Gigi Gilbert

Attormey for Plaintiff

53 W. Jackson Blvd., #356
Chicago, IL 60604

(312) 554-0000

#9139394



n “

Green v. Carlson, 826 F. 2d 647, 652 (7 Cir. 1987). In defeating a claim of qualified
immunity the plaintiff must show 1) that a court has found that a state actor has used
excessive force in a closely analogous case or 2) that the force was “plainly excessive”.

id.

The force used by Defendants against Ryan was so plainly excessive that, as an
objective matter, the Defendants would have been on notice that they were violating the
Fourth Amendment. Since a genuine issues of material fact exist, summary judgment on
a qualified immunity basis is inappropriate. See, Mahone v. Palazzo, 1999 USS. Dist.
LEXIS 7204 (N.D. Illinois 1999) (Summary judgment denied based on qualified
immunity defense where following a domestic dispute a “wrist lock” move was used
which broke plaintiff's wrist where plaintiff testified he was being cooperative upon
arrest); Phelan v. Paladino, 1999 US. Dist. LEXIS 9129 at *9 (Summary judgment based
on qualified immunity denied where officers broke plaintiff's foot by slamming her front
door on it.)

WHEREFORE, for the aforementioned reasons, Plaintiff, MICHAEL RYAN,

respectively requests that this court enter an order denying Defendants’ Motion for

Summary Judgment and for whatever other relief that this court deems appropriate.

Respectively Submitted,

Gigi Gilbert

Attomey for Plaintiff

53 W. Jackson Blvd., #356
Chicago, IL 60604

(312) 554-0000

#9139394



a) a)

29. Plaintiff admits the allegations contained in paragraph 29.

30. Plaintiff admits the allegations contained in paragraph 30.

31. Plaintiff admits the allegations contained in paragraph 31.

32. Plaintiff admits the allegations contained in paragraph 32.

33. Plaintiff admits the allegations contained in paragraph 33.

34. Plaintiff denies the allegations contained in paragraph 34. Ryan testified
that he was standing by his Terminix truck waiting for the officer to return with a
supervisor and did not leave from the truck. (Ryan’s dep. 77-78)

35. Plaintiff denies the allegations contained in paragraph 35. Ryan testified
that he wanted to do was leave but the sheriff deputies would not let him and wanted him
to go with the ambulance driver. (Ryan’s dep. 87-88).

36. Plaintiff denies the allegations contained in paragraph 36. Ryan testified
that he did not kick his legs and that he asked the deputies why they were doing this to
him. (Ryan’s dep. 100).

37. Plaintiff denies the allegations contained in paragraph 37. Ryan testified
that he did not kick his legs. (Ryan’s dep. 100).

38. Plaintiff admits the allegation contained in paragraph 30.

39. Plaintiff admits the allegations contained in paragraph 39.

40. Plaintiff admits the allegations contained in paragraph 40.

41, Plaintiff admits that he did not go with the paramedics for treatment but
denies the allegations contained in paragraph 41. (Ryan Affidavit para. ).

42, Plaintiff admits the allegations contained in paragraph 42.

43. Plaintiff admits the allegations contained in paragraph 43.



ry im)

that the various private torts were committed “in concert” with a state official was not
sufficient to cause the private citizens to be acting under color of state law. Grow, 523 F.
2d at 879.

The Defendants reliance on Teja v. Packard, 959 F. Supp. 469 (NLD. Ill. 1997) is
also misplaced. Teja involved a lawsuit brought by a student at NIU university against a
resident assistant for NIU over a dispute during a fire drill at NIU. Teja 959 F. Supp. at
471. The plaintiff alleged that the R.A. was acting under color of state law because he
was acting in his capacity as a R.A. of a state university or in the alternative, that he was
performing a public function i.e. clearing and securing a publicly owned building during
a fire drill, at the time of the incident, id. at 475. The plaintiff claimed that the R.A.’s
signing of the criminal complaint without probable cause, resulting in his arrest, violated
his Fourth Amendment right to be free from unreasonable seizure. id, There were no
allegations that the R.A. used excessive force against the student. id.

The issue in Teja then, was whether the R.A. was acting under color of state law
when he signed the criminal complaint against the plaintiff college student. The court
found that the signing of the criminal complaint by the R.A. did not require the exercise
of power possessed by virtue of state law, nor was it made possible only because the R.A.
was clothed with the authority of state law. id. at 476. There was no evidence that the
R.A.’s duties included enforcement of the criminal code. id. at 476,

Finally, Defendants’ reliance on Johnson v. Miller, 680 F, 2d 39 (7 Cir. 1982)

cited by the court in Teja is also misplaced. In Johnson the court found that the

defendant-bank was not acting under state law in simply signing the complaint reasoning



i] a)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHISN DISTRICT OF ILLINOIS

EASTERN DIVISION
MICAHEL RYAN, )
)
Plaintiff, )
l )
) No: 01C296y
v. )
)
MARK HEIN, JAMES MALINOWSKI, FRANK ) Judge Robert Gettleman
HERNANDEZ, and PETER STANLEY, )
individually, )
Defendants. )

PLAINTIFF’S LOCAL RULE 56.1 (b)(3)(A) RESPONSE
TO DEFENDANT’S STATEMENT OF MATERIAL FACTS

NOW COMES the Plaintiff, MICHAEL RYAN, by and through his attorney in
this regard, GIGI GILBERT, and pursuant to the Rule 56.1(b)(3)(A) of the Local Rules
of the U.S. District Court for the Northern District of Illinois, submits the following
Response to Plaintiff's Statement of Facts:

1, Plaintiff admits the allegations contained in paragraph 1.

