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Hunt v. Thomas

September 26, 2008

LESHURN HUNT (N-42562), PLAINTIFF,
v.
SCOTT THOMAS, ANDY ULLOA, AND PAUL RATZBURG, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Leshurn Hunt is incarcerated at the Pinckneyville Correctional Center. In August 2007, he filed this lawsuit under 42 U.S.C. § 1983 against Waukegan Detectives Scott Thomas and Andy Ulloa and against Pleasant Prairie, Wisconsin Officer Paul Ratzburg. Plaintiff's claims arise from his arrest on armed robbery charges in June 2006, the related interrogation, and the search of his home. Read in the light most favorable to Plaintiff, his complaint alleges that (1) Defendant Thomas used excessive force while interrogating Plaintiff; (2) Defendants Thomas and Ratzburg searched his home without a warrant or consent; (3) Defendant Ratzburg charged Plaintiff with armed robbery, though there was insufficient evidence to support those charges; and (4) Defendants acted with deliberate indifference to Plaintiff's injuries.

Defendants Thomas and Ulloa have filed a motion to dismiss the excessive force and deliberate indifference claims. They have also filed a motion for summary judgment, arguing that rulings in Plaintiff's state criminal case bar his claims under the principle of collateral estoppel. Defendant Ratzburg also seeks summary judgment. Plaintiff received the appropriate notice to pro se litigants and has responded to these motions. For the reasons explained here, the motion to dismiss is granted, and the motions for summary judgment are granted in part and denied in part. All claims against Defendant Ulloa are dismissed, and the claims of deliberate indifference to a serious medical need, false arrest, and excessive force by Defendant Ratzburg are dismissed. The only claims that remain are Plaintiff's claims that Defendant Thomas used excessive force and that Thomas and Ratzburg conducted an illegal search of Plaintiff's residence. The court invites Defendants Thomas and Ratzburg to file renewed summary judgment motions addressing the unresolved issues addressed in this opinion.

FACTS

Allegations of the Complaint

For purposes of Defendants Thomas and Ulloa's motion to dismiss, the well-pleaded facts of Plaintiff's complaint are presumed true. In that complaint, Plaintiff describes the circumstances of his arrest and interrogation in June 2006 in some detail. He alleges that on June 27, 2006, three officers arrested him at his home in Waukegan, Illinois. (Compl. at 6.) At the police station, Waukegan Officer Scott Thomas began interviewing Plaintiff about two armed robberies, one in Waukegan, and the other in Pleasant Prairie, Wisconsin. (Id. at 7.) Plaintiff stated he knew nothing about the armed robberies and asked to speak to a lawyer. (Id.) Officer Thomas left the room but returned with a form setting forth Plaintiff's Miranda rights, which Plaintiff read and signed. (Id.) Thomas questioned Plaintiff again about the robberies; Plaintiff again asked to call his lawyer or a family member, and Thomas responded by calling Plaintiff a "f----ing liar" and by striking Plaintiff with his right hand. (Id. at 8.) According to Plaintiff, Thomas punched Plaintiff in the forehead, causing him to fall from the chair to the floor. Thomas then left the room, and Plaintiff remained on the floor and fell asleep until Thomas returned, kicked Plaintiff's foot, ordered him to get up from the floor, placed him in handcuffs "for a minute or two," and then escorted him to a "booking jail cell." (Id.) Plaintiff asked another officer for permission to call a lawyer, but was again refused.

