intervene to prevent the harm from occurring.” Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994)
(emphasis in original). This test applies equally to supervisory and nonsupervisory officers. Jd.

However, “[t]o be liable for the conduct of subordinates, a supervisor must be personally involved
in that conduct. Supervisors who are merely negligent in failing to detect and prevent subordinates’
misconduct are not liable... . The supervisors must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what they might see.” Morfin, 349 F.3d at 1001
(citations omitted). Whether an officer had sufficient time to intervene or was capable of preventing
the harm caused by the other officer is generally an issue for the trier of fact unless, considering all
of the evidence, a reasonable jury could not possibly conclude otherwise. Lanigan v. Village of E.

Hazel Crest, 110 F.3d 467 at 478 (7 Cir. 1997)(citation omitted).

Taking the facts in the light most favorable to plaintiffs and accepting that they were
unlawfully arrested, the court finds a genuine issue of material fact exists as to whether Sergeant
Perry had a realistic opportunity to intervene to prevent additional violations of plaintiffs’
constitutional rights. Although both plaintiffs were arrested before Sergeant Perry arrived at the
Fifty Yard Line, Sergeant Perry was advised of the bases for plaintiffs’ arrests before they were
transported to the police station. Sergeant Perry was not in a position to prevent plaintiffs from being
arrested without probable cause, but he may have been in the position to prevent plaintiffs from
being falsely imprisoned. Thus, the court denies summary judgment to the § 1983 claims of Mr.

Woods and Mrs. Woods against Sergeant Perry.

Sergeant Perry also seeks summary judgment as to count IV (false arrest), count V (false

imprisonment), and count VI (battery) as against Mr. Woods and Mrs. Woods. Sergeant Perry

19


The Fifty Yard Line also relies upon Otani v. City & Cty. of Hawaii, 126 F. Supp. 2d 1299
(@. Haw. 1998) in support of its argument that the Fifty Yard Line was not acting under color of law.
In Orani, the plaintiff claimed that he was assaulted twice and then arrested by an off-duty police
officer who was employed by a private company to direct traffic at its construction site. /d at 1302.
The court granted summary judgment in favor of the company on the plaintiff's § 1983 claim,
finding that the plaintiff had presented no evidence that suggested that the company was acting in
concert with the police officer when the police officer arrested the plaintiff. Id. at 1306. Although
the plaintiff described how the company supervised and controlled the police officer’s actions with
respect to his direction of traffic at the construction site, the company never instructed the police
officer as to how to perform his job of directing traffic or when or how to arrest people who
interfered with his direction of traffic. Jd. In addition, the company in Otani was required by its

contract with the state to hire a police officer to direct traffic at its construction site. /d.

Unlike the situation presented in Otani, the Fifty Yard Line hired Officer Clay, Officer
McGee, and Deputy Marshall Jones to police its premises and ensure the safety of its patrons and
staff. The fact that the Fifty Yard Line employed both police officers and non-police security
personnel demonstrates an awareness on the part of the Fifty Yard Line that the police officers
possessed a different level of authority and professional training than its non-police security
personnel. Accordingly, the court finds that the Fifty Yard Line was acting under color of law by

virtue of its employment of the police officers as part of its security force.

A finding that the Fifty Yard Line acted under color of law, however, is not sufficient to hold
the Fifty Yard Line liable under § 1983. The plaintiffs must also offer evidence that the Fifty Yard

Line caused the deprivation of their constitutional rights through one of its official policies or

40


In construing the evidence submitted by plaintiffs as an attempt to show that the City ignored
or improperly disposed of complaints involving its police officers, plaintiffs failed to establish an
issue of material fact. By itself, the fact that the City did not sustain more citizen complaints against
its police officers does not establish a widespread custom of ignoring or improperly disposing of
complaints, and plaintiffs have not shown that the City should have punished more police officers
or that it ignored complaints involving batteries, false arrests, or false imprisonments. See Bryant
v. Whalen,759 F. Supp. 410, 412 (N.D. Ill. 1991)(“The fact that a low percentage of cases are
ultimately sustained cannot in and [of] itself be read to establish a policy of indifference.”).

The court is certainly troubled by the lack of training and experience of Damiani and
presumably other members of the City’s Internal Affairs department, the lack of written guidelines
for investigating citizen complaints, and the failure of the City to document all complaints made
against its police officers. Plaintiffs, however, must offer “further evidence tending to show that
meritorious claims were either being deliberately ignored or perfunctorily dismissed.” Jd. See also
Vukadinovich v. Zentz, 995 F.2d 750 at 755 (7* Cir. 1993)(citing Bryant with approval). Such

evidence may have included expert testimony demonstrating contemporary standards for procedures

"\(..continued)

has systemic deficiencies in its administrative investigations of use of force and citizens’ complaints alleging
improper use of force. These systemic deficiencies were so pervasive and pretextual that any reasonable
officer in such a police agency would be aware of the significant failures of these critical administrative
investigations and would feel comfortable that field misconduct, particularly use of unreasonable force,
would not be discovered, would be minimized or would not result in any significant sanction. These
systemic failures by the Harvey Police Department appeared to be conscious departures from generally
accepted practices within law enforcement.

4d. In the present matter, by contrast, plaintiffs rely exclusively upon the deposition testimony of Damiani and
Hardiman regarding the handling of complaints. Their undisputed deposition testimony established that while the
City did not have a written policy for the handling of excessive force complaints, the City investigated every
complaint of excessive force, including videotaping both the complainant and the police officer.

36


§ 1983. Mrs. Woods filed a motion for partial summary judgment against the Harvey Police Officers
with regard to Count I of the Second Amended Complaint.

The primary argument raised by Mrs. Woods is that the Harvey Police Officers lacked
probable cause to arrest her as a matter of law because no reasonable police officer could have
believed that she was guilty of disorderly conduct. She contends that upon seeing her husband held
to the ground with a knee in his back and his arms about to be hand-cuffed she stated, “That’s my
husband. He’s a police officer. Let him go.” (PI. L.R. 56.1 at J 16).

Probable cause to arrest a suspect exists “if at the time of arrest the facts and circumstances
within the arresting officer’s knowledge and of which [he] has reasonably trustworthy information
would warrant a prudent person in believing that the suspect had committed or was committing an
offense.” Gower v. Vercler, 377 F.3d 661 at 668 (7" Cir. 2004), quoting Spiegel v. Cortese,
196 F.3d 717, 723 (7" Cir. 1999). “Probable cause demands even less than probability; it requires
more than bare suspicion but need not be based on evidence sufficient to support a conviction nor
even a showing that the officer’s belief is more likely true than false.” Woods v. City af Chicago,
234 F.3d 979, 996 (7 Cir. 2000)(internal quotations and citations omitted). This is necessarily a
fact-intensive inquiry. Jones by Jones v. Webb, 45 F.3d 178 at 180 (7" Cir. 1995). Asa
consequence, summary judgment is inappropriate where material facts regarding the existence of
probable cause are in dispute. See Morfin v. City of Chicago, 349 F.3d 989 at 1000 (7® Cir.
2003)(“Where there is a genuine issue of material fact surrounding the question of plaintiff's
conduct, the court cannot determine, as a matter of law, what predicate facts exist to decide whether
or not the officer’s conduct clearly violated established law.”)(citation omitted). See also Schertz

v. Waupauca County, 875 F.3d 578 at 582 (7" Cir. 1989)(“While Section 1983 claims presenting

13


complaint was Mrs. Woods’ behavior toward Officers Clay and McGee. Taking the facts in the light
most favorable to Mrs. Woods, Officer Clay would have recognized that the officers lacked probable
cause to arrest Mrs. Woods for simply stating, “That’s my husband. Let him go.” Consequently,
a genuine issue of material fact exists as to whether Officer Clay failed to act with a deliberate or

reckless disregard of Mrs. Woods’ constitutional rights.

Inaddition, while the parties dispute who actually placed Mrs. Woods under arrest, both Mr.
and Mrs, Woods maintain that two uniformed police officers were helping Mr. Woods to his feet
after he was handcuffed at which time one of the uniformed police officers placed Mrs. Woods under
arrest. Although neither Mr. Woods or Mrs. Woods can specify which officer placed Mrs. Woods
under arrest, both Officer Richmond and Officer Williams were wearing uniforms, Taking the facts
in the light most favorable to Mrs. Woods, both officers were present at the time of her arrest and
witnessed or were involved in the events giving rise to Mrs. Woods’ arrest and her actual arrest.
Consequently, summary judgment is denied as to Mrs. Woods’ § 1983 claims against Officers
Richmond and Williams because a genuine issue of material fact exists regarding whether they failed

to act with a deliberate or reckless disregard of Mrs. Woods’ constitutional rights.

The Harvey Police Officers also moved for summary judgment as to Mrs. Woods’ claims in
counts IV, V, and VI. The court denies summary judgment as to each of the Harvey Police Officers
with regard to counts IV and V. As discussed above, genuine issues of material fact exist as to the
existence of probable cause and the extent of each of their involvement in Mrs. Woods’ arrest and
imprisonment. In addition, the court denies summary judgment with regard to count VI with regard

to Officer Richmond and Officer Williams, Since Mrs. Woods has not offered any evidence that she

23


practices. See Rodriguez v. Smithfield Packing Co., Inc., 338 F.3d 348 at 355 (4* Cir. 2003)(“private
corporations can only be held liable under § 1983 if an official policy or custom of the corporation

causes the alleged deprivation of federal rights”)(internal quotations omitted).

In Rodriguez, the Fourth Circuit held that the district court erred by denying the defendant-
private company’s motion for judgment as a matter of law on the plaintiff's § 1983 claim.
Rodriguez, 338 F.3d at 356. An auxiliary deputy sheriff was chief of security at the private
company’s plant. Jd. at 351, The auxiliary deputy sheriff was not on the payroll of the sheriff's
department but was nonetheless charged by the sheriff with handling many law enforcement
functions at the plant, including criminal investigations and the service of civil papers and criminal
warrants. Jd. Following an unsuccessful union election, a fight broke out at the company’s plant.
The auxiliary deputy sheriff pepper sprayed one plaintiff, kneed him in the back, handcuffed him,
and arrested him. /d. at 352. A sheriffs deputy handcuffed and arrested another plaintiff. Jd. Both
plaintiffs were taken to jail on a series of misdemeanor charges at the direction of the auxiliary
deputy sheriff. /d. The plaintiffs argued that the auxiliary sheriff's deputy, as chief of security for
the plant, was the final policymaker for the company with respect to all arrests an investigations at
the plant. Jd. at 356. Therefore, the plaintiffs contended, the decision of the auxiliary sheriff's
deputy to arrest the plaintiffs should be imputed to the company for the purpose of § 1983 liability.

