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Denson v. Village of Johnsburg

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

June 7, 2019

Stephen Denson, et al., Plaintiffs,
v.
Village of Johnsburg, et al., Defendants.

          ORDER

          PHILIP G. REINHARD JUDGE

         For the reasons set forth below, defendants' motions for summary judgment [38], [40], are denied. Finding the claims in this case appropriate for settlement, the court orders the parties to contact Magistrate Judge Jensen within seven (7) days of the date of this order to schedule a settlement conference.

         STATEMENT - OPINION

         This matter arises out of plaintiffs Stephen Denson's and Susan Flood's 42 U.S.C. § 1983 complaint [1] alleging they were subject to false arrest (Counts I and III), and malicious prosecution (Counts V and VI) by defendant Johnsburg police officers J. Ehlers and M. Vollmer. Plaintiff Denson further alleges he was subject to excessive force (Count II) by the defendant officers. Plaintiffs also bring claims of respondeat superior and indemnification against the Village of Johnsburg (Counts VII and VIII).[1]

         On October 18, 2018, defendants filed motions for summary judgment on plaintiffs remaining claims under Fed.R.Civ.P. 56 and Local Rule 56.1 [38], [40]. On December 10, 2018, plaintiffs filed responses in opposition [45], [46]. On December 24, 2018, defendants filed replies [48], [49]. This matter is now ripe for the court's review.

         A. FACTUAL BACKGROUND

         On November 29, 2015, at around 1:30 a.m., plaintiff Stephen Denson was at Halftime Bar & Grill in Johnsburg, when defendant Johnsburg police officers J. Ehlers and M. Vollmer pulled into the parking lot of the bar. The officers were there to obtain security camera footage regarding an incident that had happened at the bar earlier that night. When defendant Vollmer pulled into the parking lot in his squad car he recognized plaintiff Denson and spoke briefly to him through his squad car window as plaintiff Denson leaned on the car's window sill. Plaintiff Denson was intoxicated and appeared to defendant Vollmer to be agitated. Plaintiff Denson told defendant Vollmer he was “pissed” and slammed the inside door panel of defendant Vollmer's front passenger side door panel.

         As defendant Ehlers was arriving in the parking lot and defendant Vollmer was moving his squad car to make room for him, plaintiff Denson threw an object in the direction of the squad cars. Defendants assert the object hit the bumper of defendant Ehlers' squad car; plaintiff disputes the object hit the car. This prompted the defendant officers to get out of their cars and approach plaintiff Denson and ask him what he had thrown. Plaintiff Denson did not answer the defendant officers' questions. Defendant Vollmer then directed plaintiff Denson to sit in the officer's squad car. Defendant Vollmer then viewed surveillance video which showed that plaintiff Denson threw an object at or in the direction of the squad cars. While defendant Vollmer was viewing the surveillance video, defendant Ehlers moved his squad car and discovered that the object thrown by plaintiff Denson was a cell phone. Defendant Ehlers issued plaintiff Denson a village citation for littering for throwing the cell phone.

         At some point after plaintiff Denson threw the cell phone, plaintiff Flood arrived at the parking lot with plaintiff Denson's sister Jeanine Lundy and plaintiff Denson's friend Mario Casciaro. After being issued the littering citation, plaintiff Denson was free to go and walked over to Casciaro's car. While walking to Casciaro's car, plaintiff Denson tore up the littering citation and threw it on defendant Ehlers' squad car. Defendant Vollmer then ordered plaintiff Denson to get out of Casciaro's car and pick up the paper citation pieces. Plaintiff got out of the car and began picking up the citation pieces. In picking up the torn pieces off of defendant Ehlers' car, defendants claim plaintiff Denson brought his hand down forcefully on top of the car. Defendant Vollmer testified he heard the metal hood of the car pop in and out. Plaintiff Denson testified he did not slam his hand down on the car, he was merely reaching his hand over the hood of the car to pick up the paper citation pieces. The security camera video footage provided by the parties is difficult to discern. The video shows a person, presumed to be plaintiff, walking over to the hood of what appears to be a squad car, taking his left hand and arm and coming down on the hood and sweeping something away from the hood. The video shows plaintiff repeating this action twice. Defendants assert that after plaintiff Denson forcefully brought his hand down on defendant Ehlers' squad car, scattering the pieces of the paper citation, he walked away without picking up all of the pieces. Plaintiff Denson claims he was prevented from picking up all of the pieces, was told to stop and then was placed under arrest for (at least) criminal damage to property. While defendant officers Vollmer and Ehlers were placing handcuffs on plaintiff Denson during the arrest, plaintiff Denson rotated his body from facing the squad car. Plaintiff Denson then turned his head and made some remark to the defendant officers and the defendant officers shoved plaintiff Denson into the side of defendant Ehlers' squad car. Defendants claim the side mirror was knocked out of place during plaintiff Denson's arrest. Plaintiff Denson claims he was shoved into the side mirror by the defendant officers. Defendants claim the side mirror became twisted out of place when plaintiff Denson was picking up the pieces of the citation and the officers believed at that point that the mirror had been damaged. The video fails to accurately show what happened to the side mirror and when. Plaintiff Denson was issued a second citation for littering as well as charged with criminal damage to property under Illinois law 730 ILCS 5/26-1.[2]

         After plaintiff Denson was taken to the Johnsburg police department, defendant Vollmer began to take pictures of defendant Ehlers' squad car while the car was outside the sally port. While taking the pictures, plaintiff Flood arrived (with Lundy and Casciaro), walked up to the squad car and moved the side mirror back into its proper position. Defendant Vollmer believed plaintiff Flood moved the side mirror into its proper position in an effort to obstruct defendants' investigation and to help plaintiff Denson. Plaintiff Flood was then placed under arrest and charged with obstructing a police officer. Plaintiff Flood disputes she moved the side mirror back into its place to help plaintiff Denson as plaintiff Denson had been arrested for the alleged damage to the hood of defendant Ehlers' squad car. Defendant Vollmer turned over the criminal complaint against plaintiff Flood for obstructing a police officer to the McHenry County State's Attorney. Plaintiff Flood was acquitted after trial of this offense. All three charges against plaintiff Denson were nolle prossed by the state.

         B. LEGAL STANDARD

         On summary judgment, the court construes all facts and draws all inferences in the light most favorable to the non-moving party. Schepers v. Commissioner, Indiana Dept. of Corrections, 691 F.3d 909, 913 (7th Cir. 2012). The court does not weigh evidence or determine the credibility of witness testimony. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). Instead, the court only grants summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law” supported by citations to materials in the record, including, among other things, depositions, documents, and affidavits. Fed.R.Civ.P. 56(a). That said, Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In evaluating the parties' Local Rule 56.1 statement of material fact and responses, the court is cognizant of its obligation to construe all disputed and undisputed facts in the light most favorable to the plaintiff. See Schepers, 691 F.3d at 913.

         C. ANALYSIS

         1. Plaintiff Denson's claim for false arrest against defendants ...


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