Phillips v. City Of Chicago et al
MEMORANDUM Opinion and Order: For the reasons stated in the Memorandum Opinion and Order, Movants' motion for summary judgment 102 is granted in part and denied in part. Signed by the Honorable Mary M. Rowland on 4/26/2021. (See attached order for further detail). Mailed notice. (dm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Case No. 18-cv-0316
CITY OF CHICAGO, et al.,
Judge Mary M. Rowland
MEMORANDUM OPINION AND ORDER
Plaintiff Sharnia Phillips brings this action under 42 U.S.C. § 1983 against the
City of Chicago and 37 Chicago police officers following a raid of her home in January
2017. Defendants Colin O’Shea, John Ormond, Paul Amelio, Orlando Sanchez,
William Murphy, Matthew Lockitski, Richard Coyle, Patrick Quinn, Ramon Flores,
Nicholas Linker, Michael Pantano, Brian Bardsley, John Hroma, Joseph Bird,
Eduardo Vasquez, Elvis Turcinovic, Scott Berry, Officer Molina and Michael Nowacki
move for summary judgment (“Movants”). For the reasons stated below, Movants’
motion for summary judgment  is granted in part and denied in part.
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. 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.” Id. at 250 (internal quotations omitted).
The Court “consider[s] all of the evidence in the record in the light most favorable
to the non-moving party, and  draw[s] all reasonable inferences from that evidence
in favor of the party opposing summary judgment.” Skiba v. Ill. Cent. R.R. Co., 884
F.3d 708, 717 (7th Cir. 2018) (internal citation and quotations omitted). The Court
“must refrain from making credibility determinations or weighing evidence.”
Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson,
477 U.S. at 255). In ruling on summary judgment, 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
Phillips filed her original complaint on January 16, 2018. (MSOF ¶1). 1 In her
complaint she alleges her home was searched on January 16, 2017 while she was
Movants’ Local Rule 56.1 Statement of Facts is abbreviated as “MSOF” (Dkt. 102-1). Phillips
responded and filed a Statement of Additional Facts (“PSOF”) at Dkt. 108-1. Movants
responded to Phillips’ Statement of Additional Facts at Dkt. 114-1.
there and she was detained by police during that search. (Id. ¶2). Phillips originally
named only the City of Chicago, Anthony Cutrone and other “Unknown Defendants
and/or Co-Conspirators” as defendants. (Id. ¶3). She filed her first amended
complaint on August 6, 2018, naming 17 individuals (none of the Movants here) and
“Unknown Defendants and/or Co- Conspirators.” (Id. ¶¶11-12). 2 On October 8, 2018,
the City emailed Phillips the SWAT Team Report (“SWAT Report”). (Id. ¶14). The
SWAT Report included, for the first time, the names of 20 SWAT team members that
participated in the raid on Phillips’ house. (PSOF ¶33).
In December 2019, Phillips moved to amend her complaint to name Movants as
defendants; that motion was granted and on February 27, 2020 she filed her second
amended complaint. (MSOF ¶¶15-16). In that complaint, Phillips sued Movants for
false arrest, excessive force, state law false imprisonment, malicious prosecution,
intentional infliction of emotional distress, assault, and battery. (Id. ¶17).
Movants argue that Phillips filed her original complaint on January 16, 2018,
within the limitation period for all of her claims, but named only Anthony Cutrone
and the City of Chicago as defendants. She did not name the Movants as defendants
until she filed her second amended complaint on February 27, 2020 (after seeking
leave to amend). By then, Movants contend, the statute of limitations for all of her
claims had expired. Phillips responds that her claims are timely based on the
For clarity and consistent with Movants’ naming, 19 defendants who moved for summary
judgment in the present motion are the “Movants.” The 18 defendants who moved to dismiss
are the “Defendants.”
discovery rule, the relation-back doctrine, equitable estoppel and equitable tolling.
