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Wormely v. Ponce

November 19, 2007

CHARLES M. WORMELY AND CARLEASA WORMELY, PLAINTIFFS,
v.
FRANK PONCE, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, YVONNE RODGERS, LAKISHIANA RODGERS, KEAWANNA RODGERS, AND THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Chief Judge James F. Holderman

MEMORANDUM OPINION AND ORDER

Charles M. Wormely ("Charles") and his sister, Carleasa Wormely ("Carleasa") (collectively "the Wormelys"), brought this lawsuit under 28 U.S.C. §§ 1983, 1985, 1986, and Illinois law against the City of Chicago, Officer Frank Ponce ("Ponce"), and three of their neighbors--Yvonne Rodgers ("Yvonne"), Lakishiana Rodgers, and Keawanna Rodgers (collectively "the Rodgers"). The Wormelys contend that Ponce unlawfully executed a search warrant on their home, causing damage to their persons and possessions. Before this court are the following motions: Ponce's Motion to Strike Plaintiffs' One Page Supplemental Memorandum Filed Without Leave of Court on September 13, 2007 [192], Ponce's Motion to Strike Plaintiffs' Local Rule 56.1(b)(3)(A) Response to His Statement of Undisputed Facts [170], and Ponce's Motion for Summary Judgment [148].

The court first addresses Ponce's evidentiary motions because his objections to the Wormelys' summary judgment submissions are extensive and affect, in large part, the facts that properly can and should be considered by the court in addressing Ponce's motion for summary judgment.

A. Ponce's Motions to Strike

As an initial matter, Ponce seeks to strike two documents submitted by the Wormelys in response to his motion for summary judgment. First, Ponce asks this court to strike a document entitled "Additions of Admissions By Defendant Ponce, to Pfs' Response Opposing Df. Ponce's Motion for Summary Judgment" (submitted as docket no. 180 and resubmitted as docket no. 182), arguing that the Wormelys never obtained permission to file the document. Ponce is correct. By minute order dated September 12, 2007, this court granted the Wormelys leave to file two additional documents in support of their memorandum in opposition to summary judgment: Defendant Ponce's Response to Plaintiffs' Requests to Admit and Defendant Ponce's Answers to Plaintiffs' Interrogatories. The Wormelys were not given leave to supplement or amend their memorandum of law opposing summary judgment or Rule 56.1 statement in any other way. Thus, documents filed by the Wormelys on September 13, 2007, as docket entries numbered 180 and 182 are stricken.

Second, Ponce seeks to strike the Wormelys' response to his proposed statements of undisputed fact in its entirety for failure to comply with Local Rule 56.1. Although this court denies Ponce's request to strike the Wormelys' Rule 56.1(b) submission in its entirety, many of the responses must be stricken individually, in whole or in part, for failure to comply with Local Rule 56.1.

To assist the court in ruling on a motion for summary judgment, Local Rule 56.1 of the Northern District of Illinois imposes certain requirements on the parties. First, the moving party must file "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." L.R. 56.1(a)(3). In return, the opposing party must file "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(B). Local Rule 56.1(b) is not satisfied by general denials but requires instead that the opposing party cite to specific evidentiary materials supporting the denial, Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004), nor is Local Rule 56.1(b) satisfied by argumentative, evasive, or improper denials, Bordelon v. Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 528 (7th Cir. 2000). Failure of an opposing party to respond properly will result in the court deeming admitted the statements of fact set forth in the moving party's 56.1(a)(3) submission. L.R. 56.1(b)(3)(C); see Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). It is within the district court's discretion to require strict compliance with Rule 56.1. FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005) (collecting cases).

Ponce argues that the Wormelys' responses to paragraphs 8, 9, 12, 25, 26, 35, 38, 40, 41, 46, and 47 should be stricken because they are based on affidavits that alter the Wormelys' deposition testimony. A review of the responses to paragraphs 35, 38, 40, 41, and 46 reveal that the Wormelys have indeed cited to affidavits that contradict, at least in part, prior deposition testimony. Thus, to the extent the denials rely upon facts asserted in affidavits that are inconsistent with prior deposition testimony, this court will disregard the affidavits. See Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001) ("[A] party may not attempt to survive a motion for summary judgment by manufacturing a factual dispute through the submission of an affidavit that contradicts prior deposition testimony."). Moreover, a review of the remaining responses demonstrates that the Wormelys misrepresented evidence used to support the denials (¶ 8), failed to cite admissible evidence controverting a fact at issue (¶¶ 8, 9, 12, 47), improperly attempted to add new facts (¶¶ 9, 25, 47), and included improper argument (¶ 25). Consequently, the Wormelys' responses to paragraphs 8, 9, 12, 25, and 47 are stricken, and Ponce's statements of fact set forth in those paragraphs of Ponce's Local Rule 56.1(a) statement [149] are deemed admitted.

