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

IClaim Against the Village

The Village argues that it cannot be held liable under Section 1983 as a matter
of law. The doctrine of respondeat superior cannot be utilized to hold local
governmental units liable for Section 1983 violations. Monell v. Department of
Social Services, 436 U.S. 658, 691 (1978). A municipal governmental unit cannot
be held liable under Section 1983 “unless the deprivation of constitutional rights is
caused by a municipal policy or custom.” Kujawski v. Board of Comm'rs. of
Bartholomew County, Indiana, 183 F.3d 734 , 737 (7 Cir. 1999). A local
governmental unit’s unconstitutional policy, practice or custom can be; “(1) an
express policy that causes a constitutional deprivation when enforced; (2) a
widespread practice, that, although unauthorized, is so permanent and well-settled
that it constitutes a ‘custom or usage’ with the force of law; or (3) an allegation that
a person with final policymaking authority caused the injury.” Chortek v. City of
Milwaukee, 356 F.3d 740, 748 (?" Cir. 2004),

Plaintiffs do not respond in any manner to Defendants’ arguments regarding

the Village’s liability. We agree that there is a complete absence of any evidence



would be responsible for the return of Harris’ leather jacket. Therefore, we grant the
motion for summary judgment on the claims involving the alleged failure to return

Harris’ jacket against the Defendant officers at the scene.

CONCLUSION
Based on the foregoing analysis, we grant the motion for summary judgment
on all claims against the Village, on all claims against Holmes, and on all excessive
force claims brought against the Defendant officers at the scene of the shooting
except for Scott, We deny Scott’s motion for summary judgment on the excessive
force claim. We deny the motion for summary judgment on the false arrest claims
and we grant the motion for summary judgment on the claim based upon the alleged

failure to return Harris’ jacket.

Samuel Der-Yeghiayan 3

United States District Court Judge

Dated: June 16, 2004



the scene to act in the alleged unlawful conduct, condoned, or ratified such alleged
conduct, Furthermore, Plaintiffs admit, pursuant to Local Rule 56.1, that “Holmes
asked the tactical unit to go to the area of 139" Street and Grace and investigate the
complaint of drug activity.” (Resp. SF 20). Thus, Holmes asked an independent
unit to conduct the investigation on its own. Therefore, we grant Holmes’ motion

for summary judgment.

Il. Claims Against the Individual Officers at the Scene

The Defendant officers at the scene move for summary judgment on all claims
against them. The officers first argue that their actions are protected by qualified
immunity. Law enforcement officers are entitled to “qualified immunity for
conduct performed within the scope of their official duties . , . if ‘the plaintiff has
shown a violation of h{is] constitutional rights, and ... those constitutional rights
were clearly established at the time of the violation, ‘such that a reasonable official
would understand that what he was doing violates those rights.’” Dunn v. City of
Elgin, 347 F.3d 641, 648 (7 Cir. 2003)(quoting in part Morrell v. Mock, 270 F.3d

1090, 1094 (7th Cir.2001)).

A, Excessive Force Claim

In regard to the excessive force claim, there is nothing in the facts that could

lead a reasonable trier of fact to conclude that the officers other than Scott took any



that would show that the alleged unlawful conduct by the Defendant officers at the
scene was in any way connected to a Village custom, policy, or practice or that the
Village ratified the alleged conduct of the Defendant officers. Plaintiffs cannot
merely rely upon the allegations in their complaint at this stage of the proceedings.
Plaintiffs do not even put forth an argument on this issue in their answer to the

instant motion. Therefore, we grant the Village’s motion for summary judgment.

IL. Claims Against Holmes

Holmes argues that he cannot be held liable in his individual capacity under
Section 1983 because he was not personally involved in the alleged unlawful
conduct. The doctrine of respondeat superior is not applicable in a Section 1983
action. Sanville v. McCaughtry, 266 F.3d 724, 740 (7 Cir. 2001). Therefore, in
order to hold a defendant liable in his individual capacity the individual defendant
must be “personally responsible for the deprivation of a constitutional right,” which
can be illustrated by showing that the defendant “directed the conduct causing the
constitutional violation,” the violation “occurred with his knowledge or consent,” or
the defendant acted with “deliberate, reckless indifference’ to the conduct of
subordinates.” Jd.

Plaintiffs admit, pursuant to Local Rule 56.1, that Holmes was not present at
the scene at the time of the shooting. (Resp. SF 13). There is no evidence that

Holmes, in his supervisory capacity, in any way instructed the Defendant officers at


the Maxima and that the Maxima pulled away slowly. (Morris dep. 59-61). This
factual dispute involving the shooting by Scott is exactly the type of disputes that
preclude summary judgment and must be resolved by the trier of fact. There is no
evidence that the officers, other than Scott, had any involvement in the shooting.
Therefore, we grant all of the officers’, except Scott’s, motions for summary
judgment on the excessive force claims. We deny Scott’s motion for summary

judgment on the excessive force claim.

B. False Arrest Claim

Plaintiffs also allege a false arrest claim. The Defendant officers at the scene
of the shooting claim that the Maxima accelerated away from the scene and almost
ran over Scott and therefore the arrest was lawful. However, as indicated above,
Plaintiffs’ version of the facts are contrary to Defendants’ version of the facts,
Whether or not the arrest was proper is dependent upon the facts that transpired prior
to the arrest. The factual findings on this issue must be made by the trier of fact at
trial. Therefore, we deny the motion for summary judgment on the false arrest

claims,

C. Failure to Return Jacket Claim
Plaintiff James Harris also claims that his leather jacket was not returned to

him. However, there is no indication from the evidence that the Defendant officers



‘Mimute Onder Farm (06/97)

United States District Court, Northern District of Wlinois

lame jig - i Si dy er
Mery MagherateIuage | _ Samuel Der-Yeghiayan than Assigned Sage
CASE NUMBER 01 C 6799 DATE 6/17/2004
CASE Brian Morris vs. Village of Robbins
TITLE

[ln the following box (a) indicate the party tiling the motion, eg,, plaintiff, defendant, 3rd party plaintift, and (b) state briefly the nature
of the motion being presented]

MOTION;

DOCKET ENTRY:

(1) QO Filed motion of { use listing in “Motion” box above.]

