IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF

ILLINOIS EASTERN DIVISION

DEMETRIUS JOHNSON )

) Case No. 20 CV 4156

Plaintiff, )

) Judge Sara L. Ellis

v. )

) Magistrate Judge Heather K. McShain

REYNALDO GUEVARA, et al. )

)

Defendants. ) JURY TRIAL DEMANDED

)

JOINT MOTION TO RESOLVE DISPUTED MATERIAL FACTS

Pursuant to this Court’s standing order on summary judgment practice, the Parties submit 

the following Motion to Resolve Disputed Facts, relative to the City of Chicago’s forthcoming 

Motion for Summary Judgment related to Plaintiff’s Monell claim. 

PLAINTIFF’S OPENING OBJECTIONS: 

Respectfully, Plaintiff objects to the Court’s individual practices requiring an agreed statement of 

fact. The process the Court has set forth requires parties to agree to statements being included in a 

joint statement of fact, even where there is a dispute as to the material fact, by permitting a party 

to characterize a fact as undisputed by simply pointing to one side of the evidence on the issue. 

So, for example, at the hearing on January 25, 2024, the Court provided guidance on how to handle 

a dispute on a hotly contested issue—for example, whether Witness A good look at saw the shooter 

and could make an independent identification, or whether Witness A did not get a good look at the 

shooter and was told who to pick by police. Based on the Court’s guidance, if Defendants include 

a fact such as, “At trial, Witness A testified that he saw the shooter and identified Plaintiff from a 

photo array on his own,” it must be treated as undisputed if that is indeed what the trial transcript 

says. Under the Court’s guidance, if there is evidence to the contrary from police reports, affidavits, 

depositions, or other documents indicating that the witness did not see the shooter and/or could 

not make an identification, that does not create a dispute of fact. Instead, it may be a basis to add 

a separate statement of fact. In Plaintiff’s view, this process permits the moving party to distort the 

underlying summary judgment record on a disputed issue, assert that something is undisputed, and 

then demand the nonmoving party agree to that fact in a so-called joint statement of undisputed 

facts, which the moving party will then use to argue that summary judgment is warranted. That 

process is contrary to the Federal Rules of Civil Procedure.

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CITY’S RESPONSE: 

The Seventh Circuit has held on several occasions that this Court’s summary judgment practice 

does not violate Local Rule 56.1. See Chi. Studio Rental, Inc. v. Ill. Doc., 940 F.3d 971, 982 

(7th Cir. 2019); Sweatt v. Union Pac. R.R. Co., 796 F.3d 701, 711-12 (7th Cir. 2015). Specifically 

finding that the practice merely requires the parties to file a joint statement of undisputed facts, if 

possible, which is consistent with the Federal Rules of Civil Procedure 56(a) and Local Rule 

56.1. Id. 

DISPUTED FACTS1

PROPOSED PARAGRAPH 23: S.O. 83-2 did not require a single repository for all investigative 

information maintained by a lead investigator; applied only to detectives, and excluded all other 

officers involved in investigating major crimes; provided no guidance about what information a 

detective was required to include in a supplementary report beyond information deemed 

“relevant,” or about how information should be communicated or documented among detectives; 

provided no policy directive or procedure to ensure production of investigative files; relied on 

inventory sheets instead of actual file disclosures; and lacked an audit/oversight mechanism. 

(Exhibit 22, SO 83-2; Ex. 5, Tiderington Report, at 48; Ex. 17, Hickey Dep. in Kluppelberg, at 

236:7-238:12.)

CITY’S OBJECTIONS: The City objects to this paragraph to the extent it relies on Plaintiff’s 

expert’s opinion for the truth of the matter asserted. An expert opinion is not evidence, it is simply 

an opinion, and is therefore hearsay. See, Sommerfield v. City of Chicago, 254 F.R.D. 317, 329 

(N.D. Ill. 2008). Further objecting, Plaintiff’s citation to Hickey’s testimony in Kluppelburg only 

supports the highlighted portion of this paragraph. The remainder of the paragraph is Plaintiff’s 

summary of SO 83-2, which is a 5 page special order. 

