Marcinczyk v. Plewa et al

Filing 109

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 4/25/2012: Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SLWIA MARCINCZYK,

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Plaintiff,
v.
CHICAGO POLICE OFFICER
SLAWOMIR PLEWA, et al.,
Defendants.

No. 09 C 1997

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant City of Chicago’s (City) motion
for summary judgment. For the reasons stated below, the motion is denied.

BACKGROUND
Defendant Bogdan Mazur (Mazur) is allegedly Plaintiff Sylwia Marcinczyk’s
(Marcinczyk) former husband. At the time of the incident in question, Marcinczyk
was allegedly engaged in divorce proceedings with Mazur, which involved the
custody of their two minor children and their joint business. On or about April 1,
2007, Defendant Officer Slawomir Plewa (Plewa), an officer for the City police

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department (Department), and other City police officers allegedly stopped a vehicle
(Vehicle) being driven by Marcinczyk. Plewa was allegedly acting based on a tip
from an anonymous confidential source (Confidential Informant) indicating that
illegal drugs and a weapon were in the Vehicle. The Vehicle was allegedly searched,
a gun and illegal drugs were allegedly discovered in the Vehicle, and Marcinczyk
was arrested.
Marcinczyk contends that Plewa conspired with Mazur to plant the gun and
illegal drugs in the Vehicle. At Marcinczyk’s criminal trial, Plewa allegedly testified
that he had never met Mazur and that Mazur was not the Confidential Informant.
Marcinczyk contends that the statements Plewa made at trial were not true.
Marcinczyk brought the instant action and includes in her complaint claims
alleging unlawful seizure brought pursuant to 42 U.S.C. § 1983 (Section 1983)
(Count I), Section 1983 false arrest/imprisonment claims (Count II), state law false
arrest/imprisonment claims (Count III), state law malicious prosecution claims
(Count IV), state law intentional infliction of emotional distress claims (Count V),
claims brought against City supervisors and a Section 1983 Monell claim (Count VI),
and indemnification claims (Count VII). The City, Defendant Philip Cline (Cline),
Defendant Tisa Morris (Morris), and Defendant Debra Kirby (Kirby) moved to
dismiss the supervisory liability claims and the Monell claim. On July 8, 2011, the

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court granted the motion to dismiss the claims brought against Cline, Morris, and
Kirby, and denied the motion to dismiss the Monell claim. The City now moves for
summary judgment on the Monell claim.

LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A
“genuine issue” of material fact in the context of a motion for summary judgment is
not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue
of material fact exists when “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In
ruling on a motion for summary judgment, the court must consider the record as a
whole, in the light most favorable to the non-moving party, and draw all reasonable
inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v.
Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

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DISCUSSION
The City argues that Marcinczyk has failed to point to sufficient evidence for
the Monell claim. A local governmental entity can only be held liable for an
unconstitutional act “if the unconstitutional act complained of is caused by: (1) an
official policy adopted and promulgated by its officers; (2) a governmental practice
or custom that, although not officially authorized, is widespread and well settled; or
(3) an official with final policy-making authority.” Thomas v. Cook County Sheriff’s
Dept., 604 F.3d 293, 303 (7th Cir. 2010).

I. Weighing Merits of Case
The City argues that Marcinczyk has not presented evidence to show that any
City policy or practice existed. According to the City, Marcinczyk “fails to adduce
any evidence that th[e] alleged customs and practices exist. . . .” (Mem. SJ 9).
However, the City’s statement is contradicted by the record in this case. For
example, in addition to other evidence, Marcinczyk has pointed to certain statistical
records and public records, which are circumstantial evidence that support
Marcinczyk’s contention that certain customs and practices exist. In arguing that
Marcinczyk has produced no evidence, the City discounts and discredits all the

