Martin et al v. City of Chicago et al
Filing
134
MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 4/12/2011:Mailed notice(keg, )
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
)
TERESA MARTIN and PETE MASON,
)
individually and as the parents and guardians)
on behalf of PIERRE MASON and PARIS )
MASON, minors,
)
)
Plaintiffs,
)
)
v.
)
)
CITY OF CHICAGO, JAMES OBALDO )
(Star #12267), STEFAN SZUBSKI (Star
)
#4443), BELINDA BERNAL (Star #12254),)
MICHAEL CARROLL (Star #14575),
)
GERARDO QUINTERO (Star #5796),
)
WILLIAM LANGLE (Star #15098), PETER)
EDWARDS (Star # 5954), JOSEPH WHITE)
(Star #14338), et al.,
)
)
Defendants.
)
)
Case No. 09 C 1903
Judge Sharon Johnson Coleman
Magistrate Judge Susan Cox
MEMORANDUM OPINION AND ORDER
Plaintiffs Teresa Martin and Pete Mason filed a Third Amended Complaint on behalf of
themselves and their two minor sons, Pierre Mason and Paris Mason, alleging excessive force,
failure to intervene and illegal search in violation of §1983 as well as an Illinois state law claim
for battery and indemnity. Defendant police officers and the City of Chicago filed for summary
judgment [111] pursuant to Federal Rule of Civil Procedure 56(b) on the basis that plaintiffs
cannot show that any of the named officers were involved in the alleged incident. For the
reasons that follow, the motion is granted in part and denied in part.
Background
The basic facts are largely undisputed. Plaintiffs allege that on the evening of December
13, 2008, shortly before midnight, twin fourteen-year-old brothers Pierre and Paris Mason were
returning home from a party. (Third Am. Compl., Dkt. 105 at ¶3, 6.) The boys were walking
along 72nd Street to their home at 7250 S. Morgan St. in Chicago, Illinois. (Def. Local Rule
56.1(a)(3) Statement of Material Facts, Dkt. 113 at ¶6.) Pierre and Paris were wearing matching
black and red jackets. (Def. Response to Pl.’s Local Rule 56.1(b)(3) Statement of Additional
acts, Dkt. 131, ¶7.) As Pierre and Paris were walking, they saw a fight in the street and a crowd
gathering. (Id. at ¶2.) Pierre and Paris heard two shots and ran after the second shot. (Id. at ¶6.)
They ran south down the alley behind Morgan Street. (Id. at ¶8.) Pierre and Paris reached the
front porch of their home and began ringing the door bell. (Id. at ¶9.) A police officer came
through the gangway and a squad car pulled up in front of the house and two police officers got
out. ( Paris Mason Dep., Dkt. 113, Ex. C at 34.) Paris and Pierre testified in their depositions
that the officers had their weapons drawn and the boys raised their hands in the air. ( Paris
Mason Dep., Dkt. 113, Ex. C at 34; Pierre Mason Dep., Dkt. 113, Ex.D at 42.)
Paris and Pierre’s father, Pete Mason, opened the door as police officers were hitting
Pierre. (Pete Mason Dep., Dkt. 113, Ex. F at 44-45.) Paris testified that an officer slammed him
to the ground. (Paris Mason Dep., Dkt. 122, Ex. A at 40.) Paris, Pierre, and Pete all testified that
one of the officers was punching Pierre in the head and neck as he lay face down on the porch
with his hands cuffed behind his back. (Paris Mason Dep., Dkt. 122, Ex. A at 40; Pierre Mason
Dep., Dkt. 122, Ex. B at 48-49; Pete Mason Dep., Dkt. 113, Ex. F at 45, 58.) Paris and Pete
testified that the police officers slammed him to the ground and began beating him with an object
and with their fists. ( Paris Mason Dep., Dkt. 122, Ex. A at 47, 52; Pete Mason Dep., Dkt. 113,
Ex. F at 45, 50.) Pierre, Paris and Pete all testified that there were three white male officers on
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the porch and a white female police officer at the bottom of the steps. ( Pierre Mason Dep., Dkt.
122, Ex. B at 45, 51; Paris Mason Dep., Dkt. 122, Ex. A at 38-40; Pete Mason Dep., Dkt. 113,
Ex. F at 45, 55.) Pierre testified that at least two additional squad cars pulled up after the first
one. (Pierre Mason Dep., Dkt. 122, Ex. B at 72.) Paris testified that there were about four or five
police officers on the scene. ( Paris Mason Dep., Dkt. 122, Ex. A at 64.) Paris, Pierre and Pete
testified that only one female officer was on the scene and all the other officers were white men.
(See Paris Mason Dep., Dkt. 122, Ex. A; Pierre Mason Dep., Dkt. 122, Ex. B; Pete Mason Dep.,
Dkt. 113, Ex. F at 57.) Paris describe the female officer as having lighter color hair and glasses.
