Humes v. Rosario

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

ROBERT HUMES, )

)

Plaintiff, )

)

v. ) No. 3:19-CV-3050

)

SAMUEL ROSARIO, in his official )

and individual capacities; KENNY )

WINSLOW, in his official and )

individual capacities; and THE )

CITY OF SPRINGFIELD, ILLINOIS )

)

Defendants. )

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on the Motion for Summary

Judgment (d/e 26) filed by Defendants Kenny Winslow and the

City of Springfield, Illinois and on the Motion for Partial Summary

Judgment (d/e 27) filed by Plaintiff Robert Humes. For the

reasons set forth below, Defendants’ Motion (d/e 26) is GRANTED.

Plaintiff’s Motion (d/e 27) is GRANTED IN PART and DENIED IN

PART.

I. PROCEDURAL BACKGROUND

Plaintiff Robert Humes originally filed this suit in February

2019 against Samuel Rosario, who was at all times relevant

employed as a police officer for the City of Springfield; Kenny

Winslow, the Chief of Police (“Chief Winslow”); and the City of

Springfield, Illinois (“City”). Plaintiff sued Officer Rosario and Chief

Winslow in their official and individual capacities.

On June 26, 2019, Plaintiff filed a five-count Amended

Complaint. Plaintiff brings claims pursuant to 42 U.S.C. § 1983,

alleging that Officer Rosario unreasonably seized Plaintiff and

deprived Plaintiff of liberty without due process of law in violation

of the Fourth, Fifth, and Fourteenth Amendments to the United

States Constitution (Count One) and alleging that Chief Winslow

and the City failed to train, instruct, and supervise Officer Rosario

and other officers in the Springfield Police Department (Count

Two). Plaintiff also brings state law claims against Officer Rosario

for assault and battery (Counts Three and Four) and against the

City under a respondeat superior liability theory (Count Five).

In July, 2019, this Court dismissed Plaintiff’s Count Two

official capacity claims against Chief Winslow, and dismissed

Count Five to the extent that Plaintiff sought to hold the City liable

under § 1983 on a respondeat superior theory.

On July 6, 2020, the City and Chief Winslow moved for

summary judgment on Counts Two and Five. Also on July 6,

Plaintiff moved for summary judgment against Defendant Rosario

on Counts One, Three, and Four and for summary judgment

against the City on Count Five.

II. FACTS

The following facts are taken from the parties’ statements of

undisputed facts.

Defendant Rosario was at all times relevant employed as a

police officer for the City of Springfield. Defendant City of

Springfield is a governmental subdivision of the State of Illinois

and the supervising body of the Springfield Police Department.

Defendant Kenny Winslow was at all times relevant the Chief of

Police for the City of Springfield. On February 27, 2017,

Defendant Rosario encountered Plaintiff Humes at Plaintiff’s house

while investigating a report of a crime committed by someone other

than Plaintiff Humes. Defendant Rosario and Plaintiff Humes

became engaged in a verbal confrontation, which turned violent

after Defendant Rosario shoved Plaintiff. Defendant Rosario then

threw Plaintiff to the ground and punched him repeatedly. Video

footage of the incident, taken from Defendant Rosario’s body

camera and the body camera of his colleague, Officer Manzanares,

has been entered into evidence. Plaintiff was not charged with any

crime in connection with this encounter, but Defendant Rosario

was convicted of Official Misconduct and Battery following a jury

trial in Illinois court in August, 2019.

On February 27, 2017, Chief Winslow ordered an outside

criminal investigation of the incident and ordered that Defendant

Rosario be placed on administrative leave; after an internal

investigation of the incident, Chief Winslow recommended that

Officer Rosario be terminated. The parties agree that “Springfield

Police Officers, including Defendant Rosario, have been trained not

to commit criminal assault and battery,” and that Defendant

Rosario also received education on the proper use of force

pursuant to the Fourth Amendment and other relevant laws.

