The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court
Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Plaintiff Pedro Martinez (hereinafter, "Martinez"), currently a federal inmate at the F.C.I. in Beaumont, Texas, brings this pro se "Bivens" action pursuant to 28 U.S.C. §1331. He claims that his arrest on March 18, 2005, was unlawful and that excessive force was used in the course of the arrest. Defendant Louis Gade (hereinafter, "Gade"), a Special Agent for the Drug Enforcement Administration (the "DEA"), has filed a Motion for Summary Judgment. Martinez has responded to the motion and has sought leave to file an amended complaint. For the following reasons, the Court denies Martinez leave to file an amended complaint and grants Gade's Motion for Summary Judgment.
Summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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); see also, Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 709 (7th Cir., 2002) ("If the nonmoving party fails to make a sufficient showing on an essential element of her case, the moving party is entitled to judgment as a matter of law because 'a complete failure of proof concerning an essential element of the [non-movant's] case necessarily renders all other facts immaterial.'" (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). In order to present a genuine issue of material fact, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "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.'" Id. at 587 (citing First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289 (1968)).
The party moving for summary judgment has the initial burden of submitting affidavits and other evidentiary material to show the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325. Once the moving party has sustained the initial burden, the opposing party may not rest upon the mere allegations or denials of the pleadings, but instead must come forward with specific evidence, by affidavits or as otherwise provided in Rule 56, showing that there is a genuine issue for trial. Id. at 324. Moreover, a party may not attempt to survive a motion for summary judgment through the submission of an affidavit that contradicts testimony in his deposition or other sworn testimony. Flannery v. Recording Industry Ass'n of America, 354 F.3d 632, 638 (7th Cir., 2004); Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir., 2001).
On March 18, 2005, Pedro Martinez delivered approximately one pound of methamphetamine to Jay Zbrozek, an undercover agent of the DEA. (Defendant's Statement of Material Facts ("DSMF") ¶ 5, Ex. 2 (Corcoran Dec.) at ¶ 4.) The delivery took place in an automobile in a parking lot in Cicero, Illinois, northwest of the intersection of Cermak Road and 50th Avenue. Id. Present at the scene and participating in the assignment were DEA Group Supervisor Rospond; Special Agents Kevin Corcoran, Christopher O'Reilly, James Chupik, Brian Robbins, Chet Oberling, and Louis Gade; and Task Force Agents Mario Elias and Jay Zbrozek. (DSMF ¶ 6, Ex. 2 (Corcoran Dec.) at ¶ 3.)
After Martinez tendered the methamphetamine to Agent Zbrozek, Zbrozek stepped out of the automobile and provided a prearranged arrest signal to the surveillance agents. (DSMF ¶ 7, Ex. 2 (Corcoran Dec.) at ¶ 3.) DEA Agents Corcoran, Chupik, and O'Reilly were stationed in a Chevrolet Blazer west of the parking lot, northwest of the undercover vehicle. Agent O'Reilly was driving. Agent Louis Gade, the case agent, was stationed on 50th Avenue, south of Cermak. Other agents were at other locations surrounding the area. (DSMF ¶ 8, Ex. 3 (Chupik Dec.) at ¶¶ 3-4.) Upon receiving Agent Zbrozek's arrest signal, Agents Corcoran, Chupik, and O'Reilly, who were all wearing vests which identified them in large letters as law enforcement officers, drove their Blazer into the parking lot, northwest of the undercover vehicle. (DSMF ¶ 9, Ex. 2 (Corcoran Dec.) at ¶¶ 5-6; Ex. 3 (Chupik Dec.) at ¶ 4.)
A. The Agents' Account of the Arrest
At this point, the account of the DEA agents diverges from Martinez's account, but the agents' account is still important, because Martinez's account was rejected in significant part by the district court in the criminal case, United States of America v. Martinez, No. 05 CR 253 (N.D.Ill.) (Zagel, J.) when it convicted him of knowingly distributing methamphetamine. Agents Chupik and Corcoran testified that upon receiving the arrest signal, they drove right up to the undercover vehicle, got out and that Agent Corcoran pointed a rifle at Martinez. Agent Corcoran shouted, "Stop, police," and Agent Chupik made a similar announcement and ordered Martinez to get on the ground. (DSMF ¶ 10, Ex. 2 (Corcoran Dec.) at ¶ 7; Ex. 3 (Chupik Dec.) at ¶ 4.) Martinez first put up his hands, but then turned and ran south across Cermak. Id. Agents Chupik and Corcoran immediately pursued him. (DSMF ¶ 11, Ex. 2 (Corcoran Dec.) at P 7; Ex. 3 (Chupik Dec.) at ¶ 4.) After he crossed Cermak, Martinez turned and ran east along the sidewalk, with the agents following. Agent Chupik reached Martinez first, grabbing him on the run, and as a result, Agent Chupik and Martinez fell together to the ground, with Agent Chupik on top. (DSMF ¶ 12, Ex. 2 (Corcoran Dec.) at ¶ 8; Ex. 3 (Chupik Dec.) at ¶ 6.) Martinez sustained abrasions to his face and a cut to his lip when he hit the fence and fell on the cement sidewalk. Id.
B. Martinez's Account of the Arrest
Martinez's defense at his criminal trial was that he believed he was working for the DEA as an informant at the time of the methamphetamine delivery. (DSMF ¶ 13, Ex. 4 (Criminal Trial) at 446, lines 20-21.) Consistent with this defense, Martinez denied at his criminal trial that he ran away from DEA Agent Chupik and Corcoran. (Id. at 394, lines 13-15.) Martinez denied that the agents drove up and ordered him to stop -- according to Martinez, the Chevy Blazer screeched to a halt approximately 150 feet away from Martinez, who was standing next to the undercover vehicle. Martinez claims he saw a foot get out of the car and could see what he thought was a pistol, but that he did not see anybody get out of the car. (DSMF ¶ 14, Ex. 1 (Martinez Deposition) at 38-39; Ex. 4 (Criminal Trial) at 368, lines 21-24.) According to Martinez, he believed that the men in the car were working for a drug dealer named Angel. Martinez testified at his criminal trial and his deposition that he crossed Cermak to look for Angel and ran hurriedly in order to avoid the cross traffic. (DSMF ¶ 15, Ex. 1 (Martinez Deposition) at 40, lines 16-18.) Martinez expressly and repeatedly denied fleeing from the DEA agents. (DSMF ¶ 16, Ex. 4 (Criminal Trial) at 393-94.)
Martinez testified that after he crossed Cermak, he saw Agent Louis Gade in an official vehicle on 50th Avenue, about half a block, 200 feet, south of Cermak driving north toward Martinez. (DSMF ¶ 17, Ex. 1 (Martinez Deposition) at 43-44.) Martinez stayed on the corner for only two seconds and then turned left and ran approximately five steps east on Cermak. (DSMF ¶ 18, Ex. 1 (Martinez Deposition) at 47, lines 3-13.) After, by his estimate, five steps, an agent Martinez could not identify grabbed him from behind. (Id., lines 11-15.) Martinez claims that he saw the agent, knew he was being arrested, raised his arms to submit, and then put them behind his back so that he could be handcuffed. But, according to Martinez, the agent did not want to arrest him, he wanted to hurt him, and painfully twisted Martinez's arm, and then threw him to the ground. (DSMF ¶ 19, Ex. 1 (Martinez Deposition) at 26, lines 14-20; 47, lines 21-25.) Martinez claims he was on the ground for approximately 10 seconds, until handcuffs were put on him, and that during these seconds numerous other officers arrived. (DSMF ¶ 20, Ex. 1 (Martinez Deposition) at 48, lines 13-20.) Martinez claims that during the approximately 10 seconds that he was on the ground, other unidentified officers kicked him in the side and the head. Martinez testified that he did not know how many agents arrived and that he was not able to see them or identify who allegedly kicked him. (DSMF ¶ 21, Ex. 1 (Martinez Deposition) at 51, lines 18; Id. lines 3-10.)
Further, according to Martinez's account, as soon as the handcuffs were on, someone ordered him to stand up against the fence. (DSMF ¶ 22, Ex. 1 (Martinez Deposition) at 51, lines 24-25.) Then someone, Martinez could not see who, banged his head against the fence five times. (Id. at 48, lines 21-25; 49, lines 1-4, 14-15.) Martinez testified that he was then left at the fence for some seconds, during which his face was bleeding. After that, unidentified DEA agents turned him around and saw that he had injured his face. (DSMF ¶ 23, Ex. 1 (Martinez Deposition) at 49, lines 9-13, 17-19, 21-22.)
It was at this time, after all of the alleged injuries were completed, that Martinez saw Agent Gade for the first time since he had seen him in the car driving north on 50th Avenue. (DSMF ¶ 24, Ex. 1 (Martinez Deposition ) at 53, lines 6-14.) When Martinez turned around, he saw that Agent Gade was among the numerous agents present. Gade administered first aid to Martinez, using a piece of paper to assuage the bleeding on Martinez's face. (Id. at 52, lines 19-23; 53, lines 15-17.) According to Martinez's own account, from the time ...