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Smith v. Hunt

September 27, 2010

GREGORY SMITH, PLAINTIFF,
v.
JALANCE HUNT, JOSE CORTES, RICHARD DOWLING, JOSEPH MARTIS, PATRICK BOYLE, DANIEL A. BINFA, DANIELLE N. PHILP, AND WILLIAM R. WHELEHAN, CHICAGO POLICE OFFICERS, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Gregory Smith ("Smith") sued Chicago Police Officers JaLance Hunt ("Officer Hunt"), Jose Cortes ("Officer Cortes"), Richard Dowling ("Sergeant Dowling"), Joseph Martis ("Officer Martis"), Patrick Boyle ("Sergeant Boyle"), Daniel Binfa ("Oficer Binfa"), Danielle Philp ("Officer Philp"), and William Whelehan ("Officer Whelehan") under 42 U.S.C. § 1983 alleging violations of his civil rights. Smith's allegations arise from two separate incidents, one on December 7, 2007 and one on December 28, 2007. As to the December 7, 2007 incident, Smith alleges that:

(1) Officers Cortes and Hunt engaged in excessive force and Sergeant Boyle and Officers Binfa, Philp, and Whelehan failed to intervene to stop the use of excessive force in violation of the Fourth Amendment (Count I); (2) Officers Cortes, Hunt, and unknown Chicago police officers battered him in violation of Illinois law (Count II); and (3) Sergeant Boyle and Officers Binfa, Philp, and Whelehan failed to intervene and failed to provide adequate medical attention in violation of the Fourth Amendment (Count III). As to the December 28, 2007 incident, Smith alleges that (1) Officer Cortes engaged in excessive force and Sergeant Dowling and Officer Martis failed to intervene and provide medical attention (Count IV); (2) Officer Cortes battered him (Count V); (3) Sergeant Dowling and Officer Martis failed to intervene and failed to provide adequate medical attention (Count VI); and (4) Sergeant Dowling and Officers Cortes and Martis failed to provide medical attention (Count VII). Finally, Smith brings a state law claim against the City of Chicago for indemnification (Count VIII). Sergeant Boyle and Officers Philp, Binfa, and Whelehan move for summary judgment as to Count III of Smith's Second Amended Complaint and Sergeant Dowling and Officers Martis and Cortes move for summary judgment as to Count VII of Smith's Amended Complaint. For the reasons stated below, the Court grants in part and denies in part the Defendants' Motion.

STATEMENT OF FACTS*fn1

I. The December 7, 2007 Incident

Just before midnight on December 7, 2007, Officers Hunt and Cortes spotted Smith on the street from their car. (Pl. 56.1 Resp. ¶ 3.) Smith was wanted for a parole violation and an arrest warrant had been issued for that violation. (Pl. 56.1 Resp. ¶ 3.) When Smith saw Officers Cortes and Hunt, he started running from the officers. (Pl. 56.1 Resp. ¶ 4.) Officer Hunt jumped out of the car and pursued Smith on foot while Officer Cortes followed down the street in the car. (Pl. 56.1 Resp. ¶¶ 6-7.) At the same time, Officer Cortes reported the foot pursuit while it was occurring over the radio. (Pl. 56.1 Resp. ¶ 7.)

After some time, Smith grew tired of running. (Pl. 56.1 Resp. ¶ 10.) Seeing officers approaching him from both in front of him and behind him, he got on his knees and put his hands above his head. (Pl. 56.1 Resp. ¶ 10; Def. 56.1 Resp. ¶¶ 3-4.) Once Smith was on his knees, he was rushed by at least Officers Hunt and Cortes and taken to the ground. (Pl. 56.1 Resp. ¶ 11; Def. 56.1 Resp. ¶ 6.) Smith was then punched, kicked, and stomped on before he was placed into handcuffs. (Pl. 56.1 Resp. ¶ 11.) Specifically, one officer placed his knee on Smith's neck and Cortes began stomping on Smith's left hand, while other officers were kicking and punching him. (Def. 56.1 Resp. ¶¶ 7-8.) Smith was not punched or kicked after he was in handcuffs. (Pl. 56.1 Resp. ¶ 11.) Once he was apprehended, the officers discovered that Smith was in possession of approximately fifteen grams of crack cocaine with an estimated street value of $1,845 and $700 in cash. (Pl. 56.1 Resp. ¶ 5.)