2. Plaintiff admits the allegations contained in paragraph 2.

3. Plaintiff admits the allegations contained in paragraph 3.

4. Plaintiff admits the allegations contained in paragraph 4.?

5. Plaintiff admits the allegations contained in paragraph 5.?

6. Plaintiff admits the allegations contained in paragraph 6.

7. Plaintiff denies the allegations contained in paragraph 7. Plaintiff states
that the attached deposition page does not support this allegation.

8. Plaintiff denies the allegations contained in paragraph 8. Plaintiff states

that the attached deposition page does not support this allegation.



a) a

you’re going with him, the easy way or the hard way. I was like I’m not going. They all
jumped on me. Q. Did the ambulance driver jump on you? A. See, that’s the part I don’t
know if he touched me or not, or it was just the officers. ” (Ryan deposition p. 97-98.)

17. Plaintiff denies the that contained in paragraph 17. Ryan testified that he
had a bunch of people grabbing on him and did not know if the ambulance driver was one
of them or not. (Ryan deposition p. 98)

18. Plaintiff's admits that his arm hurt but denies the remainder of the
allegations contained in paragraph 18. Ryan testified that “someone had a hold of his
wrist. They like snapped my arm behind my back, and it broke my elbow bone.” (Ryan
deposition p. 99)

19. Plaintiff admits the allegations contained in paragraph 19.

20. Plaintiff admits the allegations contained in paragraph 20.

21, Plaintiff admits the allegations contained in paragraph 21.

22. Plaintiff admits the allegations contained in paragraph 21.

23. Plaintiff admits the allegations contained in paragraph 21.

24, Plaintiff admits the allegations contained in paragraph 24.

25, Plaintiff denies and moves to strike the allegations contained in paragraph
25, Plaintiff states that the attached deposition page does not support this allegation.

26. Plaintiff admits the allegations contained in paragraph 26.

27. Plaintiff admits the allegations contained in paragraph 27.

28. Plaintiff denies the allegations contained in paragraph 28. When
Defendant Hein was asked whether Al Ramito was in uniform or in plain cloths he

replied “I would assume he was in uniform.” (Hein dep. 59).



a a)

29. Plaintiff admits the allegations contained in paragraph 29.

30. Plaintiff admits the allegations contained in paragraph 30.

31. Plaintiff admits the allegations contained in paragraph 31.

32. Plaintiff admits the allegations contained in paragraph 32.

33. Plaintiff admits the allegations contained in paragraph 33.

34, Plaintiff denies the allegations contained in paragraph 34. Ryan testified
that he was standing by his Terminix truck waiting for the officer to return with a
supervisor and did not leave from the truck. (Ryan’s dep. 77-78)

35. Plaintiff denies the allegations contained in paragraph 35. Ryan testified
that he wanted to do was leave but the sheriff deputies would not let him and wanted him
to go with the ambulance driver. (Ryan’s dep. 87-88).

36. Plaintiff denies the allegations contained in paragraph 36. Ryan testified
that he did not kick his legs and that he asked the deputies why they were doing this to
him. (Ryan’s dep. 100).

37. Plaintiff denies the allegations contained in paragraph 37. Ryan testified
that he did not kick his legs. (Ryan’s dep. 100).

38, Plaintiff admits the allegation contained in paragraph 30.

39, Plaintiff admits the allegations contained in paragraph 39.

40. Plaintiff admits the allegations contained in paragraph 40.

41. Plaintiff admits that he did not go with the paramedics for treatment but
denies the allegations contained in paragraph 41. (Ryan Affidavit para. ).

42. Plaintiff admits the allegations contained in paragraph 42.

43, Plaintiff admits the allegations contained in paragraph 43.



“ a)

, bvidence in the light most favorable to Ryan, a reasonable jury could conclude that

Defendants use of force against Michael Ryan was greater than was reasonably
necessary under the circumstances.

Just as the court found in Mihalko, there are issues of material fact as to whether
Defendant’s use of force was objectively reasonable in light of the circumstances
confronting him. Ryan and Defendant have two very different versions of the events of
April 25, 2000. The reasonableness of Defendant’s use of force turns on whether Ryan
was resisting Defendants an allegation which he denies. Therefore, summary judgment
on Ryan’s claim for excessive force must be denied.

