Drain v. Barbee et al
Filing
54
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 8/9/2011:Mailed notice(mpj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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ROBERT DRAIN,
Plaintiff,
v.
Harvey Police Officers
BARBEE, SGT. SHANE GORDAN,
MATTHEWS, WALZ, BISCHOFF, and
THE CITY OF HARVEY,
No. 10 C 3485
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Drain (“Drain”) sued the City of Harvey,
Illinois (“the City”) and several of its police officers – Sergeant
Shane Gordan (“Gordan”), and Officers Leonard Barbee (“Barbee”),
Ryan Matthews (“Matthews”), Hal Bischoff (“Bischoff”), and Daniel
Walz (“Walz”) – asserting multiple claims under 42 U.S.C. § 1983,
and a state-law claim for malicious prosecution.
moved for summary judgment.
Defendants have
The motion is granted in part and
denied in part.
I.
Drain’s suit arises out of two separate encounters with the
defendant officers.
The first took place in May 2009, when Drain
was pulled over in the driveway of his home by Officer Bischoff.
Drain alleges that Bischoff, acting on orders from Gordan, ransacked
his car and had it towed.
The second episode occurred in February
2010, when Drain was arrested by Barbee, Walz, and Matthews for
battery in connection with an altercation with his brother-in-law,
Clifton Tucker (“Tucker”).
Drain claims that the officers had no
basis for arresting him because the altercation was nothing more
than a shouting match.
He insists that he never “battered” or had
any physical contact with Tucker.
As with the May 2009 incident,
Drain claims that the arrest was ordered or encouraged by Gordan.
According to Drain, these incidents were intended to retaliate
against him for two previous lawsuits that he brought against Harvey
police officers.
claims
for
prosecution.
The first suit, filed in January 2006, asserted
false
arrest,
unlawful
seizure,
and
malicious
The second suit, filed in June 2007, asserted claims
for false arrest, illegal search of his home, violation of his due
process
rights,
conversion,
and
conspiracy.
The
suits
were
ultimately settled in September 2007 and January 2008, respectively.
Although Gordan was a defendant in the 2007 suit, none of the other
officers in this action was a party to the earlier cases.
In addition to the car-towing incident and the (alleged) false
arrest, Drain claims that Gordan has harassed him in numerous other
ways in the months after Drain filed suit against him. For example,
Drain claims that Gordan has followed him in his patrol car and
pulled him over for no reason.
insulted
him
with
vulgar
He also claims that Gordan has
hand-gestures,
and
that
Gordan
once
remarked to his wife, “Tell your husband I’m still looking for him.
I’m going to get him.”
-2-
II.
Summary judgment is proper where the “movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
The evidence, and all reasonable inferences therefrom, must be
considered in the light most favorable to the non-moving party.
E.g., Miller v. Illinois Dept. of Transp., 643 F.3d 190, 192 (7th
Cir. 2011).
In Count I of his complaint, Drain alleges a § 1983 claim for
the unreasonable seizure of his vehicle in May 2009.
Defendants
initially argue that Drain lacks standing to assert the claim
because the vehicle was registered in his wife’s name. As a result,
defendants claim, Drain had no property or possessory interest in
the vehicle, and his fourth amendment rights could not have been
violated by the vehicle’s seizure.
Since fourth amendment rights
cannot be asserted on another’s behalf, see, e.g., United States v.
Figueroa-Espana,
Amendment
rights
vicariously
511
are
F.3d
696,
personal
asserted.”)
703
(7th
rights
(quotation
Cir.
which
marks
2007)
...
may
omitted),
(“Fourth
not
be
defendants
contend that Drain lacks standing to assert the claim.
This argument is flawed in at least two ways.
As an initial
matter, the Supreme Court has made clear that the question presented
in claims of this kind is not properly framed as one of “standing.”
See, e.g., Rakas v. Illinois, 439 U.S. 128, 140 (1978) (“[T]his
-3-
Court’s long history of insistence that Fourth Amendment rights are
personal in nature has already answered many of these traditional
standing inquiries, and we think that definition of those rights is
more properly placed within the purview of substantive Fourth
Amendment law than within that of standing.”).
Second, and more to
the point, defendants are incorrect in assuming that Drain has no
property or possessory interest in the vehicle simply because it is
not registered in his name.
Defendants offer no argument or
authority to support this proposition.
case law to the contrary.
