McDowell v. Vill. of Lansing
| Decision Date | 02 October 2013 |
| Docket Number | Case No. 12 C 5025 |
| Parties | MARLO MCDOWELL, Plaintiff, v. VILLAGE OF LANSING, ILLINOIS, and OFFICER MICHAEL RODRIGUEZ, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
AMY J. ST. EVE, District Court Judge:
On August 31, 2012, Plaintiff Marlo McDowell filed the present Amended Complaint against Defendants Village of Lansing, Illinois ("Lansing") and Lansing Police Officer Michael Rodriguez ("Officer Rodriguez") alleging a Fourteenth Amendment substantive due process claim pursuant to 42 U.S.C. § 1983. McDowell also brings a "wilful and wanton" negligence claim pursuant to the Court's supplemental jurisdiction. See 28 U.S.C. § 1367(a). Before the Court is Defendants' motion for summary judgment under Federal Rule of Civil Procedure 56(a). For the following reasons, the Court grants Defendants' summary judgment motion and dismisses this lawsuit in its entirety.
Local Rule 56.1 "is designed, in part, to aid the district court, 'which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information,' in determining whether a trial is necessary." Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). LocalRule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the moving party contends there is no genuine issue." Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). "The opposing party is required to file 'a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Id. (citing N.D. Ill. R. 56.1(b)(3)(B)). Local Rule 56.1(b)(3)(C) requires the nonmoving party to present a separate statement of additional facts that requires the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).
In general, the purpose of Local Rule 56.1 statements and responses is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (). "When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion." Cracco, 559 F.3d at 632. In sum, Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012). With these standards in mind, the Court turns to the relevant facts of this case.
On June 25, 2011, McDowell went to the Bottoms Up restaurant and bar in unincorporated Cook County outside of Lansing at about 3:30 a.m., after he had finished his shift as a bar manager at O'Keefe's. When he got to Bottoms Up, McDowell sat with his friends Richie Birkenfeld, Don Birkenfeld, and Noelle Folden. ( McDowell and his friends were at Bottoms Up until 4:00 a.m., which was closing time. (Defs.' Stmt. Facts ¶ 10.) At that time, a fight occurred between Richie Birkenfeld and McDowell against four or five other people, including Steven Morandi and Ricky Ramirez, an off-duty police officer. ( The fight eventually moved to the parking lot of Bottoms Up. (Defs.' Stmt. Facts ¶ 14.) At some point, McDowell told Folden to call the police and she called 911. (Id. ¶¶ 15, 25; Pl.'s Stmt. Facts ¶ 15.)
After being dispatched to Bottoms Up, Officer Rodriguez arrived at the scene while the fight was ongoing. (Defs.' Stmt. Facts ¶¶ 16, 43, 45; Pl.'s Stmt. Facts ¶¶ 16, 19.) Prior to arriving at the scene, dispatch informed Officer Rodriguez that a fight was in progress and that one of the individuals was an off-duty police officer. (Pl.'s Stmt. Facts ¶ 17.) Upon arriving, Officer Rodriguez exited his vehicle, approached the fight with his Taser drawn, and ordered everyone to the ground, to which everyone complied but Morandi. ( At that time, Officer Rodriguez was the only law enforcement officer at the scene. (Id. ¶ 50.) Moments after McDowell got to the ground — no more than one or two minutes — Morandi kicked McDowell in the face. ( After he kicked McDowell, Morandi then got on the ground. (Defs.' Stmt. Facts ¶39.) Thereafter, the Cook County Sheriff's Police Department arrived and arrested the offenders, took statements, and filled out the police reports.1 (Pl.'s Stmt. Facts ¶ 36; Defs.' Ex. B, McDowell Dep., at 9, 48.)
An ambulance then took McDowell to the Community Hospital in Munster, Indiana, where he underwent surgery on his jaw because it was fractured. (Pl.'s Stmt. Facts ¶ 39.) The Cook County State's Attorney prosecuted Morandi in November 2011. (Ex. B, McDowell Dep., at 59, Ex. F, 11/21/11 transcript).
Summary judgment is appropriate "if 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). A genuine dispute as to any material fact exists if "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, 2510, 91 L. Ed. 2d 202 (1986). In determining summary judgment motions, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). After "a properly supported motion for summary judgment is made, the adverse party 'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 255 (quotation omitted). "A plaintiff must begin to meetthis burden by submitting admissible, supporting evidence in response to a proper motion for summary judgment." Harney v. City of Chicago, 702 F.3d 916, 925 (7th Cir. 2012).
McDowell maintains that his substantive due process claim is based on DeShaney v. Winnebago County Dep't of Social Serv., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). As the DeShaney Court explained, the purpose of the due process clause of the Fourteenth Amendment is "to protect the people from the State, not to ensure that the State protect[s] them from each other." Id. at 195. Accordingly, "[t]here is no federal constitutional right to be protected by the government against private violence in which the government is not complicit." Sandage v. Board of Comm'rs of Vanderburgh County, 548 F.3d 595, 596 (7th Cir. 2008). Specifically, "while there's no federal constitutional duty to protect or to rescue from a peril that the government did not create, there is a duty not to harm." Id. at 597 (internal parenthesis omitted). Indeed, "state actors who needlessly create risks of harm violate the due process clause by depriving persons of life, liberty, or property without process." Paine v. Cason, 678 F.3d 500, 510 (7th Cir. 2012).2 To establish a substantive due process claim, McDowell must present evidence showing that: (1) Officer Rodriguez created or increased a danger that McDowell faced; (2) Officer Rodriguez's failure to protect McDowell from the danger was theproximate cause of his injuries; and (3) Officer Rodriguez's failure to protect McDowell "shocks the conscience." Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir. 2011). The Court turns to the third substantive due process requirement because it is dispositive.
"The Supreme Court has held that state action that shocks the conscience is conduct which may be deemed 'arbitrary in the constitutional sense.'" Id. at 654 (citation omitted); see also Belcher v. Norton, 497 F.3d 742, 753 (7th Cir. 2007) (). "Only 'the most egregious official conduct' will satisfy this stringent inquiry," such that "[m]aking a bad decision, or even acting negligently, does not suffice to establish the type of conscience-shocking behavior that results in a constitutional violation." Jackson, 653 F.3d at 654 (citation omitted). Recently, a Seventh Circuit panel disapproved of the term "shocks the conscience" inquiring "[s]houldn't it be enough to say that it violates the due process clause for a government employee acting within the scope of his employment to commit a reckless act that by gratuitously endangering a person results in an injury to that person?" Slade v. Board of Sch. Dirs. of City of Milwaukee, 702 F.3d 1027, 1033 (7th Cir. 2012). Although this inquiry changes the focus of the substantive due process analysis to whether a state actor's conduct was reckless, it is still unsettled whether the...
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