United States District Court, N.D. Illinois, Western Division
G. REINHARD JUDGE.
reasons stated below, defendants' motion for summary
judgment  is granted in part and denied in part.
Defendants' motion for summary judgment as to all of
plaintiff's claims regarding the incident in the church
parking lot against defendants Gulbrantson and Anderson is
granted. Defendants' motion for summary judgment as to
plaintiff's claims for excessive force and battery
against defendant Gulbrantson regarding the incident outside
the hospital is denied. Defendants' motion for summary
judgment regarding plaintiff's claims for intentional
infliction of emotional distress and failure to intervene is
granted. Defendants Anderson and Nicosia are terminated as
parties. Defendants City of Rockford, and officers Gradke,
Brass, and Webster are voluntarily dismissed with prejudice.
The court orders the parties to set this case for a
settlement conference with Magistrate Judge Iain Johnston
within 30 days regarding the remaining claims of excessive
force and battery against defendant Gulbrantson for the
incident outside the hospital.
filed his second amended complaint (“complaint”)
on August 10, 2015, against defendants City of Rockford,
Officer Anderson, Officer Gulbrantson, Sgt. Brass, Officer
Gradke, Officer H. Webster, and Officer D. Nicosia alleging
excessive force against the individual defendants and
unconstitutional policies, practices and customs against the
City of Rockford. Plaintiff's complaint further alleges
common law battery, intentional infliction of emotional
distress, and failure to intervene . Defendants have
moved for summary judgment on all counts pursuant to Federal
Rule of Civil Procedure 56. Defendants' motion,
memorandum, and Local Rule 56.1 statement, as well as
plaintiff's response, memorandum, response to
defendants' Local Rule 56.1 statement, and
defendants' reply and reply to plaintiff's statement
of additional facts are all before the court. For the reasons
stated below, defendants' motion is granted in part and
denied in part.
to addressing the merits of the defendants' motion, the
court takes notice of plaintiff's “motion to
dismiss” defendants City of Rockford, and officers
Gradke, Brass, and Webster, included in his response to
defendants' motion for summary judgment. See
. After a defendant has served a motion for summary
judgment, “an action may be dismissed at the
plaintiff's request only by court order, on terms that
the court considers proper.” Fed.R.Civ.P. 41(a)(2). In
this stage of the proceedings, a court may dismiss parties
with prejudice after taking into account the following: (1)
the defendants' effort and expense of preparation for
trial; (2) excessive delay and lack of diligence on the part
of the plaintiff in prosecuting the action; (3) insufficient
explanation for the need to take a dismissal; and (4) whether
the defendants have filed a motion for summary judgment.
Ratkovich By and Through Ratkovich v. Smith Kline,
951 F.2d 155, 158 (7th Cir. 1991). Plaintiff did not provide
any explanation for the need to dismiss these defendants and
did not move for such dismissal until defendants filed their
motion for summary judgment. Taking these factors under
consideration, pursuant to Fed.R.Civ.P. 41(a)(2), the court
finds it appropriate to dismiss defendants City of Rockford,
and officers Gradke, Brass, and Webster with prejudice. The
remaining defendants are officers Gulbrantson, Anderson and
initial matter, Local Rule 56.1(b)(3)(B) provides that the
opposing party is required to 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.” Plaintiff disputes,
in part or whole, 19 of defendants' 60 material facts. In
some of these disputes, plaintiff notes citations to the
record that fail to actually dispute defendants' facts.
Additionally, plaintiff's objections to defendants'
“use of inconsistent affidavits” are equally
inaccurate. While the court views the record in the light
most favorable to the plaintiff (the non-movant), Heath
v. Indianapolis Fire Dept., 889 F.3d. 872, 873-74(7th
Cir. 2018), “[w]hen a responding party's statement
fails to dispute the facts set forth in the moving
party's statement in the manner dictated by the rule,
those facts are deemed admitted for purposes of the
motion.” Cracco v. Vitran Exp., Inc., 559 F.3d
625, 632 (7th Cir. 2009). Specifically, plaintiff has denied
and objected to paragraphs 10 through 16 of defendants'
Rule 56.1 statement of facts which details officer
Anderson's identification and pursuit of plaintiff.
Plaintiff objects to defendants' use of officer
Anderson's affidavit as inconsistent with her testimony.
After a close review of the record, the court concludes that
officer Anderson's affidavit is not inconsistent with her
testimony, but adds detail to her testimony. The additions
and clarifications contained in officer Anderson's
affidavit are modest and permissible. See Quinlan v.
Elysian Hotel Co., LLC, 916 F.Supp.2d 843, 849-50 (N.D.
