Opinion
IP 00-1124-C-T/K
March 13, 2002
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Defendants filed a Motion for Summary Judgment. Plaintiff opposes the Motion. The court now GRANTS Defendants' Motion.
I. Factual and Procedural Background
These facts are not disputed. Additional facts may be set forth in the discussion sections as necessary. Those sections also will address various disputes about factual submissions proffered by Black.
On June 8, 1998, George Black filed a verified petition for legal separation from his wife, Dolores Ferguson. Despite this petition, Black continued to reside at the marital residence for at least part of the time. On July 13, Ferguson filed a petition for dissolution of marriage and a pro se petition for a restraining order alleging that Black had threatened her. The restraining order sought to prevent Black from entering the marital residence.
However, unbeknownst to Ferguson, the order was not effective until July 21. The court did enter an emergency protective order on July 16, preventing Black from entering the marital property or damaging it. During this time, Ferguson was employed as a jail matron by the Johnson County Sheriff's Department. She was also a reserve officer with the Department. J.D. Richards was the Sheriff of the Johnson County Sheriff's Department and Black believed that Richards was having an affair with his wife.
On the same day Ferguson filed for divorce and the protective order, July 13, Ferguson found Black at the martial residence with a locksmith, attempting to enter the property. Ferguson was in uniform, driving a marked car, with an officer. The parties dispute whether the other officer was in uniform. Ferguson informed Black that she had filed for divorce and had a restraining order. When asked to produce the order, Ferguson admitted that she did not have it with her. She then ordered Black to leave the property and threatened to call the police if he did not do so. Black claims that he understood her threat to be that she or the officer with her would arrest him, while Ferguson claims that she threatened to call the Franklin Police Department. Black left the marital residence. Richards was not present at the marital residence on July 13.
On July 11, 2000, Black filed a complaint against Ferguson and Richards alleging violations of 42 U.S.C. § 1983. Specifically, he claimed that Ferguson and Richards conspired to remove him from his home so they could continue their romantic relationship.
Black also claimed that Richards falsely reported to the probation staff that Black was intoxicated in violation of his probation and asked the Corrections Advisory Board to watch Black closely. Black claims that these actions violated his Fourth and Fourteenth Amendment rights. On June 15, 2001, Defendants filed this Motion for Summary Judgment. Plaintiff opposes the Motion. The court now rules as follows.
II. Summary Judgment Standard
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The motion should be granted only if no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the party opposing the motion bears the burden of proof at trial on an issue, that party can avoid summary judgment only by setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). When ruling on a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. Speculation, however, is not the source of a reasonable inference. See Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998) (noting that the court is not required to draw every conceivable inference from the record in favor of the non-movant, but only those inferences that are reasonable).
III. Claims Against Defendant Richards
Defendant Richards claims that Plaintiff cannot establish the state action necessary to maintain a cause of action under § 1983, that there was no constitutional violation, and that he is entitled to qualified immunity. 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
To determine whether a police officer is acting under color of state law, courts must examine the nature of the specific acts performed. Latuszkin v. City of Chicago, 250 F.3d 502, 505-06 (7th Cir. 2001). Acts committed by a police officer even when on duty and in uniform are not under color of state law unless they are in some way "related to the performance of police duties." Briscoe v. LaHue, 663 F.2d 713, 721 n. 4 (7th Cir. 1981), aff'd, 460 U.S. 325 (1983) (citations omitted). The Seventh Circuit has interpreted this to mean that an officer driving drunk from a police party was not acting under color of state law. Latuszkin, 250 F.3d at 506. However, an off-duty police officer wearing his uniform and badge and acting as a security guard at a fast-food restaurant could have been acting under color of state law. Pickrel v. City of Springfield, 45 F.3d 1115, 1118-19 (7th Cir. 1995).
In this case, there appear to be two separate claims against Richards. One, the cause of action listed in the complaint, is that Richards violated Black's Fourth and Fourteenth Amendment right when Black was "evicted" from his property. Specifically, Plaintiff claims that Richards acted under color of state law to conspire to remove Plaintiff from his home so that he and Ferguson could continue with their romantic relationship. (Compl. ¶ 31.) In his brief Plaintiff concedes "that there is very little evidence to connect Defendant Sheriff J.D. Richards . . . to the activities of July 13, 1998," and even if there was some evidence connecting Richards to the incident, it is clear that Richards was not acting under color of state law. (Pl.'s Mem. in Resp. to Defs.' Mot. for Summary J. at 10.) Richards was not involved in the altercation outside of the marital residence on July 13, 1998 and Plaintiff has presented no evidence of a conspiracy between Richards and Ferguson. Plaintiff has presented no evidence that Richards was acting in his official capacity in any attempts to interrupt his marriage and deprive him of his home. Rather, pursuing a romantic relationship is the type of act performed by a private citizen, and does not subject Richards to liability under § 1983.
