The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is defendants' City of Edwardsville ("City"), Timothy Gallion ("Gallion"), Barry Jones (incorrectly named as Eric Jones) ("Jones") and James Murray's ("Murray")*fn1 motion for summary judgment (Doc. 43), to which plaintiffs Angelique Kincaid ("Kincaid") and Spanniesha Johnson ("Johnson") have filed responses (Doc. 44, 45), and defendants a reply (Doc. 61). Defendants filed a supplement to their motion for summary judgment (Doc. 54), to which plaintiff Kincaid filed a motion to strike or alternatively a motion for extension of time to respond (Doc. 55). Defendants filed a response to Kincaid's motion to strike (Doc. 58). Plaintiff Kincaid filed a response to defendants' supplement (Doc. 60) and defendants filed a reply to plaintiff's response (Doc. 61). In light of the fact that Kincaid is seeking to strike defendants' supplement or seeking additional time to respond, and at this time has responded, the Court FINDS that neither plaintiffs nor defendants are prejudiced by the Court's consideration of defendants' supplement since plaintiff has now had the opportunity to properly respond to the supplement and defendants have filed a reply to Kincaid's response. Accordingly, Kincaid's motion to strike (Doc. 55) is DENIED as MOOT, and the Court will consider all pleadings addressed to summary judgment.
Additionally before the Court is plaintiff Kincaid's motion for summary judgment (Doc. 51), and defendants' response to plaintiff Kincaid's motion (Doc. 56).
Spanniesha Johnson and Angelique Kincaid, (Johnson's natural mother and next friend), seek recovery from Gallion, Murray, and Jones (policemen employed by the City of Edwardsville), and the City. AmeriCredit Financial Services, Inc. (AmeriCredit) hired Image Recovery Services, Inc. (Image) to repossess plaintiff Kincaid's vehicle, the underlying incident from which this lawsuit arose. Plaintiffs have settled their claims against Americredit and Image.
On July 30, 2008, plaintiffs Kincaid and Johnson witnessed a tow truck owned by Image approach plaintiff Kincaid's vehicle, which was parked outside Kincaid's apartment. The driver parked the tow truck behind the vehicle without attaching it. When Kincaid confronted the driver, he returned to his truck without responding. According to Kincaid, she retreated back into her apartment to look for her keys, but could not immediately find them. Kincaid went out to her vehicle anyway, and when she reached the door, the tow truck driver was in between his truck and her vehicle. At some point after Kincaid ran out of her house, Johnson threw the vehicle's keys to Kincaid. Kincaid alleged that she then "entered her vehicle and the tow truck driver proceeded to lift the back end of the Pathfinder off of the ground. At this time, her vehicle was immobilized and, despite her attempts, she was unable to drive her vehicle away from the tow truck." Kincaid stated that she attempted to break the car free of the wheel lift, but the front tires of her vehicle made a loud squealing noise, generated smoke clouds, and deposited tire rubber residue on the ground. The exact series of events is not entirely clear, but it is clear that, at the very least, by the time Kincaid turned her vehicle on and accelerated both forward and in reverse, she could not break free from the tow truck.
Johnson thereafter got into the vehicle to give Kincaid a telephone. Kincaid called the City of Edwardsville Police Department, who told her that they could not stop a repossession, but that they would send a patrol car. After Kincaid refused to get out of the vehicle, the tow truck driver also called the police. Murray and Jones arrived at the scene at nearly the same time. Upon arrival, Murray approached the vehicle, which was still hooked to the tow truck with the back wheels suspended and inside of which plaintiffs were sitting. Murray asked Johnson if she owned the vehicle. She answered that she did not and got out of the vehicle pursuant to Murray's order. Kincaid asked to speak with Murray's superior, at which point Murray contacted defendant Sergeant Gallion, who arrived later. Neither defendant Murray nor Jones asked Kincaid to get out of the vehicle. Upon his arrival, Gallion repeatedly told Kincaid to get out of the vehicle so that he could talk to her. Gallion allegedly expressed hostility toward Kincaid by threatening to break her car window and to drag her from the vehicle.
While Kincaid was still in the suspended vehicle, she called Johnson back over to the vehicle. Gallion ordered Johnson not to go near the vehicle. Johnson reached toward the vehicle, at which point Gallion directed Jones to arrest Johnson. Jones grabbed Johnson by the wrist, twisted her left arm behind her back, aggressively pushed upward, and placed both of her wrists in handcuffs behind her back. Jones also allegedly "shoved" her into the back seat of a police car, where she "landed on her shoulder." Gallion, during his deposition, stated that Johnson was arrested for obstruction but never actually charged. Johnson stated during her deposition that her wrists were hurt because Jones put the cuffs on too tight, but also stated that she did not, at the time she was cuffed, complain she was injured or tell the officers she was injured. Johnson spent some time in police custody but was later released at the scene.
