William what happened, and William responded, "One of these motherfuckers hit Niece." Lee then started exclaiming, "Who the fuck hit my sister?" and, "Where is my sister?" The Charleston police then arrived. Lee and William found Seniece after she called out to her brothers that she was alright, but had been physically assaulted. William and Lee then went over to Seniece.
Officer Hildebrand of the Charleston Police Department noticed the crowd start to spill out into the street. Officer Hildebrand instructed Officer Lawler to stand with Charles Spence while he assisted in restraining the crowd. Officer John Bennett of the Charleston Police Department then approached William and asked him what the problem was. Officer Bennett attempted to calm Lee and William, and Lee testified that he yelled back at Bennett. Officer Bennett testified that Lee was lunging at people in the crowd. As a result, Officer Bennett attempted to place himself between Lee and the crowd. Lee informed Officer Bennett that Seniece had been struck by an individual in the crowd. Seniece moved closer to Officer Bennett to explain what happened, and Officer Bennett told her to step back. Officer Bennett then left the Grahams and walked across the street to talk to the crowd.
The crowd became louder and was pointing at the Grahams. Lee testified in his deposition that it appeared the police had lost control of the situation. After attempting to restrain the crowd, Officer Bennett returned to the Grahams. Officer Bennett puts his hands on Lee. Seniece testified she believed Bennett may have done this to attract Lee's attention. While Officer Bennett was interacting with the Grahams, the crowd was pushing Bennett from behind. Lee testified that he, Seniece, and William were pushing back at the crowd. Officer Bennett was concerned that someone would attempt to disarm him and fire his weapon. Officer Bennett testified he attempted to talk to Lee from a field interview position, with his left hand at approximately a 90 degree angle. At that point, according to Officer Bennett, Lee pushed Bennett's hand away and pushed him backwards with both hands. Officer Bennett then told Lee he was under arrest, but Lee continued to stand his ground. Officer Bennett testified that Seniece got between him and Lee and pushed Bennett, telling him he was not going to arrest Lee.
When Lee failed to comply, Officer Bennett discharged his pepper spray. This was about the time Officer Hilke of the Eastern Illinois University Police Department arrived. Hilke told the crowd to get out of the street. Officer Lawler testified that he informed Lee he should comply with the instructions given him by Officer Bennett. At the time he made this statement, he was standing behind Lee with his hand in the small of Lee's back. Lee was cooperative after the pepper spray was dispersed. Officers Reed and Hildebrand assisted in handcuffing Lee.
Seniece was also affected by the pepper spray, and she began walking away. Officer Bennett repeatedly told Seniece to get down, but she did not comply. Seniece testified in her deposition that she was later struck in the knee with a baton or night stick by a male officer she could not identify. Officer Bennett placed Lee under arrest. Lee was handcuffed and placed in a patrol car by Officer Bennett. Officer Elam placed handcuffs on Seniece and Officer Lawler placed Seniece under arrest. Officer Lawler then walked Seniece to his squad car. Officer Elam placed Seniece in the car, then went to get some water to wash her eyes and face.
While Seniece was being walked to the police car, William became involved in a verbal altercation with Lieutenant Hank Pauls. William indicated he was going to the police station to find out why Lee and Seniece had been arrested. Lieutenant Pauls told him he could not go. William told Pauls if he wanted to follow him that he could wait for William's white Caprice because he was going to drive it around the corner. Pauls told William that William was trying to "get all these people after me" then told William he was under arrest for mob action. Officer Hilke later met with witnesses in a nearby parking lot and took their statements. All of the witnesses interviewed regarding the events were Caucasian.
At a preliminary hearing held on October 20, 2003, probable cause was found to bind Lee over for trial on the charges of battery and resisting arrest. Following a jury trial, Lee was convicted of resisting arrest. Seniece Graham was charged with aggravated battery following a preliminary hearing, but was found not guilty by a jury. William was charged with and convicted of two counts of threatening a public official. William was sentenced to four and one-half years in the Illinois Department of Corrections.
Summary judgment is granted "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a motion for summary judgment, the court must decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In reaching this decision, the court must consider the evidence in the light most favorable to the party opposing summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158- 59 (1970). The burden of establishing that no genuine issue of material ...