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Phillips v. Allen

September 28, 2010


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Plaintiff has sued the Village of Bellwood, Illinois (the "Village") and seven current and former members of its police department (Officers Jiminez Allen, Miguel Herrera, Jack Bridson, Harvey Hobik, Brian Thomas, Art Johnson, and Wilson Pierce (collectively, the "Defendant Officers")) for violations of his civil rights under 42 U.S.C. § 1983, malicious prosecution under § 1983 and Illinois law, and intentional infliction of emotional distress. Plaintiff also asserts a Monell claim against the Village for failure to supervise, direct, and discipline its officers.

Before the Court is Defendants' motion for summary judgment on all counts of the complaint [70], as well as Defendants' motion to strike affidavits and disqualify Plaintiff's counsel [86]. For the reasons stated below, Defendants' motion for summary judgment [70] is granted as to Counts I, II and V, and the remaining state law claims (Counts III, IV, and VI) are dismissed without prejudice. Defendants' motion to strike affidavits and disqualify Plaintiff's counsel [86] is granted in part and denied in part.

I. Background

On summary judgment, the record evidence is viewed in the light most favorable to the non-moving party-in this instance, the Plaintiff. The Court takes the relevant facts primarily from the parties' Local Rule ("L.R.") 56.1 statements: Defendant's Statement of Facts ("Def. SOF") [71], Plaintiff's Response to Defendant's Statement of Facts ("Pl. Resp. Def. SOF") [75], Plaintiff's Statement of Additional Facts ("Pl. SOAF") [76], and Defendant's Response to Plaintiff's Statement of Additional Facts ("Def. Resp. Pl. SOAF") [90].*fn1

The Robbery and Shooting at the Library

On February 2, 2005, just after 6:00 p.m., Ruby Graham, her mother Elizabeth Graham, and Ruby's young niece and nephew left Elizabeth's home to run a few errands. (Pl. Resp. Def. SOF ¶¶ 5-6). After cashing checks at a local currency exchange, including her income tax refund check, Ruby had close to $5,000 in her purse. (Id. at ¶ 7). The group then drove the few blocks to the Bellwood Public Library and parked in a lot near the library's south entrance. (Id. at ¶ 8). Ruby got out of the car and began walking toward the entrance; Ruby's mother Elizabeth remained in the parked car with the children. (Id. at ¶ 9; Def. Resp. Pl. SOAF ¶ 13). As she approached the library, Ruby heard the sound of a person wearing boots running behind her. (Pl. Resp. Def. SOF ¶ 9). Ruby had just stepped through the door to the library when a man snatched the purse from her left shoulder. (Id. at ¶ 10). Ruby turned and grabbed her attacker by his chest. (Id. at ¶ 11). The attacker was wearing a dark-colored coat. (Id.). Ruby grabbed her attacker three times as the pair struggled over the purse. (Id. at ¶ 13). During the struggle, Ruby was face-to-face with her attacker. (Id. at ¶ 14). Ruby told her attacker "don't do this" and the attacker called Ruby names. (Id.). The pair struggled through the door to the outside of the library. Ruby saw that the purse had fallen to the ground and Ruby went for it. (Id. at ¶ 16; Dep. of Ruby Graham, Def. Ex. 10 ("Ruby Dep."), at 142-143). As the assailant was pulling Ruby by her hood, Ruby heard Elizabeth yell "no, no, not my baby," and knew by the yelling that Elizabeth was running towards her. (Id. at 144-45; Pl. Resp. Def. SOF ¶¶ 15, 16). Ruby looked up from the ground and saw that her mother Elizabeth had run up and was tussling with the attacker. (Def. Resp. Pl. SOAF ¶ 14). The man pulled out a gun and shot Elizabeth in the chest, a little above her breast. (Id.). Ruby lunged at her attacker, who then shot Ruby in the head. (Pl. Resp. Def. SOF ¶ 20). The man said "just for that," and ran back towards Ruby's car. (Ruby Dep. at 146-147). The man reached into the car (in which the two children still sat), grabbed Elizabeth's purse, and then ran off. (Id.).

