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June 16, 2004.

VILLAGE OF ROBBINS, et al., Defendants.

The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge


This matter is before the court on Defendants' motion for summary judgment. For the reasons stated below we grant the motion for summary judgment in part and deny the motion in part.


  In the evening of December 16, 1999, the Village of Robbins Police Department received a complaint indicating that individuals appeared to be selling drugs from vehicles parked near 139th Street and Grace Street. Defendant Chief Johnny Holmes ("Holmes"), in plain clothes, responded to the call and noticed two vehicles in the area. One of the vehicles was a tan Nissan Maxima that matched the description by the caller. Holmes then left the area and contacted a police tactical unit which called Defendant officers Carl Scott ("Scott"), Dion Kimble ("Kimble"), Anthony Hosey ("Hosey"), and Tytus Lester (Lester") to the scene. The officers approached the scene in an unmarked van. Defendants contend that when the officers began to exit the van, the Maxima began to drive rapidly away from the area. According to Defendants, Scott was in the direct path of the Maxima and he jumped out of the way and fired at the vehicle. A bullet struck the driver, Plaintiff Brian Morris ("Morris"). Defendants contend that the Maxima continued to travel away from the scene, but eventually stopped.

  Plaintiffs claim that the officers had no reason to suspect them of violating any laws. According to Plaintiffs, the officers approached their car with drawn weapons and "Morris drove off slowly because he did not know what was going on." (SAF 24, 25). Plaintiffs claim that Scott was never in the path of the moving Maxima and claim that he fired into the vehicle without justification. Plaintiffs claim that they were charged with misdemeanor offenses and that they were subsequently released and the charges were dismissed. Plaintiffs brought the instant suit against Defendant officers and Defendant Village of Robbins ("Village") alleging violations of 42 U.S.C. § 1983 ("Section 1983") for excessive force, false arrest, and failure to return a jacket. LEGAL STANDARD

  Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that 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). In seeking a grant of summary judgment the moving party must 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 genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).


  I. Claim Against the Village

  The Village argues that it cannot be held liable under Section 1983 as a matter of law. The doctrine of respondeat superior cannot be utilized to hold local governmental units liable for Section 1983 violations. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). A municipal governmental unit cannot be held liable under Section 1983 "unless the deprivation of constitutional rights is caused by a municipal policy or custom." Kujawski v. Board of Comm'rs. of Bartholomew County, Indiana, 183 F.3d 734, 737 (7th Cir. 1999). A local governmental unit's unconstitutional policy, practice or custom can be: "(1) an express policy that causes a constitutional deprivation when enforced; (2) a widespread practice, that, although unauthorized, is so permanent and well-settled that it constitutes a `custom or usage' with the force of law; or (3) an allegation that a person with final policymaking authority caused the injury." Chortek v. City of Milwaukee, 356 F.3d 740, 748 (7th Cir. 2004).

  Plaintiffs do not respond in any manner to Defendants' arguments regarding the Village's liability. We agree that there is a complete absence of any evidence that would show that the alleged unlawful conduct by the Defendant officers at the scene was in any way connected to a Village custom, policy, or practice or that the Village ratified the alleged conduct of the Defendant officers. Plaintiffs cannot merely rely upon the allegations in their complaint at this stage of the proceedings. Plaintiffs do not even put forth an argument on this issue in their answer to the instant motion. Therefore, we grant the Village's motion for summary judgment.

  II. Claims Against Holmes

  Holmes argues that he cannot be held liable in his individual capacity under Section 1983 because he was not personally involved in the alleged unlawful conduct. The doctrine of respondeat superior is not applicable in a Section 1983 action. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Therefore, in order to hold a defendant liable in his individual capacity the individual defendant must be "personally responsible for the deprivation of a constitutional right," which can be illustrated by showing that the defendant "directed the conduct causing the constitutional violation," the violation "occurred with his knowledge or consent," or the defendant acted with "`deliberate, reckless indifference' to the conduct of subordinates." Id.

  Plaintiffs admit, pursuant to Local Rule 56.1, that Holmes was not present at the scene at the time of the shooting. (Resp. SF 13). There is no evidence that Holmes, in his supervisory capacity, in any way instructed the Defendant officers at the scene to act in the alleged unlawful conduct, condoned, or ratified such alleged conduct. Furthermore, Plaintiffs admit, pursuant to Local Rule 56.1, that "Holmes asked the tactical unit to go to the area of 139th Street and Grace and investigate the complaint of drug activity." (Resp. SF ...

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