United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Feinerman, United States District Judge.
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.
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).
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).
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.
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).
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 ¶¶
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.)
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.
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.
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.)
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.
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.
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.)
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).)
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.
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.)
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 ...