quoting United States v. Vigneau, 187 F.3d 70, 75 (1st Cir. 1999)(“business records exception does
not embrace statements contained within a business record that were made by one who is not a part
of the business if the embraced statements are offered for their truth”).

Moreover, defendarits do not contest the authenticity of the documents. Indeed, such an
argument would be disingenuous when the documents at issue are business records produced by the
City during discovery. Under these circumstances, the court will vonsider the documents offered by
both sides without the required authenticating testimony. See Woods, 234 F.3d at 989 (“Requiring
authenticating affidavits in this case would be an empty formélity”).

iL. Facets

The following facts are undisputed unless otherwise noted. On November 3, 2000, Vega was
walking in and out of traffic in the vicinity of 3553 W. Fullerton Avenue in Chicago. Officer
Riordan, along with Officer Brian Bernath, responded to a call for service regarding Vega at
approximately 3:30 p.m. When the officers approached Vega, he was slurring his words and
babbling in Spanish. The officers determined Vega was intoxicated. Officer Riordan then used a
Spanish speaking bystander ta determine Vega lived with his sister in the vicinity of Palmer and
Kedzie. The officers placed Vega in their vehicle to drive him home. When the officers reached
Palmer and Kedzie, they were unable to communicate with Vega due to his inebriated condition.
Officer Riordan called for a squadrol to transport Vega to a detoxitication facility.

The defendant officers arrived in a squadrol to transport Vega. Officer Riordan informed
defendant officers that she and the other officer had unsuccessfu.ly searched for Vega’s residence.
Officers Riordan and Bernath transferred custody of Vega to defendant officers at 3:53 p.m. Based

on Vega’s condition, defendant officers determined Vega posed a danger to himself. Vega was


Defendant officers next argue they are entitled to qualified immunity on Medina’s § 1983
claims. To determine whether immunity attaches to defenclant officers’ actions, the court must
undertake a two-part-test. /neco v. City of Chicago, 286 F.3d 994, 1000 (7th Cir. 2002),citing
Saucier v. Katz, 533 U.S. 194 (2001). First, the court mus: determine whether Medina has
established a constitutiona! violation. Jd Second, the court must determine whether the
constitutional right was clearly established at the time the disp:ited conduct took place. Jd. Medina
has established a constitutional violation. Therefore, Med:na must show that Vega’s right to
constitutional protection was clearly established on November 3. 2000.

To defeat the defendant officers’ claim to qualified immunity, Medina must show a
reasonable officer would know his conduct was unlawful in the situation he confronted. Saucier,
533 U.S, at 202. As early as 1979, the Seventh Circuit held that police officers violated due process
by placing civilians in dangerous situations. See White v. Rochford, 592 F.2d 381, 384 (7th Cir.
1979)(police officers left several children, including a 16 year old, in a car on the Chicago Skyway
at night in cold weather after arresting the adult driver). Drawing all inferences in Medina’s favor,
areasonable police officer should have realized that leaving a person in Vega’s condition in the back
of a squadrol for two hours unmonitored could jeopardize his safety. Although a reasonable
factfinder may ultimately determine defendant officers were no: deliberately indifferent to Vega’s
constitutional rights, disputed issues of material fact prevent a resolution of defendant officers”
qualified immunity defense on summary judgment. Therefore, defendant officers’ motion for

summary judgment on Medina’s § 1983 claims must be denied.


was unable to resuscitate Vega, who was pronounced dead at 6:22 p.m. According to Monroe,
defendant officers informed her they had placed Vega in the back of the squadrol and went out to
dinner. According to the medical examiner, Dr. J. Lawrence Cogan, Vega accidently died of
positional asphyxia. Defendants’ proposed expert, Dr. Michae| Baden, believes Vega died of sudden
cardiac arrest.

The City has an express written policy governin the transportation of intoxicated
individuals. According to the policy, police officers may take intoxicated individuals into protective
custody and transport them to the closest detoxification facility or approved medical center. For at
least ten years, police officers have transported intoxicated individuals to Cook County Hospital
rather than the closest approved facility. The parties agree at least five or six approved facilities are
closer to Palmer and Kedzie than Cook County Hospital, with :he nearest approved facility located
approximately 1.8 miles away.

