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Shore v. Donnelly

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

April 29, 2014

DAVID W. SHORE, Plaintiff,
v.
OFFICER MICHAEL DONNELLY, Defendant.

MEMORANDUM OPINION AND ORDER[1]

SIDNEY I. SCHENKIER, Magistrate Judge.

Plaintiff David Wayne Shore filed suit against Defendant Michael Donnelly pursuant to 42 U.S.C. § 1983, alleging that Defendant violated his constitutional rights by preventing him from registering as a sex offender, and thereby forcing him into the involuntary violation of an Illinois sex offender law. Defendant now moves for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure (doc. #67). For the reasons set forth below, Defendant's motion for summary judgment is granted.

I.

Before turning to the facts of this case, we first examine Local Rule ("L.R.") 56.1, which governs motions for summary judgment in the Northern District of Illinois. See Birks v. Dart, 12 C 7701, 2014 WL 1345893, at *1 (N.D. Ill. Apr. 4, 2014). Local Rule 56.1(a)(3) requires the moving party to file "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). In response, the non-moving party must file "a concise response to the movant's statement that shall contain... 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." L.R. 56.1(b)(3), (b)(3)(B). Additionally, Local Rule 56.1(b)(3)(C) requires the non-movant to file "a statement... of any additional facts that require the denial of summary judgment." L.R. 56.1(b)(3)(C). Facts included in the movant's statement are deemed admitted unless properly controverted by the opposing party. Id. Courts have discretion to demand strict compliance of these rules from all litigants, including pro se litigants. See Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); see also Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008) (stating that "it is also well established that pro se litigants are not excused from compliance with procedural rules"). Accordingly, a district court does not abuse its discretion when it refuses to consider additional facts proposed by a pro se litigant after that party has failed to comply with Local Rule 56.1. See Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006).

In this case, Plaintiff failed to file a response to Defendant's Statement of Facts as required by Local Rule 56.1(b)(3). This failure raises the possibility that Plaintiff may not have fully understood the consequences of failing to respond to a summary judgment motion.[2] However, any breakdown in the notification process is harmless if this Court finds no evidence of prejudice to Plaintiff. See Timms v. Frank, 953 F.2d 281, 285-86 (7th Cir. 1992) (upholding summary judgment where pro se plaintiff could show no prejudice from lack of notification). Prejudice is considered lacking if any additional evidence Plaintiff could have submitted "would still be insufficient to make out a prima facie case" under Section 1983. Id. at 287. In other words, there is no prejudice if summary judgment is unavoidable, notwithstanding the lack of proper notification. Id. at 286. In this case, as shown below, we have considered Plaintiff's sworn testimony as presented in Defendant's Statement of Facts yet conclude that, even accepting as true for purposes of this motion Plaintiff's version of the events of September 4, 2011, Plaintiff cannot make out a prima facie case under Section 1983. Accordingly, we conclude that Plaintiff was not prejudiced by any lack of notice regarding the consequences of non-compliance with Local Rule 56.1.

II.

Defendant's Statement of Material Facts (including Plaintiff's version of the events of September 4, 2011) is uncontested and therefore provides the basis for the factual background set forth below, although we still "constru[e] all facts and draw[] all reasonable inferences in favor of the nonmoving party." Jajeh v. County of Cook, 678 F.3d 560, 566 (7th Cir. 2012). On January 29, 2009, Plaintiff was convicted of child molestation in St. Joseph County, Indiana (doc. #68: Def.'s Statement of Facts ("Def.'s SOF") ¶ 8). He was mandatorily paroled on July 28, 2011, but instead of reporting to his Parole Agent on August 2, 2011, he fled Indiana and entered Illinois (Def.'s SOF ¶¶ 9-10; Dep. of David Wayne Shore ("Pl.'s Dep.") at 47, 53). Plaintiff arrived in Joliet, Illinois on August 6, 2011 and slept under a viaduct within the Joliet city limits (Def.'s SOF ¶ 11; Pl.'s Dep. at 50, 55-56). While living there, Plaintiff used the computer at the Joliet Public Library, which was only about a block and a half from the Joliet Police Department (Def.'s SOF ¶ 41; Pl.'s Dep. at 56-57). At no time between August 6, 2011 and September 26, 2011, when Plaintiff was arrested by Detective Landeros of the Joliet Police Department, did Plaintiff attempt to register as a sex offender with the City of Joliet Police Department (Def.'s SOF ¶ 15; Pl.'s Dep. at 51-52, 59-61).

