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Love v. City of Chicago

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

November 7, 2017

ALLISAH LOVE, Plaintiff,
v.
CITY OF CHICAGO, NIYELL POWELL, APRIL FISHER, IRIS HOUSTON, AND GLENN DAVIS, Defendants.

          MEMORANDUM OPINION AND ORDER

          Honorable Edmond E. Chang United States District Judge

         Plaintiff Allisah Love tried to pick up a friend's car at the Chicago impound lot in November 2007. R. 329, Third Am. Compl. ¶¶ 68, 93, 95. That visit to the impound lot gave rise to this lawsuit against the City of Chicago and four Chicago police officers, Niyell Powell, April Fisher, Iris Houston, and Glenn Davis. At this stage of the litigation, the remaining claims are a false arrest and detention claim under the Fourth Amendment, 42 U.S.C. § 1983, as well as state-law claims for false arrest, false imprisonment, and malicious prosecution.[1] Love alleges that the Defendant officers violated her Fourth Amendment rights when they seized and arrested her without cause, based only on the complaint of an off-duty officer working at the impound lot, despite Love having contacted police herself. Third Am. Compl. ¶¶ 83, 89-93. Love argues that she is entitled to a default judgment for alleged discovery violations under Federal Rule of Civil Procedure 37(e). In the alternative, Love moves for summary judgment under Federal Rule of Civil Procedure 56. R. 478, Pl.'s Br. For the following reasons, both of the Love's motions are denied, and at the next status hearing, the Court will discuss trial scheduling with the parties.

         I. Background

         The original allegations amounted to 15 counts, more than 19 defendants, and events spanning over a decade. See Third Am. Compl. In a May 2015 opinion, the Court dismissed all of the claims and defendants except for the remaining five defendants and the claims arising out of Love's arrest at the United Road Towing impound lot. R. 384, 5/7/15 Opinion and Order at 37-38. In evaluating Love's summary judgment motion, the facts are viewed in the defense's favor, and the defense is entitled to reasonable inferences.

         In November 2007, Love went to a City of Chicago Auto Pound with Uylonda Henderson, Eddie Brantley, and Christopher Grooms to retrieve Henderson's car. Pl.'s Br. ¶ 78; id. Exh. SS, COC000018. When lot employees tried to drive Henderson's car out of its spot, the car would not start, presumably because the battery was dead. Third Am. Compl. ¶ 69. Brantley asked if he could either bring his car into the lot or push Henderson's car out of the lot so that he could jump-start her car with his own. Id. ¶ 72. The lot's employees told the group that neither was allowed, and that Henderson would need to pay a tow truck to move her car the 20-30 feet out of the lot. Id. ¶ 73.

         In an attempt to get help from a manager of the lot, Love went inside the trailer that housed the lot's personnel. Third Am. Compl. ¶¶ 75-76. There, Defendant Powell-an off-duty Chicago Police Department officer-was working as a security guard. R. 489, Defs.' Statement of Add. Facts (DSOF) ¶ 5. When Love asked for his name, Powell falsely identified himself as “Officer Muhammed.” Pl.'s Br. ¶ 112; id. Exh. N, Powell Dep. at 38:23-24, 39:1-3; AL00026, Track 2, 00:49:44-00:51:13. During the exchange, Powell asked Love to leave the trailer, after explaining that only car owners were allowed inside. See Pl.'s Br. ¶ 127; AL00026, Track 2, 00:49:44-00:51:13. According to Love, Powell did not ask Love to leave the impound lot itself-just the trailer-and Love contends that she promptly left. Pl.'s Br. ¶ 127. As detailed later in this Opinion, however, when viewed in Powell's favor, the video and audio of the interaction is not clear on this point, and Love stays in the trailer for at least 35 seconds after the request, debating her right to retrieve the car, and engaging in further discussion with Powell. AL00026, Track 2 00:50:35-51:19.

         After leaving the trailer, Love called 911 a couple of times. In one call, she requested police assistance at the impound lot, explaining that Powell, who had said he was a Chicago Police Officer, refused to get a manager for her and that lot personnel would not let them jump-start Henderson's car. See AL00207, Tracks 2-3. She also asked for the phone number for the Office of Professional Standards (OPS)[2]to report him. Id. In another call to 911, Love asked the dispatcher to send a police sergeant to the lot. Id. at Track 1. In this call, Love said that Powell called the police on her after she mentioned that she would be contacting OPS. Id. Indeed, Powell did also call 911, requested police assistance, and reported that Love was “being very belligerent and cursing me out.” Pl.'s Br. ¶107; AL00207, Track 4; DSOF ¶ 5. The dispatcher asked if Love had physically threatened Powell, and he said, “She said she'd call OPS on me.” AL00207, Track 4. When later again asked if he had been threatened, Powell replied, “Yes.” Id.

         Officers April Fisher and Iris Houston received a dispatch at 8:59 pm asking for police assistance at the Auto Pound. DSOF ¶ 6; R. 488, Defs.' Summ. J. Resp. Br. Exh. 6. Sometime after Love made the 911 call in which she asked for a sergeant, Chicago Police dispatched Sergeant Glenn Davis to the lot. DSOF ¶ 15. Sergeant Davis spoke with Officers Fisher and Houston when he arrived. Id. ¶ 17. At this point, according to the on-duty officers on scene, none of them-including Davis, Houston, or Fisher-knew from the dispatch or investigation that Love had also called 911 for police assistance, nor that Powell had given Love a fake name. Id. ¶¶ 21-22. Love claims that the officers never spoke to her about her complaints or to ask her what had happened. Pl.'s Br. ¶ 146, 150; Third Am. Compl. ¶¶ 91-92. Officers Houston and Fisher arrested Love, based on Powell's allegations and Sergeant Davis's approval, and charged her with a misdemeanor offense of criminal trespass to state supported land under 720 ILCS 5.0/21-5. Pl.'s Br. ¶ 79; DSOF ¶ 1, 19; DSOF Exh. 1. The officers used an emergency handcuffing technique, because they contend that Love resisted cuffing, DSOF ¶ 20, which Love disputes. Pl.'s Rep. Br. at 5.

         Love was released from custody the next day. DSOF ¶ 24. Soon after her arrest, Love (and others) filed a federal-court suit and successfully asked the emergency judge to order the City to preserve “911 intake calls, dispatch tapes and event entries” from the Office of Emergency Management & Communications and the Office of Professional Standards, as well as “security video/tapes from the City of Chicago Auto Pound” from November 20, 2007. Mot. for Misc. Relief, Grooms et al. v. Tencza et al., No. 1:07-cv-6176 (N.D. Ill. Nov. 21, 2007) ECF No. 30; Minute Entry on Mot. for Misc. Relief, Grooms et al. v. Tencza et al., No. 1:07-cv-6176 (N.D. Ill. Nov. 29, 2007) ECF No. 34. But that order was later vacated due to lack of notice to the defendants. Minute Entry on Mot. to Vacate, Grooms et al. v. Tencza et al., No. 1:07-cv-6176 (N.D. Ill.Dec. 20, 2007) ECF No. 38. The judge assigned to the 2007 case denied Love's later request to reinstate the preservation order, because the City had already stated that it would preserve all of the data within its possession.[3] R. 487, Defs.' Resp. to Mot. Default J., Exh. A. He referred the parties to a magistrate judge for all discovery matters. Later hearings before the magistrate judge dealt with the production and quality of the United Road Towing video; the City contends that Love did not make other specific preservation requests during these hearings. Id. Exhs. B, C, D. At an August 2008 hearing, the magistrate judge ordered the City's counsel to contact United Road Towing to “inquire about quality of audio and video tape previously produced and to determine whether audio and video exists for outside of the building.” Id. Exh. D. The City emailed Love later that day, informing her that it had spoken with United Road Towing, which agreed to provide the best copies available from both inside and outside the lot's trailer. Id. Exh. E.

         In January 2008, Love's criminal case was stricken with leave to reinstate. DSOF ¶¶ 26-27. After various procedural twists and turns, Love's civil case was reassigned to this district judge. The remaining sets of claims are (1) under 42 U.S.C. § 1983, a Fourth Amendment claim for false arrest and detention; and (2) state-law claims for false arrest, false imprisonment, and malicious prosecution. 5/7/15 Opinion and Order at 37-38. (Also, the City remains in the case for an indemnification claim.) Love moves for a default judgment or, in the alternative, summary judgment, on each of her claims.

