Johnson v. Jarosz

Filing 151

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 9/23/2016.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JERRY VALE JOHNSON,
Plaintiff,
vs.
CITY OF CHICAGO, a municipal corporation,
CHICAGO POLICE OFFICER STEVE JAROSZ, Star
No. 6803, and ANITA ALVAREZ, Cook County State’s
Attorney,
Defendants.

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15 C 128
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Jerry Johnson brings this pro se suit against the City of Chicago and Chicago police
officer Steve Jarosz. Construed liberally, the operative complaint alleges false arrest and
conspiracy under 42 U.S.C. § 1983 and malicious prosecution under Illinois law. Doc. 59. (The
complaint purports to name Anita Alvarez, the State’s Attorney of Cook County, as a defendant,
but Johnson formally withdrew his claims against her early in the case, Doc. 13, and he will be
held to that decision.) Jarosz and the City have moved for summary judgment, and Johnson has
cross-moved for summary judgment. Docs. 107, 113, 118, 147. Jarosz’s motion is granted, the
City’s motion is granted in part and denied in part, and Johnson’s motions are denied.
Background
Consistent with Local Rule 56.1(a)(3), Jarosz filed a statement of undisputed facts along
with his summary judgment motion. Doc. 109. The City adopted Jarosz’s statement as its own
for the purposes of its summary judgment motion. Doc. 119 at 2. Local Rule 56.1(b)(3)(B)
required Johnson to respond to the Defendants’ Local Rule 56.1(a)(3) statement. See N.D. Ill.
L.R. 56.1(b)(3)(B) (requiring a “concise response to the movant’s statement that shall contain …

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a response to each numbered paragraph in the moving party’s statement, including, in the case of
any disagreement, specific references to the affidavits, parts of the record, and other supporting
materials relied upon”). Despite having been served with a Local Rule 56.2 Notice, Doc. 110,
which explained in detail the requirements of Local Rule 56.1, Johnson did not respond as
required. Johnson did file three briefs in opposition to summary judgment, but none include a
Local Rule 56.1(b)(3)(B) response. Docs. 115, 129, 134.
Johnson’s status as a pro se litigant does not excuse his failure to comply with Local Rule
56.1(b)(3)(B). See McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”); Coleman v. Goodwill Indus. of Se. Wis., Inc.,
423 F. App’x 642, 643 (7th Cir. 2011) (“Though courts are solicitous of pro se litigants, they
may nonetheless require strict compliance with local rules.”); Wilson v. Kautex, Inc., 371 F.
App’x 663, 664 (7th Cir. 2010) (“[S]trictly enforcing Local Rule 56.1 was well within the district
court's discretion, even though Wilson is a pro se litigant.”) (citations omitted); Cady v. Sheahan,
467 F.3d 1057, 1061 (7th Cir. 2006) (“[E]ven pro se litigants must follow rules of civil
procedure.”). Given Johnson’s failure to comply with Local Rule 56.1(b)(3)(B), the facts set
forth in Defendants’ Local Rule 56.1(a)(3) statement are deemed admitted. See N.D. Ill. L.R.
56.1(b)(3)(C) (“All material facts set forth in the statement required of the moving party will be
deemed to be admitted unless controverted by the statement of the opposing party.”); Keeton v.
Morningstar, Inc., 667 F.3d 877, 880, 884 (7th Cir. 2012); Parra v. Neal, 614 F.3d 635, 636 (7th
Cir. 2010); Rao v. BP Prods. N. Am., Inc., 589 F.3d 389, 393 (7th Cir. 2009); Ciomber v.
Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008); Raymond v. Ameritech Corp., 442

