Rogers v. City Of Harvey

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TRUMAN ROGERS,

Plaintiff,

v. Case No. 16-cv-05871

CITY OF HARVEY, ERIC J. Judge Martha M. Pacold

KELLOGG, DENARD EAVES,

UNKNOWN HARVEY POLICE

OFFICERS, and OFFICER J.

WINSTON

Defendants.

MEMORANDUM OPINION AND ORDER

This case is about an arrest by police officers of the City of Harvey. Plaintiff

Truman Rogers sued the City of Harvey, Defendant Eric Kellogg (the City’s mayor),

Denard Eaves (the City’s Policy Chief), unknown Harvey police officers, and Officer

Justin Winston under 42 U.S.C. § 1983 for excessive force in violation of his

constitutional rights, as well as under state law for false arrest, malicious

prosecution, and battery. Before the court is Defendants’ motion for summary

judgment on all claims [75]. The motion is granted in part and denied in part.

Background

In deciding Defendants’ motion for summary judgment, the court views the

evidence in the light most favorable to Rogers. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). The following facts are undisputed

unless otherwise noted. On January 12, 2015, Rogers’s car crashed into a tree

while he was driving in the City of Harvey. DSOF, [77] ¶ 13.1 Rogers got out of his

1 Bracketed numbers refer to docket entries and are followed by the page or paragraph

number. Page numbers refer to the CM/ECF page number. Citations to the parties’ Local

Rule 56.1 Statements of Fact are identified as follows: “DSOF” for Defendants’ Statement of

Facts, [77]; “PSOF” for Rogers’s Statement of Facts, [87] at 6–7; “Pl.’s Resp. DSOF” for

Rogers’s response to Defendants’ Statement of Facts, [87] at 1–6; and “Def.’s Resp. PSOF”

for Defendants’ response to Rogers’s Statement of Facts, [90].

car, crossed the street, and entered a store. [77] ¶ 14. Rogers testified that he was

attempting to make a call or buy a phone in order to have the car towed. [77] ¶ 14.

Bystanders who witnessed the crash called the police. [77] ¶ 16. Harvey

police officers arrived and entered the store while Rogers was inside. [77] ¶ 15.

Rogers testified that the officers approached him as he was waiting in line for the

cashier and asked about the accident. [76-1] at 51. Rogers told them that the car

was his, and that his license and insurance documentation were in the car. [76-1]

at 50–51. The officers asked Rogers to leave the store, and Rogers asked if he was

being detained. [76-1] at 51. The officers said no, so Rogers indicated that he

wanted to finish checking out in the store. [76-1] at 51. The officers then exited the

store. [76-1] at 52.

Shortly after, Officer Winston entered the store and asked Rogers to step

outside. [77] ¶ 18. Rogers testified that he again asked if he was being detained,

and turned back around to finish checking out because he was next in the line at

the checkout counter. Pl.’s Resp. DSOF, [87] ¶¶ 20, 24; [76-1] at 52. According to

Winston, Rogers instead tried to walk past Winston to leave. [77] ¶ 24. The parties

agree that Winston then used force: Rogers says Winston “snatched [Rogers’s] arm

and then pulled [him] hard with [his] arm, lifted [him] up in the air. And [Rogers]

came down . . . face down into the floor,” which Defendants refer to as an “arm-bar

take down.” [77] ¶¶ 20, 25. Rogers was then arrested. [77] ¶ 26.

According to Rogers, Winston handcuffed Rogers’s hands behind his back and

jerked him upwards. [76-1] at 54. Rogers, who heard his wrist crack and felt his

wrist go cold, screamed in pain and told Winston he needed to go to the hospital.

[76-1] at 54. Instead, Winston put Rogers in the squad car, took him to the station,

and put him in a cell, where he remained for one to two hours. [76-1] at 54. After

Rogers was released on bond, his brother took him to the hospital. [76-1] at 55–56.

Rogers had a broken arm and clavicle, and a black and swollen left eye. [76-1] at

57, 59. He had surgery done on his wrist, which left a 9-inch scar. [76-1] at 58–59.

Rogers was charged with resisting or obstructing a peace officer, driving too

fast for prevailing conditions, and driving without insurance, but on June 2, 2015,

the case was “stricken off [with] leave to reinstate.” [77] ¶¶ 26–27. In June 2016,

Rogers brought this action. [1]. Defendants now move for summary judgment on

all claims. [75].

