No, 02 C 5130 Page 20

In order to assert that the City failed to exercise reasonable care in investigating and
disciplining its officers for excessive force or false arrest, plaintiff still must meet the deliberate
indifference standard of Canton v. Harris, 489 U.S. 378 (1989). This is a high threshold to
overcome, “even where significant evidence has been presented indicating flawed investigatory
procedures, courts still reject the failure to investigate theory where plaintiff[ | cannot
demonstrate ‘tacit authorization by city policymakers.’” Kindle y. City of Harvey, 2002 U.S.

Dist. LEXIS 2408, *10-11 (Feb. 14, 2002) quoting Canton, 489 U.S. at 397. Here deliberate

indifference must be shown on the part of the City Council, the policymaker in this case. The
City argues that plaintiff cannot show that it acted with deliberate indifference because the
Council held hearings in July 1997, and June 1999, regarding allegations of police misconduct
and use of excessive force. During these hearings the Council heard from aldermen, victims
and other speakers on various problems with the department’s investigatory and disciplinary
systems. In January 2000, it passed a resolution calling for input regarding the disciplinary
process during the contract negotiations with the Fraternal Order of Police. As a result of
these negotiations, a provision was placed in the contract that called for the retention of “not-
sustained” files for a period of seven years, instead of the five years called for in the prior
contract. The provision also provided for, in future disciplinary proceedings where allegations
of excessive force or criminal conduct are present, the use of information contained in “not-
sustained” files in order to determine credibility and notice. The City claims that this contract
was ratified by the City Council on March 26, 2002, but provides no supporting evidence.

Plaintiff concedes that these hearings occurred and that the Council worked to place the
provision in the contract. Plaintiff claims, however, that the City’s conduct simply shows that

the City had affirmative knowledge about the inadequate investigation and discipline of the


No. 02 C 5130 Page 14

Qualified Immunity

Defendant officers next assert that they are entitled to qualified immunity on plaintiff's
false arrest claim. Qualified immunity protects officers performing discretionary functions
from civil liability so long as “their conduct does not violate clearly established statutory or
constitutional rights that a reasonable person would know about.” Mustafa, 442 F.3d at 548.
To determine whether an official is entitled to qualified immunity, we engage in a two-part
inquiry. We must first determine whether the law was clearly established at the time of the
alleged violation, asking whether the law was clear in relation to the specific facts confronting
the public official when he or she acted. Second, we analyze the objective reasonableness of
the defendant’s conduct, asking whether reasonably competent officials would agree on the
application of the clearly established right to a given set of facts. Kelley, 149 F.3d at 648.

Neither party argues against the fact that plaintiff's right to be free from arrest without
probable cause was not clearly established at the time of the incident. See Beck v. Ohio, 379
U.S. 89, 91 (1964). Therefore, we need only analyze the reasonableness of defendants’ conduct.
In doing so, we find that defendants are not entitled to summary judgment on the issue of
qualified immunity.

When the arrestee challenges the officer’s description of the facts and presents a factual
account where a reasonable officer would not be justified in making an arrest, then a material
dispute of fact exists. Where there is a genuine issue of material facts surrounding the
question of plaintiff's conduct, we cannot determine, as a matter of law, what predicate facts
exist to decide whether or not the officer’s conduct clearly violated established law. Morfin v.

City of East Chicago, 349 F.3d 989, 1000 (7" Cir. 2003).


No. 02 C5130 Page 5

Blazej testified that he did not work during this time and that while he usually has more
workers on the roof, he brought them down to clean up the debris on the ground faster (Blazej
dep. pp. 148-49). He also testified that his workers worked the entire time, and that he never
saw plaintiff interfere with his workers, never heard her refuse to leave the area or use
profanity (id. at 122-23). He testified that he was not afraid of her (id. at pp. 52-54).

Blazej told Threet that he and his workers just wanted to do their job. The officers
asked Blazej if he wanted to sign a complaint. Blazej agreed to sign the complaint and did so
“in order to finish the job.” The complaint that Blazej signed was a blank form. Officer
Bradley filled in the complaint after returning to the station.’ Plaintiff was arrested on the
charge of disorderly conduct in that she “did knowingly and intentionally was [sic] loud and
profane. Refused to leave the area. Interfering with construction workers repairing a
building, behaving in such an unreasonable manner as to alarm and disturb Blazey Boychow
[sic] and provoke a breach of the peace” (plf. stmt. of facts { 22).° Blazej asked the female
police officer when the court date would be and wrote down the information. Blazej kept the
papers he received from the officers for a long time, but testified that he had no intention of
going to court.

Sergeant Threet told plaintiff that she was under arrest and told Officer Bradley to
arrest her. Plaintiff testified that, during her arrest, her arm was twisted and injured during
her arrest. She testified that the manner of her arrest constituted excessive use of force by the

officers.

