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Conwell v. Johnsen

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

February 28, 2017

DONALD CONWELL, Plaintiff,
v.
COMMANDER J.K. JOHNSEN, et al., Defendants.

          KIMBERLY M. FOXX, State's Attorney of Cook County

          Megan K. McGrath Megan K. McGrath Assistant State's Attorney

          John Power John Power Assistant State's Attorney

          DEFENDANTS' RULE 50(a) MOTION FOR JUDGMENT AS A MATTER OF LAW

          Ruben Castillo, Judge

          Defendants, Nathan Bowens, Rommel Romero, John Malloy, William Baker, William Rooney, Jennifer Leachman (formerly Jefferson), Jose Tiscareno, and Miguel Olavarria (“Defendants”)[1], by their attorney, Kimberly M. Foxx, Cook County State's Attorney, through her Assistants, Megan K. McGrath and John Power, respectfully move the Court, pursuant to Federal Rule of Civil Procedure 50(a), for judgment as a matter of law based upon the evidence submitted in this trial. In support, Defendants state:

         INTRODUCTION

         At the close of his case in chief, Plaintiff has not presented sufficient evidence to allow any of his claims to go forward. Specifically, some of Plaintiff's claims against particular Defendants brought in the operative Third Amended Complaint fail for a complete lack of evidence. The Court has already dismissed Sergeant Wiggins, Officer Perez, and Officer Chapman based on oral Rule 50(a) motions and Plaintiff's failure to offer evidence against them. The shortcomings in Plaintiff's case in chief do not end there.

         Plaintiff testified that Officer Rooney failed to intervene and stop other officers who were attacking him, but not that Rooney himself used any excessive force against Plaintiff. In his Third Amended Complaint, however, Plaintiff quite clearly says Rooney was an attacker. (Docket (“Dkt.”) 88 at ¶ 107-109.) In contrast, the very next paragraph of Plaintiff's Third Amended Complaint alleges that Sergeant Johnson failed to intervene to stop the beating by Rooney and other officers. (Id. at ¶ 110.) Plaintiff knew how to make a failure to intervene claim, but the operative complaint makes no such claim against Officer Rooney. Plaintiff's case in chief offers no evidence of excessive force by Officer Rooney, so that claim against Rooney must be dismissed.

         Alternatively, even if Plaintiff met his burden to support a claim against Officer Rooney, he failed to identify Officer Rooney to the jury, a failure he repeated with, at least, Officers Malloy, Romero, Olavarria and Lieutenant Bowens. Plaintiff may have “named names, ” but he made no in-court identification of which Defendant was which. Indeed, Defendants contend that Plaintiff made no in-court identification of any particular Defendant, and he certainly made no effort to pick out Officers Rooney, Malloy, Romero, Olavarria, and Lieutenant Bowens from among the group. Plaintiff's fundamental failure to identify his alleged tormentors leaves the jury unable to find that these individuals did anything wrong.

         As to Plaintiff's retaliation claim, Plaintiff did not adduce any evidence to support his retaliation claim against any Defendant. Finally, as to all Defendants, the quantum of evidence put forward by Plaintiff is simply insufficient to carry his burden of proof. A reasonable fact-finder could not find any of these Defendants liable, and under Federal Rule of Civil Procedure 50(a), this Court should enter judgment as a matter of law for them.

         LEGAL STANDARD

         Federal Rule of Civil Procedure 50(a) states: Judgment as a Matter of Law.

(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with ...

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