01-6858.051-JCD October 7, 2005

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ALEJANDRO DURAN, et al., )

)

Plaintiffs, )

)

 v. ) No. 01 C 6858

) 

TOWN OF CICERO et al., ) 

 )

Defendants. )

MEMORANDUM OPINION

Before the court are three motions. For the reasons explained

below, (1) the motion of defendants Robert DeCianni and William

Peslak for summary judgment with respect to the plaintiffs in Group

I is denied; (2) the motion of certain defendants for summary

judgment with respect to the plaintiffs in Group II is granted; and

(3) the joint motion of the individual police officer defendants

for partial summary judgment is granted in part and denied in part.

BACKGROUND

This case is a civil rights action brought by nearly eighty

plaintiffs against the Town of Cicero (the “Town”) and seventeen

Cicero police officers. It arises out of an incident occurring on

September 2, 2000, at the home of Alejandro and Maria Concepcion
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1/ Alejandro and Maria Duran lived at the home, but the home was owned by

Alejandro’s brother, plaintiff Gonzalo Duran. There is conflicting evidence on`

whether Gonzalo was living in the home at the time as well. 

2/ The other plaintiffs are as follows: Jaquelin Duran, Armando Duran,

Anna Maria Duran, Armando Duran Jr., Yonathan Duran, Adolfo Duran, Adolfo Duran

Jr., Gonzalo Duran, Amada Duran, Gonzalo Duran Jr., Concepcion Duran, Kevin

Duran, Jaime Duran, Luz Maria Pineda, Daniel Pineda, Ignacio Rodriguez, Alma

Rodriguez, Ana Rodriguez, Kathy Bonilla, Basilisa Pineda, Javier Rodriguez, Rene

Moreno Sr., Lisbeth Moreno, Rene Moreno Jr., Maria Alicia Moreno, Ruben Pineda,

Silvia Pineda, Anabell Pineda, Marlene Pineda, Edwin Pineda, Kalyn Pineda,

Florina Pineda, Joel Uribe, Esther Meraz, Heriberto Uribe Sr., Juan Carlos Uribe,

Dudbeth Uribe, Heriberto Uribe Jr., Jose Manuel Uribe Jr., Juana Maribel

Escareno, Graciela Torres, Kassandra Torres, Diego Torres, Graciela Pineda,

Serafin Rios, Jair de la Cruz, Norma de la Cruz, Julia de la Cruz, Juan Jose de

la Cruz, Kevin de la Cruz, Lorena Paredes, Jose Refugio Paredes, Amanda Paredes,

Alondra Paredes, Jose Paredes, Jorge Enrique Perez Sr., Florentina Perez (adult),

Florentina Perez (child), Isela Perez, Jorge Enrique Perez Jr., Sergio Duran,

Alberto Duran Pineda, Joel Rico Duran, Maria Marisol Rico Duran, Joel Rico Duran

Jr., Jesus Rico Duran, Maria M. Hernandez, Jesus Uribe, Manuel Uribe Palacios,

Juana Soto Uribe, Imelda Uribe, Jose Manuel Uribe, Raquel Uribe, Jose Adrian

Moreno, Ismael Torres, Jessica Perez, and Jose Martin Uribe. 

Duran,1 who were having a party to celebrate their daughter’s

baptism. Plaintiffs are the Durans and their guests at the party.2

We will briefly outline the facts of this case. Party guests

began arriving at the Durans’ home in Cicero in the late afternoon

of September 2, 2000. At about 8:00 p.m., there were as many as

seventy people at the party, which was in the back yard of the

home. The Durans provided food and drink for their guests,

including beer and wine, and some guests brought their own beer as

well. Around 9:30 p.m., the Cicero Police Department (to which we

will refer as the “Town”) received a telephone call complaining

about the party. Officers Waldemar Cruz and Robert DeCianni were

sent to check on the party; they arrived at the Durans’ home and

asked that cars be moved from the alley and that the volume of the

music be turned down. The officers then left. 
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Shortly thereafter, the Town received a second telephone call

from a neighbor of the Durans complaining about the party.

DeCianni responded to the call from the police radio dispatcher by

returning to the Durans’ home. At this time there were

approximately eighty or ninety people at the party. When DeCianni

arrived, people in the front yard began arguing with him.

Alejandro Duran argued that the music was not too loud and stated

that he had a right to have guests at his house. DeCianni radioed

the dispatcher and asked for additional officers to come to the

house, stating that the owner was being uncooperative.

Officer Michael McMahon was sent to the house. He became

involved in arguments with the party guests as well, so DeCianni

radioed the dispatcher to send a supervisor and other officers

because people were “getting unruly.” Officer Anthony Lewandowski

arrived in a police wagon, followed by Officers David Richert and

Jason Stroud, then Officers Dino Vitalo and Rhonda Gross, and then

Sergeant Thomas Krummick (the aforementioned supervisor). In front

of the house, several verbal confrontations occurred between the

officers and the party guests, some of whom had moved from the back

yard to the front yard. There is no dispute that there was

shouting and use of profanities by both the officers and the party
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3/ For example, there is evidence from plaintiffs that the officers called

them “Mexican shit,” “fucking cowboys,” and “fucking Mexicans.” There is also

evidence from defendants that plaintiffs told the officers to “get the fuck out

of here,” “leave us the fuck alone,” and “this is our fucking home.” 

guests;3 however, it is disputed whether the officers or the party

guests were the aggressors. 

According to DeCianni, Gonzalo Duran threw a can at him, and

DeCianni so informed Krummick upon his arrival. A short time

later, Gross yelled into her police radio that “all units” should

come to the scene immediately. The dispatcher stated that there

was an emergency and called for every Town officer to go to the

Durans’ home, in addition to requesting assistance from the Berwyn

and Chicago police departments for a “gang fight.” (When and by

whom the term “gang fight” was first used is unclear.) At some

point, Officer Cruz returned to the home, and others arrived:

Detective Attilio Fiordirosa and Officers Rudy Sirgedas, Michael

Kirby, Scott Harris, William Peslak, Miguel Jimenez, and Thomas

Kratochvil, as well as other officers who are not defendants in

this case. 

The situation escalated into what the parties have referred to

as a “melee” or a “riot.” Some plaintiffs claim that they were

hit, hit with asps (batons), shoved, knocked down, punched, pushed,

kicked, grabbed, and/or that they had food thrown at them by the

officers. Many plaintiffs contend that they were sprayed with
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4/ The parties use the terms “pepper spray” and “mace” interchangeably to

refer to one substance that was used by police officers at the Durans’ home. We

will use the term “pepper spray” because that is the term that the officers

themselves use in their deposition testimony, and, unless it becomes an issue,

we will assume their terminology is accurate. 

5/ According to plaintiffs, at least one other videotape was confiscated

by the officers, and defendants failed to preserve it. 

pepper spray4 and that officers “verbally abused” them with, among

other things, ethnic slurs. Many plaintiffs also contend that they

were forced into the Durans’ home and that pepper spray was then

sprayed into the home. 

The officers maintain that they were attempting to control and

calm an angry crowd--not just the party guests, but also various

neighbors of the Durans who had come out of their houses into the

street. Various officers concede that they used their asps and

pepper spray but argue that it was for the purpose of controlling

plaintiffs who were attacking, biting, resisting, and struggling

with them. Defendants concede that the officers were trying to

direct party guests into the house but dispute that any officer

sprayed pepper spray directly into the house. The discrete

confrontations between plaintiffs and the officers are too numerous

to describe here. Instead, we will set forth the relevant facts

where necessary infra in our discussion. 

There are two existing videos of some of the events.5 One was

filmed by Onofre Barajas, a neighbor who lived across the street

from the Durans. Barajas was sitting outside on his front porch

when the officers arrived at the Durans’ home. After the officers
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told neighbors and onlookers to go inside their homes, Barajas went

inside and then began videotaping, from his window, the events

occurring outside on the street, on the sidewalk, and in the

Durans’ front yard. The video is of insufficient quality or

brightness to discern much detail other than the fact that there

was a lot of activity and people milling about. It depicts a

number of squad cars arriving at the home and several officers

coming into the yard, where there were several party guests. At

one point officers can be seen directing people into the back yard

alongside the house, and someone can be heard shouting, “Move!

Move! Move! Move! Let’s go! Move!” There is a lot of shouting,

screaming, and use of profanity; not much can be heard clearly,

except for the officers’ directions to people to “get inside the

house,” “get the fuck inside,” “get the fuck in the house,” “go

inside,” and “get inside the house.” Some officers enter the house

and then exit again shortly thereafter, some of whom are escorting

arrestees. 

The other video was filmed by Luis Castaneda, who was the

professional videographer hired by the Durans to film the day’s

events. Most of the video has little relevance because it depicts

the baptism and the pre-police-arrival party events. The party

scenes are of guests eating and drinking in the back yard in the

afternoon and evening. At 1:48:11, after a scene of the cakecutting in the back yard, a scene begins of officers standing
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outside the front fence speaking to one of the plaintiffs. Several

party guests are standing around in the front yard and on the front

porch. It is very noisy, but not many individual sounds can be

heard. After about a minute, an officer is overheard telling

Castaneda, who is standing on the sidewalk outside the yard, that

he must leave. Castaneda gets into his car but continues to film

for a couple of minutes (not capturing much of anything but guests

on the front porch). At 1:52, Officer Lewandowski opens the car

door and demands that Castaneda give him the videotape. Soon

thereafter, the tape ends. 

After the situation had calmed down somewhat, the officers

arrested seven of the plaintiffs--Alejandro Duran, Armando Duran,

Adolfo Duran, Gonzalo Duran, Joel Uribe, Heriberto Uribe, and Juan

Carlos Uribe--and brought them to the Town police station. Armando

Duran alleges that the jail keeper at the Cicero police station

lockup, defendant Walter Wirack, physically and verbally abused

him. It is alleged that Wirack also directed racial slurs at the

other plaintiffs who had been taken to the jail. 

Juan Carlos Uribe was released (evidently without being

charged), and while criminal misdemeanor complaints were signed

against Heriberto Uribe and Joel Uribe for obstructing a peace

officer, plaintiffs state that those charges were not prosecuted.

The four Durans, however, were prosecuted on charges of battery and
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obstructing or resisting a peace officer; the case was tried to a

jury, and they were found not guilty. 

The complaint in this case has gone through several

incarnations. The current complaint on file is the Fourth Amended

Complaint, which alleges the following claims: § 1983 excessive

force, false arrest, and denial of equal protection, brought by all

plaintiffs against the individual defendants (Counts I-III); a

Monell policy claim brought by all plaintiffs against the Town

(Count IV); violation of the Illinois Hate Crime Act, brought by

all plaintiffs (except for Alberto Duran Pineda, Sergio Duran, Joel

Rico Duran, Maria Marisol Rico Duran, and Maria M. Hernandez (the

“Pineda Group”)) against all defendants (Count V); malicious

prosecution, brought by plaintiffs Alejandro Duran, Armando Duran,

Adolfo Duran, Gonzalo Duran, Heriberto Uribe Sr., Joel Uribe, and

Juan Carlos Uribe against the individual defendants (Count VI);

battery and intentional infliction of emotional distress, brought

by all plaintiffs except the Pineda Group against the individual

defendants (Counts VII and VIII); spoliation of evidence and

respondeat superior claims, brought by all plaintiffs except the

Pineda Group against the Town (Counts IX and X); and an

indemnification claim brought by all plaintiffs against the Town

(Count XI). Plaintiffs seek compensatory and punitive damages as

well as reasonable attorney’s fees and costs. 
- 9 -

The individual defendants have filed three motions for summary

judgment or partial summary judgment, which we now discuss. Two of

the motions refer to plaintiffs in certain “groups” on the “List of

Potential Trial Plaintiffs and Defendants” (the “List”). The List

was created by defendants at the court’s request in order to

simplify the analysis of summary judgment motions. The List

divides the plaintiffs into four Groups that have claims against

corresponding individual defendants. Group I consists of

plaintiffs who claim they were inside the Durans’ house and

experienced ill effects from the pepper spray allegedly sprayed by

Officers DeCianni and Peslak. Group II consists of plaintiffs who

claim that they were inside the yard and were sprayed and

defendants who were initially gathered outside the yard and are

alleged to have used pepper spray, regardless of whether it can be

shown which plaintiff they sprayed. Group III consists of

plaintiffs who claim that they were assaulted by a particular

defendant in some manner other than the use of pepper spray and the

corresponding defendants. Group IV consists of plaintiffs who

claim false arrest and the defendants alleged to have caused the

arrests.

Prior to defendants’ filing of the List, plaintiffs had filed

two Tables: “Plaintiffs’ Table of Plaintiffs and the Defendants

Responsible for Certain of Plaintiffs’ Injuries” and “Plaintiffs’

Table of Defendants and the Plaintiffs They Damaged.” The Tables
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further clarify plaintiffs’ claims by specifying exactly which

plaintiffs are pursuing exactly which claims against the individual

defendants. We will refer to some of the details of the Tables

where appropriate. 

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,

Inc., 477 U.S. 242, 248 (1986)).

We will first address the status of the briefing of

defendants’ motions. Defendants’ current summary judgment motions

were filed in October 2004. Plaintiffs then filed a motion to

strike defendants’ motions on the ground that the briefs were too

voluminous. We denied that motion and told plaintiffs they could
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file one response to all the motions (if they wished), the length

of which would not be limited. We indicated that plaintiffs’

counsel should use whatever format they believed would render their

responses most intelligible to the court. We set a February 18,

2005 due date for plaintiffs’ responsive brief or briefs. 

Thereafter, plaintiffs moved three times for extensions of

time to submit their responses. In view of the complicated nature

of the case and the multiple issues involved, each motion was

granted. The latest due date for the response was June 30, 2005.

That date passed without any brief from plaintiffs, and no motion

for another extension of time was filed. In early August 2005,

chambers staff contacted plaintiffs’ counsel, who indicated that

plaintiffs intended to move for another extension of time.

Chambers staff informed plaintiffs’ counsel that the next date the

court would be hearing motions would be September 7, 2005, and that

the motion for an extension of time should be noticed for that

date. September 7 passed without a motion being filed by

plaintiffs, as well as our next three motion hearings on September

14, 21, and 28, 2005.

We have gone out of our way to give plaintiffs every

opportunity to respond meaningfully to the motions, and they have

failed to do so. A district court is entitled to, and indeed must,

enforce its deadlines, and it has substantial discretion to manage

its docket. See Reales v. Consolidated Rail Corp., 84 F.3d 993,
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6/ We will refer to this motion as “Motion No. 1.” It is technically a

motion for “partial” summary judgment because the arguments do not go to every

count of the complaint. 

7/ The thirty-four “Group I” plaintiffs are Alejandro Duran, Maria

Concepcion Duran, Jaquelin Duran, Armando Duran Jr., Yonathan Duran, Adolfo

Duran, Adolfo Duran Jr., Gonzalo Duran Jr., Alma Rodriguez, Ana Rodriguez, Kathy

996 (7th Cir. 1996) (holding that district court did not abuse its

discretion in denying plaintiffs a fourth extension of time to

respond to summary judgment motion and in proceeding to decision on

summary judgment). 

Thus, we will now consider the substance of defendants’

motions without the benefit of a submission by plaintiffs. Of

course, we will fully analyze the merits of defendants’ motions

before deciding them. See Fed. R. Civ. P. 56(e) (providing that if

an adverse party does not respond to a motion for summary judgment,

“summary judgment, if appropriate, shall be entered against the

adverse party”) (emphasis added)). Because plaintiffs have failed

to respond to defendants’ motions, those facts asserted in

defendants’ statement of material facts that have been properly

supported with evidence are deemed admitted. See N.D. Ill. Local

Rule 56.1(b); Waldridge v. American Hoechst Corp., 24 F.3d 918,

922-24 (7th Cir. 1994). 

A. Motion for Summary Judgment on Behalf of Robert DeCianni

and William Peslak with Respect to Plaintiffs on List One6

The Group I plaintiffs allege that they were inside the house

and experienced ill effects from the pepper spray that was

purportedly sprayed into the back door of the Durans’ house.7
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Bonilla, Edwin Pineda, Florina Pineda, Joel Uribe, Esther Meraz, Heriberto Uribe

Sr., Juan Carlos Uribe, Dudbeth Uribe, Heriberto Uribe Jr., Juana Maribel

Escareno, Serafin Rios, Norma de la Cruz, Julia de la Cruz, Kevin de la Cruz,

Sergio Duran, Jesus Rico Duran, Maria M. Hernandez, Jesus Uribe, Manuel Uribe

Palacios, Juana Soto Uribe, Imelda Uribe, Jose Adrian Moreno, Ismael Torres, and

Jose Martin Uribe. 