Plaintiff has never lived in New Lenox, Illinois, nor did Plaintiff stop in New Lenox on his way from Indiana to Joliet (Def.'s SOF ¶ 13; Pl.'s Dep. at 55). Even so, on Sunday, September 4, 2011, Plaintiff claims to have walked from Joliet to the New Lenox Police Department, which was a distance of 11.4 miles (Def.'s SOF ¶ 21; Pl.'s Dep. at 83-84).

It is undisputed that on Sundays, the New Lenox Police Department is closed to the general public (Def.'s SOF ¶ 56). A member of the public who comes to the station would have to go to the rear of the building and use a wall phone to contact a dispatcher and ask that officers come to a specific location (Id. at ¶¶ 57-58). There is no record of such a call being made by Plaintiff asking that Officer Donnelly leave his patrol zone and report to the station on September 4, 2011 (Id. at ¶¶ 59-60).

Even so, Plaintiff states that he arrived at the New Lenox Police Department on the morning of September 4 and, upon walking through the front entrance, told Officer Donnelly, a patrol officer, that he needed to register as a sex offender (Def.'s SOF ¶¶ 22-24; Pl.'s Dep. at 89-94).[3] Defendant responded by telling Plaintiff that no one was present at that time with the authority to register him, and asked if he could come back later (Def.'s SOF ¶ 25). Plaintiff thanked Defendant and said he could (Def.'s SOF ¶ 25; Pl.'s Dep. at 94, 96). Plaintiff never returned to the New Lenox Police Department to attempt to register (Def.'s SOF ¶ 27; Pl.'s Dep. at 95-96).

On September 26, 2011, Detective Tizoc Landeros of the Joliet Police Department learned that Plaintiff was spending time at the Morning Star Mission in Joliet and that he was a child sex offender with an outstanding warrant for his arrest on parole violations with the Indiana Department of Corrections (Def.'s SOF ¶¶ 28-29). Detective Landeros further learned that Plaintiff had not registered as a sex offender in the State of Illinois but had been issued a State of Illinois identification card on September 16, 2011 (Def.'s SOF ¶ 30). Detective Landeros arrested Plaintiff at the Plaza Hotel in downtown Joliet, where Plaintiff had been renting a room (Def.'s SOF ¶¶ 32-33). Plaintiff received his Miranda rights, waived his constitutional right to counsel, and consented to a recorded interview wherein he told Detective Landeros that he knew he had a duty to register as a sex offender in both Indiana and Illinois but that he had failed to do so because he did not have an address to register (Def.'s SOF ¶¶ 34-35; Pl.'s Dep. at 49-52). Plaintiff never said to Detective Landeros that he had attempted to register in New Lenox (Def.'s SOF ¶ 37; Pl.'s Dep. at 62-63).

Plaintiff pleaded guilty on May 21, 2012 to failing to register as a sex offender in the State of Illinois within three days of residing in the State, in violation of 730 ILCS 150/3 (doc. # 68-8: Pleas of Guilty) (Def.'s SOF ¶¶ 3-4, 33). Plaintiff was present in court every day between the start of his trial on November 7, 2011, and his guilty plea on May 21, 2012; yet, Plaintiff never claimed that he had made an unsuccessful attempt to register in New Lenox (Def.'s SOF ¶¶ 46-48; Pl.'s Dep. at 64-66).

III.

"Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir. 2014); Fed.R.Civ.P. 56(a). Federal Rule of Civil Procedure 56(c) dictates that "the 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original) (citing Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists only if there is evidence "to permit a jury to return a verdict for" the non-moving party. Egonmwan v. Cook County Sheriff's Dept., 602 F.3d 845, 849 (7th Cir. 2010). The moving party has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the party moving for summary judgment demonstrates the absence of a disputed issue of material fact, then "the burden shifts to the non-moving party to provide evidence of specific facts creating a genuine dispute." Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). In doing so, the non-movant must "set forth specific facts showing that there is a genuine issue for trial" that go beyond those facts set forth in the pleadings. Hannemann v. ...


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