Spalding v. City of Chi.

• Decision Date: 11 May 2016
• Docket Number: 12 C 8777
• Citation: 186 F.Supp.3d 884
• Parties: Shannon Spalding and Daniel Echeverria, Plaintiffs, v. City of Chicago, Juan Rivera, James O'grady, Nicholas Roti, Joseph Salemme, Thomas Mills, Maurice Barnes, and Robert Cesario, Defendants.
• Court: U.S. District Court — Northern District of Illinois

186 F.Supp.3d 884

Shannon Spalding and Daniel Echeverria, Plaintiffs,

v.City of Chicago, Juan Rivera, James O'grady, Nicholas Roti, Joseph Salemme, Thomas Mills, Maurice Barnes, and Robert Cesario, Defendants.

12 C 8777

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

Signed May 11, 2016

Christopher Rudolf Smith, Emily J. Stine, Smith, Johnson & Antholt, LLC, James M. Baranyk, Second City Law, P.C., Jeffrey Lynn Taren, Miriam N. Geraghty, Kinoy, Taren & Geraghty, P.C., Chicago, IL, for Plaintiffs.

Alan Sterling King, Alejandra Lara, Francesco Michele Nardulli, Leslie Dean Davis, Noreen H. Cull, Drinker Biddle & Reath LLP, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Gary Feinerman, United States District Judge

Shannon Spalding and Daniel Echeverria, both officers with the Chicago Police Department ("CPD"), brought this suit under 42 U.S.C. § 1983 and Illinois law against the City of Chicago and several CPD officers, of whom Juan Rivera, James O'Grady, Nicholas Roti, Joseph Salemme, Thomas Mills, Maurice Barnes, and Robert Cesario remain as defendants. Rivera was Chief of the CPD Internal Affairs Division ("IAD"); O'Grady was Commander of the CPD Narcotics Division; Roti was Commander of the Narcotics Division (prior to O'Grady) and Deputy Chief of Organized Crime, the bureau that includes the Narcotics Division; Salemme was Commander of the CPD Fugitive Apprehension Division ("FAU"); Mills was supervisor of the FAU's Third Watch team; Barnes was an FAU sergeant; and Cesario was an FAU lieutenant.

The amended complaint alleges that Defendants violated the First Amendment and the Illinois Whistleblower Act ("IWA"), 740 ILCS § 174/15, by conspiring to retaliate and actually retaliating against Plaintiffs for reporting criminal misconduct by other CPD officers to the Federal Bureau of Investigation ("FBI") and the IAD, and also for bringing and speaking to the media about this lawsuit. Doc. 44. Earlier in the litigation, Defendants moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(6), Docs. 57, 59-60, and the court denied the motion. Docs. 80-81 (reported at 24 F.Supp.3d 765 (N.D.Ill.2014) ). Discovery has closed and a jury trial is set for May 31, 2016. Doc. 136.

Defendants have moved for summary judgment on all claims. Doc. 164. Briefing concluded on March 25, 2016, and argument was held on March 30, 2016. The motion is: (1) denied on the First Amendment retaliation claim; (2) denied on the Monell claim against the City; (3) granted on the § 1983 conspiracy claim, except for the alleged conspiracies (a) among O'Grady, Roti, and Rivera, and (b) among Barnes, Cesario, and Salemme; and (4) granted on the IWA claim as to Roti and Rivera, but not as to the other defendants.

Background

A. Evidentiary Issues

Before setting forth the factual background, the court resolves evidentiary issues raised by the parties.

1. Defendants' Hearsay Objections

In their response to Plaintiffs' Local Rule 56.1(b)(3)(C) statement of additional facts, Defendants challenge several of Plaintiffs' factual assertions as resting on inadmissible "hearsay within hearsay." Doc. 176 at ¶¶ 20, 24, 26, 34, 38, 55, 69.

In ¶ 24 of their Local Rule 56.1(b)(3)(C) statement, Plaintiffs rely on Spalding's deposition testimony to assert that Sergeant James Padar told Plaintiffs and Officer Anthony Hernandez, Spalding's boyfriend, that O'Grady (who, as noted, was Commander of the Narcotics Division) had called Plaintiffs "IAD rats" and had prohibited Padar from working with them or from sending them backup in an emergency. Id . at ¶ 24 (citing Doc. 173-1 at 25). Defendants contend that O'Grady's statements to Padar and Padar's statements to Spalding (relaying O'Grady's statements) are inadmissible hearsay.

"Under Rule 805, both levels of hearsay must come within exceptions to the hearsay rule for hearsay within hearsay to be admissible." United States v. Severson , 49 F.3d 268, 271 (7th Cir.1995) ; see Fed. R. Evid. 805 ("Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule."). Thus, as to ¶ 24, both the "inner layer"—O'Grady's statements to Padar—and "outer layer"—Padar's statements to Spalding—must fall within a hearsay exception or exclusion for Spalding's testimony to be admissible. Halloway v. Milwaukee Cnty. , 180 F.3d 820, 824–25 & n. 4 (7th Cir.1999).