Discussion

Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). 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 (1986). The substantive law controls which

facts are material. Id.

The party seeking summary judgment has the burden of establishing that

there is no genuine dispute as to any material fact. See Celotex, 477 U.S. at 323.

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 250 (quotation and footnote omitted). Construing the

evidence and facts supported by the record in favor of the nonmoving party, the

court gives the nonmoving party “the benefit of reasonable inferences from the

evidence, but not speculative inferences in [its] favor.” White v. City of Chi., 829

F.3d 837, 841 (7th Cir. 2016) (internal citations omitted). “The controlling question

is whether a reasonable trier of fact could find in favor of the non-moving party on

the evidence submitted in support of and opposition to the motion for summary

judgment.” Id.

I. § 1983 Claims

The court begins with Rogers’s constitutional claims under 42 U.S.C. § 1983.

Count 1 of Rogers’ complaint, entitled “Claims Pursuant to 42 U.S.C. Section 1983

for Excessive Force,” references a number of constitutional violations, including but

not limited to excessive force, by all Defendants. [1] at 2–5. Defendants seek

summary judgment on these claims, arguing that as a matter of law, the record

does not support a violation of Rogers’s constitutional rights.

In their summary judgment briefing, both parties focus their arguments on

the Fourth Amendment rights implicated during Rogers’s arrest. However,

Rogers’s response brief states in passing: “Plaintiff also claims that he was denied

adequate medical care in violation of his constitutional rights under the 8th and

14th Amendments.” [86] at 1. Rogers does not set forth the evidentiary basis for

this claim or make any arguments to support it. “As the ‘put up or shut up’ moment

in a lawsuit, summary judgment requires a non-moving party to respond to the

moving party’s properly-supported motion by identifying specific, admissible

evidence showing that there is a genuine dispute of material fact for trial.” Grant v.

Trustees of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017). By failing to expand on

this claim in his response brief, Rogers has forfeited it. See Palmer v. Marion Cty.,

327 F.3d 588, 597 (7th Cir. 2003) (claims not addressed in response to summary

judgment are deemed abandoned). The same principle applies to any claims

against the unidentified Harvey police officers: Rogers has pursued claims against

only Winston, the City, Kellogg, and Eaves.

With the scope limited to the claims that Rogers supports and argues (arrest

without probable cause and excessive force in violation of the Fourth Amendment),

the court addresses Defendants’ arguments for summary judgment in turn.

Defendants contend: (1) there was probable cause for Rogers’ arrest, (2) Winston’s

use of force was objectively reasonable, and (3) there is no basis for a Monell claim

against the municipal defendants.

A. Probable Cause for Seizure

Rogers alleges that his arrest violated his Fourth Amendment right to be free

from unreasonable seizures. It is “not a violation of the Fourth Amendment to

arrest an individual for even a very minor traffic offense.” Williams v. Brooks, 809

F.3d 936, 942 (7th Cir. 2016) (quoting Jackson v. Parker, 627 F.3d 634, 639 (7th Cir.

2010)); see also Atwater v. City of Lago Vista, 532 U.S. 318, 323 (2001). However, an

arrest is not valid under the Fourth Amendment unless the arrest is supported by

probable cause, meaning “the totality of the facts and circumstances known to a

reasonable arresting officer would support the belief that the suspect has committed

or is committing a crime.” Lawrence v. Kenosha Cty., 391 F.3d 837, 842 (7th Cir.

2004) (quoting Driebel v. City of Milwaukee, 298 F.3d 622, 643 (7th Cir. 2002)). The

question whether there is probable cause “typically falls within the province of the

jury.” Sheik–Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994). On the other

hand, “a conclusion that probable cause existed as a matter of law is appropriate

when there is no room for a difference of opinion concerning the facts or the

reasonable inferences to be drawn from them.” Id.; see also Maxwell v. City of

Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993) (“If the underlying facts supporting

the probable cause determination are not in dispute, the court can decide whether

probable cause exists.”).