(Paris Mason Dep., Dkt. 122, Ex. A at 64). Pierre also testified that the female officer had
glasses. ( Pierre Mason Dep., Dkt. 122, Ex. B at 96.) One or two police officers entered the
home.( Paris Mason Dep., Dkt. 122, Ex. A at 41; Pierre Mason Dep., Dkt. 122, Ex. B at 91.) All
the officers on the scene were in Chicago Police uniforms. Paris, Pierre and Pete were
handcuffed for approximately thirty minutes before being released. Pete and Pierre were treated
at a hospital the following day. ( Pierre Mason Dep., Dkt. 122, Ex. B at 111.)
Legal Standard
A party is entitled to summary judgment if all of “the pleadings, the discovery and
disclosure materials of file, and any affidavits show that there is no genuine issue of material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When
deciding a motion for the Court construes all reasonable inferences in the light most favorable to
the non-moving party. Abdullahi v. City of Madison, 423 F. 3d 763, 773 (7th Cir. 2005) . The
party who bears the burden of proof on an issue may not rest on the pleadings or mere
speculation, but must affirmatively demonstrate that there is a genuine issue of material fact that
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requires a trial to resolve. Fed. R. Civ. P. 56(e); Celotex v. Catrett, 477 U.S. 317, 324 (1986).
Discussion
Defendants assert that they are entitled to summary judgment because (1) no evidence
satisfies section 1983's personal responsibility requirement for Counts I, II, and III; (2) no
evidence shows that the defendant officers touched plaintiffs in order to establish a battery claim
in Count IV; and (3) no underlying claim exists to establish liability derivatively against the
City. (Dkt. 112, at 3.) The basic premise of defendants’ argument is that none of the plaintiffs
have been able to positively identify any of the named police officers, and thus plaintiffs cannot
establish that any of these particular officers acted or failed to act with a deliberate or reckless
disregard of plaintiff’s constitutional rights. (Id.)
In addition to the depositions of Paris and Pierre Mason, plaintiffs proffer several Office
of Emergency Management and Communications’ (“OEMC”) documents in opposition to
defendants motion. Defendants object to the Court’s consideration of these documents on the
basis that without supporting testimony or affidavits the documents lack proper foundation.
Defendants cite Edwards v. Two Unknown Male Chicago Police Officers for the proposition that
the Court cannot make reasonable inferences merely from the face of these documents. See 623
F. Supp. 2d 940, 944 n.3 (N.D.Ill. June 8, 2009)(Bucklo, J.). In that case, Judge Bucklo stated,
with respect to a “Chicago Police Department Event Query” and “Chicago Police Department
Dispatch Audio Tape Transcript of July 16, 2006,” that “[w]ithout any accompanying affidavit
or testimony, I cannot discern what the event query document shows.” Id. However, this Court
has no knowledge or information about the evidence presented in Edwards relative to the
inference the plaintiff in that case was asking the Court to make. Edwards does not support the
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conclusion that OEMC event queries or dispatch printouts can never be used in support of
summary judgment.
Indeed, “[t]he evidence relied upon must be competent evidence of a type otherwise
admissible at trial.” Bombard v. Fort Wayne Newspapers, 92 F.3d 560, 562 (7th Cir. 1996).
However, evidence presented in opposition to a summary judgment motion “need not be in
admissible form, but it must be admissible in content.” Payne v. Pauley, 337 F.3d 767, 775 n.3
(7th Cir. 2003). Here, assuming plaintiffs lay a proper foundation at trial, the OEMC documents
offered by plaintiff to defeat the summary judgment motion are admissible and demonstrate a
genuine issue of material fact when examined in light of the other record evidence.
Nevertheless, nothing in the OEMC documents or the record presents any evidence that
defendant Officers Peter Edwards and Joseph White, Unit 4226D, were at 7250 S. Morgan on
the night of December 13, 2008. The only reference contained in the evidence offered by
plaintiff shows that Unit 4226D were at 7244 S. Sangamon Street on the night in question.
Accordingly, this Court grants summary judgment as to defendant Edwards and defendant
White.
This Court also grants partial summary judgment to defendant Officer Belinda Bernal.
Although the testimony from Pierre, Paris, and Pete Mason shows that only one female officer
was present on the scene and the OEMC documents indicate that Officer Bernal was that female
officer, all three testified in their depositions that the female officer did not participate in any of
the force used during the incident or the search of the home. ( Pete Mason Dep., Dkt. 113, Ex. F
at 57-58, 147-148; Paris Mason Dep., Dkt.113, Ex. C at 63-64, 69-70; Pierre Mason Dep., Dkt.
113, Ex. D at 95-100.) Therefore, this Court grants partial summary judgment to defendant
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Bernal on the allegations of excessive force, illegal search and battery.
With respect to the remaining defendants, Officers Carroll, Obaldo, Szubski, Langle, and
Quintero, plaintiff has presented sufficient evidence to show that these officers were at the
Mason home on the night in question. Defendant Officers Carroll and Obaldo are beat or unit
4222D. (Michael Carroll Ans. to Interrogs. Nos. 13-14 and James Obaldo Ans. to Interrogs. Nos.
