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Duff v. Grandberry

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

June 5, 2017

DEON DUFF, Plaintiff,


          MARY M. ROWLAND, United States Magistrate Judge

         Deon 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.


         A. Legal Standard

         Summary 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).

         “The 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).

         B. 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 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)).

         C. Evidentiary Objections

         The 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 statements admitted.


         On 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).

         The 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 ¶ 1).[1] 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).

         Both 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 ...

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