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evidence produced by Marcinczyk and would thus have the court deem such
evidence worthy of little or no weight. While the City may dispute the accuracy of
the evidence presented by Marcinczyk, or the weight to be given to such evidence, it
is nonetheless evidence. The Seventh Circuit has made clear that “at the summary
judgment stage, ‘the judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.’” Shaffer v. American Medical Ass’n, 662 F.3d 439, 443 (7th Cir.
2011)(quoting Anderson, 477 U.S. at 249); Costello v. Grundon, 651 F.3d 614, 636
(7th Cir. 2011)(stating that “[o]n summary judgment, a court may not weigh the
evidence or decide which inferences should be drawn from the facts”); A. Kelley’s
Garage, Inc. v. Village of Stone Park, 2005 WL 991768, at *4 (N.D. Ill.
2005)(explaining that “[a]t the summary judgment stage [the court] cannot act as the
trier of fact and judge the case on the merits,” and indicating that the court merely
found “that there [were] sufficient genuinely disputed facts to proceed onward to
trial”); see also Arias v. Allegretti, 2008 WL 191185, at *3 (N.D. Ill. 2008)(denying
City’s motion for summary judgment and noting that “[t]he City’s argument that
[certain] conclusions are unreliable because he relied on a de minimus sample goes to
the weight of his testimony, not its admissibility”). Thus, in discounting the
evidence pointed to by Marcinczyk, the City is improperly seeking through summary

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judgment to have the court act as the trier of fact and weigh the merits of
Marcinczyk’s Monell claim.

II. Materials Not Produced During Discovery
The City argues that certain evidence pointed to by Marcinczyk in opposition
to the instant motion was not properly disclosed during discovery. The City argues
that it is at a disadvantage because it could not adequately investigate matters relating
to the newly disclosed evidence. The evidence at issue appears to be records that are
all of public record and relate directly to the City. Marcinczyk has not been given an
opportunity to respond to the City’s accusations relating to discovery, since the City
has not filed a proper motion to bar the introduction of such discovery. Had the City
done so, the court would have set a briefing schedule and provided Marcinczyk with
an opportunity to respond. In addition, the City has provided only a general
statement that it might be disadvantaged because it might want to conduct additional
discovery, “if necessary,” based on the new evidence. (Reply 2-3). The City fails to
identify any specific need to conduct additional discovery. Also, the evidence
referenced by Marcinczyk is public record and there does not appear to be any reason
why the City would be unaware of such evidence or be unduly surprised by the
existence of such evidence. The City also contends that Marcinczyk has failed to

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identify the witnesses that she will use to introduce certain evidence. However, the
City has failed to bring any motion relating to such a discovery issue. Therefore, for
the purposes of the instant motion, the court will consider all of the evidence.

III. Quality of Opposition Brief
The City argues that the court should deny Marcinczyk’s motion in part
because, in the City’s opinion, Marcinczyk’s opposition brief is not well-written or
organized. The City contends, for example, that Marcinczyk “throws a lot of
information at the wall and hopes something sticks, but in no way does she explain
how and why this information supports her claim.” (Mem. SJ 13). The City also
contends that Marcinczyk “drops a pile of documents on the Court’s doorstep and
rests on the hope that the judge will explicate the arguments and find proof therein
which [Marcinczyk] has not specifically identified.” (Reply 3). However, as
indicated above, a motion for summary judgment raises the issue of whether there is
a genuine issue as to any material fact. Fed. R. Civ. P. 56(c). A motion for summary
judgment is not a proper vehicle to resolve whether a brief could have been written
or organized in a better fashion. In addition, although the City opines that
Marcinczyk’s opposition brief is not well-written, the Court had no difficulty in fully
understanding all of the arguments presented by Marcinczyk and the specific

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evidentiary bases for Marcinczyk’s arguments.

IV. Evidence to Support Monell Claim
The City argues that Marcinczyk has not pointed to sufficient evidence to
support a Monell claim. The City argues that the alleged policy or practice put forth
by Marcinczyk relating to a failure to train and supervise is too broad and vague.
However, Marcinczyk has made clear at this juncture that the only practice that she is
basing her Monell claim on is the City’s alleged practice of failing to conduct proper
investigations of allegations of police misconduct and failing to effectively discipline
police officers for misconduct. (Ans. SJ 9-10, 13). Marcinczyk contends that the
alleged City practice created a belief among City police officers that they could act
with impunity when they violated the law, such as in this case where Plewa is alleged
to have attempted to frame Marcinczyk. Marcinczyk argues that the consistent lack
of effective investigation into complaints about police misconduct and the lack of
effective discipline of officers for police misconduct engendered in the minds of
officers such as Plewa a belief that they faced little risk of material harm when they
used their official position to violate the law. Marcinczyk argues that such alleged
practice by the City resulted in the alleged blatant and egregious abuse of official
authority by Plewa when he allegedly attempted to frame Marcinczyk for a crime she

