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Rodriguez v. City of Chicago

June 14, 2010


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge


On April 30, 2009, Plaintiffs Marcus Rodriguez, Vanessa Rodriguez, Maritza MaLave, Luis Stallworth, Alex Garcia, and Caroline Brown brought the present seven-count First Amended Complaint alleging violations of their constitutional rights, as well as state law claims of malicious prosecution, intentional infliction of emotional distress, and indemnification, against Defendant Chicago Police Officers and the City of Chicago. On March 2, 2010, pursuant to the parties' stipulation to dismiss, the Court dismissed Plaintiff's due process claim as alleged in Count V of the First Amended Complaint against all Defendants with prejudice. (R. 64-1.) Also, in their response to Defendants' partial motion for summary judgment, Plaintiffs concede that their conspiracy claim as alleged in Count I should be dismissed, and thus the Court dismisses Count I against all Defendants with prejudice. (R. 70-1, Resp., at 1.)

Before the Court are the parties' cross-motions for partial summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the Court grants Defendants' summary judgment motion and denies Plaintiffs' summary judgment motion. In particular, the Court grants Defendants' summary judgment motion and denies Plaintiffs' summary judgment motion concerning Plaintiffs' Fourth Amendment claims as alleged in Count II of the First Amended Complaint. The Court also grants Defendants' summary judgment motion as to Plaintiffs' state law malicious prosecution and intentional infliction of emotional distress claims as alleged in Counts V and VI of the First Amended Complaint. Because none of Plaintiffs' state law claims remain, the Court also dismisses with prejudice Plaintiffs' indemnification claim against the City of Chicago as alleged in Count VII of the First Amended Complaint. As such, the only remaining claim for trial is Marcus' excessive force claim against Defendant Officers Berg, Rooney, McGarry, and Porebski as alleged in Count III of the First Amended Complaint.*fn1

Therefore, Officers Askar, Sherlock, Rogus, and Gibbelina and the City of Chicago are no longer Defendants to this lawsuit.


I. Northern District of Illinois Local Rule 56.1

Northern District of Illinois Local Rule 56.1 assists the Court by "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). Local Rule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the moving party contends there is no genuine issue."

Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). "The opposing party is required to file '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." Id. (citing N.D. Ill. R. 56.1(b)(3)(B)). Also, Local Rule 56.1(b)(3)(C) requires the nonmoving party to present a separate statement of additional facts that require the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).

The purpose of Rule 56.1 statements is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) ("statement of material facts did [] not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture"). Further, the Court may disregard statements and responses that do not properly cite to the record. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005); see also Raymond v. Ameritech Corp., 442 F.3d 600, 604 (7th Cir. 2006) ("district courts are entitled to expect strict compliance with Local Rule 56.1"). Some of Plaintiffs' denials in their Rule 56.1(b)(3)(B) response do not properly cite to the record, and thus the Court disregards these responses because they do not comply with Rule 56.1, including the responses to ¶¶ 26, 41, 58, 61, and 78. See Cady, 467 F.3d at 1060; Cichon, 401 F.3d at 809-10.

II. Relevant Facts

On October 28, 2007, Defendant Officers John Rooney, Daniel Berg, Patrick McGarry, Matthew Rogus, Jamil Askar, Anthony Sherlock, John Gibbelina, and Joseph Porebski were assigned to the Chicago Police Department's 17th District. (R. 57-1, Defs.' Rule 56.1 Stmt. Facts ¶ 5.) At that time, Officer Porebski was the supervising Lieutenant and non-Defendant Officer Donald Daniels was the supervising Sergeant of a tactical team within the 17th District, which included the other named Defendant Officers except for Officer Gibbelina. (Id. ¶¶ 6, 8(a).) The tactical team focuses on high crime areas. (Id. ¶ 7(a).)

At approximately 1:44 p.m on October 28, 2007, a Circuit Court of Cook County Judge signed a search warrant that authorized the search of Marcus Rodriguez and the premises described as 4856 N. Avers 1st Floor Apartment, Multi-Dwelling Building, Chicago, Illinois, Cook County. (Id. ¶ 7(b).) The warrant also authorized the seizure of cannabis; residency documents; any paraphernalia used to weigh, cut or mix drugs; money; and records detailing illegal drug transactions. (Id.) The warrant was based on Defendant Officers Askar's and Sherlock's investigation, and Officer Sherlock's complaint and affidavit. (Id.; R. 62-1, Pls.' Rule 56.1 Stmt. Facts ¶ 5.)

