LaPorta v. City of Chi., Case No. 14 C 9665

• Citation: 277 F.Supp.3d 969
• Decision Date: 29 September 2017
• Docket Number: Case No. 14 C 9665
• Parties: Michael A. LAPORTA, as Guardian of the Estate and Person of Michael D. LaPorta, a Disabled Person, Plaintiff, v. CITY OF CHICAGO, a Municipal Corporation; and Gordon Lounge, Inc. d/b/a Brewbakers, Defendants.
• Court: U.S. District Court — Northern District of Illinois

277 F.Supp.3d 969

Michael A. LAPORTA, as Guardian of the Estate and Person of Michael D. LaPorta, a Disabled Person, Plaintiff,

v.CITY OF CHICAGO, a Municipal Corporation; and Gordon Lounge, Inc. d/b/a Brewbakers, Defendants.

Case No. 14 C 9665

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

Signed September 29, 2017

Antonio Maurizio Romanucci, Bruno R. Marasso, Stephan David Blandin, Romanucci & Blandin, LLC, Andrew Martin Stroth, Action Injury Law Group, LLC, Brendan Shiller, Shiller Preyar Law Offices, Carl S. Salvato, Jason Edward Hammond, Paul George O'Toole, Salvato & O'Toole, Carlton E. Odim, Odim Law Offices, Debra Liss Thomas, Martin D. Gould, Nicolette Anne Ward, Romanucci & Blandin LLC, Chicago, IL, for Plaintiff.

Eileen Ellen Rosen, James Bryan Novy, Stacy Ann Benjamin, Theresa Berousek Carney, Rock Fusco & Connelly, LLC, Joseph M. Polick, City of Chicago, Department of Law, Robert M. Burke, Jr., Heineke & Burke LLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Harry D. Leinenweber, Judge

In a Seventh Amended Complaint, Plaintiff Michael A. LaPorta, as guardian of his disabled son Michael D. LaPorta, brings eight counts against Defendant City of Chicago ("the City") and one count against Defendant Gordon Lounge, Inc. d/b/a Brewbakers ("Brewbakers") that is not at issue here. Counts I and IX are state-law tort claims against the City, whereas Plaintiff brings Counts III through VIII under 42 U.S.C. § 1983 and Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiff has moved for partial summary judgment on the Monell claims [ECF No. 238], and the City has cross-moved on all eight of Plaintiff's claims against it [ECF No. 241]. For the reasons to follow, the Court denies both Motions with the exception of the City's Motion as to state law Counts I and IX, which is granted. In addition, the Court bifurcates the trial so that adjudication of Count III will commence only after the jury returns a verdict on the other claims against the City.

I. BACKGROUND

The facts of this case lend themselves to an Alcoholics Anonymous pamphlet. In the wee hours of January 12, 2010, off-duty Chicago Police Officer Patrick Kelly ("Kelly") and his lifelong friend, Michael D. LaPorta ("LaPorta"), were hanging out alone at Kelly's house after a night of heavy drinking at various bars, including Brewbakers. Kelly's Sig Sauer P226 service weapon somehow discharged a single bullet into LaPorta's head, about two inches above and behind his left ear, causing LaPorta to sustain grave injuries that have left him paralyzed. (ECF No. 283 ("Def.'s Resp.") ¶ 13; ECF No. 301 ("Def.'s Resp. to Pl.'s SAUF") ¶ 2.) LaPorta maintains that Kelly shot him; Kelly and the City claim that LaPorta attempted to commit suicide using Kelly's gun; both men give sharply conflicting accounts of the events at Kelly's house on the night in question. (See, e.g., id. ¶ 4; ECF No. 268 ("Pl.'s Resp.") ¶ 10.) The following facts are undisputed unless otherwise noted.

Around 4:35 a.m. on January 12, 2010, Kelly placed two calls to emergency services for help, identifying himself as an off-duty officer and shouting "abusive" profanities when imploring emergency personnel to hurry. (Def.'s Resp. ¶ 14.) Kelly appeared intoxicated to the responding paramedics and officers. (Def.'s Resp. ¶ 18.) He tried to access the ambulance by banging on its windows, causing a paramedic to fear for her safety and prompting her to yell at the other officers to secure the scene and Kelly. (Id. ¶¶ 19–20.) Kelly refused to step away from the ambulance; instead, he got in the face of the officer-in-charge, Sergeant Charmane Kielbasa, and hurled unsavory epithets at her (i.e., "north side bitch," "whore," "motherfucker," "fucking cunt"). (Id. ¶ 21.) Sergeant Kielbasa detected a strong odor of alcohol on Kelly, felt threatened by him, and thought he was going to strike her. (Id. ¶ 23.) At approximately 4:52 a.m., Kelly was placed under arrest for assaulting her, resisted arrest, and was then tackled to the ground. (Id. ¶ 24.) Once placed in the back of a cruiser, Kelly tried to kick out the rear window of the vehicle and subsequently refused to heed the commands of the arresting officers, whom he deemed of insufficient rank. (Id. ¶ 25.) Although charged with assault, Kelly was never charged with aggravated assault or resisting arrest. (Id. ¶ 27.) (The court ultimately entered a directed verdict for Kelly in the assault case. (Pl.'s Resp. ¶ 37.) )

Phone records indicate that, at various times just before and after the LaPorta shooting, Kelly placed and received calls from friends and personal acquaintances affiliated with CPD. The detective-in-charge on the scene eventually noticed the presence of Allyson Bogdalek, a fellow officer who had been drinking with LaPorta and Kelly the night before; he recognized her because he had previously worked for Bogdalek's father, a Chicago Police Department ("CPD") sergeant. (Def.'s Resp. to Pl.'s SAUF ¶ 31.) Melissa Spagnola, Kelly's former girlfriend, also appeared on the scene with her uncle, a retired CPD officer, who spoke with an investigating officer about Kelly. (Id. ¶ 34.) Whereas LaPorta's cell phone was inventoried—and his text messages reviewed—as part of the investigation, Kelly's was not. (Def.'s Resp. ¶ 30.)

Kelly was at the scene for over an hour before he was taken to the police station and placed in a detention room. After his requests to wash his hands and use the bathroom were repeatedly denied, Kelly urinated in a corner of the detention room. (Def.'s Resp. ¶¶ 35, 37; see also, Pl.'s Ex. 73.) Within twenty minutes of Kelly urinating, CPD investigator Joseph Dunigan performed a gunshot residue test on Kelly's hands. (Def.'s Resp. ¶ 35; see also, Pl.'s Ex. 73.) Dunigan voiced disapproval that Kelly had already urinated because, as Dunigan put it, some suspects "piss on their hand" to confound the residue test. (Pl.'s Ex. 73 at 6:54.) Although the results of the test did not indicate that Kelly had gunshot residue particles on his hands, they left open the possibility that particles could have been "removed by activity." (Pl.'s Resp. ¶ 24.) Kelly then demanded that the officers call his father, John Kelly, so that his father could call a lawyer. This prompted the officers to ask, "Was your father police?" Kelly responded that "he was." (Def.'s Resp. ¶ 35.) (Kelly's father served as a CPD patrol officer from 1971 to 1979. (Pl.'s Resp. to Def.'s SAUF ¶ 14.) ) Approximately eight hours after the incident—at 12:17 p.m. on January 12, 2010—Kelly took a breathalyzer test and blew a 0.093. (Def.'s Resp. ¶¶ 11, 38.) From this, Illinois State Police extrapolated Kelly's blood alcohol content to have been between 0.169 and 0.246 at the time of the shooting. (Id. ¶ 39.)

CPD officers interviewed a friend of LaPorta, Matthew Remegi ("Remegi"), and attempted to convince him that LaPorta shot himself. Remegi thrice responded that LaPorta would never have attempted to kill himself and eventually ended the interview because the officers persisted in their suicide theory. (Def.'s Resp. ¶¶ 42, 77.) Separately, Kelly told detectives that LaPorta was having difficulties in his personal life, including problems with his then live-in girlfriend and possible abuse of pain pills he had been prescribed in connection with a previous injury. (Pl.'s Resp. ¶ 22.)

Kelly was released from custody at around 1:20 p.m. on January 12, 2010 and did not make his compelled statement to the Independent Police Review Authority ("IPRA") until January 11, 2011—364 days after the shooting. (Def.'s Resp. ¶ 43.) Kelly told the IPRA investigator that he was an alcoholic but that he did not believe he was intoxicated on the night of the shooting. (Id. ¶¶ 39, 50; ECF No. 304 ("Pl.'s Resp. to Def.'s SAUF") ¶ 11.) Forensic analysis of the bullet extracted from LaPorta's skull determined that it and the fifteen bullets remaining in Kelly's service weapon were "9mm Luger + P cartridges," one of several CPD–approved types of ammunition. (Def.'s Resp. to Pl.'s SAUF ¶ 36.) The Complaint Register log for the LaPorta incident alleged that Kelly was (1) "intoxicated while off duty"; (2) "[f]ailed to secure his weapon"; (3) "[a]ssaulted Sergeant Kielbasa"; (4) "[v]erbally abused" her"; (5) "[b]rought discredit on the Department, in that he interfered with the Chicago Fire Department personnel that were attempting to treat Michael La Porta [sic ]"; (6) "[s]hot Michael La Porta [sic ]"; and (7) "[p]rovided false statements to investigating police officers and detectives regarding this incident when he indicated that Michael La Porta [sic ] shot himself." (Def.'s Resp. ¶ 28; Pl.'s Resp. ¶ 30.) Allegations 1 through 5 of the Complaint Register ("CR") were sustained against Kelly, meaning that they were "supported by substantial evidence to justify disciplinary action." (Def.'s Resp. ¶ 28; Pl.'s Resp. ¶ 40.) Allegations 6 and 7 were added after the IPRA investigator interviewed LaPorta's uncle, who opined that Kelly's account was not consistent with how the Sig Sauer P226 operates; neither allegation was sustained, and no criminal charges were brought against Kelly other than the aforementioned assault count. (Pl.'s Resp. ¶¶ 33–38, 41.)

The IPRA investigator ultimately recommended that Kelly receive a 180-day suspension for the sustained violations pertaining to the LaPorta shooting, but IPRA Chief Administrator Ilana Rosenzweig without any explanation commuted Kelly's suspension to 60 days. (Def.'s Resp. ¶ 49; Pl.'s Resp. ¶ 39.) In April 2010, Kelly was referred by CPD for a fitness-for-duty evaluation, and the evaluating psychologist deemed him unfit for duty. In July 2010, Kelly was re-evaluated and found fit for duty. (Pl.'s Resp. ¶ 28.) IPRA suspended its investigation into the LaPorta shooting on July 26, 2012 but moved to re-open it on July 26, 2016 after years of civil litigation. (Def.'s Resp. ¶ 47.) Kelly remains...