Maldonado v. Chicago Police Officers et al

Filing 187

MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 6/20/2011:Judicial staff mailed notice(gl, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MIGUEL MALDONADO,

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Plaintiff,
v.
P.O. VINCENT STINAR,
P.O. MICHAEL GLINES, individually,
and THE CITY OF CHICAGO,
Defendants.

No. 08-cv-1954

Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently before us are two post-trial motions filed by Plaintiff Miguel Maldonado.1
Plaintiff first asks us to alter or amend our February 1, 2010 order granting partial summary
judgment for the Defendants in this case. Plaintiff also seeks relief from the jury’s November
19, 2010 verdict in favor of the Defendants and requests that we vacate the final judgment and
grant him a new trial. For the reasons stated below, we deny both motions.

1

Citing Rule 11 and 28 U.S.C. § 1927, the Defendants informally request that we sanction Plaintiff for
filing an “improper, borderline unethical post–trial motion[]” that is frivolous and a “waste of the court’s time.”
(Resp. at 2, 19–20.) We do not believe that Plaintiff has “[multiplied] the proceedings . . . unreasonably [or]
vexatiously”, as required by 28 U.S.C. § 1927. The Defendants have also failed to comply with the Rule 11
requirement that “[a] motion for sanctions must be made separately from any other motion[.]” Fed. R. Civ. P.
11(c)(2). For these reasons, sanctions are not appropriate.

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I. BACKGROUND
Plaintiff brought a three-count second amended complaint against Defendants Vincent
Stinar, Michael Glines, Lenny Pierri, and the City of Chicago. (Dkt. No. 52.) The individual
Defendants are members of the Chicago Police Department.2 The second amended complaint
alleged that the Defendants falsely arrested Plaintiff in violation of the Fourth Amendment
(Count I) and Illinois law (Count III), and that the Defendants’ unreasonably searched Plaintiff
and his vehicle (Count II). (Id. at 3–5.) Plaintiff seeks relief from our grant of summary
judgment on Counts I and III (Dkt. No. 167) and the jury’s verdict in favor of the Defendants on
Count II (Dkt. No. 169). In support of his motion to reconsider our summary judgment order,
Plaintiff points to alleged inconsistencies in the Defendants’ deposition and trial testimony.
(Dkt. No. 167 at 2–4.) In support of his motion for a new trial, Plaintiff points to Defense
counsel’s alleged misconduct in relying upon a photograph of the arrest scene not admitted in to
evidence in her closing argument. (Dkt. No. 169 at 4–8.) We briefly set out the facts pertinent
to each motion.
A.

Defendants’ Testimony
Prior to trial, Plaintiff deposed Officer Stinar regarding his arrest and search of Plaintiff

and his vehicle. (Stinar Dep.) At his deposition, Officer Stinar testified that the arrest stemmed
in part from an anonymous tip regarding a gun in a vehicle with the same license plate as
Plaintiff’s. (Stinar Dep. at 35–36.) Officer Stinar further stated that when Plaintiff exited his
vehicle, Stinar recognized him as a gang affiliate whom he had previously observed at the scene
of a gang-related shooting. (Id. at 25–30.) He described, inter alia, how he approached Plaintiff,
2
Our grant of partial summary judgment on Plaintiff’s false arrest claims disposed of all Plaintiff’s claims
against Officer Pierri. As such, he is no longer a party to this case.