In Threlkeld v. White Castle Systems et al. 201 F. Supp. 2d 834, 836 (2002) the
court denied the defendants Motion for Summary Judgment based on the plaintiff's
excessive force claim. The court there found that the plaintiff had presented enough
evidence to survive a summary judgment claim arising out of “tight handcuffs” which cut
into the plaintiff's skin resulting in long-term injury to her wrist. Threlkeld, 201 F. Supp.
at 841. Likewise, Ryan here, suffered a fractured elbow which required medical
attention, caused him to lose time from work and still gives him problems today.

Brownell v. Figel, 950 F. 2d 1285 (7" Cir. 1991), cited by the Defendants in
support of their argument that Ryan can not rely on the doctrine of res ipsa loquitur is
easily distinguishable. The plaintiff in Brownell was driving under the influence of
alcohol when he collided with a guardrail and was unable to remember most of what
happened. Brownell, 950 F. 2d at 1287. He was taken directly to the hospital and then to
the police station where he ended up a quadriplegic following his detention. Brownell,

950 F. 2d at 1289. The only evidence of excessive force in Brownell was the use of two



oO a)

Defendant Hein arrested and signed a complaint against Ryan for Disorderly
Conduct after being instructed to do so by Defendant Malinowski. Defendant Hein
admits a disorderly conduct breach of public peace charge could not stand against police
officers. (P’s 176) This is also evidenced by the fact that although Defendant was present
in court the Assistant State’s Attomey SOL’d or dismissed the charge. (P’s 188)

Warrantless arrests in public places are permitted under the Fourth Amendment if
the arresting officer had probable cause. Probable cause for an arrest exists if the officer
“reasonably believes in light of the facts and circumstances within [the officer’s]
knowledge at the time of the arrest that the suspect had committed or was committing an
offense.” United States v. Carrillo, 269 F, 3d 761, 766 7 Cir. 2001). Whether probable
cause exists turns on the information known to the officers at the moment the arrest was

made, not on subsequently received information. Carrillo, 269 F. 3d at 766. The

determination of the existence of probable cause is based on the totality of the
circumstances. id.
In Mihalko v. Daley, 2002 U.S. Dist. LEXIS 7287 the court denied summary

judgment on plaintiff's false arrest and excessive force claims. In Mihalko, the plaintiff

was leaving a bar when he saw the officer blocking the doorway. The plaintiff did not
believe he made physical contact with the officer. The officer testified that the plaintiff
came flying out of the bar and shoved him into a wall hitting his torso. The officer also
alleged that the plaintiff resisted arrest by flailing his arms, pulling away from the officer,

and swinging his fists at the officer’s head and face. Mihalko, 2002 U.S. Dist. LEXIS

7287 at * 7.


a) “"

“to file a criminal complaint with the police is the act of a private citizen”, Johnson, 680
F, 2d at 41: i

. Defendants, here, are not resident assistants at a state university, bank employees,
private citizens whose children were alleged victims of sexual assaults or off-duty police
officers in a romantic dispute with their significant others. It is not the only Defendant
Hein’s signing of the complaint for the disorderly conduct charge on behalf of the Cook
County Sheriff's Police Department that forms the basis of Ryan’s allegation that the
Defendants were acting “under color of state law”. Ryan’s Amended Complaint does not
allege a malicious or false prosecution claim. Rather, it is the Defendants’ actual seizure
and arrest of Ryan without probable cause, and their excessive use of force during the
arrest while they were employed as police officers, on duty, working in their official
capacity, at the police station.

As the court stated in Sasso, “[a] party cannot resist summary judgment by

pointing to snippets of depositions. . .” Sasso, at *13. Likewise, Defendants can not

support their argument that they did not act “under color of state law” by pointing to
isolated snippets of case law, taken out of context. Clearly, a genuine issue of material

fact exists whether Defendants were acting under color of state law.

B. A GENUINE ISSUE OF MATERIAL FACT EXISTS
WHETHER RYAN’S ARREST WAS UNLAWFUL

Section 1983 claims presenting the question of probable cause are inappropriate
for disposition on summary judgment where there is room for a difference of opinion
concerning the facts or reasonable inferences to be drawn from them. Qian v. Kautz, 168

F, 3d 949, 953 (7" Cir. 1999).



n a

44, Plaintiff admits the allegations contained in paragraph 44,

45. Plaintiff admits the allegations contained in paragraph 45.

46. Plaintiff admits the allegations contained in paragraph 46.

47. Plaintiff admits that the Assistant State’s Attorney SOL’d the case but
denies the remainder of the allegations contained in paragraph 47.