While the parties agree that a number of officers responded to Officer Cortes's call for backup, they disagree about when the officers arrived at the scene and what the officers saw. Targeted Response Unit Officers Philp, Whelehan, and Binfa ("the Responding Officers"), who were patrolling in the area together that night in their marked squad car, heard Officer Cortes call out the foot pursuit over the radio. (Pl. 56.1 Resp. ¶ 12.) The Responding Officers drove to the general location of the pursuit, but stopped their car upon hearing an officer call out on the radio for their car to "stop, stop, stop" in rapid succession. (Pl. 56.1 Resp. ¶ 13.) At their depositions, the Responding Officers testified that when they arrived at the scene they left their squad car together and found Officer Hunt, who already had Smith in custody in handcuffs. (Def. 56.1 Ex. F, Dep. of Danielle Nicole Philp ("Philp Dep.") at 20:4-9, 21:15-22:14; Ex. G, Dep. of William Whelehan ("Whelehan Dep.") at 17:13-18:9; Ex. H., Dep. of Daniel Binfa ("Binfa Dep.") at 17:2-14, 19:17- 20:22, 21:17-24:3.) Officers Philp, Whelehan, and Binfa testified that they did not see any injury to Smith's hand, nor did they hear him complain about any injury. (Philp Dep. at 29:2-17; Whelehan Dep. at 19:14-20:2; Binfa Dep. at 24:9-25:16.) The Responding Officers also testified that they did not see Officers Hunt or Cortes stomp on Smith's hand and that they left the scene shortly after arriving because other officers arrived and they were no longer needed. (Philp Dep. at 26:20-27:5; Whelehan Dep. at 23:6-9; Binfa Dep. 44:8-18.)

Another officer, Sergeant Boyle, (Hunt Dep. at 44:1-5.), also responded to Officer Cortes's radio call. Sergeant Boyle testified at his deposition that he arrived on the scene after Smith was handcuffed. (Def. 56.1 Ex. I, Dep. of Sergeant Patrick Boyle ("Boyle Dep.") at 11:8-12:20.) Sergeant Boyle testified that he did not see Officer Cortes stomp on Smith's hand, nor did not see any officers kick or punch Smith. (Boyle Dep. at 32:14-20.) According to Sergeant Boyle, when he first saw Smith, Smith was standing with Officer Hunt on the porch of a residence. (Boyle Dep. at 12:18-13:3.) Sergeant Boyle testified that he approached Officer Hunt and asked him if he was okay. (Boyle Dep. at 12:24-13:7.) Once he learned that Officer Hunt was okay, he stated, he went to the back of the residence because that was the direction from which Smith had been running. (Boyle Dep. at 13:7-14.)

Sergeant Boyle further testified that he first saw Officer Cortes at the scene in the backyard of the residence. (Boyle Dep. at 14:4-15:6.) Sergeant Boyle stated that he explored the area from which Smith ran for approximately ten minutes before returning to the front of the residence. (Boyle Dep. at 15:7-14.) Sergeant Boyle testified that upon returning to the front of the residence, the officers decided that they should take Smith to the police station. (Boyle Dep. at 15:15-19.)

Sergeant Boyle testified that he did not observe Smith's left hand at the scene or hear Smith say anything about his hand before Sergeant Boyle left the scene. (Boyle Dep. at 15:20-16:4, 32:6-11.)

Smith, however, testified at his deposition that in addition to Officers Cortes and Hunt, he was also being chased by a white male officer who was coming from the alley. (Smith Dep. at 181:1-12.) Smith testified that once he got on his knees, the police "bum-rushed" him and that they were "all over" him. (Smith Dep. at 181:13-183:15.) Smith also testified that as Cortes was stomping on his hand in the presence of the other officers, one of the officers said "that's what we do to dude that run." (Smith Dep. at 187:8-18.) Smith contends that after he was beaten in the presence of the other officers, the officers on the scene stood there looking at him and did not offer to help him up. (Def. 56.1 Ex. C, Dep. of Gregory Lynn Smith ("Smith Dep.") at 193:2-10, 194:16-18.) Smith testified that he does not know whether any of the officers were female. (Smith Dep. at 188:13-17.)