Id,

The Fourth Circuit, however, disagreed with this contention, explaining that the plaintiffs
ignored the fact that the company could not have delegated any policymaking authority to the
auxiliary deputy sheriff because the company lacked authority over county law enforcement policies.

dd. Instead, because the arrest of [the plaintiffs] was explicitly executed under [the auxiliary deputy

41


caps that read “Police.” On the evening in question, Officers Clay and Deputy Marshall Jones were
dressed in black “tactical” outfits. In addition, Officer Clay wore his police badge on his vest,
Officer McGee wore his police badge around his neck, and Deputy Marshall Jones wore her police
badge on her vest. Officer Clay also wore his duty belt, consisting of his gun, handcuffs, and radio;
Deputy Marshall Jones carried her handcuffs, Harvey Police Department service revolver, and asp
(steel baton); and Officer McGee carried his Harvey Police Department service revolver. The
Harvey Police Department required its personnel to carry their guns while working. In addition to
the police officers, the Fifty Yard Line employed non-police officers to work security. These
individuals were required to wear black pants and red t-shirts with the Fifty Yard Line’s name on
the back and “Security” on the front.

At some point after Mr. and Mrs. Woods arrived at the Fifty Yard Line, a Fifty Yard Line
security guard escorted Miller’s husband and brother-in-law from the premises after they had
engaged in a loud argument. Mr. and Mrs. Woods left the Fifty Yard Line about two minutes later.
Mr. Woods, however, returned to the Fifty Yard Line to assist Miller in collecting her belongings
while Mrs. Woods stayed outside. Approximately fifteen minutes passed before Mrs. Woods
reentered the Fifty Yard Line and found Mr. Woods laying face down on the floor. A police officer
had his knee in Mr. Woods’ back and was in the process of handcuffing Mr. Woods.

Officer Richmond arrived at the Fifty Yard Line and discovered acrowd gathered around Mr.
Woods, who was handcuffed and lying on the floor. Mrs. Woods was subsequently arrested for
disorderly conduct. Officer Richmond did not hear Mrs. Woods say anything while at the Fifty Yard

Line. Although the Fifty Yard Line’s manager, Zach Basingame, was standing in the front lobby at



theft. Damiani never recommended the termination of a police officer for claims of false arrest,

battery, false imprisonment, or malicious prosecution.

Plaintiffs also note Damiani’s lack of training in Internal Affairs. Damiani was selected to
become an Internal Affairs investigator after working as a patrol officer for three and a half years.
She did not receive any formal training for this position. She worked as an Internal Affairs
investigator for three years, transferred out for a year, and then took over as commander of the
Internal Affairs department. Damiani’s training involved a one or two-day course on investigations.
There were no specific requirements for becoming commander of Internal Affairs, and there was no
manual for Internal Affairs. Although she received on-the-job training in carrying out her duties,

Damiani never received formal training on terminating employees.

The City’s Chief of Police, Phillip Hardiman (“Hardiman”), also took complaints directly
from citizens on approximately twenty to twenty-five occasions. If a general complaint was made
with a request to speak with the police officer, Hardiman was unlikely to report the incident to
Internal Affairs or file a written report; instead, he would speak with the police officer directly? Out
of forty-three citizen complaints of police misconduct, the City disciplined two officers for civil
Tights violations, and Hardiman concurred with all of the conclusions that did not sustain civil rights
complaints against the police officers. In addition, the police department did not require
investigators to advise their Internal Affairs commander when they decided against transcribing oral

complaints into written complaints. There was also no written policy regarding which complaints

°The plaintiff did not provide any evidence regarding the nature of the general complaints made to
Hardiman, i.e., whether they involved allegations of civil rights violations.

34


argues that since he had no physical contact with either plaintiff and because he had no involvement

in the arrest and/or restraint of either plaintiff, he cannot be held liable for these state law claims.

In order to state a claim of false arrest, the plaintiff must prove “a restraint or arrest, caused
or procured by defendants, without their having reasonable grounds to believe an offense is being
committed by plaintiff.” Karow v. Student Inns, Inc., 357 N.E.2d 682 at 686, 43 Ill. App. 3d 878,
2 Ill, Dec. 515 (Ill. App. Ct. 1976). As discussed above, Sergeant Perry arrived at the Fifty Yard
Line after Mr. Woods and Mrs. Woods were placed under arrest, and, consequently, did not
participate in the arrest of either plaintiff or cause or procure the arrest of either plaintiff. Therefore,

summary judgment is granted in favor of Sergeant as to count IV.

With regard to count V, “false imprisonment consists of the unlawful restraint, against his
will, of an individual’s personal liberty or freedom of locomotion.” /d. (citation omitted). In order
to hold an individual liable for false imprisonment, “it must appear that he personally participated
therein by direct act or indirect procurement. Campbell v. Kaczmarek, 350 N.E.2d 97 at 101, 39 Ill.
App. 3d 465 (Il. App. Ct. 1976)(citation omitted). “Not only will the officer making an illegal arrest
be liable therefor, but any person who by making an affidavit to support an arrest warrant, or
otherwise aids, advises, or abets the procurement of an arrest under a void process will also be liable
in damages to the injured person. Luker v. Nelson, 341 F. Supp. 111 at 120 (N.D. Ill. 1972), citing
Develing v. Sheldon, 83 Il. 390 (Ill. 1876); Gill v. Lewin, $3 N.E.2d 336, 321 Ill. App. 633 (Ill. App.
Ct. 1944). Moreover, “[{e]ven when the arrest itself is perfectly valid and legally sustainable, an
unlawful detention following the arrest can be in and of itself false imprisonment. Jd (citations

omitted).

20


at P. 19), Plaintiffs, however, argue that it was Officer Clay’s duty to give the reporting officer the
court dates and that Sergeant Perry ordered Officer Clay to appear in court, The orders themselves

did not specify any reason for their entry*

In any event, the circumstances surrounding the entry of the SOL and nolle prosequi orders
demonstrate a genuine issue of material fact as to whether the charges were terminated in plaintiffs’
favor. Officer Clay failed to appear in court, and, as a consequence, those charges were dismissed.
See Farris v. Messimore, 219 Il). App. 582, 583 (IH. App. Ct. 1920)(dismissal for failure of witness
to appear is favorable termination). See also Velez, 721 N.E.2d at 655 (“An involuntary dismissal
resulting from a plaintiff's failure to comply with discovery serves as a favorable termination due
to the fact that a party who fails to produce evidence, in essence, fails to prosecute.” (emphasis

added).

Sergeant Perry, Officer Williams, and Officer Richmond also argue that summary judgment
should be granted in their favor because only Officer Clay initiated the criminal proceedings. Under
Mlinois law, “[a] defendant is considered to have commenced criminal proceedings if he ‘initiated

acriminal proceeding or his participation [was] of so active and positive a character as to amount

5For all of their voluminous briefings, neither party addressed the effect of the distinction between thenolle
prosequi orders and the SOL order, choosing instead to treat all of the charges as being dismissed via an SOL or a
nolle prosequi. In a recent opinion, the Illinois Supreme Court reiterated the distinction between an SOL and anolle
prosequi: See Ferguson v. City of Chicago, 2004 It, LEXIS 1673 (Ill. Nov. 18, 2004). “A nolle prosequi isa
formal entry of record whereby the prosecuting attorney declares that he is unwilling to prosecute the case. In
contrast to an SOL order, which leaves the criminal proceedings pending, anolle prosequi order terminates the
charge and requires the institution of a new and separate proceeding to prosecute the defendant,” 2004 Ill. LEXIS
1673 at *9-10 (internal citations omitted). Thus, one of the charges against Mr. Woods remains pending. It follows
that Mr, Woods cannot establish that the SOL’d charge was terminated in his favor. Further complicating matters,
the court is unable to determine which of the two charges against Mr. Woods was SOL’d, and neither party provides
any clarification, Nevertheless, as the moving party, defendants failed to raise this issue. Therefore, any such
argument is waived. See Williams v. REP Corp., 302 F.3d 660, 666 (7* Cir, 2002\(quoting Hojnacki v. Klein-
Acosta, 285 F.3d 544, 549 (7TM Cir. 2002)("A party waives an argument that it does not raise in before the district
court or, if raised in the district court, it fails to raise on appeal.”).

26


B. Officers Clay, Williams, and Richmond

Officers Clay, Williams, and Richmond similarly seek summary judgment as to count I but
only as to the claim of Mrs. Woods on the basis that they were not involved in the actual arrest of
Mrs. Woods. As discussed above, however, “while it is true that a plaintiff must establish a
defendant’s personal responsibility for any claimed deprivation fo a constitutional right, a
defendant’s direct participation in the deprivation is not required.” Miller v. Smith, 220 F.3d 491
at 495 (7* Cir. 2000), citing Smith v. Rowe, 761 F.2d 360, 369 (7* Cir. 1985). “An official satisfies
the personal responsibility requirement of § 1983 it she acts or fails to act with a deliberate or
reckless disregard of the plaintiff's constitutional rights.” Jd, quoting Crowder v. Lash, 687 F.2d
996, 1005 (7 Cir. 1982)(emphasis in original). Thus, “police officers who have a realistic
opportunity to step forward and prevent a fellow officer from violating a plaintiff's rights . . . but fail

to do so have been held liable.” /d, citing Yang, 37 F.3d at 285.

In the instant matter, Officers Clay, Williams, and Richmond were present at the Fifty Yard
Line at the time of Mrs. Woods’ arrest. Officer Clay was escorting Mr. Woods from the Fifty Yard
Line when Mrs. Woods informed Officer Clay that Mr. Woods was her husband. This was the
incident giving rise to Mrs. Woods’ arrest, an incident which Officer Clay witnessed and then
summarized in the misdemeanor complaint that he executed against Mrs. Woods. The Harvey Police
Officers’ attempt to analogize the actions of Officer Clay to those of the defendant in Jenkins v.
Keating, 147 F.3d 577 (7* Cir. 1998), is unavailing. In Jenkins, the Seventh Circuit affirmed
summary judgment in favor of the defendant police officer who merely signed the criminal complaint
against the plaintiff. Jd. at 583. In the present matter, however, Officer Clay’s involvement in Mrs.

