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Lacey Prewitt v. United States

October 31, 2012

LACEY PREWITT, PLAINTIFF,
v.
UNITED STATES, ERVIN GARTNER, JIM BUSHMAN, ANUJ PARTKH AND AKAL SECURITY, DEFENDANTS. LACEY PREWITT, PLAINTIFF,
v.
UNITED STATES, JIM BUSHMAN AND ANUJ PARTKH, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Kocoras United States District Judge

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the Court on a motion for summary judgment by the United States, James Bushman ("Bushman") and Anuj Parikh ("Parikh") (together "Federal Defendants") and a motion for partial summary judgment by Akal Security, Inc. ("Akal") and Ervin Gartner ("Gartner") (together "Akal Defendants") under Federal Rule of Civil Procedure 56. For the following reasons, the Federal Defendants' motion for summary judgment is granted and the Akal Defendants' motion for partial summary judgment is also granted.

BACKGROUND

I. Northern District of Illinois Local Rule 56.1

The Federal and Akal Defendants urge the Court to admit the assertions in their respective Statements of Material Facts filed pursuant to Local Rule 56.1 and to disregard Prewitt's responses for her failure to comply with Local Rule 56.1(b). Under Local Rule 56.1(a), a party moving for summary judgment is required to submit with its motion a statement of undisputed material facts that entitle it to judgment as a matter of law ("Rule 56.1(a) Statement"). N.D. Ill. R. 56.1(a); Ammons v. Aramark Unif. Servs., 368 F.3d 809, 817 (7th Cir. 2004). Rule 56.1(b) directs the non-movant to respond with two separate documents: (1) "a response to each numbered paragraph in the moving party's statement, including" specific citations to the record in the case of any disagreement ("Rule 56.1 Response"), and (2) "a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment . . . " ("Statement of Additional Facts"). N.D. Ill. R. 56.1(b)(3)(B), (C). Rule 56.1(b) offers "the only acceptable means of disputing the other party's facts and of presenting additional facts to the district court." Midwest Imports v. Coval, 71 F.3d 1311, 1315 (7th Cir. 1995). District courts are entitled to expect strict compliance with Local Rule 56.1. Raymond v. Ameritech, Corp., 442 F.3d 600, 604 (7th Cir. 2006). When a non-movant fails to adhere to Local Rule 56.1(b), the Court may admit the movant's Rule 56.1 Statement and disregard the non-movant's submissions. Malec v. Sanford, 191 F.R.D. 581, 583-84 (N.D. Ill. 2000).

The Federal and Akal Defendants contend that Prewitt's Rule 56.1 Responses are deficient for two reasons. First, they point out that in Prewitt's Rule 56.1 Response, her responses admitting the truth of the Akal and Federal Defendants' asserted factual statements go on to state additional facts.*fn1 Rule 56.1(b)(3)(B) "requires the responding party to either admit the assertion without contradictory qualification or deny it and identify the facts that support the denial." Callahan v. City of Rockford, No. 90 C 20090, 1994 U.S. Dist. LEXIS 3320, at *10 (N.D. Ill. March 2, 1994). Adding additional facts in response to an admitted factual statement thus falls outside the scope of Rule 56.1(b)(3)(B). The Court therefore disregards all of Prewitt's additional statements in her responses that admit the truth of Defendants' Rule 56.1(a) Statements.

Second, the Federal and Akal Defendants argue that Prewitt's Rule 56.1(b) Response improperly disputes several assertions that (1) do not include specific citations to the record, and (2) do not create a genuine issue of material fact.*fn2 Prewitt's unsupported statements do not comply with Rule 56.1(b)(3)(B), and are therefore disregarded by the Court. Additionally, Prewitt attempts to dispute facts within Defendants' Rule 56.1(a) Statements with pages upon pages of extraneous and irrelevant facts. Rule 56.1 is clear: if a plaintiff wishes to submit additional facts to attack a summary judgment motion, she must do so with a Statement of Additional Facts in a filing separate from her Rule 56.1 Response. N.D. Ill. 56.1(b)(3)(C). Prewitt failed to submit a Statement of Additional Facts. To the extent Prewitt attempts to add additional facts via her Rule 56.1(b) Response, the Court disregards these assertions and admits Defendants' statements that are not properly disputed. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005) (affirming district court's decision to ignore facts submitted by non-movant in its Rule 56.1(b) Response).

II. Factual Background

On January 7, 2008, Prewitt visited the United States Social Security Administration ("SSA") Office in Elgin, Illinois ("SSA Office") to find out why she did not receive her monthly income benefits. Upon entering the SSA Office, Gartner instructed Prewitt to wait in the reception area until her name was called. Gartner, Akal's employee, was a security guard assigned to provide security services to the SSA Office. He had been acquainted with Prewitt for two years from her previous visits to the SSA Office. Approximately three weeks prior to Prewitt's January 7th visit, Gartner called an Akal supervisor because Prewitt's visits had become more frequent, and her behavior had grown more aggressive and disruptive. Gartner's supervisor directed him to detain Prewitt for possible arrest if she caused a disturbance again. Gartner also notified Bushman, the SSA Office district manager, of Prewitt's behavior prior to January 7th. Nevertheless, Gartner and Prewitt chatted amiably while she waited for her name to be called.

Once Prewitt's name was called, she walked to Parikh's desk. Parikh was employed with the SSA as a Claims Representative. His duties included responding to questions by members of the public regarding Social Security benefits. Parikh told Prewitt that she was not entitled to social security benefits because, according to the documents then before him, she was employed. Prewitt then became angry and loudly told him that she was unemployed and entitled to Social Security benefits. As she spoke, Prewitt stood up from her chair and leaned over the desk that separated them. This, according to Parikh, made him feel threatened. Prewitt then informed Parikh that she would leave the SSA Office, call the SSA and make an appointment to return to discuss the matter at a later date. She then turned and began walking toward the exit. Parikh shouted at her to "sit down!" Prewitt continued walking toward the exit.

As Prewitt was walking through the waiting area toward the SSA Office exit, Gartner said to her, "The next time you come in here, if you don't behave like a lady, I'm just gonna have to arrest you." Gartner asked Prewitt about her meeting with Parikh, told her that her behavior had caused problems in the past, and that he needed to detain her until he determined that Parikh was safe. Gartner then wrestled her to the ground and detained her. Gartner testified that he did so because he did not know if Prewitt had harmed Parikh and was alarmed at how quickly Prewitt was exiting the SSA Office. Gartner further stated that before and during the altercation, Prewitt hurled a slew of curse words and insults at him and Parikh. Both Prewitt and Gartner sustained injuries as a result of the altercation. Bushman called the Elgin police upon learning of the disturbance. Police officers arrived soon after and found Gartner still restraining Prewitt. An ambulance arrived soon thereafter, which transported Prewitt to the hospital.

Video Recordings of the Incident The premises of the SSA Office premises were under the surveillance of eight security cameras: four were positioned outside and four were inside. The video feed was captured on a hard drive, where it was supposed to be stored until it was over- written by newer incoming data. When properly set, the recorded video remained available for 72 hours.

Although the contract between Akal and the SSA indicates that Akal personnel was to be responsible for maintaining and preserving video recordings, Bushman testified that he, as the SSA Office's district manager, was responsible for ensuring for the maintenance of the cameras and recordings. Bushman was also in charge of preserving the video tapes in the event that a video might become evidence in a legal proceeding. On January 8, 2008, Bushman attempted to retrieve and preserve the video tape depicting the incident that occurred the day before. However, he found that the recording had been over-written and was lost. Bushman determined that the resolution setting for the video had been set at a high level, resulting in the recordings being overwritten by new data every 8 to 10 hours instead of every 72 hours. Bushman received a subpoena sometime between January 24 and 29, 2008 from the Kane County Circuit Court requesting video recordings of the January 7, 2008 incident. Because the video had been erased, Bushman failed to comply with the subpoena.

Criminal Case Against Prewitt After Elgin police arrived on the scene in the wake of the incident, a police officer asked Gartner if he wished to file a criminal complaint against Prewitt. After first conferring with Bushman, Gartner agreed to do so. Prewitt was charged with disorderly conduct in the Circuit Court of Kane County. The prosecuting attorney advised Gartner to attend the regularly scheduled court hearings. Gartner attended the first three, but eventually stopped attending. After 23 months and several court hearings and continuances, Gartner told the prosecutor that he was no longer interested in pursuing the case. Gartner maintains that he was no longer an employee of Akal, and that he wanted to give Prewitt a break. The prosecutor dropped the charges against Prewitt. Gartner nevertheless maintains that he believed that Prewitt acted unreasonably during their altercation.

III. Procedural Background

Prewitt brought suit against the Federal and Akal Defendants in this Court, invoking subject-matter jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1346, 2680. Prewitt's claims against the Federal and Akal Defendants arise out of two lawsuits. Prewitt first filed suit in Case No. 10 C 102 against the United States, Parikh, Bushman, and the Akal Defendants for state common law and 42 U.S.C. § 1983 claims. The Court dismissed all common law claims against Parikh and Bushman based on their Westfall Act immunity. See 28 U.S.C. § 2679(d)(1) (a federal employee is not subject to suit in his personal capacity for common law torts). We also dismissed all claims against the United States due to Prewitt's failure to exhaust her administrative remedies under the Federal Tort Claims Act ("FTCA"), Id. § 2675(a); see Prewitt v. United States, 10 C 102, 2010 U.S. Dist. LEXIS 80737 (N.D. Ill. Aug. 9, 2010).

While Case No. 10 C 102 was pending, Prewitt proceeded to exhaust her remedies under the FTCA and subsequently filed a second lawsuit, Case No. 1136, against the United States for the same acts underlying her claims in the first lawsuit. The Court dismissed all of Prewitt's claims under Federal Rule of Civil Procedure 12(c) except for (1) spoliation of evidence, and (2) intentional and negligent infliction of emotional distress. See Prewitt v. United States, 11 C 3136, 2011 U.S. Dist. LEXIS 144260 ...


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