Plaintiff claims that Ferguson called Richards immediately after the altercation and had spoken with Richards about her marital problems. These activities have no relation to police business and, in any event, do not appear to establish a constitutional deprivation.
Plaintiff also alleges that Richards falsely reported that Plaintiff had been drinking in violation of his parole and asked the Corrections Department to "watch Plaintiff Black closely." (Compl. ¶ ¶ 27-28.) Although he does not make this specific contention in his complaint, in his brief Black argues that Richards conspired to deprive Black of his liberty interest through "successive acts of harassment." First, it is not clear that these activities were in any way related to the performance of police duties. If true, they appear to be an attempt to hinder the husband of someone with whom Richards was having a romantic relationship, and have no relation to the performance of police duties.
Even if Richards was acting under color of state law, Black has not established a constitutional deprivation as to this claim. In support of his claim, Black provides no citations to authority. Furthermore, Black relies on inadmissible evidence. Federal Rule of Civil Procedure 56(e) provides that "supporting or opposing affidavits shall be made on personal knowledge, and shall set forth facts as would be admissible in evidence." Black claims that Richards made false accusations about his drinking, however, a review of the evidence relied upon for this assertion shows that in Richards's deposition Richards testified that he reported that Black may have been drinking after he was told of this fact.
Black does not contest Richards' statement that someone else told him Black was intoxicated. Black further relies on his own affidavit, paragraph twenty-three, in which he contends that Richards "falsely complained" to the probation department. However, this allegation is conclusory and without support. Black's interrogatory sixteen which states that "the sheriff tried on three occasions to cause [Black's] probation to be violated in hopes that [Richards] would have freer access to dating [Black's] wife" is similarly conclusory and without support. Finally, Black claims that Ferguson and Richards were having an affair in his affidavit paragraphs thirteen through sixteen. In support of this claim, he offers his own affidavit, which relays the statements of Connie Pritchard. Because there is no deposition from Pritchard, this evidence is hearsay and inadmissible. Black also offers the affidavit of Sheri L. Bray, a waitress, that Ferguson and Richards were in the bar where she works, together, drinking alcoholic beverages. This evidence is irrelevant and hardly establishes any successive acts of harassment by Richards. Furthermore, this information is inadmissible and must be stricken because Bray never identifies Richards herself, but attempts to relay hearsay testimony of the bartender. The affidavit of Dave Bowman must also be stricken because it too is based on the hearsay testimony of Pritchard. Because Plaintiff can present no admissible evidence supporting his theory that Richards harassed him and violated his liberty interest, summary judgment must be granted in favor of Richards.
Plaintiff claims that Pritchard recently refused to sign an affidavit and that deposing Pritchard would require another extension of the briefing schedule which is undesirable. Rule 56(f) provides for a procedure by which the parties can obtain additional discovery that is necessary for the summary judgment proceeding. Plaintiff cannot decide the wisdom of another extension, but must use the established procedures to obtain admissible evidence rather than relying on hearsay.
As discussed in text above, Defendant's Motion to Strike paragraphs thirteen through sixteen of Black's affidavit, Bray's affidavit, and Bowman's affidavit is GRANTED.
IV. Claims Against Defendant Ferguson
Defendant Ferguson presents the same arguments in favor of granting summary judgment in her favor on the claims: there was no state action, there was no constitutional violation, and she is entitled to qualified immunity. It appears that there is a question of fact on whether Ferguson was acting under color of state law, however, this court need not reach that issue or the more complicated issue of whether there was a constitutional violation because Ferguson is entitled to qualified immunity on the claims against her.
Police officers are entitled to qualified immunity so long as their conduct did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Frazell v. Flanigan, 102 F.3d 877, 886 (7th Cir. 1996). Qualified immunity is intended to shield from civil liability "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). In deciding qualified immunity, the court focuses on the objective reasonableness of the defendant's actions: whether a reasonable police officer could have believed that his conduct was constitutional "in light of the clearly established law and the information he possessed at the time." Frazell, 102 F.3d at 886 (quotations and citations omitted).
