United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Omar Edwards brought this suit against the Village of Schaumburg and Schaumburg Police Officers Antes, Cairns, Chandler, and Urso (collectively, "Schaumburg Defendants"), and J.B. at Schaumburg, Inc., d/b/a John Barleycorn, Jake Golojuch, Rodolfo Gonzalez, and Joseph Nugara (collectively, "Barleycorn Defendants"). Doc. 32. The suit arises from an altercation at the John Barleycorn restaurant and bar in Schaumburg, Illinois, during the early morning hours of February 6, 2011. The amended complaint sets out four counts under 42 U.S.C. § 1983 and Illinois law: (1) a state law battery claim against the Barleycorn Defendants; (2) a Fourth Amendment excessive force claim against the Schaumburg Defendants; (3) a state law spoliation of evidence claim against the Barleycorn Defendants; and (4) a state law malicious prosecution clam against the Barleycorn Defendants. Golojuch, Gonzalez, and Nugara, who are John Barleycorn employees, counterclaimed against Edwards, alleging state law battery. Doc. 74. A one-week jury trial has been set for January 12, 2015. Doc. 84.
The Schaumburg Defendants have moved for summary judgment under Federal Rule of Civil Procedure 56 on the Fourth Amendment excessive force claim. Doc. 80. Edwards states that he does not contest summary judgment in favor of Officers Chandler and Urso, Doc. 89 at 2, so the motion is granted as to them. Edwards does not respond to Defendants' argument that the Village is entitled to summary judgment, Doc. 81 at 13-14, so the motion is granted as to the Village as well. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) ("Failure to respond to an argument... results in waiver."); Witte v. Wis. Dep't of Corr., 434 F.3d 1031, 1038 (7th Cir. 2006) ("By failing to raise [an argument] in his brief opposing summary judgment, [the plaintiff] lost the opportunity to urge it in both the district court and this court."), overruled on other grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013). For the following reasons, summary judgment is denied as to Officers Antes and Cairns.
The following facts are stated as favorably to Edwards, the non-movant, as permitted by the record and Local Rule 56.1. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). In considering the summary judgment motion, the court must assume the truth of those facts but does not vouch for their actual truth. See Smith v. Bray, 681 F.3d. 888, 892 (7th Cir. 2012).
Edwards arrived at John Barleycorn late in the evening of February 5, 2011. Doc. 90 at ¶ 8. At approximately 2:23 a.m. the next morning, Edwards was seated in a booth on the second floor when he twice threw ice into the air. Id. at ¶¶ 9-10. A Barleycorn employee responded by approaching Edwards and asking him to leave. Id. at ¶ 11. A physical altercation ensued between Edwards and Barleycorn security staff, during which Edwards was slammed on a table, punched in the ribs, dragged to the floor, sat on, and punched in the head. Id. at ¶ 12. A Barleycorn employee notified Officers Antes and Cairns of the ongoing physical altercation between staff and a patron and summoned them upstairs. Id. at ¶ 13. When Antes and Cairns arrived, they observed Barleycorn staff in the process of restraining Edwards on the floor. Id. at ¶ 14. After Antes handcuffed Edwards, Antes and Cairns handed him back over to Barleycorn staff, who smashed him face-first into a brick wall, breaking his tooth. Id. at ¶¶ 15-16, 18. Antes then escorted Edwards downstairs and out of the bar. Id. at ¶¶ 19, 21.
Outside John Barleycorn, Antes slammed the still-handcuffed Edwards to the ground, causing Edwards to sustain an abrasion on his knee. Id. at ¶¶ 21-22; Doc. 82-3 at 19 (pp. 172:3-173:3). When Officer Urso arrived, he saw Edwards restrained face-down on the ground. Doc. 90 at ¶ 24. Edwards requested medical attention and was taken in an ambulance to a hospital, where he received a tetanus shot for his scraped knee. Id. at ¶ 30-32.
Antes and Cairns seek summary judgment on Edwards's excessive force claim. The claim arises from two separate alleged uses of force: the first occurring inside Barleycorn, where he was shoved face-first into a brick wall after being handcuffed and handed over to Barleycorn staff; and the second occurring outside Barleycorn, where he was slammed to the ground.
I. Inside John Barleycorn
Defendants argue that they are entitled to qualified immunity. "The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010). Whether a defendant is entitled to qualified immunity depends on two questions: "(1) whether the facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional right[, ] and (2) whether that constitutional right was clearly established at the time of the alleged violation." Hernandez v. Sheahan, 711 F.3d 816, 817 (7th Cir. 2013).
With respect to the events inside John Barleycorn, Antes and Cairns address only the first of these questions. Doc. 81 at 5-13. Their argument is that neither of them used any force against Edwards inside Barleycorn. Id. at 5-9. Defendants are wrong that they cannot have violated the Fourth Amendment simply because they did not personally slam Edwards into the brick wall after he was handcuffed and turned back over to Barleycorn staff.
Settled law holds that "a defendant must have been personally responsible for the deprivation of the right at the root of a § 1983 claim for that claim to succeed." Backes v. Vill. of Peoria Heights, 662 F.3d 866, 869 (7th Cir. 2011) (internal quotation marks omitted). However, "a defendant's direct participation in the deprivation is not required." Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000). Rather, "[t]o be personally responsible, an official [who did not directly participate in the deprivation] must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye." Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009) (internal quotation marks omitted). Accordingly, "under certain circumstances[, ] a state actor's failure to intervene renders him or her culpable under § 1983." Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (citing cases); see also Sanchez v. City of Chicago, 700 F.3d 919, 925-29 (7th Cir. 2012).
Failure to intervene claims most often arise where an officer fails to intercede when a fellow officer is subjecting a plaintiff to excessive force. See Sanchez, 700 F.3d at 926 ("[A] defendant police officer may be held to account both for his own use of excessive force on the plaintiff, as well as his failure to take reasonable steps to attempt to stop the use of excessive force used by his fellow officers.") (internal citation omitted); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972) ("[A] police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge."). But nothing in the failure-to-intervene doctrine prohibits a claim where, as ...