Manzera et al v. Frugoli et al
MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 10/11/2017. The City's Motion to Reconsider 396 is denied. The case remains set for trial beginning 11/27/2017 at 9:30 AM. Mailed notice(lk, )
THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JOSE ANDRES CAZARES, as Special
Administrator of the Estate of ANDREW
CAZARES, deceased and
FAUSTO T. MANZERA, as Special
Administrator of the Estate of FAUSTO A.
MANZERA, et al.,
JOSEPH FRUGOLI, et al.,
Case No. 13 C 5626
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
As detailed in several of the Court’s prior rulings, Andrew Cazares and Fausto A.
Manzera died after their disabled vehicle was struck by an SUV driven by Defendant Joseph
Frugoli, an intoxicated off-duty Chicago police officer. Plaintiffs Jose Cazares and Fausto T.
Manzera as special administrators of the estates of Andrew Cazares and Fausto A. Manzera, sued
Frugoli and his employer, the City of Chicago (the “City”).1 On March 31, 2017, the Court
denied the City’s motion for summary judgment on Plaintiffs’ Monell2 claims—the only claims
brought against it. See (Dkt. 352); see also Cazares v. Frugoli, 2017 WL 1196978 (N.D. Ill.
Mar. 31, 2017). Currently before the Court is the City’s motion to reconsider the Court’s
summary judgment order. See (Dkt. 396). For the reasons explained below, the City’s motion
(Dkt. 396) is denied. The case remains set for trial beginning on November 27, 2017 at 9:30
Plaintiffs also brought state law Dram Shop Act, 235 ILCS 5/6-21, claims against John R. Morgan;
Primero, Inc., d/b/a Dugan’s; and Metropolitan Bank Land Trust 1463, which later were dismissed. See
Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978).
Because the Court’s March 31, 2017 Memorandum Opinion and Order did not dispose of
this case, the Court reviews the City’s reconsideration motion under Federal Rule of Civil
Procedure 54(b).3 Rule 54(b) provides that non-final orders “may be revised at any time before
the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”
Thus, the Court has the “discretionary authority” to reconsider an interlocutory order. Galvan v.
Norberg, 678 F.3d 581, 587 (7th Cir. 2012); see also Chicago Reg’l Council of Carpenters v.
Prate Installations, Inc., 2011 WL 2469820, at *1 (N.D. Ill. June 20, 2011) (“under Rule 54(b),
the Court may exercise its inherent authority to reconsider its interlocutory orders because the
Court may revise such orders at any time before entering final judgment”) (citing Moses H. Cone
Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12 (1983)). But a motion to reconsider is not a
proper vehicle for rehashing arguments that the Court previously rejected or for introducing new
legal theories. See Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270
(7th Cir. 1996); see, e.g., Janusz v. City of Chicago, 78 F. Supp. 3d 782, 787 (N.D. Ill. 2015).
Instead, motions for reconsideration under Rule 54(b) serve the limited function of correcting
manifest errors of law or fact or to presenting newly discovered evidence.” Patrick v. City of
Chicago, 103 F. Supp. 3d 907, 911–12 (N.D. Ill. 2015). A manifest error of law or fact under
this standard occurs “when there has been a significant change in the law or facts since the
parties presented the issue to the court, when the court misunderstands a party’s arguments, or
when the court overreaches by deciding an issue not properly before it.” United States v. Ligas,
549 F.3d 497, 501–02 (7th Cir. 2008) (citing Bank of Waunakee v. Rochester Cheese Sales, Inc.,
Accordingly, Plaintiffs’ arguments concerning the timeliness of the City’s motion under Federal Rule of
Civil Procedure 59(e) are misplaced. Rule 59(e) provides a mechanism for altering or amending a
judgment and is therefore inapplicable to interlocutory orders, like the denial of summary judgment. See
Whitford v. Boglino, 63 F.3d 527, 530 (7th Cir. 1995).
906 F.2d 1185, 1191 (7th Cir. 1990)). “To be within a mile of being granted, a motion for
reconsideration has to give the tribunal to which it is addressed a reason for changing its mind.”
Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004).
