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Richard Dishman v. Thomas Cleary

March 29, 2011


The opinion of the court was delivered by: Judge George M. Marovich


Plaintiff Richard Dishman filed a three-count complaint against defendants Thomas Cleary ("Cleary"), Keith Deitelhoff ("Deitelhoff"), Patrick O'Kelly ("O'Kelly"), David Dimoff ("Dimoff"), Mark Campbell ("Campbell"), Andrew Ohlson ("Ohlson"), Morris Brown, Walter Brown, Christopher Brown, Michael Brown and Eddie Haynie ("Haynie"). Defendants Campbell, Cleary, Deitelhoff, Dimoff, Ohlson, Haynie and O'Kelly move for summary judgment on plaintiff's claims.*fn1 For reasons set forth below, the Court grants in part and denies in part defendants' motion for summary judgment.

I. Background

Unless otherwise noted, the following facts are undisputed.*fn2

On October 12, 2005, plaintiff Dishman was arrested. While he was in lock-up, he stomped on and broke the toilet in his cell. Not long after that, Dishman was tased.

Of the eleven Chicago Police Officers Dishman sued in this case, claims are still pending against seven--Cleary, Deitelhoff, Dimoff, Campbell, Ohlson, Haynie and Sergeant O'Kelly. On the night Dishman was arrested, Sergeant O'Kelly was working as a field supervisor and was assigned to supervise officers patrolling the 7th District. The other six defendants were among the officers assigned to the 7th District that evening.

On the day of his October 12, 2005 arrest, Dishman had gone to work at the same job he had held for ten years. Dishman was a distribution manager for a company that sold construction safety equipment. After work, Dishman drove his car to purchase a six-pack of 12-ounce cans of Icehouse beer. After he purchased the beer, he drove to Green Street and parked his car on the 6400 block. Dishman left five of the beers in his car and drank one on the porch of a house near where he parked. After he drank the beer, Dishman went back to his car to get another for a friend.

Dishman was arrested soon after he returned to his car. When Dishman reached his car, he sat down in the driver's seat. Four cans of Icehouse beer were sitting in the passenger seat next to him. (It is not clear from the record what happened to the other can of beer.) Dishman

Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party's brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). It is not enough at the summary judgment stage for either party to say a fact is disputed. The Court considers a fact disputed only if both parties put forth admissible evidence of his or its version of the fact. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court.

inserted the key and turned the ignition to roll down a window and light a cigar. When he turned the ignition, music began playing. The parties dispute the volume of the music--Dishman testified that the music could not be heard outside the car, while a neighbor and the police officers testified that music could be heard 75 feet away. Within three minutes, police officers approached Dishman's car.

What happened next is the subject of some dispute. The parties agree that two officers pulled alongside Dishman's car as Dishman had his hand on the key in the ignition, but the parties disagree as to which two officers pulled up. Dishman testified that the two officers were Cleary and Campbell. Defendants put forth evidence that the two officers were Cleary and Deitelhoff and that Campbell spent the entire shift elsewhere investigating a kidnapping. (Accordingly, references to Campbell's presence are from Dishman's perspective.) Dishman agrees that Deitelhoff was present, but he thinks Deitelhoff arrived shortly after Campbell and Cleary. Dishman agrees that, at the scene of his arrest, he did not interact with any officers other than Campbell, Cleary and Deitelhoff.

According to Dishman, Cleary said, "Grab him," and Campbell pulled Dishman out of his car by his jacket collar. Once Dishman was out of the car, Campbell pushed Dishman into Cleary. Dishman started hollering for help. Cleary grabbed Dishman's left arm, twisted it behind his back, jerked it three or four times and pushed Cleary toward the back of Dishman's car. Dishman's head hit the car. Cleary called for back-up, which arrived (in the form of Deitelhoff) within seconds. When Deitelhoff arrived, Cleary "snatched" Dishman off the car and pushed him into Deitelhoff, who grabbed Dishman's hair and handcuffed Dishman.

