The opinion of the court was delivered by: Harold A. Baker United States District Judge
Before the court is the defendants, Richard Hirsch, Clayton Arnold and David Ziemer's unopposed summary judgment motion. The defendants move for summary judgment pursuant to pursuant to Fed. R. Civ. P. Rule 56 and Local Rule 7.1.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). Further, this burden can be satisfied by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If such a showing is made, the burden shifts to the non-movant to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Outlaw, 259 F.3d at 837. A nonmoving party cannot rest on its pleadings, but must demonstrate that there is admissible evidence that will support its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). Credibility questions "defeat summary judgment only '[w]here an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility.'" Outlaw, 259 F.3d at 838, citing Advisory Committee Notes, 1963 Amendment to Fed. R. Civ. P. 56(e)(other citations omitted).
Fed. Rule Civ. Pro. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no 'genuine' issue for trial." Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988). A "metaphysical doubt" will not suffice. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Disputed facts are material only if they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, *247-248, 106 S.Ct. 2505, 2510 (1986).
The plaintiff claims that the defendants Hirsch, Arnold and Ziemer used excessive fordce in arresting Davis. The defendants arrested the plaintiff after he had a physical altercation with a female, Jodie Allen. The officers were told that Davis had a gun and would return to shoot Allen. The office conducted a felony traffic stop of the plaintiff's vehicle and took him into custody. Davis claims that he suffered a fractured jaw during his arrest. He claims the defendants were deliberately indifferent to his health and safety and failed to provide him with medical care for his serious medical needs.
The defendants did using excessive force in arresting Davis. They assert that they took him into custody without difficulty and that he suffered no apparent injury. The defendants assert that Davis did not have any apparent injuries at the time of or subsequent to his arrest. Defendants further assert that Davis did not have a "serious medical need" and the officers were not deliberately indifferent to any of his medical needs.
Statement of Undisputed Material Facts
1. Davis has had a number of felony convictions in McLean County for aggravated battery and a number of retail theft cases. He was also convicted of possession of a stolen vehicle in Cook County. He has been incarcerated with the Illinois Department of Corrections several times. First Davis dep. (Exhibit L) at 9-10.*fn1 Officer Ziemer had at least two prior encounters with Davis involving Davis being drunk in public. Exhibit O (Second Affidavit of Officer Arnold) at ¶2. Officer Hirsch had at least one prior encounter with Davis in which Davis resisted after being taken into custody on an outstanding warrant. Davis claimed that he had a broken back and leg, but no injuries were found when he was seen in the emergency room. Exhibit P (Second Affidavit of Officer Hirsch) at ¶2.
2. Prior to March 7, 2004, Davis lived with Debra Lindsey at 815 E. Jefferson in Bloomington. First Davis dep. at 5. Davis got into an argument with Lindsey around March 7, 2004 and was forced to move out of the apartment. First Davis dep. at 17.
3. On March 7, 2004, Davis went to Jodie Allen's apartment on East Market in Bloomington. First Davis dep. at 17-18, 20-21. They talked and decided that Davis would stay with her. He moved his stuff to her apartment. First Davis dep. at 18. They were former paramours. First Davis dep. at 18.
4. On March 8, they were at the apartment with Brandy Stein. First Davis dep. at 17-19. Stein was ill and Allen brought her to the apartment to look after her. Allen referred to Stein as her daughter, but Davis knew that this was not true. First Davis dep. at 19-20. Davis confronted Allen and asked what her deceased son would think of her "drinking... and letting her life just go down the drain..." First Davis dep. at 20. They got into an argument and she hit him in the bottom lip with her hand. First Davis dep. at 20.*fn2 It was a "hard hit" that caused his lip and tooth to swell up. First Davis dep. at 145. Davis pushed her back, causing her to fall backwards, knocking a lamp into the wall and off the table, breaking it. First Davis dep. at 22, 144-145. During the altercation, Allen bit Davis on the breast and arm. First Davis dep. at 144-145, 149-151. Davis cannot recall exactly how she managed to bite him on both his arm and chest during their allegedly brief altercation. First Davis dep. at 150-151.
5. Davis left, got into a car and drove away. First Davis dep. at 20-21.
6. At approximately 1:45 a.m. on March 9, 2004, MetCom received a report of an aggravated battery and dispatched Officers Arnold and Hirsch to Jodie Allen's apartment at 407 E. Market St. in Bloomington. Second Affidavit of Arnold at ¶ 4; Second Affidavit of Hirsch at ¶4. MetCom advised the officers that the victim reported that the suspect, Jeffery Davis, was carrying a gun. Id.
7. Davis drove to his old apartment on East Market, a couple of blocks away. When he turned onto Market, he extinguished the headlights on the car. First Davis dep. at 21. Officer Arnold witnessed this maneuver and notified Officer Hirsch by radio. Second Arnold Aff. at ¶5. Davis parked in front of the apartment building. First Davis dep. at 21.
8. Davis was arrested onMarch 9, 2004 at approximately 2:00 a.m. First Davis dep. at 17, 33, 35. Officers Hirsch and Arnold pulled up behind his parked car with their overhead emergency lights on. They instructed Davis to throw the car keys out the window, get out of the car, and put his hands up. He complied. First Davis dep. at 26-27. Officers told him to walk backward toward them and he complied. First Davis dep. at 28. Davis claims that he was then picked up and "slammed"on the ground and that his face hit the ground. First Davis dep. at 29. The officers yelled at him, "Where is the gun?" First Davis dep. at 30-31.
9. After the arrest, Davis' lip was still bleeding from Jodie Allen's punch. First Davis dep. at 32. Davis does not recall bleeding from any other injury ...