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Ross v. St. Eve

July 31, 2009


The opinion of the court was delivered by: Joan B. Gottschall United States District Court Judge

Judge Joan B. Gottschall


Plaintiff, Charles Ross, filed suit, pro se, against the district court judge, the two prosecutors, the five postal inspectors, and three of his attorneys who were involved in the search of his apartment and his subsequent arrest, prosecution, and sentencing for his involvement in the armed robbery of a postal truck. The Court sua sponte dismissed the claims against the district court judge, the prosecutors, and the defense attorneys. See May 25, 2005, Order. Presently pending before the Court is the remaining five postal inspectors' motion for summary judgment. For the reasons stated in this order, the motion for summary judgment is granted.


Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). All of the evidence and the reasonable inferences that may be drawn from the evidence are viewed in the light most favorable to the non-movant. Miller v. American Family Mutual Ins., 203 F.3d 997, 1003 (7th Cir. 2000). Summary judgment may be granted when no "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, a party cannot defeat summary judgment by relying on unsubstantiated facts or by merely resting on its pleadings. See Hemsworth, II v., Inc., 476 F.3d 487, 490 (7th Cir. 2007); Greer v. Board of Educ. of the City of Chicago, 267 F.3d 723, 729 (7th Cir. 2001). Instead, the party that bears the burden of proof on an issue must affirmatively demonstrate, with admissible evidence, that a genuine issue of material fact exists that requires a trial. See Hemsworth, 476 F.3d at 490.

When Defendants filed their motion for summary judgment, they included a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992); Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982). This notice clearly sets out the requirements of this Court's Local Rule 56.1. In particular, the notice explains that Plaintiff's response must comply with Federal Rule of Civil Procedure 56(e) and Local Rule 56.1 Local Rule 56.1(b) requires a party opposing a motion for summary judgment to file:

(3) a concise response to the movant's statement that shall contain:

(A) 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, and

(B) a statement, consisting of short numbered paragraphs, of any additional facts that require denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.

L.R. 56.1(b). The district court may require strict compliance with Local Rule 56.1. See Ammons v. Aramark Uniform Serv., Inc., 368 F.3d 809, 817 (7th Cir. 2004); Bordelon v. Chicago School Reform Board of Trustees, 233 F.3d 524, 527 (7th Cir 2000) (strict compliance with the local rules governing summary judgment is upheld given the importance of local rules that structure the summary judgment process); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs"). Although pro se plaintiffs are entitled to lenient standards, compliance with procedural rules is required. Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) ("[R]ules apply to uncounseled litigants and must be enforced"); Jones v. Phipps, 39 F.3d 158, 163 (7th Cir.1994); Fischer v. Ameritech, No. 98 C 7470, 2002 WL 1949726, *4 (N.D. Ill. Aug. 23, 2002) (Pallmeyer, J.). Despite being given this notice, Plaintiff's response to Defendants' motion is deficient. Plaintiff filed a response to the Defendants' proposed local rule 56.1 statement of uncontested facts in which he attempts to dispute most of the proposed undisputed facts. However, contrary to Local Rule 56.1(b)(3), Plaintiff fails to support his disagreement with the proposed undisputed facts with any specific references to the affidavits, parts of the record, or other supporting materials that he is relying on to dispute the proposed undisputed facts.

For example, Defendants' proposed undisputed fact No. 3 states that a magistrate judge found that probable cause existed and that he issued the requested search warrant. Plaintiff's deficient response is: "If a magistrate judge found probable cause to issue a search warrant why is there no record anywhere stating such a warrant was issued? This is the very reason why postal inspectors waited five (5) months after the alleged crime ro break the law and force their way into Plaintiff's home without a warrant, because a search warrant never existed or probable cause. Probable cause only existed due to the prejudice and total abuse of [discretion] by J. St. Eve.. i.e. 9-9-2004, 9-28-2004 and 9-30-2004." But legal arguments and conclusions are not "facts." Plaintiff's response to Defendants' proposed undisputed facts is not in compliance with Rule 56.1(b)(3)(A). Accordingly, Defendants' proposed undisputed facts are deemed admitted. See Chelios v. Heavener, 520 F.3d 678, 687 (7th Cir. 2008); L.R. 56.1(b)(3)(B).

Because Plaintiff is proceeding pro se, the Court will consider the factual assertions he makes in his response, but only to the extent that Plaintiff could properly testify about the matters asserted at trial -- that is, only with respect to those facts within Plaintiff's personal knowledge. See FED. R. EVID. 602.


On January 4, 2004, Silvia Carrier, a postal inspector with the United States Postal Inspection Service, applied for a warrant to enter Plaintiff's apartment and search for various items, including handguns and ammunition. (Defs.' 56.1(a)(3) Statement ΒΆ 1.) In support of that application, Carrier submitted an affidavit stating that: (1) she was investigating an armed robbery of a postal truck; (2) Richard Johnston, who had been arrested based on fingerprints found on the postal truck, had identified Plaintiff as the gunman during the armed robbery; (3) Plaintiff was on parole and had been incarcerated in the Illinois Department of Corrections on five occasions; (4) according to Johnston, Plaintiff owned two firearms and "always had a gun with him;" and (5) based on Carrier's training and experience, individuals who participate in armed robberies are likely to keep firearms for ...

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