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Welsch v. Bernardi

August 2, 2006


The opinion of the court was delivered by: Harold A. Baker United States District Judge


In the early morning hours of May 4, 2003, Dawn Welsch ("Dawn") and her boyfriend had an argument, and in the course of that argument, her boyfriend hit her. Dawn left her house and drove approximately one mile to the home of her father, plaintiff Tod Welsch ("Welsch"), to use the telephone. Dawn called 911 and reported the altercation. Dawn told the dispatcher she was calling from 735 Douglas Street, Danville (her father's address). The dispatcher determined that Dawn did not need medical assistance and learned that Dawn's boyfriend was at 1601 Perrysville Road. The dispatcher told Dawn that someone would respond to the call.

Dawn then left her father's house and went home. A short time later, police officer Phillip Bernardi ("Bernardi") arrived at Welsch's home, talked to Welsch, determined that Dawn was not there, and then left. Minutes later, Dawn returned to her father's house and called 911 to cancel the earlier request for assistance. The dispatcher told Dawn the police had just been to her father's house and that she "didn't wanna answer the door or . . ." and Dawn replied, "No, I never . . . Ahm, no, I was here, I had to run down to my house real quick and . . ." At that point, the dispatcher heard a male voice in the background. Dawn and the unidentified man began to argue. The dispatcher asked, "Who's yelling and why?" and Dawn replied, "My father's yelling at me because he's drunk."*fn1 The argument continued for a few more moments, until Dawn told the dispatcher, "Just don't worry about it, ok?" and hung up. Dawn then left her father's house and went back home.

The dispatcher put out a second call to the police officers, telling them that Dawn had called from the Douglas Street address to cancel the first request for assistance. The dispatcher reported that Welsch had been yelling at Dawn during the second phone call, and Bernardi responded, "Well, that's who I talked to there. He was denying she was there."*fn2 Bernardi was just a few blocks from Welsch's home and was at his door "several minutes later."*fn3 Bernardi and one or more of the other individual defendants*fn4 went to the Douglas Street address and knocked on the door. Welsch came to the door and Bernardi demanded to know where Dawn was. Welsch said that Dawn was not there and told the officers that Dawn was at her home. The police officers then asked to check the house. Welsch said they would need a warrant to do so. According to Welsch, the police officers then came into the house forcefully, hit him in the face, jumped on him, ran him into a chest of drawers, kneed him in his right ear, handcuffed him, and took him to the police station. Welsch was charged with resisting a peace officer. The charge was later dismissed.

Welsch brings this action pursuant to 42 U.S.C. § 1983 and state law, asserting claims against the police officers of excessive force, battery, and willful and wanton conduct. Welsch also claims that the City of Danville (the "City") has a custom or practice indifferent to the constitutional rights of its citizens by inadequately training its police officers.


Welsch's complaint was filed on April 29, 2005. On October 6, 2005, the parties filed a proposed discovery plan, with the completion of discovery scheduled for June 1, 2006 and dispositive motions to be filed by July 5, 2006.

On June 8, 2006, the defendants filed a motion for summary judgment. The plaintiff filed his response twenty-one days thereafter as required by this court's Local Rules. Also on that date, the plaintiff filed a motion to extend the discovery deadline, stating that he'd been unable to depose City employees who had knowledge of the City's customs and practices. The court denied the motion to extend the discovery deadline.


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). Summary judgment is proper when "a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case[.]" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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, 157 (1970). The burden of establishing that no genuine issue of material fact exists rests with the movant. Jakubiec v. Cities Serv. Co., 844 F.2d 470, 473 (7th Cir. 1988). Once the movant has done so, the party opposing the motion bears the burden to respond, not simply by resting on the pleadings, but by affirmatively demonstrating that there is a genuine issue of material fact for trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-324.

In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Summary judgment is not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005). "If [the non-movant] does not [meet his burden], summary judgment, if appropriate, shall be entered against [the non-movant]." See Fed. R. Civ. P. 56(e).

The defendants argue that they are entitled to summary judgment because (1) they are entitled to qualified immunity on the Section 1983 claims; (2) without a showing of excessive force, the plaintiff cannot prevail on his claims of battery and willful and wanton conduct; and (3) there is no evidence of a custom, policy or practice of inadequate training.

I. The City's Training and Supervision of Police Officers

Welsch alleges the City has a duty to exercise proper supervision, training and control over its police officers to ensure they do not use excessive force during the course of an arrest. Welsch impliedly asserts that the City's custom, policy or practice of inadequate supervision, training and control resulted in the officers' violation of his constitutional rights.

As noted above, Welsch sought an extension of time to conduct discovery on this issue. Welsch filed his claim against the City more than a year before discovery closed. The police officers were deposed on March 17, 2006, two-and-a-half months before discovery closed on June 1, 2006. Welsch never explained why he failed to obtain the needed discovery. In his response to the motion for summary judgment, he states that "it cannot be said affirmatively that no such evidence [against the City] exists" because "the case is still in the discovery phase of trial so that not all of the relevant ...

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