8/ The first round of briefing did not result in a ruling, for procedural

reasons which we need not recount at this time.

Officers DeCianni and Peslak move for summary judgment on their

claims for resulting injuries. 

1. Affidavits

The Officers’ first argument is that they are entitled to

summary judgment on the facts. The evidence that DeCianni sprayed

into the house comes from a single plaintiff, Jose Refugio Paredes

(who is not one of the Group I plaintiffs). Similarly, the

evidence that Peslak sprayed into the house comes from a single

plaintiff, Maria Alicia Moreno (who is also not one of the Group I

plaintiffs). No other plaintiff can identify any particular

officer as having sprayed into the house. We will refer to Jose

Refugio Paredes as “Paredes” and to Maria Alicia Moreno as “Moreno”

in this section for convenience. 

The evidence from Paredes and Moreno comes from the affidavits

that were filed by several plaintiffs after defendants filed the

first round of summary judgment briefs.8 Over defendants’

objection, we permitted those affidavits to be filed, and we denied

defendants’ subsequent motions to strike the affidavits. DeCianni

and Peslak contend that the statements in the affidavits of Paredes
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and Moreno should not be allowed to create genuine issues of fact

on summary judgment because they contradict prior testimony in

interrogatories (Paredes) and at deposition (Moreno). 

The Seventh Circuit has “long followed the rule that parties

cannot thwart the purposes of Rule 56 by creating ‘sham’ issues of

fact with affidavits that contradict their prior” sworn statements.

Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d

1162, 1168 (7th Cir. 1996). “When a party has given clear answers

to unambiguous questions which negate the existence of any genuine

issue of material fact, that party cannot thereafter create such an

issue with an affidavit that merely contradicts, without

explanation, previously given clear testimony.” Id. at 1170

(quoting Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736

F.2d 656, 657 (11th Cir. 1984)). The rule “serve[s] an important

purpose of weeding out non-meritorious claims for which a trial is

not necessary. . . . [but] must be applied with caution.” Flannery

v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 (7th Cir.

2004). In light of the jury’s role in resolving questions of

credibility, 

A definite distinction must be made between discrepancies

which create transparent shams and discrepancies which

create an issue of credibility or go to the weight of the

evidence. . . . To allow every failure of memory or

variation in a witness’s testimony to be disregarded as

a sham would require far too much from lay witnesses and

would deprive the trier of fact of the traditional

opportunity to determine which point in time and with

which words the witness . . . was stating the truth.

Variations in a witness’s testimony and any failure of
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memory throughout the course of discovery create an issue

of credibility as to which part of the testimony should

be given the greatest weight if credited at all. 

Bank of Illinois, 75 F.3d at 1169-70 (quoting Tippens v. Celotex

Corp., 805 F.2d 949, 953-54 (11th Cir. 1986)). Stated a bit

differently, the assessment is “whether a subsequent statement so

squarely contradicts an earlier one as to create only a sham issue

of fact.” Bank of Illinois, 75 F.3d at 1170. A “contradiction”

exists only when the two statements are “inherently inconsistent”

and not when the later statement merely clarifies an earlier

statement that is ambiguous or confusing or is based on newly

discovered evidence. See Flannery, 354 F.3d at 638; Bank of

Illinois, 75 F.3d at 1171-72. 

We begin with Paredes, whose affidavit states in relevant

part:

3. Defendant Robert DeCianni sprayed me in the face

with pepper spray for no reason. I was holding my

son, Jose Paredes, Jr., then age 2, in my arms at

the time. Jose was sprayed with pepper spray. My

daughter, Amanda Paredes, then age 9, was holding

onto my leg at the time. Amanda was sprayed with

pepper spray as well.

4. I saw Robert DeCianni spray pepper spray into the

rear door of the Duran home and then close the

door.

(Affidavit of Jose Refugio Paredes, Ex. 135 of Plaintiffs’ Exhibits

in Support of Plaintiffs’ Table of Defendants.) 
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Defendants assert that Paredes’ earlier answers to

interrogatories contradict these statements. Defendants point to

Interrogatory No. 12 and the answer, which are as follows:

INTERROGATORY NO. 12: Identify each person you claim to

be responsible for causing your injury(ies) . . ., and

identify with particularly [sic] how each person acted to

cause your injury. If you are unable to identify each

person by name, provide a description of the individual,

. . . and/or the letter of the photograph depicting the

person in the photograph reproductions previously

supplied in discovery.

ANSWER: I was sprayed, but do not recognize who did it.

There were many police officers. Plaintiff relies on

identification made by other plaintiffs.

(Plaintiff Jose Refugio Paredes’s Responses to the Individual

Defendants’ Interrogatories, Ex. 35 of Plaintiffs’ Exhibits in

Support of Plaintiffs’ Table of Defendants.) Defendants also point

to Paredes’s answers to interrogatories on behalf of his son and

daughter, Jose and Amanda, in which Paredes stated that he did not

know who was responsible for Jose and Amanda’s injuries and was

relying on identification made by other plaintiffs. 

According to defendants, at the time the interrogatories were

answered, plaintiffs had access to photographs of the officers as

well as the two videotapes of the events on September 2, 2000 (in

which DeCianni is visible). Moreover, DeCianni had sat for two

videotaped depositions. Defendants contend that the “mysterious

identification of Officer DeCianni by someone who could not

previously identify him, despite having access to photographs, live
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testimony and videotape, renders the testimony dubious and of no

weight.” (Mem. in Support of Motion No. 1 at 5.) 

There are two statements in Paredes’s affidavit that must be

compared to his prior interrogatory answers: (1) DeCianni sprayed

him in the face; and (2) DeCianni sprayed into the house and then

closed the door. The second statement is really the only statement

that is critical to this particular motion; the first statement

goes only to Paredes’s own claim against DeCianni and not that of

the Group I plaintiffs. Nonetheless, we will have to address the

first statement in any event, and might as well do so now. 

“I was sprayed, but do not recognize who did it” (emphasis

added) is a statement that Paredes, at that particular point in

time, was unable to identify who sprayed him. Paredes’s later

identification of DeCianni as having sprayed him in the face does

not strike us as being so “inherently inconsistent” with earlier

having been unable to identify DeCianni as to constitute a sham.

Identification of the officer who injured him is in part a function

of Paredes’s memory. In Bank of Illinois, the Seventh Circuit

warned against “allow[ing] every failure of memory or variation in

a witness’s testimony to be disregarded as a sham.” 75 F.3d at

1170 (quoting Tippens, 805 F.2d at 953). This variation in

testimony creates an issue of credibility that defendants will be

free to point out at trial, but it does not rise to the level of an
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“inherent inconsistency” that requires it to be disregarded on

summary judgment. 

Paredes’s second statement, which is more important for

purposes of this motion, is that DeCianni sprayed into the house.

Paredes is not one of the Group I plaintiffs, so he does not claim

that he was in the house at the time and he does not claim that he

himself was injured by this particular act of spraying into the

house. Paredes was asked in Interrogatory Number 12 to identify

who caused his particular injuries, not the injuries of others.

Therefore, his statement that he did not recognize who caused his

injuries does not conflict with his statement that he saw DeCianni

spray into the rear door of the house and then shut the door. To

the extent that defendants contend that the statements conflict

simply because Paredes identified DeCianni as doing something in

particular whereas earlier he could not identify him at all, our

analysis regarding Paredes’s first statement applies. 

We move on to Moreno, whose affidavit states in pertinent

part:

3. I was in the backyard holding my son, Jose Adrian

Moreno, and I was sprayed indirectly with mace.

. . .

5. Thereafter, I saw William Peslak go up the back

stairs and I followed him. I saw William Peslak

open the door that enters on the kitchen and spray

mace into the kitchen. I then heard screams.

William Peslak turned to me and sprayed me in the

face with mace and told me to get out. I was

holding my son, Jose Adrian Moreno, then one year

old, in my arms at the time and he was covered

with spray.
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(Affidavit of Maria Alicia Moreno, Ex. 132 of Plaintiffs’ Exhibits

in Support of Plaintiffs’ Table of Defendants.) 

Defendants argue that the affidavit contradicts Moreno’s

deposition testimony (which was provided through an interpreter),

the relevant portion of which is as follows:

Q. Now, you said in your interrogatory answers that

you were sprayed with pepper spray, is that

correct?

A. Not directly, but from what was there, I got it and

also my child did.

. . . 

Q. You said that you weren’t sprayed directly by spray

but that you still had the effects of spray, and

just because we want the record clear, could you

tell us what you meant by that?

A. Well, I was in the back in the yard with my child.

Because my husband was in the front. He was

looking for the other children. I don’t even know

how the policemen got directly throwing the tables.

I was sitting down giving cake to my child. The

policeman came behind Gonzalo with the spray. I

heard that the people were screaming. I heard the

people saying that they were throwing spray, and

they were crying. And I know they throwed the

spray on Gonzalo maybe because they wanted him to

fall down. I don’t know.

I was able to put my baby with his head in the

back. It didn’t fall on my eyes, but it fell--uhhuh--it didn’t fall directly. I closed my eyes. I

went to the side. If I hadn’t covered myself, it

would have hit my eyes. . . . That’s how it

happened.

(Tr. of Maria Alicia Moreno Dep. at 7-9.) 

As with Paredes’s affidavit, there are two statements in

Moreno’s affidavit that must be analyzed separately, and the second

statement is more pertinent to the instant motion: (1) Peslak
- 20 -

9/ Defendants frame the issue as having to compare two “stories”: “This

answer about being indirectly sprayed as she prepared to feed her child cannot

possibly be harmonized with the story about following Officer Peslak, watching

him spray into the house, and then spraying her directly in the face.” (Mem. in

Support of Motion No. 1 at 6.) We do not believe that the above-cited case law,

in which the Seventh Circuit advised application of the sham-issue rule with

caution, permits such a sweeping and imprecise comparison. Comparing “stories”

strays too far into the province of the jury--determining credibility and weight

of the evidence. When deciding whether to apply the rule, we analyze specific

statements to examine whether there are square contradictions. 

sprayed her in the face; and (2) Peslak opened the door leading to

the kitchen and sprayed into the kitchen.9 The first statement

squarely contradicts Moreno’s earlier deposition testimony. Moreno

was asked if she was sprayed, and she responded, “not directly.”

When she was again asked what she meant (prefaced by the

introductory phrase “you said that you weren’t sprayed directly”),

she described feeling the effects of pepper spray that had been

used in the yard. Moreno did not say that she was ever sprayed

directly in the face, let alone sprayed directly by Peslak.

Therefore, the statement that “William Peslak turned to me and

sprayed me in the face with mace” will be stricken from Moreno’s

affidavit and disregarded.

The statement that Peslak sprayed into the kitchen, on the

other hand, does not contradict the above-quoted deposition

testimony. It pertains to a completely different subject than the

manner in which Moreno was sprayed: what Moreno witnessed that

injured others. Defendants do not point to any follow-up questions

they asked Moreno, such as “Did you see anyone else getting

sprayed?”, and we can find none in the transcript excerpt.
- 21 -

Moreno’s statement that Peslak opened the door to the kitchen and

sprayed into the kitchen will not be stricken. 

 

 2. Qualified Immunity 

Officers DeCianni and Peslak’s second argument is that they

are entitled to qualified immunity on the excessive force claims

for the alleged spraying of pepper spray into the house. The

qualified immunity analysis has two parts. We consider (1) whether

the alleged conduct establishes a constitutional violation; and (2)

whether the constitutional standards were “clearly established” at

the time of the events. See Green v. Butler, 420 F.3d 689, 700

(7th Cir. 2005). 

As for the “constitutional violation” prong, plaintiffs

maintain that the spraying of pepper spray into the house violated

the Fourth Amendment. Defendants argue that the Group I plaintiffs

cannot make out a Fourth Amendment claim because they were not

seized and that plaintiffs’ claims therefore fall under the

Fourteenth Amendment. Plaintiffs have a higher burden under the

Fourteenth Amendment analysis because they must prove that the

officers’ conduct “shocks the conscience”; under the Fourth

Amendment, the officers’ conduct is assessed by the “objective

reasonableness” standard. See County of Sacramento v. Lewis, 523

U.S. 833 (1998); Graham v. Connor, 490 U.S. 386 (1989). During
- 22 -

10/ We would add “or were forced inside” to this third category because of

testimony from some plaintiffs that they were not only told to go inside, but

were physically forced to go inside. 

oral argument on defendants’ initial motions for summary judgment,

we indicated that we were likely to reject defendants’ argument

that there was no seizure of the Group I plaintiffs and provided

our reasoning. Our view has not changed. 

Defendants characterize the Group I plaintiffs as falling into

three categories: (1) those who were already inside the house when

the spraying took place; (2) those who went inside the house when

the melee began outside; and (3) those who went inside the house

because they heard a police officer tell people to go inside.10

According to defendants, plaintiffs in the first two categories

cannot make out a Fourth Amendment claim because a seizure occurs

only when an individual’s freedom of movement is terminated by

means that are intentionally applied, and neither officer took any

action to seize plaintiffs who were already inside the house or who

voluntarily went inside the house. (Mem. in Support of Motion No.

1 at 11.) As to the third category of Group I plaintiffs,

defendants contend that there is no evidence that DeCianni or

Peslak “ordered these Plaintiffs into the house or acted in concert

with some other officer who may have ordered the Plaintiffs into

the house.” (Id.) 

A seizure can occur when an officer “by means of physical

force or show of authority has in some way restrained the liberty
- 23 -

of a citizen.” United States v. Mendenhall, 446 U.S. 544, 552

(1980) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)). A

person is “seized” under the Fourth Amendment “only if, in view of

all of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave. Examples

of circumstances that might indicate a seizure, even where the

person did not attempt to leave, would be the threatening presence

of several officers, the display of a weapon by an officer, some

physical touching of the person of the citizen, or the use of

language or tone of voice indicating that compliance with the

officer’s request might be compelled.” Id. at 554. 

Defendants are correct that some of the Group I plaintiffs

were already inside the Durans’ home before the officers arrived.

There is evidence that when the officers arrived, several

additional plaintiffs who were outside in the yard were told by

officers to “get inside the house” and “get the fuck inside.”

Those commands can be heard on the Barajas videotape. At the time,

there were numerous police officers in the yard, outside the yard,

alongside the house, and entering and exiting the house. In

addition, several plaintiffs, including Juan Carlos Uribe Pineda

and Joel Uribe, testified at deposition that they were told to “get

the fuck inside” and that they complied by going inside. Alejandro

Duran testified at deposition that an officer or officers told

several plaintiffs to go inside, that the plaintiffs did not want
- 24 -

to go inside, and that the officers pushed people into the house.

(Tr. of Alejandro Duran Dep. at 123.) Other plaintiffs, including

Jesus Uribe, Juana Soto, and Serafin Rios, state in their

affidavits that they were pushed or forced inside the house by

officers. Officer Miguel Jimenez testified that after he arrived

at the scene and went up the front stairs to the porch, he heard

other officers “asking” people to go inside, and that several

plaintiffs complied. (Tr. of Miguel Jimenez Dep. at 11-12.) 

Once the officers managed to get some of the plaintiffs into

the house, there is evidence that everyone who was inside the house

was instructed to stay in the house. (Tr. of Alejandro Duran Dep.

at 123; Tr. of Adolfo Duran Dep. at 62.) Several Group I

plaintiffs (Alejandro Duran, Alma Rodriguez, Juan Carlos Uribe

Pineda, and Heriberto Uribe Sr.) testified at deposition that

shortly thereafter, pepper spray was then sprayed under the back

door. As discussed supra, Jose Refugio Paredes and Maria Alicia

Moreno have stated in their affidavits that they saw DeCianni and

Peslak spray into the back door (and, in DeCianni’s case, then shut

the door). 

We have no doubt that those plaintiffs who were ordered or

forced inside the house were seized. Their liberty was restrained,

and there is evidence that several of the Mendenhall factors were

present: the threatening presence of numerous police officers; the

physical pushing of some of the plaintiffs into the house; and the
- 25 -

officers’ use of a tone of voice and profanity, which indicated

that compliance with their orders might be compelled. 

Furthermore, given the existence of evidence that the Group I

plaintiffs were instructed by officers to remain inside the house,

whether they were told to go inside or whether they had gone inside

earlier of their own accord, there is no need to categorize the

Group I plaintiffs into three groups as defendants have done. All

of the Group I plaintiffs were seized when they were told to stay

inside, regardless of how the plaintiffs got there. The plaintiffs

who had already been in the house likely could hear what was going

on outside and could see what was happening with the plaintiffs who

were ordered inside. In view of all the circumstances, a

reasonable person in the plaintiffs’ shoes would not have believed

that he or she was free to leave the house. We are not persuaded

by defendants’ contention that the Group I plaintiffs were “just

being moved away from the scene.” (Mem. in Support of Motion No.

