1/ On October 18, 2002, the two cases were consolidated for all purposes.

02-6248.051-JCD December 8, 2005

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EDUARDO GUDINO and )

OBDULIA PERALTA, )

)

Plaintiffs, )

)

 v. ) No. 02 C 6248

) 

TOWN OF CICERO et al., ) 

 )

Defendants. )

MEMORANDUM OPINION

Before the court is the motion of defendants Thomas Krummick,

Dino Vitalo, and Waldemar Cruz for summary judgment, which is

granted for the reasons stated below. 

BACKGROUND

This is a § 1983 civil rights action that is related to Duran

v. Town of Cicero, 01 C 6858.1 The Duran case is a civil rights

action by numerous plaintiffs against the Town of Cicero and

various Cicero police officers. Both cases arise out of incidents

involving the Cicero police that occurred on September 2, 2000, at

and around the home of Alejandro and Maria Duran, who were having

a party. The plaintiffs in the instant case, Eduardo Gudino and

Obdulia Peralta, were neighbors of the Durans who lived in separate

houses across the street from the Durans. The basic facts
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regarding each plaintiff in the instant case are different; the

commonality is that both Gudino and Peralta reacted to what was

happening at the Duran home and then became involved in

confrontations with the Cicero police. The relevant facts are

taken from plaintiffs’ deposition testimony.

Obdulia Peralta

Like the Durans, Peralta was having a party in her backyard on

September 2, 2000. Peralta’s party was much smaller than that of

the Durans, with about fifteen guests. When Peralta and her guests

heard screaming and commotion coming from the street in the front

of the house and saw police officers running through yards toward

the street, Peralta and her guests went out to stand in front of

her house to see what was happening. 

Peralta saw police officers, some with asps, hitting people in

the Durans’ front yard. She and her party guests began screaming

at the police officers, telling them not to hit people. Some

officers, using profanities, told them that they shouldn’t be

watching and to be quiet and go inside the house. The officers

threatened to bring police dogs and that if Peralta and her guests

didn’t go inside, they would be arrested. One officer then started

pushing Peralta and her guests to move them inside. When the

pushing was occurring, Peralta “slipped and [] went back and []

banged against the [brick] wall [of her house].” (Peralta Dep. at
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2/ As for the other officer whom she was able to identify, Peralta stated

that he was in the street but did not state that he did anything in particular.

16.) She was cut near her left shoulder blade by a nail protruding

from the brick. 

Peralta identified two police officers at her deposition, only

one of whom is a defendant: Sergeant Thomas Krummick.2 Peralta

stated that she saw Krummick, who was wearing a white shirt, in the

street. He was one of the officers who used profanities and told

the group that they would be arrested if they did not go inside. 

Eduardo Gudino

On the night of September 2, 2000, Eduardo Gudino was sitting

in the front room of his apartment on the second floor of a

building across the street and three doors down from the Durans’

home. He heard police sirens outside. When Gudino looked out the

window, he saw police cars arriving and parking out front; a number

of officers got out of their cars and talked amongst themselves.

Gudino saw and heard the police officers, who seemed very

“agitated,” shouting at the Durans’ party guests, so he got his

video camera and began taping the events. He began taping from

inside the apartment and then went outside and across the street to

tape the events from a stairway at the house next door to the

Durans’. Gudino saw officers hitting and pushing people and

spraying them with pepper spray. 
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At some point, Gudino moved from his vantage point; one of the

officers saw him and chased Gudino. Two officers stopped Gudino,

and one of them, whom Gudino was unable to identify at his

deposition, demanded that Gudino give them the video camera or they

would take it from him. The other officer, whom Gudino has

identified as Officer Robert DeCianni, then punched Gudino in the

stomach. The first officer started to hit Gudino, but Gudino used

the camera to block him. Then, according to Gudino, “they grabbed

my hand, and they took the camera from me, but when they took the

camera from me, I shook them off, and I started to run towards my

house.” (Gudino Dep. at 19-20.) The officers chased Gudino for a

short time, but Gudino got away and eventually went back inside his

house. 

