United States District Court, N.D. Illinois, Eastern Division
JOHNNY FLORES, HENRY ENCISO, A.C., a minor, C.C., a minor, and YOLANDA FLORES, individually and on behalf of A.C. and C.C., Plaintiffs,
DONALD GIULIANO, #118, JOHN FORD, #81, JUSTIN CAMP, #117, STEPHEN ROSS, #75, STEVE WITNIK, #109, DONALD KAMINSKI, #72, THOMAS HENNIGER, #77, SGT. MICHAEL JONES, #97, DANIEL VELASQUEZ, #120, THOMAS FERRIS, #114, TOMAS KLOS, #119, CHRISTIAN QUIROGA, #94, the VILLAGE OF FRANKLIN PARK, JIMMY OLLE, #443, LESLIE PRATTS, #120, COOK COUNTY, SGT. FABIANI, ROBERT ANDRIS, RALPH KIRK, and UNKNOWN AND UNNAMED STONE PARK POLICE OFFICERS, and the VILLAGE OF STONE PARK, Defendants.
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Johnny Flores, Henry Enciso, A.C., C.C., and Yolanda Flores, individually and on behalf of A.C. and C.C., who are minors, brought this suit against three sets of defendants: (1) the Village of Franklin Park, Illinois, and Franklin Park police officers Donald Giuliano, John Ford, Justin Camp, Stephen Ross, Steve Witnik, Donald Kaminski, Thomas Henniger, Sgt. Michael Jones, Daniel Velasquez, Thomas Ferris, Tomas Klos, and Christian Quiroga; (2) Cook County, Illinois, and Jimmy Olle and Leslie Pratts of the Cook County Sheriff's Police Department; and (3) the Village of Stone Park, Illinois, and Stone Park police officers Sgt. Fabiani, Robert Andris, Ralph Kirk, and unknown and unnamed Stone Park police officers. Doc. 66. The third amended complaint, which alleges misconduct on four separate days in 2011, sets forth thirteen counts under 42 U.S.C. § 1983 and Illinois law: (1) a § 1983 claim by Johnny against Giuliano, Ford, Camp, Kaminski, Witnik, Henniger, Ross, Olle, Pratts, and unknown and unnamed Stone Park police officers for the use of excessive force on February 5, 2011; (2) a state law claim by Johnny against Giuliano and Franklin Park for battery on February 5, 2011; (3) a § 1983 claim by Johnny against Giuliano, Ford, Jones, and Camp for the unreasonable seizure of his person on April 19, 2011; (4) a § 1983 claim by Johnny against Giuliano, Ford, Jones, and Camp for the unreasonable search of his person on April 19, 2011; (5) a state law claim by Johnny against Giuliano for battery on April 19, 2011; (6) a § 1983 claim by Johnny against Giuliano, Ford, Velasquez, and Ferris for the unreasonable seizure of his person on May 31, 2011; (7) a state law claim by Johnny against Giuliano, Ford, and Franklin Park for malicious prosecution arising out of a ticket issued on May 31, 2011; (8) a § 1983 claim by all Plaintiffs against Fabiani, Andris, Kirk, Klos, Giuliano, Quiroga, and Ford for the unreasonable search of their home on November 24, 2011; (9) a § 1983 claim by Johnny against Fabiani, Andris, Kirk, Klos, Giuliano, Quiroga, and Ford for the unreasonable seizure of his person on November 24, 2011; (10) a state law claim by all Plaintiffs against Fabiani, Andris, Kirk, Stone Park, Klos, Giuliano, Quiroga, Ford, and Franklin Park for trespass on November 24, 2011; (11) a state law indemnification claim against Franklin Park; (12) a state law indemnification claim against Cook County; and (13) a state law indemnification claim against Stone Park. Id. at ¶¶ 58-109. A jury trial has been set for August 18, 2014. Doc. 123. No defendant has argued that any parties or claims have been improperly joined under Rule 20(a) or that trial should be bifurcated under Rule 42(b).
Plaintiffs voluntarily dismissed their claims against Andris, Kirk, Pratts, and the unknown and unnamed Stone Park police officers. Docs. 137, 172. After discovery closed, Olle and Cook County ("Cook County Defendants") moved under Federal Rule of Civil Procedure 56 for summary judgment on the two claims against them: the § 1983 excessive force claim (Count I) against Olle, and the state law indemnification claim (Count XII) against Cook County. Doc. 138. In addition, Giuliano, Ford, Ross, Witnik, Kaminski, Henniger, Jones, Velasquez, Ferris, Klos, Quiroga, and Franklin Park ("Franklin Park Defendants") moved for partial summary judgment on several of the claims against them. Doc. 143. Cook County Defendants' motion is denied, and Franklin Park Defendants' motion is granted in part and denied in part.
