voluntarily dismissed the Monell claim against the City (Count V).

LEGAL STANDARD

Summary judgment is appropriate when the record reveals that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment the
moving party must identify “those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it
believes demonstrate the absence of a genuine issue of material fact,” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial
burden may be satisfied by presenting specific evidence on a particular issue or by
pointing out “an absence of evidence to support the non-moving party’s case.”"/d. at
325. Once the movant has met this burden, the non-moving party cannot simply rest
on the allegations or denials in the pleadings, but, “by affidavits or as otherwise
provided for in [Rule 56], must set forth specific facts showing that there is a
genuine issue for trial.” Fed. R. Civ. P. 56(e). A “genuine issue” in the context of a
motion for summary judgment is not simply a “metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co., Ltd. y. Zenith Radio Corp, 475 US, 574, 586

(1986), Rather, a genuine issue of material fact exists when "the evidence is such



denying Watts’ and Banaszkiewicz’s 56.1 fact number 13, Plaintiffs fail to directly
respond to the asserted fact and fail to provide any citations to support their denial as
is required by Local Rule 56.1. Local Rule 56.1(b)(3)(A); Dent v. Bestfoods, 2003
WL 22025008, at *1 n.1 (N.D. Ill, 2003); Jankovich v. Exelon Corp., 2003 WL
260714, at *5 (N.D. IIL. 2003)indicating that evasive denials that do not directly
oppose an assertion are improper and thus the contested fact is deemed to be
admitted pursuant to Local Rule 56.1). In response to Watts’ and Banaszkiewicz’s
statement of fact indicating that Russ and Lewis discussed moving in together to
raise their son, Plaintiffs contend that Russ had sexual relations with Lewis only
once, that Russ was not sure that Lewis was carrying his child, and that Russ “never
indicated that he was going to move in [sic] or marry Erin Lewis.” (R W&B SF
13). None of Plaintiffs’ facts respond directly to Watts’ and Banaszkiewicz’s 56.1
fact number 13. Therefore, Plaintiffs admit that Russ and Lewis discussed moving
in together to raise their son.

We emphasize that we are not merely making findings based upon
meaningless procedural technicalities. A court is not “obliged in our adversary
system to scour the record looking for factual disputes and may adopt local rules

reasonably designed to streamline the resolution of summary judgment motions.”

Waldridge v. American Hoechst Corp, 24 F.3d 918, 922 (7 Cir. 1994). Local Rule



holding of the Seventh Circuit Court of Appeals inBell v. Milwaukee, 746 Fd. 2d
[sic] 1205 (7" Cir. 1984) which allows the plaintiffs to maintain this action.” (P.
Ans. 2).

First of all, as we will explain below, we are not precluded from addressing
this issue merely because of Judge Gettleman’s ruling on Defendants’ motion to
dismiss, Secondly, Defendants have not asked this court to overruleBel/ as
Plaintiffs contend. Rather, Defendants ask this court to distinguish the instant case
from Bell. This court has no authority whatsoever to overrule a decision of the
Seventh Circuit. However, this court can address whether the instant case is
distinguishable from Bel//.

In Bell the Seventh Circuit held that a parent of a decedent had standing to
bring a civil rights action based on the parent’s constitutionally protected interest in
maintaining a relationship with his child. /d. at 1244-45. The Seventh Circuit held
that the plaintiff parent could bring a Section 1983 claim based upon the severance
of the relationship between himself and his child despite the fact that, in that case,
the parent’s child was 23 years old when shot by police and was no longer a minor.
/d. The Seventh Circuit also stated, in finding that the plaintiff parent had standing,
that the child “had no children[,] . . . had not become a part of another family unit. .