Later that day, or the following day, Thomas took Plaintiff from the jail cell back to the interview room and began questioning him again about an armed robbery in Waukegan. (Id.) Thomas told Plaintiff he had a video recording (presumably purported evidence of Plaintiff's guilt), but Plaintiff insisted he knew nothing about the robbery and wanted to call a lawyer. (Id. at 9.) Thomas again began striking Plaintiff with the palm of his fist and hands, striking both sides of his face and "chok[ing] [him] up against the wall lifting [his] body up and throwing [him] to the floor (rug) and kicking [him]" on his legs and other body parts. (Id.) Thomas placed a knee on Plaintiff's "butt area" and pinned him to the ground with his left arm behind his back. (Id.) When Defendant Ulloa entered the interview room (Plaintiff recalls that this took place on June 28) and directed Thomas to "chill out," Thomas stopped beating Plaintiff. (Id.) Ulloa effectively acknowledged that Plaintiff had been beaten: he encouraged Plaintiff to be a "big guy" and to "shake it off," as he would in a football game. Ulloa offered to become involved in the case and, when Thomas again hit Plaintiff in the face, Ulloa asked Thomas to step out of the interview room. (Id.) Ulloa told Plaintiff that Plaintiff's sister, Sergeant Charlie Burleson, was "one of us" (that is, a police officer), that she was outside the interview room, crying, and that she hoped that Plaintiff would cooperate by telling Ulloa "what happen[ed]." (Id.) If Plaintiff would do so, Ulloa promised to speak up for Plaintiff and "say something in [Plaintiff's] favor," with the result that he would face a sentence of just three years. (Id. at 10.) As Ulloa began to question Plaintiff about the Waukegan robbery, Ulloa placed one of his arms on Plaintiff's right shoulder, patting it, and urging Plaintiff, "[T]ell me, tell me, talk to me." (Id.) Plaintiff again asked for a lawyer, but Ulloa refused his request. (Id.)

Plaintiff alleges that, while he was at the Waukegan police station on June 27 or 28, Defendant Thomas and Defendant Ratzburg went to Plaintiff's house and searched it without a warrant and without obtaining consent from Plaintiff's wife. (Id.) Thomas and Ratzburg then returned to the police station and entered the interrogation room, where Detective Ratzburg yelled at Plaintiff and threatened him. (Id. at 11.) As Ratzburg left the room, Plaintiff heard him tell Defendant Thomas that he did not have enough evidence to charge Plaintiff with armed robbery. (Id.) Thomas responded by assuring Ratzburg that Thomas would "take care of it." Plaintiff learned three weeks later that he was being charged with an offense in Pleasant Prairie, Wisconsin. (Id.)

At some point on June 28, evidently as a result of Plaintiff's sister's efforts, Plaintiff was allowed to make a phone call. (Id. at 11, 12.) He also filed a complaint against Detectives Thomas and Ulloa, gave a statement about the events during his interrogation, and was photographed. Some months later, that complaint was dismissed. (Id. at 11, 12.)

Summary Judgment Record

A. Record of Criminal Proceeding

As noted, Plaintiff's allegations are presumed true for purposes of the motion to dismiss. Defendants have also moved for summary judgment, and for purposes of those motions, the court is free to consider "discovery and disclosure materials on file and any affidavits" in determining whether there are any genuine issues of material fact. FED. R. CIV. P. 56(c). In this case, the material before the court includes portions of the record of Plaintiff's criminal prosecution for armed robbery in the Circuit Court of Lake County, Illinois. In that case, Plaintiff moved to suppress the fruits of the arrest on the ground that it was not supported by probable cause, and to suppress statements by Plaintiff allegedly obtained as a result of excessive force. (Motion to Suppress Statements, and Motion to Suppress Evidence, Exs. B and C to Defs. Thomas and Ulloa Statement of Material Facts in Supp. of Mot. for Summ. J. (hereinafter, "Def.'s 56.1").)

