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March 29, 2002


The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge.


Hector Rivera died of multiple gunshot wounds that he sustained in a shooting on the west side of Chicago, Illinois, in the early hours of July 24, 1998. The plaintiff, as the administrator of Mr. Rivera's estate, sued the City of Chicago and several of its police officers under 42 U.S.C. § 1983 and Illinois law for failing to promptly summon medical assistance for Mr. Rivera. I denied the City's motion to dismiss, Torres v. City off Chicago, 123 F. Supp.2d 1130 (N.D.Ill. 2000), and the plaintiff has since voluntarily dismissed the § 1983 claim against the City, as well as against several of the individual defendants.*fn1 The City moves for summary judgment on the state claims against it, and defendants Victoria Onorato, Enrique Badillo and Hans Keller move for summary judgment on the § 1983 claim against them. In response to the defendants' motions, the plaintiff requests voluntary dismissal of Officers Onorato and Badillo, which I grant with prejudice, so I consider only the claims against Sergeant Keller and the City.


Kimberly Rodriguez, Ms. Nieves' daughter, who was nine years old at the time of the shootings, was asleep in the first floor apartment when Mr. Rivera was shot. She testified that she found Mr. Rivera in her bathroom at 2:30 a.m., and told the police that there was a man in her bathroom. She later testified, however, that, before the second ambulance arrived (at 2:18 a.m.), she told police officers on the scene that Mr. Rivera was injured in the bathroom. Ms. Nieves also testified that she heard Kimberly tell the police that there was an injured man in the bathroom. Several witnesses testified that the officers on the scene were aware that Mr. Rivera was injured, but dismissed requests for help by saying "he's drunk" or that they would take care of it. Mr. Marrero testified that, before he was transported to the hospital, he heard a male officer say that they should let him die because they saw a tattoo on his back which they believed to be gang-related. Waldemar Rodriguez, Kimberly's brother and Ms. Nieves' son, testified that he overheard a white, plain clothes officer, who arrived with three other plain clothes officers, say that it was a good thing that "this" (presumably the shooting) happened to Hispanics. It is undisputed that Sergeant Keller and Officers Badillo and Onorato were uniformed when they were at the scene.

Neither party presents any evidence to show exactly when Sergeant Keller arrived on the scene, but after the first ambulance left, he entered the Rodriguez apartment, spoke to some people in the kitchen, and found a man, presumably Mr. Rivera, though he could not positively identify him, lying on the bathroom floor. Sergeant Keller said that he thought Mr. Rivera was drunk, and that he was moaning and drooling, and did not respond verbally. Sergeant Keller testified that he did not summon medical assistance for Mr. Rivera because he did not know that he had been shot. Other witnesses testified, however, that there was blood on the floor and walls of the bathroom. Although witnesses testified that they told the police that Mr. Rivera was injured in the bathroom, there is no evidence suggesting that they specifically told Sergeant Keller. Officer Patrick Loftus, who was following forensic investigators through the apartment, later discovered Mr. Rivera in the bathroom and immediately called for an ambulance. The ambulance for Mr. Rivera was dispatched at 3:33 a.m. and arrived at 3:39 a.m. Mr. Rivera was pronounced dead at Cook County Hospital at 6:45 a.m.

The complaint alleged claims against the City for willful and wanton conduct under the Illinois Wrongful Death Act (count I) and the Survival Act (count II), and for violations of Mr. Rivera's Fourteenth Amendment right to equal protection under § 1983 (count III). Count IV alleged equal protection violations against the individual defendants. Count III has been dismissed, as have all of the individual defendants named in count IV except for Sergeant Keller. Summary judgment is proper when the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1141 (7th Cir. 2001).


Count IV alleges generally that the conduct of the individual officers, "acting under color of state law, violated Hector Rivera's right to equal protection under the Fourteenth Amendment of the United States Constitution." Compl. Count IV, ¶ 8. In response to interrogatories, the plaintiff stated that the basis of the equal protection claim was fact that the police waited one and a half hours from learning that Mr. Rivera was injured before summoning medical care, that he was Puerto Rican, and that Mr. Rodriguez overheard an officer say something "to the effect that `these Puerto Ricans get what they deserve.'" Def. Ex. A. The individual defendants moved for summary judgment, arguing that the plaintiff could not make out a claim for national origin discrimination because, among other things, she could not come forward with evidence that similarly situated non-Puerto Ricans would have been treated differently because the other two victims, who did receive prompt medical care, were also Puerto Rican. See Chavez v. Illinois State Police, 251 F.3d 612, 636 (7th Cir. 2001) (Plaintiff must show that members of non-protected class were treated differently.). The plaintiff essentially concedes this argument in response by arguing that the issue "is not whether non-Puerto Ricans were treated differently by Sergeant Keller." Resp. at 10.

