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Hinch v. O'Connor

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

February 15, 2018

Charles Andre Hinch, Plaintiff,
Officer Michael O'Connor, Defendant.


          REBECCA R. PALLMEYER United States District Judge.

         Plaintiff Charles Andre Hinch has brought this pro se civil rights action under 42 U.S.C. § 1983 against Defendant Romeoville Police Officer Michael O'Connor, alleging that O'Connor used unreasonable force when he arrested Hinch on November 28, 2013. Defendant has moved for summary judgment [73], contending that the undisputed facts demonstrate that his use of force was objectively reasonable or, in the alternative, that is he is entitled to qualified immunity. Plaintiff maintains that Defendant's use of force was objectively unreasonable and has filed his own cross-motion for summary judgment [86]. For the reasons discussed below, the court denies Plaintiff's motion for summary judgment and grants Defendant's motion for summary judgment.


         The facts as set forth here are presented in Defendant's statement of uncontested material facts in support of his motion for summary judgment. (Def.'s L.R. 56.1 Stmt. of Undisputed Material Facts (hereinafter "DSOF") [75].) That statement complies with this court's Local Rule 56.1 and is supported by citations to materials in the record. Defendant has also complied with Local Rule 56.2, providing Hinch with an explanation of the requirements of Local Rule 56.1. (See Not. of Summ. J. Mot. to Pro Se Litigant [79].) For his part, Plaintiff has submitted several documents in response to Defendant's motion, but his statement of facts and responses to Defendant's statement of facts (Pl.'s L.R. 56.1 Stmt. of Disputed Material Facts in Supp. of Mot. for Summ. J. (hereinafter "PSOF") [88]), are unsupported by citations to the record, leaving Defendant's statement unrebutted. See McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998) ("An answer that does not deny the allegations in the numbered paragraph with citations to supporting evidence in the record constitutes an admission."); Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000) ("Factual allegations not properly supported by citation to the record are nullities.").[1]


         On November 28, 2013, at approximately 9:30 p.m., Plaintiff drove his neighbor Robert Russell to Kohl's Department Store in Romeoville, Illinois. (DSOF ¶ 1.) Plaintiff dropped Russell off at the store's entrance and proceeded to wait for Russell in the parking lot, which was full of people and vehicles. (Id. ¶¶ 3, 5.) Plaintiff acknowledged that he knew at the time that Russell "does a little shoplifting" and that it was possible that he would steal merchandise from Kohl's. (Id. ¶¶ 2, 3; Hinch Dep., Ex. A to DSOF [75-1], 61:12-13.)

         That evening, Amanda Hoover, Kohl's loss prevention specialist, was monitoring activity in the store from the security office using the store's video surveillance camera system. (Id. ¶ 6.) At approximately 10:05 p.m., Hoover saw two men stealing merchandise. (Id.) She called 911 and reported the theft. (Id. ¶ 7.)

         Defendant O'Connor and Officer Scott Stutler responded to a call of a retail theft in progress at the store. (Id. ¶ 9.) Defendant and Stutler arrived dressed in fully visible police uniforms, each of which included a police vest, duty belt, badge, nametag, and a Romeoville Police Department patch on the sleeve. (Id. ¶ 10.) A police dispatcher had advised Stutler that there were two black male offenders inside the store near the north entrance, so Stutler positioned himself at that entrance, waiting for the offenders to exit. (Id. ¶¶ 11-12.) Later, the dispatcher reported that one offender, later identified as Russell, was wearing a black and brown jacket with the words "I have a dream" on the back and was headed toward the store's south entrance. (Id. ¶ 14.) Stutler then observed a black male who matched the dispatcher's description exit the store, look in his direction, and start running.[2] (Id. ¶ 15.) Stutler pursued Russell, yelling, "Stop, police." (Id. ¶ 16.)

         Russell ran toward a dark-colored vehicle in an aisle of the parking lot facing the store and entered the front passenger seat of the vehicle. (Id. ¶¶ 17, 22.) By this time, Stutler had caught up to Russell; Stutler reached into the vehicle and grabbed Russell in the chest area. (Id. ¶ 23.) Stutler ordered Russell to stop and continued holding on as Russell sat down in the vehicle. (Id. ¶ 24.)

