Hughes et al v. City Of Chicago et al
MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 11/8/2011. Mailed notice(tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
DEWITT HUGHES and CHERANZETTA
CITY OF CHICAGO, et al.,
Case No.: 08-cv-627
Judge Robert M. Dow, Jr.,
MEMORANDUM OPINION AND ORDER
Plaintiffs, Dewitt Hughes and Cheranzetta Stagger-Hughes, sued the City of Chicago and
Chicago Police Officers Mark Uczen and Debbie Iza for violations of state and federal law.
Counts I and II were brought pursuant to 42 U.S.C. 1983, alleging unlawful search and seizure of
Mr. Hughes’ person and Ms. Hughes’ car in Count I and unlawful arrest and detention of Mr.
Hughes in Count II. Plaintiffs also asserted Monell claims against the City of Chicago in Counts
I and II.
Plaintiffs’ state law claims included False Imprisonment (Count III) and Malicious
Prosecution (Count IV) against the officers and Respondeat Superior (Count V) and
Indemnification (Count VI) against the City of Chicago.
Defendants moved for summary
judgment on all counts, which the Court granted in part, denied in part, and took under
advisement. The Court granted the motion as to Plaintiffs’ § 1983 and Monell claims against the
individual officers and the City of Chicago for violation of Plaintiff Dewitt’s Fourteenth
Amendment due process right. The motion remained under advisement as to Plaintiffs’ Monell
claim relating to the field testing kits.
Defendants now have brought a second motion for summary judgment , this time
seeking summary judgment on Plaintiffs’ remaining Monell claim. Plaintiffs’ Monell claim
against the City asserts that the City of Chicago failed to maintain a practice or policy, or to
adequately train officers, regarding narcotic field testing kits. For the reasons set forth below,
the Court grants Defendants’ motion for summary judgment  on Plaintiffs’ Monell claim.
On the evening of July 30, 2007, at approximately 10:00 p.m., Dewitt Hughes drove to
pick up his wife, Cheranzetta, at the end of her shift as a bus driver for the Chicago Transit
Authority. Cheranzetta had with her a blue, zippered, opaque lunch sack, which she placed on
the backseat of the car. Within the lunch sack was a plastic bag containing approximately fifteen
vitamins that had been purchased at Wal-Mart earlier that day. On their way home, Dewitt
dropped his wife off at Walgreens and headed to his mother’s house to retrieve some clothes
before returning to Walgreens to pick up Cheranzetta. On his way, Dewitt was pulled over by
Officers Mark Uczen and Debbie Iza. Officer Uczen asked Dewitt to exit the car, and Dewitt
complied. Uczen then patted Dewitt down. In her deposition, Officer Iza testified that while
Uczen was dealing with Dewitt, she walked to the passenger side of the vehicle and saw a plastic
bag containing numerous capsules on the passenger’s seat. According to Iza, she then got the
attention of Officer Uczen, who was at the back of the car with Dewitt. Uczen testified that he
looked through the passenger window and also observed a plastic bag with numerous capsules
containing a “white powdery substance” on the passenger’s seat. One of the officers retrieved
The full factual history of this case is set forth in the Court’s first summary judgment opinion .
Here, the Court sets forth facts relevant to the current summary judgment motion. Where the parties
disagree over relevant facts, the Court sets forth the competing versions. In addition, the Court resolves
genuine factual ambiguities in Plaintiffs’ favor, as Plaintiffs are the non-movants. Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004).
the bag from the vehicle and inspected the contents. The officers did not have field test kits for
suspected narcotics with them during this stop. Both officers testified that they believed that
these kits were not available in the Chicago Police Department. Believing that the capsules
contained narcotics, the officers arrested and handcuffed Dewitt. The Hughes’ vehicle was
Plaintiffs’ version of the stop and arrest differs from the officers’ story at several crucial
junctures. First, Cheranzetta testified that she did not leave the vitamins on the front passenger
seat when Dewitt dropped her off at Walgreens; rather, she claims that they were stored in her
blue, opaque lunch bag that was zippered shut and that she had placed on the back seat after
Dewitt picked her up. She also claims that when she went to retrieve her property from her
impounded car, the lunch bag was still on the back seat and that it had been searched. Dewitt
further stated that his wife’s lunch bag was in the back seat of the car, that he never saw the
vitamins that night, and that he did not even know that they were in the car. Finally, according to
Dewitt, prior to arriving at the police station, the officers refused to answer his questions and did
not tell Dewitt what – if anything – they had found in his car.
