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Cossio v. Tortelout

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

September 30, 2019

JOSE COSSIO, JR., Plaintiff,


          Honorable Edmond E. Chang United States District Judge

         Plaintiff Jose Cossio Jr., a former employee of Cook County, sued the County along with a state court judge, the Cook County Sheriff's office, and several county officials after he was fired for falsifying his employment application and for not cooperating with the County's investigation into his military record. The gist of the complaint (now on a Second Amended Complaint) is that the Defendants unlawfully accessed and disclosed Cossio's military criminal history, which in turn led to his procedurally unfair termination. R. 15, Second Am. Compl.[1] All of the Defendants, except for the state court judge, John Tourtelot, were eventually dismissed. See R. 57 (district court opinion dismissing all defendants); R. 99, Seventh Circuit Appeal at 7 (vacating the prior judgment only as to Tourtelot and remanding for further proceedings). Against Tourtelot specifically, Cossio alleges violations of the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. After several months of discovery, Tourtelot moved for summary judgment against the claims. R. 223, Def.'s Mot. Summ. J. After the summary judgment motion was fully briefed, Cossio filed a motion to amend his complaint. R. 228, Pl.'s Mot. Amend Compl. The Court addresses each motion in turn.

         I. Background

         In deciding a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Tourtelot argues, though, that Cossio failed to comply with Local Rule 56.1, and thus the Court should accept Tourtelot's version of the facts as admitted. R. 227, Def.'s Reply Br. at 2-3. Before summarizing the facts of this case, the Court first addresses this threshold argument.

         A. Local Rule 56.1

         Local Rule 56.1 governs motions for summary judgment in this District. The rule requires the moving party to provide “a statement of material facts as to which the moving party contends there is no genuine issue.” L.R. 56.1(a)(3). The non-moving party then must respond 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). This means the non-moving party must “admit or deny each factual statement proffered by the [moving party] and ... designate with specificity and particularity those material facts believed to establish a genuine dispute for trial.” Greer v. Bd. of Educ. of the City of Chi., Ill., 267 F.3d 723, 727 (7th Cir. 2001). If the non-moving party wishes to present additional facts, then it must do so in its own “statement, consisting of short numbered paragraphs” supported by citations to the record. L.R. 56.1(b)(3)(C). The moving party may submit a concise reply to the opposing party's statement of additional facts. L.R. 56.1(a). All material facts set forth in the moving party's statement will be deemed admitted “unless controverted by the statement of the opposing party.” L.R. 56.1(b)(3)(C). Likewise, all material facts set forth in the non-moving party's statement of additional facts will be deemed admitted “unless controverted by the statement of the moving party.” L.R. 56.1(a). Complying with Local Rule 56.1 is not a mere technicality, and if a party fails to comply, courts are not obliged to “scour the record looking for factual disputes.” Greer, 267 F.3d at 727.

         Tourtelot argues that Cossio failed to comply with Local Rule 56.1(b)(3)(A) (Cossio's response to Tourtelot's statement) and 56.1(b)(3)(C) (Cossio's statement of additional facts). Def.'s Reply Br. at 2. On the first problem-Cossio's response to Tourtelot's statement-Tourtelot is right. Cossio neither admitted nor denied any of the numbered paragraphs in Tourtelot's statement as required by Rule 56.1(b)(3)(A). It is true that Cossio is litigating the case pro se, but pro se litigants are expected to follow Rule 56.1, so the Court deems Tourtelot's statement of facts as admitted. Zoretic v. Darge, 832 F.3d 639, 641 (7th Cir. 2016) (affirming application of Local Rule 56.1 to a pro se litigant to deem the defendant's facts as admitted); Greer, 267 F.3d at 727 (same); see also McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel”). What's more, Tourtelot served Cossio with a “Notice to Pro Se Litigant Opposing Motion for Summary Judgment” pursuant to Local Rule 56.2, which explained the requirements of Local Rule 56.1 and warned Cossio that his failure to properly rebut the facts in Tourtelot's statement would result in those facts being deemed admitted. See R. 225-1. Despite this notice, Cossio still failed to comply, so the Court deems Tourtelot's statement of facts as admitted. See Greer, 267 F.3d at 727.

         When it comes to Cossio's statement of additional material facts, however, Tourtelot is mistaken. Attached to Cossio's reply brief was a statement of additional facts containing citations to the record in apparent compliance with Local Rule 56.1(b)(3)(C). See R. 226-2, PSOAF.[2] In what appears to be an oversight, Tourtelot missed this filing and failed to respond to Cossio's additional statement of facts. In this odd situation, the Court deems Tourtelot's statement of facts as admitted, but also will consider Cossio's additional statement of facts (so long as the factual assertions are supported by the citations to the record). As explained in further detail below, however, even if the Court considers these additional facts in evaluating the summary judgment motion, they do not actually controvert the material facts in Tourtelot's statement.[3]

         B. Factual Background

         The pertinent facts, stated as favorably to Cossio as the record and Local Rule 56.1 allow, are as follows: Cossio was a fleet manager at the Cook County Bureau of Administration from 2013 until he was fired in October 2014. R. 225, DSOF ¶ 2; PSOAF ¶ 2. The story of his discharge started in July 2014, when Cossio appeared as a litigant before Cook County Circuit Court Judge Tourtelot for a hearing on a petition for an order of protection against Cossio. DSOF ¶¶ 1, 3; PSOAF ¶¶ 1, 3. Later that day, Tourtelot reported a suspicious call to the Cook County Sheriff's Office. DSOF ¶ 4; PSOAF ¶ 7. Tourtelot reported that the call came from phone number (312) 339-6000[4] to his personal phone and that he thought that Cossio might have made the call.[5] DSOF ¶ 4.

         The Cook County Sheriff's Office then emailed the Department of Homeland Security, alerting them of the call. DSOF ¶ 5; PSOAF ¶ 5. Homeland Security in turn forwarded that email to the Cook County Human Resources and the Office of the President of Cook County's Board of Commissioners. DSOF ¶ 5. Eventually, the report about the suspicious call made its way to Cossio's boss and the Cook County Office of the Independent Inspector General (often referred to by the acronym “IG”). PSOAF ¶ 5. The suspicious-call report led the IG to investigate Cossio, including digging up Cossio's criminal history. DSOF ¶ 6. Significantly, Tourtelot neither performed nor instructed the IG, or anyone else, to investigate Cossio's criminal history or his court-martial convictions. DSOF ¶ 9.

         During the investigation, the IG discovered that Cossio had military convictions that he had not disclosed on his employment application. DSOF ¶ 6. The IG recommended that the Bureau of Administration fire Cossio. Id. The Bureau accepted the IG's recommendation, held a pre-disciplinary hearing, and terminated Cossio's employment for falsifying his employment records and not cooperating with the investigation. Id.; PSOAF ¶ 15; COSSIO 99-100; COSSIO 115. Cossio later appealed his firing to the Cook County Employee Appeals Board, which upheld his termination. DSOF ¶ 7.

         II. Legal Standard

         A. Motion to ...

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