1 at 12.) The interior of the Duran house was part of the “scene.”

 The spraying of pepper spray into the house, a small, enclosed

space, constituted another seizure. It was another means of

physical force and a show of authority that restricted plaintiffs’

movement. See Yelverton v. Vargo, Nos. 3:04CV556-T(WO) &

3:04CV562-T(WO), 2005 WL 2179784, at *2 (M.D. Ala. Sept. 7, 2005)

(holding that police officer’s act of pepper-spraying a suspect

constituted a seizure because it was an application of physical
- 26 -

force to restrain movement). A reasonable jury could conclude from

the evidence that the spraying was for the purpose of keeping the

plaintiffs at bay inside the house. (Another conclusion could be

that it was a deliberate action intended to cause harm; that

determination would meet the Fourteenth Amendment standard, see

Lewis, 523 U.S. at 848.) There is evidence that, after the

spraying, the plaintiffs did not leave the house until instructed

by officers to leave or told by officers that they were free to

leave. 

Alternatively, the spraying of pepper spray into the house

could be characterized as an act of force that occurred during a

seizure and thus still must be evaluated under the Fourth

Amendment. Defendants contend that there is no evidence that

DeCianni or Peslak themselves ordered anyone into the house or knew

that other officers had ordered people inside the house. However,

viewing the evidence in the light most favorable to plaintiffs, a

reasonable jury could conclude that the officers were aware that

the Group I plaintiffs had been ordered into the house. At least

one plaintiff, Alma Rodriguez, states that Peslak and DeCianni were

present when she was pushed into the house. 

We conclude that plaintiffs have made a showing that the

spraying of the Group I plaintiffs with pepper spray occurred in

the context of a seizure and constituted a violation of the Fourth

Amendment. 
- 27 -

DeCianni and Peslak contend that even if plaintiffs’

allegations, if true, establish a constitutional violation, there

was no violation of a clearly established right. (Or, in other

words, it would not be clear to the reasonable officer that his

conduct was unlawful.) Defendants assert that “there is no clearly

established law that spraying pepper spray in the doorway to deter

egress during a riot violates the Fourteenth Amendment.” (Mem. in

Support of Motion No. 1 at 15.) 

First, we are analyzing plaintiffs’ claim under the Fourth

Amendment, not the Fourteenth, so defendants’ conduct is evaluated

for objective reasonableness. Moreover, defendants’ framing of the

“clearly established law” inquiry is much too narrow. (Defendants’

characterization of the events as a “riot,” moreover, would likely

be disputed by plaintiffs.) “The salient question is not whether

there is a prior case on all fours with the current claim but

whether the state of the law at the relevant time gave the

defendants fair warning that their treatment of the plaintiff was

unconstitutional.” Green, 420 F.3d at 701 (7th Cir. 2005) (quoting

McGreal v. Ostrov, 368 F.3d 657, 683 (7th Cir. 2004)). At the time

of the events in this case, it was clearly established that “police

officers do not have the right to shove, push, or otherwise assault

innocent citizens without any provocation whatsoever.” Clash v.

Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996). Pepper-spraying is a

type of “assault.” 
- 28 -

A clearly-established constitutional right can be demonstrated

not only by pointing to a closely analogous case that established

a right to be free from the type of force the police officers used

on plaintiffs, but also by “showing that the force was so plainly

excessive that, as an objective matter, the police officers would

have been on notice that they were violating the Fourth Amendment.”

Id. Here, the facts could support a finding that defendants used

plainly excessive force by assaulting plaintiffs with pepper spray

without justification (when those plaintiffs were confined in the

house and not provoking the officers). Under the facts, there was

no reason for the officers to believe that spraying into the house

was justified. We therefore conclude that Officers DeCianni and

Peslak are not shielded by qualified immunity from the Group I

plaintiffs’ claim of excessive force in spraying into the Durans’

house. 

B. Motion for Summary Judgment on Behalf of Individual Police

Officer Defendants with Respect to Plaintiffs on List Two

Ten officers--Dino Vitalo, Waldemar Cruz, Robert DeCianni,

Michael McMahon, David Richert, Jason Stroud, Rhonda Gross, Anthony

Lewandowski, Thomas Krummick, and Scott Harris--move for summary

judgment on the “failure to intervene” claim of the Group II

plaintiffs. (These are the all of the defendants against whom the

Group II plaintiffs assert failure to intervene claims, see

Plaintiffs’ Table of Defendants and the Plaintiffs They Damaged.)

The Group II plaintiffs--Alejandro Duran, Anna Maria Duran, Gonzalo
- 29 -

Duran, Luz Maria Pineda, Ana Rodriguez, Lisbeth Moreno, Ruben

Pineda, Silvia Pineda, Marlene Pineda, Edwin Pineda, Kalyn Pineda,

Lorena Paredes, Jorge Enrique Perez, Sr., and Armando Duran--are

those who claim that they were pepper-sprayed when officers first

entered the yard of the Durans’ home. The Group II plaintiffs

allege that they were sprayed, but they cannot identify their

assailant; the Group II defendants are those officers who were in

the yard. 

“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 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). 

Defendants contend that the only evidence is that they were in

the vicinity when alleged constitutional violations were taking

place and that there is no evidence that any of them were in a

position to prevent the violations from occurring. Defendants

point out that the front yard of the Durans’ home is extremely

small and was teeming with people--as many as seven police officers

and over twenty party guests--which makes it even less likely that
- 30 -

any officer was in a position to know that another officer was

infringing or about to infringe one of the plaintiffs’

constitutional rights and had a realistic opportunity to intervene

to prevent the harm from occurring. 

As with DeCianni & Peslak’s motion, we previously indicated to

the parties our view of this argument. We agree with defendants.

We recognize that the intervention issue is generally an issue for

the jury, see Lanigan v. Village of East Hazel Crest, 110 F.3d 467,

478 (7th Cir. 1997), but the lack of evidence here (considering

that we are treating defendants’ statement of material facts as

having been admitted) is such that no reasonable jury could

conclude that any particular one of these officers had a realistic

ability and opportunity to intervene to prevent any particular

alleged spraying. There is no evidence that any of the spraying of

any plaintiff occurred for anything other than a very short period

of time--seconds--which reduces the window of time available for a

reasonable opportunity to intervene to almost none. More

importantly, there is no evidence regarding exactly where any given

officer was positioned when a particular plaintiff was purportedly

sprayed. There simply is no evidence regarding who failed to

intervene with respect to whom. 

The Group II defendants are entitled to summary judgment on

the Group II plaintiffs’ failure to intervene theory.

C. Motions of Individual Police Officer 

Defendants for Partial Summary Judgment
- 31 -

11/ Defendant Wirack, the jail keeper, did not file a motion for summary

judgment. 

12/ Counts IV, IX, X, and XI are brought against the Town only. 

13/ Plaintiffs’ Table also lists the failure to intervene claims, which we

will not mention further because we have already addressed them supra.

Each of the individual police officers moves for summary

judgment on certain claims which, in their view, are insufficient

to be tried and/or on which they argue qualified immunity applies.11

The following claims of the Fourth Amended Complaint are asserted

against the individual defendants: Counts I (excessive force), II

(false arrest), III (equal protection), V (Hate Crime Act), VI

(malicious prosecution), VII (battery), and VIII (intentional

infliction of emotional distress, or IIED).12 Plaintiffs’ Table of

Defendants, however, effectively (and considerably) narrows which

and whose claims are being asserted against which defendants, and

we have relied on that Table.13 The Table, however, is not part of

the Fourth Amended Complaint, which alleges all of the above-listed

claims against all of the individual defendants. We still need to

make summary judgment determinations regarding those claims.

Plaintiffs’ Table does not contain a column for claims for

violation of the Illinois Hate Crime Act. We are unsure if the

omission signifies that plaintiffs intend not to pursue the claim.

Giving plaintiffs the benefit of the doubt, and in an abundance of

caution, we will examine the evidence regarding the individual
- 32 -

14/ Federal Rule of Civil Procedure 12(f) states that “upon the court’s own

initiative at any time, the court may order stricken from any pleading . . . any

redundant, immaterial, impertinent, or scandalous matter.” 

defendants’ conduct and determine if it creates a genuine issue for

trial as to any plaintiff on the Hate Crime Act claims.

Before addressing each of the individual defendants’ motions,

we will first turn to an issue that applies to all defendants

against whom state-law battery and intentional infliction of

emotional distress claims are asserted. Defendants maintain that

these claims are “odd” in that plaintiffs allege: “The defendants

acted in concert with a common purpose and contributed to the same

indivisible injuries sustained by plaintiffs.” (Fourth Amended

Complaint, ¶¶ 157, 162.) 

In the court’s view, part of this allegation, contained in

Counts VII and VIII, must be stricken as immaterial pursuant to

Federal Rule of Civil Procedure 12(f).14 “Immaterial” matter is

that which has no essential or important relationship to the claim

for relief. See Chicago Printing Co. v. Heidelberg USA, Inc., No.

01 C 3251, 2001 WL 1646567, at *1 (N.D. Ill. Dec. 21, 2001) (Grady,

J.). Plaintiffs did not sustain “indivisible injuries”; each

individual plaintiff allegedly sustained his or her individual

injury allegedly inflicted by one or more particular individual

defendants. The allegation that defendants “contributed to the

same indivisible injuries sustained by plaintiffs” has no essential

relationship to the battery or IIED claims. It constitutes
- 33 -

15/ We recognize that, according to the Fourth Amended Complaint, all

plaintiffs are not asserting Hate Crime Act, malicious prosecution, battery, and

IIED claims (the Pineda Group does not assert Hate Crime Act, battery, or IIED

claims, and only seven plaintiffs assert malicious prosecution claims), but we

will use the term “all plaintiffs” throughout the opinion to refer to all

plaintiffs who assert the particular claim. 

surplusage that serves only to confuse matters. It is therefore

stricken from Paragraphs 157 and 162 of the Fourth Amended

Complaint. 

As for the “acting in concert” component of the allegation,

there is no evidence that the defendants were consciously acting in

concert to injure any particular plaintiff. Therefore, summary

judgment for the individual defendants and against the plaintiffs

will be granted as to the allegations in Paragraphs 157 and 162

(the battery and IIED claims) that defendants “acted in concert

with a common purpose.” 

1. Detective Attilio Fiordirosa

There is no evidence supporting any plaintiff’s claim against

Fiordirosa for excessive force, false arrest, denial of equal

protection, violation of the Illinois Hate Crime Act, battery, or

IIED. Accordingly, summary judgment will be entered in favor of

Fiordirosa and against all plaintiffs15 on Counts I, II, III, V,

VII, and VIII. 

As for Count VI, malicious prosecution, plaintiffs’ Table

reflects that only Gonzalo Duran is asserting a claim against

Fiordirosa for malicious prosecution. Therefore, summary judgment
- 34 -

will be entered in favor of Fiordirosa and against the other

plaintiffs asserting malicious prosecution claims in Count VI. 

The elements of a malicious prosecution claim under Illinois

law are as follows: (1) plaintiff was subjected to judicial

proceedings; (2) for which there was no probable cause; (3) the

defendant instituted or continued the proceedings maliciously; (4)

the proceedings were terminated in the plaintiff’s favor; and (5)

there was an injury. See Reed v. City of Chicago, 77 F.3d 1049,

1051 (7th Cir. 1996). 

Gonzalo Duran’s testimony is that after he was brought to the

police station, he was interrogated in English, which he did not

understand, so he just kept saying “yes.” He was not advised of

his rights in Spanish, nor was a right-to-counsel waiver form

provided in Spanish, nor was a translator provided. Detective

Fiordirosa and Officer Sirgedas asked him to sign a typed statement

(in English) about the evening’s events, and Gonzalo signed the

statement: “He brought it to me. He told me sign it here, and I

did. I didn’t see what it said. I don’t know how to read English.

So why would I read it for. I just signed it. He told me to sign

it here, and I did. That’s it.” (Tr. of Gonzalo Duran Dep. at

127.) (It appears that when Gonzalo says “he,” he is referring to

Fiordirosa.) 

The statement signed by Gonzalo reads in part: “Det’s R.

Sirgedas/Fiordirosa had the opportunity to interivew [sic] a one
- 35 -

Gonzalo Duran . . . in regards to the incident . . . . Gonzalo

stated that he didn’t want to be arrested so he pushed [an] officer

and then started fighting with him. During the altercation another

officer assisted the officer in attempting to place Gonzalo in

cuffs. Gonzalo related that that [sic] during the struggle he bit

both officers on their arms trying to stop from being arrested.”

(Individual Defendants’ Exhibit WW.) 

Thereafter, Gonzalo was prosecuted for battery to and

resisting a police officer. The case was tried to a jury, and

Gonzalo was found not guilty. It appears that the statement he

signed was entered into evidence at the trial; defendants point out

that no motion was made to suppress the statement. At the trial,

Gonzalo testified. Among other things, he stated that he struggled

with two officers and that he bit one of the officers. (He denies

biting the other officer.) 

Fiordirosa was not the arresting officer, nor did he testify

at the criminal trial. The battery was alleged to have been

committed on another officer or officers, so Fiordirosa was not the

complainant. He is simply alleged to have told Gonzalo to sign a

statement containing admissions, which Gonzalo claims he signed

without reading. Plaintiffs characterize the conduct as having

“drafted a false confession” and “fraudulently inducing” or

“coercing” Gonzalo to sign it. In light of Gonzalo’s testimony at

the criminal trial, the only relevant parts of the statement that
- 36 -

could be “false” are the admissions of pushing an officer and

biting one of the officers. 

Even assuming that Gonzalo has demonstrated evidence of a

“false confession,” though, there is no evidence that the statement

was “coerced” or “fraudulently induced.” The fact of custody alone

“has never been enough in itself to demonstrate a coerced

confession.” United States v. Bernitt, 392 F.3d 873, 877 (7th Cir.

2004). And there is no evidence that Fiordirosa physically or

psychologically pressured Gonzalo to sign the statement or that he

promised Gonzalo anything in exchange for his signature. As for

“fraudulent inducement,” we infer that this characterization

somehow refers to the lack of Spanish interpretation or translation

provided to Gonzalo for the waiver-of-counsel form, interrogation,

and the typed statement. There is no evidence that Gonzalo asked

for such services, though, or even that he told Fiordirosa that he

did not understand the waiver form, the questioning, or what had

been typed on the statement form. 

Even if Gonzalo could demonstrate a genuine issue that his

statement was coerced, “it is not clear that coercing a confession

constitutes malicious prosecution on the part of the police.

Prosecutors prosecute; police and detectives may participate in the

prosecution, but they do not engineer the proceedings.” Sneed v.

Rybicki, 146 F.3d 478, 481 (7th Cir. 1998) (citation omitted). 
- 37 -

There is insufficient evidence to demonstrate a genuine issue

of material fact as to whether Fiordirosa “instituted or continued

judicial proceedings” at all, let alone maliciously. Accordingly,

summary judgment in favor of Fiordirosa and against Gonzalo Duran

on Count VI will be granted. 

2. Officer Rudy Sirgedas

There is no evidence supporting any plaintiff’s claim against

Sirgedas for false arrest, denial of equal protection, or violation

of the Illinois Hate Crime Act. Accordingly, summary judgment will

be entered in favor of Sirgedas and against all plaintiffs on

Counts II, III, and V.

According to plaintiffs’ Table, only Gonzalo Duran is

asserting claims for excessive force, malicious prosecution,

battery, and IIED against Sirgedas. Summary judgment will

therefore be entered in favor of Sirgedas and against all other

plaintiffs on Counts I, VI, VII, and VIII.

The evidence regarding the force Sirgedas used on Gonzalo

Duran comes entirely from Sirgedas himself. Sirgedas testified

that after he arrived at the Durans’ home, he heard Officer

DeCianni tell Officer Vitalo that Gonzalo Duran had to be arrested.

From the limited deposition transcript excerpts we have been

provided, it is difficult to tell exactly what Sirgedas saw or did

next. Thereafter, when Vitalo “attempted to place Gonzalo Duran

into custody,” Gonzalo “got on top of Officer Vitalo and started
- 38 -

kicking him, punching him.” Sirgedas then tried to help Vitalo by

hitting Gonzalo’s leg once with his asp and by punching Gonzalo

once in the head with a closed fist before handcuffing Gonzalo.

(Tr. of Rudy Sirgedas Dep. at 25, 28, 39-40.) 