Ill. Jan. 4, 2013).
court summarizes the facts as follows. On April 4, 2014, at
approximately 3:06 p.m., officers Anderson and Gulbrantson
were dispatched to a residence on Crampton Court in Rockford
in response to domestic trouble including a possible
residential burglary.  at ¶ 8. The investigation
revealed that plaintiff's mother observed plaintiff
exiting a back window of her home carrying a television set.
Plaintiff's mother advised dispatch of her son's
description and stated she saw him walking southbound toward
a nearby church. Id. at ¶ 9. On her way to
Crampton Court, officer Anderson searched her in-car computer
for a picture of plaintiff from the Winnebago County Jail
website. She located a recent picture of him as well as
information that plaintiff had an outstanding arrest warrant
for contempt of court. The warrant described plaintiff as
armed and dangerous. Id. at ¶ 10. As officer
Anderson drove through the area, she spotted a man that
matched plaintiff's description. Id. at ¶
11-12. Officer Anderson followed plaintiff both by car and on
foot in an attempt to make contact with him. She noticed
plaintiff was carrying a black bag containing, what appeared
to be, a small television or computer screen. Id. at
¶ 13-15. After officer Anderson called out
plaintiff's name, he looked at her, turned away and ran.
Officer Anderson announced plaintiff's general location
over the police radio as she continued in pursuit.
Id. at ¶ 16. Based on officer Anderson's
announcements, officer Gulbrantson made visual contact with
plaintiff as well. Id. at ¶ 18. Officers
Anderson and Gulbrantson both continued to pursue plaintiff
on foot through neighborhoods. Id. at ¶ 18-22.
Officer Anderson caught up to plaintiff at the southeast
entrance of Rockford First Church. Id. at ¶ 22.
Officer Gulbrantson arrived at the church after officer
Anderson, noticed plaintiff was carrying a bag, and did not
know what was in it or whether it contained a weapon. He
feared plaintiff could use the bag as a weapon. The officers
approached plaintiff, forming a triangle shape. Id.
at ¶ 24. At this point, the parties' accounts differ
to some degree.
Defendants' factual account
to defendants, plaintiff stopped running, turned around, and
made eye contact with officer Anderson. Id. at
¶ 23. Officer Anderson ordered plaintiff to the ground
but he did not comply. Id. She repeated her
commands, yet plaintiff did not comply and continued to hold
the bag in his hands. Id. As the warrant for
plaintiff's arrest indicated he may be armed and
dangerous, officer Anderson was in fear plaintiff would use
the bag or its contents as a weapon. Id. Plaintiff
was almost a foot taller than officer Anderson and was almost
double her body weight. Id. Officer Gulbrantson
arrived at the scene and drew his duty pistol. Id.
at ¶ 25. Recalling that the arrest warrant indicated
plaintiff may be armed and dangerous, officer Gulbrantson
kept his duty pistol pointed at plaintiff as he approached
him. Id. at ¶ 26. Plaintiff did not comply with
officer Gulbrantson's repeated commands to go to the
ground. Id. Officer Gulbrantson holstered his duty
pistol once he came close enough to plaintiff for a physical
confrontation. Id. at ¶ 27. When officer
Gulbrantson was within 10 feet of plaintiff, he could see
plaintiff's hands still holding the bag. Id. He
continued to order plaintiff to the ground and plaintiff
continued to refuse to comply. Id. Officer
Gulbrantson attempted a leg sweep which plaintiff blocked
with his bag, causing an open cut to officer
Gulbrantson's shin. Id. at ¶ 28. Officer
Anderson then deployed OC spray at plaintiff. Id. at
¶ 29. She could see that some of the spray got into
plaintiff's eyes, however he did not respond, did not
fall to the ground, and did not comply with commands to go to
the ground. Id. Eventually, both officers were able
to push plaintiff to the ground where he landed on his hands
and knees. Id. at ¶ 30. Plaintiff had his hands
under his body, refusing to put them behind his back.
Id. at ¶ 31. To gain compliance, officer
Gulbrantson delivered two to three palm heel stuns to the
right side of plaintiff's face. Id. These stuns
were not effective in obtaining plaintiff's compliance.
Id. Officer Gulbrantson then delivered two or three
sideway blows. Id. at ¶ 32. Plaintiff
physically resisted officer Anderson's efforts to move
his arms around to his back. Id. Officer Anderson
then slapped plaintiff on the left side of his head to stun
him long enough to secure his hands behind his back.
Id. at ¶ 33. Plaintiff was then secured in
requested medical attention at the scene. Id. at
¶ 34. Plaintiff was transported to OSF Saint Anthony
Medical Center for treatment. Id. at ¶ 38.