.[and] his father’s family was his immediate family.” Jd. at 1245.



that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc, 216
F.3d 596, 599 (7th Cir. 2000), The court must consider the record as a whole, in a
light most favorable to the non-moving party, and draw all reasonable inferences that
favor the non-moving party. Anderson, 477 U.S, at 255; Bay v. Cassens Transport

Co., 212 F.3d 969, 972 (7th Cir. 2000),

DISCUSSION

Defendants argue that Russ’ parents lack standing to bring the instant suit.
This issue was raised before Judge Gettleman in Defendants’ motion to dismiss and
on March 15, 2002, Judge Gettleman denied Defendants’ motion to dismiss the
parental claims due to a lack of standing. Judge Gettleman concluded thatBell v.
Milwaukee, 746 F.2d 1205 (7 Cir. 1984) is applicable to the claims of Russ’ parents
in the instant case and denied Defendants’ motion to dismiss the parental claims
based on a lack of standing. After the completion of discovery, Defendants now
argue that they are entitled to summary judgment because Russ” parents lack
standing. Plaintiffs offer no arguments on this issue in their answer to the instant
motions. Plaintiffs state only that Judge Gettleman already decided the issue and

Plaintiffs incorrectly state that Defendants have asked this court to “overrule the



2002)(emphasis added)stating in addition that he could not rule against the parents
“as the facts now stand”). Judge Gettleman stated that he did not know whether
“Russ and the mother of his child had formed their own family unit” and indicated
that it is possible that “Russ and the mother of his child had not interacted at all
since the child’s inception... .” /d. Judge Gettleman was clearly inhibited in
making an informed decision because the issue was presented to him at the motion to
dismiss stage. We sit in a unique position having all of the fruits of discovery and
evidence before us to assist us in our determination.

Judge Gettleman correctly concluded that “to answer the question of
[parental] standing in the instant case, the court must determine whether Russ had
become part of another family unit.” /d. Tn the instant case, Plaintiffs admit
pursuant to Local Rule 56.1, that, at the time of his death, Russ did not live at home,
but rather lived on campus at Northwestern University. (R W&B SF 8). Plaintiffs
admit, pursuant to Local Rule 56.1, that “[w]hen Erin Lewis learned that she was
pregnant with Robert Russ’ child, they discussed the pregnancy.” (R W&B SF 9).
Plaintiffs admit that “[b]efore his death, Robert Russ was making plans for taking
care of his unborn son.” (R W&B SF 10), Watts and Banaszkiewicz allege as 56.1

fact number 13 that “Robert Russ and Erin Lewis discussed moving into together

[sic] to raise their son.” (R W&B SF 13). Plaintiffs dispute the fact. However, in



States District Court, Northern District of Mlinois

Minute Order Porm (06/97) \ ded

Name of soi ae Samuel Der-Yeghiayan Sitting Judge if Other

or Magis ldge thun Assigned Judge
CASE NUMBER 01 C4098 DATE 6/17/2004
CASE Russ vs. Watts
TITLE

(In the following box (3) indicate the purty filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintif?, und (b) state brietly the nature

MOTION: of the motion being presented. ]

DOCKET ENTRY:

q) Oo Filed motion of [ use fisting in “Motion” box above.]

(2) QO Brief in support of motion due.

QB) im Answer brief to motion duc . Reply to answer briefdue_

(4) Oo Ruling/Hearing on set for at

(3) ao Status hearing[held/continued to] [set for/re-set for] on set for at

(6) Qo Pretrial conference[held/continucd to] [set for/re-set for] on setfor al

(7) Oo Trial[sct for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continucd to at

(9) Oo This case is dismissed (with/without] prejudice and without costs{by/agreement/pursuant to]

OOFRCP4(m) Local Rule 41.1 COFRCP41(a)(1) [ FRCP41(a)(2).

(10) [Other docket entry] For the reasons stated in the attached memorandum opinion, defendants
Watts’, Banaszkiewicz’s and Helson’s motions for summary judgment are granted. Plaintiffs’ motion for
summary judgment is denied. All pending dates and motions are hereby stricken as moot. Terminating
case. Enter Memorandum Opinion.

aly {For further detail see order attached to the original minute order.]

No notices required, advised in open count,

No notices required. umber of notices

JUN 18 2004

date docdetod,

Notices mailed by judge’s staff.

