Robbin v. Lopez

1

PHILLIP ROBBIN, Plaintiff, v. SARAH LOPEZ, the CITY OF BERWYN, and ROBERT LOVERO, Defendants.

No. 22 C 5435

United States District Court, N.D. Illinois, Eastern Division

April 24, 2023

MEMORANDUM OPINION AND ORDER

Ronald A. Guzman United States District judge

For the reasons stated below, the motions to dismiss by the City of Berwyn and Robert Lovero [17] and Sarah Lopez [32] are granted. Having dismissed the federal claim with prejudice the Court declines to exercise jurisdiction over the state-law claims, which are dismissed without prejudice. Civil case terminated.

STATEMENT

Background

The Court assumes the truth of the following alleged facts for purposes of the instant motion to dismiss. Plaintiff Phillip Robbin is the owner and operator of Eagle Eye Tree Service, a business that trims and removes trees. Plaintiff was hired by the City of Berwyn (the “City”) to remove a tree at 6425 W. 27th Street in Berwyn, Illinois. On Monday, May 2 2022, prior to beginning work in Berwyn, Plaintiff visited Berwyn's City Hall to find out the instructions for removing the tree and was told that he should attempt to remove the tree through the alley so that he would not block the one-way street. On May 9, 2022, Plaintiff and an assistant, Matthew Byrne, brought equipment to the job site and parked their truck in the alley as instructed. They were in the process of removing the tree when a white car marked “City of Berwyn” with no front license plate pulled up with its horn blaring. A woman, later identified as defendant Sarah Lopez, shouted to Plaintiff to “put that log down and move this truck NOW.” Plaintiff responded that he had permission to park in the alley to remove the tree. Lopez allegedly shouted, “I don't care - move that truck!” Plaintiff, who had been in the process of carrying a log to the truck, continued toward the truck to deposit the log. After Plaintiff deposited the log in his truck, Lopez screamed, “your truck can't be here, you have to move!” Plaintiff explained he had the appropriate permits and licenses and was bonded, and Lopez responded by stating, “You need to move this truck, you don't know who you are messing with.” When Plaintiff began to walk towards the backyard where he had been working, Lopez screamed, “Don't turn your back on me, you fucking nigger!” Shouting at the top of her lungs, Lopez exited the car and walked towards Plaintiff calling him a “fucking nigger” at least three more times. Lopez screamed, “you don't know who you are dealing with, you fucking nigger. I am calling the police.” Plaintiff's assistant, the homeowner and his family, and the next-door neighbors witnessed the incident and heard Lopez use the racial slurs.

Lopez backed her car down the alley and pulled off to the side. Subsequently, Berwyn Police Officers Jennifer Stillo and Raul Perez arrived on the scene, with Officer Stillo driving into the alley eastbound and Officer Perez driving into the alley westbound. The officers were responding to a call of a “harassment in progress.” Officer Perez approached Plaintiff and positioned him with his back to a fence, demanding his identification. Plaintiff alleges that he was in fear of bodily injury. Meanwhile, Officer Stillo spoke with Lopez, who shouted to Officer Stillo that “he is a liar!” Lopez stated that there had been multiple calls about the alley being blocked. When Officer Stillo said that no one had called the police about the alley, Lopez said that the calls had been to City Hall and were anonymous. When Officer Stillo asked Lopez if she had called Plaintiff a racial slur, Lopez at first denied using any slurs or threats. However, after Officer Stillo spoke with others who witnessed the incident, Lopez admitted that she had “called [Plaintiff] a nigger” and then stated, “I am so sick and tired of these people!” Officer Stillo recorded these statements verbatim in the police report.

Officer Stillo spoke to Plaintiff's assistant, who confirmed that Lopez had started screaming at the top of her lungs for them to move the truck and then started to swear and began to call Plaintiff a “nigger.” Officer Stillo also spoke to neighbor Stephanie Flores and her son Mikey Flores, who went to the alley to see what was happening after they heard Lopez screaming. The Floreses confirmed that Lopez was screaming loudly and shouted at Plaintiff, “Fuck you you fucking nigger” while he was actively loading the tree and could not have moved. Officer Stillo again spoke with Lopez who admitted that she had lied and that there had been no complaints from residents about the truck. Lopez stated that she was a Blight Inspector for the City and that she had been on routine patrol checking for blight at the time of the incident. Officer Stillo approached Plaintiff who was still being questioned by Officer Perez. Officer Stillo told Officer Perez to return Plaintiff's identification and said, “I am not going to leave a word out” of the police report. Officer Perez's report confirmed the events as reported by Officer Stillo.

