his official capacity for an alleged custom of failing to supervise, train, and discipline
officers. Such a claim against Sheriff Sheahan is also a claim against the Cook County
Sheriffs Department. See Sanders v. Sheahan, 198 F.3d 626, 629 (7th Cir. 1999). In
order to establish liability under Section1983, plaintiff must prove that a custom or
policy of the sheriffs department caused his injury. Ineco, 286 F.3d at 1001.

True, plaintiff's Monell claim survived a motion to dismiss, although it bordered
on “boilerplate vagueness”. See Cady v. Sheahan, 02 C 5989, 2003 WL 288472 (N.D.
Ill. Feb. 7, 2003) (Grady, J.). However, Cady did not introduce any material evidence at
summary judgment that the defendant Officers were acting pursuant to an official
custom or policy of the sheriff's department, thus warranting the entry of summary
judgment for defendants on Count VII, plaintiff's Monell claim. See Ineco, 286 F.3d at
1001. We also note that Cady failed to suggest that “the actions of [the defendant
Officers] extended beyond their role in his particular case.” /d. (citing Williams v.
Heavener, 217 F.3d 529, 532 (7th Cir. 2000) (“Ordinarily, one incident is not sufficient
to establish a custom that can give rise to Moneil/ liability.”)). Therefore, defendants’
motion for summary judgment as to Count VII is granted and plaintiff's motion is denied.
State Law Claims

Finally, we address plaintiff's claims for negligent and intentional infliction of
emotional distress (Counts X and XI). “In order to establish a claim for intentional
infliction of emotional distress under Illinois law, a plaintiff must show that: (1) the
defendant's conduct was truly extreme and outrageous; (2) the defendant knew that

there was a high probability that his or her conduct would cause severe emotional

19


1995). When evaluating the ‘totality of the circumstances — the whole picture — must be
taken into account.” Robinson, 30 F.3d at 782. This includes the location of plaintiff,
the time of day, and plaintiffs appearance, demeanor and actions. See United States
v. Jackson, 300 F.3d 740, 745-46 (7th Cir. 2002).

The stop at issue in this case occurred on August 22, 2001 in front of the
Bridgeview Courthouse about two hours before it opened to the public. This was
approximately six years after the catastrophic bombing of the federal building in
Oklahoma City in 1995 and three weeks before the horrific September 11, 2001 terror
attacks in New York City, Washington D.C., and Pennsylvania. The Seventh Circuit
has recognized that the 1995 Oklahoma City bombing “engendered heightened fears
for the security of government buildings, [and that] [e]ven before then courthouses had
been recognized as potentially dangerous places because of the presence of criminal
defendants, bitterly divorcing spouses and custody-contesting ex-spouses, and other
highly stressed, emotionally excited, and even violence prone litigants.” Braun v.
Baldwin, 346 F.3d 761, 765 (7th Cir. 2003).

In addition to plaintiff's location at a government building, the defendant officers
have articulated a number of other factors supporting their decision to effectuate a
Terry stop on plaintiff. First, defendants cited the time of day; between 6:15 and 6:30
a.m., which was approximately two hours before the Courthouse opened to the public.
Defendants also cited Cady's disheveled appearance. He was wearing dirty, wrinkled
clothing, had a beard, and had not showered. Further, plaintiff was carrying a

briefcase. Defendants also cited Cady’s location on an inner sidewalk immediately next

13


within 20 days after it is served. Otherwise a party may amend the party's

pleadings only by leave of court or by written consent of the adverse party;

and leave shall be freely given when justice so requires.

According to the Supreme Court, amendments to a party's complaint should be granted
in:

... the absence of any apparent or declared reason — such as undue

delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment,

futility of amendment, etc. - the leave sought should, as the rules require,

be ‘freely given.’

Foman v. Davis, 371 U.S. 178, 181, (1962) (emphasis added).

“The decision to deny or grant a motion to amend is within the discretion of the
trial court.” Kleinhans v. Lisle Savings Profit Sharing Trust, 810 F.2d 618, 625 (7th Cir.
1987) (citing Foman, 371 U.S. at 181). Cady’s proposed amendments are based on
information known to him at the time he filed his First Amended Complaint nineteen
months ago. !n fact, these new proposed claims are based on the same facts as the
counts in his First Amended Complaint. Further, plaintiff filed these motions 7 months
after the close of fact discovery and while the parties’ fully-briefed cross-motions for
summary judgment were pending before the court.