13-14, Dkt.113-2, Ex. O, P.) At 11:54:41 p.m., unit 4222D was dispatched to a report of shots
fired. (OEMC Doc. FCRL 000134, Dkt. 122, Ex. C.) The dispatch report indicates that unit
4222D pursued males in black jackets with red writing running north of 73rd Street through an
alley on foot towards Morgan at 73rd. (OEMC Doc. FCRL 000134, Dkt. 122, Ex. C.) Pierre
testified in his deposition that the first officer grabbed him and struck him in the back of the
neck. (Pierre Mason Dep., Dkt. 122, Ex. B. at 48-49.) Pierre described the officer as male with
dark hair and wearing a Chicago Police Department uniform. (Id. at 45-46 and 50-51.) This
evidence is at least sufficient to support the inference that Officers Carroll and Obaldo were on
the scene and pursued Paris and Pierre Martin. Thus, summary judgment is denied with respect
to defendants Carroll and Obaldo.
Paris testified that one officer came through the gangway. (Paris Mason Dep., Dkt. 113-1,
Ex. C. at 63-64.) Paris testified that two more police officers joined the first officer on the porch.
(Paris Mason Dep., Dkt. 122, Ex. A. at 38-40.) Paris further testified that two more officers
arrived one male and one female. (Paris Mason Dep., Dkt. 113-1, Ex. C. at 64.) Officer Stefan
Szubski is Officer Bernal’s partner and they are unit/beat 4220D. (Belinda Bernal Ans. to
Interrogs. No. 16, Dkt.113-2, Ex. M.) Unit 4220D was at 7250 S. Morgan St. At 23:59:01 on
December 13, 2008. (OEMC Doc. FCRL 000134 and FCRL 001395, Dkt. 122, Ex. C.) Pierre
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Mason testified that at least two more police cars arrived at their house after the first three
officers arrived. (Pierre Mason Dep., Dkt. 122, Ex. B. at 72.) Unit 733, Officers Langle and
Quintero were at 7250 S. Morgan with unit 4220D. (OEMC Doc. FCRL 001395, Dkt. 122, Ex.
C.) The foregoing evidence places defendant Officers Szubski, Langle and Quintero at the
Mason home at 7250 S. Morgan St. on December 13, 2008.
Paris, Pierre, and Pete Mason testified in their depositions to police officers striking
Pierre and Pete. (Paris Mason Dep., Dkt. 122, Ex. A. at 40-41, 47, 52; Pierre Mason Dep., Dkt.
122, Ex. B. at 48-49; Dep. Pete Mason, Dkt. 113, Ex. F at 44-45.) Paris testified that a couple of
officers entered the house and went upstairs and searched the house for approximately 30
minutes.(Paris Mason Dep., Dkt. 122, Ex. A. at 41.) Pierre stated that his little sister’s room was
“wrecked” and there was mud on the carpet from boots. (Pierre Mason Dep., Dkt. 122, Ex. B. at
102.) Officers Obaldo and Carroll cannot deny that they had physical contact with Pierre, Paris
and Pete Mason. (See Michael Carroll Ans. to Interrogs. Nos. 12 and James Obaldo Ans. to
Interrogs. Nos. 12, Dkt.113-2, Ex. O, P.) Accordingly, whether defendants illegally searched the
house or used force on plaintiffs is a question for the jury.
Defendants urge this Court to follow the line of reasoning in Hessel v. O’Hearn, that
“proximity to a wrongdoer does not authorize punishment” under 42 U.S.C. §1983. 977 F.2d
299, 305 (7th Cir. 1992). However, this Court finds the case at bar more akin to the situation in
Okoro v. Bohman, No. 94 C 6343, 2001 U.S. Dist. LEXIS 14597 (N.D. Ill. Sept. 10, 2001). As
the Court stated in Okoro, “contrary to the defendant’s suggestion, the fact that Okoro learned
the names of most of the defendants through his trial attorney’s efforts does not necessarily mean
Okoro is lying. It is not at all difficult to imagine that in executing the arrest, the defendants
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failed to introduce themselves to the Okoros, and Okoro testified that he was unable to get a
good look at many of the defendants because, as they were searching his house and carting his
things away he was lying face down on the floor with his hands cuffed behind his back. The
evidence of the defendants’ participation in the arrest is sufficient to overcome defendants’
motion.” Okoro, 2001 U.S. Dist. LEXIS 14597 at *6.
Likewise, in the instant case it is not difficult to imagine that the officers on the scene did
not give their names, and that in the dark and chaos plaintiffs were unable to get a good enough
look at the several police officers on the scene, who were described with one exception as white,
male and in uniform, to identify them individually. Plaintiffs present sufficient evidence to place
the officers at the scene and overcome defendants’ motion, at least in part.
Conclusion
Based on the foregoing, defendants’ motion for summary judgment is granted as to Peter
Edwards and Joseph White. Partial summary judgment is granted in favor of Belinda Bernal.
Defendants’ motion is denied for the remaining defendants.
IT IS SO ORDERED.
Date: April 12, 2011.
ENTERED:_______________________________
Sharon Johnson Coleman
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