Black v. City of Chicago, The

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ROLAND BLACK, )

)

Plaintiff, ) Case No. 18-cv-6518

)

v. ) Hon. Steven C. Seeger

)

THE CITY OF CHICAGO, et al., )

)

Defendants. )

____________________________________)

MEMORANDUM OPINION AND ORDER

One day, Officers Priscilla Hernandez and Oscar Zermeno of the Chicago Police

Department pulled over a vehicle for a minor traffic violation. What began as an ordinary traffic

stop quickly turned dangerous. The driver floored it, hoping for a quick getaway. He crashed

his car, and then fled on foot. He was better at running than driving. He got away.

Sometime later, the two officers obtained an arrest warrant for Plaintiff Roland Black,

and he was later arrested. After a bench trial, Black was acquitted of all charges. The reason for

the acquittal isn’t clear, but the important thing is that he was found not guilty.

Black then brought this suit, bringing three claims. He alleges that the officers wrongfully

detained him and violated his right to due process. He also brings a Monell claim against the

City of Chicago based on various widespread practices, and based on a failure to train or

discipline its police officers.

The officers moved for judgment on the pleadings for the due process claims. The City,

in turn, moved for summary judgment on the Monell claim.

For the reasons stated below, the motions are granted.

Background1

From a procedural standpoint, the factual footing of each motion is different. A motion

for judgment on the pleadings is about the allegations in the complaint. A motion for summary

judgment is about the facts in the record. Sometimes they’re the same, but oftentimes they’re

not. Here, given the nature of the motions, the Court will summarize the facts in the record.

On January 24, 2014, Officers Priscilla Hernandez and Oscar Zermeno of the Chicago

Police Department were in their squad car, on patrol. See Pl.’s Resp. to Defs.’ Statement of

Facts, at ¶¶ 2, 4 (Dckt. No. 119). They stopped a red Buick Regal for making an illegal turn. Id.

at ¶ 5; Cplt., at ¶ 12 (Dckt. No. 1).

Hernandez asked the driver for his license. See Pl.’s Resp. to Defs.’ Statement of Facts,

at ¶ 6 (Dckt. No. 119). But after she took the license, the driver had other ideas. He decided to

hightail it out of there. He sped away.

The driver didn’t get very far. Id. at ¶ 7. He crashed into several parked cars. Id. at ¶ 8.

He then ditched his crumpled car and fled on foot. Id. at ¶ 9. A chase ensued, but he escaped.

Id. at ¶ 10.

Sometime after the crash, Officers Hernandez and Zermeno obtained an arrest warrant for

Plaintiff Roland Black. Id. at ¶ 11. The parties don’t provide the backstory. One might think

that the police arrested Roland Black because the driver handed the officer the license of Roland

Black. After all, why would the officers arrest Roland Black if the driver handed them the

license of someone else?

1 The background facts are sparse because the parties submitted a slim factual record. See Pl.’s Resp. to

Defs.’ Statement of Facts (Dckt. No. 119); Defs.’ Resp. to Pl.’s Statement of Additional Facts (Dckt. No.

133).

Maybe the driver wasn’t Roland Black, but handed the officers Roland Black’s license.

Or maybe the driver wasn’t Roland Black, and the driver handed the officers the license of

someone who wasn’t Roland Black, but the officers mixed things up somehow and arrested

Roland Black by mistake. Or maybe there’s some other explanation. There’s more to the story,

but the story is untold. The record does not explain why the officers arrested Black, but the

important thing is that he was arrested.2 Id. at ¶ 12.

The record does not reveal when the arrest took place. The traffic stop was in 2014, so

maybe that’s when the arrest occurred.

In their statements of fact, the parties fast-forward to 2017, so the Court will jump ahead,

too.

In August 2017, Black was acquitted of all charges after a bench trial. Id. at ¶ 13. Again,

the parties don’t tell the backstory. The parties don’t reveal why he was acquitted. Maybe there

was a problem with the government’s evidence. Maybe it was a case of mistaken identity. Or

maybe there was some other reason to think that he didn’t commit the crime. In any event, the

important point is that he was found not guilty.

