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Harris v. United States

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

February 28, 2017

DAVID HARRIS, Plaintiff,


          JOHN W. DARRAH United States District Court Judge

         Plaintiff David Harris filed a Third Amended Complaint (“TAC”), alleging a claim for malicious prosecution and other torts under the Federal Tort Claims Act (“FTCA”), against the United States of America (the “Government”). The Government filed a Motion for Summary Judgment [136] on all counts. For the reasons set forth below, the Government's Motion for Summary Judgment [136] is granted in part and denied 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 the nonmoving party to admit or deny every factual statement proffered by the moving party and to concisely designate any material facts that establish a genuine dispute for trial. See Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005). A nonmovant's “mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). In the case of any disagreement, the nonmoving party must reference affidavits, parts of the record, and other materials that support his stance. Local Rule 56.1(b)(3)(B). To the extent that a response to a statement of material fact provides only extraneous or argumentative information, this response will not constitute a proper denial of the fact, and the fact is admitted. See Graziano v. Vill. of Oak Park, 401 F.Supp.2d 918, 936 (N.D. Ill. 2005). Similarly, to the extent that a statement of fact contains a legal conclusion or otherwise unsupported statement, including a fact that relies upon inadmissible hearsay, such a fact is disregarded. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). Pursuant to Local Rule 56.1(b)(3)(C), the nonmovant may submit additional statements of material facts that “require the denial of summary judgment.”

         A district court is entitled to expect strict compliance with Rule 56.1; substantial compliance is not enough. Ammons, 368 F.3d at 817. “When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion.” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir. 2015) (quoting Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)).


         The following facts are taken from the parties' statements of undisputed material facts submitted in accordance with Local Rule 56.1.[1]

         The Walton Street Neighborhood Investigation

         In January of 2009, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) opened the Walton Street Neighborhood (“WSN”) Investigation. Report of Investigation (“ROI”) No. 1 of the WSN Investigation states that its purpose was to investigate “a group of organized criminals comprised of gang members from the Mafia Insane Vice Lords, Black Gangster Disciples, 4 Corner Hustler Vice Lords, Breeds, Conservative Vice Lords and Traveling Vice Lords.” ROI No. 1 also states that “members of these street gangs control and sell crack cocaine and heroin while armed with firearms in the areas of Walton and Iowa Streets and Kolin and Keeler Streets in Chicago, Illinois.” ATF suspected that someone named Ivan “Pimp” Thomas controlled a large-scale operation that sold firearms and illegal drugs in the Walton Street area. (Dkt. 145 ¶ 4.)

         ATF Special Agents John Rotunno and Larissa Baccus were the case agents on the WSN Investigation, and they worked with a confidential informant (“CI”) to carry out controlled drug and gun buys. The CI lived in the Walton Street neighborhood, got to know the individual dealers who operated there, and then introduced the dealers to undercover ATF agents who purchased illegal drugs and guns. The CI who assisted with the WSN Investigation had worked with ATF since 2004 and had known Rotunno for years because his mother and father were confidential informants. Prior to the WSN Investigation, the CI had assisted with numerous investigations where he wore recording devices, introduced ATF agents to criminal suspects, and testified in federal and state court. (Dkt. 145 ¶ 7.)

         The CI assisted ATF in identifying dealers in the Walton Street area. ATF agents would show the CI a government photo of a potential target of the investigation, with all personal identifying information removed, and then ask the CI whether the person in the photo was the same person he knew by a street nickname. (Dkt. 145 ¶ 9.) Agent Rotunno testified that the CI and ATF would also work with the Chicago Police Department (“CPD”) to identify potential targets. The CI would call Rotunno and tell him an individual who he knew only by nickname was at a specific location. Rotunno would then contact CPD and ask them to do an investigatory stop so that CPD could find out the individual's legal name. (Id.)

         The CI's relationship with ATF was subject to a written informant agreement, which states that he was not a law enforcement officer, an employee, or agent of ATF, and that he would not participate in any unlawful activities or initiate any plans to commit criminal acts. (Dkt. 145 ¶ 12.) The CI testified that he was also subject to biweekly drug tests throughout the WSN Investigation, which he submitted to Rotunno and his parole officer. (Dkt. 145 ¶ 13.) The CI was also subject to Semi-Annual Informant Status Reports and Confidential Informant Continuing Suitability Reviews. Updated criminal history records were attached to these reviews. (Dkt. 145 ¶ 14.)

         Throughout the course of the WSN Investigation, Rotunno and Baccus provided information to state and federal prosecutors. Rotunno and Baccus also testified that they provided state and federal prosecutors with written reports on a rolling basis. (Dkt. 145 ¶ 18.)

         The Identification of “Little Head”

         During the WSN Investigation, the CI told Rotunno about a man he knew only as “Little Head” who sold narcotics in the Walton Street area. The CI testified that he had known “Little Head” for several years and had met with him on several occasions. (Dkt. 145 ¶ 19.) On May 6, 2009, Rotunno showed the CI a photograph of Harris with all personal identifying information covered. Rotunno asked the CI if the photograph was “Little Head”. The CI stated that it was and initialed the photograph. (Dkt. 145 ¶ 20.)

         ROI No. 193, created by Rotunno, states that on September 11, 2009, CPD Officers contacted him and advised that they stopped two persons who identified themselves as “Little Head” and “Face.” (Dkt. 145 ¶ 21.) According to the CPD, “Little Head” was identified as David Harris. The CPD Officers also advised that “Little Head” was wanted for domestic battery and would be taken into custody. (Dkt. 145 ¶ 21.) Rotunno subsequently received photographs and criminal history reports on both persons and attached them to his report. (Dkt. 145 ¶ 21.) The ...

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