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(Id. at 40–47), arrested him, (Id. at 51–54), and searched his vehicle. (Id. at 51–62.) Officer
Stinar also stated that, during the search, he noticed that Plaintiff clearly had children based on
the fact that the car had toys and car seats in it. (Id.)
On February 1, 2010, we granted the Defendants’ motion for summary judgment on
Plaintiff’s federal and state false arrest claims (Counts I and III). (Dkt. No. 92 at 16.) In finding
that the officers had sufficient probable cause to arrest Plaintiff, we relied on three factors: 1)
the anonymous tip identifying Plaintiff as a Hispanic male, physically describing his vehicle and
license plate number, and stating that he had a gun; 2) the location of Plaintiff’s vehicle in a
neighborhood known to be heavily gang-infested; and 3) Officer Stinar’s apparent recognition of
Plaintiff as a gang affiliate. (Id. at 8–12.) On August 3, 2010, we denied Plaintiff’s request to
revisit our summary judgment order. (Dkt. No. 143.)
On November 18, 2010, a jury trial commenced on the remaining count of unreasonable
search of Plaintiff’s vehicle (Count II). (Dkt. No. 155.) During trial, Officer Stinar again
testified about the search, stating that Plaintiff gave him permission to search his vehicle,
(11/18/10 Trial Tr. at 59–60), that his belief that there was a weapon in the car rapidly
diminished, (Id. at 59, 75, 78–79), that the vehicle was a family van, (Id. at 60), and that he had a
friendly conversation with Plaintiff after the search. (Id. at 70–71.)
B.

Photograph of the Scene
Shortly before trial, Defense counsel obtained a photograph of the building and

surrounding area where the arrest and search had occurred. (Resp., Ex. A ¶¶ 12–14.) Although
the parties dispute whether Defense counsel disclosed the actual intended use for the photograph
(Id. at ¶ 19; Aff. of Julie Owen at ¶ 5), they agree that Defense counsel showed the photograph to

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Plaintiff’s counsel before using it as a demonstrative exhibit at trial. (Resp., Ex. A ¶ 13; Aff. of
Julie Owen at ¶ 3.) The photograph was not admitted as evidence, but the parties concur that
Plaintiff’s counsel did not object to Defense counsel’s use of the photograph during her closing
argument and that Plaintiff’s counsel in fact referred to the photograph in her rebuttal. (11/18/10
Trial Tr. at 42–44; 11/19/10 10 a.m. Trial Tr. at 7–9; 11/19/10 12 p.m. Trial Tr. at 3.)
During their deliberations, the jury requested to see the photograph. (11/19/10 12 p.m.
Trial Tr. at 2.) In denying that request, the Court instructed the jury as follows: “[Y]ou request a
picture of the building. That picture is not in evidence. Although it was used for demonstrative
purposes, it is not in evidence and I cannot give it to you.” (Id. at 5.) Later that same day, the
jury found the Defendants not liable on the remaining count of unreasonable search of Plaintiff’s
vehicle and the Court entered a final judgment for the Defendants. (Dkt. Nos. 157 & 164.)
II. ANALYSIS
A.

Plaintiff’s Motion to Reconsider the Summary Judgment Order
Plaintiff asks us to reconsider our order granting summary judgment for the Defendants

on Counts I and III. (Dkt. Nos. 92 & 167.) The Federal Rules of Civil Procedure provide two
avenues through which litigants may seek reconsideration of orders by the district court. Any
motion that “challenges the merits of the district court’s decision . . . must fall under either Rule
59(e) or Rule 60(b).” U.S. v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992); Starr v. Levin, No. 02
C 2258, 2002 WL 31664496, at *1 (N.D. Ill. Nov. 24, 2002).
To succeed on a Rule 59(e) motion, the moving party must present newly discovered
evidence, point out an intervening change in controlling law, or clearly establish that the court
committed a manifest error of law or fact. See Caisse Nationale de Credit Agricole v. CBA