Indeed, they ignore clear
See, e.g., United States v. Posey, 663
F.2d 37, 40-41 (7th Cir. 1981) (“Whether an individual’s fourth
amendment rights are implicated by a government search or seizure
turns upon the individual’s legitimate expectations of privacy,
rather than principles of common law property law.
The fact that
Posey owned neither the Ford automobile nor the guns is indeed
relevant to the inquiry of whether he had a legitimate expectation
of privacy.
However, Posey plainly had an expectation of privacy
in an automobile owned by his wife and over which he was exercising
exclusive control pursuant to her permission at the time of the
search.”); see also United States v. Battiste, 343 Fed. App’x. 962,
966, (5th Cir. 2009) (“A Fourth Amendment possessory interest is not
limited to formal legal title; a property interest in the item
searched is only one factor in the analysis, and lack thereof is not
dispositive.”) (quotation marks omitted).
-4-
Defendants argue that they are entitled to summary judgment on
Count I at least insofar as it is asserted against Gordan, because
there is no evidence that Gordan had anything to do with the
seizure.
It is undisputed, however, that at the time of the stop,
Gordan radioed Bischoff and asked Bischoff to call him back on his
phone.
It is also undisputed that Bischoff phoned Gordan, and that
Bischoff later told Drain that Gordan had directed him to tow
Drain’s vehicle.
To be sure, Bischoff later testified that Gordan
had not instructed him to tow the vehicle, and that he (Bischoff)
had made the statement only in an attempt to obtain Drain’s
cooperation.
But the plausibility vel non of Bischoff’s story is
a question for the jury and cannot be the basis for summary
judgment.
Thus, defendants’ motion for summary judgment is denied
with respect to Count I.
In Count II, Drain asserts a § 1983 claim against Barbee,
Matthews, Walz, and Gordan for his alleged false arrest in February
2010.
“To prevail on a claim of false arrest, the plaintiff must
show there was no probable cause for his arrest.”
Parker,
627 F.3d 634, 638 (7th Cir. 2010).
Jackson v.
“Probable cause exists
if an officer reasonably believes, in light of the facts known to
[him] at the time, that a suspect had committed or was committing
an offense.” Id. (quotation marks omitted).
Defendants argue that Count II fails because they had probable
cause to arrest Drain for battery.
-5-
Under Illinois law, “(a) A
person
commits
battery
if
he
or
she
knowingly
without
legal
justification by any means (1) causes bodily harm to an individual
or (2) makes physical contact of an insulting or provoking nature
with an individual.” 720 ILCS 5/12-3.
Defendants claim that
probable cause was supported by the following evidence: (1) a call
was placed to Harvey 911 requesting police because “a big heavyset
black dude” in a light shirt and gray jacket was “beating up a young
guy” at 14624 Jefferson Street;(2) Drain is a heavyset African
American male; (3) the arresting officers were informed by the
police dispatcher that a “ten-ten” involving two black males was in
progress at the address in question; (4) Clifton Tucker and Drain
had been engaged in a loud argument at the location in question; (5)
after arriving on the scene, Officer Barbee observed that Tucker had
blood on his face; and (6) Drain yelled and screamed at his wife and
called her a bitch.
Drain points out that, despite defendants’ insistence to the
contrary, the evidence set forth above is disputed.
Drain takes
particular issue with defendants’ reliance on evidence relating to
the 911 transmissions.
In a separate motion, Drain moves to strike
all references to such evidence, objecting that the defendants
failed to file a recording or transcription of the transmissions.
He also complains that defendants’ account of the recording was not
supported by an authenticating affidavit, that the recording is
inaudible, and that defendants have offered no basis for the meaning
-6-
they
have
assigned
to
police
code
terminology
used
in
the
transmission (in particular, the term “ten-ten”).
In response to the motion to strike, defendants submitted a
copy of the audio recording, along with a written transcript of the
recording, and an authenticating affidavit.
Ultimately, however,
the 911 transmissions are not determinative, for even if they were
factored into the analysis, a disputed issue of fact would remain
as to whether Barbee and Walz had probable cause to arrest Drain.1
This is because Drain, Tucker, and Drain’s wife each testified that
the altercation between the men was strictly verbal and that the two
never came to blows.
Tucker further testified that he told one of
the officers on the scene that it was a “verbal argument” and that
Drain had not hit him.
Tucker Dep. at 40.
Drain thus fiercely
denies that Barbee or any of the other officers could have observed
any signs of injury on Tucker.
