The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
This matter is before the Court on four related motions: two Motions for Summary Judgment by Defendants, and cross-motions for sanctions filed by Plaintiff and Defendants. The Motion for Summary Judgment by Defendant-Officers Cargill, Dearing, DuBois, and Trowbridge was filed with the Court on May 29, 2009 (Doc. 37) (hereinafter "Officers' MSJ"). Plaintiff responded to this Motion on June 22, 2009, and Defendant-Officers replied to Plaintiff's response on July 6, 2009. (Docs. 40, 43) (hereinafter "Response" and "Officers' Reply"). The remaining Defendants, Peoria County and Sheriff McCoy, also filed a Motion for Summary Judgment on May 29, 2009 (Doc. 38) (hereinafter "County MSJ"). Plaintiff's Response to this Motion was filed on June 22, 2009, and Defendants replied to this Response on July 6, 2009. (Docs. 39, 42) (hereinafter "Response to County MSJ" and "County Reply"). The parties have also filed cross-motions for sanctions alleging misconduct in the summary judgment filings. (Docs. 44 and 46). For the reasons explained below, the Officers' Motion for Summary Judgment is denied in part and granted in part, the County's Motion for Summary Judgment is denied in part and granted in part, and the Motions for Sanctions are denied.
On January 20, 2008, Plaintiff got into an argument with her boyfriend at his apartment, and eventually called the police. (Officers' MSJ at 2-3; Response at 2-3; Davis Dep. at 14, 16-17). Before Peoria City Police officers arrived at 7:00 p.m., Plaintiff's boyfriend left the apartment and locked her out of it, which is where she was when the police officers arrived. (Officers' MSJ at 3; Response at 3; Davis Dep. at 17-18). Plaintiff told police that she no longer needed their help. (Response at 10; Davis Dep. at 17-18). The police arrested Plaintiff for obstructing an officer, and transported her to the Peoria County Jail, where she was escorted into the jail's intake screening area. (Officers' MSJ at 3; Response at 3; Davis Dep. at 53). Plaintiff had had four beers with her boyfriend, and Officers Cargill and Dearing, who were on duty the night Plaintiff was arrested, believed that she was intoxicated; Plaintiff maintains that she was at most "tipsy." (Officers' MSJ at 2, 4; Response at 2-4; Davis Dep. at 16, 25; Cargill Dep. at 23). Plaintiff admits that she "yelled some obscenities" at Officer Cargill and called her a "bitch," because Officer Cargill had roughly "yanked" her out of the paddy wagon. (Officers' MSJ at 3-4; Response at 4; Davis Dep. at 22-24). Officers Cargill and Dearing testified that Plaintiff also verbally threatened Officer Cargill, but Plaintiff denies this. (Officers' MSJ at 4; Response at 4; Cargill Dep. at 21, 23, 25-26; Dearing Dep. at 28; Davis Dep. at 54-55).
At the point Plaintiff got to the jail, her story and the Officers' differ dramatically. According to Plaintiff, she was placed in a cell, where she starting "banging on the door asking to use the phone." (Response at 5; Davis Dep. at 25). Plaintiff testified that she was told several times to be quiet by a male officer, then Officer Cargill came by after about an hour and said "Shut the fuck up, nigger."*fn1
(Response at 10; Davis Dep. at 25). Plaintiff replied by calling Officer Cargill "every name in the book." (Response at 4; Davis Dep. at 25). Officer Cargill then walked away and returned with two male officers, Dearing and Trowbridge. (Response at 5-6). Officers Cargill and Dearing entered the cell. (Response at 10-11). Officer Cargill threw Plaintiff to the ground. Plaintiff got back up to her knees, and Officer Cargill pulled Plaintiff's right arm behind her back such that her fingertips were touching her neck, then "slammed" her knee into Plaintiff's thigh. Officer Cargill then bit Plaintiff's shoulder. One of the officers pulled out a wad of Plaintiff's hair, and one either kneed or punched her in the back; because they were behind her, Plaintiff is unsure who did this, or if Officer Dearing was possibly attempting to stop Officer Cargill's actions. Plaintiff's jewelry was removed during this beating, which lasted only "a minute or two." The only resistance Plaintiff gave was to refuse to put her hands up while she was on her knees being beaten, and that she said nothing else. (Response at 6-7, 11; Davis Dep. at 26-29).
