Munn et al v. City of Aurora et al

Filing 114

MEMORANDUM Opinion and Order: Defendants' motion for summary judgment 89 is granted on Counts I and II. Counts III through VII are dismissed without prejudice. Signed by the Honorable Mary M. Rowland on 3/6/2020. (See Memorandum Opinion and Order for more details). Civil case terminated. Mailed notice. (dm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN MUNN, ET AL.
Plaintiffs,

Case No. 17 cv 05296

v.

Judge Mary M. Rowland

CITY OF AURORA, ET AL.
Defendants.

MEMORANDUM OPINION & ORDER
Plaintiff police officers and their families, John Munn, et al., bring this
lawsuit against Defendants City of Aurora (“Aurora”) and Jo Ann Osberg (“Osberg”)
alleging violations of the Fourth and Fourteenth Amendments pursuant to 42
U.S.C. § 1983, and various state tort law claims. Before this Court is Defendants’
motion for summary judgment. For the reasons stated below, Defendants’ motion is
granted on the federal claims and the state claims are dismissed without prejudice.
BACKGROUND
The following facts are taken from the parties’ Joint Statement of Undisputed
Facts. On September 16, 2015, Jesse Alvarez, an inmate at Menard Correctional
Center, sent a Freedom of Information Act (“FOIA”) request to the Aurora Police
Department (“APD”), seeking the personnel records of Plaintiff officers. (Dkt. 91 at
¶¶24-31.) Defendant Osberg, Records Manager/FOIA Officer for the APD, handled
Alvarez’s FOIA request. (Id. at ¶¶10; 32.) Osberg knew that Alvarez was
incarcerated for attempted murder and understood that it could be dangerous if a
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prisoner like Alvarez came into possession of officers’ personal information. (Id. at
¶¶18; 33; 98.)
Osberg followed a routine process when handling FOIA requests. She first
gathered all responsive documents and combined them into a single PDF. (Id. at
¶16.) Using Adobe Pro, she then applied the necessary redactions. (Id.) Osberg
knew that personal information such as social security numbers, home addresses,
telephone numbers, personal email addresses, spouse names, and financial
information had to be redacted in every FOIA response. (Id. at ¶50.) Osberg
reviewed the documents three times to apply redactions using a bottom-to-top
approach. (Id. at ¶¶19-21.) During her first review, she made redactions to the
bottom of each page. (Id. at ¶19.) During the second review, she made redactions to
the middle of each page, and during her third and final review, she made redactions
to the top of each document. (Id. at ¶¶20-21.) This is the same method Osberg used
when reviewing Alvarez’s FOIA response. (Id. at ¶41.)
On September 28, 2015, Osberg completed Alvarez’s FOIA request, printed
the responsive documents, and mailed them to Alvarez. (Id. at ¶39.) Osberg did not
review the physical documents to be mailed to Alvarez after printing them. (Id.)
There was also no policy in place at the APD requiring Osberg’s supervisor or the
legal department to review FOIA responses and such oversight did not occur as a
matter of practice. (Dkt. 104 at ¶¶122;125; Dkt. 91 at ¶36.)
Although many of the pages contained proper redactions, 196 of the 695
pages of documents sent to Alvarez contained unredacted personal information,

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such as home addresses, phone numbers, and financial information, of the subject
officers 1. (Dkt. 91 at ¶40; 43-45.) Osberg does not know how certain personal
information was left unredacted, but testified that she did not purposefully fail to
redact such information. (Id. at ¶¶41; 48; 52.)
On or about November 14, 2016, Alvarez sent a letter to Plaintiff Arturo
Montemayor at his home address, explaining that he had obtained Montemayor’s
address through a FOIA request to the APD. (Id. at ¶¶56-57.) Montemayor reported
the letter to the APD, around which time Osberg first learned that Alvarez’s FOIA
response contained unredacted personal information. (Id. at ¶¶66; 68.) The APD
audited Osberg’s FOIA responses and discovered two other instances where Osberg
had failed to redact an officer’s personal information and that information was sent
to an inmate. (Id. at 88-89.) Osberg was terminated from her position at the APD in
December 2016. (Id. at ¶55.)
Plaintiffs bring the current suit against Osberg and the City of Aurora
alleging that the release of their personal and private information to Alvarez
violates their substantive due process rights under 42 U.S.C. § 1983 (Counts I and
II) and various state tort laws (Counts III through VII).
LEGAL 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

Although Alvarez had not requested any information about Plaintiff Arturo Montemayor, the
response also included his personal information. (Dkt. 91 at ¶60.) Osberg admits this was improper.
(Id.)

