Mordi v. Zeigler et al

Filing 100

ORDER ADOPTING REPORT AND RECOMMENDATIONS; For the reasons explained in the attached order, the Report & Recommendation submitted by Magistrate Judge Stephen C. Williams (Doc. 87 ) is ADOPTED in FULL. Plaintiff's Motion for Summary Judgment a gainst the ISP Defendants (Doc. 64 ) is DENIED; the Marion County Defendants' Motion for Summary Judgment (Doc. 59 ) is GRANTED; Plaintiff's Cross Motion for Summary Judgment against the Marion County Defendants (Doc. 79 ) and Defendants ' Motion to Strike that Motion (Doc. 81 ) are accordingly MOOT; The ISP Defendants' Motion for Summary Judgment (Doc. 55 ) is GRANTED IN PART and DENIED IN PART; the Effingham County Defendants' Motion for Summary Judgment (Doc. 61 is GRANTED; Plaintiffs' Cross Motion for Summary Judgment against the Effingham Defendants (Doc. 76 ), as well as Defendants' Motion to Strike that Cross Motion (Doc. 80 ) are accordingly MOOT; and Plaintiff's Appeal of Magistrate J udge Decision (Doc. 90 ) is MOOT. A final pretrial conference remains set for 1:30 p.m. on Wednesday, September 25 before Magistrate Judge Stephen C. Williams; jury trial remains set for 9:00 a.m. on Monday, October 7, 2013. Signed by Judge Michael J. Reagan on 09/19/13. (dkd )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UCHE PHILLIP MORDI,
Plaintiff,
vs.
TODD ZEIGLER, NATHAN
ZERRUSEN, ROB RICH, COREY
RISTVEDT, MYRON PANSING, GREG
CHANCE, GREGG HEALEY, RICHARD
KAMMINGA, EDWARD DETERS,
RALPH FOWLER, JOHN MONNET,
JERRY DEVORE, EFFINGHAM
COUNTY SHERIFF’S DEPARTMENT,
COUNTY OF EFFINGHAM, MARION
COUNTY SHERIFF’S DEPARTMENT,
and COUNTY OF MARION,
Defendants.

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Case No. 11–cv–0193–MJR–SCW

MEMORANDUM & ORDER
REAGAN, District Judge:
INTRODUCTION AND PROCEDURAL HISTORY
The Vienna Convention on Consular Relations (Vienna Convention), Apr. 24, 1963, 21
U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261, is a multilateral treaty to which both the United
States and Nigeria are signatories. S ee Osagiede v. United States , 543 F.3d 399 (2008). The
treaty governs relations between individual nations and foreign consular officials.

Id. at 402

(quoting Sanchez-Llamas v. Oregon , 548 U.S. 331, 336 (2006) (Breyer, J., dissenting)).
Article 36 of the Vienna Convention imposes three obligations on an authority detaining a foreign
national: (1) to inform the consulate of the foreign national’s arrest or detention without delay; (2) to
forward communications from a detained national to the consulate without delay; and (3) to inform

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a detained foreign national of his rights under Article 36 without delay. I d. (citing Vienna
Convention, art. 36(1)(b)).
Plaintiff Uche Phillip Mordi, a Nigerian national, was not informed of his Article 36 rights
when the Illinois State Police arrested him during a 2009 traffic stop, and did not find out about
those rights until 2010, when residing in federal prison. (In the interim, he had pled guilty to federal
drug charges; Plaintiff is currently incarcerated in an Ohio Correctional Center that contracts with
the Federal Bureau of Prisons). In 2011, and pursuant to 42 U.S.C. § 1983, Plaintiff sued myriad
state and local officials, plus the Illinois State Police (“ISP”) and two local sheriff’s departments, on
multiple constitutional and treaty-based theories. On 28 U.S.C. § 1915A threshold review, the
undersigned dismissed all Plaintiff’s claims except for his allegations his Article 36 rights were
violated by the state troopers who arrested him (Defendants Zeigler and Zerrusen), other individual
officers along his chain of custody (Chance, Healey, Kamminga, Pansing and Rivstedt of the ISP;
Rich, Fowler, and Monnet of the Effingham County Sheriff’s Department; and Sheriff Devore of
the Marion County Sheriff’s Department), and two state prosecutors (Deters and Fowler). Plaintiff’s
Monell claims against the sheriff’s departments of Effingham and Marion counties also survived
screening.
All Defendants filed summary judgment motions in early 2013. Plaintiff filed his own
summary judgment motion on March 18, 2013, and a cross motion for summary judgment in May
2013. The motions ripened, and on July 11, 2013, Magistrate Judge Stephen C. Williams submitted a
Report and Recommendation (“R&R”) via 28 U.S.C. § 636, in which he recommended the
following:
1. Granting (Doc. 61) the Effingham County Defendants’ summary judgment motion;
2. Granting (Doc. 59) the Marion County Defendants’ summary judgment motion;