Plaintiff has not provided the court with an explanation for his unreasonable
delay in moving to amend his complaint. Plaintiff simply argues that because the court
ordered additional briefing on a pending claim both parties failed to address in their
cross-motions for summary judgment, fairness requires the court to allow him to amend

his complaint. This argument is contrary to law. Allowing plaintiff's proposed

amendments after such an inexcusably long delay and at this stage in the litigation


distress or intended to cause severe emotional distress; and (3) the conduct in fact
caused severe emotional distress.” Chen v. Mayflower Transit, Inc., No. 99 C 6261,
2002 WL 1632412 at “5 (N.D.III. July 22, 2002) (citing Honaker v. Smith, 256 F.3d 477,
490 (7th Cir. 2001) (citing McGrath v. Fahey, 126 III.2d 78, 533 N.E.2d 806, 809
(1988))).

To establish a claim for negligent infliction of emotional plaintiff must first show
the traditional negligence elements of duty, breach, causation, and damages. Fenner
v. Favorite Brands int!, Inc., 97 C 5906, 1998 WL 249232 at *7 (N.D.II!. May 12, 1998)
(citing Corgan v. Muehling, 143 IlI.2d 296, 574 N.E.2d 602,606 (1991)). Further plaintiff
must produce evidence that the alleged negligence involved a physical impact or injury
that caused his emotional distress. Fenner, 1998 WL 249232 at *7. Based on the
evidentiary record before the court, plaintiff has failed to provide any evidence that
defendants’ conduct was extreme and outrageous, or that it caused severe emotional
distress. As stated above, the defendant officers were merely executing their duties as
law enforcement officers. Accordingly, plaintiffs claims for negligent and intentional

infliction of emotional distress are dismissed.

20


suspicion for the initial stop never existed. Hiibel, 542 U.S. at 2457 (citing Brown, 443
U.S. at 52). However, as discussed supra, Officer Lucio did have a reasonable basis to
effectuate the Terry stop at issue and thus plaintiff was required to identify himself when
requested to do so. On these facts, there is no Fourth Amendment violation for an
unlawful seizure. Accordingly, defendants’ motion for summary judgment is granted as
to plaintiff's claims for false imprisonment, false arrest, and an unlawful seizure.
Plaintiff's motion for summary judgment is denied as to those claims.
Unlawful Search

We now turn to plaintiff's claim that defendants violated his Fourth Amendment
tight to be free from unlawful searches. When a law enforcement officer has lawfully
stopped an individual as in this case, he is allowed to “tak[e] steps to assure himself
that the person with whom he is dealing is not armed with a weapon that could
unexpectedly and fatally be used against him. Certainly it would be unreasonable to
require that police officers take unnecessary risks in the performance of their duties.”
Terry, 392 U.S. at 23. The Supreme Court further held that “we cannot blind ourselves
to the need for law enforcement officers to protect themselves and other prospective
victims of violence in situations where they may lack probable cause for an arrest.
When an officer is justified in believing that the individual whose suspicious behavior he
is investigating at close range is armed and presently dangerous to the officer or to
others, it would appear to be clearly unreasonable to deny the officer the power to take
necessary measures to determine whether the person is in fact carrying a weapon and

to neutralize the threat of physical harm.” /d. at 24.

17


At the insistence of Cady, Officer Lucio summoned a supervisor, Officer Barbat.
Officer Barbat also asked Cady for identification and for his purpose in being at the
Courthouse hours before it opened. Cady provided Officer Barbat with the same non-
responsive answer he gave Officer Lucio. Cady asked why Barbat was enquiring about
his 1.D. and whether Barbat was conducting a Terry Stop. Cady also engaged Officer
Margalus in a similar discussion. Cady repeatedly refused to provide any
identification."" Plaintiff conceded that he did not have a problem with the Officers
momentarily stopping him, but felt that once he told them his purpose for being there,
namely to serve federal process, the inquiry should have ended. Cady told the Officers,
and makes the argument to this court, that to require him to provide an 1.D. or his
identity is a violation of his Fifth Amendment right against self-incrimination.

While the Officers where questioning Cady, he repeatedly opened and reached
into his briefcase. Margalus Dep. at 14. During the questioning, in order to quote from
the Federal Rules of Civil Procedure, Cady removed a Sullivan's Law Dictionary from
his briefcase multiple times. Cady Aff. ] 8. After Cady repeatedly opened and reached
into his briefcase, one of the Officers took the briefcase out of plaintiff's hands, placed it
on the hood of a squad car and searched its contents for weapons and to ascertain
plaintiff's identity. Barbat Dep. at 49; Cady Aff. { 10. After searching the contents of

the briefcase, an Officers placed it ina squad car. Eventually, the Officers obtained

"Cady takes issue with the term “refused,” arguing that he could not refuse to produce
an 1.D. because he did not have any identification with him at the time. However, plaintiff
concedes that he did not simply tell the Officers that he did not have any identification, instead, .
he “challenge [dJefendants to explain why they were demanding such information from him.”
Pl.’s 56.1(6)(3) Stmt. 917.


