Godinez v. City Of Chicago et al

Filing 407

MEMORANDUM Opinion and Order: The Court denies the City's summary judgment motion 279 as to the Illinois wrongful death and Monell policy claims. Signed by the Honorable Mary M. Rowland on 10/30/2019. (See Memorandum Opinion and Order for further details.) Mailed notice. (dm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JANET GODINEZ, on behalf of herself
and as administrator of the estate of
her brother, HERIBERTO GODINEZ,
Deceased,

Case No. 16-cv-07344

Plaintiff,

Judge Mary M. Rowland

v.
THE CITY OF CHICAGO, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Janet Godinez filed this action against Defendant City of Chicago (“the
City”) and individually named Defendant Police Officers for conduct, she alleges,
resulted in the death of her 26-year-old brother Heriberto Godinez on July 20, 2015.
Plaintiff asserts excessive force, failure to intervene, supervisory liability and
conspiracy claims under 42 U.S.C. § 1983 as well as a Monell policy claim and Illinois
state law claims for wrongful death, battery, and intentional infliction of emotional
distress. The City moves for summary judgment on Plaintiff’s Illinois wrongful death
claim and the Monell policy claim (Counts V and VI). For the reasons stated below,
the Court denies the City’s motion for summary judgment [279] as to these claims.

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SUMMARY JUDGMENT STANDARD
Summary judgment is proper where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A genuine dispute as to any 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 substantive law controls which facts are
material. Id.
The party seeking summary judgment has the burden of establishing that there
is no genuine dispute as to any material fact. See Celotex, 477 U.S. at 323 (1986).
After a “properly supported motion for summary judgment is made, the adverse party
must set forth specific facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 250 (quotation omitted). Construing the evidence and facts supported by
the record in favor of the non-moving party, the Court gives the non-moving party
“the benefit of reasonable inferences from the evidence, but not speculative inferences
in [its] favor.” White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016) (internal
citations omitted). “The controlling question is whether a reasonable trier of fact
could find in favor of the non-moving party on the evidence submitted in support of
and opposition to the motion for summary judgment.” Id. (citation omitted).

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ANALYSIS
I.

Illinois Wrongful Death Claim

Under the Illinois Wrongful Death Act, 740 ILCS 180/1, a decedent’s estate may
bring a suit against a party “whose alleged ‘wrongful act, neglect or default’ caused
the death.” Paredes v. Cook Cty., No. 15 C 3644, 2018 WL 4955865, at *3 (N.D. Ill.
Oct. 12, 2018) (quoting 740 ILCS 180/1). A plaintiff must prove causation in order to
prevail on a wrongful death claim. Id. “Proximate cause is a question of fact for the
jury unless there is no material issue regarding the matter or only one conclusion is
clearly evident.” Williams v. Univ. of Chicago Hosps., 179 Ill. 2d 80, 88–89, 688 N.E.2d
130, 134 (1997).
The City moves for summary judgment against Plaintiff on the wrongful death
claim because “Plaintiff cannot produce admissible evidence from which a jury could
reasonably find that Godinez’s death was caused by the actions of police officers.”
(Dkt. 280 at 4). Defendants argue that because Plaintiff’s retained cause of death
experts, forensic pathologist Michael Baden, M.D., and neuropathologist, Jan
Leestma, M.D., should be barred, Plaintiff cannot meet the essential element of
causation.
Concurrently with the instant motion, the City filed motions to exclude the
testimony of Drs. Leestma and Baden. For the reasons described in separate rulings,
(Dkts. 400 & 401), the Court will allow both Drs. Leestma and Baden to testify as to
cause of death. The Court found those experts qualified to opine as to the cause of
death, that their methodology is sound, and that their testimony will be helpful to

