Fittanto v. Children's Advocacy Center, 91 C 6934.

• Citation: 836 F. Supp. 1406
• Decision Date: 24 September 1993
• Docket Number: No. 91 C 6934.,91 C 6934.
• Parties: John FITTANTO and Teresa Fittanto, individually and as parents of Sara Fittanto, a minor child, and Teresa Fittanto, as mother and next friend of Marie Lodge, a minor, Plaintiffs, v. CHILDREN'S ADVOCACY CENTER, an Illinois not-for-profit corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

836 F. Supp. 1406

John FITTANTO and Teresa Fittanto, individually and as parents of Sara Fittanto, a minor child, and Teresa Fittanto, as mother and next friend of Marie Lodge, a minor, Plaintiffs, v. CHILDREN'S ADVOCACY CENTER, an Illinois not-for-profit corporation, et al., Defendants.

No. 91 C 6934.

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

September 24, 1993.

James D. Montgomery, Jean M. Templeton, James D. Montgomery & Associates, Ltd., Chicago, IL, for plaintiffs.

Vincent C. Cipolla, William W. Kurnik, Kurnik, Cipolla, Stephenson & Barasha, Arlington Heights, IL, for defendant Pamela Klein.

Charles L. Lowder, Mary Kay Scott, Robert P. Vogt, Bullaro, Carton & Stone, Chicago, IL, for defendants Children's Advocacy Center and Tp. of Hanover.

Timothy Harold Okal, John D. Spina, Anthony F. Spina, James T. McGuire, Spina, McGuire & Okal, Elmwood Park, IL, Charles L. Lowder, Mary Kay Scott, Robert P. Vogt, Bullaro, Carton & Stone, Chicago, IL, for defendant Hanover Tp. Mental Health Bd.

Keri-Lyn Joy Krafthefer, Michael Ray Gibson, Cynthia Ann Freburg, Odelson & Sterk, Ltd., Evergreen Park, IL, Charles E. Hervas, James Gus Sotos, Michael William Condon, Michael D. Bersani, Hervas, Sotos & Condon, Itasca, IL, for defendants Village of Hanover Park and Jorge L. Martinez.

Mary Patricia Needham, Illinois Atty. Gen.'s Office, Chicago, IL, for defendant Al Ragland.

Marita Clare Sullivan, Mary Patricia Needham, Illinois Atty. Gen.'s Office, Chicago, IL, for defendant Eunice Smith.

Marita Clare Sullivan, Mary Ellen Coghlan, Mary Patricia Needham, Paul Francis Carlson, Illinois Atty. Gen.'s Office, Chicago, IL, for defendant Wayne Fieroh.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

This case involves allegations of child sexual abuse which led to the arrest of plaintiff, John Fittanto, and to the protective custody of his two children for over a year. When the children were ordered returned to the Fittantos and the charges of sexual assault dropped, the Fittantos sued various municipal agencies and individuals alleging constitutional deprivations under 42 U.S.C. § 1983 and malicious prosecution under state law. On March 17, 1992, defendants Klein, Ragland and Smith were dismissed on grounds of qualified immunity. Before the court are motions for summary judgment by the remaining defendants, the Children's Advocacy Center ("Center"), Hanover Township and Hanover Mental Health Board (collectively the "CAC defendants"); the Village of Hanover Park ("Village"); Jorge L. Martinez, a police officer for the Village, and Sgt. Wayne Fieroh of the Illinois State Police.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989); Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir.1988). Summary judgment will be denied where there is a genuine issue of material fact such that a reasonable jury could find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Jakubiec, 844 F.2d at 473. The movant need not, however, provide affidavits or deposition testimony. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The nonmovant must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Catrett, 477 U.S. at 322, 106 S.Ct. at 2552. Also, it is not sufficient for the nonmovant to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir.1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988). If the evidence presented by the nonmovant is merely "colorable," summary judgment is appropriate. Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir.1989). As the Seventh Circuit has summarized:

The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); id. at 325 106 S.Ct. at 2554 ("the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the nonmoving party will bear the burden of proving at trial, the nonmoving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324 106 S.Ct. at 2553. The nonmoving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient; there must be evidence on which the jury could reasonably find for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

FACTS

On Monday, October 16, 1989, Kristina Lopez became upset at school and was taken to the principal's office, where, after various complaints about her next door neighbor, Marie Fittanto, as well as the dog in the Fittanto's house, Kristina said Marie's father was "bad" because he "touched her privates."¹ The alleged touching occurred over her clothing and, apparently, during the preceding weekend. School authorities attempted reporting the matter to the Department of Child and Family Services ("DCFS"), which declined the report. Mrs. Lopez was contacted and referred to the local police.

The Village of Hanover Park Police Department arranged for an interview to be conducted at the Center. Detective Martinez of the Village police and Sandy Trumpinski, a social worker at the Center, were present during the initial interview. Kristina claimed that John Fittanto had brought her into the bathroom and "touched her privates" over her clothing. Kristina also used anatomically correct dolls to demonstrate how John touched her over her underpants. Kristina alleged that after John touched her, Kristina told her friend Marie, who responded that John does the same thing to her.

At the conclusion of this October 16, 1989 interview, the Lopez family was referred by Martinez to Glen Oaks Medical Center for an examination of Kristina. Although medical personnel at Glen Oaks requested permission to conduct an internal examination using the sexual assault kit provided by the State, Mrs. Lopez would allow only a superficial examination. The Glen Oaks examination found no physical evidence of abuse. At this point, Martinez did not believe he had probable cause to arrest anyone.

On October 19, 1989, Kristina was again interviewed at the Center. Pamela Klein, director of the Center, scheduled the interview. Both Klein and Trumpinski performed the interview with Kristina. The interview was monitored by Martinez, Sgt. Dan Driscoll of the Village police, Assistant State's Attorney Joel Block and Illinois State Police Officer Wayne Fieroh. Klein arranged Fieroh's attendance because Klein had a low opinion of Martinez's abilities. Driscoll did not feel Fieroh's presence was necessary because the case involved only allegations of fondling. In this interview, Kristina again alleged that John had touched her private parts while in the bathroom of the Fittanto home.

Klein directed the questioning at the October 19 session, steering the child's attention from topic to topic. After the interview, Martinez was skeptical of Kristina's allegations. Kristina did not exhibit any emotion during this interview. At the conclusion of the interview, Block indicated that he could not approve charges. Klein lashed-out in a verbal outburst, calling Block an "asshole." Klein scheduled another interview for October 24.

On October 24, Kristina again reported that she had been abused by John. She also disclosed, for the first time, that John had forced her to perform oral sex, demonstrating his acts with the dolls. Kristina's allegations on this date, however, seemed to Martinez to be "nonsensical" and some seemed "strange." For example, Kristina also reported that John poked himself with scissors, she spoke of the presence of blood and of other men who videotaped her, dog feces in the bathtub which John wanted to put on her, that the dog urinated on her, that various diagrams were drawn, that she was called a "bitch," that John put a gold knife on her head, that John would marry her when she grew up, that she was forced to drink wine, that John touched her in various places, that John "had his privates in her privates," that John waved a magic wand at her, and that John drew on his wife, Teresa, with...