Summary
reciting that some of the elements of compensable injury in a § 1983 action for injuries caused by deprivation of constitutional rights include emotional distress, humiliation, and personal indignity
Summary of this case from Hogue v. City of Fort WayneOpinion
99 C 4137
November 9, 2000
MEMORANDUM OPINION AND ORDER
Plaintiffs have sued their landlord Valentine Magos ("Magos") as well as Cicero Police Officers Rene Rios, Juan Soto, and Jose Gonzalez ("officers") in their individual capacities for depriving them of their right to be free of unreasonable searches as guaranteed under the Fourth Amendment of the U.S. Constitution pursuant to 42 U.S.C. § 1983 ("section 1983"). Defendants have moved for summary judgment arguing that they should be granted qualified immunity from liability under section 1983. The officers argue, in the alternative, that if they are not entitled to qualified immunity, the undisputed facts only support an award of nominal damages. For the reasons provided in this Memorandum Opinion and Order, the Court denies the motions.
While the official docket does not show that Magos filed a motion for summary judgment or a notice of motion, the docket shows that he filed a memorandum in support of a motion for summary judgment, a statement of facts pursuant to LR 56.1(a)(3), and exhibits. The docket also shows that plaintiffs filed a response memorandum, a response pursuant to LR 56.1(b)(3), and exhibits, and that Magos submitted a reply brief as well as reply to plaintiffs' statement of additional facts pursuant to LR 56.1(a). Because both parties have treated Magos' submissions as a motion for summary judgment, the Court overlooks the fact that the docket fails to show Magos' motion and addresses the submissions as a fully briefed motion for summary judgment.
Facts
The following facts are undisputed except where specifically noted. On April 26, 1999, Magos received through his son a hand-delivered letter from MaryLynn Chada, Director of Code Enforcement of the town of Cicero. (Magos' LR 56.1(a)(3) ¶ 2.) The letter notified Magos that the Town of Cicero planned to inspect the apartment building Magos owned at 5815 W. 35th Street on April 28, 1999 at 10:00 a.m. ( Id. ¶ 3.) The letter stated the following:
The officers have submitted a document entitled, "Cicero Defendants' Reply to Plaintiffs' Response to Cicero Defendants' Local Rule 56.1 Statement of Material Facts in Support of Their Motion for Summary Judgment." This document consists of a reply to each response in plaintiffs' LR 56.1(b)(3)(A) Statement. Because this Court strictly enforces LR 56.1 and the rule does not contemplate such a reply to a nonmovant's LR 56.1(b)(3)(A) responses, the Court strikes this submission. However, as it is the practice of the Court on all summary judgment motions, the Court will examine each of the nonmovants' responses to determine whether their denials are properly supported.
As owner/agent of the property at the above captioned location, please be advised that we have determined that an INSPECTION of the premises is necessary.
Because of the serious nature of the problems involved, it is imperative that you or an authorized agent be present when we make our inspection.... PLEASE NOTIFY ALL OCCUPANTS OF THE BUILDING THAT THE ENTIRE PREMISES IS TO BE CHECKED, INCLUDING ALL STORAGE AREAS AND ALL LIVING QUARTERS.
FAILURE TO ADHERE TO THIS NOTICE WILL LEAVE US NO ALTERNATIVE BUT TO TURN THE MATTER OVER TO THE CIRCUIT COURT OF COOK COUNTY WHEREUPON YOU CAN BE FINED UP TO $500.00 PER DAY EACH [sic] EXISTING VIOLATION.
( Id. ¶¶ 3-5; Magos' Ex. B, Letter of 4/26/99.) At the bottom of the letter, Chada indicates that she sent a copy of the letter to the Cicero Police, Fire, and Water Departments as well as the canine unit within the police department. (Magos' Ex. B, Letter of 4/26/99.) Magos had not asked the police to come and search the buildings. (Magos LR 56.1(a)(3) ¶ 16.)
On April 26 and/or 27, 1999, Magos talked to plaintiffs Hodges, D. Saucedo, and Marrero about the letter. ( Id ¶ 6.) It is undisputed that Hodges told Magos that she would inform the other tenants of the inspection. ( Id. ¶ 7.)
On April 28, 1999, at around 9:30 a.m., Cicero Code Enforcement personnel arrived, including inspectors from the Water and Fire Departments, and began their inspections of the premises. ( Id. ¶ 8.) At 10:00 a.m., Cicero Police Officers Rios and Soto arrived at the apartment complex and met fellow officer Gonzalez who brought a drug dog from the canine unit. ( Id ¶ 9.)
