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.

DEFENDANTS'ULE 56.1 STATEMENT OF MATERIAL FACTS IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT

NOW COME Defendants, by their counsel, Gregory S. Mathews of ANCEL, GLINI&,

DIAMOND, BUSH, DICIANNI k I&RAFTHEFER, P.C., and provide the following Local Rule

56.1 Statement of Material Facts in support of the individually named Defendants'otion for

Suntmary Judgment:

Filed in support oftins statement are the following exhibits:

A.

B.

C.

D.

E.

F.

Complaint

Deposition of Plaintiff

Deposition ofNoelle Folden

Deposition of Richard Birlcenfeld

Deposition of Michael E. Rodriguez

People v. Morandi - Report of Proceedings, Folden Testimony

Jurisdiction and Venue

Jurisdiction oftins Court is invol&ed pursuant to 28 U.S.C $ f 1331 and 1343, and venue is

proper under 28 U.S.C. IJ 1391(a).

Parties

2. Plaintiff is Marlo McDowell;

3. Defendant Village of Lansing is a municipal corporation; and,

4. Defendant Officer Michael E. Rodriguez.
Plaintiff

Bottoms Up is a restaurant and bar located in unincorporated Cook County outside the

corporate limits of Lansing, Illinois. (Ex B.,PL Dep., at, 9:10-10:I)

Closing time for Bottoms Up was 4:00 a.m. (Ex B.,Pl. Dep., at, 18:10-12)

Plaintiff had been to Bottoms Up several times before the date ofthe incidents alleged in

the Complaint. (Ex B.,PL Dep., at, 18:22-24)

Plaintiff was familiar with bartenders and bouncers there. (Ex B.,Pl. Dep., at 19:1-5)

Plaintiff met several people at Bottoms Up including Billie Wilborn, Richie Birl&enfeld,

Don Birl&enfeld, and Noelle Folden. (Ex B.,Pl. Dep., at, 22:3-24)

10. Plaintiff and lus friends were at Bottoms Up until 4:00 a.m. and a fight occurred after

closing time. (Ex B.,Pl. Dep., at, 27:14-22)

11. Plaintiff was trying to leave when a fight ensued between Richard Birkenfeld and

Plaintiff against four or five guys. (Ex B.,Pl. Dep., at, 30:4-31:7)

12. The confrontation began outside the front door when Ramires contronted Richard and

began to fight. (Ex B.,Pl. Dep., at, 33:7-19)

13. Other guys jumped into the fight against Richard and Plaintiff tided to break it up and

everybody started fighting. (Ex B.,Pl. Dep., at, 38:13-39:5)

14. The fight moved out into the parldng lot. (Ex B.,Pl. Dep., at, 39:12-23)

15. Plaintiff told Noelle to call the police. (Ex B.,Pl. Dep., at, 40:1-10)

16. Officer Rodriguez arrived at the scene first wlule the conflict was ongoing. (Ex B., Pl.

Dep., at, 43:3-44:19)

17. The officer exited lus velucle and approached with Itis taser drawn and ordered evet3 one

to the ground, and Plaintiff complied. (Ex B.,Pl. Dep., at 45:9-19)

18. Plaintiff was kicked in the face by Morandi moments after he got to the ground. (Ex B.,

Pl. Dep., at 46:20-47:3)

19. As Plaintiff was on the ground he saw Rodriguez looking around, scanning the area. (Ex

B.,Pl. Dep., at 72:6-11)

Noelle Folden

20. Noelle Folden is the mother of her and Plaintiff s daughter. (Ex C., Folden Dep., at, 7:2-

10)

21. She met Marlo at Bottoms Up. (Ex C., Folden Dep., at, 13:6-14)
As Noelle and Plaintiff left the bar she heard loud voices belund her so she turned around

and saw Richard and two other guys tlirowing punches at each other. (Ex C., Folden

Dep., at, 31:9-32:19)

23. Plaintiff tried to help Richard and everyone was getting hit. (Ex C., Folden Dep., at,

33:6-15)

24. Noelle described the confrontation as a drunken brawl. (Ex C., Folden Dep., at, 45:4-10)

25. Noelle Called 911. (Ex C., Folden Dep., at, 34:20-23)

26. Noelle saw the police coming and yelled at everyone to stop the fight. (Ex C., Folden

Dep., at, 36:6-10)

27. One officer got out and was telling everyone to get to the ground. (Ex C., Folden Dep.,

at, 37:7-16)

28. When the officer arrived there were five or six guys fighting. (Ex C., Folden Dep., at,

40:4-6)

29. Noelle believed the officer was pointing the taser in Plaintiff's direction but did not see

the laser beam. (Ex C., Folden Dep., at, 38:4-11)

30. Folden thought the taser, was pointed at the guy standing above Marlo. (Ex. F., People v.

Morandi, Report of Proceedings, at 54:3-7)

31. From the time the officer arrived until Plaintiff was lucked was less than a couple

minutes, ifthat. (Ex C., Folden Dep., at, 39:14-20)

32. Noelle saw Morandi standing with his hands in the air as if giving up and walking toward

Plaintiff. (Ex C., Folden Dep., at, 19:4-12)

33. Rodrigues told Morandi to get to the ground a couple times. (Ex C., Folden Dep., at,

38:6-18)

34. From the time Rodriguez told Morandi get on the ground until the luck was five to ten

seconds. (Ex C., Folden Dep., at, 60:6-24)

35. Morandi was not gesturing in a tlireatening fasluon. (Ex C., Folden Dep., at, 66:7-9)

36. The Cook County Sheriff s Department applied handcuffs to Plaintiff. (Ex C., Folden

Dep., at, 40:17-22)

37. After Morandi kicked Plaintiff once he did nothing more to hmm Plaintiff. (Ex C.,

Folden Dep., at, 53:10-14)
Richard Birkenfeld

38. From the time Richard got to the ground until Plaintiff was kicked was a matter of

seconds. (Ex D., R. Birkenfeld Dep., at, 36:14-17)

39. After the kick Morandi got on the ground. (Ex D., R. Birkenfeld Dep., at, 39:1-5)

40. Officer arrived, told everyone to get on the ground and the fight stopped. (Ex D., R.

Birkenfeld Dep., at, 32:15-20)

41. As Morandi walked he did not yell tlueats, was not gesturing toward Plaintiff and did not

do anything indicating he was going to punch or kick Plaintiff. (Ex D., R. Birkenfeld

Dep., at, 63:7-14)

Officer Michael K. Rodriauez

42. Officer Michael E. Rodriguez started worlcing for Lansing Police Department in 2007.

43. Officer Rodriguez received a dispatch for a fight in progress at Borroms Up. (Ex E.,

Rodriguez Dep., at, 29:4-13)

44. Officer Rodriguez arrived at the scene and pulled up in fiont but did not see people at

first. (Ex E., Rodriguez Dep., 35:22-24)

45. Officer Rodriguez's attention was drawn to the parking lot so he proceeded to the lot on

the west side of the building. (Ex E.,Rodriguez Dep., at, 36:1-37:17)

46. Officer Rodriguez first saw people fighting when he cleared the building. (Ex E.,

Rodriguez Dep., at, 41:5-10)

47. He saw four men engaged in a brawl. (Ex E., Rodriguez Dep., at, 39:7-16)

48. The scene was chaotic. (Ex E.,Rodriguez Dep., at, 39:19-22,40:19)

49. Rodriguez ordered them to the ground. (ExE.,Rodriguez Dep., at, 41:14-16)

50. Rodriguez was the only officer on the scene. (Ex E.,Rodriguez Dep., at, 43:6-9)

51. When the command to get to the ground was issued everyone complied but Morandi. (Ex

E., Rodriguez Dep., at, 43:22-44:3)

52. Rodriguez had lus taser out at low ready initially but then pointed at Morandi. (Ex E.,

Rodriguez Dep., at, 44:15-45:5)

53. The laser pointed was directed to Morandi's center mass. (Ex E., Rodriguez Dep., at

50:1-9)

54. Rodriguez conmianded Morandi to get on the ground numerous times. (Ex E., Rodriguez

Dep., at 49:19-24)
55. Rodriguez saw Morandi luck Plaintiff after about ten seconds of issuing conmtands. (Ex

E., Rodriguez Dep., at 50:20-51:9)

56. Rodriguez again screamed at Morandi to get down and Morandi complied. (Ex E.,

Rodriguez Dep., at 54:3-6)

Respectfully subnutted,

THE VILLAGE OF LANSING

MICHAEL RODRIGUEZ

/s /Gregory S. Mathews

Attorney for Defendants

Gregory S. Mathews / mnathewsSancelalink.corn / ARDC //3127427

ANCEL, GLINK, DIAMOND, BUSH, DICIANNI /L IVV FTHEFER, 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 ILLINOIS

EASTERN DIVISION

~O 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'ule 56.1 Statement of Material Facts in Support of Motion for Summate

Judgment by mailing a copy ofthe same to:

Basileios J. Foutris

Foutris Law Office, Ltd.

53 W. Jackson, Suite 252

Clucago, 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.

[X] t declare under penalty ot'perlury under tse Imvs oftire Unucd States

oi'meuce tlat tse foresoms tn(ormntron contarned m tire Cenrtlcate of

Servr«e rs true nnd correct 0 Rtrt«E~

iinsdoml ifilesiusersivmendtolniGSM files\McOumcll, MarloiStatement of Mnteual Fncts Final doc