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Donald Johnson v. Officer Amann

April 11, 2011

DONALD JOHNSON, PLAINTIFF,
v.
OFFICER AMANN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Blanche M. Manning

(A-73676)

MEMORANDUM OPINION AND ORDER

Plaintiff, Donald Johnson, currently a detainee at Southwestern Correctional Center, filed suit, pro se, against Defendants Waukegan Police Officers Amann, Lamanna, Jurek, and Garcia alleging that they used excessive force in arresting him, denied him medical treatment, denied him due process of law when they took his personal property, and failed to protect him while in police custody based on Garcia's purported failure to intervene at the time of arrest. Presently before the Court is Defendants' motion for summary judgment. For the reasons stated in this order, Defendants' motion for summary judgment is granted in part and denied in part.

LEGAL STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether factual issues exist, the court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Weber v. Universities Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir. 2010). The court does not "judge the credibility of the witnesses, evaluate the weight of the evidence, or determine the truth of the matter. The only question is whether there is a genuine issue of fact." Gonzalez v. City of Elgin, 578 F.3d 526, 529 (7th Cir. 2009) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986)).

Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Sarver v. Experian Information Solutions, 390 F.3d 969, 970 (7th Cir. 2004) (citations omitted). "A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party." Egonmwan v. Cook County Sheriff's Dept., 602 F.3d 845, 849 (7th Cir. 2010) (quoting Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640-41 (7th Cir. 2008)).

FACTS

On April 23, 2009, at approximately 3:30 a.m., Plaintiff entered a closed Salvation Army facility on South Genesee Street in Waukegan, Illinois, that included a warehouse and a store. Plaintiff contends he walked through an open door to be the first to sign up for treatment when the facility opened in the morning while Officer Lamanna testified through written deposition that Plaintiff forcibly broke into the facility. Defendants assert that upon entering the facility, Plaintiff picked up a utility knife, a screwdriver, and a hammer. Plaintiff was subsequently observed on a security camera walking through either the store or the warehouse carrying a hammer.

When the Waukegan police arrived, they entered the facility. Plaintiff heard someone enter but did not know who it was. Defendants used a K-9 unit (a dog named Thunder) to effectuate the Plaintiff's arrest. Thunder was deployed a total of two times.

The events leading up to the deployment of Thunder are disputed by the parties. According to the Defendants, the first deployment came after they twice told Plaintiff to surrender but he refused to comply and fled into the warehouse. Thunder was released and directed to "find him." Thunder was later deployed a second time after he obtained a visual on Plaintiff.*fn1 As before, the officers made announcements for Plaintiff to surrender and again, Plaintiff failed to comply. Concerned for officer safety because Plaintiff had been seen earlier in the warehouse on camera carrying a hammer, Officer Lamanna deployed Thunder a second time, directing Thunder to "get him." Once the officers tried to take Plaintiff into custody, he resisted, pulling his arms from the officers and struggling with them. Plaintiff refused multiple commands to put his arms behind his back and struggled with the officers when they attempted to place handcuffs on his wrists.

According to the Plaintiff, he never heard any announcements by the police for him to surrender. He contends that as he was walking in the facility he came to an intersection where he observed the police officers and Thunder. Because he had nowhere to go, he stopped walking. As soon as the police officers observed Plaintiff, they ordered Thunder to "sic him." At that time, Plaintiff states that he had nothing in his hands, which were up in the air with the palms facing out.

Thunder grabbed Plaintiff's right forearm and pulled him to the ground. Officers Amann and Jurek grabbed Plaintiff's left wrist and arm and pushed him to the ground. Officer Amann had his knee pushing on Plaintiff's back and Officer Jurek pushed Plaintiff's head into the ground. Officer Garcia did not physically touch Plaintiff but was present during the events.

Once Plaintiff was handcuffed, the officers took Plaintiff's hat, gloves, and a box cutter out of his pocket. The officers took Plaintiff out of the warehouse and Officer Jurek patted Plaintiff down before placing him in the squad car. Officer Jurek took Plaintiff's wallet and cell phone from his pocket and left Plaintiff's watch on his wrist. Plaintiff's wallet and cell phone were taken as evidence, and other personal property was taken from Plaintiff incident to his arrest.

The officers took Plaintiff to the Waukegan jail. Officer Lamanna observed that Plaintiff had a bite mark from Thunder on his arm with puncture wounds that had broken Plaintiff's skin. Plaintiff also complained that his arm hurt and was swollen because the police had put on the handcuffs too tight. At the police station, police left one ...


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