‘Having a witness sign a blank complaint form is against Chicago Police Department policy because
the witness is supposed to affirm under oath that everything written in the complaint was true (plf. stmt. of

facts J923-24).

°Blazej indicated during his deposition that everything contained in the complaint is true and
accurate as to what happened.


No. 02 C 5130 Page 21

police officers. Plaintiff asserts that such action does not defeat her claim because the City’s
deliberate indifference can be shown in the fact that, as of 2005, the contract provision
providing for use of not-sustained findings in later OPS investigations was not included in the
written OPS policy.

We find record before us demonstrates that the City Council cannot be said to have
been deliberately indifferent to the practice of ineffective investigation and discipline of police
officers. Deliberate indifference requires the municipality to have made a “deliberate choice

to follow a course of action.” Canton, 489 U.S. at 389. Such a choice is akin to the

municipality’s “further adherence to an approach they know or should know has failed to
prevent tortious conduct in the past.” Bryan County, 520 U.S. at 407. Plaintiff concedes that
the Council held hearings, proposed and caused changes to be included in a contract with the
Fraternal Order of Police based on its knowledge of OPS’s practices and procedures. The
Seventh Circuit has held that the “[flailing to eliminate a practice cannot be equated with
approving it.” Wilson v. City of Chicago, 6 F.3d 1233, 1240 (7" Cir. 1993). Thus, the eventual
failure of the City Council’s proposed changes is not sufficient evidence of the Council’s
deliberate indifference. Jd. Even if the Council’s actions could be seen as negligent, or even
grossly so, that is not enough under this Circuit’s deliberate indifference standard. Id.; see also

Doe v. Dallas Ind. School Dist., 153 F.3d 211, 219 (5" Cir. 1998). Analogous to the Seventh

Circuit’s finding in Wilson, had the Council not held hearings or proposed changes, and

simply turned a blind eye to repeated complaints about OPS policy, it could be inferred that

the Council acquiesced in that policy — thus adopting it. Wilson, 6 F.3d at 1240. But that is

not what happened here. The Council did make efforts to change the way citizen complaints

were investigated, and on these facts plaintiff must show “that in doing this [the Council] was


No. 02 € 5130 Page 18

1991 U.S. Dist. LEXIS 12784 (N.D. Ill. June 26, 1991). Having said this, we turn now to
plaintiff's claim against the City.

The City argues that it is entitled to summary judgment on Counts I, II and V of the
fourth amended complaint. These counts allege that the excessive force used by the defendant
officers, the failure to prevent the use of excessive force, and the false arrest effected by the
officers were all the result of a practice or policy of the City.

In order to establish a claim against the City, plaintiff must follow the requirements

outlined by Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), and its

progeny. Plaintiff must first prove that she has suffered a constitutional violation. Los
Angeles v. Heller, 475 U.S. 796, 799 (1986). We have noted in the above discussion relating to
plaintiff’s claims against the individual officers that plaintiff has sufficiently alleged such a
violation for the purposes of summary judgment. Thus, plaintiff has met this first
requirement. Second, plaintiff must show that “deliberate action attributable to the
municipality itself is the ‘moving force’ behind the plaintiff's deprivation of federal rights.”

Bd. of County Comms’rs of Bryan County v. Brown, 520 U.S. 397, 400 (1997).

Plaintiff may show that her alleged constitutional injury is attributable to the
municipality in one of three ways. She may prove that “an express policy...when enforced,
cause[d] a constitutional deprivation.” McTigue v. City of Chicago, 60 F.3d 381, 382 (7" Cir.
1995). She may also prove that it was caused by “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.” Id. Finally, she may prove that her injury

was caused by “the act of a person with final policymaking authority.” Id.


No. 02 C5130 Page 10

is such that a reasonable jury could return a verdict for the nonmoving party.” Payne, 337

F.3d at 770. We begin with the defendant officers’ motion, and then turn to the City’s motion.

Chicago Police Officers

Count V - False Arrest Against Officers Bradley, Threet and Parker

Defendants Bradley, Threet and Parker claim that they are entitled to summary
judgment on plaintiff's false arrest claim because there is no question of material fact that
probable cause existed to arrest plaintiff. In the alternative, defendants argue that they are
entitled to qualified immunity because a reasonable officer could have mistakenly concluded
that probable cause did exist for the arrest.