After the judge signed the warrant, the police officers held a briefing. (Defs.' Stmt. Facts ¶ 8(b).) At the briefing, the officers discussed assignments, point of entry, and how many occupants they might encounter while executing the search warrant. (Id.) After the briefing, Defendant Officers left the 17th District police station and proceeded to 4856 N. Avers in Chicago. (Id. ¶ 9.) The target location was a corner apartment building at the intersection of Avers and Ainslie. (Id. ¶ 10.) Upon arrival, the entry team went to the rear of the apartment building. (Id.) Thereafter, Officers Porebski, Daniels, Askar, Rogus, McGarry, Rooney, and Sherlock entered the apartment. (Id. ¶ 13; Pls.' Stmt. Facts ¶ 6.) Officer Gibbelina took a perimeter security position in the back yard and Officer Berg took a perimeter security position in the front of the residence. (Defs.' Stmt. Facts ¶ 14.)

Upon entering the apartment, the officers conducted a security sweep and encountered the target of the search warrant, Marcus Rodriguez, Sr. (Id. ¶ 15.) The officers detained and handcuffed Marcus Rodriguez, Sr. and also detained and handcuffed Plaintiff Maritza MaLave, who was the leaseholder of the apartment. (Id. ¶ 16; Pls.' Stmt. Facts ¶ 7.) Meanwhile, as the officers entered the apartment, Plaintiff Vanessa Rodriguez (hereinafter "Vanessa") was in the front hallway. (Defs.' Stmt. Facts ¶ 17.) A female officer identified herself as a police officer and then detained and handcuffed Vanessa in that same hallway. (Id.) The officers took Vanessa to the front stoop of the property and asked her basic identifying questions so that the officers could fill out a contact card. (Id. ¶ 18.) After the officers questioned Vanessa, they removed her handcuffs. (Id.) About ten to fifteen minutes later, MaLave joined Vanessa on the front stoop of the residence. (Id. ¶ 19.) MaLave was no longer handcuffed at that time. (Id.)

After the officers conducted a security sweep of the residence, they began to search for contraband. (Defs.' Stmt. Facts ¶ 20.) Officers Sherlock and Askar searched the rear bedroom and discovered over 200 Ziploc bags -- 27 of which contained suspect cannabis -- bundled money, and other drug paraphernalia. (Id. ¶ 21.) Officer Porebski also observed electronic equipment that he thought might be connected to a rash of burglaries in the area. (Id. ¶ 23.) Officer Daniels, who was also aware of the recent burglaries, returned to the 17th District police station to review the burglary reports and further investigate the electronic equipment. (Id. ¶¶ 25, 26; Pls.' Stmt. Facts ¶ 12.) Officers Porebski and Daniels decided that they needed to secure the residence while Officer Daniels investigated the electronic equipment. (Pls.' Stmt. Facts ¶ 14.)

At that point, Officers McGarry, Rooney, and Gibbelina left the apartment and proceeded to the neighborhood elementary school to determine whether it was close enough to the apartment to increase the level of the drug offense against Marcus Rodriguez, Sr. (Defs.' Stmt. Facts ¶ 27.) Meanwhile, the police arrested Marcus Rodriguez, Sr. as a result of finding narcotics in the apartment and Officers Rogus, Askar, and Sherlock returned to the 17th District police station to inventory the narcotics and process Marcus Rodriguez, Sr. (Id. ¶ 28; Pls.' Stmt. Facts ¶ 10.) Also, Officer Berg left his security position in the front of the residence and joined Officer Porebski inside the residence. (Defs.' Stmt. Facts ¶ 29.) Officer Berg's understanding at that time was that the officers who conducted the search had found stolen items and that there were a number of laptops in one of the bedrooms. (Id. ¶ 30.)

Approximately five minutes after Officer Berg entered the residence and while he was stacking the laptops, Plaintiff Marcus Rodriguez, Jr. (hereinafter "Marcus") entered the front foyer of the residence. (Id. ¶ 31; Pls.' Stmt. Facts ¶¶ 19, 20.) Thereafter, Marcus saw Officer Porebski in the living room after which Officer Porebski stated that a search warrant was being conducted and Marcus demanded to see the warrant. (Defs.' Stmt. Facts ¶ 32; Pls.' Stmt. Facts ¶ 23.) Officers Porebski and Berg both told Marcus and Plaintiff Luis Stallworth, who had also entered the apartment building, to leave. (Id. ¶ 36; Pls.' Stmt. Facts ¶¶ 23, 30.) Marcus and Stallworth then shouted obscenities. (Pls.' Stmt. Facts ¶ 27.) Marcus specifically shouted "Fuck you. You have no search warrant. Get out of my house" to both Officers Porebski and Berg. (Id. ¶¶ 28, 31.) Also, while in the hallway, Officer Berg heard Vanessa and Plaintiff Caroline Brown shouting. (Id. ¶ 29.) At some point, either Officer Porebski or Officer Daniels -- who was on the telephone with Officer Porebski at that time -- called for backup. (Id. ¶ 33; Defs.' Stmt. Facts ¶ 41.) The officers also attempted to move Plaintiffs out of the foyer of the apartment building and into the front yard. (Pls.' Stmt. Facts ¶ 35.) During this time, Marcus was shouting at Officers Berg and Porebski. (Id. ¶ 39.) Marcus' shouting led the crowd assembling in the front of the residence to also shout. (Id. ¶ 41.) Also, when Marcus, Stallworth, Brown, and Vanessa began shouting profanities, Officer Berg stopped his search of the laptops and joined Officer Porebski near the door. (R. 68-1, Defs.' Rule 56.1 Stmt. Add'l Facts ¶ 15.) After that, Officers Berg and Porebski gave verbal commands to the crowd to leave the area that the crowd ignored. (Id. ¶ 16.)

