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Rebolar ex rel. Rebolar v. City of Chicago, Ill.

United States District Court, N.D. Illinois, Eastern Division

September 21, 2012

David REBOLAR, a minor, by and through his father and legal guardian, Alejandro REBOLAR, Plaintiff,
CITY OF CHICAGO, ILLINOIS, and Chicago Police Officer Johnson, Chicago Police Officer Stack, Chicago Police Officer Hawkins, Defendants.

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Jeffrey Brooks Granich, Katie Z. Ehrmin, Law Office of Jeffrey Granich, Chicago, IL, for Plaintiff.

Paul A. Farahvar, Francis P. Cuisinier, Victoria Rose Benson, Cuisinier, Farahvar & Benson, Ltd., Chicago, IL, for Defendants.


JEFFREY T. GILBERT, United States Magistrate Judge.

Plaintiff David Rebolar, a minor, by and through his father and legal guardian Alejandro Rebolar, has sued the City of Chicago and Chicago Police Officers Jeremiah Johnson, Tim Hawkins and Tom Stack for violations of federal and state laws claiming, among other things, that the defendant officers arrested him without probable cause and used excessive force in placing him under arrest.[1] All of plaintiff's claims arise out of events that occurred on September 13, 2009 when plaintiff was taken into custody for at most ten to fifteen minutes as a suspect in an auto burglary but immediately was released after the defendant officers investigated and determined that plaintiff had not committed any crime.

Plaintiff's nine-count complaint asserts federal claims under 42 U.S.C. § 1983 for false arrest, unlawful search, excessive force, failure to intervene, and conspiracy and state law claims for battery, false imprisonment, intentional infliction of emotional distress, and respondeat superior and indemnification. This matter is before the Court on defendants' motion for summary judgment [Dkt. # 70]. For the following reasons, the motion is granted as to all of plaintiff's claims.[2]


A. Standard of Review

Summary judgment is proper when " the pleadings, depositions, answers to interrogatories,

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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 material fact exists if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When resolving a motion for summary judgment, the Court construes all facts favorably to the non-moving party and makes reasonable inferences in that party's favor. Eaton v. Ind. Dep't of Corr., 657 F.3d 551, 552 (7th Cir.2011).

Further, as the United States Supreme Court has recognized, " [w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘ genuine issue for trial.’ " Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citations and footnote omitted), quoting FED. R. CIV. P. 56(c). The 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." National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir.2008). " [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. " Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505.

B. Northern District of Illinois Local Rule 56.1

The relevant background facts are derived from the parties' submissions pursuant to Local Rule 56.1, which governs summary judgment briefing in the Northern District of Illinois, and assists the Court in " 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); see also NORTHERN DISTRICT OF ILLINOIS LOCAL RULE (" L.R." ) 56.1. " For litigants appearing in the Northern District of Illinois, the Rule 56.1 statement is a critical, and required, component of a litigant's response to a motion for summary judgment. The purpose of the local rule is to make the summary judgment process less burdensome on district courts, by requiring the parties to nail down the relevant facts and the way they propose to support them." Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir.2012).

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 and that entitle the moving party to a judgment as a matter of law." L.R. 56.1(a)(3). The opposing party then must file " a concise response to the movant's statement," in which the nonmoving party must " admit or deny each factual statement proffered by the defendant ..., and designate with specificity and particularity those material facts believed to establish a genuine dispute for trial." Greer v. Board of Educ. of the City of Chicago, 267 F.3d 723, 727 (7th Cir.2001); L.R. 56.1(b)(3)(A). The nonmoving

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party also may file a statement of additional facts that require the denial of summary judgment. L.R. 56.1(b)(3)(B). The moving party may respond to each additional fact. L.R. 56.1(a) " All material facts set forth in the statement filed pursuant to section (b)(3)(B) will be deemed admitted unless controverted by the [response] statement of the moving party." Id. ; see also Dimmitt & Owens Fin., Inc. v. Superior Sports Prods., Inc., 196 F.Supp.2d 731, 737 (N.D.Ill.2002).

C. Plaintiff Failed To Comply With Local Rule 56.1

The Seventh Circuit repeatedly has held that a district court is within its discretion to strictly enforce compliance with its local rules regarding summary judgment motions. See Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 359 (7th Cir.2009); Bordelon, 233 F.3d at 527. Plaintiff failed to comply with the requirements of Local Rule 56.1, and those failures have consequences as discussed herein.