The officers' story is quite different. At 7:57 p.m., Plaintiff was placed in the detox cell by Officers Cargill and Dearing because she appeared intoxicated. (Officers' MSJ at 4; Cargill Dep. at 23-26, 33). Around 9:00 p.m., Officer Cargill noticed that Plaintiff was still wearing jewelry, which jail inmates are prohibited from having. The Officers maintain that they requested that Plaintiff remove her jewelry, and that Plaintiff refused. (Officers' MSJ at 4; Cargill Dep. at 40; DuBois Dep. at 11-13). (On the other side, Plaintiff represents that she was never asked to remove her jewelry. (Response at 5-7; Davis Dep. at 25).) Officers Trowbridge and Dearing came to the detox cell to assist Officer Cargill in removing Plaintiff's jewelry; Officers Cargill and Dearing entered the cell and removed the jewelry, and Officer Trowbridge stayed by the door. (Officers' MSJ at 4-5; Cargill Dep. at 36-39; Trowbridge Dep. at 21-22). Officer DuBois noticed that the other officers had entered the detox cell, and he "stood by" in order to help if needed. (Officers' MSJ at 5; DuBois Dep. at 9-10).
Officers Cargill, Dearing, and Trowbridge testified variously that Plaintiff either sat on her hands, put them behind her back, or folded them in front of her body as soon as they entered the cell, and she repeatedly stated "If I move my hands, you are going to beat me," "They are beating me," or "I don't want to die. I love Jesus." (Officers' MSJ at 5; Cargill Dep. at 40-42, 52; Dearing Dep. at 34-35; Trowbridge Dep. at 23-24; DuBois Dep. at 10-16). The officers testify that there was no beating, and that Officers Cargill and Dearing removed Plaintiff's necklace and two earrings peacefully around 9:16 p.m., while Officers Trowbridge and DuBois "observed." (Officers' MSJ at 5; Cargill Dep. at 40-43, 53-54; Dearing Dep. at 30-35; Trowbridge Dep. at 23-24). Officer Cargill denied that she or any other officers used any racial slurs toward Plaintiff. Officer Dearing did not use a racial slur toward Plaintiff, or hear Officer Cargill do so, which Plaintiff does not dispute. (Officers' MSJ at 4; Cargill Dep. at 48; Dearing Dep. at 45-46).
Plaintiff stayed in the cell until 2:18 a.m. the next morning, January 21, 2008, when Officer Ahart came to the cell in response to her request to use the phone. Plaintiff told Officer Ahart what had transpired the night before, and Officer Ahart fetched Nurse Roe to examine her. At 2:30 a.m., she was examined by Nurse Roe at the jail, who noted that Plaintiff's right wrist and left cheek were slightly swollen, and that her right outer thigh was reddened. Nurse Roe gave Plaintiff an ice pack for her wrist, and Tylenol. (Officers' MSJ at 6; Response at 7; Davis Dep. at 30-32; Cargill Dep. at 55-57; Smith Dep. at 12-13).
At this time, Plaintiff was also booked by Officer Ahart; she had not previously been booked and had not been the subject of a probable cause determination. (Officers' MSJ at 6; Response at 7; Cargill Dep. at 77-78; Davis Dep. at 32-33). Plaintiff was placed in the women's general holding cell, and was released at 4:30 a.m. January 21, 2008. (Officers' MSJ at 6; Response at 7; Davis Dep. at 32).
That morning, Plaintiff's daughter, Kimberly Hobson, observed Plaintiff's condition, and encouraged her to go to the hospital. (Officers' MSJ at 6; Response at 8; Davis Dep. 34-35). Ms. Hobson testified that the tooth mark on Plaintiff's shoulder was "deep, and you could see the purple pigmentation on her arm that it was from a mouth..You could tell that it was from a person." (Hobson Dep. at 10-12, 16-17). Plaintiff sought medical treatment at Methodist Hospital, where she was treated by Dr. Jason Stringer. (Officers' MSJ at 6; Response at 8; Davis Dep. at 35; Stringer Dep. at 7-8). Dr. Stringer noted that Plaintiff had pain, swelling, and bruising or a contusion of her right wrist, blunt injuries, and moderate elevation of systolic blood pressure. (Officers' MSJ at 6; Response at 8; Stringer Dep. at 29-33). In addition, Plaintiff reported that she had been bitten by one of the officers, and Dr. Stringer noted bruising at the location of the reported bite on her shoulder. Dr. Stringer diagnosed Plaintiff with a human bite wound, as the bruising was consistent with the reported cause of her injury. (Officers' MSJ at 6; Response at 8; Stringer Dep. at 29-31, 49-50). In his deposition, Dr. Stringer testified that he would not necessarily expect to see broken skin or bleeding resulting from a bite through several layers of clothes such as Plaintiff was wearing on the night of January 20, 2008.*fn2 (Stringer Dep. at 50-51; Davis Dep. at 35-36). At the hospital, Plaintiff was treated with an Ace wrap and a splint for her wrist, an ice pack, and prescription-strength Tylenol, and received a note excusing her from work and ordering light duty for her right wrist. (Officers' MSJ at 7; Response at 9; Stringer Dep. at 32-34, 41, 44).