Coval, 71 F.3d 1311, 1316 (7th Cir. 1995) (citing cases)).

Plaintiffs amended 56.1 statement includes ninety paragraphs. The first fifty
paragraphs contain inaccurate and imprecise citations.® Further, plaintiff's 56.1
statement is filled with conjecture, speculation and irrelevant information.® In addition to
plaintiff's “amended” 56.1 statement, he also filed a motion for summary judgment, an
(unfinished) memorandum of law in support of his motion, an index of exhibits, and an
affidavit.

In response to plaintiff's “amended” 56.1 statement, defendants filed what they

entitled a “Second Mot. to Strike Pl.’s Mot. for Summ. J.”” This court is required to

5Each paragraph is followed by “(Rf: {| _).” However, plaintiff does not provide the name
of the specific document he is referencing. For example, paragraph 5 of plaintiff's 56.1
statement contains a citation to (Rf: 117), which the court believes references paragraph 17 of
plaintiff's first amended complaint, while paragraph 37 of plaintiff's 56.1 statement contains a
citations to (Rf: 2), which we believe references paragraph 2 of plaintiff's affidavit.

‘For example, paragraph 37 reads as follows: “Neither on the morning of August 22,
2001 outside the Bridgeview Courthouse, when [pllaintiff was interdicted by [djefendants and
queried as to his purpose in being there, nor at any other time in his entire life did he ever tell
{or write to) {t]hem or to any other human being that he was or is a “federal officer.” In fact, for
[p]laintiff to be a federal or any other kind of governmental officer would have been and would
still be so foreign to his convictions and to his nature as a very private person and as a political
dissident that it would contradict almost everything that he has stood for — at least since his first
public political demonstration in high school in 1964 — as a critic of the nature of the
contemporary American federal government as being not ‘de jure’ but ‘de facto.’ This
statement is supported by [pllaintiff’s consistent refusal to become a government — esp. a
federal — employee, despite protracted periods of unemployment and/or poverty that he has
endured, when governmental employment, including federal employment, was potentially
available to him as it is to most Americans.”

*However, a careful review of the docket shows that defendants’ original motion was
merely a motion to strike plaintiff's 56.1 statement, not a motion to strike his entire motion for
summary judgment. Therefore, defendants’ “second” motion to strike plaintiff's motion for
summary judgment, is actually an original motion to strike.

6


would unduly prejudice defendants. Accordingly, Cady's two motions to amend his First
Amended Complaint are denied. See Kieinhans, 810 F.2d at 625-26 (affirming the trial
court’s denial of a motion to amend on facts similar to those in the case at bar).
Cross-motions for Summary Judgment

Next, we turn to the parties’ cross-motions for summary judgment. We begin by
addressing some procedural issues. Plaintiff filed his original motion for summary
judgment on March 1, 2004. In response, defendants filed a motion to strike plaintiff's
statement of uncontested material facts for failure to comply with Northern District of
Illinois Local Rule 56.1. On April 14, 2004, we granted defendants’ motion in a minute
order, pertinent portions of which follow:

Plaintiff's statement of uncontested facts is stricken for failure to comply

with Local Rule 56.1(a)(3). ... Plaintiff is ordered to submit a revised 56.1

statement of uncontested material facts that strictly complies with Local

Rule 56.1. Each factual assertion must be supported by a specific citation

to the record. Plaintiff is reminded that his 56.1 statement should only

include facts material to his summary judgment motion. It should not

include arguments, legal conclusions, conjecture or speculation. Plaintiff's

revised 56.1 statement to be filed by 5/10/04. (internal citations omitted).

Plaintiff filed his “amended” Local Rule 56.1 statement on May 10, 2004,
pursuant to our order. Unfortunately, his “amended” filing suffers from the same
procedural defects as his original filing. Rule 56.1 requires a specific reference to the
record for all facts and emphasizes that it is inappropriate to include legal conclusions
and/or arguments in a 56.1 statement. Cady v. Miss Paige, Ltd., 02 C 4867, 2004 WL
1144044 (N.D. Ill. Apr. 30, 2004). The Seventh Circuit has repeatedly upheld strict

enforcement of Rule 56.1 and has sustained the entry of summary judgment when the

non-moving party failed to comply with the rule. /d. (citing Midwest Imports, Ltd. v.


