Moore v. Marketplace Restaurant, Inc., No. 83-2511

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore POSNER and COFFEY, Circuit Judges, and FLOYD R. GIBSON; COFFEY; POSNER; FLOYD R. GIBSON
Citation754 F.2d 1336
PartiesChauncey L. MOORE, Jr., et al., Plaintiffs-Appellants, v. The MARKETPLACE RESTAURANT, INC., et al., Defendants-Appellees.
Docket NumberNo. 83-2511
Decision Date11 February 1985

Page 1336

754 F.2d 1336
Chauncey L. MOORE, Jr., et al., Plaintiffs-Appellants,
v.
The MARKETPLACE RESTAURANT, INC., et al., Defendants-Appellees.
No. 83-2511.
United States Court of Appeals,
Seventh Circuit.
Argued April 5, 1984.
Decided Jan. 29, 1985.
As Amended Feb. 11, 1985.

Page 1338

Eugene Lieberman, Wilmette, Ill., for plaintiffs-appellants.

William C. Barasha, Kurnik & Cipolla, Arlington Heights, Ill., for defendants-appellees.

Before POSNER and COFFEY, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge. *

COFFEY, Circuit Judge.

In 1980, the plaintiffs Chauncey L. Moore, Jr., Hugo P. Kosmel, Jr., Judith M. Kosmel, Arthur J. Ciolkowski, Andrea R. Ciolkowski, and Kimberlee Kosmel filed this action in the United States District Court for the Northern District of Illinois

Page 1339

under 42 U.S.C. Sec. 1983, 1 against The Marketplace Restaurant, Inc., Walter E. Schneiter, John H. Schelley, James A. Bakular, Eric C. Egger, John Moss, and the County of Will, Illinois, alleging violations of the plaintiffs' Fourth, Eighth, and Fourteenth Amendment rights resulting from an alleged unlawful arrest and subsequent imprisonment. 2 The plaintiffs' original complaint contained four counts. The first count alleges that the defendants unlawfully arrested and detained the plaintiffs. Count II alleges that while making the arrest, the defendants wrongfully abandoned Kimberlee Kosmel, a minor. Count III alleges that the detention described above was of such a quality and nature as to violate the plaintiffs' constitutional rights. 3 Finally, Count IV asserted certain state law violations against Mr. Schneiter for malicious prosecution.

Upon defendants' motion for summary judgment, the district court initially dismissed all counts except for the unlawful arrest claim. It based this holding on the decision in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) which held that warrantless, nonconsensual entry to effectuate an arrest was unlawful under the Fourth Amendment. However, on the defendants' Motion for Reconsideration, the district court determined that the plaintiffs consented to the entry since they opened their doors after the police had identified themselves and granted summary judgment in favor of the defendants on all claims set forth in the complaint.

The plaintiffs now appeal the district court's decision granting summary judgment for the defendants and dismissing their claims contending that material issues of fact exist concerning the alleged illegality of the plaintiffs' arrest and subsequent detention. Upon review of the facts set forth in the pleadings, affidavits and interrogatories filed in this case, we are guided by the following standard in our review of the district court's order granting summary judgment:

"It is well accepted that the purpose of summary judgment is to prevent an unnecessary trial where, on the basis of the pleadings and supporting documents, there remains no material issue of fact to be tried. Kirk v. Home Indemnity Co., 431 F.2d 554, 559 (7th Cir.1970). Summary judgment is appropriate only if it appears that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir.1976); Fed.R.Civ.P. 56(c). The burden is upon the moving party to show that there is no issue of material fact in dispute, Rose v. Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir.1973), and all doubts as to the existence of an issue of material fact must be resolved against movant. Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573, 577 (7th Cir.1961)."

Dreher v. Sielaff, 636 F.2d 1141, 1143 n. 4 (7th Cir.1980). Applying this standard to the instant case, we hold that there exist genuine issues of material fact as to the issues of probable cause and pretrial detainment;

Page 1340

thus we remand this case to the district court for a proper determination of these factual issues.

I.

