Joseph Rossi v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

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No. 13-3795

JOSEPH A. ROSSI,

Plaintiff-Appellant,

v.

CITY OF CHICAGO and GLENN MATHEWS,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 07 C 6399 — Edmond E. Chang, Judge

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ARGUED JANUARY 22, 2015 — DECIDED JUNE 22, 2015

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Before EASTERBROOK, MANION, and WILLIAMS, Circuit

Judges.

MANION, Circuit Judge. Joseph Rossi was assaulted by

several persons, one of whom was an off-duty Chicago

police officer. Glenn Mathews, a detective with the Chicago

Police Department, was assigned to investigate. For six

weeks, Mathews did practically no work on the case; he

followed zero leads, did not inspect the crime scene, and

questioned no witnesses other than Rossi. Aside from taking

2 No. 13-3795

some messages and filing perfunctory reports, he exerted no

discernible effort. He then closed his investigation.

Rossi sued Mathews under 42 U.S.C. § 1983 alleging that

he violated his constitutional right to judicial access because

his failure to investigate led to the spoilage of evidence in his

civil suit against the assailants. He also brought a Monell suit

against the City of Chicago for perpetuating a “code of

silence” that shields police officers from investigation and

promotes misconduct by police. The district court granted

summary judgment for the defendants on the grounds that

Rossi was not denied judicial access because the police did

not conceal from him any facts which prevented him from

obtaining legal redress from his assailants. The court also

dismissed Rossi’s Monell claims for lack of evidence of

widespread practices on the part of the police department.

We affirm.

I. Background

On November 11, 2006, Jose Garcia (Jose), president of

Garla Trucking and Excavation Company, arranged a

meeting at the company’s premises with Joseph Rossi. Rossi

believed that Jose wanted to meet with him in order to pay

him for work that Rossi had previously done for Garla. But

Jose had other designs: he sought to question Rossi about a

Bobcat construction vehicle that had disappeared from

Garla’s lot. Jose believed that Rossi knew the whereabouts of

the Bobcat and was determined to get him to speak about it,

by any means necessary.

What followed resembled less a business meeting than a

scene from a gangster film. When Rossi arrived at Garla,

Jose, Roberto Garcia (Jose’s brother), and two other Garla

No. 13-3795 3

employees bound him with electrical cord and duct tape and

began beating him. Three hours later, Catherine Doubek, a

Chicago Police Officer and the wife of Jose, arrived at Garla’s

premises to find the crew interrogating Rossi. Instead of

intervening, Doubek made a dramatic show (according to

the complaint) of removing her police badge to show Rossi

that his interrogators could assault him with impunity. After

that, Doubek acted as a lookout, utilizing her police radio to

monitor activity to ensure that the beating went undetected

by police. For the next several hours, Rossi remained tied to

the chair while Jose and his associates alternated between

questioning him about the Bobcat and beating him.

Rossi eventually escaped in the early morning by sending

Doubek on a “wild goose chase”—telling her that the

Bobcat was located at an equipment yard on the west side of

Chicago. When Doubek left to visit that site, Rossi, finally

alone, managed to chew through his restraint and escape

barefoot to the nearby home of a stranger where he called an

ambulance. In total, Rossi spent six hours bound to a chair;

in his haste to escape, he left behind his car keys and other

personal items at the scene of the crime.

Hours after the incident, Detective Glenn Mathews, a

Chicago Police Detective, interviewed Rossi while he was

still at the hospital receiving treatment for his injuries. In a

five-minute interview, Rossi recounted the incident to

Mathews, including that a Chicago police officer was one of

his assailants. However, because Rossi did not know

Doubek’s name but only knew that she was the wife of Jose

Garcia, he initially identified her by the name “Garcia.”

Rossi learned of the identity of each of his assailants in

the next three days. He called Mathews but was not able to

4 No. 13-3795

reach him; instead, he left a message furnishing the name

“Catherine Doubek” as the police officer involved in the

assault. He also supplied her home address, which (as

expected) was the same address as that of Jose Garcia.

Having been provided with Doubek’s address, Mathews

needed only to enter it into the police database—a standard

practice in all investigations—to learn that Doubek resided

at that address and was married to Jose Garcia. He failed to

do this.