Plaintiffs’ Claims

Plaintiffs filed this § 1983 civil rights action on September

3, 2002. The First Amended Complaint names as defendants Sergeant

Krummick, Officer DeCianni, Officer Dino Vitalo, Officer Waldemar

Cruz, “other unidentified police officers,” and the Town. Count I

(for Fourth Amendment violations) and Count II (for Fourteenth

Amendment violations) are brought against the individual officers.

In Count I, Peralta alleges that DeCianni, Vitalo, and Cruz used

excessive force on him, failed to intervene to prevent the further

use of excessive force, and confiscated his video camera without

cause or justification. As for Peralta, she alleges in Count I
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that Krummick failed to intervene to prevent “the further use of

threats, profanity and excessive force.” (First Amended Complaint,

¶ 36.) In Count II, plaintiffs allege that the individual

defendants denied them equal protection. Against the Town,

plaintiffs bring a Monell claim (Count III); a claim for spoliation

of evidence (Count IV); and an indemnification claim (Count V).

Plaintiffs seek compensatory and punitive damages.

Krummick, Vitalo, and Cruz now move for summary judgment on

the claims that are asserted against them. (DeCianni and the Town

have not moved for summary judgment.) 

DISCUSSION

Summary judgment “shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). In considering such a motion, the court construes the

evidence and all inferences that reasonably can be drawn therefrom

in the light most favorable to the nonmoving party. See Pitasi v.

Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). “Summary

judgment should be denied if the dispute is ‘genuine’: ‘if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d

1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby,
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Inc., 477 U.S. 242, 248 (1986)). The court will enter summary

judgment against a party who does not “come forward with evidence

that would reasonably permit the finder of fact to find in [its]

favor on a material question.” McGrath v. Gillis, 44 F.3d 567, 569

(7th Cir. 1995).

A. Obdulia Peralta

In Count I, Peralta alleges that Sergeant Krummick “witnessed

the use of threats, profanity and excessive force” against Peralta

and failed to intervene to prevent the “further use of threats,

profanity and excessive force,” thereby violating her Fourth

Amendment rights. Count II is an equal protection claim; Peralta

alleges that Krummick’s conduct was motivated by her ethnicity.

Defendants point out, correctly, that Peralta’s excessive force

claim appears to be brought under the Fourth Amendment alone and

that only in Peralta’s response brief does she seem to assert an

excessive force claim based on the Fourteenth Amendment. Because

complaints need not identify legal theories, however, see Mid

America Title Co. v. Kirk, 991 F.2d 417, 421 (7th Cir. 1993), we

will treat the failure to intervene claim as being brought under

both the Fourth and Fourteenth Amendments.

Peralta has no Fourth Amendment claim because she was not

seized. For Fourth Amendment purposes, a seizure occurs when an

officer intentionally uses physical force or a show of authority to

restrain a person’s liberty. See United States v. Mendenhall, 446
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U.S. 544, 552 (1980). Peralta must show not only that her personal

liberty was restrained, but that she actually yielded to a show of

authority. See McCoy v. Harrison, 341 F.3d 600, 605 (7th Cir.

2003) (affirming grant of summary judgment in favor of defendant

officer on Fourth Amendment excessive force claim where no seizure

had taken place; officer was alleged to have hit plaintiff, but

plaintiff walked away and defendant did not attempt to restrain

her). There must be “an intentional acquisition of physical

control,” with the officer restraining the freedom of a person to

walk away, thereby seizing that person. Id. 

Peralta does not even argue that she was seized. The evidence

is merely that she was jostled by someone else in her group and

fell when the group was being pushed back toward the house by an

officer. There is no evidence that the officer acquired physical

control over Peralta or that she submitted to the officer’s

authority. Therefore, her failure to intervene claim must be

analyzed under the Fourteenth Amendment.

The threshold issue is whether there is any evidence creating

a genuine issue that Krummick failed to intervene in the pushing.