In some instances, plaintiff's Local Rule 56.1(b)(3) responses contain significant problems. The following example illustrates a typical problem. Paragraph 13 in defendants' Local Rule 56.1(a)(3) statement of facts states: " At or around that time, a helicopter unit from the City of Chicago dispatched over the radio to all patrol officers that a group of people were breaking into vehicles, directing the patrolling officers first to Tripp street, then East." Defs' L.R. 56.1(a)(3) Statement of Facts (hereinafter referred to as " Defs' SOF" ) [Dkt. # 71], at ¶ 13. Plaintiff responds without admitting or denying directly many of the facts put forth by defendants. Instead, plaintiff states as follows: " Plaintiff admits that Officer Johnson states in his deposition testimony that sometime on September 13, 2009, he received a call from a helicopter unit that a group of kids were breaking into vehicles. Plaintiff further admits that according to Officer Johnson's testimony, he did not know who was in the helicopter unit and he received no description as to age, race, and gender of the suspects or types of vehicles. Plaintiff admits Officer Johnson regarded the location as ‘ tricky’ and he did not remember the exact location the unit specified, but that they ran south on Tripp and could not find any kids. Plaintiff further admits that according to the Affidavit of Officer Tim Hawkins, he received a report over a Chicago Police Helicopter of an auto burglary in progress and the initial location that was provided by the helicopter was later modified." Pl's L.R. 56.1(b)(3) Response to Defendants' Statement of Facts (hereinafter referred to as " Pl's Resp. to Defs' SOF" ) [Dkt. # 80], at ¶ 13 (internal citations omitted and emphasis added).

Local Rule 56.1 gives the opposing party the opportunity to either admit or deny each statement of fact put forward by the movant and to provide record support for either assertion. In this case, it often is impossible to tell from plaintiff's Local Rule 56.1(b)(3)(A) submission the facts plaintiff admits, denies or believes are in dispute. Plaintiff sometimes does unequivocally admit or deny a fact. In many other instances, however, plaintiff's responses do not specifically admit or dispute the statements of fact set forth by defendants. Instead of admitting or denying defendants' asserted facts, plaintiff repeatedly limits his responses to an admission or statement as what the underlying testimony of a witness may be rather than admitting or denying the substance of the fact itself. Other times, plaintiff admits only that a witness has testified to a fact. See e.g., Pl's Resp. to Defs' SOF [Dkt. # 86], at ¶ 13 (" Plaintiff admits that Officer Johnson states in his deposition testimony

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that sometime on September 13, 2009, he received a call from a helicopter unit ...." ).

Plaintiff's ambiguous responses in this vein are insufficient to create a material issue of fact, or to allow the Court to determine whether a fact truly is disputed, and therefore must be taken as admissions under Local Rule 56.1(b)(3)(C) that defendants' proposed facts are true. Local Rule 56.1 statements that evade or improperly deny or otherwise respond to facts asserted by the opposing party defeat the point of Local Rule 56.1, which is to identify precisely which facts are actually in dispute. Bordelon, 233 F.3d at 528 (holding that the requirements for responses under Local Rule 56.1 are " not satisfied by evasive denials that do not fairly meet the substance of the material facts asserted" ). Plaintiff's failure to properly admit or deny certain statements of facts in defendants' statement of material facts, however, does not result in an automatic grant of summary judgment in defendants' favor. The Court still must evaluate all facts in the light most favorable to plaintiff, the nonmoving party. O'Donnell v. City of Chicago, 2003 WL 22339285, at *1 (N.D.Ill.2003).

In addition, at oral argument, counsel for plaintiff referred to and cited for the first time testimony from the deposition of Tactical Flight Officer Anthony Bansley, a witness deposed in this case. None of these references can be found in plaintiff's Local Rule 56.1(b)(3) Response to Defendants' Statement Facts. In addition, the argument raised by plaintiff's counsel during oral argument was not raised in his legal memorandum of law in opposition to defendants' motion for summary judgment. To the extent that plaintiff has attempted to introduce additional facts at oral argument not previously cited in plaintiff's Local Rule 56.1 statement of facts nor discussed in his legal brief, these facts have not been subject to the opposing side's scrutiny nor properly presented to the Court for review.

As the Seventh Circuit has stressed, facts are to be set forth in Local Rule 56.1 statements, and it is not the role of the Court to parse the parties' exhibits to construct the facts. Judges are not " like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991). It simply is not the Court's job to sift through the record to find evidence to support or refute a party's claim. Davis v. Carter, 452 F.3d 686, 692 (7th Cir.2006). Plaintiff had all the facts available to him at the time that he filed his Local Rule 56.1(b)(3)(B) statement in response to defendants' statement of facts, and plaintiff will not be permitted to inject additional facts into the record after the motions have been fully briefed. See Cutler v. Quality Terminal Services, LLC, 2012 WL 669052, at *2 (N.D.Ill.2012). Therefore, the Court need not consider those new facts in ruling on defendants' motion for summary judgment. See Quality Oil Inc. v. Kelley Partners, Inc., 657 F.3d 609, 614-15 (7th Cir.2011) (citation omitted) (holding that arguments raised for the first time at oral argument and not raised in briefs are waived).[3]

Finally, defendants did not submit any response to plaintiff's Local Rule 56.1(b)(3)(B) statement of additional facts. Therefore, plaintiff's additional facts are deemed admitted to the extent they are supported by cites to the record. L.R. 56.1(a); Dimmitt & Owens Fin., Inc., 196 F.Supp.2d at 737. This Court, however, previously granted defendants' motion to

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strike plaintiff's Exhibit A, which was submitted in conjunction with plaintiff's response to defendants' statement of facts, and also denied plaintiff's motion for leave to amend plaintiff's response to defendants' statement of facts. See [Dkt. # 95]. Therefore, any of plaintiff's additional statements of fact that cite to Exhibit A as sole support for that response are stricken.


The events in question occurred on September 13, 2009 in the vicinity of the Mexican Independence Day Parade in Chicago. Pl's Resp. to Defs' SOF [Dkt. # 80], at ¶ 3. Defendant Officers Johnson, Hawkins and Stack were assigned to a special detail to police the area and provide security during the parade. Id. at ¶¶ 4, 5. Tactical Flight Officer Anthony Bansley was assigned to a Chicago police department helicopter unit to oversee the Mexican Independence Day Parade from the sky for, inter alia, possible burglaries. Id. at 14. Plaintiff David Rebolar was twelve years old on September 16, 2009.[4] Id. at ¶ 2.

On the day of the parade, plaintiff attended church and then, after the church service, went to his father's car, which was parked in the parking lot next to the church, to change clothes so he could play soccer with his friends. Pl's Resp. to Defs' SOF [Dkt. # 80], at ¶¶ 6, 8. Plaintiff admits that his father's gray Chevy Traverse was parked in the parking spot closest to the alley. Id. at ¶ 8. Around that same time, the Chicago police department helicopter unit issued a radio dispatch to all patrol officers that a group of kids was breaking into vehicles. Id. at ¶¶ 13, 14. Officer Bansley communicated with the patrol officers on the ground to direct them to the vehicle in question. Id. at ¶ 16. From the helicopter, Officer Bansley confirmed that Officer Hawkins was responding to the specific vehicle Officer Bansley had identified as a possible subject of an auto burglary.[5] Id.

Officer Hawkins observed plaintiff exiting the back passenger door of the SUV identified by Officer Bansley, pointed his gun at plaintiff and requested confirmation from the police officer in the helicopter unit that plaintiff was a suspect for the burglary in progress. Pl's Resp. to Defs' SOF [Dkt. # 80], at ¶¶ 12, 15, 17. Plaintiff admits that he overheard someone asking on the radio, " Is this him in the white shirt?" and that plaintiff was in fact wearing a white shirt. Id. at ¶ 22. At his deposition, plaintiff stated he did not hear a response to the question. Id. However, plaintiff's father testified at his deposition that plaintiff told his father he heard someone on the radio say " That's the guy." Id. at ¶ 23. In responding to the radio call about possible auto burglaries in progress, Officers Hawkins and Johnson believed plaintiff was identified by the helicopter unit as one of the suspects. Id. at ¶¶ 16, 17.

With their guns pointed at plaintiff, Officers Hawkins and Johnson yelled at plaintiff to show his hands on at least two occasions, but plaintiff did not raise his hands. Pl's Resp. to Defs' ...

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