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Norris v. Foods

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

February 16, 2018

JOHN V. NORRIS, Plaintiff,
v.
CERTIFIED WAREHOUSE FOODS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT M. DOW, JR. UNITED STATES DISTRICT JUDGE.

         Plaintiff John V. Norris brings this pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging that the he was falsely detained and arrested for allegedly stealing four steaks from a grocery store. Plaintiff brings federal and state law claims against three Joliet Police Officers and the City of Joliet and state law claims against the grocery store manager and grocery store. Presently before the Court are (1) Defendants Otto Serrato, John Williams, Robert Hall, and the City of Joliet's (“Police Defendants”) motion [227] for summary judgment; (2) Defendants Dan Graham and Certified Warehouse Foods' (“Store Defendants”) motion [225] for summary judgment; (3) several miscellaneous motions [300; 301; 305; 306; 308; 309] filed by Plaintiff; and (4) motions to strike [322; 325] filed by the Police Defendants and the Store Defendants. For the reasons stated below, the Police Defendants' motion [227] for summary judgment is granted in part. The motion is granted as to Plaintiff's federal claims. In view of that disposition of the federal claims, Plaintiff's remaining state law claims against the Police Defendants, and Plaintiff's state law claims against the Store Defendants, are dismissed without prejudice. The Store Defendants' motion for summary judgment [225] is therefore denied as moot. Plaintiff's motions “to accept pro se response” [300], [306] and [308] are granted to the extent that the Court has considered Plaintiff's responses to the pending motions for summary judgment. Plaintiff's motions “to entirely deny Defendant's motion for summary judgment” [301], [305], [309] are deemed responses to Defendants' motions for summary judgment and are termed as pending motions. Defendants' motions to strike [322], [325] Plaintiff's sur-responses to their replies in support of summary judgment are granted. The Court will enter a final judgment and close the case.

         I. Northern District of Illinois Local Rule 56.1

         As an initial matter, the Court will address the parties' compliance with Northern District of Illinois Local Rule 56.1. Local Rule 56.1 sets out a procedure for presenting facts pertinent to a party's request for summary judgment pursuant to Federal Rule of Civil Procedure (“Rule”) 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 Chi., 754 F.3d 416, 420 (7th Cir. 2014) (quoting N.D.Ill. Local R. 56.1(a)(3)). 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.” N.D.Ill. Local 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.” N.D.Ill. Local 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.” N.D.Ill. Local 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.” N.D.Ill. Local 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.” N.D.Ill. Local R. 56.1(a).

         Both the Police Defendants and the Store Defendants included statements of undisputed facts with their summary judgment motions as required by Local Rule 56.1. [225; 229.] Originally, Defendants failed to serve Plaintiff a Notice to Pro Se Litigant Opposing Motion for Summary Judgment as required by Northern District of Illinois Local Rule 56.2, which explains in layperson's terms the proper procedures for opposing summary judgment motions. Accordingly, the Court allowed Plaintiff an opportunity to amend his responses to the Defendants' motions for summary judgment after Defendants served him with the proper notice. [289; 290.] Subsequently, Plaintiff filed an “Amended Statement of Facts in Support of His Motion to Completely Deny Defendant's Motion for Summary Judgment.” [See 303.] This amended response addressed only the Police Defendants' proposed statements of fact. [Id.] Plaintiff did not submit an amended response to the Store Defendants' proposed statement of facts.[1] Plaintiff also did not submit a separate statement of additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.

         As to the Police Defendants' proposed statements of fact, only paragraphs 24-25, 27-29, 31, 36, 40, and 42-46 were material to Plaintiff's federal claims. Of these proposed statements of fact, Plaintiff indicates that he disputes paragraphs 25, 27, 36, and 42-46. However, Plaintiff only supports his disagreements with specific references to the record as to paragraph 25. All other “disputed” statements of fact without proper references to support the denial are deemed admitted. For example, Police Defendants' proposed statement of fact paragraph 27 states, “Defendant Graham [the store manager] also showed Defendant [Police Officer] Serrato the packages of steak that he witnessed the Plaintiff attempt to steal.” [229, ¶ 27.] Plaintiff improperly responds “Plaintiff disputes this false statement. What meat? Where's the beef?” [303, ¶ 27.] These statements (paragraphs 27, 36, and 42-46) that Plaintiff disputes, but fails to cite supporting materials in support of that dispute, are deemed admitted. See Frey Corp. v. City of Peoria, Ill., 735 F.3d 505, 513 (7th Cir. 2013). Plaintiff does not specifically dispute paragraphs 28, 29, and 31 but does include statements indicating disagreement with the proposed statement of fact. In the absence of materials supporting his disagreement, these facts are also deemed admitted.