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the jury. The weight to be given to the doctors’ conclusions are questions for the jury
to decide and can be tested on cross-examination at trial. Gayton v. McCoy, 593 F.3d
610, 619 (7th Cir. 2010) (“[W]hether the cause put forth by a qualified expert actually
proximately caused the injury at issue is a question for the jury at trial; a district
court should only evaluate whether an expert's conclusion on causation was reasoned
and based on a reliable methodology.”); Daubert v. Merrell Dow Pharms., 509 U.S.
579, 596 (1993) (“Vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.”).
Because the Court will allow the testimony of Drs. Leestma and Baden as
qualified and reliable experts, this case presents the classic “battle of the experts” on
the cause of death issue. Defendants will present expert testimony from forensic
pathologists that the cause of Mr. Godinez’s death was alcohol and cocaine
intoxication, (dkt. 280 at 4) (citing Def. SOF ¶¶44, 57); whereas, Plaintiffs’ experts
will testify that the cause of death was positional asphyxia and spinal cord injury
caused by Defendant Officers’ use of force. (Dkt. 344 at 4–6) (citing Pl. SOAF ¶¶8, 11,
13–14). It is not for this Court to make credibility determinations on the expert
opinions on summary judgment. Manjarrez v. Georgia-Pac. LLC, No. 12 C 1257, 2013
WL 3754861, at *5 (N.D. Ill. July 16, 2013). This “battle of the experts” creates a
genuine issue of material fact. Chamberlain Grp., Inc. v. Lear Corp., 756 F.Supp.2d
938, 951 (N.D.Ill.2010) (“It is indeed true that a ‘battle of the experts' can preclude
summary judgment”). Given the conflicting expert testimony, and drawing all

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reasonable inferences against the moving party, the Court finds the issue of causation
to be appropriately left to the trier of fact and denies summary judgment as to the
wrongful death claim. 1
II.

Monell Claim
A. Monell Standard

A municipality can be liable under 42 U.S.C. § 1983 for a constitutional violation.
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018 (1978). Liability arises
“only where the municipality itself causes the constitutional violation at issue.” City
of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197 (1989) (emphasis in
original). Therefore under Monell, the “critical question” is whether a municipal
policy or custom “gave rise to the harm (that is, caused it), or if instead the harm
resulted from the acts of the entity’s agents.” Glisson v. Ind. Dep't of Corr., 849 F.3d
372, 379 (7th Cir. 2017).
To establish § 1983 municipal liability, a plaintiff must show “(1) he suffered a
deprivation of a federal right; (2) as a result of either an express municipal policy,
widespread custom, or deliberate act of a decision-maker with final policy-making
authority for the City; which (3) was the proximate cause of his injury.” Ovadal v.
City of Madison, Wisconsin, 416 F.3d 531, 535 (7th Cir. 2005). The second element
may take one of three forms: “(1) an express policy that would cause a constitutional

The City also requests to be dismissed from any excessive force, failure to intervene,
conspiracy, supervisory liability or survival claims based on lack of evidence of causation.
(Dkt. 280 at 9). That argument is rejected for the reasons already stated. In addition, this
Court’s ruling on Defendant Officers’ motion for summary judgment, entered with this
opinion, denies Defendant Officer’s motion on these claims except the conspiracy claim. The
conspiracy claim is dismissed with prejudice.

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deprivation if enforced; (2) a common practice that is so widespread and well-settled
that it constitutes a custom or usage with the force of law even though it is not
authorized by written law or express policy; or (3) an allegation that a person with
final policy-making authority caused a constitutional injury.” Rossi v. City of Chi.,
790 F.3d 729, 737 (7th Cir. 2015). There are “no bright-line rules defining a
widespread custom or practice.” Thomas v. Cook Cty. Sheriff's Dep't, 604 F.3d 293,
303 (7th Cir. 2010) (internal quotations omitted). An unconstitutional policy can
include implicit policies or a gap in expressed policies. Daniel v. Cook Cty., 833 F.3d
728, 734 (7th Cir. 2016) (citations omitted). A plaintiff must prove “a true municipal
policy at issue, not a random event.” See Calhoun v. Ramsey, 408 F.3d 375, 380 (7th
Cir. 2005).
B. Parties’ Arguments
In its motion, the City argues that it should prevail as a matter of law on the
Monell claim because Plaintiff cannot show that her brother’s death was the result of
any widespread unconstitutional custom or practice by the City. (Dkt. 280). The City
contends that all of Plaintiff’s Monell evidence relates to solely the in-custody death
of Godinez, and a single incident does not establish a widespread practice or policy.
The City further argues that the investigative files it produced do not show any de
facto unconstitutional policy.
Plaintiff responds that a jury should decide the Monell claim. She argues that the
City is liable under Monell because it was deliberately indifferent to the Chicago
Police Department’s (CPD) widespread pattern and practice of (1) using excessive

