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Carlson v. Bukovic

June 9, 2008

JUNE O. CARLSON, PLAINTIFF,
v.
SCOTT BUKOVIC AND THE CITY OF DARIEN, AN ILLINOIS MUNICIPAL CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiff June O. Carlson filed suit against Officer Scott Bukovic and the City of Darien, Illinois, alleging unreasonable seizure in the nature of an assault and battery, and failure to train resulting in unreasonable seizure, all in violation of 42 U.S.C. § 1983. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and have now filed cross-motions for summary judgment. For the reasons set forth below, Plaintiff's motion is denied and Defendants' motion is granted in part and denied in part.

BACKGROUND*fn1

Ms. Carlson ("June") lives in DuPage County, Illinois with her disabled adult son, Paul. (Def. Facts ¶¶ 1, 5.)*fn2 Officer Bukovic works as a police officer for the City of Darien. (Id. ¶¶ 2, 3.) During the course of his career, Officer Bukovic attended the Indiana State Academy, the Illinois State Police Academy, and a California police academy. He also worked with the Lake County, Indiana Sheriff's Department; the Westmont Police Department; and the California Highway Patrol before accepting the position with the Darien Police Department. (Id. ¶¶ 88, 89.)

On January 3, 2005, June, who was then 83 years old, and Paul, who was 59 years old, went shopping at the Wal-Mart store in Darien, Illinois. Once at the store, the two separated to shop for their own items. (Id. ¶¶ 7, 8; Pl. Facts ¶¶ 1, 5.)*fn3 When Paul was finished, he started to look for his mother. As he was pushing his cart around the store, Paul brushed up against a fire hose box that had a sharp edge exposed on the bottom corner, and cut his arm. He went looking for a store manager to report the accident and found assistant manager Dale Hardiek. (Id. ¶¶ 8-10; Pl. Facts ¶¶ 8-10.) Paul told Hardiek about his injury and showed him the fire hose box. Hardiek escorted Paul to the personnel office located near the layaway area of the store and reported the incident to the personnel manager, Sue Katsaros. Hardiek then started to prepare an accident report, asking Paul to provide the relevant information. (Id. ¶¶ 10-12.)

By this time, someone had notified store co-manager, Brandon Hunter, about the incident, and he went to the personnel office. Paul told Hunter what happened but insisted on speaking to the store manager. Paul also wanted his mother with him to assist in communicating with Wal-Mart personnel. Paul is hard-of-hearing and was not wearing his hearing aids that day due to the damp weather. (Id. ¶¶ 13, 14; Pl. Facts ¶¶ 13, 14.) Katsaros paged June over the store's intercom system, contacted store manager Stacey Johnson, and then tried to administer first aid to Paul's cut. Paul, however, did not like the first aid kit because it was in a white plastic box that looked to him like "junk" and "a mess." (Id. ¶¶ 15, 16, 17; Paul Dep., Ex. C1, at 26-17; Katsaros Dep., Ex. E, at 23-24.)*fn4 Everyone present in the room agrees that Katsaros attempted to clean Paul's arm with iodine and that Paul objected because he is diabetic and allergic to it. Paul says Katsaros used it on his arm anyway; Katsaros denies this. Regardless, it is undisputed that Katsaros either offered or placed a Band-Aid on Paul's arm. (Id. ¶ 18; Pl. Fact Resp. ¶ 18.)*fn5

A. June's Interaction with Wal-Mart Personnel

Shortly thereafter, June arrived in the personnel office and Paul told her what had happened. Katsaros also tried to explain the situation. (Id. ¶ 20.) Katsaros says that June was shocked and became upset and animated about the type of medical treatment Paul had received. Indeed, June later testified that the office was filthy and she was concerned that Paul's wound might become infected. (Pl. Add'l Facts ¶ 17.1.)*fn6 Katsaros was surprised by June's reaction to what she believed was a relatively minor cut that did not warrant calling an ambulance or require stitches. June and Paul insist that June remained calm while expressing concern about her son's injury. They also claim that the cut was actively bleeding and had rendered Paul "white as a ghost and shaking." (Def. Facts ¶¶ 19, 21, 22; Pl. Fact Resp. ¶¶ 19, 21, 22.)

At some point during this period, Stacey Johnson arrived in the personnel office. Hardiek was sitting at a table with Paul obtaining information about the incident for a store report. Paul had also been asked to complete a separate report describing the accident. Paul asked June to help him, but Johnson explained to June that store policy required that the statement be in Paul's own words. (Id. ¶¶ 23-25.) Johnson also told Katsaros, Hardiek and Paul that they needed to complete the reports in the layaway area.*fn7 According to Johnson, customers are not authorized to be in the personnel office (though they had all been there for approximately 20 minutes) because it was close to the employee locker area where there was often clothing and fixtures hanging from the ceiling.

Johnson worried about liability issues if a customer were injured while in an unauthorized area. (Id. ¶ 26.)

Everyone proceeded to the layaway department, an area at the back of the store where customers can purchase items on layaway. The area is separated from the main shopping floor by a large 12- to 16-foot-wide opening. (Id. ¶ 28.) June stated that she wanted copies of all the documents that were being generated in connection with her son's injury. Katsaros says that June was still upset, becoming more so, and talking in a louder and louder voice. (Id. ¶ 29.) Johnson informed June that store policy only authorized the release of Paul's written statement. By this time, Hardiek had returned to the sales floor because it was a busy time in Wal-Mart's shopping season. Paul started looking at Hardiek's report, but Johnson took it away from him. She wrote down the 800 number for the claims department, explaining that this department was responsible for determining which reports the Carlsons could have. (Id. ¶¶ 30-33.)

