United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Plaintiff Nancy Lewis has sued the City of Chicago and Chicago Police Officer Steven Leveille for violations of state and federal law stemming from an incident on July 3, 2011. Count I is brought pursuant to 42 U.S.C. § 1983 and alleges excessive force. Plaintiff also alleges state law violations for battery, indemnification, and respondeat superior (Counts II-IV). Defendants have moved for summary judgment on all counts. For the reasons set forth below, the Court grants Defendants' motion for summary judgment  on Count I and dismisses without prejudice Plaintiff's state law claims of battery, indemnification, and respondeat superior (Counts II-IV).
I. Factual Background
On the morning of July 3, 2011, Plaintiff Nancy Lewis received a phone call from her fiance (now husband), Anthony Byers, who asked her to come outside and retrieve his personal belongings because he was being arrested. After the call, Plaintiff left Byers' apartment and approached the scene of his arrest, which was in an alley across the street from 7001 S. Throop Street. Byers already had been arrested and handcuffed when Plaintiff arrived, and Plaintiff testified that the officers were attempting to place him in the squad car as she approached. According to the officers, Byers had been uncooperative with Officer Leveille as he was being put into the vehicle.
Once she arrived, Plaintiff claims that Officer Leveille said, "[g]et the fuck away from the car." Officer Mitchell then told Plaintiff that she could get Byers's belongings. By this time, Officer Leveille had finished placing Byers in the back of the squad car and shut the door. According to Lewis, she asked for clarification as to which officer's orders to follow and, having heard nothing in response, decided to follow Officer Mitchell by bending over and attempting to retrieve Byers' belongings.
As Plaintiff was bending down, Officer Leveille opened the front driver's side door of the police vehicle that he was driving that day. Plaintiff claims that, when the door opened, it struck her on the portion of her left hand between her pinkie and wrist. Plaintiff believes that Officer Leveille intended to hit her with the door because his face was red. To her, Officer Leveille appeared frustrated because he and Officer Mitchell had told Plaintiff to do different things and Plaintiff chose to obey Officer Mitchell. Plaintiff doesn't remember if the contact with the car door was enough to make her arm move; however, she testified that Officer Leveille said, "Oh my God, I guess I broke her damn arm." After the driver's side front door of the vehicle allegedly struck Plaintiff, Officer Leveille got into the driver's seat, closed the door, and then drove away. Plaintiff then retrieved Byers' items and walked away. Plaintiff admits that Officer Leveille never personally struck Plaintiff with his hand or feet, nor did any part of Officer Leveille's body come into contact with Plaintiff's body. In addition, Plaintiff was neither arrested nor told that she was not free to leave. Finally, Officer Leveille did not instruct Plaintiff to come towards the vehicle, but rather told her to get away.
II. Standard of Review
Summary judgment is proper 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). Factual disputes that are irrelevant to the outcome of the suit "will not be counted." Palmer v. Marion County, 327 F.3d 588, 592 (7th Cir. 2003) (quotation marks and citations omitted). In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted).
A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the "mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252.
A. Plaintiff's Fourth and Fourteenth Amendment Excessive Force Claim
Plaintiff brings a § 1983 claim against Defendant Officer Leveille for excessive force. To prove a claim under § 1983 against the officers, Plaintiff must show that a person acting under color of state law deprived her of a right, privilege, or immunity secured either by the Constitution or federal law. See, e.g. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982). Defendant Leveille does not dispute that he was acting under color of state law at the time of the incident.
Claims of excessive force generally are analyzed under the Fourth Amendment's reasonable seizure standard. See Graham v. Connor, 490 U.S. 386, 395 (1989). Such a claim, however, requires a seizure of the complaining party. See Schaefer v. Goch, 153 F.3d 793, 796 (7th Cir. 1998). A seizure for purposes of the Fourth Amendment can occur when an officer "by means of physical force or show of authority has in some way restrained the liberty of a citizen." United States v. Mendenhall, 446 U.S. 544, 552 (1980) (internal quote omitted); see also Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989) ("A seizure' triggering the Fourth Amendment's protections occurs only when government actors have, by means of physical force or show of authority, * * * in some way restrained the liberty of a citizen.") (internal quotation omitted). A person is "seized" under the Fourth Amendment "if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 554. The Supreme Court further explained the circumstances that might indicate a seizure as follows: "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request ...