Similar to the seizure addressed above, the reasonableness of a protective
search for weapons as outlined in Terry, is judged by an objective standard and must
be based on articulable facts, which taken together with natural inferences, reasonably
warrant the intrusion at issue. /d. Plaintiff was lurking outside a government building,
holding a briefcase, hours before the building opened to the public. When the
defendant officers approached him, he refused to identify himself, engaged them in
conversation and repeatedly reached into his briefcase. Officer Margalus stated that
based on his twelve years of experience and the totality of the circumstances, including
plaintiff reaching into his briefcase while being questioned by law enforcement officers,
he was concemed for the Officers’ safety and felt that the briefcase may contain
weapons. Margalus Dep. at 6,14-15. Judging the facts from an objective standard, we
cannot disagree. The Officers’ decision to conduct a search, limited to examining the
contents of Cady’s briefcase, was not unlawful. The protective search was limited in
duration and scope to ensure the safety of the officers. Once the officers concluded
that plaintiff's briefcase did not contain weapons, they placed it in a patrol car. Almost
immediately upon determining plaintiff's identity and that he did not have a criminal
record, the Officers returned Cady’s briefcase and informed him that he was free to
leave. Accordingly, on these facts, there is no Fourth Amendment violation for an
unlawful search. Therefore, defendants’ motion for summary judgment is granted as to
Count II] and plaintiffs motion is denied.

Monell Claim

Next we address plaintiff's Monell claim (Count VII) against Sheriff Sheahan in

18



6:15 and 7:10 a.m. on August 22, 2001. Cady arrived at the Courthouse between 6:15
and 6:30 a.m., about two hours before he knew it opened to the public at 8:30 a.m., in
an attempt to effectuate service of a summons on a Cook County Sheriffs Police
Officer. Cady was dressed in dirty, blue pants and a dirty, wrinkled shirt. He had a
beard and had not showered that day. Cady was carrying a briefcase and was walking
along the outer sidewalk on the east side of the Courthouse. Cady also walked along
the inner sidewalk right next to the Courthouse, which was obscured by bushes.

Cady was at the Courthouse for about 10 - 25 minutes before he was first
approached by defendant Lucio at approximately 6:40 a.m.° Officer Lucio asked Cady
why he was at the Courthouse. Cady responded that he was waiting there, as
inconspicuously as possible, to serve federal process on an officer. Cady Aff. J 4.
Officer Lucio also asked Cady for identification. Cady's reply to the later inquiry was
unresponsive. He asked the officer why he was requesting identification. Plaintiff also
may have asked Officer Lucio if he was effectuating a Terry stop.”® Plaintiff did not
have any identification on his person at the time, however, plaintiff did not provide
defendants with that information at the outset of their inquiry. In fact, plaintiff admits to
engaging Officer Lucio in a dialog about whether individuals are required by law to carry

an 1.D. and specifically whether a process server is obligated by law to carry an 1.D.

°Lucio was the first named defendant to encounter plaintiff. Prior to Lucio’s arrival,
plaintiff was questioned by one or two court service deputies (“deputies”), who summoned Lucio
for assistance. One of the deputies told Lucio that a suspicious person was posing a problem.

In his deposition ,Cady could not specifically remember whether he asked Officer Lucio
if he was effectuating a Terry stop, but Cady had responded in that matter during previous
encounters with police officers. Cady Dep. at 84.

8


2
§ Minute ordte For (06/97)

United States District Court, Northern District of Illinois

| Name ot Assigned Judge Michael T. Mason Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 5989 DATE 8/24/2004
CASE Cady vs. Sheahan et al.
TITLE

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

MOTION:
DOCKET ENTRY:
q) Oo Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Oo Answer brief to motion due___. Reply to answer brief due.
(4) im Ruling/Hearing on setfor at
(5) Qo Status hearing[held/continued to] [set for/re-set for]on___—ssetfor__— at
(6) 0 Pretrial conference[held/continued to] [set for/re-set for}on__—ssetfor__——sat_
mM a Trial{set for/re-set for]on___at
(8) Qa [Bench/Jury trial] [Hearing] held/continued to____at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOPRCP4(m) COLocal Rule 41.1 CFRCP41(a)(1) COFRCP41(a)(2).
: (10) a [Other docket entry] Plaintiffs first motion for leave to amend his first amended complaint [86-1],

plaintiff's second motion for leave to amend his first amended complaint [89-1], defendants’ second motion to
strike plaintiff's motion for summary judgment [71-1], plaintiff's third motion for sanctions against defense
counsel [90-1], defendants’ motion to strike plaintiff’ s supplemental statement of uncontested material facts [92-1],
plaintiff’s motion to strike defendants’ supplemental statement of material facts filed July 23, 2004 and plaintiff's
motion for leave to file an Am. L.R. 56,1(b)(2) and (3) response instanter are denied. Plaintiff's motion for
summary judgment [54-1] is denied, defendants’ motion for summary judgment [53-1] is granted and judgment
is hereby entered in favor of defendants Sheriff Michael Sheahan, Officers William Barbat, William Margalus,
William Jacoby, and Gonzalo Lucio and against plaintiff, Davy Cady. This is a final and appealable order. Enter
Memorandum Opinion and Order.