Ponce also argues that the Wormelys' responses to paragraphs 6, 7, 11, 14, 15, 16, 17, 18, 19, 24, 26, 27, 28, 30, 31, 32, 39, 43, 49, 50, 52, 54, 56, and 57 should be stricken for failure to comply with Rule 56.1(b). In fact, many of the responses misrepresent evidence used to support the denials (¶¶ 6, 11), fail to cite admissible evidence controverting a fact at issue (¶¶ 6, 11, 14, 15, 16, 17, 18, 19, 27, 28, 30, 31, 32, 39, 43, 49, 50, 52, 56, 57), improperly attempt to add new facts (¶ 11, 28), and included improper argument (¶¶ 14, 15, 16, 17, 18, 24, 27, 28, 31, 32). For example, in response to paragraph 19, the Wormelys cite to six affidavits purporting to establish that Yvonne met with Ponce prior to June 26, 2005. Three of the affidavits make no mention whatsoever of meetings between Yvonne and Ponce, and none of the affidavits specify that the affiants personally observed interactions between Yvonne and Ponce. Instead, the affidavits leave this court wondering how the affiants acquired their information. See Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) ("[A]lthough personal knowledge may include reasonable inferences, those inferences must be 'grounded in observation or other first-hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.'") (internal quotation marks omitted). Accordingly, the Wormelys' responses to paragraphs 6, 11, 14, 15, 16, 17, 18, 19, 24, 27, 28, 30, 31, 32, 39, 43, 49, 50, 52, 56, and 57 are stricken, and Ponce's statements of fact set forth in those paragraphs are deemed admitted.

Finally, this court notes that many of the facts set forth in the Wormelys' Rule 56(b)(3)(C) Statement of Additional Facts [157] suffer from the same flaws as the Wormelys' 56.1(b) responses. See Waldridge v. Am. Hoeschst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994) (explaining that district court may sua sponte enforce Local Rule 56.1). Specifically, paragraphs 2, 3, 4, 8, 9, 10, 11, 13, 15, 16, 22, 23, and 26 either fail to cite evidence entirely or cite evidence that does not support the fact asserted. Those paragraphs therefore are stricken. In addition, paragraphs 20, 21, 27, and 28 cite affidavits that are inconsistent with the affiant's prior deposition testimony. Thus, to the extent those paragraphs contain facts asserted in affidavits that are inconsistent with prior deposition testimony, the court will disregard the affidavits. See Amadio, 238 F.3d at 926.

B. Ponce's Motion for Summary Judgment

In ruling on any motion for summary judgment, this court must consider the facts in the light most favorable to the non-moving party, drawing all reasonable inferences and resolving all doubts in the non-moving party's favor. Keri v. Bd. of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). Therefore, in considering this motion the court will review the facts and all reasonable inferences in favor of the Wormelys.

On June 26, 2005, three of Charles Wormely's pit bull dogs fought with Eclipse, a dog owned by Charles's neighbor Yvonne Rodgers, in front of the Wormelys' residence at 1846 South Kildare in Chicago, Illinois. Eclipse sustained multiple puncture wounds and lost a large amount of blood as a result of the fight, and Yvonne had Eclipse euthanized that same day. The next day, Yvonne called the police to report the fight. Police Officers Daily and Givens responded to Yvonne's call and prepared a report for criminal damage to property stemming from the dog fight. In addition, Yvonne had received from a nurse at the veterinary hospital that treated Eclipse a telephone number to call when dogs have been "abused" by other dogs. Yvonne called the number several times after the fight and eventually talked with a man who told her that the police would come to talk with her.

On June 29, 2005, Ponce, who was assigned to the Animal Abuse Control Team, and another officer talked with Yvonne. This was the first time Yvonne had met Ponce. Yvonne told the officers that a person known as "Charlie" lived at 1846 South Kildare. Charlie was a 25-to 30-year-old, slim, black male with curly hair. On June 26, 2005, Yvonne said, she saw Charlie intentionally release one of his male pit bulls from the front yard of 1846 South Kildare to attack another dog. While Charlie's pit bull was attacking the other dog, Yvonne saw Charlie release an additional two pit bulls to attack the same dog, causing severe injuries and bleeding to the dog. Yvonne then saw Charlie take the pit bulls into the townhouse at 1846 South Kildare. ...


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