48. Plaintiff denies the allegations contained in paragraph 48.

49. Plaintiff denies the allegations contained in paragraph 49. Ryan testified
that he was standing by his truck waiting to talk to a supervisor. (Ryan’s dep. 100)

50. Plaintiff denies the allegations contained in paragraph 50. Ryan testifted
that he all he wanted to do was leave. (Ryan’s dep. 100)

51. Plaintiff denies the allegations contained in paragraph 51. Ryan testified
that he was not told he was under arrest and that he did not swing his arms or kick his
legs. (Ryan’s dep. 100).

52. Plaintiff denies the allegations contained in paragraph 52. Defendant
testified that if there were other Cook County Sheriff's out there that day they were all in
the same tan uniforms. (Hein dep. 110)

53. Plaintiff denies the allegations contained in paragraph 53. Defendant
Hein testified that if there were other Cook County Sheriff’s out there that day they were
all in the same tan uniforms and that three other sheriff’s were present. (Hein dep. 110)

54. Plaintiff denies the allegations contained in paragraph 54. Ryan testified
that he told the lock-up keeper that his arm hurt. (Ryan’s dep. 108).

Respectively Submitted,

By:
One of Pigintiff's Attorneys



a) a)

44). Ryan testified that that all he wanted to do was leave and the sheriff's deputies

would not let him leave. (P’s 72, 73).

B. A GENUINE ISSUE OF MATERIAL FACT EXIST
WHETHER EXCESSIVE FORCE WAS USED

The force used to effect an arrest must be objectively reasonable under the totality
of the circumstances confronting the officer. Estate of Phillips v. City of Milwaukee,
123 F, 3d 586, 592 (7" Cir. 1997). The relevant facts and circumstances used to analyze
such a claim include 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. Graham v. Connor, 490 U.S. 386,
396, (1989).

Defendant was allegedly committing criminal trespass or disorderly conduct, two
non-violent misdemeanor offenses without civilian complaints. There is no allegation
that Ryan was armed with a gun or other weapon or that he made any threats of violence
against the Defendants or anyone else. As they waited for the Maywood police to arrive
even Defendant Hein testified that nothing much was going on and that nothing was said.
(P’s 158, 160).

There is no evidence that Ryan was resisting arrest. Ryan did not know that he
was even being placed under arrest at that time. In the squad car, Ryan believed that he
was on his way to the hospital. (P’s 135 } Ryan, was not swinging his arms or kicking
his legs. (P’s 95,96) Defendants did not charge Ryan with resisting arrest or battery to a
police officer. There is no evidence that Ryan was attempting to flee from the police. If
anything, it was Ryan’s failure to immediately leave that prompted Defendant

Malinowski to instruct Defendant Hein to call the Maywood police. Viewing the



a a

44. Plaintiff admits the allegations contained in paragraph 44.

45. Plaintiff admits the allegations contained in paragraph 45.

46. Plaintiff admits the allegations contained in paragraph 46.

47, Plaintiff admits that the Assistant State’s Attorney SOL’d the case but
denies the remainder of the allegations contained in paragraph 47.

48. Plaintiff denies the allegations contained in paragraph 48.

49. Plaintiff denies the allegations contained in paragraph 49. Ryan testified
that he was standing by his truck waiting to talk to a supervisor. (Ryan’s dep. 100)

50. Plaintiff denies the allegations contained in paragraph 50. Ryan testified
that he all he wanted to do was leave. (Ryan’s dep. 100)

51. Plaintiff denies the allegations contained in paragraph 51. Ryan testified
that he was not told he was under arrest and that he did not swing his arms or kick his
legs. (Ryan’s dep. 100).

52. Plaintiff denies the allegations contained in paragraph 52. Defendant
testified that if there were other Cook County Sheriff’s out there that day they were all in
the same tan uniforms. (Hein dep. 110)

53. Plaintiff denies the allegations contained in paragraph 53. Defendant
Hein testified that if there were other Cook County Sheriff’s out there that day they were
all in the same tan uniforms and that three other sheriff's were present. (Hein dep. 110)

54. Plaintiff denies the allegations contained in paragraph 54. Ryan testified
that he told the lock-up keeper that his arm hurt. (Ryan’s dep. 108).

Respectively Submitted,

By
One of Plaintiff's Attorneys



: THE UNITED STATES DISTRICT COURT
pe THE NORTHISN DISTRICT OF ILLINOIS

EASTERN DIVISION DoCKErEp

MICAHEL RYAN , ) CT 15
) 2002
Plaintiff, )
)
) No.: 01 C 2961
v. )
)
MARK HEIN, JAMES MALINOWSKI, FRANK ) Judge Robert Gettleman
HERNANDEZ, and PETER STANLEY, )
individually, )
Defendants. ) F | L D
NOTICE OF FILING

oct 11202 “@

To: ASA Nicholas Motherway  _ MICHAEL
c/o Cook County State’s Attorney’s Office CLERK, U.S. DISTRICT COURT
500 Richard J. Daley Center
Chicago, IL 60602

PLEASE TAKE NOTICE than on October 11, 2002, I caused to be filed
with the Clerk of the United States District Court for Northern District of Illinois the
attached Plaintiff's Memorandum in Response to Defendant’s Motion for Summary
Judgment, Plaintiff's Response to Defendant’s Statement of Undisputed Facts Pursuant to
LR. 56.1 and Plaintiff's State of Additional Facts That Require the Denial of Summary
Judgment copies of which are served upon you.