(jl) ff (For further detail see order attached to the original minute order.]

No notices required, advised in open court,
2

No notices required, number of notices

ov | Notices mailed by judge’s staff. AY
Notified counsel by telephone.

Docketing to mail notices. dead ranisia sq

Mail AO 450 form. : 1

Puy de ory ans
RA AL OAV AGES

Copy to judge/magistrate judge. a)

courtroom
KF deputy's
initials

Date/time received in
central Clerk’s Office

mailing deputy initials



existence of an element essential to its case and on which that party will bear the
burden of proof at trial.” Jefferson v. City of Chicago, No. 97 C 4895, 2000 WL 1368036
(N.D.Ill., Sept. 15, 2000) (citing Anderson, 477 U.S. at 252).

Section 1983 Claims

Pursuant to 42 U.S.C. §1983, plaintiff has alleged claims for false imprisonment
(Count |), false arrest (Count Il), and unlawful search and seizure in violation of the
Fourth Amendment (Count Ill). “The standards for a successful Section 1983 action
against local police officers or a municipality are well known.” Ineco v. City of Chicago,
286 F.3d 994, 997 (7th Cir. 2002). The first step, which is dispositive in this case,
requires plaintiff to show that he was deprived of some federal right. /d. at 998. The
second step requires a showing that persons acting under color of state law caused the
constitutional deprivation. /d. at 997-98. The parties do not dispute that defendants
were acting under color of law.

Cady argues that his 20-30 minute encounter with the Officers violated his
Fourth Amendment right to be free from an unreasonable search and seizure. A Fourth
Amendment seizure occurs when an officer's actions restrain a person’s freedom to
walk away from the encounter. See United States v, Mancillas, 183 F.3d 682, 695 (7th
Cir. 1999) (quoting Terry, 392 U.S. at 16). Seizures fall into one of two categories; brief

investigatory stops and full custodial arrests. See Mancillas, 183 F.3d at 695. Both

® The Fourth Amendment provides for “the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to
be seized.” U.S. Const. amend. IV.

il


plaintiffs name, either from his Bible or from him. The Officers ran the name in their
computer but could not find a match. Then, Officer Margalus told plaintiff that if he
continued to refuse to identify himself, “ne would be subject to arrest for obstruction of a
police officer.” Margalus Dep. at 24. Plaintiff continued to refuse. Officer Jacoby took
out his handcuffs and told plaintiff to put his hands behind his back, but never
handcuffed Cady. Cady then told the Officers his name and date of birth. The Officers
quickly found plaintiff's name in their computer. Cady Aff. | 13. Once the Officers
verified that Cady did not have a criminal record, they returned his briefcase and
allowed him to leave without delay. The entire incident lasted 20-30 minutes and
plaintiff has not alleged any physical injuries resulting from the incident. PI.’s 56.1(b)(3)
Stmt. J 26.
Legal Analysis

Standard of Review

Summary judgment is appropriate when the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must evaluate the admissible
evidence supporting the motion in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). However, we can only consider
evidence that would be admissible at trial under the Federal Rules of Evidence. See
Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). “Rule

56(c) mandates summary judgment when the nonmoving party fails to establish the

10


liberally construe pro se pleadings, even for experienced pro se litigators like Mr. Cady.®
Greer v. Board of Educ., 267 F.3d 723, 727 (7th Cir. 2001). “The essence of liberal
construction is to give a pro se plaintiff a break when, although he stumbles on a
technicality, his pleading is otherwise understandable.” /d. (quoting Hudson v. McHugh,
148 F.3d 859, 864 (7th Cir. 1998). “However, a lawsuit is not a game of hunt the
peanut.” Greer, 267 F.3d at 727. Courts are not obligated to “scour the record looking
for factual disputes.” Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th
Cir. 1993). Because Cady’s pleadings are filed pro se and we are required to construe
them liberally, defendants’ motion to strike is denied.

However, because plaintiff failed to comply with Local Rule 56.1, we adopt
defendants’ statement of facts in deciding the summary judgment motions. It should be
noted that we have reviewed and analyzed all of the material Cady filed with the court,
and when appropriate, we have taken into consideration his submissions. ‘Now, we turn
to the merits of the cross-motions.

