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December 3, 1992

MARY CZAJKOWSKI, for herself and for next of kin RUBEN GARZA, JR., her son, Plaintiffs,
CITY OF CHICAGO, ILLINOIS, et al., Defendants.

The opinion of the court was delivered by: WILLIAM T. HART



 Plaintiffs Mary Czajkowski and Ruben Garza, Jr. ("Garza Jr.") *fn1" brought this civil rights action against defendants City of Chicago, Leroy Martin, David Fogel, Gayle Shines, Ruben Garza ("Garza"), and Milan Hrebanek. Martin was Chicago's Superintendent of Police at the time of the incident central to this dispute. At that time, Fogel was the administrator of the Chicago Police Department's (the "Department") Office of Professional Standards ("OPS"). Shines was the administrator of OPS at the time the complaint was filed. Garza and Hrebanek were Chicago police officers at times relevant to this action. *fn2" Garza is the ex-husband of Czajkowski and father of Garza Jr. Presently pending is plaintiff Czajkowski's *fn3" motion for summary judgment on certain counts and defendants' (except Garza's) *fn4" cross motion for summary judgment on all the claims against them.

 In the complaint, Czajkowski alleges that Garza subjected her to domestic violence and that the City condoned or encouraged that conduct. On June 21, 1988, Garza was in a police squad car with his partner, Hrebanek, when he stopped Czajkowski, who was driving a car with Garza Jr. as a passenger. At the time, Czajkowski and Garza were near the completion of divorce proceedings. In Count I, Czajkowski alleges that, during the June 21, 1988 stop, Garza scratched her chest with his car keys and choked her. Garza Jr. alleges that his father attempted to kidnap him. Plaintiffs claim that Hrebanek aided and abetted or conspired with Garza in committing this excessive force. It is also claimed that Hrebanek stood by and permitted his fellow officer to assault plaintiffs. Count II is a claim against the City, Martin, and Fogel that their failure to adequately discipline or supervise officers who commit excessive force or domestic violence contributed to causing the injuries alleged in Count I. Count III is a similar claim, but is specifically based on the policy and practice of maintaining a code of silence within the Department. Count IV is against Garza and Hrebanek and is labeled a state law claim for assault, battery, intentional infliction of emotional distress, and conspiracy to commit those torts. Count V is a respondeat superior claim against the City based on Count IV.


 On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovants and all factual disputes resolved in favor of the nonmovants. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing a lack of any genuine issue of material fact rests on the movants. Id. at 473. The nonmovants, however, must make a showing sufficient to establish any essential element for which they will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movants need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852 (1988). As the Seventh Circuit has summarized:

 The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); id. at 325 ("the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

 Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

 Based on the June 21, 1988 conduct, Garza was convicted of misdemeanor battery. He was subsequently disciplined by the Department. The City did not provide representation for Garza in the present lawsuit. Early in this litigation, plaintiffs moved for entry of a default judgment against Garza. Garza appeared and the motion was denied. Garza moved for the appointment of counsel and that motion was denied for failure to satisfy the income requirements. Although he has personally appeared at some statuses and for his own deposition, if not other depositions as well, Garza has not filed an appearance form on his own behalf and he never filed an answer to the complaint. Plaintiff served her summary judgment motion on Garza, but he filed no response.

 Although Garza is proceeding pro se, Czajkowski failed to advise him as to summary judgment procedures as is required by Timms v. Franks, 953 F.2d 281, 285-86 (7th Cir.), cert. denied, 112 S. Ct. 2307 (1992). Nevertheless, the merits of plaintiff's motion will be considered. An appendix to this opinion advises Garza of summary judgment procedures. After considering the appendix and today's opinion, to the extent Garza wishes to file a response to the summary judgment motion, he is granted leave to move for reconsideration of today's ruling within 28 days after the date of today's order. *fn5" Since given the opportunity to file a response after being advised of summary judgment procedures, defendant will not be prejudiced by considering the present motion. See Lazzara v. Howard A. Esser, Inc., 802 F.2d 260, 272 (7th Cir. 1986); King v. Rolm Co., 1992 WL 133023 *3 n.1 (N.D. Ill. June 8, 1992).

 On the present motion, summary judgment cannot be granted solely because Garza failed to respond. Hibernia National Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985); Monroe v. Massarano, 1992 WL 199829 *11 (N.D. Ill. Aug. 10, 1992). Instead, when the nonmovant fails to file a response, the court can take the movant's statement of facts as true and determine if those facts entitle the movant to judgment as a matter of law. See Local Rule 12(m); Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989). The present case, however, also involves other parties who have responded to plaintiff's motion. To the extent factual materials and arguments provided by the represented defendants apply to the claims against Garza as well, they will be considered as to the claims against Garza.