CERTIFICATE OF SERVICE
I, Gigi Gilbert, an attorney, certify that I served the attached documents on the
above named person by depositing the same in the united states mail at 53 W. Jackson
Boulevard, Chicago, Illinois with proper postage prepaid o er 1, 2002.
By.
One of Plaintiff's Attorneys

Gigi Gilbert

Attomey for Plaintiff

53 W. Jackson Blvd., #356
Chicago, IL 60604

(312) 554-0000

Attomey #: 6199394

RECEIVED ~ED4
O20CT 11 PH 6: 28

CLERK
U.S. DISTRICT COURT Y\


a | a)

By contrast, Ryan here did not batter or attack the Defendants first. Defendant

Hein admits that he had a hold of Ryan’s leg. Defendant Hein states that Defendants

Hernandez, Staley, and Malinowski were all outside when the Maywood squad car
arrived. (P’s 161, 165) In the light most favorable to the non-movant, Ryan testified
that the sheriff deputies all surrounded him, told him it was he was going with the
ambulance driver “the easy way or the hard way”, jumped on him, tackled him to the
ground where he ended up face first and were all grabbing at him and snapped his arm
behind his back breaking his elbow. (P’s 78, 81, 83, 85, 87) It was an ugly situation and
something that never should have happened. (P’s 86) Of course, over two years later the
Defendants are going deny involvement through a self-serving affidavit.

In Rutherford v. Berkeley, 780 F. 2d 1444, 1448 go" Cir. 1986) the court held that
even though the plaintiff could not recall where the three officers were amoung the
officers who had beaten him, because they were among the five or six who surrounded
him, a jury could reasonably find that they participated in the attack. Likewise, in Santos

v. Gates, 287 F. 3d 846 (9" Cir. 2002) the plaintiff, a paranoid and unstable individual,

had a blood alcohol content of .227 and did not specifically remember being forced to the
ground by the officer. The plaintiff suffered a broken back and the court held that
simply because the plaintiff had no clear recollection of the act which he claims caused
his severe injury does not mean that his claim must fail as a matter of law. Santos, 287 F.
3d at 851. As the court stated in Santos “[n]o where in our cases have we held that police
misconduct may be proved only through direct evidence. To the contrary a jury’s finding
for a plaintiff in an excessive force case may unquestionably rest on inferences drawn

from circumstantial evidence.” Santos, 287 F. 3d at 852.

11



a) “

pain techniques that the officers administered in an attempt to wake the plaintiff up from
what the officers thought was a drunken stupor.

The court in Brownell found that although the plaintiff's injury was unfortunate,
there was no evidence that it was caused by the unreasonable conduct of the police
officers rather than his automobile accident. There is no evidence whatsoever that Ryan
was intoxicated the morning that he went to the police station or that he had been
involved in any automobile accident immediately prior to his contact with the officers.
Ryan clearly remembers the incident and testified that the Defendants jumped on him and
he ended up on the ground face first. (P’s 83) The Defendants were all grabbing at him
and one of them snapped his arm behind his back and broke his elbow. (P’s 84, 87)

The fact that Ryan did not seek medical treatment from the paramedics on the scene is
understandable given that it was the same big beefy 6’6 350 pound ambulance driver who
threatened Ryan that he was coming with him“the easy way or the hard way”. (P’s 69,
77)

Likewise, Stephan v. City of Evanston, 1993 U.S. Dist. LEXIS 7895 cited by
Defendants is easily distinguishable. The plaintiff in Stephan had grabbed the defendant
from behind not knowing that he was a police officer. Stephan, 1993 U.S. Dist. LEXTS
7895 at *2. While the plaintiff was holding on to the officer another officer struck him
on the back of his head. id at *3. Plaintiff could not identify who struck him but the
officer he was holding on to addressed him as “partner”. id. In denying summary
judgment, the court reasoned that the addressing of the person who struck the plaintiff as
“partner” is too insubstantial a basis for the plaintiff's claim against the defendant as

there was no foundation laid for the statement. id at *10.

10



an) ao

In denying defendant’s Motion for Summary Judgment the court in Mihalko
‘found that there was a factual dispute as to whether the plaintiff engaged in the physical
conduct to which the officer testified to. id., at *16. The court reasoned that:

The factual dispute as to the events . . .precludes summary
judgment in favor of [the officer] on qualified immunity grounds because
the determination of whether a reasonable officer in [defendant’s] position
would have believed he had probable cause to arrest Plaintiff for battery
depends on whether one believes his version of the events on that night or
Plaintiff's. Furthermore, no finding of arguable or actual probable cause
could survive after adopting Plaintiffs version of the facts. . .