Probable Cause

The existence of probable cause is an absolute defense to a § 1983 claim against police
officers for wrongful arrest, even where the defendant officers allegedly acted upon a malicious
motive. Mustafa v. City of Chicago, 442 F.3d 544, 547 (7 Cir. 2006). Police officers have
probable cause to arrest an individual “when the facts and circumstances within [their]
knowledge and of which [they] have reasonably trustworthy information are sufficient to
warrant a prudent person in believing that the suspect had committed or was committing an

offense.” Jones v. Webb, 45 F.3d 178, 181 (7 Cir. 1995) quoting Beck v. Ohio, 379 U.S. 89m

91 (1964). We evaluate probable cause “not on the facts as an omniscient observer would
perceive them but on the facts as they would have appeared to a reasonable person in the
position of the arresting officer,” seeing what she saw, hearing what she heard. Kelley v.
Myler, 149 F.3d 641, 646 (7 Cir. 1998). Since the determination of probable cause requires

consideration of the totality of the circumstances, it will generally present a question for the


No. 02 C5130 Page 7

(Moore dep. pp. 198-199, 203-205). Detention Aide Dorothy Hudson began her shift in the
female lockup on September 11, 2001, at 10:00 p.m., and her shift ended at 6:00 a.m. the
following morning. During her tour, from 10:00 p.m. until plaintiff was released, Hudson did
18 cell checks."

At some point plaintiff had a seizure in her cell. She believed she suffered a seizure
because when she woke up she was laying on the bench and felt shaky and dizzy. She was not
sure what time it occurred as there were no clocks and she had no concept of time (Moore dep.
pp. 182-84). She estimated that it may have been between 11:00 p.m. and 12:00 a.m., but she
could not say for sure (id. at pp. 184-85). When she regained consciousness, a supervisor and
another officer were at her cell. The officer was the same one that was behind the desk at the
time she entered the lockup.” Plaintiff told these two officers that she had had a seizure, that
she was in pain, and showed them her swollen arm, which she was unable to move. Both
officers walked away without rendering any aid.

While in the lockup plaintiff was never provided with any medical attention. Upon her
release around 4:30 a.m., she went home, took pain medication and laid down to rest. Plaintiff
went to Provident Hospital around noon (Moore dep. p. 209), complaining to the medical
personnel that her arm was twisted by the police and she had pain to her right elbow and

wrist, and that her arm was “swollen up like a balloon.” She also told medical personnel that

‘Hudson testified that plaintiff never complained to her of any pain or that she had a seizure, nor
was Hudson told by anyone else that plaintiff was complaining of pain or had suffered a seizure (Hudson dep.
pp. 6-7, 41-43, 48).

'Defendants point out that plaintiff stated her seizure occurred at some point between 11:00 p.m.
and 12:00 a.m., and a shift change occurred at 10:00 p.m., so that the officers present at 11:00 could not have
been there when she entered the lockup (Moore dep. pp. 182-85, 190-91; Gibson-Edwards dep. p. 5).
However, plaintiff's statement was an estimate and she testified that she could not say for sure that the
seizure occurred at that time because there were no clocks.


No. 02 C 5130 Page 6

Plaintiff did not complain of pain to her arm to any officer while at the scene, or on the
way to the station. At approximately 3:57 p.m., plaintiff was booked in the female lockup
center. Officer Gibson-Edwards was the police officer assigned to the lockup from 2:00 p.m.
to 10:00 p.m. Two civilian detention aides were also assigned to the lockup. At the intake
screening, plaintiff indicated to the lockup attendant that she had a history of seizures and
took medication for those seizures. However, she did not tell the lockup attendant that she
needed to take her medication.

Plaintiff did not request any medical attention until after she was in the lockup, at
which time she told the attendant that she had “some pain and . . . some swelling,” but she
could “make it.” After approximately two hours, plaintiff told the staff that she was in pain
and needed to see a doctor. From the time of her initial complaint, until her release, plaintiff
made numerous complaints and requests for medical attention to everyone that passed her cell
~all to no avail. Every fifteen minutes the lockup facility staff conducted cell checks, where
they would observe each individual in the lockup. Office Gibson-Edwards conducted
approximately 29 cell checks during her shift, of which 14 were between 6:00 p.m. and 10:00
p.m. Gibson-Edwards admits that she had direct contact with plaintiff and periodically
checked on her throughout her shift."° At 7:15 p.m., on September 11, 2001, Officer Gibson-
Edwards and her supervisor, Lt. Bara, entered the lockup and walked through the cell blocks
together. At one point, when an officer came to the cell and heard plaintiffs complaint, she
responded, “I ain’t no doctor.” Plaintiff's testimony is not clear as to the identity of this officer

but stated that she was the same officer who was at the desk when plaintiff entered the lockup.

10H owever, Officer Gibson-Edwards testified that she was never told by plaintiff or any of the other
staff members that plaintiff was in pain and desired medical attention (Gibson-Edwards dep. pp. 10-11, 19,

63).