Factual Background
The events that serve as the basis for plaintiff's complaint occurred outside the

Cook County Courthouse (“Courthouse”) in Bridgeview, Illinois between approximately

5Mr. Cady has filed six other unsuccessful pro se actions in the District Court for the
Northern District of Illinois and two unsuccessful appeals with the Seventh Circuit Court of
Appeals. See Cady v. Cook County, Illinois, 02 C 8333, 2003 WL 21360898 (N.D. Ill. June 11,
2003) (Nordberg, J.); Cady v. Miss Paige, Ltd., 02 C 4867, 2004 WL 1144044 (N.D. Ill. Apr. 30,
2004) (Andersen, J.); Cady v. City of Chicago, 01 C 5152 (N.D. Ill. April 22, 2002) (Nordberg,
J.), aff'd, 02 C 3661, 2003 WL 21018245 (7th Cir. May 5, 2003) (unpublished order); Cady v.
South Suburban College, 02 C 8128 (N.D. Ill. Nov. 14, 2003) (Bucklo, J.); Cady v. Village of
McCook, 01 C 4375, 2002 WL 999429 (N.D. Ill. May 14, 2002), aff'd, 02 C 2579, 2003 WL
124184 (7th Cir. Jan. 13, 2003) (unpublished order); Cady v. Dacosta, 02 C 3188 (N.D. Ill June
12, 2002) (Zagel, J.).


Conclusion
For the reasons set forth above, plaintiff's two motions to amend his First
Amended Complaint and defendants’ motion to strike are denied. We also deny
plaintiff's motion for summary judgment and grant defendants’ motion for summary
judgment, terminating this case. This is a final and appealable order. It is so ordered.
ENTER:
MICHAEL T. MASON
United States Magistrate Judge

Dated: august, 2004

21


August 11, 2004, plaintiff filed a second motion for leave to amend his First Amended
Complaint. In his second motion, plaintiff seeks leave of court to assert an additional
claim for “Religious Discrimination [sic] Violation of First Article, U.S. Bill of Rights.”
Pl.’s Second Mot. for Leave to Amend His First Am. Compl. at 2. Specifically, plaintiff
alleges that defendants violated his constitutional! rights because they (1) considered
the fact that plaintiff hada beard, and (2) may have considered the fact that he was
wearing a long-sleeve shirt in the summertime, as part of the basis for approaching him
and effectuating a Terry stop in the early morning of August 22, 2001.4

Federal Rule of Civil Procedure 15(a) governs when and how a pleading may be
amended. It provides, in pertinent part, that:

A party may amend the party's pleadings once as a matter of course at

any time before a responsive pleading is served or, if the pleading is one

to which no responsive pleading is permitted and the action has not been
placed upon the trial calendar, the party may so amend it at any time

3See Terry v. Ohio, 392 U.S. 1 (1968) (allowing police officers to conduct a brief,
investigatory stop and frisk of a person if they have a reasonable suspicion, based on
articulable facts, that a crime has been or is about to be committed).

4In support of his proposed amendment, plaintiff attached an affidavit to his “Second
Motion to Amend his First Amended Complaint.” In the affidavit he stated “1. At some point in
time during the 1990's | became convinced by fundamentalist Christian acquaintances and by
the Holy Ghost that the Creator of the universe was and is pleased that He had created two
genders of mankind and had established His divine intent and divine law for there to prevail on
earth maximum differences in appearances between them — at least when they are in public
and exposed to the possible view of the opposite gender. ... 3. Since the male gender of
mankind (in most races thereof) is the only human gender capable of growing facial hair, it also
became in the 1990's and remains clear to me that facial hair on men was and is one of the
ways that the Creator of the universe used to establish a maximum difference in appearance
between the genders. ... 5. A related biblical standard of which | became convinced during the
1990s and of which | remain convinced is that of godly modesty, which includes the semi-
standard of maximum loose (as opposed to tight) covering of the body at all times, including,
impliedly, a prohibition against short pants and short-sleeved shirts or short-sleeved blouses —
at least when men and women are in public and exposed to the possible view of the opposite
gender.” PI.’s Aff. of Religious Convictions at 1.

3


to the Courthouse, which was obscured by bushes, instead of the outer sidewalk that
the public normally uses. Finally, the Officers cited plaintiff's demeanor and his
apparent attempt to be inconspicuous. Cady readily admitted that he was attempting to
be inconspicuous to facilitate serving federal process on an Officer. A disheveled
person, carrying a briefcase and attempting to be inconspicuous as he lurks outside a
courthouse more than two hours before it opens gives rise to reasonable articulable
suspicion for an officer to approach Cady and inquire about his identity and his purpose
in being at the Courthouse. Although each individual fact when viewed in isolation may
not necessarily rise to the level ‘of reasonable articulable suspicion required under
Terry, the totality of the circumstances certainly gave rise to reasonable articulable
suspicion, justifying the stop. In fact, Cady agrees with this conclusion. See Pi.’s
Combined 56.1(b)(3) and Br. in Resp. to Defs.’ Mot. for Summ. J. at 8 (“Plaintiff has
never alleged that [djefendants did not have [a reasonable basis for the initial inquiry],
nor has he complained about Officer Lucio’s initial approach.”).

