The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Mike Aponte ("Aponte") filed a ten-count complaint against Defendant the City of Chicago ("the City") and Chicago Police Officers Mario Acosta ("Acosta") and Erin Jones ("Jones") (the "Officers"). On July 7, 2009 this Court dismissed Counts VII through X of Aponte's Complaint, holding that Aponte's Illinois state law claims were time-barred by the applicable statute of limitations. (See R. 33.) The remaining six counts of Aponte's Complaint are: Counts I and II allege violations of the Fourth Amendment for use of excessive force and illegal search and seizure under 42 U.S.C. § 1983; Counts III and IV allege conspiracy to violate Aponte's constitutional rights pursuant to 42 U.S.C. § 1983 and § 1985; Count V alleges a violation of the Eighth and Fourteenth Amendments under 42 U.S.C. § 1983 for failure to attend to Aponte's medical needs; and Count VI alleges that the City is liable for the conduct of the Defendant Officers pursuant to 745 ILCS 10/9-102. Defendants moved for summary judgment on all counts. For the reasons stated below, Defendants' Motion for Summary Judgment is granted in part and denied in part.
The City is a municipal corporation incorporated under the laws of Illinois. (Pl. 56.1 Resp. ¶ 1.) At the time of the arrest that forms the basis of this action, the Officers were employed by the City as sworn police officers. (Pl. 56.1 Resp. ¶ 2.) On December 16, 2006, Aponte met with Santos Pena ("Pena") at Pena's automobile repair business-the reasons for the meeting are disputed, but irrelevant to Aponte's claims in this lawsuit-and an altercation ensued. (Pl. 56.1 Resp. ¶ 8.) Pena pointed his finger at Aponte, touching Aponte's nose "like a little kid." (Def. 56.1 Ex. 2, Deposition Testimony of Mike Aponte, at 43:6-10.) (hereinafter "Aponte Dep.") Aponte responded by slapping Pena twice. (Pl. 56.1 Resp. ¶ 9.) Pena then ran to the business's office and telephoned the police. (Pl. 56.1 Resp. ¶ 11.) The Officers responded to a radio call for battery and went to the scene. (Def. 56.1 Resp. ¶¶ 5, 49.) Aponte, having previously left the scene, called Pena and was informed that the police had responded. (Def. 56.1 Resp. ¶ 6.) Aponte then returned to the scene in his truck.*fn2 (Pl. 56.1 Resp. ¶ 7.)
Upon arriving at the scene, the Officers noticed that Pena was scared and upset. (Pl. 56.1 Resp. ¶ 51.) Officer Jones testified that Pena had redness and swelling on his face when she first encountered him.*fn3 (Def. 56.1 Ex. 3, Deposition Testimony of Officer Erin Jones, at 12:12-14.) (hereinafter "Jones Dep.") After the Officers spoke with Pena, with Officer Acosta acting as a translator, Officer Jones left the office in order to get a general offense case report from her vehicle. (Pl. 56.1 Resp. ¶¶ 30-31; Jones Dep. 16:2-6.) Aponte arrived as Officer Jones was returning to the office, and both Officers subsequently encountered Aponte outside the office door. (Jones Dep. 16:9-20; Aponte Dep. 52:8-11.) Aponte concedes that the Officers approached Aponte without placing their hands on their weapons and were not carrying tasers. (Pl. 56.1 Resp. ¶ 55.)
There are significant factual disputes concerning the subsequent sequence of events. Aponte testified during his deposition that upon his return to the scene, he exited his truck with his hands up and was greeted by Officer Acosta, who "aggressively" placed Aponte's arm behind his back and said: "You're going to fucking die today, you fucking spic." (Aponte Dep. 53:13-54:1.) Aponte responded by saying to Officer Acosta: "Sir, I just want to know what's going on." (Aponte Dep. 54:18-19.) Aponte testified that although Officer Acosta never told Aponte he was under arrest, he did not struggle or try to pull away from Officer Acosta except for possibly pulling his arms away when Acosta attempted to slam him onto the squad car. (Aponte Dep 54:5-7; 55:18-23.)
Aponte further testified that Officers Acosta and Jones then proceeded to pin him on the ground. (Aponte Dep. 57:8-17.) Aponte was handcuffed during the entire time that he was on the ground; nevertheless, Officer Acosta pinned him to the ground with a knee to the throat or forehead and Officer Jones pinned him with her knee to his groin. (Aponte Dep. 58:14-60:5.) Officer Jones threw a small rock or stone at Aponte's forehead while he was pinned to the ground. (Aponte Dep. 60:11-17.) When Aponte moved his legs underneath the officers in an effort to breathe, Officer Acosta discharged his pepper spray into Aponte's nostrils while placing his knee on Aponte's throat. (Aponte Dep. 64:15-22.)
Subsequently, according to Aponte's testimony, the Officers then threw him into the squad car, upon which he screamed that he couldn't breathe and asked that the window be opened. (Aponte Dep. 73:12-17.) Officer Acosta responded with further racial slurs, profanity, and threats that Aponte wouldn't be able to sue him because Aponte would be dead. (Aponte Dep. 73:19-74:4.) Aponte continued to feel unable to breathe, so he hit his head against the squad car window, breaking the window-apparently in order to gain fresh air. (Aponte Dep. 83:20-23.) Another, unidentified and non-defendant officer, then took Aponte out of the squad car so that he could breathe. (Aponte Dep. 84:14-20.)
In contrast, Officer Acosta testified that it was Aponte who began the encounter with racial slurs, profanity, and death threats, by responding to Officer Acosta's direction to put his hands behind his back by saying "fuck you, spic. I've done federal time. I'll have you killed." (Acosta Dep. 30:19-31:1.) Officer Acosta then testified that when he tried to grab Aponte's arm, Aponte pulled away and refused to put his hands behind his back. (Acosta Dep. 46:22-24.) Officer Acosta then described a struggle to subdue Aponte, first from a standing position and then on the ground, during which Aponte was "still fighting, trying to get up" and "pulling his arms forward underneath him." (Acosta Dep. 47:4-21.) Officer Acosta did not testify that he handcuffed Aponte prior to the struggle on the ground.
Officer Jones testified that she also attempted to subdue Aponte during this struggle, first by holding on to one of his arms and then by attempting to assist Officer Acosta in subduing Aponte once the parties were on the ground. (Jones Dep. 23:7-9; 25:17-19.) Officer Jones's testimony does not describe any action of kneeling on top of Aponte's body or of throwing any pebbles or stones at his forehead.
The parties agree that Officer Acosta eventually used his pepper spray in the vicinity of Aponte's nose. (Pl. 56.1 Resp. ¶ 21.) Aponte testified that the blast of pepper spray lasted for fifteen to thirty seconds, following which he had a very difficult time breathing. (Aponte Dep. 70:20-72:1.) However, Officer Acosta testified that he discharged the pepper spray only in "one or two second bursts," and not for the extended period of time described by Aponte. (Acosta Dep. 51:11-15.) The parties also dispute the manner in which the pepper spray was deployed-Aponte testified that it was sprayed directly into his nose (Aponte Dep. 69:12-22); Officer Acosta stated that the spray was discharged from a distance of between one and five feet from Aponte's face (Acosta Dep. 94:16-20.)
It is undisputed that following the deployment of the pepper spray, Aponte was placed in the back of a squad car and then broke out a window of the car by striking it with his head. (Pl. 56.1 Resp. ¶¶ 46, 68.) After Aponte broke the squad car's window, the Officers called for the assistance of additional officers. (Pl. 56.1 Resp. ¶ 47.) An ambulance was not called to the scene to treat Aponte for any injuries. (Def. 56.1 Resp. ¶ 69.)
Aponte was subsequently removed from the squad car and transported to the local police station in another Chicago Police Department vehicle. (Pl. 56.1 Resp. ¶ 48.) He sought medical treatment from his personal doctor on the day following his release from jail, complaining of a burning sensation in his nose resulting from the pepper spray and of a headache. (Aponte Dep. 129:15-130:23.) Aponte did not receive psychiatric or psychological treatment after his arrest. (Pl. 56.1 Resp. ¶¶ 16-17.)
Following the arrest, Officer Acosta prepared an arrest report and Officer Jones prepared a General Offense Case Report. (Pl. 56.1 Resp. ¶ 71.) Aponte was eventually charged with battery to Pena, resisting arrest, unlawful use of a weapon,*fn4 and criminal damage to property for breaking the window of the squad car. The criminal charges were eventually ...