1. Plaintiff's Testimony

At a hearing before Judge Fred Foreman of the Circuit Court of Lake County, Plaintiff testified consistently with the allegations of his complaint: On June 27, 2006, he was arrested and taken from his home to the Waukegan Police Department, where he was placed in an interrogation room. (Tr. of June 13, 2007 at 2-5, Ex. D to Def.'s 56.1.) Detective Thomas entered the room and, a short time later, stepped out and returned with a written Miranda notice, which Plaintiff read and signed. (Id. at 8, 11.) Plaintiff denied involvement in the robbery, and Thomas became agitated. (Id. at 12.) Thomas approached him, called him an "f-ing liar," an "asshole," "stupid" and a "liar," and ultimately "balled his [right] fist up and hit [Plaintiff] with the palm of his hand and slapped [him] dead . . . on [his] left side and knocked [him] straight clear over into the corner of the wall." (Id. at 12, 13.) Plaintiff fell to the floor and remained there until Thomas ordered him to return to the chair. (Id. at 13.) Plaintiff testified that Thomas used force against him several times, handcuffed Plaintiff briefly while Thomas stepped out of the room, and then returned, removed the handcuffs, and continued to demand that Plaintiff tell him what had happened. (Id. at 13-15.) Plaintiff testified that at least twice, he asked to call his attorney, but Thomas refused. (Id. at 16.) Some time later, Officer Paul Ratzburg joined Thomas and began angrily asking questions, as well, though Ratzburg "never touched [Plaintiff] at any time." (Id. at 17-18, 22-23.) Plaintiff recalled that he fell asleep twice during the interrogation and that Detective Thomas kicked him to wake him. (Id. at 21.)

Plaintiff remained in custody overnight. Thomas returned him to the interrogation room on June 28 and resumed questioning him. Plaintiff continued to deny involvement in the robberies. (Id. at 26-28.) Thomas again assaulted Plaintiff, as he "started choking [Plaintiff], threw [him] to the floor, started beating [him] with is fists, [and] kicking [him] . . . ." (Id. at 29.) As Thomas assaulted Plaintiff with his foot and his body, and struck Plaintiff on the left side of his face, Plaintiff began to yell. (Id.) At this point, Officer Ulloa entered the room and told Thomas to "cool down." (Id. at 30.) Ulloa asked Plaintiff whether he had ever played football and when Plaintiff replied, "Yeah," Ulloa said, "Come on, so you could take it. Be a big guy. You have been hit harder than that before, haven't you?" (Id. at 32.) Plaintiff testified that Ulloa himself "never hit [Plaintiff] at any time." His only physical contact with Plaintiff was placing hands on his shoulder and "punching [him] back and forth saying, 'Tell me, tell me, talk to me, tell me'"; Plaintiff characterized this as "normal physical contact. It was not anything harsh." (Id. at 33-34.) Like the other detectives, Defendant Ulloa refused to permit Plaintiff to make a phone call. (Id. at 33.)

During the two days of interrogation, Plaintiff claims he asked to make a phone call "at least probably like about eight times." (Id. at 25.) There was some discussion of Plaintiff's sister's presence outside the interrogation room; Plaintiff recalls that he brought this up, and the officers told him that his sister was crying and wanted him to confess. (Id.. at 71.) Describing his injuries, Plaintiff stated that he was kicked in his legs, his arm was twisted, his shoulder and back were injured, and his eye had been hit. (Id. at p.36.) He cried, he felt dizzy, he was "very much" in pain, and he felt a "knot" on the side of his head. (Id. at 35, 37.) He claims he still has scars on his shoulder and a burn mark on his back. (Id. at 36.)

2. Thomas's Testimony

Officer Scott Thomas also testified at the suppression hearing. His account of the June 2006 events was quite different from Plaintiff's. Thomas testified that on June 26, 2006, he was investigating an armed robbery in Waukegan, Illinois. (Tr. of Jan. 10, 2007 at 7, Ex. C to Def.'s 56.1.) The victim of the robbery described the assailant as a black male with a mustache, wearing sunglasses, a black hoodie, and jeans, and using a gun with duct tape around the barrel. (Id. at 8.) The robber pointed the gun at the victim, ordered her to the back of the store, directed her to lie on the floor, and walked around the store and stole cash. (Id. at 8-9.) The following day, Thomas learned of a similar robbery in Pleasant Prairie, Wisconsin, that had occurred several hours after the Waukegan robbery. A teletype dispatch describing the Pleasant Prairie robbery revealed that the victim of that robbery gave a similar description of the assailant and the weapon, and ...


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