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3. Denying as Moot (Doc. 76, Doc. 79, Doc. 80, and Doc. 81) Plaintiff’s cross motions
pertaining to the Effingham and Marion County Defendants, as well as those
Defendants’ motions to strike Plaintiff’s cross motions;
4. Denying (Doc. 64) Plaintiff’s Cross Motion for Summary Judgment as to Defendants
Zeigler, Healey and Chance (all of them ISP Defendants);
5. Granting in part and denying in part (Doc. 55) the ISP Defendants’ collective summary
judgment motion as follows:
a.

Granting summary judgment to Defendants Pansing, Ristvedt, Zerrusen and
Kamminga; and

b. Denying summary judgment as to Defendants Zeigler, Healey and Chance.
In accordance with 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), Judge Williams set a deadline for the
parties to file objections to any or all of the proposed dispositive findings in his R&R.
Plaintiff filed three specific objections: (1) that Effingham Sheriff Monnet (who assumed
custody of Plaintiff after the ISP) should be responsible for his subordinates’ failure to inform
Plaintiff of his Article 36 rights, and that the lack of evidence regarding Monnet’s duty to inform
Plaintiff of those rights precludes summary judgment; (2) that the Monell claims against Effingham
County should therefore also survive; and (3) that he should have been granted summary judgment
on his cross motion against Defendants Zeigler, Chance, and Healey.
ISP defendants Zeigler, Chance and Healey filed a sixteen-page Objection that rehashes five
of the same points made in their summary judgment motion: (1) Plaintiff is not entitled to nominal
damages; (2) Plaintiff has no evidence of evil motive / intent or reckless / callous indifference; (3)
Plaintiff offers no evidence Defendant Zeigler knew Plaintiff was a Nigerian national; (4)
Defendants are entitled to qualified immunity; and (5) Plaintiff offers no evidence any Defendant
was aware of Vienna Convention obligations.
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The undersigned need only make de novo determinations of the portions of Judge Williams’
R&R to which objections are made. 28 U.S.C. § 636(b)(1)(C); T homas v. Arn , 474 U.S. 140
(1985); Johnson v. Zema Sys. Corp. , 170 F.3d 734, 741 (7th Cir. 1999); Video Views, Inc. v.