Plaintiff testified that he did not strike [the officer]. Thus, there

can be no finding of probable cause as a matter of law. There are issues of

material fact as to whether Plaintiff committed a battery against [the

officer] . . .and whether probable cause for the arrest existed; and,

therefore, summary judgment is denied on Plaintiff's claim for false arrest.
id., at *17. See also, Carroll v. Village of Homewood, 2001 U.S. Dist. LEXIS 18857
(Genuine issue of material fact existed about what facts were before defendants when
they arrested uniform police officer for DUI).

In the instant case, just like in Mihalko a factual dispute exists as to whether Ryan

engaged in the physical contact that Defendants allege. No finding of arguable or actual
probable cause could survive after adopting Ryan’s version of the facts and as such there
can be no finding of probable cause as a matter of law.

Ryan testified that he was simply standing by his Terminix truck waiting for the
officer who told him to “wait here” to return with a supervisor. (P’s 67) He simply
refused to go with a “big beefy” ambulance driver, whom he did not call, to an unknown
destination. (P’s 69, 75) It can be inferred that he was not creating a disturbance or
breach of the peace. (P’s 37, 41, 43). Ryan denies that civilians were present. (P’s 104).

Ryan never noticed any signs i.e. no trespassing, when he entered the parking lot. (P’s



a) “

9. Plaintiff denies that there was probable cause to arrest him for disorderly
conduct but admits that he was charged with disorderly conduct and his criminal case was
continued a few times.

10. Plaintiff admits the allegations contained in paragraph 10.

11. Plaintiff denies the allegations contained in paragraph 11. Ryan testified
at his deposition that “[t]here may have been some civilians out there, but I didn’t really
notice them because my attention was with the ambulance driver and the people standing
around me”, (Ryan deposition p. 83-84.) Ryan testified “I was just like focused on what
was going on in my immediate vicinity right there around me. And, you know, I don’t
know if anyone else was wandering around in the parking lot or pulling up to go to work
ot, you know, just walking down the sidewalk. I wasn’t watching for that.” (Ryan
deposition p. 96)

12. Plaintiff admits the allegations contained in paragraph 12.

13. Plaintiff admits the allegations contained in paragraph 13.

14. Plaintiff admits the allegations contained in paragraph 14.

15. Plaintiff denies the allegations contained in paragraph 15. Ryan was told
by the gentleman who patrols the lot to “wait here for a supervisor”. (Ryan dep. p. 96:5-
9).

16. Plaintiff denies the allegations contained in paragraph 16. Ryan testified
that “the deputy sheriffs were standing there saying you have to go with the ambulance. I
was like, why, why you know. Q. What did the ambulance driver tell you? A. He pretty
much told me that he was called there to take me, you know, in the ambulance. . .He said

we can do it hte easy way or the hard way. All the deputies agreed with him. Yeah,



(am) im)

onthe complaint. id. Additionally, in Ruiz, the Chicago police arrived on the scene and

i were the officers that actually arrested the plaintiff based on the information provided by
the off-duty Bellwood officer. id at 86. See also, Gibson v. City of Chicago, 910 F. 2d
1510, 1517 7 Cir. 1990); Pickrel v. City of Springfield, 45 F, 3d 1115, 1118 (7 Cir.
1995).
Sasso v. Davis, 1986 U.S. Dist. LEXIS 18240 (N.D. IL 1986) cited by Defendants

is easily distinguishable. In Sasso the plaintiff and defendant were both Chicago police

officers who were romantically involved in a personal relationship. Sasso, 1986 U.S.

Dist. LEXIS 18240 at * 1. The dispute in Sasso occurred off duty, at the officer’s home.

id at *3. The defendant in Sasso struck the plaintiff during a heated argument about their
personal relationship. id. at *9. In granting summary judgment in Sasso the court
reasoned:

The Supreme Court in Screws v. United States, 325 U.S. 91,111,
65 S. Ct. 1031, 1040 (1945), noted that “under ‘color’ of law means under
‘pretense’ of law. Thus acts of officers in the ambit of their personal
pursuits are plainly excluded.”
Sasso, 1986 U.S. Dist. LEXIS 18240 at * 10.

Ryan and the Defendants in the instant case had no romantic personal
relationship.

