Bootz v. Childs, 83 C 4626.

• Decision Date: 22 May 1985
• Docket Number: No. 83 C 4626.,83 C 4626.
• Citation: 627 F. Supp. 94
• Parties: Duane A. BOOTZ, Plaintiff, v. Richard CHILDS, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

627 F. Supp. 94

Duane A. BOOTZ, Plaintiff, v. Richard CHILDS, et al., Defendants.

No. 83 C 4626.

United States District Court, N.D. Illinois, E.D.

May 22, 1985.

COPYRIGHT MATERIAL OMITTED

Andrew J. Bootz, Mount Prospect, Ill., for plaintiff.

Richard T. Wimmer, Klein, Thorpe & Jenkins, Chicago, Ill., for City of Des Plaines and unknown police officers.

John F. Early, Early, Collison, Tousey & Regan, Elgin, Ill., for J. Slonina.

MEMORANDUM OPINION

GRADY, District Judge.

This is a civil rights action under 42 U.S.C. § 1983, for defamation, illegal arrest, conspiracy and unlawful surveillance. Discovery was completed as of April 15, 1984. Defendants have now moved for summary judgment, and for attorneys' fees under 42 U.S.C. § 1988.

BACKGROUND

Plaintiff Duane A. Bootz is a resident of the City of DesPlaines, Illinois, and was formerly employed as a short-order cook at Denny's Restaurant in DesPlaines. Defendants are DesPlaines police officers Richard C. Childs, K. Randolph, J. Stephens, Richard Rozkuszka, and J. Slonina, DesPlaines police chief Leroy Alfano, and the City of DesPlaines.

Plaintiff alleges that defendants have maliciously conspired and engaged in a course of conduct designed to embarrass, harass and discredit plaintiff, and get him fired from his job at Denny's. Specifically, plaintiff alleges that defendant Childs and other DesPlaines police officers harassed him at his place of employment by complaining about his cooking and refusing to eat food cooked by him. In particular, plaintiff cites an incident during the early morning hours of June 30, 1983, when defendant Childs insisted that someone other than plaintiff cook his food because plaintiff had previously put something in Childs' food. Later that day, at approximately 11:00 p.m., plaintiff was riding his bicycle home from work¹ and saw defendant Childs parked in a squad car, apparently watching plaintiff's home. Plaintiff waved hello, and then proceeded into his house. At midnight, as plaintiff was waiting outside his house for a ride to go on a camping trip, Childs arrested plaintiff for riding his bicycle without a headlight and for failing to stop at a stop sign while on a bicycle. Plaintiff was held at the DesPlaines police station for an hour before he was allowed to speak with his attorney (who is also plaintiff's father) and post bond. After leaving the police station, plaintiff got into a car to go home, and was followed by defendant Rozkuszka to a shopping center parking lot where plaintiff and his family confronted Rozkuszka and asked him for identification. Defendant refused to identify himself, but did tell plaintiff that he had received orders to follow plaintiff.

Plaintiff also alleges that defendant police officers maliciously informed plaintiff's employer, friends and neighbors of plaintiff's prior criminal arrests and convictions in order to embarrass and discredit him. Plaintiff admits that he has a criminal record, although the exact nature of that record is unclear. Plaintiff's Memorandum in Opposition to Defendant's Memorandum in Support of Their Motion for Summary Judgment, Transcript of Dep. of Duane A. Bootz, at 91-93. In addition, plaintiff claims that defendant Slonina cited plaintiff for parking his motor home at his residence in violation of a DesPlaines city ordinance regulating taxis.

Aside from these factual allegations, plaintiff does not clearly state what constitutional violations he believes occurred. Plaintiff appears to claim that defendants' defamatory statements regarding his job performance and prior criminal record damage his reputation and were intended to cause plaintiff to lose his job. Further, plaintiff asserts that his arrest on June 30, 1983, was unlawful because it was done without a warrant, and that defendants maliciously prosecuted plaintiff for the bicycle violations and parking violation. Plaintiff also alleges that no one else has been similarly arrested and prosecuted for bicycle violations, and so plaintiff may be bringing a claim for selective prosecution as well. The "super-strict" surveillance of plaintiff's home and whereabouts on June 30 supposedly infringed on plaintiff's Fourth Amendment rights, and there is some indication that plaintiff believes that all the defendants conspired to commit these various acts. Finally, defendants City of DesPlaines and Leroy Alfano allegedly ordered or acquiesced in the police officers' actions.

Defamation Claims

Defendants have moved for summary judgment on plaintiff's defamation claims, arguing that the police officers' statements concerning plaintiff were not defamatory because they were true, and to the extent that any statements were defamatory, they did not deprive plaintiff of any constitutional rights.