 A. Garza's Criminal Trial

 The first issue to be considered is the collateral estoppel effect of Garza's criminal trial related to the June 1988 incident. Garza was charged with "committing the offense of Battery Simple in that he knowingly, intentionally, with-out legal justification, caused bodily harm to Garza Mary A. by forcefully grabbing her by the arm, scratching her on her chest with some keys and choking her in violation of Chapter 38 Section 12-3(a) Illinois Revised Statutes." Following a bench trial, Garza was found guilty of battery based on his scratching of Czajkowski's chest. The trial judge also found, "as to the choking, I doubt that this lady was choked for two or three minutes and I really don't see any convincing evidence that there was any bodily harm inflicted on her because of that."

 This court must accord the decision in the state criminal trial the same preclusive effect that Illinois courts would accord it. 28 U.S.C. ยง 1738; Wozniak v. County of DuPage, 845 F.2d 677, 680 (7th Cir. 1988). Illinois recognizes collateral estoppel when:

 (1) the party against whom the estoppel is asserted was a party to the prior adjudication, (2) the issues which form the basis of the estoppel were actually litigated and decided on the merits in the prior suit, (3) the resolution of the particular issues was necessary to the court's judgments, and (4) those issues are identical to issues raised in the subsequent suit.

 Id. at 682-83 (quoting County of Cook v. MidCon Corp., 773 F.2d 892, 898 (7th Cir. 1985)). The party against whom estoppel is asserted must also have been provided with a full and fair opportunity to litigate the issue in the prior suit. Crot v. Byrne, 957 F.2d 394, 396 (7th Cir. 1992) (quoting Ray v. Indiana & Michigan Electric Co., 758 F.2d 1148, 1150 (7th Cir. 1985)); Charles Koen & Associates v. City of Cairo, 909 F.2d 992, 1000 (7th Cir. 1990).

 None of the defendants were parties to the criminal case except Garza. To the extent plaintiff contends the City should be considered in privity with Garza for collateral estoppel purposes, such a claim is without merit. See Koen, 909 F.2d at 999 n.7. Limited to the issue that Garza injured Czajkowski by scratching her chest, this issue was actually litigated and decided in the prior suit and was necessary to Garza's conviction.

 Based on his state court criminal trial, Garza is estopped from contesting that he injured Czajkowski by scratching her chest with his keys. The estoppel effect of the criminal trial does not apply to any of the other defendants.

 B. Garza's Police Board Hearing

 Based on the findings of Garza's criminal trial and the transcript of those proceedings, OPS found as follows:

 Sustained, Violation of Rule 8, "Disrespect to or maltreatment of any person, while on or off duty," in that on 21 June 1988, Officer Garza scratched Mary Garza across her chest with a set of keys; . . . .

 Sustained, Violation of Rule 1, "Violation of any law or ordinance," in that on 04 January 1990, Officer Garza was found guilty of Battery by Judge Patrick Morse in Branch 46 of the Circuit Court of Cook County;

 Sustained, Violation of Rule 2, "Any action or conduct which impedes the Department's efforts to achieve its policy and goals, or brings discredit upon the Department," in that by Officer Garza's actions on 21 June 1988, while on duty, in uniform and in a marked police vehicle and his subsequent conviction of Battery on 04 January 1990, he brought discredit upon the Department.

 The Superintendent of Police concurred in this finding and suspended Garza 30 days. This ruling was upheld by the Police Board and Garza served his suspension.

 Relying on the principle of judicial estoppel, plaintiff contends that this action of the City estops it from denying that Garza scratched Czajkowski with keys. Plaintiff refers to judicial estoppel in her motion and provides the relevant facts in her Rule 12(m) statement. Plaintiff also refers to judicial estoppel in her opening brief, but makes no argument and provides no citation in support of this contention. Lacking a supporting argument, this contention of plaintiff could be ignored. See Salazar v. City of Chicago, 940 F.2d 233, 242-43 (7th Cir. 1991); In re ContiCommodity Services, Inc. Securities Litigation, 733 F. Supp. 1555, 1571-72 (N.D. Ill. 1990), rev'd in part on other grounds, 976 F.2d 1104 (7th Cir. 1992). The City, however, has made an argument as to why judicial estoppel should not apply and plaintiff provides a supporting argument in her reply. The City does not ...

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