Even assuming that the dispatcher
told the officers that a “ten-ten” was in progress at the location,
and even assuming that “ten-ten” is police code for “fight,” they
would not have had probable cause to arrest Drain for battery if
Tucker showed no signs of injury and expressly denied having been
hit by Drain.2
1
Accordingly, I deny the motion to strike as moot.
2
I note that defendants do not invoke the doctrine of
qualified immunity, under which they would be required only to show
that they had “arguable probable cause” to arrest Drain for battery.
See, e.g., Wollin v. Gondert, 192 F.3d 616, 621 (7th Cir. 1999)
(“With an unlawful arrest claim in a § 1983 action when a defense
-7-
Defendants separately argue that summary judgment should be
granted as to Matthews and Gordan, since there is no evidence that
the latter defendants participated in Drain’s arrest. I agree. The
record shows that Matthews had no contact with Drain until after he
had been arrested.
His interaction with Drain was limited to
transporting him to the police station.
Even assuming that Drain
had been falsely arrested, Matthews cannot be held liable for the
violation simply by transporting him after the fact.
See, e.g.,
Morfin v. City of East Chicago, 349 F.3d 989, 1000-01 (7th Cir.
2003) (officer could not be held liable for civil rights violations
where officer’s only involvement was to transport plaintiff to
police station for booking); see also Jenkins v. Keating, 147 F.3d
577,
583
(7th
Cir.
1998)
(“[O]nce
Jackson
was
arrested,
the
constitutional violation she alleges had already taken place.
Officer Keating would have had to have undertaken some action prior
to, or perhaps at the time of, Lieutenant
Hoffenkamp’s order to
arrest Jackson in order to have ‘caused’ or ‘participated in’ it.
of qualified immunity has been raised, we 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. Courts have referred to the
second inquiry as asking whether the officer had ‘arguable’ probable
cause.”) (citations omitted). Nor do defendants argue that probable
cause existed to arrest Drain for an offense other than battery
(e.g., assault, disturbing the peace, etc.). Cf. United States v.
Bullock, 632 F.3d 1004, 1021 n.3 (7th Cir. 2011) (“An arrest is
reasonable under the Fourth Amendment so long as there is probable
cause to believe that some criminal offense has been or is being
committed, even if it is not the crime with which the officers
initially charge the suspect.”).
-8-
That is not the case here--Keating signed the criminal complaint
against Jackson only after she was in custody and ‘seized’ within
the meaning of the Fourth Amendment.”).
Nevertheless, Drain contends that a triable issue of fact
remains concerning the extent of Matthews’s role in the arrest.
First, Drain disputes defendants’ claim that he was already in
handcuffs when Matthews walked over to Barbee’s patrol vehicle.
Drain
suggests
that
this
testimony
conflicts
with
Matthews’s
testimony that, when he first arrived on the scene, Drain was not
in handcuffs but was instead walking down the street, away from the
site of the confrontation.
But the fact that Davis was not
handcuffed when Matthews arrived on the scene in no way contradicts
Matthews’s testimony that Drain was in handcuffs when he walked over
to Barbee’s vehicle to take Drain into custody. More fundamentally,
Drain’s argument conflates the issue of when he was handcuffed with
the issue of when he was under arrest.
See, e.g., Brunner v.
McKillip, 488 F. Supp. 2d 775, 783-84 (W.D. Wis. 2007) (“The Fourth
Amendment’s protection does not begin at the moment a citizen is
handcuffed.
It governs ‘seizures’ . . . which do not eventuate in
a trip to the station house and prosecution for crime —‘arrests’ in
traditional terminology.”) (quotation marks omitted). Drain himself
asserts that Barbee placed him in custody, Pl.’s Resp. 56.1 Stmt.
¶ 53, and Drain does not allege that Matthews had any contact with
him prior to this point.
Hence, even if it were unclear precisely
-9-
when Drain was handcuffed, this would not raise a question of fact
as to whether Drain was under arrest before Matthews had any contact
with him.
Second, Drain argues that Matthews “played a big part in
manufacturing the false story that Drain had battered Clifton
Tucker.” Here, Drain notes that in his deposition, Matthews claimed
to have spoken with Tucker and Drain’s wife at the scene of the
arrest.
As a result, Drain argues, Matthews “would have known, on
scene, before Drain’s arrest, that Clifton Tucker was not claiming
that he had been injured by Robert Drain,” and “would have had zero
probable cause for putting Drain in his police car.”
testified that Tucker would not talk to him.