Black responded by filing this lawsuit. See Cplt. (Dckt. No. 1). His complaint includes

three claims. Count I is a claim of wrongful detention against Officers Hernandez and Zermeno

under the Fourth and Fourteenth Amendments. See id. at ¶¶ 41–46. Count II is a due process

claim against the officers, alleging that they withheld, suppressed, and fabricated evidence. See

id. at ¶¶ 47–55. Count III is a Monell claim against the City of Chicago. See id. at ¶¶ 56–85.

2 There are gaps in the story, but the complaint alleges that there were gaps in the evidence too.

Apparently, the Chicago Police Department destroyed the license. See Cplt., at ¶ 25 (Dckt. No. 1). The

police car had dashcam footage, but that video was purged too. Id. at ¶ 26. That destruction isn’t

material to the motions at hand. The Court offers it as background only.

Discussion

There are two pending motions. Officers Hernandez and Zermeno moved for judgment

on the pleadings on Count II under Rule 12(c). See Defs.’ Mtn. for J. on the Pleadings (Dckt.

No. 112); Fed. R. Civ. P. 12(c). The City of Chicago moved for summary judgment on Count

III. See Defs.’ Mtn. for Summ. J. (Dckt. No. 113). Different standards apply to each motion.

A party may move for judgment on the pleadings any time after the pleadings are closed.

See Fed. R. Civ. P. 12(c); Moss v. Martin, 473 F.3d 694, 698 (7th Cir. 2007). The standard is the

same as the standard for a motion to dismiss under Rule 12(b)(6). See Armada (Singapore) PTE

Ltd. v. Amcol Int’l Corp., 885 F.3d 1090, 1092 (7th Cir. 2018). “To survive a motion for

judgment on the pleadings, a complaint must state a claim to relief that is plausible on its face.”

Denan v. Trans Union LLC, 959 F.3d 290, 293 (7th Cir. 2020) (cleaned up). Judgment on the

pleadings is proper only if plaintiff’s allegations “show that there is an airtight defense [such that

he] has pleaded himself out of court.” Id.

As the name suggests, a motion for judgment on the pleadings depends on the content of

the pleadings alone. See N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d

449, 452 (7th Cir. 1998). The pleadings include the complaint, the answer, and any

accompanying written instruments attached as exhibits. Id. at 452–53; see also Arethas v. S/TEC

Grp., Inc., 2005 WL 991782, at *6 (N.D. Ill. 2005) (“[A]lthough in ruling on a motion for

judgment on the pleadings a court can consider affidavits attached to a complaint or an answer to

the complaint, a court cannot consider affidavits that are not a part of the pleadings.”).

A district court “shall grant” summary judgment “if 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.” See Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if “the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the

burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986).

The Court construes all facts in the light most favorable to the non-moving party, giving

the non-movant the benefit of all reasonable inferences. See Chaib v. Geo Grp., Inc., 819 F.3d

337, 341 (7th Cir. 2016). The Court does not weigh the evidence, judge credibility, or determine

the truth of the matter, but rather determines only whether a genuine issue of triable fact exists.

See Nat’l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).

“The mere existence of a scintilla of evidence in support of the plaintiff’s position will be

insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”

See Anderson, 477 U.S. at 252. Summary judgment is appropriate if, on the evidence provided,

no reasonable jury could return a verdict in favor of the non-movant. See Celotex Corp., 477

U.S. at 322; Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772–73 (7th Cir. 2012).

Summary judgment is the time for a party to put its evidentiary cards on the table.

“[S]ummary judgment is ‘not a dress rehearsal or practice run; it is the put up or shut up moment

in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to

accept its version of the events.’” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting

Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)).

The standards are different, but the result here is the same. The Court grants the motion

for judgment on the pleadings, and grants the motion for summary judgment.

I. Motion for Judgment on the Pleadings by the Officers (Count II)

The first motion is the motion for judgment on the pleadings filed by the two officers.

The motion takes aim at Count II (only), but the argument sweeps more broadly.

Taking a step back, two claims involve due process. Count I is for wrongful pretrial

detention, based on the Fourth and Fourteenth Amendments. See Cplt., at ¶ 42 (Dckt. No. 1).

Count II alleges that the officers “withheld, suppressed and fabricated evidence, thereby

misleading and misdirecting the criminal prosecution of Plaintiff.” Id. at ¶ 47. Black alleges that

the officers deprived him of “his right to due process and his right to be free from seizures of his

person, including imprisonment, without probable cause.” Id. at ¶ 50.

