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Willie Flood v. Kevin Carey and the City of Chicago

November 21, 2011


The opinion of the court was delivered by: Judge Joan B. Gottschall


Plaintiff Willie Flood filed suit against the City of Chicago ("the City") and Kevin Carey, a Chicago police officer, alleging that Carey and the City violated his Fourth and Fourteenth Amendment rights; in addition to his 42 U.S.C. § 1983 claims, he also brings a number of state law tort claims.*fn1 The City has moved for summary judgment on all counts. For the reasons stated below, the court grants in part and denies in part the City's motion.


At about 4:15 a.m. on May 5, 2006, Flood left his home to go to work in Rosemont, Illinois.*fn2 As he turned his car from 79th Street onto Western Avenue, he noticed another car swerving across the lane. That car was driven by Chicago police officer Carey. At that point, Carey (who worked during the day as part of the City's 9th District bike team) had been off duty for over nine hours. While the parties dispute whether Carey was leaving directly from a bar or from his friend's house, there is no dispute that he had been drinking. In fact, when Carey submitted to a breathalyzer test hours later, his blood alcohol content was 0.145.

Carey-who was out of uniform, driving his own personal vehicle, and carrying his personal firearm-pulled up next to Flood's car at a stoplight on 67th and Western. At this point, the stories diverge. According to Carey, Flood had swerved in front of him and cut him off, causing Carey's phone to fall underneath the driver's seat. Carey pulled alongside Flood's vehicle to chastise Flood's driving, and Flood pointed a semi-automatic pistol at Carey, then ran the red light. Carey followed Flood at a safe distance in order to effectuate Flood's arrest for the traffic violation and for pointing a gun at him. Carey eventually pulled even with Flood and displayed his police badge, at which point Flood sped away. Flood ran more stoplights, and when he finally stopped behind a police wagon, Carey jumped out of the car with his gun, identified himself as a police officer, and told Flood to get on the ground. Carey yelled to the other officers that "he (Flood) has a gun." Flood was handcuffed and taken to the 14th District.

By contrast, Flood claims that he never cut Carey off, nor did he pull a gun. Instead, Flood testified that when Carey pulled up next to his car at 67th and Western, Carey was visibly drunk. Flood pulled away, and Carey continued to drive right by his side-when Flood sped up, Carey would speed up, and when Flood slowed, Carey would do the same. After Flood successfully passed Carey, Carey followed Flood's car so closely that the vehicles almost touched. They both got on the expressway, and after Flood saw Carey point a gun at Flood's head, Flood called 911. He reported that a "drunk" "white guy" was following him. The operator attempted to direct him to a police station, but Flood was unable to follow the directions. He got off the expressway and drove through some red lights; when he saw a police wagon, he pulled directly behind it, jumped out of his car and told the officers that a guy was chasing him with a gun. Carey had also exited his car and pointed a weapon at Flood. Carey identified himself to the other officers as police. The officers told Flood to get down and instructed Carey to drop his weapon; both were then taken to the 14th District police station.

Flood was eventually released without being charged with any criminal offense. Carey was charged with driving under the influence and aggravated assault. He pleaded guilty to driving under the influence, but after a bench trial in the Circuit Court of Cook County, he was found not guilty of aggravated assault.


Under Federal Rule of Civil Procedure 56, the court will grant summary judgment where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In particular, the court will grant a motion for summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

At the summary judgment stage, "a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party." Keri v. Bd. of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). "A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). Doubts about the existence of a material fact "should be resolved in favor of the nonmoving party and summary judgment ought to be denied." Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994).


Flood's amended complaint sets forth ten counts against Carey and the City. In Counts I-III, Flood claims Carey violated his Fourth and Fourteenth Amendment rights; in Count IV, Flood appears to allege both § 1983 and various state law tort claims*fn3

against Carey and the City; Count V states a § 1983 Monell claim against the City based upon its "customary practices," see Monell v. Department of Social Services, 436 U.S. 658 (1978); Count VI alleges an assault claim against the City; Count VII alleges a negligence claim against the City based upon its failure to provide adequate 911 emergency services; Count VIII alleges that the City intentionally inflicted emotional distress upon Flood; Count IX alleges that Carey assaulted Flood; and Count X alleges that Carey intentionally inflicted emotional distress upon Flood.

The City has moved for summary judgment on all claims, including those that appear to be pleaded solely against Carey. Carey has not filed his own motion for summary judgment. Of course, "where one defendant succeeds in winning summary judgment on a ground common to several defendants, the district court may also grant judgment to the non-moving defendants, if the plaintiff had an adequate opportunity to argue in opposition," see Acequia, Inc. v. Prudential Insurance Co. of America, 226 F.3d 798, 807 (7th Cir. 2000), or "if granting the motion would bar the claim against those non-moving defendants," see Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 384 (7th Cir. 2008). Here, the City's argument with respect to § 1983 liability is predicated upon its claim that Carey was not acting under color of state law. If true, Flood could not prevail against either the City or Carey on these claims. See Cruz v. Safford, 579 ...

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