Freyberger asked whether Berrum had been advised of his rights, and a member of the
arrest team told him that Berrum had been advised of his rights. Exhibit A at { 5.

Freyberger gave Martinez three blank DEA forms in Spanish and asked Martinez to read
them to Berrum and ask Berrum if he would consent to a search of his three residences. Exhibit
Aat}6.

Freyberger obtained the DEA forms from a file folder in the DEA office labeled “Consent
to Search (Spanish).” Exhibit A at 7. These DEA forms were entitled “Consentimiento de
Registro” and contained the designation “DEA Form-88,” Exhibit A at J 7. Although
Freyberger does not speak or read Spanish, he believes that the blank forms he gave Martinez
were Spanish-language versions of the DEA’s “Consent to Search” forms, which also contain the
designation DEA Form-ii, and which state that (1) the signer has been asked to permit special
agents of the DEA to search a specifically designated person, place, or thing; (2) the signer has
not been threatened, nor forced in any way; and (3) the signer freely consents to the search.
Exhibit A at J 7; Exhibit F.

Freyberger then watched Martinez speak to Berrum in Spanish. Exhibit A at § 8. Berrum
appeared to Freyberger to be calm, coherent, and cooperative. Exhibit A at 8. Freyberger then
left the dining room and went to the front yard of the Commercial Avenue residence, where two
additional suspects were being questioned. Exhibit A at § 8.

A few minutes later, Freyberger returned to the dining room where Berrum still appeared
to be calm, coherent, and cooperative. Exhibit A at J 9. Martinez told Freyberger that Berrum
had consented to have the DEA search his three residences, and Martinez gave Freyberger the
three DEA forms, each of which specified one of Berrum’s residences, each of which was signed
by Berrum, and each of which was signed by Martinez. Exhibit A at J 9; Exhibits G., H, I.
Freyberger then signed each of the three forms for evidentiary chain-of-custody purposes.
Exhibit A at { 9. Less than five minutes passed between the time that Freyberger handed the
blank DEA forms to Martinez and the time that Martinez handed the signed DEA forms to


In his motion for summary judgment Freyberger states that when he entered the
Commercial Avenue residence, Berrum was already handcuffed and lying on the floor. Exhibit
Aat93. Freyberger states he did not touch Berrum and saw no one strike or in any way threaten
Berrum while at the Commercial Avenue residence. Exhibit A at $11. Freyberger states that
while at the Chicago Heights Police Department, he did not speak to or touch Berrum and saw no
one else strike or in any way threaten Berrum. Exhibit A at 15. Freyberger states that he has
blonde hair and had blonde hair on June 11, 1999. Exhibit A at 9 16. Freyberger states that he
never appeared before a magistrate judge in connection with Berrum’s criminal case. Exhibit A
at 417.

In his motion for summary judgment, Berrum states that he was struck two times by DEA
agents in order to force him to consent to a search of his residences. However, he does not
identify Freyberger as one of the agents who struck him. Berrum states that the agent who struck
him at the Chicago Heights Police Department was also at the hearing on June 12, 1999, Berrum
states that Freyberger was present at this hearing.

None of Berrum’s statements is supported by the record. Moreover, in his deposition,
Berrum stated that he did not remember who hit him but that this person had black hair. Exhibit
B at t3-14. Even assuming that Berrum was struck both at his residence on Commercial Avenue
and at the Chicago Heights Police Department--assumptions that are not supported in any way by
the record before this court--it is clear that it was not Freyberger who struck him and that
Freyberger was not present when these alleged strikes took place.

The court accordingly grants Freyberger’s motion for summary judgment in regard to the
claim of excessive force and denies Berrum’s motion for summary judgment in regard to this
claim.

B. Involuntary Consent to Search
In his motion for summary judgment, Freyberger details the steps he took in having

Berrum sign the consent-to-search forms. Each statement is supported by the record. The


to 66 months in prison, Exhibit E.

In his deposition, Berrum testified that he was slapped on the head two times by one
officer while sitting in the dining room at the Commercial Avenue residence and slapped in the
face two times by the same officer at the Chicago Heights Police Department. Exhibit B at 15-
16, 18. Berrum testified that he did not remember who hit bm and did not know the name of the
person who hit him. Exhibit B at 13-14. Berrum testified that the person who hit him had black
hair. Exhibit B at 14. Berrum stated several times that the person who hit him appeared with
him when he appeared before the magistrate judge for the first time. Exhibit B at 14-15, 18-19,
24, Berrum also testified that he did not see the person who hit him during the search of the
Crystal Court residence, Exhibit B at 22.

