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Pabon v. Brenka

United States District Court, N.D. Illinois, Eastern Division

January 7, 2015

ALBERTO PABON, Plaintiff,
v.
ROBERT BRENKA, ROBERTO TROFIMCHUK, JESUS AREIZAJA, and CITY OF BERWYN, Defendants

For Alberto Pabon, Berwyn, Plaintiff: Gregory E. Rogus, LEAD ATTORNEY, Gregory E. Rogus P.C., North Barrington, IL; John Shannon Marrese, Segal Mccambridge Singer & Mahoney, Chicago, IL.

For Robert Brenka, P.O. #342, Roberto Trofimchuk, P.O. #204, Jesus Areizaja, P.O., Defendants: Edmund Peter Wanderling, Attorney at Law, North Riverside, IL.

For City of Berwyn, a municipal corporation, Defendant: K. Austin Zimmer, LEAD ATTORNEY, Cynthia Sara Grandfield, Eric T Stach, Del Galdo Law Group, LLC, Berwyn, IL; Edmund Peter Wanderling, Attorney at Law, North Riverside, IL.

MEMORANDUM OPINION AND ORDER

Manish S. Shah, United States District Judge.

A brick was thrown through a window of Alberto Pabon's apartment. The police were called and the defendants--Officers Robert Brenka, Roberto Trofimchuk, and Jesus Areizaja--responded. During the investigation, Pabon began shouting at an occupant of the apartment above his. Defendants tackled Pabon, held him down, and threatened to tase him. A cell phone belonging to one of the officers was damaged. Pabon was arrested and charged with two counts of battery, one count of criminal damage to property, and one count of resisting arrest. Two of those charges were dropped, and Pabon was acquitted of the other two. Pabon brought this suit against the officers, alleging excessive force and false arrest in violation of the Fourth Amendment, and malicious prosecution under Illinois law. Defendants move for summary judgment.[1] For the reasons below, that motion is granted in part and denied in part.

I. Legal Standards

Summary judgment is 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. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine dispute as to any material fact exists if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014).

Defendants' motion is based in part on the doctrine of qualified immunity. " The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal citations and marks omitted). Once raised, " the plaintiff must establish two things in order to defeat the defense: first, that the facts alleged describe a violation of a protected right; and second, that this right was clearly established at the time of the defendant's alleged misconduct." Mordi v. Zeigler, 770 F.3d 1161, 1163-64 (7th Cir. 2014) (citations omitted). " [A] defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it." Plumhoff v. Rickard, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014); Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (" If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate."). When analyzing a qualified-immunity defense at the summary judgment stage, courts cannot resolve disputed issues of fact--the facts must be viewed in the light most favorable to the non-moving party. Mordi, 770 F.3d at 1164.

II. Facts[2]

A brick was thrown through a window of Alberto Pabon's apartment. DSOF ¶ 5. The police were called, and defendants responded to the scene. DSOF ¶ ¶ 5-6. Pabon's wife told defendants that the people in the apartment above the Pabons' were " gang-bangers" and that she thought they had " something to do" with the incident. DSOF ¶ 7. Defendants went up to investigate. DSOF ¶ 8.

One of the upstairs residents was 18-year-old Juan Melendez. DSOF ¶ 9. Melendez told defendants, in reference to Pabon and his family, that " these motherfuckers are nothing but bitches." DSOF ¶ 9. Pabon overheard that remark and felt disrespected; without being invited, he went up the 10-12 stairs and took two steps into the Melendezes' apartment. DSOF ¶ ¶ 10, 11, 15, 17, 24; PSOF ¶ 6. At that time, defendants were talking to Melendez's mother (DSOF ¶ 18; PSOF ¶ 3), and Pabon was about five feet away from Melendez (DSOF ¶ 16; PSOF ¶ 8). Melendez was small in stature. DSOF ¶ 14. Pabon and Melendez exchanged words (at least Pabon was shouting--the parties don't say whether Melendez was also shouting). DSOF ¶ ¶ 10, 12, 24. Pabon said that Melendez was disrespecting Pabon's family and that the brick that was thrown through Pabon's window was really meant for Melendez. DSOF ¶ 10; PSOF ¶ 9. Melendez responded, " Oh, you're a bitch, you're a bitch, " " this motherfucker is always calling the cops, " and, repeatedly, " fuck you." DSOF ¶ ¶ 10, 13.

Pabon was wearing only a tank top and boxer shorts; he was not wearing shoes. PSOF ¶ 4. He did not have his fists clenched. PSOF ¶ 5. After Pabon took his second step toward Melendez, one of the officers said, " hey, hey, hey, " and then Pabon was tackled from behind, causing his chest to hit the floor. DSOF ¶ 19; PSOF ¶ ¶ 6-7, 10-11.[3] Pabon was tackled about three or four seconds after he entered the Melendezes' apartment. DSOF ¶ 34. Pabon did not know which officer tackled him, but Areizaja was on top of him and Brenka and Trofimchuk were on or around his hip. PSOF ¶ ¶ 12-14.

After being tackled, Pabon continued to say things to the Melendezes. DSOF ¶ ¶ 20, 23; PSOF ¶ ¶ 17-19. The parties dispute whether Pabon struggled or fought with defendants after he was tackled. PSOF ¶ ¶ 15; 40. Areizaja unholstered his taser, put it on Pabon's shoulder blade, and said, " If you don't stop, it's going to hurt." DSOF ¶ 22; PSOF ¶ 23. Areizaja told Pabon that he would be handcuffed but he was not under arrest. PSOF ¶ ¶ 20-22. Areizaja also told Pabon that he (Areizaja) would have done the same thing (meaning Areizaja, if put in Pabon's position, would have acted as Pabon did). PSOF ¶ ¶ 20, 22. Pabon was handcuffed and escorted down the stairs, as defendants continued to tell him to cool off. DSOF ¶ 27.

Pabon was not injured and did not seek medical treatment or counseling as a result of the incident. DSOF ¶ ¶ 21, 28. Trofimchuk claims to have suffered a minor wrist injury. PSOF ¶ 38. After Pabon was secured, Brenka discovered that his cell phone had been damaged, and he contends that the damage was sustained during the incident with Pabon. DSOF ¶ 37; [61-1] at 49:1-16. Pabon was charged with two counts of battery (one against Brenka and one against Trofimchuk), one count of criminal damage to property, and one count of resisting arrest. DSOF ¶ 42. The charges for battery of Trofimchuk and criminal damage to property were dropped. PSOF ¶ ...


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