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JONES v. VILLAGE OF VILLA PARK

January 19, 1993

EDWARD M. JONES, Plaintiff,
v.
VILLAGE OF VILLA PARK and OFFICER JAMES BERNARDO, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Edward M. Jones brings this civil rights action pursuant to 42 U.S.C. § 1983 against Officer James Bernardo and the Village of Villa Park, Illinois, alleging violations of rights secured under the United States Constitution and Illinois common law. Bernardo and Villa Park now move for summary judgment and, for the reasons set forth below, we grant the motion.

 I. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "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 geniuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

 II. Background

 It appears that the parties take contrasting views of the events transpiring on March 27, 1991, such events forming the basis of the present action. Jones' account of the events, however, is irrelevant to the instant motion. Rule 12(n) of the Rules of the District Court for the Northern District of Illinois provides that:

 Each party opposing a Rule 56 motion shall serve and file, together with opposing affidavits (if any) and other materials referred to in Rule 56(e) and a supporting memorandum of law, a concise response to the movant's statement [filed pursuant to Rule 12(m)]. That response shall contain (1) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and (2) a statement, consisting of short numbered paragraphs, of any additional facts which require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.

 If the party opposing a motion for summary judgment fails to submit a timely 12(n) statement, the uncontroverted statements set forth in the movant's 12(m) statement are deemed admitted. Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 567 (7th Cir. 1992); Appley v. West, 929 F.2d 1176, 1179 (7th Cir. 1991) (per curiam); Skagen v. Sears, Roebuck & Co., 910 F.2d 1498, 1500 (7th Cir 1990), Herman v. Chicago, 870 F.2d 400, 403-04 (7th Cir. 1989). The Seventh Circuit has upheld strict enforcement of Rule 12(n), even in instances where the parties have not engaged in the type of repeated, wilful and recalcitrant conduct which ordinarily warrants a pure default judgment. See Wienco, Inc., 965 F.2d at 567-68; Maksym v. Loesch, 937 F.2d 1237, 1240-41 (7th Cir. 1991). Likewise, the fact that the summary judgment respondent has submitted an affidavit or other documentation that would otherwise create a genuine issue of material fact is irrelevant to the application of Rule 12(n). See Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1102-03 (7th Cir. 1990) (noting that summary judgment respondent's affidavit "standing alone . . . would be sufficient to create genuine issues of material fact"). In the present case, Jones has failed to file a timely 12(n) statement and, hence, the allegations set forth in defendants' 12(m) statement--allegations which are bolstered by references to affidavits and other supporting material--are deemed admitted and will be drawn upon in disposition of the current motion for summary judgment. *fn1"

 According to defendants' 12(m) statement, Bernardo, an officer of the Villa Park Police Department, stopped Jones for a traffic violation on March 27, 1991. At the time of the stop, Officer Bernardo was on his way back to the Villa Park Police Station to replenish his supply of traffic tickets. Bernardo planned on issuing Jones two tickets, one for failing to have a child between the ages of four and six properly restrained and one for failing to wear his seat belt. Because Bernardo did not have any tickets on his person, he ordered Jones to follow him to the police station. Jones, however, did not follow Bernardo to the station, instead driving to his parents' home. Accordingly, Bernardo and Officer McNamara arrested Jones in his parents backyard for escaping from the traffic stop. Jones resisted the arrest in his parents backyard. Once Jones had been transported to the police station, Bernardo issued the two tickets. Jones was not injured during either his arrest or transport to the police station.

 Jones was charged in the Circuit Court of DuPage County with four offenses: (1) escape in violation of Ill. Rev. Stat. ch. 38, P 31-6(c); (2) resisting a peace officer in violation of Ill. Rev. Stat. ch. 38, P 31-1; (3) failure to secure a child between four and six years of age in violation of Ill. Rev. Stat. ch. 95 1/2, P 1104a; and (4) failure to wear a seat belt in violation of Ill. Rev. Stat. ch. 95 1/2, P 12-603.1(a). Jones appeared before Judge James W. Jerz on August 19, 1991. Pursuant to a plea bargain, Jones pled guilty to reduced charges in Count 2 and to Count 3 of the criminal complaint. Further, plaintiff stipulated to the facts set forth in Count 2 (as reduced) and Count 3. In exchange, the State agreed to dismiss Counts 1 (escape) and 4 (driver's failure to wear seatbelt) by nolle prosequi. The instant complaint stems solely from the charge of escaping from a police officer. In his eleven-count complaint, filed on March 24, 1992, Jones sets forth the following claims against Bernardo and the Village of Villa Park which we summarize in the chart below. Summary of Claims Count No. Defendant Nature of Claim Applicable Law 1 Bernardo Excessive Force Federal 2 Bernardo Malicious Prosecution Federal 3 Bernardo False Arrest Federal 4 Bernardo Malicious Prosecution Illinois 5 Bernardo False Arrest Illinois 6 Villa Park Excessive Force Illinois 7 Villa Park Malicious Prosecution Federal 8 Villa Park Malicious Prosecution Illinois 9 Villa Park False Arrest Federal and Imprisonment 10 Villa Park False Arrest Illinois and Imprisonment 11 Bernardo Excessive Force

 EDITOR'S NOTE: The following court-provided text does not appear at this cite in 815 F. Supp. 249.

 In that the Village of Villa Park cannot be held liable under § 1983 under a theory of respondeat superior, see Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978), we granted Jones' ...


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