United States District Court, N.D. Illinois, Eastern Division
JANET GODINEZ, on behalf of herself and as administrator of the estate of her brother, HERIBERTO GODINEZ, Deceased, Plaintiff,
THE CITY OF CHICAGO, et al., Defendants.
MEMORANDUM OPINION AND ORDER
M. ROWLAND, UNITED STATES DISTRICT JUDGE
Janet Godinez filed this action against Defendant City of
Chicago (“the City”) and individually named
Defendant Police Officers (“Defendant Officers”)
for conduct, she alleges, resulted in the death of her
26-year-old brother Heriberto Godinez on July 20, 2015.
Plaintiff asserts excessive force, failure to intervene,
supervisory liability and conspiracy claims under 42 U.S.C.
§ 1983, a Monell policy claim, and Illinois
state law claims for wrongful death, battery, and intentional
infliction of emotional distress. Before the Court are cross
motions for summary judgment by Plaintiff and Defendant
Officers on the excessive force and failure to intervene
claims. Defendant Officers also move for summary judgment on
the supervisory liability, conspiracy, and state law claims,
as well as their qualified immunity defense.
reasons stated below, Plaintiff's motion for summary
judgment  is denied and Defendant Officers' motion
for summary judgment  is granted in part and denied in
part. The Court denies Plaintiff's summary judgment
motion on excessive force and failure to intervene. The Court
grants summary judgment for Defendants on Plaintiff's
conspiracy claim, but denies summary judgment on the
excessive force, failure to intervene, supervisory liability
claims, state law claims, and Defendants' qualified
judgment is proper where “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.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A genuine dispute as
to any material fact exists if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The substantive law
controls which facts are material. Id.
party seeking summary judgment has the burden of establishing
that there is no genuine dispute as to any material fact.
See Celotex, 477 U.S. at 323 (1986). After a
“properly supported motion for summary judgment is
made, the adverse party must set forth specific facts showing
that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250 (quotation omitted).
Construing the evidence and facts supported by the record in
favor of the non-moving party, the Court gives the non-moving
party “the benefit of reasonable inferences from the
evidence, but not speculative inferences in [its]
favor.” White v. City of Chi., 829 F.3d 837,
841 (7th Cir. 2016) (internal citations omitted). “The
controlling question is whether a reasonable trier of fact
could find in favor of the non-moving party on the evidence
submitted in support of and opposition to the motion for
summary judgment.” Id. (citation omitted). The
court “may not assess the credibility of witnesses,
choose between competing inferences or balance the relative
weight of conflicting evidence; it must view all the evidence
in the record in the light most favorable to the non-moving
party and resolve all factual disputes in favor of the
non-moving party.” Abdullahi v. City of
Madison, 423 F.3d 763, 773 (7th Cir. 2005).
cross-motions for summary judgment, the Court must
“view all facts and inferences in the light most
favorable to the nonmoving party on each motion.”
Lalowski v. City of Des Plaines, 789 F.3d 784, 787
(7th Cir. 2015) (citation omitted); see also
Hotel 71 Mezz Lender LLC v. Nat'l Ret. Fund, 778
F.3d 593, 603 (7th Cir. 2015) (“[T]he court must be
mindful of its obligation to adopt what Judge Shadur aptly
characterizes as a dual, ‘Janus-like' perspective.
That is, the court must now grant the unsuccessful movant all
of the favorable factual inferences that it has just given to
the movant's opponent. Only if the court can say, on that
sympathetic reading of the record, that no finder of fact
could reasonably rule in the unsuccessful movant's favor
may the court properly enter summary judgment against that
movant.”) (internal citations omitted). Where there is
video evidence in a case, the court should “view the
facts in the light depicted by the videotape.”
Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769,
1776 (2007). See also Williams v. Brooks, 809 F.3d
936, 942 (7th Cir. 2016).
20, 2015, Chicago Police Department Officers Lindskog and
McAndrew responded to a 911 call made at 12:57:13 a.m. by
Julio Garcia who informed the officers that he was walking
home from work when he saw a man on his front porch knocking
hard on his door and swearing at him; the man then ran away
in the direction of a school. (Dkt. 329 at 2; Dkt. 365 at 2).
Although Officer Lindskog testified that he and Officer
McAndrew heard screams and glass breaking when they
encountered Godinez in the garage,  (Dkt. 361 at 3), Defendant
Officers admit that when Lindskog and McAndrew found Mr.
Godinez, he approached them with his hands up. (Dkt. 329 at
3). Officer McAndrew testified that Godinez was acting
erratically, and Officers Lindskog and McAndrew stated that
they believed Godinez was under the influence of drugs and/or
alcohol. (Dkt. 329 at 3, 6). Officer Lindskog ordered Godinez
to the ground. (Dkt. 329 at 4) He complied, and Officers
Lindskog and McAndrew handcuffed Godinez behind his back
while he was lying on his stomach. (Dkt. 329 at 4).