When Deitelhoff put Dishman in the back of the squad car, Dishman hit his head on the roof of the car. The resulting knot on his forehead lasted two days. The handcuffs were "really tight" and caused three permanent scars on Dishman's wrist. The pain in Dishman's wrist lasted two days. To this day, Dishman experiences occasional numbness in that arm (although defendant put forth evidence that the numbness could have also resulted from a subsequent gunshot wound).

The parties dispute Dishman's behavior during the arrest. According to Dishman, he did not resist arrest. Defendants put forth evidence that Dishman was belligerent and aggressive. Deitelhoff ultimately wrote and issued Dishman four tickets: #484 for having a sound device that was too loud; #485 for having an open container of liquor in the car; #486 for operating an uninsured vehicle; and #487 for driving under the influence of alcohol.

Deiteloff drove Dishman to the 7th District police station. Once they arrived, Deitelhoff pulled Dishman out of the squad car by the handcuffs. On the way into the building, Deitelhoff purposefully pushed Dishman into the edge of the doorway, which caused a bruise on Dishman's shoulder. Someone (it is not clear who) put Dishman into an interview room and handcuffed his right hand to a railing.

Dishman was hollering as loudly as he could when Cleary and Campbell entered the interview room. Cleary approached Dishman to handcuff his left hand. Dishman "snatched" his arm away. Cleary jerked back saying "Ow ow." Deitelhoff heard Cleary scream, "You broke my hand." A sergeant who was passing by told Dishman, "Now you got battery against a police officer." The parties dispute whether Dishman actually injured Cleary. According to Dishman, the reason he jerked his arm away was because Campbell looked menacing and was wearing gloves. Dishman wanted to cover his face. Dishman was then left in the interview room alone for ten minutes before he was fingerprinted and allowed to make a phone call.

Dishman was then escorted to a ten foot by four foot cell. The guard who escorted Dishman told him he was being charged with driving under the influence of alcohol. After about fifteen minutes, Dishman began yelling and screaming. He hollered that he wanted to take a test.

(Dishman had not been offered a breathalyzer test.) He hollered that he wanted to talk to his lawyer. Dishman hollered at the top of his lungs. This is when Dishman decided to break the toilet, because he was mad and upset. Dishman testified at his deposition that he purposefully "stomped" on the toilet until it detached from the wall and broke into three large pieces. Water started leaking onto the floor.

That evening, Lt. Mark Harmon ("Harmon") was the acting watch commander at the 7th District police station. Lt. Harmon decided, for safety reasons, that Dishman needed to be moved to another cell--one without broken pieces of porcelain and a wet floor. Harmon told O'Kelly that if Dishman refused to leave the cell, they would have to use a taser on him.

When Harmon and O'Kelly reached Dishman's cell, they heard Dishman screaming and yelling. They saw broken porcelain and a wet cell. Defendants put forth evidence that Dishman had a piece of broken porcelain in his hand and was swearing, but Dishman disputes this. What is undisputed is that when O'Kelly told Dishman he needed to come out of the cell, Dishman said he wanted to talk to a lawyer. Dishman did not say he would not come out, but he stayed at the back of the cell when he was told to come out. O'Kelly activated the taser, which caused a red light to shine on Dishman. Harmon ordered O'Kelly to deploy the taser. O'Kelly tased Dishman once for between five and eight seconds. Dishman's pain was excruciating, and he pull the taser prongs out of his body to stop the electricity. O'Kelly told Dishman he had better come out of the cell and asked him whether he wanted more. Dishman said he would come out, and he was escorted to a safer cell.

Later, Dishman was charged with two additional offenses. Dishman was charged with misdemeanor battery to Officer Cleary and criminal damage to property in excess of $300. The second offense was a felony.

It is undisputed that defendants Haynie, Dimoff and Ohlson were not involved in Dishman's arrest and did not have any physical contact with him on October 12, 2005. The only involvement Dimoff and Haynie had with ...

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