The Fourteenth Amendment is the wrong amendment. Black was a pretrial detainee.

The Seventh Circuit has explained that the Fourth Amendment, not the Fourteenth Amendment,

governs any claim about wrongful pretrial detention. “[A]ll § 1983 claims for wrongful pretrial

detention – whether based on fabricated evidence or some other defect – sound in the Fourth

Amendment.” See Lewis v. City of Chicago, 914 F.3d 472, 479 (7th Cir. 2019); see also id. at

478 (“It’s now clear that a § 1983 claim for unlawful pretrial detention rests exclusively on the

Fourth Amendment.”) (emphasis in original); Camm v. Faith, 937 F.3d 1096, 1105 (7th Cir.

2019) (“[W]hen a plaintiff alleges that officials held him in custody before trial without

justification, malicious prosecution is the wrong characterization. There is only a Fourth

Amendment claim – the absence of probable cause that would justify the detention. And we

recently reiterated that the Fourth Amendment, not the Due Process Clause, governs a claim for

wrongful pretrial detention.”) (cleaned up) (emphasis added).

The Fourth Amendment governs Black’s claims, not the Fourteenth Amendment. The

Court grants the officers’ motion for judgment on the pleadings on Count II to the extent that it

invoked the Fourteenth Amendment. The Court sua sponte dismisses Count I to the extent that it

relied on the Fourteenth Amendment (and not the Fourth Amendment). Count I otherwise

survives under the Fourth Amendment.3

II. Motion for Summary Judgment by the City (Claim III)

Black also brings a Monell claim against the City of Chicago. The claim has two

theories. The first theory is that the City has a widespread practice of arresting people without a

factual basis for doing so, and a widespread practice of giving false testimony and keeping it

quiet through a code of silence. The second theory is that the City has failed to train and

discipline its officers.

A. Widespread Practices

A municipality is not vicariously liable for the constitutional torts of its employees. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–94 (1978). But a municipality “may be held

liable for its own violations of the federal Constitution and laws.” See First Midwest Bank

Guardian of Est. of LaPorta v. City of Chicago, 988 F.3d 978, 986 (7th Cir. 2021) (emphasis

added). “Note the qualifier: ‘its own violations.’” Id. To prevail, a plaintiff “must challenge

conduct that is properly attributable to the municipality itself.” Id.

Three scenarios can give rise to municipal liability under section 1983: “(1) an express

policy that causes a constitutional deprivation when enforced; (2) a widespread practice that is so

3 Count II appears to be a due process claim under the Fourteenth Amendment (only). It begins with the

heading: “Violation of Plaintiff’s Due Process Rights.” See Cplt., at 7 (Dckt. 1). That said, paragraph 50

mentions Black’s “right to due process and his right to be free from seizures of his person . . . .” Id. at

¶ 50. The Fourth Amendment covers unreasonable seizures, so perhaps one could read that allegation to

rope in the Fourth Amendment. That said, it is not clear what value Count II would bring if it invokes the

Fourth Amendment, because Count I already invokes the Fourth Amendment. So, this Court enters

judgment on the pleadings for Count II in its entirety. If Plaintiff believes that Count II retained some

residual value under the Fourth Amendment, despite the existence of Count I, Plaintiff can file a motion

for leave to amend.

permanent and well-settled that it constitutes a custom or practice; or (3) an allegation that the

constitutional injury was caused by a person with final policymaking authority.” Id.; see also

Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010). “In other words, to

maintain a § 1983 claim against a municipality, one must establish the requisite culpability (a

‘policy or custom’ attributable to municipal policymakers) and the requisite causation (the policy

or custom was the ‘moving force’ behind the constitutional deprivation).” Gable v. City of

Chicago, 296 F.3d 531, 537 (7th Cir. 2002).

Here, Black brings his claim under the second theory, meaning a widespread practice or

custom. The complaint alleges two practices: bogus arrests, and a code of silence.

First, Black claims that the City of Chicago has a “widespread practice and custom of

subjecting citizens to arrest, charges, and prosecution without probable cause, based on false

evidence, and without disclosure of exculpatory evidence . . . .” See Cplt., at ¶ 54 (Dckt. No. 1).

