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Plaintiffs, Jerome and Carla Pavlin, filed a nine-count complaint pursuant to 42 U.S.C. § 1983 and Illinois state law against defendants, McHenry County, McHenry County Sheriff Keith Nygren and McHenry County Sheriff’s deputies, alleging: (1) false arrest; (2) excessive force as to Jerome Pavlin; (3) excessive force as to Carla Pavlin; (4) failure to intervene; (5) illegal search of home; (6) civil conspiracy; (7) malicious prosecution as to Jerome Pavlin; (8) malicious prosecution as to Carla Pavlin; (8) respondeat superior liability as to Nygren; and (9) indemnification pursuant to the Illinois Tort Immunity Act, 745 ILCS 10/9-102. Now before the court are cross-motions for partial summary judgment. For the following reasons, defendants’ motion is granted in part and denied in part and plaintiffs’ motion is granted.

I. BACKGROUND

The following facts are taken from the Local Rule 56.1 statements of the parties. To the extent the facts are in dispute, the court will note such dispute and will consider the facts in the light most favorable to the nonmoving party. Plaintiffs are husband and wife and are residents of McHenry County. At the time of the incident, Jerome was 80 years old and Carla was 65 years old. Defendant Keith Nygren is the Sheriff of McHenry County.

Defendants Jeremy Bruketta, Kyle Mandernack, Trevor Vogel, Christopher Jones, Ryan Lambert, Greg Pyle and David Shepherd are McHenry County Sheriff’s deputies who at all times relevant to the complaint were acting in the course and scope of their employment and under color of state law, ordinance and/or regulation. Plaintiffs have sued the McHenry County Sheriff’s deputies in their individual capacities and defendant Nygren pursuant to a theory of respondeat superior.

On March 13, 2008, defendant Bruketta responded to a domestic call involving Carl Pavlin, plaintiffs’ son, and Isabel Pavlin, Carl’s wife. Bruketta went to Isabel and Carl’s residence in Lakemoor, Illinois, where Isabel told Bruketta that Carl battered her and was no longer at their house.

On March 14, 2008, Bruketta obtained a misdemeanor arrest warrant for Carl for the offense of domestic battery against Isabel. Later that day, Isabel told Bruketta that Carl was at plaintiffs’ house. Because plaintiffs’ house was outside the zone that Bruketta had been assigned to patrol that day, a patrol supervisor told Bruketta to have Jones, a deputy assigned to that zone, assist. Bruketta told Jones that he had an arrest warrant for Carl and that Carl was at plaintiffs’ house. Around 8:00 p.m., Bruketta met Jones and the two went to plaintiffs’ house, where Bruketta knocked on the door. Bruketta did not have a search warrant for plaintiffs’ house. Carl opened the door approximately six inches and refused when Bruketta asked him to step outside. Carl tried to close the door, but Bruketta and Jones pushed against the door to prevent him from doing so. Plaintiffs claim that Bruketta and Jones did not say anything to Carl before they forced entry into plaintiffs’ house and broke the stained glass window in the door, while defendants allege that the glass in the door broke as a result of Carl attempting to close the door while Bruketta and Jones attempted to hold the door open. Bruketta arrested Carl and placed him in handcuffs. Carl did not resist arrest. Bruketta walked Carl into the living room to get Carl’s shoes, where Jerome asked Bruketta and Jones what they were doing in his house. Carla, who had been in her bedroom, walked out to see what was happening and together with Jerome told Bruketta and Jones to leave the house. Bruketta told Jerome that they would leave after retrieving Carl’s shoes.

While plaintiffs claim that although neither Bruketta nor Jones requested back-up officers, Mandernack, Vogel and Lambert arrived and entered the house, in their version of the facts, defendants state that due to the property damage to plaintiffs’ house, Jones radioed his supervisor, Pyle, requesting assistance. Vogel, Mandernack and Lambert heard this request and proceeded to the scene to provide assistance if needed. After Carl got his shoes, Bruketta escorted him out of the house and placed him in a squad car, then returned to the house. Pyle arrived when Bruketta had Carl in custody and was escorting Carl out of the house. When Mandernack, Vogel and Lambert first arrived, they were informed that the subject of the arrest warrant was already in custody. Mandernack observed Jerome telling Jones, Mandernack, Vogel, Lambert and Pyle to leave his house. Jerome yelled at them for at least five to ten minutes after Carl was already in custody. Defendants state that Jerome swore at the officers, demanded to see their badges and began pulling at patches on their uniforms, prompting Jones to tell Jerome that if he continued to touch the officers, he would be arrested as well.

