The opinion of the court was delivered by: Blanche M. Manning United States District Judge
Plaintiff Steven Spencer, who is deaf, was charged with resisting arrest and assaulting a peace officer. After he was acquitted, he filed suit against the Village of Wheeling and the Wheeling police officers who had arrested him, asserting that the officers used excessive force, violated the Fourth and Fourteenth Amendments by entering his home without a warrant, intentionally inflicted emotional distress upon him, and violated § 504 of the Rehabilitation Act, 29 U.S.C. § 794, which outlines the responsibilities of law enforcement personnel when dealing with hearing impaired individuals. The defendants' motion for summary judgment is before the court. For the following reasons, the motion is denied in part and granted in part.
First and foremost, Local Rule 56.1 provides that "[a]bsent prior leave of Court, a movant shall not file more than 80 separately-numbered statements of undisputed material fact" and "[a]bsent prior leave of Court, a respondent to a summary judgment motion shall not file more than 40 separately-numbered statements of additional facts." The defendants' Rule 56 statement contains 247 paragraphs, which is acceptable as the court granted leave to file additional facts. Spencer, however, did not obtain permission to file a statement containing 69 additional facts.
Spencer has not attempted to explain why he ignored Rule 56.1's limits on the number of facts. In the interests of resolving the defendants' summary judgment motion in this 2004 case expeditiously, the court will not require him to redo his filing. However, it trusts that counsel will file suitably a condensed fact statement in any future cases.
Second, Local Rule 56.1(b)(3)(C) provides that "[a]ll material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." Spencer's responses to the defendants' facts frequently state that the defendants' facts are "contested" but then go on to recite additional non-responsive facts. For example, the defendants state that "Spencer was exhibiting outward signs of rage at the time that Allen Myer was removed from the trailer. (Allen Meyer Dep., 57-58)." Defendants' Facts at ¶ 46.
In response, Spencer states "Contested. Believing it was an act of ignorance and lack of sensitivity on the part of the police to take the provocative action of bringing Mr. Meyer back into the trailer and suggest using him as an interpreter escalated Spencer's emotions. (Tab 1, Spencer Dep., part I, p. [sic] 114-16; Tab 3, Aliza Meyer Dep., p. 80; Tab 10, Spencer Affidavit, ¶¶ 8-11)." This response does not match up with the defendants' proposed fact. A proper response would note whether the defendants accurately summarized Allen Myer's testimony, and would reference any additional testimony addressing whether "Spencer was exhibiting outward signs of rage at the time that Allen Myer was removed from the trailer." A so-called response which does neither of these things and, instead, delves into Spencer's thoughts at the time that Allen Myer was removed from the trailer is totally unhelpful.
Regrettably, this is far from an isolated incident as Spencer's response is rife with non-responsive responses to even the most straightforward of fact statements. The court feels compelled to note that this tactic has left it feeling like it has entered the twilight zone. To wit: the defendants state that when the police arrived, Spencer "began to pace the trailer, becoming angrier and more agitated with each passing minute," citing to a portion of Spencer's deposition where he states that he was "pacing back and forth" and felt that his emotions were escalating. Defendants' Facts at ¶ 55; Spencer Dep. at 121-122.
In response, Spencer states: "Contested. The officers went outside the trailer for 10 or 15 minutes, and Spencer's emotions were slowly escalating and his gate [sic] was increasing as time passed because he got the funny feeling that Mr. Meyer was playing the sympathy card and he was biasing the police officers with his version of things while they were out there together." This "response" is both inapposite as well as unnecessary, as the defendants' facts go on to state "While Spencer was alone in the trailer, his anger was escalating because he thought Mr. Meyer was biasing the officers with his version of what happened." Defendants' Facts at ¶ 57. To say that this "response" is unhelpful is a gross understatement. To the extent that Spencer's responses follow along these lines and fail to respond to the defendants' facts, those facts are deemed admitted to the extent that they are supported by the record.
