United States District Court, C.D. Illinois, Springfield Division
PAUL F. MORICONI, Plaintiff,
TRAVIS KOESTER, et al., Defendants.
TOM SCHANZLE-HASKINS, Magistrate Judge.
This matter comes before the Court on Defendants' Motion for Summary Judgment (d/e 85) (Motion 85); Plaintiff's Response to Defendants' Motion for Summary Judgment and Plaintiff's Motion for Summary Judgment (d/e 91) (Motion 91); Defendants' Motion to Strike Plaintiff's Motion for Summary Judgment (d/e 90) (Motion 90); and Defendants' Motion to Strike Plaintiff's Affidavit (d/e 92) (Motion 92). The parties consented to have this matter heard before this Court. Consent to the Exercise of Jurisdiction by a United States Magistrate Judge and Reference Order entered April 11, 2014 (d/e 74).
Plaintiff Paul F. Moriconi was required to respond to Motions 90 and 92 within fourteen days of the date that those Motions were served on him. He has not done so. Pursuant to Local Rule 7.1(B)(2), Plaintiff's failure to respond creates the presumption that there is no opposition to the motions. Motions 90 and 92 are ALLOWED as unopposed. The Court strikes Motion 91 and the affidavit of Plaintiff Paul F. Moriconi attached to Motion 91 and to Moriconi's Response to Defendants' Motion for Summary Judgment and Plaintiff's Motion for Summary Judgment (d/e 89) (Moriconi Response).
The only remaining Motion is Motion 85, Defendants' Motion for Summary Judgment. For the reasons set forth below, Motion 85 is ALLOWED in part and DENIED in part.
STATEMENT OF FACTS
For purposes of Motion 85, the Court must view the evidence in the light most favorable to Moriconi. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). The Court, therefore, will state the facts based on Moriconi's version of the events. The Court relies on Moriconi's deposition testimony and does not consider his stricken affidavit. The Court recognizes that the Defendants dispute Moriconi's version of the events. Such disputes only establish that issues of fact exist and do not entitle the Defendants to summary judgment.
The relevant events occurred during the late evening of July 28 and early morning of July 29, 2009. At that time, Moriconi was at a bar in Springfield, Illinois, called Bootleggers Tavern (Bar). Moriconi was the owner of the Bar. Late in the evening of July 28, two women started fighting at the Bar. One woman was injured; Moriconi testified in his deposition that "somehow she had her head busted open." Moriconi Response, attached Moriconi Deposition, at 16. At that point, Moriconi had someone call the police. The boyfriend of the woman who started the fight also started a fight. Moriconi wanted the persons responsible to be arrested. Id . at 17.
The woman who started the fight tried to leave. A part-time employee at the Bar named Nick Zitach (Zitach) caught the woman who started the fight in the parking lot. Zitach held her down so that she could not leave. Id . at 16-17. Defendant Sangamon County, Illinois, Deputy Sheriff Travis Koester arrived at the scene. Sangamon County, Illinois, Deputy Sheriff Brad Tweryon was also at the scene. Other officers arrived at the scene during the incident.
Moriconi walked out of the Bar to the parking lot to talk to the officers. Moriconi stated that he owned the Bar and he called the police. As soon as Moriconi walked outside, Koester told Moriconi to stop and said, "I don't care who you are, put your hands over your head." Id . at 18, 20. Moriconi testified that he stood still and told Koester that he could not put his hands over his head because he was crippled. Koester said, "I'm not going to tell you twice, " and shot Moriconi with a Taser. Id . at 18, 22. Moriconi testified that he did not yell at the police. Id . at 21. He testified that he did not remember anything after he told Koester that he was crippled. Moriconi testified in his deposition, "[N]ext thing I know I got hit in that incident. Next thing, you know, I got to sit there and just get electrocuted basically." Id . at 20-21.
Moriconi fell to the ground. Koester shocked Moriconi four more times with the Taser while Moriconi was on the ground. Id . at 26. Koester told Moriconi to put his hand behind his back. Moriconi testified that he told Koester that could not put his hands behind his back because his arm was paralyzed. Id . at 23. Moriconi testified that he did not struggle with the officers. Id . at 27. Moriconi was handcuffed and placed in a squad car. He did not remember who handcuffed him. Id . at 27-28. Koester arrested Moriconi for obstruction of justice. No evidence has been presented that Moriconi was ever tried on the charge or that a judge ever made a finding of probable cause on the charge.
Moriconi testified that he may have drunk socially on the evening of July 28 before the incident. Moriconi testified that he had been at the Bar since 4:00 p.m., and had consumed two or three alcoholic drinks and some soda since 4:00 p.m. Id . at 29-30. Moriconi had not taken any pain medication that evening. Id.
Based on these facts, Moriconi brings claims against Defendant Koester under 42 U.S.C. §1983 for violations of the Fourth Amendment for illegal arrest without probable cause and for use of excessive force (Count I). Moriconi brings a claim against Sangamon County, Illinois (County), for indemnification of Koester under state law (Count III). Second Amended Complaint (d/e 51). The Defendants move for summary judgment.
Defendants now move for summary judgment. At summary judgment, the Defendants must present evidence that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323-24 (1986). The Court must consider the evidence presented in the light most favorable to Moriconi. Any doubt as to the existence of a genuine issue for trial must be resolved against the Defendants. Anderson v. Liberty Lobby, Inc. , 477 U.S. at 255. Once the Defendants have met their burden, Moriconi must present evidence to show that issues of fact remain with respect to an issue essential to his case, and on which he will bear the burden of proof at ...