The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the Court are two motions for summary judgment, one by Defendants Roger Stratton and Terry Esser (#69) and the other by Defendants Patrick Parsons and the City of Peoria (#77), and a motion to strike (#88). As explained herein, the motions for summary judgment (#69) and (#77) are granted in part and denied in part, and the motion to strike (#88) is granted.
Defendants Stratton and Esser have filed a motion to strike Exhibits 1A, 2A, and 2B to Plaintiff's Response to the motion for summary judgment. Exhibits 1A and 2B are transcripts of recorded statements given by the two Plaintiffs to the internal affairs officer of the Peoria Police Department. These statements were given as part of the internal investigation of complaints the Plaintiffs filed with the Department following the incidents that form the basis for this case. Exhibit 2A contains seven pages of thumbnail copies of photographs.
With respect to the two recorded statements, Defendants assert that the interview transcripts are inadmissible hearsay, falling within no exception. In addition, Defendants argue that they do not constitute either affidavits or depositions.
"Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). These statements were not made at a trial or deposition, they were not made under oath, and they are offered for their truth. Rule 801(d) creates two exceptions, neither of which applies here. These statements are therefore hearsay. As such, they are generally inadmissible. Fed.R.Evid. 802. Rule 803 creates other exceptions, none of which is argued by Plaintiffs to apply.
Plaintiffs point out that each Plaintiff has filed a Declaration, averring that the recorded statement is an accurate recording of what was said and that the matters stated were true based on personal knowledge, information and belief. According to Plaintiffs, these otherwise-inadmissible statements, in conjunction with the Declarations, have been converted into something akin to an affidavit; affidavits are, of course, admissible pursuant to Rule 56(c).
No case law has been cited by either side for or against Plaintiffs' unique evidentiary proposition. Fortunately, this issue need not be resolved.. Tom Moran was deposed, and his deposition is clearly admissible. Carol too was deposed, and with respect to facts that are material to resolution of the pending summary judgment motions, she recalls nothing. Her recorded interview deals for the most part with her physical and medical problems preceding the events in question, and with the injuries she alleges resulted from the underlying events. In other words, her recorded statement adds nothing of consequence. The Court has not relied on either Plaintiffs' interview statement for any purpose.
With respect to the photographs, Defendants assert that the photos lack a proper foundation. Rule 901 requires sufficient evidence to find that the matter in question is what its proponent claims. For photos, this evidence must show that the photo is an accurate depiction - time, place, person - of what its proponent says it is.
Tom Moran attempted to lay a foundation for the photos, but his foundation is inadequate. Based on captions and handwriting contained on the pages, some but not all photos were taken by Tom; others were taken by a professional photographer. No foundation has been laid for those not taken by Tom; he has provided no information at all about when these photos were taken, whether he was there, and if not, how he knows that they accurately depict anything pertinent. Most of the photos include no date, so determining if the photos were taken at the relevant time is impossible. Some of the captions, on the other hand, indicate that the photos were taken on several different days. See, e.g, Holbrook v. Norfolk Southern Railway Co., 414 F.3d 739 (7th Cir. 2005).
Tom's Declaration is insufficient to overcome these shortcomings. The photos are not admissible at this time. There is no harm to the Plaintiffs, because the Court found the photos immaterial to the issues presented by the pending summary judgment motions.
The motion to strike the transcripts is GRANTED because these exhibits are irrelevant to the pending motions, not because they are inadmissible hearsay. The motion to strike the photos is GRANTED for lack of foundation and for lack of relevance to the issues in the pending motions.
SUMMARY JUDGMENT GENERALLY
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment should be entered if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir.2000); Cox v. Acme Health Serv., 55 F.3d 1304, 1308 (7th Cir. 1995).
In ruling on a summary judgment motion, the court may not weigh the evidence or resolve issues of fact; disputed facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.
