The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the motion for summary judgment filed by defendants Southern Illinois Riverboat/Casino Cruises, Inc. ("Harrah's"), James Slone, Jerry Rednour, Glen Melcher, Lori Cooke and Jason Cecil (collectively, "the Harrah's defendants") (Doc. 54). Plaintiff Kenneth Williams ("Williams") has responded to the motion (Doc. 73), and the Harrah's defendants have replied to that response (Doc. 74) and have submitted with their reply brief a response to the facts cited by Williams (Doc. 75). Williams has also filed a motion to strike the response to the facts (Doc. 88), to which the Harrah's defendants have responded (Doc. 92).
I. Motion to Strike (Doc. 88)
The Harrah's defendants' response to the facts is a seven-page document that responds to certain factual allegations made by Williams that they deem misleading or incorrect. Williams asks the Court to strike it as it results in eleven pages of briefing in reply to his response. In this district, reply briefs may only be five pages long unless the Court gives permission for a longer brief. See Local Rule 7.1(d). The Court believes that the response to the facts is a part of the Harrah's defendants' reply to the Williams's response and should be included in the five-page limit for reply briefs. Accordingly, the Court will grant Williams's motion to strike (Doc. 88) and will strike the Harrah's defendants' response to the facts (Doc. 75).
II. Standard for Summary Judgment
Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396.This standard is applied with special scrutiny in cases that turn on issues of intent and credibility. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas, 209 F.3d at 692. Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.
The relevant evidence in this case consists of numerous and differing stories about a sequence of events that happened in the casino in Metropolis, Illinois, owned by defendant Southern Illinois Riverboat/Casino Cruises, Inc. ("Harrah's") on August 27, 2005. The vast majority of the conflicts in the witnesses' recollections of the events involve minor details, such as who was present during which conversations and what exactly was said. Where such details are material to Williams's case, the Court has credited the evidence most favorable to Williams and drawn all the reasonable inferences possible. Where the details are immaterial, as most of the conflicts are, the Court has deciphered the gist of the events and has come up with a coherent story, which follows.
On August 27, 2005, Williams and his wife patronized Harrah's casino. Williams and his wife are black. They had traveled to the casino from Nashville, Tennessee, to take advantage of a complimentary 90-day guest pass to the Diamond Lounge, a "VIP" lounge at the casino. Each Diamond Lounge patron was required to show his or her Diamond Lounge membership card or guest pass at the entrance to the lounge or he would not be allowed to enter. Williams and his wife showed their pass and were admitted to the Diamond Lounge, where they enjoyed the gambling, eating and drinking services. There was only one other black person in the Diamond Lounge while Williams and his wife were there. Around 7:00 that evening, Williams's wife caught the bus back to Nashville, but Williams missed it.
Having missed his bus home, Williams returned to the Diamond Lounge where he met a man from Nashville (the other black man in the Diamond Lounge) who offered to drive Williams home the following morning. Williams then visited the Total Rewards patron service desk in the casino and found out that the next bus to Nashville would leave at 3:30 the following morning. Knowing he had a while to wait whether he took the bus or carpooled with the man from Nashville, Williams politely asked defendant Jimmie Slone ("Slone"), Harrah's Total Rewards supervisor, for a place to rest while he waited. Believing Williams was asking for a hotel room, Slone told him there were no hotel rooms available because they were sold out of rooms at the hotel from which Harrah's purchased rooms. Williams appeared upset and left the Diamond Lounge. Security guard defendant Jason Cecil ("Cecil") arrived the Diamond Lounge responding to a report of an agitated patron. Slone told Cecil Williams was upset because he missed his bus and could not get a hotel room. Cecil testified that Williams was angry and cursing. Williams, on the other hand, has submitted an affidavit stating he was not angry and did not curse. The video surveillance recording is not helpful. It shows Williams making gestures which a reasonable jury could find to indicate disruptive behavior or simply peaceful but animated talking. Without a sound track, a reasonable jury could find either way.