Defendants contend that Winston had probable cause to arrest Rogers for

leaving the scene of an accident because Winston found Rogers in the store—a

location other than the scene of an accident.2 Rogers argues that Winston did not

see Rogers leave the scene of the accident. When Winston arrived at the scene, he

merely observed that Rogers’s car was off the road and looked like it had been in an

accident. [77] ¶ 21. However, Rogers testified that he told the other officers at the

scene that the car outside was his. See [76-1] at 51 (“[The officers] were asking me

was that my car across the street, and I told them yes.”). A reasonable officer in

Winston’s position could infer that Rogers had left his car to go inside the store.

However, the analysis is not as simple as Defendants claim. Defendants’

position appears to be that physically leaving the scene of any accident is a crime,

but they do not develop this argument under Illinois law. “The existence of

2 Rogers points out that he was never charged with leaving the scene of an accident.

See [76-1] at 23. That may be true, but it does not change the probable cause analysis.

Probable cause “is an absolute defense to any § 1983 claim against a police officer for false

arrest or false imprisonment,” and “an arrest can be supported by probable cause that the

arrestee committed any crime, regardless of the officer’s belief as to which crime was at

issue.” Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 713–715 (7th Cir. 2013).

probable cause or arguable probable cause depends, in the first instance, on the

elements of the predicate criminal offense(s) as defined by state law.” Abbott v.

Sangamon Cty., Ill., 705 F.3d 706, 715 (7th Cir. 2013). To prevail, Defendants must

show as a matter of law that there was probable cause to arrest Rogers under

Illinois law. Defendants rely on Harris v. City of Harvey, No. 97-cv-02823, 2000 WL

1468746 (N.D. Ill. Sept. 29, 2000), where the court applied 625 ILCS 5/11-401(a).

That provision requires drivers of vehicles “involved in a motor vehicle accident

resulting in personal injury to or death of any person” to “remain at the scene of the

accident until the requirements of Section 11-403 have been fulfilled.” Id. at *8 & n.

152 (quoting 625 ILCS 5/11-401(a)). It has no application here, since it is

undisputed that the accident involved only Rogers and did not cause any personal

injury or death.

In their reply brief, [89] at 2, Defendants clarify that they are arguing

Winston had probable cause to arrest Rogers for a violation of 625 ILCS 5/11-404,

which provides in relevant part:

Duty upon damaging unattended vehicle or other property.

(a) The driver of any vehicle which collides with or is involved in a motor

vehicle accident with any vehicle which is unattended, or other property,

resulting in any damage to such other vehicle or property shall

immediately stop and shall then and there either locate and notify the

operator or owner of such vehicle or other property of the driver’s name,

address, registration number and owner of the vehicle the driver was

operating or shall attach securely in a conspicuous place on or in the

vehicle or other property struck a written notice giving the driver’s

name, address, registration number and owner of the vehicle the driver

was driving and shall without unnecessary delay notify the nearest

office of a duly authorized police authority and shall make a written

report of such accident when and as required in Section 11-406. Every

such stop shall be made without obstructing traffic more than is

necessary. If a damaged vehicle is obstructing traffic lanes, the driver

of the vehicle must make every reasonable effort to move the vehicle or

have it moved so as not to block the traffic lanes.

Defendants cite Vajk v. Tindell, No. 95-cv-5796, 1998 WL 60391 (7th Cir. Feb. 9,

1998), where the court held that there was probable cause to arrest for “leaving the

scene of a property damage accident,” id. at *2. There, an individual told the

arresting officer that the plaintiff had “rammed his car into her car and attempted

to run her off the road while she was dropping her car-pool children off at their

homes,” and then “demanded her purse” and drove away. Id. at *1. When a driver

hits another car, Section 11-404 requires the driver to, among other things, stop and

provide information to the driver who was hit. 625 ILCS 5/11-404. In Vajk, the

arresting officer reasonably believed that the plaintiff instead stole a purse and

drove away.

The circumstances of this case are different. Defendants do not provide any

authority explaining how the duties in Section 11-404 apply when a driver runs his

car into a tree. Even assuming it would have been a violation for Rogers to simply

abandon his car and flee the scene, a reasonable factfinder could decide that there

was not probable cause for an arrest on this basis. Rogers argues that he was in the

store to purchase a phone so he could call a tow company, and Defendants do not

claim that temporarily leaving a car for purposes of obtaining help or towing

services is against the law. Defendants instead contend that Winston had probable

cause to arrest as soon as he found Rogers in the store and had no obligation to

inquire further. However, Rogers’ testimony indicates he may have explained to the

officers why he was in the store before his arrest, which factors into the

contemporaneous probable cause analysis. [76-1] at 51.