At the police station, Dewitt learned that the officers believed they had found heroin in
his car. At some point prior to his initial appearance, Dewitt told them that the pills they found
must have been his wife’s vitamins. Dewitt’s explanation notwithstanding, he was charged with
possession of heroin. Dewitt remained in the police station “lock up” facility until his bond
hearing on August 1, 2007. He received a $20,000 bond and the judge set his bail at $2,000.
Unable to post bail, Dewitt was transported to Cook County Jail. Three days after his bond
hearing, he was released from Cook County Jail and put on house arrest with electronic
monitoring. After he returned home, and as a result of his house arrest, he was fired from his job
as a truck driver. On August 22, 2007, the charges against Dewitt were dismissed pursuant to a
After Officer Uczen inventoried the vitamins, he sent them to the Illinois State Police
Laboratory for testing. On or about August 9, 2007, Uczen received a copy of the laboratory
report from the Illinois State Police Laboratory, which stated that the capsules removed from the
Hughes’ car had tested negative for the presence of illegal substances. Uczen showed the report
to Officer Iza and then filed the report in his desk drawer. The laboratory also transmits the
report to the Cook County State’s Attorney’s Office; however, it is not clear from the record
when the assistant state’s attorney assigned to Dewitt’s case received a copy of Dewitt’s lab
report. Typically, the state’s attorney assigned to the case accesses the report a day or two prior
to the scheduled preliminary hearing.
According to the testimony of the assistant state’s attorney deposed in this case, there is
no expectation that the arresting officer will provide a copy of the lab report to the prosecutor.
Officers Uczen and Iza, as well as their supervisor Sergeant Mateo Mojica, testified that they are
not aware of any policy or practice that directs officers as to what to do when they receive
notification from the Illinois State Police that putative drug material was determined to be nonnarcotic. The Chicago Police Department training bulletin on reporting responsibilities for
narcotics cases is silent as to any obligation to inform the prosecution of a negative lab result.
The Chicago Police Department has narcotics test kits available for officers to use in
certain instances, predominately officers in the narcotics division.2 The test kits are purchased
Most of the support for Plaintiffs’ Monell claim comes from deposition testimony given in another
case, Daniels v. City of Chicago, Case No. 08-cv-6832, by a Chicago police officer, Michael Nunez, who
is not a party to this case. In this case, Plaintiffs never noticed a 30(b)(6) deposition to gather evidence
regarding field test kits, despite the fact that discovery was reopened on the Monell claim, and Plaintiffs
sought no additional discovery after discovery was re-opened. Defendants deposed certain officers who
were deposed in the Daniels case in order to clarify their testimony as to the issues presented in this case.
by the Organized Crime Division. The Department maintains that use of the test kits on a
department-wide basis would be problematic due to chain of custody and contamination issues as
well as the risk that field-testing could result in depleted samples of the suspect narcotics.
However, the Department agrees that test kits are used department-wide and that any Chicago
police officer can use the field test kits as long as it is for a “legitimate” purpose.
Department does not have a policy instructing officers about what they should do with the results
of their field drug testing. There is no formal, department-wide training on the use of the test
kits, although the kits include basic instructions.
On the date of Dewitt’s arrest, the Chicago Police Department had in effect special orders
which instruct officers to inventory, secure, and send all suspect narcotics to the Illinois State
Police for testing. The orders do not instruct officers to conduct any “field testing” of suspect
narcotics. The CPD does not have any department-wide orders regarding field testing, but,
according to Defendants, it does have a special order regarding field testing that pertains to the
narcotics division. However, officers in the narcotics division have testified that they were not
aware of the order and that at best it is “outdated.”
