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Flerlage v. Oswego

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

November 30, 2017

BONNY FLERLAGE, et al., Plaintiffs,
v.
VILLAGE OF OSWEGO, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey Judge

         Plaintiffs Bonny Flerlage, Tyler Flerlage, Alexia Flerlage, and Austin Decowski sue Defendants Village of Oswego and numerous Oswego police officers for alleged civil rights violations stemming from the officers' response to a 911 call. Plaintiffs allege that Defendants, among other things, used excessive force against them in violation of 42 U.S.C. § 1983. Plaintiffs filed their fifth amended complaint in April 2015. [123]. Defendants moved for summary judgment on all claims except Bonny's excessive force claim. [215]. For the reasons explained below, this Court grants Defendants' motion in part and denies it in part.

         I. Background

         The facts here come from Defendants' Local Rule 56.1 statement of material facts [216] and Plaintiffs' Local Rule 56.1 statement of additional facts [231].

         On August 24, 2011, Decowski drank seven to ten beers over the course of the night, ending up at a Buffalo Wild Wings in Oswego with his friend Blake Osborne. [216] ¶¶ 7-8. They decided to start walking home from the restaurant around 11:30 p.m. Id. ¶ 10. Decowski's mother, Bonny, drove to pick them up and brought Decowski's teenaged half-siblings, Alexia and Tyler, in the car with her. [231] ¶¶ 4- 5; [216] ¶ 12. When the Flerlages arrived to find Decowski and Osborne on the side of the road, Decowski “became enraged” and Bonny yelled at him to get in the car. [216] ¶¶ 13-14. Tyler testified that his brother fought against getting in the car “because he didn't know who we were” and stumbled towards the street, so Tyler either tripped Decowski or pulled him to the ground to prevent him from entering the street. [216-2] at 42. Tyler then sat on top of his brother. Id.

         A passerby pulled over near the Flerlages and asked if they needed help. [216] ¶ 16. At Bonny's request, that passerby drove Osborne away from the scene. Id. ¶ 18. Shortly after, another passerby called 911 upon seeing the Flerlages and reported a fight occurring on the side of the road involving “at least five people.” Id. ¶ 19; [231] ¶ 17. Defendant Officer Melhouse arrived on the scene first. [216] ¶ 21. The parties dispute what Melhouse saw when he arrived: Defendants claim that Tyler remained sitting on top of Decowski, id. ¶ 22, while Plaintiffs say that Decowski lay on the ground with Tyler next to him. [231] ¶ 19. As Melhouse arrived, Decowski grabbed Alexia's leg-either to brace himself to stand up or to pull her down-and Alexia fell to the ground. [216] ¶ 23; [231] ¶¶ 14-15. The parties dispute most of the events from this point forward.

         A. Police Interactions with Decowski and Tyler

         Defendants say that Melhouse told the brothers to stop struggling with each other as he approached and then pushed Tyler off of his brother so he could arrest Decowski. [216] ¶ 24. But Plaintiffs say that Melhouse yelled “Get the fuck out of the way” and started beating Decowski without warning. [231] ¶ 26. Decowski then lunged at Melhouse from the ground, grabbing Melhouse's waist near his gun and baton. [216] ¶ 27. Decowski pled guilty to grabbing Melhouse in a criminal case, but the other Plaintiffs all deny that Decowski grabbed Melhouse. [230] ¶ 27. Melhouse admits to striking Decowski in the face several times with a closed fist after Decowski attacked him. [216] ¶ 28. Plaintiffs (besides Decowski) say that Decowski remained lying on the ground while Melhouse attacked him without reason. [231] ¶ 26. At some point, Decowski lost consciousness. Id. ¶ 27. Plaintiffs say that Melhouse continued punching the unconscious Decowski. Id. ¶ 28.

         Tyler then pushed Melhouse, who tripped over the unconscious Decowski. Id. ¶ 31. Tyler swung a closed fist at Melhouse, who blocked Tyler's punch and struck him in the face. Id. ¶¶ 33-34. Defendants say Melhouse hit Tyler with a closed fist, id. ¶ 34, but Plaintiffs say he used a flashlight. [231] ¶ 31.

         Defendant Officer Nehring arrived on the scene around 12:10 a.m. [216] ¶ 26. He saw Tyler swing at Melhouse, and left his vehicle to tackle Tyler in response. Id. ¶ 35. According to Defendants, when Tyler resisted Nehring, Nehring hit him in the face with a closed fist. Id. ¶¶ 36-37. Plaintiffs, however, say that both officers punched an unresisting Tyler multiple times. [231] ¶¶ 41-42. During the altercation with Tyler, Bonny and Alexia screamed. [216] ¶42.

         Melhouse then turned towards Decowski and radioed for emergency medical help, reporting an “unresponsive, but breathing” person to dispatch. Id. ¶¶ 38-39. Plaintiffs acknowledge that Melhouse radioed for aid, but say he pushed Alexia- who stood next to Decowski-to the ground before calling for help. [231] ¶ 44. Unsurprisingly, Defendants' account differs; they say that Melhouse merely moved Alexia out of the way. [216] ¶ 43.