Drawing all inferences in Rogers’ favor, a reasonable factfinder could decide

that the totality of circumstances known to Winston at that point would not have

led a reasonable officer to believe Rogers had committed a crime. The motion for

summary judgment is denied as to Rogers’ Fourth Amendment false arrest claim.

B. Excessive Force

Rogers also argues that even if there was probable cause, Winston used

excessive force to accomplish the arrest. Excessive force would be an independent

Fourth Amendment violation. See Holmes v. Vill. of Hoffman Estate, 511 F.3d 673,

681 (7th Cir. 2007) (“It is possible for a police officer to use excessive force to make

what is otherwise a legitimate arrest supported by probable cause.”). An officer’s

use of force may violate the Fourth Amendment, depending on whether “the officer’s

actions are objectively reasonable in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.” Graham v. Connor,

490 U.S. 386, 397 (1989) (quotation omitted). The court looks to the “perspective of

a reasonable officer on the scene, including what the officer knew at the time, not

with the 20/20 vision of hindsight.” Burton v. City of Zion, 901 F.3d 772, 777 (7th

Cir. 2018) (quotation omitted). Courts must pay “careful attention to the facts and

circumstances of each particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to safety of the officers or others,

and whether he is actively resisting arrest or attempting to evade arrest by flight.”

Kisela v. Hughes, ––– U.S. ––––, 138 S. Ct. 1148, 1152 (2018) (quotation omitted).

Defendants contend that the undisputed facts establish that Winston’s use of

force was justified given the circumstances, but they do not argue that Rogers posed

any threat at all to the officers or others, nor do they claim that the crime at issue

was severe. Kisela, 138 S. Ct. at 1152. Instead, they argue that Winston’s use of

force was objectively reasonable in order to gain compliance and take Rogers into

custody. Defendants argue that since Rogers refused to speak about the accident

and turned away from Winston, Winston reasonably believed that Rogers was

failing to comply with orders, attempting to leave, and resisting arrest. But

material disputes of fact stand in the way of this conclusion. While Defendants

argue that Rogers was noncompliant because he refused to talk about the accident,

Rogers testified that he had engaged with the officers, including Winston, at least to

ask if he was being detained. Defendants also note that according to Winston,

Rogers tried to walk past him to leave. But according to Rogers, he turned back

around only to finish checking out, because he was next in the line at the checkout

counter. The court cannot weigh this conflicting testimony at summary judgment.

The court is unable to conclude as a matter of law that Winston’s use of force

was objectively reasonable. “It is well established that a police officer may not

continue to use force against a suspect who is subdued and complying with the

officer’s orders.” Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009); see also

Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 525 (7th Cir. 2012) (force was excessive

when plaintiff did not actively resist arrest, exhibit any aggressive behavior toward

the officers, or attempt to escape); Mitchell v. Vill. of Matteson, No. 20-cv-00990,

2020 WL 3035965, at *2 (N.D. Ill. June 5, 2020) (“There was no reason for [officers]

to use any force under the alleged circumstances, let alone to team up and wrangle

[plaintiff] to the ground when he presented no threat whatsoever.”).

Defendants rely on cases where it was undisputed that the plaintiff either

refused to comply with an officer’s directions or posed a danger to others. See

Lawrence, 391 F.3d at 840, 843 (plaintiff refused to give officer his driver’s license,

attempted to drive away from officer, and behaved in a “combative and irrationally

angry” manner); Fitzgerald v. Santoro, 707 F.3d 725, 734 (7th Cir. 2013) (use of

force to detain plaintiff was reasonable where it was “uncontested that she

resisted”); Price v. Wrencher, No. 13-cv-01785, 2016 WL 2937024, at *4 (N.D. Ill.

May 20, 2016) (“It is undisputed that Defendant Officers observed Plaintiff

swinging a leather belt in a lasso-type fashion and speaking ‘gibberish.’”). That is

not the case here. A reasonable factfinder could credit Rogers’s testimony and

decide that Rogers never refused to comply with Winston’s directions. Defendants

do not argue that Rogers posed a danger to himself or others, and at the very least,

material disputes of fact make it unclear whether Rogers was in any way

combative. In sum, a reasonable factfinder could decide that Winston’s use of force

was not an objectively reasonable response.3

3 Defendants argue that the Seventh Circuit has described an “arm bar” as a “minimally

forceful technique[] designed to subdue non-compliant subjects and prevent escalation.”

Fitzgerald, 707 F.3d at 734. The court does not need to decide whether Winston used in

this case an “arm bar” within the meaning of cases like Fitzgerald, because a reasonable

factfinder could decide that Rogers was compliant and thus that no force was justified.

Defendants also assert that Winston is entitled to qualified immunity with

respect to Rogers’ excessive force claim.4 “Qualified immunity balances two

important interests—the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). Under this doctrine, government officials are

not liable when “their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Zimmerman

v. Doran, 807 F.3d 178 (7th Cir. 2015) (quoting Pearson, 555 U.S. at 231). To

overcome this barrier, Rogers ultimately must show that (1) the defendant violated

a constitutional right and (2) the right was “clearly established,” Pearson, 555 U.S.

at 232, both “at the time and under the circumstances presented,” Bianchi v.

McQueen, 818 F.3d 309, 319 (7th Cir. 2016) (quotation omitted).

As discussed above, Rogers has shown that a reasonable jury could find that

Winston’s use of force violated the Fourth Amendment, so the only remaining

question is whether the right at issue was clearly established at the time. Rogers

can prevail if “the force was so plainly excessive that, as an objective matter, the

police officers would have been on notice that they were violating the Fourth

Amendment.” Weinmann v. McClone, 787 F.3d 444, 450 (7th Cir. 2015) (quotation

omitted). According to Winston, the “arm bar technique is routinely used by police

officers to take suspects into custody.” [77] ¶ 32. Defendants argue that this

establishes that Winston’s use of force could not have been so plainly excessive as to

put Winston on notice of a constitutional violation. However, there is a material

dispute of fact over whether Winston could have reasonably believed this force was

necessary.

If Rogers’s account of the incident is accurate, then it was clearly established

law that Winston’s use of force would violate the Fourth Amendment. At the time

Defendants also contend that there is no cause of action under Section 1983 for a

police officer’s negligent, rather than intentional, infliction of force. Specifically,

Defendants argue that Winston cannot be held liable for negligently using an improper

arm-bar technique so long as his attempt to use an arm bar was objectively reasonable. But

the court does not need to address those questions here, as a reasonable factfinder could

decide that any use of force was objectively unreasonable. In addition, a reasonable

factfinder could find that the severity of the arm-bar technique that Winston employed was

deliberate rather than negligent.

4 Defendants argue that Rogers failed in his response brief to respond to their qualified

immunity argument. However, Defendants’ qualified immunity argument is coextensive

with their general argument about the merits of the excessive force claim. Both arguments

rely on Lawrence, Fitzgerald, and Price to assert that there was no (clearly established)

right to be free from an “arm bar takedown” given the circumstances. See [76] at 5–6.

Since Rogers responded to the general argument, the court declines to find that Rogers has

waived or forfeited the issue of qualified immunity.

of the arrest, “it was well-established in this circuit that police officers could not use

significant force on nonresisting or passively resisting suspects,” and it was also

well established “that police officers cannot continue to use force once a suspect is

subdued.” Abbott, 705 F.3d at 732. As an objective matter, Winston would have

been on notice that he could not use force to arrest someone if that person did not

resist arrest, pose a danger to himself or others, or refuse to comply with orders.

See Payne v. Pauley, 337 F.3d 767, 779 (7th Cir. 2003) (officer’s use of force to arrest

the plaintiff, including “forcing [the plaintiff’s] arms behind her back, twisting her

arm, and over-tightening the handcuffs,” where the plaintiff “was not threatening to

harm the police officer or anyone else at the scene, was not resisting or evading

arrest, was not attempting to flee, and was charged with such minor offenses, was

not objectively reasonable”). Winston is not entitled to qualified immunity as a

matter of law, so the motion is denied with respect to the excessive force claim

against him.

C. Monell Liability

Rogers brings a Monell claim against the City, Kellogg, and Eaves.5

Defendants appear to argue that the operative complaint fails to allege a cause of

action under Monell. [76] at 8. The complaint, however, does set forth a Section

1983 claim against the City that alleges the City “maintained a custom and policy of

encouraging officers to remain silent regarding excessive force.” [1] at 5.