The Peoria County Sheriff's Office began an investigation of the January 20 incident when medical staff reported it to them. At the hospital, Peoria County Sheriff's Officers Hoyle and Guyton took photographs of Plaintiff's injuries and interviewed her. (Officers' MSJ at 7; Response at 9; Davis Dep. at 35-39; Smith Dep. at 8). After leaving the hospital, Plaintiff filed a civilian complaint against the Defendant Officers at the Peoria County Jail. Sheriff's detectives interviewed Officers Cargill, Dearing, DuBois, and Trowbridge, and concluded that Plaintiff's allegations were unfounded, though Officer Smith agreed at his deposition that "it's basically he said/she said with this investigation." (Officers' MSJ at 7; Response at 9; Davis Dep. at 39; Smith Dep. at 15-17).
Plaintiff filed her Complaint in this Court on May 23, 2008, alleging that (1) Officers Cargill and Dearing used unconstitutionally excessive force against her in violation of 42 U.S.C. § 1983, (2) Defendant-Officers failed to intervene in the use of excessive force, in violation of § 1983, (3) Officers Cargill and Dearing violated the Illinois Hate Crime Act, (4) Sheriff McCoy is liable for the actions of Officers Cargill and Dearing under the doctrine of respondeat superior, and (5) Peoria County is liable for any judgments in the case under the Illinois Tort Immunity Act. (Doc. 1). The last two counts will be decided in the context of the Peoria County and Sheriff McCoy Motion for Summary Judgment. Defendant-Officers move for summary judgment as to the first four counts of Plaintiff's Complaint.
MOTIONS FOR SUMMARY JUDGMENT
Summary judgment should be granted where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). "[I]n reviewing a motion for summary judgment where each party's testimony relays a different version of the facts, we must view those facts in the light most favorable to the party opposing the motion." Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003). All inferences drawn from the facts must be construed in favor of the non-movant; however, the court is not required to draw every conceivable inference from the record, only reasonable inferences. Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). Only if the evidence on record could not lead a reasonable jury to find for the non-movant, then no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997).
II. Analysis of Officers' Motion for Summary Judgment
A. Plaintiff's Count I: Excessive Force
Plaintiff alleges that Officers Cargill and Dearing used excessive force against her in violation of § 1983 on the night of January 20, 2008. Defendant-Officers argue in their Motion for Summary Judgment and their Reply that (1) Plaintiff's injuries are de minimis and thus insufficient to support a claim under § 1983; (2) Plaintiff cannot make out a prima facie case showing the use of excessive force; (3) even if Plaintiff can make out her prima facie case, Defendant-Officers' conduct did not violate § 1983; and (4) Defendant-Officers are entitled to qualified immunity. Because, as will be explained below, Defendant-Officers relied on an incorrect legal standard in formulating their arguments, the Court will not follow their Motion's structure, but will discuss first the law properly applicable to the excessive force claim, then determine whether summary judgment is appropriate under the undisputed facts and applicable law. The Court will then discuss whether Defendant-Officers are entitled to qualified immunity.
1.Law Applicable to Excessive Force Claim by an Arrestee or Detainee
The Supreme Court has "reject[ed the] notion that all excessive force claims brought under § 1983 are governed by a single generic standard. .In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, 490 U.S. 386, 393-94 (1989). Three different constitutional protections apply, depending upon the status of the person alleging the use of excessive force, as a convicted prisoner, a pretrial detainee, or a mere arrestee. Kinney v. Indiana Youth Center, 950 F.2d 462, 465 (7th Cir. 1991); Titran v. Ackman, 893 F.2d 145, 147 (7th Cir. 1990). Plaintiff was obviously not a convicted prisoner, to whom the Eighth Amendment's protection against only cruel and unusual punishment would apply. Therefore, Defendant-Officers' arguments under the Eighth Amendment standard are inapplicable to this case.*fn3 What is less clear is whether Plaintiff was merely an arrestee, or if she was a pretrial detainee.
