Davis v. Frapolly

Decision Date15 January 1991
Docket NumberNo. 89 C 2218.,89 C 2218.
Citation756 F. Supp. 1065
PartiesCharles DAVIS, Plaintiff, v. Sgt. William FRAPOLLY, Star No. 806, a Police Officer in his individual capacity, Robert Chernik, Star No. 941, and Edward Kopsky, Star No. 0953, Police Officers in their individual capacities, Defendants.
CourtU.S. District Court — Northern District of Illinois

Martin P. Greene, Keith E. Graham, Jones, Ware and Grenard, Chicago, Ill., for plaintiff.

Douglas McMillan, Sheila A. Owens, Sharon Baldwin, City of Chicago, Law Dept., Kelly R. Welsh, City of Chicago Corp. Counsel, Chicago, Ill., for Sergeant William Frapolly.

Douglas McMillan, Sheila A. Owens, Sharon Baldwin, Kelly R. Welsh, City of Chicago Law Dept., Chicago, Ill., for Robert Chernik, Edward Kopsky and Kelly Edward.


NORGLE, District Judge.

Before the court is the summary judgment motion of defendant Edward Kopsky ("Kopsky"). For the reasons stated below, the motion is granted.


On March 17, 1989, plaintiff Charles Davis ("Davis") filed this action against defendants William Frapolly ("Frapolly"), the Chicago Police Department, and other unknown police officers, alleging civil rights claims and state tort law claims arising from incidents occurring at approximately 9:00 p.m. on March 20, 1988. Plaintiff alleges that on this date, while driving his car with a friend, he was pulled over by police officer Frapolly. Davis alleges that he was subsequently beaten by Frapolly and several other police officers and was placed under arrest. Davis claims that the police officers' abusive behavior was entirely unprovoked and was based solely upon racial bigotry. (Davis is black and the individual defendants are white.)

On January 24, 1990, Davis filed his Second Amended Complaint adding Kopsky and two other police officers to this action. The only portion of this pleading which alleges facts specific to Kopsky states: "Notwithstanding the fact that Davis had surrendered himself and was in the control of Cyrus, Frapolly and upon information and belief, Kopsky, Kelly and Chernik assaulted Davis and Frapolly imposed upon Davis a choke hold." Second Amended Complaint, ¶ 13.

Kopsky has moved for summary judgment on the grounds that he "was not present during plaintiff's arrest or detention and had no contact with plaintiff concerning the incident alleged in the second amended complaint." Defendant Edward Kopsky's 12(1) Statement of Facts, ¶ 5.


As a preliminary matter, the court addresses several issues raised by Davis in a pleading styled: "Plaintiff's Objections to Defendant Edward Kopsky's Motion for Summary Judgment" ("Plaintiff's Objections"). The court construes this pleading as a motion to strike Kopsky's summary judgment motion on procedural grounds. First, Davis argues that he was not given proper notice of the motion for summary judgment. Plaintiff's Objections, ¶ 10. The notice provision of Fed.R.Civ.P. 56(c) states: "The motion shall be served at least 10 days before the time fixed for the hearing." Kopsky's notice of motion and certificate of service indicate that the summary judgment motion was served on November 2, 1990 and was noticed for presentment on November 9, 1990. It is not clear to this court that the November 9, 1990 date constitutes "the hearing" on the motion contemplated by Rule 56(c).1 Notably, the court held no evidentiary hearing or oral argument on Kopsky's motion on November 9; rather, this court date was used merely to set a written briefing schedule on the motion. This briefing schedule provided plaintiff with ample time to respond to Kopsky's motion with opposing affidavits and a memorandum of law. Additionally, Davis has not alleged that he has been prejudiced by insufficient notice of the motion. Therefore, Davis's notice argument provides inadequate grounds for striking Kopsky's motion.