The City’s only argument on reconsideration is that a significant change in the law,
namely the Seventh Circuit’s recent decision in Wilson-Trattner v. Campbell, 863 F.3d 589 (7th
Cir. 2017), undermines the Court’s prior ruling and warrants a grant of summary judgment in its
The March 31, 2017 Memorandum Opinion and Order
Before considering this argument, the Court briefly reviews the underlying memorandum
The full background of this case is set forth in the Court’s March 31, 2017
Memorandum Opinion and Order, knowledge of which is assumed here. See (Dkt. 352). In
brief, on April 10, 2009, an intoxicated Frugoli caused a car accident on the Dan Ryan
Expressway, killing Cazares and Manzera. Plaintiffs brought Monell claims against the City,
alleging that it violated the decedents’ substantive due process right to bodily integrity through
the City’s pervasive de facto policies, practices, and/or customs (that is, the Chicago Police
Department’s “code of silence” and the Department’s failure to properly investigate and impose
discipline for potential misconduct by its police officers, including Frugoli). Plaintiffs allege that
the de facto policies, practices, and/or customs encouraged Frugoli to drive under the influence
without fear of official consequence, proximately causing the tragic collision that resulted in
Cazares’ and Manzera’s deaths. See (Dkt. 86 at 6–12); (Dkt. 87 at 6–11).
The City moved for summary judgment (Dkt. 284), arguing as relevant that Frugoli, who
was off duty at the time of the accident, was acting as a private citizen—that is, he was not acting
under color of law. See (Dkt. 286 at 3). Therefore, according to the City, it did not have any
affirmative duty to protect the decedents because “the 14th Amendment does not require the
government to prevent citizens from harming each other.” Id. at 5 (citing Stevens v. Umsted,
131F.3d 697, 701 (7th Cir. 1997)). The City relied on DeShaney v. Winnebago County Dep’t. of
Social Servs., 489 U.S. 189, 195 (1989) and its progeny in support of this argument. See id. 4–9.
The Court rejected the City’s argument, explaining that DeShaney is not the appropriate
legal framework with which to analyze Plaintiff’s Monell claims, which allege that the City’s de
facto policies caused the complained-of harm, not that the City failed to protect the decedents
from Frugoli’s private harm. See (Dkt. 352 at 31–34). In other words, the Court explained that
the City’s focus on Frugoli’s duty status at the time of the accident was misplaced because
Plaintiff’s claims allege that it was the City that was the state actor. Accordingly, DeShaney’s
holding that “nothing in the language of the Due Process Clause itself requires the State to
protect the life, liberty, and property of its citizens against invasion by private actors” is
inapplicable. Id. at 32, 34. The Court explained:
Not surprisingly, due to DeShaney’s focus on “private” harm, most of the cases
cited by the City in support of their DeShaney argument involve allegations that a
municipal body failed to protect a citizen from harm by a non-state actor. Unlike
the Plaintiffs’ allegations here, these cases do not involve allegations that a
municipal policy affirmatively caused the constitutional deprivation. . . . In the
instant case, Plaintiffs do not seek compensation under Monell because the City
failed to protect the decedents from Frugoli. Instead, they argue that the City’s de
facto policies, including the code of silence, caused the decedents’ constitutional
injury. Such claims are assessed under the Monell framework because the harm
was caused by the City, which by its very nature fulfills the “under color of law”
Id. at 33–34 (emphasis added) (internal citation omitted). The Court further reasoned in dicta
that even if DeShaney were to apply, triable issues existed regarding whether the “state created
danger exception”4 to that holding applies here, where “on-duty police officers on several
occasions ignored or otherwise failed to respond to incidents in which a jury could find that
Frugoli drove drunk, subsequently damaging property or injuring others.” Id. at 34.
The City’s Motion to Reconsider
The City argues that the Court should reconsider its summary judgment ruling based on
the decision in Wilson-Trattner v. Campbell, 863 F.3d 589 (7th Cir. 2017). There, the plaintiff
was in an abusive relationship with Hancock County, Indiana police officer Scott Roeger.
Wilson-Trattner, 863 F.3d at 591. On four occasions, police officers were called to respond to
incidents between the plaintiff and Roeger, but the Hancock County Sheriff’s Department, which
had issued verbal reprimands and/or counseling following the events and had generated
investigative reports on a few of the occasions, declined to discipline or arrest Roeger until after
the last, most severe incident. The plaintiff brought suit against four individual officers, Roeger,
Hancock County, and the Sheriff’s Department. The claims against the county and the Sheriff’s
Department were voluntarily dismissed. See id. at 593 n.2. As relevant to the City’s motion for
reconsideration in this case, at summary judgment, the district court addressed the following
claims: (1) a § 1983 substantive due process claim (against the four individual officers in their
individual and official capacities) and (2) a § 1983 failure to train claim (against the Sheriff in
his official capacity). Id. at 593.
