United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER United States District Judge.
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 , 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 . For the reasons
discussed below, the court denies Plaintiff's motion for
summary judgment and grants Defendant's motion for
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")
.) 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 .) 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") ), 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
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
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.)
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. (Id. ¶ 15.) Stutler
pursued Russell, yelling, "Stop, police."
(Id. ¶ 16.)
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.)
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-
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.)
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.
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.)
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
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 ...