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Carmona v. City of Chicago

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

September 3, 2019

GREGORIO CARMONA, Plaintiff,
v.
CITY OF CHICAGO, TRACY FANNING, DANIEL JACOBS, CESAR GUZMAN, JOSE GARCIA, FRED SCHALL, RONALD JONES, JOHN ORTON, NEIL FRANCIS, KEVIN REPPEN, PETER ZYGOWICZ, and EDWIN DANTES, Defendants.

          MEMORANDUM OPINION AND ORDER

          Gary Feinerman, United States District Judge.

         Gregorio Carmona brought this suit against the City of Chicago and several Chicago police officers, alleging that they violated his Fourth, Fifth, Sixth, and Fourteenth Amendment rights and committed state law torts in interrogating, investigating, arresting, and prosecuting him in connection with a fire that caused his girlfriend's death. The court dismissed the Monell claim against the City with prejudice under Civil Rule 12(b)(6), Doc. 97 (St. Eve, J.) (reported at 2018 WL 1468995 (N.D. Ill. Mar. 26, 2018)), and Carmona voluntarily dismissed his claims against two of the officers, Doc. 135. Trial on the remaining claims is set for November 2019. Doc. 145. Defendants move for partial summary judgment. Doc. 137. The motion is granted in part and denied in part.

         Background

         The following facts are set forth as favorably to Carmona, the nonmovant, as the record and Local Rule 56.1 permit. See Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018). On summary judgment, the court must assume the truth of those facts, but does not vouch for them. See Gates v. Bd. of Educ. of Chi., 916 F.3d 631, 633 (7th Cir. 2019).

         Before setting forth the facts, the court addresses some preliminary evidentiary and Local Rule 56.1 issues. First, Carmona objects to several factual assertions in Defendants' Local Rule 56.1(a)(3) statement as “compound, ” “vague, ” or “confusing, ” but he does not support his objections with pertinent authority or developed argument. Doc. 155 at ¶¶ 1, 3-4, 8, 10, 12, 14, 16-18, 25, 30-31, 41, 47, 51, 54-56, 61, 65. Those objections accordingly are forfeited. See M.G. Skinner & Assocs. Ins. Agency, Inc. v. Norman Spencer Agency, Inc., 845 F.3d 313, 321 (7th Cir. 2017) (“Perfunctory and undeveloped arguments are waived, as are arguments unsupported by legal authority.”). The objections fail on the merits in any event, as “compound” is an objection to form and thus provides no basis for disregarding a factual assertion on summary judgment, see Wheatley v. Factory Card & Party Outlet, 826 F.3d 412, 420 (7th Cir. 2016) (holding that “[t]he evidence [presented at summary judgment] need not be admissible in form” as long as it could be presented in admissible form at trial); see also Fed. R. Civ. P. 56(c)(2) (same); Aguilar v. Gaston-Camara, 861 F.3d 626, 631 (7th Cir. 2017) (same), and the challenged assertions are properly composed under Local Rule 56.1(a)(3).

         Second, Defendants' hearsay and foundation objections to Carmona's use of unauthenticated police reports, Doc. 159 at ¶¶ 87, 101, 105, are sustained, as Carmona submits no evidence that the reports are what they purport to be, see Fed. R. Evid. 901, or that the requirements of the hearsay exception for business records are satisfied, see Fed. R. Evid. 803(6). See Castro v. DeVry Univ., Inc., 786 F.3d 559, 578 (7th Cir. 2015) (holding that the district court on summary judgment properly disregarded a document unaccompanied by an affidavit establishing that it met the business records exception, and rejecting the plaintiff's argument that the defendant admitted the document's authenticity by producing it in discovery); Estate of Brown v. Thomas, 771 F.3d 1001, 1005-06 (7th Cir. 2014) (holding that the district court properly disregarded an unauthenticated report at summary judgment); Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000) (holding that, as a general rule, an unauthenticated police report is not properly considered on summary judgment). Accordingly, Carmona's assertions are disregarded insofar as they rely exclusively on unauthenticated police reports.

         Finally, the court disregards Defendants' reply to Carmona's Local Rule 56.1(b)(3)(B) response, Doc. 159 at ¶¶ 1-79, as the local rules do not provide for a reply and Defendants did not move for leave to file one. See Hall v. Vill. of Flossmoor Police Dep't, 2012 WL 6021659, at *8 n.8 (N.D. Ill.Dec. 4, 2012) (“[Local Rule 56.1] permits movants to reply only to a Local Rule 56.1(b)(3)(C) statement, not a Local Rule 56.1(b)(3)(B) response.”); Johnson v. Cnty. of Cook, 2012 WL 2905485, at *13 (N.D. Ill. July 26, 2012) (same).