PLAINTIFF’S RESPONSE: Special Order 83-2 is supportive of all of the facts stated in this 

proposed fact. See S.O. 83-2 at pgs. 1-5 (no requirement for a single repository for information 

maintained by lead investigator; only applies to Detective Division, meaning that no other officers 

involved in investigating major crimes are included; provides no guidance about information in a 

supplementary report beyond information deemed relevant; provides no guidance about how 

information should be communicated or documented among detectives; provides no procedure to 

ensure production of investigative files; relies on Investigative File Inventory Sheet, see id. at 2, 

to forward material to the Records Division, not actual file disclosures; lacks an audit mechanism).

The City’s objections do not demonstrate that the Order applies to anyone but the Detective 

Division nor does it demonstrate that any of the stated fact is not supported. Plaintiff’s citation to 

Hickey’s Deposition in Kluppelberg also supports this paragraph and provides his testimony that 

Special Order 83-2 does not provide guidance about the information that must be included in a 

supplemental report. See Ex. 17, Hickey Dep. in Kluppelberg, at 236:7-238:12. 

CITY’S RESPONSE: The City stands on its objections. This paragraph is a summary of 

Plaintiff’s interpretation of the special order. For example, there is nothing within the special order 

that states that it “excludes all other officers involved in investigating major crimes.” In fact, the 

1 The exhibits are numbered as they are in the full Joint Statement of Facts. 

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introduction to the Order states: “This order is designed to institutionalize the control of all violent 

crimes investigation documents[.]” Moreover, Plaintiff’s summary of what he purports to be 

lacking in the order is clearly argumentative, and not proper pursuant to the Court’s guidance and 

standing order. 

PROPOSED PARAGRAPH 31: While the policy stated that “the name(s) of persons identified 

in the lineup” had to be reported, it did not provide any guidance on what had to be reported in the 

event of a lineup procedure in which someone was not identified, tentatively identified, or a filler 

was selected. Ex. 24, General Order 83-5; Ex. 18 Rivera Hickey Dep. at 264:6-265:19. Likewise, 

neither that policy nor any other policies in effect in 1988 governed the conduct of photographic 

lineups. (Ex. 11, G.O. 88-18; Ex. 18 Rivera Hickey Dep at 264:6-265:19).

CITY’S RESPONSE: The additional testimony does not support the paragraph as written. 

Rather, when asked if a witness identified a filler as opposed to the suspect, the “clearest direction 

[from the order was] Subsection H, which results in the identification of a suspect, by definition, 

the filler is a non-suspect...so the report would indicate that there was not an identification of the 

suspect.” Ex. 18 Rivera Hickey Dep. at 264:6-265:19

PLAINTIFF’S RESPONSE: The testimony cited supports the statement. Hickey’s testimony 

confirms that the policy lacked clear instruction on the selection of a filler, but instead collapsed 

that separate identification into the non-identification of a suspect. Ex. 18 Rivera Hickey Dep. at 

264:6-265:19. Plaintiff will not remove this fact.

CITY’S RESPONSE: Plaintiff’s response in support of this paragraph demonstrates how this 

paragraph is not supported by the evidence cited. Rather, it is Plaintiff’s interpretation of the 

testimony, argumentative and does not comply with this Court’s guidance and standing orders. 

PLAINTIFF’S RESPONSE: If the City wishes to add its additional reference to testimony as an 

additional fact, Plaintiff will not object; however, Plaintiff will not remove this fact.

