Poole v. Village of Burbank et al

Filing 88

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 7/10/2009:Mailed notice(mpj, )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ) ) ) Plaintiff, ) ) v. ) ) CITY OF BURBANK, a Municipal ) Corporation, OFFICER KARA KUSH (Star ) No. 119), and GREGORY PEROVICH (Star ) No. 134), sued in their individual ) and official capacities, ) ) Defendants. ) DANIEL POOLE,

No. 07 C 6355

MEMORANDUM OPINION AND ORDER Plaintiff Daniel Poole's ("Poole") seven count complaint

arises from an incident on January 19, 2006, when he was pulled over, arrested, and allegedly subject to excessive force at the hands of defendant City of Burbank (the "City") police officers Kara Kush ("Kush") and Gregory Perovich ("Perovich")(together

"defendant officers").

The City, also a defendant in this case,

moves for summary judgment on all of Poole's claims against it, namely, his 42 U.S.C. § 1983 claims for unreasonable search and seizure (count I), excessive force (count II), false imprisonment (count III), and false arrest (count IV). The defendant officers move for partial summary judgment on counts I, III, and IV. there was probable They argue that these claims fail because for Poole's initial detention and

cause

subsequent arrest, and that the claims are barred by Poole's

payment of a fine for failure to wear a seatbelt. granted for the reasons stated in this opinion. I.

Both motions are

On January 19, 2006, at approximately 5:40 p.m. Kush observed Poole driving northbound in his vehicle on Cicero Avenue near 85th Street and purportedly believed him to be driving without having his seatbelt properly fastened. The shoulder strap of the seat

belt in Poole's vehicle is situated low and does not go over the driver's shoulder. Kush activated her lights and sirens, to

effectuate a traffic stop due to the alleged seatbelt violation. Poole continued northbound on Cicero Avenue to 84th Street where he turned left. Kush called for assistance when he did not

pull over, indicating that the driver she was pursuing was refusing to stop. Poole continued down 84th Street for another block and

then turned right into the Burlington Coat Factory ("BCF") parking lot where he worked. fire lane. insurance He drove near the entrance and stopped in a

Kush approached Poole's car, obtained his license and card, and returned to her vehicle to process that

information. In response to Kush's call for assistance, Perovich arrived at the BCF parking lot. Kush remained in her car processing the

license information while Perovich approached Poole's vehicle, allegedly for safety reasons. The parties dispute the subsequent

events, but agree that Poole and Perovich ended up fighting and

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both of them sustained injuries. the alleged seatbelt

Poole was issued a citation for arrested, and charged with

violation,

resisting a peace officer and aggravated battery.

The seatbelt He was

fine was paid and Poole was found guilty of that violation. found not guilty of the criminal charges at trial. II.

Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The "court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." National Athletic Sportswear, Inc. v. A genuine

Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).

issue for trial exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). I must construe all facts in the light most favorable

to the non-movant and draw all justifiable inferences in favor of that party. See id. at 255. III. The City moves for summary judgment on Poole's four § 1983 claims because it claims Poole cannot prove that his alleged 3

constitutional injuries were caused by "(1) the enforcement of an express policy of the [municipality], (2) a widespread practice that is so permanent and well settled as to constitute a custom or usage with the force of law, or (3) a person with final

policymaking authority."

Latuszkin v. City of Chicago, 250 F.3d

502, 504 (7th Cir. 2001). Poole proceeds on the second theory, but provides no evidence of a widespread practice or custom of

condoning violations like those alleged by Poole. This is fatal to his claims against the City. See Phelan v. Cook County, 463 F.3d

773, 790 (7th Cir. 2006)("The plaintiff must introduce evidence demonstrating that the unlawful practice was so pervasive that acquiescence on the part of policymakers was apparent and amounted to a policy decision.") Poole argues that he does not have to show a pervasive practice because one violation is enough where the City fostered "`a culture that permitted and condoned violations of policies that were designed to protect' individuals like Poole or where the violation was a `highly predictable consequence' of the [City's] failure to act." (See Pl.'s Resp. pp. 14-15)(citations omitted).

