Eberle v. Baumfalk, 80 C 3868.
| Citation | 524 F. Supp. 515 |
| Decision Date | 06 October 1981 |
| Docket Number | No. 80 C 3868.,80 C 3868. |
| Parties | Frederick L. EBERLE and Norma Eberle, Plaintiffs, v. Alan BAUMFALK, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Lance Haddix, Chicago, Ill., for plaintiffs.
James Schirott, Samelson, Knickerbocker, Schirott, Des Plaines, Ill., for defendants.
Frederick and Norma Eberle ("Eberles") sue their neighbors Alan and Caren Baumfalk ("Baumfalks"), Baumfalks' attorney Marianne Yacobellis ("Yacobellis") and DuPage County Sheriff's Policemen Thomas Stukey ("Stukey") and James Henderson ("Henderson"). Eberles' Complaint alleges in separate Counts:
Stukey and Henderson have moved for summary judgment on Counts III, IV, V and VII. For the reasons stated in this memorandum opinion and order their motion is granted. On its own motion the Court also addresses the jurisdictional problem posed by Count VI.
Count III
Count III asserts that Stukey and Henderson conspired with Baumfalks and Yacobellis to arrest Frederick Eberle without cause or justification. There is however no evidence to support that claim.1
For purposes of a Section 1983 action claiming false arrest the controlling question was put in Brubaker v. King, 505 F.2d 534, 536 (7th Cir. 1974):
The test, thus, under § 1983 is not whether the arrest was constitutional or unconstitutional or whether it was made with or without probable cause but whether the officer believed in good faith that the arrest was made with probable cause and whether that belief was reasonable.
Alan Baumfalk's deposition states he told the arresting officers that:
That evidence alone provided the arresting officers with a reasonable good faith belief that Frederick Eberle had committed an assault — and an assault is of course probable cause for an arrest.
Eberles have failed to submit any evidence countering (or even supporting an adverse inference as to) that showing of what information the officers acted upon. Fed.R.Civ.P. ("Rule") 56(e) provides:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Accordingly summary judgment is appropriate in favor of Stukey and Henderson as to Count III.
Count IV
Count IV simply alleges that Stukey and Henderson actually arrested Frederick Eberle pursuant to the scheme charged in Count III. Summary judgment is therefore appropriate for identical reasons.
Count V
Count V charges that Norma Eberle has suffered great harm from (1) harassment by Baumfalks and (2) the unlawful arrest of her husband. Stukey and Henderson are implicated only in the second allegation. Because they had probable cause to arrest Frederick Eberle, any harm Norma Eberle suffered was not the result of an unlawful act on their part. Stukey and Henderson thus are also entitled to summary judgment on Count V.
Count VII
Count VII states that Stukey and Henderson participated in a scheme to prevent Eberles from obtaining the statement of Sherry Hobbs. Both police defendants have unequivocally denied that allegation by affidavit. Again Eberles have failed to adduce any evidence in support of their allegations. Moreover, Frederick Eberle has stated in an affidavit in a related state court action that:
There is no factual showing whatever that Stukey and Henderson individually or by conspiracy concealed evidence. They are therefore entitled to summary judgment as to Count VII.
Count VI
Count VI alleges that Frederick Eberle was physically harmed en route to jail when Stukey negligently "stopped the squad car so suddenly that as a direct and proximate result, plaintiff suffered injuries to his left shoulder and right thumb." Defendants have not explicitly sought dismissal of Count VI. But that Count raises a difficult legal question that should be addressed: whether the negligent infliction of bodily injury states a cause of action under Section 1983.2
Last term the Supreme Court addressed the question whether the loss of property caused by the negligence of state officials stated a cause of action under Section 1983. In Parratt v. Taylor, ___ U.S. ___, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) the Court held that (1) a negligent act could constitute a deprivation of property for Fourteenth Amendment purposes but (2) a post-deprivation hearing in state court provided a sufficient remedy. Thus due process has been accorded if property was lost through state-imputed negligence but the state provided a post-deprivation remedy.
By its literal terms Parratt appears to apply with equal force to a Section 1983 claim for negligent infliction of bodily injury (101 S.Ct. at 1913):
Accordingly, in any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.
This opinion will therefore first pursue the analysis in those terms.
No issue exists as to the first part of the Parratt test if applied here: Stukey was unquestionably acting under color of state law. As for the second, Parratt held that a negligent act can be a deprivation of a property interest, the only due process question being whether a post-deprivation hearing was enough. Because a bodily injury implicates a liberty interest under the Fourteenth Amendment's Due Process Clause, Collum v. Butler, 421 F.2d 1257, 1259 (7th Cir. 1970), by parity of reasoning a negligent act may presumably be a deprivation of that liberty interest. There appears to be no principled distinction under Parratt between negligent interference with a property as contrasted with a liberty interest.3
On that assumption it must next be determined whether, as with the loss of property, a hearing after a negligent deprivation of a liberty interest can satisfy the requirements of the Due Process Clause. On that score, it is relevant that Parratt (101 S.Ct. at 1916) adopted the analysis of Justice (then Judge) Stevens in Bonner v. Coughlin, 517 F.2d 1311, 1319 (7th Cir. 1975), modified en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978):
It seems to us that there is an important difference between a challenge to an established state procedure as lacking in due process and a property damage claim arising out of the misconduct of state officers.
As in Parratt and Bonner, Frederick Eberle was allegedly subjected to the negligence of one police officer, not a state policy or intentional act. Cf. this Court's opinion in Magayanes v. Terrance, No. 80 C 1299 (N.D. Ill. Aug. 12, 1981) (). Based on that reasoning a post-deprivation hearing would arguably be both necessary and sufficient to accord due process to Frederick Eberle.
Another portion of the Parratt opinion also indicates inferentially that situations involving bodily harm are susceptible to the same treatment. Justice Rehnquist stated (101 U.S. at 1916) that the Court's majority was applying an analysis consistent with Ingraham v. Wright, 430 U.S. 651, 682, 97 S.Ct. 1401, 1418, 51 L.Ed.2d 711 (1977), a case involving corporal punishment in schools. Ingraham pointed to "the common-law safeguards that already exist" as a basis for finding no due process violation despite that deprivation of liberty.4
If Parratt were thus extended to Stukey's alleged negligence causing Frederick Eberle's bodily injuries, the final question would be whether Illinois law permits a negligence action for those injuries. Stukey is a deputy sheriff employed by the DuPage County Sheriff. Stukey's liability is therefore controlled by the Illinois Local Governmental and Governmental Employees Tort Immunity Act (the "Act"), Ill.Rev. Stat. ch. 85, §§ 1-101 ff. Section 2-202 of the Act provides:
A public employee is not liable for his act or omission in the execution of any law unless such act or omission constitutes wilful or wanton negligence.
Because plaintiffs' Complaint alleges only a negligent act committed in the course of Stukey's employment, Stukey is immune from suit under Illinois law. Accordingly Illinois law does not provide a post-deprivation remedy such as the Supreme...
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