No. 02 C 5130 Page 19

Here, plaintiff has alleged that her constitutional injury was the result of a practice or
custom of the City. Custom is demonstrated “by showing a series of bad acts and inviting the
court to infer from them that the policymaking level of government was bound to have noticed
what was going on and by failing to do anything must have encouraged or at least condoned,
thus in either event adopting, the misconduct of the subordinate officers.” Estate of Novack
y. County of Wood, 226 F.3d 525, 531 (7" Cir. 2001). A custom “generally implies a habitual
practice of a course of action that characteristically is repeated under like circumstances,” and
thus the “isolated act of an employee generally is not sufficient.” Jones v. City of Chicago, 787
F.2d 200, 204 (7" Cir. 1986).

The City asserts that plaintiff cannot demonstrate that there is a widespread practice
regarding the failure to investigate and discipline officer conduct adequately. The City argues
that plaintiff’s expert’s review of only 114 of the 204 CRs does not constitute a representative
sample from which conclusions may be drawn about the existence of a practice or custom
regarding investigations and discipline of officers. Plaintiff argues that she plans to rely on
all 204 CRs, not just the 114 that her expert reviewed, and even if she is limited to relying on
the 114, that that number is sufficient to demonstrate the widespread practice of the City.’
We find that we need not address this issue for the reason that, regardless of whether
plaintiffs sample of CRs is representative or whether it demonstrates a widespread practice
regarding the failure to adequately investigate and discipline officers, plaintiff has failed to

demonstrate a genuine issue of material fact that the City acted with deliberate indifference.

We disagree that plaintiff may rely on all 204 CRs as evidence. Even if plaintiff could lay a proper
foundation for the remaining CRs not reviewed by her expert, and even if they could be admitted for a
purpose other than for the truth of the matter asserted, plaintiff has not produced any witness that could
testify about them. The 90 CRs cannot be admitted into evidence without a witness to testify about their
relevance to this case, as plaintiff's expert purports to do with the other 114,


No. 02 C 5130 Page 9

In discovery, the City produced 204 Complaint Register Investigations (“CRs”) which
are civilian complaints of alleged police misconduct. The CRs produced by the City were
limited to those that occurred in the Sixth District (the district in which plaintiffs alleged
incident occurred) in the two years prior to plaintiff's alleged incident, and involved
allegations similar to plaintiff's, namely the use of excessive force and false arrest. Plaintiff
retained an expert, Joseph Stine, a former police chief of New Britain Township in
Pennsylvania and the executive officer of the Police Training Bureau for the City of
Philadelphia. Stine reviewed 114 of the 204 CRs, due to constraints on time and money, and
based on his review, opined that the conduct of Officers Bradley, Threet and Parker were the
result of the failure of the investigations units of the Chicago Police Department to investigate
adequately citizen complaints and discipline officers for misconduct.

Defendants Bradley, Threet, Parker and Gibson-Edwards moved for summary
judgment regarding Counts IV, V, VI, and VII. The City of Chicago moved for summary
judgment as to Counts I, III, IV, V, and VI. Plaintiff does not oppose summary judgment
against the officers on Counts VI and VII, or the City on Counts IV and VI, but argues against
summary judgment on all remaining counts.

ANALYSIS

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue
of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (U.S. 1986). We must evaluate
admissible evidence in the light most favorable to the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is not appropriate “if the evidence


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

EASTERN DIVISION
DARLENE MOORE, )
Plaintiff }
vs. } No. 02 C 5130
THE CITY OF CHICAGO, et al., }
Defendants, }

MEMORANDUM OPINION AND ORDER

Plaintiff Darlene Moore filed this action against defendants City of Chicago, and
Chicago Police Officers Bradley, Threet, Parker and Gibson-Edwards, for deprivation of her
civil rights guaranteed by the Constitution, in violation of 42 U.S.C. § 1983. Defendants now
move for summary judgment on several counts of plaintiff’s fourth amended complaint. For
the following reasons, we grant the motion of the City of Chicago for summary judgment, and
grant, in part, the motion of defendant officers.

BACKGROUND

All facts are undisputed unless otherwise noted. In those instances, we credit plaintiff's
version of the facts since on a motion for summary judgment we are required to construe the
record in the light most favorable to the non-moving party. Payne v. Pauly, 337 F.3d 767, 770
(7" Cir. 2003). Facts have been omitted that are either irrelevant to the issues before the court
or that rely on inadmissible evidence for their support.

