Holman v. Carey

• Decision Date: 26 September 2022
• Docket Number: 18-cv-05246
• Parties: DARRYL E. HOLMAN, Plaintiff, v. MARK CAREY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

DARRYL E. HOLMAN, Plaintiff,
v.
MARK CAREY, Defendant.

No. 18-cv-05246

United States District Court, N.D. Illinois, Eastern Division

September 26, 2022

MEMORANDUM OPINION AND ORDER

Andrea R. Wood United States District Judge

After an extended slow-motion car chase, Aurora police officers arrested Plaintiff Darryl E. Holman for numerous alleged offenses, including aggravated driving under the influence and fleeing and eluding. Holman subsequently sued one of the arresting officers, Defendant Mark Carey, under 42 U.S.C. § 1983, claiming that Carey used excessive force during Holman's arrest. Now before the Court are Holman's and Carey's cross-motions for summary judgment. (Dkt. No. 64, 67.) For the reasons provided below, both motions are denied.

BACKGROUND

Unless otherwise noted, the following facts are undisputed.^[1]

On the evening of August 23, 2017, Holman picked up and drove his car from a car dealership to his sister's house, and then to a laundromat in downtown Aurora, Illinois. (Pl.'s Resp. to Def.'s Statement of Facts (“PRDSF”) ¶¶ 1-4, Dkt. No. 73.)

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After leaving the laundromat, Holman drove down a street with a female passenger in the car with him; he does not recall any subsequent events until Aurora police officers pulled him over. (PRDSF ¶¶ 4, 6-8.) What transpired next, however, is depicted on dashboard camera footage from the patrol cars of three officers. (See Def.'s Statement of Material Facts (“DSMF”), Ex. 4, Fanscali Squad Car Video, Dkt. No. 65-5; DSMF, Ex. 5, Talley Squad Car Video, Dkt. No. 65-6; DSMF, Ex. 6, Carey Squad Car Video, Dkt. No. 65-7.)

Carey, as the City of Aurora's K-9 police officer, partners with a police dog on patrols. (See PRDSF ¶ 17; DSMF, Ex. 2, Mark Carey Deposition Transcript, Dkt. No 65-3.) When officers began following Holman, he was driving with the driver's door open and swerving in and out of oncoming lanes. (PRDSF ¶¶ 11-13; Fanscali Squad Car Video.) Throughout the officers' pursuit of his car, Holman drove on two flat tires, and he hit street curbs multiple times. (PRDSF ¶¶ 13-15; Fanscali Squad Car Video.) Additionally, Holman's vehicle lost a tire during the pursuit. (PRDSF ¶¶ 13-15; Fanscali Squad Car Video.)

Upon exiting the car with his hands up, Holman removed his sweatshirt and laid on the ground in response to the officers' orders. (PRDSF ¶ 15; Fanscali Squad Car Video.) A group of officers then surrounded Holman, and Carey also approached Holman with his police dog “Beny.” (PRDSF ¶¶17, 28; Fanscali Squad Car Video; Talley Squad Car Video.) Simultaneously, a different officer ran toward Holman's car to stop it from moving. (Fanscali Squad Car Video.) Carey brought the dog, who was jumping and barking, near Holman's face and told him “[y]ou're going to get dog bit, motherfucker.” (PRDSF ¶ 18; Fanscali Squad Car Video.) Ultimately, the K-9 never touched or bit Holman. (PRDSF ¶ 18.) Once other officers cuffed Holman's hands behind his back and subdued him, Carey removed the dog back to his squad car and returned to the scene.

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(PRDSF ¶ 19; Fanscali Squad Car Video.) Soon after, officers discovered another occupant in Holman's car, and several officers ran toward it screaming “[l]et me see your hands.” (PRDSF ¶ 20; Fanscali Squad Car Video.) Carey and Sergeant Todd Fanscali remained with Holman. (PRDSF ¶ 20.) Fanscali stood over Holman's body. (Fanscali Squad Car Video; Talley Squad Car Video.)

While on the ground, Holman proceeded continuously to lift his head up and yell “Mrs. Stewart, I'm alive.” (PRDSF ¶ 21; Fanscali Squad Car Video.) As a result, Carey believed that Holman might be signaling nearby accomplices. (DSMF ¶ 46, Dkt. No. 65.) Carey then picked Holman's sweatshirt from off the ground and flipped it onto Holman's person. (PRDSF ¶ 21; Fanscali Squad Car Video.) Carey claims that he put the sweatshirt on Holman's head, back, or shoulder area. (DSMF ¶¶ 21, 48.) Fanscali also recalled that Carey tossed the sweatshirt onto Holman's shoulder. (PRDSF ¶ 55.) Holman instead contends that Carey placed the sweatshirt on his head or face area. (PRDSF ¶¶ 21, 48).