Second, he alleges a widespread practice of a “code of silence,” meaning that officers and City

employees “agreed explicitly and implicitly not to report misconduct committed by employees of

the Chicago Police Department, creating an environment of lawlessness, without discipline,

where employees of the Chicago Police Department engaged in misconduct without fear of

reprisal.” Id. at ¶ 65.

To prevail on his Monell theories, Black must show that the two practices were “so

pervasive that acquiescence on the part of policymakers was apparent and amounted to a policy

decision.” See Phelan v. Cook County, 463 F.3d 773, 790 (7th Cir. 2006), overruled on other

grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016); see also Gable, 296 F.3d

at 537.

The Seventh Circuit has not adopted any bright-line rules defining “custom or practice,”

but it has found that “it must be more than one instance.” See Thomas, 604 F.3d at 303 (quoting

Cosby v. Ward, 843 F.2d 967, 983 (7th Cir. 1988)). That said, a practice may not be widespread

if it took place two, three, or four other times. See, e.g., Palmer, 327 F.3d at 595–96 (“Palmer’s

alleged personal knowledge of two incidents of misconduct by correctional officers in a period of

one year certainly fails to meet the test of a widespread unconstitutional practice by the Jail’s

staff that is so well settled that it constitutes a custom or usage with the force of law.”); Gable,

296 F.3d at 538 (“[T]hree incidents where vehicle owners were erroneously told that their

vehicles were not at Lot 6 do not amount to a persistent and widespread practice.”) (quotation

marks omitted); Grieveson v. Anderson, 538 F.3d 763, 773–75 (7th Cir. 2008) (holding the

plaintiff’s allegations of four botched refills of his pain prescriptions did not prove a widespread

unconstitutional practice).

The other incidents need to be sufficiently similar to support an inference of a broader

pattern. The greater the dissimilarity, the greater the skepticism that there is a single actionable

municipal practice or custom. See, e.g., Tillman v. Burge, 813 F. Supp. 2d 946, 978 (N.D. Ill.

2011) (explaining that in establishing the existence of such a policy or practice, it is insufficient

to “splatter-paint a picture of scattered violations” through “collateral accusations of marginally

related incidents”) (citation omitted).

Black pointed to two alleged practices, but the first one fell by the wayside. The

complaint alleged that the City has a widespread practice of false arrests. But in his summary

judgment brief, Black abandoned the point. Black did not argue that the City has a widespread

practice of false arrests, let alone offer any evidence, so the Court deems it abandoned. See

Maclin v. SBC Ameritech, 520 F.3d 781, 788 (7th Cir. 2008) (“In her response to [the

defendant’s] motion for summary judgment, [the plaintiff] failed to defend her claim against

these arguments. She therefore abandoned the claim.”) (citation omitted); Palmer v. Marion

County, 327 F.3d 588, 597–98 (7th Cir. 2003) (explaining that the district court was justified in

deeming a claim abandoned where the plaintiff failed to delineate a claim in his brief in

opposition to summary judgment).

Even if Black hadn’t abandoned the claim, it would not survive. Black’s complaint

pointed to a smattering of lawsuits and settlements involving the Chicago Police Department

stretching back more than two decades. See Cplt., at ¶ 64(a)–(g) (Dckt. No. 1). The dirty

laundry list includes cases and settlements about the “gang loitering ordinance” in the 1990s,

wrongful convictions stemming from Jon Burge, wrongful arrests based on false lineups, false

confessions, and so on. Id. He also mentions a 2016 report by the Chicago Police

Accountability Task Force (“PATF”). Id. at ¶ 64(d).

Those cases won’t cut it. Those allegations appear in the complaint, which is not

evidence. See Fed. R. Civ. P. 56(c)(1)(A). He offers no evidence about those other cases, say,

by submitting an affidavit or declaration. In fact, in his brief, Black doesn’t even point to those

other cases, even though they formed the basis of the claim in his complaint. Allegations suffice

at the pleading stage, but summary judgment requires evidence. And here, there is none.4

Even if Black had offered evidence about the existence of those cases, it would not carry

the day. Black would need to show a connection between those cases and the case at hand, with

an appropriate degree of specificity. And here, Black draws no such connection. A defendant

cannot get to trial on a Monell claim simply by showing that the City of Chicago gets sued a lot.

