Devon Friend v. Valley View Community Unit Sc , 789 F.3d 707 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3307
DEVON FRIEND f/k/a DEVON HODGES,
Plaintiff-Appellant,
v.
VALLEY VIEW COMMUNITY UNIT
SCHOOL DISTRICT 365U, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 8418 — Ronald A. Guzmán, Judge.
ARGUED JANUARY 21, 2015 — DECIDED JUNE 12, 2015
Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-appellant, Devon Friend,
formerly known as Devon Hodges, once a standout Illinois
high school basketball player, filed suit under 42 U.S.C. § 1983against Valley View Community School District 365U and
various administrators, teachers, and coaches employed by the
2 No. 13-3307
School District,1 as well as the Illinois High School Association
(“IHSA”) and its Executive Director Martin Hickman. Friend’s
third amended complaint raised six claims: First Amendment
retaliation, equal protection (class of one), substantive due
process, unconstitutional policy or custom (Monell), § 1983
conspiracy to violate his constitutional rights, and indemnifica-
tion under the Illinois Tort Immunity Act, 745 ILCS 10/9-102.
At the close of discovery, both the School District and IHSA
defendants moved for summary judgment. In his summary
judgment order, the district court judge determined that Friend
failed to comply with Northern District of Illinois Rule 56.1.
Because of this failure, the court deemed admitted all of the
defendants’ properly supported facts and disregarded Friend’s
additional facts that lacked evidentiary support. The district
court judge then entered summary judgment in favor of both
the School District and IHSA defendants, disposing of all of
Friend’s claims.
Friend challenges this decision on appeal, and he challenges
the district court judge’s determination that he failed to comply
with Local Rule 56.1. For the following reasons, we affirm.
At the outset, we note that a lengthy recitation of the facts
is not necessary to our resolution of Friend’s appeal. For the
record, in both the district court and on appeal, makes our
discussion of the merits of the district court judge’s summary
judgment decision of necessity quite limited. That being said,
1
The individual School District defendants are James Mitchem, Jr., James
Boudoris, Jeffery Bambule, Robert Brost, Alec Anderson, Paul Gammichia,
and Art Pahl.
No. 13-3307 3
we dive right into Friend’s procedural challenge to the district
court’s enforcement of Rule 56.1.
I. The District Court’s Rule 56.1 Determination
Northern District of Illinois Rule 56.1(a)(3) requires a party
moving for summary judgment to include with that motion “a
statement of material facts as to which the moving party
contends there is no genuine issue and that entitle the moving
party to a judgment as a matter of law[.]” This statement must
be organized by numbered paragraphs and refer to the
“affidavits, parts of the record, and other supporting materi-
als” that substantiate the asserted facts. Id. Both the School
District and IHSA defendants, as movants for summary
judgment, complied with Rule 56.1. Friend, the party opposing
summary judgment, was required to respond to each num-
bered paragraph and, in the case of any disagreement, provide
“specific references to the affidavits, parts of the record, and
other supporting materials relied upon[.]” Id. 56.1(b)(3)(B). As
a penalty for noncompliance, the Rule provides that “[a]ll
material facts set forth in the statement required of the moving
party will be deemed to be admitted unless controverted by
the statement of the opposing party.” Id. 56.1(b)(3)(C).
The district court found that both Friend’s response to the
defendants’ statements of material facts and Friend’s statement
of additional facts failed to comply with Rule 56.1. Because of
this failure, the court deemed Friend to have “admitted all of
the properly supported facts asserted by defendants and dis-
regard[ed] any fact he asserted for which he did not provide
evidentiary support.” Friend contends that this decision was in
error. We review the district court’s enforcement of the local
4 No. 13-3307
rules for an abuse of discretion. F.T.C. v. Bay Area Bus. Council,
Inc., 423 F.3d 627, 633 (7th Cir. 2005). Because “local rule[s] of
a federal district court [are] written by and for district judges
to deal with the special problems of their court,” we are
inclined to “give a district court’s interpretation of his [or her]
local rules … considerable weight.” Cichon v. Exelon Generation
Co., L.L.C., 401 F.3d 803, 810 (7th Cir. 2005) (citation omitted).
