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Bonner v. O'Toole

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

April 3, 2015

SYLVESTER BONNER, JR., Plaintiff,
v.
DANIEL O'TOOLE, et al., Defendants.

MEMORANDUM OPINION AND ORDER

MANISH S. SHAH, District Judge.

In February 2010, Officer Daniel O'Toole of the Chicago Police Department received a tip from an unidentified "John Doe" informant about drug activity in the building at 4929 W. Adams Street. Based on the informant's report, Officer O'Toole prepared a complaint for a warrant and brought the informant before a state-court judge. The judge signed the warrant, which permitted search of "[t]he entire 1st floor apartment" at 4929 W. Adams, as well as of the supposed inhabitant of that apartment, a woman called "Shu-Shu." Later that day, O'Toole and several other CPD officers executed the warrant. Using information from the informant that did not appear in either the warrant or its underlying affidavit-that Shu-Shu's apartment would be the first door on the right, on the lowest level-the officers entered and searched a ground-level apartment in the 4929 building.

As it turned out, there were two ground-level apartments in that building, and the units at ground level were actually "basement"-level apartments-that is, the first-floor apartments were in reality one level up. Nor, as it happened, was the apartment the officers searched Shu-Shu's apartment. A man named Sylvester Bonner lived there. During the course of the search, Bonner's front door was broken and his personal belongings strewn about. Some of his clothing was damaged, and at some unknown point in time, several electronics (a computer, cell phone, and sound system) went missing.

Bonner sued Officer O'Toole and various "unknown officers" of the Chicago Police Department under 42 U.S.C. § 1983, alleging violation of Bonner's Fourth Amendment rights (Counts I-V), as well as civil conspiracy (Count VI). Bonner also sued the City of Chicago under Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 665 (1978). Bonner, O'Toole, and the City each filed a motion for summary judgment. For the reasons discussed below, the City's motion is granted, and the remaining parties' motions are granted in part and denied in part. The "unknown officer" defendants are dismissed from the case.

I. Legal Standard

Summary judgment must be granted where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Kvapil v. Chippewa Cnty, Wis., 752 F.3d 708, 712 (7th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (internal quotation marks omitted). In reviewing a summary-judgment motion or a cross-motion for summary judgment, a court construes all facts, and draws all reasonable inferences from those facts, in favor of the non-moving party. United States v. P.H. Glatfelter Co., 768 F.3d 662, 668 (7th Cir. 2014) (quoting Laskin v. Siegel, 728 F.3d 731, 734 (7th Cir. 2013)).

II. Facts

The plaintiff has in certain instances responded to defendants' Local Rule 56.1 statements of fact by denying the truth of, or denying and moving to strike, entire paragraphs of those statements. While denials of this sort may sometimes be appropriate, many of plaintiff's objections here are overbroad in that they concern only one aspect of a given factual statement rather than the whole of the facts presented in that paragraph. See, e.g., [283] at 11 ¶ 29[1] (denying and moving to strike a statement that the defendant prepared two search warrants as a result of an informant and investigation, on the basis that-in plaintiff's estimation-the record does not reflect that a true "investigation" was actually conducted). Argumentative responses are also inappropriate. See, e.g., id. at 14-15 ¶ 44 (denying and moving to strike a given factual statement because, according to plaintiff, it suggests an "[i]mproper legal inference"). The purpose of Local Rule 56.1 is to permit the district court to identify at summary judgment which material facts are in dispute. The parties' Rule 56.1 statements (and responses) are viewed with this principle in mind. Unless otherwise noted, the facts related below are undisputed or are considered undisputed because the responding party did not properly controvert the factual statement as required by local rule.

A. The Searches at 4923-4929 W. Adams

In early 2010, Daniel O'Toole was an officer with the Chicago Police Department. See [291] at 1 ¶ 2. He was at that time a member of an anti-violence task force, which included approximately eight officers (and one sergeant) from various police-force districts. See [283] at 1 ¶ 2. In January 2010, Officer O'Toole was driving on the west side of Chicago when he claims he was flagged down by a woman. See [283] at 5 ¶ 10. The woman said she had information for O'Toole, and told him that drugs were being sold at the buildings located at 4925 and 4927 W. Adams Street. See id.; see also May 13, 2013 Deposition of Daniel O'Toole, [279-13] at 35, Tr. at 138-39.[2] The woman said she knew cocaine was being sold at those locations because she herself had bought some. See [283] at 5 ¶ 11. The woman got in O'Toole's car, and they drove to the addresses she had mentioned. See id. at 7 ¶ 16; O'Toole Deposition, [279-13] at 41, Tr. at 163; id. at 48, Tr. at 189. The two addresses were part of a U-shaped apartment complex containing four addresses in total: 4925 and 4927 W. Adams-the two addresses identified by the informant- and 4923 and 4929 W. Adams. See [283] at 6 ¶ 12. At the center of the "U" were 4925 and 4927, flanked by 4923 (on the left) and 4929 (on the right). See id.; see also [253] (photograph of complex).