Summary Judgment Standard
Summary judgment is proper where “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Factual
disputes that are irrelevant to the outcome of the suit “will not be counted.” Palmer v. Marion
County, 327 F.3d 588, 592 (7th Cir. 2003) (quotation marks and citations omitted). In
determining whether there is a genuine issue of fact, the Court “must construe the facts and draw
all reasonable inferences in the light most favorable to the nonmoving party.” Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party
must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks
and citation omitted).
A genuine issue of material fact exists if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. at 248. The party seeking summary
judgment has the burden of establishing the lack of any genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper against “a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. The
non-moving party “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). In other words, the “mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.
Monell v. Department of Social Services of City of New York provides that “a
municipality cannot be held liable under § 1983 on a respondeat superior theory.” 436 U.S. 658,
691 (1978). Rather, “[a] municipality only may be held liable under § 1983 for constitutional
violations caused by the municipality itself through its own policy or custom.” Jenkins v.
Bartlett, 487 F.3d 482, 492 (7th Cir. 2007).
In order to state a § 1983 claim against a
municipality, the complaint must allege that an official policy or custom not only caused the
constitutional violation, but was “the moving force” behind it. City of Canton, Ohio v. Harris,
489 U.S. 378, 389 (1989); see also Arlotta v. Bradley Center, 349 F.3d 517, 521-22 (7th Cir.
2003); Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002). The “official policy”
requirement for liability under § 1983 is to “distinguish acts of the municipality from acts of
employees of the municipality, and thereby make clear that municipal liability is limited to action
for which the municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469,
479 (1986). “Misbehaving employees are responsible for their own conduct[;] ‘units of local
government are responsible only for their policies rather than misconduct by their workers.’”
Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (quoting Fairley v. Fermaint, 482
F.3d 897, 904 (7th Cir. 2007)).
To state a § 1983 claim against a municipality, Plaintiffs must “allege that (1) the city had
an express policy that, when enforced, causes a constitutional deprivation; (2) the city had a
widespread practice that, although not authorized by written law or express municipal policy, is
so permanent and well settled as to constitute a custom or usage within the force of law; or (3)
plaintiff’s constitutional injury was caused by a person with final policymaking authority.”
McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000). A city’s “failure to provide
proper training may fairly be said to represent a policy for which the city is responsible, and for
which the city may be held liable if it actually causes injury.” City of Canton, 489 U.S. at 390.
Establishing Monell liability based on evidence of inadequate training or supervision requires
proof of “deliberate indifference” on the part of the local government. Sornberger v. City of
Knoxville, Ill., 434 F.3d 1006, 1029 (7th Cir. 2006) (citing City of Canton, 489 U.S. at 388)).
Proof of deliberate indifference can take the form of either “(1) failure to provide adequate
training in light of foreseeable consequences; or (2) failure to act in response to repeated
complaints of constitutional violations by its officers.” Id. at 1029-30 (citing City of Canton, 489
U.S. at 390 & n. 10)).
Plaintiffs claim that the police department does not provide officers with any instruction
about how and when to conduct preliminary field tests. On the basis of these contentions,
Plaintiffs insist that the City of Chicago faces Monell liability for its “utter failure to provide
proper training to its officers on how to use those readily available kits.” Plaintiffs further
contend that the City’s lack of a policy regarding field test kits resulted in the deprivation of
Dewitt’s rights. In other words, if Officers Uzcen and Iza had been able to conduct a preliminary
field test of the vitamins right on the scene, or even at the police station, then they quickly could
have determined that the substance in the capsules was not heroin, and Dewitt could have been
spared the drug arrest, incarceration, and weeks of house arrest. Plaintiffs argue that they are not
bringing a claim based on a “widespread practice” of the City; rather, they maintain that the lack
of any policy constitutes unconstitutional City policy.