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force; (2) failing to adequately train officers on restraint techniques; (3) failing to
maintain video and audio recording equipment and recordings; (4) permitting a code
of silence to exist within CPD; and (5) failing to hold police officers accountable for
misconduct. (Dkt. 344 at 12); see also Second Amended Complaint (SAC), (Dkt. 159
¶¶34–48).
To show a genuine issue of material fact exists, Plaintiff relies on the following
evidence: (1) the 2017 Department of Justice Report (DOJ Report); (2) April 2016
Police Accountability Task Force Report (PATF Report); (3) statements by former
Mayor Rahm Emanuel and Superintendent Eddie Johnson; (4) Charles Drago’s
expert report; (5) other cases involving death by positional asphyxia; and (6) the
officers’ testimony in this case.
C. The DOJ and PATF Reports
As an initial matter, the City did not object to the admissibility of the DOJ Report
as hearsay in its motion for summary judgment, only in its reply brief. The City only
argued that the DOJ and PATF Reports were not related to this case. (Dkt. 280 at
12). The City’s hearsay argument is waived. See Wagner v. Teva Pharm. USA, Inc.,
840 F.3d 355, 360 (7th Cir. 2016) (arguments raised for the first time in a reply brief
are waived). Even so, the Court finds the DOJ Report to be admissible evidence as an
exception to the hearsay rule.
Federal Rule of Evidence 803(8)(A)(iii) provides an exception to the rule against
hearsay for "[a] record or statement of a public office if it sets out…in a civil case…
factual findings from a legally authorized investigation." Fed. R. Evid. 803(8)(A)(iii).

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See Daniel, 833 F.3d at 740 (“These findings can take the form of an evaluative report
containing both opinions and conclusions.”). The party opposing the admission of the
evidence has the burden to show that "the source of information or other
circumstances indicate a lack of trustworthiness." Fed. R. Evid. 803(8)(B).
At least three other courts in this district have found this DOJ Report to be
admissible. See First Midwest Bank v. City of Chi., 337 F. Supp. 3d 749, 778 (N.D. Ill.
2018) (“The Court thus again finds the [DOJ Report] which, much like the PATF
report, consists of directly-relevant subject material, a close enough fit to the issues
at bar in the case to fall within 803(8).”); Estate of Loury v. City of Chi., 2019 U.S.
Dist. LEXIS 38029, at *3 (N.D. Ill. Mar. 11, 2019) (DOJ Report admissible); Simmons
v. City of Chi., 2017 U.S. Dist. LEXIS 137395, at *25 (N.D. Ill. Aug. 28, 2017) (same).
The court in Estate of Loury addressed the similar lack of trustworthiness arguments
raised here by the City. (Dkt. 379 at 14-15). This Court agrees with the analysis in
Estate of Loury and finds the reasons the City offers to undermine the
trustworthiness of the DOJ Report to be unconvincing.
Therefore the DOJ Report is admissible. It is also relevant evidence raising a
genuine issue of material fact about whether the City was aware of and deliberately
indifferent to widespread customs and practices at the CPD that permitted the
alleged unconstitutional and wrongful conduct in this case. The DOJ Report is timely,
since the incident in this case occurred in July 2015, and the report studied a time
period of January 2011 through April 2016.

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The City contends that the statements Plaintiff relies on in the DOJ Report do not
“discuss the restraint techniques that are the subject of her municipal liability claim
here.” (Dkt. 379 at 13). Plaintiff relies on the DOJ Report for its discussion and
conclusions about excessive force, deficient investigative and accountability systems,
and a culture of cover-up and code of silence. Plaintiff specifically cites, for example,
the report’s conclusion that the “use of unreasonable force to quickly resolve nonviolent encounters is a recurrent issue at CPD.” (DOJ Report, Dkt. 354-16, Exh. P).
These are all subjects of her allegations that the police officers in this case acted as
they did because the CPD’s practice and policy, condoned by the City, made them
believe they would not be investigated or disciplined for using excessive force. The
DOJ Report does not discuss the specific restraint techniques in this case but that
does not bar Plaintiff from relying on the report as evidence of a genuine issue of
material fact related to her Monell claim.
Plaintiff also relies on the PATF Report’s statements about the CPD’s code of
silence and deficiencies in the IPRA process. The City argues that the PATF Report
is not relevant to this case, but did not object to its admissibility. For the same reasons
the Court finds the DOJ Report relevant to Plaintiff’s Monell claim, the PATF Report
is also relevant. See LaPorta v. City of Chi., 277 F. Supp. 3d 969, 989 (N.D. Ill. 2017)
(considering PATF report on summary judgment and explaining that “the contents of
the City-commissioned PATF report constitute admissions of a party opponent under
Fed. R. Evid. 801(d)(2)(D), [and the] hearsay contents of the PATF and DOJ reports
are admissible” under Rule 803(8)(A)(iii)).