As noted supra, at his criminal trial, Gonzalo admitted that

he was aware that certain officers wanted to arrest him and that he

“walked fast” into the back yard to get away from them. Gonzalo

admitted that he struggled with two officers (apparently Vitalo and

DeCianni). Gonzalo denies that he bit Vitalo, but admits that he

bit DeCianni because DeCianni was choking him and he could not

breathe. Evidently, Gonzalo also denies that he hit or kicked

Vitalo. 

Sirgedas argues that he is entitled to qualified immunity on

Gonzalo’s excessive force claim. Sirgedas apparently concedes that

Gonzalo was seized and that Sirgedas’s conduct is thus evaluated

under the Fourth Amendment “objective reasonableness” standard.

The Fourth Amendment standard for an excessive force claim requires

a jury to decide whether the force used was objectively reasonable

without regard to the officer’s underlying intent or motivation.

Graham, 490 U.S. at 397. “In excessive force claims, the calculus

of reasonableness must embody allowance for 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
- 39 -

situation.” Abdullahi v. City of Madison, No. 04-4114, 2005 WL

2179827, at *5 (7th Cir. 2005) (citation omitted). The

reasonableness of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than in

hindsight. Id. at *5. 

Sirgedas admits that he hit Gonzalo in the leg with an asp and

punched Gonzalo in the head with a closed fist. Gonzalo does not

admit that he resisted arrest to the extent described by the

officers involved, but he does admit that when he realized that

officers wanted to arrest him, he evaded them by walking away and

then struggled with officers and bit one of them when they were

attempting to arrest him. Gonzalo’s position, though, is that

there was no probable cause to arrest him or use force against him

in the first place. 

“[S]ince 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.” Abdullahi, 2005 WL 2179827, at *9 (citation omitted).

Here, the factual particulars of the struggle require determination

and are not entirely clear to us because we have not been provided

all of Sirgedas’s testimony. We do not agree with Sirgedas’s

argument that “there are enough undisputed material facts to

justify the officer’s conduct objectively.” (Sirgedas’s Memorandum
- 40 -

at 3.) The nature of Sirgedas’s use of force--in particular his

admitted punching of Gonzalo in the head with a closed fist--

requires a jury determination of reasonableness. Viewing the facts

in the light most favorable to Gonzalo, we are unable to say that

a reasonable jury could not find Sirgedas’s conduct to be

unreasonable. Accordingly, Sirgedas’s motion for summary judgment

will be denied as to Gonzalo Duran’s claim for excessive force in

Count I. 

On Gonzalo’s battery claim, Sirgedas maintains that under the

Illinois Tort Immunity Act, Gonzalo must show that Sirgedas’s

conduct was “willful and wanton,” i.e., intentional or showing an

utter indifference to the safety of others. In Sirgedas’s view,

Gonzalo has not made a sufficient showing to go to trial. We

disagree. This intent can reasonably be inferred from the alleged

conduct. Sirgedas’s motion for summary judgment is denied as to

Gonzalo Duran’s claim for battery in Count VII. 

The motion for summary judgment will also be denied as to

Gonzalo’s claim for IIED in Count VIII. Sirgedas contends that

Moreno does not demonstrate evidence of severe emotional distress.

We believe that it can reasonably be inferred from the nature of

the alleged conduct that such distress resulted. 

That leaves Gonzalo’s claim for malicious prosecution. The

evidence on this claim is the same as the evidence on the malicious

prosecution claim asserted by Gonzalo against Detective Fiordirosa,
- 41 -

described supra. For the same reasons expressed supra with respect

to Fiordirosa, there is insufficient evidence to demonstrate a

genuine issue of material fact as to whether Sirgedas “instituted

or continued judicial proceedings” against Gonzalo at all, let

alone maliciously. Accordingly, summary judgment in favor of

Sirgedas and against Gonzalo Duran on Count VI will be granted. 

 3. Officer Anthony Lewandowski

There is no evidence supporting any plaintiff’s claim against

Lewandowski for false arrest, denial of equal protection, or

malicious prosecution. Accordingly, summary judgment will be

entered in favor of Lewandowski and against all plaintiffs on

Counts II, III, and VI. 

Summary judgment will also be entered in favor of Lewandowski

and against all plaintiffs except for Florina Pineda, Manuel Uribe

Palacios, and Raquel Uribe on Counts I, V, VII, and VIII because

there is no evidence supporting these claims. 

According to plaintiffs’ Table, there is evidence supporting

excessive force, battery, and intentional infliction of emotional

distress (IIED) claims against Lewandowski by plaintiffs Florina

Pineda, Manuel Uribe Palacios, and Raquel Uribe. The Table does

not have a column relating to the claim in Count V for violation of

the Illinois Hate Crime Act, but that count alleges that the

individual defendants “did commit an assault and battery upon

plaintiffs by reason of their ethnicity.” (Fourth Amended
- 42 -

Complaint, ¶ 144.) Because a battery claim is being asserted by

these plaintiffs against Lewandowski, we will presume that the Hate

Crime Act claim is being asserted as well. 

Raquel Uribe states in her affidavit in pertinent part:

4. Thomas Krummick entered the house with Dino Vitalo,

Anthony Lewandowski and other officers. Dino

Vitalo and Anthony Lewandowski sprayed me, my

mother, Florina Pineda, my father, Manuel Uribe

Sr., with pepper spray.

(Affidavit of Raquel Uribe, Ex. 156 of Plaintiffs’ Exhibits in

Support of Plaintiffs’ Table of Defendants.) 

Lewandowski contends that Raquel Uribe’s affidavit should be

disregarded because in her earlier answers to interrogatories, when

asked to identify each person she claimed to be responsible for her

injuries, Uribe stated that she relied on identification made by

other plaintiffs. As with the affidavit of Jose Refugio Paredes,

the statement in Uribe’s affidavit is not a square contradiction of

her earlier reliance on other plaintiffs’ identification. Rather,

it goes to her credibility and the weight of the evidence.

Lewandowski’s argument is rejected. 

Lewandowski also argues that the affidavit is a contradiction

of a “judicial admission” made in the first round of summary

judgment briefing. This argument is also rejected. According to

Lewandowski, he “had alleged that no Plaintiffs had evidence that

he used excessive force that night and they admitted this was

true.” (Lewandowski’s Memorandum at 4.) This statement is a
- 43 -

mischaracterization of what was admitted, namely, that no plaintiff

who had responded to Interrogatory Number 12, which asked

plaintiffs to identify who was responsible for their injuries, had

identified Lewandowski, and that no plaintiff had testified at

deposition and had identified Lewandowski as having used excessive

force. Defendants did not ask plaintiffs to admit that “no

plaintiffs had evidence that [Lewandowski] used excessive force

that night,” and plaintiffs made no such admission. 

The affidavit of Raquel Uribe is evidence creating a genuine

issue of material fact on the claims of plaintiffs Florina Pineda,

Manuel Uribe Palacios, and Raquel Uribe against Anthony Lewandowski

for excessive force and battery. Lewandowski contends that battery

requires proof of intent to cause harm and that there is no

evidence of such intent. However, we believe that a reasonable

jury could infer the intent from the alleged conduct. Therefore,

Lewandowski’s motion for summary judgment is denied as to those

plaintiffs on Counts I and VII. 

To demonstrate a violation of the Illinois Hate Crime Act, 720

ILCS 5/12-7.1, plaintiffs must show that the alleged battery was

committed by reason of their, inter alia, race, color, creed,

ancestry, or national origin. (Plaintiffs allege that it was by

reason of their “ethnicity,” which could encompass any of these

concepts. We will refer to “ethnicity” for simplicity.) There is

no evidence that the purported battery by Lewandowski on these
- 44 -

three plaintiffs was motivated by plaintiffs’ ethnicity; there is

no evidence that Lewandowski used racial slurs or otherwise

referred to plaintiffs’ ethnicity (as other defendants are alleged

to have done). Summary judgment in favor of Lewandowski and

against plaintiffs Florina Pineda, Manuel Uribe Palacios, and

Raquel Uribe on the Hate Crime Act claim will be granted. 

Florina, Manuel, and Raquel also claim IIED against

Lewandowski. The elements of an intentional infliction of

emotional distress claim under Illinois law are: (1) extreme and

outrageous conduct by the defendant; (2) the defendant’s intent for

his conduct to inflict severe emotional distress or knowledge that

there was a high probability that his conduct would do so; and (3)

severe emotional distress caused by the defendant’s conduct. See

Rekosh v. Parks, 735 N.E.2d 765, 772 (Ill. App. Ct. 2000).

Lewandowski asserts that no plaintiff presents evidence of severe

emotional distress. We believe that it can reasonably be inferred

from the nature of the alleged conduct that such distress resulted.

Lewandowski’s motion for summary judgment against Florina Pineda,

Manuel Uribe Palacios, and Raquel Uribe on Count VIII is thus

denied.

4. Officer Thomas Kratochvil

There is no evidence supporting any plaintiff’s claim against

Kratochvil for false arrest, denial of equal protection, or

malicious prosecution. Accordingly, summary judgment will be
- 45 -

16/ Eduardo Gudino was a neighbor of the Durans and became part of the

incident when he went outside with his video camera to see and record what was

happening. Plaintiffs’ spoliation claim is based in part on their allegation

that Gudino’s videotape was confiscated by police officers and then lost or

destroyed. Gudino is a plaintiff in related litigation against some of the same

defendants. 

entered in favor of Kratochvil and against all plaintiffs on Counts

II, III, and VI. 

Plaintiffs’ Table reflects that only Alejandro Duran and Rene

Moreno Jr. are asserting claims against Kratochvil for excessive

force and battery (and, by inference, for violation of the Illinois

Hate Crime Act) and IIED. Thus, summary judgment will be entered

in favor of Kratochvil and against all other plaintiffs on Counts

I, V, VII, and VIII.

We cannot discern what evidence supports Alejandro Duran’s

claims against Kratochvil. The only reference to Kratochvil in

Alejandro Duran’s Statement of Facts in Support of Plaintiffs’

Table of Defendants is Eduardo Gudino’s testimony that he witnessed

Kratochvil “in the entrance to the [Durans’] house--in the

entryway, and he was like keeping everybody in the house so they

wouldn’t get out.”16 (Tr. of Eduardo Gudino Dep. at 24.) (Gudino

was not asked a follow-up question regarding what movements

Kratochvil was actually making, how he was standing, or why Gudino

concluded that he was “keeping everybody in.”) This evidence is

insufficient to create a genuine issue for trial on Alejandro

Duran’s claims against Kratochvil. Summary judgment in favor of
- 46 -

17/ We limited defendants to taking twenty depositions. 

Kratochvil and against Alejandro Duran on Counts I, V, VII, and

VIII will be granted.

As for Rene Moreno Jr., he was eleven years old at the time of

the incident. He states in his answers to interrogatories and in

his affidavit that when he was standing at the bottom of the stairs

to the front door, Kratochvil sprayed him in the face with pepper

spray--primarily in his eyes-and that Kratochvil would not let him

go to an ambulance. Rene Moreno Jr. was not deposed.17

This evidence creates a fact issue on Moreno’s battery claim.

Kratochvil argues that under the Illinois Tort Immunity Act, Moreno

must show that Kratochvil’s conduct was “willful and wanton,” i.e.,

intentional or showing an utter indifference to the safety of

others. In Kratochvil’s view, Moreno has not made a sufficient

showing to go to trial. We disagree. This intent can reasonably

be inferred from the alleged conduct. Kratochvil’s motion for

summary judgment is denied as to Rene Moreno Jr.’s claim for

battery in Count VII. 

The motion for summary judgment will also be denied as to

Moreno’s claim for IIED in Count VIII. Kratochvil contends that

Moreno does not demonstrate evidence of severe emotional distress.

We believe that it can reasonably be inferred from the nature of

the alleged conduct that such distress resulted. 
- 47 -

18/ Under the facts, Moreno was not seized, so we analyze the excessive

force claim under the Fourteenth Amendment rather than the Fourth Amendment.

The evidence does not, however, create an issue of fact on

Moreno’s Hate Crime Act claim (assuming he is asserting one).

There is no evidence that Kratochvil’s alleged conduct was

motivated by Moreno’s ethnicity. Summary judgment in favor of

Kratochvil and against Moreno on Count V will be granted. 

Kratochvil contends that he is entitled to qualified immunity

on Moreno’s excessive force claim. We are unpersuaded. The facts

alleged, taken in the light most favorable to Moreno, show that

Kratochvil violated Moreno’s Fourteenth Amendment right to be free

from the use of excessive force.18 Under the Fourteenth Amendment

substantive due process standard, we ask whether the alleged

conduct “shocks the conscience.” Lewis, 523 U.S. at 846. Whether

conduct shocks the conscience depends on the particular factual

circumstances of the case. “In situations where actual

deliberation is possible, conduct that is ‘deliberately

indifferent’ may in certain circumstances ‘shock the conscience’;

in emergency situations (such as high-speed chases), however,

conduct ‘shocks the conscience’ only if there was intent to cause

harm.” Carter v. Simpson, 328 F.3d 948, 952 (7th Cir. 2003)

(citing Lewis, 523 U.S. at 849). Kratochvil maintains that he was

confronted with a “riot,” a “rapidly evolving, fluid, and

potentially dangerous predicament” and that therefore Moreno must
- 48 -

show “intent to cause harm.” (Kratochvil’s Memorandum at 5.) 

Even assuming that Moreno has the higher burden of

demonstrating “intent to cause harm” rather than “deliberate

indifference,” Kratochvil is not entitled to qualified immunity.

Here, we allegedly have an eleven-year-old standing at the foot of

the front stairs who was sprayed in the eyes with pepper spray and

told he could not seek help from an ambulance. In our view, a

reasonable jury could find on these facts that Kratochvil’s alleged

conduct was done only to cause harm. Accordingly, Kratochvil’s

motion for summary judgment is denied as to Rene Moreno Jr.’s claim

for excessive force in Count I. 

5. Officer David Richert

There is no evidence supporting any plaintiff’s claim against

Richert for false arrest or malicious prosecution. Accordingly,

summary judgment will be entered in favor of Richert and against

all plaintiffs on Counts II and VI. 

Plaintiffs’ Table reflects that as for excessive force and

battery (and, by extrapolation, for violation of the Illinois Hate

Crime Act), only Adolfo Duran is asserting a claim against Richert.

Therefore, summary judgment will be entered in favor of Richert and

against all other plaintiffs on Counts I, V, and VII. 

The Table also reflects that only Alejandro Duran and Adolfo

Duran are asserting IIED claims against Richert. Summary judgment
- 49 -

will therefore be entered in favor of Richert and against all other

plaintiffs on Count VIII.

 Adolfo Duran himself did not testify that Richert used force

against him. The only evidence cited by Adolfo on his excessive

force, battery, and IIED claims against Richert is the testimony of

Florentina Perez that Richert was spraying people, but that she

could not identify whom he was spraying and that Richert “went to

help [Officer Peslak] with Adolfo.” (Tr. of Florentina Perez Dep.

at 70-71.) (Florentina had testified that Peslak was hitting and

kicking Adolfo and put handcuffs on him.) This evidence is

insufficient to create a genuine issue of fact that Richert used

any force on, or battered, Adolfo (and thus as to whether Richert

engaged in conduct that would form a basis for a “hate crime” as

defined in the Illinois Hate Crime Act) or engaged in any extreme

and outrageous conduct that caused Adolfo emotional distress.

Accordingly, summary judgment in favor of Richert and against

Adolfo Duran on Counts I, V, VII, and VIII will be granted. In

view of our holding, we need not reach Richert’s qualified immunity

argument. 

According to Plaintiffs’ Table, Alejandro Duran asserts an

IIED claim against Richert. The claim is evidently based on

Richert’s alleged use of racial slurs. At his deposition, however,

Alejandro did not identify Richert as one of the officers who had

used racial slurs. Because there is no evidence of conduct by
- 50 -

Richert that would form the basis of an IIED claim, summary

judgment for Richert and against Alejandro Duran will be granted on

Count VIII.

Plaintiffs’ Table states that the remaining claim asserted

against Richert is an equal protection claim by plaintiffs

Alejandro Duran, Luz Maria Pineda, Lisbeth Moreno, Ruben Pineda,

Silvia Pineda, Marlene Pineda, Edwin Pineda, Kalyn Pineda, Lorena

Paredes, and Jorge Enrique Perez Sr. The basis for this claim is

unclear. Because these plaintiffs constitute a majority of the

Group II plaintiffs, we surmise that it is based on the alleged

failure to intervene and/or Richert’s alleged use of force on

unspecified plaintiffs, in conjunction with the alleged use of

racial slurs by some officers. We have granted defendants summary

judgment on the failure to intervene claim. Moreover, there is no

evidence that Richert used force on any particular person or used

any racial slurs. Summary judgment in favor of Richert and against

all plaintiffs on the equal protection claim, Count III, will be

granted. 