In September 2001, plaintiff Darlene Moore was either the owner of or held the power
of attorney for her parents who were the owners of a building at 7956 S. Aberdeen in Chicago,

Illinois. On September 10, 2001, a roofer named Bogdan Blazej went to the 7900 block of


No. 02 € 5130 Page 12

the workers by standing in between them and jumping from side to side. If this testimony was
not controverted, there would be little question that defendants had probable cause to arrest.
But the testimony is controverted by the plaintiff herself, and to some extent, by Blazej.
Plaintiff testified that she did not yell or use profanity and that she did not get in the workers’
way. Plaintiff testified that the only time she raised her voice was in response to a threat from
one of the officers after she was arrested. Blazej testified that while he did hear plaintiff
yelling at him, he did not hear her use profanity or see her impede his workers. On a motion
for summary judgment we must “avoid the temptation to decide which party’s version of the
facts is more likely true.” Payne, 337 F.3d at 770. Furthermore, plaintiff “need not match
[defendants] witness for witness . . . nor must she persuade the court that her case is
convincing, she need only come forward with appropriate evidence demonstrating that there
is a pending dispute of material fact” (id. at 771). This plaintiff has done. The conduct
plaintiff testified that she engaged in could not reasonably have given the officers probable
cause to arrest her for disorderly conduct. Plaintiff's testimony and the reasonable inferences
we must draw therefrom raise a genuine issue of material fact as to her conduct during the
period in question and preclude summary judgment.

Defendant officers further argue that they had probable cause to arrest plaintiff based
on the signed complaint of Blazej. Generally, if police officers “arrest a person on the basis
of a private citizen’s complaint that, if true, would justify the arrest, and they reasonably
believe it is true, they cannot be held liable for a violation of the Constitution merely because
it later turns out that the complaint was unfounded.” Rodgers v. Lincoln Towing Services,
Inc., 771 F.2d 194, 200 (7" Cir. 1985). Blazej signed a complaint against plaintiff and the

defendants arrested her based on that complaint. Defendants argue that this is sufficient


No. 02 C 5130 Page 11

jury. Jones, 45 F.3d at 182. However, summary judgment is appropriate “when there is no
room for a difference of opinion concerning the facts or the reasonable inferences to be drawn
from them.” Qian v. Kautz, 168 F.3d 949, 953 (7" Cir. 1999).

Defendant officers first argue that they had probable cause to arrest plaintiff for
criminal trespass. Defendants rely on the case of Kelley v. Myler, 149 F.3d 641 (7" Cir. 1998),
which held that police officers relying on the statement of a property owner who claimed that
the plaintiff was trespassing on his property gave the officers probable cause to arrest the
plaintiff, despite that it was later determined that plaintiff, when arrested, was on the public
way. Id. Here, however, defendant officers supply no evidence that would give them probable
cause to arrest plaintiff for criminal trespass. In Illinois, criminal trespass to land requires
that the suspect “enter| ] upon the land of another, after receiving, prior to such entry, notice
from the owner or occupant that such entry is forbidden; or remain[ | upon the land of
another, after receiving notice from the owner or occupant to depart.” 720 ILCS 5/21-3 (2007).
Defendants present no evidence that plaintiff was ever present on the land of another, let alone
that she was notified by the owner or occupant not to enter or remain on such land. Therefore,
no reasonable jury could find that the officers had probable cause to arrest plaintiff for
criminal trespass.

Defendant officers assert that they had probable cause to arrest plaintiff for disorderly
conduct, based on their observations of her actions at the scene. In Illinois, disorderly conduct
is defined as “any act [committed] in such an unreasonable manner as to alarm or disturb
another and to provoke a breach of the peace.” 720 ILCS 5/26-1 (2007). Defendants rely on
the portions of their statement of facts where they assert that plaintiff was yelling and

screaming at them, Blazej and the workers, using profane language and physically impeding


No. 02 C5130 Page 8

she had a history of seizures and that she reported having two partial seizures at other points
in time. She reported that she was non-compliant with her medication and stated that her last
seizure had been the night before. Medical records indicated there was no obvious edema
noted to the elbow, but that the right wrist had erythemic area (redness) to its radial side (plf.
exh. U). Plaintiff was treated for pain and swelling in her wrist and arm. She had a loss of
range of motion in her wrist.

Plaintiff returned to Provident Hospital on September 27, 2001, and after her shoulder
was x-rayed on that date, the reviewing radiologist was unsure whether there was a scapular
fracture of the shoulder. Plaintiff also had her elbow x-rayed again.” Plaintiff's condition
progressed and she was subsequently diagnosed with Complex Regional Pain Syndrome. As
a result she has contractures in her hand which have left her with a permanent loss of range
of motion. The charge against plaintiff was dismissed by the State’s Attorney, with leave to
reinstate.

On July 7, 2002, plaintiff filed a complaint in this court alleging a deprivation of her
civil rights as guaranteed by the Constitution in violation of 42 U.S.C. § 1983. Plaintiff filed
several amended complaints, culminating in the consolidated fourth amended complaint. That
complaint consists of nine counts, of which Counts I, III, IV, V, VI and VII are relevant here.
These counts allege excessive force, failure to intervene, denial of medical care, unreasonable
seizure under the Fourth Amendment, and malicious prosecution by one or more of the named
officers. All of the foregoing counts allege that the conduct of the officers, as described therein,

was undertaken pursuant to the practice and policy of the Chicago Police Department.