There is a two-part test to determine whether an officer is entitled to qualified immunity. First, the court must determine if the law was clearly established at the time of the alleged violation. Second, the court must examine the objective reasonableness of the defendant's conduct. As preliminary matter, it is unclear whether the law was clearly established. To be liable under the Fourth Amendment, Ferguson must have "seized" Black. It is undisputed that he was allowed to leave the premises, and therefore, he was not seized as the term is traditionally used. Rather, Black argues that he was seized when he was ejected from a place he was rightfully allowed to be. The Seventh Circuit has addressed whether voluntary abandonments of property in the face of police authority constitute seizures under the Fourth Amendment in two cases and in both has determined that the right is not clearly defined. See Spiegel v. City of Chicago, 106 F.3d 209 (7th Cir. 1997); Kernats v. O'Sullivan, 35 F.3d 1171 (7th Cir. 1994) (divided court could not agree whether plaintiff was seized). The Plaintiff cites to a district court case, Quinones v. Tentler, 2001 WL 681274 (N.D.Ill. April 18, 2001), to support his claim that the law is clearly established. However, that case does not deal with qualified immunity, but rather denies a motion to dismiss, in part based upon the standard used at the 12(b)(6) stage.
In his complaint, Black mentions both the Fourteenth and Fourth Amendments. The unreasonable seizure claim must be evaluated under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989). Furthermore, Black has not made out a due process claim for deprivation of his property under the Fourteenth Amendment. Because the complaint presents no basis for a violation of the Fourteenth Amendment, this court will examine the constitutional deprivation in terms of the Fourth Amendment.
Furthermore, a single district court case does not clearly establish law which the Seventh Circuit has determined is not clearly established.
Secondly, it appears that Ferguson's conduct was objectively reasonable. "With an unlawful arrest claim in a § 1983 action when a defense of qualified immunity has been raised, [the court] will review to determine if the officer actually had probable cause, or, if there was no probable cause, whether a reasonable officer could have mistakenly believed that probable cause existed." Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998).
Probable cause is an absolute defense to a false arrest claim under the Fourth Amendment. Biddle v. Martin, 992 F.2d 673, 678 (7th Cir. 1993). A law enforcement officer has probable cause to arrest someone when a prudent person, knowing the facts and circumstances within the knowledge of the arresting officer, would believe that the suspect had committed or was committing an offense. Booker v. Ward, 94 F.3d 1052, 1057 (7th Cir. 1996). Interpreting the facts most favorably to Black, Ferguson threatened to arrest him herself if he did not leave the marital residence. However, if Ferguson had actually arrested Black, the defense of probable cause would have been available to her because Ferguson believed that there was a protective order preventing Black from being in the marital residence. Although her belief was ultimately incorrect, that is not the relevant inquiry. Negligence or inefficient police work do not give rise to claims under § 1983. Davis v. Owens, 973 F.2d 574, 577 (7th Cir. 1992). Rather, the court looks at the facts before the officer. In this case, the officer knew that a protective order had been filed against Black and that Black had a history of violence. This constituted sufficient evidence from which Ferguson would be entitled to arrest Black. It seems illogical to hold Ferguson to a higher standard where no actual arrest occurred. Surely an arrest is a more serious deprivation of liberty than a threatened arrest. Because a reasonable officer could have believed Ferguson's action to be lawful, Ferguson is entitled to qualified immunity.
Defendants' material fact twenty-five states that "Dolores Ferguson was not aware the restraining order had not been granted until July 15, 1998" based on her interrogatory answers. Although Black claims to dispute this fact, he merely points out that the restraining order was not actually granted until July 21. Defendants do not dispute that the protective order was not actually granted until then. Black also appears to contest Ferguson's knowledge of the effectiveness of restraining orders in paragraph seventeen of his affidavit. This information is hearsay from Pritchard and must be stricken. When determining whether there is sufficient information to support probable cause, the relevant inquiry is "the facts actually known by the arresting officer" evaluated objectively. Biddle v. Martin, 992 F.2d 673, 676 (7th Cir. 1993). In this case, Ferguson knew that a restraining order had been filed against Black and mistakenly believed it had been granted. These are the facts that are evaluated to determine whether a reasonably competent officer would have concluded that probable cause existed to arrest (or threaten to arrest) Black.
V. Conclusion
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED.