UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 18, 2006*
Decided October 18, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2065
CHARLES R. JACKSON, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern
District of Illinois, Eastern Division.
v.
No. 03-C-4088
CITY OF JOLIET, et al.,
Defendants-Appellees. Samuel Der-Yeghiayan, Judge.
ORDER
Charles Jackson sued the City of Joliet (“the City”) and two of the City’s police
officers, alleging that the officers violated his civil rights in violation of 42 U.S.C. §§
1983, 1985(3) and state law by stopping, assaulting, and arresting him without
provocation. The district court initially dismissed Jackson’s state law claims and his
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 06-2065 Page 2
§ 1983 claim against the City, subsequently granted summary judgment for the
defendants on Jackson’s remaining claims, and then denied Jackson’s Rule 59(e)
motion to set aside the judgment. Jackson now appeals, and we affirm.
In his complaint, Jackson alleged that the officers used excessive force and
violated his Fourth Amendment rights when they approached him in his parked car
for no reason, slammed him onto the sidewalk, forcibly searched his mouth for
contraband, and arrested him. He also alleged that the officers “conspired” to arrest
him in retaliation for his statements that he would monitor their harassment, and that
they conspired to deny him equal protection of the laws based on his race. He alleged
further that the City was liable for its failure to supervise and discipline the officers
under Monell v. Department of Social Services, 436 U.S. 658 (1978).
The district court dismissed the Monell claim, finding that Jackson failed to
allege that there was a City policy, custom, or practice that was responsible for the
alleged constitutional violations. The court, however, allowed the parties to proceed
to discovery on Jackson’s remaining federal claims.
At the summary judgment stage, the defendants presented a version of the
events underlying Jackson’s claims that differed markedly from his allegations.
Specifically, the defendants submitted evidence that on June 18, 2001, Officers Darrell
Gavin and Robert O’Dekirk were patrolling in Joliet, Illinois when they observed
Jackson make a left turn in his car without using a turn signal. The officers pulled
Jackson over, and after Jackson permitted them to search him and his vehicle, the
officers found large amounts of money in his pockets. As they were talking, Gavin
noticed something plastic under Jackson’s tongue. Based on his experience as a police
officer, Gavin knew that some drug users and dealers hid drugs in their mouth. When
Gavin asked Jackson what was under his tongue, Jackson swung at Gavin’s head.
Jackson then attempted to flee, but Gavin stopped him by grabbing him around the
chest. Gavin and O’Dekirk then tackled Jackson to the ground and handcuffed him.
During handcuffing, Gavin ordered Jackson to spit out whatever was in his mouth.
Jackson refused to comply, bit O’Dekirk’s thumb, and swallowed what was in his
mouth. The officers arrested Jackson and he was charged with aggravated battery of
a police officer. See 720 Ill. Comp. Stat. § 5/12-4(b)(6).
Though Jackson submitted a response disputing the defendants’ statement of
facts, the district court found that Jackson’s response did not comply with Local Rule
56.1 of the Northern District of Illinois because the evidence Jackson cited did not
refute the defendants’ facts. The court thus deemed those facts admitted.
Based on the defendants’ statement of facts, the district court granted summary
judgment to the defendants on Jackson’s excessive force, conspiracy, and Fourth
No. 06-2065 Page 3
Amendment claims. The court found that the officers were entitled to qualified
immunity because no reasonable fact-finder could conclude that they violated Jackson’s
constitutional rights. The court also found that the officers had probable cause to
arrest Jackson and that they acted reasonably in response to Jackson’s attempts to hit
Officer Gavin and flee.
Jackson then moved for reconsideration—which the district court treated as a
Rule 59(e) motion because it was filed within ten days of the judgment—arguing that
the court erroneously accepted the defendants’ version of the facts because his
noncompliance with Local Rule 56.1 resulted from a typographical error. He asserted
that his Local Rule 56.1 response mistakenly cited an arrest report rather than the
transcript of a hearing held on the state’s petition to revoke Jackson’s probation based
on his skirmish with the officers, and that this error was material because statements
in the transcript directly refuted the defendants’ version of the facts. The district court
denied the motion, stating that it had thoroughly reviewed all of the record evidence,
including the transcript, before deciding to grant summary judgment to the
defendants.
On appeal, Jackson first argues that the district court should have granted his
Rule 59(e) motion because his typographical error was a “manifest error of fact” and
that correction of his mistake would cure his noncompliance with Local Rule 56.1. We
review the district court’s decision regarding Jackson’s failure to comply with that rule
for abuse of discretion, see Cichon v. Exelon Generation Co., 401 F.3d 803, 809 (7th Cir.