Gonzalez, Magos, and the code inspector jointly decided that the Town of Cicero code inspectors would knock on each apartment door and ask permission for Gonzalez to enter with his dog while Gonzalez waited out in the hallway with the dog. (Officers' LR 56.1(a)(3) ¶ 9.) However, it is disputed whether that plan was executed. ( Compare id., with Pl.'s LR 56. l(b)(3)(A) ¶ 9.) It is undisputed that each plaintiff let the code inspectors into their apartment. (Officers' LR 56.1(a)(3) ¶¶ 20, 27, 36, 48, 66.) What is disputed is whether plaintiffs submitted to the initial code inspections by the code inspectors due to a claim of lawful authority and whether plaintiffs consented to having the officers, who were accompanied by a drug dog, subsequently search their apartments. (Compare id. ¶¶ 13, 28, 50, 62, with Pls.' LR 56.l(b)(3)(A) ¶¶ 13, 28, 50, 62; see also Officers' Ex. E, Hodges Dep. at 36, 54, 56; Ex. F, Saucedo Dep. at 31, 56; Ex. G, B. Cherry Dep. at 17, 31; Ex. I, Marrero Dep. at 25-26.)
Discussion
Pursuant to Federal Rule of Civil Procedure 56(c), the court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). When considering the evidence submitted by the parties, the court does not weigh it or determine the truth of asserted matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). All facts must be viewed and all reasonable inferences drawn in the light most favorable to the non-moving party. NFLC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995). "If no reasonable jury could find for the party opposing the motion, it must be granted." Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 931 (7th Cir. 1995).
Magos and the officers base their summary judgment motions on the theory that they are protected by qualified immunity from section 1983 liability because they reasonably believed that plaintiffs consented to the officers' search of their apartments. Section 1983 "creates a federal cause of action for "the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States."' Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting Livadas v. Bradshaw, 512 U.S. 107, 132 (1994)). "[A] private party who conspires with one or more public officials to deprive another of a right secured by the Constitution and laws of the United States is acting "under color of law' within the terms of the statute." Lesser v. Branif Airways, Inc., 518 F.2d 538, 540 n. 2 (7th Cir. 1975). However, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does 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).
Although Magos notes in his memorandum in support of his motion for summary judgment that he "does not concede that his involvement constitutes "state action under the color of law under § 1983,'" he provided no case law or argument in support of this issue in his memorandum. (Magos' Mem. Supp. Summ. J. at 4.) He chose to raise the argument solely in his reply memorandum. ( See Magos' Reply Pls.' Mem. Law Opp. Def. Magos' Summ. J. Mot. at 6.) Accordingly, the Court finds that this argument has not been properly presented. United States v. Turner, 203 F.3d 1010, 1019 (7th Cir. 2000) (arguments not raised until reply brief are waived).
A threshold inquiry is whether Magos, plaintiffs' landlord, may assert a qualified immunity defense. Courts have "accorded certain government officials either absolute or qualified immunity from suit if the "tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that Congress would have specifically so provided had it wished to abolish the doctrine.'" Wyatt v. Cole, 504 U.S. 158, 163-64 (1992) (quoting Owen v. City of Independence, Mo., 445 U.S. 622, 637 (1980)) (internal quotations omitted). However, the Seventh Circuit has held that qualified immunity applies to private defendants in limited circumstances. Sherman v. Four County Counseling Center, 987 F.2d 397, 405-06 (7th Cir. 1993).
While Magos admits that there is no tradition of immunity for landlords, see Magos' Reply Pls.' Mem. Law Opp. Def. Magos' Summ. J. Mot. at 3, he argues that the specific facts of this case and public policy warrant the Court's allowing him to assert a qualified immunity defense. Plaintiffs argue that the Supreme Court's decisions in Wyatt v. Cole, 504 U.S. 158 (1992), and Richardson v. McKnight, 521 U.S. 399 (1997), and the Seventh Circuit's decision in Malinowski v. DeLuca, 177 F.3d 623 (7th Cir. 1999), foreclose the possibility of Magos' assertion of a qualified immunity defense. On the other hand, Magos argues that Wyatt, Richardson, and Malinowski, as well as Sherman v. Four County Counseling Center, 987 F.2d 397 (1993), left the door open for private citizens to assert a qualified immunity defense.
In Wyatt v. Cole, the Supreme Court held that qualified immunity is not "available for private defendants faced with § 1983 liability for invoking a state replevin, garnishment, or attachment statute." 504 U.S. at 168-69. The Court so held because the "rationales mandating qualified immunity for public officials are not applicable to private parties." Id. at 167.
