Flood v. Carey

• Decision Date: 21 November 2011
• Docket Number: Case No. 06 C 2980
• Parties: WILLIE FLOOD, Plaintiff, v. KEVIN CAREY and the CITY OF CHICAGO, Defendants.
• Court: U.S. District Court — Northern District of Illinois

WILLIE FLOOD, Plaintiff,

v.KEVIN CAREY and the CITY OF CHICAGO, Defendants.

Case No. 06 C 2980

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

DATED: November 21, 2011

Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiff Willie Flood filed suit against the City of Chicago ("the City") and Kevin Carey, a Chicago police officer, alleging that Carey and the City violated his Fourth and Fourteenth Amendment rights; in addition to his 42 U.S.C. § 1983 claims, he also brings a number of state law tort claims.¹ The City has moved for summary judgment on all counts. For the reasons stated below, the court grants in part and denies in part the City's motion.

I. BACKGROUND

At about 4:15 a.m. on May 5, 2006, Flood left his home to go to work in Rosemont, Illinois.² As he turned his car from 79th Street onto Western Avenue, he noticed another car swerving across the lane. That car was driven by Chicago police officer Carey. At that point, Carey (who worked during the day as part of the City's 9th District bike team) had been off duty for over nine hours. While the parties disputewhether Carey was leaving directly from a bar or from his friend's house, there is no dispute that he had been drinking. In fact, when Carey submitted to a breathalyzer test hours later, his blood alcohol content was 0.145.

Carey—who was out of uniform, driving his own personal vehicle, and carrying his personal firearm—pulled up next to Flood's car at a stoplight on 67th and Western. At this point, the stories diverge. According to Carey, Flood had swerved in front of him and cut him off, causing Carey's phone to fall underneath the driver's seat. Carey pulled alongside Flood's vehicle to chastise Flood's driving, and Flood pointed a semi-automatic pistol at Carey, then ran the red light. Carey followed Flood at a safe distance in order to effectuate Flood's arrest for the traffic violation and for pointing a gun at him. Carey eventually pulled even with Flood and displayed his police badge, at which point Flood sped away. Flood ran more stoplights, and when he finally stopped behind a police wagon, Carey jumped out of the car with his gun, identified himself as a police officer, and told Flood to get on the ground. Carey yelled to the other officers that "he (Flood) has a gun." Flood was handcuffed and taken to the 14th District.

By contrast, Flood claims that he never cut Carey off, nor did he pull a gun. Instead, Flood testified that when Carey pulled up next to his car at 67th and Western, Carey was visibly drunk. Flood pulled away, and Carey continued to drive right by his side—when Flood sped up, Carey would speed up, and when Flood slowed, Carey would do the same. After Flood successfully passed Carey, Carey followed Flood's car so closely that the vehicles almost touched. They both got on the expressway, and after Flood saw Carey point a gun at Flood's head, Flood called 911. He reported that a "drunk" "white guy" was following him. The operator attempted to direct him to a policestation, but Flood was unable to follow the directions. He got off the expressway and drove through some red lights; when he saw a police wagon, he pulled directly behind it, jumped out of his car and told the officers that a guy was chasing him with a gun. Carey had also exited his car and pointed a weapon at Flood. Carey identified himself to the other officers as police. The officers told Flood to get down and instructed Carey to drop his weapon; both were then taken to the 14th District police station.

Flood was eventually released without being charged with any criminal offense. Carey was charged with driving under the influence and aggravated assault. He pleaded guilty to driving under the influence, but after a bench trial in the Circuit Court of Cook County, he was found not guilty of aggravated assault.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, the court will grant summary judgment where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In particular, the court will grant a motion for summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

At the summary judgment stage, "a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party." Keri v. Bd. of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). "A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determinewhether there is a genuine issue of triable fact." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). Doubts about the existence of a material fact "should be resolved in favor of the nonmoving party and summary judgment ought to be denied." Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994).