Studio 21, Ltd. , 797 F.2d 538 (7th Cir. 1986). Accordingly, before proceeding to the substance of
the parties’ objections, the Court ADOPTS in part Judge Williams’ R&R thusly, since none of the
following recommendations drew an objection:
The Motion for Summary Judgment filed by Jerry DeVore, the County of Marion, and
the Marion County Sheriff’s Department (Doc. 59) is GRANTED. Plaintiff’s Cross
Motion for Summary Judgment (Doc. 79) against those Defendants, as well as the
Defendants’ Motion (Doc. 81) to Strike that Cross Motion, are accordingly MOOT.
The Clerk is DIRECTED to terminate Defendants Jerry DeVore, the Marion County
Sheriff’s Department, and the County of Marion from the docket.
The ISP Defendants’ Motion for Summary Judgment (Doc. 55) is GRANTED IN
PART. Summary judgment is granted as to Defendants Pansing, Ristvedt, Zerrusen and
Kamminga, and the Clerk is DIRECTED to terminate those Defendants from the
docket.
The Effingham County Defendants’ Motion for Summary Judgment (Doc. 61) is
GRANTED IN PART. Summary judgment is granted to Defendants Rich, Deters,
and Fowler, and the Clerk is DIRECTED terminate those Defendants from the docket.
With those Defendants terminated, the Court can focus on the record as it pertains to the
remaining parties: Plaintiff; ISP Officers Zeigler, Chance and Healey; and Effingham County Sheriff
Monnet (along with Effingham County and its Sheriff’s Department). The Court undertakes de novo
review of the dispositive cross motions pertaining to those parties. 28 U.S.C. § 636(b)(1)(C).
FACTUAL BACKGROUND
Defendant Zeigler, an ISP officer, pulled Plaintiff over for a license plate violation in March
2009. During the stop, Zeigler discovered Plaintiff had a warrant outstanding in a neighboring
county, and asked for permission to search the car. Plaintiff refused permission, and a local K-9 unit
was called to the scene. The K-9 unit alerted to the presence of drugs, and Zeigler arrested Plaintiff.

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Plaintiff—a Nigerian national living legally in the United States1—does not specifically recall telling
Zeigler he was from Nigeria, or that he was a Nigerian citizen, but he does believe he had a
conversation with Zeigler about his Nigerian name. Zeigler, though he argues that information
would not necessarily give him knowledge of Plaintiff’s Nigerian citizenship, does not deny
authorship of a next-day field report that lists Nigeria as Plaintiff’s place of birth.
Zeigler took Plaintiff to an ISP interrogation room, where Plaintiff was interviewed by
Officers Chance and Healey. It is undisputed that, during that interview, Plaintiff identified himself
as a Nigerian and told the officers he was not a United States citizen. The ISP has an official,
written policy requiring foreign nationals to be notified of their right to seek consular assistance, but
no such notification was given.
After Plaintiff’s ISP interview, he was transferred to the Effingham County jail, where he
informed an intake officer (not a defendant here) of his Nigerian citizenship, but never met
Effingham Sheriff Monnet.

Plaintiff was subsequently transferred to another local jail, and

eventually convicted on federal charges.
ANALYSIS
1. Summary Judgment Standard
Summary judgment is warranted only if the admissible evidence considered as a whole shows
no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law.

Dynegy Mktg. & Trade v. Multiut Corp. , 648 F.3d 506, 517 (7th Cir. 2011) (citing FED. R.
CIV. P. 56). The initial burden is borne by the party seeking summary judgment, which must
demonstrate the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).

Though Plaintiff has never been a U.S. citizen, at the time of his 2009 arrest he had a valid social security number, a
green card, and Illinois driver’s license.

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Once 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 v. Liberty Lobby,

Inc ., 477 U.S. 242, 250 (1986). See also Serednyj v. Beverly Healthcare, LLC , 656 F.3d 540,
547 (7th Cir. 2011) (“When a summary judgment motion is submitted and supported by
evidence . . . the nonmoving party may not rest on mere allegations or denials in its
pleadings”). A mere scintilla of evidence supporting the non-movant's position is insufficient to
overcome summary judgment; a non-movant will prevail only when it presents definite, competent
evidence to rebut the motion. Estate of Escobedo v. Martin , 702 F.3d 388, 403 (7th Cir. 2012);

Parent v. Home Depot U.S.A., Inc. , 694 F.3d 919, 922 (7th Cir. 2012). But even a self-serving
affidavit filed by a prisoner can be enough to ward off summary judgment. See Navejar v. Iyiola ,
718 F.3d 692, 697 (7th Cir. 2013). Summary judgment is only appropriate if, on the evidence
provided, no reasonable juror could return a verdict in favor of the non-movant. Carlisle v. Deere

