The opinion of the court was delivered by: Judge Feinerman
AMENDED MEMORANDUM OPINION AND ORDER
On June 1, 2007, Plaintiff Demetrius Hemphill, then a pretrial detainee in the Cook County Department of Corrections, had a physical altercation in his cell with Defendants Brendan Lombardi and Otis Nichols, both of whom were correctional officers. Nichols says that he hit Hemphill after Hemphill grabbed him and threw liquid into his face. Hemphill recalls things differently, saying that Nichols hit him repeatedly in the face after the two exchanged verbal insults. Lombardi says that when he sought to restrain Hemphill, Hemphill kicked him in the mouth, chipping his tooth; Hemphill says that Lombardi's tooth was chipped prior to the incident. Lombardi and Nichols placed Hemphill in handcuffs and took him to receive medical treatment. According to Hemphill, Nichols punched him in the head at least three times on the way to the infirmary, causing several lost teeth and injuries to his head, ribs, back, and legs.
In January 2008, Hemphill brought this excessive force suit under 42 U.S.C. § 1983 against Lombardi and Nichols. The case (08 C 157) was stayed pending resolution of state criminal proceedings against Hemphill arising out of the June 2007 altercation. Docs. 18-19, 23.
On May 15, 2009, after a bench trial, the state court convicted Hemphill of three counts of battery and sentenced him to several years in prison. The counts of conviction are as follows:
* Count 1: "[Hemphill], in committing a battery, intentionally or knowingly, without lawful justification caused bodily harm to Brendon Lombard[i], to wit: kicked Brendon Lobmard[i] about the body, knowing Brendon Lombard[i] to be a peace officer of a unit of local government to wit: an officer of the Cook County Department of Corrections, while Brendon Lombard[i] was engaged in the performance of his authorized duties as such an officer, in violation of Chapter 720 Act 5 Section 12-4(b)(18) of the Illinois Compiled Statutes of 1992 as Amended and contrary to the Statute and against the peace and dignity of the same People of the State of Illinois." Doc. 89-4 at 2 (emphasis added).
* Count 3: "[Hemphill], in committing a battery, intentionally or knowingly, without lawful justification made physical contact of an insulting or provoking nature to Brendon Lobmard[i], to wit: kicked Brendon Lobmard[i] about the body, knowing Brendon Lombard[i] to be an officer of a unit of local government, to wit: a peace officer of the Cook County Department of Corrections, while he was engaged in the performance of his authorized duties as such an officer, in violation of Chapter 720 Act 5 Section 12-4(b)(18) of the Illinois Compiled Statutes of 1992 as Amended and contrary to the Statute and against the peace and dignity of the same People of the State of Illinois." Id. at 4 (emphasis added).
* Count 4: "[Hemphill], in committing a battery, intentionally or knowingly, without lawful justificationmade physical contact of an insulting or provoking nature to Otis Nichols, to wit: threw a liquid substances on Otis Nichols, knowing Otis Nichols to be an employee of a unit of local government, to wit: a peace officer of the Cook County Department of Corrections, while he was engaged in the performance of his authorized duties as such an officer, in violation of Chapter 720 Act 5 Section 12-4(b)(18) of the Illinois Compiled Statutes of 1992 as Amended and contrary to the Statute and against the peace and dignity of the same People of the State of Illinois. Id. at 5 (emphasis added).
In finding Hemphill guilty, the trial court stated: "But the officers' testimony is that Officer Nichols had liquid about an inch deep in a cup thrown at him, and at that point the struggle began. . I have no doubt that there was bodily harm to Officer Lombardi and there was contact of an insulting and provoking nature to Officer Lombardi and Officer Nichols. Finding of guilty as to the three counts." Doc. 89-3 at 47-48; see also 89-5 at 9 (docket sheet reflecting convictions on Counts 1, 3, and 4).
With the criminal proceedings concluded, the stay was lifted. In the meantime, Hemphill brought another suit (08 C 902) alleging excessive force by different officers at a different time, and the two cases were consolidated. Doc. 38. (All record citations are to Case 08 C 157.) Hemphill filed an amended complaint combining his claims from both suits. Doc. 46. Count I, which encompasses the claims from Case 08 C 157, alleges that Nichols and Lombardi used excessive force against Hemphill on June 1, 2007. Count II, which encompasses the claims from Case 08 C 902, pertains to the other incident involving the other officers.
Lombardi and Nichols have moved for summary judgment on Count I. They assert three separate grounds: (1) the bar imposed by Heck v. Humphrey, 512 U.S. 477 (1994); (2) collateral estoppel; and (3) qualified immunity. Hemphill concedes he cannot prevail against Lombardi. Doc. 95 at 1, 3 n.1. For the following reasons, summary judgment is denied as to Nichols.
Heck precludes a § 1983 claim when "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence," unless the conviction or sentence has been set aside by appeal, collateral review, or pardon. 512 U.S. at 487; see also Gilbert v. Cook, 512 F.3d 899, 900 (7th Cir. 2008). Thus, to determine whether Heck bars Hemphill's excessive force claim, the court asks whether the claim, if successful, necessarily would imply the invalidity of any of his three battery convictions. Settled precedent is clear: Heck does not bar an excessive force claim if the plaintiff, putting aside any challenge to his conviction, proceeds on the theory that the degree of force applied was unreasonable under the circumstances.
The point is illustrated by Evans v. Poskon, 603 F.3d 362 (7th Cir. 2010). The § 1983 plaintiff in Evans alleged that he "was beaten mercilessly [by the defendant police officers] both before and after the officers gained custody of him." Id. at 363. The Seventh Circuit held that Heck barred the plaintiff from pursuing an excessive force claim premised on the theory "that he did not resist being taken into custody," for that theory would be "incompatible" with the plaintiff's resisting arrest conviction. Id. at 364. But the court held that Heck would not bar the excessive force claim if the plaintiff proceeded on the theories "that the police used excessive force to effect custody" and "that the police beat him severely even after reducing him to custody," for those theories would be "entirely consistent" with the conviction. Ibid. The Seventh Circuit allowed the plaintiff to pursue his excessive force claim because he was willing to proceed only on the permissible theories. Ibid.; see also Hardrick v. City of Bolingbrook, 522 F.3d 758, 764 (7th Cir. 2008) ("The fact that Hardrick struggled while being handcuffed at one point in time does not preclude the possibility that at another point in time, Hardrick was peaceably waiting to be handcuffed. Whether a fact-finder would find this scenario plausible is not for us to conclude, but in terms of Heck, it is not one that necessarily implies the invalidity of the conviction, and does not bar Hardrick's excessive force claim.") (internal quotation marks omitted); Gilbert, 512 F.3d at 901 ("Heck . do[es] not affect litigation about what happens after the crime is completed. Public officials who use force reasonably necessary to subdue an aggressor are not liable on the merits; but whether the force was reasonable is a question that may be litigated without transgressing Heck.").
Another illustrative case is Okoro v. Callaghan, 324 F.3d 488 (7th Cir. 2003). The plaintiff in Okoro had been convicted of selling drugs to an undercover officer; his civil suit alleged that he was trying to sell jewels, not drugs, and that the police stole his jewels. The Seventh Circuit held that the civil claim was incompatible with the conviction: "Although [the plaintiff] might have tried to argue that he offered both drugs and gems, and that the officers bought the former while stealing the latter-or that he sold drugs on one occasion while offering jewels on another-he insisted that his inventory was jewelry and ...