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Davis v. Fenimore

April 13, 2010


The opinion of the court was delivered by: Honorable David H. Coar


Before this Court is an action filed by Plaintiff Ester Davis ("Davis") against Defendants Ryan Fenimore ("Fenimore"), Anthony Bruno ("Bruno"), Benjamin Nguyen ("Nguyen"), Gregory Stepich ("Stepich") (collectively the "individual defendants" or "Defendants"), and the City of Chicago Heights for civil rights violations pursuant to 42 U.S.C. §1983 and a state law claim for malicious prosecution. Nguyen and Bruno seek summary judgment in their favor on Count I (Excessive Force and/or Failure to Intervene); Fenimore, Bruno, and Nguyen seek summary judgment on Count II (False Arrest); and all individual defendants seek summary judgment on Count III (Malicious Prosecution). For the reasons stated below, Defendants' motions for summary judgment are GRANTED in part and DENIED in part.


On February 17, 2007, Davis and his cousin, Herman Woods, was operating a vehicle in Chicago Heights, Illinois, with a cracked windshield and tinted passenger and driver side windows. (Fenimore, Stepich, and Nguyen's Rule 56.1 Statement of Material Facts ("Def. SOF") ¶ 7; Plaintiff's Rule 56.1 Statement of Material Facts ("Pl. SOF") ¶ 1.) Officers Fenimore, Bruno, Stepich, and Nguyen, upon observing the cracked windshield and tinted windows, stopped Davis. (Def. SOF ¶ 8.) After approaching the car, Fenimore stated that he detected the smell of cannabis and/or marijuana coming from the vehicle. (Def. SOF ¶ 13.) Fenimore directed Davis to put down the camcorder he was holding and exit the vehicle. (Def. SOF ¶ 15, 16.) Davis was eventually placed in handcuffs. (Def. SOF ¶ 17.)

The events preceding Davis' handcuffing are the subject of significant dispute. The police officers claim that Davis opened the door, pushed Fenimore, and resisted arrest. (Def. Resp., Pl. SOF ¶ 13.) Davis maintains that Fenimore opened the car door, dragged Davis out, and twisted his body so that he was facing the vehicle. (Pl. SOF 13, 15.) Davis further alleges that Bruno and Stepich held down his wrists while Fenimore suddenly punched him in the face two or three times, then grabbed the back of his head and slammed it into the car. (Pl. SOF 18, 19.) Nguyen stood about five or six feet away as Fenimore struck Davis. (Pl. SOF ¶ 20.) During this exchange, Davis sustained a laceration to the middle of his forehead, leaving a permanent scar. (Pl. SOF ¶ 23.) Bruno and Stepich transported Davis to St. James Hospital to receive medical treatment. (Def. SOF ¶ 19.) Davis' injury required eleven stitches. (Pl. SOF ¶ 23.) Afterwards, Davis was taken to the Chicago Heights Police Station. (Bruno's Rule 56.1 Statement of Material Facts ("Bruno SOF") ¶ 44.)

Following his arrest, Fenimore lodged criminal complaints against Davis for assault and battery, resisting arrest, and driving under the influence. (Def. SOF ¶ 25, 29.) Davis was also issued traffic citations for operating a motor vehicle with tinted windows and a defective windshield. (Def. SOF ¶ 31.) The state's attorney nolle prossed the driving under the influence charge, and dismissed the assault charge and the traffic citations. (Pl. SOF ¶ 37.) Fenimore, Bruno, and Stepich testified at Davis' criminal trial. (Pl. SOF ¶ 39.) On July 22, 2009, following a jury trial, Davis was acquitted of the remaining charges. (Pl. SOF ¶ 40.)


Summary judgment is appropriate 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). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must set forth specific facts (a "scintilla of evidence" is insufficient) demonstrating that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 252.

When reviewing a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Schuster v. Lucent Tech., Inc., 327 F.3d 569, 573 (7th Cir. 2003). At summary judgment, the "court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." Nat'l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).


I. Count I: Excessive Force and/or Failure to Intervene

A. Failure to Intervene (Nguyen and Bruno)

An officer who fails to intervene in the unconstitutional misconduct of other law enforcement officers is liable under § 1983 if that officer had reason to know: (1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring. Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir. 1997) (quotation marks omitted). "Whether an officer had sufficient time to intervene or was capable of preventing the harm caused by the other officer is generally an issue for the trier of fact unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise." Id. at 478 (citing Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994)). Nguyen and Bruno argue that they are entitled to summary judgment on Count I because a reasonable juror could not possibly conclude that they had a realistic opportunity to prevent Fenimore from harming Davis.

According to Davis' deposition testimony, Fenimore punched him in the face two to three times, then grabbed the back of his head and slammed it against the vehicle. (Davis Dep. 65:16-66:19.) Fenimore acted suddenly, such that the injuries were incurred in a "matter of seconds." (Davis Dep. 65:16-67:9.) Nguyen argues that, being approximately five to six feet away, it would have been impossible to physically interfere with Fenimore's actions during the limited time it took to accomplish the harm. Bruno ...

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