Katsaros says that June was upset and loud in the layaway department and could be heard for quite a distance. June disagrees, but she cites only to a page of her deposition transcript where she claimed to be "very calm" while in the personnel office. (Id. ¶ 34; Pl. Fact Resp. ¶ 34; June Dep., Ex. 5, at 27.)*fn8 In any event, it is undisputed that Paul left the layaway department because he wanted to be sure that Hardiek had taken a picture of the fire hose box. Paul found Hardiek placing foam and grey tape around the box as an immediate remedy. (Id. ¶ 35.)

When Paul returned to the layaway department, June was still asking questions about the incident and stated that she, too, wanted to see the fire hose box. The Carlsons, Johnson, and Hunter -- who had proceeded to the layaway area by this time -- all went back to look at the box. (Id. ¶ 36.) Everyone then returned to the layaway department so that Paul could complete his statement. The disagreement over which forms would be produced continued, and Paul started objecting that he wanted to complete his report in the personnel office where there was a place for him to sit down. (Id. ¶¶ 37, 38; Pl. Fact Resp. ¶ 38.)

According to Hunter, Paul and June both continued to act "disorderly" and to overreact to the situation. In addition, June kept interfering while Paul was preparing his statement. June disagrees with this assessment, claiming the interaction was "amicable," that she used "no harsh words," and that it was Johnson who interfered with her son's effort to complete his statement by saying uncomplimentary things and threatening to take the statement away. (Id. ¶¶ 39, 40; Pl. Fact Resp. ¶¶ 39, 40; June Dep., Ex. 5, at 35; Pl. Add'l Facts ¶ 39.1; Def. Add'l Facts Reply ¶ 39.1.)*fn9

B. Paul's Confrontation with Johnson

Paul had apparently obtained a chair for himself by this point, and though he was unable to hear what Johnson was saying to June throughout this time, he stood up at some point and told Johnson in a firm voice, "Don't you talk that way to my mom." (Id. ¶ 41.) Here, again, there is disagreement as to what occurred. Paul says that he could tell that Johnson was "mean" to his mother. (Paul Dep., Ex. 6, at 49.) He also claims that Johnson was standing behind a counter at the time, and he stepped towards her but did not go behind the counter himself. Johnson, in turn, stepped back. (Id. at 52-53.) June adds that Johnson was angry that Paul had spoken firmly to her. (Pl. Add'l Facts ¶ 41.2.)

Johnson says that Paul pointed his finger at her and stepped towards her while she was in front of the counter. In fact, she insists that she could not step back from Paul because the counter was behind her. (Johnson Dep., Ex. G, at 44.) It is undisputed that Paul is a relatively big man, and that Johnson is not very tall. (Def. Facts ¶ 42.) According to Johnson, she felt threatened and told Paul, "Please step back. I feel threatened." (Johnson Dep., Exs. G and G1, at 39-40, 89-90.) Johnson claims that June responded, "We're not threatening you," but that she affirmed, "No, I feel threatened. Please step back. I will call the police and have you escorted out." (Id. at 40, 89-90.)

At this point, Johnson says, she was able to move through an opening in the counter and get behind it. Johnson remained fearful, however, because Paul made another move towards her as they were discussing which forms could be copied. Johnson again told Paul that she felt threatened and asked him to step back. Paul may or may not have stepped back at this point, but Johnson certainly did. (Compare Johnson Dep., Ex. G, at 44-46; Def. Facts ¶ 45 with Def. Add'l Facts Reply ¶ 42.1.) Johnson believed that the situation was escalating beyond her control, and either she or another Wal-Mart employee called the police. (Def. Facts ¶¶ 46, 48.)

C. Officer Bukovic's Arrival

Officer Scott Bukovic and Officer Richard Stutte arrived at the store around 4:52 p.m. after receiving the call that a male and female were being loud or argumentative. (Id. ¶ 49.) Officer Bukovic, the primary responding officer, and Officer Stutte, the back-up officer, both responded to the layaway department where they found the Carlsons, Johnson and Hunter. (Id. ¶ 50.) Officer Bukovic found June to be calm at this time, and asked Johnson to explain what had happened up to this point. Johnson responded that Paul had injured himself at the store, and told Officer Bukovic that during the more than one-hour process of completing a report, Paul had become very loud and boisterous towards Johnson and pointed a finger at her, making her feel threatened. (Def. Facts ¶ 51; Bukovic Dep., Ex. J, at 44-46; Pl. Facts ¶ 50.1.)

While Johnson was speaking, June kept interrupting her. (Id. ¶ 52.) At one point, June made a gesture to get Officer Bukovic's attention, but he turned to her and said, "Hold on a minute. Please don't touch me. Just let this (sic) finish and then we'll move on" or "then we'll talk to you." (Id.) June insists that initially, she did not interrupt Johnson. It was only after Johnson accused Paul of threatening her that June started loudly protesting and challenging the statement, at which point Johnson stated that she "felt" threatened by him. (Pl. Fact Resp. ¶ 52; Pl. Add'l Facts ¶¶ 52.1, 52.2.) June was admittedly "surprised" at Johnson's accusation, and Johnson and Bukovic both recall that June called Johnson a liar at least twice. (Def. Facts ¶ 53.) Officer Bukovic explained to June that he needed to hear Johnson's version of the story first and would then get June's version. (Id. ¶ 54.)

Officer Bukovic next spoke to Paul, who explained how he had received a cut on his arm. Officer Bukovic went out to the sales floor and personally examined the fire hose box at issue. (Def. Facts ΒΆ 55.) Paul also told Officer Bukovic that he is hard of hearing and has difficulty speaking. According to Officer Bukovic, Paul was adamant, vocal and loud, and he used hand gestures to explain his situation. When Officer Bukovic told Johnson about Paul's hearing problem, she expressed surprise but ...


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