Mathews’s indolence did not stop there. Despite

knowing their names and where they worked, Mathews

never attempted to question the suspects. He never visited

Garla’s premises even though he knew from his initial

interview with Rossi that this is where the assault occurred.

He never returned Rossi’s phone calls, and he never reached

out to additional witnesses. Instead, several weeks later—on

December 29, 2006—he filed a Supplementary Report in

which he spelled Doubek’s name as “Dubinek” and then

stated that he could not find any such name in the police

roster. Mathews requested a suspension of the investigation,

ostensibly because he could not ascertain the identity of the

police officer.

Because a police officer was reported to have been

involved in the assault, the Internal Affairs Division

conducted its own investigation—at least in appearance.

Officer Dennis Chengary was assigned to this investigation

but did not attempt to contact Rossi until December 11, 2006,

when he tried to visit him at his apartment. He failed at this

because the address listed in the police report was incorrect;

in fact, the reported address did not exist. Chengary located

Rossi’s landlord who provided him with a correct address,

No. 13-3795 5

but Chengary did not visit him there. Instead, he attempted

to mail a certified letter to Rossi, but proceeded to send it to

the incorrect address listed in the police report (which he

had tried to visit but failed). Weeks later, Chengary closed

the Internal Affairs investigation for lack of evidence.

Frustrated with the lack of effort by police, Rossi told his

story to the media who reported it as a police cover-up.

Faced with negative publicity, the police finally conducted a

thorough investigation in April 2007. When they searched

Garla’s premises—five months after the assault—the police

found that the room in which the interrogation occurred had

been cleaned and re-carpeted. They gathered fingerprints,

DNA and blood samples, and took photos. Rossi contends

that, despite these efforts, the majority of evidence was lost:

a rope that was placed around Rossi’s neck as a noose; beer

cans and other refuse; the chair to which Rossi was bound;

the extension cord used to bind Rossi; and Rossi’s personal

property such as his shoes and socks.

Officer Doubek was not interviewed about her role in the

assault until three years later in February 2010. Jose and

Roberto Garcia were convicted in state court of aggravated

battery and unlawful restraint in connection with the

incident. Doubek, however, was not charged; nor was she

disciplined by the police department.

Rossi brought civil claims against each of the assailants

and those have subsequently settled. He received $80,000

from the Garla defendants and an undisclosed amount from

Doubek. The only remaining claims are those against

Mathews and the City of Chicago. These claims allege that

Mathews’s failure to investigate violated his civil rights

under 42 U.S.C. § 1983 and led to the spoilage of evidence

6 No. 13-3795

that he could have used favorably in his civil suit against his

assailants. He also brought a Monell suit against the City,

alleging that the police force cultivated, and the City

allowed, a “code of silence” that shields police officers from

investigation and promotes a culture of misconduct among

police that contributed to his assault.

The district court granted summary judgment for the

defendants because Rossi had not demonstrated that the

defendants violated a clearly established constitutional right

as is required to prevail on a § 1983 claim. Specifically, the

district court found that Mathews did not deny Rossi judicial

access because his failure to investigate did not prevent

Rossi from discovering the identities of the assailants—he

already knew who assaulted him and was able to recover for

his injuries in a civil suit against them. Additionally, the

district court granted summary judgment against Rossi’s

Monell claim because he did not submit evidence suggesting

widespread practices by the police of failing to adhere to

ethical conduct.

Following the denial of Rossi’s motion for

reconsideration, the district court awarded the City $7,443 in

costs as the prevailing party.

II. Analysis

To survive a summary judgment motion, a plaintiff suing

under 42 U.S.C. § 1983 must show that there is a genuine

issue of material fact (that is, a fact capable of affecting the

outcome) about one or more of the essential elements of the

action. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We

review the district court’s grant of summary judgment de

novo, construing all facts and reasonable inferences in Rossi’s

No. 13-3795 7

favor. Smiley v. Columbia College Chicago, 714 F.3d 998, 1001

(7th Cir. 2013). To obtain relief under § 1983, Rossi must

demonstrate that a person acting under color of state law

deprived him of a right, privilege, or immunity secured by

either the Constitution or by federal law. Rather than acting

as a source of rights, § 1983 serves as a vehicle for

“vindicating federal rights elsewhere conferred.” Graham v.