Friend argues that the facts the district court deemed
admitted “were amply contested” and “supported by refer-
ences to the record, specifically to depositions submitted by
[d]efendants.” This is simply not the case. The district court
deemed Friend to have admitted the facts asserted in twenty-
one paragraphs from the defendants’ statements of material
facts. For eighteen of these paragraphs, Friend did not provide
any citation to appropriate record evidence in support of his
denial. See, e.g., Ammons v. Aramark Uniform Servs., Inc., 368
F.3d 809, 817 (7th Cir. 2004) (“[W]here a non-moving party
denies a factual allegation by the party moving for summary
judgment, that denial must include a specific reference to the
affidavit or other part of the record that supports such a
denial.”). As for the other three paragraphs, Friend provided
a citation to the record, but none of these citations support the
denials. Plainly stated, the district court did not abuse its
discretion in deeming these facts admitted.
Friend’s statement of additional facts is also deficient. As
the district court found, Friend failed to cite or submit evidence
in support of nearly all of the additional facts he asserted. At
times, Friend’s statement of additional facts goes on for pages
without providing a single citation to the record (for example,
paragraph 28 spans two pages, or more, and does not provide
No. 13-3307 5
a citation in support of any of the numerous factual statements
made therein). At other times, Friend provides citations, but
the citations provided are wholly inadequate. Throughout his
statement of additional facts, Friend cites to depositions
without identifying the corresponding deponent or the specific
page number(s) on which the asserted fact can be found. See
Ammons, 368 F.3d at 818 (“A court should not be expected to
review a lengthy record for facts that a party could have easily
identified with greater particularity.”). All in all, Friend’s
efforts cannot be considered compliant, let alone strictly
compliant, with the requirements of Rule 56.1. See Bordelon v.
Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir.
2000) (“[W]e have consistently and repeatedly upheld a district
court’s discretion to require strict compliance with its local
rules governing summary judgment.”). Accordingly, the
district court did not abuse its discretion in disregarding the
facts contained in Friend’s statement of additional facts that
were not supported by proper citations to the record.
Having determined that the district court did not err in
finding that Friend violated Rule 56.1, we turn to the record on
appeal and the district court’s summary judgment determina-
tion.
II. The District Court’s Summary
Judgment Determination
The district court entered summary judgment in favor of
the School District and IHSA defendants on each of Friend’s six
claims: First Amendment retaliation, equal protection (class of
one), substantive due process, unconstitutional policy or
custom (Monell), § 1983 conspiracy to violate his constitutional
6 No. 13-3307
rights, and indemnification under the Illinois Tort Immunity
Act, 745 ILCS 10/9-102. We review a district court’s grant of
summary judgment de novo, construing all facts and reasonable
inferences in the light most favorable to Friend, the nonmoving
party. Summary judgment is appropriate when there is “no
genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Federal Rule of Appellate Procedure 28(a)(8)(A) states that
the argument section of a brief must contain “citations to the
authorities and parts of the record on which the appellant
relies[.]” But Friend’s brief, over the course of eighteen pages,
provides precisely six citations for factual assertions. These
citations, which principally refer to deposition testimony, do
not designate the specific page number(s) from the record or
cited deposition transcript where the asserted facts may be
found. Nor does Friend provide citations on a fact-by-fact
basis. Instead, he affixes citations to the end of paragraphs,
each of which contain numerous factual assertions. Further
complicating things, all but one of Friend’s six citations
reference multiple depositions, preceded by the introductory
signal “See” (the other citation in Friend’s brief is to a fifty-six
page deposition). For example, page fifteen of Friend’s brief
contains a citation that reads “See Dkt. 133-1, 137-1, 138-1, 139-
1”—the four documents referred to in this citation are deposi-
tions, which range from 101 to 169 pages long. We are not
required to scour through hundreds of pages of deposition
transcript in order to verify an assortment of facts, each of
which could be located anywhere within the multiple deposi-
tions cited. As we have cautioned time and again, “[j]udges are
not like pigs, hunting for truffles buried in [the record].” United
No. 13-3307 7
Sates v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991); see also Corely
v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1001 (7th Cir.