DISCUSSION
L Defendants’ Motions for Summary Judgment

Summary judgment is appropriate when the moving payers and affidavits show there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party has met its
burden, the non-moving party must go beyond the pleadings ard set forth specific facts showing
there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798
(7" Cir. 1999), A genuine issue of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).


slurring his words and had trouble standing. According to defendants, Officer Ranzzoni, who speaks
Spanish, questioned Vega about his residence and learned he lived further west on Palmer.
Defendant officers placed Vega in the back of the squadrol with a padded safety bar across his chest.
From the cab of the squadrol, defendant officers could not visually or audibly monitor Vega in the
back of the squadrol. Defendant officers knew an individual could slip onto the floor from under
the padded safety bar.

After defendant officers took custody of Vega, they sent a portable data transmission (“PDT”)
to their sergeant, Phillip Kwesinski, to confirm dinner plans they lad made earlier in the day. In the
PDT, defendant officers asked K wasinski, “Nugget at 4:00?” .At 3:55 p.m., defendant officers sent
a second PDT to K wasinski, asking “Nugget in 5 minutes?” At4-:01 p.m., the defendant officers sent
a final PDT to Kwasinski, asking “R U ENROUTE?” At 4:24 p.m., Kwasinski responded,
“ENROUTE.”

Defendant officers deny receiving Kwasinski’s reply. Rather, defendant officers claim they
spent the next 15 to 30 minutes looking for Vega’s home. Thereafter, defendant officers transported
Vega to Cook County Hospital. On their way to the hospital, defendant officers made a traffic stop
and issued tickets at 5:30 p.m. According to defendants, defendam officers checked on Vega, who
indicated he was fine. The defendant officers failed to include this information in several reports
detailing the incident.

Defendant officers arrived at Cook County Hospital at aporoximately 5:55 p.m. When they
went to the back of the squadrol, they found Vega unresponsive with his face against the squadrol
door. The defendant officers summoned help from nurse Ingrid Mcnroe. When Monroe observed

Vega’s condition, she summoned additional emergency room personnel. The emergency room staff


Facts at §] 50-53 (confirming custody of Vega). Moreover, Vega’s placement in a locked squadrol,
secured by a padded safety bar, with no means to communicate with defendant officers presents an
issue of fact as to whether he was free to leave. See Estate of Stevens, 105 F.3d at 1175, quoting
United States v. Mendenha'l, 446 U.S. 544, 554 (1980)(“person in custody, ‘if, in view of all the
circumstances surrounding the incident, a reasonable person weuld have believed he was not free

to leave’”). Alternatively, a reasonable factfinder could find defendant officers affirmatively placed
Vega in a position of danger he would not otherwise have faced. Indeed, Oficer Disanti recognized
the potential danger in placiig someone in Vega’s condition in an unsecured seat in the back of a
squadro] unmonitored for over two hours. Although defendant officers claim Officer Ranzzoni
checked on Vega just prior to their arrival at Cook County Hospitai, a reasonable jury could question
defendant officers’ veracity based on the their failure to provide this information in their subsequent
reports, Under these circumstances, a reasonable factfinder cou.d determine defendant officers were
responsible for Vega’s safety because they placed him in custody and in danger.

A reasonable factfinder also could determine defendant officers acted recklessly in
discharging their responsibility. “[B]y reckless or deliberately indifferent conduct, we mean conduct
that is criminally reckless — that is, conduct that reflects a complete indifference to risk such that we
can infer the actor’s knowledge or intent.” Weinberger y. State of Wisconsin, 105 F.3d 1182, 1186
(7th Cir. 1997), quoting Clifion v. Shafer, 969 F.2d 278, 281 (7th Cir. 1992). Officer Disanti
recognized the danger in placing someone in Vega’s condition in the back of a squadrol unmonitored
for over two hours. Nevertheless, he, along with Oficer Ranzzoni, stopped for dinner and a traffic

stop before delivering Vega to Cook County Hospital. A reasonable factfinder could find defendant

officers’ conduct reflected a deliberate indifference to Vega’s safety.