“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 § 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
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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 v. Hardin, 37 F.3d 282, 285 (7th Cir.

1994). 

In response to defendants’ motion, Peralta submits an

affidavit that states in relevant part:

4. I stood on the sidewalk just outside my home. With

me were several of my relatives and friends.

5. We started yelling at the Police Officer not to beat

up innocent women and children. 

6. A Cicero Police Officer in a white shirt came over to

us and ordered us to get inside the house.

7. After seeing photographs of the Cicero Police

Officers, I now know that the Cicero Police Officer in

the white shirt was Sergeant Krummick.

8. Sergeant Krummick was yelling at us to get inside,

not to watch or otherwise we would be arrested and he

would bring dogs. Sergeant Krummick was using

vulgarities in English when he was yelling at us. I do

not remember exactly what the vulgarities were, but

before or after the vulgar words Sergeant Krummick said

the word Mexican. I could tell by the tone of his voice

and by what he said that he was swearing at me.

9. The front of my house comes right to the sidewalk,

except for a small area by the gangway. A few feet into

the gangway there is a metal fence.

10. When Sergeant Krummick yelled at us, I stepped back

[sic] the sidewalk onto the gangway area.

11. Another Cicero Police Officer that was with Sergeant

Krummick came to us and started shouting vulgarities and

ordered us inside the house.

12. Sergeant Krummick was present and near that officer

when this occurred. Sergeant Krummick was close enough
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to stop the Officer [sic] acts, but Sergeant Krummick did

not stop that Officer, he did not call him back, and he

did not order that officer to refrain from using

vulgarities.

13. When we did not move, the Cicero Police Officer, in

the presence of Sergeant Krummick, violently pushed the

group of people I was in toward the brick wall of my

house.

14. The whole group was pushed back and I was pushed

against the brick wall of my house. 

15. On the wall was a protruding nail which cut me in

the upper back. 

(Peralta Aff. at 1-2.) 

As defendants point out, this affidavit significantly expands

upon and in some respects contradicts Peralta’s deposition

testimony. At her deposition, Peralta testified that after she and

her guests began shouting at the police to stop hurting people, two

officers came across the street. She was shown photographs of

Cicero police officers, but she could not identify either one and

could not identify which officer pushed her group. Peralta did

identify Krummick and stated that he was wearing a white shirt and

was standing in the street. Her testimony was that Krummick was

shouting at her group, but that he did not cross the street all the

way and come over to her group. She was asked whether Krummick

crossed the short fence and came onto her property, and she

answered no, that Krummick was in the street. (Peralta Dep. at 10-

11.) To the extent that Peralta’s affidavit attempts to imply that

Krummick was standing immediately next to the officer who is
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alleged to have pushed the group, it contradicts her earlier

deposition testimony and therefore will be disregarded as an

attempt to create a sham issue of fact. See Bank of Illinois v.

Allied Safety Signal Restraint Sys., 75 F.3d 1162, 1168 (7th Cir.

1996) (a party cannot thwart the purposes of summary judgment by

creating sham issues of fact with affidavits that contradict prior

deposition testimony). 

Plaintiffs devote much attention to the use of profanity, but

that is irrelevant to our analysis because it is not a

constitutional violation. The harm, for constitutional purposes,

is the use of excessive force--the pushing. There is no evidence

here that Krummick even knew that the unidentified officer was

pushing the group. The evidence is that he was in the street, not

on the sidewalk or inside Peralta’s fence. There were a number of

other altercations taking place in and around the street at the

time as well. Even if Krummick had been standing next to the

officer who pushed the group and could have seen it, there is no

evidence that could have anticipated the push or had a realistic

opportunity to prevent the harm from occurring. There is no

evidence that the push was anything other than brief or that there

were several pushes. Accordingly, summary judgment for Krummick

and against Peralta will be granted on Count I (and Count II, to

the extent that it asserts a Fourteenth Amendment claim based on

the failure to intervene).
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3/ Even if we were to consider Peralta’s statement in her affidavit that