Plaintiff immediately went to Berwyn's Police Department to submit a request under the Illinois Freedom of Information Act (“FOIA”) for the police report. After not receiving the report, Plaintiff returned to the Berwyn Police Department, where he was told that the “Mayor's office took over the FOIA request.” Plaintiff then went to City Hall and met with Berwyn Mayor Robert Lovero, who stated that he was aware of the incident and that the investigation was ongoing. Plaintiff indicated to the mayor that he would like to be informed of the outcome of the investigation; Mayor Lovero instructed Plaintiff to call again in a couple of weeks. In the next few days, Plaintiff and his attorney made several calls to Berwyn's Records Department seeking a response to the FOIA request for the police report. During this period, Berwyn city administrators and the Berwyn Police Department were internally discussing what happened to Plaintiff. On May 12, 2022, the City's FOIA officer sent Plaintiff's request for the police report to a number of people, including the City Attorney and the Chief of the Berwyn Police Department, asking them to “review and respond.”

On May 19, 2022, Berwyn Police Department Unit Commander Salvador Gamino emailed the FOIA officer to request an extension, stating the request had been sent to the City Attorney's office for review. On May 26, 2022, the City of Berwyn denied Plaintiff's request for the police report, stating, “Today, City Attorney Anthony Bertuca has advised my office that he will not be releasing the report at this time. He is denying your request.” No reason for the denial was given.

Plaintiff then scheduled a second meeting with Mayor Lovero, at which Plaintiff was accompanied by his attorney. When Plaintiff and his lawyer asked for the police report, the mayor stated that it was “here somewhere” on his desk but he could not find it. The mayor's assistant walked in and out of the office, appearing to search for the report. The mayor then told Plaintiff that he knew the “the City worker” personally and “she works for us.” The mayor further told Plaintiff and his attorney that there were “two sides to every story,” that “you said some things too,” and that Plaintiff's “paperwork was not in order.” Plaintiff corrected the mayor and confirmed that he had complied with the requirements to work in Berwyn. Mayor Lovero stated that he could not disclose the city worker's name, but that he had given her a verbal reprimand. He then stated that “she will not be terminated. That is the end of the investigation of this incident.”

Later that evening, the mayor's office sent Plaintiff's attorney a report naming Lopez as the aggressor. A few days later, Plaintiff's attorney contacted Berwyn's City Attorney Anthony Bertuca and asked him to investigate the matter. Bertuca said he would talk to the mayor and asked Plaintiff's attorney what he was looking for. Plaintiff's attorney replied, “Justice-and a verbal reprimand isn't justice.” Hearing nothing for several days, Plaintiff's attorney again called Bertuca, who stated that “the mayor offered you an apology so that's all we are going to do.”

On June 7, 2022, Plaintiff and his attorney went to the Berwyn Police Department to report the incident as a hate crime and were told to come back later to talk to Unit Commander Fellows. Plaintiff and his attorney returned on June 8, 2022, when they met with two detectives who stated they were “not part of any political machine” and would investigate. A week later, Commander Fellows called Plaintiff's attorney and indicated that the investigation was complete. According to Commander Fellows, some of the witnesses had “changed their stories” and stated that Lopez had been walking away from Plaintiff and was speaking “under her breath” when uttering the slurs. For these reasons, Commander Fellows indicated that they would not be charging Lopez with a hate crime. Plaintiff alleges on information and belief that no witnesses' stories changed.

Plaintiff and his attorney next went to the Cook County Sheriff's office in Maywood, Illinois and asked them to open an investigation. Plaintiff and his attorney met with two plainclothes detectives who refused to take Plaintiff's statement and indicated that to begin an investigation, the Berwyn Police Chief would have to “self-report a conflict.” The detectives stated that “Berwyn had its investigation, and we can't step on their toes.”

On July 19, 2022, Plaintiff and his attorney were interviewed by the local CBS news affiliate. After the story aired, on July 21 2022, Berwyn activists organized a press conference in front of Berwyn City Hall and invited additional media coverage. Just before the press conference...