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CITY’S RESPONSE: The City stands on its objections. In the event the Court overrules the 

City’s objections, the City proposes the inclusion of the following langauge as its own fact: “When 

Hickey was asked if a witness identified a filler as opposed to the suspect, the “clearest direction 

[from the order was] Subsection H, which results in the identification of a suspect, by definition, 

the filler is a non-suspect...so the report would indicate that there was not an identification of the 

suspect.” (Ex. 18 Rivera Hickey Dep. at 264:6-265:19.) The City disagrees that its position 

violates the Court’s guidance. The City’s objections are that the paragraph is not supported by the 

citations, and as such, the City does not agree with how Plaintiff has written this statement and 

maintains that the paragraph should be stricken or rewritten to accurately cite the 

testimony. Accordingly, adding in an additional fact does not cure the deficiencies noted in the 

City’s objections. However, in the event the Court disagrees with the City and allows the 

paragraph to stand, then the City would ask the Court to include its proposed paragraph.

PLAINTIFF’s RESPONSE: Plaintiff objects to the City’s position, which violates the Court’s 

guidance to add an additional fact when there is a dispute over additional evidence offered to 

contradict the Plaintiff’s evidence, but maintains its response to the City’s objections nonetheless.

PROPOSED PARAGRAPH 35: The training materials were from 1996, and do not indicate they 

were in effect before this year. Ex. 13, Training Materials at Foster 30(b)(6), 000011, 000040. 

CITY’S OBJECTIONS: This fact is not supported by the evidence cited. Specifically, page 40 

of Ex. 13 does not discuss dates at all. Further, while the training was written/updated in 1996 

(see, Ex. 13 at 11), the original course lesson plan/program was developed in 1981 and based off 

of a general order drafted in 1988. (See, Ex. 13 at 55). 

PLAINTIFF’S RESPONSE: The fact is supported by Exhibit 13, which was created in 1996, 

eight years after the General Order on which it was purported to provide training, according to the 

City. See Ex. 13. Plaintiff has cited to a page including the 1996 date for these specific training 

materials on identification procedures and lineups. Moreover, the City’s preceding paragraph No. 

34, to which this fact was offered as an additional fact, references pages 40 and 41 of the training 

materials – which are separate from a separate unit of training materials identified on Page 55. The 

City’s objection regarding the training materials is without merit. Page 55’s reference to a separate 

“course lesson plan” does not support the City’s stated fact. (See Ex. 13 at 55). 

PROPOSED PARAGRAPH 42: The training that detectives received was three hours long and 

did not include training on what information was to go into supplementary reports. When asked if 

“part of the training instruction to the detectives [was] that they should document everything they 

learned during an investigation,” 30(b)(6) representative Winstrom stated, “I don’t believe so, but 

I haven’t – I don’t believe so.” Ex. 16, Winstrom Dep, 147:1-4, 148:1-4, 149:2-6.

CITY’S RESPONSE: This paragraph is directly contradicted by the testimony cited by Plaintiff. 

When asked “did it include training on what information should be included in those reports?” 

Commander Winstrom testified “I – you know, they say it did.” 

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PLAINTIFF’s RESPONSE: The last sentence in the fact was in reference to Winstrom Dep. at 

149:2-6, not 147, as the City provided above. Plaintiff has provided the relevant testimony below. 

Plaintiff objects to the City’s position, which violates the Court’s guidance to add an additional 

fact when there is a dispute over additional evidence offered to contradict the Plaintiff’s evidence. 

Plaintiff maintains his objections to the inclusion of this testimony in this fact.

CITY’S RESPONSE: Plaintiff’s position ignores the testimony quoted by the City in which 

Winstrom responded, and therefore the City stands on its objections. The City seeks to add the 

following language as a new fact: “When Hickey was asked about training on the subject of a 

detective obligation to record information, Hickey testified that “[t]he detective [was] expected 

and was trained on his obligation to record information, which is pertinent and relevant to the 

investigation.” (Ex. 17, Hickey Dep. Kluppelburg, at 96:17-97:4). The City disagrees that its 

position violates the Court’s guidance. The City’s objections are that the paragraph is not 

supported by the citations, and as such, the City does not agree with how Plaintiff has written this 

statement and maintains that the paragraph should be stricken or rewritten to accurately cite the 

testimony. Accordingly, adding in an additional fact does not cure the deficiencies noted in the 

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City’s objections. However, in the event the Court disagrees with the City and allows the 

paragraph to stand, then the City would ask the Court to include its proposed paragraph.