4 This Court could take judicial notice of the filing of those cases, but elects not to do so because there is

no reason to think that they are similar to the case at hand.

For example, the case at hand does not involve Chicago’s gang ordinance, or wrongful

convictions, or false lineups, or false confessions. A practice of false convictions, false lineups,

and false confessions does not move the needle when this case does not involve a conviction, or

a lineup, or a confession.

Black’s brief does include a passing reference to the 2016 report from the Police

Accountability Task Force. See Pl.’s Opp. to Defs.’ Mtn. for Summ. J., at 5 (Dckt. No. 120).

But the report’s conclusion about the high rate of searches and seizures of African Americans is

too general to support his alleged widespread practice. See Carmona v. City of Chicago, 2018

WL 1468995, at *4 (N.D. Ill. 2018) (“The DOJ report certainly identifies serious shortcomings

in CPD’s supervisory systems, but the Court cannot countenance it as a master key to unlock

discovery’s door for any Monell claim against the City, no matter how scantily the plaintiff

connects his claim to the report’s findings.”); see also Jackson v. City of Chicago, 2021 WL

3883111, at *6 (N.D. Ill. 2021) (“Jackson’s broad citation to the general findings of the DOJ

Report, ‘without any allegations connecting the report findings to the misconduct alleged in his

Complaint, is insufficient to support his Monell claim.’”) (citing Carmona v. City of Chicago,

2018 WL 306664, at *3 (N.D. Ill. 2018)).

Black also points to a second practice. He claims that there is a widespread practice of

officers giving false testimony and protecting each other through a “code of silence.” Once

again, Black does not offer enough evidence to get to a jury.

The complaint included sweeping allegations about a code of silence. The complaint

pointed to (1) a statement by the President of the police union in 2016; (2) the 2017 report by the

DOJ; and (3) a statement by the Mayor. See Cplt., at ¶ 70 (Dckt. No. 1). Black’s complaint also

lists four cases and settlements, beginning in 1994, that mention the CPD’s code of silence. Id.

at ¶ 71(a)–(d).

Again, allegations are not evidence, so they do not count at the summary judgment stage.

And the complaint swept more broadly than Black’s summary judgment brief, too. Black never

mentioned those statements in his summary judgment response brief, so they are waived.

The parties spend a bunch of pages discussing whether there is evidence of a widespread

practice of police lying in criminal cases, and covering their backs through a code of silence.

Black’s claim fails for a more basic problem. There is no discernible link between any such

widespread practice and the arrest of Black.

A widespread practice of giving false testimony does not support Black’s case unless his

case involves false testimony. But here, Black puts almost nothing in the record about the

underlying incident. The record includes nothing about testimony of the police officers when

they obtained his arrest warrant.5 It is hard to see how a widespread practice of false testimony

can be the “moving force” in Black’s case when there is no evidence in the record that Black’s

case involved false testimony. See Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 235 (7th

Cir. 2021) (“This ‘rigorous causation standard’ requires ‘a “direct causal link” between the

challenged municipal action and the violation of [the plaintiff’s] constitutional rights.’”)

(brackets in original, citation omitted); id. at 236 (“In short, a Monell plaintiff must show that

some municipal action directly caused him to suffer a deprivation of a federal right . . . .”);

LaPorta, 988 F.3d at 986 (“This rigorous causation standard guards against backsliding into

respondeat superior liability.”).

5 The testimony of the police at trial – assuming that they testified at all – presumably is not at issue here

because Black was acquitted, and thus suffered no injury from any such testimony. See Bianchi v.

McQueen, 818 F.3d 309, 319–20 (7th Cir. 2016) (“[T]he plaintiff’s acquittal foreclosed any due-process

claim.”). But in any event, there is nothing in the record about any trial testimony, either.

Black has put nothing in the record about the testimony of the officers. And he has

offered no evidence that any of the officers testified falsely. He simply alleges false arrest (in his

complaint), and offers no evidence of any false testimony. Evidence of a widespread practice of

false testimony cannot support a claim unless this particular incident with Black involved false

testimony.

There is no evidence in the record that could support a finding by a reasonable jury that

the officers in question testified falsely in Black’s criminal proceeding. So, evidence about a

widespread practice of giving false testimony in other cases cannot support a claim in this case.

