Mark v. Furay

• Decision Date: 08 August 1985
• Docket Number: Nos. 83-3059,83-3060,s. 83-3059
• Citation: 769 F.2d 1266
• Parties: Joseph MARK, Plaintiff-Appellant, v. Daniel FURAY, Richard J. Kooyenga and the City of Blue Island, a municipality, Defendants-Appellees. Joseph MARK, Plaintiff-Appellant, v. John RITA, Lawrence Petta and Patricia Maly, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1266

769 F.2d 1266

Joseph MARK, Plaintiff-Appellant, v. Daniel FURAY, Richard J. Kooyenga and the City of Blue

Island, a municipality, Defendants-Appellees.

Joseph MARK, Plaintiff-Appellant, v. John RITA, Lawrence Petta and Patricia Maly, Defendants-Appellees.

Nos. 83-3059, 83-3060.

United States Court of Appeals Seventh Circuit.

Argued Dec. 4, 1984.

Decided Aug. 8, 1985.

Abraham N. Goldman, Abraham N. Goldman & Assoc., Chicago, Ill., for plaintiff-appellant.

Linda L. Listrom, Jenner & Block, Chicago, Ill., for defendants-appellees.

Before CUDAHY, COFFEY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Plaintiff Joseph Mark appeals from judgments entered against him in two closely related suits brought under 42 U.S.C. Sec. 1983 (1982) in which he alleges that a conspiracy existed among several officers and employees of the City of Blue Island to charge him falsely with felony theft, and thereby to deprive him of liberty without due process of law in violation of the Fourteenth Amendment. The district court granted summary judgment to the defendants in No. 83-3059, and granted the defendants' motion to dismiss for failure to state a claim in No. 83-3060. The cases have been consolidated for appeal, and we now affirm in No. 83-3059 and reverse and remand in No. 83-3060.

I.

Despite the long and rather bizarre series of accusations made by the plaintiff, the legally relevant facts in both cases can be summarized briefly. Joseph Mark is a retired railroad conductor with a long history of active involvement in the Democratic Party in the City of Blue Island, including work for Mayor John Rita and City Attorney Lawrence Petta, who are defendants in No. 83-3060. On May 10, 1979, Mark was arrested on a charge of felony theft by Blue Island police officers acting under the direction of Lieutenant Daniel Furay and Chief of Police Richard Kooyenga, who are defendants in No. 83-3059. The theft charge alleged that Mark had stolen four large and valuable wooden tables that were missing from a building in Blue Island owned by Frank Neldon. The owner of the tables was Angelo Garetto, who rented space in the rear of Neldon's building to store various items for use in his pizza parlors. While Garetto was using the rear of the building for storage, Neldon allowed the local Democratic Party to use the front of the building for Mayor Rita's election campaign.

All of the parties agree that after the tables were taken from Neldon's building, they ended up in the apartment of Patricia Maly, a housekeeper employed by the City of Blue Island and the remaining defendant in No. 83-3060. The parties disagree, however, about how the tables were taken to Maly's apartment. Mark alleges that Rita and Petta, who he claims were intimately involved with Maly, took the tables to her apartment. Mark admits that he assisted Rita and Petta in taking the tables, but insists that he thought the tables would be paid for by the local Democratic Party organization. Finally, Mark alleges that all of the defendants knew that the theft charge against him was false, but nevertheless conspired to have him charged and arrested in order to discredit him and prevent him from disclosing Rita, Petta, Furay, and Kooyenga's involvement in payoffs and other corrupt practices.

The defendants' theory of the case, on the other hand, is that Mark was arrested pursuant to a valid warrant supported by sufficient facts to establish probable cause to believe that he was guilty of stealing the tables. According to the deposition testimony of Furay, Kooyenga, and Maly, introduced in No. 83-3059, Maly initially contacted Furay and Kooyenga, told them that Mark had brought the stolen tables to her apartment, and further agreed to testify against Mark in connection with the incident. Furay then removed the tables from Maly's apartment and took them to police headquarters, whereupon he phoned Neldon to question him about the tables. Neldon confirmed that Garetto had previously complained about tables being missing, and later that day Neldon traveled to police headquarters, where he identified the tables as the ones that were missing. Neldon also told Furay that he would sign a complaint for theft of the tables.