Plaintiff's sole objection is to the nature and length of the inquiry. Plaintiff makes
the untenabie argument that although defendants were justified in approaching him and
inquiring as to his purpose, they could not inquire as to his identity or request
identification. Plaintiff's argument that defendants were required to end their inquiry
when he identified himself as a federal process server and that they could not request
some form of identification or his full name is contrary to law. “[I]t is well established
that an officer may ask a [person] to identify himself in the course of a Terry stop.”

Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 124 S.Ct. 2451,

14


Once he provided that information, the Officers quickly ran a computer check,
determined that plaintiff did not have any outstanding warrants and quickly sent him on
his way. As defendants correctly point out, “[hJad [p]laintiff complied with the officers’
initial request for identification and not engaged them in a debate as to his rights and
the law, the entire encounter might have only lasted a few minutes.” Defs.’ Mot. for
Summ, J. at 7.

Additionally, plaintiff was responsible, in part, for the number of Officers involved
in the stop. Cady specifically requested that Officer Lucio summon Officer Barbat, a
supervisor. Had Cady provided Officer Lucio with his name, when he initially asked for
it, Officer Barbat and Officer Margalus would likely not have intervened.

In addition to being justified in conducting a 20-30 minute Terry stop, the Officers
could have lawfully arrested defendant. See Hiibel, 124 S.Ct. at 2451, 2004 WL
1373207 at *1 (June 21, 2004). In Hiibel, the Supreme Court held that state “stop and
identify” statutes, which require an individual to disclose his name during a Terry stop,
do not violate a person’s Fourth Amendment rights, as long as the request for
identification is "reasonably related in scope to the circumstances which justified” the
stop. /d. at 9 (quoting Terry, 392 U.S. at 20). Illinois has just such a “stop and identify”
statute, allowing officers to request a person to produce identification. Hiibel at 2456
(citing Ill. Comp. Stat. 725 5/107-14) (permitting an officer to ask or require a suspect to
disclose his identity).

Plaintiff's reliance on Brown v. Texas in support of his motion for summary

judgment is misplaced. 443 U.S. 47 (1979). In Brown, the requisite reasonable

16


“sheriffs counsel” Paul O'Grady (collectively “defendants”). Defendant Sheahan
responded with a motion to dismiss. On February 5, 2003, Judge Grady granted in part
and denied in part defendant Sheahan’s motion and dismissed a number of plaintiff's
claims sua sponte.

Specifically, Judge Grady dismissed all claims against defendant Sheahan in his
individual capacity. Sua sponte, the court dismissed Counts IV, V, Vi, VIII, and IX with
prejudice, thus dismissing O’Grady, Malinowski, and Fitzgerald as defendants in this
action. Generally, three categories of claims remain pending before this court; plaintiff's
Section 1983 claims (Counts |, !I and Ill) against defendants Barbat, Margalus, Jacoby,
Lucio’, and “various unknown others”; his Monell claim (Count VII) against defendant
Sheahan in his official capacity; and his two state law claims for negligent and
intentional infliction of emotional distress (Counts X and XI).

Plaintiff's Motion to Amend his First Amended Complaint

Before turning to the parties’ cross-motions for summary judgment, we first
address plaintiff's two motions to amend his complaint. On July 22, 2004, more than
seven months after fact discovery closed on November 20, 2003, and more than
nineteen months after plaintiff filed his First Amended Complaint on December 20,
2002, plaintiff filed a motion to amend his First Amended Complaint. In this motion
plaintiff seeks leave of court to assert a new claim for common law conversion arising

from the defendants’ search of his briefcase. Approximately three weeks later, on

2When collectively referring to the remaining identified defendant officers, William
Barbat, William Margalus, William Jacoby, and Gonzalo Lucio, we will use the terms “Officers,”
“defendants,” or “defendant officers.”