Smith also presents the testimony of three eye witnesses, Ray Crawford ("Crawford"), Myron Perkins ("Perkins"), and Robert Priest ("Priest"), who all claim that Smith was beaten in the presence of between three and five Chicago police officers. (Pl. 56.1 Add. Facts Ex. A, Dep. of Ray Crawford ("Crawford Dep.") at 87:7-15; Dep. of Myron J. Perkins ("Perkins Dep.") at 97:24-98:7, 112:1-17; Ex. C, Dep. of Robert Leon Priest ("Priest Dep.") at 74:16-20; 76:12-15; 84:19-85:5.) Specifically, Crawford, who saw the incident from the street, testified that he saw Smith surrounded by four-to-five officers. (Crawford Dep. at 86:3-88:21.) Crawford identified one of the officers as Hispanic and one as white. (Crawford Dep. at 89:1-16.) Perkins, who also saw the incident from the street, likewise testified that he saw four-to-five officers: two-to-three white officers, one African-American officer, and one Hispanic officer. (Perkins Dep. at 112:1-17.) Perkins testified that none of the officers were female. (Perkins Dep. at 13-14.) Priest, who saw the incident from his home, testified that he saw between three-to-four officers surrounding Smith. (Priest Dep. at 76:9-15, 84:19-85:5.) Priest testified that one white or Hispanic officer was beating Smith, (Priest Dep. at 74:16-20.), while at least two others-one African-American-were watching. (Priest Dep. at 85:6-11.) Priest could not tell whether any of the officers were female. (Priest Dep. at 12-14.) Both Crawford and Perkins testified that they heard Smith screaming and "hollering" about his hand in the presence of four or five officers. (Crawford Dep. at 111:15-112:12; Perkins Dep. at 96:20-97:10, 120:15-19, 137:16-18.)

Smith testified that he complained about his hand to Officers Cortes and Hunt while he was at the scene of arrest and again while he was in the car on the way to the police station. (Smith Dep. at 301:12-302:5.) Nevertheless, it is undisputed that the Responding Officers did not take Smith into custody or transport him from the scene of arrest to the police station. (Pl. 56.1 Resp. ¶ 17.) It is also undisputed that Sergeant Boyle did not transport Smith from the scene to the police station. (Pl. 56.1 Resp. ¶ 27.)

Sergeant Boyle did, however, return to the police station after Smith's arrest. (Pl. 56.1 Resp. ¶ 26; Def. 56.1 Resp. ¶ 14.) Approximately thirty minutes passed between the time of Smith's arrest and when Sergeant Boyle had any interactions with Smith at the station. (Pl. 56.1 Resp. ¶ 27.) After Sergeant Boyle arrived at the station, Smith told him to look at his hand and Sergeant Boyle said he was going to try and get something done. (Pl. 56.1 Resp. ¶ 31.) At Sergeant Boyle's direction, Officers Lester Scott and Martis, members of the gang team, took Smith from the police station to the Emergency Room at Holy Cross Hospital. (Pl. 56.1 Resp. ¶¶ 30, 32-33.) Boyle did not have any further interaction with Smith on December 7, 2007. (Pl. 56.1 Resp. ¶ 34.)

Smith arrived at Holy Cross Hospital before 1:25 a.m. on December 8, 2007. (Pl. 56.1 Resp. ¶ 35.) He was admitted to the hospital for a finger dislocation to the ring finger on his left hand between 1:45 a.m. and 3:00 a.m., and was released back into police custody at about 3:15 a.m. (Pl. 56.1 Resp. ¶ 35.) Smith was given morphine and Valium for the pain. (Def. 56.1 Resp. ¶ 16.) Smith was given instructions to return to the emergency room if the condition worsened, to follow up with his own doctor in two days, and to keep the splint on for one week. (Pl. 56.1 Resp. ¶ 35.)

II. The December 28, 2007 Incident

On December 28, 2007, at approximately 9:30 p.m., Officer Cortes, Officer Martis, and Sergeant Dowling arrested Smith at his residence. (Pl. 56.1 Resp. ¶ 36.) The officers found Smith sitting on a couch on the second floor. (Pl. 56.1 Resp. ¶ 37.) Dora Smith, Smith's mother, heard a commotion in the upstairs apartment of her building and went upstairs. (Def. 56.1 Resp. ¶¶ 22-23.) When she arrived at the second floor, she saw two police officers with their guns out pointed at Smith's head and one of the officers had his knee on Smith's sore hand. (Def. 56.1 Resp. ¶ 23.) The officers slapped his injured finger in an effort to get him to reveal information about a drug dealer named "Boo Man." (Pl. 56.1 Resp. ¶ 38; Def. 56.1 Resp. ¶ 26.)

