Robinson v. Bandy et al

Filing 111

MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 3/22/2012.(mr, )

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

EDDIE LEE ROBINSON,
Plaintiff,
vs.
AARON BANDY, MARCUS WIETTING,
and CITY OF JOLIET,
Defendants.

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Case No. 09 C 3844

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Pro se plaintiff Eddie Lee Robinson has sued the City of Joliet and two Joliet
police officers, claiming that the officers arrested him without probable cause, caused
him to be subjected to excessive bail, and discriminated against him based on his race
(African American).1 Robinson has asserted three claims under 42 U.S.C. § 1983
against the officers and a Monell claim against the city. All of the defendants now seek
summary judgment. For the reasons stated below, the Court grants defendants’ motion.
Background
On a motion for summary judgment, the Court construes all facts favorably to the
nonmoving party and makes reasonable inferences in that party’s favor. Eaton v. Ind.
Dep’t of Corr., 657 F.3d 551, 552 (7th Cir. 2011). The Court takes the following facts
from the parties’ memoranda of law and statements of uncontested facts.
The Court previously appointed counsel to represent Mr. Robinson but later (after
significant discovery had been done) granted counsel’s motion to withdraw based on
disagreements over strategy and other factors.

1

In the early hours of June 26, 2007, Robinson and Cynthia Clarke attended a
party at a friend’s house in Joliet. After the party, Robinson drove Clarke to her
apartment, where she invited him inside. When they arrived, Clarke’s acquaintance
Darryl Montgomery and Montgomery’s friend Dwight Swarn were in Clarke’s apartment.
Clarke testified that at some point that evening, Montgomery asked Robinson if he had
any drugs, and Robinson said he did not.
Clarke and Robinson eventually went into Clarke’s bedroom. Robinson asked if
he could stay the night, and Clarke said he could. Robinson and Clarke eventually went
to sleep on opposite sides of Clarke’s bed. Clarke was then awakened around 6 a.m.
by Montgomery, who told her that while she was unconscious, Robinson had been lying
on top of her and penetrating her sexually. Robinson denied this. Montgomery then
called the police and reported a sexual assault.
After receiving word of Montgomery’s call from the police dispatcher, Officer
Aaron Bandy arrived at the scene, followed by Officer Marcus Wietting. Wietting was
accompanied by Officer Jennifer O’Rourke, who at that time was still in training. The
officers testified that they spoke to Montgomery, Swarn, and Clarke, each of whom
stated essentially what Montgomery had earlier told Clarke. Clarke testified that she is
unsure what, if anything, she said to the officers because she has difficulty
remembering the incident. The officers also testified that when they spoke to Robinson,
he first told them that he had not had any sexual contact with Clarke that evening and
then said that there had been some consensual activity between them. The officers
testified that they believed that both Clarke and Robinson were under the influence of
alcohol.
2

Around 7 a.m., the officers placed Robinson under arrest, and Wietting and
O’Rourke took him to the Joliet police station. Paramedics took Clarke in an ambulance
to the hospital, where hospital personnel conducted a physical examination and
administered a sexual assault kit. Bandy went to the hospital as well. Gina Reiter, a
nurse who cared for Clarke at the hospital, testified that Clarke told her that she had
been raped by Robinson and another man in Robinson’s car while being driven away
from the party. Reiter also testified that the doctor who examined Clarke noted no
injuries or internal injuries and that she related all of this information to Bandy. Clarke
testified that at some point she told doctors that she had not been raped.
Also around 7 a.m., another officer arrived at Clarke’s apartment to look for
evidence. The officer filed a report later that day saying that his examination of Clarke’s
bed “for any kind of seminal or body fluids . . . met with negative results.” Pl. Ex. 3. The
officer then went to the police station to take a DNA sample from Robinson. The
sample, other materials taken from Clarke’s apartment, and Clarke’s sexual assault kit
were sent to the police crime laboratory for further analysis.
Clarke testified that she soon began to have doubts about Montgomery’s account
of the incident. Soon after the arrest (the record does not indicate on which day), she
went to the Joliet police station to attempt to retract her statement. She testified that
she spoke with a person at the front desk and said that she did not believe Robinson
had raped her, she had been drinking alcohol that night, and she had not been taking
the medication she was prescribed after being diagnosed with schizophrenia. She
testified that she did not speak to anyone else at the station and does not remember
what the person with whom she spoke said to her.
3