Without any evidence that the officers in question testified falsely here, it makes no difference if

other officers testified falsely over there.

In short, there is no link between what happened to Black and what happened to other

people in other cases. If this case didn’t involve false testimony, then false testimony in other

cases is neither here nor there. And here, there is no evidence of false testimony during Black’s

prosecution.

Black also fails to offer sufficient evidence that there is, in fact, a widespread practice of

giving false testimony. Black relies almost exclusively on testimony from the City during its

Rule 30(b)(6) deposition. See Pl.’s Opp. to Defs.’ Mtn. for Summ. J., at 3–8 (Dckt. No. 120).

Tim Moore, the Commander of the Bureau of Internal Affairs of the Chicago Police Department,

testified on behalf of the City.6 Black relies on a few passages where Moore described a code of

silence at the CPD as “a problem.” Id. at 3.

6 Notably, Black motioned for sanctions regarding Moore’s deposition because, according to Black, the

witness was not properly prepared to discuss CPD’s code of silence under Rule 30(b)(6). See Mtn. for

Sanctions (Dckt. No. 122). Magistrate Judge Maria Valdez denied Black’s motion. See 9/13/21 Order

(Dckt. No. 136).

Moore testified that the City is “aware” that police officers testify untruthfully. See

Moore Dep., at 34:4-10 (Dckt. No. 115-6). He also testified that code-of-silence behavior is “a

problem.” Id. at 39:7-20. Specifically:

Q: What does the City know about police officers testifying untruthfully?

A: The City, at large, is aware. I believe that they are aware that officers that

testify untruthfully are subject to discipline up to separation from the

police department.

Q: Does the City believe there is a problem with officers testifying

untruthfully?

A: Yes.7

* * *

Q: You have testified that there’s a problem about police officers testifying

untruthfully, correct, sir?

A: I did.

Q: And that remains the case today, correct, sir?

A: That is correct.

* * *

Q: So is there a problem with code-of-silence behavior in the Chicago Police

Department?

[Objection omitted]

A: It does exist in the department.

Q: And is it a problem?

[Objection omitted]

A: Yeah. Actually, one allegation, that is a problem, but of course, there is

more than just one allegation.

7 This question is ambiguous. It could mean “Does the City believe that the City has a problem with

officers testifying untruthfully?” Or it might mean “Does the City believe that it is problematic for

officers to testify untruthfully?”

* * *

Q: So when we talk about code-of-silence behavior, you understand that we

are talking about social solidarity where groups of police try to protect

others by failing to report what is obvious misconduct, correct sir?

A: Yes.

Q: And it is a problem within the Chicago Police Department, correct, sir?

A: Yes.

Id. at 34:2-10, 34:19 – 35:1, 39:7-20, 40:4-16.

That testimony falls short of supporting the notion that there is a widespread practice of

police officers giving false testimony, and then failing to report on the misconduct of other

officers. The deponent testified that there is a problem with false testimony. That’s not the same

thing as saying that there is a widespread practice of giving false testimony. Saying that there is

“a problem” doesn’t tell you much about whether the practice is widespread.

If there was some wiggle-room in the testimony, the deponent later tightened it up.

Moore clarified that when he used the term “problem,” he simply meant that there were past

instance of improper conduct. Specifically:

Q: Commander Moore, do you believe that all Chicago police officers engage in the

behavior of lying under oath?

A: I do not.

Q: You previously testified that this is a problem. Does that mean that there have

been instances of this behavior occurring?

A: Yes. That is what it means. It has occurred.

Id. at 52:10-18. He also testified that giving false testimony is not a systemic problem within the

Chicago Police Department. Id. at 53:1-3; see also id. at 55:4-5 (testifying that he did not have

“any data in front of me that would, you know, lead to the answer of that question with

certainty”).

The magnitude of the problem was not pinned down. In fact, in that passage, the witness

made clear that it was “a problem” if there was even one allegation of false testimony.

“Actually, one allegation, that is a problem, but of course, there is more than just one allegation.”

Id. at 39:18-20. One incident might be enough to create “a problem,” id., but it isn’t enough to

create a widespread practice under Monell. See Thomas, 604 F.3d at 303.

