The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
Jerome McNeal Sr., his wife, Donetta McNeal, and their minor son, Jamari McNeal, are suing Chicago Police Officers Anthony Bruno, Fredi Barroso, Andrew Janik, David Sharp, and Eugene Sledge under 42 U.S.C. § 1983 and various state law theories for alleged violations of their constitutional rights that occurred during an arrest and search at the McNeals' home on March 17, 2008. Three of the defendants, Officers Janik, Sledge, and Sharp, have moved for summary judgment.
The Standard For Summary Judgment Under Rule 56 Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is material if it is critical to the determination of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Spivey v. Adaptive Marketing LLC, 622 F.3d 816, 822 (7th Cir. 2010). A genuine issue of material fact exists, precluding summary judgment, if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Once a properly supported motion for summary judgment is made, the opposing party must respond by setting forth specific facts showing that there is a genuine factual issue for trial. Anderson, 477 U.S. at 255. In considering a motion for summary judgment, the nonmoving party's evidence "is to be believed, and all justifiable inferences are to be drawn in [that party's] favor." Hunt v. Cromartie, 526 U.S. 541, 552 (1999). But the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts. ... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue' for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Local Rule 56.1 For summary judgment purposes, the relevant background facts are derived from the parties' Local Rule 56.1 submissions. The rule requires a party seeking summary judgment to include with its motion "a statement of material facts as to which the ... party contends there is no genuine issue and that entitle the...party to a judgment as a matter of law." Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008). Each paragraph must refer to the "affidavits, parts of the record, and other supporting materials" that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005). The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both "a response to each numbered paragraph in the moving party's statement," Local Rule 56.1(b)(3)(B), Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); Bay Area Business Council, Inc., 423 F.3d at 633, and a separate statement "consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment." Local Rule 56.1(b) (3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each asserted fact, must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); Bay Area Business Council, Inc., 423 F.3d at 633.
If the moving party fails to comply with the rule, the motion can be denied without further consideration. Local Rule 56.1(a)(3); Smith v. Lamz, 321 F.3d 680, 682 n. 1 (7th Cir. 2003). If the responding parting fails to comply, its additional facts may be ignored, and the properly supported facts asserted in the moving party's submission are deemed admitted. Local Rule 56.1(b)(3)(C); Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008); Cracco, 559 F.3d at 632; Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). District courts are "'entitled to expect strict compliance'" with Rule 56.1, and they do not abuse their discretion when they opt to disregard facts presented in a manner that does follow the rule's instructions. Cracco, 559 F.3d at 632; Ciomber, 527 F.3d at 643; Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004). The court is not required to hunt for evidence in the record that supports a party's case if a party fails to point it out. Roger Whitmore's Automotive Services, Inc. v. Lake County, 424 F.3d 659, 664 n.2 (7th Cir. 2005); Bay Area Business Council, 423 F.3d at 633 (court properly disregarded affidavits not referred to in 56.1 submission).
Factual Background On March 17, 2008, Officers Bruno, Barroso, and Janik were on a routine patrol in the area of 7007 S. Clyde, Chicago, Illinois, gathering information regarding the robbery of an off-duty police officer that had occurred the week prior. (Defendants' Local Rule 56.1 Statement of Facts ("Defs. St.") ¶ 4, 5; Plaintiffs' Response to Defs. St. ("Pls. Rsp.") ¶ 4, 5). The officers observed an individual, later identified as Damien Stewart, and two others on the back ground-floor porch of 7007 S. Clyde, smoking what the officers believed to be marijuana. (Defs. St. ¶ 6; Pls. Rsp. ¶ 6).*fn1
From here on out, the facts are mostly in dispute. We begin with the officers' version of what happened: As the officers approached in order to question the individuals on the back porch, Stewart fled, running up an outdoor staircase leading to the porch of the plaintiffs' third-floor apartment. (Defs. St. ¶ 7-8). Officers Bruno and Barroso pursued Stewart, while Officer Janik drove the squad car around to the front of the house in case Stewart attempted to make an escape through the front. (Defs. St. ¶ 8-9).
Stewart entered the plaintiffs' apartment through the porch door, followed closely by Officer Barroso. (Defs. St. ¶ 10). Officer Barroso caught up to Mr. Stewart in the kitchen of the apartment and took him into custody. (Defs. St. ¶ 11). Jerome McNeal Sr. was on his computer in another room of the apartment at the time. (Defendants' Response to Plaintiffs' Statement of Additional Facts ("Defs. Rsp.") ¶ 3). Hearing noises in the kitchen, Mr. McNeal stepped out of the computer room and walked past his 14 year old son, Jamari, who was on the couch in the living room taking asthma medication through a nebulizer. (Defs. Rsp. ¶ 4).