On June 27, 2007, the day after he was arrested, Robinson appeared via video
in Will County Circuit Court and was charged with criminal sexual assault, a class one
felony. The court assigned the public defender to represent him. The assistant public
defender who was present in court waived a Gerstein hearing and recommended that
Robinson waive his right to a preliminary hearing, which Robinson did. Upon the
prosecutor’s recommendation, the court set Robinson’s bond at $150,000. The court
cited the seriousness of the charge and Robinson’s criminal history, which according to
the prosecutor included at least seven prior arrests, including one for aggravated
assault in 2006, and six years of incarceration. The court then said that Robinson could
“file a written motion asking me to reduce the bond with a specific bond amount in mind,
but you would have to come up – it is a Class 1 Felony – with some substantial bond in
order to justify me lowering it.” Def. Ex. 8 at 5. Robinson testified that he could not see
from the video camera whether any of the officers who arrested him were present at this
hearing. The officers testified that they did not attend the hearing.
On October 12, 2007, the crime lab released a report stating that no bodily fluids
were identified from Clarke’s sexual assault kit and that there was “no analysis
necessary” of Robinson’s DNA sample. On October 18, 2007, upon a motion by
Robinson’s lawyer, the court reduced Robinson’s bond to $75,000 and released him
after his mother posted $7,500. On April 29, 2008, county prosecutors made a nolle
prosequi motion in his case, and the case was dismissed.
Robinson filed this lawsuit on June 25, 2009. He initially also sued two county
prosecutors, but the Court dismissed them based on the doctrine of absolute immunity.
Robinson later attempted to add O’Rourke as a defendant, but the Court determined
4

that claims against her were time-barred. Robinson also initially asserted state-law
claims for malicious prosecution and intentional infliction of emotional distress, which he
has since voluntarily dismissed.
Although the Court granted defendants’ request for an extension of time to file a
reply in support of their motion for summary judgment, they failed to submit a reply in
the time allotted and did not seek an extension of time. The Court has therefore ruled
on the motion based on defendants’ initial memorandum and Robinson’s response.
Discussion
Summary judgment is appropriate where the record shows that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a
matter of law. Lexington Ins. Co. v. Rugg & Knopp, Inc., 165 F.3d 1087, 1090 (7th Cir.
1999); Fed. R. Civ. P. 56(c). A court must construe all facts in the light most favorable
to the non-moving party and draw all reasonable and justifiable inferences in favor of
that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “The nonmoving
party must offer something more than a ‘scintilla’ of evidence to overcome summary
judgment . . . and must do more than ‘simply show that there is some metaphysical
doubt as to the material facts.’” Roger Whitmore’s Auto. Servs. v. Lake County, 424
F.3d 659, 667 (7th Cir. 2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).
Robinson has asserted claims against the individual defendants under 42 U.S.C.
§ 1983 for false arrest, excessive bail, and violation of equal protection. He has also
sued the city under section 1983 based on his allegation that there is a pattern or
practice of this type of police behavior.
5

Robinson has filed a “Motion to Stand on Verified First Amended Complaint,” in
which he asks the Court to consider a portion of his complaint along with his Local Rule
56.1 statement of facts. By his signed declaration under penalty of perjury that the
complaint is true, Robinson has “converted . . . those factual assertions in the complaint
that ‘[are] made on personal knowledge [and] set forth such facts as would be
admissible in evidence’ . . . into an affidavit.” Ford v. Wilson, 90 F.3d 245, 247 (7th Cir.
1996) (quoting Fed. R. Civ. P. 56(e)). The Court therefore grants Robinson’s motion
and will consider the assertions in the complaint that comply with Rule 56(e)’s
requirements along with the other evidence Robinson has submitted.
A.

