Joseph Rossi v. City of Chicago ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
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
____________________
ARGUED JANUARY 22, 2015 — DECIDED JUNE 22, 2015
____________________
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.