Defendants further state that meanwhile, Carla called the police and was informed by the central dispatch center that the deputies in her house were legitimate police officers.

After Carl was escorted out of the house, there was an altercation in the house between plaintiffs and Mandernack. Defendants and plaintiffs disagree on the details of this altercation. With respect to the altercation, defendants state facts as follows. Plaintiffs’ objections are noted where appropriate. Lambert and Vogel heard Mandernack exclaim that Jerome had spit in his face and observed what appeared to be spit on Mandernack’s face. Mandernack told Jerome that he was under arrest, and when Jerome did not comply, Mandernack grabbed one of Jerome’s wrists and moved him to the ground using a control technique known as an “arm bar.” Plaintiffs make no mention of spitting, and state that Carla observed Mandernack and Vogel “slam Jerome to the ground.”

They state that Bruketta kneed Jerome in the back and that Bruketta claimed in his deposition that he was outside the house at the time of the incident, but was recorded telling a dispatcher he was “on the ground cuffing people” at the time. While Vogel assisted Mandernack in putting handcuffs on Jerome, Vogel and Lambert observed Carla jump on Mandernack’s back, causing Mandernack to push her away by extending his right arm behind himself, such that Carla fell or stumbled backwards and struck her back on a shelf on a wall in the foyer.

Bruketta and Mandernack walked Jerome outside while Vogel remained in the foyer with Carla. Plaintiffs state that Carla did not jump on Mandernack’s back, but only attempted to get his attention by touching his shirt.

Plaintiffs further state that Lambert, Vogel and either Jones or Bruketta saw Mandernack push Carla into a granite shelf. Jones observed Carla seated on the floor and heard her complaining of back pain, so he radioed for an ambulance. Shepherd had been monitoring radio traffic and, when he heard the ambulance dispatch, decided to go to plaintiffs’ house. When an ambulance arrived, Carla was uncooperative, refused to answer paramedics’ questions and, although alert and oriented, refused treatment. Carla was eventually transported to Northern Illinois Medical Center. When Shepherd arrived at plaintiffs’ house, Carla was in the ambulance and Jerome and Carl were in the back seats of Mandernack’s and Bruketta’s squad cars, respectively. Shepherd spoke with Pyle, verified that there was nothing else to do, and left.

Plaintiffs state that there was no reason for defendants to remain in the house and that defendants had no indication that there were weapons in the house. Defendants state facts as follows. Pyle went into the house and noticed children’s toys, so he directed Jones, Vogel, Lambert and Mandernack to do a walk-through of the house to ensure that no one else was there because the house would be empty for an indeterminate period of time. One of the deputies found a small dog during the walk-through, so a County Animal Control Officer was called to take the dog until plaintiffs could return to their house. Pyle took photos of the door and interior to document the scene and condition of the house because there was property damage. Pyle, Vogel and Mandernack did not open cabinets or dresser drawers or conduct a search of the house other thanmaking sure no one else was present.

Defendants state that Mandernack and Lambert took Jerome to Northern Illinois Medical Center, where he received first aid for abrasions to his wrists believed to have been caused by the handcuffs, and Mandernack was tested for blood-borne pathogens, after which the deputies transported Jerome to the McHenry County Jail for booking. Defendants further state that Jones went to Northern Illinois Medical Center to check on Carla and was informed by hospital staff that Carla would be admitted.

Defendants state that the next morning, on March 15, 2008, Bruketta, Jones, Vogel and Mandernack dictated their narrative reports, but did not discuss the substance of the individual reports with one another. After the narrative reports had been transcribed, corrected and finalized, each was approved and signed by Pyle, the patrol supervisor for the incident.