However, as the Seventh Circuit noted in Sherman v. Four County Counseling Center, Wyatt's holding was limited to that precise issue and "Left other immunity issues.., for another day." 987 F.2d at 405. In Sherman, where a court had directed a private hospital pursuant to court order to administer anti-psychotic medication to a patient, the Seventh Circuit stated that Wyatt did not bar a private hospital from asserting a qualified immunity defense. Id.
In Richardson v. McKnight, the Supreme Court held that the qualified immunity defense is not available for "a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, [which] undertakes that task for profit and potentially in competition with other firms." 521 U.S. at 413. The Richardson Court, however, issued the caveat that it "answered the immunity question narrowly, in the context in which it arose" and emphasized that such context did not "involve a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision." Id.
In so holding, the Supreme Court rejected the government function approach and stated that it "never has held that the mere performance of a governmental function could make the difference between unlimited § 1983 liability and qualified immunity." Id. at 408. The Court noted that "a purely functional approach bristles with difficulty, particularly since, in many areas, government and private industry may engage in fundamentally similar activities." Id. at 409.
In Malinowski v. DeLuca, the Seventh Circuit held that qualified immunity is not available for private building inspectors because they have not historically enjoyed qualified immunity and because public policy interests behind qualified immunity did not warrant the availability of such a defense for private building inspectors. In addressing public policy, the Court found that the private building inspectors failed to establish that there was anything sufficiently special about a private building inspector's job or its organizational structure that would justify qualified immunity and that the private building inspectors "carried out their duties largely without any government supervision or direction, " and as such, immunity was unwarranted. 177 F.3d at 627.
It is clear upon review of these cases that the Supreme Court and Seventh Circuit have carved out a sliver of an exception to the general rule that qualified immunity is reserved for government officials in cases where a private citizen is briefly associated with the government and acts under the close supervision or direction of government officials. The question before this Court is whether Magos acted under the close supervision or direction of the Town of Cicero when he approached each plaintiff in an attempt to obtain their consent to enter their residences. The Court finds that he did not.
In this case, the Town of Cicero sent a letter to Magos stating that the town officials had determined that an inspection of the premises was necessary. (Magos' LR 56.1(a)(3), Ex. B, Letter of 4/26/99.) The letter instructed him to be present during the inspection on April 28. 1999. It also instructed him to notify all occupants of the building that the Town of Cicero needed to inspect the entire premises, including all storage areas and living quarters. ( Id.) The letter warned that Magos' failure to adhere to the notice would leave the Town of Cicero no alternative but to turn the matter over to the Circuit Court of Cook County. which might result in a fine of up to$ 500.00 per day for each existing violation. ( Id.)
Although Magos argues that the letter implied that it would be illegal for him to refuse to act as he did on the day of the inspection, i.e., approach each plaintiff in an attempt to obtain his or her consent to a search, the Court disagrees. First, although the letter instructed Magos to be present on April 28, 1999, the day of inspection, the letter says nothing about Magos' having to obtain consent for the search from each of the plaintiffs. The letter merely asks that he provide notice to the tenants of the need for an inspection, which he accomplished with regard to plaintiffs on the days prior to the inspection. (Magos' LR 56.l(a)(3) ¶ 3, 6-7.) Second, the record is devoid of evidence that, on the day of the inspection, the officers directed Magos' actions or acted in a supervisory capacity to ensure that he acted as he did. ( See id; see generally Magos' Ex. A, Magos Dep.) Malinowski makes it plain that, without more, the mere presence of police officers during an inspection does not mean that the officers supervised or directed a private citizen's actions. 177 F.3d at 627. Third, the letter states that if he failed to comply with the letter, i.e., to notify the tenants and to be present during the search, he may be subject to a fine for each violation of the building code. The Court notes that the threat of fine did not relate to Magos' failure to obtain his tenants' consent to the search.