13D efendants assert that a comparison of this x-ray and the one taken on September 12, 2001,
revealed that there was no joint effusion in the elbow (Roskam dep. pp. 70-76).


No. 02 C 5130 Page 22

not acting in good faith to extirpate the practice.” Jd. Plaintiff has not made such a showing,
and therefore we grant summary judgment in favor of the City on all counts.
CONCLUSION
For the foregoing reasons, we grant defendant officers’ motion for summary judgment
on counts IV, VI and VII of the fourth amended complaint, deny their motion as to count V,

and grant the City’s motion for summary judgment on all counts.

8 Mea

JAMES B. MORAN
enior Judge, U. S. District Court

OS, 17, 2007.
Oat. 15,2007


No. 02 C 5130 Page 4

workers, and then walked back to his car (id. at 93-94).° Plaintiff told him she had called for
help and that the workers were trespassing on her property. (/d.). Sergeant Threet responded
by threatening her, “I’ll lock your ass up if you say one word to them” (Moore Dep. p 95).
Plaintiff exclaimed that his threat was inappropriate and that she was going to call for his
supervisor and Threet responded by threatening to arrest her if she said or did anything else
(id. at 95-96). Threet went back to his car and plaintiff again phoned the police, requesting a
supervisor (id. at § 21; plf. stmt. of facts { 10). Shortly thereafter, Threet returned with
Bradley and additional officers (Moore dep. pp. 98-101).

Plaintiff’s nephews, Larry Martin and Tim Moore, had been standing a few houses
away when Larry observed their aunt speaking with the police. Larry observed the police
leave and his aunt get on her phone. When the police officers returned, Larry, Tim and their
friend approached the house. Blazej spoke with Sergeant Threet and told him that he was
concerned for his safety and that of his workers because there were a number of men out there
whom Blazej believed were friends of Moore.

Plaintiff asserts that during this entire time she never screamed or used profanity; that
the only time she raised her voice was in response to one of the officer’s threats after her arrest

(Moore dep. p. 116-119).’ She further asserts that she never interfered with the workers.

Sergeant Threet and Officer Bradley testified that when Threet arrived, he first spoke to Bradley
before speaking to the workers. Moore testified that Bradley had already driven away when Sergeant Threet
arrived (Moore Dep. p. 89). Bradley testified she went over to explain the situation to Threet. She testified
that she told Threet that the property was not owned by Moore, but rather owned by her parents and they
did not have a problem with the workers (Bradley dep. p. 48). Threet testified that Bradley told him that the
workcrew was repairing the roof and that plaintiff was standing in the way, and that plaintiff said she had
power of attorney over the building and the workers were damaging her property (Threet dep. p. 39-40, 56).

7Defendant officers testified that plaintiff was yelling and screaming at them and the workers and
using profanity (Bradley dep. pp. 55-56; Threet dep. pp. 48-49, 55, 61-62; Parker dep. p. 73). They also assert
that she was getting in the way of the workers (Threet dep. pp. 62-63; Parker dep. pp. 46, 72-73). Blazej
testified that plaintiff was excited and came within three feet of him, yelling at him to get off her property
(Blazej dep. pp. 122-26).


No. 02 C 5130 Page 15

For the reasons cited above regarding probable cause, summary judgment on the issue
of qualified immunity is precluded as to Count V of the fourth amended complaint.

Count IV - Denial of Medical Care against Officer Gibson-Edwards

Defendant Officer Gibson-Edwards argues that she is entitled to summary judgment
on plaintiff's denial of medical care claim because she was not present at the time when
plaintiff claims she had her seizure and was denied care, nor did she act with deliberate
indifference to plaintiff's request for medical care.

Astate official violates the due process rights of a pretrial detainee when she acts “with
deliberate indifference toward the detainee’s serious medical needs.” Qian v. Kautz, 168 F.3d
949, 955 (7" Cir. 1999). Deliberate indifference is akin to recklessness and “‘reckless[ness]’
describes conduct so dangerous that the deliberate nature of the defendant’s action can be
inferred.” Jd. We must first determine whether the defendant “actually knew about the
plaintiff's condition, not whether a reasonable officer should have known.” Id.

Plaintiff admits that when she arrived in the lockup she told the lockup personnel she
had some pain in her arm, but that she could handle it. She further admits that she told the
lockup personnel that she had a history of seizures for which she took medication, but did not
tell them that she needed or would need any. Defendant makes much of plaintiff’s testimony
that her seizure occurred at 11 p.m., an hour after defendant’s shift ended, so that defendant
could not be personally responsible for the denial of medical care to plaintiff. However,
plaintiff’s testimony is not so precise. She testified that she did not know what time she had
the seizure because there were no windows and no clocks. She stated that it could have been
about 11 p.m., but that she could not say for sure. After her seizure, she stated that two

officers were there and she told them she had seized. One of those officers had been present