Plaintiff filed his initial complaint in this matter on February

27, 2019.

III. JURISDICTION

This Court has subject matter jurisdiction because Plaintiff

brings claims based on 42 U.S.C. § 1983, a federal law. See 28

U.S.C. ' 1331 (AThe district courts shall have original jurisdiction

of all civil actions arising under the Constitution, laws, or treaties

of the United States@). The Court has supplemental jurisdiction

over Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.

Venue is proper because a substantial part of the events or

omissions giving rise to Plaintiff=s claims occurred in this district.

28 U.S.C. ' 1391(b)(2).

IV. LEGAL STANDARD

Summary judgment is proper if the movant shows that no

genuine dispute exists as to any material fact and that the movant

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

The movant bears the initial responsibility of informing the court of

the basis for the motion and identifying the evidence the movant

believes demonstrates the absence of a genuine issue of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A

genuine dispute of material fact exists if a reasonable trier of fact

could find in favor of the nonmoving party. Carrol. v. Lynch, 698

F.3d 561, 564 (7th Cir. 2012). When ruling on a motion for

summary judgment, the court must consider the facts in the light

most favorable to the nonmoving party, drawing all reasonable

inferences in the nonmoving party’s favor. Egan Marine Corp. v.

Great Am. Ins. Co. of New York, 665 F.3d 800, 811 (7th Cir. 2011).

V. ANALYSIS

A. No Disputed Issue of Material Fact Exists with Respect to

Defendant Rosario’s Liability on Counts 1, 3, and 4.

Defendant Samuel Rosario has not appeared or filed an

answer to Plaintiff’s Complaint. Rather than moving for an entry of

default against Defendant Rosario pursuant to Federal Rule of Civil

Procedure 55(a), Plaintiff has elected to move for summary

judgment against Defendant pursuant to Rule 56. Unlike a default

judgment, summary judgment requires Plaintiff to affirmatively

show that no genuine issue of material fact exists. See Tobey v.

Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993), as amended

on denial of reh'g (Feb. 22, 1993) (“Rule 56(e) provides that if the

adverse party does not respond to the motion, summary judgment

shall be entered ‘if appropriate’—that is, if the motion

demonstrates that there is no genuine issue of material fact and

that the movant is entitled to judgment as a matter of law.”)

Plaintiff’s summary judgment motion (d/e 27) adequately

shows that Plaintiff is entitled to summary judgment against

Defendant Rosario on Counts 1, 3, and 4. As Defendant Rosario

has not responded to Plaintiff’s Amended Complaint (d/e 16), the

uncontradicted factual allegations therein are deemed admitted.

See T.L. Swint Indus., Inc. v. Premiere Sales Grp., Inc., 16 F. Supp.

2d 937, 938 n.1 (N.D. Ill. 1998). Furthermore, Plaintiff has

introduced evidence showing that Defendant Rosario was convicted

of Official Misconduct and Battery in the Circuit Court for the

Seventh Judicial Circuit of Illinois for the conduct giving rise to

this suit. Plaintiff has also introduced a video recording of

Defendant Rosario assaulting Plaintiff. Having reviewed the

pleadings and the evidence submitted by Plaintiff Humes, the

Court finds that Defendant Rosario is liable for willfully and

maliciously violating Plaintiff’s Fourth, Fifth, and Fourteenth

Amendment rights under the U.S. Constitution. The Court further

finds that Defendant Rosario is liable to Plaintiff for tortious

assault and tortious battery under the common law of Illinois.

While Plaintiff Humes has shown that he is entitled to

summary judgment against Defendant Rosario as to liability,

significant questions of fact remain with respect to damages.

Plaintiff has not stated the amount of his claimed damages on

Counts One, Three, or Four, nor has he offered sufficient evidence

for the Court to determine his damages with any degree of

specificity. Further briefing on the issue of damages is therefore

required.