The express policy theory applies, as the name suggests, where a policy explicitly
violates a constitutional right when enforced. See Monell, 436 U.S. at 658. Under this type of
claim, one application of the offensive policy resulting in a constitutional violation is sufficient
to establish municipal liability. See City of Okla. v. Tuttle, 471 U.S. 808, 822 (1985); see also
Calhoun v. Ramsey, 408 F.3d 375, 379-80 (7th Cir. 2005). A second way of complaining about
an express policy is to object to omissions in the policy. This is essentially what Plaintiffs are
doing. Plaintiffs frame the issue as there being a lack of a policy regarding field test kits for
narcotics; however, it is no different to say that the City has a policy regarding the recovery of
suspect narcotics and that policy omits reference to field testing—in other words, according to
Plaintiffs’ position, the City’s policy on the how to deal with suspect narcotics has a “gap.”
As the Seventh Circuit has indicated, it is “more confusing than useful to distinguish
between claims about express policies that fail to address certain issues, and claims about
widespread practices that are not tethered to a particular written policy.” Calhoun, 408 F.3d at
379. In both of these situations, the claim requires more evidence than a single incident to
establish liability. See id. (citing Tuttle, 471 U.S. at 822–23 (challenging the city’s police officer
training policy as inadequate)). As the Seventh Circuit noted in Calhoun:
This is because it is necessary to understand what the omission means. No
government has, or could have, policies about virtually everything that might
happen. The absence of a policy might thus mean only that the government sees
no need to address the point at all, or that it believes that case-by-case decisions
are best, or that it wants to accumulate some experience before selecting a regular
course of action. At times, the absence of a policy might reflect a decision to act
unconstitutionally, but the Supreme Court has repeatedly told us to be cautious
about drawing that inference. See, e.g., Bd. of the County Comm'rs of Bryan
County v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)
(rejecting Monell claim based on absence of more thorough screening of
candidates for sheriff's deputy); City of Canton v. Harris, 489 U.S. 378, 388, 109
S.Ct. 1197, 103 L.Ed.2d 412 (1989) (rejecting a failure-to-train claim). Both in
the “widespread practice” implicit policy cases and in the cases attacking gaps in
express policies, what is needed is evidence that there is a true municipal policy at
issue, not a random event.
Calhoun, 408 F.3d at 379.
Accordingly, the Supreme Court has held that “where the policy relied upon is not itself
unconstitutional, considerably more proof than the single incident will be necessary in every case
to establish both the requisite fault on the part of the municipality and the causal connection
between the [omission in the policy or lack of a policy] and the constitutional deprivation.”
Tuttle, 471 U.S. at 824 (footnote omitted). As in Calhoun, in the present circumstances, the gap
in the policy—or the absence of an express policy—may be a conscious decision by the
Department to use field test kits on a case-by-case basis, or a decision to accumulate experience
with the kits (used predominantly in one division and for obtaining search warrants) before
selecting a regular course of action. Moreover, it is not as if officers are not trained on how to
handle suspect narcotics. The Department has a policy with respect to inventorying, securing,
and processing seized suspect narcotics, and it appears that its policy was followed during the
incident in question. The department-wide orders specifically provided for testing of all suspect
narcotics by the Illinois State Police and do not instruct the officers to conduct any “field testing”
of suspect narcotics recovered.3 Plaintiffs have not presented any evidence that the stated
rationale behind this policy—that only evidence tested by the Illinois State Lab is generally
suitable to be presented in court for prosecution of criminal charges—is unreasonable. Thus,
while at times the absence of a policy might reflect a decision to act unconstitutionally, one
incident—which is all that Plaintiffs’ have provided evidence of—in these circumstances is
insufficient to establish that the need for a policy was so obvious that the municipality effectively
exercised a deliberate indifference toward Plaintiff Dewitt’s rights. See Calhoun, 408 F.3d at
379 (noting the Supreme Court’s instruction that lower courts “be cautious” about drawing
inferences that the absence of a policy reflects a municipal decision to act unconstitutionally);
see also Becker v. Porter County Sheriff’s Dept., 2009 WL 500562 at *5 (N.D. Ill. Feb. 27,
Plaintiffs also assert that the municipality can be liable for the actions of its officers on a
failure to train theory. Specifically, Plaintiffs argue that the officers were not trained on when or
how to use a field test kit. To succeed on a failure to train theory, Plaintiffs must establish that
“the need for more or different training is so obvious, and the inadequacy so likely to result in
the violation of constitutional rights, that the policymakers of the city can reasonably be said to
Indeed, Defendants maintain that department-wide orders and training for all police officers regarding
narcotic test kits would be inappropriate and unreasonable since police officers who recover suspect
narcotics while making an arrest on patrol, such as Officers Uczen and Iza, would not be required, or
expected, to perform a “field test” of any recovered suspect narcotics, and would instead be expected to
follow D.S.O. 05-02 and 05-02-0.