         Plaintiff was seated in the driver's seat of the vehicle that Russell entered. (See Id. ¶¶ 18, 25.) Plaintiff had driven the vehicle up the aisle of the parking lot and saw Russell coming toward him. (Id. ¶ 18.) Plaintiff saw Stutler grab Russell and wrestled with him after Russell entered the vehicle; at the time, Plaintiff knew that Stutler was a police officer and that he was trying to arrest Russell. (Id. ¶¶ 25-27.) Russell slammed the door on Stutler's right arm, trapping Stutler's arm in the door, and urged Plaintiff to drive. (Id. ¶¶ 28, 30, 34.) Stutler released his hold on Russell, but Stutler's arm was trapped by the vehicle's door as Plaintiff began to drive. (Id. ¶¶ 29, 31.) Plaintiff drove the vehicle forward with Stutler's arm still trapped in the door, dragging Stutler through the parking lot. (Id. ¶ 32.) As Plaintiff drove, Russell held the door, keeping Stutler's arm trapped, even as Stutler screamed "Stop, police!" several times. (Id. ¶¶ 34, 38.) Stutler tried reaching for his weapon several times with his left hand, but he slid down the vehicle each time. (Id. ¶ 45.) Stutler attests that he was terrified that he would be sucked underneath the vehicle, run over, and killed. (Id. ¶ 48.) Plaintiff testified during his deposition that he was "trying to get away" and was not thinking about Stutler's safety. (Id. ¶¶ 33, 35; Hinch Dep. 96:3- 14.)

         Defendant, who was in his squad car in the Kohl's parking lot, saw Stutler chasing someone in front of the store. (Id. ¶ 19.) Defendant drove down one of the aisles and saw Plaintiff's vehicle stopped in the aisle in front of him. (Id. ¶ 20.) As he exited his squad car, Defendant saw Russell run toward Plaintiff's vehicle with Stutler directly behind him. (Id. ¶ 21.) Defendant saw Stutler struggling with Russell at the front passenger door and saw Russell trap Stutler's arm in the door before Russell shouted at Plaintiff to drive away. (Id. ¶ 40.) Defendant then saw the vehicle jolt forward violently and move up the aisle toward the front of the store, dragging Stutler along with the vehcile. (Id. ¶ 41.)

         Defendant yelled, "Stop, police, " but the vehicle kept moving. (Id. ¶ 42.) Defendant also heard Stutler yell "10-78, " a code meaning that an officer needs assistance. (Id. ¶ 43.) Two eyewitnesses, a Kohl's customer walking in the parking lot and Hoover, the Kohl's employee, recall that Stutler had a look of "fear or distress" on his face. (Id. ¶ 39.) As Plaintiff drove away, the car windows were rolled up, and the radio was on. (Id. ¶ 36.) Plaintiff maintains that he did not hear the officers yelling for him to stop the vehicle. (Hinch Dep. 100:8-101:10.)

         When Plaintiff's vehicle reached the end of the parking lot aisle in front of the store, he made a right turn. (Id. ¶ 46.) Defendant could see that Stutler's arm was still trapped in the vehicle and that he was being dragged "in a vertical helpless position." (Id. ¶ 44; O'Connor Aff. ¶ 19.) Defendant believed that Stutler would be sucked underneath the vehicle, run over, and killed. (Id. ¶ 47.) He concluded that the only effective way to save Stutler's life was to discharge his firearm to stop the vehicle from continuing to drag Stutler through the parking lot. (Id. ¶ 50.) Defendant removed his firearm from its holster and fired several shots at the driver's side of the moving vehicle. (Id. ¶ 51.) Plaintiff was shot in his left elbow. (Id.) The vehicle came to a stop, and Stutler was able to remove his arm. (Id. ¶ 52.) Less than one minute elapsed between the time Russell left the store and the time that shots were fired. (Id. ¶ 54.)

         Defendant, Stutler, Hoover, and two bystanders in the parking lot all stated that they believed Stutler's life was in danger and that, had Defendant not fired his weapon, Stutler would have continued to be dragged and would be run over, resulting in serious injury or death. (Id. ¶ 58.) Plaintiff also acknowledged at his deposition that dragging a person by a car could result in serious injury or death. (Id. ¶ 56.) As a result of being dragged, Stutler suffered nerve damage and a torn labrum in his right shoulder. (Id. ¶ 60.) He underwent surgery but eventually was forced to retire due to the injuries he sustained. (Id.)

         Plaintiff and Russell were taken into custody. (Id. ¶ 53.) Plaintiff subsequently was indicted on two felony counts of aggravated battery. (Id. ¶ 62.) The criminal indictment charges that on November 28, 2013, Plaintiff

knowingly and without legal justification made physical contact of an insulting or provoking nature with Scott Stutler, knowing Scott Stutler to be a peace officer employed by the Romeoville Police Department, engaged in the performance of his official duties, in that said defendant drove a vehicle ...

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