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Indus., Inc., 90 F.3d 1264, 1269–70 (7th Cir. 1996); Publishers Res., Inc. v. Walker-Davis
Publ’ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985). Notably, “reconsideration is appropriate in
very limited circumstances[.]” BP Amoco Chem. v. Flint Hills Res., LLC, 489 F. Supp. 2d 853,
856 (N.D. Ill. 2007); Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1191–92 (7th Cir. 1990); see also Hickory Farms, Inc. v. Snackmasters, Inc., 509 F. Supp. 2d
716, 719 (N.D. Ill. 2007) (“Reconsideration is appropriate, generally speaking, only when the
Court overlooked or misunderstood something.”). Rule 59(e) must also be invoked within
twenty-eight days of the entry of the judgment. Fed. R. Civ. P. 59(e); Swanigan v. Argent
Mortgage Co., No. 10 C 1039, 2010 WL 4636699, at *1 (N.D. Ill. Nov. 8, 2010). Where a
motion to alter or amend is served more than twenty-eight days after the entry of the judgment,
“it falls under Rule 60(b).” Deutsch, 981 F.2d at 301; Najieb v. William Chrysler-Plymouth, No.
01 C 8295, 2003 WL 21058324, at *1 (N.D. Ill. May 9, 2003).
Because the summary judgment order Plaintiff asks us to reconsider was entered on
February 1, 2010 (Dkt. No. 92), and Plaintiff did not file the present motion until December 14,
2010 (Dkt. No. 167), we review Plaintiff’s request under the standard for Rule 60(b). Rule 60(b)
is similar to Rule 59(e) in that it enables a party to seek relief from a court’s order. Starr, 2002
WL 31664496, at *1. Rule 60(b), however, “is considerably narrower.” U.S. v. Manville Sales
Corp., No. 88 C 630, 2005 WL 526695, at *2 (N.D. Ill. Mar. 2, 2005). Rule 60(b) identifies six
grounds under which a motion to alter or amend may be brought. A court may grant relief only
under the particular circumstances listed in the rule, including the movant’s discovery of new
evidence “that, with reasonable diligence, could not have been discovered in time” to seek relief
under Rule 59. Fed. R. Civ. P. 60(b)(2); Russell v. Delco Remy Div. of Gen. Motors Corp., 51

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F.3d 746, 749 (7th Cir. 1995). It is “well-established” that Rule 60(b) relief is “an extraordinary
remedy and is granted in only exceptional circumstances.” Harold Washington Party v. Cook
Cnty, Ill. Democratic Party, 984 F.2d 875, 879 (7th Cir. 1993); Nodal Sys. Corp. v. Burke, No.
00 C 2392, 2001 WL 664394, at * 2 (N.D. Ill. June 13, 2001).
Plaintiff contends that relief is warranted because “new evidence” surfaced at trial in the
form of “inconsistent testimony by Officer [sic] Stinar and Glines.” (Dkt. No. 167 ¶ 4.) The
alleged inconsistency is that Officer Stinar testified “at his deposition that he ‘immediately
recognized’ Miguel Maldonado as a ‘gang affiliate,’” but later testified at trial that “Maldonado
was friendly and social with him, that he gave consent to search his vehicle, and that he seemed
like a family man.”3 (Id. ¶¶ 5, 8.) This inconsistency, Plaintiff contends, impacts “this Court’s
summary judgment analysis of whether the Defendant officers had probable cause to arrest” him.
(Id. ¶ 6.) Plaintiff asserts that the inconsistency undermines the Defendants’ credibility and their
bases for probable cause. Because the Defendants’ story changed, Plaintiff asserts that a jury
should examine the dismissed claims. (Id. ¶¶ 11–14.) The Defendants respond by stating that
they were barred from presenting testimony about Plaintiff’s gang affiliation by Plaintiff’s own
motion in limine (Resp. at 8), and that the two sets of testimony are “in no way inconsistent.”
(Id. at 10.)
After reviewing the deposition and trial transcripts, we do not view them as inconsistent.
In both instances, Officer Stinar testified, first, that the nature of the call motivated his reactions

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Plaintiff asserts and then abandons a similar argument regarding inconsistent statements made by Officer
Glines. (Resp. at 11; Dkt. No. 185 at 2 n.1.) Since Plaintiff, apparently, never deposed Officer Glines and because
Plaintiff abandons the argument, we do not address any alleged inconsistent statements made by Officer Glines.
(See Resp. at 11; Dkt. No. 185 at 2 n.1.)