The district court granted summary judgment on the plaintiff’s individual-capacity claim
under the DeShaney framework, since the plaintiff had argued that the officers, through their
inaction, had “violated her substantive due process right to be free from a state-created danger,”
Under the state-created danger doctrine, a plaintiff is required to prove “(1) the state created or increased
a danger to him, (2) the state’s failure to protect plaintiff was a proximate cause of his injuries, and (3) the
state’s failure to protect the individual shocks the conscience.” Wilson v. Warren County, Ill., 830 F.3d
464, 469–70 (7th Cir. 2016) (citing King ex rel. King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 817–18
(7th Cir. 2007)).
that is, Roeger’s abuse. Wilson-Trattner v. Campbell, 2016 WL 2894444, at *5–6 (S.D. Ind.
May 18, 2016). With regard to the official capacity claims, which the district court interpreted to
be failure to train and failure “to implement protocols for handling officers accused of domestic
violence,” the district court granted summary judgment because (1) it had already found in its
individual-capacity analysis that the plaintiff failed to establish an constitutional violation based
on inaction, and (2) even if she had established a violation, the plaintiff was unable to
demonstrate that the Sheriff was deliberately indifferent to the need to have a policy regarding
for employees who committed misconduct, particularly in light of the few actions that were
taken after the Department learned of the incidents. Id. at *7.
On appeal, the plaintiff confirmed that her substantive due process claim implicated the
DeShaney state-created-danger exception because she conceded that Roeger was not serving as a
state actor in his interactions with her. Wilson-Trattner, 863 F.3d at 593. Thus, the plaintiff
argued that the officers’ inaction “‘conveyed the unmistakable message’ to Roeger that they
would not interfere with his on-going abuse, thereby emboldening him to reoffend.” Id. On this
groundwork, the Seventh Circuit affirmed the dismissal of the individual-capacity claims.
Specifically, the court found that the Plaintiff had failed to establish the state-created-danger
exception because she had failed to demonstrate that the officers affirmatively did anything to
embolden Roeger or otherwise indicate that he could abuse her with impunity. Id. at 594. In
addition, the Seventh Circuit rejected Plaintiff’s argument that the officers’ “dismissive and
indifferent attitudes” fulfilled this element of the exception. Id. “Mere indifference or inaction
in the face of private violence cannot support a substantive due process claim under DeShaney
and [Town of] Castle Rock [v. Gonzales, 545 U.S. 748 (2005)]. Further, Wilson-Trattner’s
theory that Hancock County officers increased a danger to her by implicitly condoning violence
against her is both questionable in light of DeShaney and Castle Rock and unsupported by the
facts.” Id. at 595. The appeals court also succinctly affirmed the district court’s decision on the
plaintiff’s failure-to-train claim. Id. at 596.
The Court is not persuaded by the City’s argument that Wilson-Trattner constitutes a
change in the law that requires a different result in this case. As an initial matter, the City
misstates Wilson-Trattner. According to the City, Wilson-Trattner “established that a de facto
policy of failing to discipline officers for off-duty misconduct does not constitute a violation of
the due process clause under the stated-created danger doctrine.” See (Dkt. 396 at 5); see also id.
(Wilson-Trattner “found that a municipal policy for failing to discipline or intervene with the offduty actions of its deputy fell squarely within the DeShaney analysis and its progeny”). To be
clear, the Wilson-Trattner district court addressed official-capacity claims alleging the failure to
train Hancock County employees and the failure “to implement protocols for handling officers
accused of domestic abuse.” Wilson-Trattner, 2016 WL 2894444, at *7; see Wilson-Trattner,
863 F.3d at 596 (only mentioning the failure-to-train claim). Moreover, Wilson-Trattner did not
mandate that DeShaney applies to a certain category of municipal liability claims or even
perform an extended analysis of the policy—or lack of policy—claims at issue there, as the City
seems to suggest. Instead, the district court determined that the individual officers had not
violated any constitutional right of the plaintiff under DeShaney and then dismissed the failure to
train and lack of policy official-capacity claims after a brief analysis mentioning (1) the lack of a
constitutional violation under the individual-capacity analysis and (2) the lack of evidence as to a
widespread or systematic policy so as to assess municipal liability. Wilson-Trattner, 2016 WL
2894444, at *7. The Seventh Circuit made little of this analysis, stating briefly that it agreed
“with the district court’s resolution of the Plaintiff’s failure to train” claim because it “cannot
proceed without evidence of an underlying constitutional violation.” Wilson-Trattner, 863 F.3d
at 596. Accordingly, the City overstates the particular detail and characteristics of the Seventh
Circuit’s decision on the official-capacity claims.