Woods’ arrest involved more than the ministerial task of signing the complaint; the very basis of the

22


must be transcribed. Plaintiffs further point to the rehiring of Officer McGee" by the City after he
was terminated for destroying evidence and the promotion of Officer Williams to detective after he
was reprimanded or suspended at least eight times as evidence that the City does not act to punish
its police officers. Officer Williams is currently a defendant in another lawsuit in which the plaintiff
alleged false arrest. No complaint has been filed with the Internal Affairs department regarding the
lawsuit, and the Internal Affairs department has not conducted a formal investigation into the

allegations of that lawsuit.

Essentially, plaintiffs are asking the court to infer that the City improperly investigated and
resolved the forty-three citizen complaints because only two complaints were sustained, and,
therefore, the City’s police officers believe that their actions will not be scrutinized. At this late
stage, however, plaintiffs have not provided any evidence that more of the complaints should have
resulted in the censure of police officers or that the City failed to adequately investigate complaints
of false arrest, battery, false imprisonment, or malicious prosecution. Plaintiffs also failed to provide
evidence concerning the nature or circumstances of the civil rights violations alleged in the forty-

three complaints."!

‘Officer McGee also was accused of rape while serving as a police officer for the City. He received a 30-
day suspension,

‘Nin @ previous matter brought before this court against the City, the court reviewed the factual record
regarding the City’s failure to investigate excessive force complaints and determined that a question of material fact
existed as to whether the City had an official policy that deprived the plaintiff of his constitutionally protected right
to be free from the police officer’s use of excessive force. See Robinson v. City of Harvey, et al., 2001 U.S, Dist.
LEXIS 1930, 2001 WL 138901 (N.D. Ill. Feb. 16, 2001). In that case, “the record revealed that decisions of
whether to investigate excessive force complaints are often unreviewed and undocumented, and no written guidelines
exist for handling such complaints.” 2001 U.S. Dist. LEXIS 1930 at *23-24. In addition, the plaintiff submitted
evidence that 24 investigations of excessive force complaints between 1995-1997resulted in no discipline. 2001U.S.
Dist. LEXIS 1930 at *24. The plaintiff also submitted an expert report concluding that the Harvey Police
Department

(continued...)
35


were present when a uniformed police officer was in the process of handcuffing Officer Woods. Jd.

at 415. Officer Clay signed the misdemeanor complaint against Mrs. Woods. Id. at ]21.

The Statement of Facts, however, did not contain any material facts establishing that Officer
Clay or any other individual involved in Mrs. Woods’ arrest was acting as the agent, servant, or
employee of the Fifty Yard Line or acting within the scope of his employment at the time of Mrs.
Woods’ arrest. In her supplemental reply brief, Mrs. Woods attempts to stretch the facts as set forth
in her Statement of Facts to cover the Fifty Yard Line’s alleged vicarious liability. See Pl.’s
Supplemental Reply Brief In Support of Motion for Summary Judgment at 2 (“Clay was a Harvey
Police officer who was acting as both a Fifty Yard Line security guard and in his official capacity
as a Harvey police officer as he participated in the arrests of James and Toi Woods.”). The evidence
on which Mrs. Woods relied in support of this statement was the admission of the City of Harvey
Defendants’ Answer to Plaintiffs’ Second Amended Complaint. In their answer, the City of Harvey
Defendants admitted that Officers Clay and McGee were duly sworn and appointed police officers
for the City of Harvey and also worked as security guards for the Fifty Yard Line at all relevant times
to this lawsuit. (PI’s L.R. 56.1, Ex. Bi and B2 at §3. Notably, neither the admission of the City of
Harvey defendants nor Mrs, Woods’ Statement of Facts established that Officer Clay was acting as
both a security guard for the Fifty Yard Line and in his official capacity as a Harvey policeofficer

when participating in the arrests of Mr. and Mrs. Woods.

In her Statement of Material Facts, Mrs. Woods failed to include any material facts
establishing what Officer Clay’s duties as a security guard for the Fifty Yard Line consisted of. Mrs.
Woods also did not present any material facts specifically establishing that Officer Clay acted as both

a police officer and as a security guard while participating in the arrest of Mrs. Woods. Mrs. Woods

17


point, Officer Clay came up and tackled Mr. Woods, taking him to the ground. Jd Officers
Williams, Richmond, and McGee assisted Officer Clay in restraining Mr. Woods. Jd. Officers Clay
and McGee then escorted Mr. Woods outside. Jd.

B. City of Harvey Defendants’ Version of the Confrontation Between Mr. Woods and
the Harvey Police

In the Harvey Police Officers’ version of events, Miller became involved in a heated
confrontation with Deputy Marshall Jones while Mr. Woods was standing with or near Miller.
(Wefs’ L.R. 56.1 at $9). Officer Clay was within the sight of the confrontation. Id at {10. Officer
Clay claims to have observed what he thought was Mr. Woods moving to strike Deputy Marshall
Jones. Id. at J 11. Officer Clay then took Mr. Woods to the ground and placed him under arrest.
Id.

C. Plaintiffs’ Version of Mrs. Woods’ Arrest

The parties also dispute the events surrounding Mrs. Woods’ arrest. Plaintiffs contend that
Mrs. Woods said, “That’s my husband, he’s a Chicago cop, let him go,” upon discovering her
husband laying on the floor while being handcuffed. (Pls’ Resp. to City of Harvey Defs’ Add’! Facts
at { 10). In plaintiffs’ version of events, Mrs. Woods was then arrested and handcuffed at which
time she said, “He’s acop. What’s going on, what’s happening?” /d. She then heard, “Well, nigger,
this ain’t Chicago, You Chicago cops think you're the sh_t.” Jd She also heard, “Well, your ass
can go too.” (Pl.’s L.R. 56.1 at J 17). Her hands were grabbed, placed behind her back, and
handcuffed. Jd. As Mr. Woods and Mrs. Woods were escorted from the Fifty Yard Line, Mrs.

Woods asked Fifty Yard Line security, “Why would yoube arresting him for breaking up a fight?


(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a
widespread practice that, although not authorized by written law or express municipal
policy, is so permanent and well settled as to constitute a custom or usage with the
force of law; or (3) an allegation that the constitutional injury was caused by a person
with final policymaking authority.

Baxter v. Vigo County Sch, Corp., 26 F.3d 728, 734-35 (7th Cir. 1994), citing Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 690 (1978). Where, as here, plaintiffs attempt to establish liability against
a municipality based on the widespread practice of the municipality, “there must be an ‘affirmative
link’ between the custom at issue (especially when the custom itself does not establish wrong-doing)
and the constitutional deprivation alleged to cast blame on the City.” Jones v. City of Chicago,
787 F.2d 200 at 204 (7" Cir. 1986), citing City of OMahoma v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427,
85 L. Ed. 2d 791 (1985). This affirmative link requires some knowledge or awareness on the part
of the municipality of both the custom and its unconstitutional consequences, “showing the
municipality’s approval, acquiescence, or encouragement of the alleged unconstitutional violation.”
Id. In order to hold the municipality liable for the constitutional deprivation, the evidence must
permit an inference of deliberate indifference or tacit authorization of the violative conduct. See id.

at 205.

Plaintiffs assert that citizen complaints against the City’s police officers almost never result
in official censure, which causes the City’s police officers to believe that their actions will not be
scrutinized. Plaintiffs rely upon the deposition testimony of Commander Camille Damiani
(“Damiani”), the police department’s former Internal Affairs commander, and the resolution of
intemal affairs investigations of complaints of violations of civil rights under from 1995 to 2000 in

support of their § 1983 claim against the City. During this period, Damiani sustained only one of

32


Defendants also maintain that Mrs. Woods cannot state a claim of intentional infliction of
emotional distress against Officers Clay, Williams, and Richmond because they were not involved
in the arrest and restraint of Mrs. Woods. They further argue that the record is void of evidence that
defendants knew severe emotional distress was certain or substantially certain to result from their
conduct. As previously discussed in this opinion, however, a genuine issue of material fact exists
regarding the roles played by Officers Clay, Williams, and Richmond in the arrest and restraint of

Mrs. Woods.

Taking the evidence in the light most favorable to Mrs. Woods, she was arrested without
probable cause when informing the officers arresting her husband that he was a police officer. (Pl.
Resp. Facts at { 16). At that time one of the defendants said in response, “Well, nigger, this ain’t
Chicago. You Chicago cops think you're the shit.” (Pls’ Resp. to City of Harvey Defs’ L.R. 56.1
at J 15). Mrs. Woods then said that her husband was a Chicago police officer who was merely
attempting to break up a fight when she heard, “Well, this ain’t Chicago, punk.” /d. at 415. She was
placed under arrest in front of a crowd. Following her arrest, she was transported to the police
station and placed in a jail with a prostitute who was ranting, raving, and cussing. /d. at $j 22, 38,
41. The prostitute also asked Mrs. Woods, “What the f_ck are you looking at?” Id at 7] 22, 38, 41.
These facts suggest that Officers Clay, Williams, and Richmond abused their authority as police
officers and create a genuine issue of material fact as to whether Officers Clay, Williams, and
Richmond intended to cause Mrs. Woods severe emotional distress or knew that their conduct was

certain or substantially certain to result in Mrs. Woods’ severe emotional distress.

29


SAID DEFENDANT KNOWINGLY OBSTRUCTED THE PERFORMANCE
OF OFC. CLAY #15 OF AN AUTHORIZED ACT WITHIN HIS OFFICIAL
CAPACITY, BEING THE ARREST OF JAMES WOODS, KNOWING OF
OFC. CLAY #15 TO BE A PEACE OFFICER ENGAGED IN THE
EXECUTION OF HIS OFFICIAL DUTIES, IN THAT THE DEFENDANT
STEPPED IN BETWEEN OFC. CLAY #15 AND UNKNOWN SUBJECT
WAY AFTER BEING TOLD SEVERAL TIMES TO STEP BACK IN
WHICH JAMES WOODS REFUSED.
dd. Officer Clay signed the complaint as “OFC. CLAY #15. Jd.

