The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge
Wednesday, 26 January, 2011 03:17:06 PM
Clerk, U.S. District Court, ILCD
This cause is before the court for consideration of the Defendants' motion for summary judgment. [d/e 28]
The Plaintiff, a state prisoner, filed his complaint pursuant to 42 U.S.C. §1983 against seven Peoria Police Officers including Chief Steve Settingsgaard and Officers Daniel Duncan, Chad Batterham, Erin Barisch, Brad Dixon, John Couve and Officer Miller. On July 10, 2009, the court conducted a merit review of the Plaintiff's complaint and found that he had alleged the following claims:
a) The named Defendants used excessive force during their stop and arrest of the Plaintiff on August 1, 2007.
b) The named Defendants violated the Plaintiff's Fourth Amendment rights when he was forced to stand without his pants in front of several people while police searched for drugs on August 1, 2007. See July 10, 2009 Merit Review Order.
The Defendants have filed a motion for summary judgment. [d/e 28, 29] The Plaintiff was notified that a dispositive motion had been filed and that he must file a response within 21 days. [d/e 30]. The Plaintiff requested additional time to file a response which was granted. [d/e 32; September 30, 2010 Text Order] The Plaintiff has failed to file any further response to the summary judgment motion. Therefore, the court will consider the motion without input from the Plaintiff.
On August 1, 2007, Defendants Duncan, Barish, Dixon, Couve and Miller were police officers for the Peoria City Police Department. Defendant Settingsgaard was the Superintendent of the Peoria Police Department. On August 1, 2007, a Peoria County Circuit Court Judge from the Tenth Judicial Circuit in Illinois found probable cause to authorize a search warrant for the Plaintiff's Peoria home. The warrant included the Plaintiff and any vehicles found at the premises. (Def. Mot, Ex. 8). The complaint for the search warrant claimed that the Plaintiff was known to drive a maroon Chevy Monte Carlo to deliver crack cocaine.(Def. Mot, Ex. 8).
On August 1, 2007, Officers Duncan, Batterham, Barisch, Dixon, Couve and Miller joined other officers from the Peoria Police Department's vice and narcotics unit to execute the search warrant. Defendant Settingsgaard was not on the scene and was not personally involved in the stop, arrest or search of the Plaintiff. (Def. Mot, Ex. 7, p. 1); see also (Def. Mot.Ex. 1, p. 2, Ex. 2, p. 2, Ex. 3, p. 4, Ex 4, p. 3, Ex 5, p. 1).
Defendant Officer Couve says he was assigned to watch the rear of the Peoria residence when he saw the Plaintiff pull up in the Maroon Monte Carlo and park the vehicle. (Def. Memo, Couve Aff, Ex. 1, p. 1-2) Couve says he watched the Plaintiff go inside the residence, but a passenger in the car remained in the vehicle. A few minutes later, the Plaintiff returned and the passenger got out. The officers recognized this individual and saw the Plaintiff hand something to the passenger. They both got back in the car and they began to back out of the ...