The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' motion for summary judgment . For the reasons set forth below, that motion is granted in part and denied in part. The motion is granted as to the claims against Defendants Meeder and Powell, and the motion is denied as to the claim against Defendant Charnicky. Viewing the record in the light most favorable to Plaintiffs, a jury could conclude that Defendant Charnicky was deliberately indifferent to a substantial risk of serious harm, and that the deliberate indifference caused Plaintiffs' alleged constitutional deprivation. The Court agrees, however, that causation is too attenuated with respect to Defendants Meeder and Powell, even when viewed in the light most favorable to Plaintiffs.
Plaintiffs, Lidia Vetter ("Vetter") and Gregory Noble ("Noble") filed this lawsuit in June 2006. Initially, their complaint named the State of Illinois and the Illinois State Police as defendants. Judge Lefkow ordered the dismissal of claims with respect to both on sovereign immunity grounds [see 14]. Plaintiffs' second amended complaint  names as defendants Lieutenant David Charnicky ("Charnicky"), Sergeant Lance Powell ("Powell"), and Sergeant Robert Meeder ("Meeder") (collectively "Defendants"). The complaint also names Jeremy Dozier-the officer who allegedly committed the underlying constitutional violation in Count I of the complaint-but Dozier has defaulted , he is not part of the summary judgment motion before the Court, and any prove-up will be deferred (until trial) [id.].
Plaintiffs claim in Count II of their complaint that Defendants had knowledge of Dozier's "repeated and continual abuse of police power for years prior to" Plaintiffs' injury. Compl. ¶ 13. What is more, Dozier's conduct increased in severity over time (id. ¶ 14), and the supervisors condoned and ignored the conduct (id. ¶ 21). Defendants' answer denies the principal allegations against them and asserts qualified immunity as a shield against suit.
The case was reassigned to this Court . After completing discovery, Defendants filed their motion for summary judgment . The Court has federal-question subject-matter jurisdiction over the action based on 28 U.S.C. § 1331 and 42 U.S.C. § 1983.
The Court takes the relevant facts primarily from the parties' respective Local Rule ("L.R.") 56.1 statements: Defendant's Statement of Facts ("Def. SOF") , Plaintiff's Response to Defendant's Statement of Facts ("Pl. Resp. Def. SOF") , Plaintiff's Statement of Additional Facts ("Pl. SOAF") , and Defendant's Response to Plaintiff's Statement of Additional Facts ("Pl. Resp. Def. SOAF") .*fn1
A. Vetter, Gregory, Dozier, and the Eponymous Encounter
Lidia Vetter is a 19 year-old high school graduate. At the time of the incident with Officer Jeremy Dozier in April 2005 (the "Dozier Encounter"), she was 17 years old. Gregory Noble is a 23 year-old high school graduate. At the time of the Dozier Encounter, he was 21 years old. Pl. SOAF ¶¶ 1-2.
Jeremy Dozier ("Dozier") joined the Illinois State Police in 1996. Def. SOF ¶ 34. In 1998, and twice in 1999, he was recognized as being one of the "Top 15" troopers in his district for his exceptional contributions to the goals and objectives of the district. Def. SOF ¶ 35. Dozier also was assigned to security details that assisted federal authorities in providing motorcades for VIPs in the Chicago area. Defendant Charnicky testified that he would never have assigned Dozier to these details had he been concerned about Dozier's behavior. Def. SOF ¶ 38.
Indeed, throughout his tenure Dozier received numerous letters of appreciation, including notes from citizens, other state agencies, and the Illinois State Police. Def. SOF ¶ 36. Dozier also received numerous positive personal counseling memoranda from supervisors other than Defendants; the memoranda commended his leadership, dedication, and organizational pride, as well as complimenting him on preserving public safety and using good judgment. Def. SOF ¶ 37. Plaintiff notes, however, that at least one of the memoranda flagged by Defendants was signed-off on by Charnicky. See Def. SOF, Ex. X ("Dozier ISP Personnel File"), at #00073.
The requirements for a response under Local Rule 56.1 are "not satisfied by evasive denials that do not fairly meet the substance of the material facts asserted." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000). In addition, the Court disregards any additional statements of fact contained in a party's response brief but not in its L.R. 56.1(b)(3)(B) statement of additional facts. See, e.g., Malec, 191 F.R.D. at 584 (citing Midwest Imports, 71 F.3d at 1317). Similarly, the Court disregards a denial that, although supported by admissible record evidence, does more than negate its opponent's fact statement-that is, it is improper for a party to smuggle new facts into its response to a party's 56.1 statements of fact. See, e.g., Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008).
