United States District Court, S.D. Illinois
MEMORANDUM & ORDER
MICHAEL J. REAGAN, Chief District Judge.
This matter is before the Court on three summary judgment motions. Individual summary motions have been filed by Defendant Donald Jason Ramert (Doc. 62), Dan Hill (Doc. 65) and Tim Lay (Doc. 67). Plaintiff has filed a Response (Doc. 70) to all three motions. Based on the following, the Court DENIES Defendant Ramert's motion for summary judgment (Doc. 62), but GRANTS the motions filed by Hill (Doc. 65) and Lay (Doc. 67).
SUMMARY JUDGMENT STANDARD
Summary judgment-which is governed by Federal Rule of Procedure 56-is proper only if the admissible evidence considered as a whole shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 517 (7th Cir. 2011) (citing FED. R. CIV. P. 56). The party seeking summary judgment bears the initial burden of demonstrating-based on the pleadings, affidavits and/or information obtained via discovery-the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
After a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). See also Serednyj v. Beverly Healthcare, LLC; 656 F.3d 540, 547 (7th Cir. 2011) ("When a summary judgment motion is submitted and supported by evidence... the nonmoving party may not rest on mere allegations or denials in its pleadings"). A mere scintilla of evidence supporting the non-movant's position is insufficient to overcome summary judgment; a non-movant will prevail only when it presents definite, competent evidence to rebut the motion. Estate of Escobedo v. Martin, 702 F.3d 388, 403 (7th Cir. 2012); Parent v. Home Depot USA., Inc., 694 F.3d 919, 922 (7th Cir. 2012). Summary judgment is only appropriate if, on the evidence provided, no reasonable juror could return a verdict in favor of the non-movant. Carlisle v. Deere & Co., 576 F.3d 649, 653 (7th Cir. 2009).
The Court's role on summary judgment is not to evaluate the weight of the evidence, to judge witness credibility, or to determine the truth of the matter, but rather to determine whether a genuine issue of triable fact exists. Nat'l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). The Court considers the facts in a light most favorable to the non-movant-here, Plaintiff. Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009).
Plaintiff filed his Amended Complaint on February 4, 2013, alleging that Defendant Ramert used excessive force against him during an arrest on November 14, 2011, and, further, that Defendants Hill and Lay failed to intervene (Doc. 27). Plaintiff alleged that Defendant Ramert used a police dog-"Kodiak"-to attack Plaintiff when he was not resisting arrest, and that injury was caused to his neck and back (Doc. 27 at ¶¶ 12-15). He also alleges that this use of force constituted an assault and battery. The following facts are derived from the parties' briefs and exhibits.
On November 14, 2011, Plaintiff was a suspect in the robbery of a Circle K gas station in Belleville, Illinois. (Doc. 66-1 at p. 10). Plaintiff and his accomplice, Jason Mitchell, fled the scene in a 1991 red Ford Ranger. ( Id. at p. 11). Plaintiff was the passenger in that vehicle. ( Id. ). The Circle K clerk called the police and advised them of the robbery, and that the suspects had used a weapon. ( Id. at p. 14). Police officers, including Defendant Lay, chased the Ford into a field, where Plaintiff and Mitchell exited the vehicle and ran on foot. (Doc. 66-1 at p. 15, 107; Doc. 67-2 at ¶ 3). Mitchell was caught by Defendant Lay. (Doc. 67-2 at ¶ 4). Plaintiff proceeded to a mobile home and hid underneath it by entering one of two holes in the home's under-skirting. (Doc. 66-1 at p. 15).
Defendant Donald Jason Ramert, a canine officer with the Illinois State Police ("ISP"), was advised by the ISP's emergency radio that two male subjects had robbed a convenience store in Belleville, and that the subjects were armed. (Doc. 63-1 at ¶¶ 7-8). Defendant Hill, a St. Clair County Sheriffs Deputy, received the same call. (Doc. 66-2 at ¶ 7). Ramert took Kodiak with him to a state park area in Collinsville, Illinois, where officers from various departments were trying to locate Plaintiff. (Doc. 63-1 at ¶¶ 10-12). Upon arriving, Ramert was informed by Defendant Lay that Mitchell was in custody, but that a weapon had not yet been located. ( Id. at ¶¶ 13-14). Lay informed both Ramert and Hill that a second suspect-Plaintiff-had run northwards. ( Id. at ¶ 16).