have been deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390
(1989). The failure to train must reflect a deliberate or conscious choice by the municipality. Id.
at 389. In addressing whether a city’s failure to adequately train its police officers amounted to a
policy for Monell purposes, the Supreme Court had the following to say: “[T]he word “policy”
generally implies a course of action consciously chosen from among various alternatives; it is
therefore difficult in one sense even to accept the submission that someone pursues a “policy” of
“inadequate training,” unless evidence be adduced which proves that the inadequacies resulted
from conscious choice—that is, proof that the policymakers deliberately chose a training
program which would prove inadequate.” Tuttle, 471 U.S. at 823, 105 S.Ct. 2427 (footnote
omitted); see also Harris, 489 U.S. at 388 (finding liability should be imposed only when the
degree of fault rises to the level of “deliberate indifference” to rights, that is, where the
municipality’s “choice to follow a course of action is made from among various alternatives by *
* * policymakers”) (quotations omitted).
Plaintiffs’ allegations about the lack of training regarding field test kits are supported by
only one event—the circumstances surrounding Dewitt Hughes’ arrest on July 30, 2007.
Plaintiffs have not come forward with evidence that any other specific individual has had similar
problems arising from the lack of training on how or when to use field test kits. While Plaintiffs
assert that there was “deliberate indifference” on the part of the City and “known and obvious
consequences” that a failure to train would cause constitutional violations, they have failed to
provide further factual support for these assertions beyond pointing to the incident with Plaintiff
Dewitt. Plaintiffs have not demonstrated that the City was aware of a pattern of constitutional
violations or that the City acquiesced to such a pattern. The most Plaintiffs have shown is an
“isolated incident that * * * cannot support municipal liability.” Calhoun, 408 F.3d at 380.
Plaintiffs’ claim comes down to whether not having a policy regarding field testing and
not training officers on the use of field test kits constitutes deliberate indifference on the part of
the City to its citizens’ rights. Plaintiffs theorize that because Officers Uczen and Iza had no
knowledge of the field test kits (and, even if they did, were not trained on how to use them),
Plaintiffs’ rights were violated and Monell liability follows. However, Plaintiffs’ theory ignores
the training that the officers had (and followed) regarding the recovery of suspect narcotics at the
scene of an arrest. That the policy does not provide instruction on how or when to use field test
kits does not automatically mean that it should. Rather, given that Plaintiffs have offered no
evidence of additional alleged violations beyond the present incident to support their claims at
the summary judgment stage, the Court concludes that Plaintiffs have not come forward with
enough to overcome the concerns expressed by the Supreme Court in Tuttle and the Seventh
Circuit in Calhoun. In short, although Defendant Officers remain in the case to answer for their
individual conduct at trial, Plaintiffs have fallen short of demonstrating that gaps in the City’s
policies and training were the moving force behind Plaintiff Dewitt’s injuries or that the City was
deliberately indifferent to their constitutional rights. See also Erwin v. County of Manitowoc,
872 F.2d 1292, 1298 (7th Cir. 1989) (noting that “in almost every instance where a § 1983
plaintiff has suffered a violation of his constitutional rights by a government employee the
plaintiff can point to something that the government could have done to protect against that
For these reasons, the Court grants Defendants’ motion for summary judgment on
Plaintiffs’ remaining Monell claim .
Dated: November 8, 2011
Robert M. Dow, Jr.
United States District Judge
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