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Legg v. Agee

January 6, 2009


The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge


Before the Court are two motions for summary judgment, one filed by Defendants Agee, Hutt, Papis, and the City of East Peoria ("East Peoria Defendants") (Doc. 85) and one filed by Defendants Drummond, Gorsuch, Hawkins, Jones, King, Legate, and McElyea ("MEG Defendants") (Doc. 84). Also before the Court are the following motions: Plaintiff's motion to strike the East Peoria Defendants' summary judgment brief (Doc. 90); the East Peoria Defendants' motion in limine regarding the testimony of W. Ken Katsaris (Doc. 74); and the East Peoria Defendants' motion in limine to bar the testimony of Dr. Douglas Collins (Doc. 76).

For the reasons set forth below, the Court rules as follows: Plaintiff's motion to strike is DENIED; Defendants' motion in limine regarding the testimony of Mr. Katsaris is GRANTED; the motion for summary judgment filed by the East Peoria Defendants is GRANTED, in part, and Plaintiff is directed to file his remaining state law battery claims in state court; the motion for summary judgment filed by the MEG Defendants is GRANTED; and Defendants' motion in limine regarding the testimony of Dr. Collins is MOOT.


This is a section 1983 case concerning the alleged excessive use of force by police officers in detaining and transporting a suspect. On the afternoon of March 31, 2005, Plaintiff Walter Legg went to visit his brother Robert Legg at Robert's residence in East Peoria, Illinois. Throughout the afternoon and into the night, Plaintiff and his brother consumed two to three fifths of whiskey and at least two 40 ounce bottles of malt liquor. They also smoked marijuana. (East Peoria Defendants' Statement of Undisputed Material Facts ("EP Defs.' SUMF") ¶¶ 3-4). Meanwhile, on the same date, officers of the Multi-County Narcotics Enforcement Group ("MEG") obtained a search warrant for Robert Legg's residence. The warrant directed a search of the house and of Robert Legg and Rebecca A. Pine a/k/a Becky Collins, who were suspected of selling marijuana. (EP Defs.' SUMF ¶ 9). Sometime after midnight, Plaintiff went to sleep on the floor of his brother's living room. (EP Defs.' SUMF ¶ 6).

At 7 a.m. on April 1, 2005, the MEG unit arrived at Robert Legg's residence along with uniformed East Peoria patrol officers. (EP Defs.' SUMF ¶ 14). The MEG officers knocked on the door but did not receive an answer, so they opened the door with a ram and filed into the house. The officers spread throughout the house and secured each room and person in the residence. (EP Defs.' SUMF ¶ 16). The MEG officers observed that Plaintiff was lying on the floor in or near the living room. Plaintiff was extremely intoxicated and had urinated on himself. (EP Defs.' SUMF ¶ 18).

Officers found Robert Legg in his room downstairs. He was arrested, handcuffed, led through the living room, and taken outside to a police vehicle. While Robert Legg passed through the kitchen, he saw that Plaintiff was on the floor and that two or three non-uniformed officers were surrounding Plaintiff. Robert Legg saw that one of the officers was positioned above Plaintiff's head and was pinning Plaintiff down on the floor by putting his knee into Plaintiff's back. (EP Defs.' SUMF ¶ 30). At some point during the raid, Katie Legg -- Robert's daughter who lived at the residence -- came home. When she entered the house, she saw plainclothes officers handcuffing Plaintiff on the living room floor. According to Katie Legg, an officer was holding Plaintiff down with his knee in the area of Plaintiff's shoulder blades. (EP Defs.' SUMF ¶ 27).

After the MEG officers secured the house, Officer Steven Agee, a uniformed East Peoria police officer, was asked to come inside. When Officer Agee entered the house, he saw that Plaintiff was on the floor in handcuffs. (EP Defs.' SUMF ¶ 31). A MEG officer told Officer Agee that Plaintiff was drunk and asked Agee to run a warrant check on him. (EP Defs.' SUMF ¶¶ 32-33). After running the check, Officer Agee discovered that Plaintiff had outstanding warrants from Peoria County. (EP Defs.' SUMF ¶ 33).

Officer Christopher Hutt, another uniformed East Peoria police officer, joined Officer Agee inside the residence. The two officers noticed that Plaintiff was highly intoxicated. They also observed that he was conscious, mumbling, and rolling around on the floor. (EP Defs.' SUMF ¶¶ 34-35). In response to the officers' commands to stand up, Plaintiff told the officers that he was unable to stand. Plaintiff has no recollection of these events.*fn1

The officers attempted to stand Plaintiff up, but Plaintiff was unable to stand without assistance. The officers believed that this was due to Plaintiff's intoxication. (EP Defs.' SUMF ¶ 36). Neither of the officers called an ambulance or sought any medical care for Plaintiff. (EP Defs.' SUMF ¶ 40).

