Coles v. City of Chicago

• Decision Date: 11 March 2005
• Docket Number: No. 02 C 9246.,02 C 9246.
• Citation: 361 F.Supp.2d 740
• Court: U.S. District Court — Northern District of Illinois
• Parties: Reggie COLES, Plaintiff, v. THE CITY OF CHICAGO, a municipal corporation, Timothy Thomas, Maxine Thomas Jackson, d/b/a Rose Cocktail Lounge, Defendants.

361 F.Supp.2d 740

Reggie COLES, Plaintiff, v. THE CITY OF CHICAGO, a municipal corporation, Timothy Thomas, Maxine Thomas Jackson, d/b/a Rose Cocktail Lounge, Defendants.

No. 02 C 9246.

United States District Court, N.D. Illinois, Eastern Division.

March 11, 2005.

Benjamin Obi Nwoye, Mendoza & Nwoye, P.C., Chicago, IL, for Plaintiff.

James Arthur Filkins, City of Chicago, Law Department Corporation Counsel, Mara Stacy Georges, Allen Duarte, City of Chicago, Department of Law, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER¹

SCHENKIER, United States Magistrate Judge.

This lawsuit arises out of an altercation at the Rose Cocktail Lounge on the night of December 31, 2001 and/or the early morning hours of January 1, 2002. Plaintiff, Reggie Coles, claims that during that altercation, he was shot in the mouth by defendant Timothy Thomas, an off-duty police officer. In his third amended complaint, Mr. Coles asserts claims: (a) against Mr. Thomas under 42 U.S.C. § 1983 (Count II), and on state law theories of negligence (Count III), assault (Count V), and battery (Count IV); (b) against Maxine Thomas Jackson, d/b/a Rose Cocktail Lounge for negligence (Count III); and (c) against the City of Chicago, for any damages that Mr. Coles may recover against Mr. Thomas on the Section 1983 claim (Count II).²

The City has moved for summary judgment on Count II (doc. # 60), on two grounds. First, the City argues that there is nothing to indemnify on the Section 1983 claim, as the undisputed material facts show that Mr. Coles was not shot and that Mr. Thomas was not acting under color of law during their encounter. Second, the City argues that, in any event, plaintiff has no claim against the City for indemnity because the undisputed material facts show that Mr. Thomas was not acting within the scope of his employment during his encounter with Mr. Coles. Ms. Jackson has moved to join the City's motion (doc. # 61), insofar as the City argues that no shooting occurred.

We grant Ms. Jackson's motion to join in the City's summary judgment motions. However, for the reasons set forth below, the City's motion is denied.

I.

We begin the discussion with the legal standards that govern summary judgment motions, which are well-established. Summary judgment is proper if the record shows that there is no genuine issue as to any material fact, and that the moving parties are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for trial exists only 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 249-50, 106 S.Ct. 2505; see also Flip Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 261, 102 L.Ed.2d 249 (1988). In deciding a motion for summary judgment, the Court must view all evidence in the light most favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987), and must draw all reasonable inferences in the nonmovant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir.1990).

When a material fact or a set of facts yields competing, but reasonable, inferences, then there is a genuine issue that precludes summary judgment. The non-moving party's burden is to identify facts that are both material and genuinely disputed. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) To be material, a fact must be outcome determinative under the substantive law governing the motion. Insolia v. Philip Morris Inc., 216 F.3d 596, 598-99 (7th Cir.2000). A "genuine issue" exists when the party opposing the motion for summary judgment serves and files, pursuant to Local Rule 56.1, a concise statement outlining the material facts that require denial of summary judgment, supported by citations to the evidentiary materials that support those denials (e.g., affidavits, depositions, answers to interrogatories, admissions etc.). Fed. R.Civ.P. 56(c). Although the party seeking summary judgment bears the initial burden of proving that there is no genuine issue of material fact, Celotex, 477 U.S. at 323, 106 S.Ct. 2548, the non-moving party cannot rely upon the pleadings alone, but must use the evidentiary tools outlined above to identify the material facts that show there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548; Insolia, 216 F.3d at 598.

II.

The City seeks summary judgment by asserting that certain facts material to resolution of Count II are without genuine dispute.³ We begin by setting forth, in Section II. A., infra, the material facts we find to be undisputed. However, many of the material facts are genuinely disputed by the parties. We will identify those disputed facts in Section II. B., infra.

A.

On the night of December 31, 2001, and the early morning of January 1, 2002, Mr. Coles and Mr. Thomas were both at the Rose Cocktail Lounge (also referred to herein as the "nightclub"). Mr. Thomas was employed as a police officer of the City of Chicago (Def.'s 56.1 C. St. ¶ 13), and was off-duty (Id. ¶ 14).

