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Johnson v. City of Joliet

February 13, 2007


The opinion of the court was delivered by: John F. Grady, United States District Judge


This case is before the court for ruling on plaintiff's

(1) motion for leave to file a second amended complaint and

(2) Federal Rule of Civil Procedure 56(f) affidavit seeking discovery in order to respond to defendants' motion for summary judgment. For the reasons explained below, plaintiff's motion for leave to file a second amended complaint is granted in part, denied in part and entered and continued in part and her request for discovery pursuant to Rule 56(f) is granted in part and denied in part.


In October 2004, plaintiff Bobbie Johnson ("Johnson"),*fn1 an African-American woman, sued the City of Joliet ("the City"), David R. Mackley ("Mackley"), an inspector with the City's Building Inspections and Permit Department, Richard Thompson ("Thompson"), a property maintenance inspector for the City's Neighborhood Services Division, and Mary Kucharz ("Kucharz"), assistant corporation counsel for the City's Legal Department, for various violations of her constitutional rights. Johnson's claims, as subsequently amended, arise out of the demolition of her garage on October 6, 2002 and an ordinance violation proceeding commenced against her in December 2002 for failing to remove the debris in her yard that resulted from the demolition. More specifically,*fn2 Johnson alleges that after a car ran into her garage causing structural damage, defendant Mackley directed one of the City's hired demolition contractors to demolish her garage. The garage was demolished and the debris was left in her yard. After complaining about the demolition to the City in writing and receiving no response, plaintiff publicly criticized Mackley's actions at the General Council Assembly session in November 2002. Later, on or about December 11, 2002, Thompson and Kucharz commenced an ordinance violation proceeding against Johnson for allegedly failing to remove the debris from her property. According to Johnson, Mackley would not have ordered the immediate demolition of her garage if she were white and, moreover, Thompson and Kucharz instituted the ordinance violation proceeding against her in retaliation for her public criticism of Mackley. Three of Johnson's six claims survived defendants' motion to dismiss: her Monell claim under 42 U.S.C. § 1983 against the City for failure to properly train, supervise and control the individual defendants, her § 1983 claim against Mackley and Thompson for depriving her of equal protection of the laws and her § 1982 claim against the City and Mackley for depriving her of her property rights.

At a status hearing on November 1, 2006, defense counsel informed the court of his intention to file a motion for summary judgment. Defense counsel further informed the court that although Johnson (who did not attend the status hearing) had tendered written discovery to defendants which they had not yet answered, counsel did not believe that the outstanding discovery would interfere with the defendants' motion for summary judgment.

The court thus entered a briefing schedule for the summary judgment motion. Johnson later objected to the briefing schedule, asserting that she needed answers to the discovery she had served in order to defend the summary judgment motion. After the court declined to vacate the briefing schedule, Johnson filed the Rule 56(f) affidavit and the Rule 15(a) motion for leave to file a second amended complaint that are presently before the court.


A. Ghost-Writing

As an initial matter, before addressing Johnson's motions, the court needs to address a serious concern with Johnson's pleadings. Johnson represents that she is acting pro se, yet given the arguments she raises and the language and style of her written submissions, it is obvious to both the court and defense counsel that someone with legal knowledge has been providing substantial assistance and drafting her pleadings and legal memoranda. We suspect that Johnson is working with an unidentified attorney, although it is possible that a layperson with legal knowledge is assisting her. Regardless, neither scenario is acceptable.

If, as we suspect, a licensed attorney has been ghost-writing Johnson's pleadings, this presents a serious matter of unprofessional conduct. Such conduct would circumvent the requirements of Rule 11 which "obligates members of the bar to sign all documents submitted to the court, to personally represent that there are grounds to support the assertions made in each filing." Ricotta v. California, 4 F. Supp. 2d 961, 987 (S.D. Cal. 1998) (citing Johnson v. Bd. of County Comm'rs for County of Fremont, 868 F. Supp. 1226, 1231 (D. Colo. 1994)); Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075, 1078 (E.D. Va. 1997). Moreover, federal courts generally give pro se litigants greater latitude than litigants who are represented by counsel. Haines v. Kerner, 404 U.S. 519, 520 (1972). It would be patently unfair for Johnson to benefit from the less-stringent standard applied to pro se litigants if, in fact, she is receiving substantial behind-the-scenes assistance from counsel. Laremont-Lopez, 968 F. Supp. at 1078. As the Ricotta court explained,

[A] licensed attorney does not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members or others with whom he may want to share some specialized knowledge. Otherwise, virtually every attorney licensed to practice would be eligible for contempt proceedings. Attorneys cross the line, however, when they gather and anonymously present legal arguments, with the actual or constructive knowledge that the work will be presented in some similar form in a motion before the Court. With such participation the attorney guides the course of litigation while standing in the shadows of the Courthouse door.

Ricotta, 4 F. Supp. at 987 (emphasis added) (admonishing attorney for drafting briefs for plaintiff who ...

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