The following facts are stated as favorably to Plaintiffs, the non-movants, as permitted by the record and Local Rule 56.1. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). In considering the summary judgment motions, the court must assume the truth of those facts but does not vouch for their actual truth. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir. 2012).
Before proceeding, the court addresses Cook County Defendants' contention that Plaintiffs' Local Rule 56.1(b)(3)(B) response includes "improper objections; argumentative, nonresponsive, and evasive answers; opinions, mischaracterizations of the Record, improper additional facts, unrelated to the Defendants' corresponding statement of fact, and denials unsupported by citations to relevant portions of the Record, " and that Plaintiffs' Local Rule 56.1(b)(3)(C) statement of additional facts "is rife with improper legal and factual arguments, multiple facts in one paragraph, conclusions, and conjecture." Doc. 181 at 3-4. The court will disregard the portions of Plaintiffs' Local Rule 56.1(b)(3)(B) response and Local Rule 56.1(b)(3)(C) statement that fail to cite specific record material, that cite to inadmissible material, or that present argument inappropriate for a Local Rule 56.1 submission ( e.g., Doc. 158 at ¶¶ 39-40, 48, 57, 70, 79). See N.D.Ill. L.R. 56.1(b)(3)(B) (requiring the non-movant to file "(3) a concise response to the movant's statement that shall contain:... (B) 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" ) (emphasis added); Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008) ("The evidence supporting a factual assertion must represent admissible evidence."); Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) ("[W]here a non-moving party denies a factual allegation by the party moving for summary judgment, that denial must include a specific reference to the affidavit or other part of the record that supports such a denial."); Leibforth v. Belvidere Nat'l Bank, 337 F.3d 931, 934 n.1 (7th Cir. 2003); Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 & n. 4 (7th Cir. 2000); Sys. Dev. Integration, LLC v. Computer Scis. Corp., 739 F.Supp.2d 1063, 1068 (N.D. Ill. 2010) ("the purpose of Rule 56.1 statements is to identify the relevant evidence supporting the material facts, not to make factual or legal arguments, and thus the Court will not address the parties' arguments made in their Rule 56.1 statements and responses") (citation omitted).
That said, the court notes that Local Rule 56.1(b)(3)(B) provides that the non-moving party should offer factual responses, along with record citations supporting those responses, that controvert and are fairly responsive to the movant's statements of fact. The court will adhere to local rules; it will ignore extraneous matter in Plaintiffs' Local Rule 56.1(b)(3)(B) response- meaning matters not fairly responsive to the factual assertions in the corresponding paragraphs of Cook County Defendants' Local Rule 56.1(a)(3) statement-but it will take account of facts that are fairly responsive to Cook County Defendants' assertions. See Schwab v. N. Ill. Med. Ctr., ___ F.Supp.2d ___, 2014 WL 2111124, at *1 (N.D. Ill. May 20, 2014) (disregarding the plaintiff's Local Rule 56.1(b)(3)(B) response to the extent it included "facts that go beyond what is fairly responsive to the corresponding paragraphs of [the defendant's] Local Rule 56.1(a)(3) statement"); Levin v. Grecian, 974 F.Supp.2d 1114, 1118 (N.D. Ill. 2013) ("If the non-movant wants to assert facts that go beyond what is fairly responsive to the movant's factual assertion, then he must do so not in his Local Rule 56.1(b)(3)(B) response, but in his statement... of any additional facts that require denial of summary judgment' under Local Rule 56.1(b)(3)(C)."); Johnson v. Cnty. of Cook, 2012 WL 2905485, at *12 (N.D. Ill. July 16, 2012) ("It is inappropriate for a non-movant to include additional facts, meaning facts extraneous to the substance of the paragraph to which the non-movant is responding, in a Local Rule 56.1(b)(3)(B) response. Rather, Local Rule 56.1 requires specifically that a litigant seeking to oppose a motion for summary judgment file a response that contains a separate statement under Local Rule 56.1(b)(3)(C) of any additional facts that require the denial of summary judgment.") (citations and internal quotation marks omitted).
With respect to Cook County Defendants' contention that Plaintiffs "bundled" multiple facts in certain single paragraphs of their Local Rule 56.1(b)(3)(C) statement, the Seventh Circuit has held that "the district court must apply Rule 56.1 in the specific context of the litigation before it and determine whether the submission at issue adequately complies with the purpose and intent of the Rule or impedes that Rule's effectiveness." Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009). The court finds that Plaintiffs' occasional inclusion of multiple facts in single paragraphs of their Local Rule 56.1(b)(3)(C) statement ( e.g., Doc. 158 at ¶¶ 64-67, 71, 79, 82, 86) was not excessive and substantially complies with the letter and spirit of Local Rule 56.1.