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at the scene.4 Second, Officer Stinar testified that Plaintiff responded to the officers’ approach
by giving Officer Stinar permission to search the vehicle.5 Third, he testified that the car was
full of things evidencing that Plaintiff had a family.6 Finally, Officer Stinar stated that he
believed the call to be a “nonsense call.”7
We do not see how these two sets of testimony are inconsistent. It is not necessarily
inconsistent to state that someone is a gang affiliate, having been seen around other gang
members and at the scene of a gang-related shooting, and then later assert that the same person
has a family. Moreover, even if the two sets of testimony are inconsistent, whatever slight
differences exist can be attributed to two things: 1) the grant of Plaintiff’s motion in limine,
which barred the Defendants from testifying at trial about Plaintiff’s alleged gang affiliation
(Dkt. No. 145); and 2) the absence at trial of detailed pre-arrest facts because the only issue
remaining for the jury to decide was the reasonableness of the search. (11/18/10 10 a.m. Trial
Tr. at 56:16–17.) It is well-established that the relevant moment for determining whether
probable cause exists is the moment at which the arrest occurs. Gonzalez v. City of Elgin, 578
F.3d 526, 537 (7th Cir. 2009) (“A police officer has probable cause to arrest a person if, at the
time of the arrest, the ‘facts and circumstances within the officer’s knowledge . . . are sufficient
4

Stinar Dep. at 46:8–9 (“Q.: Why did you have your weapon drawn? A.: For the nature of the call, person
with a gun. For my safety, I had my gun out.”); 11/18/10 Trial Tr. at 59:18–20 (“Q.: So, if you started to believe
there was no weapon inside the vehicle, why did you search it? A.: Just because of the nature of the call . . .”).
5
Stinar Dep. at 52–53 (“A.: . . . I kept saying, you know, someone called saying you have a gun and gave
the license plate. Q.: Did he say anything in response to that? A.: He said, ‘There is no gun in here. Go head and
check.’”); 11/18/10 Trial Tr. at 59:4–10 (“Q.: So what happened after you got to the body shop? A.: . . . I told him
that we had received a call that he had a gun inside that vehicle. Q.: And how did he respond to you? A.: Surprised,
calm, and gave me permission to search his vehicle.”).
6
Stinar Dep. at 56:20–23 (“A.: . . . the car was full of stuff. You could tell that he has children or some
kind—there was toys and car seats and food and everything all over the place.”); 11/18/10 Trial Tr. at 60:13–24
(“Q.: So, can you tell me about the condition of the minivan when you approached it? A.: I knew that obviously,
children—it’s a family van. You can see child seats in there. . . . it was a family van, a lot of toys around, kids
around, I started believing he wouldn’t keep a gun inside there.”).
7
Stinar Dep. at 70:5–6; 11/18/10 Trial Tr. at 48:18–19.

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to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit an offense.’”)
(emphasis added) (internal citations omitted). We do not find that any statements made by
Officer Stinar at trial undermine his deposition testimony that upon seeing Plaintiff he
immediately recognized him as a gang affiliate—a fact that substantially contributed to our
conclusion that there was probable cause. (See Dkt. No. 92.) Nothing upsets our prior
conclusion that he remained under that belief at the time of the arrest. Furthermore, nothing in
the trial transcript suggests that Officer Stinar’s deposition statements were false or fabricated;
rather, we reiterate that he was prevented from testifying in detail about the events prior to the
search or his recognition of Plaintiff as a gang affiliate. Under the circumstances, the two sets of
testimony could not be wholly consistent on every point. But having failed to identify any
significant inconsistencies, our probable cause analysis remains the same and we will not revisit
the issue. See Caisse Nationale de Credit Agricole, 90 F.3d at 1270 (a Rule 60(b) motion “is not
an appropriate forum for rehashing previously rejected arguments or arguing matters that could
have been heard during the pendency of the previous motion.”); see also Kaplan, 2009 WL
1940789, at *1.
B.