After the shootings, both women went into the library, (Id. at ¶ 22) and the police were called. While Elizabeth had been seriously injured, Ruby suffered only a graze to the temple that required a few staples to close.

Bellwood police officers responded en masse to the library, including Defendant Officers Allen, Herrera, Hobik, Johnson, and Pierce. (Id. at ¶ 24). Defendant Officer Allen was placed in charge of the investigation. (Id. at ¶ 25). Paramedics immediately took Elizabeth to the hospital.

Ruby's Initial Descriptions of the Shooter

While still at the library, Ruby was able to give a description of her attacker to an Officer who is not a defendant in this case (Officer Ibarrientos). Ibarrientos's report described the attacker as male, black, 6'3" in height, 180 to 190 pounds in weight, with a dark complexion, in his late 20's or early 30's, having a thin build, and oblong-shaped face, and wearing a black coat, blue jeans, and a black shirt. (Id. at ¶ 27). At her deposition in this case, Ruby testified that she thought Ibbarientos's description was accurate, but she does not recall telling him that her attacker was wearing a black shirt. (Id. at ¶ 28). Ruby later testified that it was "kind of dark" outside the library during the attack, but that there was one light that illuminated the area. (Id. at ¶¶ 14, 23).

Ruby followed her mother to the hospital in a second ambulance. Ruby was treated in the emergency room, and her mother was admitted. (Id. at ¶¶ 33,34). At around 7:30 that night, Defendant Officer Allen went to Elizabeth's hospital room, and found Ruby there. (Id. at ¶ 35). Ruby gave Allen another description of her attacker, telling Allen that the attacker was male, black, 6'1" to 6'2" in height, 180 to 190 pounds in weight, with a dark complexion, 20-30 years old, who wore a dark green quarter-length jacket, with blue jeans and a dark hat. (Id. at ¶ 37). At her deposition, Ruby testified that this description was accurate, except that her attacker wore a hood, not a hat. (Id. at ¶ 38.).

Interview with Officer Allen at the Hospital

The next day, February 3, 2005, Defendant Officer Allen went back to Elizabeth's hospital room. (Id. at ¶ 39). Ruby, Elizabeth, and Elizabeth's boyfriend at the time, James Bufkin, were in the room. (Id. at ¶ 40). What happened next is disputed in one key regard. What is undisputed is that Bufkin told Defendant Officer Allen that Elizabeth's son (Ruby's brother) Richard Graham told him (Bufkin) that a man named Devonte Henderson told Richard that Elizabeth's neighbor "Wydrick" told Henderson that he (Wydrick) did a robbery at a currency exchange on Mannheim and Washington Boulevard. (Id. at ¶ 42).*fn2 However, who was present for this conversation between Allen and Bufkin is in dispute. Allen testified that he spoke with Bufkin outside of Elizabeth's room, presumably out of earshot of either Ruby or Elizabeth. (Id. at ¶ 41). Ruby testified at Plaintiff's trial that Allen interviewed Bufkin in Elizabeth's hospital room, while Ruby sat at the foot of Elizabeth's bed. (Id.). At the trial, Ruby testified that she heard Bufkin tell Allen that he'd heard that Richard and Wydrick had been talking about how they could make quick money by robbing people outside the currency exchange after they cashed their income tax checks. (Id.).*fn3

At no time during her conversations with Allen at the hospital (or in previous discussions with police) did Ruby tell officers that she recognized her attacker or that she knew his name. (Id. at ¶¶ 47-48).

Photo Lineups with Ruby

Later that same day, Allen asked Ruby to come to the Bellwood police station to look at some photographs of possible offenders. (Id. at ¶ 49). At the station, Ruby signed a "Lineup / Photo Spread Advisory Form", which Allen had given her. (Id. at ¶¶ 52-54). The form stated, among other things, that: "I understand that the suspect may or may not be in the lineup / photo spread", "I understand that I am not required to make an identification", and "I do not assume that the person administering the lineup / photo spread knows which person is the suspect." (Id. at ¶ 53). Ruby signed the form at 4:00 p.m. (Id. at ¶ 54). Before signing, Ruby read the form and did not have any questions about it. (Id. at ¶ 55). Aside from giving her the form, the only instructions Allen gave Ruby were to breathe, take her time, and to relax. (Id. at ¶ 56). Allen did not say where the photos he was about to show her came from, did not mention the name "Wydrick Phillips," and did not give Ruby any time constraints in looking at the photos. (Id. at ¶¶ 57, 58, 61).