But Matthews
While Tucker claims
that he told one of the officers on the scene that Drain never hit
him, there is no evidence that the officer was Matthews.
And while
Matthews testified that he talked to Drain’s wife, there is no
evidence that she told Matthews that Tucker had not been hit.
Tellingly, Drain does not make any definitive claim about what
Matthews was actually told. He merely surmises that if Matthews had
talked to Tucker or his wife, Matthews “would have known” that
Tucker denied having been hit by Drain.
There is no concrete
evidence for Drain’s claim that Matthews knew probable cause was
lacking for his arrest.
Drain’s final argument concerning Matthews rests on the fact
that
Matthews,
like
Barbee,
testified
-10-
in
his
deposition
that
Tucker’s face was bloody.
Drain maintains that if his and Tucker’s
testimony is to be believed, Matthews’s testimony cannot be true,
since Tucker had not been hit and had no signs of injury.
According to Drain, this shows that Matthews was fully aware that
probable cause was lacking for Drain’s arrest, and that Matthews’s
dissembling is evidence of his involvement in the conspiracy to
cover up the violation of his civil rights.
Once again, however,
Matthews can be held liable for false arrest only if he participated
in Drain’s arrest.
As already explained, Matthews’s involvement
came only after Drain had been arrested.
Since Matthews did not
participate in Drain’s arrest, he cannot be held liable for false
arrest. Nor can Matthews be held liable as a co-conspirator for the
other officers’ actions in arresting Drain.
Since there is no
evidence that Matthews was aware that probable cause was lacking,
there is no evidence that he had any agreement with the other
officers to arrest Drain without probable cause.
There is even less evidence linking Gordan to the February 2010
arrest.
Indeed, Drain does not fully explain the way in which he
believes Gordan could have been involved in the arrest.
Defendants
have submitted a time sheet purporting to show that Gordan was not
scheduled to work on the date and time in question.
Drain objects
that the document is hearsay and has not been authenticated.
But
even excluding the time sheet, Drain has not adduced sufficient
affirmative evidence that Gordan played any role in the incident.
-11-
The evidence on which Drain relies is of two sorts.
First, he
cites his own testimony that the booking officer who released him
from jail after he posted bond on the evening of the arrest was
later reprimanded by Gordan.
statements
of
additional
This statement is included among the
fact
filed
by
Drain
in
response
to
defendants’ motion for summary judgment. Defendants did not respond
to any of Drain’s statements of additional fact.
Under Local Rule
56.1, such uncontroverted statements may be deemed admitted.
Even
if true, the statement is not evidence that Gordan had anything to
do with the arrest; at most, it is evidence merely of Gordan’s ex
post reaction to Drain’s arrest.
Drain also argues that Gordan’s involvement can be inferred on
the basis of Gordan’s alleged history of harassment and antagonism
towards him.
But even assuming the truth of Drain’s allegations
regarding Gordan’s harassment, Drain offers nothing but supposition
and speculation to specifically connect Gordan to the February 2010
arrest.
This is not enough to withstand summary judgment.
See,
e.g., Gunville v. Walker, 583 F.3d 979, 986 (7th Cir. 2009) (“[A]
party must present more than mere speculation or conjecture to
defeat a summary judgment motion.”) (citing Liu v. T & H Machine,
Inc., 191 F.3d 790, 796 (7th Cir. 1999)).
Moreover, given how
rapidly the situation unfolded – the officers were dispatched to the
scene within seconds of receiving the 911 call reporting the
-12-
altercation – it is difficult to see how Gordan could have learned
of the incident before it occurred.
For these reasons, summary
judgment is granted to Matthews and Gordan on Count II, but denied
as to the remaining officers.
Count III of Drain’s complaint asserts a claim for malicious
prosecution arising out of the February 2010 arrest.
“To state a
cause of action for malicious prosecution, the plaintiff must allege
facts showing (1) the commencement or continuance of a criminal or
civil judicial proceeding by the defendant; (2) a termination of
that proceeding in favor of the plaintiff; (3) the absence of
probable cause for the proceeding; (4) the presence of malice; and
(5) damages to the plaintiff resulting from the commencement or
continuance of that proceeding.” Burghardt v. Remiyac, 565 N.E.2d
1049, 1051 (Ill. App. Ct. 1991) (emphases omitted).