In any event, the City errs in its application of Wilson-Trattner to the instant case.
Wilson-Trattner did not, as the City suggests, “specifically address a municipal practice”
analogous to the practice challenged here. Again, in Wilson-Trattner the plaintiff challenged the
adequacy of officers’ response to her repeated complaints of domestic abuse at the hands of
Roeger in part through her municipal claims for failure to train and lack of policy.
differently, the Plaintiff complained about the lack of state response to her complaints of private
harm. This is well-tread DeShaney territory that does not deviate from the Court’s earlier
analysis of this issue. See (Dkt. 352 at 32) (“DeShaney and its progeny primarily involve cases
where the plaintiff alleges that the state failed to protect him from harm from a non-state actor.”);
see also, e.g., Collins v. City of Harker Heights, Tex., 503 U.S. 115, 127 (1992) (citing DeShaney
in rejecting claim that a city failed “to provide its employees with certain minimal levels of
safety and security” and “to warn them about known risks of harm.”); Stevens, 131 F.3d at 701
(discussing DeShaney in rejecting claims against school administrator for failure to adhere to a
purported “duty to protect” a student).
As the Court already has explained, DeShaney and its progeny—which now includes
Wilson-Trattner—are inapplicable to this case. Unlike those cases, Plaintiffs here do not allege
that the City failed to protect the decedents from a “private” harm. Instead, they allege that the
City’s policies, including the code of silence, affirmatively caused the constitutional deprivation,
meaning that the case involves state harm. Although the City’s argues that Wilson-Trattner
involved allegations that a municipal policy affirmatively caused a constitutional deprivation
(Dkt. 396 at 4–5), the facts of that case easily refute that assertion; the plaintiff there admitted
that she was complaining about the state’s failure to protect her from private harm. WilsonTrattner, 863 F.3d at 595 (involving “[m]ere indifference or inaction in the face of private
violence”). Accordingly, the Wilson-Trattner decision neither deviates from the long line of
cases applying DeShaney to allegations of the failure of a state actor (individual or municipal) to
protect from a private harm nor alters the analysis of Plaintiffs’ Monell claims. DeShaney
remains inapplicable here.
Because Wilson-Trattner did not alter the legal framework of this case, the City’s
reconsideration briefing, which continues to advocate for the application of DeShaney and to
dispute whether Plaintiffs have adequately established action taken by a state actor, among other
things, rehashes the City’s summary judgment arguments and therefore does not set forth proper
bases for reconsideration. Likewise, the City’s argument that “[i]f Plaintiffs’ Monell claims, as
articulated, were to prevail, it would broaden the application of Monell to impose virtual strict
liability on municipalities for any actions of its off-duty employees” (Dkt. 404 at 4) is a mere
disagreement with the Court’s summary judgment ruling. Not only that, this argument is nothing
more than a red herring, as it completely ignores the high burden on Plaintiff’s under Monell to
prove the existence of a policy or custom that caused a constitutional violation. See generally
(Dkt. 352 at 36–45) (analyzing the elements of Plaintiffs’ Monell claims).
In sum, The Seventh Circuit’s decision in Wilson-Trattner does not disturb the Court’s
conclusion that DeShaney is not the appropriate legal framework with which to analyze
Plaintiff’s Monell claims here. None of the City’s arguments demonstrate that a significant
change in the law has occurred or that the Court committed a manifest error of law or fact.
For the reasons stated above, the City’s motion to reconsider (Dkt. 396) is denied. The
case remains set for trial beginning on November 27, 2017 at 9:30 a.m.
Hon, Virginia M. Kendall
United States District Judge
Date: October 11, 2017
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