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Kremer v. City of Decatur

United States District Court, C.D. Illinois

August 13, 2014

KEVIN KREMER, Plaintiff,


DAVID G. BERNTHAL, Magistrate Judge.

In October 2011, Plaintiff Kevin Kremer filed suit against Decatur police officers Josh Sheets and Martin St. Pierre, individually and in their official capacities; Decatur police chief James Anderson, individually and in his official capacity; and the City of Decatur, for injuries he sustained when Sheets and St. Pierre arrested him in the early morning of October 28, 2009.[1] Specifically, Plaintiff brings, in Count I, excessive force claims under 42 U.S.C. § 1983[2] against all Defendants; in Count II, state assault and battery claims against all Defendants; in Count III, state unlawful use of excessive force claims against all Defendants; in Count IV, state claims for "failure to adequately train, instruct, correct, discipline, supervise, and train police officers" against Decatur and Anderson; and, in Count V, state claims for intentional infliction of emotional distress against all Defendants. Jurisdiction is proper under 28 U.S.C. § 1331 because Plaintiff's § 1983 claims raise a federal question. The Court exercises supplemental jurisdiction over Plaintiff's state claims pursuant 28 U.S.C. § 1367(a). The parties have consented to proceed before a U.S. Magistrate Judge, as allowed by 28 U.S.C. § 636(c)(1).

In March 2014, Defendants filed a Revised Motion for Summary Judgment (#47).[3] Plaintiff responded in opposition (#49). Defendants then submitted a reply in support of their motion (#50). At the Court's invitation, Plaintiff filed a surreply (#51) addressing whether his § 1983 claims undermine the validity of his convictions for his conduct during the incident and, therefore, run afoul of Heck v. Humphrey, 512 U.S. 477 (1994). After careful consideration of the parties' arguments and evidence, the Court GRANTS Defendants' Motion for Summary Judgment (#47) as to Plaintiff's claims under § 1983 and relinquishes jurisdiction over Plaintiff's claims under state law.

I. Legal Standard

Summary judgment is only appropriate 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). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, the substantive law applicable to a case "will identify which facts are material." Id. A dispute as to a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id .; accord Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The moving party bears the initial burden to "put[] forth evidence showing the absence of a genuine dispute of material fact." Carroll, 698 F.3d at 564. Once the moving party does so, "the burden shifts to the non-moving party to provide evidence of specific facts creating a genuine dispute." Id. In determining whether a genuine issue of material fact exists, the Court views all facts and draws all reasonable inferences in favor of the nonmoving party. Jajeh v. Cnty. of Cook, 678 F.3d 560, 566 (7th Cir. 2012).

II. Evidentiary Issues

The Court first addresses Plaintiff's challenges as to the admissibility of Defendants' evidence. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) ("Admissibility is the threshold question because a court may consider only admissible evidence in assessing a motion for summary judgment.").

Plaintiff first asserts, with no explanation in support, that the transcript of his criminal trial for offenses committed during the October 28, 2009, incident is inadmissible hearsay. (#33-1, pp. 4-21.) Plaintiff was charged with Disarming a Peace Officer, Aggravated Battery, and Aggravated Resisting a Peace Officer. He appeared for a bench trial, where the prosecutor offered testimony that witnesses would have given, had they appeared, and Plaintiff stipulated to the introduction of that testimony. The judge found the evidence sufficient to convict Plaintiff on all three charges.

Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. See FED. R. EVID. 801(c). The Court understands Defendants to rely on the transcript not to prove the truth of the matter asserted in the stipulated testimony but to establish that Plaintiff's § 1983 claims are barred by Heck or, alternatively, collateral estoppel. Indeed, it appears that Courts often look to testimony from underlying state proceedings to decide whether Heck applies. See, e.g., Okoro v. Callaghan, 324 F.3d 488, 489 (7th Cir. 2003) (Plaintiff's § 1983 claim was barred by Heck because it was inconsistent with officers' testimony that "was an essential part of the evidence against him in the criminal case"); Malden v. City of Waukegan, Ill., No. 04 C 2822, 2009 WL 2905594, at *10 (N.D. Ill. Sept. 10, 2009) ("[I]n finding a factual basis for the plea, the state court judge relied on the State's proffer of the testimony that Officer Kirby and another witness would provide-and, the defense stipulated that those persons would testify at trial in a manner consistent with the proffer. If [plaintiff] prevailed on those allegations in this civil case, he would undermine key elements of the offense to which he plead guilty, and indeed, would suggest that the factual basis on [which] the state court judge accepted his plea was false."). Therefore, the Court finds that the transcript is not hearsay and is admissible for the purposes offered by Defendants.

Next, Plaintiff contends that witnesses Tiffany Vandervort and Brandon Nein's statements to police are also inadmissible hearsay. Defendants counter that these statements are admissible under the public records exception in Federal Rule of Evidence 803(8), "which removes the hearsay bar for certain records and statements of public offices." Jordan v. Binns, 712 F.3d 1123, 1132 (7th Cir. 2013). The statements of Vandervort and Nein, although provided to police, do not fall within the public records exception because they were not made by police. See id. ("The public-records exception is justified on the assumption that public officials will perform their duties properly and without bias."). Therefore, the Court does not consider those statements.

II. Background

The following facts are undisputed unless otherwise indicated. Plaintiff was a customer at a bar on the night of October 27, 2009. Plaintiff's Dep. at 48 (#33-1, 33-2). He told the bartender that he wanted to have sex with her. Plaintiff's Dep. at 61. The bartender asked him to leave. Id. at 62. Plaintiff left and waited outside the bar. Id. The bartender called the police. Undisputed Material Fact 3. Defendants Sheets and St. Pierre arrived at the bar shortly thereafter. Plaintiff's Dep. at 71. They ordered Plaintiff to stand on the sidewalk, and Plaintiff did. Id. at 71-72. Sheets attempted to convince Plaintiff to leave the property, and Plaintiff refused. Undisputed Material Facts 5, 6.

Here, the parties' versions of events diverge. Plaintiff maintains that, after he refused to leave, the officers, without speaking to him further, turned around, walked five feet away from him, and then turned back to him and tased and maced him. Plaintiff's Dep. at 76-77. Plaintiff was never told he was under arrest or ordered to put his hands behind his back. Id. at 89-90. Sheets tased Plaintiff, and then St. Pierre tased Plaintiff. Undisputed Material Fact 10. Sheets then pepper-sprayed Plaintiff. Undisputed Material Fact 11.

Defendants, in contrast, assert that Sheets told Plaintiff he was under arrest and instructed him to turn around and put his hands behind his back. Sheets Dep. at 63 (#33-2). Sheets told Plaintiff to put his hands behind his back several times. Id. When Plaintiff did not comply, Sheets pulled out his taser and told Plaintiff that it was his last chance to comply. Id. at 65. When Plaintiff still refused, Sheets tased Plaintiff and, when the taser had no effect, St. Pierre tased ...

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