6. Officer Jason Stroud

There is no evidence supporting any plaintiff’s claim against

Stroud for excessive force, false arrest, violation of the Illinois

Hate Crime Act, malicious prosecution, or battery. Accordingly,

summary judgment will be entered in favor of Stroud and against all

plaintiffs on Counts I, II, V, VI, and VII. 
- 51 -

As for denial of equal protection, plaintiffs’ Table states

that this claim is asserted against Stroud by plaintiffs Alejandro

Duran, Luz Maria Pineda, Lisbeth Moreno, Ruben Pineda, Silvia

Pineda, Marlene Pineda, Edwin Pineda, Kalyn Pineda, Serafin Rios,

Lorena Paredes, and Jorge Enrique Perez Sr. These plaintiffs were

outside in the yard and are the same plaintiffs who assert this

claim against Officer Richert, with the addition of Serafin Rios.

It appears that the claim is based on Stroud’s admission that he

used pepper spray on unidentified people and hit unidentified

people with his asp. (No witness identifies Stroud as having hit

or sprayed particular people.) The claim is evidently also based

on Alejandro Duran’s testimony that Stroud called him a “Mexican

shit” and other plaintiffs in the yard “Mexican shits.” (Tr. of

Alejandro Duran Dep. at 143.) Because there is no evidence that

Stroud hit or sprayed any particular plaintiff, and because we have

entered summary judgment for defendants on the failure to intervene

claim, there is no factual predicate for an equal protection claim

against Stroud. “[D]erogatory references to racial or ethnic

background by themselves . . . do not rise to the level of a

deprivation of constitutional rights.” 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). Summary judgment for

Stroud and against all plaintiffs will be entered on Count III. 
- 52 -

The sole plaintiff asserting an IIED claim against Stroud is

Alejandro Duran. Therefore, summary judgment will be entered in

favor of Stroud and against all other plaintiffs on Count VIII. 

The basis for Alejandro’s IIED claim is evidently that Stroud

allegedly called him a “Mexican shit.” Given the great show of

authority by the officers at the Duran party, whether Stroud’s

alleged conduct rises to the level of truly “extreme and

outrageous” conduct required for an IIED claim under Illinois law

is a close question. See generally Jackson v. Local 705, Int’l

Bhd. of Teamsters, No. 95 C 7510, 2002 WL 460841, at *16 (N.D. Ill.

Mar. 26, 2002) (discussing IIED claims based on racial slurs and

noting that outrageousness must be determined in view of all the

facts surrounding use of a slur). In any event, Alejandro must

demonstrate that he suffered severe emotional distress caused by

Stroud’s alleged conduct. Unlike the alleged acts of pepperspraying, we do not believe that severe emotional distress can be

inferred simply from the alleged conduct. Because there is no

evidence that Alejandro suffered severe emotional distress as a

result of what Stroud allegedly said, summary judgment in favor of

Stroud and against Alejandro Duran on Count VIII will be granted.

7. Officer Scott Harris

There is no evidence supporting any plaintiff’s claim against

Harris for denial of equal protection or malicious prosecution.
- 53 -

19/ Plaintiffs claim that Harris assisted in the arrest of a person on the

porch and cite excerpts from Harris’s testimony. This characterization misstates

Harris’s testimony. 

Accordingly, summary judgment will be entered in favor of Harris

and against all plaintiffs on Counts III and VI. 

According to plaintiffs’ Table, only Armando Duran is

asserting claims against Harris for excessive force and battery

(and, by extrapolation, for violation of the Illinois Hate Crime

Act), false arrest, and IIED. Therefore, summary judgment will be

entered in favor of Harris and against all other plaintiffs on

Counts I, II, V, VII, and VIII. 

The only evidence cited by Armando Duran in support of his

claims against Harris is that Harris testified that he “attempt[ed]

to assist” fellow officers in a “scuffle” between officers and

party guests that occurred on the front porch by pushing people

away from the officers. (Tr. of Scott Harris Dep. at 15-16, 20.)

Plaintiffs do not provide any evidence that Harris, as opposed to

other officers, used force on or battered Armando, or any other

particular plaintiff, for that matter. There is also no evidence

that Harris participated in the arrest of Armando or, for that

matter, engaged in any conduct with respect to Armando

specifically.19 Accordingly, summary judgment for Harris and

against Armando Duran will be granted on Counts I, II, V, VII, and

VIII. In view of our holding, we need not reach Harris’s qualified

immunity argument. 
- 54 -

8. Officer Miguel Jimenez

There is no evidence supporting any plaintiff’s claim against

Jimenez for denial of equal protection or malicious prosecution.

Accordingly, summary judgment will be entered in favor of Jimenez

and against all plaintiffs on Counts III and VI. 

According to plaintiffs’ Table, only Armando Duran is

asserting claims against Jimenez for excessive force and battery

(and, by extrapolation, for violation of the Illinois Hate Crime

Act), false arrest, and IIED. Therefore, summary judgment will be

entered in favor of Jimenez and against all other plaintiffs on

Counts I, II, V, VII, and VIII. 

As the basis for his claims against Jimenez, Armando Duran

relies solely on the testimony of Jimenez and Officer McMahon. The

only relevant testimony from Jimenez is that he went up to the

front porch of the Duran house after he arrived at the scene,

stayed briefly, and then went to the back yard. As for McMahon, he

testified at the criminal trial that he was struggling with Armando

on the front porch, fell into the front window with Armando, and

sprayed Armando with pepper spray. He stated that Officers Jimenez

and Kirby were on the front porch with him at the time of this

struggle. 

This evidence, which is basically that Jimenez was merely on

the front porch while McMahon was struggling with Armando, does not

create a genuine issue on any of Armando’s claims against Jimenez.
- 55 -

There is no evidence that Jimenez engaged in any conduct that would

form the basis of an excessive force, battery, violation of the

Hate Crime Act, IIED, or false arrest claim. Summary judgment in

favor of Jimenez and against Armando Duran will be granted on

Counts I, II, V, VII, and VIII. 

9. Officer Michael Kirby

There is no evidence supporting any plaintiff’s claim against

Kirby for denial of equal protection or malicious prosecution.

Accordingly, summary judgment will be entered in favor of Kirby and

against all plaintiffs on Counts III and VI. 

Plaintiffs’ Table states that only Armando Duran is asserting

claims against Kirby for excessive force and battery (and, by

extrapolation, for violation of the Illinois Hate Crime Act), false

arrest, and IIED. Therefore, summary judgment will be entered in

favor of Kirby and against all other plaintiffs on Counts I, II, V,

VII, and VIII. 

Armando Duran claims that, like Jimenez, Kirby was on the

front porch while McMahon was struggling with him. To the extent

Armando’s claims are based on this conduct, it does not form a

basis for any of the claims, and summary judgment in favor of Kirby

and against Armando is appropriate. 

Armando alleges that Kirby engaged in additional conduct as

well. Kirby testified that during the course of events, he saw a

man, identified by others as Armando, throw a beer can at McMahon.
- 56 -

At some point, Armando put his hands on his hips as if he were

going to draw a weapon, so Kirby “found cover” by stepping next to

a tree and then drew his gun. The man pulled out a cell phone and

started laughing, and Kirby then returned his gun to his holster.

(Tr. of Michael Kirby Dep. at 43-44.) 

Armando’s account is different. His testimony is that he

yelled, “Why are you doing that?” at one of the officers after

Armando’s wife was sprayed with pepper spray, and the officer then

started following him with pepper spray. Armando then tried to go

up the front stairs to go inside the house, and before two other

officers handcuffed him, Kirby “told me to raise my hands aiming at

me with the gun like this and said put your hands up or I kill you.

. . . With his two hands like this, he raised the gun at me. So I

raised my hands. I didn’t offer resistance of any kind.” (Tr. of

Armando Duran Dep. at 67.) Armando denies that he threw anything

at the officers, had anything in his hands, or reached for

anything. 

Under Illinois law, a battery is defined as the unauthorized

touching of the person of another. See Curtis v. Jaskey, 759

N.E.2d 962, 964 (Ill. App. Ct. 2001). There is no evidence that

Kirby touched Armando. Thus, summary judgment in favor of Kirby

and against Armando will be granted on Count VII.

To demonstrate a violation of the Hate Crime Act, a simple

assault can be shown. However, a plaintiff also has to show that
- 57 -

the assault was committed by reason of another person’s ethnicity.

There is no evidence that Kirby was so motivated in committing the

alleged conduct. Summary judgment in favor of Kirby and against

Armando Duran on Count V will therefore be granted.

Viewing the allegations in the light most favorable to

Armando, it appears that his testimony is that the gun-pointing

occurred in the context of a seizure--that Kirby pointed the gun at

him without provocation and then other officers handcuffed and

arrested him. He has thus made a showing that Kirby’s conduct

occurred in the context of a seizure and constituted a violation of

the Fourth Amendment. Kirby contends that he is entitled to

qualified immunity, but we disagree. At the time of the alleged

use of force, it was clearly established that “police officers do

not have the right to shove, push, or otherwise assault innocent

citizens without any provocation whatsoever.” Clash, 77 F.3d at

1048. It was also clear that “[a]n officer’s use of deadly force

to apprehend a suspect is unreasonable, absent probable cause that

the suspect is dangerous or has committed a violent crime.”

McDonald v. Haskins, 966 F.2d 292, 294-95 (7th Cir. 1992). Under

this law and the evidence cited by plaintiffs, it was unreasonable

for Kirby to have pointed a gun at Armando when Armando was

unarmed, had nothing in his hand, and Kirby had no reason to

suspect that Armando was a dangerous criminal. We conclude that

Kirby is not shielded by qualified immunity from Armando’s claim of
- 58 -

excessive use of force. Kirby’s motion for summary judgment will

be denied as to Armando Duran’s claim for excessive force in Count

I.

We are left with Armando’s IIED claim. Kirby argues that the

evidence does not show that Kirby intended to or did cause him

severe emotional distress. We believe that it can be inferred from

the alleged conduct that severe emotional distress resulted. As

for the intent necessary to prove an IIED claim under Illinois law,

knowledge “that there was a high probability that” certain conduct

would cause severe emotional distress is sufficient. Rekosh, 735

N.E.2d at 772. On the facts as alleged by Armando, we believe that

it could be reasonably inferred by a jury that Kirby knew that

there was a high probability that his conduct would cause such

distress. Kirby’s motion for summary judgment on Armando Duran’s

IIED claim in Count VIII is therefore denied.

Kirby contends in a single sentence that he is entitled to

summary judgment on Armando’s claim for false arrest, but fails to

explain why. Kirby’s motion for summary judgment on Armando

Duran’s false arrest claim in Count II is therefore denied. 

10. Officer Rhonda Gross

There is no evidence supporting any plaintiff’s claim against

Gross for malicious prosecution. Accordingly, summary judgment

will be entered in favor of Gross and against all plaintiffs on

Count VI. 
- 59 -

20/ We reject Gross’s argument that we should disregard those statements

in plaintiffs’ answers to interrogatories simply identifying “a female officer.”

The evidence is that Gross was the only female officer at the scene. Therefore,

it can reasonably be inferred that those plaintiffs who allege that a female

officer sprayed them are alleging that Gross sprayed them. 

21/ In her answers to interrogatories, Maria Alicia Moreno identified

Officers Peslak and Gross as having sprayed her. However, in her affidavit,

Moreno identifies only Peslak as having sprayed her directly, and states that in

the yard, she was not sprayed directly but merely felt the effects of pepper

spray indirectly. It does not appear that when deposed, Moreno identified Gross

as having sprayed her directly. Accordingly, we will consider Moreno’s prior

allegation that Gross sprayed her directly as having been abandoned. 

Plaintiffs’ Table states that the following nine plaintiffs

assert excessive force claims against Gross: Daniel Pineda,

Graciela Pineda, Florentina Perez (adult), Florentina Perez

(child), Isela Perez, Jorge Enrique Perez Jr., Jessica Perez, Maria

Alicia Moreno, and Maria Marisol Rico Duran. Summary judgment will

be entered in favor of Gross and against all other plaintiffs on

Count I.

The first seven of the above-listed plaintiffs maintain that

Gross (or a female officer, and Gross was evidently the only female

officer present) sprayed them with pepper spray without

justification.20 Maria Alicia Moreno states that when she tried to

go into the garage, Gross “pulled” her and ordered her to remain in

the back yard and to “shut up, otherwise I’ll arrest you.”21 (Tr.

of Maria Alicia Moreno Dep. at 12.) Maria Marisol Rico Duran

asserts that Gross pushed her and yelled at her. 

Gross contends that she is entitled to qualified immunity on

these excessive force claims. We are unpersuaded, for the same

reasons expressed in our discussion regarding Officer Kratochvil.
- 60 -

22/ The facts alleged by Maria Alicia Moreno (that she was “pulled” and

ordered to remain in the back yard) may constitute a seizure and thus a Fourth

Amendment violation, but we will assume for purposes of analyzing the qualified

immunity issue that Moreno can demonstrate only a Fourteenth Amendment violation.

The facts alleged show that plaintiffs’ Fourteenth Amendment rights

were violated, and plaintiffs must show that Gross’s conduct

shocked the conscience.22 And assuming that plaintiffs must show

that Gross intended to cause them harm rather than deliberate

indifference, we believe that Gross is not entitled to qualified

immunity. These plaintiffs, who are mostly women and children,

were standing the yard, and Gross allegedly sprayed them in the

face with pepper spray, or pushed or grabbed them. In the court’s

view, a jury could reasonably find on these facts that Gross’s

conduct was done to cause harm. Gross’s motion for summary

judgment is denied as to these plaintiffs’ claims for excessive

force in Count I. 

According to plaintiffs’ Table, only these plaintiffs (except

for Maria Marisol Rico Duran) are asserting battery and IIED claims

against Gross. Summary judgment will be entered in favor of Gross

and against all other plaintiffs on Counts VII and VIII. 

On the battery and IIED claims, Gross maintains that this

group of eight plaintiffs cannot demonstrate intent to cause harm

or that severe emotional distress resulted from her alleged

conduct. We disagree; such intent and such resulting distress can

be inferred from the alleged conduct. Gross’s motion for summary
- 61 -

judgment on these plaintiffs’ claims for battery and IIED in Counts

VII and VIII will be denied. 

Daniel Pineda is the only plaintiff asserting an equal

protection claim against Gross, and we presume that he is the only

plaintiff asserting a Hate Crime Act claim against Gross as well.

Summary judgment will be entered in favor of Gross and against all

other plaintiffs on Counts III and V. 

It appears that Daniel’s claim against Gross is not based on

anything Gross said, but rather that Officer Vitalo called Daniel

a “Mexican motherfucker” and that Gross then sprayed him in the

face. We do not believe that Vitalo’s alleged comment bears on the

motivations of Gross, nor are we aware of any precedent that would

allow us to impute the comment to Gross. Summary judgment will be

entered in favor of Gross and against Daniel Pineda on Counts III

and V. 

As for false arrest, only Joel Uribe and Heriberto Uribe Sr.

are asserting claims against Gross. Therefore, summary judgment

will be entered in favor of Gross and against all other plaintiffs

on Count II. Gross does not move for summary judgment on Joel

Uribe and Heriberto Uribe Sr.’s false arrest claims.

11. Officer Waldemar Cruz

There is no evidence supporting any plaintiff’s claim against

Cruz for false arrest or malicious prosecution. Accordingly,
- 62 -

summary judgment will be entered in favor of Cruz and against all

plaintiffs on Counts II and VI.

Plaintiffs’ Table states that the following six plaintiffs

assert excessive force claims against Cruz: Gonzalo Duran Jr.,

Jose Manuel Uribe Jr., Jose Manuel Uribe, Julia de la Cruz, Joel

Rico Duran, and Jesus Rico Duran. Summary judgment will be entered

in favor of Cruz and against all other plaintiffs on Count I. 

All of the above-listed plaintiffs allege that Cruz sprayed

them with pepper spray. We are unpersuaded by Cruz’s first

argument that we should disregard the affidavits of the plaintiffs

who allege that Cruz sprayed them. Our analysis of the affidavit

of Jose Refugio Paredes, which is discussed supra regarding Motion

No. 1, applies. A later identification of Cruz as having sprayed

plaintiffs does not strike us as being so “inherently inconsistent”

with an earlier inability to identify Cruz as to constitute a sham.

Cruz contends that he is entitled to qualified immunity on the

excessive force claims. We reject this argument for the same

reasons we rejected Officer Gross’s qualified immunity argument.

A jury could reasonably find on the facts that Cruz’s spraying of

plaintiffs was done to cause harm. Cruz’s motion for summary

judgment is denied as to the above-listed plaintiffs’ claims for

excessive force in Count I. 

