Below the complete in a case with 10 mentions of the word “ninja” as slang nickname for emergency response teams in a detention facility accused of using excessive force. Recall also ERT’s called Ninja Turtles.

JAMES P. NEILIS, JR., Plaintiff, v. BRENDAN D. WARD, individually and in his official capacity as Sheriff of Will County, et al., Defendants.
No. 98 C 5125
2000 U.S. Dist. LEXIS 14091
September 21, 2000, Decided
September 22, 2000, Docketed

Memorandum Opinion and Order by Judge William T. Hart

Plaintiff James Neilis, Jr. alleges that, while being processed at the Will County Adult Detention Facility (“WCADF”), he was severely beaten by three Will County deputy sheriffs and a correctional officer. Named as defendants in their individual capacities are deputy sheriffs Jeff Turngren, Andrew Carlson, and Stanley Lantka and correctional officer Brent Graham. James Fetzner, former Facility Administrator (Warden) of the WCADF, is also sued in his individual capacity. 1 Named in his individual and official capacities is Will County Sheriff Brendan Ward. Presently pending is defendants’ motion for summary judgment.

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1 Fetzner was also named in his official capacity, but, since he is no longer the Warden, it is no longer appropriate to sue him in that capacity. It is unnecessary to substitute in the current Warden since the Sheriff is also named in his official capacity.

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On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104, 132 L. Ed. 2d 257, 115 S. Ct. 2249 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:

The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 (“the burden on the moving party may be discharged by ‘showing’–that is, pointing out to the district court–that there is an absence of evidence to support the nonmoving party’s case”). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). “The mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

Furthermore, pursuant to Local Rule 56.1(a)(3), the party moving for summary judgment is required to provide a statement of material facts as to which the moving party contends there is no genuine issue. The statement is to be in the form of numbered paragraphs. The nonmovant is to reply to each paragraph, either admitting it is uncontested or stating the nonmovant’s disagreement and specifically citing to supporting materials showing there is a genuine factual dispute. Loc. R. 56.1(b)(3)(A). The nonmovant is also to provide a statement of additional facts, if any, that would defeat summary judgment, again in the form of numbered paragraphs with supporting citations. Loc. R. 56.1(b)(3)(B). “All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.” Id. Expressing disagreement with a fact contained in the movant’s Rule 56.1(a)(3) statement without providing a citation to materials supporting that dispute is a basis for deeming the movant’s factual assertions to be true. Garrison v. Burke, 165 F.3d 565, 567 (7th Cir. 1999); Valenti v. Qualex, Inc., 970 F.2d 363, 369 (7th Cir. 1992); Skagen v. Sears, Roebuck & Co., 910 F.2d 1498, 1500 (7th Cir. 1990). Failing to provide a paragraph-by-paragraph response to the movant’s statement can also be a basis for deeming the movant’s statement to be admitted. See Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316-17 (7th Cir. 1995). However, it is within the district court’s discretion as to how strictly to apply its own rules. Dade v. Sherwin-Williams Co., 128 F.3d 1135, 1140 (7th Cir. 1997); Weeks v. Samsung Heavy Industries Co., 126 F.3d 926, 938 n.5 (7th Cir. 1997); Midwest Imports, 71 F.3d at 1316-17; Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir. 1992); Gabriel v. City of Chicago, 9 F. Supp. 2d 974, 975 n.2 (N.D. Ill. 1998); United States v. 47 West 644 Route 38, Maple Park, Ill., 962 F. Supp. 1081, 1084 n.2 (N.D. Ill. 1997).

In support of their motion for summary judgment, defendants filed a fully supported Rule 56.1(a)(3) statement. Plaintiff responded to defendants’ statement, but instead of specifically responding to each paragraph, plaintiff responded to sections and did not expressly identify the statements of plaintiff with which he disagreed. Plaintiff’s response is an unclear presentation that makes the court’s and the parties’ tasks more difficult and defeats, in significant part, the purposes of Local Rule 56.1. Nevertheless, to the extent plaintiff’s factual contentions are supported by citations and can be discerned, they will be considered. Counsel for plaintiff, though, is admonished to fully comply with the Local Rules in any future filings with this court.

Defendants present two arguments. The first argument is that there is no evidence linking plaintiff’s injuries to a beating. Defendants apparently contend that plaintiff’s ear was lacerated after he was placed in a holding cell. Plaintiff, however, testified that he was beaten by the four officers and that this beating caused the ear injury. On summary judgment, plaintiff’s testimony must be assumed to be true. Defendants instead focus on the question of whether a subdural hematoma that was discovered two weeks after the beating, and which required surgery and possibly resulted in permanent injury, was caused by the beating. Regardless of whether the subdural hematoma was caused by a beating inflicted by defendants, there are other injuries caused by the beating. Therefore, a lack of injury is not a basis for dismissing plaintiff’s claim. It still could be appropriate to grant partial summary judgment precluding any claim for damages based on the subdural hematoma. However, plaintiff’s treating physician’s testimony is sufficient to support that the subdural hematoma was caused by a beating administered two weeks prior to its discovery. Since there is also evidence supporting that such a beating occurred, a genuine factual dispute exists as to whether the subdural hematoma and related symptoms and injuries were caused by the beating. The claims against the four officers who allegedly inflicted the beating will not be dismissed.

The other issue raised by defendants is that the claims against Ward and Fetzner should be dismissed because there is no showing that the beating, which must be assumed to have occurred, was caused by a municipal policy or custom. In order to find Ward liable in his official capacity, it must be shown that the excessive force used on plaintiff was pursuant to a policy or custom of the Sheriff. See Board of County Commissioners of Bryan County, Okla. v. Brown, 520 U.S. 397, 403, 137 L. Ed. 2d 626, 117 S. Ct. 1382 (1997). “It is not enough for a ยง 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. at 404. “Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Id. at 405. Where it is claimed that an employee was encouraged to act unlawfully by his or her recognition that the municipality would not act to stop such conduct, it must be shown that the municipality continued to adhere to an approach that it knew or should have known had failed to prevent tortious conduct in the past and was likely to result in such conduct in the future. See id. at 407; Robles v. City of Fort Wayne, 113 F.3d 732, 736 (7th Cir. 1997). The municipality must have acted with deliberate indifference to the known or obvious consequences. Brown, 520 U.S. at 407; Robles, 113 F.3d at 736-37; Young v. County of Cook, 1999 U.S. Dist. LEXIS 19041, 1999 WL 1129108 *4 (N.D. Ill. Dec. 7, 1999).

As to Ward’s and Fetzner’s individual liability, there is no contention that either of them was directly involved in the excessive force or even any contention that either had knowledge of the particular incident. Instead, it is claimed that they are liable for having been personally involved in formulating and directing the claimed municipal policy or custom, Del Raine v. Williford, 32 F.3d 1024, 1052 (7th Cir. 1994); Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986), or because they knew about the policy or custom and facilitated it, approved it, condoned it, or turned a blind eye to it, Del Raine, 32 F.3d at 1052; Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). It still must be shown that they acted knowingly or with deliberate indifference. Id.

Plaintiff contends that Ward and Fetzner turned a blind eye to a prevalent use of excessive force at the WCADF. In particular, plaintiff contends that Emergency Response Team members 2 use excessive force in their treatment of detainees.

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2 Such officers are referred to as “E.R.T.’s” and the nickname “Ninjas,” because they dress in black garb.

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The first question to consider is whether plaintiff has presented adequate evidence of frequent episodes of the use of excessive force. The incident in question occurred on November 4, 1996. Plaintiff points to a report of “facility assaults and use of force” for 1998. Even assuming an inference can be drawn that a similar level of incidents existed in 1996, 3 the report does not show a prevalence of excessive force. This report states that, in 1998, there were 94 incidents of “inmate vs. staff” and 8 incidents of “inmate vs. inmate” assaults. Thirty-eight of those incidents resulted in injuries that were treated at the WCADF; none required treatment at a hospital. Without additional documentation such as incident reports of the individual incidents or testimony of those involved, the precise nature of the injuries is not shown. Almost all of the incidents involved the use of physical restraint. Twenty-nine of the incidents involved the use of capstun, a pepper-spray form of mace. Again, without additional detail, it cannot be known whether any of the force used was an excessive response. Plaintiff has not shown a prevalent use of excessive force in 1998.

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3 No similar report exists for 1996.

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Although not provided with a statistical report for 1996, plaintiff was provided with incident reports for the six months preceding and three months following plaintiff’s incident. Therefore, plaintiff had access to discovery from which he could have proven the existence of a prevalent use of excessive force if such existed. Plaintiff, though, does not point to any of these reports either as evidence of the excessive use of force or as evidence that defendants were aware of past incidents of excessive force. Instead, plaintiff relies on the testimony of four former inmates.

James Blair testified that, while at WCADF, a guard punched him in the shoulder and jerked him back because he was across a yellow line. 4 He does not testify that he suffered any significant injury. This incident is not shown to be excessive force and Blair states that he did not report this incident. Blair also states that, in 1997, he was thumped on the head by a desk sergeant when being discharged from the WCADF. He described it as a “good indication thump,” but not hard enough to leave any “knots.” 5 Additionally, Blair describes witnessing incidents involving other inmates. Only one description provides any semblance of detail 6 and it apparently describes an incident occurring sometime shortly after 1973. In that incident, Blair states that two inmates had already stopped fighting when Ninjas arrived and they stomped and kicked the inmate, and “everything else.”

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4 Deposition excerpts are provided and the excerpts do not always state the dates of the incidents described by Blair. Testimony is provided that he was at WCADF a number of times beginning in 1973. Since defendants do not object, the punching incident, for which a date is not provided, will be assumed to have occurred within a year prior to November 1996.5 Blair also describes force used to arrest him at his house. Although deputy sheriffs conducted the arrest, that incident is not pertinent to the prevalence of excessive force at the WCADF. Also, it occurred in approximately 1989.6 Plaintiff cites to page 41 of Blair’s transcript as referring to five or six beatings by Ninjas when Blair was first incarcerated. However, page 41 was not provided. But even assuming the incidents are described with sufficient detail and that they involved the use of excessive force, such incidents would have occurred in the mid-1970’s. Plaintiff also refers to Blair’s testimony regarding an inmate being thrown down stairs. But Blair’s entire testimony as to this incident is: “Yeah, I seen one guy get thrown down a set of stairs–not thrown–.” Blair Dep. 47. That is insufficient to establish when the incident occurred nor its nature.

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David Pierce was at the WCADF from October 31 through November 4, 1996. He describes one incident in which four or five officers, including Ninjas, dragged a detainee down a stairway with his head hitting the stairs and the detainee screaming. They also kicked the detainee both while on the stairs and when on the floor at the bottom of the stairs. Pierce did not see what preceded the dragging. Pierce also testified about an incident that occurred in 1994 when he was being processed for a DUI arrest. He saw Ninjas “knocking the hell out of” a handcuffed detainee in the booking area who had been unruly.

Chad Carter was in the WCADF in July 1996. He witnessed a detainee being dragged down stairs by officers, including Ninjas. His feet and sometimes his waist were hitting the stairs, but his head was held up so it did not hit the stairs. The Ninjas had batons. The detainee was taken into a room where Carter could not see what was happening, but the door was ajar so he could hear what was happening. He heard the inmate screaming and sounds that he understood to be kicking and hitting.

Elbert Barnes was in the WCADF from January to March 1997, for eight days in December 1997, and for six days in April 1998. He was never hit by any guards, but testified that he witnessed detainees being “throwed around” six or seven times. During the early 1997 stay, he saw a detainee “beat up” by Ninjas and other officers. The detainee was cuffed, but tried to fight with his legs. Barnes did not see what started the incident. He saw the officers push the detainee against the door and kick him.

Taking the 1996 incidents described by Pierce and Carter and the early 1997 incident described by Barnes as being excessive force, plaintiff’s evidence only includes three incidents of excessive force during the time preceding and immediately following his own November 1996 beating. WCADF generally houses approximately 350 detainees.

Some cases have held a custom or policy can be inferred from three incidents. See, e.g., Shaw v. Stroud, 13 F.3d 791, 800 (4th Cir.), cert. denied, 513 U.S. 813, 814, 513 U.S. 814, 130 L. Ed. 2d 24, 115 S. Ct. 67 (1994) (summary judgment); Sekerak v. City & County of Denver, 1 F. Supp. 2d 1191, 1199 (D. Colo. 1998) (motion to dismiss); Perkins v. Village of Lincolnshire, 1996 U.S. Dist. LEXIS 15630, 1996 WL 613159 *3 (N.D. Ill. Oct. 22, 1996) (motion to dismiss). In such cases, however, the incidents are often more closely linked because they were all committed by one person or against one person. See, e.g., Shaw, 13 F.3d at 799-800 (same supervisor inadequately responded to three assaults by the same police officer); 7 Sekerak, 1 F. Supp. 2d at 1198-99 (same supervisor also retaliated against three other employees who had supported the same political candidate); Perkins, 1996 U.S. Dist. LEXIS 15630, 1996 WL 613159 at *3 (each of three times that plaintiff encountered village’s police officers, he was subjected to an unlawful arrest).

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7 The court also considered evidence that, although one of twenty troopers, 26 of 55 charges of assaults on an officer or resisting arrest were made by this trooper. Shaw, 13 F.3d at 800.

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A pervasive practice of using excessive force cannot be inferred from the three incidents that plaintiff has proven. Although all involve Ninjas, the evidence does not establish that the same Ninjas were repeatedly using excessive force. Three differing incidents over an approximately one-year period in a facility housing 350 detainees is not enough to infer that the use of excessive force is pervasive and widespread. Plaintiff has not presented evidence sufficient to show that, as of November 1996, a custom or policy of using excessive force existed at the WCADF. Cf. Snyder v. City of Topeka, 884 F. Supp. 1504, 1511 (D. Kan. 1995) (undetailed testimony as to two or three instances of retaliation inadequate to show widespread and persistent pattern of retaliation). Moreover, there is no evidence that Ward or Fetzner were aware of any of these incidents or that they took particular actions to avoid finding out about such incidents. The incidents certainly are not so prevalent that a deliberate attempt to avoid knowledge can be inferred. Plaintiff has failed to show a deliberately indifferent custom or policy of allowing the use of excessive force. The claims against Ward and Fetzner will be dismissed.

IT IS THEREFORE ORDERED that defendants’ motion for summary judgment [30-1] is granted in part and denied in part. The individual and official capacity claims against defendants Ward and Fetzner are dismissed. In open court on November 8, 2000 at 11:00 a.m., the parties shall present an original and one copy of a topbound, final pretrial order in full compliance with Local Rule 16.1 and Local Rule Forms 16.1.1 and 16.1.2.