The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge.
MEMORANDUM OPINION AND ORDER
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.
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)
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.
Furthermore, even if there was differential treatment, the plaintiff
has failed to come forward with any evidence of "ill
will" or "vindictive
action," Hilton, 209 F.3d at 1008, toward Mr. Rivera personally. The
plaintiff argues that "a reasonable jury could find that Sergeant Keller
was consciously indifferent to Mr. Rivera because as a young, allegedly
`intoxicated' Puerto Rican man lying incapacitated in a private residence
in a gang-infested Puerto Rican neighborhood, Rivera did not warrant the
same consideration for his safety as was given to Nieves and Marrero."
Resp. at 11. Mr. Marrero and Ms. Nieves were also Puerto Rican and found
in a gang-infested neighborhood, and Mr. Marrero was only two years older
than Mr. Rivera, so a reasonable jury could not conclude that those
prejudices were the cause of his differential treatment. See Hilton, 209
F.3d at 1008. All that remains is Sergeant Keller's testimony that he
believed that the person that he found in the bathroom, whom he could not
identify but presumably was Mr. Rivera, was drunk. If a jury believed
that Sergeant Keller thought Mr. Rivera was drunk and not otherwise in
need of medical care, then there was a rational basis for treating him
differently. If jury did not believe Sergeant Keller's testimony that
Mr. Rivera was drunk, ...