Arroyo and Corona then arrived on the scene in a vehicle
equipped with a forward-facing dashcam which produced a video
recording (the video recording has no audio track). (Dkt. 329
at 5). Officer Corona testified that the police interaction
with Godinez was part of a “burglary
investigation.” (Dkt. 329 at 4). When Officers Arroyo
and Corona arrived at 12:06:29 a.m.,  the video shows Officer
McAndrew standing next to Godinez with his left foot on
Godinez's back for seven to ten seconds. (Id.).
Gonzalez was lying on his stomach with his hands cuffed
behind his back. (Id.). The video shows Gonzalez
lifting his head and left shoulder off the ground and moving
his head and shoulders from side-to-side while Officer
McAndrew's foot is on Godinez's back. (See
Video at 12:06:29-12:06:40). After lying on the ground for
approximately one minute, sporadically lifting his head and
upper body, Godinez maneuvered himself into a seated position
and scooted down the side of the vehicle towards the rear of
the police SUV. (Dkt. 329 at 6) (see Video). At
12:10:00 a.m., Officer McAndrew puts his hands on
Godinez's shoulders as Godinez continues to scoot toward
the rear of the vehicle. Godinez falls backward, then lifts
his upper body and moves his legs. Officer McAndrew again
puts his hands on Godinez's shoulders and his knee on
Godinez's abdomen as Godinez continues to move his upper
body and legs towards the rear of the vehicle. (Dkt. 329 at
5-7). Whether Officer McAndrew pushed Godinez to the ground
or merely placed his hands on his shoulders to prevent him
from moving forward is in dispute, as is the extent to which
Godinez is struggling, flailing, and resisting.
12:10:16 a.m., according to the dashcam timestamp, Officer
Corona is seen walking up to Godinez and placing his foot on
Godinez's stomach as Godinez continues to move his upper
body and legs. (Dkt. 329 at 8). Godinez continues to move
his body until his head is near the tailpipe, and, at
12:10:21 a.m.,  Officer Corona puts his right foot on the
side of Godinez's head for approximately 2 to 3 seconds
and Godinez's head moves to the ground under Officer
Corona's foot. (Dkt. 365 at 5-6). Officer Corona
testified that Godinez was agitated, sweating profusely, and
his breathing was labored. (Dkt. 329 at 8). Officer Corona
claimed that he used his right foot to prevent Godinez from
moving around and hurting himself. (Dkt. 329 at 9; Dkt. 365
at 5). The parties dispute how much weight Officer Corona put
on Godinez's head and whether he pushed his head to the
ground with his foot or “stood” on his head.
Defendant Officers claim, “Officer Corona's foot
never pressed Godinez's head to the ground and Corona
never ‘stands' on Godinez's face, head, neck,
or back.” (Dkt. 365 at 6). Plaintiff argues that the
video shows: “Corona's foot press Godinez's
head to the ground . . . [and] Corona standing with at least
some of his weight on Godinez's head and/or face and all
of his weight on Godinez's legs.” (Dkt 365 at 6).
Officers Johnson, Madsen, and Nowakowski arrived, Godinez was
lying on his stomach with his hands cuffed behind his back at
the rear of the police SUV. (Dkt. 329 at 10). The timestamp
on the dashcam video was 12:11:06 a.m. (Id.).
Godinez can be seen struggling, moving his upper body, hands
and legs. (See Video). Officer McAndrew held
Godinez's upper body down with his hands, while Officer
Corona held Godinez's legs down with his foot or feet.
(Dkt. 329 at 10). At 12:11:09 a.m.,  Officer Johnson placed
his foot on Godinez. (See Video). It appears that at
12:13 or 12:14 a.m.,  Officer Johnson took his foot off
Godinez. (See Video). He and the other Officers who
were around Godinez all moved away from Godinez.
location of where he placed his foot (i.e., on
Godinez's head, neck, or shoulder) is in dispute (Dkt.
329 at 11), and it is unclear from the video. Officer Johnson
testified that his foot was on Godinez's left shoulder
blade. (Dkt. 329 at 11). Officer McAndrew testified that
Officer Johnson's foot was on Godinez's shoulder and
briefly on his head. (Dkt. 329 at 12). Lt. Jerome observed
Officer Johnson's foot on Godinez's shoulder. (Dkt.
329 at 15). It is disputed how much weight Officer Johnson
placed on Godinez and for how long. (Dkt. 329 at 12-13).
after Officer Johnson removed himself from Godinez, for
approximately 4 minutes and 8 seconds on the dashcam video,
between 12:14:16 a.m. and 12:18:24 a.m.,  Godinez was
completely still. (Dkt. 365 at 16). The parties dispute
whether Godinez was “calmly lying on his back”
during this time or was lying unconscious. (Dkt. 365 at
16-17). The video shows the officers moving around the alley,
occasionally shining their flashlights on Godinez, (Dkt. 329
at 17), but not otherwise interacting with Godinez except for
one unnamed officer briefly touching Godinez for
approximately six seconds. (Dkt. 365 at 16). Lt. Jerome
communicated to the dispatcher that the police no longer
needed shackles for Godinez. (Dkt. 329 at 16).
