# Humes v. Rosario

> District Court, C.D. Illinois · February 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10136170

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** February 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10136170

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10136170. Public record. Not legal advice.