For there to be municipal liability, Rogers must satisfy the requirements of

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). He must

show “(1) that [he] suffered a deprivation of a constitutionally protected interest,

and (2) that the deprivation was caused by an official policy, custom or usage of the

municipality.” Gibson v. City of Chicago, No. 13-cv-03273, 2013 WL 6698164, at *3

5 Rogers does not state whether he is bringing claims against Kellogg and Eaves in their

individual or official capacities, but the court interprets Rogers’s claims as official capacity

claims since Rogers points to no evidence of individual involvement. See Williams v. Shah,

927 F.3d 476, 482 (7th Cir. 2019) (“Neither the Warden nor the Director may be held liable

unless they had some personal involvement in the alleged constitutional deprivation. . . .

Prison officials may satisfy the personal responsibility requirement of section 1983 if the

conduct causing the constitutional deprivation occurs at the official’s direction or with his or

her knowledge and consent.”). Moreover, Defendants argue that to the extent Rogers is

asserting an individual capacity claim against Kellogg and Eaves, there is no support in the

record for such a claim. [76] at 11. Rogers did not respond to this argument, so any

argument to the contrary is waived. See Candell v. Shiftgig Bullpen Temp. Emp. Agency,

No. 17-cv-03620, 2019 WL 2173797, at *3 (N.D. Ill. May 20, 2019) (citing Betco Corp., Ltd.

v. Peacock, 876 F.3d 306, 309 (7th Cir. 2017)).

When a plaintiff asserts an official capacity claim, the action is deemed to be a suit

against the local government itself. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985). The

court thus evaluates the claims against the City, Kellogg, and Eaves together.

(N.D. Ill. Dec. 17, 2013) (citing Monell, 436 U.S. at 694–95). Fact issues preclude

summary judgment on the underlying constitutional claim, so the court rejects

Defendants’ arguments as to the first element. But to satisfy Monell’s second

element, Rogers must also show that a reasonable factfinder could decide the

constitutional violation was caused by (1) an express municipal policy; (2) a

widespread, though unwritten, custom or practice; or (3) a decision by a municipal

agent with final policymaking authority. Lewis v. City of Chicago, 496 F.3d 645,

656 (7th Cir. 2007). A plaintiff “must also demonstrate that, through its deliberate

conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bd. of

Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997).

Defendants argue that Rogers cannot show a causal connection between the

incident and one of these types of municipal action. Rogers does not argue that any

of Harvey’s express policies violated the law, or that Winston was directed to violate

the law. Instead, he argues Defendants failed to adopt an adequate use of force

policy and failed to properly train police officers on both the use of force and proper

technique for tactics such as the arm bar. “But the path to Monell liability based on

inaction is steeper because, unlike in a case of affirmative municipal action, a

failure to do something could be inadvertent and the connection between inaction

and a resulting injury is more tenuous.” J.K.J. v. Polk Cty., 960 F.3d 367, 378 (7th

Cir. 2020).

Addressing the training argument first: “A failure-to-train claim is actionable

only if the failure amounted to deliberate indifference to the rights of others.”

Miranda v. Cty. of Lake, 900 F.3d 335, 345 (7th Cir. 2018) (citing City of Canton v.

Harris, 489 U.S. 378, 388 (1989)). “A pattern of similar constitutional violations by

untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference

for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 62 (2011)

(quoting Bryan Cty., 520 U.S. at 409). While a pattern is not necessary in all cases,

the Supreme Court has described the alternative—“single incident liability”—as

only available in a “narrow range” of circumstances. Id. at 63–64. It could be the

case that the “unconstitutional consequences of failing to train could be so patently

obvious that a city could be liable under § 1983 without proof of a pre-existing

pattern of violations.” Id. at 64. Where the Seventh Circuit has affirmed liability

on this theory, there was evidence of a total failure to respond to a patently obvious

risk. See J.K.J., 960 F.3d at 379 (training on preventing and detecting the sexual

harassment and abuse of inmates was “all but nonexistent”); Glisson v. Indiana

Dep’t of Corr., 849 F.3d 372, 382 (7th Cir. 2017) (en banc) (“total lack of

coordination” for treatment of chronically ill inmates); Woodward v. Corr. Med.