Officer Clay also signed a complaint against Mrs. Woods, which stated that Mrs. Woods
“KNOWINGLY ACTED IN SUCH AN UNREASONABLE MANNER AS TO ALARM OR
DISTURB ANOTHER AND TO PROVOKE A BREACH OF THE PEACE, TO WIT: THE
DEFENDANT RAN UP TO OFC CLAY, YELLING AND SCREAMING ‘THAT’S MY
HUSBAND! LET HIM GO’, CAUSING A CROWD TO GATHER.” Jd. Officer Clay signed the
complaint against Mrs. Woods as “OFC. Clay #15.” Jd.

Mr. and Mrs. Woods were held in jail for approximately eight hours before being released.
On December 5, 2000, one of the charge against Mr. Woods was stricken off the call with leave to
reinstate (SOL’d) and the other charge was terminated with a nolle prosequi when no complaining
witnesses appeared at the court hearing on December 5, 2000. On December 28, 2000, a nolle
prosequi was entered terminating the charge of disorderly conduct against Mrs. Woods when no

complaining witnesses appeared at her court hearing.

4

The formal explanation for this action, “nolle prosequi," is the bringing of a motion before a judge on the
part of a prosecutor to “voluntarily withdraw{] . . . [all] proceedings on a criminal charge." Anderer v. Jones 385
F.3d 1043 at 1061 n. 8 (7 Cir. 2003)(quoting BLACK'S LAW DICTIONARY (6th Ed.).


that time, he did not attempt to interfere in the events leading up to the arrests or in the arrests
themselves.

Officer Prince completed an incident report, which Sergeant Perry signed. The incident
report stated that Mr. Woods stepped in between Officer Clay and the unknown subject preventing
Officer Clay from removing the unknown subject from the club. (Pl.’s L.R. 56.1, Ex. Gat 1). The
incident report continued: “The suspect was told several times to step back in which the suspect
refused. The suspect became irate telling thats [sic] my friend” and continued to stand between
Officer Clay and the unknown subject. Jd With regard to Mrs. Woods, the incident report stated
that she ran up to Clay “yelling and screaming ‘That’s my husband! Let him go.’ At which time a
crowd gathered. Suspect #2 was taken into custody.” (Pl.’s L.R. 56.1, Ex. G at 2). Sergeant Perry
did not conduct an investigation or interview the crowd at the Fifty Yard Line but he spoke with
Officer Clay at the scene.

Mr. and Mrs. Woods were transported to the Harvey Police Department in separate cars.
They arrived in booking at 2:55 a.m. Mr. Woods was allowed to make two telephone calls and to
receive a call from a lawyer within forty-five minutes of his arrival. Within an hour, Mr. Woods was
charged with obstructing a peace officer and disorderly conduct. Officer Clay signed the complaint
against Mr, Woods, which stated that Mr. Woods

KNOWINGLY ACTED IN SUCH AN UNREASONABLE MANNER AS TO
ALARM OR TO DISTURB ANOTHER AND TO PROVOKE A BREACH OF
THE PEACE TO WIT: THE DEFENDANT BECAME IRATE, YELLING
“THAT IS MY FRIEND” AND WHICH HE STOOD OFC. CLAY #15 AND
THE UNKNOWN OFFENDERS WHO WERE BEING PUT OUT.

(Pl. Add’] Facts in Resp. to Fifty Yard Line’s L.R. 56.1, Ex. A.). The complaint further stated that


implicitly acknowledges these deficiencies in her Statement of Material Facts by referring the court
to the exhibits attached to her Statement of Facts rather than to the facts themselves. See Plaintiff's
Supplemental Reply Brief In Support of Motion for Summary Judgment at 4. Without material facts
demonstrating that Officer Clay was acting within the scope of his employment with the Fifty Yard
Line while participating in the arrest of Mrs. Woods, it is impossible for the court to conclude there
is no genuine issue of material fact with regard to the Fifty Yard Line’s vicarious liability. The court,

therefore, denies summary judgment as to Mrs. Woods’ state law claims against the Fifty Yard Line.
IL The Harvey Police Officers’ Motion for Partial Summary Judgment
A. Sergeant Perry

Sergeant Perry has moved for partial summary judgment as to count I with regard to the
claims of Mr. and Mrs. Woods that they were arrested without probable cause in violation of § 1983.
Sergeant Perry contends that the extent of his involvement in the events surrounding the arrests of
Mr. and Mrs. Woods was limited to signing off on the incident report prepared by Officer Prince.
Plaintiffs contend, however, that Sergeant Perry is liable under § 1983 because he failed to intervene
in the deprivation of their constitutional rights. In support thereof, plaintiffs point to Sergeant
Perry's presence at the Fifty Yard Line while both plaintiffs were in handcuffs, his discussion with
Officer Clay at the scene, and his status as supervisor of the Harvey Police Officers.

An officer may be liable for failing to intervene or prevent another jaw enforcement officer
from infringing the constitutional rights of a citizen if the officer knows “(1) that excessive force was
being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation

has been committed by a law enforcement officer, and the officer had a realistic opportunity to

18


255 (1986). The court may not grant summary judgment “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Instead, the court must consider the
evidence as a jury might, “construing the record in the light most favorable to the nonmovant and
avoiding the temptation to decide which party’s version of the facts is more likely true.” /d. (citing
Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7* Cir. 1999).

A Plaintiffs’ Version of the Confrontation Between Mr. Woods and the Harvey Police
Officers

In plaintiffs’ version of events, Miller asked Deputy Marshall Jones if she could reenter the
Fifty Yard Line to retrieve her belongings, and Deputy Marshall Jones said no, (Pls’ Resp. to City
of Harvey Defs’ L.R. 56.1 Add’! Facts at $6). Miller asked Deputy Marshall Jones who she was,
and Deputy Marshall Jones informed Miller that she was with the Harvey Police. Jd. Although
Miller was calm, Deputy Marshall Jones swore at her and then struck her. Jd. Mr. Woods was
standing next to Miller after she was struck by Deputy Marshall Jones. Jd. at ¢7. Mr. Woods
instructed Miller that they should leave and grabbed Miller’s arm in order to prevent the situation
from escalating. Jd. at { 8. Mr. Woods did not make a move toward Deputy Marshall Jones. /d.
Fifty Yard Line security then backed Mr. Woods against the wall. /d In response, Mr. Woods
displayed his Chicago Police Department badge and said that he was trying to break up a fight. Jd.
Fifty Yard Line security responded, “You Chicago cops think you’re the sh__t.” Jd Two uniformed
police officers for the City, Officers Richmond and Williams, entered the Fifty Yard Line while Mr.
Woods was displaying his badge as he was backed against the wall. Jd One of the uniformed

officers began to handcuff Mr. Woods’ left arm while he was backed against the wall. Jd At that


was touched in any way by Officer Clay, however, summary judgment is granted in favor of Officer

Clay with regard to Mrs. Woods’ claims in count VI.
Cc. Count VII - Malicious Prosecution

Malicious prosecution in Illinois requires “(1) the commencement or continuance of an [sic}
civil or criminal judicial proceeding by the defendant, (2) the termination of the proceeding in the
plaintiff s favor, (3) the absence of probable cause for the proceeding, (4) the presence of malice, and
(5) damages to the plaintiff resulting from the commencement or continuance of that proceeding.”
Rodgers v. Peoples Gas, Light & Coke Co., 733 N.E.2d 835, 840, 315 Hil. App. 3d 340, 248 Ill. Dec.
160 (Ill. App. Ct. 2000). Defendants contend that plaintiffs failed to establish a prima, facie case of

malicious prosecution.

Defendants argue that plaintiffs cannot meet the third prong of a prima Jacie case of
malicious prosecution because they failed to establish that the charges against them were terminated
in their favor. With regard to Mr. Woods, one charge was SOL’d while the other charge was
terminated with a nolle prosequi. Likewise, the charge against Mrs. Woods was terminated with a
nolle prosequi. In determining whether proceedings are terminated favorably, the Illinois Supreme

Court follows the approach set forth in the Restatement (Second) of Torts, which provides:

Termination in favor of the person against whom civil proceedings are brought.
Civil proceedings may be terminated in favor of the person against whom they are
brought *** by (I) the favorable adjudication of the claim by a competent tribunal,
or (2) the withdrawal of the proceedings by the person bringing them, or (3) the
dismissal of the proceedings because of his failure to prosecute them. A favorable
adjudication may be by a judgment rendered by a court after trial, or upon demurrer
or its equivalent. In either case the adjudication is a sufficient termination of the
proceedings, unless an appeal is taken.

+e

24


Minute Order Form(0697) gs
United States District Court, Northern District of Dlinois
Mr Magers Jue Joan H. Lefkow “fama Angeed Suage
CASE NUMBER 01 C 6618 DATE 1/10/2005
CASE Woods vs. Clay, et al.
TITLE
[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: ofthe motion being presented.)
DOCKET ENTRY:
qd) oa Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motion due ___.
(3) Oo Answer brief to motion due. . Reply to answer briefdue_
(4) o Ruling/Hearingon___setfor__at
(5) Qo Status hearing[held/continued to] [set for/re-set for]on____——ssetfor__—at_
(6) i] Pretrial conferencefheld/continued to] [set for/re-set for]on__setfor___—at__
(7) oO Trial[set for/re-set for]on___at
@ a [Bench/Jury trial] [Hearing] held/continuedto___at
(9) o This case is dismissed [with/without] prejudice and without costs(by/agreement/pursuant to}
OFRCP4(m) (Local Rule 41.1 CFRCP41(aX1) O FRCP41(a)(2).
(io) if [Other docket entry] _ Enter Memorandum Opinion and Order. For the reasons stated in the Memorandum Opinion

and Order, Plaintiff Toi Woods* Motion [102] for Partial Summary Judgment is denied. City of Harvey Defendants’ Motion {98} for
Partial Summary Judgment is granted with regard to count II as to City of Harvey; count IV, count V, count VI, and VIII as to Sergeant
Perry; Toi Woods’ claims in count VI as to Officer Clay; count VII as to Sergeant Perry, Officer Williams, and Officer Richmond; count
VII as to Sergeant Perry, Officers Clay, Williams, Richmond, and the City of Harvey. City of Harvey Defendant’s Motion [98] for
Partial Summary Judgment is denied as to count I; counts IV, and V as to Officers Clay, Williams, and Richmond; count VI as to
Officers Richmond and Williams; and count IX. Fifty Yard Line's Motion (101) for Summary Judgment as to count [iI is denied.

dal {For further detail see order attached to the original minute order.}
No notices required, advised in open court.