Accordingly, the Court finds Magos' reliance on Rodriques v. Furwido, 950 F.2d 805, 813-14 (1st Cir. 1991), Sherman v. Four County Counseling Center, 987 F.2d 397, 403-06 (7th Cir. 1993), Warner v. Grand County, 57 F.3d 962, 964-67 (10th Cir. 1995), and Eagon v. City of Elk City, Okla., 72 F.3d 1480, 1489-90 (10th Cir. 1996), unavailing. In Rodriques, where a police officer presented a vaginal cavity search warrant to a doctor and the doctor conducted the search, the First Circuit stated that the doctor could assert a qualified immunity defense. 950 F.2d at 8 13-14. In Sherman, where a counseling center, pursuant to a court order, administered anti-psychotic medication to a patient against his will, the Seventh Circuit held that the counseling center could raise a qualified immunity defense. 987 F.2d at 406. In Warner, where a police officer requested a director of a crisis center to assist in a strip search and she complied, the Tenth Circuit found that the defense of qualified immunity was available to her. 57 F.3d at 965. In Eagon, where the Court found that a city had requested that a private individual determine what displays would and would not be allowed at a "Christmas in the Park" event, the Tenth Circuit found that she could invoke the qualified immunity defense. 72 F.3d at 1489-90. In contrast to the instant case, the search warrant in Rodriques, the court order in Sherman, the police officer's request in Warner, and the city's request in Eagon specifically directed the private party to act in the manner requested. Based on the record before us, we cannot say that the Town of Cicero and the police officers directed Magos to attempt to obtain plaintiffs' consent to the search.
In sum, the Court holds that Magos may not assert a qualified immunity defense because (1) the Town of Cicero's letter did not direct Magos to approach each plaintiff to obtain their consent on the day of the inspections; and (2) there is no evidence that the police officers or any other town official directed or supervised Magos to so act during the inspections. The Court's holding, however, does not foreclose the possibility that such a defense may be available to Magos if evidence produced at trial establishes that the officers either directed him to obtain plaintiffs' consent to a search or closely supervised his conduct to ensure that he acted according to their will. Our holding today merely reflects the paucity of evidence in the record that such was the case. Because Magos' summary judgment motion was based solely on qualified immunity, the Court denies the motion.
Next, the Court next addresses whether the qualified immunity defense shields the officers, who have been sued in their individual capacity. Courts "have developed a two-step analysis in qualified immunity cases." Sherman, 987 F.2d at 401.
First, we determine whether the plaintiffs' claim states a violation of their constitutional rights. Then, we determine whether those rights were clearly established at the time the violation occurred. If the rights were clearly established, the official may be liable for monetary damages and the suit proceeds to the next stage. If the rights were not clearly established, then the official is immune from suit and the claim is dismissed.Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000). "It is the plaintiffs' burden to demonstrate that a constitutional right is clearly established." Id "Plaintiff[s] thus must shoulder a rather heavy burden, and appropriately so because qualified immunity is "designed to shield from civil liability all but the plainly incompetent or those who knowingly violate the law." Tennen v. Shier, No. 94 C 2127, 1995 WL 398991, at *5 (N.D. Ill. June 30, 1995) (quoting Donovan v. City of Milwaukee, 17 F.3d 944, 952 (7th Cir. 1994)). "The test for determining whether a public official is entitled to qualified immunity is objective; we are concerned with whether a reasonable police officer could have believed that defendants' conduct was lawful "in light of clearly established law and the information [the officers] possessed' at the time." Valance v. Wisel, 110 F.3d 1269, 1280 (7th Cir. 1997) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated... U.S. CONST. amend. W. "There is no principle more firmly rooted in our constitutional jurisprudence than that warrantless search is presumptively illegal." United States v. Gamble, 473 F.2d 1274, 1276 (7th Cir. 1973). "Only where the Government sustains a heavy burden of demonstrating that exigent circumstances rendered impossible the securing of a search warrant or conclusively proves that a knowing and voluntary consent to search was obtained may a warrantless search stand. . . ." Id.
The Court notes, however, that "[e]ven if a presumption of unreasonableness arises from the fact of a warrantless search, that does not serve in a civil case to shift "the burden of proof in the sense of the risk of nonpersuasion."' Valance v. Wisel, 110 F.3d 1269, 1279 (7th Cir. 1997). The presumption simply distributes to defendants the burden of production to present "evidence that the plaintiff consented to the search." Id. Accordingly, to sustain the burden of persuasion, ultimately "the plaintiff would be required to show either that he never consented or that the consent was invalid because it was given under duress or coercion." Id.
When a government official claims authority to search a home, "he announces in effect that the occupant has no right to resist the search." Bumper v. North Carolina, 391 U.S. 543, 550 (1968). "The situation is instinct with coercion —albeit colorably lawful coercion. Where there is coercion there cannot be consent." Id.
Because plaintiffs state that the officers searched their apartments without exigent circumstances, a warrant, or consent, their claim states a violation of their Fourth Amendment rights. Further, it cannot be seriously contended that a person's right to be free of a search of his or her residence absent consent, exigent circumstances, or a warrant was not a clearly established constitutional right on the date in question.