It is axiomatic that in order for a statement to be defamatory, it must be false. See Zaret v. Joliet Park District, 91 Ill. App.3d 225, 227, 47 Ill.Dec. 654, 415 N.E.2d 659, 660 (3d Dist.1980). Plaintiff has not specified the content of defendants' statements, other than to allege that Childs and other DesPlaines police officers informed plaintiff's employer, friends and neighbors about his past criminal record, nor has any evidence been presented as to the exact nature of plaintiff's record. We are therefore unable to determine at this time whether all of defendants' statements were truthful and not defamatory.

Regardless of this factual question, however, we find that summary judgment for defendants is appropriate on plaintiff's defamation claims since it is clear that plaintiff has not suffered a constitutional injury. Defamatory statements by state officials that damage an individual's reputation alone are clearly not cognizable under 42 U.S.C. § 1983 as a civil rights violation, even though a state tort claim for defamation may exist. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Under the "stigma plus" test, the stigma caused by the defamation must occur in conjunction with, or "plus," the loss of some right or governmental benefit, or a change in plaintiff's legal status, without due process of law. Id.; Hadley v. County of DuPage, 715 F.2d 1238, 1246-47 (7th Cir.1983), cert. denied, 465 U.S. 1006, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984); see also Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (defamatory action of "posting" that an individual is an alcoholic, thereby depriving the individual of the right to purchase liquor, is unconstitutional).

Plaintiff's claims that defendants' statements concerning his criminal record embarrassed and discredited him therefore clearly do not state a cause of action under § 1983. Plaintiff also alleges that defendants' statements to his employer were made with the intent of causing plaintiff to lose his job. Plaintiff's employment as a short-order cook at a privately-owned restaurant, however, is not a governmental right or benefit, nor has plaintiff alleged that the defamation caused a change in plaintiff's legal status.² Moreover, defendants have submitted the deposition testimony of plaintiff's supervisor at Denny's Restaurant, who stated that plaintiff was not fired but instead voluntarily left Denny's to take a higher paying job at a factory. Defendants' Memorandum in Support of Their Motion for Summary Judgment, Transcript of Dep. of Meta Wade, at 24-27. Plaintiff has not refuted Wade's testimony, and in fact, his amended complaint does not actually allege that defendants' defamatory actions led to his loss of employment but simply claims that defendants maliciously intended to "jeopardize" his job. Amended Complaint, ¶¶ 8c, 15, 16.

There is no deprivation of liberty if an employee is not fired. Lawson v. Sheriff, 725 F.2d at 1139. Plaintiff has thus not suffered any injury due to the alleged defamation other than stigma to his reputation, which is not sufficient to sustain a cause of action under § 1983. Summary judgment is accordingly granted for all defendants on those portions of plaintiff's amended complaint based on defamation.

Illegal Arrest and Malicious Prosecution Claims

Defendants have moved for a complete dismissal of plaintiff's complaint as to his allegedly illegal arrest and malicious prosecution because plaintiff invoked his Fifth Amendment right against self-incrimination during his deposition, and refused to state whether he committed the bicycle violations. In support of their argument, defendants refer to an Illinois appellate court case holding that plaintiffs in a civil action may not invoke the Fifth Amendment and still maintain their lawsuit. Galante v. Steel City National Bank of Chicago, 66 Ill.App.3d 476, 23 Ill.Dec. 421, 384 N.E.2d 57 (1st Dist.1978), cert. denied, 444 U.S. 841, 100 S.Ct. 80, 62 L.Ed.2d 53 (1979). The plaintiffs in Galante appeared at their depositions and refused to answer any questions except to give their names. Id., 66 Ill.App.3d at 478-79, 23 Ill.Dec. at 423-24, 384 N.E.2d at 59-60. In those circumstances, the court ruled that the plaintiffs could not use their Fifth Amendment privilege as both a sword and a shield by prosecuting a civil suit but refusing to comply with legitimate discovery requests. Default judgment was entered for the defendants, and the case was dismissed.

There is no indication in this case that plaintiff generally refused to comply with discovery. The only time plaintiff refused to answer questions at his deposition was when defendants' attorney asked whether plaintiff had committed the traffic violations for which he was arrested. Defendants' Memorandum in Support of Their Motion for Summary Judgment, Transcript of Dep. of Duane Bootz, at 120.³ Plaintiff was obviously not trying to completely frustrate the discovery process as were the plaintiffs in Galante. Instead, he invoked the Fifth Amendment solely in order to avoid giving testimony which could have incriminated him in the state court proceedings concerning his traffic violations.

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