Mine Order Perm (05/97)

United States District Court, Northern District of Minois

ete Magistrate Judge Suzanne B. Conlon “Tham assigned Judge

CASE NUMBER C1. C9490 DATE 9/6/2002
CASE LUCIA MEDINA vs. CITY OF CHICAGO, et al.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaimtifi. defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION: _

DOCKET ENTRY: ~

(03) 0 Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer briefdue_

(4) o Ruling/Hearingon__—_—sset for att

(5) o Status hearing{held/continued to] [set for/re-set for]on|_——ssetvor at
(6) o Pretrial conference[held‘continued to] [set for/re-set for]on____—_ssetfor_—— at
) Oo Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] held/continued to_____at

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

CFRCP4¢m) CO) Local Rule 41.1 CYFRCP41(a)(1) 0 FRCP41(a)(2).

(do) wf [Other docket entry} Defendants’ motions for summary jiidyment [81-1] [82-1] are granted in part
and denied in part. Counts } through VII are dismissed with prejudice. Defendant Marne Riordan is
dismissed from this action with prejudice. The motion is denied as to Counts IX through XV. The joint
pretrial order with es instructions shall be presented on October 1, 2002 at 9:00 a.m. Plaintiff's draft
shall be submitted to defendants by September 23, 2002. Trial is set on October 21, 2002 at 9:00 a.m.
ENTER MEMORANDUM OPINION AND ORDER.

(a1) @ [For further detail see order attached to the original minute order.’

No notices required, advised in open court. Document

Number

\o4

‘No notices required, number of notices

Y | Notices mailed by judge’s staff.

Notified counsel by telephone. S FP 1 0 2002

date docketed

Docketing to mait notices.

Mait AO 450 form.

docketing deputy initiats

Copy to judge/magistrate judge.

91si2002

. date maited notice
courtroom eos I

cB deputy’s pw

initials 4
Date/time received in |

central Clerk's Office mailing deputy initials



B. Medina’s State Law Claims

Defendants contend they are immune from liability for Medina’s state law claims pursuant
to the § 4-102 of the Illinois Tort Immunity Act (“ITIA”), 745 :LCS 10/4-102 (1994), Section 4-102
provides:

[N]either a local public entity nor a public employee is liable for failure to establish
a police department or otherwise provide police protection service or, if police
protection service is provided, for failure to provide adequate police protection or
service, failure to prevent the commission of crimes, failure to detect or solve crimes,
and failure to identify or apprehend criminals. This immunity is not waived by a
contract for private security service, but cannot be transferred to any non-public
entity or employee.

Id. Section 4-102 extends rot only to the provision of police services, but also the provision of
adequate police services. See Harinek y. 161 North Clark Street Lid. Partnership, 18\ Wl. 2d 335,
345, 692 N.E.2d 1177, 1183 (1998)(the public duty rule, codified through ITIA, “prevents
[governmental] units from being held liable for their failure to provide adequate governmental
services”). Medina claims defendant officers acted negligertly and willfully and wantonly in
providing a police service to Vega. Section 4-102 bars all theories of tort liability, including claims
of willful and wanton misconduct. McLellan v. City of Chicago Heights, 6) F.3d 577, 579 (7th Cir.
1995), citing Platacis v. Village of Streamwood, 224 Ill. App. 3d 336, 586 N.E.2d 564 (Ist Dist.

1991). Therefore, defendants are entitled to immunity on Medina’s state law claims.

11


2. Section 1983 claims against the City

In order to prove her § 1983 claim against the City, Medina must establish the constitutional
deprivation was caused by an official municipal policy or custom. Monell v. Department of Social
Services, 436 U.S. 658, 690-91 (1978). The City does not dispute Medina can show a custom of
bypassing local hospitals in favor of Cook County Hospital when transporting inebriates. See Reply
at 2. n. 2 (“City will concede for purposes of this motion, that the plaintiff has demonstrated a
“widespread practice” within the meaning of Monell”). Rather, the City argues Medina cannot show
Vega’s constitutional deprivation was caused by the custom.’