2005); Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004), and
there was no such abuse here. Even crediting Jackson’s purported error, the facts in
the state court’s transcript do not directly refute—and in many instances actually
corroborate—the defendants’ version of the facts. See N.D. Ill. Loc. R. 56.1(b)(3),
Cichon, 401 F.3d at 809-10 (stating that district court may deem admitted the moving
party’s facts when they are uncontroverted by a response and its accompanying record
citations). Jackson did not submit the required statement of additional facts to support
his version of the events, which was the only permissible way for him to introduce
facts. See N.D. Ill. Loc. R. 56.1(b)(3)(C); Smith v. Lamz, 321 F.3d 680, 682-83 (7th Cir.
2003). Thus, even when we account for Jackson’s alleged typographical error, we
conclude that he did not identify record evidence that creates a genuine issue of
material fact, as Local Rule 56.1 requires.
Jackson next challenges the merits of the summary judgment ruling by
renewing his arguments that the officers stopped him without probable cause, used
excessive force, wrongly arrested him, and conspired against him. But here the district
court properly limited its review to the defendants’ Local Rule 56.1 statement, and our
de novo review of its grant of summary judgment will rest on that statement as well.
See Koszola v. Bd. of Educ. of Chi., 385 F.3d 1104, 1109 (7th Cir. 2004).
No. 06-2065 Page 4
The district court properly found that the officers are entitled to qualified
immunity because the facts do not show that they engaged in excessive force or that
their conduct violated any constitutional right. See Saucier v. Katz, 533 U.S. 194, 201
(2001); Piggee v. Carl Sandburg Coll., No. 05-3228, 2006 WL 2771669, at *6 (7th Cir.
Sept. 19, 2006). We analyze excessive force claims under the Fourth Amendment’s
“reasonableness standard,” and we consider reasonableness from the perspective of “a
reasonable officer on the scene.” Graham v. Connor, 490 U.S. 386, 3956 (1989). Under
this analysis, we pay “careful attention to the facts and circumstances of each
particular case, 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. at 395-96; Abdullahi v.
City of Madison, 423 F.3d 763, 768 (7th Cir. 2005). Here, the facts establish that the
officers’ use of force was entirely proper, because they used force only in direct response
to Jackson’s attempts to hit Officer Gavin and then flee. See, e.g., United States v.
Lawshea, No. 05-4098, 2006 WL 2441399, at *4 (7th Cir. Aug. 24, 2006) (concluding
that use of police dog is reasonable to prevent suspect from fleeing). Jackson has not
pointed to any facts demonstrating that the level of force used by the officers was
disproportionate to the threat Jackson posed, let alone excessive. See Smith v. City of
Chi., 242 F.3d 737, 744 (7th Cir. 2001) (use of force “was not high, let alone excessive”
where officers who reasonably believed plaintiff was trying to flee pulled him from his
car, pinned his arms, and slammed him against his car hood during handcuffing).
The district court also properly granted summary judgment on Jackson’s claim
that the officers violated his Fourth Amendment rights when they stopped and
arrested him for battery. First, the officers had probable cause to believe that Jackson
committed a traffic violation—they saw him make a left turn without signaling—and
so it was reasonable for them to stop him. See Whren v. United States, 517 U.S. 806,
810 (1996) (stop reasonable where driver turned right without signaling and left
intersection at “unreasonable” speed); United States v. Muriel, 418 F.3d 720, 724 (7th
Cir. 2005) (stop reasonable where driver followed truck too closely). Second, “there is
no Fourth Amendment violation so long as the officers had probable cause to arrest the
suspect.” Driebel v. City of Milwaukee, 298 F.3d 622, 644 (7th Cir. 2002). When
Jackson took a swing at Officer Gavin and bit Officer O’Dekirk, he gave the officers
probable cause to arrest him for aggravated battery. See 720 Ill. Com. Stat. § 5/12-
4(b)(6).
Summary judgment was also appropriate with respect to Jackson’s claims that
the officers conspired to retaliate against him and to deprive him of equal protection
of the laws, because Jackson identified no genuine issue of disputed fact. To
demonstrate a conspiracy, Jackson must show that the defendants agreed to violate
his constitutional rights, see Alexander v. City of South Bend, 433 F.3d 550, 556-57 (7th
No. 06-2065 Page 5
Cir. 2006), and Jackson has not pointed to any evidence in the record to suggest that
the officers formed any such agreement.
Jackson’s final argument is that the district court erred in dismissing his Monell
claim against the City because he pleaded sufficient facts to support his claim under
federal notice pleading standards. However, the City is not liable under Monell unless
Jackson’s constitutional claims are viable. Alexander, 433 F.3d at 557. Jackson did
not raise a genuine issue of material fact with respect to his constitutional claims
against the officers, and so he cannot prevail against the City; remand for further
consideration of his Monell claim would be futile. See Pepper v. Vill. of Oak Park, 430
F.3d 805, 812 (7th Cir. 2005).
AFFIRMED.