The opinion of the court was delivered by: Michael P. McCUSKEY U.S. District Judge
Monday, 17 December, 2012 01:23:20 PM Clerk, U.S. District Court, ILCD
This case is before the court for ruling on the Motion for Summary Judgment (#78) filed by Defendants, Gerald W. Suelter, Timothy L. Wight, Jeremy J. Layman, James A. Krider, Andrew Smith, and Conor Wowra, and the Motion for Summary Judgment (#79) filed by Defendant, the City of Peoria (City). This court has carefully considered the arguments of the parties and the exhibits filed. This court notes that Plaintiff, Bryce R. Scott, did not file a response to the City's Motion for Summary Judgment. Following this court's careful and thorough consideration, the City's Motion for Summary Judgment (#79) is GRANTED and Defendants' Motion for Summary Judgment (#78) is GRANTED in part and DENIED in part.
On May 3, 2008, Defendants Suelter, Wight, Layman, Krider, Smith and Wowra were on-duty police officers employed by the City and were acting under color of law. In the early morning hours of that day, Plaintiff, who is African American, returned from visiting relatives in Rock Island and drove to the house of his girlfriend, Maria Russell, at 2140 N. Maryland in Peoria. Plaintiff parked in front of the house, roughly in the middle of the block, facing southbound. Plaintiff attempted to call Maria's house phone and cell phone several times, but she did not answer. Anita Smith, Maria's mother, also lived at the house. She contacted police dispatch and reported that they were having problems with her daughter's boyfriend, who was parked outside.
Layman heard the dispatch and volunteered to respond because he was nearby. Plaintiff saw a police car in front of him on a cross street pull into the intersection and then back up. Plaintiff then saw a second police car in his rear-view mirror approaching him from behind. Layman pulled up behind Plaintiff's car. The first squad car pulled up right next to Plaintiff's car and turned its spotlight on, illuminating Plaintiff's car. Plaintiff held up his phone and said, "I'm on the phone." The officer who spotlighted Plaintiff's car then got out of his squad car and was holding a billy club. Plaintiff immediately took off and started to drive away.
Layman activated his emergency lights and siren and followed Plaintiff's SUV. Layman's squad car recorded video of the events from near the beginning of the pursuit until the conclusion of the altercation with Plaintiff, beginning at approximately 3:33 a.m. During the pursuit, Plaintiff ran two stop signs and was driving well in excess of the speed limit in a residential area. Plaintiff admitted during his deposition that he was "going fast." Plaintiff testified that he "was fleeing a little from the police" and was trying to get away. During the pursuit, Layman began to back off and Lieutenant Whitledge directed officers to terminate the pursuit. Just after 3:34 a.m., Plaintiff stopped his SUV when he reached a lighted area near Woodruff High School. Plaintiff testified that he decided to stop at that point because "[i]t was lit up in that area."
Layman announced over the radio that the suspect had stopped. Layman stopped his squad car on the driver's side of Plaintiff's vehicle with the squad car turned slightly toward Plaintiff's vehicle. Layman got out of his squad car, drew his service weapon and instructed Plaintiff to put his hands out of the car, which Plaintiff did. Layman then instructed Plaintiff to turn the vehicle off, which Plaintiff did. Wight arrived and parked his squad car behind Plaintiff's SUV. Wight approached the driver's side of Plaintiff's SUV, walking between Layman's squad car and Plaintiff's vehicle. Wight sprayed OC spray into the driver's side window of Plaintiff's SUV. On the video, at the time marked 03:34:34, the mist from the OC spray going past the driver's side of Plaintiff's SUV is visible. Plaintiff testified that his eyes were distorted from the spray and he could not see.
Wowra arrived after Wight, parked on the passenger side of Plaintiff's SUV, walked around the back of Plaintiff's SUV, and approached between the two vehicles. At approximately 3:34:40, officers grabbed hold of Plaintiff's hands and held them outside the car. Layman had holstered his weapon and grabbed Plaintiff's arm. Krider and Suelter arrived after Wowra. The video showed that, at 3:34:49, Suelter approached after coming around the front of the car and had his taser out. At 3:34:53, the officers opened the door of the SUV and passed Plaintiff's hands through the window. Krider then came around the front of the SUV. At 3:34:57, Plaintiff came out of the SUV. Wight and Wowra then held his arms. Layman stepped back to provide cover to the other officers. Layman did not have any further physical contact with Plaintiff and was not involved in handcuffing him.
Wight and Wowra took Plaintiff and placed him face down on the ground. Wight was on Plaintiff's right and Wowra was on his left. Plaintiff does not recall what part of his body touched the ground first. After he was taken to the ground, Plaintiff is no longer visible on the video taken by Layman's squad car. For purposes of Defendants' Motion for Summary Judgment, it is undisputed that Plaintiff did not resist and did not struggle with the police. The officers and Plaintiff were on the ground in a very confined area between Plaintiff's SUV and Layman's squad car. Suelter approached Plaintiff with his taser and reached toward Plaintiff. At 3:35:03, Plaintiff yelled out. At 3:35:05, Suelter stood up and the taser was visible in his hand and not in contact with Plaintiff. The taser was in contact with Plaintiff for no more than three seconds. The first application of the taser was a "drive stun" to Plaintiff's calf.*fn2
At 3:35:09, Suelter appeared to reach in a second time with the taser and withdraws it into view of the camera again by 3:35:11, so the taser was in contact with Plaintiff for no more than two seconds. The second use of the taser was a "drive stun" to Plaintiff's lower back. Plaintiff was tased three times by Suelter, the third time was a "drive stun" to Plaintiff's shoulder blade. During this time, Smith arrived from the opposite direction and parked toward the front of Plaintiff's SUV. At 3:35:15, Krider knelt down on Plaintiff's leg, Layman put his hand on his gun, and Smith was approaching. It is undisputed that Krider sat or knelt on one or both of Plaintiff's legs. Krider did not take any action to subdue Plaintiff other than sitting on his leg.
While Plaintiff was on the ground, Wight punched Plaintiff in the face. Wight testified that Plaintiff grabbed his inner thigh and squeezed and he punched Plaintiff to make him let go. Plaintiff testified that the officer who struck him (Wight) said "I'm going to teach you niggers about running from us." Smith saw Plaintiff on his stomach with his feet toward the front of his car. At 3:35:17, Smith began delivering foot strikes to Plaintiff's legs. Plaintiff testified that he felt someone "stomp" on his legs. The video shows Smith stomping on Plaintiff's legs at least 20 times. At 3:35:48, the video was turned off. The entire incident from the time the video came on during the chase until the video was off was approximately two and one half minutes. Smith asked for a Sergeant to come to the scene because a taser was used. Plaintiff was handcuffed and stood up by Wight and Wowra. Once the officers stood Plaintiff up, there was no further use of force.
Plaintiff testified that, after he was stood up, he asked the officers, "Why you all whoop me like this?" and one of the officers responded that, "All the ass whippin' we just gave you, nigger, ain't nothing like the ass whippin's we give the niggers on the south end." Photographs were taken of Plaintiff which fairly and accurately depict his condition after the incident. As a result of the altercation with the officers, Plaintiff had a cut above his eye, taser marks, several scrapes, and a stinging sensation in his eyes from the OC spray. The scrapes were on Plaintiff's legs and right shoulder.
Plaintiff testified that one of the officers threw water in his face. Wight testified that he poured water from a water bottle on Plaintiff's face to rinse off the pepper spray. An ambulance was called. Plaintiff was taken to the ambulance, where his face was wiped off. The cut above his eye did not require any stitches and, in fact, had stopped bleeding before the ambulance arrived. Plaintiff received no treatment for any physical injuries and did not ask to be taken to the hospital from the scene. At the jail, Plaintiff was "cleaned up," but was not given any other medical treatment. Plaintiff did not fill out any sick call requests at the jail.
On January 13, 2009, Plaintiff filed a complaint against Defendants in the circuit court of Peoria County. Plaintiff alleged only state law causes of action in his initial complaint and first and second amended complaints. On April 28, 2009, Plaintiff filed a Third Amended Complaint, which included federal claims. On May 27, 2009, Defendants filed a Notice of Removal (#1) and removed the case to the Central District of Illinois, Peoria Division. Plaintiff's Third Amended ...