To be sure, this Court must view the evidence in a light favorable to Black as the non-

moving party, and draw reasonable inferences in his favor. See Chaib, 819 F.3d at 341. Even if

this Court reads the testimony to say that there is a problem with false testimony within the

Chicago Police Department, it still would not be enough. Testimony that there is “a problem” is

amorphous and non-descript, and does not give anyone much to go on. It feels more like a

buzzword than evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The

mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient

. . . .”).

Monell sets high standards, and for good reason. Courts must guard against lowering the

standards, or else municipalities could be subject to vicarious liability through the backdoor.

Testimony that there is “a problem” is not enough to support a finding that there is a widespread

practice.

Black offers almost no other evidence. Black points to the fact that Officer Hernandez

has received eight complaints of misconduct against him, with no subsequent disciplinary

actions. See Defs.’ Resp. to Pl.’s Statement of Additional Facts, at ¶ 7 (Dckt. No. 133). But the

record includes no additional information about those complaints. What were those complaints

about? Driving too fast in a school zone? Putting on handcuffs too tight? Saying something

snarky during a traffic stop?

Maybe they involved situations that were similar to the case at hand, or maybe not. It is

anyone’s guess. But summary judgment is the time for evidence, not guesswork. See Rossi v.

City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015) (“[T]he facts of this case – where Mathews

and Chengary conducted superficial investigations and Doubek faced no official discipline for

her actions – raise serious questions about accountability among police officers. But a Monell

claim requires more than this; the gravamen is not individual misconduct by police officers (that

is covered elsewhere under § 1983), but a widespread practice that permeates a critical mass of

an institutional body. . . . [M]isbehavior by one or a group of officials is only relevant where it

can be tied to the policy, customs, or practices of the institution as a whole.”) (emphasis in

original); Condon v. City of Chicago, 2011 WL 5546009, at *3 (N.D. Ill. 2011) (“The word

‘widespread’ must be taken seriously in demonstrating a Monell claim.”) (addressing a code-of-

silence claim).

Without evidence showing that the complaints against Hernandez were similar to the case

at hand, they cannot support an inference of a widespread practice of similar conduct. See Page

v. City of Chicago, 2021 WL 365610, at *2 (N.D. Ill. 2021) (“[T]hese allegations [of complaints

against an officer] – without more information connecting the complaints to the alleged

constitutional violation at issue here – are insufficient to support Page’s Monell claim.”). In fact,

courts have rejected such allegations at the motion to dismiss stage. See, e.g., Boone v. City of

Chicago, 2018 WL 1014509, at *1–2 (N.D. Ill. 2018) (Tharp., Jr., J.) (dismissing plaintiffs’

Monell claim where they failed to provide information about the subject matter of the

complaints); Thomas v. City of Markham, 2017 WL 4341082, at *4 (N.D. Ill. 2017) (Alonso, J.)

(“[A]llegations of general past misconduct or allegations of dissimilar incidents are not sufficient

to allege a pervasive practice and a defendant’s deliberate indifference to its consequences.”).

Some other courts have allowed cases involving a code of silence to proceed past

summary judgment. But those cases included more evidence than the record available here. See,

e.g., Godinez v. City of Chicago, 2019 WL 5597190, at *3 (N.D. Ill. 2019) (“To show a genuine

issue of material fact exists, Plaintiff relies on the following evidence: (1) the 2017 Department

of Justice Report (DOJ Report); (2) April 2016 Police Accountability Task Force Report (PATF

report); (3) statements by former Mayor Rahm Emanuel and Superintendent Eddie Johnson; (4)

Charles Drago’s expert report; (5) other cases involving death by positional asphyxia; and (6) the

officers’ testimony in this case.”); Est. of Loury by Hudson v. City of Chicago, 2019 WL

1112260, at *7 (N.D. Ill. 2019) (considering the 2017 DOJ Report and 2016 PATF report, and

concluding that “the admissible reports, along with other evidence from the record, demonstrate

that there is a genuine issue of material fact as to the existence of a pervasive code of silence and

other de facto policies within the CPD”); LaPorta v. City of Chicago, 277 F. Supp. 3d 969, 987–

89 (N.D. Ill. 2017) (denying summary judgment because of the defendant officers’ “investigative

shortcomings,” plaintiff’s expert testimony, the 2017 DOJ Report, and the 2016 PATF report).