By this time, Officer Bruno, who was lagging slightly behind Officer Barroso and Mr. Stewart, had reached the third-floor porch and attempted to enter the apartment. (Defs. St. ¶ 13). Mr. McNeal, who had entered the kitchen, now stood in the doorway to the apartment, blocking Officer Bruno's entry. (Defs. St. ¶ 13-14). After being verbally ordered to move, Mr. McNeal continued to stand in the doorway in a manner that prevented Officer Bruno from entering. (Defs. St. ¶ 15). Officer Bruno then attempted to place Mr. McNeal under arrest for obstruction. (Defs. St. ¶ 15).
According to the officers, Mr. McNeal resisted arrest, requiring Officer Bruno to use an "emergency takedown and cuffing technique." (Defs. St. ¶ 16). As Mr. McNeal continued to resist, both officers fell to the floor and began to "tussle" with him. (Defs. St. ¶ 16-17). While on the ground, the defendants say that Mr. McNeal attempted to punch and kick Officer Bruno before the officers were finally able to handcuff him. (Defs. St. ¶ 18, 26). At some point during the struggle, Donetta McNeal and Jamari had entered the kitchen, and the officers had instructed them to "step back out onto the porch for officer safety." (Defs. Ex. 3 -- Bruno Dep. at 44).
In the meantime, having seen no one escape out the front of the house, Officer Janik drove back to the alley and went up to the apartment. (Defs. St. ¶ 9). When he reached the plaintiffs' back porch, Ms. McNeal and Jamari were standing outside. (Defs. Ex. 2 -- Janik Dep. at 23). According to the officers, neither Ms. McNeal nor Jamari were ever handcuffed. (Defs. St. ¶ 49).
At around the same time, Officers David Sharp and Eugene Sledge, who had been called in to assist the other officers, arrived in a separate squad car and proceeded up to the third-floor. By the time Janik, Sharp, and Sledge entered the apartment, both Stewart and Mr. McNeal were already handcuffed and in custody. (Defs. St. ¶ 27-28). Officer Sharp was in the kitchen for only a few minutes, and Officer Sledge remained in the doorway providing security. (Defs. St. ¶ 29).
While in custody in the kitchen, Mr. McNeal, in response to a question whether he was on "papers" (i.e. parole), told Officers Bruno and Barroso that he was. (Defs. St. ¶30; Ex. 3 -- Bruno Dep. at 52). In response to further questioning, whether he had anything illegal in his apartment, he said that "all I got is a banger because them Four Corners keep fucking with my son." (Defs. St. ¶ 32; Ex. 3 -- Bruno Dep. at 54). Officer Bruno and/or Officer Barroso had already "searched the immediate area" and found nothing. There then followed a search by Barroso that produced a gun either from between two mattresses in the bedroom, or between the mattress and the box spring, and Mr. McNeal acknowledged that the gun was his. (Defs. St. ¶ 33; Ex. 3 -- Bruno Dep. at 54-55). Mr. McNeal made no complaint about any injuries he may have suffered from the incident. (Defs. St. ¶ 38). After the gun was recovered, Mr. Stewart and Mr. McNeal were taken down and placed into squad cars and transported to the police station. (Defs. Ex. 3 -- Bruno Dep. at 57).
The plaintiffs have a starkly different version of events, which begins with Mr. McNeal stepping out of the computer room after having heard noises in the kitchen as a result of the scuffle between Officer Barroso and Stewart. (Plaintiffs' Statement of Additional Facts ("Pls. St.") ¶ 3). According to the plaintiffs, when Mr. McNeal entered the kitchen, he observed Officer Barroso taking Stewart outside the apartment onto the back porch. (Pls. St. ¶ 4). After handcuffing Stewart to the porch banister, Officer Barroso then attempted to re-enter the apartment. (Pls. St. ¶ 7; Pls. Rsp. ¶ 13). Mr. McNeal asked if Officer Barroso had a search warrant and why he was trying to come back into the apartment. (Pls. St. ¶ 10). Ms. McNeal, who was in her bedroom at the time, joined her husband at the porch door to ask the police what was going on. (Pls. St. ¶ 5). Mr. McNeal testified that although he stood in the doorway, he was not actually physically "blocking" the officers' re-entry in any way. (Pls. St. ¶ 9; Defs. Ex. 6 -- McNeal Dep. at 40-42).
Officer Barroso then pulled Mr. McNeal out onto the porch, throwing him down and stomping on his right knee. (Pls. St. ¶ 11). This caused Mr. McNeal to scream out in pain, although he "did not formally complain of any injury" to the officers afterwards. (Pls. Rsp. ¶ 38). Officer Bruno then got on top of Mr. McNeal, who said he was struck in the head by an unknown blunt instrument. (Pls. St. ¶ 11). Mr. McNeal said that he did not resist arrest. (Pls. Rsp. ¶ 16). The officers then cuffed Mr. McNeal to the porch banister and ordered Ms. McNeal and Jamari to come out onto the porch. (Pls. St. ¶¶ 13-14). Jamari, who said he had observed the incident from the living room couch while continuing to take his asthma medication through a nebulizer, was told by Officer Barroso to stop using the machine and to stand on the porch. (Pls. St. ¶ 15).