Prior to plaintiff's release, officer Gulbrantson took
over guard duty of plaintiff at the hospital and plaintiff
was medically cleared for transport to the jail. Id.
at ¶ 41. Transport officers Webster and Nicosia arrived
at the hospital and, with officer Gulbrantson, escorted
plaintiff out of the hospital and outside to the transport
van. Id. at ¶ 42. Once outside, plaintiff
turned and spat on officer Gulbrantson. Id. at
¶ 43. Officer Nicosia pulled plaintiff away from officer
Gulbrantson, they both lost their balance and went to the
ground. Id. at ¶ 43. Once on the ground,
plaintiff wriggled and squirmed his head trying to release
himself from officer Nicosia. Id. Plaintiff was then
loaded into the van and transported to the jail. Id.
at ¶ 44.
Plaintiff's factual account
court details plaintiff's factual account to the extent
it differs from defendants' account.
officers approached plaintiff in the church parking lot,
officer Anderson directed plaintiff to stop. He stopped and
stood, facing officer Gulbrantson, with the bag still in his
hand. Plaintiff's hands were “plain as day.”
[76-1] at pp. 62, 69, 72. Once officer Gulbrantson was
approximately 20 feet away, he walked up to plaintiff, drew
his weapon and said, “I should shoot you in your
fucking face.” Id. With officer
Gulbrantson's weapon at plaintiff's forehead, officer
Anderson reached toward plaintiff's face with her arm
outstretched. Id. at p. 63. Plaintiff saw something
come toward his face, he turned his head and was hit with OC
spray. Id. Plaintiff then felt officer Gulbrantson
kick his right leg and he went down to the ground on his
stomach. Id. at pp. 63, 77. At this point,
plaintiff's arms were “pinned, ” he was
“incapacitated, ” and felt multiple blows to the
right side of his face. Id. at pp. 63, 82. At this
point, plaintiff was cuffed and sat up “Indian
style” on the ground while officer Gulbrantson pushed
his knees into plaintiff's back, pushing him forward.
Id. at p. 64. Plaintiff testified he “posed no
threat” to the officers. Id. at p. 78.
after, other officers arrived at the scene and plaintiff
requested medical attention. Id. at p. 90. Within
approximately five or six minutes, an ambulance arrived and
took plaintiff to OSF Saint Anthony Medical Center.
Id. at pp. 90, 93. When plaintiff was released from
the emergency department of the hospital, officers Nicosia
and Webster arrived to transport him to the jail.
Id. at p. 103. Plaintiff, handcuffed and leg
shackled, walked down the hospital hallway toward the exit
with officers Nicosia, Webster and Gulbrantson. Id.
at p. 105. Once outside next to the transport van, plaintiff
told officer Gulbrantson to “fuck himself.”
Id. at p. 107. At that point, according to
plaintiff's deposition testimony, officer Gulbrantson
immediately grabbed plaintiff, slammed him down, and ground
his head back and forth on the concrete. Id. One of
the officers retrieved a “spit sock” and held it
near plaintiff's face as the other officers lifted
plaintiff up and put him in the transport van. Id.
at pp. 109, 114. Plaintiff was then brought to the Winnebago
County Jail. Id. at p. 116.
Criminal charges against plaintiff and guilty plea
December 4, 2015, the Winnebago County State's Attorney
filed a two-count amended information, charging plaintiff
with Attempt Burglary, a Class 3 felony in violation of
Illinois state statute 720 ILCS 5/19-1(a), and Resisting a
Peace Officer, a Class A misdemeanor in violation of Illinois
state statute 720 ILCS 5/31-1(a). Also on December 4, 2015,
plaintiff pleaded guilty to both Attempt Burglary and
Resisting a Peace Officer. As to the factual basis for his
plea to Resisting a Peace Officer, plaintiff agreed to, among
other facts, the following:
On April 4, 2014, Rockford City Police Department officers
responded to a burglary at 5845 Crampton Court, Rockford,
Illinois. Upon arrival officers observed the defendant,
Christian Littrell, at Spring Creek and Mulford Road. Upon
seeing the officers, the defendant ran from them. The
officers chased the defendant and observed he had something
in his hands. Officers Eric Gulbrantson and Rebecca Anderson
repeatedly ordered the defendant to the ground. The defendant
refused to comply. Officers were eventually able to take the
defendant into custody, and the item in the defendant's
hands was a television that was taken from Pamela
Littrell's home at 5845 Crampton Court. [...] As Officer
Gulbrantson was walking the defendant to the squadroll van to
be transported to the jail, the defendant threatened Officer
Gulbrantson and spit [sic] on him.
[76-13] at p. 12-13. See also plaintiff's signed
plea of guilty at [76-1]. The trial court accepted
plaintiff's guilty plea and entered a judgment of