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Neely v. Garza

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

March 13, 2017

Tarrie Neely, Plaintiff,
Officer Garza, Officer Habiak, Officer Desai, and Officer Solivan, Defendants.


          John Z. Lee United States District Judge.

         Plaintiff Tarrie Neely (“Neely”) contends that, in December 2013, City of Chicago police officers David Garza, Paul Habiak, Rishi Desai, and Jorge Solivan (“Defendants”) attacked him in violation of his civil rights. Based on the incident, Neely was arrested and convicted of aggravated battery of a police officer and resisting arrest. This pro se civil rights action against Defendants pursuant to 42 U.S.C. § 1983 followed. The Court allowed Neely to proceed on claims of false arrest, false imprisonment, excessive force, and failure to provide medical care in violation of the Fourth Amendment. Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 as to all of Neely's claims. For the following reasons, the Defendants' motion for summary judgment [57] is granted as to all claims.

         I. Northern District of Illinois Local Rule 56.1

         Local Rule 56.1 sets out a procedure for presenting facts that are germane to a party's request for summary judgment pursuant to Federal Rule of Civil Procedure 56. Specifically, Local Rule 56.1(a)(3) requires the moving party to submit “a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter of law.” Petty v. City of Chi., 754 F.3d 416, 420 (7th Cir. 2014). Each paragraph of the movant's statement of facts must include “specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.” LR 56.1(a). The opposing party must file a response to each numbered paragraph in the moving party's statement, “including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.” LR 56.1(b)(3)(B). “All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.” LR 56.1(b)(3)(C). The nonmoving party may also present a separate statement of additional facts “consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.” LR 56.1(b)(3)(C). “[I]f additional material facts are submitted by the opposing party . . ., the moving party may submit a concise reply in the form prescribed in that section for a response.” LR 56.1(a).

         Because Neely is proceeding pro se, Defendants served him with a “Notice to Pro Se Litigant Opposing Motion for Summary Judgment” as required by Local Rule 56.2. See ECF No. 60. The notice explained how to respond to Defendants' summary judgment motion and Local Rule 56.1 Statement and cautioned Neely that the Court would deem Defendants' factual contentions admitted if he failed to follow the procedures delineated in Local Rule 56.1. Neely, however, did not respond to Defendants' statement of facts as required by Local Rule 56.1(b)(3).

         Although courts construe pro se pleadings liberally, see Thomas v. Williams, 822 F.3d 378, 385 (7th Cir. 2016), a plaintiff's pro se status does not excuse him from complying with federal and local procedural rules. See McNeil v. United States, 508 U.S. 106, 113 (1993) (holding that “we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel”); Collins v. Illinois, 554 F.3d 693, 697 (7th Cir. 2009) (“even pro se litigants must follow procedural rules”).

         Because Neely has failed to properly respond to Defendant's Local Rule 56.1 Statement, the Court would typically accept Defendant's “uncontroverted version of the facts to the extent that it is supported by evidence in the record.” Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012). Defendants, however, elected to include Neely's version of events in their Local Rule 56.1 Statement. Thus, their own supposedly undisputed facts are internally contradictory. See Perez v. Thorntons, Inc., 731 F.3d 699, 706 (7th Cir. 2013) (“Where the moving party has undermined its own Local Rule 56.1 assertion through the presentation of contradictory assertions and evidence, a nonmovant's ‘admission' of the movant's assertion is not decisive.”). Additionally, it is in the Court's discretion to interpret Neely's filings generously consistent with his pro se status and construe the record (which includes transcripts from the state court criminal case, as well as Neely's deposition in this case), in the light most favorable to him, to the extent that he has pointed to evidence in the record or could properly testify himself about the matters asserted. See Sistrunk v. Khan, 931 F.Supp.2d 849, 854 (N.D. Ill. 2013). With these standards in mind, the Court turns to the relevant facts.