         On January 16, 2013, the basement apartment where Carmona lived with his girlfriend, Claudia Martinez-Rayo, and their daughter, Erica Carmona, caught fire with all three inside. Doc. 155 at ¶¶ 7-8. The police and fire departments responded, and all three were taken to Swedish Covenant Hospital, where Martinez-Rayo died. Id. at ¶¶ 9, 11-12. (Carmona's assertion that he was carrying only Erica when he left the apartment, Doc. 159 at ¶ 104, is disregarded because he supports the assertion by citing an entire deposition transcript rather than the pertinent page(s). See Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004) (holding that Local Rule 56.1 requires parties to support their factual assertions with “a specific reference to the affidavit or other part of the record that supports such a denial, ” and that “ [c]itations to an entire transcript of a deposition or to a lengthy exhibit are not specific and are … inappropriate”).) Police opened two parallel investigations, one for aggravated arson and the other for aggravated battery. Doc. 155 at ¶ 16. (Carmona's objection to Defendants' assertion that police opened arson and battery investigations on the ground that it is a legal conclusion, ibid., is overruled because how law enforcement classified the investigations is a fact.) Detective John Orton would later review the aggravated arson and aggravated battery classifications, ensure that the facts in the police reports justified the classifications, and complete data entry related to the case. Id. at ¶¶ 61-64. Among the officers who responded to the scene were Officer Ronald Jones, Lieutenant Kevin Reppen, Detective Edwin Dantes, Officer Peter Zygowicz, and Officer Kimberly Zalinski. Id. at ¶¶ 41-79.

         Jones spoke with several witnesses at the scene, including Carmona. Id. at ¶ 43. Jones prepared two police reports that categorized the fire as an aggravated arson and listed Carmona as a victim. Id. at ¶¶ 45-46. Jones had no further involvement in the investigation or further interaction with Carmona. Id. at ¶¶ 47-48. (Carmona's objection to Defendants' assertion that Jones had no further involvement in the investigation on the ground that it is a legal conclusion, ibid., is overruled because the assertion is factual.)

         Reppen, then a sergeant with nineteen detectives (including Tracy Fanning) under his supervision, assigned a team to investigate the fire and joined them at the scene. Id. at ¶¶ 55-57; Doc. 159 at ¶ 94. Reppen spoke with detectives and fire department personnel, told two officers to canvas nearby gas stations, supervised the officers under his command, and authored part of a major incident report. Doc. 155 at ¶ 59; Doc. 159 at ¶¶ 96, 99. At the end of his shift, Reppen relayed the status of the investigation to the next shift supervisor. Doc. 155 at ¶ 58. Reppen had no further involvement in the investigation or further interaction with Carmona. Id. at ¶ 60.

         Dantes canvassed gas stations and local businesses to ask whether anyone had recently pumped gas into a gas container and interviewed neighbors about whether they saw anything suspicious or knew the burned building's occupants. Id. at ¶¶ 70-71. Dantes showed Carmona's picture at some gas stations and other businesses, but no business owner recalled Carmona purchasing a gas can. Doc. 159 at ¶ 103. (Defendants' objection that the cited material does not support Carmona's assertion that no business owner reported seeing him purchasing a gas can, ibid., is overruled, as the assertion can reasonably be inferred from Dantes's deposition testimony.) Dantes also spoke with a nurse at Swedish Covenant Hospital to check on Carmona's condition. Id. at ¶ 114.

         When Zygowicz first arrived at the scene, he was assigned to guard the perimeter. Doc. 155 at ¶ 50. He was then asked to follow an ambulance to Swedish Covenant Hospital with his partner Zalinski so that Zalinski could translate for Carmona. Id. at ¶¶ 50-51. Zygowicz was stationed outside the door of Carmona's hospital room and did not enter. Id. at ¶ 52. Carmona knew that an officer was seated outside because he could see the legs of a chair and an officer's shoes. Doc. 159 at ¶ 93. Carmona's brother Raymundo testified that officers outside the hospital room told him that he could not see Carmona. Doc. 159 at ¶ 91. (Carmona's assertion that Elena Perez also testified that officers prevented visitors from entering his room is disregarded, Doc. 159 at ¶ 92, because the cited material does not establish that she had personal knowledge of that fact, Doc. 156-13 at 14-15. See Fed. R. Evid. 602.)

