United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey Judge
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.
. Defendants moved for summary judgment on all claims
except Bonny's excessive force claim. . For the
reasons explained below, this Court grants Defendants'
motion in part and denies it in part.
facts here come from Defendants' Local Rule 56.1
statement of material facts  and Plaintiffs' Local
Rule 56.1 statement of additional facts .
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.  ¶¶ 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.  ¶¶ 4- 5;  ¶ 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.  ¶¶ 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.
passerby pulled over near the Flerlages and asked if they
needed help.  ¶ 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;  ¶ 17.
Defendant Officer Melhouse arrived on the scene first. 
¶ 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. 
¶ 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.  ¶ 23; 
¶¶ 14-15. The parties dispute most of the events
from this point forward.
Police Interactions with Decowski and Tyler
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.  ¶ 24. But
Plaintiffs say that Melhouse yelled “Get the fuck out
of the way” and started beating Decowski without
warning.  ¶ 26. Decowski then lunged at Melhouse
from the ground, grabbing Melhouse's waist near his gun
and baton.  ¶ 27. Decowski pled guilty to grabbing
Melhouse in a criminal case, but the other Plaintiffs all
deny that Decowski grabbed Melhouse.  ¶ 27.
Melhouse admits to striking Decowski in the face several
times with a closed fist after Decowski attacked him. 
¶ 28. Plaintiffs (besides Decowski) say that Decowski
remained lying on the ground while Melhouse attacked him
without reason.  ¶ 26. At some point, Decowski lost
consciousness. Id. ¶ 27. Plaintiffs say that
Melhouse continued punching the unconscious Decowski.
Id. ¶ 28.
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.  ¶ 31.
Officer Nehring arrived on the scene around 12:10 a.m. 
¶ 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. 
¶¶ 41-42. During the altercation with Tyler, Bonny
and Alexia screamed.  ¶42.
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.  ¶
44. Unsurprisingly, Defendants' account differs; they say
that Melhouse merely moved Alexia out of the way. 
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.  ¶ 48. Nehring then
turned off the radio recorder for a few minutes. Id.
arrived shortly after Bond, Graver, and Dilg.  ¶
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.
 ¶¶ 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.  ¶ 49.
(or unspecified) officers placed Decowski in a police van
with a spit hood on his head.  ¶ 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.  ¶ 60.
Police Interactions with Bonny and Alexia
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. 
¶ 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.
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.  ¶ 74.
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;  ¶ 63. During her criminal trial, however,
Bonny testified: “I grabbed his hand reaching for the
phone.” [216-23] at 147.
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; 
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.  ¶ 68. Graver never interacted with
Bonny or Alexia; Dilg and Nehring never interacted with
Decowski. Id. ¶¶ 69-71.
Arrests and Criminal Cases
arrested Decowski and Tyler and charged both with various
crimes.  ¶¶ 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.
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.
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.  ¶ 83.
Alexia's Bankruptcy Filings
filed for Chapter 7 bankruptcy in January 2017.  ¶
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. ¶¶ 73-74. Alexia reopened her