Second, Davis argues that the declarations of Kopsky and Michael Gajewski, which are attached to Kopsky's motion, are improper because they "are not sworn statements under the rules." Plaintiff's Objections, ¶ 10. Both of these declarations are signed, dated, and begin with an affirmation that the declarant "under penalty of perjury deposes and states...." Neither declaration, however, is notarized and neither document reflects that the statements contained therein were sworn to before a notary public or other official. The court finds that these declarations, though unsworn, were signed under penalty of perjury and as such, may properly be considered as evidence in support of Kopsky's motion. Under 28 U.S.C. § 1746, an unsworn declaration which is dated and signed by the declarant under the penalty of perjury, has the same force and effect as a sworn affidavit for the purposes of any requirement imposed by any federal rule or regulation.2 "The purpose of this legislation is to permit the use in Federal proceedings of unsworn declarations given under penalty of perjury in lieu of affidavits." H.R.Rep. No. 1616, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Admin.News 5644. The court finds that the two declarations at issue meet the requirements of 28 U.S.C. § 1746, and serve the purpose of sworn affidavits for the purposes of Kopsky's motion. See Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.1985) ("so long as the documents comply with 28 U.S.C. § 1746 ... a district court should not be unnecessarily hypertechnical and overly harsh on a party who unintentionally fails to make certain that all technical, non-substantive requirements of execution are satisfied").

Plaintiff's third and final objection is that he is unable to oppose Kopsky's motion until he is given the opportunity to depose Kopsky. The attempted deposition of Kopsky has been a major subject of contention between the parties. After Kopsky failed to appear at his initial deposition date on July 17, 1990, for health reasons, plaintiff filed a motion to compel. This court granted plaintiff's motion on August 3, 1990, ordering that Kopsky's deposition be taken before September 30, 1990. On September 14, 1990 Kopsky moved for a protective order in which he informed the court that he was receiving chemotherapy treatments for cancer and was advised not to travel. Kopsky also asserted that he was not on duty on the date in question, and had no contact with the plaintiff in connection with the incidents alleged in the lawsuit. Pursuant to Kopsky's motion, the court issued a minute order permitting plaintiff to serve six limited interrogatories on Kopsky. In his answers to the interrogatories, Kopsky stated that on March 20, 1990, he was neither on duty nor present at the police station and that he had no personal knowledge of any of the events concerning this litigation. At the October 23, 1990 status hearing, the court granted Kopsky's motion for protective order.

Plaintiff argues that he:

is prejudiced in attempting to respond to the Motion for Summary Judgment, because he has not had the opportunity to depose Kopsky, a name-defendant in this case, in order to corroborate the nature of Kopsky's participation, if any, in the incident subject of this litigation or to discern the status of his health as it relates to the protective order.

Plaintiff's Objections, ¶ 14. However, the court fails to see how plaintiff's deposition of Kopsky would help him respond to the summary judgment motion, in light of the fact that Kopsky has already stated, under penalty of perjury, that he was not present at any of the events alleged in the pleadings and has no personal knowledge of any of these incidents. Although a witness generally may not avoid a deposition on the grounds that he has no knowledge of any relevant facts,3 under the particular circumstances of this case, Kopsky's deposition is far more likely to be burdensome and oppressive on the deponent than to provide any meaningful challenge to the motion for summary judgment. Thus, plaintiff's inability to depose Kopsky is not sufficient grounds for striking Kopsky's summary judgment motion. For the above reasons, plaintiff's motion to strike is denied.

Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence which supports his complaint. Id.; see First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 reh. den., 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Accordingly, the non-moving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Id.

Kopsky's motion for summary judgment presents the unadorned and straightforward factual defense of mistaken identity. The three-sentence motion simply states that Kopsky "was not present during plaintiff's arrest or detention and had no contact with plaintiff concerning the incident alleged in the second amended complaint." Defendant Edward Kopsky's Motion for Summary Judgment. In support of his motion and pursuant to Rule 12(m) (formerly, Rule 12(l)) of the Rules of the United States District Court of the Northern District of Illinois ("Local Rules"), Kopsky...

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