         While Zygowicz waited outside, five officers-Fanning, Detective Fred Schall, Neil Francis, Sergeant Jose Garcia, and Sergeant Cesar Guzman-questioned Carmona in his hospital room about the fire. Doc. 155 at ¶¶ 13-14. At that time, Carmona was considered a victim, not a suspect. Id. at ¶¶ 15-16, 46; Doc. 159 at ¶¶ 107-08. Erica was in the hospital room for part of the questioning, but she left the hospital with Raymundo before the questioning concluded. Doc. 155 at ¶¶ 18-19. During the questioning, one officer said he would put Carmona in jail forever. Doc. 159 at ¶ 108. Garcia was rude to Carmona and got so close to him that he thought Garcia would hit him. Ibid. Garcia said that if Carmona confessed, the officers would help him get a lower sentence, and Garcia suggested that Carmona might be a drug trafficker because he had a nice car. Ibid. Carmona also heard the officers saying to one another in English that he had set the fire. Ibid.

         At one point while Carmona was in the hospital, an unnamed firefighter repeatedly accused him of setting the fire and asked why he did it. Id. at ¶ 107. (Defendants' denial of Carmona's testimony about the firefighter's accusations is disregarded, ibid., as police officers' statements that they considered Carmona a victim at that time do not contradict Carmona's assertion about what a firefighter said to him.) At another point, an unknown officer-not any of the Defendants-handcuffed Carmona to his hospital bed. Doc. 155 at ¶¶ 21-22. The parties' Local Rule 56.1 statements and responses do not reflect whether the events recounted in this paragraph happened before, after, or during the hospital room interrogation, and there is no record evidence indicating that any of the Defendants participated in or witnessed them.

         The investigation continued while Carmona was in the hospital. Id. at ¶ 25. Investigators found traces of an accelerant and a gas can at the scene, determined that Martinez-Rayo and the bed in which she was lying had been doused with the accelerant, and identified what they believed to be “pour patterns.” Id. at ¶¶ 10, 30. At the hospital, Carmona signed a form consenting to collection of evidence from his person, and Schall took swabs from his hands and clothing. Id. at ¶¶ 14, 22. (Although Carmona has not stated under oath that he did not understand the consent form, he argues that a reasonable jury could infer as much from his limited literacy and English language skills and Zalinski's poor Span ish translation. Id. at ¶ 14. According to Carmona, Zalinski's translation was deficient in that she did not understand a few Spanish words that most Spanish speakers would know, she refused to translate some of the things that the officers said when they were “talking in code” among themselves, and Carmona could tell even from his limited English that her translation did not capture everything the officers said. Doc. 156-1 at 44-45. A reasonable jury could not infer from that testimony that Zalinski's Spanish was so deficient that she did not adequately convey to Carmona the contents of the consent form.) Investigators smelled gas on the clothing recovered from Carmona, but they did not find gas on the hand swab. Doc. 155 at ¶ 30. (Carmona raises several objections to the factual assertions in this paragraph. His objection that Defendants failed to lay a foundation concerning precisely when the physical evidence was found is sustained. Id. at ¶ 10; see Aviles v. Cornell Forge Co., 183 F.3d 598, 603 (7th Cir. 1999) (holding that the plaintiff did not show at summary judgment that a supervisor's threat was related to his termination where he adduced no evidence concerning the time the alleged threat was made). It is clear that investigators had collected the evidence at least by January 19, when Dantes used it to obtain a search warrant, Doc. 155 at ¶¶ 67, 73, but Defendants do not support the proposition that the evidence was discovered much before then. Carmona's other objections are overruled. Id. at ¶¶ 10, 14, 30. Defendants' assertions are relevant to whether they behaved unconstitutionally or tortiously given the information they had at the time, and the assertions do not mischaracterize the record. The court does not understand Carmona's objection that the assertions are “argumentative” or “speculati[ve], ” and as Carmona provides no developed argument or authority to support that objection, it is forfeited. See M.G. Skinner, 845 F.3d at 321. And Carmona's denial of Defendants' assertions about the findings from their investigation is disregarded, as he cites only a portion of the transcript from a hearing where the state trial judge described weaknesses in the state's case against him, Doc. 155 at ¶ 30, and none of the judge's observations contradict Defendants' description of the evidence the detectives recovered from the scene.)