While at the scene, all three officers noticed that Smith had a dirty bandage on his finger. (Pl. 56.1 Resp. ¶¶ 39-41.) Officer Martis also noticed that Smith's finger was emitting a foul odor. (Pl. 56.1 Resp. ¶ 39.) Officer Martis thought it smelled like a dead carcass, the bandage was multi-colored and appeared greenish-yellowish, and it looked like it had not been taken care of. (Pl. 56.1 Resp. ¶ 39.) Sergeant Dowling thought the bandage looked like it had been there awhile, (Pl. 56.1 Resp. ¶ 41.), but he did not notice a foul odor. (Pl. 56.1 Resp. ¶ 43.) The officers handcuffed Smith with the handcuffs placed in front of him so his bandaged finger would not be re-injured. (Pl. 56.1 Resp. ¶ 46.) After searching the second floor, the officers found that Smith was in possession of approximately thirteen grams of crack cocaine and an estimated three grams of heroin, with an estimated street value of $2,049. (Pl. 56.1 Resp. ¶ 45.)

Sergeant Dowling and Officers Martis and Cortes all testified that while at the arrest scene, they did not think Smith was in pain because Smith did not indicate that he was in pain, nor did he ask the officers for medical attention. (Martis Dep. at 44:20-45:12; Cortes Dep. at 125:16-19 Dowling Dep. at 36:18-20, 37:3-19.) Sergeant Dowling testified that he asked Smith about his hand and Smith told him that he had cut it earlier and that he had gone to the hospital and had it checked out. (Def. 56.1 Ex. M, Dep. of Richard Dowling ("Dowling Dep.") at 34:15-34:8.) Sergeant Dowling further testified that he was concerned about the condition of Smith's hand, but that once he heard that Smith had sought treatment, he was no longer concerned that Smith needed immediate treatment. (Dowling Dep. at 36:7-14.) All three officers testified that they did not take Smith to the hospital directly from the scene because they did not believe he needed immediate care. (Def. 56.1 Ex. K, Dep. of Joseph Martis ("Martis Dep.") at 44:20-45:12; Ex. B, Dep. of Jose Cortes ("Cortes Dep.") at 125:16-19; Dowling Dep. at 34:7-38:12, 41:12-44:22.)

Smith, however, contends that he was in need of immediate medical care. (See, e.g., Cortes Dep. at 131:21-132:14.) In addition to pointing to the officers' testimony about what they observed, Smith provides the testimony of his mother, Dora Smith, who stated that she heard Smith yelling at an officer to get his knee off Smith's hand because it was hurting. (Dora Smith Dep. at 74:10-13.)*fn2

The officers left the residence at approximately 9:50 p.m. and brought Smith to the police station. (Pl. 56.1 Resp. ¶ 47.) After Smith was taken to the police station, the officers brought him upstairs and prepared the arrest report. (Pl. 56.1 Resp. ¶ 50.) At this time, the parties agree that Smith specifically told Officer Cortes that his hand was bothering him and that he wanted to go to the hospital to get it checked out. (Pl. 56.1 Resp. ¶ 51.) Once Officers Cortes and Martis completed the paperwork, Sergeant Dowling decided to have Smith taken to the lockup to be printed and then to a hospital to have a doctor check out his hand. (Pl. 56.1 Resp. ¶ 52.) Sergeant Dowling made this decision because he believed the lockup would not accept Smith with a bandaged hand from a prior injury. (Pl. 56.1 Resp. ¶ 53.) He thought Smith would be processed faster and would make bond court in the morning if he was taken to the hospital. (Pl. 56.1 Resp. ¶ 53.)

When Smith was received at the lockup on December 29, 2007 at 12:55 a.m., the lockup keeper's visual check of the arrestee indicated "Yes" for "Obvious Pain or Injury." (Def. 56.1 Resp. ¶ 33.) Smith was released from the lockup at 1:00 a.m. on December 29, 2007 and was transported to Holy Cross Hospital. (Def. 56.1 Resp. ¶ 34.) Approximately three-and-a-half hours passed from the time Smith was placed ...


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