Freyberger has blonde hair and had blonde hair on June 11, 1999. Exhibit A at J 16.

Freyberger never appeared before a magistrate judge in connection with Berrum’s
criminal case. Exhibit A at { 17.

B. Berrum’s Local Rule 56.1 Statement of Uncontested Facts

The parties do not disagree as to the first five paragraphs of Berrum’s statement. Berrum
then continues that on June 11, 1999, he was struck two times by DEA agents in order to force
him to consent to a search of his three residences, Berrum’s signing of the consent forms was
involuntary because of the assault, threat, and intimidation.

On June 11, 1999, when DEA agents searched the Helfred residence, they pushed
Berrum’s minor son into the door when he answered their knock. The agents rushed to the
bathroom where Berrum’s wife was showering, entered the bathroom and snatched open the
shower curtains, This caused Berrum’s wife to fall backward, hitting her neck and the back of
her head. After she regained consciousness, the agents taunted and ridiculed her and refused to
give her any assistance.

Berrum disagrees with Freyberger’s statement that Freyberger entered the Commercial
Avenue residence after Berrum was handcuffed and lying on the floor. Rather, Berrum states


Freyberger. Exhibit A at J 9.

Freyberger then walked through the Commercial Avenue residence, where he saw a
suitcase containing cocaine, a scale, a semi-automatic handgun, and live ammunition. Exhibit A
at J 10.

Berrum admits that the search of his Commercial Avenue residence was consensual.
Exhibit C at 3; Exhibit J at II; Exhibit K at 5-6.

While Freyberger was in the Commercial Avenue residence with Berrum, he did not
speak directly to Berrum, he did not touch Berrum, and he saw no one strike or in any way
threaten Berrum. Exhibit A at J 11.

Berrum was then taken to the Helfred Avenue residence. Exhibit B at 21. Berrum
remained outside while the officers searched that residence. Exhibit B at 21; Exhibit D at 11.
Freyberger did not participate in the search of the Helfred Avenue residence. Exhibit A at { 12. ;

Berrum was then taken to the Crystal Court Residence. Exhibit B at 21. Freyberger
Participated in the search of the Crystal Court residence. Exhibit A t § 13. When Freyberger
entered the Crystal Court residence, he believed that Berrum voluntarily had consented to the
search of that residence. id.

During the search of the Crystal Court residence, Berrum showed Freyberger and
Martinez the basement ceiling panel above which $10,000 in currency was hidden. Exhibit A at
4] 14. The only other contraband Freyberger saw was a semi-automatic handgun and live
ammunition. Exhibit A at { 14, During the search of the Crystal Court residence, Berrum
appeared to Freyberger to be calm, coherent, and cooperative. Exhibit A at { 14.

Berrum was taken to the Chicago Heights Police Department. Exhibit B at 48.
Freyberger saw Berrum briefly at the Chicago Heights Police Department. Exhibit A at J] 15. He
did not speak to or touch Berrum, and he saw no one strike or in any way threaten Berrum.
Exhibit A at 15.

Berrum pled guilty to possession with intent to distribute cocaine, and he was sentenced


Procedure or with this court’s Local Rule 56.1. To support his memorandum,

plaintiff has attached copies of his wife’s medical bill and records. However, this

court informed plaintiff in its April 18, 2001, order that he could not bring claims

on behalf of his wife. He has also included a list of his psychological contacts,

but that is all it is~a list. However, because plaintiff is pro se, the court will give

him one final opportunity to respond to defendant’s motion for summary

judgment.

The court then gave Berrum a “Notice to Pro Se Litigant Opposing Motion for Summary
Judgment.”

Berrum responded with a motion for summary judgment, his Local Rule 56.1 Statement
of Uncontested Facts, and a Memorandum in Support of Plaintiff’s Motion for Summary
Judgment. In spite of the court’s notice that his exhibits were not sufficient, he attached the same
ones. Moreover, in spite of the Assistant United States Attorney’s explicit explanation of how to
make a declaration, Berrum has not declared under penalty of perjury that his filings, in
particular, his Local Rule 56.1 Statement of Uncontested Facts, are true and correct.

