United States District Court, N.D. Illinois, Eastern Division
For Donna Flournoy, Plaintiff: Jeffrey J. Neslund, LEAD ATTORNEY, Law Offices of Jeffrey J. Neslund, Chicago, IL; Michael David Robbins, Michael D. Robbins & Associates, Chicago, IL.
For City of Chicago, The, Daniel Colbenson, Chicago Police Officer, Star #16857, Patrick Quinn, Chicago Police Officer, Defendants: James Gus Sotos, LEAD ATTORNEY, Christina S. Gunn, John J. Timbo, The Sotos Law Firm, P.C., Itasca, IL.
OPINION AND ORDER
WILLIAM T. HART, UNITED STATES DISTRICT JUDGE.
Donna Flournoy claims damages for injury from the explosion of a Noise Flash Diversion Device, referred to by the parties as a " flash bang," while she was lying on an air-mattress on the floor of a room in an apartment raided by defendant police officers in order to execute a search warrant. The Second Amended Complaint, as amended, charges defendants Daniel Colbenson and Patrick Quinn, pursuant to 42 U.S.C. § 1983, with using excessive force in violation of the Fourth Amendment and engaging in intentional infliction of emotional distress in violation of Illinois law.
Plaintiff also alleges a state law indemnification claim against defendant City of Chicago. Plaintiff voluntarily dismissed all other originally named police officers and also dismissed a count charging assault and battery.
The court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. § § 1331 and 1367.
The case is now before the court on plaintiff's motion for summary judgment of excessive force liability on the part of defendants Colbenson and Quinn and on the motion of defendant Colbenson for summary judgment either because he did not personally use or deploy the flash-bang or because he is entitled to qualified immunity.
On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 274 n.1, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009); Malen v. MTD Prods., Inc., 628 F.3d 296, 303 (7th Cir. 2010); Stokes v. Bd. of Educ. of City of Chicago, 599 F.3d 617, 619 (7th Cir. 2010). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). The nonmovant, however, must make a showing sufficient to establish any essential element for which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324; Freundt v. Allied Tube & Conduit Corp., 2007 WL 4219417 *2 (N.D. Ill. Nov. 29, 2007); O'Brien v. Encotech Constr., 2004 WL 609798 *1 (N.D. Ill. March 23, 2004). Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Lorillard Tobacco Co. v. A & E Oil, Inc., 503 F.3d 588, 594-95 (7th Cir. 2007); Yasak v. Ret. Bd. of Policemen's Annuity & Benefit Fund of Chicago, 357 F.3d 677, 679 (7th Cir. 2004); Lampley v. Mitcheff, 2010 WL 4362826 *6 (N.D. Ind. Oct. 27, 2010). As the Seventh Circuit has summarized:
The party moving for summary judgment carries the initial burden of production to identify " those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation and internal quotation omitted)). The moving party may discharge this burden by " 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies this burden, the nonmovant must " set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). " The nonmovant must do more, however, than demonstrate some factual disagreement between the parties; the issue must be 'material.'" Logan, 96 F.3d at 978. " Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute." Id. (citation omitted). In determining whether the nonmovant has identified a " material" issue
of fact for trial, we are guided by the applicable substantive law; " [o]nly disputes that could affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir. 1996) (citation omitted). Furthermore, a factual dispute is " genuine" for summary judgment purposes only when there is " sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Hence, a " metaphysical doubt" regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and " the nonmovant fails to demonstrate a genuine issue for trial 'where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party . . . .'" Logan, 96 F.3d at 978 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
Outlaw, 259 F.3d at 837.
Defendant Colbenson contends that plaintiff's § 1983 claim also fails because he is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). There is a two-step analysis for assessing claims of qualified immunity. First, it must be determined whether the official's conduct violated a constitutional right. Second, it must be determined whether the right was clearly established at the time of the conduct alleged. It must be clear that the official's conduct was unlawful in the situation confronted before qualified ...