B. The City and Chief Winslow Are Entitled to Summary

Judgment on Plaintiff’s Failure to Train and Supervise

Claims

Plaintiff’s Amended Complaint alleges that Chief Winslow and

the City “failed to properly train, instruct, and supervise”

Defendant Rosario and that this failure caused Defendant Rosario

to attack Plaintiff. See d/e 16, ¶¶ 28–29. According to Plaintiff

Humes, this failure deprived him of his civil rights under the

Fourth, Fifth, and Fourteenth Amendments in violation of 42

U.S.C. § 1983. See id.

A municipality can be liable under § 1983 where a custom,

policy, or practice effectively caused or condoned the alleged

constitutional violations. Monell v. Dep’t of Soc. Servs. of the City

of New York, 436 U.S. 658, 690-91 (1978); see Matthews v. City of

E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012). A claim against a

city employee in his official capacity is treated as a claim against

the city. Kentucky v. Graham, 473 U.S. 159, 165 (1985).

To state a Monell claim, a plaintiff must allege that (1) he has

suffered the deprivation of a constitutional right and (2) that an

official custom or policy of the local government caused that

deprivation. See Wagner v Washington Cty., 493 F.3d 833, 836

(7th Cir. 2007). A plaintiff may establish an official policy or

custom by showing: (1) an express policy that, when enforced,

causes a constitutional deprivation; (2) a widespread practice that,

although not authorized by written law or express municipal

policy, is so permanent and well settled as to constitute a “custom

or usage” with the force of law; or (3) an allegation that the

constitutional injury was caused by a person with final

policymaking authority. Palmer v. Marion Cty., 327 F.3d 588,

594-95 (7th Cir. 2003) (citations omitted).

In limited circumstances, a municipality’s decision not to

train employees can rise to the level of a government policy.

Connick v. Thompson, 563 U.S. 51, 61 (2011). A municipality’s

failure to train and supervise employees constitutes a policy or

custom if it “amount[s] to ‘deliberate indifference to the rights

persons with whom the [untrained employees] come into contact.’”

Id. (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388

(1989)); see also Sornberger v. City of Knoxville, Ill., 434 F.3d

1006, 1029 (7th Cir. 2006) (“Establishing Monell liability based on

evidence of inadequate training or supervision requires proof of

‘deliberate indifference’ on the part of the local government.”).

“A pattern of similar constitutional violations by untrained

employees is ‘ordinarily necessary’ to demonstrate deliberate

indifference for purposes of failure to train.” Connick, 563 U.S. at

62 (quoting Bd. of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397,

409 (1997)) (further noting that “[w]ithout notice that a course of

training is deficient in a particular respect, decisionmakers can

hardly be said to have deliberately chosen a training program that

will cause violations of constitutional rights”). However, in rare

cases, a single incident may be sufficient to demonstrate deliberate

indifference if the unconstitutional consequences of failing to train

are obvious. Canton, 489 U.S. at 390 n. 10 (giving hypothetical

example that city policymakers know that officers will be required

to arrest fleeing felons and arm the officers with guns to allow

them to do so; therefore, the need to train the officers in the

constitutional limitation on the use of deadly force is so obvious

that the failure to do so could be characterized as deliberate

indifference).

Here, Plaintiff’s Complaint alleges that various sources

including Defendant Rosario’s colleagues on the force and

“[i]nternal affairs files” attest that Defendant Rosario was clearly

struggling with personal problems in the days prior to his assault

on Plaintiff Humes. See id. ¶¶ 40–44. These factual allegations

were sufficient to state a claim under the liberal pleading

standards applicable to a Rule 12(b)(6) motion, but in the absence

of supporting evidence such allegations cannot survive summary

judgment. The City and Chief Winslow have denied all of the

factual allegations relevant to Count II. See d/e 18, pp. 7–8.