Officers Agee and Hutt lifted Plaintiff from the floor and transported him outside the residence. Robert Legg and Becky Collins, who were outside the house at the time, witnessed the officers' handling of Plaintiff as he was transported out the front door, down the stairs, through the yard, and into a police vehicle. According to Robert Legg, one officer was on each side of Plaintiff. Each officer was grabbing Plaintiff by his bicep and his wrist. Plaintiff's body was limp. His head was hanging down toward his chin and was bouncing around as the officers moved him. (11/27/06 Robert Legg Dep. at pp. 26-30; 8/7/07 Robert Legg Dep. at pp. 36-39, 58-59). Similarly, Becky Collins saw that the two officers had their arms through Plaintiff's upper arms and that they were "dragging him out." She saw Plaintiff's whole body bouncing around as the officers "dragged" him down the front steps and through the yard. (EP Defs.' SUMF ¶¶ 48-49). Neither Robert Legg nor Becky Collins saw Plaintiff's head strike anything while the officers were transporting him. (EP Defs.' SUMF ¶¶ 50-51).

After removing Plaintiff from the residence, the officers put him in the back of Officer Agee's squad car, and Agee drove Plaintiff to the Tazewell County Jail. (EP Defs.' SUMF ¶¶ 54-55). Correctional officers at the jail removed Plaintiff from the squad car, but the jail refused to accept Plaintiff because he was intoxicated. Instead, jail officials directed Officer Agee to first take Plaintiff to a hospital for an evaluation. (EP Defs.' SUMF ¶ 55).

Plaintiff was then transported to Pekin Hospital's emergency room by ambulance. (EP Defs.' SUMF ¶ 56). After arriving at the hospital, Plaintiff was evaluated by two nurses, one of whom was specifically trained to recognize spinal cord injuries. Both nurses concluded that Plaintiff had no injury. (EP Defs.' SUMF ¶¶ 57-61). Hermene Upchurch, the first nurse to evaluate Plaintiff, concluded that Plaintiff was suffering from acute alcohol intoxication; his blood alcohol level was .254. (EP Defs.' SUMF ¶¶ 59, 70).

Plaintiff was also evaluated at the hospital by Dr. Jon Oakley. During Dr. Oakley's evaluation, Plaintiff joked with the doctor, stating, "there's nothing wrong with me, I'm just drunk." (EP Defs.' SUMF ¶ 65). Dr. Oakley found that Plaintiff did not need further hospitalization and cleared his return to jail. (EP Defs.' SUMF ¶ 69). Plaintiff was discharged from the hospital at 9:20 a.m. on the morning of his arrest.

After Plaintiff's discharge, Officer Agee drove him back to the Tazewell County Jail, where correctional officers took custody of him. (EP Defs.' SUMF ¶¶ 72, 74). Apparently, Plaintiff then dozed off in a holding cell at the jail. When he awoke, he was "hurting everywhere, from [his] head to [his] toes." (EP Defs.' SUMF ¶ 75). Robert Legg, who was jailed at the same facility, could hear Plaintiff asking for help and telling staff that he could not get up or move. (EP Defs.' SUMF ¶ 75). Subsequently, correctional officers and deputies removed Plaintiff from his cell and transported him to the Peoria County Jail by squad car. He arrived there about 8 p.m. on the same day, April 1, 2005. (EP Defs.' SUMF ¶¶ 77-78).

Plaintiff's wife bailed him out of the Peoria County Jail around 9 p.m. that night. (EP Defs.' SUMF ¶ 81). Plaintiff arrived at home, went up the stairs with the assistance of his wife, took a bath, and went to bed. (EP Defs.' SUMF ¶ 82). The following morning, Plaintiff complained of losing feeling in his hands and feet. He had his wife call an ambulance. Paramedics arrived and directed Plaintiff to walk to the ambulance, which he did with the assistance of his wife. (EP Defs.' SUMF ¶¶ 83-84).

Plaintiff was transported, sitting upright in the ambulance, to OSF Saint Francis Medical Center. He was evaluated by neurosurgeon Dr. Williams Hanigan, who diagnosed him with a "central cord syndrome." (EP Defs.' SUMF ¶ 86). According to Dr. Hanigan, this syndrome can be cause by hyperextension or hyperflexion of the neck. Dr. Hanigan testified at his deposition that it is possible that Plaintiff's injury was sustained while he was being handcuffed or while police officers were transporting him to the squad car outside his brother's residence on the morning of April 1, 2005. (EP Defs.' SUMF ¶¶ 87-89). According to Dr. Hanigan, it is also quite possible that something else caused the injury. (EP Defs.' SUMF ¶ 90). Fortunately, Plaintiff did not require surgery for the central cord syndrome. He has healed well and is participating in normal activities. (EP Defs.' SUMF ¶ 95).

On November 14, 2005, Plaintiff filed a complaint in federal court alleging that Officers Agee and Hutt, as well as certain MEG unit officers, used excessive force against him during the April 1, 2005 raid on his brother's residence. Plaintiff also sued East Peoria Police Chief Edward Papis and the City of East Peoria for allegedly establishing an unconstitutional policy of encouraging the use of excessive force by law enforcement officers. On September 23, 2008, the MEG ...

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