Connor, 490 U.S. 386, 393–94 (1989).

A. Right to Judicial Access

The First and Fourteenth Amendments protect the rights

of individuals to seek legal redress for claims that have a

reasonable basis in law and fact. Christopher v. Harbury, 536

U.S. 403, 414–15 (2002). Interference with the right of court

access by state agents who intentionally conceal the true

facts about a crime may be actionable as a deprivation of

constitutional rights under § 1983. Bounds v. Smith, 430 U.S.

817, 822 (explaining that judicial access must be “adequate,

effective, and meaningful”).

Here, Rossi claims that Detective Mathews violated his

right to judicial access by failing to investigate the crime

scene and purposefully concealing Doubek’s identity.

Mathews, in turn, argues that Rossi was not denied judicial

access because he was able to obtain settlements from each

of his assailants. Absent a constitutional violation, Mathews,

as a public official, is shielded from liability by qualified

immunity. Viilo v. Eyre, 547 F.3d 707, 709 (7th Cir. 2008).

We note at the outset that Rossi does not have a

constitutional right to have the police investigate his case at

all, still less to do so to his level of satisfaction. See, e.g.,

DeShaney v. Winnebago County Department of Social Services,

8 No. 13-3795

489 U.S. 189, 196 (1989) (holding that the Constitution

“generally confer[s] no affirmative right to governmental

aid, even where such aid may be necessary secure life,

liberty, or property interests of which the government itself

may not deprive the individual.”). While DeShaney does not

address police behavior specifically, the implication is clear:

mere inactivity by police does not give rise to a

constitutional claim. For this reason, the operative question

is not whether Rossi’s case would have been better had the

police conducted a worthy investigation, but whether their

failure to do so limited his ability to obtain legal redress to

such degree that it constituted a denial of judicial access.

Our analysis in this case is guided by two decisions of

this court where we examined police cover-ups of varying

orders of magnitude. The first case is Bell v. City of

Milwaukee, 746 F.2d 1205 (7th Cir. 1984), and involved an

egregious police cover-up that effectively denied a plaintiff

judicial access. Eleven years later, we examined another

police cover-up in Vasquez v. Hernandez, 60 F.3d 325 (7th Cir.

1995), but held that the plaintiff was not denied judicial

access notwithstanding a faulty initial investigation. We

examine each in turn.

In Bell, police officers shot and killed Daniel Bell after a

brief chase. They then planted a knife in his hand and

created a fictitious story that Bell had threatened them with

the knife. An internal investigation ensued which cleared the

officers of wrongdoing and contributed to the decision of

Bell’s father to settle his lawsuit with the city for a meager

sum (though he never cashed the check). Two decades later,

information surfaced that revealed that the police officers

had fabricated the story and planted the knife on Bell. The

No. 13-3795 9

family filed another lawsuit and a jury awarded them a

substantially greater sum in damages.

The facts in Vasquez are similar in kind but not degree. In

Vasquez, the plaintiff, a young girl, was struck in the ear by a

stray bullet fired by her neighbor, an off-duty police officer,

who was intoxicated at the time. The police investigated—

half-heartedly, by all appearances—and found nothing. A

separate task force of state and federal officials then

investigated and identified the police officer as the shooter.

After the investigation by the task force—and before the

statute of limitations had expired—the plaintiff sued the

original investigating officers, alleging that they denied the

plaintiff’s right to judicial access by covering up for the off-

duty police officer.

We recognized a constitutional violation for denial of

judicial access in Bell but not in Vasquez. We did so based on

the differing effects that the alleged cover-ups had on the

ability of the respective plaintiffs to achieve legal redress

despite the lack of cooperation by police. In Bell, the cover-

up effectively foreclosed the ability of Bell’s father to learn

the facts of his case and to seek relief for any injury. Bell, 746

F.2d at 1261 (“Though [the father] filed a wrongful death

claim in state court soon after the killing, the cover-up and

resistance of the investigating police officers rendered

hollow his right to seek redress”). In so holding, we factored

heavily the interval between the initial investigation and the

disclosure of the true facts; after two decades, the period of

limitations had run and the possibility of timely legal redress

had been permanently thwarted by the cover-up.