The same plaintiffs, except for Joel Rico Duran, are also

asserting battery claims against Cruz. Summary judgment will be
- 63 -

entered in favor of Cruz and against all other plaintiffs on Count

VII. The same plaintiffs who assert battery claims, with the

addition of Alejandro Duran, assert IIED claims against Cruz.

Summary judgment will be entered in favor of Cruz and against all

other plaintiffs on Count VIII. 

With regard to Alejandro Duran’s IIED claim, it appears that

it is based on Cruz allegedly calling Alejandro a “fucking Mexican”

and/or a “Mexican shit.” (Tr. of Alejandro Duran Dep. at 142.)

Our analysis of Alejandro’s IIED claim against Officer Stroud

applies to his IIED claim against Cruz. Because there is no

evidence that Alejandro suffered severe emotional distress as a

result of what Cruz allegedly said, summary judgment in favor of

Cruz and against Alejandro Duran on Count VIII will be granted. 

Cruz contends that the rest of the plaintiffs who assert

battery and IIED claims against him cannot demonstrate intent to

cause harm or that severe emotional distress resulted from his

alleged conduct. We disagree; such intent and such resulting

distress can be inferred from the alleged conduct. Cruz’s motion

for summary judgment on the above-listed plaintiffs’ claims for

battery and IIED in Counts VII and VIII will be denied.

Plaintiffs’ Table states that the following plaintiffs assert

an equal protection claim against Cruz, and we presume that they

are the only plaintiffs asserting Hate Crime Act claims against

Cruz as well: Alejandro Duran, Gonzalo Duran Jr., Luz Maria
- 64 -

Pineda, Lisbeth Moreno, Ruben Pineda, Silvia Pineda, Marlene

Pineda, Edwin Pineda, Kalyn Pineda, Jose Manuel Uribe Jr., Julia de

la Cruz, Lorena Paredes, Jorge Enrique Perez Sr., Joel Rico Duran,

Jesus Rico Duran, Manuel Uribe Palacios, and Jose Manuel Uribe.

Summary judgment will be entered in favor of Cruz and against all

other plaintiffs on Counts III and V. 

Alejandro Duran, Luz Maria Pineda, Lisbeth Moreno, Ruben

Pineda, Silvia Pineda, Marlene Pineda, Edwin Pineda, Kalyn Pineda,

Lorena Paredes, and Jorge Enrique Perez, Sr. are all Group II

plaintiffs. The conduct underlying those plaintiffs’ equal

protection and Hate Crime Act claims against Cruz is an alleged

failure to intervene. We have granted defendants’ motion for

summary judgment on the failure to intervene claims, so summary

judgment in favor of Cruz and against these plaintiffs on Counts

III and V will be granted.

That leaves the following plaintiffs with claims against Cruz

in Counts III and V: Gonzalo Duran Jr., Jose Manuel Uribe Jr.,

Julia de la Cruz, Joel Rico Duran, Jesus Rico Duran, Jose Manuel

Uribe, and Manuel Uribe Palacios. The conduct underlying the first

six plaintiffs’ claims is the alleged pepper-spraying. The conduct

underlying Manuel’s claim is his allegation that he was “sprayed

indirectly” with pepper spray; he does not even allege that Cruz

was the “sprayer.” Accordingly, summary judgment in favor of Cruz

and against Manuel Uribe Palacios on Counts III and V is granted.
- 65 -

Regarding the other six plaintiffs, the issue is whether there

is evidence from which a reasonable jury could conclude that Cruz

allegedly sprayed plaintiffs because of their ethnicity. The only

evidence offered by plaintiffs is Alejandro Duran’s testimony that

Cruz called him a “fucking Mexican” or a “Mexican shit.” There is

no evidence that the alleged comments were made while Cruz was

allegedly pepper-spraying the six plaintiffs or standing by those

plaintiffs. The alleged comments directed at Alejandro are not

evidence of Cruz’s intent regarding his treatment of the other

plaintiffs. Accordingly, summary judgment in favor of Cruz and

against Gonzalo Duran Jr., Jose Manuel Uribe Jr., Julia de la Cruz,

Joel Rico Duran, Jesus Rico Duran, and Jose Manuel Uribe will be

granted on Counts III and V. 

12. Sergeant Thomas Krummick

There is no evidence supporting any plaintiff’s claim against

Krummick for malicious prosecution. Summary judgment will

therefore be entered in favor of Krummick and against all

plaintiffs on Count VI.

Plaintiffs’ Table states that the following fourteen

plaintiffs assert excessive force claims against Krummick: Gonzalo

Duran, Amada Duran, Concepcion Duran, Kevin Duran, Jaime Duran, Ana

Rodriguez, Joel Uribe, Heriberto Uribe Sr., Juan Carlos Uribe,

Dudbeth Uribe, Heriberto Uribe Jr., Juana Maribel Escareno, Jesus
- 66 -

Uribe, and Raquel Uribe. Summary judgment will be entered in favor

of Krummick and against all other plaintiffs on Count I.

These fourteen plaintiffs are the only plaintiffs asserting

equal protection (and presumably Hate Crime Act), battery, and IIED

claims against Krummick. Summary judgment in favor of Krummick and

against all other plaintiffs will be entered on Counts III, V, VII

and VIII. 

First, we reject Krummick’s arguments that we should disregard

various plaintiffs’ affidavits because they contradict earlier

“judicial admissions” of failing to identify Krummick, in answers

to interrogatories, as having caused their injuries. As explained

supra, a later identification does not “squarely contradict” an

earlier failure to identify. 

Seven of the fourteen plaintiffs’ claims for excessive force,

denial of equal protection, battery, and IIED against Krummick fail

because there is no evidence that Krummick used force on these

plaintiffs or did anything except tell them to go inside the house.

The evidence as to Ana Rodriguez, Joel Uribe, Heriberto Uribe Sr.,

Juan Carlos Uribe, Dudbeth Uribe, Heriberto Uribe Jr., and Juana

Maribel Escareno is that Krummick told them to go inside the house

or “get the fuck inside the house.” There is no evidence that

Krummick touched these plaintiffs in any way or that Krummick knew

that, once plaintiffs had gone into the house, any other officer

would spray pepper spray into the house. Thus, the evidence is
- 67 -

insufficient to create a factual issue on the excessive force,

equal protection, Hate Crime Act, and battery claims. Furthermore,

the direction to these plaintiffs to get inside the house does not

rise to the level of extreme and outrageous conduct necessary for

an IIED claim. Summary judgment in favor of Krummick and against

these seven plaintiffs will be entered on Counts I, III, V, VII,

and VIII. 

Krummick lumps the evidence as to plaintiff Jesus Uribe with

the evidence as to the above-listed seven plaintiffs, but Jesus is

different in that he alleges that Krummick “pushed” him into the

house. A pushing is a sufficient basis for an excessive force

claim, and we assume that Krummick would argue that he is entitled

to qualified immunity. We would reject such an argument. We have

already found that those plaintiffs who were forced inside the

house were seized, so Krummick’s conduct would be assessed under

the objective reasonableness standard. As noted supra, at the time

of the events in this case, it was clearly established that “police

officers do not have the right to shove, push, or otherwise assault

innocent citizens without any provocation whatsoever.” Clash, 77

F.3d at 1048. Under plaintiff’s version of the facts, there was no

reason for Krummick to believe that pushing Jesus Uribe into the

house was justified. Krummick’s motion for summary judgment is

denied as to Jesus Uribe’s excessive force claim in Count I. 
- 68 -

Jesus Uribe brings four other claims against Krummick. As for

battery and IIED, intent to cause harm and resulting severe

emotional distress can be inferred from the alleged conduct.

Krummick’s motion for summary judgment is denied as to Jesus

Uribe’s claims in Counts VII and VIII. 

On the equal protection and Hate Crime Act claims, there is no

evidence that the alleged pushing was motivated by Jesus’s

ethnicity. Heriberto Uribe Sr. states in his affidavit that

Krummick “referred to us as ‘fucking Mexicans’ when he was telling

others to get inside the house.” (Affidavit of Heriberto Uribe

Sr., Ex. 150 of Exhibits in Support of Plaintiffs’ Table of

Defendants, ¶ 4.) Absent an indication that Krummick specifically

called Jesus a racially derogatory name, or any evidence as to what

Krummick was physically doing when he allegedly used the epithet,

this evidence is insufficient to create a factual issue as to

Krummick’s motivation for pushing Jesus. Summary judgment in favor

of Krummick and against Jesus Uribe will be entered on Counts III

and V. 

Raquel Uribe states in her affidavit that Krummick broke down

or pushed in the front door of the Durans’ home and entered with

Officers Lewandowski and Vitalo. At some point, Officers Vitalo

and Lewandowski then sprayed Raquel and her family. This evidence

is insufficient to create a factual issue on any of Raquel’s claims

against Krummick. Summary judgment in favor of Krummick and
- 69 -

against Raquel Uribe will be entered on Counts I, III, V, VII, and

VIII. 

Amada Duran states in her affidavit that Krummick sprayed her

in the neck with pepper spray and that she was either holding her

children, Concepcion, Kevin, and Jaime, or that they were holding

on to her at the time, so that they were also sprayed. Krummick’s

argument that Amada’s affidavit contradicts her earlier failure to

identify him is rejected. The analysis of these four plaintiffs’

claims for excessive force, battery, and IIED is the same as our

analysis of other plaintiffs’ claims that are premised on pepperspraying. (For example, those of Rene Moreno Jr. against Officer

Kratochvil.) Therefore, Krummick’s motion for summary judgment

will be denied as to the claims of Amada Duran, Concepcion Duran,

Kevin Duran, and Jaime Duran in Counts I, VII, and VIII. There is

no evidence that Krummick’s alleged conduct regarding these four

plaintiffs was motivated by reason of their ethnicity, so

Krummick’s motion for summary judgment will be granted on their

equal protection and Hate Crime Act claims in Counts III and V.

The remaining plaintiff is Gonzalo Duran, who is also the only

plaintiff asserting a false arrest claim against Krummick. Summary

judgment in favor of Krummick and against all other plaintiffs will

be entered on Count II. 

There is evidence from several plaintiffs that after officers

pursued Gonzalo as he “walked fast” from the front yard to the back
- 70 -

yard, Krummick participated in the scuffle and arrest of Gonzalo

(described in part in our discussion of Officer Sirgedas’s motion)

by hitting Gonzalo with an asp and kicking him. We rejected

Sirgedas’s qualified immunity argument, and we similarly reject

Krummick’s. There are factual issues involved in the

reasonableness determination. For that reason, Krummick’s motion

for summary judgment is denied as to Gonzalo’s excessive force

claim in Count I. Because intent to harm and resulting severe

emotional distress can reasonably be inferred from the alleged

conduct, Krummick’s motion for summary judgment is denied as to

Gonzalo Duran’s claims for battery and IIED in Counts VII and VIII.

There is no evidence that Krummick’s alleged conduct with respect

to Gonzalo was motivated by reason of Gonzalo’s ethnicity.

Krummick’s motion for summary judgment will therefore be granted on

Gonzalo’s equal protection and Hate Crime Act claims in Counts III

and V.

Gonzalo also asserts a false arrest claim against Krummick.

Krummick argues that he is entitled to qualified immunity on this

claim because it was objectively reasonable to arrest Gonzalo in

light of the fact that he “was told that Gonzalo Duran had thrown

a bottle or can at [DeCianni] and that [DeCianni] wanted him

arrested.” (Krummick’s Memorandum at 12.) Gonzalo denies that he

threw a bottle or can at DeCianni. He also denies that DeCianni

even claimed at the time that he was struck by a bottle or can;
- 71 -

rather, he states that DeCianni merely told Krummick that the music

was too loud. Like the excessive force claim, there are factual

issues involved in the reasonableness determination on the false

arrest claim. For that reason, Krummick’s motion for summary

judgment is denied as to Gonzalo Duran’s false arrest claim in

Count II. 

 13. Officer Dino Vitalo

Plaintiffs’ Table states that the following eight plaintiffs

assert excessive force and battery claims against Vitalo:

Alejandro Duran, Gonzalo Duran, Daniel Pineda, Javier Rodriguez,

Florina Pineda, Julia de la Cruz, Manuel Uribe Palacios, and Raquel

Uribe. Summary judgment will be entered in favor of Vitalo and

against all other plaintiffs on Counts I and VII.

Like various other defendants, Vitalo argues that we should

disregard the affidavits of certain plaintiffs, such as Raquel

Uribe, Julia de la Cruz, and Daniel Pineda, who identify Vitalo as

having caused their injuries after failing to identify him in

answers to interrogatories. We reject this argument for the same

reasons we rejected other defendants’ similar arguments. 

The eight plaintiffs listed above allege that Vitalo used

force against them without provocation in a number of different

ways. Raquel Uribe alleges that Vitalo sprayed her, Florina

Pineda, and Manuel Uribe Palacios with pepper spray while they were

inside the house. Alejandro Duran alleges that Vitalo pushed him
- 72 -

and called him a “fucking Mexican” while inside the house. Julia

de la Cruz alleges that Vitalo’s push to Alejandro caused Alejandro

to fall on her and injure her arm. Daniel Pineda alleges that

Vitalo pointed a gun at him, grabbed him, and called him a “Mexican

motherfucker.” As for Gonzalo Duran, Vitalo admits that he tackled

Gonzalo and, evidently, that he hit Gonzalo with his fists and with

an asp when attempting to subdue and arrest him. Javier Rodriguez

alleges that Vitalo was “with” Officer Peslak when Peslak allegedly

hit him.

Except as to Javier Rodriguez, these allegations are

sufficient to create genuine issues of fact on these plaintiffs’

excessive force claims as well as on their battery claims because

intent to cause harm can be inferred from the alleged conduct.

Javier does not allege that Vitalo used any force on him (nor does

he allege that Vitalo failed to intervene to prevent Peslak from

hitting him). Summary judgment in favor of Vitalo and against

Javier Rodriguez will be entered on Counts I and VII. 

Vitalo contends that he is entitled to qualified immunity.

Except for the claim of Julia de la Cruz, we reject this argument

for the same reasons we rejected Officer Cruz’s qualified immunity

argument. Even considering that the higher Fourteenth Amendment

standard applies to the qualified immunity analysis for these

plaintiffs (except for Gonzalo, who was seized), we believe that a

jury could reasonably find on the facts adduced as to Alejandro,
- 73 -

Gonzalo, Daniel, Florina, Manuel, and Raquel that Vitalo’s alleged

conduct shocked the conscience because Vitalo either intended to

cause them harm or was deliberately indifferent to the risk of

causing them harm. Vitalo’s motion for summary judgment will be

denied as to the excessive force and battery claims of Alejandro

Duran, Gonzalo Duran, Daniel Pineda, Florina Pineda, Manuel Uribe

Palacios, and Raquel Uribe in Counts I and VII. 

Vitalo is, however, entitled to summary judgment on Julia de

la Cruz’s claim for excessive force. Julia alleges that Vitalo

pushed Alejandro, which in turn caused Alejandro to fall and knock

her down. This alleged conduct does not “shock the conscience;” a

jury could not reasonably find on these facts that Vitalo intended

to cause Julia harm or was deliberately indifferent to the risk of

causing her harm. And because there is no evidence that Vitalo

intended to “touch” Julia, her battery claim also fails. Summary

judgment in favor of Vitalo and against Julia de la Cruz will be

granted on Counts I and VII. 

The same eight plaintiffs, as well as Armando Duran and Ruben

Pineda, also assert IIED claims against Vitalo. Summary judgment

will be entered in favor of Vitalo and against all other plaintiffs

on Count VIII. 

Julia de la Cruz and Javier Rodriguez do not allege that

severe emotional distress resulted from Vitalo’s alleged conduct,

nor can such distress be inferred from such conduct. Such
- 74 -

distress, however, can be inferred from the conduct alleged by

Alejandro, Gonzalo, Daniel, Florina, Manuel, and Raquel. Summary

judgment will be entered in favor of Vitalo and against Julia de la

Cruz and Javier Rodriguez on Count VIII. Vitalo’s motion for

summary judgment is denied as to the IIED claims of Alejandro

Duran, Gonzalo Duran, Daniel Pineda, Florina Pineda, Manuel Uribe

Palacios, and Raquel Uribe in Count VIII. 

Armando Duran’s IIED claim is premised on Vitalo allegedly

calling him “Mexican trash” and “Mexican shit.” Ruben Pineda’s

IIED claim is based on Vitalo allegedly generally using the phrases

“fucking Mexicans,” “fucking Mexican shit,” and “stupid people.”