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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).
ANALYSIS
I.

§ 1983 Substantive Due Process Claims
Plaintiffs allege that Defendants violated their Fourth and Fourteenth

Amendment due process rights under the state-created danger theory. The Supreme
Court has cautioned that the Due Process Clause “does not transform every tort
committed by a state actor into a constitutional violation,” so generally, a “State’s

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failure to protect an individual against private violence [or injury] simply does not
constitute a violation of the Due Process Clause.” DeShaney v. Winnebago County
Dep’t of Soc. Servs., 489 U.S. 189, 197; 202 (1989). The state-created danger exception
is a “narrow” exception to this rule, “reserved for egregious conduct by public
officials.” Estate of Her v. Hoeppner, 939 F.3d 872, 876 (7th Cir. 2019) (quotation
omitted). To establish a due process claim under the state-created danger exception
Plaintiffs must demonstrate that: (1) Osberg and Aurora, “by [their] affirmative acts,
created or increased a danger to the plaintiff[s]”; (2) Osberg’s and Aurora’s “failure to
protect against the danger caused the plaintiff[s’] injury; and (3) the conduct in
question shocks the conscience.” Id. (quotation omitted).
Defendants argue that they are entitled to summary judgment because the
evidence fails to demonstrate conscience-shocking conduct. While this “standard
lacks precise measurement,” “[o]nly conduct falling toward the more culpable end of
the spectrum shall be found to shock the conscience.” King ex rel. King v. E. St. Louis
Sch. Dist. 189, 496 F.3d 812, 818-19 (7th Cir. 2007). Mere negligence, or even gross
negligence, does not give rise to liability under § 1983. McDowell v. Vill. of Lansing,
763 F.3d 762, 766 (7th Cir. 2014). At the very least, deliberate indifference, meaning
“conscious disregard of known or obvious dangers,” is required. Hoeppner, 939 F.3d
at 876; Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998). The Court first
assesses whether this standard is met with respect to Plaintiffs’ due process claim
against Osberg.

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As Plaintiffs emphasize, Osberg certainly knew the serious dangers posed by
a felon’s possession of officers’ personal information. (Dkt. 91 at ¶33; 98.) But there
is no evidence to suggest that Osberg sent the Alvarez FOIA response in conscious
disregard of these known dangers. It is undisputed that Osberg did not know that the
Alvarez FOIA response contained unredacted personal information at the time she
sent it. (Id. at ¶68.) Without such knowledge, Osberg could not have deliberately
disregarded the dangers posed by the leaked information. Neither do Plaintiffs
present evidence that Osberg had reason to suspect that the Alvarez FOIA response
contained unredacted personal information. To the contrary, Osberg reviewed the
responsive documents using her tri-part method (id. at ¶41), which at the time she
had no reason to question. 2 She intended to and attempted to redact all the Plaintiffs’
personal information as evidenced by her testimony that she did not purposefully
release officer information (id. at ¶52) and the fact that much of the personal
information in the Alvarez FOIA response was successfully redacted. (Id. at ¶40; 48.)
Plaintiffs argue that Osberg failed to take necessary precautions against the
release of officers’ personal information to inmates, citing to the lack of adequate
oversight and policies or protocols to ensure that inmate FOIA requests were properly
handled. First, the lack of such institutional precautions bears only on the City of
Aurora’s actions, not on Osberg’s, as she is being sued in her individual capacity, not

The audit revealing that Osberg had twice previously released officers’ personal information to an
inmate took place a year after Osberg sent the Alvarez FOIA response. (Dkt. 91 at ¶88.)