Moreover, and as discussed more fully below (see infra Part II.C), Plaintiffs point to other, less praiseworthy aspects of Dozier's tenure with the Illinois State Police.
As to the Dozier Encounter itself, the details are not much in dispute. On April 29, 2005, Plaintiffs were situated in a vehicle in a parking lot in Gurnee, Illinois. They were engaged in amorous activity and had removed some of their clothing. Def. SOF ¶ 39; Pl. SOAF ¶ 3; Vetter Dep. at 21-22. Dozier approached Plaintiffs by shining a flashlight in their car and then (falsely) identified himself as a Gurnee Police Officer. Pl. SOAF ¶ 3; Def. SOF ¶¶ 40-51. Dozier stated that there had been a complaint lodged against Plaintiffs by people living in neighboring buildings. Pl. SOAF ¶ 4. Dozier told Plaintiffs that instead of arresting them and telling their parents, he would let them come up with an alternative punishment that would "fit the crime."*fn2
Pl. SOAF ¶ 5; Noble Dep. at 43. Dozier suggested that Plaintiffs go to a nearby construction site and run in a circle around some construction machinery while naked, and Plaintiffs complied. Def. SOF ¶ 44. The incident left both Vetter and Noble traumatized. Pl. SOAF ¶ 8. They reported the incident to the Gurnee Police Department. Def. SOF ¶ 45. A few months after the incident, Plaintiffs identified Dozier's photograph from a photographic line-up. Def. SOF ¶ 46. Dozier eventually was arrested and is no longer with the Illinois State Police. See Def. SOF ¶¶ 3, 103.
Plaintiffs concede that none of the defendants was aware of the Dozier Encounter until Dozier was arrested for a different incident in June 2005. Def. SOF ¶ 49.
B. The Defendant Supervisors and their Duties within the Illinois State Police
Robert Meeder holds the rank of Master Sergeant and was Dozier's immediate supervisor for approximately five months, from January 1, 2005, through June 17, 2005. Def. SOF ¶ 4. Lance Powell, too, holds the rank of Master Sergeant and was Dozier's immediate supervisor from January 2002 through January of 2005. Def. SOF ¶ 5. David Charnicky is a now-retired Illinois State Police Lieutenant. Charnicky was Dozier's second-level supervisor from April 2000 through June 17, 2005. Def. SOF ¶ 6.
Within the Illinois State Police ("ISP"), both lieutenants and master sergeants have supervisory responsibilities. According to the Illinois State Police Rules of Conduct, "Supervisory personnel are responsible for subordinates' adherence to Department rules, regulations, policy, orders, directives and procedures and will take reasonable action to ensure compliance." Pl. SOAF, Ex. D ("Rules of Conduct"), at III.B. Supervisors are responsible for the job performance of their subordinates. Id.
Master sergeants are responsible for "supervising, evaluating, training, scheduling, and counseling of subordinates." Pl. SOAF, Ex. E ("Master Sgt. Job Description"), at 2. Among the "principal accountabilities" of a master sergeant are to serve as the first step in the RC-164 grievance process,*fn3 to initiate and conduct "corrective actions such as oral and written counseling," and to participate "in providing input into the overall disciplinary process." Id. at 3. A lieutenant, "under general direction, through subordinate supervisors, performs highly responsible supervisory, administrative, and management functions." Def. SOF, Ex. F ("Lt. Job Description"), at 1. Lieutenants directly supervise master sergeants. Id. Lieutenants are "responsible for the supervision, evaluation, and counseling of immediate subordinates; may conduct summary punishment concerning disciplinary action; and provide related information to higher levels in resolution of disciplinary matters." Id. at 2.
The parties have spilled considerable ink in describing the precise limits of Defendants' authority as supervisors. Plaintiffs have an expansive view, Defendants a narrow one. For example, Plaintiffs point to record evidence that Lieutenant Charnicky could have imposed some degree of summary punishment on Officer Dozier for the incidents that are documented below. See, e.g., Pl. SOAF ¶ 11; Lt. Job Description at 1; see also Def. Resp. Pl. SOAF, Ex. B. Supp. ("Meeder Dep. Supp."), at 178 (master sergeants have authority to request that an officer be placed on desk duty). Defendants, on the other hand, point to evidence that there were few steps that Charnicky could have taken in terms of corrective action. See, e.g., Def. Resp. Pl. SOAF ¶ 11; Def. SOF, Ex. N ("Snyders Dep."), at 69 (discussing departmental practices and characterizing as "vague" some of the language related to the lieutenant job description).
