Cady v. Village of McCook

57 F. App'x 261
Court of Appeals for the Seventh Circuit·Decided January 13, 2003·No. No. 02-2579·Published·Cited by 5 cases

Opinion

ORDER

Davy Cady brought suit in district court, alleging a variety of federal and state claims, including several constitutional violations cognizable under 42 U.S.C. § 1983, arising out of an encounter with two police officers. The district court granted summary judgment for the defendants, and we affirm.

Following a 20-minute encounter with police officers while jogging in McCook, Illinois, Cady sued the Village of McCook, three McCook police officers, the mayor of McCook, and the McCook Board of Trustees alleging 14 counts, including unlawful restraint, unauthorized practice of law, negligent infliction of emotional distress, the tort of outrage, official misconduct, conspiracy, and violations of his free exercise of religion, freedom from unreasonable seizure, and privacy rights. The defendants subsequently moved for summary judgment. The record includes the defendants’ Notices of Filing for both their summary judgment papers and Local Rule 56.2 Notice to Pro Se Litigants Opposing Summary Judgment. Two weeks later, Cady filed an unsworn reply to the defendants’ motion for summary judgment. Approximately a month after filing his reply, and after the filing deadline set by the court had already passed, Cady also moved to file an affidavit in response to summary judgment, citing being “out of town for much of the end of 2001” as the reason for filing the affidavit late, but the court declined to consider his affidavit.

The court ultimately granted summary judgment for the defendants, concluding that although the officers subjected Cady to an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the officers’ interest in Cady’s well-being constituted a reasonable basis on which to approach him, and that the duration and nature of the encounter were reasonable. Because no federal issues remained in the case after summary judgment on Cady’s constitutional claims, the court relinquished jurisdiction over his state law claims.

[263] First, we note that the district court judge may have been more generous to Cady than he needed to be in considering the facts of the encounter. The judge drew the facts from both the defendants’ summary judgment materials and all of the allegations in Cady’s complaint. But because Cady did not file any timely, sworn materials in response to the defendants’ summary judgment motion, the judge was required to consider only facts included in the defendants’ summary judgment materials and allegations in the complaint that the defendants had admitted. See Hedrich v. Bd. of Regents of Univ. of Wis. System, 274 F.3d 1174, 1178 (7th Cir.2001) (“[I]t is common to punish a party’s failure to comply with summary judgment rules by ignoring that party’s unsupported factual allegations and accepting as true those of the opposing party.”).

In any case, the judge considered the following facts. At approximately 8 p.m. on a summer evening in 2000, Village of McCook Officers Strnad and Tokarski received a dispatch, arising from phone calls from local residents, that a barefoot man, seemingly all wet, was talking to himself while walking along their street. The officers arrived in separate cars, found Cady jogging barefoot along a grassy area, and pulled their cars across his intended jogging path. Cady denied to the district court that he was all wet and talking to himself, but conceded that he may have been perspiring heavily, may have doused himself with water to cool down, or may have been practicing a foreign language or singing a hymn.

The officers got out of their cars, approached Cady, and started a discussion with him. The officers asked Cady what he was doing and requested identification from him. Cady responded to the officers that he was jogging and stretching, that he did not have any identification, that he did not want to identify himself, and that the officers did not have probable cause or reasonable suspicion to detain him. The officers told Cady that they were merely investigating calls about a barefoot man, inquired into his well-being, and assured him that he was not under arrest and was free to leave. Cady then engaged the officers in a discussion about religion and his constitutional rights. Cady also alleged in his complaint that the officers warned him that he could avoid future “problems” if he were to jog on the other side of the street, which, according to Cady, is located in another municipality.

Approximately 20 minutes into the encounter, Cady told the officers that he would be going on his way without identifying himself and began to jog away in the direction from which he came. Although the officers pressed Cady one last time to identify himself, they did not attempt to hinder his leaving in any way. At no point did the officers brandish their guns or touch Cady. Cady alleged in his complaint that following the encounter, he was “so outraged, emotionally distraught, and discouraged” that he stopped jogging altogether. He further alleged that as a result, he gained considerable body weight, became depressed, lost self-esteem and much of his social life, and had a hard time finding work.

Cady timely appealed and challenges the grant of summary judgment on his unreasonable seizure, equal protection, and freedom of religion claims and asserts, for the first time on appeal, that he never received the required notice for pro se litigants opposing summary judgment. We review the grant of summary judgment de novo. Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir.2000).

For his unreasonable seizure claim, Cady argues that the district court erred in concluding that the officers had a rea-

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Cady v. Village of McCook, 57 F. App'x 261 (7th Cir. 2003).

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