         As to the paragraph 25, Plaintiff's cited materials and additional statements do not support the denial of the proposed statement. Paragraph 25 of the Police Defendants' proposed statements of fact states what Graham, the store manager, told Police Officer Serrato after he arrived at the grocery store in response to Graham's call to the police. [229, ¶ 25.] Plaintiff disputes the proposed statement of fact, arguing that Graham's testimony at trial did not prove he stole the steaks, and that that were no stolen steaks because the steaks never existed (as demonstrated by the fact that they were not produced in discovery or at his criminal trial, and no photographs of these steaks were taken). [303, ¶ 25.] None of Plaintiff's supporting arguments cite material demonstrating that the proposed statement is subject to any real dispute.[2] Therefore, paragraph 25 of the Police Defendants' proposed statements of fact is also deemed admitted.

         Notwithstanding the issues with Plaintiff's compliance with Local Rule 56.1, the Court, consistent with the standards governing summary judgment and Plaintiff's pro se status, has liberally construed Plaintiff's 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.

         II. Background

         On November 5, 2013, Defendant Serrato, a Joliet police officer, was called to the Certified Warehouse Foods grocery store (the “Store”) in Joliet, Illinois. [229, (Police Defs. Stmt. of Facts), ¶ 24.] Upon his arrival at the Store, Defendant Graham, the Store manager, told Serrato that he had witnessed Plaintiff place four packages of steaks inside his jacket and attempt to leave the Store without paying for them. [Id., ¶ 25.] Graham told Serrato that he stopped Plaintiff before he exited the Store and asked Plaintiff to come to his office. [Id.] Graham also stated that after Plaintiff came into the office, Plaintiff removed the four steak packages from inside his jacket at Graham's request. [Id.] Graham also showed Serrato the four packages of steak that he had allegedly witnessed Plaintiff place in his jacket. [Id., ¶ 27.] Graham then took the four packages to an open register and had the cashier generate a receipt showing their total value. [Id., ¶ 28.] Serrato witnessed Graham receive the receipt for the packages of meat and he was given the receipt by Graham. [Id., ¶ 29.] Plaintiff disputes that he stole the four packages of steaks and that Graham took any steaks from his person. [303, (Pl's. Stmt. of Facts), ¶¶ 25, 27- 29.] According to Plaintiff, these steaks do not exist and he did not attempt to steal any such steaks from the Store. [Id.]

         After listening to Graham's account of the incident, Serrato telephoned the Joliet Police Department and learned that there was an outstanding failure to appear warrant for Plaintiff's arrest and that Plaintiff's history of retail theft convictions qualified him for felony charges. [229, (Police Defs. Stmt. of Facts), ¶ 31.] Serrato then arrested Plaintiff (1) on account of this outstanding warrant; and (2) for retail theft based on Graham's eyewitness account of the shoplifting incident. [Id., ¶ 36.]

         Defendant Williams, also a Joliet police officer, was not present at the time of Plaintiff's arrest; rather, Williams was dispatched to the Store to transport Plaintiff to the Joliet Police Department after his arrest, while Serrato stayed at the Store to finish his investigation. [Id., ¶ 38.] Defendant Hall was one of the supervising officers on duty at the Joliet Police Department at the time of Plaintiff's arrest. [Id., ¶ 40.] Hall signed off on Serrato's police report regarding Plaintiff's arrest; Hall approved this report as to completeness, not as to accuracy. [Id., ¶¶ 41-42.] In signing off Serrato's police report, Hall did not make any independent determination regarding the existence of probable cause to arrest Plaintiff and he was not required to investigate the facts or make a probable cause determination. [Id. ¶¶ 42-43.]

         Plaintiff was tried in state court for retail theft based on this incident. He was found not guilty of the charge after a jury trial. [181, (Am. Compl.), at 17.]

         On March 7, 2014, Plaintiff initiated the instant action. [See 1.] Plaintiff amended his complaint several times, and filed the operative amended complaint on October 21, 2016. [See 181.] In his amended complaint, Plaintiff brings claims pursuant to 42 U.S.C. § 1983 for false imprisonment (against all Police Defendants); false arrest (against all Police Defendants); “malicious prosecution #1” (against all Police Defendants); “malicious prosecution #2 (fabricated evidence)” (against all Police Defendants); and failure to intervene (against Defendants Williams, Hall, and the City of Joliet).[3] Plaintiff also brought a retaliation claim against the Police Defendants, which he voluntarily dismissed in January 2018. [See 319.] Plaintiff further brings state law claims against the Store Defendants for false imprisonment; false arrest; “malicious prosecution #1”; and “malicious prosecution #2 ...


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