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
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
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
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 ...