Rotter v. Elk Grove Village et al
MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 8/14/2017. Defendants' motion for summary judgment 43 is granted in part and denied in part. This case is set for further status hearing on September 7, 2017 at 9:00 a.m. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Plaintiff / Counter-Defendant,
ELK GROVE VILLAGE,
Defendant / Counter-Plaintiff,
JOHN WILLIAMS, and RUSSELL SULLIVAN,
Case No. 14-cv-7583
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Roger Rotter brings this civil rights action under 42 U.S.C. § 1983 against
Defendants Elk Grove Village (“the Village”), Officer John Williams, and Officer Russell
Sullivan alleging excessive force and Monell liability. The Village brings counterclaims against
Plaintiff for battery and negligence. Currently before Court is Defendants’ motion for summary
judgment  on Plaintiff’s claims and on the Village’s battery counterclaim. For the reasons
stated below, Defendants’ motion for summary judgment  is granted in part and denied in
part. This case is set for further status hearing on September 7, 2017 at 9:00 a.m.
The following facts are drawn primarily from the parties’ Local Rule 56.1 statements,
, , , and , and attached exhibits. On September 30, 2012, Plaintiff, who is
hearing impaired, was arrested in Elk Grove Village, Illinois by Officers Sullivan and Williams.
[48, at ¶ 1; 45, at ¶ 1.] The details of the arrest are as follows: Officer Williams grabbed one of
Plaintiff’s arms and attempted to take him into custody, but was unable to do so. [50, at ¶ 4.]
Officer Sullivan then stated that he was going to use his taser and deployed his taser in projectile
mode. [Id. at ¶ 5.] Plaintiff’s knees buckled, and he fell to the ground, landing initially on his
side. [Id. at ¶ 6.] By this point, Plaintiff’s hearing aids had been knocked out. [Id. at ¶ 7.]
According to Plaintiff, he was then “lying on the ground still, at which time Officer Williams
was able to cuff his left arm,” and his right arm and right hand were underneath his body as he
lay face down. [Id. at ¶ 8.] According to Defendants, “[Plaintiff’s] legs were moving and arm
flailing back and forth,” “[t]he officers were not able to get [his] arm under control,” and
Plaintiff “was rolling around side-to-side, trying to break free from the officers.” [50, at ¶ 8.]
During the time Plaintiff was on the ground with Officers Williams and Sullivan trying to control
him, Plaintiff was either screaming or wailing or making some kind of high-pitched noise. [48,
at ¶ 15.] In his report, Officer Williams indicated that after a second application of the taser by
Officer Sullivan, another officer arrived and was able to place a handcuff on Plaintiff’s right arm,
at which time Officer Williams connected that handcuff to the one on Plaintiff’s left arm. [Id., at
Though he only noted two instances of Officer Sullivan’s taser use in his report, Officer
Williams testified that he thought Officer Sullivan deployed the taser more than two times, but
he did not know how many times. [Id. at ¶ 12.] Tasers have an internal mechanism that records
and stores data regarding the taser’s use, including the number of times a taser is deployed on a
particular day, data regarding the time at which a deployment was made, and data regarding the
duration of any deployment. [Id. at ¶ 13.] The data from the taser used by Officer Sullivan on
the day in question shows eleven five-second deployments of that taser within less than two
minutes. [Id. at ¶ 14.]
In February of 2013, Plaintiff was indicted for two offenses related to the September 30,
2012 incident: (1) an aggravated battery against Officer Sullivan when he struck Officer Sullivan
about the face and body while Officer Sullivan was in the course of his duties as a police officer,
and (2) resisting a police officer when he knowingly resisted Officer Sullivan while Officer
Sullivan was in the course of his duties as a police officer. [46, at ¶ 2.] Pursuant to a plea
agreement, those counts were reduced to a class A misdemeanor battery and a class A
misdemeanor resisting a peace officer. [Id. at ¶ 3.] For purposes of the guilty plea, the parties
stipulated the following factual basis:
If this matter were to proceed to trial, the State would present the
testimony of Officer Williams and Officer Sullivan of the Elk Grove Village
Through their testimony, the evidence would show that both officers were
working on September 30th of 2012, that both officers were in full uniform, and
on that date, Officer Williams was in the area of 1120 West Devon Avenue in Elk
Grove Village, Cook County Illinois.
When he was at that location, [Plaintiff], who would be identified in open
court, was seen outside of that location. Officer Williams approached [Plaintiff]
because [Plaintiff] had his hands over his face. Officer Williams asked [Plaintiff]
if he was okay. [Plaintiff] did not response. After several attempts, Officer
Williams touched [Plaintiff]’s hands, which were still on his face. [Plaintiff] at
that time shoved Officer Williams’ hands away in a forceful manner.
[Plaintiff] was secured by Officer Williams while Officer Williams called
for an assist unit. [Plaintiff] was able to break free from Officer Williams’
security and began to run through the parking lot.
At that time Officer Sullivan responded to the scene, that [sic] he did
locate [Plaintiff] within the parking lot of that location. As Officer Sullivan
attempted to take [Plaintiff] into custody, [Plaintiff] began to fight with the
officer, at which time [Plaintiff] struck Officer Sullivan several times about the
face and body. [Plaintiff] resisted Officer Sullivan’s attempts in placing
handcuffs on him. Another officer arrived on scene, at which point the defendant
was able to be handcuffed.
[Id. at ¶ 4.]
On September 29, 2014, Plaintiff brought suit alleging excessive force and Monell
liability. [1.] The Village filed counterclaims against Plaintiff for battery of Officer Sullivan
and negligence. Defendants filed a motion for summary judgment, which is currently before the
Summary judgment is proper where there is “no dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of
material fact exists if “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). The party
seeking summary judgment has the burden of establishing the lack of any genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In evaluating a motion for
summary judgment, the Court will construe all facts in the light most favorable to the nonmoving
party and draw all reasonable inferences in favor of the nonmoving party. Bell v. Taylor, 827
F.3d 699, 704 (7th Cir. 2016). However, the Court will not draw inferences that are “supported
by only speculation or conjecture,” Williams v. Brooks, 809 F.3d 936, 944 (7th Cir. 2016)
(quoting Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)) (internal citations
omitted), and “[c]onclusory allegations alone cannot defeat a motion for summary judgment.”
Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 892 (7th Cir. 2003).
It is not the role of the Court to scour the record in search of evidence to defeat a motion
for summary judgment; instead, the nonmoving party bears the responsibility of identifying
evidence to defeat summary judgment. Harney v. Speedway SuperAmerica, LLC, 526 F.3d
1099, 1104 (7th Cir. 2008). To avoid summary judgment, the nonmoving party must go beyond
the pleadings and “set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250. Summary judgment is proper if the nonmoving party “‘fails to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.’” Ellis v. CCA of Tennessee LLC, 650
F.3d 640, 646 (7th Cir. 2011) (quoting Celotex, 477 U.S. at 322). The non-moving party “must
do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other
words, the “mere existence of a scintilla of evidence in support of the [non-movant’s] position
will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.
Defendants make three arguments in their motion for summary judgment. First, they
argue that Plaintiff’s claimed are barred by Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
Second, the Village argues that it is entitled to a determination that Plaintiff is liable for battery
because Plaintiff’s guilty plea precludes him from denying that he battered Officer Sullivan.
Third, the Village argues that it is entitled to summary judgment on the Monell claim because
Plaintiff cannot present evidence of any custom, policy, or practice that caused an alleged
violation of his constitutional rights. The Court will address each argument in turn.
Heck v. Humphrey
Defendants argue that Plaintiff’s claimed are barred by Heck v. Humphrey, 512 U.S. 477,
486–87 (1994), because Plaintiff’s testimony and theory of the case are inconsistent with his
criminal convictions. In Heck, the Supreme Court held that a plaintiff in a civil rights action may
not pursue a claim for relief that implies the invalidity of a criminal conviction, unless the
conviction has already been invalidated. 512 U.S. 477, 486–87; see also Moore v. Mahone, 652
F.3d 722, 723 (7th Cir. 2011) (“The Heck rule is analogous to collateral estoppel: an issue
determined with finality in a full and fair adjudicative proceeding (and essential to the decision
in that proceeding) cannot be reopened in a subsequent case.”); VanGilder v. Baker, 435 F.3d
689, 691 (7th Cir. 2006) (“Heck holds that before a § 1983 plaintiff may recover damages for
alleged harm ‘caused by actions whose unlawfulness would render a conviction or sentence
invalid,’ the plaintiff must first prove that his conviction or sentence has been reversed,
expunged, or called into question by the grant of a petition for habeas corpus.” (quoting Heck,
512 U.S. at 486–87)). The Heck doctrine is grounded in the “strong judicial policy against the
creation of two conflicting resolutions arising out of the same or identical transaction.” Heck,
512 U.S. at 484. The rule is intended to prevent collateral attacks on convictions through civil
suits. VanGilder, 435 F.3d at 691; see also Norris v. Baikie, 2017 WL 395699, at *3 (N.D. Ill.
Jan. 30, 2017).
Defendants argue that in bringing this § 1983 lawsuit, Plaintiff gave testimony that
necessarily implies the invalidity of his criminal convictions. Plaintiff pled guilty to a battery of
Officer Sullivan, admitted that he struck Officer Sullivan about the face and body, and pled
guilty to knowingly resisting the performance of Officer Sullivan while Officer Sullivan was in
the course of his duties as police officer. Yet in his deposition, Plaintiff testified that he never hit
Officer Sullivan and never resisted arrest. [46, at ¶ 6.] Specifically, Plaintiff testified:
I pled guilty to misdemeanor charge of hitting a police officer, but I never hit him.
I had no choice because otherwise I had a chance to be convicted of a felony.
And the judge treated me and my lawyer Marty Dolan unfairly. And the only
evidence the prosecution had was the officer’s testimony against mine. And she
said on the stand that she believed him—his testimony and not mine. So I had no
choice because I still want to be able to work and I didn’t want a felony
[45, Exhibit C (Plaintiff’s Deposition), at 8:6–16 (emphasis added).]
Plaintiff also denied
striking Officer Sullivan about the arms and head, stating “I never did that, though.” [46, at ¶ 6;
45, Exhibit C, at 10:16–20.] He testified that he “never resisted arrest,” [46, at ¶ 7], and that he
“never hit [the officers],” [id., at ¶ 6]. Plaintiff further testified as follows:
You say that you did not do anything to resist police officers, is that
Yeah, I did nothing to resist the police officers.
Didn’t do anything to prevent an officer from handcuffing you?
Didn’t do anything to prevent officers from putting your arms behind your
Is that correct?
[Id. at ¶ 7.] Defendants contend that since these allegations in Plaintiff’s deposition testimony
are inconsistent with Plaintiff’s criminal convictions, Heck bars this civil suit. Plaintiff, for his
part, does not dispute that this testimony was given, but rather argues that even if one aspect of
his claims may be incompatible with his convictions, if other aspects of his claims are consistent
with his convictions, those aspects of the suit must be allowed to proceed, citing Evans v.
Poskon, 603 F.3d 362, 364 (7th Cir. 2010).
As a general proposition, a plaintiff who has been convicted of resisting arrest or
assaulting a police officer is not per se Heck-barred from maintaining a § 1983 claim for
excessive force. McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006). As the Seventh Circuit
has explained, a contrary conclusion would “imply that once a person resists law enforcement, he
has invited the police to inflict any reaction or retribution they choose, while forfeiting the right
to sue for damages.” VanGilder, 435 F.3d at 692. However, “a plaintiff’s claim is Heck-barred
despite its theoretical compatibility with his underlying conviction if [plaintiff’s] specific factual
allegations [ ] are necessarily inconsistent with the validity of the conviction.” McCann, 466
F.3d at 62.
The Seventh Circuit has articulated an additional gloss on the Heck analysis. In Gilbert
v. Cook, the Seventh Circuit concluded that a plaintiff’s confession to his own offense is not a
precondition to a civil remedy against public officials who respond with excessive force. 512
F.3d 899, 901–02 (7th Cir. 2008). Rather, the plaintiff could remain “agnostic” in his civil case
about the findings in his criminal case. Id. In reversing the district court and remanding the case
for a new trial, the court explained:
Instead of insisting that [the plaintiff] confess in open court to striking a guard,
the [district] judge should have implemented Heck * * * through instructions to
the jury at the start of trial, as necessary during the evidence, and at the close of
the evidence. It would have sufficed to tell the jurors that [the plaintiff] struck the
first blow during the fracas [ ], that any statements to the contrary by [the
plaintiff] (as his own lawyer) or a witness must be ignored, and that what the
jurors needed to determine was whether the guards used more force than was
reasonably necessary to protect themselves from an unruly prisoner.
Id. at 902. A few years later, in Evans, 603 F.3d at 364, the Seventh Circuit “extended the
holding of Gilbert to a case in which the plaintiff’s civil rights complaint, en route to alleging
excessive force, denied that he had resisted arrest, though he had been convicted of that crime.”
Moore, 652 F.3d at, 723. The plaintiff in Evans contended three things: “(1) that he did not resist
being taken into custody; (2) that the police used excessive force to effect custody; and (3) that
the police beat him severely even after reducing him to custody.” 603 F.3d at 364. The Seventh
Circuit explained that it did not understand the plaintiff “to assert that he is advancing
propositions (2) and (3) if and only if the district court accepts proposition (1).” Id. Rather, the
plaintiff’s briefs informed the Court that he was willing to proceed on proposition (3) alone. Id.
Thus, the Seventh Circuit held that on remand, the district court should simply disregard
proposition (1), which was incompatible with the plaintiff’s conviction, and permit the plaintiff
to proceed with propositions (2) and (3), which were “entirely consistent with a conviction for
resisting arrest.” Id.
Applying that controlling law to the case at hand, the Court concludes that it must
disregard Plaintiff’s allegations and testimony that are inconsistent with his guilty plea but
permit Plaintiff to proceed with his remaining claims. To be sure, a plaintiff is “the master of his
ground” and can, if he insists, stick to a position that forecloses relief. Okoro v. Callaghan, 324
F.3d 488, 490 (7th Cir. 2003); Evans, 603 F.3d at 364. However, as in Evans, the Court does not
understand Plaintiff to assert that he only intends on advancing his excessive force claim if and
only if the Court accepts his testimony that he did not resist arrest or hit Officer Sullivan.
Rather, Plaintiff indicates in his response brief his position that regardless of what he may have
done, the Defendant Officers’ use of force in response went beyond what is reasonable under the
Fourth Amendment. [47, at 4.] Plaintiff further indicates that his excessive force claims are not
predicated on the proposition that he had not resisted or committed a misdemeanor battery, and
he contends that “like the plaintiff in Evans, he should be entitled to an opportunity to prove that
the Defendants used unreasonable force during and after his arrest.” [See id. at 6.] Finally,
Plaintiff argues that even if one aspect of his claims may be incompatible with his conviction for
resisting, if other aspects of his claims are consistent with his conviction, those aspects of the suit
must be allowed to proceed, citing Evans, 603 F.3d at 364. [Id. at 9.]
Thus, this case is unlike those brought by plaintiffs who voluntarily steer the action into
Heck territory with their steadfast insistence on maintaining positions incompatible with their
criminal convictions. Defendants’ reliance on Okoro, 324 F.3d at 489–90, and Tolliver v. City of
Chicago, 820 F.3d 237, 243–44 (7th Cir. 2016), is unconvincing. In Okoro, the plaintiff was
convicted of drug violations and later brought a civil suit against federal and state officers
seeking the return of gems and cash that he claimed the officers had seized while searching his
home. 324 F.3d at 489. The Seventh Circuit noted that it was theoretically possible for the
plaintiff to have been guilty of the drug violations yet also have been the victim of a theft by the
arresting officers. Id. The plaintiff could have argued that the defendants had taken both drugs
and gems, or he could have argued that they took the gems and not say anything about the drugs.