Although pro se plaintiffs are entitled to lenient standards, compliance with procedural
rules is required. Jones v. Phipps, 39 F.3d 158, 163 (7" Cir.1994). Despite being provided twice
with the Local 56.1 notice to pro se litigants opposing summary judgment, Berrum has failed to
support his motion with summary judgment. Moreover, neither his Local Rule 56.1 Statement of
Uncontested Facts nor his motion for summary judgment can be deemed a declaration or
affidavit for they are not sworn under penalty of perjury. 28 U.S.C. § 1746; Eddings v. Lefevour,
No. 98 C 7968, 2000 WL 146610, at *7 (N.D.IL. Sept. 29, 2000). Accordingly, Freyberger’s
Rule 56.1 facts are deemed admitted. Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868,
870 n. 3 (7* Cir. 2000). Oates v. Discovery Zone, 116 F.3d 1161, 1167 (7* Cir. 1997); Flaherty
v. Gas Research Inst., 31 F.3d 451, 453 (7° Cir. 1994); L.R. 56.1(6)(2)(B).

Nonetheless, because Berrum is pro se , the court will examine both motions for summary
judgment in regard to the two remaining claims of use of excessive force and involuntary consent

to search.

A. Use of Excessive Force


‘Minute Ger Form (06/97)

United States District Court, Northern District of Dlinois

Name of Assigned Jud Sitting Judge if Oth
aor Magistrate Judge BLANCHE M. MANNING thee hashed Jute JAMES F. HOLDERMAN
CASE NUMBER 01 C 802 DATE March 18, 2004
CASE Berrum v. Freyberger
TITLE

[Inthe following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented}

MOTION:

DOCKET ENTRY:

qd) o Filed motion of [ use listing in “Motion” box above.]

@Q) Oo Brief in support of motion due

@) Oo Answer brief to motion due___. Reply to answer briefdue__.

(4) oO Ruling/Hearing on set for at

(5) oO Status hearing[held/continued to) [set for/re-set for]on__——ssetfor__—_att

(6) im Pretrial conference[held/continued to] [set for/re-set for]on__—_set for at.

(7) Qo Trial[set for/re-set for]on___—sat_—

(8) oO [Bench/Jury trial] [Hearing] held/continuedto__at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OOFRCP4(m) (CGeneral Rule21 ([/FRCP41(a)(1) [1 FRCP41(a)(2).

ao [Other docket entry] The court grants defendant Douglas Freyberger’s motion for summary

pursuant to Fed. R. Civ. P. 56.

ql) @ [For further detail see attached Memorandum Opinion and Order.]

judgment [31] and denies plaintiff Jose Berrum’s motion for summary judgment [45]. The Clerk is
directed to enter judgment in favor of defendant Douglas Freyberger and against plaintiff Jose Berrum

No notices required, advised in open court.

No notices required, number of notices

MAR AS 2508
date dockets

Notices mailed by judge's staff.
Notified counsel by telephone.

x Docketing to mail notices.
X | Mail AO 450 form.
Copy to judge/magistrate judge.
courtroom
CLE deputy’s
initials
_av Date/time received in 7 :
i central Cletk’s Office emailing deputy initials

Nie eeu UD ob



court finds that appeal is not taken in good faith, and the Court of Appeals agrees, he will not be
permitted to proceed in forma pauperis and pay the fee in installments, but will have to pay the
fee immediately or the appeal will be dismissed. 28 U.S.C. § 1915(a)(3). To avoid a finding that
the appeal is not taken in good faith, a motion to proceed in forma pauperis on appeal should
explain the grounds for the appeal. See Hyche v. Christensen, 170 F.3d 769, 771 (7° Cir. 1999);
Fed. R. App. P. 24(a)(1)(C).

ENTER:

'S F. HOLDERMAN
ited States District Judge

11



exhibits, affidavits, and the like demonstrate that Berrum’s consent was voluntary.

Berrum alleges that he consented only after he was assaulted and that he feared further
assaults. However, Berrum has offered nothing to support his version of the events other than his
own assertions.

Freyberger has also offered into evidence a copy of the brief that Berrum filed in support
of his motion pursuant to Rule 21 section 881 for “return of property” in United States v.
Berrum, 99 CR 432-1, Exhibit J. In the brief, Berrum wrote: “Incident to his arrest, law
enforcement officers conducted a consensual search of Berrum’s residence.” Jd. at I], Berrum
signed the brief. Jd. at 9. Berrum argues that this statement is because the brief was prepared by
another inmate. However, Bertum is responsible for briefs and the like that he files in court.
Interestingly, the motion for return of property was filed on September 19, 2000, after Berrum
filed the instant complaint claiming that the search was illegal.