Krummick referred to her as a “Mexican” in a derogatory fashion, derogatory

references to racial or ethnic background, by themselves, do not rise to the

level of a deprivation of constitutional rights. See Bell v. City of Milwaukee,

746 F.2d 1205, 1259 (7th Cir. 1984), overruled on other grounds by Russ v. Watts,

414 F.3d 783 (7th Cir. 2005). 

Because the factual predicate for the equal protection claim

in Count II is the alleged failure to intervene, summary judgment

for Krummick on that claim will be granted as well.3 

B. Eduardo Gudino

In Count I, Gudino alleges that DeCianni, Vitalo, and Cruz

used excessive force, failed to intervene to prevent the use of

excessive force, and took his video camera. In Count II, Gudino

alleges that DeCianni, Vitalo, and Cruz denied him equal

protection. 

Vitalo and Cruz contend that they are entitled to summary

judgment on Gudino’s claims because there is no evidence that

either of them was involved in the altercation with Gudino. Gudino

concedes that he has no evidence of Vitalo’s involvement. Thus,

summary judgment will be granted in favor of Vitalo and against

plaintiff on Counts I and II.

As for Cruz, Gudino did not identify Cruz at his deposition as

one of his two assailants. Gudino now submits an affidavit

stating in pertinent part:

3. On September 2, 2000, I saw Cicero Police Officers

beating up civilians at the Duran home.
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4. I took out my video camera, loaded a video tape and

started video taping the Cicero Police Officers [sic] actions.

. . .

6. Two Cicero Police Officers saw me and chased me.

7. After seeing photographs of the Cicero Police

Officers, I now know that these officers were Waldemar

Cruz and Robert Dicianni [sic].

8. Officer’s [sic] Cruz and Dicianni chased me and

demanded my video camera. 

9. I refused to turn over my video camera and I was

punched by Officers Cruz and Dicianni.

10. Officer Dicianni pulled my video camera away from me

and took it away from me.

(Gudino Aff. at 1-2.) 

At his deposition, however, Gudino testified that two officers

chased him--DeCianni and an officer with “white hair.” (Gudino

Dep. at 26.) Cruz does not have white or blond hair and has never

had white or blond hair. (Cruz Aff., ¶¶ 2, 3.) Gudino also

testified that only one officer, DeCianni, punched him, and that

both officers took the camera from him. Although Gudino did

identify Cruz as being one of the officers at the Durans’ home, he

did not state that Cruz was one of his assailants. Instead, Gudino

testified that he saw Cruz in the Durans’ yard and said of Cruz:

“That guy is very evil. Very evil.” When asked what he saw Cruz

do, Gudino replied that Cruz was “hitting people [at the Durans’

home] mercilessly” and “one of the guys [who] was pushing people.”
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4/ There is also no evidence that Cruz made any racially derogatory

remarks.

Gudino never mentioned that Cruz was one of the officers who

confronted him. (Gudino Dep. at 21-22.) 

Gudino’s statements in his affidavit that Cruz chased him,

demanded his video camera, and punched him so squarely contradict

his earlier deposition testimony that they will be disregarded as

an attempt to create a sham issue of fact. Because there is no

evidence that Cruz used any excessive force against Gudino, or

indeed was involved with Gudino at all, summary judgment in favor

of Cruz and against plaintiff on Count I will be granted. Summary

judgment in favor of Cruz and against plaintiff on Count II will

also be granted because there is no factual predicate for an equal

protection claim.4 

CONCLUSION

For the foregoing reasons, the individual defendants’ motion

for summary judgment is granted. 

Summary judgment in favor of Thomas Krummick, Dino Vitalo, and

Waldemar Cruz will be entered on Counts I and II. The case is

terminated as against these defendants because Counts I and II are

the only claims asserted against them. The remaining defendants

are Robert DeCianni and the Town of Cicero. 
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DATE: December 8, 2005

ENTER: ___________________________________________

John F. Grady, United States District Judge