Approximately eleven police officers, including all three defendants, began searching the area for Plaintiff. (Doc. 67-2 at ¶ 5; Doc. 66-2 at ¶16). Defendant Ramert deployed Kodiak for a criminal track, but Kodiak was unable to locate a track. Ramert then deployed Kodiak on a fifteen foot lead and, with two other officers as cover, searched the area around 3200 West Point, Collinsville twice. (Doc. 63-1 at ¶¶ 18-20). During a search, Defendant Hill observed a person hiding under a mobile trailer at 3200 West Point. (Doc. 66-2 at 17-18). Hill notified other officers, and officers were radioed for assistance (Doc. 66-2 at ¶ 19; Doc. 67-2 at ¶ 6; Doc. 63-1 at ¶ 23).
Officers met at the mobile home in order to retrieve Plaintiff. Defendant Ramert arrived and took Kodiak to the east side of the home, where there was a sizeable hole in the skirting. (Doc. 63-1 at ¶ 25). Defendant Hill proceeded to the street south of the mobile home and stood in the street with Captain John Moody of Belleville, Illinois. (Doc. 66-2 at ¶ 21). Lay, with weapon drawn, took position behind Ramert. (Doc. 67-2 at ¶ 11). At least two other officers were also present near the home with their weapons drawn ( Id. at ¶ 9).
Standing at the hole on the east end of the home, Defendant Ramert announced "State Police K-9, surrender now or a dog will be used to search the area. If my dog finds you, he will bite you." (Doc. 63-1 at ¶ 27; Doc. 66-2 at ¶¶ 24, 26). According to Ramert and Hill, there was no response from underneath the trailer. (Doc. 63-1 at ¶ 28; Doc. 66-2 at ¶ 27). Defendant Ramert deployed Kodiak to search the area, but he came out quickly, meeting resistance with objects under the trailer. (Doc. 63-1 at ¶¶ 30-31) Ramert then took Kodiak to a hole on the south side of the trailer and deployed him again. ( Id. at ¶ 32; Doc. 67-2 at ¶ 12). Defendant Hill, due to his location, did not see the canine being sent under the trailer, nor did he hear any commands from his location (Doc. 66-2 at ¶¶ 29-33). Defendant Lay witnessed Kodiak being sent under the trailer, but did not know the verbal commands of the canine. (Doc. 67-2 at ¶ 14).
After being sent under the trailer, Kodiak ran to the east side of the trailer and turned his head, a signal he had found someone and apprehended the individual. (Doc. 63-1 at ¶ 33). Defendant Ramert pulled skirting off from the east side of the mobile home and noted that Kodiak had apprehended Plaintiff by his left calf. ( Id. at ¶ 35). Ramert ordered Plaintiff to surrender, but he continued to hide beneath the home. Id. at ¶ 36). Ramert ordered Plaintiff to show his hands but he did not comply and instead struggled with the canine. ( Id. at ¶ 36-38). Defendant Lay also indicated that Plaintiff did not show his hands and refused to come out. (Doc. 67-2 at ¶ 15). He ordered Plaintiff again to show his hands but Plaintiff stated that he could not. (Doc. 63-1 at ¶ 39). Ramert moved to the west side of the trailer to observe Plaintiff but could not see his right hand or whether or not he had a weapon. ( Id. at VII 40-41). According to Ramert, he did not order Kodiak to cease his encounter with Plaintiff because he believed Plaintiff might still have a weapon that he could use on the officers. ( Id. at ¶ 43). He again ordered Plaintiff to crawl out from underneath the trailer and Plaintiff complied ( Id. at ¶¶ 44-45). Once Plaintiff complied, Defendant Ramert commanded Kodiak to release ad at ¶ 45). Plaintiff was taken into custody.
Plaintiffs story is different. He testified that, once the police discovered him under the trailer, three officers had him by gunpoint (Doc. 67-3 at p. 39). He believes that his foot may not have been fully under the trailer when police located him and his head was positioned where he could see out. ( Id. at pp. 41-43). The officer instructed him: "Let me see your hands. Don't move." ( Id. at p. 43). At the time Plaintiff was laying on the ground with his hands in the open, where they could be seen. ( Id. at p. 44). He first saw Kodiak come in through a different portion of the trailer and then go back out of the trailer ( Id. at p. 39). He heard Defendant Ramert say something (possibly "I'm Ramert with the state police"), but he could hardly hear him. ( Id. ). He then heard an officer say "I've located him." ( Id. ). He saw Ramert turn his dog loose and give a command to attack. ( Id. at p. 43).
Plaintiff testified that the incident happened very fast-too fast to respond to the officer. He felt that the officers said not to move and to show them his hands, and that he did-but Ramert immediately let Kodiak loose and ordered "Attack." ( Id. ). The canine bit Plaintiffs back, then grabbed his leg and pulled him out from underneath the trailer. ( Id. at pp. 44-45). Plaintiff testified that, at the time, Ramert gave the ...