The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Katimahmud Goldsmith, brought suit against the City
of Chicago, Chicago Police Officers Brian Murphy and Robert Kane,
and Colleen Murphy, Meghan Mingy, and Mary Malooly. On June 23,
2004, all federal claims against the City were dismissed pursuant
to a Release and Settlement Agreement and Stipulation to Dismiss.
This Settlement Agreement did not resolve "any issue involving
the liability under the state claims against the City of Chicago
for any actions or inactions of defendants Robert Kane and Brian
Murphy." The agreement permitted the City "to remain a party in
this action to protect the City's interests regarding any issue
concerning the scope of employment of defendants Brian Murphy and
Robert Kane." Presently pending before the Court is the City's
Motion for Summary Judgment.
On August 3, 2002, Goldsmith attended a block party on North
Octavia Street in the Edison Park neighborhood of Chicago.
(Def.'s 56.1(a)(3) Statement ¶ 6). Goldsmith was the only
African-American present at the party. (Id., ¶ 7). After
midnight, while the party was still going on, Goldsmith and several other males took off their shirts. (Id., ¶
8). Brian Murphy approached Goldsmith and requested that he put
his shirt back on. (Id., ¶ 9; B.M.'s Response ¶ 9).*fn1
Goldsmith put his shirt back on. (Def.'s 56.1(a)(3) Statement ¶
10; B.M.'s Response ¶ 10). Shortly thereafter, in the early
morning hours of August 4, 2002, Goldsmith was attacked by
various individuals while at the party. (Def.'s 56.1(a)(3)
Statement ¶ 10; B.M.'s Response ¶ 10). People screamed, yelled,
and shouted racial epithets while Goldsmith was struck. (Def.'s
56.1(a)(3) Statement, ¶¶ 11, 13; B.M.'s Response, ¶¶ 10-11).
Goldsmith suffered injuries to his spleen and to one eye as a
result of the attack. (Id., ¶ 15). Because of these injuries,
Goldsmith was hospitalized for several days. (Id., ¶ 16).
On August 3-4, 2002, Brian Murphy was employed by the City as a
police officer. (Def.'s 56.1(a)(3) Statement ¶ 19). However,
Brian Murphy was off-duty on August 3-4, 2002, at the time of the
incidents alleged in the complaint. (Id., ¶ 20). On August 3-4,
2002, Brian Murphy also attended the block party along the 7300
block of North Octavia Street. (Id., ¶ 21). He arrived at the
block party between 9:00 p.m. and 10:00 p.m., wearing casual
clothes. (Id., ¶ 23; B.M.'s Response ¶ 23; B.M.'s 56(b)(3)(B)
Statement ¶ 3). When Brian Murphy arrived, he saw Murphy, Mingy,
Chrissy Noble, Liz Kooy, and Bill Dossas sitting in front of
Brian Murphy's parents' residence on North Octavia Street.
(B.M.'s 56(b)(3)(B) Statement ¶¶ 2, 5). Brian Murphy also saw
Goldsmith across the street with Eric Johnson at Donald
Johansen's house. (Id., ¶ 7). While at the block party, Brian
Murphy drank alcoholic beverages. (Def.'s 56.1(a)(3) Statement ¶
24; Plaint.'s Response ¶ 24). While Brian Murphy was in his parents' house on North Octavia
Street, he heard an argument ensue in the street (B.M.'s
56(b)(3)(B) Statement ¶ 9). Brian Murphy ran outside and
witnessed men and women swearing and yelling. (Id., ¶ 10). Brian
Murphy told the people yelling to go somewhere else. (Id., ¶ 11).
A group of people, including Goldsmith, Ryan Friel, Timothy
Briski, Mingy, Tom Moran, Kane, and others then continued
southbound on Octavia Street towards its intersection with Chase.
(Id., ¶ 13). Hoping that the fight would not escalate beyond the
yelling and screaming, Brian Murphy followed the crowd to the
corner of Chase and Octavia. (Id., ¶ 14). At the corner of Chase
and Octavia, Brian Murphy got in betweenoldsmith and Kane in an
attempt to break up the fight, which he did successfully. (Id.,
¶¶ 16, 17).
Brian Murphy cannot say for sure whether he acted as an officer
in breaking up the fight and telling the crowd to go somewhere
else. (Id., ¶ 18). Goldsmith knew at all times that Brian Murphy
was a police officer. (Id., ¶ 19). Brian Murphy did not arrest or
take custody of Goldsmith at anytime during the block party
(B.M.'s Response ¶ 25). Brian Murphy did not announce himself as
a police officer at anytime during the block party or the
incidents alleged in the complaint. (Def.'s 56.1(a)(3) Statement
¶ 26). He did, however, identify himself as an off-duty police
officer and displayed his police star, which he carried in his
wallet out of habit, to the responding officers to the incidents
alleged in the complaint. (B.M.'s 56(b)(3)(B) Statement ¶¶ 21,
22). Brian Murphy told the responding officers that there had
been an altercation and that he had separated the parties. (Id.,
¶ 23; Def.'s Response ¶ 23). After asking the responding officers
if they needed anything else from him, Brian Murphy went back to
his parents' house. (B.M.'s 56(b)(3)(B) Statement ¶ 24).