In contrast, the cover-up in Vasquez merely delayed but

did not ultimately prevent the plaintiff from receiving legal

10 No. 13-3795

redress. The six-month interim between the shooting and the

identification of the shooter still allowed sufficient time for

the plaintiff to file a civil action before the expiration of the

limitations period. Further, the subsequent investigation by

the task force aided the plaintiffs in their civil tort case. 60

F.3d at 329 (“Unlike the twenty year delay in Bell, the actual

circumstances surrounding the shooting here were revealed

publicly within six months of the incident …. Hence, the

delay, albeit frustrating for the Vasquezes, has not been

without some benefit to them.”).

We agree with the district court that the facts of this case

more closely resemble those of Vasquez than Bell. First, there

is the order of magnitude of the misbehavior—in Bell police

officers shot a man under questionable circumstances,

conspired to plant a knife on him, and then engineered an

investigation designed to conceal rather than reveal the

truth. Having secured its bargaining position, the city then

forced the father of the deceased to accept a lowball

settlement. By contrast, the misbehavior of police here (and

in Vasquez) did not so damage the plaintiff’s litigation

posture that it precluded adequate relief. Mathews did not

conceal any facts about the incident that were not already

known to Rossi. Nor was Rossi reliant on Mathews to

discover facts necessary to fill in gaps in his knowledge. He

knew who the perpetrators were, where the incident

occurred, and he had full access to much of the evidence

required to prevail in a civil suit: witnesses, medical records,

police reports, and other documentary evidence. All of this

was available to Rossi and was not contingent on a rigorous

police investigation.

No. 13-3795 11

Finally, there were the curative measures. In this case, as

in Vasquez, a proper investigation was conducted within

months of the crime and before the expiration of the

limitations period. Like Vasquez, Rossi was able to use the

findings of these investigations in his civil suit against his

assailants. To be sure, Rossi’s case would likely have been

stronger had Mathews conducted a prompt search of Garla’s

premises, but this fact, standing alone, is not sufficient to

support the conclusion that Mathews’s actions denied Rossi

an opportunity to achieve sufficient redress through a civil

action.

Whether a cover-up (or a clear failure to investigate)

occurred is merely one, albeit important, factor in

determining whether a denial of judicial access occurred; the

plaintiff must also show that the police’s actions harmed his

ability to obtain appropriate relief. This will depend on

factors such as whether the plaintiff was able to discover the

facts on his own, whether a proper investigation was later

conducted, and whether the true facts are disclosed prior to

the expiration of the limitations period.

Rossi was not denied judicial access because he knew all

of the relevant facts of his case and was free to pursue legal

redress at all times. In so concluding, we are reminded of

our decision in Thompson v. Boggs, 33 F.3d 847 (7th Cir. 1994),

where we arrived at the same result despite different facts.

In Thompson, a police officer fractured the vertebrae of a

plaintiff while arresting him after a high-speed chase. The

plaintiff sued for denial of access to justice because the

officer did not include any details about his use of force in

the police report. We concluded that the plaintiff had not

been denied access to justice because “the facts known to

12 No. 13-3795

[him] concerning the arrest were sufficient to enable him to

promptly file the instant lawsuit unlike Bell, where the true

facts were concealed.” Thompson, 33 F.3d at 852.

The actions of Detective Mathews—defensible or not—in

no way prevented Rossi from exercising his right to seek

legal redress. For this reason, Rossi failed to establish a

violation of his constitutional right to judicial access and

Mathews is shielded from liability by qualified immunity.

