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Thurman v. Village of Hazel Crest

August 6, 2008

NEHEMIYAH THURMAN, PLAINTIFF,
v.
THE VILLAGE OF HAZEL CREST, DARRYL NORMAN, BRIAN BRUCATO, AND TONYA SMITH-DOUMAS, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Defendants Officer Brian Brucato ("Brucato"), Officer Darryl Norman ("Norman"), Officer Tonya Smith-Doumas ("Smith-Doumas") (collectively, "Officers"), and the Village of Hazel Crest ("Village") seek summary judgment on counts I through V of plaintiff Nehemiyah Thurman's ("Thurman") second amended complaint ("complaint"). The complaint alleges: 1) assault and battery against Norman and Brucato; 2) excessive force under 42 U.S.C. § 1983 against Norman and Brucato;*fn1 3) conspiracy under § 1983 against Norman, Brucato, and Smith-Doumas; 4) false arrest under § 1983 against Norman, Brucato, and Smith-Doumas; 5) failure to intervene under § 1983 against Norman, Brucato, and Smith-Doumas; and 6) respondeat superior against the Village.*fn2 For the following reasons, the motion is granted in part.

I.

The facts in this case are mostly disputed. The parties agree that, on September 17, 2006 around 3:00 or 4:00 a.m., Thurman was driving a white 2003 Chevy Suburban. Thurman is an African-American man. At the time of the incident, he was forty-four years old and was wearing a sleeveless t-shirt and shorts. He was pulled over by what appeared to be a police vehicle behind him with red and blue lights. A Caucasian man and an African-American man emerged from an unmarked van, and a female officer emerged from the vehicle with the red and blue lights. The parties agree that Brucato is Caucasian and Norman is African-American. Thurman described the Caucasian man as "[e]ither Hispanic or European looking," "either of Italian descent or Hispanic," with "[d]ark hair" and "[m]aybe a moustache," "[k]ind of heavy-set, not very tall," "[a]pproximately 5'7, 5'8," and "[m]aybe [in his] late 20s, 30s." Thurman described the African-American man as "[a]bout six feet, 6-foot one," "[m]aybe 230 or 240 pounds," with a "mustache," and Thurman was "not sure" of this man's age - "[l]ate 30s, 40s."

In response to complaints from business owners, the Hazel Crest Police Department assigned an overtime shift to the Grenoble and Fountainblue Plazas in Hazel Crest, Illinois to keep an eye on the businesses for break-ins. Norman was assigned to that detail, and requested that Brucato be assigned as his partner for the midnight shift on September 17, 2006. Norman and Brucato drove a maroon minivan. Smith-Doumas testified that, on September 17, 2006, she was a patrol officer working the midnight shift. She also testified that Officer Watson ("Watson") was "the officer in charge that day."

Between 1:00 and 2:00 a.m., Norman and Brucato observed a white Suburban drive through the parking lot where they were parked. At approximately 3:00 a.m., the parties agree that Norman and Brucato observed an attempted burglary by four or five male African-American teenagers, who were on foot, wearing all black, and had on hoods. Brucato contacted other units in the area by radio about these subjects. Smith-Doumas responded to the call and, when she arrived at the business, the subjects saw her and fled in different directions. Norman and Brucato chased one of them to a used car lot near a wooded area.

While Norman and Brucato were standing in the used car lot, they observed a white Suburban that Brucato testified "looked the same" as the one observed earlier. In support of their motion, defendants argue that Norman and Brucato saw Thurman's vehicle twice during their stake-out, but the record does not show that Thurman's vehicle was necessarily the same one seen earlier that morning. Additionally, while defendants argue that no nearby businesses were open at the times when they saw a white Suburban, Smith-Doumas testified that gas stations in the area stay open past midnight. Thurman testified that he left his house "around 3:50 a.m." to buy aspirin. He attempted to go to a Shell station located at "183rd and Kedzie," but was unable to enter because the attendant had locked the door. He then tried to go to a Walgreens in the "Cherry Creek of Cherry Hill Mall," but did not enter the parking lot because he realized that the store was closed. He then planned to go to a twenty-four hour Citgo station located at "175th and Kedzie," but he never made it there.

Norman and Brucato testified that the white Suburban they observed from the used car lot looked "suspicious." Norman and Brucato testified that its lights were not on, although Thurman testified that his headlights were on both while he was driving and when he stopped. Norman and Brucato got back into the van and followed the white Suburban. One of them advised other units by radio that they were "following a suspicious with possible relations to this incident." Smith-Doumas received a radio call from one of the officers that there was a "white SUV driving back and forth behind the businesses . . . with his headlights off." Smith-Doumas then got a transmission from one of the officers requesting that she "put a stop on the vehicle" because she was driving a marked vehicle.