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F.3d 600, 608 (7th Cir. 2006); Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 943-44 (7th
Cir. 2005); Smith v. Lamz, 321 F.3d 680, 682-83 (7th Cir. 2003).
The court will consider Johnson’s Local Rule 56.1(b)(3)(C) statement of additional facts.
Doc. 134 at 6-8. In addition, because Johnson is pro se, the court will consider the Local Rule
56.1(a)(3) statements that he filed to support his own summary judgment motions as further
Local Rule 56.1(b)(3)(C) statements of additional facts in opposition to Defendants’ summary
judgment motions. Doc. 113-1; Doc. 147-2. That said, the court will not consider assertions in
Johnson’s Local Rule 56.1(b)(3)(C) statements to the extent they are not adequately supported by
specific references to the record. Nor will the court allow Johnson’s Local Rule 56.1(b)(3)(C)
statements to serve the function of what should have been his Local Rule 56.1(b)(3)(B) response
to Defendants’ Local Rule 56.1(a)(3) statement. As noted, Local Rule 56.1(b)(3)(B) requires the
non-movant to file “a response to each numbered paragraph in the moving party’s statement,
including, in the case of any disagreement, specific references to the affidavits, parts of the
record, and other supporting materials relied upon.” N.D. Ill. L.R. 56.1(b)(3)(B). The nonmovant’s submission of a Local Rule 56.1(b)(3)(C) statement does not and cannot properly
controvert “each numbered paragraph” of the movant’s Local Rule 56.1(a)(3) statement, as it
does not sync up with the factual assertions in the Local Rule 56.1(a)(3) statement.
The Seventh Circuit held as much in Ciomber v. Cooperative Plus, Inc., supra. The
plaintiff in Ciomber, who was injured when his house exploded, brought a negligence suit
against the company that supplied him with liquefied petroleum. 527 F.3d at 637. The
defendant moved for summary judgment. Id. at 639. In support of his opposition, the plaintiff
filed a “Rule 56.1 response … that … did not separate his proposed facts from his responses to
[the defendant’s] proposed material facts.” Id. at 643. “[T]he district court refused to consider

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the facts proposed in [the plaintiff’s] Rule 56.1 response,” and the Seventh Circuit affirmed,
holding that because the response did not comply Local Rule 56.1(b)(3)(B), which requires “a
response to each numbered paragraph in the moving party’s statement,” the district court “did
not err by refusing to consider the facts [the plaintiff] proposed.” Id. at 643-44.
The same result obtains here. The Seventh Circuit “has consistently upheld district
judges’ discretion to require strict compliance with Local Rule 56.1.” Flint v. City of Belvidere,
791 F.3d 764, 767 (7th Cir. 2015) (citing cases); see also Stevo v. Frasor, 662 F.3d 880, 886-87
(7th Cir. 2011) (“Because of the high volume of summary judgment motions and the benefits of
clear presentation of relevant evidence and law, we have repeatedly held that district judges are
entitled to insist on strict compliance with local rules designed to promote the clarity of summary
judgment filings.”). Here, the problem is not that Johnson did not strictly comply with Local
Rule 56.1(b)(3)(B); rather, it is that he did not comply at all. This court need not and will not
attempt to map the factual assertions in Johnson’s Local Rule 56.1(b)(3)(C) statements onto the
factual assertions in Defendants’ Local Rule 56.1(a)(3) statement to determine whether Johnson
has adduced a genuine dispute of material fact as to any of Defendants’ assertions; that is the
purpose of a properly constructed Local Rule 56.1(b)(3)(B) response. See Curtis v. Costco
Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015) (“The purpose of Rule 56.1 is to have the
litigants present to the district court a clear, concise list of material facts that are central to the
summary judgment determination. It is the litigants’ duty to clearly identify material facts in
dispute and provide the admissible evidence that tends to prove or disprove the proffered fact. A
litigant who denies a material fact is required to provide the admissible evidence that supports
his denial in a clear, concise, and obvious fashion, for quick reference of the court. The district
court did not abuse its discretion in finding Curtis failed to comply with

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requirements.”); Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) (“Because of
the important function local rules like Rule 56.1 serve in organizing the evidence and identifying
disputed facts, we have consistently upheld the district court’s discretion to require strict
compliance with those rules.”). Accordingly, the court accepts as true the facts set forth in
Defendants’ Local Rule 56.1(a)(3) statement. See Curtis, 807 F.3d at 218 (“When a responding
party’s statement fails to dispute the facts set forth in the moving party’s statement in the manner
dictated by the rule, those facts are deemed admitted for purposes of the motion.”); Parra, 614
F.3d at 636; Rao, 589 F.3d at 393.
The following facts are stated as favorably to Johnson as the record and Local Rule 56.1
permit. See Woods v. City of Berwyn, 803 F.3d 865, 867 (7th Cir. 2015). In considering
Defendants’ summary judgment motions, the court must assume the truth of those facts, but does
not vouch for them. See Arroyo v. Volvo Grp. N. Am., 805 F.3d 278, 281 (7th Cir. 2015).
On August 2, 2013, Jarosz or his partner, Officer Ryan Harty, sent a radio broadcast that
two suspects were fleeing a traffic stop. Doc. 109 at ¶ 10. That same day, Officer Armand
Garza stopped Johnson on the street outside the District Six police station. Id. at ¶¶ 15-16.
Garza patted down Johnson to search for weapons, whereupon Johnson informed Garza that he
was carrying a firearm. Id. at ¶¶ 17-18; Doc. 140 at ¶ 5. The firearm was loaded, Doc. 109 at
¶ 12, and Johnson did not possess a Firearm Owner’s Identification (“FOID”) card, id. at ¶ 14.
And Johnson was a felon, having been convicted of bank robbery. Doc. 134 at 7. Garza then
handcuffed Johnson. Doc. 109 at ¶ 19.
After Garza discovered the firearm and handcuffed Johnson, Jarosz arrived and identified
Johnson as one of the individuals who had fled the traffic stop, and after Johnson was brought to
the police station, Jarosz completed an arrest report and case report. Id. at ¶¶ 24-27. Jarosz

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spoke with an Assistant State’s Attorney about filing charges for unlawful possession of a
firearm, and after charges were approved, Jarosz signed a criminal complaint against Johnson for
unlawful possession of a firearm. Id. at ¶¶ 32-34. Ultimately, Johnson was not charged with any
act relating to the stopped vehicle; rather, he was indicted for being a felon in possession of a
firearm. Id. at ¶¶ 35-36. After the state court granted Johnson’s motion to suppress the firearm,
the prosecutor requested that the charge be terminated via nolle prosequi, and the charge was so
terminated. Id. at ¶¶ 37-39. The state court suppressed the firearm on the ground that Garza had
no justification for stopping Johnson outside the police station; the state court’s ruling did not
mention Jarosz or anything that Jarosz had done. Doc. 113-5.
Discussion
I.

False Arrest Claim
“To prevail on a claim of false arrest, the plaintiff must show there was no probable cause

for his arrest.” Jackson v. Parker, 627 F.3d 634, 638 (7th Cir. 2010). A showing of probable
cause is thus “an absolute defense to any claim under § 1983 against police officers for wrongful
arrest.” Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006). “Probable cause exists if
an officer reasonably believes, in light of the facts known to [him] at the time, that a suspect had
committed or was committing an offense.” United States v. Reed, 443 F.3d 600, 603 (7th Cir.
2006). Furthermore, “§ 1983 liability is premised on the wrongdoer’s personal responsibility.
An individual cannot be held liable in a § 1983 action unless he caused or participated in an
alleged constitutional violation.” Kuhn v. Goodlow, 678 F.3d 552, 555-56 (7th Cir. 2012)
(internal quotation marks omitted). “[A]n official meets the ‘personal involvement’ requirement
when she acts or fails to act with a deliberate or reckless disregard of plaintiff's rights or if the
conduct causing the constitutional deprivation occurs at her direction or with her knowledge and

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consent.” Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir. 1997) (internal quotation marks
omitted).
The state court determined that the Garza’s initial stop of Johnson violated the Fourth
Amendment. Doc. 113-5. However, Garza is not a defendant in this case. Doc. 101 (order
denying, for the reasons stated orally on the record, Johnson’s motion for leave to amend his
complaint to add Garza as a defendant). Jarosz is the sole individual defendant, and he seeks
summary judgment on the ground that he was not present during Garza’s initial stop of Johnson
and bears no liability for that violation of Johnson’s Fourth Amendment rights. Johnson does not
respond to that argument, thus forfeiting the point. See Nichols v. Mich. City Plant Planning
Dep’t, 755 F.3d 594, 600 (7th Cir. 2014) (“The non-moving party waives any arguments that
were not raised in its response to the moving party’s motion for summary judgment.”); G & S
Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly held
that a party waives an argument by failing to make it before the district court.”); Salas v. Wis.
Dep’t of Corr., 493 F.3d 913, 924 (7th Cir. 2007) (“[A] party forfeits any argument it fails to
raise in a brief opposing summary judgment.”).
Jarosz prevails on the merits in any event. Jarosz was not present when the unlawful
seizure occurred. True, Garza stopped Johnson after hearing Jarosz’s report that a suspect was in
flight, but there is no record evidence suggesting that Jarosz had any reason to expect that
another officer, in a different location, would unlawfully seize somebody in response to the
report. Jarosz bears no § 1983 liability for the initial seizure because he lacked the requisite
personal involvement.
Jarosz’s personal involvement, and thus his potential exposure to § 1983 liability, began
when he arrived at the scene, after Garza had seized Johnson and placed him in handcuffs. The

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question here is whether, under the circumstances, Jarosz’s arrest of Johnson was supported by
probable cause. “Probable cause is a fluid concept that relies on the common-sense judgment of
the officers based on the totality of the circumstances.” United States v. Reed, 443 F.3d 600, 603
(7th Cir. 2006). “In determining whether suspicious circumstances rise to the level of probable
cause, officers are entitled to draw reasonable inferences based on their training and
experiences.” Ibid. Additionally, “[p]robable cause only requires that a probability or substantial
chance of criminal activity exists; it does not require the existence of criminal activity to be more
likely true than not true.” Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1056-57 (7th Cir. 2011).
As noted, when Jarosz arrived at the scene, Johnson had been caught carrying a loaded
weapon, and he did not present a FOID card. Based on those facts, it was reasonable for Jarosz
to believe that Johnson had committed a crime, as carrying a loaded firearm in a public area
violated Illinois criminal statutes then in effect. See, e.g., 720 ILCS 5/24-1 (2013); 720 ILCS
5/24-1.6 (2013). Although the undisputed facts do not conclusively establish that Jarosz knew
that Johnson lacked a FOID card, that does not alter the analysis.
To begin with, Johnson does not press an argument that Jarosz lacked probable cause
because he did not know Johnson’s firearm license status, and thus has forfeited that issue. See
Nichols, 755 F.3d at 600; G & S Holdings, 697 F.3d at 538; Salas, 493 F.3d at 924. Also, as
noted above, an officer may make reasonable inferences in assessing whether he has probable
cause to arrest, and the fact that Johnson did not claim to possess a FOID card or concealed carry
permit would allow an officer to reasonably infer that he did not have one. That inference
provided ample support for Jarosz to conclude that a “probability or substantial chance” of
criminal activity existed. Mucha, 650 F.3d at 1057.

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In sum, Jarosz had a reasonable belief that Johnson was violating Illinois firearm laws,
which meant that he had probable cause to arrest him. See United States v. Shields, 789 F.3d
733, 746 (7th Cir. 2015) (“[O]nce [the officer] saw [the defendant] remove a firearm from his
pocket, he had probable cause to believe that [the defendant] had violated Illinois’s statutory
prohibition then in force against carrying firearms.”); United States v. Love, 350 F. App’x 70, 71
(7th Cir. 2009) (finding probable cause to arrest for unlawful use of a weapon, 720 ILCS 5/24-1,
where the officer saw a weapon in plain view in a vehicle); Powell v. City of Berwyn, 68 F. Supp.
3d 929, 937 (N.D. Ill. 2014) (“Officers had probable cause to arrest [plaintiff] for unlawful use of
a weapon when they saw him carrying a gun on a public street.”). And because there was
probable cause, Johnson cannot prevail on his false arrest claim against Jarosz.
II.

