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Moore v. Cuomo

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

August 1, 2017

Byron K. Moore K-65649, Plaintiff,
v.
Police Officer Cuomo, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Ronald A. Guzmàn United States District Judge

         For the reasons stated below, Defendants' motion for summary judgment [67] 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 [70] 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.

         STATEMENT

         Plaintiff 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 “Defendants”).

         Currently 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.

         I. SUMMARY JUDGMENT STANDARD OF REVIEW

         A. Federal Rule of Civil Procedure 56

         Summary 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.

         The 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).

         B. Northern District of Illinois Local Rule 56.1

         When 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).

         The 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 (1993).

         In this 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)).

         Nevertheless, 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 ...


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