Brooks v. City of Chicago, et al

Filing 23

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 12/3/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHANTELL BROOKS,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

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No.

13 C 5871

MEMORANDUM ORDER
It is frankly difficult to receive and review pleadings
generated by the City of Chicago’s Corporation’s Counsel’s office
in defending 42 U.S.C. §1983 (“§1983”) lawsuits without getting
the impression that an in-house continuing legal education
program is needed--something that would benefit everyone in the
system (judges, plaintiffs and their counsel and, indeed, even
the City and its own personnel).

And that sense was rendered

even more poignant by this Court’s receipt on July 27 of not only
(1) an Amended Answer in Lake v. City of Chicago, 13 C 3176, that
had to correct some problematic aspects of the original Answer to
which this Court had drawn attention by a sua sponte memorandum
order but also (2) a troublesome response by the City and its
officer Kevin Paruszkiewicz (“Paruszkiewicz”) to the First
Amended Complaint (“FAC”) brought against them by Chantell Brooks
as the Special Administrator of the Estate of Michael Westley,
Deceased.

Paruszkiewicz is charged in the FAC with the fatal shooting
of 15-year old Michael Westley.

In response Paruszkiewicz has

admitted the shooting but contends that it was not wrongful (a
legitimate defense, of course), so that he argues that the FAC
does not state a viable claim.
But look at some of the other assertions that
Paruszkiewicz’s counsel offers up on his behalf:
9. Michael died as a result of the gunshot wounds
inflicted upon him by Officer Paruszkiewicz.
Answer:
On information and belief, Defendants admit that
decedent died as a result of officer Paruszkiewicz
shooting decedent. Defendants lack knowledge or
information sufficient to form a belief as to the truth
of the remaining allegations contained in this
paragraph.
10. Michael endured pain and suffering in his dying
moments as a result of the injuries caused by the
shooting.
Answer:
Defendants lack knowledge or information sufficient to
form a belief as to the truth of the allegations
contained in this paragraph.
Counsel’s invocation of the Fed. R. Civ. P. (“Rule”) 8(b)(5)
disclaimer in Answer ¶9 makes no sense at all in light of the
admission set out in the first sentence of that Answer paragraph.
Indeed, it is difficult to see how that Rule 8(b)(5) disclaimer
response and the like response in Answer ¶10 can be advanced in

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the subjective and objective good faith that is required of every
litigant and lawyer by Rule 11(b).
And there is more.

For example, FAC ¶16 calls for a simple

admission without the gratuitous addition of the denials (which
respond to nothing said in FAC ¶16) that counsel has added to the
Answer.

And next, Answer ¶17 again attempts to call the Rule

8(b)(5) disclaimer into play when a straightforward admission is
plainly required--an admission that would not at all give up
Paruszkiewicz’s contention that what he did was not wrongful.
And that is true of Answer ¶¶19 and 21 as well.
Thereafter defense counsel’s tactics shift to another
obfuscatory pattern.

FAC Count V (which asserts an

indemnification claim against the City) and FAC Count VI (which
advances a respondeat superior contention against the City) set
out simple and straightforward allegations as to the provisions
of Illinois law in FAC ¶¶23 and 26, but the corresponding answers
impermissibly muddy the waters by going on at length with
irrelevancies that add nothing to the dialog.
Finally, the so called affirmative defenses (“ADs”) with
which defense counsel concludes the responsive pleading reflect a
major misunderstanding of the AD concept implicit in Rule 8(c)
and confirmed in the case law (see also App’x ¶5 to State Farm
Mut. Auto Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill.
2001):

the acceptance of a complaint’s allegations (together

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with reasonable inferences) as gospel, while at the same time
stating some predicate for defendant’s non-liability (or perhaps
for lesser liability, as in the case of contributory negligence
not negated by the plaintiff’s allegations).

Here are the

deficiencies in the purported ADs advanced by defendants:
1.

AD 1 is wholly at odds with FAC ¶8 (which is

incorporated by reference into all counts of the FAC) and
with Count I ¶12.
2.

Accordingly AD 1 is stricken.

AD 2 likewise flouts the allegations of FAC ¶8, and

it too is stricken.
3.

AD 3 is a mystery, for there is no suggestion that

Officer Paruszkiewicz is sought to be held liable for anyone
else’s acts or omissions.
4.

It is also stricken.

AD 4 may be somewhat tautological, but it fails to

recognize that Paruszkiewicz is liable when the FAC
allegations are taken as true.

Hence AD 4 is stricken as

well.
To return to the point of beginning, if a lawyer for a
private party had filed the pleading discussed here, both counsel
and his client would be candidates for a Rule 11(b) sanction.
Surely we should not expect a lesser work product from counsel
for a governmental law office.

If this were an isolated

incident, this opinion would read far differently--but that is
regrettably not the case.

This Court is transmitting a copy of

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this opinion to the Corporation Counsel, in the hope that some
in-house training in the fundamentals of federal pleading may be
initiated.

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

December 3, 2013

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