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Luis Garcia v. City of Chicago

February 23, 2012


The opinion of the court was delivered by: Judge Feinerman


Plaintiff Luis Garcia brought this action under 42 U.S.C. § 1983 and Illinois law against the City of Chicago and Chicago police officers Nicholas Hertko, M.J. Brosnan, and M.G. Scaletta, alleging various wrongs related to his arrest and state court prosecution for assault. Defendants have moved for summary judgment on all of Garcia's claims. Defendants are granted summary judgment on the federal conspiracy, search and seizure, and excessive force claims, and on the state law intentional infliction of emotional distress claim. Summary judgment is granted to Scaletta and Brown, and is denied to Hertko, on the federal false imprisonment claim and the state law malicious prosecution claim.


The following facts are stated as favorably to Garcia as the record and Local Rule 56.1 permit. See Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 675-76 (7th Cir. 2007). On December 31, 2007, Garcia and Officer Hertko-who was off-duty and in plain clothes-were both driving on North Elston Avenue in Chicago. Doc. 82 at ¶¶ 5-6. According to Garcia, Hertko failed to stop at a stop sign while talking on his cell phone, causing Garcia to brake suddenly and swerve. Hertko then tried to force Garcia's vehicle off the road and began yelling, screaming, and swearing at him. Doc. 83-1 at 2-3. In response, Garcia asked Hertko whether he realized what he had done, explaining that he had nearly caused a crash. Id. at 3. Hertko followed Garcia and recorded his license plate number. Doc. 86 at ¶ 3. Hertko then entered the oncoming traffic lane and began screaming at Garcia, warning that he had "better watch his back because [Garcia] was going to pay now." Doc. 83-1 at 3-4.

Garcia stopped at a stop sign and Hertko pulled up behind him. Doc. 82 at ¶ 9. Garcia exited his vehicle and photographed Hertko's license plate. Id. at ¶¶ 12, 16; Doc. 86 at ¶ 4. Hertko then exited his vehicle, "rushed" Garcia, and began yelling at him. Doc. 86 at ¶ 5; Doc. 83-1 at 4-5. Hertko identified himself as a police officer and displayed his badge. Doc. 82 at ¶ 14. Hertko and Garcia were out of their vehicles for less than five minutes. Id. at ¶ 15; Doc. 83-1 at 6.

After the incident, Hertko drove to the Sixteenth District Police Station, where he was stationed, and filed a complaint. Doc. 82 at ¶ 17. Officer Samuel Greco, a non-party, took the complaint and created a general offense case report. Id. at ¶ 19. The report said:

Offender pulled up next to victim and yelled, 'You cut me off mother fucker, fuck you, I'm going to kick your ass.' ... Offender jumped out of his auto and approached victim's auto with his right hand in his right pocket. Victim, fearing for his safety, announced his office and displayed his police star and identification.

Id. at ¶ 20; Doc. 73-3 at 2-3. The report included a physical description of Garcia and identified his license plate number. Doc. 82 at ¶ 22; Doc. 73-3 at 2-3. The report was signed by Greco and approved by the desk sergeant. Doc. 82 at ¶ 21. When he reported for duty that evening, Hertko informed Sergeant Scaletta, his tactical team sergeant, of the incident with Garcia. Id. at ¶¶ 23, 33, 35.

On January 2, 2008, after assigning himself to Hertko's complaint, Scaletta reviewed the case report. Id. at ¶¶ 37-38. Scaletta went to the address associated with the license plate number identified in the report; upon arriving, he saw a vehicle with that plate number, went to the front door, and rang the door bell. Id. at ¶¶ 40, 47; Doc. 83-1 at 9. Garcia answered and identified himself as the vehicle's owner. Doc. 82 at ¶¶ 48-49. Garcia also acknowledged that he was involved in an incident on December 31. Doc. 83-1 at 9. At some point Scaletta informed Garcia that he was under arrest and called for back-up assistance. Doc. 77 at ¶ 53; Doc. 82 at ¶ 52. Officer Brosnan arrived to assist Scaletta. Doc. 82 at ¶ 56. Scaletta told Brosnan to arrest Garcia, at which point Brosnan and his partner placed Garcia in handcuffs. Id. at ¶¶ 59-60. The handcuffs were "super" uncomfortable, causing Garcia pain and redness, and Garcia complained to the officers that the cuffs were hurting him and cutting off his circulation. Id. at ¶¶ 40, 61; Doc. 83-1 at 11-12; Doc. 86 at ¶ 40. Garcia did not seek treatment for injuries allegedly sustained during the arrest. Doc. 82 at ¶ 79.

Garcia was transported to the Sixteenth District Police Station, where Scaletta questioned him. Id. at ¶ 66; Doc. 83-1 at 12-13. Garcia was released at 9:05 a.m. on January 3, 2008. Doc. 82 at ¶ 69. Prior to the release, Hertko signed a misdemeanor complaint charging Garcia with simple assault in violation of 720 ILCS 5/12-1(a). Id. at ¶¶ 70-71; Doc. 73-9 at 2. The complaint stated that Garcia told Hertko "I'm going to kick your ass" and that Hertko was placed in reasonable apprehension of receiving a battery. Doc. 82 at ¶ 72; Doc. 73-9 at 2.