Plaintiff’s Motion for Relief from the Final Judgment and for a New Trial
In his second motion, Plaintiff moves to vacate the final judgment entered in the wake of

the jury verdict and asks for a new trial pursuant to Rules 59(a) and Rule 60(b)(3). Motions for a
new trial under Rule 59(a) require the court to determine “whether the verdict is against the
weight of the evidence . . . the damages are excessive, or . . . for other reasons, the trial was not
fair to the party moving.” Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004) (internal

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citations omitted); Golden v. City of Chi., No. 07 C 6928, 2009 WL 3152359, at *4 (N.D. Ill.
Sept. 28, 2009). Normally, “[t]he court is required to give significant deference to the jury’s
verdict.” Golden, 2009 WL 3152359, at *4. (citing Farfaras v. Citizens Bank & Trust Chi., 433
F.3d 558, 566 (7th Cir. 2006)). Where there are simple issues and highly disputed facts, even
“greater deference should be afforded the jury’s verdict.” Latino v. Kaizer, 58 F.3d 310, 314
(7th Cir. 1995); Ingersoll Cutting Tool Co. v. Iowa Midland Supply Inc., No. 06 C 00845, 2010
WL 2011946, at *3 (N.D. Ill. May 19, 2010). The decision to grant a Rule 59(a) motion “is
within the trial court’s broad discretion.” Toutant v. Crown Equip. Corp., No. 01 C 1194, 2004
WL 2271819, at *1 (N.D. Ill. Oct. 6, 2004) (citing Harvey v. Office of Banks & Real Estate, 377
F.3d 698, 707 (7th Cir. 2004)).
Plaintiff also seeks relief under Rule 60(b)(3) on the grounds that Defense counsel
allegedly committed misconduct, misrepresentation, and possibly fraud. See Fed. R. Civ. P.
60(b)(3). A party seeking relief under Rule 60(b)(3) must prove by clear and convincing
evidence that “(1) the party maintained a meritorious claim . . . and (2) because of the fraud,
misrepresentation or misconduct of the adverse party[] (3) the party was prevented from fully
and fairly presenting its case[.]” Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995); Kaplan
v. City of Chi., No. 05 C 2001, 2009 WL 1940789, at *2 (N.D. Ill. July 6, 2009).
The basis for Plaintiff’s motion is Defense counsel’s use of a photograph depicting the
location of Plainitiff’s arrest and search during closing arguments. Plaintiff contends that he was
“severely prejudiced by Defendants’ attorney’s argument that an exhibit, a photo, conflicted with
Plaintiff’s testimony.” (Dkt. No. 169 at 4.) He argues that the photograph “had never been
introduced into evidence, had never been authenticated, and had never once been disclosed in the

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course of litigation.” (Id.) Furthermore, Plaintiff contends that Defense counsel intentionally
misrepresented the purposes for which she planned to use the photograph. Although Defense
counsel had told Plaintiff’s counsel that she planned to use the photograph in closing arguments,
Plaintiff says that Defense counsel “claimed that she planned to use this photo only to ‘set the
scene’[.]” (Id. at 7.) Instead, Defense counsel relied upon the photograph to attempt to
undermine Plaintiff’s credibility. (Id. at 6–7.)
Relying on Lonsdorf, Plaintiff asserts that defense counsel’s alleged misconduct rendered
the trial unfair. (Id. at 4–8.) In Lonsdorf, a defendant in a sexual harassment case fraudulently
altered a document and presented it to his attorney. 47 F.3d at 897. Unaware that the document
had been altered, the attorney presented the document as evidence and relied upon it in his
closing argument to challenge the plaintiff’s credibility. Id. The plaintiff was not present for the
closing argument on advice of her therapist. Id. at 896. The Seventh Circuit found that the
plaintiff “was unfairly prejudiced by the closing argument . . . because it was based, in part, on
the altered [document].” Id. at 898. As a result, the Seventh Circuit granted the plaintiff a new
trial. Plaintiff argues that he is entitled to the same in this case.
We disagree for several reasons. First, Plaintiff failed to object to Defense counsel’s use
of the photograph at the relevant time for doing so—that is, during closing arguments. See
Gonzalez v. Volvo of Am. Corp., 752 F.2d 295, 298 (7th Cir. 1985) (holding that the relevant
time for objecting to “immoderate” comments during closing argument was “at the time the
immoderate comments were made”); Houskins v. Sheahan, 549 F.3d 480, 494 (7th Cir. 2008)
(holding that a plaintiff waived his objection to statements in defense counsel’s closing argument
by “fail[ing] to object to the statements at the time they were made”). Plaintiff’s counsel

