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Littrell v. Gulbrandson

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

June 12, 2018

Christian Littrell, Plaintiff,
v.
Erik Gulbrantson, et al., Defendants.

          ORDER

          PHILIP G. REINHARD JUDGE.

         For the reasons stated below, defendants' motion for summary judgment [74] 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.

         STATEMENT-OPINION

         Plaintiff 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 [23]. 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.

         Prior 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 [80]. 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 Nicosia.

         A. FACTUAL BACKGROUND

         As an 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).

         The 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. [76] 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.

         1. Defendants' factual account

         According 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 handcuffs. Id.

         Plaintiff 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.

         2. Plaintiff's factual account

         The court details plaintiff's factual account to the extent it differs from defendants' account.

         As the 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.

         Shortly 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.

         3. Criminal charges against plaintiff and guilty plea

         On 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 conviction.

         B. ...


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