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did not commit.
The City also argues that Marcinczyk has provided evidence only relating to a
“single incident,” namely the alleged misconduct by Plewa in this case. (Mem. SJ 9).
The City argues that evidence of one instance of misconduct does not show a policy
or practice on the part of the City. Again, however, the City is discounting the
evidence contained in the record that is pointed to by Marcinczyk. Marcinczyk has
provided evidence relating to the City’s investigation of police misconduct and
discipline of police officers for misconduct relating to instances and officers other
than those at issue in this case. For example, Marcinczyk has presented documentary
evidence indicating that only a minuscule percentage of civil rights complaints are
found to be meritorious after investigations and that officers who have complaints
lodged successfully against them are subject to only minimal discipline. Marcinczyk
has also produced evidence from public hearings that were held by the City to
specifically address the problem of police misconduct and the lack of effective
investigation into complaints of police misconduct and lack of discipline of officers
found to have committed misconduct. Marcinczyk has also shown that testimony
was presented at those hearings on such issues. Marcinczyk has also produced
evidence relating to an official resolution by the City Police Committee (Committee).
It is undisputed that the Committee recognized that City “police officers who do not

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carry out their responsibilities in a professional manner have ample reason to believe
that they will not be held accountable, even in instances of egregious misconduct.”
(SAF Par. 24). Marcinczyk has also presented official reports prepared by the City
that addresses the issue of police misconduct.
The City also argues that it believes that some of the evidence pointed to by
Marcinczyk actually supports the City’s position instead of Marcinczyk’s position.
(Reply 10-11); (R SAF Par. 24). However, that argument merely emphasizes that
there are genuinely disputed material issues that need to be resolved by a jury at trial.
The jury will be able to evaluate the evidence and decide whether the evidence
shows what Marcinczyk contends that it shows or whether the evidence shows what
the City contends that it shows. At trial, the City will be able to present a defense
and introduce evidence. The City will also have the opportunity to argue during
closing arguments what the City believes that the evidence presented at trial shows.
Based upon the unique facts in this case, Marcinczyk has pointed to sufficient
evidence that could lead a reasonable trier of fact to conclude in this case that Plewa
knowingly became involved in the scheme with Mazur to frame Marcinczyk for a
crime she did not commit in order to adversely impact Marcinczyk’s custody of her
children and her business interests. The City argues that Marcinczyk must show that
there is a policy or practice that can be attributed to the City, which led to the

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misconduct alleged in this case. Marcinczyk is not speculating in this case that some
broad and far-removed practice by the City, such as a deficiency in the police officer
hiring process, ultimately led to the alleged misconduct in this case. In this case,
Marcinczyk contends that Plewa blatantly abused his official powers to attempt to
frame an individual for a crime she did not commit. Marcinczyk asserts that Plewa
would not have been willing to risk such an egregious violation of the law had he
feared that his alleged misconduct would be properly investigated and, if discovered,
that he would face serious disciplinary consequences. Marcinczyk has presented
sufficient evidence for a reasonable trier of fact to infer that the moving force
underlying Plewa’s alleged misconduct was a belief that his misconduct would not
be discovered and that, even if discovered, he would not face any effective
disciplinary action resulting from such misconduct. Marcinczyk has presented
sufficient evidence to show that Plewa’s belief was based upon the alleged City
practice at issue in this case. Marcinczyk is not required at this juncture to establish
causation by a preponderance of the evidence. It is sufficient that a reasonable trier
of fact could find that causation exists.
The court is not making any finding as to whether or not Marcinczyk’s Monell
claim has merit. As indicated above, the court is not acting at this juncture as the
trier of fact. The court is merely concluding that Marcinczyk has presented sufficient

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evidence that the Monell claim should be resolved at trial by the jury. It will be
incumbent upon Marcinczyk at trial to establish by a preponderance of the evidence
that Plewa engaged in the misconduct alleged by Marcinczyk, that a policy or
practice existed at the City, and that such policy or practice was the moving force
behind the alleged misconduct. Therefore, based on the above, the City’s motion for
summary judgment on the Monell claim is denied.

CONCLUSION
Based on the foregoing analysis, the City’s motion for summary judgment on
the Monell claim is denied.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: April 25, 2012

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