The parties' dispute, however, does not bear on the resolution of Defendants' summary judgment motion. If it did, then the Court would be required to view the evidence in the light most favorable to Plaintiffs at this stage of the litigation. More important, and although the deliberate indifference framework includes a safe-harbor of sorts for supervisors who respond reasonably to the information that they receive (see infra Part V), Plaintiffs have presented record evidence that two Defendants were complicit in covering up Dozier's earlier misconduct. That evidence is discussed immediately below in Part III.C. The limits of Defendants' supervisory authority, therefore, are not implicated by Defendants' motion for summary judgment: the fight about what steps Defendants could havetaken is orthogonal to the record evidence about what steps Defendants actually took. Plaintiffs' theory is not that the supervisors turned a cold shoulder to complaints about Officer Dozier; it is that they actively elbowed such complaints out of the way. And, according to the Illinois State Police Directive on Complaint and Disciplinary Investigations, all Illinois State Police employees have the duty to report misconduct and supervisors must "record all information available at the time the complaint was received, prepare a written report, and forward" the report up the chain of command. Pl. SOAF, Ex. B ("ISP Directive PER-030"), at 2.
C. Dozier's Prior Misconduct
Plaintiffs point to incidents of Officer Dozier's misconduct that occurred prior to Plaintiffs' encounter with Dozier in April 2005. Where Plaintiffs have presented evidence that Defendants knew of the misconduct, the incidents are discussed below. Because the deliberate indifference framework is not concerned with what Defendants should have known (Farmer v. Brennan, 511 U.S. 824, 838 (1994)), other incidents generally have been omitted from considered discussion.*fn4
As detailed below, there is record evidence that Defendant Meeder had knowledge of two prior incidents of misconduct or arguable misconduct, although he was a supervisor only with respect to one of the incidents. As to the earlier of the two incidents (before he was Dozier's supervisor), the only record evidence indicates that Meeder reported the complaint to his superior officer and told the aggrieved party how to file an official complaint. Defendant Powell had knowledge of three prior incidents of misconduct or arguable misconduct, although he was a supervisor during just two of the incidents. Defendant Charnicky had knowledge of three incidents of misconduct or arguable misconduct. With respect to all three instances, there is evidence that he either looked the other way or took steps to thwart the subsequent investigations.
1. Motorist Search Complaint
Sometime between 1996 and 1998, before Meeder became Dozier's supervisor, Meeder backed up Dozier on a traffic stop. When Meeder arrived at the scene, the female motorist who had been stopped approached Meeder to complain about the search technique used by Dozier. The motorist complained that Dozier had put his thumbs underneath her bra. Meeder testified at his deposition that he reported the complaint to his supervisor at the time, Master Sergeant Pete Howe. Def. SOF ¶¶ 50-51; Def. SOF, Ex. B ("Meeder Dep."), at 127-28. Meeder also testified that he gave Master Sergeant Howe's contact information to the motorist.
Plaintiffs have not submitted with their Statement of Additional Facts  any of their own fact statements regarding the incident. In denying Defendants' fact statement that Meeder reported the incident, Plaintiffs argue that if Meeder had reported the information to Howe, then a file would have been created and sent to the Division of Internal Investigation ("DII"). Yet, Plaintiffs also state that on certain occasions DII files were not created by supervisors when they should have been. See, e.g., Pl. SOAF ¶ 37. Indeed, that is part of the theory of their case. More important for summary judgment purposes, however, is the lack of record evidence for the proposition that there is no investigatory paper trail. While the lack of a business record may have evidentiary value (see Fed. R. Evid. 803(7); United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137,147-48 (3d Cir. 2002)), Plaintiffs have not drawn to the Court's attention any requests for documentation that went unfulfilled; they merely cite the policy documents indicating that a DII file should have been created. In sum, the only evidence that was submitted to the Court regarding the motorist search complaint came from Defendants, and it consists of Meeder's deposition testimony which states that he reported the complaint to his superior officer.