No. 02 C 5130 Page 17

City of Chicago
First we note, simply as an aside and unrelated to the outcome of this case, that we are

often unsure of the impetus behind alleging Monell claims in cases such as this one. As is clear

in this case, claims of municipal liability require an extensive amount of work on the part of
plaintiffs attorneys and experts, and an extraordinary amount of money must be spent in
order to prepare and prove them. But to what end? If the plaintiff prevails against the officer
on a § 1983 claim, he or she is not likely to want or need to proceed any further, at least in this
district and state. An Illinois statute directs local governments to pay tort judgments for
compensatory damages for which its employees are liable, see 745 ILCS 10/9-102; the Seventh
Circuit has held that this statute permits the § 1983 plaintiff to bring a claim directly against
the municipality and obtain a judgment requiring the municipality to pay the amount due to
the plaintiff from the officer. Wilson v. City of Chicago, 120 F.3d 681, 684-85 (7th Cir. 1997).
Nor do we believe the municipality is more likely to be deterred when sued in its own capacity

given that Monell claims rarely make it to trial. Furthermore, even if the city is found liable,

punitive damages are not an available remedy. City of Newport v. Fact Concerts Inc., 453 U.S.

247 (1981).

We do understand that the Monell claim may be the only viable avenue left if the

officers are found to have violated plaintiff’s constitutional rights, but are nevertheless
protected by qualified immunity. Montville v. Lewis, 87 F.3d 900, 902 (7th Cir. 1996)(officers
may be entitled to qualified immunity even where they violated plaintiff's constitutional
rights). However, this is a rare occurrence indeed, and we have only been able to find one case

in this circuit which discusses such a scenario. Montgomery v. City of Chicago, No. 86 C 3872,


No. 02 C5130 Page 3

Officer Bradley responded to the call, and when she arrived plaintiff told her that the
workers were throwing materials on her property, causing damage, and she wanted them off
her property. Plaintiff suggested to Officer Bradley that the workers should use the space
behind and on the other side of the building — part of the property they were working on —
instead of using her property. Officer Bradley asked plaintiff if she was the owner of the
property, and asked to be shown where the workers were damaging her property. Bradley did
not see any damage to plaintiff’s property and saw that the workers had laid a tarp to protect
the property (id.). Bradley then left plaintiff and went to the building that was being worked
on and spoke to that owner (Moore dep. pp. 81-87).' At some point Blazej, who had left the
work site to purchase some supplies, returned and saw police cars and the plaintiff on her cell
phone. Blazej spoke with a female officer and told her he had obtained permission from the
owner of plaintiff’s building to use the property in between the two buildings to catch the
roofing materials. Upon her return, Bradley told plaintiff that the workers were not damaging
her property and that they could continue working.

Unhappy with Officer Bradley’s response, plaintiff called 911 again, asking for a
supervisor. She explained that an officer had come out but had said that it was fine for the
work to continue despite the fact that the workers were trespassing on her property.’ While
plaintiff was on the phone, Sergeant Threet arrived and plaintiff gestured to him that she

would be a minute (Moore Dep. pp. 92-93). Sergeant Threet then went over and spoke to the

‘Bradley testified that she went next door and spoke to plaintiff's parents who indicated that they did
not have a problem with the workers working next door. (Bradley dep. pp. 41-45).

SBradley testified that she also called for a supervisor (Bradley dep. p. 46).


No. 02 C 5130 Page 2

South Aberdeen to perform a roofing job on the building next to plaintiff's property. Upon
surveying the job, Blazej realized that he would need to throw the old roofing materials off the
side of the building he was working on — between that building and plaintiff’s building.' At the
end of the work day on September 10, 2001, Blazej and his workers cleaned everything before
leaving.

On September 11, 2001, plaintiff went to the building at 7956 S. Aberdeen. When she
arrived, she found the neighbor’s roofers using her property — roofing debris, tarps and
plywood covered her property, and in some places the debris was ankle deep.” Plaintiff also
observed a dumpster on the street, a ladder, and boards that were on her property where the
workers were wheeling garbage to the dumpster on the street. Plaintiff attempted to speak
with the workers, but they refused her request and laughed at her (Moore dep. p. 82).
Plaintiff then called the police and requested assistance because the workers were trespassing

and throwing refuse on her property.

'Blazej testified at his deposition that he spoke with a young man who told him that the owner of
7956 S. Aberdeen occupied the first floor apartment of that building (Blazej dep. p. 9). He said he went to the
first floor apartment and spoke with an older lady who identified herself as the owner of the building (éd.).
He explained to the owner that he and his workers were removing the neighbor’s roof and would be placing
the roofing debris on her property, but would clean it up every day (id. at 21-24). He assured the owner that
they would be protecting her property (Id, at 139-40). He testified that the owner agreed it would be alright
to use her property, and Blazej believed he had her permission (id.). Plaintiff denies that Blazej ever spoke
with the young man or the older woman. She asserts that the young man Blazej describes is Eddie Moore,
who testified that he first became aware of the roofing on September 11, 2001, when he heard and saw
roofing material hitting his apartment windows (Eddie Moore dep. p. 31). The older woman Blazej described
was allegedly Mrs. Tharbs, plaintiff's mother, and she testified that she learned of the construction when she
saw the men working, and did not know what they were doing (Tharbs dep. p. 36-38).