2004) (“[W]e will not root through the hundreds of documents
and thousands of pages that make up the record here to make
his case for him.”).
The situation would not be so bleak if we could refer back
to Friend’s statement of facts in order to verify the factual
assertions that he makes in his argument. See Fed. R. App. P.
28(a)(6) (requiring appellant’s opening brief contain “a concise
statement of the case; setting out the facts relevant to the issues
submitted for review … with appropriate references to the
record”). But Friend does not provide a statement of facts
compliant with Federal Rule of Appellate Procedure 28(a)(6).
Instead, he merely directs our attention, “for the ease of
analysis,” to his Rule 56.1 statement—the same statement of
facts that the district court found, and we confirmed, to suffer
from want of citation to evidentiary support. See Gross v. Town
of Cicero, Ill., 619 F.3d 697, 702 (7th Cir. 2010) (“the [Federal
Rules of Appellate Procedure] require litigants to cite directly
to the record, as opposed to something like a Rule 56.1
statement”).
Appellate briefs must contain an argument consisting of
more than a generalized assertion of error. Fed. R. App. P.
28(a); Correa v. White, 518 F.3d 516, 517 (7th Cir. 2008) (stating
the Federal Rules of Appellate Procedure require that an
appellant “explain adequately why [he or] she believes the
district court erred in granting summary judgment”); Jones v.
InfoCure Corp., 310 F.3d 529, 534 (7th Cir. 2002); Anderson v.
Handman, 241 F.3d 544, 545 (7th Cir. 2001). But, excepting his
First Amendment retaliation claim, Friend does not inform us
8 No. 13-3307
why the district court erred in granting summary judgment. In
fact, the sections of Friend’s brief dedicated to his equal
protection, substantive due process, Monell, and § 1983
conspiracy claims all fail to reference the district court judg-
ment whatsoever.2 Nor could these sections respond to the
district court’s decision, since each section is directly copied
and pasted, essentially word for word from Friend’s response
to the defendants’ motion for summary judgment.
Because Friend violated Rule 28, we strike all portions of
his argument section that rely on unsupported facts or fail to
identify a specific error in the district court’s decision. As a
result, the only issue remaining for our review concerns
Friend’s First Amendment retaliation claim.
Friend’s First Amendment retaliation claim can be briefly
summarized as follows: the School District and IHSA defen-
dants singled Friend out for residency investigations, which
rendered him ineligible to participate in high school basketball
for approximately ten days, because his mother lodged
complaints with the School District. The district court granted
summary judgment to the defendants, holding that Friend’s
First Amendment retaliation claim failed because: (1) the
speech underlying his claim was not his own, but that of his
mother, and (2) the defendants’ allegedly retaliatory actions,
investigating Friend’s residency, were prompted by third-party
complaints that he was violating the School District’s residency
rules.
2
Friend’s appellate brief does not mention his Illinois Tort Immunity Act
claim whatsoever. As a result, this point is forfeited. Milligan v. Bd. of Trs.
of S. Ill. Univ., 686 F.3d 378 (7th Cir. 2012).
No. 13-3307 9
Friend challenges the first ground on which the district
court entered summary judgment against him; he does not
contest the second. This is fatal to his appeal, since each
ground constitutes an adequate and independent basis for
entering summary judgment against him on his First
Amendment retaliation claim. See Springer v. Durflinger, 518
F.3d 479, 483 (7th Cir. 2008) (“To prevail on their § 1983
retaliation claim, the parents need to prove (1) that they were
engaged in constitutionally protected speech; (2) that public
officials took adverse actions against them; and (3) that the
adverse actions were motivated at least in part as a response to
the plaintiffs’ protected speech”). Indeed, Friend does not
direct our attention to any facts tending to show that the School
District’s residency investigation was instigated by his
mother’s complaints, as opposed to those of third parties. And,
as far as we can tell from our own review of the record, the
undisputed facts support the district court’s determination.
Therefore, the district court did not err in granting summary
judgment to the defendants on Friend’s First Amendment
retaliation claim.
III. CONCLUSION
For all of the aforementioned reasons, the district court’s
grant of summary judgment in favor of the School District and
IHSA defendants is AFFIRMED.