The court is to examine all admissible facts, viewing the entirety of the record and accepting all facts and drawing all reasonable inferences in favor of the non-movant, Erdman v. City of Ft. Atkinson, 84 F.3d 960, 961 (7th Cir. 1996); Vukadinovich v. Bd. of Sch. Trustees, 978 F.2d 403, 408 (7th Cir. 1992), cert. denied, 510 U.S. 844 (1993); Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir. 1990); DeValk Lincoln-Mercury, Inc. V. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987); Bartman v. Allis Chalmers Corp., 799 F.2d 311, 312 (7th Cir. 1986), cert. denied, 479 U.S. 1092 (1987), and construing any doubts against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Trotter v. Anderson, 417 F.2d 1191 (7th Cir. 1969); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir.1999).
The existence of "some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th Cir.1999). "Inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion." McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004); see also Petts v. Rockledge Furniture, No. 07-1989, July 21, 2008 (7th Cir.). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir.2000).
The parties must identify the evidence (i.e. those portions of the pleadings, depositions, answers to interrogatories, admissions, affidavits, and documents) that will facilitate the court's assessment. Waldridge, 24 F.3d at 922. Thus, as Fed.R.Civ.Proc. 56(e) makes clear, a party opposing summary judgment may not rely on the allegations of her pleadings. Rather:
[T]he adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. See, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). See also, Local Rule CDIL 7.1(D).
Neither the moving party nor the responding party may simply rest on allegations; those allegations must be supported by significant probative evidence. First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(when the moving party has met its burden, non-moving party must do more than show some "metaphysical doubt " as to material facts). A scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250.
If the undisputed facts indicate that no reasonable jury could find for the party opposing the motion, then summary judgment must be granted. Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995), citing Anderson, 477 U.S. at 248. If the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party and on which that party will bear the burden of proof at trial, then summary judgment is proper. Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920.
UNDISPUTED MATERIAL FACTS
The following factual recitation is taken from the parties' statements of undisputed facts, the responses and replies thereto, and the documentary evidence submitted in support thereof. Before beginning that recitation, however, it is necessary to comment on a number of the "facts" that have been included by the parties. Many of these facts are completely irrelevant to the remaining dispute. The parties seem to have forgotten that the underlying dispute between the Plaintiffs, Thomas and Carol Moran, and former defendants, James and Shara Denson, has been resolved.
The only claims remaining are those of the Morans against Peoria police officers Terry Esser and Roger Stratton, the City of Peoria, and its Director of Human Resources, Patrick Parsons. Thus, while some general background facts about the dispute between the Morans and the Densons are necessary for context, the minute details of that dispute are not material. Hence, any dispute about those facts is not sufficient to defeat summary judgment.
Moreover, Carol Moran testified at her deposition that she did not recall much from the time Stratton arrived until she was in the paddy wagon. The parties do not rely on her testimony for any of the facts that led up to her arrest or to her treatment during the arrest. The Court therefore does the same.
The Plaintiffs, Thomas and Carol Moran, are husband and wife. The Morans lived in Peoria, Illinois from 2003 to the fall of 2006, when they moved to Pontiac, Illinois. In August of 2005, James and Shara*fn1 Denson and their daughter Jennifer Lanza moved into the house located on the property adjacent to the Moran's property. The Morans and the Densons disagreed about the boundary between their adjacent properties. Each family commissioned surveys of the property, and the results of these surveys were inconsistent about the boundary.
The disagreement between the two families reached the point that the Peoria police were called to intervene on several occasions. Peoria Police Officer and Defendant Roger Stratton testified that he had been at the Morans' house once and the Densons' house once before this date (Dep.p.30-31). On one of the visits to the Morans', they complained about wood the Densons had piled on their property. Stratton asked the Densons to move it, and they did so.
On the second occasion where the police were involved, Peoria Police Officer Hoskins responded in early September 2005. Hoskins tried to get the parties to resolve their dispute in a face to face meeting. Thomas Moran insisted that a retaining wall was the boundary. James Denson disagreed and told Moran that he planned to tear down the retaining wall. The dispute remained at an impasse.
On one of those two occasions, the Morans showed either Stratton or Hoskins a copy of the plat of the property they had obtained. The officer - whichever one it was - told the parties that the plat did not show where on the ground the boundary was and that a survey would probably be needed.
On the crucial date, September 24, 2005, Officer Roger Stratton was the responding officer. On that date, the Denson's daughter Jennifer Lanza was attempting to erect a fence near the disputed boundary. She had used the survey commissioned by her family to figure out where the boundary was, and she staked out that boundary and marked it with a pink or orange string. Someone had removed the string, and Lanza had replaced it. Carol Moran was outside, somewhere close to the disputed boundary line. There were words between the parties, and Jennifer called the police. Stratton was dispatched to meet with her.