None of the Defendants was a supervisor of Dozier at the time of the motorist search complaint. Def. SOF ¶ 52.
2. Alleged Spying on Terry Faro
Plaintiffs have not furnished the Court with admissible record evidence indicating that any of the defendants knew about allegations that Dozier spied on Terry Faro.
Plaintiffs state that in 1999 Dozier spied on a friend's wife, Terry Faro, who was suspected of having an affair. Pl. SOAF ¶ 12. Plaintiffs further state that Powell knew of the spying allegations. Pl. SOAF ¶ 13. Plaintiffs also represent that Dozier has admitted to spying on Terry Faro, but Plaintiffs omitted the pertinent deposition pages from their fact statement exhibits. See Pl. SOAF, Ex. X ("Dozier Dep.") (pp. 174-75 omitted). Defendants' response to Plaintiffs' fact statements includes the omitted pages; those pages do not jibe with Plaintiffs' fact statement.
Dozier admitted that he was warned not to use his computer to run the plates of Terry Faro's boyfriend and give the information to Terry Faro's husband (Michael Faro). Pl. Resp. Def. SOF, Ex. W Supp. ("Dozier Dep. Supp."), at 162, 175. Dozier's recollection was that the complaint was lodged by Faro's boyfriend rather than Terry Faro and that the warning came from Master Sergeant Howe, who appears to have been Dozier's direct supervisor at that time. Id. at 162-63.
And although Plaintiffs state that Powell knew about the allegations (Pl. SOAF ¶ 13), they do not cite supportive record evidence. Plaintiffs' fact statement cites first to Dozier's deposition testimony, which (again) states only that Dozier received a warning from Master Sergeant Howe. Plaintiffs also cite an "investigative summary" from 2005 of an interview with Michael Faro, after Dozier was arrested. The summary states:
On July 13, 2005, DII agents interviewed [Michael] Faro, who works for the Illinois State Toll Highway Authority (ISHTA). Faro acknowledged he asked Trooper Dozier to go to a Waukegan residence in 1999 to find his wife because he suspected his wife was having an affair. Faro knew his wife contacted District 15 to complain about Trooper Dozier.
Pl. SOAF, Ex. U ("Group Investigatory File"), at Bates # 00800.
Thus, Plaintiffs' fact statement does not link Powell to any complaint by Faro. The statement mentions only that District 15 was notified. Although Plaintiffs do not cite it, another document in the DII file provides better support for Plaintiffs' proposition. That document is captioned "Illinois State Police Investigatory Report." Group Investigatory File, at Bates # 2049. The document, dated July 22, 2005, recounts an interview that investigators had with Michael Faro. In that interview, Faro states that he "knew" that Terry Faro complained to District 15 and that he "believed" his ex-wife spoke with Powell.
The problem for Plaintiffs is that the statement does not represent admissible record evidence. First, it is rank hearsay. Although for summary judgment purposes, exhibits need only represent admissible testimony, these statements would be hearsay if elicited at trial because it is double-hearsay with only a fifty-percent cure: the police report could come in as a business record (Fed. R. Evid. 803(6)), but there is no indication that Michael Faro was under a business duty to speak when discussing observations about his wife's communications. (Nor is it evident that the statement satisfies the personal knowledge requirement of Rule 602 of the Federal Rules of Evidence, which perhaps is why Plaintiffs do not rely on the document.) Therefore, using the statement for the truth of the matter asserted, which is that Terry Faro reported the incident to Powell, is hearsay without an exception. Fed. R. Evid. 801-802(defining hearsay and providing that hearsay is inadmissible unless an exception applies); United States v. Patrick, 248 F.3d 11, 22 (1st Cir. 2001) (statements made by informants in police notes were inadmissible because informants are not "part of the business of police."); Fed. R. Evid. 803(6) advisory committee's note (explaining the relationship of the rules to the teachings in the seminal case of Johnson v. Lutz, 253 N.Y. 124 (1930)); 2 MCCORMICK ON EVIDENCE § 290 (6th ed. 2006 supp.) ("If any person in the process is not acting in the regular course of the business, then an essential element in the trustworthiness chain fails.").
Even assuming for the sake of argument that the evidence is admissible, the only reasonable inference to draw is that Powell, who held the rank of sergeant at the time (Powell Dep. at 7-8), reported the ...