On September 29, 2008, the criminal case against Garcia was set for a rule to show cause hearing in the Circuit Court of Cook County. Doc 83-22 at 1, 3. Despite having notice of the hearing, Hertko did not appear. Doc. 82 at ¶ 76; Doc. 86 at ¶ 33. Hertko had missed the previous court date as well. Doc. 86 at ¶ 35. The state court denied the prosecution's motion for a continuance and, on the prosecutor's motion, the charges against Garcia were dismissed with leave to reinstate ("SOL"). Doc. 82 at ¶¶ 77-78. In granting the motion, the court stated: "Motion State SOL. Defendant demands trial. Your case is dismissed." Doc. 83-22 at 8.

Garcia filed this action on December 5, 2009. The amended complaint brings § 1983 claims for conspiracy to deprive Garcia of his constitutional rights, illegal search and seizure, false imprisonment, and excessive force, and state law claims for malicious prosecution and intentional infliction of emotional distress. Doc. 6. The amended complaint also brings a state law indemnification claim against the City, seeking a declaration that it is liable for any judgment Garcia obtains against the individual defendants.


I. Section 1983 Conspiracy Claim

Garcia's § 1983 conspiracy claim alleges that Defendants conspired to falsely arrest him. To survive summary judgment, a conspiracy plaintiff must adduce evidence showing: "(1) [the existence of] an express or implied agreement among defendants to deprive plaintiff of his . constitutional rights and (2) actual deprivations of those rights in the form of overt acts in furtherance of the agreement." Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988); see also Horan v. City of Chi., 2010 WL 2836729, at *7 (N.D. Ill. July 16, 2010); Wells v. City of Chi., 2009 WL 528307, at *7 (N.D. Ill. Feb. 25, 2009). It is necessary to discuss only the first element-an express or implied agreement among Defendants.

A plaintiff "may demonstrate that Defendants reached an agreement by establishing that Defendants [understood] the general objectives of the scheme, accept[ed] them, and agree[d], either explicitly or implicitly, to do [their] part to further them." Kelly v. Chambers, 2009 WL 765267, at *3 (N.D. Ill. Mar. 23, 2009) (alterations in original) (quoting Jones v. City of Chi., 856 F.2d 985, 992 (7th Cir. 1988)) (internal quotation marks omitted). If the alleged agreement was not overt, the plaintiff must point to acts that are "sufficient to raise the inference of mutual understanding (i.e., the acts performed by the members of a conspiracy are unlikely to have been undertaken without an agreement)." Amundsen v. Chi. Park Dist., 218 F.3d 712, 718 (7th Cir. 2000) (quoting Kunik v. Racine Cnty., Wis., 946 F.2d 1574, 1580-81 (7th Cir. 1991)) (internal quotation marks omitted). "Although a conspiracy certainly may be established by circumstantial evidence, . such evidence cannot be speculative," Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003), and "a conspiracy claim cannot survive summary judgment if the allegations are vague, conclusionary and include no overt acts reasonably related to the promotion of the alleged conspiracy." Amundsen, 218 F.3d at 718 (internal quotation marks omitted). Pertinent here, "the existence of numerous phone calls between alleged conspirators, standing alone, merely proves that [the individuals] remained in contact . . To assert that the calls are evidence of a conspiracy is simply speculation." Williams, 342 F.3d at 785 (alterations in original) (quoting Goetzke v. Ferro Corp., 280 F.3d 766, 778 (7th Cir. 2002)) (internal quotation marks omitted).

Garcia's argument that Defendants agreed to falsely arrest him does not rise above a speculative level. The heart of Garcia's claim lies in the "numerous phone communications" between Scaletta and Hertko that "occurred both immediately prior to and immediately after the arrest." Doc. 81 at 7. The record shows that Scaletta and Hertko communicated via telephone before and after the arrest. Doc. 86 at ¶¶ 21-22. The phone calls themselves, however, are not sufficient evidence of an agreement or conspiracy. See Williams, 342 F.3d at 785. And Garcia's attempts to mine the record for additional evidence that would permit a reasonable jury to find an agreement fail to persuade.

First, Garcia argues an agreement and conspiracy can be shown from the fact that Hertko and Scaletta falsely denied communicating with each other before and after the arrest. Doc. 81 at 7. The argument's premise, of course, is that Hertko and Scaletta actually denied communicating with each other at those times. To support this premise, Garcia's brief cites only ¶ 21 of his Local Rule 56.1(b)(3)(C) response. Ibid. That paragraph, however, does not indicate that Hertko and Scaletta denied communicating with each other. Instead, it states only that Scaletta telephoned Hertko before the arrest. Doc. 83 at ¶ 21 ("On January 2, 20[08], Defendant Scaletta telephoned Defendant Hertko at 8:58 p.m. and 9:06 p.m., immediately prior to the arrest of Plaintiff Garcia."). There is nothing about a denial by either Hertko or Scaletta.

Although the court need not look beyond the specific Local Rule 56.1 material cited in Garcia's brief for the proposition that Hertko and Scaletta denied communicating, the court will indulge Garcia and do so. The one paragraph in Garcia's Local Rule 56.1(b)(3)(C) response that refers to the alleged denial is ¶ 17, which asserts: "Defendant Hertko denies speaking to any officers on the phone." Doc. 83 at ¶ 17. To support this assertion, Garcia cites the following passages from Hertko's deposition:

Q. From the time that the incident began with Mr. Garcia and the time that you were at the police station, did you make any phone ...

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