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MARY BANKS v. CHICAGO HOUS. AUTH.

July 30, 1998

MARY BANKS, Plaintiff,
v.
CHICAGO HOUSING AUTHORITY POLICE OFFICERS HARRIS, LEWIS, & WOLF, Defendants.



The opinion of the court was delivered by: GETTLEMAN

MEMORANDUM OPINION AND ORDER

 Plaintiff Mary Banks, formerly employed as a crossing guard by the Chicago Police Department, has filed a second amended complaint against the Chicago Housing Authority ("CHA") and four of its police officers (collectively "defendants"). Plaintiff asserts claims under 42 U.S.C. ยง 1983, alleging that defendants violated her civil rights by: (1) using excessive force; (2) failing to prevent a civil rights violation; and (3) failing to provide medical assistance. Defendants have moved for summary judgment on all three of plaintiff's claims. *fn1" For the reasons set forth below, defendants' motion for summary judgment is denied.

 FACTS

 The following facts are undisputed except where otherwise noted. On March 4, 1994, plaintiff Mary Banks was at work in her capacity as a crossing guard for the Chicago Police Department. According to plaintiff, around 9:00 a.m., a "reckless driver" passed through the intersection where plaintiff was working. Plaintiff contends that she left her assigned post at 35th Street and Cottage Grove Avenue in order to pursue this reckless driver so that she could record the vehicle's license plate number. Plaintiff got into her van and began pursuing the vehicle when, shortly thereafter, she was pulled over by CHA police officers Larry Harris and Janice Jeffries.

 Plaintiff claims that from the outset, she was verbally and physically abused by the CHA police officers. Plaintiff alleges that Officers Harris and Jeffries both used profane and abusive language with her, and that they never identified themselves as CHA police officers. Plaintiff contends that Officer Harris searched her and her belongings without probable cause, struck her with a closed fist, choked her with his forearm, and grabbed her by her hair braids and threw her against his squad car. She claims he never informed her of her rights or that she was under arrest. Plaintiff further alleges that, soon after she was pulled over, Officer Ward arrived on the scene, and that he also physically and verbally abused her. Plaintiff claims Officer Ward struck her without warning, and that he and Officer Harris then pressed her against the police vehicle with "great force," and then again grabbed her by her hair braids and pushed her hard into the vehicle. Plaintiff contends the officers swore at her and denigrated her in public. Plaintiff was eventually taken to the Chicago Housing Authority Police Station on East 38th Street.

 Plaintiff next contends that she was interrogated by Lieutenant Wolf at the station, but was not informed of her Miranda rights. Plaintiff claims that she repeatedly informed the officers that she was in pain and wanted to be taken to the hospital, but that her requests were denied. At approximately 1:30 p.m., over four hours after the entire incident began, plaintiff was transported to Mercy Hospital. Plaintiff contends that Officer Ward and another officer continued to verbally abuse and "humiliate" plaintiff on the way to the hospital. The hospital report notes that plaintiff had multiple contusions. After being released, plaintiff was taken to the Chicago Police Department and placed under arrest. Plaintiff was charged with speeding, resisting arrest, impersonating a police officer, and battering a police officer.

 Defendants deny plaintiff's version of events. They contend that they pulled plaintiff over for speeding through a red light and for suspicion of possibly driving a stolen vehicle. Defendants claim that plaintiff knowingly and falsely represented herself as a Chicago Police Officer. Officer Harris and Officer Jeffries claim that when Officer Harris attempted to arrest plaintiff, she resisted arrest and became quite violent. Defendants contend that they used only the force necessary to restrain plaintiff, and were merely responding to her resisting arrest. Defendants deny that they ever verbally abused plaintiff, or that they failed to identify themselves as police officers, or that they failed to Mirandize plaintiff.

 On July 31, 1995, the Superintendent of Chicago Police filed charges against plaintiff with the Police Board of the City of Chicago ("the Police Board"). Plaintiff was charged with the following Chicago Police Department violations: (1) violation of a law or ordinance; (2) an action or conduct which impedes the Department's efforts to achieve its policy and goals or brings discredit upon the Department; (3) disobedience of an order or directive, whether written or oral; (4) disrespect to or maltreatment of a person, while on or off duty; and (5) engaging in an unjustified verbal or physical altercation with a person, while on or off duty. The Police Superintendent recommended that plaintiff be discharged from her position as a crossing guard with the Chicago Police Department.

 Over the next five months, the Police Board proceedings were delayed many times as plaintiff sought and was granted numerous continuances. Although she was aware of the impending proceedings, plaintiff did not retain counsel, appear at status hearings, or conduct discovery. On January 11, 1996, after over five months of continuances, plaintiff was given notice that her Board hearing was definitively set for March 29, 1996, at which time it was held in her absence. After hearing the Chicago Police Department's evidence and witnesses, the Police Board issued a final decision, setting forth its factual and legal conclusions.

 The Police Board determined that plaintiff was guilty of all the charges against her and specifically found that she: (1) falsely identified herself as a Chicago Police Officer to CHA Police Officers; (2) struck and pushed CHA Police Officers; (3) resisted arrest by CHA Police Officers; and (4) failed to stop at a red traffic light. Thus, the Police Board found that plaintiff violated Chicago Police Department Rules and both Illinois and Chicago municipal law. The Board also determined that plaintiff disobeyed a Police Department order when she did not appear at the Internal Affairs Division for a scheduled appointment. Based on these charges, the Superintendent recommended that plaintiff be discharged.

 On October 28, 1997, plaintiff filed her second amended complaint alleging civil rights violations as described above.

 DISCUSSION

 I. Legal Standard

 Under Fed. R. Civ. P. 56(c), a court should grant summary judgment if "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law." The burden is on the moving party to identify portions of the pleadings, answers to interrogatories, and affidavits which demonstrate an absence of a genuine issue of material fact. See Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). When reviewing a summary judgment motion, the court must ...


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