The Court agrees that the relation-back doctrine applies, making Phillips’ claims
against Movants timely. 3
Phillips argues that her naming Movants as defendants in February 2020 relates
back to her first amended complaint filed August 6, 2018 because the first amended
complaint contained a mistake about the names of the officers responsible for her
injuries. Under Federal Rule of Civil Procedure 15(c)(1), an amendment to a pleading
relates back to the date of the original pleading when:
the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence…in the original pleading…the amendment
changes the party or the naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint, the party to be
brought in by amendment…received such notice of the action that it will
not be prejudiced in defending on the merits; and…knew or should have
known that the action would have been brought against it, but for a
mistake concerning the proper party’s identity.
Following the U.S. Supreme Court decision in Krupski v. Costa Crociere S. p. A.,
560 U.S. 538, 130 S. Ct. 2485, 177 L. Ed. 2d 48 (2010) addressing Rule 15(c)(1), the
Seventh Circuit explained:
The only two inquiries that the district court is now permitted to make
in deciding whether an amended complaint relates back to the date of
the original one are, first, whether the defendant who is sought to be
added by the amendment knew or should have known that the plaintiff,
had it not been for a mistake, would have sued him instead or in addition
to suing the named defendant; and second, whether, even if so, the delay
in the plaintiff's discovering his mistake impaired the new defendant's
ability to defend himself.
The Court therefore does not address the parties’ arguments about the discovery rule,
equitable estoppel or equitable tolling.
Joseph v. Elan Motorsports Techs. Racing Corp., 638 F.3d 555, 559–60 (7th Cir. 2011).
Here, the record demonstrates that the answer to the first question is yes and the
answer to the second is no. Therefore Movants are proper defendants. See id. at 558
(“A party who is on notice long before the statute of limitations expires that he is an
intended defendant, and who suffers no harm from the failure to have been named as
a defendant at the outset, is in the same position as a defendant sued within the
statute of limitations.”).
A. What Movants Knew or Should Have Known
In May 2018, the City disclosed in its sworn MIDP answers the names of police
officers with “discoverable information”. (MSOF ¶¶9-10; Dkt. 102-4, Exh. 3). The
officers identified were the “Warrant Team.” 4 Based on that information, on August
6, 2018, Phillips filed her first amended complaint naming those defendants. (Dkt.
26). However in September 2019, when the Warrant Team answered interrogatories,
each of those defendants stated that “he was not personally involved in the execution
of the warrant at 1408 W. 71st Street, Chicago, Illinois on January 16, 2017.” (PSOF
¶41, Dkt. 114-1 ¶41). The SWAT Report, containing the SWAT Team member names,
was produced to Phillips in October 2018, but “was created on or before January
29, 2017 and was in the possession of the City of Chicago throughout the pendency
The “Warrant Team” are the 18 defendants who separately moved to dismiss. The “SWAT
Team” are the 19 Movants who moved for summary judgment here.
of litigation.” (PSOF ¶¶ 33, 36; Dkt. 114-1 at ¶ 36). 5 As a result, Phillips argues, the
Movants knew or should have known on August 6, 2018 when she filed her first
amended complaint that they were subjects of her claims.
The parties dispute whether Phillips made a “mistake” warranting application of
the relation-back doctrine. Movants argue that Phillips is simply substituting them
in for “Unknown Defendants” and therefore the “John Doe” rule applies. Under that
rule, a plaintiff naming an unknown defendant as “John Doe” was not a mistake, and
replacing “John Doe” with a named defendant did not relate back to the original
complaint. See Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 596 (7th Cir. 2006). As
Movants observe, the Seventh Circuit has not yet specifically addressed whether the
relation-back doctrine alters the “John Doe” rule since Krupski. (Dkt. 114 at 4). See
Headrick v. Wise, 2021 WL 462203, at *5 (S.D. Ill. Feb. 9, 2021) (“In the Seventh
Circuit, whether Krupski alters the ‘John Doe rule’  remains an open question.”).
Since Krupski, district courts in this Circuit have reached different conclusions on
the issue. See Haroon v. Talbott, 2017 WL 4280980, at *6 (N.D. Ill. Sept. 27, 2017)
What is clear is that the focus of the analysis now is on defendants’ knowledge.
Joseph, 638 F.3d at 559–60; Clair v. Cook Cty., Illinois, 2017 WL 1355879, at *4 (N.D.
