Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Blanche M. Manning than Assigned Judge
The defendants' motion for summary judgment  is granted in part and denied in part. Specifically, the defendants' motion for summary judgment is granted as to the excessive force claim (Count I), denied as to the failure to intervene claim (Count II), and denied without prejudice as to the state law claims (Counts III, V, and VI) (the complaint does not contain a Count IV). If the defendants wish to pursue summary judgment as to the state law claims, they must file a renewed motion for summary judgment by 10/18/2012. The response shall be filed by 11/1/2012 and the reply shall be filed by 11/8/2012. The parties are directed to use their existing Rule 56.1 materials in connection with any renewed motion.
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On May 18, 2010, Chicago police officers stopped a car being driven by Derrick Nicholson near 5740 South Winchester Avenue in Chicago. Plaintiff Denesio Richardson was in the back seat. According to Mr. Richardson, he offered no resistance but was dragged out of the car and after additional officers arrived at the scene, he was kicked in the head and brutally beaten. The court's use of the passive voice signals the main disputed issue of fact in this case: the identity of the officers involved in the alleged beating.
The parties agree that Mr. Richardson was a passenger in Mr. Nicholson's car on May 18, 2010. Mr. Richardson asserts that the seven officers named as defendants (Officers Ithal, Geisbush, Berry, Turner, Ward, Reyes, and Cavenaugh) were present at the scene when he was beaten and are the officers who placed him into custody. The contact card for Mr. Richardson, who was not arrested, states that Officers Ithal and Geisbush prepared it. The case incident report and arrest report for Mr. Nicholson, who was arrested, states that the seven defendant officers named in this case were involved in Mr. Nicholson's arrest. The defendant officers assert that they focused their attention on Mr. Nicholson and did not recall seeing anyone matching Mr. Richardson's description during the traffic stop.
Mr. Richardson's second amended complaint names the City of Chicago, the seven officers, and unknown officers as defendants and includes § 1983 claims of excessive force (Count I) and failure to intervene (Count II) plus state law claims of battery (Count III), indemnification (Count V), and respondeat superior (Count VI).*fn1 The defendants' motion for summary judgment as to all claims is before the court.
Standard for A Motion For Summary Judgment
Summary judgment is proper "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). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Valenti v. Qualex, Inc., 970 F.2d 363, 365 (7th Cir. 1992). A court should grant a motion for summary judgment only when the record shows that a reasonable jury could not find for the nonmoving party. Id.
Mr. Richardson concedes that he cannot identify the officers who allegedly used excessive force. See Plaintiff's Response (Dkt. 100) at 6. He then contends that his inability to identify the officers does not affect his failure to intervene claim because he "is not required to identify specifically who landed the blows so long as he can establish, as he does here, who was present for those blows." Id. at 8.
An officer who had "a realistic opportunity to step forward and prevent a fellow officer from violating the plaintiff's rights through excessive force but failed to do so" may be held liable under § 1983. Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000). Thus, the Seventh Circuit has held that failure to intervene can expose an officer to liability even if the plaintiff cannot identify the police officers who allegedly hit him. Id. ("If, as we are required to do at this point in the case, [the plaintiff's] allegations are taken as true, whichever officer was not directly responsible for the beating was idly ...