United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. ROWLAND, United States Magistrate Judge
Duff initiated this lawsuit against Sergeant Patrick
Grandberry, Officer Patrick Reilly, and the Village of
Maywood, alleging that they violated his Fourth Amendment
rights. Counts I and II assert that during an arrest,
Grandberry and Reilly used unreasonable excessive force in
violation of 42 U.S.C. § 1983. Count III asserts an
indemnity claim against Maywood pursuant to 745 ILCS
10/9-102. Count IV alleges that the Village is liable for the
deprivation of Duff's Fourth Amendment rights because of
a formal policy that conflicts with the Constitution. The
parties have consented to the jurisdiction of the United
States Magistrate Judge, pursuant to 28 U.S.C. § 636(c).
The Village has filed a Motion for Summary Judgment on Count
IV. For the reasons set forth below, the Motion is granted.
judgment is proper only if the “materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
“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(a), (c)(1)(A); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
Court views the evidence in the light most favorable to Duff,
the nonmoving party, and draws all reasonable inferences in
his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Popovits v. Circuit City Stores,
Inc., 185 F.3d 726, 731 (7th Cir. 1999). To avoid
summary judgment, Duff, who bears the burden of proof, cannot
rely on the pleadings alone, but must “set forth
specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 250 (citation
omitted); see Celotex, 477 U.S. at 324 (Rule 56
“requires the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial.”) (citation omitted).
facts must be established through one of the vehicles
designed to ensure reliability and veracity-depositions,
answers to interrogatories, admissions and affidavits.”
Martz v. Union Labor Life Ins. Co., 757 F.2d 135,
138 (7th Cir. 1985). The Court may also consider properly
authenticated and admissible documents or exhib- its.
Woods v. City of Chicago, 234 F.3d 979, 988 (7th
Cir. 2000). “To be admissible, documents must be
authenticated by and attached to an affidavit that meets the
requirements of Rule 56(e) and the affiant must be a person
through whom the exhibits could be admitted into
evidence.” Article II Gun Shop, Inc. v.
Gonzales, 441 F.3d 492, 496 (7th Cir. 2006).
Local Rule 56.1
Rule 56.1(a)(3) requires the moving party to provide “a
statement of material facts as to which the moving party
contends there is no genuine issue and that entitle the
moving party to a judgment as a matter of law.” The
nonmoving party must then “admit or deny every factual
statement proffered by the moving party and [ ] concisely
designate any material facts that establish a genuine dispute
for trial.” Ricco v. Sw. Surgery Ctr., LLC, 73
F.Supp.3d 961, 965 (N.D. Ill. 2014) (citing LR. 56.1(b)(3)).
Pursuant to Local Rule 56.1(b)(3)(C), the nonmovant may
submit a statement “of any additional facts that
require the denial of summary judgment, including references
to the affidavits, parts of the record, and other supporting
materials relied upon.” “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.” Ricco, 73 F.Supp.3d at 965.
“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.” Id. at
965-66 (citing Eisenstadt v. Centel Corp., 113 F.3d
738, 742 (7th Cir. 1997) (“And hearsay is inadmissible
in summary judg- ment proceedings to the same extent that it
is inadmissible in a trial, except that affidavits and
depositions, which (especially affidavits) are not generally
admissible at trial, are admissible in summary judgment
proceedings to establish the truth of what is attested or
deposed, provided, of course, that the affiant's or
deponent's testimony would be admissible if he were
testifying live.”) (citations omitted)).
Village contends that in Duff's response to the
Village's statement of material facts, “he disputes
or denies an asserted fact without any specific reference to
supporting material.” (Dkt. 143 at 1-2). The Court
agrees. LR 56.1 requires the party disputing a statement of
fact to cite “specific references to the affidavits,
parts of the record, and other supporting materials relied
upon.” LR 56.1(b)(3)(B). Failure to cite specific
evidence in disputing a statement of fact deems the fact
admitted. Buttron v. Sheehan, No. 00 C 4451, 2003 WL
21801222, at *4 (N.D. Ill. Aug. 4, 2003) (deeming statements
of fact uncontested where responding party filed to
“provide ‘specific references' to the
material that shows that a factual disagreement
exists”); see Ricco, 73 F.Supp.3d at 965.
Accordingly, the Court strikes Duff's responses to the
Village's statement of facts asserted in paragraphs 6, 8,
15-17, 22, 24-26, 28, and 30-31 and deems the underlying
February 9, 2014, Duff asserts that he stopped running and
indicated to pursuing police officers-Grandberry and Reilly,
who were employed by the Village of Maywood Police Department
(MPD)-that he would surrender by holding his hands up.
(Compl. ¶¶ 3, 4, 8). Duff alleges that despite
standing still and not resisting arrest, Grandberry and
Reilly assaulted and battered him, both before and after he
was handcuffed, resulting in a separated shoulder and facial
lacerations. (Id. ¶¶ 12- 14, 16, 18). Duff
has undergone extensive medical treatment for his injuries
since February 2014, treatment which is continuing.
(Id. ¶ 19).
Village's “Use of Force-Response to
Resistance” policy, as described in MPD General Order
1.3, was in effect on February 9, 2014. (Def's ¶
General Order 1.3 states that it is the policy of the MPD
that police officers shall use only that force which is
reasonably necessary to effectively bring an incident under
control and to protect the lives of officers and others.
(¶ 5). Section 1.3.2 directs officers to use only the
amount and degree of force reasonably believed necessary,
based on the totality of the circumstances as reasonably
perceived by the officer at the time, to accomplish lawful
objectives. (¶ 7). Section 1.3.2 incorporates by
reference 720 ILCS 5/7-5, “Peace Officer's use of
force in making arrest.” (¶ 8). Section 1.3.5
indicates that an officer is justified in using less than
deadly force when that officer reasonably believes it is
necessary to effect an arrest. (¶ 10). Section 1.3.6
sets forth an escalating/de-escalating scale of use-of-force
options when an officer determines that force is necessary
and appropriate. (¶ 11).
Grandberry and Reilly knew about General Order 1.3 and had
received a copy of it prior to February 2014. (¶ 2).
Grandberry testified that General Order 1.3 contains a
guideline for the use of force that might cause great bodily
harm. (¶ 3 & Ex. 2 (Grandberry Dep.) at 52).Reilly
testified that the MPD has polices on when ...