The record, as developed in this case, discloses that on Friday, April 28, 1979, at approximately 8:30 p.m., the plaintiffs arrived at The Marketplace Restaurant near Joliet, Illinois. On that particular day, the plaintiffs were attending the meet trials of the Western Irish Setters Club at the Des Plaines Conservation Area. The plaintiffs' affidavits state that after arriving at the restaurant and ordering their food and drinks, forty-five minutes had lapsed before they were served their soups and salads. Upon asking the manager, the defendant Mr. Schneiter, when the meals would be served, he allegedly responded with a profane remark. One hour to one and one-half hours later, between 9:30 p.m. and 10:00 p.m., the plaintiffs again asked when their meals would be ready. The request for service continued until 10:30 p.m. when the defendant allegedly once again responded profanely. At this point the plaintiffs got up to leave. Both Judy Kosmel and Andrea Ciolkowski recited that they each offered to pay for the soups, salads and drinks consumed during the two-hour period. The defendant allegedly responded in an angry tone demanding that the plaintiffs pay for the entire meal. To support his demand, the defendant allegedly told the plaintiffs that he would get his money and take care of them in his "own way" if they refused to pay for the entire meal.

In his affidavit in support of the motion for summary judgment brought on behalf of the Will County defendants, defendant deputy sheriff John Moss testified that at approximately 10:45 p.m. on the evening of April 28, 1979, he received a radio call from the dispatcher at the sheriff's office advising him to proceed to the Marketplace Restaurant. Upon arriving, he was advised by Mr. Schneiter, the manager, that five persons, three men and two women, had entered the restaurant at approximately 8:30 p.m. that evening, that each had ordered meals and consumed several drinks with either a salad or a bowl of soup, and that they had left without paying or offering to pay for the food and beverages they ordered and consumed. Deputy Moss further testified that Mr. Schneiter gave him a physical description of each of the five persons and provided him with descriptions of their vehicles. He was also told that the five individuals were not from the area and they would be camping overnight at the camping area in the Des Plaines Conservation Area. The deputy further stated that he spoke with the waitress who had waited on the plaintiffs' table and that she had stated that the plaintiffs had consumed salads, soups and drinks, and that none of the plaintiffs had paid or offered to pay her for the drinks and food. According to the deputy, Mr. Schneiter then agreed to sign a criminal complaint against the plaintiffs on the following Monday morning. After receiving this information, the deputy testified that he called the shift sergeant at the Will County Sheriff's Police Department and relayed the information to the sergeant who then instructed him to arrest the plaintiffs for the crime of theft of services.

Deputy Moss, along with Deputies Bakular and Egger, proceeded to the campgrounds, located the vehicles matching the descriptions given to Deputy Moss by Mr. Schneiter, and knocked on the doors of the three campers where the plaintiffs were sleeping. In response to queries by the plaintiffs in each of the campers as to who was at the door, the deputies identified themselves as the police. When the doors to the campers were opened, the officers entered the campers, asked the plaintiffs whether they had been at The Marketplace Restaurant that night, and upon receiving an affirmative answer, placed each adult plaintiff under arrest, handcuffed them and took them to the waiting squad cars. Judith Kosmel advised the officer that her fifteen-year-old daughter was in the camper alone. The officer gave her the choice of either having the daughter accompany them and letting her sit in the squad car while they were in custody or having her

Page 1341

remain in the camper alone. Judith Kosmel told the officer that the child could not be alone and that either choice was unacceptable; however, she eventually decided to leave her daughter in the camper. It was established that the camper did have locks and heat. The minor child, Kimberlee Kosmel, suffered no physical injury; however, she claimed damages for emotional distress as a result of witnessing the arrest and handcuffing of her parents and being left alone in the camper without protection. Upon being transported to the jail, Judith Kosmel stated in her deposition that one of the deputies told her that the situation should never have happened and if it was the officer in the plaintiffs' shoes, he would sue.

Upon arriving at the jail, the plaintiffs were all placed in the same holding cell. 4 A burly drunk was also placed in the holding cell. The drunk apparently screamed threats and profanities at the deputies and glowered and muttered at the plaintiffs. The time spent by the plaintiffs in this holding cell is unclear from the record; however, it appears that they spent a minimum of four hours in detention prior to their release early the following morning. Upon their release, the plaintiffs were not offered a ride back to the campgrounds and thus apparently were forced to hitch-hike back.

A complaint was issued the following Tuesday with Mr. Schneiter as the complainant; however, the charges were subsequently dismissed by the trial court. Following dismissal of the criminal complaint, the plaintiffs filed this 1983 action in federal district court. In response the defendants filed a motion for summary judgment and attached affidavits in which Schneiter claimed that he had no prior contact with the Will County Sheriffs regarding any other incidents at his restaurant, while deputy sheriff John Moss also stated that he did not have any previous contacts with the restaurant or Mr. Schneiter. After reviewing...

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307 practice notes
  • V-1 Oil Co. v. State of Wyo., Dept. of Environmental Quality, V-1
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 30, 1990
    ...to the advising attorney(s), see Burk v. Unified School Dist. No. 329, 646 F.Supp. at 1560-61; cf. Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1348-49 (7th Cir.1985) (separate opinion of Coffey, J.), the prominence and competence of the attorney(s), see Alexander v. Alexander, 573......
  • Gumz v. Morrissette, Nos. 84-3124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 27, 1985
    ...F.2d 1266, 1268 (7th Cir.1985); 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); Terket v. Lund, 623 F.2d 29, 31 (7th The majority properly emphasizes that the majority of appellate courts that ......
  • U.S. v. McKinney, No. 89-2972
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 21, 1990
    ...1580 (Cudahy, J., dissenting).) See also Gramenos v. Jewel Cos., 797 F.2d 432, 438 (7th Cir.1986); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1347 (7th Cir.1985). I suggest that clearly erroneous is the correct rule whoever makes the initial Consider a finding of negligence in an......
  • Easter House v. Felder, No. 86-2164
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 8, 1988
    ...not suffice. See, e.g., Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194, 201 (7th Cir.1985); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir.1985); Goldschmidt v. Patchett, 686 F.2d Page 920 582, 585 (7th Cir.1982); see also Hobson, 737 F.2d at 29-31 (imposing strict......
  • Request a trial to view additional results
306 cases
  • V-1 Oil Co. v. State of Wyo., Dept. of Environmental Quality, V-1
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 30, 1990
    ...to the advising attorney(s), see Burk v. Unified School Dist. No. 329, 646 F.Supp. at 1560-61; cf. Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1348-49 (7th Cir.1985) (separate opinion of Coffey, J.), the prominence and competence of the attorney(s), see Alexander v. Alexander, 573......
  • Gumz v. Morrissette, Nos. 84-3124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 27, 1985
    ...F.2d 1266, 1268 (7th Cir.1985); 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); Terket v. Lund, 623 F.2d 29, 31 (7th The majority properly emphasizes that the majority of appellate courts that ......
  • U.S. v. McKinney, No. 89-2972
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 21, 1990
    ...1580 (Cudahy, J., dissenting).) See also Gramenos v. Jewel Cos., 797 F.2d 432, 438 (7th Cir.1986); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1347 (7th Cir.1985). I suggest that clearly erroneous is the correct rule whoever makes the initial Consider a finding of negligence in an......
  • Easter House v. Felder, No. 86-2164
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 8, 1988
    ...not suffice. See, e.g., Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194, 201 (7th Cir.1985); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir.1985); Goldschmidt v. Patchett, 686 F.2d Page 920 582, 585 (7th Cir.1982); see also Hobson, 737 F.2d at 29-31 (imposing strict......
  • Request a trial to view additional results
1 books & journal articles
  • QUALIFIED IMMUNITY AND UNQUALIFIED ASSUMPTIONS.
    • United States
    • Journal of Criminal Law and Criminology Vol. 112 Nbr. 1, January 2022
    • January 1, 2022
    ...factors can create extraordinary circumstances when an official relies on the advice of counsel); Moore v. Marketplace Rest., Inc., 754 F.2d 1336, 1348 (7th Cir. 1985) (finding that advice from a supervisor might rise to the level of extraordinary (97) See, e.g., Liu v. Phillips, 234 F.3d 5......

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