Once outside, Officer Berg attempted to detain Marcus and a struggle ensued. (Id. ¶ 20.) The parties dispute what happened next, although it is undisputed that there was a struggle between Officer Berg and Marcus on the stoop of the building. (Defs.' Stmt. Facts ¶ 50.) Defendants concede that the facts concerning the use of force to effectuate the arrest of Marcus are in dispute, but that the parties do not dispute that the only officers who applied any force to effectuate Marcus' arrest were Officers Berg, Rooney, McGarry, or Porebski. (Id. ¶¶ 51, 52, 53.) Throughout the struggle between Officer Berg and Marcus, Plaintiffs Alex Garcia, Brown, Stallworth and Vanessa were in the front area outside of the apartment building. (Id. ¶ 46; Pls.' Stmt. Facts ¶ 37.) Officer Porebski, who was then on the stoop, observed three or four individuals yelling and screaming while they advanced towards the stoop. (Defs.' Stmt. Facts ¶¶ 43, 58.) Garcia, for example, yelled at the officers to "get the fuck off my cousin." (Id. ¶ 56.) Vanessa yelled "Fuck you. This is our house. Get the fuck out of here." (Pls.' Stmt. Facts ¶ 57.) Meanwhile, Officer Porebski repeatedly told the advancing group to get back. (Defs.' Add'l Facts ¶ 25.)

While at the elementary school, Officers Gibbelina, McGarry, and Rooney heard the call for assistance over their radios. (Defs.' Stmt. Facts ¶ 47.) Upon their return to the apartment building, Officers Gibbelina, McGarry, and Rooney all observed that Marcus was on top of Officer Berg. (Id. ¶ 48.) Within one foot of where Marcus and Officer Berg were struggling, Officer Gibbelina saw several people surrounding Officer Porebski. (Id. ¶ 49.) After exiting the police vehicle, Officer Gibbelina addressed a hostile crowd forming in the street in front of the apartment building and Officers Rooney and McGarry ran to assist Officer Berg. (Id. ¶ 50.) The crowd that had gathered on the street violently yelled "fuck the police, fuck you guys." (Defs.' Add'l Facts ¶ 28.) Also, a hostile crowd had assembled in the yard next door to the residence. (Defs.' Stmt. Facts ¶ 58.)

Once the officers handcuffed Marcus, Officer Berg surveyed the yard and saw Officer Porebski, Vanessa, Brown, and Garcia shouting back and forth. (Id. ¶ 59.) At that point, Officer Berg made the decision to arrest Vanessa, Brown, and Garcia. (Id. ¶ 60; Pls.' Stmt. Facts ¶ 51.) Among the reasons that Officer Berg gave for the arrest was that he thought Vanessa, Brown, and Garcia were obstructing Officer Porebski from assisting with the arrest of Marcus because they had surrounded Officer Porebski and were shouting and screaming. (Defs.' Stmt. Facts ¶ 61.) Prior to arresting Vanessa, Officer Berg knew that she was a juvenile. (Pls.' Stmt. Facts ¶ 9.)

After his arrest, the police charged Marcus with battery and obstruction of a peace officer. (Id. ¶ 61; Defs.' Stmt. Facts ¶ 70.) The police charged Brown, Garcia, Stallworth, and Vanessa with obstruction of a peace officer. (Defs.' Stmt. Facts ¶ 70; Pls.' Stmt. Facts ¶¶ 63, 64, 67.) A Circuit Court of Cook County judge set the criminal trial for Marcus, Stallworth, and Brown to commence on May 6, 2008, however, Brown began vomiting in the courtroom, so the judge excused the jury. (Id. ¶ 72.) Thereafter, Marcus, Brown, and Stallworth reached a deal with the prosecutors to complete 40 hours of community service in exchange for the prosecutors to strike the case off the call with leave to reinstate ("SOL"). (Id. ¶ 74.) Because Marcus and Stallworth had completed the court-ordered community service, a Circuit Court of Cook County judge SOL'd the criminal cases against them on July 7, 2008. (Id. ¶ 76.) Brown completed her community ...

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