False arrest and detention
In count one of his complaint, Robinson has asserted a claim under section 1983

that defendants violated his Fourth Amendment rights because “there was no probable
cause or other lawful justification” for his “arrest and extensive detention.” Am. Compl.
¶ 32.
“The actual existence of any probable cause to arrest precludes a § 1983 suit for
false arrest.” Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 762 (7th Cir. 2006)
(emphasis in original). “Probable cause to arrest requires an arresting officer to
possess knowledge from reasonably trustworthy information that would lead a prudent
person to believe that a suspect has committed a crime.” United States v. McCauley,
659 F.3d 645, 649 (7th Cir. 2011) (internal quotations and citation omitted). Under
Illinois law, a person commits the offense of criminal sexual assault, a felony, by
“commit[ing] an act of sexual penetration [with] force or threat of force [or] know[ledge]
that the victim is unable to understand the nature of the act or is unable to give knowing
6

consent.” 720 ILCS 5/11-1.20(a)(1), (2).2
At the outset, the Court makes two observations. First, Robinson cites a wide
variety of evidence in support of his contentions regarding probable cause. Much of this
evidence, such as Clarke’s later testimony that she does not believe Robinson raped
her and the negative test results from the sexual assault kit, supports the proposition
that no crime occurred. The probable cause inquiry, however, “depends on information
known to the police at the time, not on how things turn out.” Hebron v. Touhy, 18 F.3d
421, 423 (7th Cir. 1994). “[P]robable cause does not depend on the witness turning out
to have been right; it’s what the police know, not whether they know the truth, that
matters.” Sow v. Fortville Police Dept., 636 F.3d 293, 302 (internal quotation marks and
citation omitted).
Second, although defendants’ motion refers primarily to the question of probable
cause at the time of arrest, the complaint and the substance of Robinson’s argument
concern the circumstances of his arrest and his subsequent detention, each of which
can support a Fourth Amendment claim. The Court will therefore consider whether a
reasonable jury could find that the officers lacked probable cause based on the facts
known to them, first, at the time of Robinson’s arrest, and second, between his arrest
and his first court appearance. See Garcia v. City of Chicago, 24 F.3d 966, 970 n.6 (7th
Cir. 1994) (noting that the Fourth Amendment no longer governs a person’s detention
after a Gerstein hearing).
To establish probable cause, “[t]he officers must have more than a bare

At the time of Robinson’s arrest, this provision was codified at 720 ILCS 5/12-13(a).

2

7

suspicion that they have the right guy, but they need not have enough evidence to
support a conviction or even to show that their belief is more likely true than false.” Fox
v. Hayes, 600 F.3d 819, 833 (7th Cir. 2010). “When an officer receives information from
a third party whom it seems reasonable to believe is telling the truth, the officer has
probable cause to effectuate an arrest.” Sow, 636 F.3d at 302. The Seventh Circuit
has found probable cause to arrest based on an officers’ receipt of “questionable” and
“uncorroborated citizen complaints.” Woods v. City of Chicago, 234 F.3d 979, 997 (7th
Cir. 2000).
Bandy, Wietting, and O’Rourke all related essentially the same sequence of
events leading up to Robinson’s arrest. According to the officers, Bandy arrived and
spoke briefly to all four of the people in Clarke’s apartment, then Wietting and O’Rourke
arrived and were met by Montgomery. One or more officers then spoke to each of
Montgomery, Swarn, Clarke, and Robinson. Montgomery and Swarn both stated that
Swarn, while passing Clarke’s room, saw Clarke unconscious and Robinson on top of
her engaged in an act of sexual penetration. Swarn then brought Montgomery over to
see, at which point Montgomery woke Clarke, pushed Robinson away, and called the
police. The officers stated that Clarke said multiple times that Robinson had raped her.
The officers also stated that Robinson initially said he and Clarke had not done anything
but then changed his story to state that they had engaged in some consensual sexual
activity.
Robinson maintains that the officers gave differing accounts of the events at the
apartment and argues that these conflicts give rise to a genuine issue of material fact
that precludes summary judgment. But “minor ambiguities . . . do not relieve the plaintiff
8