& Co. , 576 F.3d 649, 653 (7th Cir. 2009).
The Court’s role on summary judgment is not to evaluate the weight of the evidence, to
judge witness credibility, or to determine the truth of the matter, but rather to determine whether a
genuine issue of triable fact exists. Nat’l Athletic Sportswear, Inc. v. Westfield Ins. Co. , 528
F.3d 508, 512 (7th Cir. 2008). The Court considers facts in a light most favorable to the nonmovant. Srail v. Vill. of Lisle , 588 F.3d 940, 948 (7th Cir. 2009).
2. Plaintiff’s Objections to R&R — Overruled
Plaintiff’s objections to Judge Williams R&R are threefold: (1) Effingham Sheriff Monnet
(who assumed custody of Plaintiff after the ISP) should be responsible for his subordinates’ failure
to inform Plaintiff of his Article 36 rights, and that the lack of evidence regarding Monnet’s duty to
inform Plaintiff of those rights precludes summary judgment; therefore (2) the Monell claims against
Effingham County should therefore also survive; and (3) that he should have been granted summary
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judgment on his cross motion against Defendants Zeigler, Chance, and Healey. The undersigned
takes the objections in turn.

A. Summary Judgment for Sheriff Monnet is Warranted
Because it would have been reasonable for him to rely on the ISP to take responsibility for
the consular notification requirement, Judge Williams recommends granting summary judgment for
Effingham Sheriff Monnet on qualified immunity grounds. Plaintiff asserts Monnet is not entitled
to summary judgment because he “was responsible for making sure his subordinates were aware of
and abided by the requirements of the Vienna Convention” (Doc. 95), and because the evidence
shows Sheriff Monnet could not (or did not) rely on the earlier-in-the-chain-of-custody ISP officers
to have informed Plaintiff of his Article 36 rights.
Several legal propositions defeat Plaintiffs’ objection. As to Monnet’s “responsibility” for
ensuring his subordinates’ compliance with the Vienna Convention, it is well-established that a
defendant must be personally responsible for the deprivation of a right for a § 1983 claim to
succeed. Backes v. Vill. of Peoria Heights, Ill. , 662 F.3d 866, 869 (7th Cir. 2011). While a
supervisor may be personally liable if he knows about his subordinates’ conduct and facilitates,
approves, condones, or turns a blind eye to it, id. (citing Chavez v. Ill. State Police , 251 F.3d 612,
651 (7th Cir. 2001)), there is no evidence on the record that Monnet knew of Plaintiff’s Nigerian
citizenship, much less approved of his intake officer’s failure to inform Plaintiff of his Vienna
Convention rights.
Plaintiff’s second objection attacks Judge Williams’ qualified immunity holding, in which he
concludes it would have been reasonable for Sheriff Monnet to assume the ISP—the entity that
arrested and detained Plaintiff—took responsibility for the consular notification requirement. A
plaintiff seeking to defeat a qualified immunity defense must establish both the deprivation of a right
and that the right in question was “clearly established.” Miller v. Harbaugh , 698 F.3d 956, 962
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(7th Cir. 2012). Citing on a 2012 case from another district, Judge Williams concluded Plaintiff’s
right to consular notification was not “clearly established” to the extent that a municipality holding
an ISP prisoner cannot rely on the ISP to have discharged the consular notification requirement.