Officer Barroso then handcuffed Jamari to Ms. McNeal on the porch. (Pls. St. ¶ 17). Because Jamari was sick and was wearing only shorts, a white tank top and socks, Ms. McNeal asked whether he could get some clothes or stay inside. (Pls. St. ¶ 18). That request was denied.
In response to Ms. McNeal's threat to report the officers to the Office of Professional Standards ("OPS"), Officer Barroso told her that if she did not "shut the fuck up," he would "drag her ass to jail." (Pls. St. ¶ 20).
The plaintiffs' Rule 56 statement does not include or implicate Officers Janik, Sharp, and Sledge in these events. Yet, without that participation, the plaintiffs' claims against them stand on a very different footing than if they were participants or observed the events but took no action. What is discernable from the plaintiffs' testimony is that Officers Janik, Sharp, and Sledge arrived shortly after Ms. McNeal and Jamari had been ordered out onto the porch and, thus, were not present at the time of the encounter of Officers Barroso and Bruno with Mr. McNeal. (Defs. Ex. 5 -- Jamari Dep. at 44-46, 49; Defs. Ex. 6 -- McNeal Dep. at 46, 55-56; Defs. Ex. 8 -- Donetta Dep. at 35, 47-48). Moreover, Officer Janik's testimony is that he arrived on the back porch after Ms. McNeal and Jamari were already standing outside, (Defs. Ex. 2 -- Janik Dep. at 23), and that he was not present at the apartment when Mr. McNeal was taken down to the ground and handcuffed. (Defs. Ex. 2 -- Janik Dep. at 30). There is no testimony from the plaintiffs that he arrived any earlier than that. Officers Sharp and Sledge arrived slightly later -- at around the same time Officer Barroso brought Mr. McNeal back into the apartment for questioning, while Ms. McNeal and Jamari remained handcuffed on the porch. (Defs. Ex. 8 -- Donetta Dep. at 47-48; Pls. St. ¶ 21).
While back in the apartment, Mr. McNeal denies making any statements indicating that he was "on papers" or that he kept a gun in the house. (Pls. St. ¶ 24-26; Defs. Ex. 6 -- McNeal Dep. at 62-64). Nevertheless, the apartment was searched over a 15-minute time span (Pls. St. ¶ 21); it is conceded that none of the plaintiffs actually observed what went on during the search. (Pls. Rsp. ¶ 35; Defs. Ex. 6 -- McNeal Dep. at 60; Defs. Ex. 5 -- Jamari Dep. at 55).
At the completion of the search, Mr. McNeal was taken to the police station and charged with felony unlawful use of a weapon. (Defs. Ex. 6 -- McNeal Dep. at 66-69; Complaint ¶ 15). Those charges were eventually dismissed on May 28, 2008, (Complaint ¶ 17), and the plaintiffs filed this suit, alleging false arrest/unlawful detention, conspiracy, unlawful search, failure to intervene, failure to provide medical attention for Mr. McNeal's claimed injuries to his head and left knee, and state law claims for intentional infliction of emotional distress, assault and battery, and indemnification.
ANALYSIS In their reply brief, the defendants state that the motion for summary judgment was intended to relate only to Officers Janik, Sharp, and Sledge. (Defs. Reply at 2). Therefore, our analysis addresses solely the issues as they relate to them.*fn2
The False Arrest Claim The plaintiffs' first claim alleges that the officers violated their rights under the Fourth Amendment by arresting and detaining them without a warrant or probable cause. While the parties may have dissimilar versions of what transpired in this case, the evidence is undisputed that Officers Bruno and Barroso were the only officers present at the apartment during the events leading to and during the "takedown" and arrest of Mr. McNeal. By the time Officers Janik, Sharp, and Sledge arrived, Mr. McNeal was already in custody, and Donetta and Jamari were already standing out on the porch. (Defs. Ex. 8 -- Donetta Dep. at 35, 47-48; Defs. Ex. 2 -- Janik Dep. at 23; Pls. Rsp. ¶ 28).
The absence of these three officers from the scene is significant, since redress for alleged constitutional violations under § 1983 is "based on personal liability and predicated upon fault." Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996). See also Van den Bosch v. Raemisch, 658 F.3d 778, 787 (7th Cir. 2011). Hence, the charged individual must have personally "caused or participated in [the] alleged constitutional deprivation." Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). See also Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). This is not to say that an officer needs to have actually physically placed the person under arrest to be liable, but simply that he "under[took] some action prior to, or perhaps at the time of [the arresting officer's] order to arrest.in order to have 'caused' or 'participated' in it." Jenkins v. Keating, 147 F.3d 577, 583-84 (7th Cir. 1998).
Although the point isn't elucidated at all in their brief, the plaintiffs' response to the Defendants' Statement of Facts appears to raise an issue as to Officer Janik's role in the detention of the plaintiffs. (Pls. Rsp. ¶ 27). The plaintiffs have not made any argument that Officers Sharp or Sledge were physically present at the scene or that they caused or participated in the alleged misconduct relating to the arrest and detention, so we assume that their lack of involvement at this point of the encounter is conceded. And even if ...