United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge.
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  is granted
as to all claims.
Northern District of Illinois Local Rule 56.1
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
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).
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”).
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
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.
Events at Neely's Home
Officers' Testimony in the Underlying Criminal
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.
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.
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.
Neely's Version of Events
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?” State Tr. at 155:5-11; Neely Dep. at
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.
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
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.
Neely's Criminal Convictions
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 ...