Servs. of Ill., Inc., 368 F.3d 917, 926 (7th Cir. 2004) (suicide prevention procedures

“systematically ignored”).

To proceed on this theory, Rogers must put forward evidence from which a

jury could find that the Defendants “(1) failed to provide adequate training in light

of foreseeable consequences; or (2) failed to act in response to repeated complaints of

constitutional violations by its officers.” Miranda, 900 F.3d at 345 (citation and

internal quotation marks omitted). “In essence, the defendant must have actual or

constructive notice of a problem.” Id. (citing Robles v. City of Fort Wayne, 113 F.3d

732, 735 (7th Cir. 1997)); see also Connick, 563 U.S. at 61 (deliberate indifference

requires “actual or constructive notice that a particular omission in their training

program causes city employees to violate citizens’ constitutional rights”). Rogers

has not pointed to any evidence that the Defendants were on notice that a

particular omission would cause constitutional violations. He does not point to

evidence of either a pattern of similar constitutional violations or an obvious risk

connected to a specific feature or omission of the City’s training program.

It is undisputed that the Harvey Police Department had a use of force policy

in place at all relevant times. [77] ¶ 33; [87] ¶ 33. According to Training Officer

Robert Wright, Harvey police officers were required to take a course on the use of

force.6 Harvey itself offered such a course, although officers could alternatively also

take the course outside the department to satisfy this requirement. [76-1] at 149–

50. Harvey’s use of force training included the topic of excessive force. [76-1] at

149–50. While there is a factual dispute about the training that Winston himself

received, the focus of a failure to train inquiry “must be on the [training] program,

not whether particular officers were adequately trained.” Palmquist v. Selvik, 111

F.3d 1332, 1345 (7th Cir. 1997). Rogers’s failure to train argument primarily rests

on the fact that the Department of Justice investigated the Harvey police

department in 2012 and published a Technical Assistance Report. That report

recommended that the police department conduct additional training on the use of

force policy. [87-1] at 247. However, Rogers has not contextualized any of the DOJ

findings within this case. He has not, for example, produced any evidence about the

City’s response to the report or any changes the City considered or made in its

aftermath.

In any event, even if the City were “somehow deficient in providing its

officers proper police training,” Rogers must still “demonstrate how the failure to

provide specific training had a causal nexus with the claimed injury.” Palmquist,

111 F.3d at 1345. Rogers must be able to show (at summary judgment, create a

genuine fact dispute) that “the identified deficiency in the city’s training program”

is “closely related to the ultimate injury.” City of Canton, 489 U.S. at 391. Rogers

has not put forward evidence of any causal link between an official policy or custom

and Winston’s actions in this case. Rogers’s generalized causation argument

amounts to the proposition that if the City provided better or more adequate use of

force training, Winston would not have used excessive force in this case. That is not

6 Rogers purports to dispute this testimony by arguing that the Harvey PD Operations

Manual does not explicitly state that officers must undergo use of force training. Rogers

attaches only excerpts of that manual, see [87-1] at 145–49, and in any event, Wright did

not testify that this requirement was set forth in the manual. Thus, there is not a genuine

dispute of fact on this point.

enough to connect a particular training omission to Winston’s specific actions.

See City of Canton, 489 U.S. at 391 (“Neither will it suffice to prove that an injury or

accident could have been avoided if an officer had had better or more training,

sufficient to equip him to avoid the particular injury-causing conduct.”). Nor does

Rogers point to any finding in the 2012 DOJ report that could have put Defendants

on notice that a specific training omission made Winston’s conduct in this case

foreseeable. There is no evidence that Winston’s actions were an instance of “a risk

so obvious that it compels municipal action.” J.K.J., 960 F.3d at 381. In short,

Rogers has not presented evidence that would allow a reasonable factfinder to infer

that a “lack of proper training, rather than a one-time negligent administration of

the program or factors peculiar to the officer involved in a particular incident, [was]

the moving force behind [his] injury.” Bryan Cty., 520 U.S. at 408 (citation and

internal quotation marks omitted).