If Plaintiff was an arrestee, then the Fourth Amendment's "reasonableness" standard would apply to her treatment by the officers during the seizure of her person. If she was a pretrial detainee, then the Due Process clause would apply to prevent "punishment" by officers. Lewis v. Downey, 08-2960, 2009 WL 2835414, *4 (7th Cir. September 4, 2009); Kinney, 950 F.2d at 465; Titran, 893 F.2d at 147. Though the source of the Constitutional protection in these two situations differs, the analysis overlaps. See Wilson v. Williams, 83 F.3d 870, 875-76 (7th Cir. 1996) (upholding use in pretrial detainee case of jury instructions borrowed from Fourth Amendment arrestee cases as also "appropriate.by which to infer an intent to punish"); Titran, 893 F.2d at 147 ("Most of the time the propriety of using force on a person in custody pending trial will track the Fourth Amendment."). Typically, whether the officers' conduct was reasonable under the circumstances will control the analysis. Titran, 893 F.2d at 147. See also FED. CIV. JURY INSTR. 7TH CIR. 7.08 (jury must find that defendant used "unreasonable force"). Conduct that is "'grossly disproportionate' to the provocation, that 'shocks the conscience,' and yields 'severe injuries'" is not required under either the Fourth or the Fourteenth Amendment. Id. (citing Graham, 490 U.S. 386; Bell v. Wolfish, 441 U.S. 520 (1979)); Herzog v. Village of Winnetka, Ill., 309 F.3d 1041, 1043 (7th Cir. 2002)). Given the facts that the analysis under both Constitutional provisions is based on reasonableness in the circumstances, that the Court has not been briefed on this issue, and that Plaintiff was in custody at the time of the alleged application of excessive force, the Court will assume, without deciding, that Plaintiff was a detainee.*fn4 The Court's analysis of the Motions for Summary Judgment would be the same if Plaintiff were an arrestee. In order to have violated § 1983, the Officers' conduct had to be unreasonable under the circumstances.
Finally, Defendant-Officers argue that an excessive force claim requires more than "de minimis" injuries, and that Plaintiff's case thus fails as a matter of law, even if a "reasonableness" standard is applied. Defendant-Officers cite Seventh Circuit Pattern Jury Instruction 7.08's optional "Harm to Plaintiff" element, and Instruction 7.09's optional list of "reasonableness" factors to argue that the Court should consider the level of harm to Plaintiff in determining that Defendant- Officers' alleged conduct was reasonable as a matter of law because it resulted in only de minimis injuries. The Committee Comments to Instruction 7.08, covering "Fourth Amendment/Fourteenth Amendment: Excessive Force Against Arrestee or Pretrial Detainee -- Elements" express reservations about the use of the "harm" element, citing case law strongly suggesting that "harm" to the Plaintiff is not an element of an excessive force claim. FED. CIV. JURY INSTR. 7TH CIR. 7.08 (citing McNair v. Coffey, 279 F.3d 463, 468 (7th Cir. 2002; Herzog, 309 F.3d at 1043; Lanigan v. Village of East Hazel Crest, Illinois, 110 F.3d 467, 470 (7th Cir. 1997; Briggs v. Marshall, 93 F.3d 355, 360 (7th Cir. 1996)).
For Instruction 7.09, "Fourth Amendment/Fourteenth Amendment: Excessive Force -- Definition of 'Unreasonable,'" the Committee Comments merely list a number of factors that may be used for the jury's consideration of the "reasonableness under the circumstances" of the force used, including "the extent of the plaintiff's injury." FED. CIV. JURY INSTR. 7TH CIR. 7.09. It is plain that the inclusion of this factor is not meant to imply that a certain level of harm to the plaintiff is required (these are labeled "factors," not "elements"), as is also made clear in the discussion of Instruction 7.08 above, but rather that the extent of the plaintiff's injury can be used as a gauge of the amount of force used and thus its overall reasonableness. Even if Plaintiff's injuries were only de minimis, this would not alone justify a ...