Plaintiff has not introduced any evidence, whether documentary or

in the form of depositions, that might convince a reasonable finder

of fact of the existence of a pattern of unconstitutional violations.

In fact, the two briefs filed by Plaintiff since Defendants’ Answer

was filed focus solely on the respondeat superior claims in Count V

and make no mention of the Count II failure to train and supervise

claims. See d/e 29, 31. Summary judgment is the “put up or

shut up” moment in a lawsuit, when a plaintiff must show what

evidence it has that would convince a factfinder to accept its

version of events. Johnson v. Cambridge Indus., Inc., 325 F.3d

892, 901 (7th Cir. 2003). Since Plaintiff has not presented any

evidence demonstrating that his injuries were the result of a policy

or custom in the Springfield Police Department, the City and Chief

Winslow are entitled to summary judgment on Count II.

C. Plaintiff Humes’s Respondeat Superior Claims Against the

City Are Time-Barred

(1) The Illinois Local Government Tort Immunity Act’s

One-Year Statute of Limitations Applies to

Plaintiff’s Respondeat Superior Claims

In Count V of his Complaint, Plaintiff alleges that the City is

vicariously liable for the various torts committed by Defendant

Rosario outlined in Counts I, III, and IV. The City argues that it is

entitled to summary judgment on this respondeat superior claim

because Plaintiff’s claims are time-barred pursuant to the one-year

statute of limitations provided by the Illinois Local Government

Tort Immunity Act (“Tort Immunity Act”). See d/e 26, p. 3; 745

ILCS 10/8-101(a).

745 ILCS 10/8-101(a) prohibits plaintiffs from filing state law

tort claims against local government entities such as the City more

than one year after the accrual of the cause of action. See 745

ILCS 10/8-101(a). Plaintiff concedes that this one-year statute of

limitations applies to his respondeat superior claim. See d/e 29.

Plaintiff’s injury occurred on February 27, 2017 and Plaintiff filed

his initial Complaint exactly two years later on February 27, 2019.

Nevertheless, Plaintiff argues that Count V is not time-barred

because the City waived or forfeited its statute of limitations

defense by failing to explicitly raise said defense in an Answer to

Plaintiff’s Amended Complaint as required by Federal Rule of Civil

Procedure 8(c). See id., pp. 3–4.

The City responds that the affirmative defense of “immunity”

under the Tort Immunity Act, as raised in the Answer (d/e 18),

included the statute of limitations defense. See d/e 30, p. 3. The

City also argues that it should not forfeit its statute of limitations

defense regardless of whether it pleaded said defense in its Answer,

because Plaintiff was not surprised or prejudiced by the City’s

failure to specifically plead a statute of limitations defense prior to

the filing of Defendants’ Motion for Summary Judgment (d/e 26).

See d/e 30, p. 5.

(2) The City Has Not Forfeited Its Statute of

Limitations Defense Because No Unfairness or

Prejudice Resulted from Delay in Raising Statute of

Limitations

Pursuant to Federal Rule of Civil Procedure 8(c), a defendant

who wishes to raise an affirmative defense, such as a statute of

limitations, must plead the defense in its answer to the complaint.

See Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997). A

failure to comply with Rule 8(c) does not normally result in the

forfeiture of an affirmative defense, because a district court may

choose to allow a defendant to belatedly amend its Answer

pursuant to Rule 15(a), or to add new affirmative defenses in a

pretrial motion. See Reed v. Columbia St. Mary's Hosp., 915 F.3d

473, 479 (7th Cir. 2019); Siwik v. Marshall Field & Co., 945 F.

Supp. 1158, 1166 (N.D. Ill. 1996) (allowing statute of limitations

defense even though defendant raised it in summary judgment

motion rather than by “literally s[eeking] leave to amend under

Rule 15(a)”). Forfeiture of an affirmative defense may result from a

failure to comply with Rule 8(c), however, if the defendant’s delay

results in unfair surprise or prejudice to the plaintiff. See Reed,

915 F.3d at 478; Venters, 123 F.3d at 967 (“Once the availability of

an affirmative defense is reasonably apparent, the defendant must

alert the parties and the court to his intent to pursue that defense.

