IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARLO MCDOWELL

Plaintiff,

VILLAGE OF LANSING and OFFICER

MICHAEL RODRIGUEZ.

No. 12 CV 05025

Judge Amy St. Eve

Defendants.

DKFKNDANTS'EMORANDUM IN SUPPORT OF MOTION FOR SUMMARY

JUDGMENT

NOW COME the Defendants, VILLAGE OF LANSING and OFFICER MICHAEL

RODRIGUEZ, by and through their attorneys, Gregory S. Mathews and ANCEL, GLINK,

DIAMOND, BUSH, DICIANNI k KRAFTEHFER, P.C., and in support of their Motion for

Summary Judgment provide the following memorandum:

I. INTRODUCTION

Plaintiff has filed suit under $ 1983 and state law against the Village of Lansing and

Michael Rodriguez, asserting that Rodriguez violated Plaintiff s substantive due process right to

protection while under custody and a state law claim against Rodriguez for willful and wanton

conduct. These claims are unsupported by the facts and the Defendants are entitled to summary

judgment. Officer Rodriguez responded alone to a dispatch involving a bar brawl, in winch the

Plaintiff was a participant, at 4:00 a.m. and was confionted with chaos; four or five combatants

in the parlcing lot outside the bar. Witlun seconds of lus arrival and order for everyone to get on

the ground, the Plaintiff was kicked by one of the combatants who did not inunediately comply.

Notlung in the evidence has shown that the conduct of Rodriguez rose to a level which would

shock the conscious or constitute willful and wanton behavior.
II. STANDARD OF REVIEW

Sununary judgment is appropriate when the record, viewed in the light most favorable to

the non-moving party, reveals that there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party

must identify the specific portions of the total record that it believes establish the absence of a

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This initial

burden may be satisfied by presenting specific evidence on a particular issue or by pointing out

"an absence of evidence to support the non-moving party's case.'d. at 325.

Once the movant has met tins burden, the non-moving party cannot simply rest on the

allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must

set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A

'genuine issue-'n the context of a motion for sunmtary judgment is not simply a "metaphysical

doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v, Zenith Radio Co&p., 475 U.S.

574 (1986). Rather, a genuine issue of material fact exists when *'the evidence is such that a

reasonable jury could return a verdict for the nonmoving patty." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986);Insolia v. philip+La»is, Inc., 216 F.3d 596, 599 (7th Cir. 2000).

III. PLAINTIFF'S CLAIMS ARE UNSUPPORTED BYLAW OR FACTS

A. Plaintiff has uncovered no evidence that the Conduct of Rodriguez violated

PlaintffPs Rights under the Fourteenth Amendment

To set prevail in a Fourteenth Amendment substantive due process claim against a

government actor, Plaintiff must show 'arbitrary governmental action...[that] shoclcs the

conscience of federal judges." Collins v. CI0& of Harlrer Heights, 503 U.S. 115, 126 (1992). In

Coun0& of Sacramento v. Lewis, 523 U.S. 833, 845 (1998), the Supreme Comt emphasized that

"only the most egregious official conduct" can establish a substantive due process violation.
Police cannot have the specter of a ) 1983 suit hanging over their heads when they are

confronted with a dangerous situation as long as their behavior falls witlun objectively

reasonable linuts. Graham v. Connor, 490 U.S. 386, 397 (1989));Harlow v. Fitzgerald, 457 U.S.

800, 819 (1982).

Three principles govern the analysis of Due Process claims seeking to impose upon a

state actor the duty to protect its citizens. First, the state, by its affirmative acts, must create or

increase a danger faced by an individual. Second, the failure on the part ofthe state to protect an

individual fiom such a danger must be the proximate cause ofthe injury to the individual. Third,

because the right to protection against state-created dangers is derived from the substantive

component of the Due Process Clause, the state's failure to protect the individual must shoclc the

conscience. ICing ex rel. ICing v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 817-18 (7th Cir. 2007)

citations omitted. See also, e.g., ICneipp v. Tedder, 95 F.3d 1199, 1209 n. 22 (3d Cir.1996)

("[T]he state-created danger theory contemplates some contact such that the plaintiff was a

foreseeable victim of a defendant's acts in a tort sense.").

The inquiry into whether official conduct shocks the conscience in a given case is a

necessarily fact-bound inquiry. Coutt0i of Sacramento v. Lewis, 523 U.S. 833, 834 (1998) The

Supreme Court has noted that tins standard lacks precise measurement, but has stated that the

emphasis on whether conduct shocks the conscience points toward 'the tort law's spectrmn of

liability.-'ewis, 523 U.S. at 847&8. Only conduct falling toward the more culpable end of the

specttntn shall be found to shock the conscience. Id, at 849. When the circumstances permit

public officials the opportunity for reasoned deliberation in their decisions, we shall find the

official's conduct conscience shocking when it evinces a deliberate indifference to the rights of

the individual. See id. at 851;Armstrong v. StIuadrito, 152 F.3d 564, 576—77 (7th Cir.1998). On
the other hand, where circumstances call for hurried judgments in order to protect the public

safety or maintain the public order, and thereby render reasoned deliberation impractical,

conduct must reach a lugher standard of culpability approaching malicious or intentional

infliction of injury before we shall deem official conduct conscience shocking. King ex rei. ICing

v. E. Sz Louis Sc/z Dist. /89, 496 F.3d 812, 818-19 (7th Cir. 2007) In all cases, the conduct must

be more culpable than mere negligence to shock the conscience, because negligence is

categorically beneath the tltreshold of constitutional due process. Brown v. Beyes, 815 F. Supp.

2d 1018, 1024-25 (N.D.III. 2011)

In the present case, Rothdguez did not have either the time for reasoned deliberation or

notice that the Plaintiff was in greater danger of injury from being one of several on the ground.

Rodriguez arrived at a chaotic bar brawl scene involving four or five combatants. (SOF 15, 27,

45, 46, 47) He ordered all the men to get to the ground and all but one did so. (SOF 16, 26, 48,

50 ) Rodriguez ordered the man to the ground numerous times. (SOF 32, 53) Witlun moments or

seconds one man kiclced the Plaintiff. (SOF 17, 33, 37, 54) Before the kick the man had lus

hands in the air as if surrendering and made no tltreatening comments or gestures toward the

plaintiff. (SOF 31, 34, 40) Rodriguez had to direct his attention to multiple individuals during a

period of moments before Plaintiff was lcicked, wlule at the same time afford Itimself protection

as the lone officer present.

The Seventh Circuit has held that the govenmtent has a duty to protect its citizens 'if the

state disables people fiom protecting themselves" and/or takes affirmative action that either

creates or greatly increases a danger of private violence. Sandage v. Bd. of Comm'is of

T~anderburgh Cnty., 548 F.3d 595, 598-99 (7th Cir. 2008). A plaintiff can pursue a substantive

due process claim under f 1983 in situations where the victim was "safe before the state
intervene[d] and unsafe afterward. Doe v. Vill. of Arlingion Heighis, ll C 02764, 2012 WL

1068787 (N.D. Ill. Mar. 29, 2012) As the Seventh Circuit stated in, kgindle v. Citji ofMarion,

Ind., 321 F.3d 658, 661 (7th Cir. 2003), "[T]he key question in detern6ning whether state

behavior violated the victim's constitutional rights is: "What actions did [the state actor]

affimiatively talre, and what dangers would [the victim] otherwise have faced?" (The Court of

Appeals held that: officer's failure to timely intervene to protect student from the molestation did

not violate student's due process rights under Fourteenth Amendment)

Under the evidence, Plaintiff was not "safe" before Rodriguez strived, or less safe

afterward, and Defendant did not put him in a more dangerous situation than the fight he came

upon. Summary Judgment should be granted as a result.

B. Rodriguez is Immune from Plaintiff's Constitutional Claim based on Qualified

Immunity

Qualified inmiunity will shield a police officer fiom ss1983 liability if "a reasonable

officer could have believed [the plaintiffs arrest] to be lawful, in light of clearly established law

and the information the [arresting] officer possessed." Hunter v. Bi3iant, 502 U.S. 224, 227

(1991),quoting Anderson v. Creighton, 483 U.S. 635, 641, (1987)."Ifa case involves a question

of whether probable cause existed to support an officer's actions, the case should not be

permitted to go to trial if there is any reasonable basis to conclude that probable cause existed."

McDonnell v. Cournia, 990 F.2d 963, 968 (7th Cir.1993), quoting Cross v. Des Moines, 965 F.2d

629, 632 (8th Cir.1992).

Once a defendant properly asserts the defense of qualiTied immunity, it is up to the

plaintiff to establish that no reasonable officer could have believed that lus actions were

constitutional. The Seventh Circuit has held that, in order to defeat a claim of qualified
immmuty, a plaintiff bears the burden of pointing to analogous cases establislung that the

constitutional right claimed to have been violated was clearly established. Ral&avich v. IFade, 850

R2d 1180, 1209 (7th Cir. 1988) (en banc), cert. denied, 488 U.S. 968 (1988), abrogated on other

grounds.

Here, under the facts set forward in the previous section, Plaintiff cannot establish that

Rodriguez, or any reasonable officer, would have believed his actions to be unconstitutional.

Rodriguez arrived at the scene at which Plaintiff was involved in a brawl between Plaintiff s side

and its opponents and gave a standard order to the combatants. Rodriguez should be granted

Sunmiary Judgment based on qualified inmiunity.

C. Plaintiff has uncovered no evidence that the Conduct of Rodriguez was Willful

and Wanton

To recover under state law plaintiff must show that the actions of Rodriguez were willful

and wanton. and the evidence has revealed no evidence of willful and wanton conduct. Willful

and wanton conduct, defined by the courts as, "a course of action winch shows actual or

deliberate intention to harm or which, if not intentional, shows an utter indifference to or

conscious disregard for a person's own safety and the safety of others." 745 ILCS 10/1-210, I.P.I.

14.01.,Glover v Ci/Ji af Chicago, 106 Ill.App.3d 1066, 62 Ill.Dec. 597, 436 N.E.2d 623 (I"Dist.

1982). Willful and wanton conduct consists of more than mere inadvertence, incompetence, or

unskillfulness. See Geiraer v. Chicago Park District, 272 Ill.App.3d 629, 637, 208 Ill.Dec. 891,

650 N.E.2d 585 (1995). As the courts have interpreted this pluase, proof is required that the

defendant knew that lus or her actions were likely to cause injury to another. Conduct is willful

and wanton when "a person

"' " ignores 1&nown or plainly observable dangerous conditions and

does sometlung that will naturally and probably result in injury to another." Mediua v. City af
Chicago, 238 Ill.App.3d 385, 392, 179 Ill.Dec. 658, 606 N.E.2d 490 (1992). To prove willful

and wanton conduct, a plaintiff must show that the defendant, "by deliberately inflicting 'a lughly

unreasonable degree of harm'n the plaintiff, 'approache[d] the degree of moral blame attached

to intentional harm.'Iilorton v. City of Chicago, 286 Ill.App.3d 444, 452, 222 Ill.Dec. 21, 676

N.E.2d 985 (1997), quoting Burke v. 12 Rothschild's Liquor Mart, Inc., 148 111.2d 429, 448, 170

Ill.Dec. 633, 593 N.E.2d 522 (1992).

As stated above in the section on alleged Fourteenth Amendment violations, the conduct

of Rodriguez in the seconds before Plaintiff's injury also did not rise to the level of willful and

wanton conduct bordering on intentional harm. Summary Judgment should be granted as to

Plaintiff's state law claim.

WHEREFORE, Defendants, VILLAGE OF LANSING AND MICHAEL RODRIGUEZ,

respectfully request that tins Court grant summary judgment in their favor on all Counts.

Respectfully subnutted,

THE VILLAGE OF LANSING,

MICHAEL RODRIGUEZ

By:

/s /Gregory S. Mathews

Attorney for Defendants

Gregory S. Mathews / atnathews&ancelalink.corn / ARDC i/3127427

ANCEL, GLINK, DIAMOND, BUSH, DICIANNI /k KRAFTHEFER, P.C.

140 South Dearborn Street, Sixth Floor

Chicago, Illinois 60603

Main: (312) 782-7606

Direct: (312) 604-9129
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILL1NOIS

EASTERN DIVISION

MARLO MCDOWELL,

Plaintiff,

VILLAGE OF LANSING and OFFICER

MICHAEL RODRIGUEZ,

No. 12 CV 05025

Judge Amy St. Eve

Defendants.

CERTIFICATE OF SERVICE

I, Violet G. Mendiola, a non-attorney, on oath, certify that I served a copy of

Defendants'emorandum in Support of Motion for Summary Judgment by mailing a copy

ofthe same to:

Basileios J. Foutris

Foutris Law Office, Ltd.

53 W. Jackson, Suite 252

Clncago, IL 60604

and depositing the same in the U.S. Mail at 140 South Dearborn Street, Clucago, Illinois 60603,

with proper postage prepaid, before 5:00p.m. on July 29, 2013.

fief I decinre ender penalty of perlary imder the laws at'Ibe United Stntes of

Amenca Ibat ilia foresoins tntbrmatian cmitained in thc Certificrlte ot

Service is tnie nnd correct (n

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