Third, as noted by the defendants, Spencer's additional facts contain numerous "facts" that are, instead, statements of law or legal conclusions. See, e.g., Plaintiff's ¶ 4 ("The section 504 regulations . . . require law-enforcement officers to provide qualified sign language interpreters for communication with persons who rely on sign language. The Department of Justice Regulations, 28 CFR part 42 states: 'a recipient that employs 15 or more persons shall provide appropriate auxiliary aids to qualified handicapped persons with impaired sensory, manual, or speaking skills, where a refusal to make such provision would discriminatorily impair or exclude the participation of such persons in a program receiving Federal financial assistance.'
(28 C.F.R. § 42.503(f).)" This is not a fact. The court will disregard all such "facts" as well as all legal conclusions and arguments in Spencer's submission. Legal arguments belong in the summary judgment briefs, not the parties' fact statements.
Fourth, it is well established that a plaintiff "cannot create an issue of material fact by submitting an affidavit that contradicts an earlier deposition" unless the plaintiff demonstrates that "the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy." Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 758 (7th Cir. 2006). The defendants assert that paragraphs 20, 24, 28, 33, 34, 35, 36, 39 and 71 of Spencer's affidavit contradict his deposition testimony, but do not provide citations to the allegedly inconsistent portions of this deposition. The court will not attempt to hunt down the exact cites, however, as it agrees with the defendants that Spencer's affidavit goes over events which are addressed in depth in his deposition. The court will thus not consider Spencer's affidavit because to the extent that it contradicts his deposition, it is improper, and to the extent that it does not, it is cumulative. With these caveats in mind, the following facts are drawn from the parties' Rule 56 submissions.
Although the parties have filed literally hundreds of statements of fact (and the court regrets its decision to allow facts over and beyond the number called for by the local rules), the essentials are relatively straightforward. Plaintiff Steven Spencer is deaf and communicates primarily through the use of sign language. He taught himself to speak and uses lipreading and body language to help him understand others. In addition, he uses a teletypewriter (TTY) device attached to his telephone.
The Incident at the Trailer
Spencer and his former girlfriend, Aliza Meyer, who is also deaf and communicates using sign language, co-owned a trailer home in Wheeling, Illinois.*fn1 On March 25, 2003, Aliza's father arrived at the trailer to speak with Spencer about selling it since Spencer and Aliza had split up. Aliza let her father in and her father ordered her to leave the trailer. Spencer used "total communication" (sign, voice, lip reading, and body language) to communicate with Meyer. The conversation rapidly deteriorated, and Spencer became agitated, began to pace, and ordered Meyer to leave.
When Meyer refused to do so, Spencer called 911 using the TTY device attached to his phone. Meyer left the trailer and also called the police, stating that someone else had reported that he was a trespasser and that he wanted to explain his side of the story. Officers Dawson and Conway arrived at the scene and observed Alan and Aliza Meyer and Joe Pinos, a male friend of Aliza's, outside the trailer.
Meyer told the officers that Aliza and Spencer were deaf and communicated using sign language (Aliza) and sign language, lip reading, and residual hearing (Spencer). He also told the officers that he could act as a translator for Spencer. Officer Conway entered the trailer while Officer Dawson interviewed Aliza and Pinos outside. Spencer was very distressed at Meyer's reappearance in the trailer and yelled that he wanted Meyer to leave. Spencer also stated that he could lip read and would resort to written notes if necessary. Due to Spencer's anger, Officer Conway and Meyer left the trailer after six to ten minutes. As they did so, Officer Conway heard thuds emanating from the trailer.
Aliza wanted to get some personal items from the trailer, so she entered the trailer in between Officers Conway and Dawson. The officers did so to effectuate a "citizen standby," where officers assist someone to get property in a potentially dangerous situation. When the officers and Aliza entered the trailer, Spencer looked extremely agitated. He was red in the face and clenched his fists as he paced back and forth. Officer Conway ordered him to stop so the officers could talk to him, and said that they would not charge Meyer with trespassing because he entered the trailer with Aliza's consent. In addition, Officer Conway explained that Aliza was going to ...