have to be determined as a factual matter whether excessive

force was applied to Munoz.

2. AD 2 is likewise improper, because it is at odds
with (a) Complaint 435's assertion that probable cause was
lacking and (b) Count III's allegations of trumped-up
charges against Munoz.

3. AD 3 is directly at cross-purposes with Munoz’
allegations in Count III, so it too is impermissible.

For all those reasons, and because it is desirable to avoid
@ patchwork responsive pleading, the Answer is stricken in its
entirety. As stated at the outset, leave is granted to Officers
to file a self-contained Amended Answer conforming to what has
been set out here, with an original and one copy of the Answer to
be filed in this Court's chambers on or before January 27, 2004
(and with a copy to be served contemporaneously on Munoz!
counsel).

Finally, no charge is to be made to Officers by their
counsel for the added work and expense incurred in correcting
counsel's errors. Officers! counsel are ordered to apprise his
clients to that effect by letter, with a copy to be transmitted

to this Court's chambers as an informational matter (not for

Tea Mle O) Snel

Milton T. Shadur
Senior United States District Judge

filing).

Date: January 14, 2004


————__—_-.

Minute Corder Foem (06197) C4

United States District Court, Northern District of Tlinois

—
Name of Assigned Judge ilton I. Sha: Sitting Judge if Other
or Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 03 C7148 DATE 1/14/2004 _|
CASE Hermenejildo Munoz vs. Village of Blue Island, et al
TITLE
___|
[la the following box (u) indicate the party filing the motion, .g., plaintiff, defendunt, 3rd party plaintiff, and (b) state briefly the mature
MOTION: of the motion being presented.)
—

DOCKET ENTRY:

qa) oO Filed motion of ( use listing in “Motion” box above.]

(2) a Brief in support of motion due _

(3) Q Answer briefto motion duc___. Reply to answer briefduc__

(4) Qo Ruling/Hearing on set for at _

(6)) Q Status hearing|held/continued to] [set for/re-set for] on _setfor_ at

(6) im Pretrial conference(held/continued to] [set for/re~set for] on set for at. :

(7) 0 Trial(set for/re-set for]on _—__at

(8) Qo [Bench/Jury trial] [Hearing] held/continued to at -

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

OFRCP4(m) =O Local Rule 41.) CFRCP41(a)(1) O FRCP41(a)(2),

(10) = {Other docket entry) Enter Memorandum Order. For all those reasons, and because it is desirable
to avoid a patchwork responsive pleading, the Answer is stricken in its entirety. As stated at the outset,
leave is granted to Officers to file a self-contained Amended Answer conforming to what has been set oul
here, in this Court’s chambers on or before January 27, 2004.

ai) ff [For further detail see order attached to the original minute order.)

No notices required, advised in open coun. Document.
a Nivhber:
No notives required, snes ot tices pe
| Notices mailed by jndge’s stat¥.

WAN 15 2004

Notified counsel by telsphouc, uc: dovcketyel

Nocketing to mail notices,

Mail AW 450 form.

Copy to judge/magistrate judge.

waz

courtroom dg nmiled wotren

deputy’s
initials

SN SN

Datel footie) hs
when

central Clerk's Uffice mailing deputy initiate



-

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

HERMENEJILDO MUNOZ,

DOCKETED

JAN 15 2004

Plaintiff,

)
)
)
}
v. ) No. 03 C 7148
VILLAGE OF BLUE ISLAND, et al.,

Defendants.

MEMORANDUM ORDER

Three police officers with the Village of Blue Island--Jamie
Schultz, Frank Podbielniak, and Craig Kincaid (collectively
“Officers”)--have filed their Answer, including affirmative
defendants (“ADs”), to the Complaint brought against them and the
Village itself by Hermenejildo Munoz (“Munoz”). This memorandum
order is issued sua sponte because a number of problems require
the striking of that responsive pleading (but with leave being
granted, of course, to cure those problems by the prompt filing
of an Amended Answer).

To begin with, Answer 441, 2, 6 and 7 impermissibly scek ta
deny the corresponding allegations of Munoz’ Complaint on the
premise that what Munoz has alleged “constitute legal
conclusions.” That is of course dead wrong, for the Supreme
Court itself has made it plain that the use of legal conclusions
is totally appropriate in the federal system of notice pleading--
see App. (2 to State Farm Mut. Auto. Ins. Co. v. Riley, 199
F.R.D, 276, 279 (N.D. Ill. 2001). Accordingly Answer 941, 2, 6

and 7 are stricken so that Officers' counsel can instead submit



Pe

appropriately responsive answers to Munoz‘ allegations.

Next, Officers (through their counsel) simply and flatly
deny just about all of the other Complaint allegations as well.
Such denials are of course entirely proper where they can he
advanced in the objective good faith required of every party and
every lawyer under Fed. R. Civ. P. (“Rule”) 11, but that usage
seems questionable in a number of respects here. For example, do
Officers really deny that they were “acting under color of state
law” (Answer §9) when they became involved with Munoz on October
11, 2001?* And there are a number of other Complaint allegations
as to which the propriety of outright denials would seem doubtful
(see, €.g., Complaint 411-14). No findings by this Court are
either made or implied here, but when Officers' counsel returns
to the drawing board he must exercise more care in determining
exactly which allegations may fairly be denied as such.

Finally, mone of the ADs conforms to the standards of Rule
8(c) and the caselaw applying that rule--see App. 45 to State
Farm. In that respect:

1. AD 1 directly contradicts (rather than accepting)
the allegations of the Complaint, and qualified immunity

simply does not enter the picture where (as here) it will

+ This Court does not of course accept Munoz! version of

events in asking that question. It is rather that Officers
acknowledge that some occurrence took place involving them and
Munoz on that date (see, e.g., Answer §25), and it is difficult to
believe that the officers are asserting that they were not “state
actors” in the sense made relevant by 42 U.S.C. §1983 and related
statutes.