Medina must prove the City’s custom was the “moving force” behind the alleged
constitutional violation. Monell, 436 U.S. at 694. According to Medina, the City’s custom of
bypassing closer area hospitals in favor of Cook County Hospital caused Vega’s death. The closest
hospital to Palmer and Kedzie was less than two miles away. Defendant officers claim Vega was
alive when they checked on him approximately 90 minutes after picking him up for transport. A
reasonable jury could conclucie Vega would still be alive if defendant officers transported Vega to
one of the closer area hospitals rather than following the City’s custom of transporting inebriates to
Cook County Hospital. The City’s summary judgment motion on Medina’s § 1983 claim must be

denied.

The City spends a consideratle amount of time arguing Medina’s sing 'e incident claim cannot survive summary
judgment without proof of a pattern of activity known by a City policymaker. “However, in cases — such as this
one — where there is an acknowledged municipal policy, concerns of ths sort evaporate.” James v. Milwaukee
County, 956 F.2d 696, 701 1. 4 (7th Cir. 1992).

10


AL Medina’s Federal Claims
1 Section 1983 Clainis Against Defendant Officers

Section 1983 imposes civil liability on any person who, acting under color of state law.
deprives another of “any rights, privileges or immunities secured by the Constitution and laws” of
the United States. 42 U.S.C. § 1983. Medina claims defendant officers deprived Vega of due
process by recklessly placing him in an unsafe environment without any means to monitor him.
Defendants first argue summary judgment is proper because Medina cannot establish Vega had a
constitutional right to assistance and even if he did, she cannot prove the defendant officers acted
recklessly is discharging the'r responsibility.

As defendants point out, the due process clause of the ’ourteenth Amendment does not
confer an affirmative obligation on government actors to secure the life, liberty or property interests
of private citizens. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 198 (1989).
However, “in certain limited circumstances the Constitution imposes upon the State affirmative
duties of care and protection with respect to particular individuals.” Jd at 200. Lmited
circumstances arise: (1) in custodial settings where the state has limited the individual’s ability to
care for himself; and (2) when the state affirmatively places the individual in a position of danger
he would not have otherwise faced. Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1174 (7th
Cir. 1997). Medina claims defendant officers were responsible for Vega’s safety because they placed
him in custody and in danger.

Although defendants claim Vega was never placed in custcdy, they admitted in their response
to Medina’s statement of facts, “Officers Bernath and Riordan transfvrred custody and control of Mr.

Vega to Officers Disanti and Ranzzoni.” Def. Resp. to Pl. Facts at (48. See also Def. Resp. to PI.


v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000)(evidence submitted at the summary judgment
stage must be admissible at trial). Specifically, Medina offers several City documents, including
documents prepared and/or signed by the defendant officers. Pl. Resp. to Def. Facts at Ex. C
(statement signed by Officer Bernath), Ex. D (statement signed »y Officer Riordan), Ex. E (police
report signed by Officers Bernath and Riordan); Ex. H (statersent signed by Officer Disanti); Ex. I
(statement signed by Officer Ranzzoni); Ex. J (report prepared by Office of Professional Standards
Investigator James Lukas); |x. P (report prepared and signed by Officer Bernath); Ex. Q (report
prepared and signed by Officer Ranzzoni); and Ex. W (report prepared and signed by Officer
Disanti) and Ex. X (report prepared by Detectives Hartmann ard Amato). Defendants object to the
admissibility of these documents as unauthenticated hearsay.

As an initial matter, defendants do not object to several other unauthenticated documents
offered by Medina. See Pl. Resp, to Def. Facts at Ex. L (emergency communications log); Ex. T
(City policy on alcohol and drug dependent persons); Ex. V (traffic tickets issued by Officer Disanti);
and Ex, Y (City policy on squadrol operating procedures). Indeed, defendants offer several
unauthenticated documents in support of their motion for summary judgment, including the same
documents offered by Medina as exhibits T and V. See Def. Facts at Ex. E-G and I-J. As
defendants apparently recognize, these documents, as well as the dacuments at issue, fall within the
business record exception to the hearsay rule. See Federal Rule of Evidence 803(6). Defendants do
not dispute the documents were prepared by City employees in the course of their employment.
Although defendants do not argue the documents contain statements by individuals not affiliated
with the City, the court notes Medina’s exhibits J and X contain third party statements, These

statements, which are inadmissible hearsay, will not be considered See Woods, 234 F.3d at 986,


move for summary judgment on all counts of the complaint pursuant to Federal Rule of Civil
Procedure 56. Medina concedes summary judgment on the claims against Officer Riordan are
proper.

BACKGROUND
L Local Rule 56.1

Local Rule 56.1 requires litigants to follow a detailed procedure in filing and responding to
summary judgment motions. In response to a motion for sumnary judgment, Local Rule 56.1
requires the non-moving party to submit a response “to each numbered paragraph in the moving
party’s statement [of materia! facts], including, in the case of any disagreement, specific references
to the affidavits, parts of the record, and other supporting n.aterials relied upon.” Local Rule
56.1(b)(3)(A). All relevant facts denied without supporting documentation must be accepted as true
provided the facts are “properly supported by references to the record or other evidentiary material.”
Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 871 (7th Cir. 2000); Stewart v. McGinnis,
5 F.3d 1031, 1034 (7th Cir. 1993).

According to defendants, Medina’s responses to J 6, 12, 15, 17, 20, 22 and 25 of
defendants’ statement of facts fail to cite record evidence supporting the denials. In her responses
to 6 and 15, as wellas § 11, Medina fails to cite facts that contradict defendants’ factual statement.
Incontrast, Medina properly cites facts contrary to the defendants’ version of events in her responses
to %§ 12, 17, 20, 22 and 25. Therefore, only Jf 6, 11 and 15 of defendants’ statement of facts, if
properly supported, are deemed admitted.

Without discussion, defzndants next claim Medina relies on several inadmissible documents

in responding to {f 7, 8, 11, 12, 13, 17, 21, 22 and 25 of defendants’ statement of facts. See Woods


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS oe tiny
EASTERN DIVISION ae) ‘Pay
SEP 1 0 zany
LUCIA MEDINA, )
)
Plaintiff, ) No. 01 C 9490
)
Vv. ) Suzanne B, Conlon, Judge
)
CITY OF CHICAGO, EDWARD RANZZONI, )
DAVID DISANTI and MAE.NE RIORDAN, )
)

Defendant.

MEMORANDUM OPINION ANI) ORDER

Lucia Medina (“Medina”) initially filed this action against the City of Chicago (“City”) and
police officers Marne Riordan (“Riordan”), Edward Ranzzoni (“Ranzzoni”) and David Disanti
(“Disanti”)(collectively, “defendant officers”) in the Circuit Court of Cook County, Illinois for the
alleged wrongful death of Juan Vega (“Vega”). The City timely removed the action to this court
based on federal question jurisdiction. Thereafter, Medina served the defendant officers. As
administratrix of Vega’s estate, Medina alleges violations of 42 U.S.C. § 1983 (“§ 1983") against
the City (Counts XII, XII, XIV, XV) and defendant officers ((ounts IX and X), negligence and
willful and wanton conduct in violation of the [linois Wrongful Death Act, 740 ILCS 180/1 against
the City (Counts I and II) and defendant officers (Counts V and V1), negligence and willful and
wanton conduct in violation of the [linois Survival Act, 755 ILCS $/27-6, against the City (Counts
III and IV) and defendant officers (Counts VII and VIID and indemnity against the City (Count XI)

for defendant officers’ conduct. The City and defendant officers (collectively, “defendants”) now

\04


CONCLUSION
Defendants are entitled to judgment as a matter 0° law on Medina’s state law claims.
Defendants’ motions for summary judgment as to Medina’s § 1983 claims are denied. Officer

Riordan is dismissed from this action with prejudice.

September 6, 2002 ENTER:
©

eegpovnsd [9 Orlow _
suzande B. Conlon

12