Ferrell v. Harrington et al

Filing 70

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 11/20/2009.Mailed notice(sct, )

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A ST E R N DIVISION W IL L A R D FERRELL, P l a i n t i f f, v s. Z O L A HARRINGTON and CHICAGO T R A N SIT AUTHORITY, D e fe n d a n t s . Z O L A HARRINGTON, D e f e n d a n t / C o u n t e r - P l a i n t i f f, v s. W IL L A R D FERRELL, P l a i n t i ff/ C o u n t e r - D e fe n d a n t . ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

07 C 3027

M E M O R A N D U M OPINION C H A R L E S P. KOCORAS, District Judge: D efendants Zola Harrington ("Harrington") and Chicago Transit Authority ("C T A ") have filed a motion for summary judgment. For the reasons stated below, we gra n t Defendants' motion as to Count I and decline to exercise jurisdiction over the remaining count.

BACKGROUND H arrington served as a CTA bus operator from 1975 until her retirement in 2008. In 2006, when the events that led to the present litigation occurred, Harrington was assign ed to the Number 8 Halsted bus route. As a CTA driver, Harrington's primary responsibilities included driving her bus along a designated route, inspecting bus passes, d ete rm in in g the appropriate fare for each passenger, ensuring passengers deposited a pp ro pria te coins or bills into the fare box, and contacting CTA Communications/Power C o ntrol Center ("Control") regarding any problems. If Harrington required police a ssista nc e while on duty, her only means to communicate with the Chicago Police D epartment ("CPD") would be to call Control, who would then relay the nature of the driver's request for help to CPD. This suit arose out of one of Harrington's requests for po lice assistance that culminated in the arrest of the Plaintiff, Willard Ferrell ("Ferrell"). O n February 7, 2006, Harrington was driving the Number 8 Halsted bus proceeding northbound on Halsted Street. As Harrington approached the intersection of Division and Halsted Streets, she noticed Ferrell waiting to board the bus. Harrington opened the doors and allowed Ferrell to board the bus; Ferrell paid the full fare and took a seat on the bus. After Ferrell sat down, Harrington parked the bus and called Control to request police assistance. Two CPD officers responded to Harrington's call and inqu ired into the circumstances surrounding her request. Harrington told the officers

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that Ferrell had threatened her with a razorblade six days earlier, on February 1, 2006. W h en the officers questioned Ferrell, he stated that Harrington was having him arrested because he had filed two complaints against her with the CTA. After completing their questioning, the officers took Ferrell off the bus and arrested him. On August 18, 2006, a judge in Cook County Circuit Court found Ferrell not guilty of assault at the close of th e prosecution's case. F erre ll filed suit against Defendants May 31, 2007. Ferrell asserted a federal c la im under 42 U.S.C. § 1983 against Harrington alone, alleging that she acted under color of state law in violating Ferrell's rights under the First, Fourth, and Fourteenth A m e nd me nts to the Constitution of the United States. Ferrell also asserted a state-law claim of malicious prosecution against Harrington and the CTA. Defendants' motion to dismiss Ferrell's claims was denied on November 2, 2007. Defendants now move for summary judgment. L E G A L STANDARD Su mm ary judgment is appropriate only when "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 ju dg me nt as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when the evidence is such that a reasonable jury could find for the nonmovant.

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B u sc ag lia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). The movant in a motion for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact by specific citation to the record; if the party succeeds in doing so, the burden shifts to the nonmovant to set forth specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In considering motions for summary judgment, a court construes all facts and draw s all inferences from the record in favor of the nonmoving party. Anderson v. L ib erty Lobby, Inc., 477 U.S. 242, 255 (1986). W ith these principles in mind, we turn to Defendants' motion. D IS C U S S IO N I. F errell's § 1983 Claim H a rrin gto n contends that Ferrell's § 1983 claim against her should be dismissed b ec au se she did not act under color of state law in calling Control to request police a ssista nc e, providing information to police about Ferrell, and signing a criminal complaint against him. To succeed on a § 1983 claim, a plaintiff must establish that she suffered a constitutional deprivation and that the deprivation occurred under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). An act is performed under color of state law "when it involves a misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law."

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H onaker v. Smith, 256 F.3d 477, 484 (7th Cir. 2001) (internal quotation marks omitted). T h e action of a state employee is not considered to have been under color of state law u nle ss it is "related in some way to the performance of the duties of the state office." Id. at 485. Ferrell has not presented evidence that would allow a reasonable juror to c on clu de that Harrington's actions were performed under color of state law. Ferrell has n ot presented any evidence that Harrington's employment with the CTA invested her w ith any greater authority to request police assistance beyond that which she already possessed as a private citizen. Under these circumstances, no triable issue exists as to w hether Harrington's actions that led to Ferrell's arrest were made possible only b ec au se she was "clothed with the authority of state law." Id. at 484. Nor has Ferrell sufficiently established that Harrington's conduct was related to h er duties as a CTA bus driver. Though Harrington's job description included "contacting Control regarding all problems[,]" this reflected a limitation on her means of communication with the outside world rather than an affirmative duty of her state office. Ferrell has not presented evidence to contradict Harrington's showing that she had no means to contact the police without first calling Control using CTA equipment. T h o ug h CTA provided the instrumentality by which Harrington initially contacted police, no meaningful relationship exists between her conduct and her duties as a CTA

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employee. Her actions were analogous in all material respects to a private party calling the police, providing them with information, and then having the police arrest the p e rso n based on the private individual's representations. We therefore conclude that H a rrin gto n was not acting under color of state law during the events at issue. Ferrell also argues that Harrington acted under color of law in parking her bus to await the arrival of police so that she could make a complaint to police about the plain tiff. This argument is made in one paragraph and lacks any citation to authority. "[P]erfunctory and undeveloped arguments, and arguments that are unsupported by p ertin en t authority, are waived[.]" United States v. Hook, 471 F.3d 766, 775 (7th Cir. 2006). We therefore do not address Ferrell's alternative theory in deciding this motion. B e c a u s e we find no triable issue of fact as to whether Harrington acted under co lor of state law, we grant Defendants' motion for summary judgment on Ferrell's § 1983 claim. II. F errell's State Law Claim T he remaining claim of Ferrell's complaint is a state law malicious prosecution action against Harrington and the CTA. Because we have granted summary judgment o n Ferrell's § 1983 claim, there are no claims remaining over which we have original ju risd ic tio n. We decline to exercise our supplemental jurisdiction over the state law claims, and they are accordingly dismissed. 28 U.S.C. § 1367(c)(3). This dismissal is

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w ithout prejudice to their refiling in state court if Ferrell so chooses. See 28 U.S.C. § 1367(d); Jinks v. Richland County, 538 U.S. 456, 462-63 (2003) (noting that state limitations period is tolled during pendency of federal suit if supplemental state claims are dismissed after dismissal of federal claims). C O N C L U S IO N B ased on the foregoing analysis, Defendants' motion for summary judgment is gran ted as to Count I. Count II is dismissed pursuant to 28 U.S.C. § 1367(c).

Charles P. Kocoras U nited States District Judge D a te d : November 20, 2009

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