A defendant should not be permitted to ‘lie behind a log’ and

ambush a plaintiff with an unexpected defense.”) (internal citations

omitted); Cooley v. Bd. of Educ. of the City of Chicago, 761 F.

Supp. 2d 808, 812 (N.D. Ill. 2011) (holding that defendant who

waited until after the end of discovery to “sandbag the adversary”

by asserting the Tort Immunity Act’s statute of limitations forfeited

the defense).

Here, the potential for surprise or prejudice due to the City’s

delay is low. Plaintiff’s decision to file his complaint on the last

day of the two-year limitation period applicable to his § 1983

claims indicates that defense counsel was likely aware of the

potential timeliness issues in this matter well before the close of

discovery. The City’s assertion of a generalized Tort Immunity Act

“immunity” defense in the Answer to Plaintiff’s Amended

Complaint also provided Plaintiff with some measure of notice.

Furthermore, the application of the Tort Immunity Act’s

statute of limitations to Plaintiff’s state law claims against the City

is straightforward and it is unlikely that additional time for briefing

or discovery would have allowed Plaintiff to convincingly argue that

Count V was timely filed. Plaintiff had ample time to reply to the

City’s summary judgment motion but has not offered any

argument other than forfeiture in response to the City’s statute of

limitations defense. Nor has Plaintiff suggested that such an

argument might have been formulated if discovery or additional

time for briefing had been available. See Robinson v. Bd. of Educ.

of City of Chicago, No. 96 C 92, 1999 WL 1209493, at *6 (N.D. Ill.

Feb. 4, 1999) (holding that defendants had not forfeited statute of

limitations claim raised for the first time in summary judgment

motion because plaintiff was not prejudiced); Cf. Reed, 915 F.3d at

482 (“[T]he prejudice to [the defendant] from the delayed assertion

of the defense is especially acute here because . . . the law

governing the hospital’s affirmative defense is still highly

contestable and its application may well depend on a host of facts

that would need to be explored in some depth.”); Venters, 123 F.3d

at 968 (noting that defendants raised statute of limitations defense

for the first time in a reply memorandum filed the night before oral

argument, such that plaintiff had no opportunity to respond in

writing).

It would have been advisable for the City to explicitly plead its

statute of limitations defense sometime before the close of

discovery. See Cooley, 761 F. Supp. at 812 (“If there was indeed a

limitations problem with the claim, that would have been apparent

from day one. And the Immunity Act should be at the top of the

mental checklist of counsel who represent local governments and

their employees.”). Still, since the City gained no unfair tactical

advantage by its delay, the Court does not find that the City has

forfeited its statute of limitations defense. Accordingly, Plaintiff’s

respondeat superior claims are time-barred, and the City is

entitled to summary judgment on Count V.

VI. CONCLUSION

For the reasons stated, the Motion for Summary Judgment

(d/e 26) filed by Defendants Kenny Winslow and the City of

Springfield is GRANTED. The remaining claims against Kenny

Winslow and the City of Springfield are DISMISSED. Plaintiff

Humes’s Motion for Summary Judgment (d/e 27) is GRANTED IN

PART, in that summary judgment is entered in favor of Plaintiff

Humes against Defendant Rosario as to liability on Counts One,

Three, and Four, and DENIED IN PART with respect to Plaintiff’s

claims against the City of Springfield. The Final Pretrial

Conference scheduled for April 5, 2021 at 2:00 p.m. and the Jury

Trial scheduled for April 20, 2021 at 9:00 a.m. are VACATED. A

status hearing in this matter is scheduled for Friday, February 12,

2021 at 11:00 a.m.

ENTERED: February 1, 2021

FOR THE COURT:

s/Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE