United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ANDREA R. WOOD, District Judge.
Plaintiff Olaf Johnsen alleges that after attending a rock concert in November 2009, he was unjustifiably shot with a taser, beaten, and arrested by Rosemont Police Department personnel Lieutenant Daniel Drehobl, Sergeant Steven Sheridan, and Officer Donald Ganski (collectively, "Officer Defendants"). Johnsen subsequently filed a 15-count complaint in this Court against the Officer Defendants and their employer, the Village of Rosemont (together with the Officer Defendants, "Defendants"). In July 2013, the Court granted summary judgment in favor of Defendants on Johnsen's federal and state law claims for false arrest. In October 2013, Johnsen was granted leave to file the Second Amended Complaint, which streamlined Johnsen's case to four counts-all of which had been included in the prior version of the complaint-in anticipation of a jury trial. Defendants then filed a motion to dismiss the malicious prosecution claim in the Second Amended Complaint ("Second Motion") (Dkt. No. 96), which the Court decided to treat as a motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(d).
Now before the Court is Johnsen's motion to strike Defendants' Second Motion as an untimely successive motion for summary judgment ("Motion to Strike"). (Dkt. No. 110.) Alternatively, Johnsen asks the Court to (1) reconsider its prior decision granting partial summary judgment in favor of Defendants on Johnsen's federal and state law false arrest claims, and (2) require Defendants to file a statement of undisputed facts in support of the Second Motion pursuant to Local Rule 56.1. For the reasons set forth below, the Motion to Strike is granted in part and denied in part.
This lawsuit arises out of a confrontation between Johnsen and the Officer Defendants at the Intercontinental Hotel in Rosemont, Illinois on November 6, 2009. On that night, Sergeant Sheridan stopped Johnsen after receiving information that Johnsen had been involved in a possible domestic disturbance. (Johnsen Crim. Trial Tr. at 3-4, 56, Dkt. No. 75-4.) At some point during the encounter, the other Officer Defendants joined Sergeant Sheridan in confronting Johnsen, and Sergeant Sheridan pointed a taser gun at Johnsen. ( Id. at 58; Sec. Am. Compl. ¶ 12, Dkt. No. 95.)
The parties dispute what happened next. According to the Officer Defendants, Johnsen shoved Lieutenant Drehobl and in response Sergeant Sheridan shocked Johnsen with the taser. (Johnsen Crim. Trial Tr. at 63-64, Dkt. No. 75-4.) Johnsen, on the other hand, claims that the Officer Defendants shocked him with a taser despite the fact that he cooperated with them, informed them that he has a pacemaker, and raised both of his hands above his head in a gesture of surrender. (Sec. Am. Compl. ¶¶ 13-15, Dkt. No. 95.) Johnsen further alleges that the Officer Defendants continued to shock him with the taser gun multiple times while he was lying on the ground, causing him pain, burns, and scarring. ( Id. ¶¶ 16-17.) He claims that Lieutenant Drehobl also punched and kicked him a number of times, breaking his nose, while the other Officer Defendants watched and did nothing to intervene. ( Id. ¶¶ 18-19.) According to Johnsen, the Officer Defendants then handcuffed him and caused him to be charged with battery, resisting arrest, and disorderly conduct, despite a lack of probable cause for any of these offenses. ( Id. ¶¶ 23-25.) Johnsen was tried before a jury on these criminal charges, and the charges were terminated in Johnsen's favor. ( Id. ¶ 26.)
Johnsen filed his original Complaint in this action on November 3, 2010, and he filed the First Amended Complaint on January 19, 2011. The First Amended Complaint asserted 15 claims for relief, including claims for false arrest pursuant to 42 U.S.C. § 1983 and Illinois law, as well as a claim for malicious prosecution under Illinois law. After the close of discovery, the Court set a dispositive motion deadline of February 21, 2013. Defendants timely filed a motion for partial summary judgment on Johnsen's federal false arrest claim ("Original Motion"), arguing that the undisputed evidence established that the Officer Defendants had probable cause to arrest Johnsen for resisting a peace officer, battery, and disorderly conduct. (Dkt. No. 72.)
In conjunction with their Original Motion, Defendants filed a statement of what they contended were undisputed material facts pursuant to Local Rule 56.1 ("Statement of Facts"). (Dkt. No. 74.) The Statement of Facts repeatedly presented as an undisputed fact that Johnsen shoved Lieutenant Drehobl. ( Id. ¶¶ 48, 49, 53.) Although the Statement of Facts cited Johnsen's deposition testimony extensively for other matters ( see, e.g., id. ¶¶ 25-44), it failed to reference the portion of Johnsen's deposition in which he denied shoving Lieutenant Drehobl:
Q. Okay. At any time did you touch Officer Drehobl - strike that - Lieutenant Drehobl?
Q. At any time did you push him?
A. Never. At any time I never touched any of those police officers.
(Johnsen Dep. Tr. 81:15-20, Mot. to Strike Ex. B, Dkt. No. 110-2.) Defendants also included a partial transcript of Johnsen's criminal trial as an exhibit to their Original Motion. (Statement of Facts Ex. C, Dkt. No. 75-4.) However, Defendants omitted the portion of the criminal trial transcript in which Johnsen testified that he did not push Drehobl and did not cite to that portion of the transcript in their Statement of Facts. ( See Johnsen Crim. Trial Tr. 209-210, Mot. to Strike Ex. A, Dkt. No. 110-1.)
Johnsen's then-attorney failed to respond to Defendants' Original Motion or Statement of Facts. Thus, the Court deemed most of Defendants' Statement of Facts admitted pursuant to Local Rule 56.1(b)(3)(C), including the supposedly undisputed fact that Johnsen shoved Drehobl. ( See Mem. Op. and Order at 2, 4, 7, Dkt. No. 84.) Based in part on this ostensibly undisputed fact, the Court found that the Officer Defendants had probable cause to arrest Johnsen on the charges of resisting arrest and battery. ( Id. at 7.) Consequently, the ...