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Lopez v. Vidljinovic

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

August 22, 2016

Jose Lopez, by his wife and next best friend, Sandra Cardiel, Plaintiff
v.
Stevan Vidljinovic, Star No. 4051, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey United States District Court Judge

         Plaintiff Jose Lopez, by his wife and next best friend Sandra Cardiel, sued Chicago Police Officers Stevan Vidljinovic, John Guettler, Jose Valdovinos, Antonio Valenzuela, Manuel Gonzalez, Armando Alamillo, Joseph DeMonica and Daniel Lopez, Supervising Sergeant Mark Kearns, Watch Commander Robert Dubiel, Paramedics Sandra Cheatam and Julio Mendoza, and the City of Chicago. Plaintiff alleges five causes of action: (1) unlawful seizure in violation of 42 U.S.C. § 1983; (2) excessive force in violation of 42 U.S.C. § 1983; (3) failure to intervene in violation of 42 U.S.C. § 1983; (4) assault and battery; and (5) intentional infliction of emotional distress. Fourth Am. Compl. [54] ¶¶ 91-128. Defendant Watch Commander Robert Dubiel (“Dubiel”) moved for summary judgment on all counts. Dubiel Mot. For Summ. Judg. [114]. That motion is granted in full.

         I.Background[1]

         On July 22, 2011, at approximately 3:00 a.m., Plaintiff Jose Lopez began having chest pains. CSOF [119] ¶ 4. Lopez’s friend, Guadalupe Guzman, called 911 shortly thereafter. PSOF [128] ¶ 1. Firefighters and paramedics arrived on the scene at approximately 3:30 a.m. Id. ¶¶ 1, 3. Paramedics Sandra Cheatam and Julio Mendoza attempted to administer medical treatment to Lopez. DSOF [115] ¶ 8. Personnel at the scene determined that the situation was a medical emergency and called the Chicago Police Department (“CPD”) for assistance. Id. Defendant CPD Officers Stevan Vidljinovic, John Guettler, Antonio Valenzuela, Manuel Gonzalez, Jose Valdovinos, Armando Alamillo, Joseph De Monica, Daniel Lopez, and Mark Kearns (“Defendant CPD Officers”) all responded to the call for CPD assistance. Id. ¶¶ 10-13.

         The parties dispute what happened after the Defendant CPD Officers arrived. Lopez asserts that the Defendant CPD Officers ignored his refusals of medical treatment. CSOF [119] ¶ 5. CPD Officer Vidljinovic asserts that Lopez moved towards him with his fists clenched, in an aggressive manner. DSOF [115] ¶ 31. The parties do not dispute that Officer Vidljinovic eventually tased Lopez. Id. ¶ 13. After he was tased, Lopez was transported to Mt. Sinai Hospital. Id. ¶ 14.

         At the time of the tasing, Robert Dubiel was the Watch Commander working inside the 10th District CPD station. Id. ¶ 15. Dubiel was not at the scene of the tasing and did not personally witness the incident. Id. ¶¶ 16-17. At approximately 3:45 a.m., Dubiel heard a call over the radio about a taser deployment. By the time Dubiel heard the call regarding the incident with Lopez, the taser had already been deployed. Id. Ex. L at 70. Pursuant to CPD policy, as a Watch Commander, Dubiel was required to interview the officer involved, download the taser information from the device, ensure the officer involved completed a tactical response report, interview the person tased if available, ensure compliance with the CPD’s use of force policy and approve of the tactical response report. Id. ¶ 23. Consistent with that policy, after the incident, Dubiel interviewed Officer Vidljinovic (the tasing officer) and Sergeant Kearns (the on-site supervising officer). Id. ¶ 26-27. Dubiel recalls that Officer Vidljinovic told him that Lopez was not responding to verbal commands, was not making sense and eventually clenched his fists and moved at the officers in an aggressive manner. Id. ¶ 29-31. Officer Vidljinovic also told Dubiel that he had mistakenly filed a battery report but was not touched in any way by Lopez. PSOF [143] ¶ 26. Dubiel did not seek to interview Lopez, given that he was hospitalized after he was tased. DSOF [115] ¶ 36.

         Based on the information he received from the officers who were present, Dubiel believed that Lopez was under the influence of drugs or alcohol and therefore unable to accept or refuse medical treatment. Id. ¶ 38. As part of his duties, Dubiel also downloaded the information from the taser; at that time, Dubiel was not aware of any other alleged excessive force incidents involving Officer Vidljinovic and had no reason to suspect any red flags about the incident.[2] Id. ¶¶ 41-43. Dubiel then approved the tactical response report completed by Vidljinovic and concluded that Vidljinovic’s actions complied with the CPD’s use of force policy. Id. ¶ 45. Dubiel was not required to (and in fact did not) check to see if the incident had been recorded on any available dashcams. Id. ¶ 23.

         II. Legal Standard

         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. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.2014). A genuine dispute as to any material fact exists if “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 party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether a genuine issue of material fact exists, this Court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. See CTL ex rel. Trebatoski v. Ashland School District, 743 F.3d 524, 528 (7th Cir. 2014).

         III. Analysis

         Lopez has brought claims for: (1) unlawful seizure in violation of 42 U.S.C. § 1983; (2) excessive force in violation of 42 U.S.C. § 1983; (3) failure to intervene in violation of 42 U.S.C. § 1983; (4) assault and battery; and (5) intentional infliction of emotional distress. Fourth Am. Compl. [54] ¶¶ 91-128. Lopez argues that Dubiel is liable for all five counts pursuant to a theory of supervisory liability, given that: (1) he was the active Watch Commander at the time of the incident; (2) he approved Officer Vidljinovic’s use of force report; and (3) he failed to adequately investigate the incident. The Court addresses each argument in turn.

         A. Supervisory Liability

         To be liable under § 1983 for the conduct of subordinates, a supervisor must be personally involved in that conduct. Lanigan v. Vill. of East Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir. 1997). Supervisory liability will be found if the supervisor has knowledge of the conduct and approves of it and the basis for it. Chaves v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001). However, proof of negligence or even gross negligence is insufficient to impose liability. Mayes v. City of Hammond, Ind., 442 F.Supp.2d 587, 634 (N.D. Ind. 2006). Liability may also attach where a supervisor knows of unconstitutional acts, but fails to take corrective measures. Id. at 635. However, isolated instances of unconstitutional conduct ordinarily are insufficient to establish the supervisor’s knowledge. Id. Ultimately, the supervisor must “know about the conduct and facilitate it, condone it, or turn a blind eye for fear of what they might see. They must either act knowingly or with deliberate, reckless indifference.” Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1998).

         1. Liability as ...


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