Pepper v. Village of Oak Park

• Decision Date: 30 November 2005
• Docket Number: No. 04-3948.,04-3948.
• Citation: 430 F.3d 805
• Parties: Charise PEPPER, Plaintiff-Appellant, v. VILLAGE OF OAK PARK and Leonard Donaire, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 805

430 F.3d 805

Charise PEPPER, Plaintiff-Appellant, v. VILLAGE OF OAK PARK and Leonard Donaire, Defendants-Appellees.

No. 04-3948.

United States Court of Appeals, Seventh Circuit.

Argued September 20, 2005.

Decided November 30, 2005.

Kenneth N. Flaxman (argued), Chicago, IL, for Plaintiff-Appellant.

John B. Murphey (argued), Rosenthal, Murphey, Coblentz & Janega, Chicago, IL, for Defendants-Appellees.

Before CUDAHY, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

We are asked to determine whether providing "escort services" to an estranged spouse by the Oak Park Police Department gives rise to a remedy under 42 U.S.C. § 1983 for the other spouse. If Charise Pepper's colloquial characterization had accurately described Oak Park Police Officer Leonard Donaire's involvement with Pepper's husband John Redd on June 1, 2001, we might be inclined to hold in the affirmative. The phrase "escort services," however, does not fit Pepper's allegations, which in turn are not supported by the evidence. For the following reasons, we affirm the district court's grant of summary judgment in the defendants' favor.

I. BACKGROUND

Charise Pepper married John Redd in June 1999. In October 2000, Pepper left Redd in Arizona and moved to Oak Park, Illinois, where she rented part of a residence from her brother, Kenneth Pepper. In December 2000, after reconciliation, Redd moved in with Pepper at the Oak Park residence.

Pepper and Redd's relationship deteriorated again, however, and in May 2001, police officers came to the residence in response to a call in which Pepper reported that Redd had refused to leave as she requested and had threatened to abuse her physically. Pepper claims that when the police arrived, she showed them a lease to the residence in her name only; that Redd refused to leave in the presence of the police; and that, ultimately, the officers forcibly ejected Redd from the residence. As Redd left the premises, he asked the police officers when he could return to collect his property. One of the officers told Redd that he would need a police escort to retrieve his property.

On the morning of June 1, 2001, Redd allegedly phoned Pepper and told her that he was going to burn down her house and shoot out the windows. Pepper reported these threats to the Oak Park police the same morning seeking to have Redd arrested. The officer instructed Pepper to get an order of protection against Redd, which she did not do.

Later that day, the Oak Park police dispatcher sent Officer Donaire to the residence "for a police escort. Subject wants to remove property from the house." When Donaire arrived, Pepper was not at home, but Redd and another man were present. Donaire noticed that the men had gained access to the residence through an open door with no sign of forced entry. Redd identified himself to Donaire and said that he was in the process of getting a divorce from his wife. Redd explained that he wanted to retrieve certain items he had rented from a facility in Arizona. Redd showed Donaire several documents, including an Arizona marriage certificate, a driver's license showing the Oak Park residence as his address, an itemized rental agreement, and a typed "lease."

The rental agreement which Redd showed Donaire contained a list of various items of personal property that Redd had rented in Arizona. The "lease" contained the names "Sherry Redd and John Redd" and the address to the residence. There now is no dispute that the "lease" was a forgery because Pepper was the only rightful lessee.

From his police car, Donaire accessed the Illinois State Police's database and confirmed that Redd's address on his driver's license matched that of the residence. Donaire then asked the dispatcher whether there had been any recent police calls at the residence's address and learned about the disorderly conduct complaint called in earlier that morning. Donaire did not inquire any further about the complaint, nor did the dispatcher elaborate. Donaire ran a check on the license plates for Redd's vehicle. Finally, Donaire verified that there were no reported warrants outstanding, orders of protection, or signed complaints against Redd.