In sum, Black has not come forward with sufficient evidence to support a Monell claim

about a widespread practice.

B. Failure to Train/Discipline

Finally, Black brings a Monell claim about the City’s alleged practice of failing to train

and discipline its officers. Once again, Black does not come forward with sufficient evidence.

When a Monell claim involves inaction, a plaintiff must show that the “policy or custom

demonstrates municipal fault,” i.e., deliberate indifference. See LaPorta, 988 F.3d at 986.

Deliberate indifference means a municipality “(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 v. County of Lake, 900 F.3d 335, 345 (7th Cir. 2018)

(cleaned up).

“A municipality’s culpability for a deprivation of rights is at its most tenuous where a

claim turns on a failure to train. To satisfy the statute, a municipality’s failure to train its

employees in a relevant respect must amount to deliberate indifference to the rights of the

persons with whom the [untrained employees] come into contact.” Connick v. Thompson, 563

U.S. 51, 61 (2011) (cleaned up). Deliberate indifference applies in both failure-to-train and

failure-to-discipline cases. See Jackson v. Village of Justice, 2020 WL 1530734, at *4 (N.D. Ill.

2020) (collecting cases).

In addition to deliberate indifference, a plaintiff must prove causation, meaning that the

failure to train or discipline was the “moving force behind the injury alleged.” Bd. of Cnty.

Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (quotation marks omitted); see also Connick, 563

U.S. at 59 n.5 (noting that deliberate indifference and causation are separate elements of a

failure-to-train claim).

Throughout his complaint, Black combines a failure-to-train claim and a failure-to-

discipline claim. See Cplt., at ¶¶ 65, 66, 76, 82 (Dckt. No. 1). He argues that the officers were

permitted to arrest, charge, and prosecute individuals without “proper training, supervision, or

discipline,” so officers lacked “knowledge of what constituted permissible basis for criminal

charges and how evidence should be collected, maintained, and transmitted to the criminal

justice system, among other subjects . . . .” Id. at ¶ 65.

But in his summary judgment response brief, Black frames his claim as involving a

failure to discipline. He doesn’t mention a failure to train at all. See Pl.’s Opp. to Defs.’ Mtn.

for Summ. J., at 8–10 (Dckt. No. 120). So the failure-to-train theory has left the station and is

out of the case.

That leaves the failure-to-discipline theory. Black appears to limit the theory to the

City’s failure to discipline officers for testifying untruthfully. Id.; Cplt., at ¶ 65 (Dckt. No.1).

Once again, Black relies heavily on the testimony of Moore, the 30(b)(6) witness. Black

argues that his testimony establishes the City’s deliberate indifference to officers’ untruthful

testimony because Moore testified to the existence of “a problem” within the CPD. And if there

is a problem – and the City’s disciplinary system has not remediated that problem – then the City

has acted with deliberate indifference to the issue.

Far from it. The existence of a problem is not the same thing as deliberate indifference to

a problem. “[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly

attributable to the municipality.” See Brown, 520 U.S. at 415. There’s no Monell double-

dipping.

If the mere existence of a widespread practice sufficed, then deliberate indifference

would melt away as a requirement. And watering down the requirements for a Monell claim is

exactly what the Supreme Court has instructed courts not to do. See Brown, 520 U.S. at 415

(“Where a court fails to adhere to rigorous requirements of culpability and causation, municipal

liability collapses into respondeat superior liability. As we recognized in Monell and have

repeatedly reaffirmed, Congress did not intend municipalities to be held liable unless

deliberate action attributable to the municipality directly caused a deprivation of federal rights.”)

(emphasis in original); see also LaPorta, 988 F.3d at 987 (“These requirements – policy or

custom, municipal fault, and ‘moving force’ causation — must be scrupulously applied in every

case alleging municipal liability.”).

Brown has failed to come forward with evidence sufficient to support a finding of

deliberate indifference by a reasonable jury. So he has no claim under a failure-to-train theory or

a failure-to-discipline theory.

Conclusion

For the reasons stated above, the individual Defendants’ motion for judgment on the

pleadings is granted, and the City’s motion for summary judgment is granted.

~ “

Date: February 11, 2022 D 7} Fp

Steven C. Seeger

United States District Judge

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