Likewise, Grow v. Fisher, 523 F. 2d 875 qa Cir. 1975) cited by Defendants is
equally distinguishable. In Grow, the plaintiff had been charged with assault and battery
with intent to gratify his sexual desires on a minor. Grow 523 F. 2d at 876. After the
plaintiff was found not guilty, he sued the prosecuting attorney and five private citizens
including the minor’s mother . id. In granting defendants’ Motion to Dismiss the court

reasoned that apart from the prosecutors immunity, the simple conclusionary allegation


oO A

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHISN DISTRICT OF ILLINOIS

EASTERN DIVISION F /
MICAHEL RYAN, ) L E D
Plaintiff ; rt to P
aintiff, 02
} No: 01 C ath bates Dopp, °
0. “®. Dig IN
v. ) TRicy Cou,
)
MARK HEIN, JAMES MALINOWSKI, FRANK ) Judge Robert Gettleman
HERNANDEZ, and PETER STANLEY, )
individually, )
Defendants. ) DOCKETED

PLAINTIFF’S LOCAL RULE 56.1 (b)(3)(A) RESPONSE CT 1.5 292

TO DEFENDANT’S STATEMENT OF MATERIAL FACTS

NOW COMES the Plaintiff, MICHAEL RYAN, by and through his attorney in

this regard, GIGI GILBERT, and pursuant to the Rule 56.1(b)(3)(A) of the Local Rules

of the U.S. District Court for the Northern District of Ilinois, submits the following
Response to Plaintiff's Statement of Facts:

1. Plaintiff admits the allegations contained in paragraph t.

2. Plaintiff admits the allegations contained in paragraph 2.

3. Plaintiff admits the allegations contained in paragraph 3.

4. Plaintiff admits the allegations contained in paragraph 4.?

5. Plaintiff admits the allegations contained in paragraph 5.?

6. Plaintiff admits the allegations contained in paragraph 6.

7. Plaintiff denies the allegations contained in paragraph 7. Plaintiff states
that the attached deposition page does not support this allegation.

8. Plaintiff denies the allegations contained in paragraph 8. Plaintiff states

that the attached deposition page does not support this allegation.

vs


“" a)

you’re going with him, the easy way or the hard way. I was like I’m not going. They all
jumped on me. Q. Did the ambulance driver jump on you? A. See, that’s the part I don’t
know if he touched me or not, or it was just the officers. ” (Ryan deposition p. 97-98.)

17. Plaintiff denies the that contained in paragraph 17. Ryan testified that he
had a bunch of people grabbing on him and did not know if the ambulance driver was one
of them or not. (Ryan deposition p. 98)

18. Plaintiffs admits that his arm hurt but denies the remainder of the
allegations contained in paragraph 18. Ryan testified that “someone had a hold of his
wrist. They like snapped my arm behind my back, and it broke my elbow bone.” (Ryan
deposition p. 99)

19. Plaintiff admits the allegations contained in paragraph 19.

20. Plaintiff admits the allegations contained in paragraph 20.

21. Plaintiff admits the allegations contained in paragraph 21.

22. Plaintiff admits the allegations contained in paragraph 21.

23. Plaintiff admits the allegations contained in paragraph 21.

24, Plaintiff admits the allegations contained in paragraph 24.

25. Plaintiff denies and moves to strike the allegations contained in paragraph
25. Plaintiff states that the attached deposition page does not support this allegation.

26. Plaintiff admits the allegations contained in paragraph 26.

27. Plaintiff admits the allegations contained in paragraph 27.

28. Plaintiff denies the allegations contained in paragraph 28. When
Defendant Hein was asked whether Al Ramito was in uniform or in plain cloths he

replied “I would assume he was in uniform.” (Hein dep. 59).



(a) a

_ Primary inquiry is whether the evidence presents a sufficient disagreement to require a

: trial, or whether it is so one sided that one party must prevail as a matter of law.

, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505 (1986). All
reasonable inferences from the record must be drawn in favor of the nonmoving party.
Johnson v. Runyon et. al. 47 F. 3d 911 (7" Cir. 1995).

A. DEFENDANTS ACTED UNDER COLOR OF STATE LAW

There is overwhelming evidence that the Defendants were acting “under color of
state law”, The officers were on duty in the parking lot of 1501 Maybrook Drive,
Maywood, Illinois their place of employment. The officers were in Cook County
Sheriff's Police Department tan colored uniforms. (P’s 62) Defendant Hein listed his
work address and telephone number on the Cook County Sheriff's Police Crime/Incident
report and Complaint for Disorderly Conduct. (P’s 177, 178) Defendant Hein signed the
complaint for disorderly conduct on behalf of the police department. (P’s 177)
Defendants physically participated in the arrest of Ryan. Most importantly, there are no
allegations that Defendants had a prior personal relationship with Ryan.

The gist of Defendants’ “under color of law” argument is that since they called
the Maywood police department to actually arrest Ryan that they can not be held to be
acting under “color of law”. At the very least, genuine issues of material fact exist as to
whether the Defendants were in fact acting “under color of law“.

