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Frazier v. City of Chicago

United States District Court, Northern District of Illinois, Eastern Division

May 6, 2015

ELMER FRAZIER, Plaintiff,
v.
CITY OF CHICAGO, OFFICER JOHN DOE #1, and GARRY MCCARTHY, Defendants.

MEMORANDUM OPINION AND ORDER

JOHN W. DARRAH United States District Court Judge

Plaintiff Elmer Frazier filed a Second Amended Complaint on May 1, 2014, against Defendants Officer John Doe #1 (“Doe”), Garry McCarthy and the City of Chicago, asserting various violations of 42 U.S.C. § 1983 and Illinois state law. Plaintiff’s claims stem from an alleged altercation between Plaintiff and Doe on May 20, 2012. Defendants filed a Motion for Summary Judgment on Counts I, II, IV, and V, the claims against Doe and McCarthy. For the reasons set forth more fully below, Defendants’ Motion for Summary Judgment is granted in part.

LOCAL RULE 56.1

Local Rule 56.1(a)(3) requires the moving party to provide “a statement of material facts as to which the party contends there is no genuine issue for trial.” Ammons v. Aramark Uniform Servs., 368 F.3d 809, 817 (7th Cir. 2004). Local Rule 56.1(b)(3) requires that “[a]ll material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.” Id. Local Rule 56.1(b)(3)(C) permits the nonmovant to submit “any additional facts that require the denial of summary judgment. . . .” To overcome summary judgment, “the nonmoving party must file a response to each numbered paragraph in the moving party’s statement.” Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005). In the case of any disagreement, the nonmoving party must reference affidavits, parts of the record, and other materials that support his stance. Id. A nonmovant’s “mere disagreement with the movant’s asserted facts is inadequate if made without reference to the specific supporting material.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). If the nonmovant’s response only provides extraneous or argumentative information, the response will fail to constitute a proper denial of the fact, and the fact will be admitted. See Graziano v. Vill. of Oak Park, 401 F.Supp.2d 918, 936 (N.D. Ill. 2005). Legal conclusions or otherwise unsupported statements, including those that rely upon inadmissible hearsay, will be disregarded. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). If the responding party fails to comply with Rule 56.1, its “additional facts may be ignored, and the properly supported facts asserted in the moving party’s submissions are deemed admitted.” Gbur v. City of Harvey, Illinois, 835 F.Supp.2d 600, 606-07 (N.D. Ill. 2011). Substantial compliance is not enough; parties must strictly comply with the rule. See Ammons, 368 F.3d at 817.

BACKGROUND

The following facts are taken from the parties’ statements of undisputed material facts submitted in accordance with Local Rule 56.1.

Plaintiff went to observe the Iraqi War Veteran’s Protest at the NATO Summit on May 20, 2012. (Def’s 56.1(a) ¶ 7.) Plaintiff was near a pizza store located slightly north of the northwest corner of Cermak and Michigan. (Def’s 56.1(a) ¶ 8.) Plaintiff claims that, at some point, a Chicago Police Officer (Doe) was on a bicycle, approached him, and told him to step back. (Def’s 56.1(a) ¶ 10.) Plaintiff did not see Doe prior to this interaction and did not see Doe take orders from anyone before Doe approached him. (Def’s 56.1(a) ¶¶ 11-12.) Plaintiff claims that, though he stepped back, Doe again told him to move. (Def’s 56.1(a) ¶ 13.) According to Plaintiff, Doe then grabbed him by the arm and threw him to the ground. (Def’s 56.1(a) ¶¶ 14-15.) Plaintiff fell and hurt his ankle. (Def’s 56.1(a) ¶ 15.) When Plaintiff fell, First Deputy Superintendent Al Wysinger cleared the area. (Def’s 56.1(a) ¶ 17.) Plaintiff did not see Wysinger in the area before his interaction with Doe, nor did he see Wysinger give any orders to Doe before their interaction. (Def’s 56.1(a) ¶¶ 18-19.) Plaintiff was taken to Mercy Hospital by ambulance. (Def’s 56.1(a) ¶ 23.)

Garry McCarthy was the Superintendent of the Chicago Police Department at all relevant times. (Def’s 56.1(a) ¶ 3.) On May 20, 2012, Superintendant McCarthy was in overall command of the officers on scene at the NATO protest event and all officers throughout the City of Chicago. (Def’s 56.1(a) ¶ 24.) McCarthy was not the officer who pushed Plaintiff to the ground. (Def’s 56.1(a) ¶ 27.) Plaintiff did not see McCarthy before his interaction with Doe. (Def’s 56.1(a) ¶ 25.) McCarthy did not observe the interaction between Plaintiff and Doe and was not made aware of any circumstances in which any officer was alleged to have pushed Plaintiff to the ground. (Def’s 56.1(a) ¶ 28-29.) From where he was stationed, McCarthy could not see what individuals were doing in the location where Plaintiff was standing. (Def’s 56.1(a) ¶ 38.) McCarthy could not have observed Plaintiff due to the people between the two. (Def’s 56.1(a) ¶ 41.) To McCarthy’s knowledge, bike patrol officers were not instructed to remove bystanders. (Def’s 56.1(a) ¶ 50.) And Plaintiff was never told to leave the area. (Def’s 56.1(a) ¶ 51.) McCarthy does not recognize the Plaintiff. (Def’s 56.1(a) ¶ 26.)

During discovery, Plaintiff went to police headquarters to identify Doe; and Chicago Police Department personnel presented him with several groups of pictures. (Def’s 56.1(a) ¶¶ 56-57.) Plaintiff was unable to make a positive identification and has not, to date, identified Doe. (Def’s 56.1(a) ¶¶58-59.)

LEGAL STANDARD

Summary judgment will be granted where “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. Courts are required to view all facts and make reasonable inferences “in the light most favorable to” the nonmoving party. Scott v. Harris, 550 U.S. 372, 380 (2007). A genuine dispute of material facts exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the initial burden of establishing that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To overcome a motion for summary judgment, “[t]he nonmoving party must point to specific facts showing that there is a genuine issue for trial.” Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009). The nonmovant must show “that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson, 477 U.S. at 248).

“A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. “It is reasonable to assume that just as a district court is not required to ‘scour the record looking for factual disputes, ’ . . . it is not required to scour the party’s various submissions to piece together appropriate arguments. A court need not make the lawyer’s case.” Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) (citing Anderson, 477 U.S. at 248-49).

ANALYSIS

Officer John Doe #1


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