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her official capacity as the APD’s FOIA Officer. 3 Second, even if the lack of these
precautions was relevant, at the most it establishes negligence. Osberg cannot be held
constitutionally liable on the basis of errors she did not actually know existed or did
not even have reason to suspect existed, even if she might have learned of them had
she taken additional precautions.
Plaintiffs cite to Kallstrom v. City of Columbus and Monfils v. Taylor, arguing
that they compel the Court to reach an alternate conclusion. 136 F.3d 1055 (6th Cir.
1998); 165 F.3d 511 (7th Cir. 1998). In Kallstrom, the City of Columbus provided
police officers’ personnel files to the legal defense team of a gang member arrested by
the officers. 136 F.3d at 1059. The Sixth Circuit held “that the City’s policy of freely
releasing this information from the undercover officers’ personnel files…creates a
constitutionally cognizable ‘special danger,’ giving rise to liability under § 1983.” Id.
at 1067 (emphasis added). In Monfils, an informant (Monfils) made several calls to
police asking that the tape of an anonymous call he made not be released to the
coworker on whom he had informed. 165 F.3d at 513-15. Despite their assurances of
maintaining his anonymity, police took no action to ensure that the tape would not
be released, and subsequently released the tape to the coworker, who murdered
Monfils shortly thereafter. Id. The Seventh Circuit held that these facts supported a
due process violation under the state-created danger theory. Id. at 520.

Plaintiffs rely on Whitted v. Dart, No. 12 C 2461, 2014 WL 2819004 (N.D. Ill. June 23, 2014), for
support. But that case named the defendant police sheriff in his official capacity and was assessed
under the standards set forth in Monell.

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The key distinction between these cases and the present is that the release of
private information in Kallstrom and Monfils was intentional, or at least reckless. 4
To the contrary, the release of information in the present case was inadvertent. The
defendants in Kallstrom and Monfils took no steps to ensure that sensitive
information was not released. Osberg intended to redact the personal information
and attempted to redact the personal information, partially producing such
information unknowingly and inadvertently. The case law establishes that the
intentional release of private information in the face of known dangers supports a
finding of deliberate indifference necessary for a due process violation, while the
inadvertent release of such information does not. See for example, Weisberg v.
Riverside Twp. Bd. of Educ., 180 F. App'x 357, 365 (3d Cir. 2006) (the inadvertent
disclosure of private medical information did not rise to the level of a constitutional
violation because “the Due Process Clause is simply not implicated by a negligent act
of an official causing unintended loss of or injury to life, liberty, or property.”)
(quotation omitted).
No reasonable jury could find that Osberg had the mens rea required to violate
Plaintiffs’ substantive due process rights under the state-created danger exception. 5
Because Osberg cannot be found to have violated Plaintiffs’ due process rights,
Plaintiffs’ due process claim against the City of Aurora under Monell v. Dept. of Soc.
Plaintiffs confusingly argue that in these “cases, the intentionality of the release of the private
information was not dispositive.” (Dkt. 96 at 8). Rather, according to Plaintiffs, those case focus on
whether the defendants in the cases acted with gross negligence, reckless disregard or deliberate
indifference. Id. But terms like “gross negligence” and “deliberate indifference” go directly to the
intentionality of one’s actions.
5 Because this Court grants summary judgment on the merits, the Court does not address Osberg’s
qualified immunity argument.
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Servs., 436 U.S. 658 (1978) must also be dismissed. Sallenger v. City of Springfield,
Ill., 630 F.3d 499, 504 (7th Cir. 2010) (“[A] municipality cannot be liable under Monell
when there is no underlying constitutional violation by a municipal employee.”).
Summary judgment is granted on Counts I and II.
II.

State Law Tort Claims
The remainder of Plaintiffs’ claims arise under state law. As summary

judgement is granted on Plaintiffs’ federal claims, this Court relinquishes its
jurisdiction over any supplemental state law claims, which Plaintiffs may now pursue
in state court. Miller v. Herman, 600 F.3d 726, 738 (7th Cir. 2010) (“[W]hen all federal
claims are dismissed before trial, the district court should relinquish jurisdiction over
pendent state-law claims rather than resolving them on the merits.”) (quotations and
citations omitted).
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is
granted as to Counts I and II. Counts III through VII are dismissed without
prejudice.
E N T E R:
Dated: March 6, 2020
MARY M. ROWLAND
United States District Judge

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