See Belbachir v. Cnty. of McHenry , 2012 WL 4595344, at *5 (N.D. Ill. Sept. 28, 2012), rev’d in
part on other grounds , --- F.3d ----, 2013 WL 4046454 (7th Cir. 2013). In that case, a local
municipality holding a federal prisoner was granted qualified immunity on the same issue where “it
would have been reasonable for [the defendant] to conclude that the consular notification
responsibility belonged exclusively to the federal authority and that those authorities had carried it
out.” Id.
The undersigned finds the magistrate’s reliance on Belbachir on point. Holding otherwise
would punish the Effingham defendants for failing to follow a rule that, at each stage in the custody
process, a detainee’s citizenship should be confirmed, as should previous custodian’s compliance
with Article 36. Such a rule is unworkable and, more importantly for a qualified immunity analysis,
is not part of Seventh Circuit precedent. Plaintiff further posits that, because there is no agreement
between the ISP and Monnet’s department regarding the consular notification requirement, and that
Monnet did not provide an affidavit that he actually relied on ISP notification, summary judgment is
improper. That logic would expose Monnet to liability for what he did not know at the time of
Plaintiff’s detention, and run afoul of the purpose of qualified immunity: to provide a government
official reasonable notice that certain conduct violates a plaintiff’s rights before the plaintiff can
subject him to liability. Narducci v. Moore , 572 F.3d 313, 318 (7th Cir. 2009). The Court
GRANTS in part (Doc. 61) the Effingham County Defendants’ summary judgment motion as it
pertains to Sheriff Monnet.
Plaintiff’s argument that Monnet failed to ensure his subordinates’ compliance with Vienna
Convention requirements is really a Monell argument, and is therefore controlled by his next
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objection: that because Monnet should have been personally liable for a Vienna Convention
violation, the Monell claim against Effingham County and its Sheriff’s Department should survive.

B . Summary Judgment on Monell Claims re: Effingham Cnty. & its Sheriff’s Dep’t.
Where a custom, policy or practice effectively causes or condones alleged violations of
rights, a municipality can still be subject to § 1983 liability without violations by any of its officers.

Monell v. New York Dep’t of Soc. Servs. , 436 U.S. 658 (1978); Matthews v. City of E. St.
Louis , 675 F.3d 703, 708–09 (7th Cir. 2012). A municipality can be held liable under Monell, even
if its officers are not, unless such a finding would create an inconsistent verdict. Thomas v. Cook

Cnty. Sheriff’s Dep’t, 604 F.3d 293, 305 (7th Cir. 2009). Inadequate police training can only serve
as a basis for § 1983 liability where it amounts to deliberate indifference to the rights of citizens
encountered by the department’s officers. Matthews , 675 F.3d at 709.
Here, as discussed above, both Sheriff Monnet and his officers were granted summary
judgment on qualified immunity grounds, because no precedent shows law enforcement officials in
custody of a foreign national have a continuing duty to ensure that national is apprised of his Article
36 rights. See Belbachir v. Cnty. of McHenry , 2012 WL 4595344, at *5 (N.D. Ill. Sept. 28,
2012), rev’d on other grounds, --- F.3d ----, 2013 WL 4046454 (7th Cir. 2013). As Judge
Williams concluded, it would be inconsistent to hold a municipality liable for insufficiently training
its officers regarding the rights of its detainees when the individual rights asserted by a plaintiff are
not clearly established. That hardly amounts to deliberate indifference toward citizens’ (or in this
case, non-citizens’) rights. Further, Plaintiff does not attack that conclusion—he only asserts that,
because Sheriff Monnet should not be granted summary judgment, neither should Effingham
County or the Sheriff’s Department.
He has waived any argument under Thomas v. Cook Cnty. Sheriff’s Dep’t, and because Monnet
has been granted summary judgment, Plaintiff’s argument falters.
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Insofar as it pertains to

Effingham County and the Effingham County Sheriff’s Department, Defendants’ Motion for
Summary Judgment (Doc. 61) is GRANTED in PART (a ruling which means Defendants have
prevailed on all parts of that motion).

C . Fact Questions re: Defendants’ State of Mind Preclude Summary Judgment
Plaintiff’s final objection—that Chance and Healey’s knowledge of his Nigerian citizenship
puts to rest the issue of their liability—fares no better. Liability under § 1983 requires that a
defendant “intentionally or recklessly” deprives a plaintiff of a right. Holloway v. Delaware Cnty.

Sheriff, 700 F.3d 1063, 1069 (7th Cir. 2012). While it is undisputed that Chance and Healey knew
Plaintiff was a Nigerian national, for Plaintiff to prevail he must also show their mental state. And a
defendant’s reason for acting (or failing to act) is a question of fact. See Arnett v. Webster, 658
F.3d 742, 754 (7th Cir. 2011). Accord Washington v. Hively , 695 F.3d 641, 643–44 (7th Cir.
2012) (“[S]ubjective intent (a redundancy: intent is a mental state, hence subjective), unless
admitted, has to be inferred rather than observed; judges and jurors are not mind readers.”).
Whether Chance and Healey acted with the requisite mental state is a matter properly left to the jury.
Plaintiff’s Motion for Summary Judgment against the ISP Defendants (Doc. 64) is
accordingly DENIED.
3. Defendants’ Objections to R&R — Overruled
Magistrate Judge Williams recommends denying summary judgment to Defendants Zeigler,
Chance and Healy because questions of fact remain as to whether Zeigler knew Plaintiff was a
Nigerian national, and questions of fact remain as to whether any Defendant possessed the requisite
mental state for § 1983 liability. Before reaching the factual issues, though, Judge Williams made
several legal determinations, two of which—that Plaintiff is not entitled to nominal damages, and
that Defendants are entitled to qualified immunity—have drawn objections. The Court deals with

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those objections first, and then (if necessary) will turn to Defendants’ objections regarding the
sufficiency of the evidence.

A. Nominal Damages Available
Defendants invoke several cases for the proposition that nonconstitutional injuries—like the
violation of rights under an international treaty—do not trigger nominal damages under § 1983.
Generally, those cases contain language that nominal damages are “only appropriate to vindicate
constitutional rights whose deprivation has not cause actual, provable injury.” Stachniak v. Hayes ,
989 F.2d 914, 923 (7th Cir. 1993). The cases—several of which are non-precedential—draw from

Carey v. Piphus , 435 U.S. 247, 266 (1978), where the Supreme Court recognized that the violation
of a plaintiff’s right to procedural due process
Defendants misread Piphus, which focuses on the absolute nature of a right whose violation
cannot be said to have caused any other actual injury.

In Piphus the right happened to be

constitutional, but the Supreme Court explained that nominal damages are tied to a common-law
history that permits the assertion of important rights where no other damages exist:
Common-law courts traditionally have vindicated deprivations of certain “absolute”
rights that are not shown to have caused actual injury though the award of a nominal
sum of money. By making the deprivation of such rights actionable for nominal
damages without proof of actual injury, the law recognizes the importance to
organized society that those rights be scrupulously observed; but at the same time, it
remains true to the principle that substantial damages should be awarded only to
compensate actual injury or, in the case of … punitive damages, to deter or punish
malicious deprivations of rights.
435 U.S. at 266. In other words, Defendants focus too much on the “constitutional” language that
has evolved post-Piphus, but not enough on its core holding: that the violation of an “absolute” right
is in itself actionable, and that nominal damages sometimes serve as the only way to vindicate such a
right.
The better reading, and the one advanced in Judge Williams’ R&R, is that a violation of
Article 36 rights is precisely the type of right that, absent nominal damages, cannot be vindicated.
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The Seventh Circuit has recently held that “physical injury is not the only type of injury actionable in
a prisoner’s civil rights suit.” T homas v. Ill. , 697 F.3d 612, 614 (7th Cir. 2012) (citing Washington

v. Hively , 695 F.3d 641 (7th Cir. 2012) (emphasis added)). See also Cotts v. Osafo, 692 F.3d
564, 569 (7th Cir. 2012) (“[T]he liability determination comes first, and only if a jury finds
liability should it consider damages”; Calhoun v. DeTella , 319 F.3d 936, 941 (7th Cir. 2003).
The Thomas court did not split hairs as to what types of § 1983 cases (whether based on the
Constitution, federal law, or treaty) enable recovery of nominal damages. And the Seventh Circuit—
the first circuit to squarely confront the question—has firmly announced that § 1983 is the proper
vehicle for pursuing relief under Article 36 of the Vienna Convention. Jogi v. Voges , 480 F.3d
822, 835–36 (7th Cir. 2007). It is difficult to imagine a situation where a foreign national earns
prospective or compensatory relief for failing to be notified of his Vienna Convention rights. And
given the Seventh Circuit’s approval of § 1983 actions for Article 36 violations, it would be an
absurd result to allow foreign nationals like Plaintiff to sue under § 1983, then to disallow nominal
damages, the only type of damages that would vindicate their Article 36 rights.
Defendants’ objection is overruled, and their motion for summary judgment (Doc. 55) is
DENIED in part.

B. No Qualified Immunity
Qualified immunity protects public servants from liability from reasonable mistakes made
while performing their duties.

Findlay v. Lendermon , 722 F.3d 895, 899 (7th Cir. 2013).

Defeating qualified immunity requires conduct violating a plaintiff’s constitutional or statutory rights
that is clearly established at the time of the violation, such that a reasonable official would
understand that what he is doing violates that right. Id.
Citing Medellin v. Texas, 552 U.S. 491, Defendants assert that Judge Williams’ failure to
recommend summary judgment on qualified immunity grounds was in error. In Medellin—a habeas
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case brought by a Texas death penalty defendant—the Court noted that the International Court of
Justice (“ICJ”) has held that the “without delay” requirement of Article 36 is satisfied where notice is
provided within three working days. 552 U.S. at 502 n.1. But Medellin was a case about whether an
ICJ decision and/or a presidential memorandum constituted pre-emptive, enforceable federal law
that limited the filing of successive habeas petitions. S ee id.
This § 1983 case—where officials’ failure to notify Plaintiff is not in dispute—turns on
whether Defendants intentionally or recklessly deprived Plaintiff of his consular notification right.

See Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1069 (7th Cir. 2012). If they did—and
as discussed below, that issue is properly left to a finder of fact—the only question for the qualified
immunity analysis is whether the right was established. And in Jogi v. Voges, a 2007 case that predates
Plaintiff’s arrest, the Seventh Circuit was clear: Article 36 of the Vienna Convention grants a private,
enforceable right to a foreign national (that he be informed of his Article 36 right to consular
assistance). 480 F.3d 822, 835–36. At best, the ISP Defendants’ argument against Plaintiff having
well-established rights is misguided. Given the ISP’s own policy that foreign nationals be notified of
their right to seek consular assistance, the argument borders on the disingenuous.
Insofar as it is based on a qualified immunity argument, Defendants’ objection is overruled,
and their Motion for Summary Judgment (Doc. 55) is DENIED in part.

C. Questions of Fact Preclude Summary Judgment
Defendants’ final three objections revolve around the sufficiency of the evidence as it relates
to the requisite intent of all three Defendants for a punitive damages award, Zeigler’s knowledge that
Plaintiff was a Nigerian national, and the three Defendants’ knowledge (or lack thereof) regarding
the duty placed on them by the Vienna Convention. Broadly, Defendants argue that Plaintiff has
not come forward with evidence, as is his burden, to avoid summary judgment.