No notices required.

ov | Notices mailed by judge's staff.
Notified counsel by telephone.
Docketing to mail notices.

Mail AO 450 form. peasa etsy $7
Copy to judge/magistrate judge.
JQrphe Gale
courtroom
MD deputy's j
initials —~
Date/time received in
central Clerk's Office

ro


In addition, the parties dispute whether Officer Clay, Officer McGee, and Deputy Marshall
Jones were “on-duty” or “off-duty” while working for the Fifty Yard Line. Although the parties
agree that the Fifty Yard Line, and not the City, paid Officer Clay, Officer McGee, and Deputy
Marshall Jones for their services as security personnel at the Fifty Yard Line, plaintiff's contend that
Officer Clay, Officer McGee, and Deputy Marshall Jones remained “on-duty” while defendants
argue that they were “off-duty.” Officer Clay testified at his deposition that the Harvey Police
Department has “a policy stating that when you are off duty - - when you're off duty, you are still
on, and you’re still a policeman.” (Pls’ Resp. to Fifty Yard Line’s L.R. 56.1, Ex. F, P._26, lines 15-
20). On the night in question, Deputy Marshall Jones identified herself as “Harvey police.” (Pls’
Resp. to Fifty Yard Line’s L.R. 56.1, Ex. L at 36, lines 21-24, at 37, lines 1-5). In addition, former
Chief of Police Philip Hardiman testified at deposition that an officer is not precluded from acting
in the capacity as a police officer when he is off-duty. (Pls’ Resp. to Fifty Yard Line’s L.R. 56.1,
Ex. K at 28, lines 8-11).

The parties also dispute whether the Fifty Yard Line had a security policy and whether it
trained the police officers who worked security at the Fifty Yard Line. The Fifty Yard Line claims
that it maintained a security policy in which its security personnel were instructed to not put their
hands on patrons causing a problem; instead, security was supposed to talk the patron out of the
building. Plaintiffs, however, contend that the Fifty Yard Line had no safety precautions in place,
that there were no written policies, and that the Fifty Yard Line’s security personnel did, in fact,
physically put their hands on Officer Woods on the night in question. Plaintiffs further argue that
the Fifty Yard Line gave directions and instructions to the officers hired to work security as to their

obligations when working security, including checking identification, searching patrons, patting

11


He’s a Chicago police officer.” Jd. She subsequently heard the response, “Well, this ain’t Chicago,
punk.” (Pls’ Resp. to City of Harvey Defs’ L.R. 56.1 Add’! Facts at 4 10)

D. City of Harvey Defendants’ Version of Mrs. Woods’ Arrest

In defendants’ version of events, Mrs. Woods stated, “He’s the deuce; he’s with Chicago
Police.” (City of Harvey Defs’ Resp. to Pl.’s L.R. 56.1 at | 16). As Officers Clay and McGee
escorted Mr. Woods from the Fifty Yard Line, Mrs. Woods went in front of the officers and put
herself in between Officer McGee and Mr. Woods. Jd. She was grabbing at Mr. Woods. /d. at 17.
After Officer Clay told Mrs. Woods to back off and to stop interfering, she continued to yell, scream
and cuss. Jd. Defendants also expressly dispute that anyone said, “Well, your ass can go too.” Id.
The parties also disagree as to whether Mrs. Woods was immediately handcuffed upon stating that
her husband was with the Chicago Police or whether Mrs. Woods was yelling, screaming, cussing,
and grabbing at her husband after being told to step back by Officer Clay. Further, the parties
dispute the extent of alleged damages suffered by plaintiffs.

E. Additional Disputed Facts

The parties also dispute whether Officers Richmond and Williams were involved in Mrs.
Woods’ arrest. Defendants contend that upon arriving at the Fifty Yard Line, Officer Richmond did
not see Mrs. Woods and then proceeded to step outside for a minute or two. Upon reentering the
Fifty Yard Line, Officer Richmond found Mrs. Woods handcuffed and silent. Mr. and Mrs. Woods,
by contrast, maintain that two uniformed police officers were helping Mr. Woods to his feet when
one of the two uniformed officers said, “Well, your ass can go, too.” At that point, one of the
uniformed officers grabbed Mrs. Woods’ hands, placed them behind her back, and handcuffed them.

Both Officer Richmond and Officer Williams were wearing uniforms.

10


of her constitutionat rights through its hiring and training policies, or lack thereof, and Plaintiff
presented evidence based on which the jury could have agreed.”). Thus, the court denies summary

judgment as to the plaintiffs § 1983 claim against the Fifty Yard Line.
Vv. Count IX - Violation of the Iinois Constitution

In count IX of the second amended complaint, plaintiffs assert that the actions of the
defendants violated their rights under Article I of the Illinois Constitution. The City and the Harvey
Police Officers make no argument specific to this count other than to refer the court to their previous
arguments. Based on the court’s own independent research, it would appear that the plaintiffs may
not maintain a separate, independent cause of action under the Illinois Constitution for battery, false
arrest, excessive force, or malicious prosecution. See, e.g., Ingram v. Jones, 1995 U.S. Dist. LEXIS
18412, 1995 WL 745849, *4 (N.D. Ill. Nov. 29, 1995)(“because Illinois common law provides
Plaintiff the remedy of actions for false arrest and excessive force, this Court finds that an Illinois
court considering the issue would not recognize a right to bring a separate cause of action under
Article I, § 6 of the Illinois Constitution.”); Doe v. V. of T., 2003 U.S. Dist. LEXIS 17570 (N.D. Ill.
Sep. 30, 2003)(no cause of action for alleged constitutional where plaintiff has access to adequate
remedies under state common law or federal law); Tidwell v. Teneyuque, 2001 U.S. Dist. LEXIS
3758, 2001 WL 321052, at *3 (N.D. Ill. Mar. 30, 2001)(no cause of action existed under the IMlinois
Constitution for plaintiff's claims of assault, battery, or false imprisonment because adequate
remedies existed under state common law and federal law, specifically through § 1983). Defendants,
however, failed to make this or any other argument with regard to count IX and, therefore, waive any
such arguments. See, e.g., Williams v. REP Corp., 302 F.3d 660, 666 (7" Cir. 2002)(party waives

an argument that it fails to develop). Thus, the court denies summary judgment as to count IX.

43


There also is no evidence of the severity of the emotional distress that plaintiffs suffered, i.e.,
that they were hospitalized, sought and received psychiatric treatment, or even were prescribed
medication. Id. See also Farrar v. Bracamondes, 332 F. Supp. 2d 1126 (N.D. IIL. 2004)(“Stress,
nervousness, anxiety, and sleeplessness that do not require medical treatment are not severe
emotional distress.”), citing Swanson v. Swanson, 257 N.E.2d 194, 196, 121 Ill. App. 182 (Ill. App.
Ct. 1970), Knierim v. Izzo, 174.N.E.2d 157, 164, 22 Ill. 2d. 73 (I. 1961); Knysak, 652 N.E.2d at 840
(plaintiff failed to show requisite severity of emotional distress where there was no evidence that
plaintiff was hospitalized, sought or received psychiatric treatment, or was prescribed medication).
It is undisputed that Mr. Woods and Mrs. Woods did not seek medical treatment or mental health
treatment for any of their emotional injuries, nor did they take or receive any medications for their
emotional injuries. See Pls’ Resp. City of Harvey Defs’ L.R. 56.1 at 9] 44-45. This suggests that
their distress does not rise to the level of severity necessary to maintain a claim for intentional
infliction ofemotional distress. Accordingly, the court grants summary judgment in favor of the City

of Harvey defendants on the plaintiffs’ claims of intentional infliction of emotional distress.
II. City of Harvey’s Motion for Summary Judgment

In count I] of the second amended complaint, plaintiffs seek relief against the City pursuant
to § 1983. Arguing that plaintiffs have failed to produce any evidence that the alleged misconduct
of the Harvey Police Officers was undertaken pursuant to a policy, custom, or practice of the City,
the City has moved for summary judgment as to count II.

“Although a municipality is subject to suit under § 1983, respondeat superior liability will
not suffice to impose § 1983 liability on the City.” Baskin v. City of Des Plaines, 138 F.3d 701, 704
(7th Cir. 1998). Instead, a municipality may be held liable under § 1983 in one of three ways:

31


2. Severe Emotional Distress

Defendants further argue that plaintiffs failed to establish that they experienced severe
emotional distress. “The emotional distress required to support the cause of action must be so severe
that no reasonable person could be expected to endure it.” Adams v. Sussman & Herzberg, Lid,
684 N.E.2d 935, 941, 292 Ill. App. 3d 30, 225 Ill. Dec. 944 (Ill. App. Ct. 1997) (citation omitted).
“(T]he infliction of such emotional distress as fright, horror, grief, shame, humiliation and worry is
not sufficient to give rise to a cause of action.” /d. The purpose of the resulting severe distress
element is to “prevent fictitious claims.” Doe, 641 N.E.2d at 508. Moreover, “[t]he intensity and
the duration of the distress are also factors to be considered[.]” Pub. Fin. Corp., 360 N.E.2d at 767.
Indeed, physical harm is not a requirement “if the conduct is sufficiently extreme and outrageous
there may be liability for the emotional distress alonef.J” RESTATEMENT (SECOND) OF Torts § 46,

Comment &).

Plaintiffs assert that Officer Woods experienced humiliation, shame, guilt and embarrassment
as a result of his arrest and detention. He also fears losing his job as a police officer and being
falsely accused and has experienced sleepless nights, panic and anxiety. Mrs. Woods also has
experienced anxiety and sleepless nights, as well as shame, depression, humiliation, and a damaged
sense of security. Unfortunately for plaintiffs, such emotional distress, without more, does not
constitute severe emotional distress. See Adams, 684 N.E.2d at 942 (plaintiff failed to prove severe
emotional distress where he experienced a general fear and fear of losing his job and being falsely
accused); Knysak v. Shelter Life Ins, Co., 652 N.E.2d 832, 273 Ill. App. 3d 360, 210 Ill. Dec. 30 (IU.
App. Ct. 1995)(plaintiff failed to prove severe emotional distress where he testified that he was very

upset, very nervous, and very depressed).