Shortly after midnight, a fight broke out among some of the patrons — first at the back of the nightclub (the "initial disturbance"), and then at the front entrance to the nightclub (the "fight") (Def.'s 56.1 C. St. ¶¶ 5-6, 20-21). Both Mr. Coles and Mr. Thomas, for different reasons and from different places in the nightclub, walked to the front entrance, toward the fight. Mr. Thomas was not wearing a police uniform or a police badge of any kind, but rather was dressed in plain clothes (Def.'s 56.1 C. St. ¶¶ 16, 35). Mr. Coles has testified that he heard the person who injured him at the front entrance shout, "police, police, police!" (Def.'s 56.1 C. St. ¶ 8; Def.'s Ex. B, Coles Dep. at 64-71). For his part, Mr. Thomas has testified that he shouted to the crowd at the front door that he was the police "at least once" (Def.'s 56.1 C. St., Ex. D, Thomas Dep. at 72), for the purpose of establishing his authority to tell the patrons to "get out of" and/or to "get [the fight] out of" the club (Id., Thomas Dep. at 70-71). The General Orders of the Chicago Police Department require an off-duty officer to take some action when he observes a crime being committed (Def.'s 56.1 C. St. ¶ 60).

The parties agree that an altercation took place. And, although they disagree about precisely what happened during that altercation, they agree that a 911 call was made from the nightclub. The individual making that call, Sonya Remus, told the telephone dispatcher that shots had been fired inside the lounge, that three women were stabbed and one man was shot, and that everyone was running for cover (Pl.'s 56.1 Add'l Facts ¶¶ 9-10).

Thereafter, Mr. Coles was taken to the Loretto Hospital emergency room, where it was documented that he had active bleeding from the mouth (Pl.'s Ex. 1, Loretto Hospital Emergency Treatment Record at 1, 3).⁴ A man named "Dorsey" made a 911 call from Loretto Hospital to report a possible gun shot victim who was unable to give any information. Mr. Dorsey further reported that "someone ... came in with him but ran out of the building before [they] could get any information from him" (Pl.'s Ex. 3, Bates No. 000134). A CT Scan conducted by Dr. P. Sevilla revealed a large bullet fragment embedded on the left side of Coles's cervical spine (Pl.'s 56.1(b)(3)(b) Add'l Facts, ¶ 7, Pl.'s Ex. 1). In 1999, Mr. Coles had been shot in the back by his upper, left shoulder. Mr. Coles was taken to Cook County Hospital ("CCH") for treatment of that gunshot wound; no one at CCH told Mr. Coles he had retained a bullet in his neck (Def.'s 56.1 C. St. ¶¶ 49-52).

Later on January 1, 2002, Mr. Coles was transferred from Loretto Hospital to Mount Sinai Hospital for treatment (Def.'s 56.1 C. St. ¶¶ 40-41). A female named "Carey" made a 911 call from Mount Sinai Hospital (Pl.'s Ex. 3, Bates No. 000121). Ms. Carey reported that Mr. Coles had been shot at the Rose Cocktail Lounge by a bouncer (Id.). Ms. Carey further reported that the bouncer fired shots in the nightclub (Id.).

B.

There are two main areas of factual dispute material to the claims at issue: (1) what happened between Mr. Coles and Mr. Thomas after they reached the front of the nightclub; and (2) what the evidence shows regarding Mr. Coles's alleged injuries.

1.

Mr. Coles claims that during the altercation at the nightclub in the early morning hours of January 1, 2002, Mr. Thomas shot him at point blank range after first shouting "police, police, police!" (Def.'s 56.1 C. St., Ex. B, Coles Dep. at 64-71, 78-79). Mr. Coles claims that Mr. Thomas did this within the scope of his employment as a police officer. Conversely, the City claims that Mr. Thomas did not shoot Mr. Coles (Def.'s 56.1 C. St. ¶¶ 27, 53); and that while Mr. Thomas "perhaps" announced his office "once" (Id., ¶ 37), he was not acting as a police officer or within the scope of his employment at any time during the incidents in question. We find a number of genuine, material fact disputes on these points, which we summarize below.

First, the parties do not dispute that Mr. Thomas announced himself as a police officer to the fighting crowd. The dispute appears to center on the manner, frequency, and purpose of the announcement. That dispute is relevant to the questions of color of state law, and scope of employment.

Second, Mr. Coles points out that Mr. Thomas has admitted that he assisted another security guard to restore peace inside the nightclub when the fight at the front door of the club broke out (Pl.'s 56.1(b)(3)(b) Add'l Facts ¶ 20). The City's principle response is to emphasize all the things that Mr. Thomas allegedly...