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

DAVY CADY,

Plaintiff,
No, 02 C 5989
Vv.
Mag. Judge Michael T. Mason

MICHAEL SHEAHAN, SHERIFF, et al.,

Defendants. DOCKE ;

MEMORANDUM OPINION AND ORDER AUG 2 TED
°2008

Michael T. Mason, United States Magistrate Judge: ;

Before the court are plaintiff's two motions to amend his complaint; théipart ies

cross-motions for summary judgment, and defendants’ second motion to strike
plaintiff's motion for summary judgment.’ For the reasons set forth below, plaintiff's two
motions to amend his complaint are denied, defendants’ motion for summary
judgement is granted, plaintiff's motion for summary judgement is denied, and
defendants’ second motion to strike plaintiff's motion for summary judgment is denied.
Procedural History

On December 20, 2002, pro se plaintiff Davy Cady (“Cady” or “plaintiff’) filed this
amended eleven-count §1983 civil rights action against Cook County Sheriff Michael
Sheahan, several sheriff's officers including William Barbat, William Margalus, William

Jacoby, Gonzalo Lucio, James Malinowski, Thomas Fitzgerald, unknown officers, and

‘Also pending before the court are: (1) Pl.’s Third Mot. for Sanctions Against Defs.’
Counsel; (2) Defs.’ Mot. to Strike Pl.'s Supp. Stmt. of Uncontested Material Facts; (3) Pl.’s Mot.
to Strike Defs.’ Supp. Stmt of Material Facts Filed July 23, 2004; and (4) Pl.’s Mot. for Leave to
File an Am. L.R. 56.1(b)(2) and (3) Resp. instanter to Defs.’ Rule 56.1 Mot. to Dismiss Filed
July 23, 2004. Each of these motions is denied.

Ge


parties agree that Cady was not the subject of a full custodial arrest. However, he was
subjected to a brief investigatory stop, also known as a Terry Stop. See Terry, 392 U.S.
at 1. Therefore, the question before us is whether the Terry stop was unreasonable,
because the Fourth Amendment only protects against unreasonable searches and
seizures. See Mancillas, 183 F.3d at 695. If the stop was reasonable, it did not violate
plaintiffs Fourth Amendment rights and his §1983 claims cannot prevail.

A Terry stop is reasonable if there are “specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that intrusion.”
Mancillas, 183 F.3d at 695 (quoting Terry, 392 U.S. at 21). Officers may effectuate a
Terry stop for a wide variety of purposes, including the investigation of possible criminal
behavior, or to help an intoxicated person find his home. See Terry, 392 U.S. at 13-14.
In order for a Terry stop to be reasonable, the officer's actions must be justified at the
inception of the stop, and the stop must be reasonably related in scope to the
circumstances which justified its inception. United States v. Swift, 220 F.3d 502, 506
(7 Cir. 2000).

In evaluating the reasonableness of the stop, the facts must be “judged against
an objective standard: would the facts available to the officer [at] the moment of the
seizure or the search ‘warrant a man of reasonable caution in the belief that the action
taken was appropriate.” United States v. Robinson, 30 F.3d 774, 782 (7" Cir. 1994)
(citing Terry, 392 U.S. at 21-22). We look at the “totality of the circumstances,”
including the “experience of the law enforcement agent and the behavior and

characteristics of the suspect.” United States v. Odum, 72 F.3d 1279, 1284 (7" Cir.

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2459, 2004 WL 1373207 at *7 (June 21, 2004). “Questions concerning a suspect's
identity are a routine and accepted part of many Terry stops.” Id. at 2458 (citing Adams
v. Williams, 407 U.S. 143, 146 (1972) (“A brief stop of a suspicious individual, in order
to determine his identity or to maintain the status quo momentarily while obtaining more
information, may be most reasonable in light of the facts known to the officers at the
time.”)). Such an inquiry is not, as plaintiff argues, a violation of his Fifth Amendment
tight against self-incrimination.

Having found that the initial Terry stop was warranted and that the scope,
including inquires into Cady’s identity were justified, we must now determine the
reasonableness of the duration of the stop. Generally, Terry stops must be brief,
however, longer Terry stops are not unreasonable when the plaintiff's refusal to
cooperate contributes to the delay. See United States v. Sharpe, 470 U.S. 675, 687-88
(1985) (twenty minute stop not unreasonable when the subject's actions contributed to
the delay); Robinson, 30 F.3d 774, 782 (7th Cir. 1994) (twenty minute stop not
unreasonable where the subject gave “misleading answers”).

The Terry stop at issue lasted somewhere between 20-30 minutes. However,
plaintiff was responsible, in large part, for the extended duration. Cady provided
evasive, unresponsive and argumentative answers to the Officers’ questions. By his
own admission, instead of stating his name, Cady engaged the Officers in repeated
dialogs regarding applicable law. Plaintiff referenced his Sullivan’s Law Dictionary and
quoted the Federal Rules of Civil Procedure on several occasions.

Cady only provided his identity to the Officers once they threatened to arrest him.

15