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While it is possible the evidence on record could sustain a verdict that Zeigler had no idea
Plaintiff was a Nigerian national, that none of the Defendants knew of the state’s obligations under
the Vienna Convention, and that Defendants acted without the callous indifference necessary to
support a punitive damages award, a jury could infer otherwise. Zeigler denies knowing Plaintiff was
a Nigerian citizen, but the evidence—including a police report from the next day possibly authored
by Zeigler, as well as evidence that Zeigler knew Plaintiff was born in Nigeria and had a Nigerian
name—could cut against him. As to the “evil motive or intent” necessary to support a punitive
award, this case is distinguishable from Kyle v. Patterson, the sole case relied upon by Defendants.
There, as the magistrate judge pointed out, any constitutional violation was in part caused by a third
party’s delay. S ee 196 F.3d 695, 698. Here the entire delay in Plaintiff’s failure to be notified of his
consular assistance rights could have been the result of Defendant’s reckless decision to ignore both
the Vienna Convention and a parallel ISP policy—neither of which any ISP Defendant has sworn
not to know about. See Costello v. Grundon , 651 F.3d 614, 635 (7th Cir. 2011) (“Only after the
movant has articulated with references to the record and to the law specific reasons why it
believes there is no genuine issue of material fact must the nonmovant present evidence
sufficient to demonstrate an issue for trial.”). See also Modrowski v. Pigatto, 712 F.3d 1166,
1169–70 (7th Cir. 2013) (describing the “trickier” path to summary judgment: making a
showing that the party with the trial burden cannot produce admissible evidence to carry its
burden as to that fact). And that ISP policy—as evidence of Defendants’ mental state, not as an
independent font for legal recourse—also supports an inference that Defendants knew about their
Vienna Convention obligations.
The evidence, even when construed in Plaintiff’s favor, is far from overwhelming. But it
does not preclude a reasonable jury from finding for Plaintiff. Summary judgment is unwarranted,
and Defendants’ motion (Doc. 55) is DENIED in PART.
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OTHER MOTIONS
The above rulings dispose of Plaintiff’s claims, except as they pertain to Zeigler, Chance, and
Healey, all three of whom are ISP Defendants. Accordingly, Plaintiff’s Appeal of Magistrate Judge
Decision (Doc. 90), in which he challenges Judge Williams’ ruling on a discovery matter pertaining
only to the Effingham and Marion County Defendants, is MOOT.
CONCLUSION
All parties’ objections are OVERRULED, and the Report & Recommendation (Doc. 87)
filed by Magistrate Judge Williams on July 11, 2013 is ADOPTED.
Plaintiff’s Motion for Summary Judgment against the ISP Defendants (Doc. 64) is
DENIED.
The Motion for Summary Judgment filed by Jerry DeVore, the County of Marion, and the
Marion County Sheriff’s Department (Doc. 59) is GRANTED. Plaintiff’s Cross Motion for
Summary Judgment (Doc. 79) against those Defendants, as well as the Defendants’ Motion (Doc.
81) to Strike that Cross Motion, are accordingly MOOT. The Clerk is DIRECTED to terminate
Defendants Jerry DeVore, the Marion County Sheriff’s Department, and the County of Marion
from the docket.
The ISP Defendants’ Motion for Summary Judgment (Doc. 55) is GRANTED IN PART
and DENIED IN PART. Summary judgment is granted as to Defendants Pansing, Ristvedt,
Zerrusen and Kamminga, and the Clerk is DIRECTED to terminate those Defendants from the
docket. Summary judgment is denied as to Defendants Zeigler, Chance, and Hardy.
The Effingham County Defendants’ Motion for Summary Judgment (Doc. 61) is
GRANTED. Summary judgment is granted to Defendants Rich, Deters, Fowler, Monnet, the
Effingham County Sheriff’s Department, and the County of Effingham. Plaintiff’s Cross Motion
for Summary Judgment (Doc. 76) against those Defendants, as well as Defendants’ Motion (Doc.
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80) to strike that motion, are accordingly MOOT. The Clerk is DIRECTED terminate those
Defendants from the docket.
Plaintiff’s Appeal of Magistrate Judge Decision (Doc. 90), in which he challenges Judge
Williams’ ruling on a discovery matter pertaining only to the Effingham and Marion County
Defendants, is MOOT.
Three motions remain pending: Plaintiff’s Motion for Sanctions and Motion to Compel
(Doc. 84), his Motion for Disclosure (Doc. 85), and the ISP Defendants’ Motion to Strike Plaintiff’s
Motion for Disclosure (Doc. 92).
A final pretrial conference remains set for 1:30 p.m. on Wednesday, September 25 before
Magistrate Judge Williams. The jury trial remains set for 9:00 a.m. on Monday, October 7, 2013.

IT IS SO ORDERED.
s/ M ichael J. Reagan
MICHAEL J. REAGAN
United States District Judge

DATE: September 19, 2013

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