Because Stratton had been to this location before regarding this same dispute, he was aware of the background. Upon arrival, he saw Jennifer waiting at the end of the driveway. She had a survey in her hand. He got out of his squad car and, as he began to talk to Jennifer, the two Morans started to come across the yard from their house. Carol Moran was carrying a large pair of scissors in her hand. Jennifer said something about Moran cutting her line again. Stratton yelled to Mrs. Moran to stay away from the property line, but she did not stop. Stratton headed towards her and told her that if she entered Denson's property she would be arrested. She kept going, all the way to the string, which she then cut with the scissors. Stratton announced that she was under arrest for trespassing.*fn2
According to Stratton (who is 6 feet tall and weighed about 225 pounds), he then attempted to handcuff Carol Moran (who is 5'2"; estimates as to her weight range from 220 to 270 pounds). He put one cuff on her right wrist and took the scissors from her hand, dropping them to the ground. Carol started to struggle. As Stratton tried to pull her right hand behind her back to finish handcuffing her, Carol continued to turn in such a way that he could not do so, so he moved towards the retaining wall to prevent her from turning. He was then successful in handcuffing her in less than one minute. Then he walked her to his squad car. At some point, he also called for backup.
While this was going on, Thomas Moran was present. According to Stratton, he was in the back yard but would come and go. As Stratton began walking Carol Moran to the squad car, Thomas took up a position directly in their path. He was snapping photos, wanting Stratton's badge number, and saying that he was going to complain and sue. Stratton told him to move 3 times and threatened him with arrest for obstructing before Thomas complied.
When Stratton and Carol Moran got to the squad car, Carol refused to get in. She said something to Stratton about major surgery she had just had, and saying that he was hurting her*fn3. She yelled that she was not going to sit in the car, and that she wanted a sergeant and wanted to see a lawyer. Stratton*fn4 called for a paddy wagon, and they waited. The backup car, driven by Officer Grow arrived, and the paddy wagon, driven by Officer Esser, arrived shortly thereafter.
When a handcuffed person is going to be placed into a paddy wagon, custody is exchanged between the arresting officer and the officer driving the wagon. The handcuffs are exchanged so the arresting officer can have his cuffs back. Esser (who is 6' tall and weighed 295 pounds) told Carol Moran several times to turn around and face the squad car; she refused and after several requests, he physically turned her. Carol kept trying to turn around and, according to both Esser and Stratton, was kicking at Esser and at Officer Grow (who is 5'10" and weighted around 180 pounds). In order to exchange the handcuffs, Esser held one of her arms and Officer Grow the other. When they asked her to walk to the paddy wagon, she refused. She was told to stop resisting so they could put her in the wagon safely, but she continued to kick at the officers and pull away from them.
Esser then used a control tactic he refers to as a "rear wrist lock." It involves applying pressure to the elbow of a person whose arms are handcuffed behind the back. It is a pain compliance technique: when the person complies, the pain is removed. Carol complained that it hurt, and Esser told her the pain would stop if she would quit resisting. Eventually she stopped resisting, and the officers tried to put her in the smaller of three compartments in the paddy wagon. They told her numerous times to step up on the steps into the wagon but she would not comply. Grow and Esser still were holding her arms; they each grabbed her shorts with their free hands, lifting her up and standing her on the first step so she was facing the wagon. She stood there, then moved up to the top. When she reached the top she stopped. Esser, who had walked up the steps with her, holding her arm, explained that she needed to step in and sit down. Instead, Carol "either put herself on her knees or fell to her knees." Esser was adamant that he did not push her.
Once on her knees, Carol was fully within the compartment, although not on the seat. Esser closed the door. Carol was complaining that her knees hurt and asking to have the handcuffs removed. Esser waited outside the compartment while Stratton completed the paperwork necessary for transport to the jail. After awhile, he opened the compartment door, and she said that she wanted to talk to a sergeant and that she wanted medical care because she was hurt. He asked if she was ready to sit on the seat, and she replied ...