12:18:24 a.m.,  Godinez displayed sudden movements,
lifting his waist and lower back off the ground while
scooting his body under the running police car. (Dkt. 329 at
18). The parties' characterization of Godinez's
movements at this time differs. Defendant Officers assert
Godinez can be seen on the video “kicking his legs
straight up and lifting his waist and lower back off the
ground while scooting sideways under Beat 911R's SUV and
hitting his stomach against the tailpipe multiple times . . .
[and] pressing his hips and abdomen up with enough force that
he moves the SUV upward.” (Def SOF 42). Plaintiff
denies Godinez's movements seen on the video
“constituted any sort of conscious ‘kicking;'
rather, they appear to be almost involuntary, akin to the
behavior of a person drowning.” (Dkt. 365 at 17). Lt.
Jermone testified that he believed Godinez needed a mental
health evaluation immediately before he was taken to the
squadrol. (Dkt. 329 at 16-17). Officers Johnson and Corona
testified that Godinez was a “passive resistor”
or an “active resistor, ” but not an assailant.
(Dkt. 329 at 17).
officers pulled Godinez out from under the SUV and carried
him out of view of the dash camera to a squadrol at 12:19:24
a.m. (Dkt. 329 at 18-19). Lt. Jerome
testified that Godinez's breathing was labored; Officer
Corona requested an ambulance at 1:27:01 a.m. (Dkt. 329 at
20). The Chicago Fire Department paramedics arrived at
1:34:00 a.m. A minute later, they reported that Godinez had
no pulse and no blood pressure and was not breathing.
(Id. at 21). At 1:38:12 a.m., an EKG reported no
activity of Godinez's heart. EMT's reported that
Godinez was dead at 1:50 a.m. (Dkt. 329 at 21).
Count I: Excessive Force
Plaintiff's Motion for Summary Judgment
moves for summary judgment on her excessive force claim
against Officers Corona and Johnson arguing that the
undisputed facts, including the video evidence, establish
that the amount of force used by Officers Corona and Johnson
was unreasonable as a matter of law.
officer who has the right to arrest an individual also has
the right to use some degree of physical force or threat of
force to effectuate the arrest.” Williams, 809
F.3d at 944 (citation omitted). Courts evaluate a claim that
an officer used excessive force while making an arrest under
the Fourth Amendment's standard of objective
reasonableness. Graham v. Connor, 490 U.S. 386,
395-96, 109 S.Ct. 1865, 1871-72, 104 L.Ed.2d 443 (1989). This
standard requires courts to “‘balance the nature
and quality of the intrusion on the individual's Fourth
Amendment interests against the importance of the
governmental interests alleged to justify the
intrusion.'” Scott, 550 U.S. at 383
(brackets omitted) (quoting United States v. Place,
462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)).
“An officer's use of force is unreasonable from a
constitutional point of view only if, judging from the
totality of circumstances at the time of the arrest, the
officer used greater force than was reasonably necessary to
make the arrest.” Gonzalez v. City of Elgin,
578 F.3d 526, 539 (7th Cir. 2009) (internal quotation marks
Graham, the Supreme Court set forth factors to
determine whether a police officer's use of force was
reasonable, including: (1) “the severity of the crime
at issue”; (2) “whether the suspect poses an
immediate threat to the safety of the officers or
others”; and (3) “whether he is actively
resisting arrest or attempting to evade arrest by
flight.” 490 U.S. at 396. Courts determine whether a
particular use of force was reasonable under the
circumstances by viewing the matter “from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Id.
(citation omitted). Courts remain cognizant of “the
fact that police officers are often forced to make
split-second judgments-in circumstances that are tense,
uncertain, and rapidly evolving-about the amount of force
that is necessary in a particular situation.”
Williams, 809 F.3d at 944 (quoting Abbott v.
Sangamon Cty., Ill., 705 F.3d 706, 724 (7th Cir. 2013)).
“[S]ummary judgment is often inappropriate in
excessive-force cases because the evidence surrounding the
officer's use of force is often susceptible of different
interpretations.” Cyrus v. Town of Mukwonago,
624 F.3d 856, 862 (7th Cir. 2010) (citation omitted); see
also Abdullahi, 423 F.3d at 772-73 (noting that because
the Graham reasonableness inquiry “nearly
always requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom . . . summary
judgment or judgment as a matter of law in excessive force
cases should be granted sparingly.”) (internal
quotation marks omitted).
asserts that all of the Graham factors indisputably
weigh in her favor because: (1) the severity of the crime was
minimal as Godinez was suspected of committing a non-violent
property crime; (2) Godinez posed no immediate threat to the
safety of the officers or others as he was handcuffed and
unarmed during the relevant events; and (3) he was not
actively resisting arrest or attempting to evade arrest as he
complied with the Officers initial order to get on the ground
and be handcuffed. (Dkt. 293). Plaintiff further argues that
the amount of force used by Officers Corona and Johnson was
unreasonable because the video evidence conclusively
establishes that Godinez ...