While Johnson was being arrested, Kincaid opened the passenger-side window to seek her daughter's release. Gallion reached in and unlocked the doors, allowing Murray to open the driver's side door and pull plaintiff Kincaid from the vehicle. Kincaid stated during her deposition that, while being pulled from her car, her knee hit the door and was injured. Kincaid stated that she used force against the police to show her strength to theirs, and yelled that the police were beating her, even though she now admits they were not. Kincaid was handcuffed and placed into a police car while Gallion notified her that she was under arrest. Gallion stated that Kincaid was arrested for child endangerment. After spending between 15 and 30 minutes in a police car, Gallion spoke to Kincaid and decided not to charge her. Kincaid admits that none of the officers threatened to put her in jail if she did not give up her vehicle, nor did the officers threaten to arrest her for not giving up her vehicle. Kincaid also stated that she did not feel that she had any choice in the situation that would allow her to keep her car. Finally, Kincaid stated that her brother, to whom she was speaking on the phone, told her to give up her vehicle.
Although Kincaid and Johnson were released by the officers, the tow truck driver was arrested by Jones for an outstanding warrant. The driver called his boss who arrived at the scene to tow Kincaid's vehicle away. Kincaid did not speak to the driver's boss or object when he took the vehicle away. One officer remained at the scene when the vehicle was towed, but the officer was not near Kincaid. Kincaid stated that she was not contesting anything when the vehicle was actually towed away.
After the tow truck and the remaining officer left, plaintiffs called an ambulance, which took them to the local emergency room. Kincaid stated that she went to the emergency room because she was experiencing chest pain. She received a shot and has had no subsequent problems or treatments. Kincaid asserts her knee was injured when she was pulled from the vehicle, but stated that she never received treatment and does not plan to seek treatment for her knee.
Johnson sought medical attention for wrist, arm, and shoulder pain. The emergency room physician told her that her wrist was possibly fractured but that she should follow up with an orthopedic surgeon. Johnson saw an orthopedic surgeon two days later, who stated at his deposition that Johnson complained of pain in her left arm but had full range of motion to the left shoulder and elbow and mild decrease in range of motion and tenderness to the left wrist. The orthopedic surgeon opined that he could not rule out an "occult distal fracture," but that clinically and radiographically there was no evidence of such a fracture, but only Johnson's complaints of pain. The orthopedic surgeon stated that based upon a reasonable degree of medical certainty, the x-rays of the left shoulder, elbow, and wrist were negative.
Plaintiffs filed this twenty-eight (28) count lawsuit in the Circuit Court of the Third Judicial Circuit in Madison County, Illinois, alleging many claims against defendants Gallion, Murray, Jones, the City, Image, and AmeriCredit.*fn2 Plaintiffs have settled their claims against Image and Americredit. The remaining defendants seek summary judgment in their favor on every remaining claim pursuant to Fed. R. Civ. P. 56(c).
Plaintiffs seek summary judgment on the sole issue of whether the officers, acting under the color of state law, unlawfully repossessed Kincaid's vehicle or assisted in the unlawful repossession of Kincaid's vehicle, thereby violating her civil rights by depriving her of her property without due process of law.
Under Fed. R. Civ. P. 56(c), summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
I. 42 U.S.C. § 1983 Claims Against the City and the Officers in their Official Capacities
A. 42 U.S.C. § 1983 Claims Against the Officers in their Official Capacities
Before analyzing the merits of the particular claims, the Court must determine whether plaintiffs can bring identical claims against both the City and the officers in their official capacities. Each of plaintiffs' remaining claims in this lawsuit present identical claims against the City and either two or three of the officers in their official and individual capacities. Suing these officers in their official capacities is another way of pleading an action against an entity of which the officer is an agent. Monell v. Department of Social Services, 436 U.S. 658 (1978). In other words, suing these officers in their official capacities is the same as suing the City of Edwardsville. Id. at 691. Therefore, the Court FINDS that the official capacity claims against the officers are the same as suing the City and those claims cannot be pursued.
Therefore, the Court GRANTS defendants' motion for summary judgment as to all claims pursuant to 42 U.S.C. § 1983, against the officers in their official capacities (Counts III, IV, V, VI, VII, and VIII).
B. 42 U.S.C. § 1983 Claims Against the City
Plaintiffs allege two 42 U.S.C. § 1983 claims against the City, namely: the City's code of conduct, its policies and procedures, or its failure to adequately train the police defendants violated plaintiffs' Fourth and Fourteenth Amendment rights because (1) Kincaid was subject to unreasonable seizure of her person and property with excessive force (Count I); and ...