B. Monell Claims

Rossi also appeals the district court’s grant of summary

judgment to the City on his Monell claim. A government

entity can be held liable under § 1983 when the execution of

a government policy or custom is deemed to inflict an injury

on a plaintiff. Monell v. Dep’t of Soc. Servs. of New York, 436

U.S. 658, 694 (1978). But a municipality cannot be held liable

solely on the grounds of respondeat superior. Id at 691. The

Supreme Court has recognized three particular grounds on

which a municipality can be held liable under § 1983. There

must be: (1) an express policy that would cause a

constitutional deprivation if enforced; (2) a common practice

that is so widespread and well-settled that it constitutes a

custom or usage with the force of law even though it is not

authorized by written law or express policy; or (3) an

allegation that a person with final policy-making authority

caused a constitutional injury. Lawrence v. Kenosha County,

391 F.3d 837, 844 (7th Cir. 2004).

Finding that Rossi had not offered sufficient evidence to

support his Monell claims, the district court granted

summary judgment for the City. The court first examined

Rossi’s contention that the City engaged in a widespread

No. 13-3795 13

practice of allowing police officers to consort with convicted

felons despite an official policy prohibiting such

associations. Rossi’s evidence was limited to deposition

testimony from a Chicago police lieutenant who claimed

that he investigated numerous allegations of improper

relationships between Chicago police officers and felons.

Significantly, the plaintiff did not elicit any testimony about

the quantity, frequency, or nature of the relationships

investigated. Given the lack of context, the lieutenant’s

testimony served more as a passing comment than evidence

demonstrating a widespread practice of inappropriate

relationships by police in contravention of an official policy.

The district court rightly rejected this evidence.

Rossi’s second contention is closer to the mark as it

alleges a “code of silence,” namely a failure on the part of

the police department to discipline and train officers

regarding ethical conduct. The district court ruled against

Rossi on evidentiary grounds, not because this theory was

defective. Indeed, the 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. In other

words, Monell claims focus on institutional behavior; for this

reason, misbehavior 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.

14 No. 13-3795

Rossi failed to do that here. He did not retain a defense

expert for his case and his pre-trial disclosures failed to

identify any expert reports addressing this particular issue.

Rossi did offer three expert reports that were submitted in a

separate case, Obrycka v. City of Chicago, 2012 WL 601810

(N.D. Ill. Feb. 23, 2012). The district court declined to

consider these reports because they did not comply with the

disclosure requirements of the Federal Rules of Civil

Procedure. See Fed. R. Civ. P. 26(e)(2). The exclusion of non-

disclosed evidence is “mandatory under Rule 37(c)(1) unless

non-disclosure was justified or harmless.” Musser v. Gentiva

Health Servs., 356 F.3d 751, 758 (7th Cir. 2004). In the context

of this case, the non-disclosure was neither harmless nor

justified because it deprived the city of any opportunity to

retain its own experts to analyze the merits of the factual

claims of the expert reports. The district court, therefore, did

not abuse its discretion in declining to consider the expert

reports.

The remaining evidence submitted by Rossi is anecdotal

and does not establish a tie between the actions of the

individual officers and the police department as a whole. He

submitted various remarks by district judges critical of the

Chicago Police Department but the district court rightly

declined to consider these as the judicial comments do not

qualify as evidence. Rossi’s other evidence is likewise

unavailing. He cites to the Independent Police Review

Authority but fails to articulate how the existence of this

body demonstrates anything about widespread practices on

the part of a large and diverse institution such as Chicago

Police Department.

No. 13-3795 15

For these reasons, the district court did not err in

granting summary judgment for the City on Rossi’s Monell

claims.

C. Award of Costs

Rule 54 of the Federal Rules of Civil Procedure provides

that, in the absence of a federal statute, rule, or court order

directing otherwise, courts should award costs to the

prevailing party. Fed. R. Civ. P. 54(d)(1). The district court

complied with this rule and awarded costs to the City.

Rossi objects because he is unable to pay costs due to his

financial condition. His claim could have some merit in light

of the protracted litigation, however he failed to provide an

affidavit or any other documentary evidence to support his

claim. The burden of proving financial hardship falls on the

objecting party, who must provide the court with sufficient

documentation such as affidavits, statements of assets and

income, and a schedule of expenses. Rivera v. City of Chicago,

469 F.3d 631, 635 (7th Cir. 2006). Because Rossi provided no

such evidence, the district court acted within its discretion to

award costs to the City.

III. Conclusion

For the foregoing reasons, we AFFIRM the grant of

summary judgment by the district court.