PROPOSED PARAGRAPH 245: Foster was unaware of any policy or any training about how 

tentative identifications were to be documented, and confirmed that detectives were not trained to 

ask witnesses if they were 100 percent confident in their identifications, so tentative identifications 

would only occur if the witness themselves volunteered that they were not 100 percent certain. Ex. 

14, Foster 30(b)(6) Dep., 246:1-7, 246:24-247:3, 247:8-11 .

CITY’S OBJECTIONS: This paragraph is not supported by the record citation, as Foster 

testified that tentative identifications were documented as non-identifications, and the practice was 

to document a statement about the lack of confidence in an identification. Ex. 14, Foster 30(b)(6) 

Dep., 246:1-247:11.

PLAINTIFF’S RESPONSE: Each part of the paragraph is supported by the record citation. See 

id. 246:1-7 (“Q. . . . [W]as there any policy about how tentative identifications were to be 

documented? A. Not that I’m aware of, no. Q. Okay. Was there . . . any training on how tentative 

identifications were to be documents? A. Not that I’m aware of, No.); 246:24-247:3 (“Q. Okay . . 

. if I understand correctly in this time period, detectives were not trained to ask witnesses if they 

were 100 percent confident in their identifications, correct? A. Correct.”), 247:8-11 (“Q. Okay. So 

tentative identifications would only occur if the witness themselves volunteered that they were not 

100 percent certain; Is that correct? A. Correct.”). Referencing other testimony is not a basis to 

object to these direct references to the testimony, per the Court’s guidance. Plaintiff will not remove 

this fact.

CITY’S RESPONSE: The City directed Plaintiff to the testimony he cited, which reads as 

follows: 

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PLAINTIFF’S RESPONSE: The City is free to add this as an additional fact. Plaintiff has 

modified the citations to conform directly to the lines cited.

CITY’S RESPONSE: The City stands on its objections. In the event the Court overrules its 

objections, the City proposes the additional fact: “When asked what the practice was with regard 

to the documentation of tentative identifications, Foster testified that they were considered nonidentifications and documented as such. Further, when asked if the fact that a person was tentative 

about their identification was documented, he said yes.” Ex. 14, Foster 30(b)(6) Dep., 246:1-

247:11). 

PLAINTIFF’S RESPONSE: Plaintiff objects to the City’s position, which violates the Court’s 

guidance to add an additional fact when there is a dispute over additional evidence offered to 

contradict the offered evidence. Plaintiff will accept the City’s proposed fact as written above.

CITY’S RESPONSE: The City disagrees that its position violates the Court’s guidance. The 

City’s objections are that the paragraph is not supported by the citations, and as such, the City does 

not agree with how Plaintiff has written this statement and maintains that the paragraph should be 

stricken or rewritten to accurately cite the testimony. Accordingly, adding in an additional fact 

does not cure the deficiencies noted in the City’s objections. However, in the event the Court 

disagrees with the City and allows the paragraph to stand, then the City would ask the Court to 

include its proposed paragraph. 

DATE: February 23, 2024 Respectfully Submitted,

/s/ Meg Gould 

Attorney for Plaintiff 

Jon Loevy

Anand Swaminathan

Steve Art

Meg Gould

Alyssa Martinez

LOEVY & LOEVY

311 N. Aberdeen

Chicago, Illinois 60607

(312) 243-5900

/s/ Theresa Berousek Carney 

Special Assistant Corporation Counsel for 

Defendant City of Chicago

Eileen E. Rosen 

Austin G. Rahe 

Catherine M. Barber 

Theresa B. Carney 

Lauren M. Ferrise

ROCK FUSCO & CONNELLY, LLC 

333 West Wacker Drive, 19th Fl.

Chicago, IL 60606

(312) 494-1000 

tcarney@rfclaw.com

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