Thurman testified that the only other traffic at around "4:00, 4:10" was a "[d]ark green" van.*fn3 He testified that the van made a u-turn behind him, traveled behind him, and extinguished its headlights several times. Thurman testified that eventually he got to "a dead end or a 'T' intersection," at which point he did not see the van, and he turned his vehicle around to travel back up the street heading northbound. Brucato testified that the white Suburban made a u-turn and started driving toward the van with its lights off, and Norman swerved to avoid a head-on collision. But Thurman testified that he was driving northbound and the van was heading southbound, the van drove towards him, made "a maneuver or a turn to the left coming across the portion of where [Thurman was] traveling in the lane or portion of the street [Thurman was] traveling in" to block him from proceeding forward, and Thurman "proceeded north, and [he] move[d] around this van." Defendants denied Thurman's statement that he maneuvered around the van to avoid a collision only "insofar that this is an inaccurate citation" to Thurman's deposition transcript, despite the foregoing testimony on other pages of the transcript.

Smith-Doumas got behind Thurman's vehicle, activated her emergency lights, and conducted a traffic stop.*fn4 Thurman testified that he was not angry. Brucato testified that the driver opened his door forcefully. And Smith-Doumas testified that Thurman "flung" open the door to his vehicle, jumped out, and started walking toward her squad car in a combative manner "with his fists balled." Norman testified that Brucato jumped out of the van "in full uniform announcing, Hazel Crest police." Norman further testified that Brucato told Thurman to stay in the car - but he would not stay in the car - and to take his hands out of his pockets and get on the ground. Thurman testified that he never had his hands in his pockets. Thurman also testified that the Caucasian and African-American men were not wearing uniforms. Smith-Doumas likewise testified that Norman and Brucato were dressed in "plainclothes" and were in an unmarked vehicle; she also testified that "their badges were clearly hanging around their neck." Norman testified that he was dressed in plainclothes with his badge hanging around his neck, and Brucato was dressed in "full uniform." Brucato testified that he was dressed in "patrol clothes," which he described as including his uniform.

Thurman testified that he turned on the "dome light" inside his vehicle and exited with his "left hand and arm through the door, not on the inside, on the outside" because he "wanted them to see [his] hands." He said he was a former police officer. Thurman testified that he did not kick open his door. Thurman also testified that he did not go anywhere when he got out of his vehicle; he began to step out of his vehicle, stayed between the door and "the door weld," and exited the vehicle "standing up." Thurman further testified that the "Caucasian" man came around the front of the van with a "gun drawn." Thurman heard "'Get down, nigger, get down,'" twice in different voices. Thurman testified that he did not get down on the ground when he heard that because he did not know who the people were; he saw the Caucasian exit the van and he believed the African-American had been in the van.

Smith-Doumas testified that she opened her vehicle and asked Thurman to stop, but he kept coming toward her. She also testified that Norman and Brucato told Thurman to get down on the ground, but he did not comply and still came toward her. Norman testified that Thurman "started walking face to face with the officer and the officer was walking back while he was walking towards him." Brucato testified that Smith-Doumas was "[i]nside her vehicle" and Brucato was in front of Smith-Doumas' car, and Thurman walked toward him. Brucato further testified that he reholstered his gun as Thurman got closer.

Norman and Brucato testified that Thurman was walking toward Brucato, and Norman used a "distraction blow" to contain Thurman. Norman testified that he "made up [his] mind to stop a threat before it happened" and "threw a distraction blow to stop Mr. Thurman before he was able to cause any bodily harm to [his] partner." Thurman testified that, when he began to bend down with his hands up, he believes the "African-American person" hit him "in the face" with a "metal flashlight." Norman and Brucato testified that Norman used his left forearm to strike Thurman on his right shoulder and chest area. Norman denied taking out his flashlight or striking Thurman in the face with anything. Brucato likewise denied that Norman struck Thurman in the face with a flashlight. Defendants denied facts cited by Thurman that purport to relate to Norman's physical description as well as his alleged striking of Thurman with a flashlight on the grounds that Thurman testified about an African-American person as opposed to naming Norman. Defendants do not, however, dispute that Norman was involved in the incident. Smith-Doumas testified that Norman and Brucato were on the driver's side of Thurman's vehicle and she was on the passenger's side visually inspecting it. She testified that she has no idea what Norman and Brucato were doing because she could not see anything, although she heard them and she did not hear any physical altercation.

Thurman testified that the "African-American person" forced him to the ground, and he felt a knee in his back and/or "the upper portion of [his] neck." Defendants denied only that a knee was placed in Thurman's neck, without any citation to the record. Thurman testified that while lying "facedown" on the ground, he saw a "female officer" exit the emergency vehicle. Although Thurman admitted in response to defendants' statement of facts that Brucato handcuffed him, he also asserted in his statement of additional facts that both Norman and Brucato handcuffed him based on Brucato's testimony. Thurman also testified, however, that the Italian-looking officer did not have any contact with him. The parties disagree as to whether Thurman resisted being handcuffed. Thurman testified that he did not resist the handcuffing, while Brucato testified that there was "just a brief struggle" but Thurman did not resist in any other way after he was handcuffed. Thurman testified that "the African-American officer called [him] ...


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