Ruby looked through a number of sheets of photographs that Allen prepared for her. Ruby remembers looking through either five or six sheets, with each sheet containing six photos. (Id. at ¶ 51). Each of the photos was of an African American male. (Id.). When she came to the fourth or fifth sheet, Ruby recognized number six as a man who used to hang out with her brother around her mother's home. (Id. at ¶ 63). Ruby did not identify number six as the shooter. Ruby's attention turned towards number one and number five (who was Plaintiff) on the same sheet. Ruby lingered on number one because he had similar features and a similar complexion to the shooter, and she pointed to photo number one. (Id. at ¶ 64; Ruby Dep. 44:8-12; 161-164). At that point, Officer Allen said "Are you sure? Take your time." (Id. at ¶ 65; Def. Resp. Pl. SOAF ¶ 39).*fn4 Ruby did not choose number one because some of the features were different from her memory of the shooter. (Ruby Dep. at 44:8-17). Ruby then went to number five (Plaintiff) and said "that's him." (Id.). After Ruby picked out the photo of Plaintiff, Allen again asked "are you sure?" and "are you positive?" and Ruby said yes. (Id. at 49:1-7; Trial Testimony of Ruby Graham, Pl. SOAF Ex. 2, 84:19-85:4). Allen then told Ruby that "the man you just picked out lives down the street from your mother *** that's Wydrick Phillips," and that Phillips was a friend of her brother Richard and lived eight houses down the street from her mother Elizabeth. (Pl. Resp. Def. SOF ¶¶ 66, 70; Def. Resp. Pl. SOAF ¶ 39). Allen then asked if Ruby knew the person she had just identified, and Ruby said she did not. (Pl. Resp. Def. SOF ¶ 68; Ruby Dep. at 49-51).

Ruby spent about 10-15 minutes looking through the five or six sheets of six-man composites, and looked at the sheet containing Plaintiff's photo for less than five minutes before identifying him. (Ruby Dep. at 45:13-24).

While Ruby was still at the police station, Allen received an anonymous phone call from someone who told him an individual named "Jabari Nicks" had committed the robbery and shooting. (Pl. Resp. Def. SOF ¶ 76). Allen then told Ruby that he had gotten a phone call and wanted her to look at some more photographs. (Id. at ¶ 78). Ruby signed a second "Lineup / Photo Spread Advisory Form" at 5:40 p.m. (Id. at ¶ 79). Allen gave Ruby a sheet with five color photographs, which included a picture of Jabari Nicks but did not include a picture of Plaintiff. (Id. at ¶ 81). Ruby did not identify anyone in the second photo array as the shooter, and viewing the second array did not change Ruby's opinion about her prior identification of Plaintiff. (Id. at ¶¶ 81, 83, 84).

Around this same time, Officer Herrera received another anonymous phone call from a person who told him that a 52-year-old man named "Marty S. Baxter" was involved in the shooting. (Id. at ¶¶ 85-86). The police did not investigate this lead. (Id. at ¶ 86). Finally, at about 9:30 p.m. that same day, a Bellwood police dispatcher received an anonymous phone call from a person who said that a "Cornelius Woods" was involved. None of the Defendant Officers followed up on this tip either. (Id. at ¶¶ 89-90).*fn5

Plaintiff is Arrested, Tried, and Acquitted

Police arrested Plaintiff sometime between 12:00 and 1:00 a.m. on the morning of February 4th, 2005. Plaintiff alleges that after he was arrested, Allen told Plaintiff that he was not going home because "they just need a body." (Pl. SOAF ΒΆ 60-61). Plaintiff believes that he was framed, arrested, and prosecuted because of ...

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