         II. Standards of Review

         Love's first request is for a default judgment for alleged discovery violations. A default judgment might be an appropriate sanction when a party failed to take reasonable steps to preserve electronically stored information relevant to the litigation, and its later loss or destruction cannot be restored through additional discovery. See Fed. R. Civ. P. 37(e). If the loss of evidence prejudices the other party, then the court may “order measures not greater than necessary to cure the prejudice.” Fed.R.Civ.P. 37(e)(1). If the court finds that the party intentionally deprived the other party of the evidence, then the court may sanction the withholding side by issuing a negative presumption, dismissing the action (if the violation is committed by the plaintiff), or entering a default judgment. Fed.R.Civ.P. 37(e)(2). A default judgment is an appropriate sanction where (1) there is “a clear record of delay or contumacious conduct”; (2) where “other less drastic sanctions have proven unavailing”; or (3) where a party displays “willfulness, bad faith, or fault.” Domanus v. Lewicki, 742 F.3d 290, 301 (7th Cir. 2014) (quoting Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir. 2003), overruled on other grounds by Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 781 (7th Cir. 2016)).

         The other motion brought by Love is for summary judgment. In deciding Love's motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party (here, the defense). Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment must be granted “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). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating summary judgment motions, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). 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), and must consider only evidence that can “be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). The party seeking summary judgment has 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. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden is met, the adverse party must then “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.

         III. Discussion

         A. Motion for Default Judgment

         First addressing the motion for default judgment, the Federal Rules grant the district court substantial discretion over sanctions for discovery violations. Fed.R.Civ.P. 37(b)(2)(A); see e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 642 (7th Cir. 2011) (“[D]istrict courts have wide latitude in fashioning appropriate sanctions.”) (citation omitted). The entry of a default judgment is one of the most severe sanctions, and is generally appropriate only where a party has acted in bad faith, has willfully failed to comply with a discovery order, or has failed to comply with a discovery order due to the party's own fault. Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 640 (1976) (per curiam). Bad faith comprises conduct that is “either intentional or in reckless disregard of a party's obligations to comply with a court order.” Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992). Similarly, fault suggests “objectively unreasonable behavior” rather than a “mere mistake or slight error in judgment.” Long v. Steepro, 213 F.3d 983, 987 (7th Cir. 2000). In the Seventh Circuit, a district court must determine by a preponderance of the evidence that at least one of these blameworthy findings applies in order to impose the most severe sanctions. See e360 Insight, 658 F.3d at 642; Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 777 (7th Cir. 2016). A party's genuine and faultless inability to comply generally should not be sanctioned. See Ramirez, 845 F.3d at 776; Nat'l Hockey League, 427 U.S. at 640.

         Because Love is alleging that the City of Chicago failed to preserve pertinent ordered discovery, sanctions are evaluated under Rule 37. To award sanctions, this Court must determine that: “1) the ‘failing to produce' party had a duty to preserve or produce documents; 2) the ‘failing to produce' party breached that duty or obligation to preserve or produce documents; 3) the culpability for the breach rises to a level of willfulness, bad faith or fault; 4) the party seeking production suffered prejudice as a result of the breach; and 5) an appropriate sanction can ameliorate the prejudice from the breach.” Porche v. Oden, 2009 WL 500622, at *5 (N.D. Ill. Feb. 27, 2009). Specifically at issue is the City's alleged failure to preserve electronically stored information on Love's arrest, a responsibility that generally would have been triggered in 2007 when the arrest at the impound lot occurred. Thus, the version of Rule 37(e) in effect at that time controls. See Elustra v. Mineo, 595 F.3d 699, 703 (7th Cir. 2010) (“Since the amendments are not retroactive, we apply the Federal Rules as they existed at the time.”). The 2007 version of Rule 37(e) stated, “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” Fed.R.Civ.P. 37(e) (2006) (amended 2015).

         Love's motion alleges that the City committed four discovery violations.[4]Specifically, Love argues the City failed to (1) preserve and produce recordings of Love's calls to the OPS from November 20, 2007; (2) preserve and produce recordings of Love's calls to 311 (Chicago's non-emergency number) from November 20, 2007; (3) obtain a video-and-audio synchronized copy of the interior and exterior security footage from United ...


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