King v. Avila, 88 C 8687.
Decision Date | 27 October 1989 |
Docket Number | No. 88 C 8687.,88 C 8687. |
Citation | 760 F. Supp. 681 |
Parties | Emily KING, Steven King, and Cora King, individually and as next friend of her minor child Nicholas, Plaintiffs, v. Chicago Police Officers, Joseph C. AVILA, Star Number 17323, E. Johnson, Star Number 17473, T.R. Zapolsky, Star Number 5735, M. Tristano, Star Number 17374, W. Brantley, Star Number 10813, S. Davis, Star Number 13008, R. Lombard, Star Number 17452, M. Overstreet, Star Number 17077, C. Smith, Star Number 4718, and Police Sergeant Cunningham, Star Number 1287, Defendants. |
Court | U.S. District Court — Northern District of Illinois |
Kenneth N. Flaxman, Elizabeth Dale, Chicago, Ill., for plaintiffs.
Sharon Baldwin, Matthew E. Van Tine, Corp. Counsel, Chicago, Ill., Kelley R. Welsh, for all defendants except Brantley and Johnson.
Before the court is the motion of the defendants, Avila, Zapolsky, Tristano, Davis, Lombard, Overstreet, Smith and Cunningham for partial summary judgment as to counts III and IV of the complaint. For the following reasons, the motion is granted.
The parties have complied with local rule 12(e) and (f). The plaintiffs have raised numerous objections to the defendant's statement of undisputed facts. A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After close examination, the court concludes that the plaintiffs have not raised an issue of material fact.
Plaintiffs first contend that Officer Avila's affidavit, submitted in compliance with local rule 12(e), is not based upon personal knowledge and is therefore incompetent. However, Officer Avila is basing his affidavit upon his personal knowledge of statements made by his partner. Therefore, Officer Avila's affidavit is sufficient to support the defendants's undisputed material facts.
Plaintiffs next contend that certain assertions of fact are patently false. In support of this, plaintiffs rely on the deposition of Cora King and the affidavit of Steven King. However, Officer Avila asserts these facts as the basis for his procurement of the warrant. Plaintiffs' assertion of falsity does not dispute the fact that Officer Avila relied upon this information in obtaining the warrant. Whether his reliance was reasonable is the crux of this action, and will be discussed below.
Therefore, the court adopts the defendants facts as follows:
The plaintiffs have proposed additional facts. However, none of the facts presented warrant denial of summary judgment in this case.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence which supports his complaint. Id.; see First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569, reh. den., 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Accordingly, the non-moving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Id.
Count III of the complaint makes a claim for malicious prosecution. In Illinois, in order to state a claim for malicious prosecution, the plaintiff must show: 1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; 2) the termination of the proceeding in favor of the plaintiff; 3) the absence of probable cause for such proceeding; 4) the presence of malice; and 5) damages resulting to the plaintiff. Hajawii v. Venture Stores, Inc., 125 Ill.App.3d 22, 80 Ill.Dec. 461, 465 N.E.2d 573 (1st Dist.1984); Joiner v. Benton Community Bank, 82 Ill.2d 40, 44 Ill.Dec. 260, 411 N.E.2d 229 (1980). The case must be terminated in a manner indicative of the innocence of the accused. Hajawii, 125 Ill. App.3d at 24, 80 Ill.Dec. at 461, 465 N.E.2d at 573; Joiner, 82 Ill.2d at 45, 44 Ill.Dec. at 263, 411 N.E.2d at 232.
In the present case, the charge against plaintiff Steven King was dismissed with leave to reinstate. A dismissal with leave to reinstate is not a final disposition. People ex rel. DeVos v. Laurin, 73 Ill.App.3d 219, 29 Ill.Dec. 5, 391 N.E.2d 164 (1st Dist.1979); People v. St. John, 369 Ill. 177, 15 N.E.2d 858 (1938); Blalock v. Randall, 76 Ill. 224 (1875). A case stricken from the docket is still a pending case, and it excludes the conclusion that the case is at an end. DeVos, 73 Ill.App.3d at 222, 29 Ill.Dec. at 7, 391 N.E.2d at 166. Therefore, plaintiffs fail to comply with the second requirement, as there has been no termination here. Since no final termination has occurred, the innocence of the accused cannot be determined. The court holds, as a matter of law, that a dismissal with leave to reinstate cannot be the basis for a malicious prosecution claim. See, Blalock v. Randall, 76 Ill. 224 (1875). Accordingly, defendant is granted summary judgment on count III of the complaint.
Count IV of the complaint alleges deprivation of the plaintiffs' fourth amendment rights by actions taken under color of the search warrant obtained by Officer Avila. Such an allegation involves the issue of qualified immunity.
Qualified immunity exists because public officers require some form of immunity from suits for damages. Jackson v. Elrod, 881 F.2d 441 (7th Cir.1989). Immunity is not justified by the person to whom it attaches but by the function it advances. Elrod, at 443. As a general rule, police officers who apply for search warrants are entitled to qualified immunity. Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). A search warrant can be obtained if the officer shows, in the "totality of the circumstances", that a warrant should issue. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause is a fluid concept, turning on the assessment of facts in a particular context, and cannot readily be reduced to a neat set of legal rules. Gates, 462 U.S. at 233, 103 S.Ct. at 2329. In dealing with probable cause, we deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. U.S. v. McCarty, 862 F.2d 143 (7th Cir.1988) (citing Gates). Thus, only where a warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of qualified immunity be lost and the officer liable for damages. Malley, 475 U.S. at 344-45, 106 S.Ct. at 1097-98.
The Seventh Circuit has recently set out the framework of a qualified immunity analysis. Polenz v. Parrott, 883 F.2d 551 (7th Cir.1989). Government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly...
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