A. Incident of February 5, 2011
In the early morning hours of February 5, 2011, Johnny, then twenty years old, and his brother Enciso, then seventeen years old, went to a party at a motel attended by several members of a gang called the Imperial Gangsters. Doc. 158 at ¶ 9; Doc. 173 at ¶ 4. Enciso testified that there were four people already in the room with two cases of beer when he first arrived, and that a fight broke out after five other people arrived. Doc. 158 at ¶¶ 10-11. Enciso testified that Johnny was punched by a woman when he tried to block her from hitting another woman. Id. at ¶¶ 12-13.
Olle and Pratts, who as noted above were Cook County police officers, received a dispatch regarding a woman screaming at a motel. Id. at ¶ 14. Olle and Pratts went to the motel room door, heard yelling and screaming, knocked on the door, and yelled, "Police! Open the door!" Id. at ¶ 15. Enciso testified that although he heard the police knocking, the women in the room were screaming and fighting did not open the door. Id. at ¶¶ 16-17. Olle and Pratts called the Leyden Township Fire Department and the Franklin Park Police Department for assistance. Id. at ¶ 18.
After the Leyden and Franklin Park officers arrived, the Fire Department officers pried open the motel door and kicked it in, and several officers entered in a pyramid formation with Olle in front followed by perhaps four to six Franklin Parks officers and then Pratts. Id. at ¶¶ 19-20; Doc. 186 at ¶ 51. Olle and Pratts were the only Cook County officers there, and Pratts is a female. Doc. 158 at ¶ 20. Johnny testified that he saw approximately four to eight officers in the motel room; Olle testified that five to ten officers in addition to himself and Pratts were there; and Pratts testified that four to six Franklin Park officers were present. Doc. 182 at ¶ 71; Doc. 186 at ¶ 51. Neither Olle nor Pratts could identify which Franklin Park officers were present. Doc. 173 at ¶¶ 22, 27. Giuliano and Ford stated that they were not present that night, and Commander Konwinski of the Franklin Park Police Department confirmed from Giuliano's and Ford's time records that they were off duty at the time. Id. at ¶¶ 5-8. A Franklin Park Police Department "Call for Service" record from February 5, 2011, shows that officers Henniger and Camp arrived on the scene at 3:25 a.m. Doc. 186 at ¶ 52. Kaminski, Henniger, and Witnik have no recollection of being present at the motel on February 5, 2011; Kaminski believes that he was just a cover officer, Henniger does not know if he was present, and Witnik was not on the scene because he was the watch commander at that time. Doc. 173 at ¶¶ 9, 11, 13. Enciso was present when the police and fire officers arrived, and he does not know the names of the officers who were present; he believes that the police officers were from Franklin Park because of the color of their uniforms, but he could not be certain. Id. at ¶¶ 14-15. Johnny could not identify Henniger, Kaminski, or Ross by name or appearance and did not know for certain if Kaminski, Ross, Henniger, Giuliano, Ford, or Witnik were in the room. Id. at ¶¶ 17-18, 20-21.
When the officers entered the motel room, they saw two women fighting in the back corner and told everyone to get on the floor. Doc. 158 at ¶¶ 19, 21. Johnny knew that the officers entered because of the noise the women were making, and testified: "I'm assuming that's what caused this disturbing the peace." Id. at ¶ 22. Johnny saw some sheriff's uniforms, which he identified by their "tannish shirts"; he put his hands in the air and turned around and "gave [the officers] his back" to let them know that he was not aggressive. Doc. 182 at ¶¶ 54, 72. As soon as Johnny turned around, and while his hands were in the air, he was hit on the head with what he believed was a baton, but because his back was turned he could not be sure. Id. at ¶ 55.
Johnny did not know who hit him, but he thought that it was the first officer who entered the room-who, as noted above, was Olle-because Johnny "told him why did you hit me" and "he told me to shut the fuck up." Id. at ¶ 57. Johnny also testified that the officer who hit him could have been the male sheriff who handcuffed him (again, Olle) because he saw the officer's shirt; Johnny described the male sheriff as "five-something, light complected a little chubby, " and testified: "I don't think he kicked, I think someone kicked it and he must have ran in there and just hit me because he was a little guy." Doc. 158 at ¶ 27. Johnny further testified: "All I know [is] the one that first came in, he was about, like, ...