As with claims for false arrest, it is well-settled that “[t]he
existence of probable cause is a complete defense to a malicious
prosecution cause of action.”
Id. at 1052.
Since Drain has raised
a triable issue of fact as to whether the officers had probable
cause
for
his
defendants here.
arrest,
this
defense
is
not
available
to
the
As a second basis for summary judgment on Count
III, defendants argue that Drain cannot show that the proceedings
were terminated in his favor.
It is undisputed that the battery
charges against Drain were dropped through entry of a nolle prosequi
order.
But this fact, without more, cannot establish whether the
-13-
proceedings were terminated in Drain’s favor.
See, e.g., Logan v.
Caterpillar, Inc., 246 F.3d 912, 925-26 (7th Cir. 2001).
Rather,
“the plaintiff bears the burden of showing that the nolle prosequi
was entered for reasons consistent with his innocence.” Id. at 925.
In other words, a plaintiff must show that “[t]he circumstances
surrounding the abandonment of the criminal proceedings ... compel
an inference that there existed a lack of reasonable grounds to
pursue the criminal prosecution.”
Id. (quotation marks omitted).
The record in this case does not disclose the exact reason for
the nolle prosequi order, and the parties’ arguments on the issue
are generally unhelpful.
Defendants argue that they were unable to
prosecute because Tucker failed to appear in court for the hearing
on the charges.
When it became clear that Tucker was not present,
the charges were stricken with leave to reinstate.
at 3-4.
Beyond this, the record is empty.
Defs.’ Ex. R.
Thus, for example, the
record leaves unclear what efforts, if any, were subsequently made
to locate Tucker, and precisely why the state opted never to
reinstate the charges against Drain.
Since a question of fact
exists as to whether the proceedings were terminated in Drain’s
favor, defendants are not entitled to summary judgment on this
basis.
However, defendants argue that summary judgment is at least
warranted as to Walz, Matthews, and Gordan, since there is no
evidence that any of these officers were involved in Drain’s
-14-
prosecution.
Defendants point out that none of these officers
signed the criminal complaint against Drain or had any involvement
with Drain’s subsequent prosecution.
Count III fails as to these
officers, they argue, because “[a]n individual cannot be held liable
in a § 1983 action unless he caused or participated in [the] alleged
constitutional deprivation.” Id.
This argument is not quite right, since Drain’s malicious
prosecution claim is brought under Illinois law, not § 1983.
Indeed, the Seventh Circuit has held that there is no cause of
action under § 1983 for malicious prosecution.
See, e.g., Ray v.
City of Chicago, 629 F.3d 660, 664 (7th Cir. 2011).
Under Illinois
law, it is not necessary to show that the defendants signed the
plaintiff’s complaint or were involved in the plaintiff’s subsequent
prosecution.
See, e.g., Frye v. O’Neill, 520 N.E.2d 1233, 1240
(Ill. App. Ct. 1988) (“Liability for malicious criminal prosecution
is not confined to situations where the defendant signed a complaint
against the plaintiff.”).
Rather, a defendant may be held liable
for malicious prosecution if he “initiated the criminal proceeding”
or his participation in proceeding had “so active and positive a
character as to amount to advice and cooperation.”
Id.
Yet when judged in relation to this standard, defendants are
ultimately correct that there is not enough evidence to hold Walz,
Matthews, or Gordan liable for malicious prosecution.
The only
evidence Drain cites in support of his claim against Walz is the
-15-
fact that Walz noted the charge of battery on an arrest slip
relating to the incident. Pl.’s Resp. 56.1 Stmt. ¶ 96. Drain cites
no evidence to suggest that the arrest slip, or any other action on
Walz’s part, played any role in Drain’s arrest.
And while the
evidence is sufficient to support Walz’s liability for false arrest,
that evidence, without more, cannot support his liability for
malicious prosecution.
maintain
a
malicious
As explained by the Seventh Circuit, “to
prosecution
suit
against
the
arresting
officers, [a plaintiff] must allege more than a lack of probable
cause; rather, he must allege that the officers committed some
improper act after they arrested him without probable cause, for
example, that they pressured or influenced the prosecutors to
indict, made knowing misstatements to the prosecutor, testified
untruthfully, or covered up exculpatory evidence.”
McDade v.