At some point, Williams attempted to get something to eat in the Diamond Lounge, but when he tried, either Slone or Harrah's casino manager defendant Lori Cooke ("Cooke"), who is also black, or both of them told Williams he could not because he was not a Diamond Lounge member. Irritated, Williams insisted the he had a Diamond Lounge pass but he could not readily locate it.
Cooke spoke to Williams in the lobby outside the Diamond Lounge. She testified that during her conversation with Williams he used a lot of profanity in explaining to her that he had not been allowed back into the Diamond Lounge. Again, in light of Williams's affidavit and the ambiguous video surveillance, for the purposes of this motion, the Court must accept Williams's version of events, that is, that he was calm and respectful.
When Cooke asked Williams for his Diamond Lounge pass, he could not readily locate it. Cooke checked Harrah's computer system and determined that Williams was "Gold," not "Diamond," and was therefore not entitled to admission to the Diamond Lounge without a pass. Cooke then spoke with Slone, Harrah's security supervisor defendant Jerry Rednour ("Rednour") and Cecil about the best way to handle the situation. During that conversation, Williams found his Diamond Lounge pass and when he tried to show it to Cooke, she spoke angrily to Williams, who, according to his own affidavit, continued to remain calm and respectful. Cooke then directed Rednour and Cecil to take him out of the casino.
On the way to the escalator with Rednour and Cecil, Williams approached the Total Rewards desk, held his Diamond Lounge pass in the air, walked back and forth and said loudly, as if making a speech, "I'm a Diamond club member. I don't understand why they're kicking me out." He then turned to Cooke, who was a distance away from him, and said on his way to the escalator, "You're black wanting to be white." Rednour and Cecil continued to accompany Williams up the escalator to the exit and into the parking lot. On the escalator, Williams continued to tell patrons below that he was being kicked out unfairly. En route to the exit, Rednour called defendant Glen Melcher ("Melcher"), Harrah's assistant security director, to advise Melcher he and Cecil were escorting a patron off the boat and to advise the security dispatcher to request assistance from the Metropolis Police Department ("MPD").
Illinois Gaming Board ("IGB") agent defendant Anton Eberhart ("Eberhart"), two MPD officers, defendants Michael Hamilton ("Hamilton") and Don Helm ("Helm"), Melcher, other Harrah's security personnel and two Illinois State Police officers joined Rednour, Cecil and Williams in the parking lot. All of those present were white except Williams, who was scared because he was the only black person in the group. Once the others arrived, at Eberhart's request, Rednour, Cecil and the others kept a substantial distance -- 20 to 30 feet -- from Williams and said nothing to him. Rednour pointed Williams out to Eberhart and informed Eberhart that the casino manager had asked Williams to leave the casino and that, in leaving, Williams had become belligerent and had yelled at other casino patrons and had yelled expletives. For about 25 minutes, Eberhart attempted to talk with Williams and calm him down while the others kept their distance. During the conversation Williams meandered around but did not leave the parking lot.
Williams found Eberhart more sympathetic than Harrah's security personnel. When Eberhart asked him to relate what had happened from his perspective, believing Eberhart genuinely cared about him and was concerned about him, Williams told Eberhart in a very respectful way that Harrah's casino personnel had told him to leave the casino, that he had done nothing wrong inside the casino and that he did not understand why he had been thrown out. Eberhart asked him for his driver's license and gave the license to MPD Officer Hamilton.
A number of defendants in this case testified that during Eberhart's conversation with Williams, Williams was yelling and cursing such that some casino patrons appeared alarmed by Williams and kept their distance from him. Williams has given an affidavit statement saying he behaved otherwise. Again, the video surveillance tape is ambiguous in the absence of a sound recording. For the purposes of this motion, the Court must accept as true Williams's statement that he was not cursing or yelling or talking to patrons. Williams does admit, however, that on occasion, while he was talking to Eberhart, Harrah's security guards, who had been tracking him from a distance, began to surround and close in around him. When that happened, Williams told Eberhart in a loud voice, "Keep them back." Eberhart indicated to the security guards that they should back away from Williams, and each time they complied.
