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Ayoubi v. Smith

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

November 1, 2017

FIRAS M. AYOUBI (2012-1207168), Plaintiff,
MARK SMITH, et al., Defendants.



         Plaintiff Firas M. Ayoubi, a pretrial detainee, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging that he was unreasonably seized by police on two occasions, his right to equal protection was violated through racially profiling, and an officer used excessive force during one seizure. Presently before the Court is Defendants' motion for summary judgment. For the reasons stated herein, Defendants' motion for summary judgment is denied.


         Local Rule 56.1 sets out a procedure for presenting facts pertinent to a party's request for summary judgment pursuant to Fed.R.Civ.P. 56. Specifically, Local Rule 56.1(a)(3) requires the moving party to submit "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter of law." Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014). Each paragraph of the movant's statement of facts must include "specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." L.R. 56.1(a). The opposing party must file a response to each numbered paragraph in the moving party's statement, "including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(B). "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." L.R. 56.1 (b)(3)(C). The nonmoving party may also present a separate statement of additional facts "consisting of short numbered paragraphs, 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." L.R. 56, 1 (b)(3)(C). "[I]f additional material facts are submitted by the opposing party .. ., the moving party may submit a concise reply in the form prescribed in that section for a response." L.R. 56.1(a).

         Because Plaintiff is proceeding pro se, Defendants served him with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by Northern District of Illinois Local Rule 56.2. (Dkt. 129.) The notice explained how to respond to Defendants' summary judgment motion and Rule 56.1 Statement and cautioned Plaintiff that the Court would deem Defendants' factual contentions admitted if he failed to follow the procedures delineated in Local Rule 56.1. (Id. at 2-3.)

         In response to Defendants' submissions, Plaintiff filed a "statement of disputed facts" responding to Defendants' proposed statements of undisputed facts (Dkt. 142 at 1-15), a "response in opposition to Defendants' motion for summary judgment" (Dkt. 142 at 16-51), and several exhibits (Dkt 142 at 52-175). In response to Defendants' proposed statements of undisputed facts, Plaintiff failed to cite to material in support of the facts he disputed. Those statements are deemed admitted. Frey Corp. v. City of Peoria, III., 735 F.3d 505, 513 (7th Cir. 2013). However, the Court will not accept Defendants' version of the facts, to the extent that they are unsupported by the cited evidence or to the extent that Plaintiff has identified contrary evidence in the record or fact disputes to which he could properly testify.

         Notwithstanding the issues with Plaintiffs compliance with Local Rule 56.1, the Court, consistent with the standards governing summary judgment and Plaintiffs pro se status, has liberally construed Plaintiffs submissions. The Court construes the resulting record in the light most favorable to Plaintiff. Sistrunk v. Khan, 931 F.Supp.2d 849, 854 (N.D. Ill. 2013); Fed.R.Evid. 602. With these standards in mind, the Court turns to the relevant facts.


         Defendant Mark Smith was employed as a Cook County Sheriffs Police Officer working patrol in the Skokie district during times relevant to Plaintiffs allegations. (Dkt. 127, Defs. Stmt. ¶2.) On August 29, 2012, between approximately 3:00 p.m. and4;00p.m., Smith initiated a traffic stop of Plaintiffs vehicle. (Id. ¶ 3.) Prior to being pulled over, Plaintiff was driving on a residential street in unincorporated Cook County near an apartment complex in Crestwood. (Id. ¶ 4.) Plaintiff does not know the name of the street. (Id.) Smith made a "sharp U-turn, " and after pulling over Plaintiffs vehicle, approached the vehicle and instructed Plaintiff to put down his window. (Id. ¶ 5.) Plaintiff asked Smith why he was pulled over. (Id. ¶ 6.) Plaintiff testified that Smith then told him to "shut the fuck up, " and asked Plaintiff and the two passengers in the vehicle how they knew each other, if they were going to buy drugs, and if they were in possession of any drugs. (Id.) Plaintiff told Smith how the passengers knew each other and what they were doing and then handed Smith his driver's license and an insurance card. (Id. ¶ 7.) Smith returned to his vehicle for approximately five minutes. (Id.) Plaintiff testified that Smith returned to Plaintiffs vehicle and stated "I know you have something - a Spanish and a black motherfucker in a car and you expect me to believe you don't have anything." (Id. % 8.) Smith also told Plaintiff that he "was going to bring the dogs." (Id. ¶ 9.) Smith issued Plaintiff a traffic ticket for disregarding a stop sign and a traffic ticket for failing to have proof of valid insurance. (Id. ¶ 10.) Plaintiff admits he did not have proof of current insurance at the time of the traffic stop. (Id. ¶ 11.)

         Smith never asked Plaintiff to exit his vehicle, never searched the vehicle, and never made any physical contact with Plaintiff or the passengers in the vehicle. (Id. ¶ 12.) Plaintiff describes Smith's tone of voice during the stop as a little bit higher than normal tone, and not screaming. (Id.¶ 14.)

         Smith has no memory of the traffic stop because it was a long time ago and he has performed thousands of routine traffic stops like this one. (Id. ¶ 18.) Smith avers that he never initiated a traffic stop of any person because of that person's race. (Id. ¶ 19.) In Smith's opinion, a person's race does not make it more likely than not that they will be in possession of illegal substances and race has nothing to do with whether that person will be arrested. (Id.)

         Plaintiff testified that sometime after the August 29, 2012 traffic stop, he encountered Smith and another unknown officer in the parking lot of a residential apartment complex in Crestwood. (Id. ¶ 21.) Plaintiff approximates the time as around 3:00 a.m. and estimates that it took place a month or two after the first encounter. (Id. ¶ 23.) At the time of this encounter, Plaintiff was driving through the parking lot of the apartment complex looking for a parking space to park a large black Mercedes Sprinter van he was driving. (Id. ¶ 25.) Two Cook County Sheriff police officers, Smith and unknown John Doe, put on their red and blue lights and stopped him, (Id. ¶ 26.) Smith came to Plaintiff s door and told Plaintiff to unlock the doors. (Id. ¶ 30.) After Plaintiff unlocked the doors, Smith removed Plaintiff from the vehicle. (Id. ¶ 31.) Plaintiff testified that Smith slammed him into the side of the vehicle, squeezed his neck, and struck him in the right rib. (Plaint.'s Dep. 92:7-93:4.) Smith searched Plaintiff while the other unknown officer searched the vehicle. . (Id. ¶¶ 31, 34.) After searching Plaintiff, Smith searched the vehicle while the other officer watched. (Id. ¶ 34.) Plaintiff testified that Smith told him to "get some new friends" during the encounter. (Id. ¶ 38.) The unknown officer never physically touched Plaintiff or spoke to him. (Id. ¶ 33.) Plaintiff was not placed in handcuffs and went home after the encounter. (Id. ¶ 36.)

         Smith denies the Crestwood apartment encounter ever occurred. (Id. ¶ 41.) During the period of August 1, 2012 to December 31, 2012, Smith only worked the 2:00 p.m. to 12:00 a.m. shift as a Cook County Sheriffs Police Officer in the Skokie Unit on patrol. (Id. ¶ 42.) Smith did not work any overtime shifts during the period of August 1, 2012 to December 31, 2012. (Id. ¶ 43.) Smith has never driven his police vehicle outside of his assigned hours of duty as a Cook County Sheriffs Police Officer, (Id. ¶ 44.) Smith never researched Plaintiffs criminal history and is unaware of Plaintiff s criminal history. (Id. ¶ 44.)

         SUMMARY ...

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