The opinion of the court was delivered by: Herndon, District Judge
I. Introduction and Background
Now before the Court is Defendants' additional motion for summary judgment (Doc. 23). Specifically, Defendants contend that they are entitled to summary judgment because the claims in Davis' complaint are barred by the doctrine of judicial estoppel. Davis opposes the motion (Doc. 27). Based on the record and the applicable law, the Court grants Defendants' additional motion for summary judgment (Doc. 23).
On June 24, 2005, John M. Davis filed a six-count complaint against the Village of Caseyville, Illinois, James Midgett, Scott Miller, Greg Hosp, Lasica, Feazel and Hester, individually and in their official capacities as Police Officers for the Village of Caseyville, Illinois alleging excessive force and battery pursuant to 42 U.S.C. § § 1983 and 1988 and state law theories (Doc. 1). Davis' complaint alleges the Defendant Police Officers used excessive force when they broke up a fight that Davis was engaged in and placed Davis under arrest during a picnic at the Caseyville City Park on June 25, 2004. Davis' complaint alleges that the Defendants grabbed him and held him in a prone position on his stomach. Davis also alleges that Defendants jumped on his back and held his arms and legs to the ground and that Defendant Midgett used his Taser gun to shoot Davis several times. Davis seeks damages in excess of $75,000, attorney fees and costs.
On June 21, 2006, Defendants filed a second motion for summary judgment (Doc. 10).*fn1 Plaintiff filed an opposition to that motion on August 22, 2006 (Doc. 20). Thereafter, the Court granted Defendants leave to file a third affirmative defense and an additional motion for summary judgment on August 24, 2006 (Doc. 22). That same day, Defendants filed this additional motion for summary judgment (Doc. 23). The Court turns now to address the merits of the additional motion for summary judgment.
On November 17, 2000, Davis filed a Chapter 13 Voluntary Bankruptcy Petition in the United States Bankruptcy Court for the Southern District of Illinois.
See In re: John M. Davis, 00-33395.*fn3 During these proceedings, Davis was represented by attorney William A. Mueller. In his Chapter 13 Petition, Davis reported that he had no contingent or unliquidated claims of any nature. He estimated that after any exempt property is excluded and administrative expenses paid, there will be no funds available for distribution to unsecured creditors. On August 5, 2005, the Bankruptcy Court issued its Order of Discharge. (00-33395; Doc. 27). At no time prior to the Order of Discharge did Davis amend his Bankruptcy Petition /pleadings to disclose the fact of his ownership of this lawsuit or chose in action.
Summary judgment is proper where the pleadings and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P.56(c); Wyatt v. UNUM Life Insurance Company of America, 223 F.3d 543, 545 (7th Cir. 2000); Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997); See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).
In reviewing a summary judgment motion, the Court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. EEOC v. Sears, Robuck & Co., 233 F.3d 432, 436 (7th Cir. 2000). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996), cert. denied, 117 S.Ct. 683 (1997); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994).
Defendants argue that they are entitled to summary judgment because the doctrine of judicial estoppel bars Davis' claims here because he obtained the benefit of a bankruptcy discharge on the basis of his false representation as a debtor in bankruptcy that he did not own an asset, including this chose in action or legal claim. Defendants further argue that Davis obtained the benefit of the bankruptcy discharge scamming his creditors, and now seeks to contradict himself in this action. Defendants rely on Cannon-Stokes v. Potter, 453 F.3d 446 (7th Cir. 2006) for their position. Davis opposes the motion contending that the "failure to amend his Chapter 13 Petition did not occur as a result of any bad faith, on his part, or as the result of any intent to mislead or deceive the courts or any person or any attempt to manipulate the judicial system, rather, his nondisclosure occurred as the result of inadvertence, mistake and/or ignorance of the duty to disclose in his bankruptcy proceeding the existence of his potential claim against the defendants." (Doc. 2, p. 8). The Court agrees with Defendants that Cannon-Stokescontrols.
In 2006, the Seventh Circuit found that judicial estoppel precluded debtor's employment discrimination claims against her employer where debtor had denied in her bankruptcy petition that she had any valuable legal claims until after her bankruptcy ended, for her personal benefit, would amount to a perversion of the judicial process. See Cannon-Stokes v. Potter, 453 F.3d 446 (7th Cir. 2006), cert. denied 127 ...