(Pineda does not allege that Vitalo called him any of these names

directly.) The analysis of these IIED claims is the same as

Alejandro Duran’s IIED claim against Officer Stroud: severe

emotional distress cannot be inferred simply from the alleged

conduct, and there is no evidence that plaintiffs suffered severe

emotional distress as a result of what Vitalo allegedly said.

Summary judgment will be entered in favor of Vitalo and against

Armando Duran and Ruben Pineda on Count VIII. 

According to plaintiffs’ Table, the following plaintiffs

assert equal protection claims against Vitalo, and we presume that

they are the only plaintiffs asserting Hate Crime Act claims

against Vitalo as well: Alejandro Duran, Armando Duran, Gonzalo

Duran, Luz Maria Pineda, Daniel Pineda, Javier Rodriguez, Lisbeth
- 75 -

23/ Alejandro Duran, Gonzalo Duran, and Ruben Pineda are also Group II

plaintiffs, but they allege more than just a failure to intervene against Vitalo.

Moreno, Ruben Pineda, Silvia Pineda, Marlene Pineda, Edwin Pineda,

Kalyn Pineda, Florina Pineda, Julia de la Cruz, Lorena Paredes,

Jorge Enrique Perez Sr., Manuel Uribe Palacios, and Raquel Uribe.

Summary judgment will be entered in favor of Vitalo and against all

other plaintiffs on Counts III and V.

Luz Maria Pineda, Lisbeth Moreno, Silvia Pineda, Marlene

Pineda, Edwin Pineda, Kalyn Pineda, Lorena Paredes, and Jorge

Enrique Perez Sr. are all Group II plaintiffs.23 The conduct

underlying those plaintiffs’ equal protection and Hate Crime Act

claims against Vitalo is an alleged failure to intervene. We have

granted defendants’ motion for summary judgment on the failure to

intervene claims, so summary judgment in favor of Vitalo and

against these plaintiffs on Counts III and V will be granted.

We are left with the equal protection and Hate Crime Act

claims of Alejandro Duran, Armando Duran, Gonzalo Duran, Daniel

Pineda, Javier Rodriguez, Ruben Pineda, Florina Pineda, Julia de la

Cruz, Manuel Uribe Palacios, and Raquel Uribe. Of these

plaintiffs, only Alejandro Duran and Daniel Pineda allege facts

creating a genuine issue as to whether Vitalo’s alleged conduct

toward them was motivated by plaintiffs’ ethnicity. (Alejandro and

Daniel allege that Vitalo described them with racial slurs when
- 76 -

24/ As noted supra, Armando Duran and Ruben Pineda also allege that they

heard Vitalo using racial slurs, but they fail to allege any other actions by

Vitalo against them that could form the basis for equal protection or Hate Crime

Act claims against Vitalo. Derogatory references to racial or ethnic background

by themselves do not constitute a deprivation of constitutional rights. See

Bell, 746 F.2d at 1259. 

pushing and grabbing them.)24 Accordingly, summary judgment will

be entered in favor of Vitalo and against Armando Duran, Gonzalo

Duran, Javier Rodriguez, Ruben Pineda, Florina Pineda, Julia de la

Cruz, Manuel Uribe Palacios, and Raquel Uribe on Counts III and V.

Vitalo’s motion for summary judgment is denied as to the equal

protection and Hate Crime Act claims of Alejandro Duran and Daniel

Pineda in Counts III and V. 

Gonzalo Duran is the only plaintiff who asserts false arrest

and malicious prosecution claims against Vitalo. Summary judgment

will be entered in favor of Vitalo and against all other plaintiffs

on Counts II and VI. 

There is evidence that Vitalo tackled and used force against

Gonzalo in an attempt to handcuff and arrest him. Vitalo argues

that he is entitled to qualified immunity on the false arrest claim

because “[t]he evidence is unrebutted that he was told that Gonzalo

Duran threw a can or bottle that hit Officer DeCianni.” (Vitalo’s

Memorandum at 12.) As discussed supra with respect to Sergeant

Krummick, Gonzalo denies that he threw a bottle or can at DeCianni.

He also denies that DeCianni even claimed at the time that he was

struck by a bottle or can; rather, he states that DeCianni merely

told Krummick that the music was too loud. There are factual
- 77 -

issues involved in determining whether there was probable cause for

Vitalo to arrest Gonzalo. For that reason, Vitalo’s motion for

summary judgment is denied as to Gonzalo Duran’s false arrest claim

in Count II. 

As for malicious prosecution, Vitalo contends that summary

judgment should be entered on this claim because there is no

evidence that he “took some steps after the arrest that were

improper in order to obtain convictions of the plaintiffs.”

(Vitalo’s Memorandum at 13.) Gonzalo has submitted copies of the

criminal complaints against him for aggravated battery and

resisting a peace officer, which were signed by Vitalo. Gonzalo

contends that those complaints were false, that he was prosecuted

on the charges, and that he was found not guilty. This is

sufficient evidence to send Gonzalo’s malicious prosecution claim

against Vitalo to a jury. Accordingly, Vitalo’s motion for summary

judgment will be denied as to Gonzalo Duran’s malicious prosecution

claim in Count VI.

14. Officer Michael McMahon

Plaintiffs’ Table states that the following seven plaintiffs

assert excessive force, battery, and IIED claims against McMahon:

Alejandro Duran, Armando Duran, Anna Maria Duran, Adolfo Duran,

Basilisa Pineda, Graciela Torres, and Kassandra Torres. Summary

judgment will be entered in favor of McMahon and against all other

plaintiffs on Counts I, VII, and VIII.
- 78 -

We reject McMahon’s argument that we should disregard the

affidavits of certain plaintiffs for the same reasons we rejected

other defendants’ similar arguments.

These seven plaintiffs allege that McMahon used force against

them without provocation in various ways. Armando Duran alleges

that after he had been handcuffed by two officers, McMahon sprayed

him in his mouth with pepper spray and threw him into the front

window of the Durans’ home, breaking the window. Anna Maria Duran

alleges that McMahon sprayed her and threw her toward the stairs.

Adolfo Duran alleges, and McMahon admits, that McMahon sprayed him.

Basilisa Pineda alleges that McMahon hit her and sprayed her in the

eyes. Graciela Torres alleges that McMahon pushed her into a

fence, causing a bruise. Kassandra Torres, who was seven years old

at the time of the events, alleges that McMahon pushed her to the

ground, causing a scratch on her arm. Alejandro Duran generally

alleges that he was sprayed in the yard and that McMahon admits

that he sprayed people in the yard.

Except as to Alejandro Duran, these allegations are sufficient

to create genuine issues of fact on these plaintiffs’ excessive

force claims as well as on their battery claims because intent to

cause harm can be inferred from the alleged conduct. Alejandro

does not allege that McMahon in particular sprayed him. Summary

judgment in favor of McMahon and against Alejandro Duran will be

entered on Counts I and VII.
- 79 -

McMahon contends that he is entitled to qualified immunity on

the claims of Anna Maria, Adolfo, Graciela, and Kassandra. We

reject this argument for the same reasons we rejected Officer

Vitalo’s qualified immunity argument. Even considering that the

higher Fourteenth Amendment standard applies to the qualified

immunity analysis for these plaintiffs, we believe that a jury

could reasonably find from the evidence that McMahon’s alleged

conduct shocked the conscience because McMahon either intended to

cause them harm or was deliberately indifferent to the risk of

causing them harm. 

McMahon’s motion for summary judgment will be denied as to the

excessive force and battery claims of Armando Duran, Anna Maria

Duran, Adolfo Duran, Basilisa Pineda, Graciela Torres, and

Kassandra Torres in Counts I and VII.

The same seven plaintiffs assert IIED claims against McMahon.

It can be inferred from the conduct alleged by Armando, Anna Maria,

Adolfo, Basilisa, Graciela, and Kassandra that severe emotional

distress resulted; therefore, McMahon’s motion for summary judgment

will be denied as to these plaintiffs’ IIED claims in Count VIII.

Because Alejandro Duran does not allege that McMahon used force

against him in particular, summary judgment in favor of McMahon and

against Alejandro Duran will be entered on Count VIII. 

According to plaintiffs’ Table, these same seven plaintiffs,

in addition to nine Group II plaintiffs, assert equal protection
- 80 -

25/ Alejandro Duran, Gonzalo Duran, and Ruben Pineda are also Group II

plaintiffs, but they allege more than just a failure to intervene against Vitalo.

claims against McMahon. We presume that they are the only

plaintiffs asserting Hate Crime Act claims against him as well.

Summary judgment will be entered in favor of McMahon and against

all other plaintiffs on Counts III and V.

Of the seven plaintiffs, only Armando Duran alleges facts

creating a genuine issue as to whether McMahon’s alleged conduct

against them was motivated by plaintiffs’ ethnicity. Armando

alleges that McMahon called him “Mexican trash,” “Mexican shit,”

and a “Mexican motherfucker.” Alejandro Duran claims that McMahon

was using the phrase “fucking cowboys,” but does not claim that

McMahon directed that phrase to anyone in particular. Summary

judgment will accordingly be entered in favor of McMahon and

against Alejandro Duran, Anna Maria Duran, Adolfo Duran, Basilisa

Pineda, Graciela Torres, and Kassandra Torres on Counts III and V.

McMahon’s motion for summary judgment is denied as to Armando

Duran’s claims in Counts III and V.

The nine Group II plaintiffs asserting equal protection claims

against McMahon are Luz Maria Pineda, Lisbeth Moreno, Ruben Pineda,

Silvia Pineda, Marlene Pineda, Edwin Pineda, Kalyn Pineda, Lorena

Paredes, and Jorge Enrique Perez Sr.25 The conduct underlying their

claims is an alleged failure to intervene. We have granted

defendants’ motion for summary judgment on the failure to intervene
- 81 -

claims, so summary judgment in favor of McMahon and against these

plaintiffs on Counts III and V will be granted.

Alejandro Duran, Armando Duran, and Adolfo Duran are the only

plaintiffs who assert false arrest and malicious prosecution claims

against McMahon. Summary judgment will be entered in favor of

McMahon and against all other plaintiffs on Counts II and VI.

There is evidence that McMahon arrested Armando. McMahon

argues that he is entitled to qualified immunity because a party

guest threw a bottle or can at him, and it is “undisputed that

another officer, Michael Kirby, pointed out Armando Duran as the

person who threw a bottle at McMahon.” (McMahon’s Memorandum at

6.) Armando denies that he threw anything at McMahon. He also

denies that Kirby told McMahon that Armando threw something at

McMahon. There are factual issues involved in determining whether

McMahon’s conduct in arresting Armando was reasonable. For that

reason, McMahon’s motion for summary judgment is denied as to

Armando Duran’s false arrest claim in Count II. 

Alejandro and Adolfo also bring false arrest claims, but there

does not appear to be any evidence that McMahon arrested them.

Summary judgment will be entered in favor of McMahon and against

Alejandro Duran and Adolfo Duran on Count II. 

As for malicious prosecution, McMahon maintains that summary

judgment should be entered on this claim because there is no

evidence that he “took some steps after the arrest that were
- 82 -

improper in order to obtain convictions of the plaintiffs.”

(McMahon’s Memorandum at 7.) Alejandro, Armando, and Adolfo have

submitted copies of the criminal complaints against them for

aggravated battery and obstructing a peace officer, which were

signed by McMahon. The complaints allege that each of the Duran

brothers pushed McMahon and became loud and disruptive and failed

to obey an order of dispersal. The Durans contend that those

charges were false (that they did not push McMahon and that there

was no order of dispersal given), that they were prosecuted on the

charges, and that they were found not guilty. This is sufficient

evidence to send the malicious prosecution claims against McMahon

to a jury. Accordingly, McMahon’s motion for summary judgment will

be denied as to the malicious prosecution claims of Alejandro

Duran, Armando Duran, and Adolfo Duran in Count VI.

15. Officer William Peslak

There is no evidence supporting any plaintiff’s claim against

Peslak for malicious prosecution. Accordingly, summary judgment

will be entered in favor of Peslak and against all plaintiffs on

Count VI.

According to plaintiffs’ Table, forty plaintiffs assert

excessive force and equal protection claims against Peslak, and we

presume that they are the only plaintiffs asserting Hate Crime Act
- 83 -

26/ The forty plaintiffs are Alejandro Duran, Maria Concepcion Duran,

Jaquelin Duran, Anna Maria Duran, Armando Duran Jr., Yonathan Duran, Adolfo

Duran, Adolfo Duran Jr., Gonzalo Duran, Gonzalo Duran Jr., Ignacio Rodriguez,

Alma Rodriguez, Ana Rodriguez, Kathy Bonilla, Javier Rodriguez, Maria Alicia

Moreno, Edwin Pineda, Florina Pineda, Joel Uribe, Esther Meraz, Heriberto Uribe

Sr., Juan Carlos Uribe, Dudbeth Uribe, Heriberto Uribe Jr., Juana Maribel

Escareno, Graciela Torres, Serafin Rios, Norma de la Cruz, Julia de la Cruz,

Kevin de la Cruz, Sergio Duran, Jesus Rico Duran, Maria M. Hernandez, Jesus

Uribe, Manuel Uribe Palacios, Juana Soto Uribe, Imelda Uribe, Jose Adrian Moreno,

Ismael Torres, and Jose Martin Uribe. 

claims against Peslak as well.26 Summary judgment will be entered

in favor of Peslak and against all other plaintiffs on Counts I,

III, and V. 

Thirty-four of these forty plaintiffs are Group I plaintiffs

(those who claim they were inside the Durans’ house and experienced

ill effects from the pepper spray allegedly sprayed by Officers

DeCianni and Peslak). We have already rejected supra Peslak’s

qualified immunity argument regarding the Group I plaintiffs.

Peslak’s motion for summary judgment will be denied as to the Group

I plaintiffs’ claims for excessive force in Count I. 

There are additional allegations that Peslak used other types

of force against certain plaintiffs without justification. Gonzalo

Duran alleges that Peslak hit and kicked him in the attempt to

subdue and arrest him. Ignacio Rodriguez alleges that Peslak hit

him with an asp while he was inside the house. Javier Rodriguez

alleges that Peslak hit him with an asp and sprayed him. Graciela

Torres alleges that Peslak sprayed her. Sergio Duran alleges that

Peslak sprayed him in the face. Ismael Torres alleges that Peslak

sprayed him in the eyes. 
- 84 -

Adolfo Duran claims that Peslak hit and kicked him; this claim

is based on the testimony of Florentina Perez. Peslak argues that

we should not credit Florentina’s testimony because it was “wild

and crazy generally.” (Peslak’s Memorandum at 2.) We do not

resolve issues of credibility on summary judgment.

Maria Alicia Moreno alleges in her affidavit that Peslak

sprayed her and her son, Jose Adrian Moreno. As discussed supra,

this allegation will be stricken from Moreno’s affidavit and

disregarded because it contradicts her earlier statement that she

was not sprayed directly. Because Maria and her son’s claims

against Peslak for excessive force, battery, equal protection (and

presumably Hate Crime Act), and IIED are not properly supported,

summary judgment in favor of Peslak and against these two

plaintiffs will be entered on Counts I, III, V, VII, and VIII.

Anna Maria Duran brings excessive force, battery, equal

protection (and presumably Hate Crime Act), and IIED claims against

Peslak, but fails to allege that Peslak did anything to her in

particular. Accordingly, summary judgment will be entered in favor

of Peslak and against Anna Maria Duran on Counts I, III, V, VII,

and VIII.

Thus, aside from the Group I plaintiffs, seven plaintiffs have

an evidentiary basis for their excessive force claims: Adolfo

Duran, Gonzalo Duran, Ignacio Rodriguez, Javier Rodriguez, Graciela
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27/ Alma Rodriguez is a Group I plaintiff and may be alleging an additional

basis for her claims against Peslak. She states that she was sprayed and pushed

down a flight of stairs and that Peslak and DeCianni were nearby at the time.

She does not identify Peslak specifically as having sprayed or pushed her,

though. Simply being “nearby” is not a basis for an excessive force claim (or

an equal protection, Hate Crime Act, battery, or IIED claim, for that matter).

Torres, Sergio Duran, and Ismael Torres.27 Peslak argues that he

is entitled to qualified immunity on these claims. We disagree,

for the same reasons we rejected Officer McMahon’s qualified

immunity argument. Even considering that the higher Fourteenth

Amendment standard applies to the qualified immunity analysis for

these plaintiffs, we believe that a jury could reasonably find from

the evidence that Peslak’s alleged conduct shocked the conscience

because Peslak either intended to cause them harm or was

deliberately indifferent to the risk of causing them harm.

Peslak’s motion for summary judgment will be denied as to the

claims of Adolfo Duran, Gonzalo Duran, Ignacio Rodriguez, Javier

Rodriguez, Graciela Torres, Sergio Duran, and Ismael Torres in

Count I. 