         II. Factual Background

         On December 9, 2013, Defendants responded to a dispatched 911 call reporting a possible domestic violence incident involving a person with a knife at 7208 South Wood Street in Chicago, Illinois. State Tr. at 29:19-30:13, 57:1-8, 82:21-83:18, ECF No. 59-1. As the officers arrived at the home, they saw a man (Neely) and a woman (Tanya Tyrone, Neely's wife) standing on the front porch. Id. at 31:2-24, 32:4-8, 84:5-13, 107:5-8. The parties agree that Neely was holding a machete and that Tyrone was standing near him, but from there, their accounts diverge.

         A. Events at Neely's Home

         1.The Officers' Testimony in the Underlying Criminal Case

         As they approached the porch, Officer Habiak saw that Neely was holding a machete. Id. at 108:7-11. All of the officers saw Neely grab Tyrone by the collar and push her down the porch stairs, at which point Officers Garza and Desai realized that Neely was holding a machete. Id. at 32:1-15, 85:9-87:1, 107:19-24. The officers drew their service weapons. Id. at 33:7-22, 51:8-18, 91:2-14. Neely raised the machete upwards. Id. at 32:16-19, 86:14-22, 87:2-7, 108:7- 18, 112:8-11. Officer Garza ordered Neely to drop his knife, and Neely complied. Id. at 33:20- 22, 87:5-24, 112:14-21.

         Officer Garza then approached Neely and ordered him to get on the ground, but Neely remained standing. Id. at 34:20-24. As Officer Garza reached towards Neely, whose machete was lying on the ground near his feet, Neely kicked Officer Garza's right knee. Id. at 35:3-12, 56:5-15, 88:3-19, 112:22-113:2. The kick caused Garza to lose his balance and fall forward toward Neely, who fell backward and began to kick his legs as Officer Desai approached the front porch to assist. Id. at 35:2-36:19, 88:24-89:3. Officers Garza and Desai repeatedly told Neely to “stop resisting” but a “struggle ensued” after Neely continued to kick his legs and refused to place his hands behind his back. Id. at 36:2-19, 63:6-21, 89:4-90:6. The officers therefore conducted an “emergency takedown” to move Neely from his front porch to his lawn. Id. at 36:7-19, 89:13-25.

         While lying on the lawn, Neely continued to kick his legs and began to swing his arms and stiffen his body when officers attempted to put his arms behind his back so they could perform “emergency cuffing.” Id. at 37:2-14, 90:23-91:14. “It was very chaotic on the front lawn” as Neely continued to kick and made contact with Officers Garza and Habiak. Id. at 60:11-61:13, 66:8-14, 113:13-17, 127:18-23. Neely began to “throw[] punches.” Id. at 66:8-14, 67:5-11. Neely kicked and punched Officer Desai, punched Officer Garza in the stomach, and kicked Officer Habiak. Id. at 67:12-22, 91:19-23, 113:13-17. Three officers were necessary to address the situation as Neely “just continued to resist during [the] entire duration of the struggle and was completely uncooperative.” Id. at 92:21-23. Officer Habiak helped the other officers “gain control” of Neely by kicking Neely, who was still lying on the ground kicking his legs. Id. at 37:2-8, 113:13-17, 127:24-128:2. Officers Garza and Desai also utilized open hand strikes by thrusting their palms into Neely's body and ordered Neely to stop resisting, while Officer Desai administered knee strikes. Id. at 70:4-17, 91:8-14. Ultimately, Officers Garza, Habiak, and Desai were able to handcuff Neely. Id. at 37:9-14, 113:18-114:2. Although Officer Solivan was at the scene, he focused on “making sure that nobody else was jumping in” and did not administer force. Id. at 74:5-9. After Neely was handcuffed, he refused to walk to the police wagon, so the officers carried him over. Id. at 38:8-11, 93:20-94:1, 114:23-115:5. Following the incident, Officer Habiak had “shoulder soreness” caused by his efforts to restrain Neely. Id. at 114:3-12.

