The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Plaintiff, Dana Holland ("Holland" or "Plaintiff") initially filed suit alleging violations of state law against the City of Chicago and two Chicago Police officers, Timothy Cullinan ("Cullinan") and Nancy Piekarski ("Piekarski") on July 29, 2003 in the Circuit Court of Cook County. Plaintiff amended his complaint on April 29, 2005, when he added two federal claims. That Second Amended Complaint*fn1 ("SAC") brought the following claims against Defendants: malicious prosecution against the Defendant Officers ("SAC Count I"); malicious prosecution against the City ("SAC Count II"); violation of equal protection against the Defendant Officers under 42 U.S.C. § 1983 ("SAC Count III"); and a "custom and practice" claim against the City ("SAC Count IV"), which appeared to be a Monell-type claim. On June 1, 2005, Defendants filed a Notice of Removal of the case to this Court pursuant to 28 U.S.C. §§ 1441 (b) and (c) and 28 U.S.C. § 1446. Defendants moved to dismiss the SAC in its entirety. By order of January 23, 2006, the Court granted Defendants' motion as to Plaintiff's federal claims (SAC Counts III and IV) - dismissing those claims without prejudice - and denied Defendants' motion as to Plaintiff's state law claims.
Plaintiff thereafter filed a "Third Amended Complaint" ("TAC"), which again brings malicious prosecution claims against the Defendant Officers ("TAC Count I") and the City ("TAC Count II"). The TAC also claims that Defendant Officers violated Plaintiff's equal protection and due process rights under 42 U.S.C. § 1983 ("TAC Count III") and that the City of Chicago similarly violated Plaintiff's equal protection and due process rights through certain "practices and/or customs," a claim which is now expressly styled as a Monell claim" ("TAC Count IV").
Defendants filed a motion to dismiss TAC Counts III and IV for failure to state claims upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). On January 8, 2007, the Court granted the 12(b)(6) motion for Counts III and IV, saying they were time-barred to the extent that they attempted to state a § 1983 Equal Protection claim, but denied the 12(b)(6) motion for § 1983 claims of Due Process violations in Counts III and IV. The case is before the Court on a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of triable fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Once the moving party has set forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go beyond mere allegations and offer specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The nonmoving party must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact.
Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). A party will be successful in opposing summary judgment only if it presents "definite, competent evidence to rebut the motion." EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000). I consider the record in the light most favorable to the nonmoving party, and draw all reasonable inferences in the non-movant's favor. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). I will accept the nonmoving party's version of any disputed fact only if it is supported by relevant, admissible evidence. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).
Defendants object to and move to strike Plaintiff's Statement of Fact Numbers 3, 4, 5, 6, 7, and 8, which state the expert opinions of William Gaut, on the grounds that they reference an expert report which is inadmissible pursuant to Federal Rule of Civil Procedure 56(e). This rule requires that "a supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." (Fed. R. Civ. P. 56(e)). Defendants also argue that these paragraphs should be stricken pursuant to Federal Rule of Evidence 702, which requires the proponent of expert testimony to demonstrate that the expert is property qualified, that the opinions are based on sufficient facts, that the methods and principles are reliable, and that the witness has reliably applied the methods and principles to the facts of the case. See Fed. R. Evid. 702. Defendants do not dispute Gaut's qualifications as an expert generally.
Defendants' motion to strike these paragraphs is denied. In his accompanying deposition, Gaut swears to his qualifications, authenticates the report, and discusses at length the materials he considered in formulating his opinions. "To be admissible [on a motion for summary judgment], documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2722 (3d ed.1998). For purposes of 56(e), a deposition, as sworn testimony, is comparable to an affidavit attesting to the same. See DG&G, Inc. v. FlexSol Packaging Corp. of Pompano Beach,576 F.3d 820, 825 -826 (8th Cir. 2009) ("To be considered on summary judgment, documents must be authenticated by and attached to an affidavit made on personal knowledge setting forth such facts as would be admissible in evidence or a deposition that meets the requirements of Fed.R.Civ.P. 56(e).") (citation omitted). Mr. Gaut's testimony that he neglected certain facts in forming the opinions expressed in the report certainly goes to the weight of the report, but not its admissibility. However, to the extent that Gaut's report contains legal conclusions, it is deemed stricken on the ground that such testimony is inadmissible. Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003); U.S. v. Sinclair, 74 F.3d 753, 757 n.1 (7th Cir. 1996) (expert witnesses "cannot testify about legal issues on which the judge will instruct the jury.").
Defendants further move to strike Plaintiff's Statement of Fact Numbers 18, 19, and 20 for failure to comply with the aforementioned Federal Rule of Civil Procedure 56(e) and Federal Rule of Evidence 702. The report referred to in these paragraphs is unsworn and does not comply with Rule 56(e). Furthermore, these paragraphs should be stricken pursuant to Federal Rule of Civil Procedure 37(c)(1), which states that "if a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial. . ." As neither Mr. Keel nor Mr. Blake was identified as a witness in the case, I grant Defendants' motion to strike Plaintiff's Statement of Fact Numbers 18, 19, and 20.
IV. Statement of Relevant Facts
On February 22, 1993, Defendant Officers responded to a report that a woman was screaming. (Def. 56.1 at ¶ 12). Defendant Officers observed a car parked in the alley behind 7739 South Paulina in Chicago, and they saw a partially clothed woman exit the passenger side of the car and run toward them. (Id. at ¶ 13). The Defendant Officers also saw a man exit the driver's side of the car and run away. (Id.) The woman, who will be referred to herein simply as Ms. Stanley, told the Defendant Officers that she had been raped. (Id. at ¶ 14).
Defendant Officer Cullinan pursued the man who exited the car on foot until he lost sight of him. (Id. at ¶ 15). Officers Mary Bonnema and Martin Tully arrived on the scene and followed footprints in the snow from the vehicle in which the alleged rape had occurred to the front door of 7821 South Paulina, Plaintiff's home. (Id. at ¶ 19). Ms. Stanley advised police at the scene that the offender had dropped in the alley a knife used in the assault, so Officer Cullinan walked southbound through the alley to the 7800 block of South Paulina in search of the knife. ( Id. at ¶¶ 18, 21 ). As Cullinan was walking through the alley, he encountered Plaintiff standing over a garbage can at 7821 S. Paulina, holding a pair of pants with cartoons on the waistband and containing Plaintiff's identification. ( Id. at ¶¶ 22, 23, 26, 27).
Officer Cullinan walked Plaintiff back to the scene to conduct a "show up" before Ms. Stanley. (Id. at ¶ 31). At the show up, and in the presence of Plaintiff, Ms. Stanley initially indicated that Holland was not her attacker. (Id. at ¶ 32). After a conversation with a female police officer, Ms. Stanley identified Dana Holland as her attacker. (Id.) Plaintiff disputes this interpretation of events, asserting that there was no "conversation" between Ms. Stanley and an officer, but rather that Officer ...