The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff James Horan has filed a ten-count first amended complaint against defendants, Chicago police officers K. Smith, Star # 4850, M. Burke, Star # 8447, Sgt. Zodo, Star # 1561 ("defendant officers"), and the City of Chicago (the "City") alleging defendant officers: violated his rights under the Fourth Amendment to the United States Constitution by using excessive force (Count I); failed to intervene (Count II); conspired to deprive him of his constitutional rights (Count III); violated his rights under the Fourteenth and Eighth Amendments of the United States Constitution (Count IV); and conducted an illegal search and seizure (Count V). Counts VII through X allege state law claims for battery (Count VII), assault (VIII), malicious prosecution (Count IX), and intentional infliction of emotional distress ("IIED") (Count X). Count VI alleges that the City is liable for defendant officers' state law violations under 745 ILCS 10/9-102. Plaintiff has moved for partial summary judgment as to Count V. Defendants have moved for summary judgment on all counts. For the reasons set forth below, plaintiff's motion is granted and defendants' motion is granted in part and denied in part.
Around midnight on January 29, 2008, defendants Burke and Smith were on routine patrol near the 4800 block of North Broadway. At the time, plaintiff Jason Horan lived in Apartment 409-S, a studio apartment, at 4240 North Clarendon Avenue, Chicago. Defendants Burke and Smith encountered Charles Elverum ("Elverum") at 4840 North Broadway, about six blocks south and four blocks east of 4240 North Clarendon. Elverum was stumbling and weaving from side to side and appeared intoxicated on some substance or to be suffering from a medical condition. Elverum had a pipe consistent with the type used for ingesting or smoking narcotics. Burke and Smith had never seen Elverum prior to that day.
Elverum claimed to live in apartment 409-S at 4240 North Clarendon with plaintiff Horan. Elverum told Burke and Smith that plaintiff kept drugs in the apartment and that he wanted the drugs removed. Elverum was unable to provide any photo identification to defendants during the field interview and had nothing in his possession that indicated his place of residence. A LEADS check of the name Charles Elverum came back with the response, "unknown record," meaning that there was no record of Charles Elverum in the Illinois State Police Department database. Burke and Smith asked Elverum if he would sign a consent to search form and Elverum agreed. Defendant Officer Zodo arrived at the location with the form. Elverum had a conversation with Zodo and then signed the form. All three defendants and Elverum then went to 4240 North Clarendon with Elverum in the backseat of Smith and Burke's vehicle.
The front entrance of the apartment building located at 4240 North Clarendon has a security system that must be used in order to gain entry to the building. There are two ways to gain access to the apartments: (1) using a key to unlock the first door that opens to the mailboxes and the second door after the mailboxes; or (2) by using the intercom to call a resident and be buzzed through both sets of doors. When a new resident moves into the apartment building, the resident's name and code is added to the intercom directory and a mailbox is labeled with his or her name. When defendants and Elverum arrived at the building, Elverum did not have keys to the front door. None of the defendants checked the electronic directory or the mailboxes to determine whether Elverum lived there. Defendants directed Elverum to place a call to plaintiff to buzz Elverum in. Elverum then placed a telephone call to plaintiff and said, "I'm here, let me in." All three defendants and Elverum entered the building after plaintiff buzzed them in. Defendants went upstairs to the hallway outside of plaintiff's apartment where the door was partially open.
Plaintiff was inside the apartment when defendant officers attempted entry. Defendants did not see plaintiff until they were entering the doorway of the apartment. When defendants were at the doorway, plaintiff rushed the door and tried to shove them back out. The altercation in the doorway lasted a short while. Plaintiff struggled with defendant officers, fighting them and resisting arrest. Defendant officers Smith and Zodo placed handcuffs on plaintiff and escorted him downstairs. Defendant officer Burke secured plaintiff's apartment and recovered contraband, including narcotics and drug paraphernalia found on a table and an open box three feet from that table.
On September 24, 2008, during criminal proceedings stemming from the arrest, the Cook County Circuit Court held a hearing on plaintiff's motion to suppress and quash arrest. The court found that the search failed on apparent authority grounds, because defendants did not sufficiently establish that Elverum lived in plaintiff's apartment. The court also found that the search did not fall within the plain-view doctrine, because defendants did not legitimately arrive at the place where they made their viewing. The Cook County Circuit Court granted plaintiff's motion and the state immediately dismissed the case via a nolle prosequi. All the preceding statements of fact are undisputed.
Defendants argue that they announced themselves as police officers when they entered plaintiff's apartment. Plaintiff denies this. Defendants contend that they could see drug paraphernalia and narcotics on the table inside plaintiff's apartment before entering the apartment, from the hallway. Plaintiff denies this. Plaintiff contends that, after he was handcuffed, plaintiff's face was dragged along the ground and he was hung on a wrought-iron fence by his handcuffs. Defendants deny this.
Summary judgment is appropriate if the evidence demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Vision Church v. Village of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006). The burden is on the moving party to identify portions of pleadings, answers to interrogatories, and affidavits that demonstrate an absence of material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c).
When reviewing a summary judgment motion, the court must read the facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Only disputes over facts that might affect the outcome of the suit will properly preclude the entry of summary judgment. Id. at 248. The court's role "is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." Doe v. R.R. Donnelly & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994).
Illegal Search and Seizure (Count V)
Plaintiff has moved for partial summary judgment as to Count V of his first amended complaint, alleging that the individual defendants conducted an illegal search and seizure in violation of plaintiff's Fourth Amendment rights. Defendants ...