(2) o Brief in support of motion due.

@) oO Answet brief to motion duc___. Reply to answer briefdue___.

(4) Q Ruling/Hearingon set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for) on___—ssetfor_ at

(6) o Pretrial conference(held/continued to] [set for/re-set for]on__——setfor_— at.
(7) oO Trial[set for/re-sct for]on_— at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at__—

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

OOFRCP4(m) Local Rule 41.1 CIFRCP41(a)(1) C) FRCP41(a)(2).

(10) Ml (Otherdocket entry] For the reasons stated on the attached memorandum opinion, the Court hereby
grants in part and denies in part defendants’ motion for summary judgment. The parties are directed to
exchange their proposed witness lists by 06/24/04. Motions in limine are to be filed by 07/01/04.
Responses to the motions in limine are to be filed by 07/08/04 and replies by 07/15/04. The parties are
to submit to this Court’s chambers the joint pretrial order as outlined on this Court's web page by
07/15/04. Pretrial conference set for 07/22/04 at 10:30 a.m. Jury trial set to begin on 07/26/04 at 9:30 a.m.
Enter Memorandum Opinion.

ab ff [For further detail see order attached to the original minute order.}

‘No notices required, advised in open court.

No notices required, ounibet of notices

Notices mailed by judge's staff JUN 18 200

Notiticd counsel by telephone.

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memorandum opinion to the partics, a
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actions that would not be covered by qualified immunity. Defendants legitimately
had reason to believe that drugs were being sold at the location. A caller reported
suspicious circumstances to the police, Another officer had radioed in that there was
a Maxima that fit the description by the caller. Defendants contend that the area is a
high crime area. Therefore, the officers acted reasonably when they approached the
car in the unmarked van and exited the van with their guns ready.

Even though the officers’ actions when they arrived at the scene were
reasonable under the circumstances, the shooting by Scott involves material
contested facts. Defendants argue that the “definitive evidence” shows that the
Maxima accelerated rapidly towards Scott and that he fired at the vehicle as it went
by. (Mot. 16). Defendants further argue that the shooting was justified because a
vehicle that attempts to run down a police officer will likely be a threat to other
citizens as it flees from the police. If these facts were not disputed certain
preventative actions by an officer may well be justified. However, Plaintiffs’
version of events directly contradicts Defendants’ version of events in this regard.
Plaintiffs contend and have testified, that the Maxima was never heading toward
Scott and Plaintiffs have testified that they slowly pulled away from the scene.
(Resp. SF 36, 37, 38)(SAF 26). The only evidence cited by Defendants indicating
that Scott was in the path of the oncoming Maxima and that it accelerated rapidly is
Scoitt’s, Hosey’s, and Lester’s deposition testimony. (SF 36, 37, 38, 75, 89, 90). On

the other hand, Morris testified at his deposition that Scott was never in the path of


LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, 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 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. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986).
Rather, 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), 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



vehicles in the area. One of the vehicles was a tan Nissan Maxima that matched the
description by the caller. Holmes then left the area and contacted a police tactical
unit which called Defendant officers Carl Scott (“Scott”), Dion Kimble (“Kimble”),
Anthony Hosey (“Hosey”), and Tytus Lester (Lester”) to the scene. The officers
approached the scene in an unmarked van. Defendants contend that when the
officers began to exit the van, the Maxima began to drive rapidly away from the
area. According to Defendants, Scott was in the direct path of the Maxima and he
jumped out of the way and fired at the vehicle, A bullet struck the driver, Plaintiff
Brian Morris (“Morris”), Defendants contend that the Maxima continued to travel
away from the scene, but eventually stopped.

Plaintiffs claim that the officers had no reason to suspect them of violating
any laws. According to Plaintiffs, the officers approached their car with drawn
weapons and “Morris drove off slowly because he did not know what was going on.”
(SAF 24, 25). Plaintiffs claim that Scott was never in the path of the moving
Maxima and claim that he fired into the vehicle without justification. Plaintiffs
claim that they were charged with misdemeanor offenses and that they were
subsequently released and the charges were dismissed. Plaintiffs brought the instant
suit against Defendant officers and Defendant Village of Robbins (“Village”)
alleging violations of 42 U.S.C. § 1983 (“Section 1983") for excessive force, false

arrest, and failure to return a jacket.



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

JUN £8 2004

BRIAN MORRIS, JAMES HARRIS,
GENTILE TABOR, and MARCUS
WASHINGTON,

Plaintiffs,
v. No. 01 C 6799

VILLAGE OF ROBBINS, et al.,

Defendants,

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ motion for summary judgment.

For the reasons stated below we grant the motion for summary judgment in part and

deny the motion in part.

BACKGROUND
In the evening of December 16, 1999, the Village of Robbins Police
Department received a complaint indicating that individuals appeared to be selling
drugs from vehicles parked near 139" Street and Grace Street. Defendant Chief

Johnny Holmes (“Holmes”), in plain clothes, responded to the call and noticed two

HO