The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is Defendants City of East St. Louis and Ronald E. McClellan's motion to dismiss (Doc. 66) which has been construed as a motion for summary judgment (See Doc. 67). Plaintiff Anthony Taylor has filed a response to the motion (Doc. 77). Defendants have filed a reply (Doc. 79).
On November 11, 2008 Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 alleging claims of excessive force during his arrest by Defendant Robert McCullum (See Docs. 1 & 7). On October 23, 2010 Plaintiff filed his Second Amended Complaint (Doc. 59) adding state common law claims of assault and battery (Count III) and negligence (Counts IV & V). Specifically, Plaintiff's Second Amended Complaint alleges that on February 28, 2007 Plaintiff was located on the corner of First Street and St. Clair Street in East St. Louis when Defendant McClellan drove up behind him and asked what was in the back of Plaintiff's truck (Doc. 59 at ¶¶ 10-12). Plaintiff responded that the boxes in the back of his truck were clothing (Id. at ¶ 12). Defendant McClellan then asked to see Plaintiff's driver's license which Plaintiff produced and handed to McClellan who was still in his vehicle (Id. at ¶ 13-14). Plaintiff then proceeded to return to the building where he was retrieving clothes, at which time, Defendant McClellan left his vehicle and began striking Plaintiff in the head with his nightstick (Id. at ¶¶ 15-16). Plaintiff alleges that he suffered physical injuries and emotional distress as a result of the encounter. His Second Amended Complaint alleges claims of § 1983 violations against both Defendant McClellan and the City of East St. Louis (Counts 1 & 2), as well as claims of assault and battery against Defendant McClellan (Count 3) and claims of negligence against both Defendants (Counts 4 & 5).
Subsequently, on November 30, 2009 Defendants submitted a motion to dismiss (Doc. 66). The Court later converted the motion to one for summary judgment as Defendants' motion relied on documents found outside of the pleadings (Doc. 67). Specifically, Defendants argue that they are entitled to summary judgment on all claims because Defendant McClellan's actions and use of force were objectively reasonable in light of the circumstances. Plaintiff has filed a response, arguing that the facts show that McClellan's actions were not objectively reasonable (Doc. 77). Defendants have also filed a reply to their motion (Doc. 79). The Court, having reviewed the parties briefings and relevant exhibits, rules as follows.
There are very few undisputed facts in this case. The parties briefs and supporting affidavits present two entirely different versions of what occurred between Plaintiff and Defendant McClellan on February 28, 2007. The parties do agree that on that night Plaintiff was outside of a business known as the Wash Rack when McClellan pulled up in his vehicle. Plaintiff approached McClellan who asked to see Plaintiff's driver's license and asked about the items located in the back of Plaintiff's truck. Plaintiff produced his driver's license and shortly thereafter Plaintiff turned and talked towards the Wash Rack. At some point, McClellan exited his vehicle and Plaintiff was struck by McClellan with his night stick. The events that occurred between the time McClellan pulled up in his vehicle and struck Plaintiff with his nightstick are heavily disputed.
III. Summary Judgment Standard
Summary judgment is appropriate under the FEDERAL RULES OF CIVIL PROCEDURE 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant bears the burden of establishing the absence of factual issues and entitlement to judgment as a matter of law. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Schneiker v. Fortis Inc. Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999); Santaella, 123 F.3d at 461 (citing Celotex, 477 U.S. at 323); Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). While the Court may not "weigh evidence or engage in fact-finding" it must determine if a genuine issue remains for trial. See Lewis v. City of Chicago, 496 F.3d 645, 651 (7th Cir. 2007).
In response to a motion for summary judgment, the non-movant may not simply rest on the allegations as stated in the pleadings; rather, the non-movant must show through specific evidence that an issue of fact remains on matters for which the non-movant bears the burden of proof at trial.Walker v. Shansky, 28 F.3d 666, 670-71 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex, 477 U.S. at 324). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted); accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). In other words, "inferences relying on mere speculation or conjecture will not suffice." Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009) (citation omitted); see also Anderson, 477 U.S. at 252 ("The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]."). Instead, the non-moving party must present "definite, competent evidence to rebut the [summary judgment] motion." EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000) (citation omitted).
Claims of excessive force during an arrest or investigatory stop are analyzed under the Fourth Amendment's "objectively reasonable" standard.See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 (1986). The issue presented in this type of claim is whether the actions of an officer were "objectively reasonable in light of the facts and circumstances confronting them."Richman v. Sheahan, 512 F.3d 876, 882 (7th Cir. 2008) (quoting Smith v. Ball State University, 295 F.3d 763, 770 (7th Cir. 2002); Graham, 490 U.S. at 397, 109 S.Ct. at 1872). The officer's intent is irrelevant. Id. Reasonableness is judge from the perspective of the officer at the scene. Graham, 490 U.S. at 396, 109 S.Ct. 1872.
In determining whether the actions were objectively reasonable, the Court must analyze all of the circumstances including: " the severity of the crime at issue,  whether the suspect poses an immediate threat to the safety of the officers or others, and  whether he is actively resisting arrest or attempting to evade arrest by flight." Baird v. ...