Malicious Prosecution Claim
Johnson’s malicious prosecution claim lies under Illinois law, not federal law. See

Howlett v. Hack, 794 F.3d 721, 727-28 (7th Cir. 2015); Ray v. City of Chicago, 629 F.3d 660,
664 (7th Cir. 2011). In Illinois, the elements of a malicious prosecution claim are: “(1) the
defendants commenced judicial proceedings, (2) for which there was no probable cause, (3) the
proceeding were instituted or continued maliciously, (4) the proceedings were terminated in the
plaintiff's favor, and (5) the plaintiff sustained an injury.” Saunders-El v. Rohde, 778 F.3d 556,
561 (7th Cir. 2015). Jarosz contends that Johnson cannot meet the second element, a lack of
probable cause.
Largely for the reasons set forth above, Jarosz is correct. Johnson was charged with
violating 720 ILCS 5/24-1.6-a(3)(A-5) (2013), aggravated unlawful use of a weapon. Doc. 1094 at 2. As noted, Johnson was in possession of a loaded weapon on a public way, yielding
probable cause to pursue a prosecution. Furthermore, while having a valid FOID or concealed

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carry permit could have negated probable cause, Johnson has not argued that he possessed either
of these, and nor has he argued that Jarosz did not know that he lacked them. Accordingly, any
such argument is forfeited.
Jarosz further contends, correctly, that Johnson cannot satisfy the fourth element, a
favorable termination of the criminal proceedings. To be favorable, a termination must be
“indicative of the innocence of the accused.” Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill.
1996). To determine whether a termination is indicative of the accused’s innocence, the court
examines the circumstances, not the form or title, of the disposition of the criminal charges. See
Cult Awareness Network v. Church of Scientology Int’l, 685 N.E.2d 1347, 1352-53 (Ill. 1997).
Thus, the dismissal of charges is not indicative of innocence if the dismissal “is the result of an
agreement or compromise with the accused, misconduct on the part of the accused for the
purpose of preventing trial, mercy requested or accepted by the accused, the institution of new
criminal proceedings, or the impossibility or impracticability of bringing the accused to trial.”
Swick, 662 N.E.2d at 1243.
The charges against Johnson were dismissed nolle prosequi, Doc. 109-6 at 4, after the
trial judge suppressed evidence that a firearm was found on Johnson’s person. Doc. 113-5.
Given these circumstances, no reasonable jury could find that reasonable grounds to pursue the
prosecution were absent. See Washington v. Summerville, 127 F.3d 552, 557 (7th Cir. 1997)
(“The cessation of the criminal proceedings must compel an inference that reasonable grounds to
pursue the criminal prosecution were lacking.”); Horan v. City of Chicago, 2010 WL 2836729, at
*8 (N.D. Ill. July 16, 2010) (holding that “the prior criminal proceeding was not terminated in a
manner that indicated plaintiff’s innocence” where “the narcotics found in plaintiff’s apartment
were discovered during an improper search and could not be used as evidence against plaintiff”).

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III.

Conspiracy Claim Against Jarosz
“To establish conspiracy liability in a § 1983 claim, the plaintiff must show that (1) the

individuals reached an agreement to deprive him of his constitutional rights, and (2) overt acts in
furtherance actually deprived him of those rights.” Beaman v. Freesmeyer, 776 F.3d 500, 510
(7th Cir. 2015). “[A] conspiracy claim cannot survive summary judgment if the allegations are
vague, conclusionary and include no overt acts reasonably related to the promotion of the alleged
conspiracy.” Amundsen v. Chicago Park Dist., 218 F.3d 712, 718 (7th Cir. 2000) (internal
quotation marks omitted).
Jarosz presses several arguments for summary judgment on the conspiracy claim, and
Johnson responds not at all, thereby forfeiting the claim. See Nichols, 755 F.3d at 600; G & S
Holdings, 697 F.3d at 538; Salas, 493 F.3d at 924. The claim fails on the merits in any event.
There is no record evidence that Jarosz and his alleged co-conspirator, State’s Attorney Alvarez,
actually agreed to violate his constitutional rights. Indeed, as Jarosz correctly notes, Doc. 108 at
12-13, Johnson has adduced no evidence even suggesting that Jarosz and Alvarez ever met or
talked, let alone that they agreed to violate Johnson’s constitutional rights. In the absence of
such a threshold showing, Jarosz is entitled to summary judgment.
IV.