         On January 18, Erica told investigators that she saw Carmona pour or shake gas out of a gas can around the time of the fire. Id. at ¶ 29. (Carmona's objections to Defendants' description of Erica's statement are overruled. The description does not mischaracterize Erica's statement as it was recounted in the deposition testimony cited by Defendants. Nor is Erica's statement hearsay, as it is offered not for its truth, but for its effect on Defendants. See Smith v. Lamz, 321 F.3d 680, 686 n.3 (7th Cir. 2003) (holding that a witness's statement to a police officer accusing the plaintiff of a crime was not hearsay when offered to show that the accusation led the officer to believe the plaintiff had committed that crime). Nor is Defendants' supporting evidence barred by Evidence Rule 1002, which states: “An original writing, recording, or photograph is required in order to prove its content.” Fed.R.Civ.P. 1002. Defendants' assertion concerns statements that a witness (Erica) made during an interview, not the content of a writing, recording, or photograph. See Rodriguez v. Señor Frog's de la Isla, Inc., 642 F.3d 28, 34 (1st Cir. 2011) (holding that Rule 1002 did not bar a witness's testimony just because she could have submitted documentary evidence to prove the facts to which she testified); United States v. Fagan, 821 F.2d 1002, 1008 n.1 (5th Cir. 1987) (holding that Rule 1002 did not bar a police officer from testifying to the contents of a witness interview, even though the officer taped the interview); R & R Assocs., Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir. 1984) (“[A]s the advisory committee note makes clear, Rule 1002 applies not when a piece of evidence sought to be introduced has been somewhere recorded in writing but when it is that written record itself that the party seeks to prove. … No. evidentiary rule … prohibits a witness from testifying to a fact simply because the fact can be supported by written documentation.”). Additionally, Carmona's denial of Defendants' assertions concerning what precisely Erica said during the interview is meritless. Doc. 155 at ¶ 29. Carmona supports his denial by citing only his criminal attorney's argument at a state court hearing, but “[c]ounsel's arguments … are not evidence.” United States v. Austin, 907 F.3d 995, 1000 n.2 (7th Cir. 2018).)

         The investigating detectives relayed information concerning Erica's statement and the physical evidence recovered at the scene to Dantes, who on January 19 used that information to obtain and execute a search warrant on Carmona's car. Doc. 155 at ¶¶ 66-67, 73-75. (Carmona's hearsay objection to this fact is overruled because the detectives' statements to Dantes are offered not for their truth, but to show what information Dantes used to apply for the warrant. See Cairel v. Alderden, 821 F.3d 823, 831 (7th Cir. 2016) (holding that witness statements were not hearsay when offered to show why officers believed they had probable cause and what information they passed on to prosecutors).) Dantes had no reason to doubt the information that the investigators gave to him. Doc. 155 at ¶ 68. (Carmona's objections to this fact are overruled: the fact is not speculative, but rather is supported by Dantes's testimony; it is factual, not legal; and Dantes had personal knowledge under Rule 602 of whether he received information calling into question the information given him. Carmona's denial of the fact is disregarded, as his contention that Dantes had an affirmative duty to verify the investigators' information has nothing to do with whether he had reason to doubt that information.) Dantes neither drafted the warrant application nor had personal knowledge of the matters in the application. Id. at ¶ 69; Doc. 159 at ¶¶ 112-113. Other detectives and the prosecutor reviewed the application before Dantes submitted it, and the state judge who issued the warrant did not question Dantes about the application. Doc. 159 at ¶ 113. (Carmona's assertion that Dantes did not discuss the warrant's contents with the prosecutor, ibid., is disregarded because it is not supported by the record material he cites.) Dantes recovered a gas can from Carmona's car, but no accelerants were found on the can. Doc. 155 at ¶¶ 75-76. Dantes documented the search in a police report. Id. at ¶ 77. He had no further involvement in the acts that Carmona alleges are tortious or unconstitutional. Id. at ¶¶ 78-79.

         Upon his release from the hospital, Carmona was brought to a police station, where Garcia and Guzman questioned him again. Id. at ¶ 27. Detectives later arrested Carmona, believing based on Erica's statement and the physical evidence that there was probable cause to believe that he committed arson and murder. Id. at ¶¶ 27, 30-31. (Carmona's objection to Defendants' assertion that detectives determined based on physical evidence and Erica's statement that they had probable cause is overruled. Id. at ¶ 30. Whether the detectives believed they had probable cause is a fact, not a legal conclusion, and the assertion does not mischaracterize the testimony cited by Defendants. Carmona's denial of the assertion is disregarded. The only evidence he cites is a portion of a transcript where the state judge listed weaknesses in the case against Carmona. It cannot be inferred from the judge's comments that the officers did not believe there was probable cause to arrest Carmona.)

         A police investigator who visited the scene some thirty days after the fire found gang graffiti outside the building. Doc. 159 at ¶ 102. No. one in the Chicago Police Department investigated whether the fire was gang-related. Ibid. Dantes later testified that he did not remember whether he or his ...


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