After Holman shouted “Don't shoot” and “My hands are up,” the videos appear to show Carey's foot making physical contact with Holman's person. (Fanscali Squad Car Video; Talley Squad Car Video.) But the point of contact is unclear due to Holman's body position in between the dashboard camera and Carey's foot. During his deposition, Carey testified that he never made physical contact with Holman. (DSMF ¶ 49.) Fanscali also denied witnessing any physical contact between Carey and Holman. (PRDSF ¶ 55.) But Carey later describes this incident as “apparent contact between [his] left foot and Holman's body;” specifically, Holman's chest or right shoulder area. (DSMF ¶¶ 21, 29.) Carey claims that he intended to “slide or kick” the sweatshirt in Holman's direction to stop his screaming. (DSMF ¶ 51.) Notably, in briefing the summary judgment motions, Carey seems to concede that there was physical contact, as he states that the

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“contact was de minimis,” and he “used minimal force in an effort to help control a tense and uncertain situation.” (Def.'s Mem. in Supp. of Def. Carey's Mot., Dkt. No. 66; Def.'s Resp. in Opp'n to Pl. Holman's Mot., Dkt. No. 70.) In contrast, Holman asserts Carey kicked him in the face or neck region without provocation. (PRDSF ¶¶ 21, 29, 49.) Whatever transpired with respect to the kick itself, Carey subsequently ordered Holman to “stop talking,” and Fanscali told Holman to relax and “stay where you're at.” (DSMF ¶ 21; Fanscali Squad Car Video.) Holman then told Carey and Fanscali “I'm sorry,” and asked them not to hurt him. (Fanscali Squad Car Video.)

Next, Holman lifted his head after the apparent physical contact. (Fanscali Squad Car Video; Talley Squad Car Video.) Holman then shifted from his stomach to his back to converse with Fanscali. (PRDSF ¶ 22; Fanscali Squad Car Video.) Holman made a series of statements, such as claiming that the passenger in his car had been trying to kill him. (Fanscali Squad Car Video.) Around the same time, other officers on the scene extracted the passenger from Holman's car and placed him on the ground. (PRDSF ¶ 22; Fanscali Squad Car Video.) The portions of the videos showing Holman conclude with Fanscali and other officers assisting Holman in standing up and walking away from the scene. (PRDSF ¶ 24; Fanscali Squad Car Video.) Holman was later charged with several offenses, and he pleaded guilty to aggravated driving under the influence and driving on a suspended or revoked license. (PRDSF ¶¶ 60-61.)

Holman claims that Carey chipped Holman's two left lower front teeth when Carey's foot made contact with Holman's head. (PRDSF ¶ 34). Yet Aurora Police Department booking records from Holman's arrest indicate that he did not report any injuries from his encounter with the police, except that he was feeling weak. (PRDSF ¶ 36; DSMF, Ex. 8, Booking Form, Dkt. No. 65-9.^[2])

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Following the incident, Holman visited a hospital for treatment for a hyperthyroid condition, but he did not report injuries to his teeth to hospital personnel. (PRDSF ¶ 34).

Based on the above-described events, Holman's amended complaint in this lawsuit asserts a 42 U.S.C. §1983 claim for excessive force against Carey, alleging that the officer threatened Holman with a dog, placed a sweatshirt over his face and made it hard for him to breathe, and kicked Holman with his foot. (Second Am. Compl. ¶¶ 1, 14-19, Dkt. No. 20.) Holman explains in his briefing that he is not alleging three instances of excessive force; rather, his excessive force claim centers around “Carey kicking Holman in the head, neck, or shoulder area while Holman was compliant, defenseless, and fully restrained on the ground.” (Pl.'s Resp. in Opp'n to Def. Carey's Mot., Dkt. No. 74.) He maintains that the “canine show of force” and “sweatshirt over the head” are additional facts to aid the Court in evaluating the reasonableness of Carey's actions. (Id.)

DISCUSSION

The Court grants summary judgment if the admissible evidence considered as a whole shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, even after all reasonable inferences are drawn in the non-movant's favor. Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 517 (7th Cir. 2011). A genuine dispute exists where ...