Indemnification Claim Against the City
Johnson seeks indemnification against the City based on its liability, under a respondeat

superior theory, for Jarosz’s alleged torts. In Illinois, local government liability is governed by
the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1 et
seq. Relevant here, 745 ILCS 10/2-109 states that “a local public entity is not liable for an injury
resulting from an act or omission of its employee where the employee is not liable.” For the

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reasons discussed above, Jarosz bears no liability here. Thus, a state law indemnification claim
against the City based on Jarosz’s liability necessarily fails.
V.

Monell Claim Against the City
In addition to his § 1983 claims against Jarosz and his indemnification claim against the

City, Johnson also brings a § 1983 claim against the City. Doc. 59 at ¶¶ 38-44. Construing the
complaint liberally, this claim is based on one or both of two allegations: that the City failed to
properly train officers, id. at ¶¶ 39, 41, and that it had a policy of racial discrimination in arrests,
id. at ¶ 40.
Under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978),
a municipality is not liable for constitutional violations of its employees based on a respondeat
superior theory. Id. at 691. Rather, to recover from a municipality under § 1983, a plaintiff
must allege that “a government’s policy or custom” is responsible for the constitutional injury.
Id. at 694. Moreover, a plaintiff must allege “that an official policy or custom not only caused
the constitutional violation, but was the moving force behind it.” Estate of Sims ex rel. Sims v.
Cnty. of Bureau, 506 F.3d 509, 514 (7th Cir.2007) (internal quotation marks omitted). “An
official policy or custom may be established by means of [1] an express policy, [2] a widespread
practice which, although unwritten, is so entrenched and well-known as to carry the force of
policy, or [3] through the actions of an individual who possesses the authority to make final
policy decisions on behalf of the municipality or corporation.” Rice ex rel. Rice v. Corr. Med.
Servs., 675 F.3d 650, 675 (7th Cir. 2012); see also Milestone v. City of Monroe, Wis., 665 F.3d
774, 780 (7th Cir. 2011). Monell liability may be based on failure to train officers, but only
where “the failure to train amounts to deliberate indifference to the rights of persons with whom
the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989).

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The evidence Johnson has adduced to support his Monell claim is lacking. But that is
understandable given that the court, on the City’s motion, stayed Monell discovery pending
resolution of these summary judgment motions. Docs. 89, 128 (Schenkier, M.J.). It would be
highly inequitable under the circumstances to hold that Johnson has not adduced evidence
sufficient to withstand summary judgment on the Monell claim. And while summary judgment
for Jarosz for his conduct forecloses Monell liability on the City arising from that conduct, it
does not foreclose Monell liability arising from Garza’s conduct because victory for Johnson on
that Monell claim would not be inconsistent with summary judgment for Jarosz. See Thomas v.
Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 305 (7th Cir. 2010).
VI.

Johnson’s Summary Judgment Motions
Johnson has moved for summary judgment as to liability on his claims. The motions are

necessarily denied to the extent summary judgment has been granted to Defendants. As to the
one claim that survives, the Monell claim against the City, Johnson has not established on the
summary judgment record that he is entitled to judgment as a matter of law. Accordingly,
Johnson’s summary judgment motions are denied.
Conclusion
For the foregoing reasons, Jarosz’s summary judgment motion is granted, the City’s
summary judgment motion is granted in part and denied in part, and Johnson’s summary
judgment motion is denied. This suit will proceed only on Johnson’s Monell claim against the
City arising from Garza’s conduct.

September 23, 2016
United States District Judge

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