Plaintiffs state that when Shepherd arrived at plaintiffs’ house, he gave Jones instructions about how to write his report to justify how the officers got into plaintiffs’ home. They further state that at the McHenry County Sheriff’s Department, Jones told Mandernack to have Lambert put false information in his report. When Jones observed Deputy Sheriff Zane Seipler at the patrol office, he instructed the other defendants to finish their reports the next day when Seipler would not be present. The next day, on March 15, 2008, Seipler went to work early and observed Jones, Bruketta and Mandernack working on their reports together. On May 28, 2009, Wendy Wesolek, a court services officer, met with McHenry County Assistant States Attorney Ryan Blackney and provided him information regarding plaintiffs’ arrest that she learned from Lambert. Wesolek told Blackney that Bruketta, Jones, Vogel and Mandernack got together the morning after the incident and wrote their reports together, and that Lambert told Wesolek that supervisors made suggested changes to what was written in the reports.

Plaintiffs state that Mandernack brought felony criminal charges against both Jerome and Carla, but that those charges were dismissed.

II. DISCUSSION

A court may only grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In evaluating such a motion, the court’s role is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Hemsworth, 476 F.3d at 490. The court must draw all reasonable inferences in the light most favorable to the party opposing themotion. Id. “Where the parties present two vastly different stories . . . it is almost certain that there are genuine issues of material fact in dispute.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

The Seventh Circuit has held that 42 U.S.C. § 1983 “is not itself a source of any substantive rights, but instead provides the means by which rights conferred elsewhere may be enforced.” Bublitz v. Cottey, 327 F.3d 485, 488 (7th Cir. 2003). The first step in a § 1983 suit is therefore to “isolate the precise constitutional violation with which [the defendants are] charged.” Baker v. McCollan, 443 U.S. 137, 140 (1979). To state a claim under § 1983, “a plaintiff must present facts sufficient to show that the defendants, acting under color of state law, deprived him of a specific right or interest secured by the Constitution or laws of the United States.” Bublitz, 327 F.3d at 488 (7th Cir. 2003).

 A. Defendants’ Motion for Partial Summary Judgment

In their motion for partial summary judgment, defendants concede that there may be an issue for the jury as to whether Mandernack used excessive force against Jerome and Carla and whether he had probable cause to arrest Jerome and Carla. Defendants contend, however, that there is no evidence for submission to a fact finder that

1. defendants’ entry into plaintiffs’ house was unlawful; 
2. any of the deputies other than Mandernack took unlawful actions in furtherance of the arrests of Jerome and Carla; 
3. any of the deputies other than Mandernack actively participated in the use of force or had any realistic opportunity to intervene; or 
4. defendants conspired.

Finally, defendants contend that all of the defendants except Mandernack are entitled to qualified immunity from liability because no defendant other than Mandernack did anything, except in good faith, that deprived plaintiffs of any federally-protected interest.

“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation marks omitted). Qualified immunity balances two important interests:

1. the need to hold public officials accountable for exercising power irresponsibly; and 
2. the need to shield officials from harassment, distraction and liability when they perform their duties reasonably. 

Id. Qualified immunity will apply “regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (quotation marks omitted).

In determining when qualified immunity shields a public official from a § 1983 claim, the court
undertakes a two-part inquiry. One part of the inquiry is whether the facts, viewed in the light most favorable to the plaintiff, show that the defendant’s conduct violated a constitutional right. Mannoia v. Farrow, 476 F.3d 453, 457 (7th Cir. 2007). The other part of the inquiry is whether the constitutional right was clearly established. Id. “If either of these prongs is not satisfied, then the individual is entitled to qualified immunity.” Tamayo v. Blagojevich, 526 F.3d 1074, 1090 (7th Cir. 2008).

For the purposes of their motion, defendants assume that Jerome did not spit in Mandernack’s face and that Carla did not jump on his back.

1. Unlawful Entry

Plaintiffs allege that defendants did not have probable cause to enter their house or, in the alternative, that probable cause evaporated once Jerome and Carla told them to leave. Defendants contend that exigent circumstances existed that justified their entry into plaintiffs’ house to prevent Carl from fleeing and their remaining in the house until it was secure.

Under the Fourth Amendment, a search warrant must be obtained, absent exigent circumstances or consent, for a law enforcement officer to legally search for the subject of an arrest warrant in the home of a third party. As the Seventh Circuit has recognized, the standard appears, at first glance, to be clear: that “[i]ntrusion into the home without a warrant by even a fraction of an inch, is too much.” Sparing v. Vill., 266 F.3d 684, 689 (7th Cir. 2001) (quotation marks omitted).

However, case law has shown that, in fact, “[t]he lines are not so clear . . . because exactly where outside ends and where the home begins is not a point immediately obvious.” Id. In United States v. Santana, for example, the Supreme Court held that an individual voluntarily standing in the threshold of her home (i.e., in an open doorway) is outside the home for purposes of the Fourth Amendment because she has knowingly exposed herself to “public view, speech, hearing, and touch” just as if she were standing outside. 427 U.S. 38, 42 (1976). The Seventh Circuit has held that where a suspect stands in his home behind a closed screen door, without a warrant, an arrest of that suspect could be completed only if

1. he opened his screen door and stepped outside of his home; or 
2. he acquiesced to a slight entry to complete the arrest. Sparing, 266 F.3d at 690.

Exigent circumstances exist where there is both a “compelling need for official action and no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509 (1978). Exigent circumstances may include the hot pursuit of a fleeing felon, preventing the imminent destruction of evidence, preventing a suspect’s escape, addressing the risk of danger to occupants of a home, or addressing the risk of danger to police. Minnesota v. Olson, 495 U.S. 91, 100 (1990); United States v. Collins, 110 F. App’x 701, 703 (7th Cir. 2004). To determine whether exigent circumstances were present, the court must “analyze the situation from the perspective of the officer at the scene.” Leaf v. Shelnutt, 400 F.3d 1070, 1081 (7th Cir. 2005). In assessing the risk of danger, it is appropriate for the court to consider “the gravity of the crime and likelihood that the suspect is armed.” Olson, 495 U.S. at 96.

Here, under the precedent of Sparing and other case law, the evidence before the court indicates that Carl was inside the home for Fourth Amendment purposes when defendants entered the house.

Defendants’ Local Rule 56.1 statement indicates that the front door of plaintiffs’ house was a “double, french-style door” and that Carl opened only one of the two doors about six inches when he answered the door at defendants’ knock. The depositions of Carl, Bruketta and Jones indicate that the doors opened inward. In his deposition, Carl states that he did not “[s]tick [his] face through the crack,” but only opened the door and then shut it when he saw the police.

In his deposition, Bruketta does not refute this version of the facts, but only states that Carl opened the door far enough so that Bruketta could see about three-fourths of Carl’s body, including his face. Jones similarly does not refute that Carl did not stick his face in the doorframe, but in his deposition only says that Carl opened the door slightly, not more than six inches.

Defendants do not state or suggest in either their depositions or their Local Rule 56.1 statement that Carl was in the threshold of the house when he answered the door, which would have put him outside the home for Fourth Amendment purposes. See Santana, 427 U.S. at 42.

The Seventh Circuit has held that “[a] person does not abandon [his] privacy interest in his home by opening his door from within to answer a knock.” United States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991).

Thus, answering defendants’ knock without entering the threshold does not place Carl outside the home such that officers could effect a warrantless arrest.

Further, plaintiffs’ Local Rule 56.1 statement indicates that Carl refused to step outside at defendants’ request and tried to close the door, but Bruketta and Jones prevented him from doing so.

This indicates that defendants’ entry into plaintiffs’ house would not be properly characterized as a legal “slight entry after the defendant has submitted to the police.” Id.

Carl did not submit to the police, and their entry was clearly not slight, as Bruketta and Jones had to force the door open, causing a glass pane in the door to break.

If Carl was not outside the home for Fourth Amendment purposes, defendants’ warrantless entry must have been either with consent or under exigent circumstances.

Here, there is no evidence of consent before the court.

As to the existence of exigent circumstances, there is no evidence before the court to indicate, nor do defendants claim, that defendants believed Carl to be armed when they arrived at plaintiffs’ house.

In their motion for summary judgment, defendants appear to allude to the fact that the officers may have believed that Carl would flee before they could obtain a search warrant for the house by including a quote from Hadley v. Williams in which the Seventh Circuit noted that a worry that a “criminal [will] flee the nest” constitutes exigent circumstances. 368 F.3d 747, 750 (7th Cir. 2004).

However, defendants do not actually state what exigent circumstances existed that warranted the officers’ entry.

Absent a clear statement of what exigent circumstances justified their entry, it would be inappropriate for the court to grant summary judgment in favor of defendants on this issue.

Defendants’ motion for summary judgment is therefore denied as to plaintiffs’ unlawful entry claim.

2. Unlawful Arrest

In their complaint, plaintiffs allege that Mandernack, Jones, Bruketta, Vogel and Lambert arrested them without an arrest warrant, probable cause, reasonable suspicion, or any other lawful basis to arrest or detain them in violation of their Fourth Amendment right to be free from unreasonable seizures. FN1

In their motion, defendants contend that the actions of Jones, Bruketta, in furtherance of Jerome’s arrest were based upon what Mandernack told them, and that nothing in the record suggests that there was any reason for the officers to believe that Jerome did not spit in Mandernack’s face. Defendants contend that it is undisputed that Carla physically touched Mandernack as he was arresting Jerome, that Mandernack pushed Carla, and that no officer other than Mandernack was involved in Carla’s arrest.

The Seventh Circuit has held that a defendant is entitled to qualified immunity on a false arrest claim if “a reasonable police officer in the same circumstances and with the same knowledge . . . as the officer in question could have reasonably believed that probable cause existed in light of well-established law.” Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998) (quotation marks omitted). It is reasonable for an officer to rely on the word of a fellow officer, thereby entitling him to qualified immunity from liability in a civil rights suit for unlawful arrest, “provided it was objectively reasonable for him to believe, on the basis of the statements, that probable cause for the arrest existed.” Duran v. Sirgedas, 240 F. App’x 104, 115 (7th Cir. 2007). “Whether an officer has probable cause to arrest depends on the requirements of the applicable state criminal law.” Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 761 (7th Cir. 2006). Under Illinois law, spitting on a police officer constitutes aggravated battery. See 720 ILCS 5/12-3.05(d)(4); Garcia-Meza v. Mukasey, 516 F.3d 535, 537 (7th Cir. 2008).

Here, Jones, Bruketta, Vogel and Lambert were informed by Mandernack that Jerome committed an aggravated battery against him.

The evidence presented to the court does not indicate that the officers had any reason to disbelieve their fellow officer when he told them that Jerome spit in his face, and so it was reasonable for them to rely on Mandernack’s word. Duran, 240 F. App’x at 115. In addition, Lambert and Vogel saw what appeared to be spit on Mandernack’s face.

The court finds that based on this undisputed evidence, it was objectively reasonable for Jones, Bruketta, Vogel and Lambert to believe that probable cause for Jerome’s arrest existed. See id. at *8-9 (reversing district court’s denial of summary judgment on an unlawful arrest claim, holding that two officers arriving as backup at a chaotic scene could reasonably believe probable cause existed based solely on a fellow officer’s statement to make an arrest).

As such, Jones, Bruketta, Vogel, and Lambert are entitled to qualified immunity with respect to plaintiffs’ unlawful arrest claim.

Defendants concede in their motion for summary judgment that there is a question of material fact as to whether Mandernack had probable cause to arrest Jerome and Carla.

Defendants’ motion for partial summary judgment on plaintiffs’ unlawful arrest claim is therefore granted as to Jones, Bruketta, Vogel, and Lambert.

3. Excessive Force

In their complaint, plaintiffs allege that Mandernack, Vogel and Lambert violated Jerome’s, and that Mandernack violated Carla’s, Fourth Amendment right to be free from the use of excessive and unreasonable force.

However, the complaint does not specify the precise manner in which plaintiffs allege that their rights were violated.

a. Legal Standard

“An officer who has the right to arrest an individual also has the right to use some degree of physical force or threat of force to effectuate the arrest, but that right is circumscribed by the Fourth Amendment’s insistence on reasonableness.” Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989) (citation omitted)). To determine whether the force was reasonable, the nature and quality of the intrusion on the individual’s Fourth Amendment interests must be weighed against the governmental interests at stake. Graham, 490 U.S. at 396. Reasonableness requires a consideration of the totality of the circumstances including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. These factors must be considered from the point of view of the officer at the time of the incident with the understanding that officers often need to make split-second judgments. Saucier v. Katz, 533 U.S. 194, 205 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009); Stainback, 569 F.3d at 772. When an arrestee is actively resisting arrest, is attempting to evade arrest, or is a threat to the safety of the officer or others, the use of more force is generally reasonable. See, e.g., Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 592-93 (7th Cir. 1997).

In their motion for partial summary judgment, defendants concede that “the existence of a right to be free from arrest without probable cause and without the use of unreasonable force is clear and free from doubt.”

Nevertheless, defendants contend that none of the defendants apart from Mandernack did anything in furtherance of Jerome’s arrest except based upon what Mandernack told them. They claim that nothing in the record suggests that there was any reason for any of the others not to believe Jerome had spit on Mandernack, and that Lambert and Vogel saw what they believed to be spit on Mandernack’s face at the time of Jerome’s arrest.

The Seventh Circuit has found that “[a]n officer who is present at the scene and fails to take reasonable steps to protect the victim of another officer’s use of excessive force can be held liable under section 1983 for his nonfeasance.” Thompson v. Boggs, 33 F.3d 847, 857 (7th Cir. 1994) (quotation marks omitted). However, an officer may not “be held liable for failing to intercede if he has no realistic opportunity to prevent an attack.” Id. (emphasis and quotation marks omitted).

b. Use of Force Against Carla and Jerome

The facts, when viewed in the light most favorable to plaintiffs regarding defendants’ alleged use of excessive force and failure to intervene, are as follows.

Jerome yelled at defendants after Carl was arrested.

Carla saw Mandernack and Vogel “slam Jerome to the ground,” Bruketta “kneel on Jerome’s back,” and saw that Bruketta and/or Vogel assisted Mandernack in handcuffing Jerome. Jerome received first aid for abrasions to his wrists believed to have been caused by the handcuffs at Northern Illinois Medical Center.

Carla attempted to get Mandernack’s attention by touching his shirt because Mandernack was injuring Jerome. Mandernack arose from handcuffing Jerome, turned to face Carla, and struck Carla in the chest, knocking her into a granite shelf.

The court notes that plaintiffs’ excessive force claim with respect to Carla only names Mandernack, and defendants have conceded that there may be a question for the jury as to whether Mandernack used excessive force with respect to both Carla and Jerome. The court further notes that while the complaint states that Lambert beat Jerome, plaintiffs make no mention of Lambert having any contact with Jerome in either their Local Rule 56.1 statement, their response to defendants’ Local Rule 56.1 statement, or their statement of additional facts pursuant to Local Rule 56.1(b)(3)(C). Rather, in their statement of additional facts, plaintiffs identify Mandernack, Vogel and Bruketta as the three officers involved in injuring Jerome.

Therefore, even viewing the evidence in the light most favorable to plaintiffs, plaintiffs have failed to allege facts sufficient to state a claim against Lambert for excessive force, and so defendants’ motion for partial summary judgment will be granted to as to plaintiffs’ use of excessive force claim against Lambert. Finally, the court notes that while plaintiffs allege that Carla saw Bruketta knee Jerome in the back, plaintiffs do not state an excessive force claim against Bruketta in their complaint.

The Seventh Circuit has held that injury is not an element of an excessive force claim; rather, it is evidence of the degree of force imposed and the reasonableness of that force. Chelios v. Heavener, 520 F.3d 678, 690 (7th Cir. 2008). Here, while plaintiffs state generally that Carla saw Mandernack injuring Jerome, they do not specify any particular injuries sustained by Jerome in their Local Rule 56.1 statement. However, the Seventh Circuit has held that a “failure to proffer evidence showing the severity of [the arrestee’s] injuries does not warrant summary dismissal.” Id. Therefore, plaintiffs’ failure to allege specific injuries sustained by Jerome is not dispositive.

The Seventh Circuit has found, for example, that there is a genuine issue of material fact for the jury where officers twist an arrestee’s arm, shove him against a wall and take him to the floor to be handcuffed, where the arrestee had not previously resisted any police action and informed the officers “I’m going peacefully, you don’t have to put handcuffs on me.” Morfin v. City of E. Chi., 349 F.3d 989, 993 (7th Cir. 2003).

Here, under plaintiffs’ version of the facts, Jerome neither committed a crime nor threatened defendants, but merely yelled at them. Although the court “might not use the terms ‘docile and cooperative’ to describe [Jerome],” under plaintiffs’ version of the facts, a reasonable jury could find that his conduct did not warrant being slammed to the ground and kneed in the back. Chelios, 520 F.3d at 690.

Therefore, defendants’ motion for summary judgment is denied with respect to plaintiffs’ excessive force claim against Jerome as to Mandernack and Vogel. FN2

c. Failure to Intervene with respect to the Use of Force Against Carla and Jerome

With respect to defendants’ alleged failure to intervene, the facts indicate that once Mandernack or Mandernack and Vogel made the decision to “slam Jerome to the ground,” that action happened nearly instantaneously. The same holds true for Bruketta’s decision to knee Jerome in the back and Mandernack’s decisions to strike Carla in the chest and to push her into the granite shelf.

Simply put, the facts before the court indicate that the events that allegedly violated plaintiffs’ Fourth Amendment rights happened in rapid succession, such that none of Bruketta, Vogel and Lambert had “a realistic opportunity” to prevent their fellow officer or officers from taking the actions here in question. Thompson, 33 F.3d at 857.

The court finds that there is no material dispute of fact as to this point, and so defendants’ motion for summary judgment is granted as to plaintiffs’ claim for failure to intervene to prevent the use of excessive force against plaintiffs.

4. Conspiracy

To state a claim for a § 1983 conspiracy against defendants, plaintiffs must allege that defendants reached an understanding to violate plaintiffs’ rights. See Brokaw v. Mercer Cnty., 235 F.3d 1000, 1016 (7th Cir. 2000).

Specifically, the Seventh Circuit has held that a government official is liable as a conspirator for the purpose of establishing liability under § 1983 if he is “a voluntary participant in a common venture, although [he] need not have agreed on the details of the conspiratorial scheme or even know who the other conspirators are . . . [so long as he] understands the general objectives of the scheme, accepts them, and agrees, either explicitly or implicitly, to do [his] part to further them.” McCann v. Mangialardi, 337 F.3d 782, 789-90 (7th Cir. 2003) (quotation marks omitted).

Beyond showing the existence of a conspiracy, the plaintiff must identify a specific right that was violated, as § 1983 authorizes recovery for conspiracy to violate a clearly-established right, not for the conspiracy itself. Easter House v. Felder, 852 F.2d 901, 920 (7th Cir. 1988).

Because there will rarely be direct evidence of an agreement between conspirators, a plaintiff may survive a summary judgment motion by sufficiently probative circumstantial evidence. Bell v. City of Milwaukee, 746 F.2d 1205, 1255 (7th Cir. 1984). Federal Rule of Evidence 801(d)(2)(E) provides that statements by a defendant’s co-conspirator made during the course and in furtherance of the conspiracy are not inadmissible hearsay.

Under plaintiffs’ version of the facts, when Shepherd arrived at plaintiffs’ house, he gave Jones
instructions about how to write his report to justify how the officers got into plaintiffs’ house.

At the McHenry County Sheriff’s Department, Jones told Mandernack to have Lambert put false information in his report.

When Jones observed Deputy Sheriff Zane Seipler at the patrol office, he instructed the other defendants to finish their reports the next day when Seipler would not be present.

The next day, on March 15, 2008, Seipler went to work early and observed Jones, Bruketta and Mandernack working on their reports together.

On May 28, 2009, Wendy Wesolek, a court services officer, met with Assistant McHenry County States Attorney Ryan Blackney and provided him information regarding plaintiffs’ arrest that she learned from Lambert.

Wesolek told Blackney that defendants got together the morning after the incident and wrote their reports together, and that Lambert told Wesolek that supervisors made suggested changes to what was written in the reports.

Here, plaintiffs allege that defendants conspired by generating false documents to cover up their own and each other’s misconduct.

They claim that defendants formed and communicated this plan to one another on March 15-16, 2008.

Plaintiffs have successfully stated a claim for a violation of Carla’s and Jerome’s Fourth Amendment rights as to the officers’ unlawful entry into their home and use of excessive force.

Viewing the evidence in the light most favorable to plaintiffs, plaintiffs have alleged facts sufficient to support a § 1983 conspiracy claim with respect to the violation of their Fourth Amendment rights.

There is sufficiently probative circumstantial evidence that the officers agreed, at least implicitly, to include false information in their reports with the intent of obscuring violations of plaintiffs’ Fourth Amendment rights.

Plaintiffs need not show that defendants agreed on the details of such scheme or even that defendants knew which of the other officers were involved in the alleged conspiracy in order to survive amotion for summary judgment. McCann v. Mangialardi, 337 F.3d at 789-90.

Defendants’ motion for partial summary judgment is therefore denied as to plaintiffs’ § 1983 conspiracy claim.

B. Plaintiffs’ Motion for Partial Summary Judgment

In their motion, plaintiffs request summary judgment on Count V of their complaint, claiming that defendants violated their Fourth Amendment rights by entering their house to arrest Carl and reentering and/or remaining in their house after Carl had been removed and placed in a squad car.

Plaintiffs contend that no exigent circumstances existed to justify defendants’ warrantless entry into their house.

In their response, Defendants claim that they did have probable cause to enter the home; that Carl was located in the threshold of the home, a public area; and that exigent circumstances existed because Carl attempted to shut the door and retreat into the house and because defendants needed to be sure the home was secure after the glass pane in the door was broken.

Here, viewing the facts in the light most favorable to defendants, the court concludes that summary judgment is appropriate as to plaintiffs’ claim that defendants violated their Fourth Amendment rights by entering their house to arrest Carl.

As in their motion for partial summary judgment, in their response to plaintiffs’ motion, defendants do not specify the exigent circumstances that warranted their entry into plaintiffs’ house, but seem to focus their argument on a claim that Carl was in the threshold of the house, a public place.

As the court reasoned above, there is no evidence before the court to suggest that Carl was in the threshold of the home at the time of his arrest.

Rather, the evidence before the court demonstrates that Carl was not in the threshold at the time of his arrest, as he opened the door only a few inches and did not stick his face in the door to see the officers.

Further, defendants’ statement that Carl closed the door and “tried to escape into the house” is insufficient to establish that exigent circumstances existed to justify defendants’ entry into the house.

While entry may be justified to prevent a suspect’s escape, an escape “into the house” is not an exigent circumstance.

Rather, defendants would have to show that they had a concern that Carl would escape from, not into, the house, and would do so before defendants could obtain a search warrant for the house. United States v. Patino, 830 F.2d 1413, 1416 (7th Cir. 1987) (finding that exigent circumstances were not present where four police officers could have surrounded the suspect’s home to prevent a possible escape attempt while obtaining a telephonic warrant to search the suspect’s house); see also United States v. Green, 41 F.3d 1511, 1994 WL 622147, at *2 (7th Cir. 1994) (finding that exigent circumstances existed to prevent the escape of a suspect when officers learned that a person was hanging his foot, arms and head out of a second-floor window in an apparent escape attempt).

Even viewing the facts in the light most favorable to defendants, defendants have not identified evidence to support their position that exigent circumstances existed to justify their otherwise unlawful entry into plaintiffs’ house.

Plaintiffs’ motion for partial summary judgment is therefore granted.

III. CONCLUSION

Defendant’s motion for partial summary judgment is:

(1) denied as to plaintiffs’ unlawful entry claim;

(2) granted as to plaintiffs’ unlawful arrest claims against Jones, Bruketta, Vogel and Lambert; FN3

(3) granted to as to plaintiffs’ use of excessive force claim as to Jerome against Lambert;

[Note that there is no (4).]

(5) denied as to plaintiffs’ use of excessive force claim as to Jerome against Vogel; FN4

(6) granted as to plaintiffs’ claim for failure to intervene to prevent the use of excessive force against plaintiffs; and

(7) denied as to plaintiffs’ conspiracy claim. Plaintiffs’ motion for partial summary judgment is granted.


Foot Note 1. The court notes that although plaintiffs allege this cause of action only against Mandernack, Jones, Bruketta, Vogel and Lambert in the complaint, in their response to defendants’ motion for summary judgment, plaintiffs assert that their false arrest claim is directed against Pyle as well.

Foot Note 2. The court notes that the Seventh Circuit has, on occasion, recognized valid excessive force claims based on overly tight handcuffs. See, e.g., Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003). Plaintiffs do not specify whether they are making an excessive force claim based on overly tight handcuffs. Indeed, plaintiffs do not mention in their Rule 56.1 statement that Jerome was treated at Northern Illinois Medical Center for wrist injuries. To the extent plaintiffs make an excessive force claim based on overly tight handcuffs, however, the court need not reach this issue because the court has already concluded that questions of material fact exist as to other elements of plaintiffs’ excessive
force claim.

Foot Note 3. As stated above, defendants do not seek summary judgment on plaintiffs’ unlawful arrest claim against Mandernack.

Foot Note 4. As stated above, defendants do not seek summary judgment on plaintiffs’ excessive force claims against Mandernack.