The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge
In March 2007, Plaintiff Marlon Joyner filed a Complaint (#1) against Defendants City of Danville, Illinois, the Danville Police Department, Chief Carl Alexander, Sergeant Kenneth Kidwell, and Officer Josh Campbell, and all unknown defendants, alleging constitutional violations. Federal jurisdiction is based on federal question pursuant to 28 U.S.C. § 1331. The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge.
In May 2010, Defendants filed a Motion for Summary Judgment (#19). Plaintiff filed his Response to Motion for Summary Judgment (#22) and Defendant subsequently filed a Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment (#25). After reviewing the parties' pleadings, memoranda, and evidence, this Court GRANTS Defendants' Motion for Summary Judgment (#19).
A court will grant summary judgment "if 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a motion for summary judgment, the Court must decide, based on admissible evidence, whether any material factual dispute exists that requires a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). The party seeking summary judgment bears the initial burden of showing that no such issue of material fact exists. Celotex, 477 U.S. at 323.
The Court must draw all inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Because the purpose of summary judgment is to isolate and dispose of factually-unsupported claims, the nonmoving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, he must go beyond the pleadings and support his contentions with proper documentary evidence, setting forth specific facts showing that there is a genuine issue for trial. See FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 322-23; Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001).
Rule 7.1(D)(2) of the Local Rules for the Central District of Illinois provides that, when a party opposing summary judgment disputes a purportedly undisputed material fact, he must support his claim by reference to specific evidence. See CDIL-LR 7.1(D)(2)(b)(2), stating that "[e]ach such claim of disputed fact shall be supported by evidentiary documentation referenced by specific page." The Local Rules also direct the nonmoving party to "[i]nclude as exhibits all cited documentary evidence not already submitted by the movant." CDIL-LR 7.1(D)(2)(b)(2). As noted in the Local Rules, the consequences for failing to comply are discussed thoroughly in Waldridge v. American Hoechst Corp., 24 F.3d 918. The purpose of requiring strict adherence to the rule is to prevent a court from having to sort through the facts looking for factual disputes. Id.
Here, Plaintiff did not support his denials with reference to any evidence when he responded to Defendants' proposed undisputed facts. When the nonmoving party fails to submit an appropriate response to a statement of undisputed facts, the court may assume that the facts stipulated by the moving party exist without controversy. Waldridge, 24 F.3d at 922. Therefore, consistent with Local Rules and case law, the Court will accept as true all proposed facts that Plaintiff did not challenge with reference to specific evidence.
In addition, Plaintiff did not include any documentary evidence to support his response, such as the transcript of the suppression hearing, to which he refers in his argument. Therefore, the Court will not consider his references to the transcript. Finally, he did not present any additional material facts pursuant to Local Rules. See CDIL-LR 7.1(D)(2)((b)(5). However, the Court may take judicial notice of the results of the hearing on the motion to suppress.
Based on this evidentiary framework, the undisputed facts are as follows: At relevant times, Defendants Campbell and Kidwell were police officers for the City of Danville and Defendant Carl Alexander was police chief for the Danville Police Department. Alexander was in charge of the training, supervision, and control of Campbell and Kidwell.
On March 23, 2006, Plaintiff was standing outside, talking to a friend in Beeler Terrace, a subsidized housing project in Danville. (Joyner dep., pp. 10-11.) At that time, Defendants Campbell and Kidwell were patrolling an area that included Beeler Terrace. (Campbell dep., p. 10.) Campbell saw Plaintiff and recognized him as someone who had previously been involved with illegal drugs, although he did not remember his name at that time. (Campbell dep., pp. 11, 38.) Campbell saw Plaintiff look at the officers with a surprised look, then reach in his pants pocket and put something in his mouth. (Campbell dep., p. 12.) Campbell did not see what Plaintiff had in his mouth. (Campbell dep., p. 19.) Campbell quickly stopped the police car and, as he was getting out of the car, he told Kidwell that Plaintiff had put something in his mouth. (Campbell dep., p. 17.) He and Kidwell then ran to Plaintiff. Campbell "made [Plaintiff] get on the ground" (Joyner dep., p. 19) and told Plaintiff to "spit it out" (Campbell dep., pp. 17-18). Kidwell pointed his taser at Plaintiff (Kidwell dep., p. 21) and also repeatedly told Plaintiff to "spit it out." (Kidwell dep., p. 20.) Kidwell stated, "if you don't spit it out, I'm going to Tase you." (Kidwell dep., p. 24.) Kidwell did not discharge his taser, nor did any other police officer discharge a taser during this encounter. (Kidwell dep., pp. 23, 38.) Plaintiff eventually spit out a balloon containing crack cocaine. (Kidwell dep., p. 23, Joyner dep., p. 18.)
Campbell testified that he has seen other people attempt to swallow drugs. (Campbell dep., pp. 30, 37-38.) On a previous occasion, Campbell had been on foot patrol in Beeler Terrace and saw somebody put something in his mouth; that person swallowed the substance that had been in the bag, leaving only the plastic bag. (Campbell dep., pp. 30, 37-38.) Earlier in March 2006, Campbell was involved in a drug enforcement program that included Beeler Terrace; the program involved watching for illegal drug activity and it resulted in the arrest of about 30 people. (Campbell dep., pp. 39-40.)
Kidwell has been dealing with Plaintiff since 1992 and was aware that Plaintiff associated himself with drugs, drug usage, and drug dealing. (Kidwell dep., p. 19.) Kidwell has arrested Plaintiff in the past. (Kidwell dep., p. 19.)
Kidwell received departmental training in the use of tasers, consisting of less than one hour of in-service training plus training ...