Opinion
99 C 50154
July 2, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Mark Brunt, has filed a four-count first-amended complaint alleging, among other things, a claim under 42 U.S.C. § 1983 that Freeport Police Officer Fred Cuss and Auxiliary Officer Wendell McClain used excessive force during Brunt's arrest on May 8, 1998 (Count I) and a claim against Samuel Volkert in his official capacity as the Stephenson County Sheriff for compensatory damages under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131-34 ("ADA"), arising out of his subsequent incarceration at the Stephenson County Jail (Count IV). Jurisdiction and venue are proper under 28 U.S.C. § 1331, 1391. Cuss and McClain have filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 as to Count I and Volkert has done the same as to Count IV.
Although Brunt has sued Cuss and McClain in both their individual and official capacities, he has made no attempt to show a "policy or custom" on the part of the city of Freeport. See Monell v. Department of Soc. Serv., of the City of New York 436 U.S. 658, 694 (1978). The court therefore dismisses the official capacity claims against these two defendants.
With Cass and McClain raising the defense of qualified immunity to Count I, the court must first consider the "threshold question" of whether the facts, taken in the light most favorable to Brunt, establish a constitutional violation. See Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001). On this issue, the court finds Cass and McClain did not use an objectively unreasonable amount of force to effectuate the arrest of Brunt. See Graham v. Connor 490 U.S. 386, 397 (1989). After arresting Brunt, who is a paraplegic, for driving his moped with a revoked driver's license, Cuss and McClain picked him up bodily and carried him over to their squad car — a distance of approximately ten feet McClain then guided Brunt's feet into the floor of the back seat, causing Brunt's legs to spasm and his entire body to "straighten out." Because Brunt admits Cass may have felt resistance from Brunt's legs, and because Cuss and McClain were justified in not taking the handcuffs off Brunt to let him get into the car himself, some force — i.e., some twisting and shoving — was needed to get the rest of Brunt's body inside the squad cur. Brunt colorfully describes Cuss "corkscrewing" him into the car at this point, but even under Brunt's version of the facts Cuss turned and pivoted Brunt no more than was reasonably necessary to overcome the spasm that had taken hold of him. Cass had to get Brunt into the car and Brunt's body (though not Brunt himself) was resisting Cuss' efforts. The court can find nothing in the record to suggest Cuss gratuitously pushed or shoved Brunt for no reason at all, cf. Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996), and concludes that the force used was objectively reasonable under the circumstances. See, e.g., Chapman v. Keltner, 241 F.3d 842, 847 (7th Cir. 2001) (finding officers used objectively reasonable amount of force in assisting arrestee, who had just been discharged utter bowel resection surgery, into police van despite fact that stepping up into van caused arrestee's incision to open up and bleed).
The court's finding that Cuss did not use excessive force during Brunt's arrest similarly disposes of Brunt's "failure to intervene" claim against McClain. See Gossmeyer v. McDonald 128 F.3d 481, 494 (7th Cir. 1997).
Alternatively, even assuming questions of fact remain on whether Cuss and McClain's use of force was objectively reasonable, the court finds they are nevertheless entitled to qualified immunity. See Saucier, 121 S.Ct. at 2156-60. Although it is Brunt's burden to demonstrate the constitutional right at issue was "clearly established," Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000), he has completely failed to point to a single closely analogous case that establishes a right to be free from the type of force Cuss and McClain used on him. See Clash. 77 F.3d at 1048. Instead, the hyperbole in Brunt's response brief about being "thrown" and "tossed" into the squad cur seems to imply (tough he does not actually come out and say it) that his is one of those "rare cases" in which the officers' conduct was so egregious and the constitutional violation so "patently obvious" that there are no analogous cases from which to compare. See Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001); Jacobs, 215 F.3d at 767. In short, it is not First, in light of the discussion above regarding the amount of force actually used by Cuss and McClain to put Brunt into the squad car, Brunt has failed to show the force was "so plainly excessive . . . as an objective matter" that the officers were on notice that they were violating the Fourth Amendment. See Clash 77 F.3d at 1048. Second, Brunt admits Cuss conferred with his superior officer, Sgt Brian Kuntzelman, about how to transport Brant to the jail and it was Kuntzelman who decided to put Cuss in the squad car rather than call an ambulance. Brunt also does not dispute that the method of transporting Brunt was not only similar to another instance in which Freeport police officers arrested a paraplegic, but it also did not violate any policy of the Freeport police department. Thus, the court finds that, even if Cuss and McClain were wrong, reasonable officers in their position could have mistakenly believed the manner in which they put Brunt in the squad car was lawful.See Saucier, 121 S.Ct at 2158; Ulichny v. Merton Comm Sch. Dist., 249 F.3d 686, 706 (7th Cir. 2001).
As for Count IV, the heart of Brunt's ADA claim is that, when he was placed in a "work release cell" with eight or nine other inmates at the Stephenson County Jail, Correctional Officer Mark Thompson took Brunt's wheelchair away for the duration of the night, leaving Brunt unable to use the toilet inside the cell. As the Supreme Court made clear inPennsylvania Department of Corrections v. Yeskey. 524 U.S. 206 (1998), Title II of the ADA applies to prisons and prisoners. See id. at 209-10. Moreover, the court believes the use of a toilet is arguably a "service" of the prison. See 42 U.S.C. § 12132. And notwithstanding Volkert's rather implausible argument to the contrary, it seems obvious to the court Brunt was denied the use of the toilet "by reason of" his disability. See, id; Love v. Westville Corr. Center 103 F.3d 558, 560 (7th Cir. 1996). The court also finds questions of that remain on whether allowing Brunt to use his wheelchair inside the cell was a "reasonable" accommodation. See 42 U.S.C. § 12131 (2).
For the reasons stated above, Cuss and McClain's motion for summary judgment is grunted and Count I is hereby dismissed; Volkert's motion for summary judgment on Count IV is denied.