By the same token, Rogers’s argument that Defendants failed to write an

adequate use of force policy also is not persuasive. As Rogers notes, the DOJ’s

Technical Assistance Report noted that Section 2.41 of Harvey’s policy, “Rules of

Conduct,” contained “no rules against abuse of force, excessive force, or violation of

citizens’ rights,” and recommended that the policy “be amended to contain specific

rules against these particular actions.” [87-1] at 257. Rogers argues that Harvey

did not remedy this problem, given that Section 2.41 of the policy still does not

contain an express prohibition against excessive force. [87-1] at 130–44.

Additionally, the report provided recommendations for improving Section 3.81, “Use

of Force.” [87-1] at 145–49; [87-1] at 261–62.

This evidence is not enough to support a Monell claim. Rogers does not link

any express provision in the manual or any DOJ recommendation for improving it

to the particulars of Winston’s use of force. In context with the rest of the record,

including testimony that officers were required to undergo use of force training,

Rogers’s arguments about the policy are not enough to support liability.

Rogers also appears to argue that since the use of force policy did not

mandate investigations unless a shooting was involved, the policy did not

adequately convey the seriousness or deter the use of excessive force. Here too,

there is not enough evidence for a reasonable factfinder to infer that this policy

played any role in Winston’s actions.

Ultimately, Rogers’ general argument that the use of force policy and

corresponding training should have been improved is not enough to support

liability. Since a reasonable factfinder could not decide that a municipal policy or

custom caused Rogers’ injury, the City, Kellogg, and Eaves are entitled to summary

judgment on Rogers’ constitutional claims.

II. State Law Claims

Finally, Defendants argue that Rogers’s state law claims for false arrest,

malicious prosecution, and battery are time-barred.7 Rogers did not respond to this

argument in his response brief, so any argument in response is waived. “A non-

movant’s failure to respond to arguments addressed in a summary judgment motion

results in a waiver.” Candell v. Shiftgig Bullpen Temp. Emp. Agency, No. 17-cv-

03620, 2019 WL 2173797, at *3 (N.D. Ill. May 20, 2019) (citing cases including Betco

Corp., Ltd. v. Peacock, 876 F.3d 306, 309 (7th Cir. 2017); Walton v. U.S. Steel Corp.,

497 F. App’x 651, 655 (7th Cir. 2012)).

Even if Rogers had responded, the court agrees with Defendants that the

state law claims are time-barred. Illinois law provides a one-year statute of

limitations period for all civil actions brought against any “local entity or any of its

employees.” 745 ILCS 10/8-101(a). “Under Illinois law, false arrest claims accrue

on the date of the arrest and are subject to a one-year statute of limitations.” Ellis

v. City of Chicago, No. 13-cv-02382, 2016 WL 212489, at *10 (N.D. Ill. Jan. 19, 2016)

(citing Rizzo v. Wheaton Police Dep’t, 2010 WL 1996386, at *2 (N.D. Ill. May 17,

2010); 745 ILCS 10/8-101). Likewise, the battery claim “accrued on the date of the

events.” Harris v. Wainscott, No. 18-cv-02789, 2019 WL 1995270, at *2 (N.D. Ill.

May 5, 2019). Finally, a malicious prosecution cause of action accrues when “the

criminal proceeding on which it is based has been terminated in the plaintiff’s

favor.” Foryoh v. Hannah-Porter, 428 F. Supp. 2d 816, 824 (N.D. Ill. 2006) (quoting

Ferguson v. City of Chicago, 213 Ill.2d 94 (2004)).

Rogers’s false arrest and battery claims accrued on January 12, 2015, the

date of the incident and arrest, and his malicious prosecution claim accrued on June

2, 2015, the date his criminal case was terminated (and Defendants assume the

termination was in Rogers’s favor for purposes of the motion, [76] at 12 n.1).

Plaintiff filed his complaint on June 3, 2016, which was over a year after all three

claims accrued. These claims are time-barred.

Conclusion

For the reasons given above, the court grants in part and denies in part the

motion for summary judgment [75]. Summary judgment is granted in favor of

Defendants on Rogers’s state law claims (Counts 2–4) and Rogers’s Section 1983

claims against Defendants City of Harvey, Kellogg, and Eaves. The motion is

denied as to Rogers’ Fourth Amendment claims against Defendant Winston.

Date: March 31, 2021 /s/ Martha M. Pacold

7 Defendants also argue that probable cause is a complete defense to these claims.

However, as discussed above, Defendants have not established that there was probable

cause for the arrest as a matter of law.