Because O'Grady is a defendant, his statements to Padar are admissible as opposing party statements under Rule 801(d)(2)(A), which provides that a "statement [that] is offered against an opposing party and ... was made by the party in an individual or representative capacity" is not hearsay. Fed. R. Evid. 801(d)(2)(A) ; see Halloway , 180 F.3d at 825 n. 4. In addition, O'Grady's statements are not hearsay because they are offered not "to prove the truth of the matter asserted," Fed. R. Evid. 801(c)(2) —that Plaintiffs are "rats"—but rather "to show what [O'Grady] himself" believed about Plaintiffs, United States v. Smith , 816 F.3d 479, 482 (7th Cir.2016). "Statements that constitute verbal acts (e.g., ... slander) are not hearsay because they are not offered for their truth." Schindler v. Seiler , 474 F.3d 1008, 1010 (7th Cir.2007) ; see also Carter v. Douma , 796 F.3d 726, 735 (7th Cir.2015) (holding that an officer's verbal instruction to an informant was not hearsay because "[s]uch verbal acts are not statements offered to prove the truth of their contents"). For both of these reasons, O'Grady's statements to Padar are not barred by the hearsay rule.

Padar's statements, meanwhile, came in the context of his conveying to Plaintiffs and Hernandez that O'Grady had denied their request for funds to develop a confidential informant for a narcotics investigation. Doc. 176 at ¶¶ 22-24. Because (as detailed below) Plaintiffs were required to convey such requests to O'Grady after obtaining approval from Padar, and because Padar had presented Plaintiffs' request to O'Grady, Padar's statement falls under Rule 801(d)(2)(D)'s exclusion from the hearsay rule of statements "offered against an opposing party" and "made by the party's agent or employee on a matter within the scope of that relationship and while it existed." Fed. R. Evid. 801(d)(2)(D) ; see Bordelon v. Bd. of Educ. of Chi. , 811 F.3d 984, 992 (7th Cir.2016). Although "[n]ot everything that relates to one's job falls within the scope of one's agency or employment," Padar acted as O'Grady's agent, and his duties clearly "related to the decisionmaking process affecting" Plaintiffs' request for funds to develop a confidential informant. Bordelon , 811 F.3d at 992 (internal quotation marks omitted).

The court thus accepts as true ¶ 24 of Plaintiffs' Local Rule 56.1(b)(3)(C) statement. Although Defendants offer factual denials of ¶ 24, the parties' genuine factual dispute must be resolved in Plaintiffs' favor on summary judgment. See Woods v. City of Berwyn , 803 F.3d 865, 867 (7th Cir.2015). The same holds for Defendants' factual challenges to the Local Rule 56.1(b)(3)(C) assertions discussed below, at least to the extent those assertions do not rest on inadmissible hearsay.

Plaintiffs' ¶ 20 asserts: "On an unknown date to Plaintiffs, information that Plaintiffs had reported criminal misconduct by a sworn officer and were working with an outside investigation was leaked within the department and became known to Defendant Commander O'Grady. (Spalding Dep. pp. 85-89)." Doc. 176 at ¶ 20. As with ¶ 24, Plaintiffs support this assertion by citing to Spalding's testimony that Padar had told her that O'Grady had called Plaintiffs "IAD rats." Doc. 173-1 at 24-25. For the reasons discussed above with regard as to ¶ 24, the hearsay rule does not bar this evidence.

Plaintiffs' ¶ 26 asserts: "Rivera responded [to Spalding] stating 'That might be my fault; I might have f......ed up.' Rivera then told Spalding that he had informed Chief Ernie Brown (the current Chief of Organized Crime) about [Plaintiffs'] role in the investigation and [Brown] had told Deputy Chief Nick Roti and Commander O'Grady and his command staff. (Spalding Dep. pp. 98-100)." Id . at ¶ 26. (As noted, Rivera was Chief of IAD.) Because Rivera is a party opponent, his statement to Spalding that he told Brown about Plaintiffs' role in the investigation is not hearsay under Rule 801(d)(2)(A). See Halloway , 180 F.3d at 825 n. 4. And although Brown 's statements to Roti and O'Grady may be inadmissible hearsay, Plaintiffs do not rely on them: they rely only on Rivera's statements about what Brown did (telling Roti and O'Grady about Plaintiffs' role in the investigation), and not on Rivera's statements about what Brown told Rivera about what Brown had told others. Accordingly, ¶ 26 is deemed true.

Plaintiffs' ¶ 34 asserts: "Juan Rivera told Plaintiffs that he was present at the meeting where it was decided that Plaintiffs would be reassigned from Unit 543. Also present were Nick Roti, James O'Grady, Beatrice Cuello, and others. (Spalding Dep., p. 109.) At that meeting, O'Grady said that 'I'm not taking those F-ing IAD rats back; and furthermore, God help them if they need help on the street ... it's not going to come.' (Spalding Dep., p. 111)." Doc. 176 at ¶ 34. Because Rivera and O'Grady are both party opponents, O'Grady's statement to Rivera and Rivera's statement to Spalding are non-hearsay under Rule 801(d)(2)(A). See Halloway , 180 F.3d at 825 n. 4.

Plaintiffs' ¶ 38 asserts: "After [Plaintiffs] informed Peter Koconis that they had been removed from their detail of 543, Koconis had a telephone conversation with Deputy Superintendent Beatrice Cuello inquiring why [Plaintiffs] would be removed from their assignments. During this conversation, Cuello told Koconis that both [Plaintiffs] were good officers and Cuello never had experienced any problems with them. However, she said that during a meeting where she was present, which included Deputy Chief James Jackson, Commander ...