Furay later presented this information to an assistant state's attorney, who approved a felony theft complaint against Mark. The assistant state's attorney, along with Furay and Neldon, then appeared before a judge in the Circuit Court of Cook County, where Neldon swore to and signed the complaint. The judge approved a felony theft warrant, and Furay accordingly had Mark arrested. The charges against Mark were ultimately dismissed, however, after Maly refused to appear and testify against him.

With this general background in mind, we will proceed to a specific discussion of each of the cases on appeal.

II.

A. No. 83-3059, Mark v. Furay

In this suit against Furay, Kooyenga, and the City of Blue Island, the district judge had a fairly substantial amount of evidentiary material upon which to base her decision on the defendants' summary judgment motion. This material included the depositions of Mark, Furay, Kooyenga, Maly, Neldon, and Garetto, along with an affidavit from Mark submitted specifically in opposition to the summary judgment motion. The district judge declined to consider an unsigned statement given by Patricia Maly to the plaintiff's attorneys prior to her deposition testimony. In this statement, which was also attached as an exhibit to Maly's deposition, Maly stated that she did not actually see Mark bring the tables to her apartment, and that Furay led her to believe that the tables were stolen rather than vice versa. Maly recanted portions of this statement in her subsequent deposition, stating that she had failed to tell the whole truth out of fear that Mark would harm her physically, as she alleged he had done in the past. The district judge refused to consider the statement on the grounds that it was not taken pursuant to formal discovery, that the defendants were not given an opportunity to be present at the time that it was taken, and that it was unsigned.

Based on the remaining evidence in the record, the district court concluded that the undisputed facts showed that Mark's arrest on the felony theft charge did not deprive him of his liberty without due process of law. The court properly began with the proposition that under the Supreme Court's decision in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), a person who is arrested pursuant to a facially valid warrant, as Mark clearly was, generally has no claim for an unconstitutional deprivation of liberty under section 1983. The Court held in Baker that a plaintiff who was arrested pursuant to a valid warrant that was actually intended for his brother had no section 1983 claim against the sheriff for his failure to investigate whether the warrant was based on mistaken identity. Id. at 146, 99 S.Ct. at 2695. Moreover, as the district court also observed, Mark cannot claim that his arrest violated his constitutional rights merely because the defendants had malicious motives for arresting him. This court has consistently held that the existence of probable cause for an arrest totally precludes any section 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution, regardless of whether the defendants had malicious motives for arresting the plaintiff. Terket v. Lund, 623 F.2d 29, 31 (7th Cir.1980). Accord Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th Cir.1985); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1344 n. 10 (7th Cir.1985).

In Terket, the plaintiff alleged that one of the police officers who arrested him was a friend of the complaining witness, and that this officer maliciously induced the witness to sign a disorderly conduct complaint against the plaintiff. In reviewing the district court's grant of summary judgment to the defendants, we began by noting that the "existence of disputed facts" as to whether the officer maliciously induced the witness to sign the complaint were "not enough, however, to defeat a motion for summary judgment." Terket, 623 F.2d at 31. Rather, we emphasized that "[t]he disputed facts must also be material to the legal issues in the case." Id. Finding no disputed facts concerning the existence of probable cause to believe that the plaintiff was guilty of disorderly conduct, we affirmed the summary judgment for the defendants, holding that "proof of the actual existence of probable cause is a bar to the action. If the defendants had probable cause to believe that [plaintiff] was guilty of disorderly conduct, their allegedly malicious motives are immaterial." Id.

Mark attempts to avoid the application of Baker and Terket by arguing that the evidence in the record is adequate to create a genuine issue of material fact as to whether Furay and Kooyenga procured the arrest warrant based on material representations that they knew to be false, rather than based on probable cause. Mark therefore seeks to bring his case within the rule announced by this court in Whitley v. Seibel, 613 F.2d 682 (7th Cir.1980), cert. denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982). In Whitley, we held that the plaintiff could establish an unconstitutional deprivation of liberty by showing that the defendant police officer had procured retroactive authorization to arrest the plaintiff on felony charges from an assistant state's attorney by misrepresenting or omitting certain material facts. The material facts in Whitley were that a different assistant state's attorney had previously refused to authorize an arrest warrant for the plaintiff on the same charges because one of the crime victims had identified someone else as the perpetrator, and because the plaintiff claimed an alibi. Id. at 684. Despite his inability to determine the validity of the plaintiff's alibi, the defendant arrested the plaintiff on the...