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Wilbon v. Plovanich

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

July 6, 2015

JOSEPH M. PLOVANICH, et al., Defendants.


MARVIN E. ASPEN, District Judge.

In their amended complaint, Plaintiffs set forth numerous claims against Defendants under 42 U.S.C. ยง 1983, stemming from their arrests in the early morning hours of April 10, 2010. The remaining Defendants, including eleven Chicago police officers as well as the City of Chicago, moved for summary judgment on all counts. Plaintiffs sought partial summary judgment on Counts I, II, IV, and V. In an opinion dated September 9, 2014 ("Opinion"), we resolved the cross-motions.[1] (Dkt. No. 250.) We granted Defendants' motion with respect to Count IV (failure to intervene) but generally denied both motions as to Count I (false arrest), Count II (unconstitutional search of Plaintiffs' persons), and Count V (supervisory liability of Lt. McDermott). As indicated in the conclusion of the Opinion, Count I remains pending against Lt. McDermott as well as Officers Kushiner, Garcia, and Silva.[2] (Op. at 40.) Count II remains pending against all Defendant officers, except Officers Plovanich and Millan, who Plaintiffs voluntarily dismissed from that particular claim.[3]

Plaintiffs have filed a motion for reconsideration of the Opinion as it pertains to their partial motion for summary judgment. (Dkt. No. 254.) Plaintiffs contend that we misapprehended both the law and the facts. As set forth below, the motion is denied.


During the night of April 9-10, 2010, Plaintiffs were arrested after a witness claimed to have seen them (or at least claimed to have seen David) participate in a disturbance in the 1300 block of N. Menard in Chicago. The witness, Keith Thornton, testified that he saw David throw an object, striking a female police officer. He then watched David run from the block and get in a car carrying Rico and George. Thornton testified that he called 911 to report the disturbance and followed the car in which Plaintiffs were riding. He allegedly followed the vehicle until it stopped at the Chicago Police Department 15th district headquarters ("Police Department"). Thornton entered the Police Department and spoke to Lt. McDermott, describing what he had seen on N. Menard. According to Thornton, two other officers drove him by Plaintiffs and their vehicle in a show-up in front of the Police Department, at which point he identified David as the individual who threw the object at the female officer on N. Menard.

Plaintiffs dispute that they were present for any disturbance at the 1300 block of N. Menard that evening.[5] Plaintiffs had been socializing with some friends that evening; the group stopped their cars in front of the Police Department to further coordinate their plans. According to Plaintiffs, after they pulled over, numerous officers arrived in a rush and demanded that they exit the vehicle. The officers handcuffed, searched, and arrested all three Plaintiffs, later charging them with mob action. David was also charged with aggravated assault, and George was charged with cannabis possession. All charges were ultimately dismissed. As discussed in the Opinion, the primary question posed by this lawsuit is whether Defendants had probable cause to arrest, search, and prosecute Plaintiffs.

In support of their partial motion, Plaintiffs relied on certain facts, which they highlight again here. Plaintiffs identified purported inconsistencies in Thornton's description of the evening and challenged the route he took when allegedly driving from N. Menard to the Police Department. Plaintiffs also noted that, although Thornton allegedly saw a female officer struck in the head, no female officers were on N. Menard at that time. In addition, there is no 911 recording for that night with a call from Thornton (or anyone else) about a disturbance on N. Menard. Plaintiffs also insist that, based on the record evidence, Thornton admitted that he did not tell Defendants that George and Rico were present on N. Menard and that he did not implicate them in any criminal activity. Plaintiffs stress that Lt. McDermott, who authorized the arrests, did not recall anything that Thornton told her that gave her any reason to believe that Rico or George were involved in the N. Menard altercation. Based on these facts and alleged admissions, Plaintiffs contend that we erred in denying their partial motion on Counts I, II, IV, and V. ( See Mot. at 4-9.)


Because Plaintiffs have asked us to reconsider a non-final order, our analysis is guided by Federal Rule of Civil Procedure 54(b), as well as our inherent authority. See Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990); Caine v. Burge, 897 F.Supp.2d 714, 716 (N.D. Ill. 2012); Mitchell v. JCG Indus., 845 F.Supp.2d 1080, 1082-83 (N.D. Ill. 2012); see also Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12, 103 S.Ct. 927, 935 (1983) (noting that "every order short of a final decree is subject to reopening at the discretion of the district judge"). Rule 54(b) provides that a non-final order "may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed.R.Civ.P. 54(b). Reconsideration is appropriate only "where a court has misunderstood a party, where the court has made a decision outside the adversarial issues presented to the court by the parties, where the court has made an error of apprehension (not of reasoning), where a significant change in the law has occurred, or where significant new facts have been discovered." Broaddus v. Shields, 665 F.3d 846, 860 (7th Cir. 2011), overruled on other grounds by Hill v. Tangherini, 724 F.3d 965, 967 n.1 (7th Cir. 2013); see also Bank of Waunakee, 906 F.2d at 1191; Caine, 897 F.Supp.2d at 716.

Moreover, "a motion for reconsideration does not allow a party to revisit strategic decisions that prove to be improvident, to reargue the evidence, to make new arguments, or to introduce new evidence that could have been presented earlier." HCP of Ill., Inc. v. Farbman Group I, Inc., 991 F.Supp.2d 999, 1000 (N.D. Ill. 2013); Caine, 897 F.Supp.2d at 717; see Janusz v. City of Chi., 03 C 4402, 2015 WL 269934, at *4 (N.D. Ill. Jan. 20, 2015). Rule 54 motions thus serve a limited function and are granted only in exceptional circumstances. Bank of Waunakee, 906 F.2d at 1191; HCP of Ill., Inc., 991 F.Supp.2d at 1000; Caine, 897 F.Supp.2d at 717; see Patrick v. City of Chi., 14 C 3658, 2015 WL 1880389, at *2 (N.D. Ill. Apr. 23, 2015).


In their motion, Plaintiffs contend that we misapplied the summary judgment standard of review by neglecting to consider the merits of their motion, independent of Defendants' motion. (Mot. at 2-4.) Plaintiffs also argue that we overlooked factual concessions made by Defendants and either failed to rule, or ruled erroneously, on certain claims. ( Id. at 4-6.) Having again reviewed the original summary judgment submissions along with the pending motion, we perceive no misapprehension or manifest error of law or fact. Nonetheless, we briefly address Plaintiffs' arguments below.

I. Application of the Summary Judgment Standard of Review

Plaintiffs contend that we used the wrong methodology in considering the cross-motions. They argue that we mistakenly borrowed facts from Defendants' motion when addressing Plaintiffs' motion, rather than ...

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