PRYOR v. CITY of CHICAGO

• Citation: 726 F.Supp.2d 939
• Decision Date: 07 July 2010
• Docket Number: No. 07 C 2479.,07 C 2479.
• Parties: Ulysses PRYOR, Plaintiff, v. CITY OF CHICAGO, a municipal corporation; Edward McGovern, as a Chicago Police Officer and as an individual; Todd Kreykjalin, as a Chicago Police Officer and as an individual, Defendants.
• Court: U.S. District Court — Northern District of Illinois

726 F.Supp.2d 939

Ulysses PRYOR, Plaintiff,

v.CITY OF CHICAGO, a municipal corporation; Edward McGovern, as a Chicago Police Officer and as an individual; Todd Kreykjalin, as a Chicago Police Officer and as an individual, Defendants.

No. 07 C 2479.

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

July 7, 2010.

Edward M. Fox, Jonathan R. Ksiazek, Ed Fox & Associates, Chicago, IL, for Plaintiff.

Scott J. Jebson, Department of Law, Chicago, IL, for Defendants.

ORDER

REBECCA R. PALLMEYER, District Judge.

I. Procedural History

Plaintiff Ulysses Pryor alleges that, on March 27, 2006, he was wrongfully detained and injured by Defendants, Chicago Police Officers Edward McGovern and Todd Reykjalin. The Defendant officers deny having had any contact with Pryor during the evening in question, and contend that they were in fact responding to a call elsewhere at the time that Pryor claims to have had his run-in with police. In August 2009, Defendants moved for summary judgment, asserting that Pryor had not produced sufficient evidence to establish that McGovern and Reykjalin were the two officers who accosted and injured Pryor. An overview of the record is provided in the court's ruling on that motion. See Pryor v. City of Chicago, No. 07 C 2570, 2010 WL 431470 (N.D.Ill. Feb. 1, 2010). In short, Pryor could not, at the time of his deposition, recall any identifying characteristics that would enable him to establish that Defendants were the officers responsible for the incident. Pryor was unable to identify the officers in a photographic array, and he admitted that he could not recall any significant distinguishing traits of the offending officers. In addition, Pryor and the other eye-witnesses at the scene had divergent accounts of the events in question and offered several inconsistent descriptions of the officers involved. Pryor did testify, however, that he had written down a four-digit number that appeared on the offending officers' vehicle. Though he no longer remembered the number and could not produce the writing, Pryor said, he had reported the number to his attorney, who Pryor identified as “Lawson Jersey.” ¹ When pressed, Pryor stated that he believed the number might be # 1123, but he admitted that he was not certain. Defendants testified that, on the evening in question, they were assigned to a marked patrol car displaying the beat number: # 1114.

In an attempt to defeat summary judgment on the issue of Defendants' identity, Plaintiff produced the declaration of retired attorney Joan Sorensen. The declaration is neither dated nor notarized, but it does bear what appears to be Sorensen's signature. Sorensen's declaration states that she met with Pryor at her law office in March 2006, shortly after the alleged incident. At the time, Sorensen was a practicing lawyer with the firm of “Dombrowski and Sorensen.” During the March 2006 meeting, the declaration states, Pryor “indicated that he saw police car # 9674 in the alley at 4508 W. Adams on March 27, 2006.” A subsequent request to the Chicago Police Department under the Freedom of Information Act (“FOIA”)-also purportedly signed by Sorensen-confirmed that Officers McGovern and Reykjalin were assigned to the patrol car bearing that number on the night of the incident. ²

Plaintiff argued that Sorensen's declaration and the FOIA response, in combination with Pryor's own testimony, was sufficient to raise an issue of material fact as to whether Defendants were the officers who stopped and injured Pryor. The court accepted Plaintiff's argument, though not without expressing reservations concerning the authenticity of Sorensen's declaration. See Pryor, 2010 WL 431470 at *9-11. First, the court explained, the declaration did not comply with the requirements of 28 U.S.C. § 1746 because it was undated. Second, Sorensen did not play any role in drafting the declaration. In fact, none of the attorneys in this case had actually met with Sorensen before her declaration was submitted. Instead, the declaration was written entirely by Plaintiff's counsel Ed Fox based on unauthenticated notes and other materials provided by Joe Dombrowski, Sorensen's former law partner. (Fox Aff. ¶ 4-8.)

At the time, Plaintiff represented to this court that the notes constituted “Ms. Sorensen's contemporaneous notes taken during her [initial] meeting with Plaintiff” and asserted that the notes served as “proof of Ms. Sorensen's first hand and personal knowledge of the facts stated in her affidavit.” (Pl.'s Resp., D.E. 94 at 9.) Nevertheless, Fox admitted, he had no way of independently contacting Sorensen to confirm the accuracy of the notes or the declaration he had drafted. Instead, Fox simply provided the draft declaration to Dombrowski who promised to forward the document, in turn, to Sorensen. After a few days, Dombrowski returned to Fox a copy of the declaration bearing Sorensen's signature.

When defense counsel similarly contacted Dombrowski in an effort to reach Sorensen, Dombrowski refused to provide any forwarding information for Sorensen other than the mailing address: “General Delivery-Cayman Islands.” ³ As a result, Defendants were unable to locate Sorensen in order to probe the validity and authenticity of the declaration. In an effort to provide Defendants with that opportunity, the court reopened discovery to permit the depositions of Sorensen and Dombrowski. The court also instructed Plaintiffs to assist in locating Sorensen for this purpose and warned that “should Sorensen fail to surface, evidence concerning her investigation will be barred.” Pryor, 2010 WL 431470 at *11. Sorensen did indeed surface, but her deposition appears to have raised more questions than it answered. Accordingly, Defendants again move to strike Sorensen's declaration and seek leave to refile their motion for summary judgment. For the reasons explained below, the court grants Defendants' motion. Sorensen's affidavit is stricken in its entirety and Defendants are granted leave to renew their motion for summary judgment.

II. Sorensen's Testimony

In her deposition on March 31, 2010, Sorensen testified that she was “amazed” at having been contacted with respect to this litigation because she possessed no personal knowledge of Pryor's case. “I couldn't understand why I was being asked to give a deposition,” Sorensen said. “I have no recollection of [Pryor] ... The name did not ring a bell ... I know nothing about this.” (Sorensen Dep. at 23-24.) Sorensen further testified that she did not write the notes or the FOIA request attributed to her by Plaintiff and in her own purported declaration. ( Id. at 27-29.) Nor does Sorensen know who prepared those documents; she testified that she did not recognize the handwriting and was unsure whether she had ever actually seen the documents before. She explained that she had regularly used a stamp of her signature in the conduct of her legal practice, but she no longer knew where that stamp was. The signature on the FOIA request letter, Sorensen acknowledged, may have been generated by that stamp. Sorensen confirmed that she had no recollection of ever meeting or speaking with Pryor, and she was unequivocal in stating that she did not know any facts related to his case, including those attributed to her in the declaration.

In fact, Sorensen testified that she had no recollection of ever having signed the declaration that Plaintiff presented to this court. Though she “presume[d]” that she must have seen the declaration at some point “because it contains information regarding myself,” Sorensen initially stated that she was sure she had not seen any such document within at least the past year. ( Id. at 34-35.) ⁴ She nevertheless confirmed that the declaration did indeed bear what appeared to be her initials and signature:

Q: Is that, in fact, your signature?

A: That is, in fact, my signature.

Q: And so then did you sign that document?

A: Apparently I did.

Q: When?

A: I have no idea.

( Id. at 37.) After thoroughly reviewing the signed copy of the declaration, Sorensen modified her earlier testimony by saying: “It must have been sometime in September 2009 [that I signed the declaration]. So I have been wrong. I have some connection with this in the past year. I didn't recall that either.” ( Id. at 39.) While she acknowledged that the signature on the declaration was “absolutely” her signature, Sorensen nevertheless maintained that she could not remember ever having signed the document. Nor could she remember talking to anyone about the declaration or reviewing any of the notes or other documents referenced in the declaration. ( Id. at 46-50.) ⁵

III. Sorensen's Declaration is Inadmissable

[1] Rather than assuage the court's concerns regarding the declaration, Sorensen's testimony has cast more doubt on the validity and authenticity of that document. Sorensen's bizarre inability to remember anything at all about the circumstances of her purported involvement in this case or the production of her declaration just six months earlier is particularly disquieting. Strikingly, neither Plaintiff nor Sorensen has offered any explanation for how Sorensen's signature came to appear on a declaration containing facts to which she cannot now attest and the signing of which she cannot now recall. See Beckel v. Wal-Mart Associates, Inc., 301 F.3d 621, 623 (7th Cir.2002) ( “Affidavits, though signed under oath by the affiant, are typically and here written by the affiant's lawyer, and when offered to contradict the affiant's deposition are so lacking in credibility as to be entitled to zero weight in summary judgment proceedings unless the affiant gives a plausible explanation for the discrepancy.”) Under the circumstances, the court cannot accept Sorensen's declaration.

[2] What is clear at this point is that Sorensen herself purports to have no personal knowledge of Pryor's case or his claimed identification of the car number on Defenda...