of the burden of presenting affirmative evidence to support [his] case.” Tom v. Voida,
963 F.2d 952, 961 (7th Cir. 1992). Although the officers’ accounts differ slightly
regarding whom they spoke to and when, the differences do not amount to anything
beyond minor ambiguities. More importantly, the substance of their testimony regarding
what they heard and from whom is consistent.
Robinson asserts that the officers should not have believed anything Clarke said
because Bandy testified that he was familiar with 911 calls from Clarke that indicated
that she might not be reliable. Robinson also maintains that Clarke did not, in fact, tell
the officers that she had been raped. Clarke’s deposition contains varying descriptions
of the events in question. She stated twice that she did not speak with any officers
before being taken to the hospital. Clarke Dep. at 19:21-23, 54:6. On the other hand,
she answered “no” to the question of whether she would “have any reason to dispute a
female officer if she said she spoke to you about this case that morning at your
residence,” saying, “[i]t probably is that I just don’t recall.” Id. at 52:18-24. Later in her
deposition, she indicated that she did not fully recall the incident, she had been under
the influence of alcohol and had failed to take her medication, and “most likely, [she]
probably did tell an officer” that she awoke to find Robinson on top of her. Id. at 62:1116.
Even assuming that Clarke said nothing to the officers or they did not find her
statements credible, Robinson has not presented any evidence indicating that
Montgomery and Swarn did not relate to the officers what the officers claim they said.
Instead, Robinson argues that Montgomery and Swarn were insufficiently reliable,
primarily because he claims they had been drinking or using drugs. When Wietting was
9

asked if Montgomery had appeared intoxicated, he said, “I believe everybody involved
had been drinking.” Wietting Dep. at 9:5-7. A reasonable jury could construe this as an
admission that Montgomery was visibly under the influence of alcohol. Wietting then
stated, however, that Montgomery did not appear to be under the influence of anything
else. Although Robinson claims that Montgomery and Swarn had used other drugs that
evening, there is no evidence from which a reasonable could find that this or the
influence of alcohol was reflected in their demeanor to such a degree that it was
“[un]reasonable to believe [they were] telling the truth,” see Sow, 636 F.3d at 302,
particularly in light of the fact that they both told the officers essentially the same thing.
“[I]n crediting the complaint of a reasonably believable witness or putative victim,
the police are under no constitutional obligation to exclude all suggestions that the
witness or victim is not telling the truth.” Beauchamp v. City of Noblesville, 320 F.3d
733, 743 (7th Cir. 2003); see also Pasiewicz v. Lake County Forest Preserve Dist., 270
F.3d 520, 525 (7th Cir. 2001) (finding probable cause when “there was no indication that
the [eyewitnesses] were lying, or that their information otherwise was not credible or
accurate”); Spiegel v. Cortese, 196 F.3d 717, 725 (7th Cir. 1999) (“The credibility of a
putative victim or witness is a question, not for the police officers in the discharge of
their considerable duties, but for the jury in a criminal trial.”). Although a reasonable jury
could find from the evidence that Montgomery and Swarn had been drinking and were
in an excited state, there is nothing to indicate that they were incoherent, seriously
inconsistent, or otherwise obviously lying.3 See Spiegel, 196 F.3d at 725 (“We refuse to

3

During Bandy’s deposition, he was shown a “call log” that was prepared by the police
(continued...)

10

require law enforcement officers to delay arresting a suspect until after they have
conclusively resolved each and every inconsistency or contradiction in a victim’s
account.”).
Moreover, “a report of questionable reliability” does not obligate an officer to
discount the report entirely, only to “investigate” before relying on it in order to arrest.
See Hebron, 18 F.3d at 423. In this case, the officers did not rely only on the 911 call or
on what Montgomery initially told Wietting and O’Rourke outside the house. They
followed up by talking again to Montgomery, talking to Swarn, who gave the same story,
and talking to Robinson, who gave inconsistent explanations (and who has admitted
that he does not recall much of the incident because he was also under the influence of
alcohol). The officers were entitled to find that Montgomery and Swarn’s account of the
events were “more credible than [Robinson’s] denial,” Reynolds v. Jamison, 488 F.3d
756, 762 (7th Cir. 2007), and there is no evidence that they did not come to this
conclusion at the time. In any event, Robinson admitted prior to his arrest having had
sexual contact with Clarke, and it was reasonable for the officers to take his shifting
account as evidence of his guilt. Fox, 600 F.3d at 836. The Court concludes that the
statements by Montgomery and Swarn provided the officers with probable cause to
arrest Robinson.