Ill. Apr. 13, 2017) (“Under Krupski and Joseph,  the court must limit its inquiry
Two of Movants’ responses to Phillips’ additional statements of fact state that Movants
agree “on information and belief”. (Dkt. 114-1, ¶¶ 33, 36). This response does not comply with
LR 56.1(e) requiring a party to admit, dispute, or admit in part and dispute in part an
asserted fact, and in the case of dispute, cite to evidentiary material that controverts the fact.
Phillips’ additional statements in ¶¶ 33, 36 are deemed admitted. See McGuire v. United
Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998).
under Rule 15(c)(1)(C)(ii) to what the newly named defendants knew or should have
Movants do not dispute that the claims against them arise “out of the conduct,
transaction, or occurrence” in the first amended complaint. Fed.R.Civ.Pro.
15(c)(1)(B). Movants do not dispute that they had the SWAT Report, containing the
SWAT Team officer names, in their possession since the beginning of this litigation.
(PSOF ¶ 36). They also do not dispute that they did not disclose Movants’ names in
their May 2018 MIDP Responses; that they did not provide Phillips with the SWAT
Report until October 2018; and that it was not until September 2019 that the Warrant
Team members denied involvement in the events that allegedly caused Phillips’
injuries. (MSOF ¶ 10, PSOF ¶¶14, 41).
Movants therefore knew or should have known at the time Phillips filed her first
amended complaint that she would have sued them “instead or in addition to suing
the named defendant.” Joseph, 638 F.3d at 559–60. See also Moore v. Cuomo, 2018
WL 4095101, at *8 (N.D. Ill. Aug. 28, 2018) (“Defendants knew or should have known
from the original complaint that they were the intended defendants”); Bilik v. Hardy,
2019 WL 4735394, at *4 (N.D. Ill. Sept. 27, 2019) (concluding “that ‘the traditional
John Doe rule should not be applied to prevent relation back if a plaintiff seeks to
determine the identity of the John Doe defendant[s] before the statute of limitations
expires but is unable to do so.’”) (citation omitted); Haroon, 2017 WL 4280980, at *7
(the “defendant-focused analysis applies whether the plaintiff sues the wrong
defendant because of a misunderstanding or sues a fictitious defendant because of a
lack of knowledge.”).
The facts here show that Phillips made a “mistake” for purposes of Rule 15(c)—
naming the Warrant Team only in her first amended complaint because at that time,
those were the only officer names she had been provided by defendants, the Warrant
Team had not yet disavowed personal involvement in the execution of the search
warrant, and the City had not yet produced the SWAT Report. The Supreme Court
in Krupski relied on dictionary definitions to define “mistake” to include an “error,
misconception, or misunderstanding,” and also “inadequate knowledge.” 560 U.S.
548-49. As the Court explained, “a plaintiff might know that the prospective
defendant exists but nonetheless harbor a misunderstanding about his status or role
in the events giving rise to the claim at issue, and she may mistakenly choose to sue
a different defendant based on that misimpression. That kind of deliberate but
mistaken choice does not foreclose a finding that Rule 15(c)(1)(C)(ii) has been
satisfied.” Id. at 549.
This is not a case where a plaintiff knew that specific defendants existed and their
roles in the conduct, simply called them “unknown officers”, and did nothing to
discover their identities, or where plaintiff made a deliberate decision to name one
defendant and not the other. Cf. Haroon, 2017 WL 4280980, at *9 (plaintiff’s litigation
strategy, combined with his pleading scheme, made it reasonable for newly-named
defendant to believe that, although he was involved in the suit as a witness, plaintiff
made a deliberate choice to name employer instead of employee).
In light of the defendant-focused analysis under Krupski and the particular
undisputed facts in this case, the Court finds that Phillips’ claims against Movants
relate back to her August 2018 amended complaint.
Phillips also argues that Movants will not suffer prejudice from having to defend
against her claims. (Dkt. 108 at 11). The same attorneys are representing the SWAT
Team and Warrant Team, none of the Movants have been deposed, the Warrant Team
defendants did not answer discovery until September 2019, and Phillips has always
alleged the same, single course of conduct against the individual police officers. (Id.)
