The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendants' motion for summary judgment. For the reasons stated below, we grant in part and deny in part Defendants' motion for summary judgment.
Plaintiff Alexx Lee ("Lee") alleges that on July 10, 2007, he was walking out of a friend's residence whenhe was approached by Defendant Officer Joseph McNeal ("McNeal") and shot in the abdomen. Lee alleges that at no time prior to the shooting was he armed and that he did not take any action to threaten the physical safety of McNeal or any other citizen. Lee also claims that at the time he was shot, he was not an escapee for whom a criminal warrant had been issued and that McNeal had no reason to believe that a criminal warrant had been issued for him. Lee claims that McNeal had no factual or legal justification for shooting Lee in the abdomen. Lee brought the instant action and includes a claim brought pursuant to 42 U.S.C. § 1983 ("Section 1983") alleging the use of excessive force (Count I), a failure to train Monell claim (Count II), a claim for willful and wanton tortious conduct under Illinois state law against Defendants (Count III), a negligence claim under Illinois state law against McNeal (Count IV), an assault claim under Illinois state law (Count V), a battery claim under Illinois state law (Count VI), and a claim for punitive damages against McNeal (Count VII). Defendants now move for summary judgment on all claims.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
I. Section 1983 Excessive Force Claim
Lee contends that McNeal exercised excessive force in shooting Lee and that McNeal's actions violated Lee's rights under the Fourth Amendment and Fourteenth Amendment. Defendants argue that they are entitled to summary judgment on Lee's Section 1983 excessive force claim since McNeal is entitled to qualified immunity and Lee cannot show that McNeal's actions violated his constitutional rights. The central issue with respect to both Lee's excessive force argument and Defendants' argument that McNeal is entitled to qualified immunity is whether the undisputed evidence establishes that McNeal's shooting of Lee was purely accidental.
A. Facts Relating to the Shooting
It is undisputed that on the night of July 10, 2007, McNeal and his partner Detective Timothy McPherson ("McPherson") were on patrol in an unmarked vehicle as members of a tactical unit. (RSF Par. 33). Defendants do not dispute the fact that this was McNeal's first day on the tactical force. (RSAF Par. 23). It is also undisputed that, on that night, Lee was visiting friends at 14928 Evers Street ("Evers House") which was located adjacent to a vacant house near the corner of 149th Street and Evers Street in Dolton, Illinois. (RSAF Par. 3). The parties agree that some time that evening an anonymous citizen called the Dolton Police with a tip that drug sales were taking place at a vacant house near the corner of 149th Street and Evers Street. (RSAF Par. 2). The parties also agree that McNeal, McPherson, and other officers in another squad car responded to the call. (RSF Par. 35); (SAF Par. 18). Defendants have offered substantial evidence indicating that the area of 149th Street and Evers Street was an area known for heavy drug presence where there had been previous reports of gun activity. (SF Par. 36). Lee has disputed this fact, but has not pointed to any evidence indicating that the area was not known for such drug activity and violence. (RSF Par. 36). As such, Defendant's statement that the area was known for drugs and violence is a fact that is deemed to be undisputed. See Martino v. MCI Communications Servs., Inc., 2008 WL 2157170, at *1 (N.D. Ill. 2008)(stating that a "[c]court may disregard statements and responses that do not properly cite to the record"); Dent v. Bestfoods, 2003 WL 22025008, at *1 n.1 (N.D. Ill. 2003)(indicating that a denial is improper if the denial is not accompanied by specific references to admissible evidence or portions of the record representing admissible evidence).
The parties agree that McNeal and McPherson were the first officers to arrive on the scene where they witnessed several individuals in front of the Evers House, some of whom proceeded towards the back of the Evers House when McNeal and McPherson arrived. (SAF Par. 18); (RSAF Par.18). The parties do not dispute the fact that McNeal was dropped off from the squad car and approached the Evers House on foot while McPherson and the other squad car proceeded to drive to the back of the Evers House leaving McNeal alone in the front of the house. (SAF Par. 27); (RSAF Par. 27).
It is at this point that the parties offer conflicting versions of the events that followed. McNeal contends that he followed the individuals who fled towards the back of the house. Lee has put forth testimonial evidence that he exited the side door of the Evers House with his friend Haley Thompson ("Thompson") to smoke a cigarette. (SAF Par. 4). According to the evidence submitted by Lee, as Lee was within two steps of the Evers House, he saw McNeal and Lee heard someone yell "freeze." (SAF Par. 6-7). Lee testified that as he was raising his hands in the air he was shot. (SAF Par. 7). Lee testified that he did not hold anything in his hands at the time of the shooting. (SAF Par. 13).
Defendants offer evidence that McNeal entered the pathway between the vacant house and the Evers House with his service revolver drawn in his left hand and his flashlight in his right hand. (SF Par. 44). McNeal testified that he came upon two individuals walking towards him from about five to seven feet away. (SF Par. 43). McNeal testified that his flashlight malfunctioned and that the individuals appeared to him as only silhouettes. (SF Par. 43, 46). McNeal testified that he identified himself as a police officer and ordered both individuals to "get on the ground." (SF Par. 46). Defendants claim that neither man obeyed McNeal's request and continued in McNeal's direction. (SF Par. 49). Defendants point to McNeal's testimony that he waited five seconds and, after noticing that one of the individuals had his hands in his pockets, repeated his command to the individuals. (SF Par. 48-49). Lee disputes each of these facts attested by McNeal and points to Lee's own testimony that McNeal simply yelled "freeze" and ...