The court accordingly grants Freyberger’s motion for summary judgment and denies
Berrum’s motion for summary judgment on Berrum’s claim that his consent to the search was
not voluntary» 4
IV. Conclusion

For the foregoing reasons, the court grants defendant Douglas Freyberger’s motion for
summary judgment and denies plaintifE Jose Berrum’s motion for summary judgment. The Clerk
is directed to enter judgment in favor of defendant Douglas Freyberger and against plaintiff Jose
6.

Berrum pursuant to Fed. R. Civ. P.
If Berrum wishes to appeal this dismissal, he may file a notice of appeal with this court
within 30 days of the entry of judgment. Rule 4(a)(4), Fed. R. App .P. If he does so, he will be
liable for the $255 appellate filing fee. Unless he is granted leave to proceed in forma pauperis,
he will have to pay the fee immediately. If he cannot do so, the appeal will be dismissed, but he
will remain liable for the fee and it will be deducted from his inmate trust fund account in
installments. Evans v. Illinois Dept. of Corrections, 150 F.3d 810, 812 (7 Cir. 1998). If this

10


that Freyberger was the first person he saw when the DEA agents entered his residence.

Berrum disagrees with Freyberger’s statement that he did not participate in the search of
the Helfred Avenue residence. .Berrum disagrees with Freyberger’s statement that he never
appeared before a magistrate judge in connection with Berrum’s criminal case. Berrum states
that Freyberger was present at a hearing on June 12, 1999, and asked the magistrate judge to deny
bond.

Berrum states that he was struck two times while at the Chicago Heights Police
Department. Berrum states that the DEA agent who struck him was at the hearing on June 12,
1999,

Til. Analysis

When Freyberger filed his motion for summary judgment, he included a “Notice to Pro
Se Litigant Opposing Motion for Summary Judgment” as required by Timms v. Frank, 953 F.2d
281, 285 (7" Cir. 1992); Lewis v. Faulkner, 689 F.2d 100, 102 (7" Cir. 1982). This notice clearly
sets out the requirements of this court’s Local Rule 56.1. In particular, the notice explains:

You may rely upon your own declaration or the declarations of other witnesses. A

declaration is a signed statement by a witness. The declaration must end with the

following phrase: “I declare under penalty of perjury under the laws of the United

States that the foregoing is true and correct,” and must be dated. If you do not

provide the Court with evidence that shows that there is a dispute about the facts,

the judge will be required to assume that the defendant’s factual contentions are

true, and, if the defendant is also correct about the law, your case will be

dismissed.

Berrum responded with a memorandum in support of plaintiff's motion for summary
judgment, However, he did not file a motion for summary judgment. When Berrum moved to
reinstate his motion for summary judgment, the court examined the record and saw that he had
never filed a motion for summary judgment but had filed a memorandum. After reviewing this
memorandum the court determined that it would be futile to allow plaintiff to file a motion for
summary judgment based on this memorandum. In its order of December 8, 2003, the court
explained:

The memorandum does not comply with Rule 56(e) of the Federal Rules of Civil

7


Il. Facts
A. Freyberger’s Local Rule 57.1 Statement of Uncontested Facts

On June 11, 1999, Berrum owned three residences: one on Commercial Avenue in South
Chicago Heights, Illinois; one on Helfred Avenue in South Chicago Heights, Illinois; and one on
Crystal Court in Steger, Illinois. Exhibit B at 8; Exhibit D at 4-5. Berrum lived with his wife
and children in the house on Helfred Avenue. Exhibit B at 8; Exhibit D at 4-5.

On June 11, 1999, Berrum took personal delivery and possession of approximately 14.7
kilograms of cocaine at his residence on Commercial Avenue. Exhibit C at 2. He then received
into his residence an undercover government agent who by prior arrangements had agreed to
purchase cocaine from Berrum at Berrum’s stated price of $25,000 per delivered kilogram.
Exhibit C at 2-3. Berrum directed the agent into the kitchen and adjacent dining room and
personally displayed part of the 14.7 kilograms of cocaine. Jd.

At the same time, Freyberger was in a car parked on a side street near the Commercial
Avenue residence. Exhibit A at ] 2. Freyberger heard over the radio that the undercover agent
had given the prearranged “bust” signal. Exhibit A at 2. Freyberger then drove down the alley,
parked near the rear of the residence, and entered the residence through the side door. Exhibit A
at J 2.