The parties disagree as to the extent of damage to plaintiff's property. Defendants assert that the
only damage was the “walking down” of the grass (Moore dep. pp. 75-78; Bradley dep. pp. 40-41). Plaintiff
testified that not only was the grass trampled down, but there was debris all over her property (Moore dep. p.

75-78).

3Blazej testified that he did not laugh at her and that his workers did not speak English and thus
could not refuse her request (Blazej dep. pp. 65-66).


No. 02 C 5130 Page 13

evidence of probable cause. However, all of the cases cited by defendants involved conduct
engaged in by the arrestee prior to the arrival of the police officers, and thus the officers
necessarily relied on the statements (either oral or written) of the complainant in determining
whether there was probable cause to arrest.'* The problem here is that plaintiffs alleged
conduct occurred while the officers were present. Blazej himself arrived on the scene after the
police officers. His complaint is therefore subject to the same considerations as the officers’
observations of plaintiff’s conduct, because the officers must reasonably believe that his
complaint is true. Whether or not the officers reasonably believed Blazej’s complaint was true
depends on whether or not plaintiff was actually engaging in the conduct complained of. The
officers’ presence precludes blind reliance on the complaint of Blazej, because such reliance
would be unreasonable if in fact plaintiff was not engaging in the conduct alleged in the
complaint, which she testifies she was not. Furthermore, even though Blazej testified in his
deposition that everything in the complaint was true, he further testifies that he did not witness
plaintiff engage in some of the conduct described in the complaint, such as using profanity or
interfering with his workers. Since there is a genuine dispute as to whether plaintiff actually
engaged in what could reasonably be seen by the officers as disorderly conduct, defendant

officers cannot point to the signed complaint alone as evidence of probable cause to arrest.

\4plaintiff makes much of the fact that the complaint form Blazej signed was blank, and later filled in
by Officer Bradley at the station. We find this to be irrelevant under the current facts, as, if plaintiff had
been engaging in the conduct alleged, the officers would have been justified in arresting her regardless of
whether Blazej’s complaint was made orally or in writing. Gramenos v. Jewel Companies, Inc., 797 F.2d 432,
434 (7" Cir. 1986)(“No principle of federal law makes a properly attested complaint necessary to an arrest ....
Police often arrest suspects on the basis of oral reports from witnesses”). The question here is whether
plaintiff was in fact engaging in this conduct, because if she was not, then the police were not reasonable in
relying on Blazej’s complaint as they were also present to witness plaintiff's conduct during the period in
question.


No. 02 C 5130 Page 16

at the desk when she entered the lockup (Moore dep. pp. 190, 192). Plaintiff further testified
that she believed the shift changed occurred after her seizure because after that point the
officers making the rounds were different. (Jd. at 197-98). Furthermore, she stated that she
began requesting medical care within two hours after she entered the lockup, when Gibson-
Edwards would have still been on duty. Thus an inference could be made that Gibson-
Edwards was present and on-duty when plaintiff was requesting medical care.

However, plaintiff fails to ever identify Officer Gibson-Edwards in her deposition as
one of the officers from whom she requested medical care. She testified that she did not know
Officer Gibson-Edwards by name (Moore dep. p. 190). She did not identify by name any of
the officers or attendants from whom she requested medical care (Id. at pp. 159-214). Nor did
she demonstrate that any officer or jail personnel who walked by her cell when she was
requesting medical care informed Officer Gibson-Edwards of that fact ([d.). What we can
glean from the record is that at some earlier point plaintiff identified certain officers in a photo
array (Id. at pp. 203-205). But the results of that photo array are not anywhere in the record
—we do not have the photos plaintiff selected, the identity of the officers in the photos, or the
reason why plaintiff participated in the photo array in the first place. Without evidence of
plaintiff's identification of Gibson-Edwards as an officer from whom she requested medical
care, or without any evidence that other jail personnel informed Gibson-Edwards of plaintiff's
requests, plaintiff does not raise a genuine issue of material fact that Officer Gibson-Edwards
was responsible for plaintiff's medical care, and thus, the officer is entitled to summary

judgment on Count IV."*

'5Based on this conclusion, we do not reach Officer Gibson-Edwards’ argument that plaintiff's
medical needs were not “serious.” See Gutierrez v. Peters, 111 F.3d 1364, 1373 (7" Cir. 1997).