As for these plaintiffs’ equal protection and Hate Crime Act

claims, there is no evidence that Peslak’s alleged conduct was

motivated by plaintiffs’ ethnicity. Summary judgment will be

entered in favor of Peslak and against these plaintiffs on Counts

III and V. 

Thirty-six of the forty plaintiffs listed above assert battery

claims against Peslak. (Armando Duran Jr., Yonathan Duran, Edwin

Pineda, and Heriberto Uribe Sr. are the four plaintiffs who assert
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excessive force claims but not battery.) Summary judgment will be

entered in favor of Peslak and against all other plaintiffs on

Count VII. As for the Group I plaintiffs, intent can be inferred

from the alleged conduct of spraying into the house; therefore,

Peslak’s motion for summary judgment is denied as to these

plaintiffs’ claims for battery in Count VII. Intent can also be

inferred from the conduct alleged by Adolfo Duran, Gonzalo Duran,

Ignacio Rodriguez, Javier Rodriguez, Graciela Torres, Sergio Duran,

and Ismael Torres; the motion for summary judgment is thus also

denied as to these plaintiffs’ claims for battery in Count VII. 

Thirty-seven of the forty plaintiffs listed above assert IIED

claims against Peslak. (Edwin Pineda, Heriberto Uribe Sr., and

Sergio Duran are the three plaintiffs who assert excessive force

claims but not IIED.) Summary judgment will be entered in favor of

Peslak and against all other plaintiffs on Count VIII. 

We believe that it can be inferred from the conduct alleged by

the Group I plaintiffs, as well as the conduct alleged by Adolfo

Duran, Gonzalo Duran, Ignacio Rodriguez, Javier Rodriguez, Graciela

Torres, Sergio Duran, and Ismael Torres, that severe emotional

distress resulted; therefore, Peslak’s motion for summary judgment

will be denied as to these plaintiffs’ IIED claims in Count VIII.

 Gonzalo Duran is the only plaintiff who asserts a false arrest

claim against Peslak. Summary judgment will be entered in favor of

Peslak and against all other plaintiffs on Count II. 
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28/ The fifty-seven plaintiffs are Alejandro Duran, Maria Concepcion Duran,

Jaquelin Duran, Anna Maria Duran, Armando Duran Jr., Yonathan Duran, Adolfo

Duran, Adolfo Duran Jr., Gonzalo Duran, Amada Duran, Gonzalo Duran Jr.,

Concepcion Duran, Kevin Duran, Jaime Duran, Ignacio Rodriguez, Alma Rodriguez,

Ana Rodriguez, Kathy Bonilla, Javier Rodriguez, Rene Moreno Sr., Lisbeth Moreno,

Ruben Pineda, Silvia Pineda, Marlene Pineda, Edwin Pineda, Kalyn Pineda, Florina

Pineda, Joel Uribe, Esther Meraz, Heriberto Uribe Sr., Juan Carlos Uribe, Dudbeth

Uribe, Heriberto Uribe Jr., Juana Maribel Escareno, Diego Torres, Serafin Rios,

Norma de la Cruz, Julia de la Cruz, Kevin de la Cruz, Lorena Paredes, Jose

Refugio Paredes, Amanda Paredes, Alondra Paredes, Jose Paredes, Jorge Enrique

Perez Sr., Sergio Duran, Joel Rico Duran, Maria Marisol Rico Duran, Joel Rico

Duran Jr., Jesus Rico Duran, Maria M. Hernandez, Jesus Uribe, Manuel Uribe

Palacios, Juana Soto Uribe, Imelda Uribe, Ismael Torres, and Jose Martin Uribe.

Peslak contends that he is entitled to qualified immunity on

Gonzalo’s false arrest claim because “his involvement in the arrest

was simply to help fellow officers of whom he had no reason to

suspect they [sic] were not entitled to arrest someone” and thus,

his conduct was objectively reasonable. (Peslak’s Memorandum at

11.) Peslak points to no particular evidence in support of his

argument. His motion for summary judgment on Gonzalo Duran’s claim

for false arrest in Count II is therefore denied.

16. Officer Robert DeCianni

According to plaintiffs’ Table, fifty-seven plaintiffs assert

excessive force claims against DeCianni.28 Summary judgment will

be entered in favor of DeCianni and against all other plaintiffs on

Count I. 

We reject DeCianni’s argument that we should disregard the

affidavits of certain plaintiffs for the same reasons we rejected

other defendants’ similar arguments. 

Thirty-four of these fifty-seven plaintiffs are Group I

plaintiffs (those who claim they were inside the Durans’ house and
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experienced ill effects from the pepper spray allegedly sprayed by

Officers DeCianni and Peslak). We have already rejected supra

DeCianni’s qualified immunity argument regarding the Group I

plaintiffs. DeCianni’s motion for summary judgment will be denied

as to the Group I plaintiffs’ claims for excessive force in Count

I. 

There are additional allegations that DeCianni used other

types of force against certain plaintiffs without justification.

Gonzalo Duran alleges that DeCianni beat and choked him in the

attempt to subdue and arrest him. Amada Duran, Concepcion Duran,

Kevin Duran, Jaime Duran, Lisbeth Moreno, Silvia Pineda, Marlene

Pineda, Edwin Pineda, Kalyn Pineda, Julia de la Cruz, Jose Refugio

Paredes, Amanda Paredes, Alondra Paredes, Jose Paredes, Jorge

Enrique Perez Sr., Joel Rico Duran, Maria Marisol Rico Duran, Joel

Rico Duran Jr., and Jesus Rico Duran allege that DeCianni sprayed

them. Diego Torres alleges that DeCianni sprayed him and told him

to “move the fuck out of the way, you little brat.” Ignacio

Rodriguez alleges that DeCianni sprayed him, kicked him, and said,

“See what you Mexicans get?” Javier Rodriguez and Rene Moreno Sr.

allege that DeCianni hit them with an asp and sprayed them. Ruben

Pineda alleges that DeCianni grabbed him, ripped his shirt, punched

him, sprayed him, threw him down some stairs, and told him,

“Motherfucker, I’m gonna kill you.” Silvia Pineda alleges that

DeCianni’s treatment of Ruben caused her to fall down when Ruben
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29/ Alma Rodriguez is a Group I plaintiff and may be alleging an additional

basis for her claims against DeCianni. She states that she was sprayed and

pushed down a flight of stairs and that Peslak and DeCianni were nearby at the

time. She does not identify DeCianni specifically as having sprayed or pushed

her, though. Simply being “nearby” is not a basis for an excessive force claim

(or an equal protection, Hate Crime Act, battery, or IIED claim, for that

fell into her. Lorena Paredes alleges that DeCianni pushed and

sprayed her. 

Anna Maria Duran brings excessive force, battery, equal

protection (and presumably Hate Crime Act), and IIED claims against

DeCianni, but fails to allege that DeCianni did anything to her in

particular. Similarly, Sergio Duran brings excessive force,

battery, and equal protection (and presumably Hate Crime Act)

claims against DeCianni, but fails to allege that DeCianni did

anything to him in particular. Accordingly, summary judgment will

be entered in favor of DeCianni and against Anna Maria Duran on

Counts I, III, V, VII, and VIII, and in favor of DeCianni and

against Sergio Duran on Counts I, III, V, and VII. 

Thus, aside from the Group I plaintiffs, twenty-six plaintiffs

have an evidentiary basis for their excessive force claims:

Gonzalo Duran, Amada Duran, Concepcion Duran, Kevin Duran, Jaime

Duran, Lisbeth Moreno, Silvia Pineda, Marlene Pineda, Edwin Pineda,

Kalyn Pineda, Julia de la Cruz, Jose Refugio Paredes, Amanda

Paredes, Alondra Paredes, Jose Paredes, Jorge Enrique Perez Sr.,

Joel Rico Duran, Maria Marisol Rico Duran, Joel Rico Duran Jr.,

Jesus Rico Duran, Diego Torres, Ignacio Rodriguez, Javier

Rodriguez, Rene Moreno Sr., Ruben Pineda, and Lorena Paredes.29
- 90 -

matter).

30/ DeCianni is entitled to summary judgment on Silvia Pineda’s excessive

force claim, to the extent it is based on this allegation, for the same reasons

we expressed regarding Julia de la Cruz’s excessive force claim against Officer

Vitalo.

DeCianni argues that he is entitled to qualified immunity on these

claims (except as to the claims of Ruben Pineda and Gonzalo Duran).

We disagree for the same reasons we rejected Officer Peslak’s

qualified immunity argument, except as to Silvia Pineda’s claim to

the extent it is based on the allegation that DeCianni knocked

Ruben down, causing her to fall.30 Even considering that the higher

Fourteenth Amendment standard applies to the qualified immunity

analysis for these plaintiffs, we believe that a jury could

reasonably find from the evidence that DeCianni’s alleged conduct

shocked the conscience because DeCianni either intended to cause

these plaintiffs harm or was deliberately indifferent to the risk

of causing them harm. DeCianni’s motion for summary judgment will

be denied as to these twenty-six plaintiffs’ claims in Count I,

except that the motion is granted as to Silvia Pineda’s excessive

force claim to the extent it is based on the “falling down”

allegation. 

The same fifty-seven plaintiffs with excessive force claims,

plus Luz Maria Pineda and Armando Duran, assert equal protection

(and, we presume, Hate Crime Act) claims against DeCianni. 

It appears that Luz Maria Pineda alleges that she overheard

racial slurs being used by officers in general, but she does not
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specifically allege that DeCianni used any. Therefore, summary

judgment will be entered in favor of DeCianni and against Luz Maria

Pineda on Counts III and V. 

Armando Duran alleges that DeCianni called him “Mexican trash”

and a “Mexican shit.” The problem with his equal protection claim,

though, is that Armando alleges no other conduct by DeCianni that

denied him equal protection. Derogatory references to racial or

ethnic background by themselves do not constitute a deprivation of

constitutional rights. See Bell, 746 F.2d at 1259. Summary

judgment will therefore be entered in favor of DeCianni and against

Armando Duran on Counts III and V. 

Of the other plaintiffs asserting equal protection and Hate

Crime Act claims against DeCianni, only Ignacio Rodriguez alleges

facts creating a genuine issue as to whether DeCianni’s alleged

conduct against him was motivated by his ethnicity. Ignacio

alleges that DeCianni said, “See what you Mexicans get?” Ruben

Pineda and Diego Torres allege that they heard DeCianni using

racial slurs, but do not claim that DeCianni directed the slurs at

anyone in particular. Summary judgment will be entered in favor of

DeCianni and against all plaintiffs except for Ignacio Rodriguez on

Counts III and V. 

Fifty-two of the original fifty-seven plaintiffs listed above

assert battery claims against DeCianni. (Armando Duran Jr.,

Yonathan Duran, Joel Rico Duran, Maria Marisol Rico Duran, and
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Maria M. Hernandez are the five plaintiffs who assert excessive

force claims but not battery.) Summary judgment will be entered in

favor of DeCianni and against all other plaintiffs on Count VII. 

As for the Group I plaintiffs, intent can be inferred from the

alleged conduct of spraying into the house; therefore, DeCianni’s

motion for summary judgment is denied as to these plaintiffs’

claims for battery in Count VII. Intent can also be inferred from

the conduct alleged by Gonzalo Duran, Amada Duran, Concepcion

Duran, Kevin Duran, Jaime Duran, Lisbeth Moreno, Silvia Pineda

(except for the “falling down” allegations, see supra), Marlene

Pineda, Edwin Pineda, Kalyn Pineda, Julia de la Cruz, Jose Refugio

Paredes, Amanda Paredes, Alondra Paredes, Jose Paredes, Jorge

Enrique Perez Sr., Joel Rico Duran, Maria Marisol Rico Duran, Joel

Rico Duran Jr., Jesus Rico Duran, Diego Torres, Ignacio Rodriguez,

Javier Rodriguez, Rene Moreno Sr., Ruben Pineda, and Lorena

Paredes. The motion for summary judgment is thus also denied as to

these plaintiffs’ claims for battery in Count VII. 

Fifty-three of the original fifty-seven plaintiffs listed

above, along with Armando Duran, assert IIED claims against

DeCianni. (Sergio Duran, Joel Rico Duran, Maria Marisol Rico

Duran, and Maria M. Hernandez are the four plaintiffs who assert

excessive force claims but not IIED.) Summary judgment will be

entered in favor of DeCianni and against all other plaintiffs on

Count VIII. 
- 93 -

We believe that it can be inferred from the conduct alleged by

the Group I plaintiffs, as well as the conduct alleged by the

twenty-six plaintiffs listed two paragraphs supra, that severe

emotional distress resulted; therefore, DeCianni’s motion for

summary judgment will be denied as to these plaintiffs’ IIED claims

in Count VIII. As for Armando Duran, his claim is evidently based

on DeCianni allegedly calling him “Mexican trash” and a “Mexican

shit.” Our analysis of Alejandro Duran’s IIED claim against

Officer Stroud applies to this claim. Because there is no evidence

that Armando suffered severe emotional distress as a result of what

DeCianni allegedly said, summary judgment in favor of DeCianni and

against Armando Duran on Count VIII will be granted. 

Gonzalo Duran is the only plaintiff who asserts false arrest

and malicious prosecution claims against DeCianni. Summary

judgment will be entered in favor of DeCianni and against all other

plaintiffs on Counts II and VI. 

DeCianni contends that he is entitled to qualified immunity on

Gonzalo’s false arrest claim because he had probable cause to

arrest Gonzalo for either throwing a bottle or can at him or for

“failing to shut the party and causing a disturbance” or for

“resisting a lawful police order.” (DeCianni’s Memorandum at 11.)

Gonzalo denies that he threw anything at DeCianni; he also denies

that there was an order to disperse or that they were causing a

disturbance. Because there are factual issues involved in
- 94 -

determining whether DeCianni’s conduct in arresting Gonzalo was

reasonable, DeCianni’s motion for summary judgment will be denied

as to the false arrest claim of Gonzalo Duran in Count II. 

As for Gonzalo’s malicious prosecution claim, DeCianni argues

that summary judgment should be entered on this claim because there

is no evidence that he “took some steps after the arrest that were

improper in order to obtain convictions of the plaintiffs.”

(DeCianni’s Memorandum at 13.) Gonzalo has submitted copies of the

criminal complaints against him for aggravated battery and

resisting a peace officer, which were signed by DeCianni. The

complaints allege that Gonzalo struck and bit DeCianni “without

legal justification” and that he resisted arrest. Gonzalo contends

that the arrest and use of force on him was not justified in the

first place, that he was prosecuted on the charges, and that he was

found not guilty. This is sufficient evidence to send the

malicious prosecution claim against DeCianni to a jury.

Accordingly, DeCianni’s motion for summary judgment will be denied

as to the malicious prosecution claim of Gonzalo Duran in Count VI.

A final note. Plaintiffs’ Table includes a column titled “Due

Process,” and the only defendant with an entry in that column is

DeCianni. The entry states, “ALL PLAINTIFFS.” DeCianni does not

address this claim in his motion, and perhaps this is because the

Table is not part of the Fourth Amended Complaint and there is no
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31/ The due process claim in the Third Amended Complaint was dropped. 

allegation in the Fourth Amended Complaint31 that DeCianni violated

anyone’s right to due process, nor is there a separate count

alleging any violation of that right. 

CONCLUSION

For the foregoing reasons, the motion of defendants Robert

DeCianni and William Peslak for summary judgment with respect to

the plaintiffs in Group I is denied. The motion of certain

defendants for summary judgment with respect to the plaintiffs in

Group II is granted. The joint motion of the individual police

officer defendants for partial summary judgment is granted in part

and denied in part.

Counsel for defendants are requested to prepare a draft

judgment order in accordance with this opinion. Counsel for

defendants are also requested to prepare a chart for the use of the

court and the parties (and possibly the jury as well) that sets

forth or diagrams all of the claims remaining for trial, showing

which plaintiffs are claiming what against which defendants. 

Defendants are to submit the draft judgment order and chart to

opposing counsel for any objections by October 21, 2005.

Plaintiffs’ counsel is to confer with defendants’ counsel regarding

any objections between October 24 and October 31, 2005.

Plaintiffs’ objections shall be limited to the issue of whether the

draft judgment order and chart conform to this opinion. Any
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unresolved objections shall be submitted to the court in writing by

November 11, 2005. Defendants are to submit a final draft judgment

order and the final chart to the court within fourteen days after

the ruling on any objections. 

A status hearing is set for December 14, 2005, at 10:30 a.m.

to set a trial date. 

DATE: October 7, 2005

ENTER: ___________________________________________

John F. Grady, United States District Judge