O'Toole arranged to meet with the woman again, and on January 26, 2010, he obtained from her additional information that he included the next day in affidavits for two separate search warrants, see [283] at 7 ¶¶ 17-18-one to search "[t]he entire 3rd floor apartment of the three-flat building located at 4925 W. Adams" (the premises of a woman named "Keyonna"), see [279-5]; and one to search "[t]he entire first floor apartment of the three-flat building located at 4927 W. Adams" (the premises of a woman known as "Neesh"), see [279-6]. On January 27, 2010, both O'Toole and the informant appeared before a judge of the Circuit Court of Cook County, Illinois, who signed the warrants. See [283] at 8 ¶¶ 20, 22; [279-5] at 1; [279-6] at 1. The informant signed the underlying affidavits as "J. Doe." See [279-5] at 2; [279-6] at 2. Later that day, the police raided the apartments described in the warrants; both searches uncovered drugs. See [283] at 9 ¶ 24; O'Toole Deposition, [279-13] at 55, Tr. at 216. O'Toole was part of the search team that executed the warrants on January 27. See [291] at 6-7 ¶¶ 21-22. To perform both of those searches ( i.e., for both the third-floor apartment at 4925 W. Adams and the first-floor apartment at 4927), O'Toole and his team had to ascend several stairs. See id. at 7 ¶ 22.

In February 2010, O'Toole saw the same "John Doe" informant under circumstances similar to their previous encounter. See O'Toole Deposition, [279-13] at 54-55, Tr. at 215-16 (testifying that he saw her near the same street corner). According to O'Toole, the informant then told him that one of the apartments the police had searched in January was "back up"-meaning that drugs were again being sold out of that unit. See [283] at 10 ¶ 27; O'Toole Deposition, [279-13] at 55, Tr. at 216.[3] The informant also said that drugs were being sold from another unit in the same complex, this time at 4929 W. Adams, by a woman known as "Shu-Shu." See O'Toole Deposition, [279-13] at 55, Tr. at 216-17. Shu-Shu's apartment, said the informant, was the first door on the right as you enter that building, "and you can't go any lower." See id.; see also [283] at 12 ¶ 33.[4] O'Toole claims that he and another officer drove with the informant past the 4929 building, see [283] at 10 ¶ 28; [291] at 11 ¶ 39-though the other officer's memory of this event was fuzzy, see July 9, 2013 Deposition of Jorge A. Martinez, [259] at 98-99, Tr. at 97-98.

Based on the information provided by the John Doe, O'Toole prepared two additional affidavits and corresponding warrants, see [283] at 11 ¶ 29: one for "[t]he entire 1st floor apartment of the three flat building located at 4927 W. Adams" (again to search the apartment of the woman known as "Neesh"), see [279-7]; and the other for "[t]he entire 1st floor apartment of the three flat building located at 4929 W. Adams" (to search Shu-Shu's apartment), see [297-8].[5] The affidavit supporting the warrant to search the apartment at 4929 W. Adams read as follows:

I, Officer Daniel O'Toole[, ] have been a Chicago police officer for the past nine years. During the past nine years I have made numerous narcotics and weapons related arrests.
On 12 Feb 2010, I had an opportunity to speak with an individual that I will refer to as John Doe. John Doe has admitted to me to be a user of Cocaine for over five years. During the last year and within the past 24 hours, John Doe has purchased and used Cocaine he bought from the above address [the entire 1st floor apartment of the three-flat building located at 4929 W. Adams, Chicago, Illinois, Cook County] from an individual by the name of "Shu-Shu". John Doe has known "Shu-Shu" for three years.
On 12 Feb 2010, John Doe went to "Shu-Shu" for the purpose of purchasing Cocaine. John Doe stated he typically purchases two "rocks" (street terminology for Crack Cocaine") for 20.00 U.S.C. John Doe informed me... that on 12 Feb 2010 he had an opportunity to purchase Cocaine from the above listed person ("Shu-Shu") at the above listed address 4929 W. Adams (1st floor). John Doe stated he went to the above listed residence and "Shu-Shu" opened the door and told John Doe to come inside. Once inside of the residence, "Shu-Shu" asked John Doe what he wanted, John Doe then stated a "two rocks" (common street terminology for Crack Cocaine). "Shu-Shu" then told John Doe to grab a "Nike shoebox" from on top of her television set which contained numerous plastic bags, containing suspect Crack Cocaine. "Shu-Shu" then told John Doe to grab two bags for himself out of the shoebox. After John Doe removed the two bags of Crack Cocaine from the shoebox... he then handed "Shu-Shu" $20.00... U.S.C in return. "Shu-Shu" then told John Doe to put the "Nike shoebox" back on the television. John Doe then left the residence and went to an undisclosed location and used a portion of the Crack Cocaine that John Doe had just purchased from "Shu-Shu". John Doe stated that John Doe received the same euphoric feeling as John Doe has received in the past after ingesting Crack Cocaine.
On today's date, John Doe accompanied R/O and R/O's partner in [a] covert vehicle and drove to the 4900 block of W. Adams. John Doe pointed to 4929 W. Adams (1st floor) and stated "that's where Shu-Shu stays".

[279-8] at 2-3. Also on February 12, 2010, O'Toole brought the John Doe informant before the same judge who had signed the January 27 warrants. See [283] at 13 ¶ 36. The judge placed the informant under oath and spoke with her, but when asked at his deposition, O'Toole could not recall any specific questions the judge may have posed, or if the informant provided to the judge any information not otherwise included in the affidavits prepared by O'Toole. See id.; see also O'Toole Deposition, [279-13] at 62-63, Tr. at 247-48. The judge signed both warrants. See [283] at 13 ¶ 36.

Later that evening, O'Toole and several other police officers executed the search warrants for 4927 (first-floor apartment) and 4929 W. Adams (also the first-floor apartment). See id. ¶ 39. Upon entering the building at 4929, the officers approached the first door on the right-which is where the informant had said Shu-Shu's apartment would be-knocked several times and announced their presence; when no one responded, they forced open the apartment door with a battering ram. See id. at 12 ¶ 33; id. at 16 ¶ 48; id. at 19 ¶ 60. The officers searched the apartment for drugs, but did not find any. See id. at 21 ¶¶ 65, 67.

One of the officers left a copy of the search warrant in the apartment, see [291] at 21 ¶ 74, and the team exited; they did not lock the door to the apartment because the door had been damaged from their forcible entry and could no longer be locked, see id. ¶ 75. At some point during the search, though, Michael Dudley-the maintenance technician for the buildings at 4923-4929 W. Adams, see [283] at 6 ¶ 14-had arrived, see id. at 29 ¶ 94. After the police were done searching the apartment, Dudley measured the broken front door, went to his shop (across the alley) to cut boards for boarding it up, and returned to put the boards in. See [291] at 22 ¶ 77; December 3, 2012 Deposition of Michael Dudley, [279-14] at 24, Tr. at 96.[6]

As it turned out, the person who lived in that apartment was not a woman called "Shu-Shu, " but a man named Sylvester Bonner, see [291] at 2-3 ¶¶ 7-8. (Shu-Shu, it seems, did live at 4929 W. Adams, but in an apartment on a higher floor. See id. at 20 ¶¶ 68-69.) Nor was Bonner's apartment technically a "first-floor" apartment. Bonner lived in a "B"-level apartment (where "B" signifies "basement"): the "1"-level apartments were up a flight of stairs. See id. at 2 ¶ 7; id. at 4 ¶ 14; id. at 6 ¶ 20. In fact, there were two apartments-not one-on each floor. See id. at 4 ¶ 14. So Bonner's apartment was one of two at the "B"-level. See id. (noting that in addition to Bonner's "BA" unit there was also a "BB" unit-as well as "A" and "B" apartments on each of the three upper levels).

When Bonner came home to his apartment on February 12, 2010, he found the door to his unit boarded up and his belongings in disarray. See id. at 22-23 ¶ 79. The linings of his fur coats had been cut open, and several of his personal ...


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