30


Il. Disputed Facts

The parties dispute most of what occurred on the night of November 18 and carly moming
of November 19, 2000. Each provides a different version of the triggering events and the behavior
of the parties during those events. The court reminds the parties that “summary judgment cannot be
used to resolve swearing contests between litigants.” Payne v. Pauley, 337 F.3d 767 at 770 (7TM Cir.
2003)(citations omitted), Rather, “[oJn summary judgment a court may not make credibility
determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs
for a fact finder.” Jd. at 770 (citations omitted). “[T]he court has one task and one task only: to
decide based on the evidence of record, whether there is any material dispute of fact that requires a
trial.” Id. (quoting Waldridge v. Am. Hoescht Corp., 24 F.3d 918, 920 (7 Cir. 1994).

To determine whether any genuine issue of fact exists, the court must pierce the pleadings
and assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee’s notes. The party
seeking summary judgment bears the initial burden of proving there is no genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving party cannot
rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific
material facts showing that there is a genuine issue for trial. Jd. at 324; Insolia v. Philip Morris Inc.,
216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the
governing law. Jnsolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists
is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir.
2000), the court must construe all facts in a light most favorable to the nonmoving party as well as

view all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,



Officer Perry did not assist in the actual arrest of plaintiffs. He played no role in their
subsequent transport to the police station or their confinement. Although Officer Perry supervised
the arresting officers, under the Illinois Local Governmental and Local Governmental Tort Immunity
Act (the “Act”), Sergeant Perry cannot be held liable in his capacity as supervisor for the acts of the
other police officers, See 745 ILCS 10/2-204, The Act provides: “Except as otherwise provided
by statute, a public employee, as such and acting within the scope of his employment, is not liable
for an injury caused by the act or omission of another person.” Jd Plaintiffs have not alleged or
offered any evidence that Sergeant Perry was acting outside the scope of his employment, and,
consequently, he cannot be held liable for the false imprisonment of plaintiffs committed by the other

police officers. Thus, summary judgment is granted as to count V with regard to Officer Perry.

Similarly, plaintiffs cannot maintain their claim of battery against Sergeant Perry. In order
to maintain a claim of battery, a plaintiff must establish that the defendant “intentionally and
knowingly without legal justification and by any means, (1) causes bodily harm to an individual or
(2) makes physical contact of an insulting or provoking nature with an individual.” 720 ILCS 5/12-
3. Here, there are no allegations that Sergeant Perry touched either Mr. Woods or Mrs. Woods in
any manner. Sergeant Perry cannot be held liable in his capacity as the supervisor of the Harvey
Police Officer for the battery committed by the other officers. See 745 ILCS 10/2-204. Since
plaintiffs have not alleged or offered any evidence that Sergeant Perry was acting outside the scope
of his employment, he cannot be held liable for the battery committed by the other police officers.

Thus, summary judgment is granted in favor of Officer Perry as to count VI.

21


It is undisputed that the Fifty Yard Line hired Officer Clay, Officer McGee, and Deputy
Marshall Jones to work security at the Fifty Yard Line as a result of word of mouth that employment
was available. It is also undisputed that the Fifty Yard Line, not the City, paid Officer Clay, Officer
McGee, and Deputy Marshall Jones to work security. The parties also do not dispute that Officer
Clay, Officer McGee, and Deputy Marshall Jones wore black “tactical” outfits, carried their City-
issued service weapons, and wore their police badges. In addition, the Fifty Yard Line’s
management instructed the police officers acting as security personnel that they were to work the
hallway and check for weapons and identification. (Pls’ Resp. to Fifty Yard Line’s L.R. 56.1, Ex.
F at 20-21). Essentially, the Fifty Yard Line employed Officer Clay, Officer McGee, and Deputy
Marshall Jones to function as police officers and to demonstrate to its patrons by virtue of the outfits,
weapons, and badges worn by the officers and deputy marshall that the officers were protecting the

premises and its patrons.

The present matter is similar to the situation presented in Groom v. Safeway, Inc., 973 F.

Supp. 987 (W.D. Wash. 1997). In Groom, the plaintiff brought a § 1983 action after an off-duty
police officer who worked as a security guard for Safeway detained and handcuffed her on the belief
that she was shoplifting after being notified by a store manager that the plaintiff might have been
attempting to shoplift. Jd. at 989, While working as a security guard, the off-duty police officer
wore his Seattle Police Department uniform, he was armed, and Safeway was paying him for his
time. Jd. Following a jury trial in which the jury found Safeway liable under § 1983, the court

affirmed its earlier decision that Safeway acted under color of state law. The court explained:

In the instant case, Safeway did more than cloak itself with the authority of the
state: it hired an instrument of the state’s power. Officer Hori, his uniform, his
badge, and his gun were all hired to serve Safeway’s goal of deterring theft in its

38


stores. Although Hori acted in his capacity as a police officer, he did so on
Safeway’s time. . . .Thus, the employment relationship gives the private entity
and the state agent an overlapping identity and interest and sufficiently invoives
the state in the relevant actions of the private entity to bring those actions under
color of state law.

Id. at 991. Nevertheless, the court specified that is was not holding Safeway automatically liable for
every action that the off-duty police officer took. Jd. at 992. Asa result, it was possible that the off-
duty police officer’s actions resulted in a deprivation of the plaintiff's civil rights while Safeway’s
actions did not. Jd. The court merely held that “whatever Safeway did, it did under state law.”
The present case, like Groom, is distinguishable from the cases cited by the Fifty Yard Line.
In Profitt v. Ridgeway, 279 F.3d 503, 508 (7" Cir. 2002), the Seventh Circuit held that a private
citizen did not act as a state actor in assisting a police officer in subduing the decedent because the
private citizen did not cross the line of becoming a temporary police officer. Similarly, a
conservation warden, whose position consisted of enforcing game laws and not the general
enforcement of state law, did not become a state actor when complaining of alleged criminal acts to
deputy sheriffs. See Hughes v. Meyer, 880 F.2d 967, 972 (7* Cir. 1989). Further, private security
guards employed by a department store were not state actors under § 1983 where there was no
evidence of a pre-existing plan between the police and store officials. See Davis v. Carson Pirie
Scott & Co., 530 F. Supp. 799 (N.D. Ill. 1982). None of these cases cited by the Fifty Yard Line
involved police officers who, while working for a private entity, cloaked themselves with the
authority of their position as police officers and acted in accordance with that authority. Nor do
these cases involve a private entity employing police officers to act in accordance with their police

functions for the benefit of the private entity.

39


to advice and cooperation.” Fabiano v. City of Palos Hills, 784 N.E.2d 258 at 270, 336 Ill. App. 3d
635, 271 Ill. Dec. 40 (i. App. Ct. 2002), citing Denton v. Allstate Ins. Co., 504 N.E.2d 756, 759,
152 Hl. App. 3d 578, 105 Ill. Dec. 471 (Ill. App. Ct. 1986). In Illinois, “a prosecution is commenced
by acomplaint, an information, or an indictment.” Mulligan v. Village of Bradley, 475 N.E.2d 1029,
1032, 131 Ill. App. 3d 513, 86 Ill. Dec. 650 (IIL. App. Ct. 1985). In the present matter, plaintiffs
have failed to bring forward any evidence that Sergeant Perry, Officer Williams, or Officer
Richmond had any involvement in the commencement of the criminal proceedings. There is no
evidence that they participated in the drafting or signing the criminal complaints, that they testified
against plaintiffs, or that they had any involvement with plaintiffs or their prosecution following their
arrests. Thus, the court grants summary judgment in favor of Sergeant Perry, Officer Williams, and

Officer Richmond as to count VII.
D. Count VIII ~ Intentional Infliction of Emotional Distress

Under Illinois law, the following elements are required to state a claim for the tort of
intentional infliction of emotional distress: (1) extreme and outrageous conduct; (2) intent to cause
severe emotional distress or knowledge that there is a high probability of causing severe emotional
distress; (3) the conduct actually caused severe emotional distress. Pub. Fin. Corp. v. Davis, 360
N.E.2d 765, 767, 66 Ill.2d 85, 4 Ill. Dec. 652 (Ill. 1976); Doe v. Calumet City, 641 N.E.2d 498, 506,
161 Ill. 2d 374, 204 Ill. Dec. 274 (Ill. 1994). Defendants contend that plaintiffs have failed to
establish a prima facie case of intentional infliction of emotional distress and, as a result, plaintiffs’

claims should fail as a matter of law.

27


friend, Alicia Miller (“Miller”). Mrs. Woods was initially hesitant about attending the ‘party because
the club had a “history” and a “reputation.” (Pls’ Resp. to the City of. Harvey Defs’ L.R. 56.1 Add’!
Facts at] 1). Apparently, some of the Fifty Yard Line’s clientele do not Possess particularly peaceful
dispositions. Fights commonly break out in the parking lot when the Fifty Yard Line closes.
Assaults, batteries, and murders also have occurred at the Fifty Yard Line, Because Miller’s party
was held in a private room at the Fifty Yard Line, however, Mrs, Woods agreed to attend. Mr.
Woods, although off-duty, carried his service weapon with him into the Fifty Yard Line and
consumed at least one alcoholic beverage.

Officer Clay, Officer McGee, and Deputy Marshall Joyce Jones (“Sones”),? were working as
Security personnel for the Fifty Yard Line that night. In that capacity, Officer Clay, Officer McGee,
and Deputy Marshall Jones checked the identification of the Fifty Yard Line’s patrons, searched for
weapons, conducted “pat-downs,” and worked the Fifty Yard Line’s hallway, The Fifty Yard Line
paid Officer Clay, Officer McGee, and Deputy Marshall Jones for their services. The City also
employed Officer Clay, Officer McGee, and Deputy Marshall Jones. These officers leammed of the
employment opportunities at the Fifty Yard Line by word of mouth from other City police officers
and from employees of the Fifty Yard Line. While working security at the Fifty Yard Line, the
officers reported to the Fifty Yard Line’s managers. In addition, the City employed Sergeant Perry,
Officer Williams, and Officer Richmond, each of whom were on-duty that night.

Although the Fifty Yard Line did not specify the type of clothing to be worm by Officer Clay,
Officer McGee, and Deputy Marshall Jones, the officers usually wore black “tactical” outfits with

Deputy Marshall Joyce Jones is not a defendant in this action. Any reference to defendants or the Harvey
Police Officers does not refer to or include Jones.

3


a¢

ORDER

For the reasons set forth above, Plaintiff Toi Woods’ Motion for Partial Summary Judgment
is denied. The City of Harvey Defendants’ Motion for Partial Summary Judgment is granted with
tegard to count II as to the City of Harvey; count IV, count V, count VI, and VIII as to Sergeant
Perry; Toi Woods’ claims in count VI as to Officer Clay; count VII as to Sergeant Perry, Officer
Williams, and Officer Richmond; count VIII as to Sergeant Perry, Officers Clay, Williams,
Richmond, and the City of Harvey. The court denies the City of Harvey Defendant’s Motion for
Partial Summary Judgment as to count I; counts IV, and V as to Officers Clay, Williams, and
Richmond; count VI as to Officers Richmond and Williams; and count LX. The court also denies

the Fifty Yard Line’s Motion for Summary Judgment as to count III.

Enter:
JOAN HUMPHREY LEFKOW
United States District Judge
Date: January 10, 2005


the question of probable cause are generally inappropriate for disposition on summary judgment, this
is true only where there is room for a difference of opinion.”).

Under Illinois law, a person commits the misdemeanor of disorderly conduct if “he
knowingly: (1) Does any act in such unreasonable manner as to alarm or disturb another and to
provoke a breach of the peace.” 720 ILCS 5/26-1(a)(1). The Seventh Circuit has noted that “the
emphasis of the statute is upon the tendency of the conduct to disturb others and to provoke
disruptions of public order upon the unreasonableness of the activity when viewed in the context of
the surrounding circumstances.” Gower, 377 F.3d at 670 (citations omitted).

In support of her motion for summary judgment as to count I, Mrs. Woods relies upon a
number of cases in which courts have held that arguing with 2 police officer, even when arguing in
a loud voice or using profanity or offensive language, does not constitute disorderly conduct. See
Payne, 337 F.3d at 777 (“Illinois courts have time and again held that arguing with a police officer,
even if done loudly, or with profane or offensive language, will not in and of itself constitute
disorderly conduct.”); People v. Trester, 96 9 Ill. App. 3d 553, 421 N.E.2d 959 at 960, 52 IIL Dec.
96 (Ill. App. Ct. 1981); People v. Justus, 57 IM. App. 3d 164, 372 N.E.2d 1115, 1117, 14 Hil. Dec.

836 (II. App. Ct. 1978).

Defendants, however, allege that Mrs. Woods did more than yell, scream, and cuss at them;
they allege that she positioned herself in front of the officers arresting Mr. Woods while grabbing
at Mr. Woods. Mrs. Woods likens the facts as alleged by defendants to the scenario presented in
Justus in which the Appellate Court of Illinois reversed the decision of the circuit court following
a bench trial. Justus, 372 N.E.2d at 1118. The circuit court had convicted the defendant of

disorderly conduct under the Municipal Code of the City of Chicago as a result of the defendant's

14


Because genuine issues of material fact exist with regard to the existence of probable cause
to arrest Mrs. Woods, the court also denies Mrs. Woods’ motion for summary judgment as to count
IV (false arrest), count V (false imprisonment), count VII (malicious prosecution), and count IX
(violation of the Illinois Constitution) as against the Harvey Police Officers. See Schertz, 875 F.2d
at 582 (“[T]he existence of probable cause for arrest is an absolute bar to a Section 1983 claim for

unlawful arrest, false imprisonment, or malicious prosecution.”)(citations omitted).
B. Plaintiff Toi Woods’ Claims Against the Fifty Yard Line’

The Fifty Yard Line failed to respond or in any way controvert any of the statements
contained Mrs. Woods’ Local Rule 56.1 Statement of Facts. As a consequence, all of the material
facts contained therein are deemed admitted as against the Fifty Yard Line. See L.R. 56.1(b)3)(A)
and (B). See also Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7 Cir. 2000);
Dimmitt & Owens Fin. v. Superior Sports Prods., Inc., 196 F. Supp. 2d 731, 736 (N.D. Ill. 2002).
Nevertheless, the Fifty Yard Line’s failure to comply with Local Rule 56.1 does not mean that
summary judgment will automatically be granted in favor of Mrs. Woods. The court still must
evaluate all facts in the light most favorable to the Fifty Yard Line, the non-moving party. See
Austin-Edwards v. Loyola Univ. Med. Ctr., 2004 U.S. Dist. LEXIS 10126, *6 (N.D. If. June 3,

2004).

Mrs, Woods’ Statement of Facts established that Officer Clay was a duly appointed police
officer for the City and also worked as a security guard for the Fifty Yard Line during the time

relevant to the lawsuit. (Pl.’s L.R. 56.1 at 4). In addition, security guards for the Fifty Yard Line

Sms, Woods moved for summary judgment against the Fifty Yard Line with regard to count I of the Second
Amended Complaint. This count, however, does not seek relief against the Fifty Yard Line.

16


a)

§ 1983. Count I is against Officers Clay, Prince, Richmond, McGee, Williams, and Sergeant Perry
for the arrest and imprisonment of plaintiffs without probable cause in violation of § 1983; count II
is against the City and alleges that the conduct of the Harvey Police Officers was undertaken
pursuant to the policy, custom and/or practice of the City in violation of § 1983; count II] alleges that
the Fifty Yard Line is responsible for the conduct of the Harvey Police Officers because it acted
under color of state law by engaging in a joint action with the City in the arrest of plaintiffs in
violation of § 1983; counts IV (false arrest), V (false imprisonment), VI (battery), VII (malicious
prosecution), VIII (intentional infliction of emotional distress), and IX (violation of the Illinois
Constitution) allege state law claims against all of the defendants; and count X seeks indemnification
from the City in the event that judgement is entered against Sergeant Perry and Officers Prince,
Richmond, and Williams. Before the court are the City of Harvey defendants’ motion for partial
summary judgment, Toi Woods’ motion for partial summary judgment, and the Fifty Yard Line’s
motion for summary judgment. This court has jurisdiction pursuant to 28 U.S.C. §§ 1343 and 1367.
For the reasons stated below, the court denies Toi Woods’ motion for partial summary judgment;
the court grants in part and denies in part the City of Harvey defendants’ motion for partial summary
judgment; and the court denies the Fifty Yard Line’s motion for summary judgment.
FACTS

L Undisputed Facts

Plaintiffs James Woods (“Mr. Woods”) and Toi Woods (“‘Mrs. Woods”) are residents of
Cook County, Illinois and are married to each other. Mr. Woods is a police officer for the City of
Chicago. On the night of November 18, 2000, Mr. and Mrs. Woods arrived at the Fifty Yard Line,

which is located in Harvey, Illinois, between 10:30 and 10:45 P.M. to attend a birthday party for their


to handle citizen complaints, what could be an expected number of meritorious complaints under
proper procedures, or some actual evidence that complaints lodged in the City of Harvey were
meritorious. See, e.g., Robinson, 2001 U.S. Dist. LEXIS 1930 at *24. See also Sledd v. Lindsay,
102 F.3d 282 at 287 (7" Cir. 1996)(defendant city’s motion to dismiss denied where plaintiff's
complaint contained statistical allegations involving the number of complaints filed with the police
department, the number of investigations conducted, and the estimated percentage of complaints
with merit, as well as detailed allegations concerning the police officers’ “code of silence”). Without
any such evidence no basis exists for a finding that City’s policy caused plaintiff's injury. Thus, the

court grants summary judgment in favor of the City as to count II of the second amended complaint.
IV. The Fifty Yard Line’s Motion for Summary Judgment

The Fifty Yard Line moved for summary judgment as to plaintiffs’ § 1983 claims in count
III, arguing that there is no evidence of joint action between the City and the Fifty Yard Line and that
there is no evidence that an official policy of the Fifty Yard Line caused the alleged deprivation of

plaintiff's federal rights.

It is not necessary that a defendant be an officer of the State in order to be held liable under
§ 1983, Dennis v. Sparks, 449 U.S, 24, 27, 66 L.Ed. 2d 185, 101 S. Ct. 183 (1980). Instead, “[ilt
is enough that he is a willful participant in joint action with the State or its agents. Private persons,
jointly engaged with state officials in the challenged action, are acting ‘under color’ of law for
purposes of § 1983 actions.” Jd. at 27-28, citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 152

(1970); United States v. Price, 383 U.S. 787, 794 (1966).

37


Whether a withdrawal or an abandonment constitutes a final termination of the case
in favor of the person against whom the proceedings are brought and whether the
withdrawal is evidence of a lack of probable cause for their initiation, depends
upon the circumstances under which the proceedings are withdrawn. (Emphasis
added.) Restatement (Second) of Torts § 674, Comment j (1977).

Velez v. Avis Rent a Car Sys., 721 N.E.2d 652 at 655, 308 I. App. 3d 923, 242 Ill. Dec. 373 (Il.
App. Ct. 1999), quoting Cult Awareness Network v. Church of Scientology Int'l, 685 N.E.2d 1347
at 1352, 177 Ill. 2d 267, 226 Ill. Dec. 604 (1997), Under this approach, dispositions that do not
reach the merits of the underlying case may satisfy the favorable determination requirement
depending upon the circumstances under which the disposition is obtained. Id. “[A] nolle prosequi
may serve as a favorable termination unless the prosecution was abandoned for reasons not
indicative of the innocence of the accused.” /d. at 655-56, citing Swick v. Liautaud, 662 N.E.2d
1238, 1242-43, 169 Ill. 2d 504, 215 Il. Dec. 98 (1996). Abandoned proceedings that are not
indicative of a favorable termination include “when the nolle prosequi is the result of an agreement
orcompromise with the accused, misconduct on the part of the accused for the purpose of preventing
trial, mercy requested or accepted by the accused, the institution of new criminal proceedings, or the
impossibility or impracticability of bringing the accused to trial.” Jd, at 656 (citations omitted). An
SOL, under certain circumstances, also may indicate a defendant’s innocence sufficient to support

a malicious prosecution claim. See Cult Awareness Network, 685 N.E.2d at 1353.

In this case, the parties dispute the precise circumstances giving rise to the termination of the
charges against Mr. Woods and Mrs. Woods but both parties agree that the charges were terminated
following Officer Clay’s failure to appear in court. According to defendants, Officer Clay, the
complaining witness, failed to appear in court as the result of an “administrative glitch” because the
cases were given the wrong court dates and not scheduled on Officer Clay’s court key. (Def. Mem.