When Freyberger entered the residence, the arrest team, which was composed of officers
from the DEA and the Chicago Heights Police Department, was outside the kitchen. Exhibit A at
3. Berrum was already handcuffed and lying on the floor. Exhibit A at 13. Freyberger then
saw members of the arrest team help Berrum to his feet, assist him to a chair, and remove his
handcuffs. Exhibit A at { 3.

Freyberger asked whether Berrum spoke English and was told by Detective James
Martinez of the Chicago Heights Police Department, whom Freyberger believes to be fluent in
Spanish, that Berrum did not speak English. Exhibit A at ] 4; see also Exhibit B at 4, 17.
Freyberger neither speaks nor reads Spanish. Exhibit A at { 4.


IL. Standard of Review on a Motion for Summary Judgment
Borcky v. Maytag Corporation, 248 F.3d 691, 695 (7" Cir. 2001), details the criteria a
district court must follow in ruling on a motion for summary judgment:

[A district court} “must construe all facts in the light most favorable to the
non-moving party and draw all reasonable and justifiable inferences in favor of
that party.” Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7 Cir. 2000).
Summary judgment is proper if the record shows “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

However, “(t]he mere existence of some alleged factual dispute will not
defeat an otherwise properly supported motion for summary judgment,” Liu v. T
& H Mach, Inc., 19) F.34790, 796 (7" Cir, 1999); only a “genuine” issue of
“material” fact precludes summary judgment, Fed. R. Civ. P. 56(c). “Factual
disputes are ‘material’ only when they ‘might affect the outcome of the suit under
the governing law.”” Oest v. Illinois Dep't of Corrections, 240 F.3d 605, 610 (7
Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986)). Furthermore, “[flactual disputes are ‘genuine’
only ‘if the evidence is such that a reasonable jury could return a verdict for the
[nonmovant].’” Id. (quoting Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505).
Speculation will not suffice. See Liu, 191 F.3d at 796 (“A party must present
more than mere speculation or conjecture to defeat a si judgment
motion.”); Amadio v. Ford Motor Co., 238 F.3d 919, 927 (7" Cir. 2001); Gorbitz
v. Corvilla, Inc., 196 F.3d 879, 882 (7* Cir. 1999) (stating that a plaintiff's
speculation is “not a sufficient defense to a summary judgment motion”).

The party moving for summary judgment has the initial burden of submitting affidavits
and other evidentiary material to show the absence of a genuine issue of material fact. Celotex,
477 U.S. at 325. Once the moving party has sustained the initial burden, the opposing party may
not rest upon the mere allegations or denials of the pleadings, but instead must come forward
with specific evidence, by affidavits or as otherwise provided in Rule 56, showing that there is a
genuine issue for trial. Jd. at 324.

Because both parties have moved for summary judgment, the court evaluates each party’s
motion on its own merits, taking care in each instance to draw all reasonable inferences against
the party whose motion is under consideration. Mingus Constructors, Inc. v. United States, 812
F.2d 1387, 1391 (Fed.Cir. 1987). However, this does not necessarily mean the court must grant
judgment as a matter of law for one side or the other; summary judgment in favor of either party
is not proper if disputes remain as to material facts. Id.

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE BERRUM,
Plaintiff,

wok Ly 200d

v. No. 01 C 802
DOUG FREYBERGER, Individually
and In His Official Capacity
as a DEA Special Agent; and
Other Unknown DEA Special Agents,
Individually and In Their Official
Capacity as DEA Special Agents.

Defendants.

Sees

MEMORANDUM OPINION AND ORDER
JAMES F, HOLDERMAN, District Judge:

Plaintiff Jose Berrum (Berrum), currently an inmate at FCI Texarkana, Texas, brings this
pro se complaint under the Constitution (“Bivens” Action), 28 U.S.C. §1331(a) and the
International Covenant on Civil and Political Rights (CCPR). On March 19, 2002, the court
granted in part and denied in part defendant Douglas Freyberger’s Motion to Dismiss. Berrum’s
claims pursuant to the Fifth and Sixth amendments and under the ICCPR were dismissed.
Berrum’s claims that his arrest and the search of his residences were in violation of the Fourth
Amendment and that Freyberger used excessive force in violation of the Eighth Amendment
remain. Freyberger has filed a motion for summary judgment, In response, Berrum filed a cross-
motion for summary judgment. For the following reasons, the court grants defendant Douglas
Freyberger’s motion for summary judgment and denies plaintiff Jose Berrum’s motion for

summary judgment.