Rex v. City of Milwaukee (321 F. Supp. 2d 1008, 2004)

DECISION AND ORDER

ADELMAN, District Judge.

Plaintiff Candy Rex brings this action under 42 U.S.C. § 1983 alleging that defendants, Rudolph Verhoeven and Gilbert Gwinn, City of Milwaukee police officers, violated her rights under the Fourth and Fourteenth Amendments by employing excessive force in the course of arresting her. Plaintiff also alleges that the City of Milwaukee violated her rights by failing to properly train the officers concerning proper arrest procedures. The action was commenced in state court and defendants removed it based on federal question jurisdiction. See 28 U.S.C. § 1331. Before me now are the motions for summary judgment brought by defendants Verhoeven, Gwinn and the City.

I. FACTS

On July 8, 2002 at about 12:30 p.m., a City of Milwaukee Alderman, Robert G. Donovan, called the police and reported that he had been solicited by a woman in the area of South 21st Street and Greenfield Avenue. Verhoeven and Gwinn were dispatched to the scene where they observed plaintiff, whose clothes matched those described by Donovan, run into an adjacent apartment building. The officers entered the building and noticed that the door to a second floor apartment was open, and that plaintiff and a man were seated at a table in the apartment. Gwinn entered the apartment and directed plaintiff to go into the hallway and speak to Verhoeven. Plaintiff did so, and Verhoeven advised her that she was being arrested for loitering for purposes of prostitution.

Verhoeven then grabbed plaintiffs right arm in order to cuff her hands behind her back. Plaintiff states that she told him that she had a disability that prevented her from placing her hands behind her back. She did, in fact, have such a disability. Plaintiff states that when she advised the officer of her disability, he told her to knock it off and continued to pull on her arm. She states that she repeated that she could not place her hands behind her back because she had undergone shoulder fusion, but Verhoeven ignored her statement, continued to yank on her arm and told her that if she didn’t knock it off he would charge her with resisting. Plaintiff states that she did not resist. Verhoeven denies that plaintiff informed him that she had a disability.

Gwinn states that he heard Verhoeven tell plaintiff to stop resisting, at which point he stepped into the hallway, grabbed plaintiffs left arm and started to pull it behind her back. When he did this, everyone heard a pop, and plaintiff collapsed on the floor. The officers called an ambulance, and plaintiff was conveyed to a hospital where it was determined that she had suffered an epileptic seizure and a broken arm. As a result of the broken arm, she underwent multiple surgeries.

The officers state that an arrestee’s hands are typically cuffed behind the back but, if the arrestee has a disability that prevents such cuffing, his or her hands may be cuffed in front. The officers ultimately did not arrest plaintiff but issued citations for loitering for purposes of prostitution and resisting arrest. Plaintiff pleaded no-contest to the former charge and was acquitted after trial of the latter.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is required “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 judgment as a matter of law.” Fed. R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For a dispute to be “genuine,” the evidence must be such that a “reasonable jury could return a verdict for the nonmoving party.” Id. For the fact to be “material,” it must relate to a disputed matter that “might affect the outcome of the suit.” Id.

Although summary judgment is a useful tool for isolating and terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), courts should act with caution in granting summary judgment, Anderson, 477 U.S. at 255, 106 S.Ct. 2505. When the evidence presented shows a dispute over facts that might affect the outcome of the suit under governing law, summary judgment must be denied. Id. at 248, 106 S.Ct. 2505.

The moving party bears the initial burden of demonstrating that it is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. The movant may meet its burden by demonstrating that there is an absence of evidence to support the non-moving party’s case. Id. at 325, 106 S.Ct. 2548. Once the moving party’s initial burden is met, the nonmoving party must go beyond the pleadings and designate specific facts to support each element of the cause of action, showing a genuine issue for trial. Id. at 322-23, 106 S.Ct. 2548. Neither party may rest on mere allegations or denials in the pleadings, Anderson, 477 U.S. at 248, 106 S.Ct. 2505, or upon conclusory statements in affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989).

In evaluating a motion for summary judgment, the court must draw all inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, it is “not required to draw every conceivable inference from the record — only those inferences that are reasonable.” Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

III. DISCUSSION

In order to prevail on a § 1983 claim, plaintiff must show that defendants (1) deprived her of a federal constitutional right (2) while acting under color of state law. See, e.g., Reed v. City of Chi, 11 F.3d 1049, 1051 (7th Cir.1996). It is undisputed that, in the present case, the officers acted under color of state law. I therefore turn to the issue of whether plaintiff was deprived of her constitutional right not to be subjected to excessive force.

A. Excessive Force

The Fourth Amendment protects persons against unreasonable searches and seizures. U.S. Const, amend. IV. All claims that law enforcement officers have used excessive force in the course of an arrest, investigatory stop or other “seizure” of a citizen who is not in custody are analyzed under the Fourth Amendment and its “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). A seizure occurs whenever an officer restrains the freedom of a person to walk away. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Thus, when the officers attempted to handcuff plaintiff, they seized her within the meaning of the Fourth Amendment.

Reasonableness under the Fourth Amendment involves balancing the extent of the intrusion against the need for it. Gamer, 471 U.S. at 5, 105 S.Ct. 1694. Determining whether acts are reasonable requires careful attention to the facts and circumstances of the case. Graham, 490 U.S. at 396, 109 S.Ct. 1865. Three important factors to consider are the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether she is actively resisting arrest or attempting to evade arrest by flight. Id.; see also Frazell v. Flanigan, 102 F.3d 877, 882-83 (7th Cir.1996), abrogation on other grounds recognized by McNair v. Coffey, 279 F.3d 463, 464-66 (2002).

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. 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 necessary in a particular situation. Graham, 490 U.S. at 397, 109 S.Ct. 1865. The- reasonableness inquiry is an objective one: whether the officer’s actions were “objectively reasonable” in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force, nor will an officer’s good intentions make an objectively unreasonable use of force constitutional. Id.

In the Seventh Circuit, the test of whether a search and seizure challenged under the Fourth Amendment is unlawful is the same as the test of negligence at common law: unreasonableness in the circumstances. Villanova v. Abrams, 972 F.2d 792, 796 (7th Cir.1992). In Villanova, Judge Posner expressed this test in terms of Learned Hand’s famous formula for negligence, B