Stacker, 106 Fed. App’x. 471, 475 (7th Cir. 2004) (quotation marks
omitted); see also Richardson v. City of Chicago, Ill., No. 08 C
4824, 2011 WL 862249, at *9 (N.D. Ill. Mar. 10, 2011).
has
pointed
to
no
evidence
of
such
conduct
on
Since Drain
Walz’s
part,
defendants are granted summary judgment on Count III insofar as it
is asserted against Walz.
The evidence is likewise insufficient as to Matthews and
Gordan.
As already explained, Drain has failed to produce evidence
indicating that Gordan played any role in his arrest. He also cites
no evidence that Gordan made any statements that contributed to
-16-
Drain’s prosecution.
that he
As for Matthews, the evidence shows at most
merely transported Drain to the police station.
As
previously explained, there is no evidence that Matthews could have
been aware that probable cause was lacking for Drain’s arrest, nor
any evidence that Matthews took any action to encourage Drain’s
prosecution.
In short, the record does not show that Walz’s,
Matthews’s, or Gordan’s role had “so active and positive a character
as to amount to advice and cooperation.” Thus, while I deny summary
judgment on Count III as to Barbee, I grant the motion as to Walz,
Matthews, and Gordan.
Count IV of Drain’s complaint asserts a § 1983 claim for
conspiracy.
“To establish a prima facie case of civil conspiracy,
a plaintiff must show (1) an express or implied agreement among
defendants to deprive the plaintiff of his constitutional rights,
and (2) actual deprivations of those rights in the form of overt
acts in furtherance of the agreement.”
Washington v. Amatore, No.
10 C 442, 2011 WL 1403168, at *2 (N.D. Ill. Apr. 13, 2011).
“To
prove a conspiracy to deprive him of his constitutional rights, the
plaintiff must show that the parties directed themselves toward an
unconstitutional action by virtue of a mutual understanding, and
that they had a ‘meeting of the minds.’” Id.
Drain alleges that the seizure of his car and his (allegedly)
false arrest were part of a conspiracy on the part of all of the
defendant officers to harass him.
The record does not support this
-17-
assertion.
Absent evidence of Gordan’s involvement in the arrest,
there is no support for Drain’s theory that the vehicle’s seizure
and his arrest form part of a single, overarching agreement to
violate his rights.
Defendants are therefore entitled to summary
judgment on Count IV.
Finally, in Count V of his complaint, Drain asserts a § 1983
claim for retaliation. In particular, he contends that the May 2009
and February 2010 incidents were designed to retaliate against him
for his previous suits against Harvey police officers. “To maintain
a First Amendment retaliation claim, a plaintiff must establish (1)
that she engaged in a constitutionally protected activity and (2)
that the protected conduct was a ‘substantial or motivating factor’
in defendants’ challenged action.” Lyttle v. Killackey, 528 F. Supp.
2d 818, 827 (N.D. Ill. 2007).
Defendants contend that, with the exception of Gordan, none of
the officers had any knowledge of Drain’s earlier suits, and that,
consequently, Drain’s earlier suits could not have been a motivating
factor in their actions.
In rebuttal, Drain cites testimony by
Matthews and Gordan that Drain was “a common topic of conversation
in the police station.”
Pl.’s Resp. 56.1 Stmt. ¶ 81.
But Matthews
testified only that there was “[t]alk around the station, I mean,
about the Drain Family; just forewarning us about the violent
tendencies
they
can
have
towards
police
“[b]asically they will fight us, the police.”
-18-
officers,”
and
that
Matthews Dep. at 9-
10.
Moreover, while Matthews stated that he was unable to remember
exactly who had made these remarks, he testified unequivocally that
he had not heard them from Gordan.
Matthews Dep. at 10.
For his
part, Gordan was asked whether he had “ever told other police
officers that Robert Drain is the kind of person who will fight
them,” to which he replied that it was possible but that he could
in recall.
Gordan Dep. at 8.
Conspicuously absent from the
testimony is any mention of Drain’s prior lawsuits against him and
other
officers.
suspicion
and
Once
again,
speculation
and
Drain’s
offers
argument
no
falls
concrete
back
on
evidence.
Defendants are therefore entitled to summary judgment on Count V.
III.
For the foregoing reasons, defendants’ motion for summary
judgment is denied as to Count I; granted as to Matthews and Gordan
on Count II; granted as to Walz, Matthews, and Gordan on Count III;
and granted with respect to Counts IV and V in their entirety.
Plaintiff’s motion to strike is denied as moot.
ENTER ORDER:
____________________________
Elaine E. Bucklo
United States District Judge
Dated: August 9, 2011
-19-
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