However, the plaintiff now asserts two different theories: first, that Sergeant Keller, without any rational basis, treated Mr. Rivera, as a "class of one," differently from others who were similarly situated; and second, that Mr. Rivera's due process rights were violated by Sergeant Keller's failure to provide medical care. The City objects that the plaintiff has raised new constitutional claims in her brief, after the close of discovery, and on the eve of trial. Although a plaintiff may not amend her complaint through arguments in her brief in opposition to a motion for summary judgment, Insolia v. Phillip Morris, Inc., 216 F.3d 596, 606 (7th Cir. 2000), the plaintiff has done no more than offer an alternative legal theory. All of the facts to support her legal theories appear on the face of the complaint and in her response to the City's interrogatory. Cf. Shanahan v. City of Chicago, 82 F.3d 776, 779, 781 (7th Cir. 1996) (New theory depended on facts that did not appear in complaint); Hays v. General Elec. Co., 151 F. Supp.2d 1001, 1007) (N.D.Ill. 2001) (Bucklo, J.) ("A party is entitled to plead theories of liability in the alternative, but the alternative must at least be apparent from the complaint."). The complaint here gave notice of a claim for denial of medical care, whether founded on the Due Process or Equal Protection Clause of the Fourteenth Amendment, and the "class of one" claim is simply another form of equal protection claim, which was alleged in the complaint.

Nevertheless, the plaintiff cannot survive summary judgment on either of her new theories. "[T]he Due Process Clause generally confers `no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty or property interests of which the government itself may not deprive the individual.'" Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1174 (7th Cir. 1997) (citing DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 196 (1989)). There are two exceptions, however, where a "special relationship" imposes a duty to protect; (1) where the plaintiff is in government custody, and (2) where the government itself created the danger to the plaintiff. Id. There is no evidence that Mr. Rivera was in custody at any time before medical care was summoned, or that Sergeant Keller (or any of the other police officers) created Mr. Rivera's need for medical care. The plaintiff cites Regalado v. City of Chicago, 140 F. Supp.2d 1009 (N.D.Ill. 1999) (Shadur, J.), for the proposition that "[o]fficers who fail to seek medical care for a man who clearly cannot seek it for himself are subject to liability under Section 1983." Resp. at 12. However, the plaintiff's "helplessness" in Regalado was caused by a beating received at the hands of the very police officers who denied him care. 40 F. Supp.2d at 1015. It is undisputed that Mr. Rivera was shot by Tony Gonzales, not by Chicago police officers. The plaintiff argues that there was no telephone in the Rodriguez home, but this was also not attributable to any actions of the police. Mr. Rivera's helplessness was not caused by any of the defendants, and he was not in their custody, so Sergeant Keller had no affirmative duty to provide medical care, even if he was aware that Mr. Rivera desperately needed it. The due process claim fails.

The Supreme Court has recently acknowledged that a plaintiff may bring an equal protection claim as a "class of one," without regard to protected-class status, where the plaintiff "has been intentionally treated differently from others similarly situated and . . . there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Although the Court declined to consider whether the defendant's subjective motivation was relevant, the Court held that the allegation that the disparate treatment was "irrational and wholly arbitrary" stated a claim for denial of equal protection. Id. at 565. The Seventh Circuit has since interpreted "class of one" claims under § 1983 to require the plaintiff to "present evidence that the defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant's position." Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000). In other words, the plaintiff must show that "the cause of the differential treatment of which the plaintiff complains was a totally illegitimate animus toward the plaintiff by the defendant." Id. "Ill will must be the sole cause of the complained-of action. A showing of `uneven law enforcement,' standing alone, will not suffice." Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001) (citations omitted).

The "class of one" claim fails because there is no evidence of differential treatment by Sergeant Keller, the only remaining individual defendant. See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) ("Section 1983 creates a cause of action based upon personal liability and predicated upon fault."). Although Sergeant Keller admits that he did not summon medical care for Mr. Rivera, the plaintiff has not pointed to any evidence, nor could I find any in the record, to suggest that Sergeant Keller was the officer who called for the first two ambulances. There is no evidence of differential treatment by Sergeant Keller.

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