At some point, Hamilton assessed that Eberhart and Williams had come to an impasse. Hamilton had also asked Williams if there was anyone he could call to give Williams a ride home, and Williams answered politely, "No." Without discussing the matter with Eberhart, Hamilton decided arresting Williams was the only course of action remaining. Hamilton asked Williams to come toward him to retrieve his license, and as Williams calmly approached, he sensed he was going to be arrested, so he put his hands out and said, "If you're going to arrest me, arrest me, but please don't hurt me or throw me to the ground." At that point, Eberhart took hold of Williams's arms and put them behind his back, and Hamilton applied handcuffs. Hamilton walked Williams to the squad car, and Helm forced Williams to get in the car when he did not readily do so himself.
Later, Cecil filed with the MPD a "patron incident report" about the incident. In that report, Cecil stated that Williams had been belligerent and verbally abusive to Slone and Cook and that he had witnessed Williams be belligerent and verbally abusive on several other occasions, curse at Cooke, yell at casino patrons at the Total Rewards desk using curse words and threatened Cecil and the other security personnel that he would come back to get him. Since the Court has found Williams was not belligerent or verbally abusive, the Court views Cecil's statement as not true. Cecil's report also concluded by saying that trespass papers were filed against Williams. Hamilton did not actually file any papers until later that evening. The patron incident report was attached to Hamilton's arrest report, but Hamilton did not question Cecil about his patron incident report.
Assistant Security Director Melcher filed an affidavit with the MPD as a victim of the incident stating that the attached police report was true to the best of his knowledge. He signed the affidavit despite the fact that he did not witness the events prior to his joining the group in the parking lot. Hamilton did not question Melcher about his affidavit.
Patrick Windhorst ("Windhorst"), the Massac County State's Attorney, reviewed the evidence in the case and charged Williams with criminal trespass to real property for remaining on Harrah's property after having been asked to leave by a Harrah's agent and with disorderly conduct for yelling and cursing so as to alarm Cecil and to provoke a breach of the peace. He dismissed the case pursuant to a nolle prosequi right before trial because in his estimation the case was not serious enough to expend resources on and other more important cases took precedence. He did not dismiss the charges because he believed Williams was innocent, because he believed there was no probable cause to arrest Williams or because there was some other fatal flaw in his case.
Harrah's banned Williams permanently from its premises. Williams was severely depressed for nine months after his arrest and needed medical treatment.
Williams filed the complaint in this case on August 30, 2006, and amended his pleading on February 13, 2007. The Amended Complaint alleges ten counts against various defendants, including cause of action against the Harrah's defendants for violations of 42 U.S.C. § 1981 (Count I), Title II of the Civil Rights Act, 42 U.S.C. § 2000a (Count II), 42 U.S.C. § 1983 for arresting him without probable cause (Count IV), state false arrest law (Count VI), state malicious prosecution law (Count VIII), state defamation law (Count IX) and state intentional infliction of emotional distress law (Count X). In the pending motion, the Harrah's defendants ask the Court for summary judgment on all counts against them.
In Count I, Williams claims defendants Harrah's, Cooke, Melcher, Slone, Rednour and Cecil violated 42 U.S.C. § 1981 by ordering him to leave the casino premises (Am. Compl. ¶ 106), banning him from the facilities in the future (Am. Compl. ¶ 107) and refusing him to use the Diamond Lounge (Am. Compl. ¶ 108).
Section 1981 is "a broad-based prohibition (and federal remedy) against racial discrimination in the making and enforcing of contracts." Humphries v. CBOCS West, Inc., 474 F.3d 387, 393 (7th Cir.), cert granted, 128 S.Ct. 30 (2007). It provides, in pertinent part, "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . ." 42 U.S.C. § 1981(a). The statute further defines making and enforcing contracts to mean "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.: 42 U.S.C. § 1981(b). While § 1981 claims are most often brought in connection with the right to contract for employment, ...