Movants do not argue that they will face any prejudice. See Cheatham v. City of
Chicago, 2016 WL 6217091, at *3 (N.D. Ill. Oct. 25, 2016) (applying relation-back
where officer did not argue that she was unaware of plaintiff's complaint within the
prescribed time and did not argue she would be impaired from defending herself). 6
Still Movants argue that if the Court finds that relation-back applies, a question
of material fact would exist as to whether they knew about the lawsuit prior to
November 6, 2018 and they may need discovery to answer that question. However, it
is undisputed that the SWAT Report was created on or before January 29, 2017,
was in the possession of the City throughout this litigation and that the City
There was a delay between October 2018 when Phillips received the SWAT Report and
December 2019 when she moved to add the SWAT Team defendants. However this delay does
not factor into the Court’s analysis. As one court explained, “[t]o the extent Plaintiff's
diligence in filing his complaint is at issue, the Krupski Court made clear that ‘[t]he Rule
plainly sets forth an exclusive list of requirements for relation back, and the amending party's
diligence is not among them.’” Moore, 2018 WL 4095101, at *8 (quoting Krupski, 560 U.S. at
produced the SWAT Report to Phillips on October 9, 2018. These undisputed facts
show that Movants had, at the least, constructive notice of the lawsuit before
November 6, 2018. See Krupski, 560 U.S. at 545 (lower court found defendant had
“constructive notice of the action and had not shown that any unfair prejudice would
result from relation back”); Manskey v. Wiggs, 2020 WL 6701186, at *8-9 (S.D. Ill.
Nov. 13, 2020); White v. City of Chicago, 2016 WL 4270152, at *13 (N.D. Ill. Aug. 15,
2016) (“Where the defendant has received adequate notice and therefore the policy
behind the statute of limitations is not implicated, the Court must construe Rule 15(c)
liberally...to effectuate the general purpose of seeing that cases are tried on the merits
and to dispense with technical procedural problems) (cleaned up).
State Law Claims
Movants argue that Phillips failed to respond their motion regarding the
timeliness of her state law claims. The Court agrees. Phillips’ state law claims have
a one-year statute of limitations. 745 ILCS 10/8-101(a). Her August 2018 first
amended complaint was not filed within the one-year statute of limitations. And she
does not argue that her February 2020 second amended complaint relates back to her
original January 2018 complaint. See G & S Holdings LLC v. Cont'l Cas. Co., 697
F.3d 534, 538 (7th Cir. 2012) (“The obligation to raise the relevant arguments rests
squarely with the parties…If [judges] are given plausible reasons for dismissing a
complaint, they are not going to do the plaintiff's research and try to discover whether
there might be something to say against the defendants’ reasoning.”) (cleaned up);
Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011).
For the stated reasons, Movants’ motion for summary judgment  is granted
in part and denied in part. Counts I-III survive, and Count V is dismissed with
prejudice against Movants. In light of this opinion and the concurrently-entered
opinion on the motion to dismiss, the following claims remain against the following
Count I – False Arrest #1
Officers Cutrone, O’Shea, Ormond, Amelio, Sanchez,
Murphy, Lockitski, Coyle, Quinn, Flores, Linker,
Pantano, Bardsley, Hroma, Bird, Vasquez, Turcinovic,
Berry, Molina and Nowacki
Count II – False Arrest #2
Officer Cutrone, O’Shea, Ormond, Amelio, Sanchez,
Murphy, Lockitski, Coyle, Quinn, Flores, Linker,
Pantano, Bardsley, Hroma, Bird, Vasquez, Turcinovic,
Berry, Molina and Nowacki
Count III – Excessive Force
Under 4th Amendment
Officer Cutrone, Cavanaugh, Pedregosa, Foy,
Waterstraat, Barona, Garcia, Cumming, Hyma, Miller,
Lucki, Wolf, Curran, Huels, Demas, Darlin, Thompson,
Conroy, O’Shea, Ormond, Amelio, Sanchez, Murphy,
Lockitski, Coyle, Quinn, Flores, Linker, Pantano,
Bardsley, Hroma, Bird, Vasquez, Turcinovic, Berry,
Molina and Nowacki
Count IV – City of Chicago
Count V – State Law Torts
City of Chicago
IIED against Officer Cutrone only
E N T E R:
Dated: April 26, 2021
MARY M. ROWLAND
United States District Judge
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