25


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAMES W. WOODS and TOI WOODS,

posagtd
JAN 1 1 2005

Plaintiffs,
vs.
DAVID CLAY, in both his individual and No. 01 C 6618
official capacities; OSCAR FERRY, in both
his individual and official capacities; Judge Joan H. Lefkow
ERIC PRINCE, in both his individual and Magistrate Judge Ashman

official capacities; KEVIN RICHMOND, in
both his individual and official capacities;
JAMES McGEE, in both his individual and
official capacities; RAMONE WILLIAMS,
in both his individual and official capacities;
CITY OF HARVEY, ILLINOIS, a municipal
corporation; and 50 EXPRESS, INC.,

d/b/a/ THE FIFTY YARD LINE

SPORTS BAR AND GRILL,

ee Se ee ee ewer www

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs, James W. Woods and Toi Woods, filed a ten count complaint against defendants
David Clay (“ Officer Clay”), Oscar Perry (“ Sergeant Perry”), Eric Prince (“Officer Prince”),! Kevin
Richmond (“Officer Richmond”), James McGee (“Officer McGee”),? Ramone Williams (“Officer
Williams”)(collectively, “Harvey Police Officers”), the City of Harvey (the “City”), and 50 Express,

Inc. d/b/a The Fifty Yard Line Sports Bar and Grill (the “Fifty Yard Line”), pursuant to 42 U.S.C.

‘This court previously entered a default judgment against Officer Prince on counts One, Four, Five, Six,
Seven, Eight, and Nine of Plaintiffs’ Second Amended Complaint. As a consequence, Officer Prince is not a subject
of the pending motions.

>This court previously entered a default judgment against Officer McGee on counts One, Four, Five, Six,
Seven, Eight, and Nine of Plaintiffs’ Second Amended Complaint. As a consequence, Officer McGee is not a

subject of the pending motions.


thirty-nine civil rights-related complaints,’ The vast majority of these civil rights complaints
involved allegations of excessive force. In the four or five instances in which a person complained
of false arrest, that person would be advised to go to court and to return to file a complaint with the
police department after the lawsuit was resolved or the person was found not guilty. Damiani
explained the rationale for advising individuals complaining of false arrest to go to court as follows:
“Because that is the judge’s responsibility to make that determination. Officers aren’t going to
change their story when they come into my office. It is always your word against their word, so you
go to court. If the judge finds you not guilty, come on back and file a complaint. They don’t ever
come back.” (Pls’ Amended Resp. to City of Harvey Defs’ L.R. 56.1, Ex. N at 49-50). Only one
individual filed a complaint after proceeding with a lawsuit, and the City investigated his complaint.

Plaintiffs maintain that Damiani also chose not to memorialize oral complaints into written
complaints between ten and fifty times and chose not to turn approximately ten citizen complaints
into case reports.’ Damiani never had the occasion to take a complaint of false arrest or malicious
prosecution; however, the police department always took complaints of excessive force and
conducted investigations. While commander of Internal Affairs, Damiani recommended the

termination of two police officers, one in a matter involving rape and the other in a matter involving

"The City resolved citizen complaints by categorizing its findings as follows: “Unfounded (meaning the
allegations giving rise to the complaint never happened); Not sustained (meaning that the complaint could not be
proven); Exonerated (meaning the officer had legal justification); and Sustained (meaning the complainant is right
and there is enough proof to state the officer was wrong).” (Pls’ Amended Resp. to City of Harvey Defs” L.R. 56.1
at 21-22). The City only punished its police officers for sustained complaints.

® According to Damiani’s deposition testimony, these complaints involved allegations that could not be
proven one way or the other. For example, Damiani would not memorialize an oral complaint into a written
complaint if the complainant claimed that he unfairly received a speeding ticket or parking ticket. On those
occasions, Damiani would advise the complainant to contest the ticket in court.

33


| vines

sheriff’ s] authority asa sheriff s deputy seeking to enforce North Carolina state law, it was a decision
which flowed from the authority delegated to the [auxiliary deputy sheriff] by the County Sheriff.”
Id. The Fourth Circuit further explained, “When a security guard is acting as a sheriff's deputy
exercising the quintessential state function of arrest . . . the assumption is that state policies and state
training would be guiding the exercise of that authority, at least in the absence of evidence that the
private entity sought to supplant state policies or training procedures with policies of its own.” Id.

Here, the parties dispute whether the Fifty Yard Line had a security policy and whether the
Fifty Yard Line trained the police officers who worked security at the Fifty Yard Line. The
deposition testimony of Zach Blasingame established that the Fifty Yard Line had an unwritten
security policy that its security guards were not supposed to put their hands on patrons who were
causing problems but were instead supposed to ask such patrons to leave. (Fifty Yard Line’s L.R.
56.1, Ex. Eat 28-30). Blasingame discussed this policy in the context of the other security personnel
employed by the Fifty Yard Line, not the police officers. The Fifty Yard Line also argues that
plaintiffs submitted no evidence of a policy of the Fifty Yard Line to effectuate improper arrests.
Plaintiffs, however, argue that the Fifty Yard Line caused the deprivation of their constitutional
rights by maintaining a policy of hiring police officers to work security, by instructing the police
officers as to how to perform their duties, by failing to have safety precautions in place, and by
failing to have a written security policy. In addition, rather than reporting to the police department
as in Rodriguez, the officers reported to the Fifty Yard Line’s management while working security.
This is sufficient to raise a genuine issue of material fact as to whether the Fifty Yard Line attempted
to supplant the training and policies of the City with its own security policies. See Groom, 973 F.

Supp. at 992 (“Plaintiffs only argument was that Safeway caused her to be subjected to a deprivation

42


1. Extreme and Outrageous Conduct

“Liability has been found only where the conduct has been so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency.” Pub. Fin. Corp., 360 N.E.2d
at 767, quoting Restatement (Second) of Torts § 46, comment d (1965). Whether conduct is extreme
and outrageous is “judged on an objective standard based on all of the facts and circumstances of a
particular case.” Doe, 641 N.E.2d at 507 (citation omitted). “Conduct is of an extreme and
outrageous character where recitation of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” /d. (quotation
omitted). Although “mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities” are insufficient, id , conduct may be characterized as extreme and outrageous where “(1)
the character of the conduct itself is extreme and outrageous (2) the conduct arises out of an abuse
of a position or relationship in which the defendant has authority over the plaintiff, or (3) the
defendant knew of some peculiar susceptibility of the plaintiff's to emotional distress.” Rudis v.
Nat'l College of Educ., 548 N.E.2d 474, 476, 191 Ill. App. 3d 1009, 139 Ill. Dec. 89 (ill. App. Ct.

1989)); see also Doe, 641 N.E.2d at 507, 161 Ill.2d 374.

Defendants argue that the conduct of Sergeant Perry toward plaintiffs was not so extreme and
outrageous as to sustain a claim for intentional infliction of emotional distress, citing Sergeant
Perry’s lack of contact with plaintiffs and his lack of involvement in their arrests. Plaintiffs do not
respond to defendants’ argument with regard to Sergeant Perry and, thus, have waived any argument
in opposition. See Arendt v. Vetta Sports, Inc., 99 F.3d 231, 237 (7 Cir. 1996)(failure to respond
to arguments in response to summary judgment motion results in waiver). The court grants summary

judgment as to count VIII in favor of Sergeant Perry.

28


down patrons, telling them to leave the club if they smelled alcohol and who to allow into the Fifty
Yard Line. The parties also dispute the level of involvement and various roles of the police officers
in arresting plaintiffs.

Moreover, the parties dispute whether the conduct of plaintiffs caused a crowd to gather. In
particular, the Harvey Police Officers contend that there were no patrons outside before Officers Clay
and McGee brought Mr. Woods out of the Fifty Yard Line. Patrons began to emerge from the club
as Mr. Woods was escorted outside. About a minute after they were outside, Mrs. Woods started
a “commotion” (City of Harvey Defs” Response to Pl.’s L.R. 56.1 at ¥ 22), by yelling, screaming,
cussing, and grabbing at her husband. (City of Harvey Defs’ L.R. 56.1 Add’I Facts at § 10). Mrs.
Woods, by contrast, contends that the crowd was already gathered when she spoke to the police.
(Pl.’s L.R. 56.1 at J 15).

ANALYSIS

Notwithstanding the differing versions of events, all of the parties have filed motions for
summary judgment and/or partial summary judgment. The court addresses each party’s motion in
turn.

L Plaintiff Toi Woods’ Motion for Partial Summary Judgment

A, Count I - § 1983

In order to prevail on their claim of unlawful arrest under § 1983, plaintiffs must establish
the absence of probable cause for their arrests. See Kelley v. Myler, 149 F.3d 641, 646 (7* Cir.
1998). In.count I, plaintiffs allege that they were arrested without probable cause and seek relief

against Sergeant Perry and Officers Clay, Prince, Richmond, McGee and Wiltiams under 42 U.S.C.

12


screaming and yelling hysterically at a police officer for writing her a parking ticket. /d. at 1117.
After the officer finished writing the ticket, the defendant followed him back to his squad car
whereupon she grabbed at the pen in his pocket. Jd. Because the only reference to a public disorder
was the officer’s testimony that a crowd had gathered in the area, the appellate court determined that

there was no proof that the defendant’s actions caused a public disorder. Id.

The present situation, as alleged by defendants, is readily distinguishable from Justus. While
the parties in both the instant matter and in Justus provide differing versions of events, the instant
matter is only at the summary judgment stage while Justus involved a decision on the merits
regarding whether the defendant was guilty of disorderly conduct. At this point in the present matter,
the court and parties are concerned with whether the Harvey Police Officers had probable cause to
arrest Mrs. Woods, not whether she was guilty of disorderly conduct. In addition, according to
defendants’ version of events, Mrs. Woods did far more than yell and scream and grab at a pen. The
defendants allege that Mrs. Woods, while yelling, screaming, and cussing, placed herself in between
an arresting police officer and a suspect who was found carrying a concealed weapon in a club
known for having a rather volatile clientele. Defendants further allege that she was grabbing at the
suspect. Obviously, such a scenario presents different considerations for the arresting officers from
those presented by a person grabbing for a pen. In addition, even though Officer Clay considered
Mrs. Woods’ actions to be those of a normal wife who was concermed about her husband, see Pl.
L.R. 56.1, Ex. J at 109, a genuine issue of material fact exist with regard to whether the Harvey
Police Officers had probable cause to arrest Mrs. Woods for disorderly conduct, as evidenced by the
differing versions of the incident provided by the parties. Thus, the court denies Mrs. Woods’

motion for summary judgment as to count I.

15