Notified counsel by telephone,

we | Docketing to mail notices, The Court
distributed Memorandum Opinion to the

Dattes 14 a ee
Mail AQ 450 form. on
Copy to judge/magistrate judge.
apa ne peng
ere en
courtroom dare mailed notice,
Mw deputy’s
initials

Date/t recived | “4
gentralteiiieeomige’! = ring pays



further demonstrates that Russ’ parents were no longer his immediate family unit. It
was Russ’ newly formed family unit consisting of his son and his son’s mother that
recovered the $9.6 million in state court for the shooting incident. (R M&W SF 46),
It was Lewis, acting as mother and guardian of Robert Russ, Jr. and as the
administrator of the estate of Robert Russ that filed the second amended complaint in
Illinois state court and who received the jury award. (R M&W SF 45), There are
ample facts that distinguishes this case fromBe//. There is no indication that Bel/
intended to expand standing for Section 1983 claims to the extent sought in this suit.
In fact, the court in Be// recognized that there were limitations to standing for such
Section 1983 suits when the court ruled that siblings did not have standing to bring
such Section 1983 suits. 746 F.2d at 1247. Russ’ parents have not shown that they
have standing to proceed in this suit. Therefore, we grant summary judgment for all

the remaining Defendants.

1



56.1 requires a non-movant to point to the evidence that supports his view on a
factual issue if the non-movant contends that there is a legitimate dispute regarding
that issue to be settled at trial. A party is not entitled to proceed to trial and hope the
jury will speculate, in the absence of evidence, to support the party’s position, In
this case Defendants have cited the deposition testimony of Lewis and Plaintiffs
have merely attempted to side step the issue by providing an evasive reply.
Furthermore, Plaintiffs have failed to cite to any evidence whatsoever that they could
present at trial that would allow a reasonable jury to find in their favor on the issue
of whether or not Russ and Lewis discussed moving in together and raising their son.
It is clear from the facts and the totality of the circumstances before us that
Russ was no longer living at home at the time of his death and that he had formed a
new family unit. The evidence reflects that he planned to move in with Lewis and
raise his son, Plaintiffs admit, pursuant to Local Rule 56.], that “[bJefore his death,
Robert Russ was making plans for taking care of his unborn son.” (R M&W 10).
Plaintiffs admit, pursuant to Local Rule 56.1, that Russ was “‘looking forward’ to
becoming a father.” (R M&W SF 14). We find it commendable that Russ would
take responsibility for his child’s welfare. Plaintiffs also admit, pursuant to Local
Rule 56.1, that Russ’ mother stated at her deposition that Russ was “a grown man

and he could handle his own business.” (Love Dep. 82)( R W&B SF 16). This

10



Judge Gettleman denied Defendants’ motion to dismiss the parental claims
based upon a lack of standing and his ruling is entitled to some deference. A
subsequent judge sitting in a case cannot alter the prior judge’s ruling “merely
because he has a different view of the law or facts from the first judge.” Williams v,
CLR, 1 F.3d 502, 503 (7" Cir. 1993)(stating that “litigants have a right to expect
that a change in judges will not mean going back to square one.”). However, a
subsequent judge in a case may rule differently “if new information convinces him”
that the prior ruling was incorrect. Jd. Such is the case here. We have more facts
before us than Judge Gettleman had before him in March of 2002. Our ruling on this
issue does not mean that we are returning to “square one.” Rather, our ruling is a
part of the natural progression in these proceedings as they evolve from the
pleadings to discovery to dispositive motions.

Judge Gettleman, in making his ruling on Defendants’ motion to dismiss
parental claims, made it clear that he could not rule in Defendants’ favor on the
parental standing issue based on the limited information that he had before him. For
instance, Judge Gettleman stated that the only fact before him that differentiated this
case from Be// was that Russ had “impregnated a woman” prior to his death and
Judge Gettleman stated that he was hesitant to “deviate from Bell's clear holding

based on thfat] fact alone.” Russ v. Watts, 190 F.Supp.2d 1094, 1099 (N.D. IIL.



of a struggle the gun discharged, killing Russ. At the time of his death Russ was
twenty-two years old and was a student at Northwestern University.

‘The administrator of Russ’ estate brought a suit against Watts and the City on
behalf of Russ’ son, Robert Russ Jr., and the child’s mother Erin Lewis (“Lewis”) in
Illinois state court for wrongful death and survival. A jury awarded Russ’ estate
$9.6 million. In the instant case, the Plaintiffs are Russ’ parents and siblings who
brought claims against the City, Watts, Banaszkiewicz, and Helson. Plaintiffs
include in their amended complaint two substantive due process claims alleging
violations of 42 U.S.C. § 1983 (“Section 1983") based on a severance of family
relationships between Russ and his parents and Russ and his siblings (Counts I and
Il). Plaintiffs also brought a Section 1983 failure to prevent the use of excessive
force claim (Count IT), a Section 1983 conspiracy claim (Count TV), and a Section
1983 Monell claim against the City. Russ’ siblings also allege violations of 42
U.S.C, § 1985 (“Section 1985") involving an alleged conspiracy to deny Russ’
siblings access to the court system (Count VI), On March 15, 2002, Judge
Gettleman, the prior judge in this case, granted Defendants’ motion to dismiss all of
the Section 1983 claims brought by Russ’ siblings because his siblings did not have
standing (Count Il). Judge Gettleman also granted Defendants’ motion to dismiss

Russ’ siblings’ Section 1985 claims (Count VI). On April 30, 2004, Plaintiffs



BACKGROUND

Watts, Banaszkiewicz, and Helson are police officers that work for the City of
Chicago (“City”), On June 5, 1999, Banaszkiewicz claims that he spotted a car
being driven by Russ which cut across two lanes of traffic and nearly collided with
two motorcyclists. Banaszkiewicz claims that he pulled behind Russ’ car and turned
on his blue lights. According to Banaszkiewicz, Russ did not stop until he reached a
red light. Banaszkiewicz claims that he was wearing his uniform and that he exited
his vehicle and knocked on the driver’s side window of Russ’ car, but Russ ignored
him and when the light changed to green, Russ proceeded onward. Helson, who was
driving home from a part-time security job, claims that he saw Russ start off with the
green light, leaving Banaszkiewicz behind. Banaszkiewicz called for backup and
Watts was called in to assist in the pursuit. A chase ensued and Russ finally stopped
when he collided with other Chicago Police vehicles,

Banaszkiewicz and Helson approached the passenger’s side window and
Watts approached the driver’s side of the car. Helson claims that he managed to
crack open the passenger’s side door and was able to calmly tell Russ that he was
surrounded and that “he was not helping himself.” Watts then broke the rear

driver’s side window of the car. Defendants claim that Russ reacted by reaching for

Watts’ gun. Defendants claim that Russ grabbed Watts’ gun and after a few seconds



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CHRISTOPHER RUSS, et al., )
)
Plaintiffs, )
)
v. ) No. 01 C 4098
)
VAN WATTS, et al., )
) vo
Defendants. 3
) yy ATED
Wag 2004
MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Plaintiffs’ motion for summary judgment,
on Defendants Van Watts’, TV (“Watts”) and Philip Banaszkiewicz’s
(“Banaszkiewicz”) motion for summary judgment, and on Defendant Robert
Helson’s (“Helson”) motion for summary judgment. For the reasons stated below
we deny Plaintiffs’ motion for summary judgment and grant the motion for summary
judgment brought by Watts and Banaszkiewicz and grant the motion for summary

judgment brought by Helson,

[Lo]



CONCLUSION
Based on the foregoing analysis, we grant the motions for summary judgment
brought by all remaining Defendants and deny Plaintiffs’ motion for summary

judgment.

Samuel Der-Yeghiayan Ye d

United States District Court Judge

Dated: June 17, 2004