Villanueva v. Town Of Cicero et al

Filing 25

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 7/11/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JULIAN VILLANUEVA,
Plaintiff,
v.
CICERO POLICE OFFICER LARA
(Star #205), et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No.

12 C 8778

MEMORANDUM ORDER
Because both sides in this 42 U.S.C. §1983 (“Section 1983”)
action had failed to comply with this District Court’s LR 5.2(f)
that requires delivery of paper copies of court filings to the
assigned judge’s chambers,1 this Court issued a brief memorandum
order requiring each side to cure that omission and pay a small
fine because of the LR violation.

Counsel for plaintiff Julian

Villanueva has complied by (1) delivering a copy of his First
Amended Complaint (“FAC”) filed on May 28, 2013 and (2) making
the required payment, while defense counsel has delivered a copy
of defendants’ just-filed (on July 10) Answer to the FAC and has
committed to making the required payment as soon as the
appropriate fiscal officer returns to duty.

This memorandum

order is issued sua sponte because of a problematic aspect of
that Answer.

1

That requirement varies from judge to judge, depending on
whether the judge does or does not maintain chambers files
requiring such paper documentation.

As is typical in Section 1983 actions charging
constitutional violations by police officers and seeking to
impose responsibility on their municipal employers as well, in
large part the Answer comprises a whole series of denials.

But

in two instances the defendant officers and the Town of Cicero
have asserted the disclaimer provided for in Fed. R. Civ. P.
(“Rule”) 8(b)(5).

Here are the disclaimed allegations:

10...At all times material to this Complaint,
Defendant Officers were acting under color of state
law, ordinance, and/or regulation, statutes, custom and
usage of the Town of Cicero.
30. Judge Stanley Hill subsequently denied the
petition to reinstate the criminal prosecution,
specifically finding that the purpose of reinstatement
was to harass Plaintiff.
As to the first of those (responding to the second sentence
of Complaint ¶10), this Court is not troubled by a number of
flat-out denials elsewhere in the Answer of allegations that are
pretty much the equivalent of what was at common law termed as a
“negative pregnant”--for example, an allegation that when an
officer allegedly engaged in unconstitutional conduct (which is
denied) that officer was acting in the course of his or her
employment (something that is true as to whatever actions were
taken by the charged officer).

But that does not excuse a Rule

8(b)(5) disclaimer as to the quoted second sentence of Complaint
¶10.
As for Answer ¶30, what State Judge Hill found or did not

2

find is so readily ascertainable that a Rule 8(b)(5) disclaimer
requires the responding party to emulate the three monkeys of
legend.

This Court expects more forthrightness on the part of

defendants and their counsel.
Accordingly the two portions of the Answer discussed here
are stricken.

Leave is of course granted to file an appropriate

amendment to the Answer (not a self-contained Amended Answer
requiring a total do-over) on or before July 22, 2013.

No charge

is to be made to defendants by their counsel for the added work
and expense incurred in correcting counsel’s errors.

Defendants’

counsel are ordered to apprise their clients to that effect by
letter, with a copy to be transmitted to this Court’s chambers as
an informational matter (not for filing).

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

July 11, 2013

3