In Ruiz v. Herrera, 1997 U.S. Dist. LEXIS 2508 * 16 the court denied summary
judgment based on a “color of law” argument where an off-duty police officer shot
plaintiff with a department issued gun, identified himself as a police officer, signed the

criminal complaint in his official capacity, and provided the address of police department



Gigi Gilbert

Attomey for Plaintiff

53 W. Jackson Blvd., #356
Chicago, IL 60604

(312) 554-0000

#9139394



A A

IN THE UNITED STATES DISTRICT COURT
_ FOR THE NORTHISN DISTRICT OF ILLINOIS

EASTERN DIVISION FI L E D

MICAHEL RYAN, ) oC
i ) "Tl 2m Lg
Plaintiff, } CLER 3 py, DOBBINg
) No: 012961 RICT Coury
v. )
) +
MARK HEIN, JAMES MALINOWSKI, FRANK ) Judge Robert Gettleman
HERNANDEZ, and PETER STANLEY, )
individually, )
Defendants. ) DOCKE TED

PLAINTIFF’S MEMORANDUM IN SUPPORT OF HIS RESPONSE TO OCT 4 ° 2002
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

NOW COMES the Plaintiff, MICHAEL RYAN, by and through his attorney in
this regard, GIGI GILBERT, and in Response to Defendant’s Motion for Summary
Judgment states as follows:

STATEMENT OF FACTS

The statement of facts is set forth in Plaintiff's Local Rule 56.1(b)(3)(B)
statement of additional facts that require the denial of Defendant’s Motion for Summary
Judgment hereinafter cited to as “P’s” with the corresponding paragraph number.

ARGUMENT

Summary Judgment is only appropriate if the pleadings, depositions, answers to
interrogatories, admissions and affidavits show that there are no genuine issues of
material fact and that the moving party is entitled to judgment as a matter of law. F.R.
Civ. P. 56. The movant has the burden of establishing that there is no genuine issue of

material fact, Celotex Corp. v. Catrett, 477 U.S. 317,323, 106 S. Ct. 2548 (1986). The

| uK



a a

Additionally, failure to intervene in the unprovoked exercise of excessive force
against Ryan can also provide a basis for liability. See, Avina v. Hosko, 1999 U. S. Dist.
LEXIS 4189 at * 5; Yang v. Harden, 37 F. 3d 282, 285 (7 Cir. 1994)(Omissions as well
as actions may violate civil rights. Officer held liable for failure to intervene when
partner used excessive force against plaintiff.)

In Yang the court cited Byrd v. Brishke, 466 F.2d 6, 10 (7" Cir. 1972) as the
seminal case in the Seventh Circuit regarding an officer’s duty to intervene quoting “one
who is given a badge of authority may not ignore the duty imposed by his office and fail
to stop other officers who summarily punish a third person in his presence or otherwise
within his knowledge.” Bryd, 466 F2d at 11. This responsibility to intervene applies
equally to supervisory and non-supervisory officers. id.

An officer who is present and fails to intervene to prevent other

law enforcement officers from infringing the constitutional rights of

citizens is liable under Section 1983 if that officer had reason to know: (1)

that excessive force was being used, (2) that a citizen has been

unjustifiably arrested, or (3) that any constitutional violation has been

committed by a law enforcement official; and the officer had a realistic

opportunity to intervene to prevent the harm from occurring.

Yang, 37 F. 3d at 285. Defendants were present when Ryan was unjustifiably arrested
and subjected to excessive force. A genuine issue of material fact exists whether they can

be held liable for either their participation in the violation of Ryan’s constitutional Tights

or their failure to intervene.

C. A DETERMINATION OF QUALIFIED IMMUNITY
REQUIRES FACTUAL FINDINGS AND THEREFORE
SUMMARY JUDGMENT IS NOT APPROPRIATE

Where a determination of qualified immunity requires factual findings, summary

judgment is not appropriate. Phelan v. Paladino, 1999 U.S. Dist. LEXIS 9129 citing

12


7 a“

9. Plaintiff denies that there was probable cause to arrest him for disorderly
conduct but admits that he was charged with disorderly conduct and his criminal case was
continued a few times.

10. Plaintiff admits the allegations contained in paragraph 10.

11. Plaintiff denies the allegations contained in paragraph 11. Ryan testified
at his deposition that “[t]here may have been some civilians out there, but I didn’t really
notice them because my attention was with the ambulance driver and the people standing
around me”. (Ryan deposition p. 83-84.) Ryan testified “I was just like focused on what
was going on in my immediate vicinity right there around me. And, you know, I don’t
know if anyone else was wandering around in the parking lot or pulling up to go to work
or, you know, just walking down the sidewalk. I wasn’t watching for that.” (Ryan
deposition p. 96)

12. Plaintiff admits the allegations contained in paragraph 12.

13. Plaintiff admits the allegations contained in paragraph 13.

14, Plaintiff admits the allegations contained in paragraph 14.

15. Plaintiff denies the allegations contained in paragraph 15. Ryan was told
by the gentleman who patrols the lot to “wait here for a supervisor”. (Ryan dep. p. 96:5-
9).

16, Plaintiff denies the allegations contained in paragraph 16, Ryan testified
that “the deputy sheriffs were standing there saying you have to go with the ambulance. I
was like, why, why you know. Q. What did the ambulance driver tell you? A. He pretty
much told me that he was called there to take me, you know, in the ambulance. . He said

we can do it hte easy way or the hard way. All the deputies agreed with him. Yeah,