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D. Public Officials’ Statements
Plaintiff argues that statements by then-Mayor Rahm Emmanuel and Police
Superintendent Johnson are admissions about the existence of the code of silence.
Plaintiff points to statements such as the former Mayor’s statement, five months after
Godinez’s death, that he was looking for a new CPD leader to address a problem
“sometimes referred to as the Thin Blue Line. Other times it is referred to as the code
of silence. It is the tendency to ignore, deny or in some cases cover-up the bad actions
of a colleague or colleagues…” Pl’s. SOF ¶53. The City argues that these officials’
statements “are evidence that the City was continuously striving to do better.” The
Court agrees with Plaintiff that these statements are evidence showing that
judgment as a matter of law in favor of the City at this stage is not appropriate. See
Cazares v. Frugoli, 2017 U.S. Dist. LEXIS 49938, at *58 (N.D. Ill. Mar. 31, 2017) (“the
Mayor's acknowledgement of the existence of a code of silence, along with the findings
of the City's PATF and the DOJ's report, provide further, significant evidence
regarding the existence of a code of silence within the CPD”); see also LaPorta, 277 F.
Supp. 3d at 989.
E. Expert Charles Drago
Plaintiff proffers police procedures expert Charles Drago to support her case that
there is sufficient evidence to overcome summary judgment on her Monell claim.
(Dkts. 281-43, Exh. 43 and 281-44, Exh. 44). As an initial matter, the Court agrees
with the City that to the extent Drago opines on the cause of Godinez’s death, that
opinion should be disregarded. (Dkt. 379 at 10). However, Plaintiff’s arguments rely

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on Drago’s opinions about police restraint techniques and training including as they
relate to positional asphyxia, use of force generally and by the officers in this case,
and CPD’s customs and practices as they relate to this case. In his supplementary
report Drago opines, for example, that “The City of Chicago through the Chicago
Police Department failed to provide adequate and proper supervision of their police
officers in use of force and otherwise” and “The City of Chicago through the Chicago
Police Department failed to train their police officers in the proper use of the vascular
neck restraint (Carotid Compression).”
The Court does not read Drago’s opinions as dependent on one account of
Godinez’s cause of death. He certainly refers to and opines on positional asphyxia.
But he reaches opinions, for example that lack of training and proper supervision
caused the officers to use unreasonable of force by standing on Godinez’s neck, based
on his review of the video, CPD documents, officers’ testimony and other evidence in
the case. Therefore Drago’s reports are additional evidence supporting Plaintiff’s
argument that the Monell question cannot be resolved on summary judgment. See
LaPorta, 277 F. Supp. 3d at 988 (evidence including expert testimony “suffices to
create a jury question on whether the code of silence was at work during the
investigation into the LaPorta shooting.”).
F. Officer Testimony and Training Materials
Both parties rely on the officers’ deposition testimony as support for their
arguments that the officers were or were not properly trained in restraint techniques
and use of force. Similarly, both parties rely on the 1995 CPD training bulletin on

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positional asphyxia as support for their positions. (Dkt. 345-8. Exh. H). Drawing
reasonable inferences in favor of Plaintiff based on these testimonies, the training
bulletin, and other evidence in the case, there is a triable issue about whether the
CPD had a custom or practice of failing to implement training related to use of force
and restraint techniques that cut off a detainee’s breathing. See City of Canton, 489
U.S. at 390 (“it may happen that in light of the duties assigned to specific officers or
employees the need for more or different training is so obvious, and the inadequacy
so likely to result in the violation of constitutional rights, that the policymakers of
the city can reasonably be said to have been deliberately indifferent to the need.”).
However the Court will not otherwise make determinations about the officers’
credibility or decide how much weight to give to the 1995 CPD training bulletin. See
Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
G. Moving Force
To establish the causal link between the municipal policy and alleged
constitutional deprivation, a plaintiff must “demonstrate that, through its deliberate
conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bd. of the
Cty. Comm’rs v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388 (1997) (emphasis in
original). The City argues that it cannot be the “moving force” behind the alleged
constitutional injury because there is no evidence the police officers caused Godinez’s
death, and summary judgment should be granted for that reason alone. (Dkt. 280 at
15). But Plaintiff has offered evidence of causation in the form of expert testimony. It

