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Brown v. Griffet

February 22, 2010


The opinion of the court was delivered by: Michael P. McCuskey Chief United States District Judge


Before the court are Defendants' summary judgment motion [38], Plaintiff's response [42] and Defendants' reply [43].


Summary judgment "should be rendered if 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). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

"Summary judgment is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If [the non-movant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the non-movant]." Fed. R. Civ. P. 56(e). Further, "[t]he plaintiff cannot merely allege the existence of a factual dispute to defeat summary judgment.. Instead, he must supply evidence sufficient to allow a jury to render a verdict in his favor." Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001). Specifically, the non-moving party "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Filipovic v. K&R Express Systems, Inc., 176 F.3d 390, 390 (7th Cir. 1999). Failure by the non-movant to meet all of the above requirements subjects him to summary judgment on his claims.

Affidavits must be based on the personal knowledge of the affiant and "set out facts that would be admissible in evidence." Fed. R. Civ. P. 56(e) (emphasis added). Personal knowledge may include inferences and opinions drawn from those facts. Visser v. Packer Eng. Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991). "But the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be based on flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659.


Plaintiff Charles J. Brown has filed a Complaint against all of the Defendants alleging excessive force, failure to intervene and deliberate indifference to a serious medical need in connection with his arrest for home invasion/robbery on August 3, 2007. In his amended complaint, the plaintiff claims he suffered injuries to his ribs.

The Defendants assert that they are each entitled to qualified immunity because Plaintiff's constitutional rights were not violated and the officers' actions were objectively reasonable under the difficult and dangerous circumstances in which they confronted Plaintiff. Further, Defendants assert that, in addition, there is no objective evidence of Plaintiff suffering an injury or having serious medical needs.

Undisputed Material Facts

A. Plaintiff's Amended Complaint

1. On the night of his arrest, Plaintiff Charles J. Brown alleges that Defendant David Griffet was serving a search warrant at 1608 Williamsburg Drive, Champaign, Illinois, but Plaintiff decided to hide in the attic while the officers searched for him "for about 1 1/2 hours." (Amended Complaint, Statement of Claim, p. 4 [27])

2. "One of the officers shot some mace or pepper spray up into the attic several times at [Plaintiff] [s]o [Plaintiff] decided to come down because [his] eyes were burning and [he] could not see." Id. Also, he could not breathe. Id.

3. "There was not any stairs for [Plaintiff] to use, so [he] just fell from the attic to the floor below" and after landing Plaintiff tried to cover himself. Id.

4. While falling from the attic, Plaintiff pulled a Christmas tree with him. Id.

B. Plaintiff's Deposition Testimony*fn1

5. Plaintiff is currently incarcerated at the Vienna Correctional Center due to a felony robbery conviction. He was arrested for this offense on August 3, 2007, which resulted in the claims he asserts in this case. (pp. 4 & 11, Exhibit 1, deposition transcript of Plaintiff Charles Brown)

6. The day before his arrest, on August 2, 2007, the Champaign police looked for Plaintiff at 1608 Williamsburg but he fled. (p. 12, Ex. 1)

7. On the day of his arrest, Plaintiff was inside the house at 1608 Williamsburg when the police arrived and he decided to hide in the attic. (p. 13, Ex. 1)

8. The house has a basement and first floor with the attic being above the first floor. Id.

9. There were no stairs leading into the attic so Plaintiff jumped up there. (p. 14, Ex. 1) The attic is above a hallway. Id.

10. When the officers arrived at 1608 Williamsburg, they announced that they were police officers. (p. 17, Ex. 1)

11. The police officers ultimately came into the house after Plaintiff went into the attic but a long time had elapsed before the police did so. (p. 18, Ex. 1)

12. Plaintiff spent at least two hours in the attic. (pp. 19, 24-25, Ex. 1) It was dark in the attic and Plaintiff could not see. (p. 20, Ex. 1)

13. When Plaintiff went into the attic, he covered the hole to the attic. (p. 27, Ex. 1)

14. While Plaintiff was in the attic, he heard the police officers tell him to come down. (p. 25, Ex. 1)

15. On several occasions, Plaintiff saw officers stick their head through the hole to the attic.

(p. 25, Ex. 1)

16. Plaintiff heard an officer say he was from the Champaign Police Department and he heard the officers say they had a search warrant. (p. 26, Ex. 1)

17. Pepper spray was later sprayed into the attic. (p. 27, Ex. 1)

18. Plaintiff could not see after the pepper spray was activated and Plaintiff decided to exit the attic due to burning of his eyes and skin. (pp. 28-29, Ex. 1)

19. Plaintiff came out of the attic feet first. (p. 30, Ex. 1)

20. Plaintiff, however, had been asked by the officers to come to the attic opening with his hands showing. (pp. 86-87, Ex. 1)

21. When Plaintiff came through the attic hole, he pulled down limbs from an artificial Christmas tree and fell on it. (pp. 30 & 40, Ex. 1) Plaintiff also says he tried to pull himself back into the attic. (p. 29, Ex. 1)

22. There were several police officers by the opening of the attic when Plaintiff came out feet first. (p. 30, Ex. 1) He does not know who they were because he had mace in his eyes and could not see. (p. 22, Ex. 1)

23. Ultimately, Plaintiff hit the ground and he was handcuffed. (p. 34, Ex. 1)

24. Plaintiff cannot name an officer who made contact with him (p. 34, Ex. 1), because his eyes were burning and he could not see. (pp. 34 & 36, Ex. 1)

25. It took more than one police officer to handcuff Plaintiff. (p. 35, Ex. 1) Plaintiff was handcuffed by having his hands placed behind his back. Id.

26. Everything happened quickly and Plaintiff was handcuffed within a few seconds after he went through the attic hole. (p. 34, Ex. 1)

27. When Plaintiff was handcuffed, there were officers all over him, but Plaintiff felt no further physical contact more than a second after he was handcuffed. (p. 37, Ex. 1)

28. After Plaintiff was handcuffed, he was brought outside the house within five minutes. (p. 38, Ex. 1)

29. Plaintiff was walked directly out the front door of the house at 1608 Williamsburg to a squad car on the street. (p. 42, Ex. 1)

30. Plaintiff was able to walk from the house to the squad car. (p. 68, Ex. 1)

31. After Plaintiff was brought outside of the house, Sgt. David Griffet wiped the OC spray off Plaintiff's face. (p. 38, Ex. 1) Plaintiff was placed inside a police car. (p. 39, Ex. 1)

32. Plaintiff was immediately taken to the Champaign police station downtown by only stayed there for a few minutes because he refused to be interviewed by Detective Don Shephard. (pp. 42-44, Ex. 1)

33. Plaintiff did not ask Detective Shepard for medical attention. (p. 44, Ex. 1)

34. Plaintiff was then taken from the Champaign police station to the Champaign County satellite jail in Urbana. (pp. 44-45, Ex. 1)

35. When Plaintiff got to the Champaign County satellite jail, he was taken to the sallyport at which time his eyes were open and he could see well. (p. 45, Ex. 1)

36. Once Plaintiff got to the sallyport at the jail, the Champaign County sheriff's personnel took over and booked him. (p. 46, Ex. 1)

37. At the county jail, Plaintiff was interviewed by Deputy Sheriff Brenda Richards. (pp. 70-71, Ex. 1)

38. Plaintiff has no knowledge of having any bruises at the time that he was interviewed by Deputy Richards and cannot remember ...

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