III. ANALYSIS

Flood's amended complaint sets forth ten counts against Carey and the City. In Counts I-III, Flood claims Carey violated his Fourth and Fourteenth Amendment rights; in Count IV, Flood appears to allege both § 1983 and various state law tort claims³ against Carey and the City; Count V states a § 1983 Monell claim against the City based upon its "customary practices," see Monell v. Department of Social Services, 436 U.S. 658 (1978); Count VI alleges an assault claim against the City; Count VII alleges a negligence claim against the City based upon its failure to provide adequate 911 emergency services; Count VIII alleges that the City intentionally inflicted emotional distress upon Flood; Count IX alleges that Carey assaulted Flood; and Count X alleges that Carey intentionally inflicted emotional distress upon Flood.

The City has moved for summary judgment on all claims, including those that appear to be pleaded solely against Carey. Carey has not filed his own motion for summary judgment. Of course, "where one defendant succeeds in winning summary judgment on a ground common to several defendants, the district court may also grant judgment to the non-moving defendants, if the plaintiff had an adequate opportunity to argue in opposition," see Acequia, Inc. v. Prudential Insurance Co. of America, 226 F.3d798, 807 (7th Cir. 2000), or "if granting the motion would bar the claim against those non-moving defendants," see Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 384 (7th Cir. 2008). Here, the City's argument with respect to § 1983 liability is predicated upon its claim that Carey was not acting under color of state law. If true, Flood could not prevail against either the City or Carey on these claims. See Cruz v. Safford, 579 F.3d 840, 844 (7th Cir. 2009) (noting that to prevail on a claim under § 1983, a plaintiff must establish that the defendant was acting under color of state law). Thus, the court has considered the City's motion with respect to Counts I-IV.

As to the tort claims, however, the City argues that Carey's acts were so reckless and outrageous that they fell outside the scope of his employment, and so the City cannot be held vicariously liable for his behavior. If true, this conclusion would not bar the tort claims against Carey—he could still be personally liable for his acts. Moreover, the motion as presented did not provide Flood with an opportunity to address these issues. To the extent that the City seeks summary judgment on the tort claims against Carey (part of Count IV, and Counts IX and X), the court denies the motion outright.

A. Conflicts Between Flood's and Carey's Testimony

As a preliminary matter, the court must address a somewhat unusual situation: the City attempts to short-circuit the summary judgment process by taking Flood's testimony as true and then attempting to demonstrate that Flood cannot prevail based on those facts. Flood responds by pointing to Carey's testimony to show that there is a material dispute, and the City then complains that Flood cannot create a genuine issue of material fact by pointing to evidence that contradicts his own testimony, citing the Eighth Circuit's Prosser v. Ross, 70 F.3d 1005, 1008 (8th Cir. 1995), in support. In Prosser, the EighthCircuit expanded a commonly accepted principle—the "sham affidavit" rule, which states that a plaintiff does not create a genuine issue of material fact by submitting an affidavit that contradicts his own earlier testimony—to encompass situations in which "a plaintiff attempts to avoid summary judgment by proffering testimony from another person that contradicts the plaintiff's own testimony." See Prosser, 70 F.3d at 1008.

But Prosser does not mandate entry of summary judgment in the City's favor. First, Prosser's expansion of the sham affidavit principle not been adopted in the Seventh Circuit, and depended in part upon considerations not present here. See id. (noting that the plaintiff's own testimony was contradictory, that the defendant's testimony was speculative, and that "no reasonable jury could return a verdict for [the plaintiff] based on [the witness's] testimony"). For this reason, at least one other circuit declined to expand on Prosser. See Nelson v. City of Davis, 571 F.3d 925, 929 (9th Cir. 2009) ("The rationale underlying the sham affidavit rule is that a party ought not be allowed to manufacture a bogus dispute with himself to defeat summary judgment. That concern does not necessarily apply when the dispute comes from the sworn deposition testimony of another witness.") (citing Lane v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986)).

But more importantly, even if this court were...