United States District Court, N.D. Illinois, Eastern Division
Byron K. Moore K-65649, Plaintiff,
Police Officer Cuomo, et al., Defendants.
MEMORANDUM OPINION AND ORDER
A. Guzmàn United States District Judge
reasons stated below, Defendants' motion for summary
judgment  is granted in part and denied in part. To the
extent Plaintiff alleges an excessive force claim against
Insley, the Court grants Defendants' summary judgment
motion as to that claim. Construing Plaintiff's complaint
liberally to allege a failure to intervene claim against
Officer Insley, the motion for summary judgment as to that
claim is also granted. The remainder of Defendants'
motion is denied. Status hearing is set for August 16, 2017
at 10:00 a.m. in order to set a trial date. Defendants'
motion to provide Plaintiff with a Local Rule 56.2 Notice to
Pro Se Litigants  is not a motion, but simply a notice to
Plaintiff, and the Clerk is directed to terminate this
pleading as a pending motion. Defendants are ordered to set
up a telephonic hearing with the appropriate prison staff at
the facility housing the Plaintiff for the status hearing.
Byron Moore, an inmate currently confined at the Illinois
River Correctional Center, initiated this 42 U.S.C. §
1983 action in November of 2014 against the Chicago Police
Department. He alleges that police officers used excessive
force when arresting him on November 30, 2012. More
specifically, the officers purportedly tased him twice while
he was laying on the ground unarmed. Pursuant to this
Court's directives, Plaintiff submitted an amended
complaint naming as a defendant Chicago Police Superintendent
Garry McCarthy in order to allow Plaintiff to conduct
discovery regarding the identities of the specific officers
involved. Plaintiff subsequently submitted a second amended
complaint in June of 2015, naming SWAT Officers Andrew Cuomo,
Gregory Insley, and Wagner Manzo (hereinafter
before the Court is Defendants' motion for summary
judgment to which Plaintiff has responded. For the reasons
stated below, Defendants' motion is granted in part and
denied in part.
SUMMARY JUDGMENT STANDARD OF REVIEW
Federal Rule of Civil Procedure 56
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.”
Fed.R.Civ.P. 56(a); Jajeh v. Cnty. of Cook, 678 F.3d
560, 566 (7th Cir. 2012). When addressing a motion for
summary judgment, this Court construes the facts and makes
all reasonable inferences in favor of the non-movant.
Jajeh, 678 F.3d at 566. The Court's role is
“to determine whether there is a genuine issue for
trial.” Tolan v. Cotton, 134 S.Ct. 1861, 1866
(2014). “The Court may not weigh conflicting evidence .
. . or make credibility determinations.” Omnicare,
Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th
Cir. 2011); see also Tolan, 134 S.Ct. at 1866.
parties seeking summary judgment have the initial burden of
showing that there is no genuine dispute and that they are
entitled to judgment as a matter of law. Carmichael v.
Vill. of Palatine, 605 F.3d 451, 460 (7th Cir.
2010). If the parties moving for summary judgment demonstrate
the absence of a disputed issue of material fact, “the
burden shifts to the non-moving party to provide evidence of
specific facts creating a genuine dispute.” Carroll
v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The
non-movant must go beyond his initial pleadings and
“set forth specific facts showing that there is a
genuine issue for trial.” Hannemann v. S. Door
Cnty. Sch. Dist., 673 F.3d 746, 751 (7th Cir. 2012). A
genuine issue of material fact exists only if there is
evidence “to permit a jury to return a verdict
for” the nonmoving party. Egonmwan v. Cook Cnty.
Sheriff's Dept., 602 F.3d 845, 849 (7th Cir. 2010);
see also Scott v. Harris, 550 U.S. 372, 380 (2007)
(“'When the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show
that there is some metaphysical doubt as to the material
facts . . . . Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for
trial.'”) (citation omitted).
Northern District of Illinois Local Rule 56.1
addressing a motion for summary judgment, the Court draws the
background facts from the parties' N.D.Ill. Local Rule
(“LR”) 56.1 statements and responses, which
assist the Court by “organizing the evidence,
identifying undisputed facts, and demonstrating precisely how
each side propose[s] to prove a disputed fact with admissible
evidence.” Bordelon v. Chi. Sch. Reform Bd. of
Trs., 233 F.3d 524, 527 (7th Cir. 2000). Under LR
56.1(a)(3), the moving party must provide “a statement
of material facts as to which the moving party contends there
is no genuine issue.” Ammons v. Aramark Uniform
Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004). The
statement must “consist of short numbered paragraphs,
including within each paragraph specific references to the
affidavits, parts of the record, and other supporting
materials relied upon to support the facts set forth in that
paragraph.” LR 56.1(a).
non-moving party must admit or deny each factual statement
offered by the moving party and refer to any material facts
that establish a genuine dispute for trial. Schrott v.
Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir.
2005). The non-moving party may submit his own statements of
facts, to which the moving party must similarly reply.
See LR 56.1(b)(3)(C) & (a)(3). This Court may
consider true a moving party's Rule 56.1 factual
statements that are supported by the record and not properly
addressed by the opposing party. See LR
56.1(b)(3)(C) (“All material facts set forth in the
statement required of the moving party will be deemed to be
admitted unless controverted by the statement of the opposing
party.”). The same rule applies to facts submitted by a
non-moving party that are not contested or responded to by
the moving party. See LR 56.1(a)(3)(C); see also
Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir.
2006). Although the Court liberally construes pleadings from
pro se litigants, a party's pro se status does not excuse
him from complying with these rules. Greer v. Bd. of Edu.
of City of Chi., 267 F.3d 723, 727 (7th Cir. 2001);
see also McNeil v. United States, 508 U.S. 106, 113
case, Defendants submitted a statement of material facts in
accordance with LR 56.1. (Dkt. 69.) They also filed and sent
to Plaintiff a Notice to Pro Se Litigant pursuant to LR 56.2,
explaining the Court's local rules and how to respond to
the motion for summary judgment and Rule 56.1 statement.
(Dkt. 70.) Plaintiff has responded to Defendants' Rule
56.1 statement of facts, but includes no citations to the
record in support of his objections. (See Dkt. 80.)
The Court may thus consider Defendants' Rule 56.1 factual
assertions true to the extent they are supported by the
record. LR 56.1(b)(3)(C); Townsend v. Alexian Bros. Med.
Ctr., 589 Fed.Appx. 338, 339 (7th Cir. 2015)
(unpublished) (a district court may strictly enforce its
local rules and consider Rule 56.1 factual statements true
when they are not properly responded to) (citing Cady v.
Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006);
Patterson v. Ind. Newspapers, Inc., 589 F.3d 357,
360 (7th Cir. 2009)).
because Plaintiff is proceeding pro se, the Court will
consider the factual assertions in his summary judgment
materials about which he would be able to competently testify
at a trial. See Fed. R. Evid. 602; Williams v.
Saffold, No. 15 C 3465, 2016 WL 1660527, at *1 (N.D.
Ill. Apr. 27, 2016); Hill v. Officer Phillips, No.
12 C 9404, 2014 WL 626966 at *1 (N.D. Ill. Feb. 18, 2014).
The Court further notes that most of the facts are not in
dispute and that Defendants ...