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Anderson v. Kelly

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

March 2, 2015

WILLIAM ANDERSON (#R-22868), Plaintiff,
v.
MIKE KELLY and DAN GALLAGHER, Defendants.

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, District Judge.

Plaintiff William Anderson (hereinafter "Plaintiff"), brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that on November 27, 2007, City of Chicago Police Detectives Mike Kelly and Dan Gallagher[1] violated his Fourth Amendment rights when he was arrested. Defendants have moved for summary judgment and Plaintiff has responded. For the reasons explained below, Defendants' motion is granted and Plaintiff's motion in opposition is denied.[2]

BACKGROUND

The following facts are drawn from the pleadings and the Defendants' Local Rule 56.1 submission. On November 18, 2007, Derrick Smith was shot and killed in the hallway of a Chicago Housing Authority residence located at 1936 W. Washington Boulevard. (Defs.' 56.1(a)(3) [42] ¶ 2.) The victim and his twin brother, Erick Smith, were confronted in the hallway on the first floor of the building by two men later identified as Plaintiff and Bennie Casey (also known as "Little B"). (Tr. of Test. of Erick Smith, Ex. B to Defs.' Mot. for Summ. J. [40], at 78-82.) Bennie Casey pointed a gun at Erick Smith and ordered him out of the building. ( Id. ) Erick exited the building and realized his brother Derrick was no longer with him. ( Id. at 82-83.) Erick reentered the building and saw Bennie Casey shoot his brother. ( Id. at 83-85.)

City of Chicago Police Homicide Detectives Mike Kelly and Dan Gallagher (collectively "Defendants") investigated the shooting. (Defs.' 56.1(a)(3) ¶ 1.) Though Erick Smith had witnessed the shooting, he told officers that he did not know the identity of the two men involved. (Defs.' 56.1(a)(3) ¶¶ 2-3; Tr. of Test. of Erick Smith at 150.) Erick Smith told Detective Kelly that Nina Boyd and a woman nicknamed "Turk, " whom Defendants later identified as Tongula Ayers, might have information about his brother's murder. (Defs.' 56.1(a)(3) ¶ 3.) Detective Kelly spoke with Ms. Boyd, who told him-based on a description of the individuals provided by Erick Smith-that she believed she knew the two men involved in the murder. ( Id. ¶ 4.) Ms. Boyd told Detective Kelly that she believed the two men were William Anderson and a man known by the nickname "Little B." ( Id. )

Detective Kelly ran a search through the Chicago Police Department data warehouse for photographs of men named William Anderson. ( Id. ¶ 5.) Detective Kelly showed the photographs to Ms. Boyd, and she identified Plaintiff as the William Anderson she believed matched the description of one of the two men involved in the murder of Derrick Smith. ( Id. ) Witnesses Erick Smith, Tongula Ayers, and Shanice Wright all later identified Plaintiff in photo arrays. ( Id. ¶ 6.)

Plaintiff was released from Stateville Correctional Center on July 19, 2007. At the time of Derrick Smith's murder, and the subsequent arrest Plaintiff now challenges, Plaintiff was on parole under the terms of a mandatory supervised release agreement ("MSR"). (Aff. of Parol Agent Charles Victor (hereinafter "Victor Aff."), Ex. C to Defs.' Mot. for Summ. J., ¶ 2; see MSR, Ex. C-2 to Defs.' Mot. For Summ. J.) Under the terms of his MSR agreement, Plaintiff consented to the search of his person, property, and residence, and he was required to submit to in-person visits from his parole agent. (MSR ¶¶ 4, 10.)

On November 22, 2007, Detective Gallagher contacted Plaintiff's parole agent, Charles Victor, and advised Agent Victor that Plaintiff had been identified as involved in the murder of Derrick Smith. (Victor Aff. ¶ 4.) On November 27, 2007, Agent Victor notified Detective Gallagher that he had a monthly house check with Plaintiff scheduled later that day. ( Id. ¶ 5.) Defendants met Agent Victor at Plaintiff's residence. ( Id. ¶¶ 6-7.) Defendants did not have a warrant for Plaintiff's arrest or to search his residence, but when Plaintiff answered Agent Victor's knock on the door, Defendants placed Plaintiff under arrest for his alleged involvement in Derrick Smith's murder. (Defs.' Answer [39] ¶¶ 2, 4; Victor Aff. ¶ 7; see Parole Violation Report, Ex. C-1 to Defs.' Mot. for Summ. J.) Plaintiff claims that Defendants searched his residence. (Pl.'s Compl. [1], at 4.) Defendants deny this (Defs.' Answer ¶¶ 3-4), and Agent Victor confirmed that although he searched Plaintiff's bedroom pursuant to the terms of the MSR agreement, Defendants did not participate in any search of the residence. (Victor Aff. ¶ 10.) Agent Victor did not discover anything during his search. ( Id. ¶ 9.)

In subsequent in-person line-ups, witnesses Smith, Ayers, and Wright identified Plaintiff as being involved in Derrick Smith's murder. (Defs.' 56.1(a)(3) ¶ 11.) Thereafter, Plaintiff was charged with first-degree murder, pursuant to 720 ILCS 5/9-1(a)(1). (See Certified Statement of Conviction/Disposition (hereinafter "Statement of Disposition"), Ex. D to Defs' Mot. for Summ. J.)

On October 26, 2009, Plaintiff filed the complaint in this case, pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his Fourth Amendment rights when he was arrested and his residence searched on November 27, 2007, without a warrant. (See Pl.'s Compl.) Plaintiff was convicted on May 19, 2010; Plaintiff has completed one full round of state court appeals and his conviction has been affirmed. See People v. Anderson, 2013 IL App (1st) 102852-U, 2013 Ill.App. Unpub. LEXIS 2584 (2013); People v. Anderson, 380 Ill.Dec. 507 (May 28, 2014) (petition for leave to appeal denied).

DISCUSSION

The standards that govern this motion are familiar. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Jajeh v. County of Cook, 678 F.3d 560, 566 (7th Cir. 2012). In considering a motion for summary judgment, this court construes the facts and draws all reasonable inferences in favor of the non-movant, Jajeh, 678 F.3d at 566, but where the moving party demonstrates the absence of a disputed issue of material fact, the non-moving party bears the burden of presenting "evidence of specific facts creating a genuine dispute." Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). A genuine issue of material fact exists only if there is evidence "to permit a jury to return a verdict for" the nonmoving party. Egonmwan v. Cook County Sheriff's Dep't, 602 F.3d 845, 849 (7th Cir. 2010).

Consistent with this court's local rules, in support of their motion, Defendants filed a Local Rule 56.1(a)(3) Statement of Material Facts [42], citing evidentiary material in support of each statement. Defendant also filed and served the appropriate notice to pro se litigants [43], explaining the requirements of Local Rule 56.1.[3] Though notified of the requirements, Plaintiff did not submit a Local Rule 56.1(b)(3)(C) statement of additional facts, responded to only four of Defendants' L.R. 56.1 statements of fact, and cited to portions of the record in support of his denials of Defendant's statements in only three of the four responses.[4] Plaintiff also submitted a motion opposing entry of summary judgment [81] and a memorandum in support.

Although pro se plaintiffs are entitled to lenience, compliance with procedural rules is required. Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) ("[R]ules apply to uncounseled litigants and must be enforced"); Jones v. Phipps, 39 F.3d 158, 163 (7th Cir.1994); Fischer v. Ameritech, No. 98 C 7470, 2002 WL 1949726, *4 (N.D. Ill. Aug. 23, 2002) (Pallmeyer, J.). To the extent Plaintiff failed to respond to Defendants' L.R. 56.1 statements of fact with references to the record properly in support of denial, the statements are deemed ...


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