Id. at 490. However, he instead “adhered steadfastly to his position that there were no drugs, that
he was framed” and in so arguing, he was making an impermissible collateral attack on his drug
conviction. Id. In short, since the plaintiff was challenging the validity of the guilty verdict by
denying that there were any drugs and arguing that he was framed, his claim was barred by Heck.
In Tolliver, the plaintiff had been convicted of aggravated battery to a peace officer under
Illinois law, which encompasses intentionally or knowingly, voluntarily, causing bodily harm to
the victim. 820 F.3d at 242. Plaintiff later brought a § 1983 excessive force claim, arguing that
the police officers employed deadly force against him without provocation. Id. at 239. The
Seventh Circuit held that his civil suit was barred by Heck, explaining that if the finder of fact
were to accept the plaintiff’s version of the events—that “the officers shot at him as he sat
impassively in his car, posing no threat to the officers”—then he could not be guilty of
aggravated battery because he did not act intentionally. Id. at 243. The plaintiff “could have
brought a suit for excessive force that occurred after the crime was complete.” Id. at 244. The
Seventh Circuit explained that if the plaintiff “had conceded that he voluntarily and intentionally
or knowingly drove towards the officers, or if [he] had even remained agnostic on who struck the
first blow, he could have brought a claim that the officers’ response to firing fourteen bullets at
him constituted excessive force and that claim would not be barred by Heck.” Id. But the
plaintiff’s version of the events necessarily implied the invalidity of his conviction, and thus
Heck barred his civil suit. Id.
Unlike the plaintiffs in Okoro and Tolliver, the Plaintiff in this case does not adhere to a
position incompatible with his guilty plea; rather, he made it clear in his response brief that he is
amenable to the Court disregarding his allegations and testimony that are inconsistent with his
guilty plea and permitting him to proceed with his remaining claims. Therefore, the Court denies
Defendants’ motion for summary judgment based on Heck, 512 U.S. 477, 486–87. See Elcock v.
Whitecotton, 434 Fed. App’x 541, 543 (7th Cir. 2011) (holding that on remand, the district court
“should either disregard portions of the complaint that deny [the plaintiff’s] misconduct, or direct
[the plaintiff] to file an amended complaint that omits nay impermissible allegations”); Hemphill
v. Hopkins, 2011 WL 6155967, at *3 (N.D. Ill. Dec. 12, 2011) (although plaintiff denied the facts
underlying his battery convictions, he also contended that no matter what sparked the incident
and regardless of whether he kicked an officer, the officer responded with excessive force, which
“makes this case like Evans, [ ] and Gilbert, where Heck was held not to apply, and unlike
Okoro”); cf. Boothe v. Wheeling Police Officer Sherman (Star #155), 190 F. Supp. 3d 788, 798
(N.D. Ill. 2016) (explaining that since the plaintiff claimed that defendant used an excessive
amount of force even assuming she has earlier resisted arrest, plaintiff’s claim is not necessarily
inconsistent with the resisting arrest conviction and is thus not barred by Heck).
The Village argues that because Plaintiff pled guilty to the misdemeanor of battery
against Officer Sullivan, the Village is entitled to summary judgment on the liability portion of
its tortious battery counterclaim and that it should only be required to prove damages. Under
Illinois law, a person commits the crime of battery, a class A misdemeanor, “if he intentionally
or knowingly without legal justification and by any means, (1) causes bodily harm to an
individual or (2) makes physical contact of an insulting or provoking nature with an individual.”
United States v. Aviles-Solarzano, 623 F.3d 470, 472 (7th Cir. 2010) (quoting 720 ILCS 5/123(a)) (internal quotation marks omitted). The tort of battery, under Illinois law, is “the willful,
unauthorized touching of the person of another or a successful attempt to commit violence on the
person of another.” Jenkins v. E. St. Louis Hous. Auth., 863 F. Supp. 2d 785, 792 (S.D. Ill. 2012)
The Court applies Illinois law to determine the preclusive effect of Plaintiff’s battery
guilty plea and conviction. See Wells v. Coker, 707 F.3d 756, 761 (7th Cir. 2013). In Wells, the
Seventh Circuit assessed whether under Illinois law, a prior guilty plea provides conclusive
evidence of the underlying facts in the plea. Id. at 763. The court concluded that Illinois law
does not have a consistent, general practice regarding the preclusive effect of guilty pleas, aside
from the traditional doctrines of preclusion. Id. This Court will therefore focus its analysis on
Illinois preclusion law.
In Illinois, a litigant is estopped from raising an issue in a collateral proceeding when the
following factors are met: “(1) the party against whom the estoppel is asserted was a party to the
prior adjudication, (2) the issues which form the basis of the estoppel were actually litigated and
decided on the merits in the prior suit, (3) the resolution of the particular issue was necessary to
the court’s judgment, and (4) those issues are identical to issues raised in the subsequent suit. Id.
(citation and internal quotation marks omitted). Here, Plaintiff is the party against whom the
estoppel is asserted, and he clearly was a party to his criminal case—the prior adjudication.
Additionally, whether Plaintiff battered Officer Sullivan was actually litigated and decided on
the merits in Plaintiff’s criminal case. See Johnson v. Reiter, 2015 WL 6674531, at *7 (N.D. Ill.
Oct. 30, 2015) (“To the extent that [the plaintiff] is arguing that the gun pointing issue was not
litigated and decided on the merits since he pled guilty, that contention is similarly unavailing.
Collateral estoppel does not attach only if an individual goes to trial in an underlying criminal
case and is found guilty. Instead, it can be based on a plea agreement.”); Nathan v. Tenna Corp.,
560 F.2d 761, 763 (7th Cir. 1977) (explaining that under Illinois law, a criminal conviction based
upon a guilty plea conclusively establishes for purposes of a subsequent civil proceeding that
defendant engaged in criminal acts for which he was convicted).
Next, the issue of battery was necessary to the criminal court’s judgment. Cf. Wells, 707
F.3d at 761–62 (issue of whether plaintiff pointed a gun at the officer was not necessary to the
disposition of his criminal case because there were two alternative factual bases that could have
supported his guilty plea; the plaintiff had either discharged his gun in the air or pointed it at the
officer, and either action taken in isolation would have supported his guilty plea for reckless
conduct). Finally, the issue decided in Plaintiff’s criminal case is identical to the issue in the
Village’s tortious battery claim. See Smith v. Sheahan, 959 F. Supp. 841, 846 (N.D. Ill. 1997)
(explaining that the criminal offense of battery closely tracks the tort of battery under Illinois
law, and thus a person cannot commit the crime of battery without also committing the tort of
Plaintiff argues that summary judgment is not proper because the state court battery
conviction did not determine the nature and extent of the injuries claimed by Officer Sullivan or
whether any of Plaintiff’s conduct proximately caused those injuries. However, this argument
misses the mark, as these are issues relevant to the damages calculation and not to liability. See
Smith, 959 F. Supp. at 847 (granting plaintiff’s motion for judgment on the pleadings on the
ground that defendant’s criminal conviction for battery prevented him from denying facts
necessary to hold him liable for tortious battery claim, and specifying that “[t]he present ruling
only concerns liability” and that “[n]o issue is resolved regarding damages”). Thus, the Court
concludes that the Village is entitled to summary judgment on the liability portion of its tortious
battery claim, and this matter will be set for a prove up on damages in due course. See
Czajkowski v. City of Chicago, 810 F. Supp. 1428, 1433–34 (N.D. Ill. 1992) (in civil case
alleging battery, defendant was collaterally estopped from disputing that he had scratched
plaintiff with his keys based on his criminal conviction for battery based on the same facts);
Cook Cty. v. Lynch, 560 F. Supp. 136, 140 (N.D. Ill. 1982) (“It is well-established in [the
Seventh Circuit] that collateral estoppel may compel a grant of summary judgment as to the
factual issues resolved by the earlier judgment.”).
Finally, the Village moves for summary judgment on Plaintiff’s Monell claim. Under 42
U.S.C. § 1983, a person may sue anyone who, while acting under color of law, causes him to be
deprived of any of his constitutional rights. 42 U.S.C. § 1983; Connick v. Thompson, 563 U.S.
51, 60–62 (2011). A municipality can be held liable under § 1983 only “when execution of [its]
policy or custom, whether made by its lawmakers or by those whose edicts or acts may be fairly
said to represent official policy,” causes the constitutional deprivation. Monell v. Department of
Social Serv., 436 U.S. 658, 694 (1978). “A municipality may not be held liable under § 1983 on
a respondeat superior theory.” Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001)
(citing Monell, 436 U.S. at 690). To state a claim for municipal liability, a plaintiff must allege
that the violation of his rights was caused by “(1) the enforcement of an express policy of the
City, (2) a widespread practice that is so permanent and well settled as to constitute a custom or
usage with the force of law, or (3) a person with final policymaking authority.” Id.
In his complaint, Plaintiff advanced two theories of liability against the Village under
Monell: (1) that the actions of the individual officers were “undertaken pursuant to the policy,
custom, and practice of Defendant [the Village] whereby it failed to adequately train its police
officers, including [Officers Sullivan and Williams], on the proper use of force, including the use
of tasers, especially when dealing with persons having physical or mental impairments,
disabilities, or conditions of ill being,” and (2) that the Village exhibited “deliberate indifference
to the rights of persons having physical or mental impairments/disabilities to be free from
unreasonable seizure at the hands of Elk Grove officers by failing to adequately discipline
officers committing similar misconduct.” [1, at ¶¶ 52–53]. The Village moved for summary
judgment, arguing that Plaintiff cannot provide evidence to support either theory. [44, at 9.]
Plaintiff agrees, conceding in his summary judgment response brief that “discovery in this case
yielded insufficient evidence upon which to flesh out the failure-to-train and failure-to-discipline
species of Monell liability that the Plaintiff had initially framed in his pleading.” [47, at 14.]
However, Plaintiff attempts to advance an entirely new theory of Monell liability in his
summary judgment response brief, arguing that the Village’s express policy on the use of force
caused a violation of his constitutional rights. Plaintiff bases this new argument on the Village’s
written policy on the use of force, which states: “Mere passive resistance does not permit the use
of the Taser absent words or actions showing intent to actively resists or cause harm to self, the
officer[s] or others.” [48, at ¶ 17.] According to Plaintiff, this policy “invites and encourages
constitutional violations” because it does not provide any direction or guidance to officers “as to
when an officer who may have been initially justified in resorting to taser use in a given situation
must discontinue using such force.” [47, at 12.]
Plaintiff’s attempt to advance a new theory of Monell liability in his summary judgment
response brief is an impermissible tactic. The Seventh Circuit has held that claims and theories
of relief that are made in response to a motion for summary judgment and not brought in the
complaint are waived. Anderson v. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012) (citation and
internal quotation marks omitted). Since Plaintiff did not plead his express policy theory of
Monell liability in his complaint, he did not provide the Village with the fair notice required by
the federal pleading rules. See id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545
(2007)). Further, Plaintiff cannot his amend his complaint through arguments in his summary
judgment response brief. Id. (quoting Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir. 2002))
(internal quotation marks omitted).
Thus, the Village’s motion for summary judgment on the Monell claim is granted. See
Abuelyaman v. Ill. State Univ., 667 F.3d 800, 813–14 (7th Cir. 2011) (affirming the district
court’s refusal to consider a new theory of discrimination raised for the first time in opposition to
summary judgment and explaining that “[i]t is well settled that a plaintiff may not advance a new
argument in response to a summary judgment motion”); Andree v. Ashland Cnty., 818 F.2d
1306, 1314 n.11 (7th Cir. 1987) (affirming the district court’s rejection of a theory raised for the
first time in opposition to summary judgment because “Plaintiffs’ complaint did not give fair
warning of the theory” to the defendants).
For the reasons stated above, Defendants’ motion for summary judgment  is granted
in part and denied in part. This case is set for further status hearing on September 7, 2017 at
Dated: August 14, 2017
Robert M. Dow, Jr.
United States District Judge
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