         2. Neely's Version of Events

         Neely elected to testify at his state court criminal trial. According to Neely, on the night of December 9, 2013, he was getting ready to take a bath. Id. at 152:24-153:12. His wife asked him to go outside and knock icicles off the gutter so they would not fall on children who were at the couple's home. Id. Neely looked in the linen closet and saw his machete. Id. He thought “oh, okay, I can go on and knock this down with this, because a broom is too light.” Id. at 153:2- 154:6; see also Neely Dep. at 31:10-17, ECF No. 59-2. Although there was snow on the ground, Trial Tr. at 103:21-24, Neely decided to go outside onto his front porch in a state of undress (no shirt) because he did not anticipate being outside for more than a few minutes. Neely Dep. at 36:1-5. His wife came outside with a jacket as he reached upwards with the machete to knock down icicles. Id. at 36:8-18, 38:6-19; see also Compl. ¶ 1, ECF No. 1 (alleging that Neely was outside “[k]nocking Ice down off [his] storm drain”). Suddenly, men began to run towards Neely's porch. State Tr. at 155:5-11. Neely surmised that the men must be police officers, so he laid his machete on the porch floor and said, “Excuse me, officers. What's the problem?”[1] State Tr. at 155:5-11; Neely Dep. at 38:20-39:9.

         According to Neely, an officer ran up to him and, without any provocation, punched him in the mouth, while another officer grabbed his arm and kicked him in the groin. State Tr. 155:12-23; Neely Dep. at 38:21-39:9. The officers “snatched” Neely from his porch, “power slammed” him to the ground, kicked him in the ribs, and knocked him unconscious. State Tr. 155:12-23; Neely Dep. at 46:1-21. Neely denied punching or kicking any officer. State Tr. at 156:3-8; Neely Dep. at 120:9-22, 121:8-17. During his deposition, Neely testified that he never refused to give his hands to any officer, did not resist in any way, and never heard an officer command him to drop the machete or “do anything.” Neely Dep. at 120:9-22, 121:2-17.

         After Neely was handcuffed, the officers either picked him up while he “still was dazed” from being rendered unconscious, id. at 66:16-22, or picked him up while he was unconscious but then he “came back to” while the officers were carrying him to the transport van “upside down in the air by [his] arms and legs swinging in the air, ” State Tr. at 156:17-19. The officers then threw Neely into the van, where he again lost consciousness after his head hit a wall inside the van. Neely Dep. at 66:16-19. The officers took Neely to a police station and left him alone in a room, where he was handcuffed to a wall for approximately three to four hours. Id. at 75:8-13, 79:14-17.

         At some point, Neely “started beating on the table” and “spitting up blood.” Id. at 79:21- 80:6. He “came back to [his] senses” and asked for medical attention. Id. at 75:2-13, 76:1-4, 79:18-80:13, 104:1-14. He spoke with one officer, id. at 104:8-14, and in approximately ten minutes, two other officers came and transported him to the hospital; the transporting officers “did not hesitate” and “came right away.” Id. at 80:14-19, 81:5-20. Neely was treated but “didn't even think to mention that [he] had been kicked in the head several times.” Id. at 88:10- 19. Staff told him that he had bruised ribs and a “busted mouth” and recommended that he “take it easy, and give it a chance to heal.” Id. at 88:1-12.

         B. Neely's Criminal Convictions

         At trial, a jury convicted Neely of four felony offenses: two counts of aggravated battery to Officer Garza; one count of aggravated battery to Officer Desai; and one count of resisting arrest while causing injury to Officer Habiak. Defs.' 56.1 Stmt., Ex. C (Certified Conviction/Disposition), at 1, ECF No. 59-3; Defs.' 56.1 Stmt., Ex. D (Indictment), ECF No. 59-4. Neely was sentenced to a six-year term of imprisonment. Neely Dep. at 105:13-16. His convictions have not been ...

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