For approximately fifteen minutes, Redd and his friend moved items from Pepper's residence into Redd's vehicle and an attached trailer parked in the driveway. During this time, Donaire remained in front of the house to prevent violence or argument between Redd and Pepper should Pepper return. Donaire stayed in his police car much of this time but occasionally got out to monitor the removal of the property. Donaire inventoried the items Redd removed from the residence, most of which, including a television, a computer, and a printer, were identified on the rental agreement. The only item Redd removed that was not listed on the rental agreement was a second television set, which Redd claimed was his.

While at a beauty salon, Pepper received a telephone call from her neighbor who told her that Redd was taking "all your stuff" and that police were there. Pepper set off for home.

After loading several additional items, Redd and his friend drove away from the scene, and Donaire left soon thereafter. Moments later, Pepper arrived and discovered that personal property including her television set were gone, and that the body of her couch and its cushions had been slashed with a knife.

Pepper sued Donaire and the Village of Oak Park under 42 U.S.C. § 1983, claiming that Donaire violated the Fourth and Fourteenth Amendments by unreasonably seizing her property and denying her of substantive due process, and that Oak Park's lack of training and procedures for its police was a proximate cause of her injury. Alternatively, Pepper argued even if Donaire was entitled to qualified immunity, Oak Park remained liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) for allegedly lacking adequate procedures. Finding Donaire committed no constitutional violation, the district court granted summary judgment for both Donaire and Oak Park. Pepper has abandoned her substantive due process claim and advances on appeal only her unreasonable seizure and Monell claims. We affirm.

II. ANALYSIS

A. Summary Judgment Standard

We review de novo the grant of summary judgment. Williams v. Waste Mgmt. of Illinois, 361 F.3d 1021, 1028 (7th Cir.2004). Summary judgment is proper only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When considering whether a genuine issue of material fact exists, we view all facts and make all inferences in favor of Pepper, the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In other words, summary judgment can be awarded only if no rational trier of fact could find for the non-moving party. Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir.2003).

B. Pepper's Claim Against Officer Donaire

To recover under § 1983, Pepper must prove that Donaire deprived her of a federal right while acting under color of state law. 42 U.S.C. § 1983; see Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). The federal right Pepper asserts is her right to property as protected by the Fourth Amendment. It is undisputed that Donaire "acted" under color of state law and that Redd by himself did not. At issue here is whether Donaire was sufficiently involved with Redd to render Pepper's alleged injury to be caused by state action.

At the outset, we must determine whether Pepper has a constitutionally protected right at stake. The Fourth Amendment, made applicable to the states by the Fourteenth Amendment, Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated." In Soldal v. Cook County,¹ a § 1983 case, the Supreme Court reiterated that the Fourth Amendment applies to civil cases, 506 U.S. 56, 67, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), and protects property interests, id. at 62-63, 113 S.Ct. 538, but not all types of property, id. at 63 n. 7, 113 S.Ct. 538 (citing Oliver v. United States, 466 U.S. 170, 176-77, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (open fields not protected by Fourth Amendment)). The property in Soldal was the plaintiff's mobile home, a "house," which the Court noted was explicitly included by the text of the Fourth Amendment. Id. So too, we think, that Pepper's couch and television set are personal "effects" protected by the Fourth Amendment. See Oliver, 466 U.S. at 177 n. 7, 104 S.Ct. 1735 (explaining that the framers would have understood "effects" to refer to personal, rather than real, property); Altman v. City of High Point, 330 F.3d 194, 200-01 (4th Cir.2003) (collecting authority).

Having found that Pepper's property is of the type protected by the Fourth Amendment, we turn to whether Pepper's effects were seized. "A `seizure' of property . . . occurs when `there is some meaningful interference with an individual's possessory interests in that property.'" Soldal, 506 U.S. at 61, 113 S.Ct. 538 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). In Soldal, the Court held that the forcible removal of the plaintiff's mobile home, leaving him dispossessed, constituted a seizure. Id. at 61, 113 S.Ct. 538. The interference which Pepper incurred—the permanent taking of her television and the substantial damage to her couch, while each was secured in her residence—likewise amounts to a "seizure" under the Fourth Amendment.

But before we analyze whether the seizure was unreasonable, Pepper must satisfy her burden of proving state action. This she cannot do. The protections of the Fourth Amendment apply...