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will be up to the jury to weigh the expert testimony, but the Plaintiff has offered
enough evidence about causation to survive summary judgment.
To further argue that the City was deliberately indifferent to the dangers of
positional asphyxia, Plaintiff asserts that “the City has been on notice of the dangers
presented by the kind of force and restraint techniques Defendant Officers used on
Godinez” since the late 1980s or early 1990s. (Dkt. 344 at 16). Plaintiff cites a number
of other cases such as Animashaun v. O'Donnell, 1994 U.S. Dist. LEXIS 17339 (N.D.
Ill. Dec. 5, 1994). The City responds that these cases are “from a bygone era” and are
hearsay. 2 The Court agrees with Plaintiff that these cases, along with other evidence
such as the 1995 training bulletin give rise to the reasonable inference that the City
had notice—in other words, that the City was aware of and deliberately indifferent to
uses of improper restraint techniques. 3
The City also contends the Court should not consider evidence before January
2012 because that was the discovery period that was set for the City’s production of
certain investigative files. But that was a discovery time frame for a certain
production, not a limit on the evidence Plaintiff could use to show pattern and practice
under Monell for purposes of summary judgment. 4

The City also argues that Plaintiff did not disclose these cases in response to contention
interrogatories. However the Court can take judicial notice of other court decisions. See
Parungao v. Cmty. Health Sys., 858 F.3d 452, 457 (7th Cir. 2017).

2

Of course this finding is different from a finding of admissibility for trial. See e.g.
Simmons, 2017 U.S. Dist. LEXIS 137395 at *23-24.

3

The Court does not agree with Plaintiff, however, that the “empty chair” problem is a
reason to deny summary judgment. Plaintiff has not cited any case law for the proposition
that this is a concern in a Monell case.
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The City makes three other arguments in support of summary judgment. First,
the City argues that an investigation was done in this case, making the Plainitff’s
Monell theory based on inadequate investigations a moot point. That oversimplifies
Plaintiff’s theory. It also looks at the theory from the wrong vantage point—the
question is about what culture the officers were operating under and what they
believed would happen as a result of their conduct on the night of July 20, 2015.
Second, the City argues that there is no constitutional right to having police maintain
video and audio recording equipment and recordings. But Plaintiff’s theory is that
the expectation that recording equipment would malfunction or not be used is one
aspect of the lack of accountability officers expected because of CPD policies and
practices which therefore led to them allegedly using unreasonable force on detainees
like Godinez.
Third, the City contends that Plaintiff’s evidence is limited only to her brother’s
death. As the City concedes, “[n]o bright-line rule dictates how frequently conduct
must occur.” (Dkt. 280 at 10). See Thomas, 604 F.3d at 303; Glisson, 849 F.3d at 382
(“There is no magic number of injuries that must occur before its failure to act can be
considered deliberately indifferent.”). The City stresses that the investigative files for
a three-year period it produced do not contain evidence of similar incidences. Plaintiff
does not respond to that argument. The weight and conclusions to be drawn from the
investigative files, to the extent they are deemed admissible, are questions for the
jury.

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Nevertheless, while a plaintiff must show evidence of systemic deficiencies, she
need not “present evidence that these systemic failings affected other specific
inmates.” Daniel, 833 F.3d at 735 (emphasis added). In other words, even if Plaintiff
has not pointed to particular deaths similar to Godinez’s, Plaintiff has pointed to a
variety of evidence, in the form of the DOJ and PATF Reports, public officials’
statements, expert testimony, other lawsuits, and evidence about CPD training and
accountability that create a genuine issue of fact about the casual link between
Godinez’s death and CPD practices and the City’s Monell liability. That is enough to
survive summary judgment. “Where the ‘causal link is not too tenuous, the question
whether the municipal policy or custom proximately caused the constitutional
infringement should be left to the jury.’” Estate of Loury, 2019 U.S. Dist. LEXIS
38029, at *23 (quoting LaPorta, 277 F. Supp. 3d at 991). “[A] plaintiff need only
produce evidence sufficient to potentially persuade any reasonable jury.” Blasius v.
Angel Auto., Inc., 839 F.3d 639, 648 (7th Cir. 2016) (emphasis in original) (citing
Anderson, 447 U.S. at 248).
III.

Conclusion

For the stated reasons, the Court denies the City’s summary judgment motion
[279] as to the Illinois wrongful death and Monell policy claims.

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E N T E R:
Dated: October 30, 2019
MARY M. ROWLAND
United States District Judge

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