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attempts to explain away her failure to object by stating that “no objection, even if sustained
could have cured the misrepresentation, the fraud and the misconduct that was occurring.” (Dkt.
No. 169 at 3.) But perceived futility is no excuse. Plaintiff’s counsel herself admitted on the
record that “it [was] my mistake for not objecting to [the photograph] at that time.” (11/19/10 12
p.m. Trial Tr. at 3.) This situation is thus different from the fraudulent tampering in Lonsdorf
because the alleged misconduct—Defense counsel’s improper reliance on the photograph as
evidence—was readily apparent during closing argument. Thus, Plaintiff’s counsel had an
obligation to object but failed to do so.
Furthermore, Plaintiff’s counsel was able to challenge Defense counsel’s reliance on the
photograph in her rebuttal argument. As she stated:
Now, ask yourselves why the defense attorneys didn’t ask [Plaintiff] about this
[photograph] on the stand . . . And the answer is because they know it shows nothing.
They wanted to wait until now when they can make something up. [Defense counsel]
could have asked [Plaintiff] about it on the stand, pointed it out to you when the evidence
was going on, which is not now. Now is argument, not evidence. But they chose not to
because they know it’s nothing.
(11/19/10 10 a.m. Trial Tr. at 10.) Thus, even if Defense counsel’s use of the photograph was
improper, Plaintiff’s counsel was able to mitigate any unfair prejudice by reminding the jury that
the photograph was “argument, not evidence.” Id. This case is thus noticeably different from
Lonsdorf, where the plaintiff’s attorney lacked any such opportunity to address the misconduct
before the jury. 47 F.3d at 896.
Despite Plaintiff counsel’s failure to timely object to the photograph, we also had the
opportunity to curtail any prejudice resulting from Defense counsel’s improper use of the
photograph. When the jury requested the photograph during their deliberations, we instructed
them that “[t]hat picture is not in evidence” and that, as a result, “[the Court] cannot give it to
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you [the jury].” The jury was also reminded that the photograph had been used for
“demonstrative purposes.” (11/19/10 12 p.m. Trial Tr. at 5.) We had also previously instructed
the jury that “the lawyers’ opening statements and closing arguments to you are not evidence”
and ought not be considered as such. (Dkt. No. 161, Jury Instructions, at 5.) “Jurors are
presumed to follow limiting instructions . . . and this presumption is only overcome if there is an
‘overwhelming probability’ that the jury was unable to follow the instruction as given.” Doe v.
Johnson, 52 F.3d 1448, 1458 (7th Cir. 1995) (citations omitted). Based on our direct charge to
the jury not to treat the photograph as evidence, we must presume that the jury did not do so.
Plaintiff has not carried his heavy burden of overcoming this presumption. Accordingly,
assuming, arguendo, that Defense counsel’s use of the photograph was improper, Plaintiff has
not shown that he “was prevented from fully and fairly presenting [his] case” as a result of this
impropriety.8 Lonsdorf, 47 F.3d at 897.
Finally, there was ample evidence besides the photograph upon which the jury could
have reached the verdict it did. Specifically, both officers Stinar and Glines testified that they
did not search Plaintiff’s car in the overly aggressive manner alleged. In a case like this one,
which involves highly disputed facts surrounding the simple issue of whether the search of
Plaintiff’s car was reasonable, the jury’s decision to rely on this testimony deserves considerable
deference. Latino, 58 F.3d at 314. We therefore hold that the verdict is not “against the weight
of the evidence” and Plaintiff is not entitled to a new trial. Kapelanski, 390 F.3d at 530.

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We caution Defense counsel not to interpret our refusal to grant Plaintiff a new trial as an endorsement of
her behavior. In the future, she ought to hew much further from the line of appearing to introduce new evidence in
her closing argument.

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III. CONCLUSION
Plaintiff’s motion to reconsider our February 1, 2010 summary judgment order is denied.
Plaintiff’s motion for relief from the final judgment entered on November 19, 2010 and for a
new trial is also denied.
IT IS SO ORDERED.

________________________________
Honorable Marvin E. Aspen
U.S. District Court Judge
Date: June 20, 2011

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