         Sergeant Bond and Officers Graver and Dilg then arrived at the scene. Id. ¶¶ 44. At some point before the other officers arrived, Nehring had “secured” Tyler. Id. ¶ 44. Bond asked Nehring what happened, and Melhouse joined the discussion. [231] ¶ 48. Nehring then turned off the radio recorder for a few minutes. Id.

         Paramedics arrived shortly after Bond, Graver, and Dilg. [216] ¶ 45. Defendants say that paramedics immediately tried to examine Decowski, and Decowski regained consciousness, struck a paramedic in the knee, and behaved belligerently, threatening officers and paramedics and spitting and flailing to prevent paramedics from coming near him. Id. ¶¶ 46-47. Thus, Defendants say, the paramedics could not treat him. Id. ¶ 48. Plaintiffs say that paramedics never tried to examine Decowski and instead stood near him and taunted him even though he remained calm. [231] ¶¶ 52, 54. After Robert Flerlage-Bonny's husband and Decowski's stepfather-arrived on the scene, he signed a “refusal of medical treatment” form for both Decowski and Tyler. [216] ¶ 49.

         Unknown (or unspecified) officers placed Decowski in a police van with a spit hood on his head. [231] ¶ 60. Decowski testified that he dry-heaved while in the van and felt like he could not breathe. Id. ¶ 61. Decowski asked the transporting officer to remove the hood; that officer refused and told Decowski to “stop fucking puking.” Id. ¶ 62. Melhouse's testimony reveals that he rode in the van with Decowski, but Melhouse denies swearing at Decowski. [236] ¶ 60.

         B. Police Interactions with Bonny and Alexia

         The exact timing remains unclear, but at some point during these events Bond escorted Bonny and Alexia to the other side of the street to move them away from Decowski and Tyler. [216] ¶ 55. Bond overheard Bonny on the phone with someone. Id. ¶ 56. Dilg crossed to Bonny's side of the street then, and Dilg and Bond told Bonny to get off the phone and hang up. Id. ¶ 57. The parties agree that Bonny gave the phone to Alexia without hanging up the call, but dispute whether she did so to comply with the officers' orders or to avoid complying. Id. ¶ 58.

         Dilg told Alexia to get off the phone and then reached for the phone. Id. ¶¶ 59-60. Defendants claim that Alexia resisted Dilg's orders and held tight to the phone after he reached for it. Id. ¶ 62. Plaintiffs say Alexia simply did not have time to respond before Dilg reached for the phone, and that she released the phone when he grabbed it. [231] ¶ 74.

         Bonny reached for the phone at the same time Dilg did; Defendants say she also grabbed Dilg's hand and pulled on his arm, while Plaintiffs say that Bonny and Dilg merely “made physical contact with each other.” Id. ¶ 73; [216] ¶ 63. During her criminal trial, however, Bonny testified: “I grabbed his hand reaching for the phone.” [216-23] at 147.

         The officers then arrested Bonny and put her in Nehring's squad car; they detained Alexia during her mother's arrest. Id. ¶ 66. The officers kept Alexia in handcuffs and told her to sit on the ground-Defendants say only for a few minutes-until they released her to her father when he arrived on scene. Id. ¶ 66; [231] ¶ 80.

         For the course of Dilg and Bond's interaction with Bonny and Alexia on the far side of the road, Nehring, Melhouse, and Graver remained on the opposite side of the road with Tyler and Decowski. [216] ¶ 68. Graver never interacted with Bonny or Alexia; Dilg and Nehring never interacted with Decowski. Id. ¶¶ 69-71.

         C. Arrests and Criminal Cases

         Officers arrested Decowski and Tyler and charged both with various crimes. [216] ¶¶ 51-52. Tyler pled guilty to one count of aggravated battery and stipulated to the following factual basis for his plea: “On August 25, 2011, he [Officer Melhouse] was dispatched to a fight in progress. As he was trying to disrupt-to break up the fight-the minor raised his fist and ran towards Officer Melhouse again and punched at him thereby placing him believing [sic] that he would receive a battery as to that, and that Officer Melhouse was performing his duties as an officer and was wearing a uniform at the time.” Id. ¶ 53.

         Decowski pled guilty to one count of aggravated assault and stipulated to the following factual basis for his plea: “On or about the date in question, August 25, 2011, Officer Melhouse from the Oswego Police Department was attempting to place Mr. Austin under arrest. While he was trying to do so, Mr. Austin grabbed Officer Melhouse by the leg and waist area while Officer Melhouse was performing acts authorized by law. He was, in fact, a police officer at the time.” Id. ¶ 54.

         Officers arrested Bonny and charged her with battery and obstructing or resisting a peace officer. Id. ¶ 67. She was acquitted of both charges after a trial. [231] ¶ 83.

         D. Alexia's Bankruptcy Filings

         Alexia filed for Chapter 7 bankruptcy in January 2017. [216] ¶ 72. At that time, the parties had completed a significant amount of discovery in this case. Id. Yet Alexia denied under oath that she owned any legal claims, and the bankruptcy court discharged her debts in April 2017. Id. ΒΆΒΆ 73-74. Alexia reopened her ...


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