He provides no factual support for this position, noting only that Kush and Officer Gurra ("Gurra"), the officer who later

investigated the disputed arrest-related events, both testified that the arrest was handled in a manner consistent with City policies. But these statements do not support Poole's claims

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against the City because they were premised on a version of events that did not involve any constitutional violations. Poole also argues that because Kush and Perovich were dating during the relevant time period, it was foreseeable that Perovich would have difficulty exhibiting restraint and was likely to be provoked into misbehavior. support of this argument. No authority or evidence is cited in In particular, plaintiff does not point

to any evidence that the City knew Kush and Perovich were dating, that there was an express policy allowing or prohibiting dating among fellow police officers, or that there were other allegations of misconduct attributed to officers who were dating or married to each other. Accordingly, granted. IV. The defendant officers do not challenge the § 1983 excessive force claim (count II) on summary judgment, but argue that the remaining Fourth Amendment claims arise from his initial stop and subsequent arrest, for which there was probable cause. Because a the City's motion for summary judgment is

guilty finding was entered on the seatbelt violation and the related fine was paid, the defendant officers argue that Heck v. Humphrey, 512 U.S. 477 (1994) bars counts I, III, and IV. Defs. Mot. pp. 7-8). (See

They also argue that regardless of Heck's

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application, Kush and Perovich are entitled to qualified immunity.1 Both arguments are persuasive. Heck holds that a civil claim for damages may not be pursued if its success would necessarily imply the invalidity of a criminal conviction. Heck, 512 U.S. at 486-87. However, if the plaintiff's claims, when successful, will not demonstrate the invalidity of any outstanding criminal judgment against him, they may proceed. at 487. Id.

Poole's summary judgment response on counts I, III, and IV

are premised on the invalidity of his seatbelt conviction and therefore, Heck bars these counts. For example, in order to prove his claim for false arrest, Poole would have to show that he was seized without probable cause. See Hadrick v. City of Bolingbrook, 522 F.3d 758, 762 (7th Cir. 2008). That determination is made based on whether a reasonable

person, innocent of any crime, would have concluded that he was not free to leave. Id. Poole cannot claim he was "innocent of any

crime" without directly challenging the validity of his seatbelt conviction. The same is true of the unlawful seizure and false

imprisonment counts, because he cannot show he was seized or held

In their initial motion, defendants argue that Poole's false imprisonment claim (count III) is duplicative of his claims for unlawful seizure (count I) and false arrest (count IV). Poole does not disagree, but rather responds without distinguishing the bases for his false arrest and false imprisonment claims. In addition, his count I arguments focus on excessive force, even though that claim was not raised in defendants' motion. 6

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without probable cause unless he directly challenges the underlying seatbelt conviction. Moreover, in his complaint and response, Poole does exactly what Heck prohibits - he both implies and expressly argues that he is innocent of the seatbelt conviction. See e.g., (Sec. Am. Compl. ¶ 11.)(alleging Kush "advised that she had pulled him over for allegedly failing to wear a seat belt"); (Pl.'s SOF ¶ 9)("Poole was, in fact, wearing his seatbelt.");(Pl.'s Resp. 6-9.)(various arguments why Poole is not guilty of the seatbelt violation);(Poole Trial Test., Defs.' Ex. A, pp. 184-85).2 III, and IV are barred by Heck. Accordingly, counts I,

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Q

A Q A Q A Q A Q A Q A Q A

Now, when you were driving there that evening, you didn't have your seat belt on, did you? Yes, I did. You did have your seat belt on? Yes. Well, you were issued a ticket for that offense, weren't you? Yes. You paid a $55 fine for that offense, didn't you? Yes. Why did you pay the fine for not wearing a seat belt when you say you had one on? My grandfather told me to pay the ticket because he didn't want me driving on a ticket. So you wanted to get your driver's license back? Exactly. So you paid a $55 fine and admitted you weren't wearing a seat belt, correct? Yes. 7

V. For the foregoing reasons, I grant the City's motion for summary judgment on counts I-IV and grant the defendant officers' motion on counts I, III, and IV.

ENTER ORDER: __________________________ Elaine E. Bucklo United States District Judge Date: July 10, 2009

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