The opinion of the court was delivered by: Hon. Maria Valdez United States Magistrate Judge
Magistrate Judge Maria Valdez
MEMORANDUM OPINION AND ORDER
Plaintiff Patrick Edwards's complaint alleges unreasonable seizure and excessive force, in violation of 42 U.S.C. § 1983 against defendant police officers Chris Mannino and Paul Shulman and a supplemental state law claim of malicious prosecution against Mannino, Shulman, and the Village of Park Forest. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is now before the Court on Defendants Village of Park Forest, Chris Mannino, and Paul Shulman's Motion for Partial Summary Judgment [Doc. No. 43]. For the reasons that follow, Defendants' motion is denied.
At all relevant times, defendants Mannino and Shulman were police officers employed by defendant Village of Park Forest, and Plaintiff was a resident of Park Forest. (Defx ¶¶ 3-5.) On September 9, 2006, Mannino was dispatched to a call of a possible drug transaction at an address in Park Forest, and he was given information that a white vehicle was involved. (Defx ¶¶ 9, 11.) When Mannino arrived at the address, non-defendant Officer Kessler was already present and was speaking with the occupants of the white vehicle thought to be involved in the alleged drug transaction. (Defx ¶ 12.) Mannino spoke with Kessler, who told Mannino that he had observed Plaintiff speaking with or engaging in some kind of transaction with the occupants of the white vehicle. (Defx ¶¶ 13-14.) Mannino then decided to pat down Plaintiff because the call was for a possible drug transaction; violence is not uncommon in the neighborhood; and he wanted to be sure that Plaintiff did not possess a weapon. (Defx ¶ 18.) Mannino also knew that Plaintiff had a previous arrest for narcotics and for resisting the police, and Mannino had arrested Plaintiff in the past. (Defx ¶¶ 19-20.)
At this point, the parties' versions of events sharply diverge.*fn2 According to Mannino, he attempted but could not complete a pat-down search because as he approached Plaintiff's left jeans pocket, Plaintiff pushed Mannino's hand away.*fn3 (Defx ¶¶ 21-22, 37.) Mannino contends that he then told Plaintiff to put his hands behind his back to handcuff him, but Plaintiff pushed away and fled, running almost directly into defendant Shulman, who grabbed Plaintiff and tried to take him into custody. (Defx ¶¶ 23-24, 38.) Defendants claim that Plaintiff began to push off of Shulman and swing his arms wildly in order to break Shulman's grip. (Defx ¶¶ 25, 39-40.) In Plaintiff's recitation of the facts, he consented to a pat-down search of his clothing, which was completed and recovered nothing. (Plx ¶¶ 1-2.) After the pat-down, Mannino walked away from Plaintiff, and Plaintiff also began to walk away. (Plx ¶¶ 3-4.) Plaintiff avers that he did not push away, attempt to flee, swing his arms, or otherwise resist or initiate any physical contact with the officers at any time during the incident. (Plx ¶¶ 7-9, 11-13.) Plaintiff also disputes that Mannino ever grabbed his wrist or told Plaintiff to place his hands behind his back. (Plx ¶ 10.)
The parties agree, however, that without providing any warning, Mannino then fired his department-issued Taser at Plaintiff from approximately seven feet away, striking him on the left side and causing him to fall to the ground. (Defx ¶¶ 26-27; Plx ¶¶ 5-6.) It is also not disputed that immediately after being tased, Plaintiff was struck on the back of the head with a metal flashlight.*fn4 (Plx ¶ 14.) But after this brief agreeable interlude, the parties' stories are at odds yet again. Mannino states that, after Plaintiff was incapacitated on the ground, he recovered thirty-five individually wrapped bags of cannibis from Plaintiff's left front pants pocket. (Defx ¶ 28.) Plaintiff disputes this account, testifying that he was not in the possession of cannabis or any other drug and that no such drug was recovered from his person by any police officer. (Plresp ¶ 28.)
Shulman and Mannino placed Plaintiff in handcuffs and charged him with possession of cannabis, battery, and resisting a police officer. (Defx ¶¶ 29,41.) The criminal complaints were all signed by Mannino, who knew that Plaintiff would have to appear in court to defend himself and that he could potentially be sentenced to a term of incarceration; Mannino also acknowledged that in signing the criminal complaints, he wanted Plaintiff to be prosecuted. (Defx ¶¶ 30, 33-34.) None of the criminal complaints were signed by Shulman, but he was aware that Plaintiff was being charged with battery to him and that Plaintiff would have to defend himself against the charges that could result in a term of incarceration if convicted. (Defx ¶ 42-43.) The charges against Plaintiff were eventually dismissed with leave to reinstate ("SOL").*fn5 (Defx ¶ 31.) Mannino stated that the charges were dismissed because he did not appear in court on the day they were heard. (Defx ¶ 32.) Mannino stated that he did not recall why he did not appear in court and that he also did not recall any conversation with any State's Attorney regarding the prosecution of Plaintiff until he made inquiries about the present lawsuit. (Plx ¶ 22.) Plaintiff contends that the charges were dropped when he appeared in court with numerous defense witnesses. (Plx ¶ 16.)
Defendants move for summary judgment on the following counts: (1) Count I, unreasonable seizure, based upon the doctrine of qualified immunity; (2) Count II, excessive force, as to defendant Shulman only; and (3) Count III, a state law claim of malicious prosecution.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where "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). The Court must draw all reasonable inferences in favor of the non-movant. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001).
However, once the movant has carried its burden under Rule 56(c), "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing summary judgment must offer admissible evidence in support of his version of events, and hearsay evidence does not create a genuine issue of material fact. McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 484 (7th Cir. 1996); see Larimer v. Dayton Hudson Corp., 137 F.3d 497, 500 (7th Cir. 1998) ("'If the non-moving party bears the burden of proof on an issue, . . . that party may not rest on the pleadings and must instead show that there is a genuine issue of material fact.'") (citation omitted). "The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. . . . The non-movant will successfully oppose summary judgment only when it presents 'definite, competent evidence to rebut the motion.'" Vukadinovich v. Bd. of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002) (citations omitted). "In considering a motion for summary judgment, this court is not required to scour the record in search of ...