The officers in this case do not contend that exigent circumstances or warrants to search plaintiffs' apartments existed. (See Officers' LR 56.1 (a)(3) ¶ 8; Officers' Ex. A, Gonzalez Aff. ¶ 7; Ex. B, Rios Aff. ¶ 7; Ex. C. Soto Aff. ¶ 7.) However, the officers aver that they should be granted qualified immunity because an objectively reasonable officer would not have known that plaintiffs did not voluntarily consent to have their apartments searched by the police and the drug dog. The officers also contend that while waiting outside each apartment, Officer Gonzalez heard Magos and the inspectors ask for consent for Gonzalez to enter with his dog. (Officers' LR 56.1(a)(3) ¶ 13.) Officers Gonzalez, Rios, and Soto did not hear any plaintiff indicate that he or she had not voluntarily consented to the inspection. ( Id ¶ 12.)
However, plaintiffs state that they submitted to the initial code inspections by the Town of Cicero due to Magos and the code inspectors' claim of lawful authority, in other words, under implied coercion. In addition, they state that they never consented to the subsequent entry of the police with drug dogs into their apartments. ( Compare id. ¶¶ 13, 28, 50, 62, with Pls.' LR 56.1(b)(3)(A) ¶¶ 13, 28, 50, 62; see also Officers' Ex. E, Hodges Dep. at 36, 54, 56; Ex. F, Saucedo Dep. at 31, 56; Ex. G, B. Cherry Dep. at 17, 31; Ex. I, Marrero Dep. at 25-26.)
It is undisputed that on April 26 and/or 27, 1999, Magos talked to Hodges, D. Saucedo, and Marrero about the letter he had received from the Town of Cicero stating that the town deemed it necessary to inspect each apartment. ( Id. ¶ 6.) It is also undisputed that Hodges told Magos that she would inform the other tenants of the necessary inspection. (Magos' LR 56. l(a)(3) ¶ 7.) Thus, there is evidence that it was communicated to the tenants that the code inspection was authorized by law.
Further, Hodges told Magos that she could not leave the apartment because she was sick and recovering from pneumonia, and Magos repeatedly told her that she had to leave her apartment until she complied. (Officers' Ex. E, Hodges Dep. at 54.) Ann LaChance testified that one of the officers said, "I don't need a search warrant." (Ex. J, A. LaChance Dep. at 45.) Viewing all of the facts and drawing all reasonable inferences in the light most favorable to plaintiffs, as we must, the officers are not entitled to qualified immunity for the searches because it would not be objectively reasonable for an officer to believe that the plaintiffs consented to a police search if plaintiffs merely acquiesced to Magos and the inspectors' entry due to the claim of authority to do so and if they never consented to the police search. Because there are genuine issues of material fact in dispute as to whether a reasonable officer would believe that plaintiffs consented to the police search, the Court denies the officers' motion for summary judgment and defers until trial a ruling as to qualified immunity.
Lastly, the officers argue that even if they are not protected by qualified immunity, the undisputed facts in the record merely support their liability for nominal damages. "In an action brought pursuant to Section 1983, "even when a litigant fails to prove actual compensable injury, he is entitled to an award of nominal damages upon proof of violation of a substantive constitutional right.'" Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir. 1984). The officers appear to have jumped the gun regarding the issue of damages because, as discussed above, it is yet to be determined whether the officers have violated plaintiffs' Fourth Amendment rights. The officers have only themselves to blame for this conundrum because their summary judgment motion merely raises qualified immunity and fails to address plaintiffs' section 1983 claim on the merits.
Even if it were appropriate to address damages at this point in the litigation, the Court cannot agree with defendants' proposition that plaintiffs cannot show compensable damages and therefore are only entitled to nominal damages. "[N]ominal damages... are the appropriate means of "vindicating' rights whose deprivation has not caused actual, provable injury." Memphis Comm. Sch. Dist. v. Stachura, 477 U.S. 299. 308 n. 12 (1986). Elements of compensable injury are "emotional distress, humiliation, personal indignity and physical injury." Crawford v. Garnier, 719 F.2d 1317, 1324 (7th Cir. 1983). This Court cannot state, as a matter of law, that plaintiffs have not established any emotional distress, humihation, or personal indignity. ( See Officers' Ex. E, Hodges Dep. at 56-57, 58, 77; Ex. F., Saucedo Dep. at 70-71, 85, Ex. G, B. Cherry Dep. at 48-49, Ex. H, J. Cherry Dep. at 11-12; Ex. I, Marrero Dep. at 33.) Thus, the officers are not entitled to summary judgment on the grounds of an alleged lack of harm.
Conclusion
For the forgoing reasons, the Court denies Magos' and the officers' motions for summary judgment [30-1, 46-1].
SO ORDERED.