3

(...continued)

dispatcher, describing Montgomery’s 911 call. Bandy testified that the log contained a
code indicating that someone believed that Montgomery “might be crazy.” Bandy Dep.
at 17:18-19. Bandy testified, however, that he had not seen the document before his
deposition and did not know who determined that the call merited the code. There is no
indication that Bandy had access to this information while at Clarke’s apartment, and, as
the Court has explained, no indication that Montgomery’s behavior when he spoke to
the officers rendered him obviously untrustworthy.
11

The Court’s consideration of the existence of probable cause, however, does not
end as of the moment Robinson was arrested. “The continuation of even a lawful arrest
violates the Fourth Amendment when the police discover additional facts dissipating
their earlier probable cause.” BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986). In
BeVier, the Seventh Circuit considered the case of a couple arrested for child neglect.
The court concluded that probable cause had dissipated when an “experienced
investigator of child abuse and neglect for the DCFS” told a police officer that the
circumstances he described “did not appear to be a violation of the child neglect
statute.” Id. The court also cited a case in which confirmation from a landlord that a
defendant lived in an apartment removed probable cause to believe that the defendant
had attempted burglary. Id. (citing People v. Quarles, 88 Ill. App. 3d 340, 410 N.E.2d
497 (1980)).
The evidence Robinson cites that might be considered to have had some effect
on the officers’ probable cause finding includes Clarke’s statement that she had been
diagnosed with schizophrenia, the fact that she stated at the hospital that she had not
been raped and then said that she had been raped in a car rather than in the apartment,
and the fact that the doctor who examined her failed to find injury. Robinson also cites
the fact that the officer who examined Clarke’s apartment for physical evidence filed a
report on June 26 saying that he had not found any. Finally, Clarke went to the police
station to attempt to retract her story.
The record does not clearly show on which day Clarke went to the station, and it
therefore allows for the inference in Robinson’s favor that this occurred later on the day
of his arrest. There is no indication, however, that the information that Clarke attempted
12

to give at the police station ever reached Bandy or Wietting. Neither officer stated that
he knew about it. Clarke testified that she did not remember with whom she spoke and
that she did not believe she spoke with anyone other than the officer at the front desk.
Clarke Dep. at 26:19-27:5. Robinson asserts that “the police officers at the station
refused to allow” Clarke to retract her story, but Clarke’s testimony (including the portion
Robinson cites in support of this assertion) was only that she could not remember what
the officer at the station said to her. Pl.’s L.R. 56.1 Stmt. ¶ 34; Clarke Dep. at 27:8,
94:5. There is no evidence from which a reasonable jury could find that Bandy or
Wietting were aware that Clarke had come to the station to say that she did not believe
that Robinson raped her.
Assuming that Bandy and/or Wietting knew of the remaining evidence that
Robinson cites – that Clarke was schizophrenic and had given varying and uncertain
accounts at the hospital, that she did not exhibit any signs of injury, and that no physical
evidence was immediately visible at the scene – the Court nonetheless concludes that
this was not enough to obviate probable cause. None of the evidence is inconsistent
with the possibility that Montgomery and Swarn were telling the truth. Bandy’s
knowledge of Clarke’s mental illness and reputation for unreliability would support,
rather than negate, a conclusion that he should rely on the statements from the other
witnesses at the scene. Clarke’s statement to Reiter that she was raped in a car, while
inconsistent with what the officers had previously heard, still indicated that Robinson
had raped her. Robinson was alleged to have committed sexual assault while Clarke
was unconscious, rather than through violence, which could explain the absence of
visible physical injury. Finally, a lack of visible physical evidence at the scene in no way
13

indicated that evidence would not be discovered later through testing or from the sexual
assault kit.
The Court concludes that there is no evidence from which a reasonable jury
could find that facts within Bandy and Wietting’s knowledge dissipated the existence of
probable cause prior to the time of Robinson’s initial court hearing. Thus, there is no
evidence from which a reasonable jury could find that his arrest or his detention violated
the Fourth Amendment.
For these reasons, the Court grants summary judgment in favor of Bandy and
Wietting on count one.
B.

Excessive bail
In count two of Robinson’s complaint, he asserts that the officers failed to

disclose “exculpatory information” to prosecutors, thereby causing him to be subject to
excessive bail in violation of the Eighth Amendment. He admits that he has no
evidence that the officers recommended a particular bail amount. Robinson Dep. at
23:4-14. His argument is essentially that if Bandy’s police report had included all the
information described in the previous section, in particular regarding Clarke’s conflicting
testimony from the hospital and the results of her initial physical examination, the
prosecutors would have had no cause to charge Robinson with a crime, and he
therefore would not have been subject to any bail at all.
Defendants correctly argue that this claim fails because Robinson has provided
no evidence that the officers were involved in the decision to set his bail. See Ester v.
Bonar, No. 98-1216, 1999 WL 332715, at *1 (7th Cir. May 24, 1999) (affirming grant of
summary judgment for police officer when there was no evidence of personal
14

involvement in setting bail); see also United States v. Giangrosso, 763 F.2d 849, 851
(7th Cir. 1985) (“The prohibition of excessive bail . . . means simply ‘that bail shall not
be excessive in those cases where it is proper to grant bail.’”) (quoting Carlson v.
Landon, 342 U.S. 524, 545-46 (1952)). In addition, Robinson has offered no evidence
from which a reasonable jury could find that the officers had any influence over the
judge’s bail determination. See, e.g., Green v. Mayfield, No. 3:08-CV-2297, 2009 WL
230161, at *3 (N.D. Tex. Jan. 29, 2009) (“[S]etting the amount of bail is purely a
discretionary judicial function.”); Smith v. Scott County Jail, No. 1:06-CV-145, 2007 WL
586801, at *2 (E.D. Mo. Feb. 21, 2007); Ferebee v. Smith, No. CIV 04-5123, 2006 WL
3423903, at *12 (D.S.D. Nov. 28, 2006) (“Plaintiff has not presented evidence that
[arresting officer] had any part in the magistrate’s decision regarding bond after the
Plaintiff’s arrest.”).
For these reasons, the Court grants summary judgment in favor of Bandy and
Wietting on count two.
C.

Equal protection
In count three of his complaint, Robinson asserts that the officers intentionally

discriminated against him on the basis of his race and socioeconomic status, in violation
of his Fourteenth Amendment right to equal protection. Robinson argues that Bandy
and Wietting failed to comply with police department orders governing follow-up
investigations and the treatment of evidence before trial, thereby denying him rights
“accorded to similar arrestees.” Pl.’s Resp. at 18. He argues further that defendants
must have discriminated because they “cannot point to any information in the record to
show that they equally use statements from known mentally disturbed individuals to
15

commence and continue a criminal prosecution proceedings [sic] against a non-African
American male arrestee accused of committing . . . sexual assault.” Id. at 19.
The Seventh Circuit has stated that plaintiffs seeking relief under section 1983 for
a denial of equal protection must “prove that the defendants’ actions had a
discriminatory effect and were motivated by a discriminatory purpose.” Chavez v.
Illinois State Police, 251 F.3d 612, 635-36 (7th Cir. 2001). The court has also stated
that plaintiffs may succeed on such a claim if they “come forward with evidence from
which a jury could conclude (1) they were members of a protected class; (2) they were
similarly situated to members of an unprotected class in all relevant respects; and (3)
they were treated differently from members of the unprotected class.” Harvey v. Town
of Merrillville, 649 F.3d 526, 531 (7th Cir. 2011). Robinson has not produced evidence
from which a reasonable jury could find that he has satisfied either standard.
Robinson essentially admits that he has no direct evidence that the officers were
motivated by a discriminatory purpose. His deposition contains the following exchange:
Q: How would Officers Bandy and Wietting know what your socioeconomic class
status was?
A: I have no idea.
Q: Do you think they knew what it was?
A: Perhaps.
Q: How would they know that?
A: I have no idea.
Q: So this is an assumption on your part that they knew what your economic
status was at the time of the arrest?
A: Yeah.
16

Q: You’re not basing it on any evidence or any statements or actions that they
took on that morning other than the simple fact you got arrested?
A: Well, like I said, that’s what I think.
Q: Okay. What actions lead you to believe they discriminated against you based
on your racial nationality?
A: Because I was Afro American. Black.
Q: Did they make any statements that would lead you to believe they arrested
you based on that?
A: I couldn’t hear what they were saying and couldn’t figure it out so, you know, I
mean maybe they did.
Q: Are you aware of any actions they took that morning that would lead you to
believe that they took action based on your race other than the simple fact that
you were arrested?
A: Yeah.
Q: What actions were those?
A: I mean they – well, they arrested me for it and I didn’t do it. I mean . . .
Q: So the fact that you were arrested and the fact that you are African American,
that’s the basis for why they discriminated against you are those two factors
combined?
A: I think so.
Robinson Dep. 80:8-81:22. The Court concludes that Robinson has offered no direct
evidence of discrimination.
The sole piece of evidence Robinson offers to support his contention that
similarly situated individuals were treated differently is a list of names of people arrested
by the Joliet Police Department under suspicion of criminal sexual assault. Robinson
argues that defendants have “not made a part of the record any facts to show that
[those individuals] were treated in the same manner as” Robinson. Pl.’s Resp. to Def.’s
17

L.R. 56.1 Stmt. ¶ 38. This, like the contention in Robinson’s brief that defendants “have
not pointed to any information in the record to suggest that defendants did not
intentionally deprive Plaintiff Robinson of his rights to equal protection of the laws,” Pl.’s
Resp. at 19, confuses the standard for summary judgment. At this stage of the case, it
is Robinson who is required to offer “support for [his] allegations” in the form of
evidence. Mosley v. City of Chicago, 614 F.3d 391, 400 (7th Cir. 2010). He has not
done so. Robinson’s contention appears to be that the other individuals arrested in
Joliet were of a different race or socioeconomic status than he is and were therefore
treated differently, but he offers no evidence whatsoever regarding the race,
socioeconomic status, or treatment of anyone on the list.
In an equal protection case, the “plaintiff bears the burden of proof on the
constitutional deprivation that underlies the claim, and thus must come forward with
sufficient evidence to create genuine issues of material fact to avoid summary
judgment.” Harvey, 649 F.3d at 530 (internal quotation marks and citation omitted).
Robinson has not met this burden. The Court therefore grants summary judgment in
favor of Bandy and Wietting on count three.
D.

Monell claim
If a municipality’s policies lead to a violation of a plaintiff’s constitutional rights,

the plaintiff may hold the municipality itself liable under section 1983. Monell v. Dep’t of
Social Servs. of the City of New York, 436 U.S. 658, 694-95 (1978). When there is no
underlying constitutional violation, however, there can be no liability on the part of the
municipality. Tesch v. County of Green Lake, 157 F.3d 465, 477 (7th Cir. 1998).
“[N]either Monell . . . nor any other [case] authorizes the award of damages against a
18

municipal corporation based on the actions of one of its officers when . . . the officer
inflicted no constitutional harm.” City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986).
Because the Court has concluded that no reasonable jury could find that Bandy
and Wietting violated Robinson’s constitutional rights, Robinson’s Monell claim fails as
well. The Court therefore grants summary judgment in favor of the City of Joliet on
count six of Robinson’s complaint.
Conclusion
For the reasons stated above, the Court grants plaintiff’s motion to stand on his
verified complaint [docket no. 91] and defendants’ motion for summary judgment
[docket no. 74]. Plaintiff’s remaining motions are terminated as moot [docket nos. 106 &
107]. The Clerk is directed to enter judgment in favor of defendants.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: March 22, 2012

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