Later, Brian Murphy learned that an argument had started across
the street from his parents' house involving Mingy and Goldsmith.
(Id., ¶ 25). Brian Murphy, himself, never summoned Chicago police units to the altercation between Goldsmith and
another individual in the early morning hours of August 4, 2002.
(Def.'s 56.1(a)(3) Statement ¶ 28).
On August 3-4, 2002, Kane, a Chicago police officer, also
attended the block party in the 7300 block of North Octavia as
the guest of Mingy. (Def.'s 56.1(a)(3) Statement ¶¶ 31-33). While
at the block party, Kane drank alcoholic beverages. (Id., ¶ 34).
At no time during the block party did Kane ever arrest Goldsmith
or anyone else. (Id., ¶ 35). Kane did not display his police star
or any other item identifying him as a police officer, nor did he
call for or summon police assistance at any time during the
incidents alleged in the complaint. (Id., ¶¶ 36-37). Kane was not
carrying his duty weapon or any other backup weapon during the
block party at the time of the incidents alleged in the
complaint. (Id., ¶ 38).
The Rules and Regulations of the Chicago Police Department, as
well as relevant General Orders of the Chicago Police Department,
forbid officers from taking police action motivated by racial
animus or based on racial bias. (Def.'s 56.1(a)(3) Statement ¶
39). The General Orders of the Chicago Police Department require
an off-duty officer to take some action when he observes a crime
being committed (Id., ¶ 40).
Summary judgment is proper if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact." Fed R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-323 (1986) (Celotex). All of the
evidence and the reasonable inferences that may be drawn from the
evidence are viewed in the light most favorable to the nonmovant.
Miller v. American Family Mutual Ins., 203 F.3d 997, 1003 (7th
Cir. 2000). Summary judgment may be granted when no "reasonable
jury could return a verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (Anderson).
However, a party cannot defeat summary judgment by relying on
unsubstantiated facts. See Greer v. Board of Educ. of the City
of Chicago, 267 F.3d 723, 729 (7th Cir. 2001) (Greer).
The City of Chicago argues that Goldsmith has failed to state a
claim against the City under 745 ILCS 10/9-102. While the City
included this argument in its Motion for Summary Judgment, it, in
essence, is moving to dismiss Goldsmith's claim pursuant to
Fed.R. Civ. P 12(b)(6). In reviewing a motion to dismiss, the court
considers all allegations in the complaint and any reasonable
inferences drawn therefrom in the light most favorable to the
plaintiff. See Marshall-Mosby v. Corporate Receivables, Inc.,
205 F.3d 323, 326 (7th Cir. 2000). Dismissal is warranted if "it
appears beyond a doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The "suit should
not be dismissed if it is possible to hypothesize facts,
consistent with the complaint, that would make out a claim."
Graehling v. Vill. of Lombard, Ill., 58 F.3d 295, 297 (7th Cir.
Section 9-102 provides, in pertinent part, that "A local pubic
entity is empowered and directed to pay any tort judgment or
settlement for compensatory damages (and may pay any associated
attorney's fees and costs) for which it or an employee while
acting within the scope of his employment is liable . . ."
745 ILCS 10/9-102. While Goldsmith has not explicitly charged the
City with indemnification under 745 ILCS 10/9-102, Goldsmith has
satisfied the requirements of notice pleading. Notice pleading
does not require pleadings of legal theories based in case law or
statutes, but merely requires a brief description of the claim.
Shah v. Inter-Continental Hotel Chicago Operating Corp.,
314 F.3d 278, 282 (7th Cir. 2002). Specifically, the plaintiff's
pleadings must allow the district court to understand the gravamen of the
plaintiff's complaint. Phelan v. City of Chicago, 347 F.3d 679,
682 (7th Cir. 2003). Moreover, it has been repeatedly emphasized
that the civil rules establish notice pleading as the system for
this Circuit. Shah, 314 F.3d at 282 (citing e.g. Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 512 (2002); Beanstalk Group, Inc.
v. AM Gen. Corp., 283 F.3d 856, 863 (7th Cir. 2002); Jackson v.
Marion County, 66 F.3d 151, 153 (7th Cir. 1995)).
Goldsmith's Second Amended Complaint alleges that Brian Murphy
was "at all times relevant, acting under color of [his] office as
a Chicago police officers [sic]." (Plaintiff's Second Amended
Complaint ¶ 3). This is sufficient to give notice to the City
that Goldsmith is seeking ...