Moore v. Martin
| Decision Date | 22 May 1991 |
| Docket Number | No. 89 C 7473.,89 C 7473. |
| Citation | 764 F. Supp. 1298 |
| Parties | Kathleen MOORE and James Serio, Plaintiffs, v. LeRoy MARTIN, Superintendent of Police, Chicago Police Department, The Police Board of the City of Chicago and City of Chicago, A Municipal Corporation, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Joseph V. Roddy, Thomas J. Pleines, Arthur Neville, Law Offices of Joseph V. Roddy, Chicago, Ill., for plaintiffs.
Kelly R. Welsh, Robert T. Karmgard, Barbara Smith, Corp. Counsel, Chicago, Ill., for defendants.
Defendants LeRoy Martin and the City of Chicago have moved for summary judgment on all claims in the amended verified complaint of plaintiffs Kathleen Moore and James Serio. For the reasons stated below, defendants' motion must be granted in part and denied in part.
The parties do not dispute the following facts. Plaintiffs Kathleen Moore and James Serio were City of Chicago police officers assigned to beat patrol in the City's 9th District. For a brief period of time, both officers were suspended as police officers.
Both plaintiffs were suspended for allegedly taking two black youths into their custody on August 14, 1989 and verbally and physically abusing them. The plaintiffs then allegedly released the youths at 35th and Union Streets in Chicago, where the youths were then physically abused by a gang of white youths.
During the evening of August 16, 1989, plaintiffs were each brought into an office in the 9th District station where they were presented with Notifications of Charges/Allegations. Plaintiffs understood the Notifications, had no questions, and signed the notifications.
Plaintiffs were also presented with "Waiver of Counsel/Request to Secure Counsel" forms. Plaintiffs marked the forms stating that they requested to secure counsel. Plaintiffs also wrote on the forms that because they chose to seek counsel, they agreed to proceed with "hearing, examination or interrogation" at a time and date "to be notified." Plaintiffs then signed the forms.
Plaintiffs were not, however, called in for interrogations prior to their suspensions. Instead, on September 25, 1989, defendant Superintendent of Police LeRoy Martin ordered both officers to be suspended for thirty days pending the filing of formal charges with the Chicago Police Board. The suspensions were effective September 26, 1989.
On October 3, 1989 plaintiffs filed their original verified complaint for injunction, declaratory judgment and other relief. Prior to hearing plaintiff's companion emergency motion for temporary restraining order, however, the parties reached an agreement — an agreement set forth in an Agreed Order entered by Judge Hart on October 4, 1989.
Under the terms of the Agreed Order, defendants agreed to reinstate plaintiffs with full back pay and benefits retroactive to September 26, 1989 — the date of plaintiffs' suspensions. In the same order, plaintiffs agreed to "appear no later than October 10, 1989, with counsel, at the offices of the Chicago Police Department for the purpose of responding to those allegations referred to within their instant Complaint and Motion." (Agreed Order, ¶ 3.)
On October 4, 1989, Superintendent Martin rescinded plaintiffs' suspensions. Plaintiffs were reimbursed for the portion of their salaries that had been withheld pursuant to their suspension orders — a period lasting from September 26 to October 4, 1989. Between August 16, 1989 and September 25, 1989 and again upon their return to duty on October 5, 1989 through October 15, 1989, plaintiffs were given desk assignments.
On October 10, 1989 plaintiffs appeared with their attorney at the offices of the Chicago Police Department for their interrogations. At that time plaintiffs again were provided with Notifications of Charges/Allegations. Both officers understood the Notifications, had no questions, and signed the Notifications. Plaintiffs then were advised of their constitutional rights to remain silent. Plaintiffs understood those rights, had no questions, and acknowledged those rights with their signatures. Both plaintiffs then gave a statement asserting their rights to remain silent while a criminal investigation into their conduct was in progress.
On October 13, 1989 Superintendent Martin again suspended plaintiffs for thirty days pending the filing of charges against them with the Chicago Police Board. Plaintiffs' charges currently are pending before the Police Board, where plaintiffs are scheduled to receive a full evidentiary hearing on the allegations against them. Plaintiffs currently are working part time for a security firm.
On March 29, 1990 plaintiffs filed a three-count amended verified complaint for injunction, declaratory judgment and other relief. In their amended complaint plaintiffs challenge only their initial, September 26, 1989 suspensions.
Plaintiffs base their amended complaint on 42 U.S.C. Section 1983. Count I alleges that Superintendent Martin's September 26, 1989 suspension of plaintiffs deprived them of property without due process of law. In Count II plaintiffs aver that by placing "adverse employment information" in plaintiffs' employment files, defendants have deprived plaintiffs of liberty without due process. (Amended Verified Complaint, ¶ 28.) And Count III alleges that defendants deprived plaintiffs of property interests by not assigning them to "less sensitive" jobs in lieu of suspension.
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "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). In ruling on a motion for summary judgment the evidence of plaintiffs, the nonmovants here, must be believed, and all justifiable inferences must be drawn in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).
However, when confronted with a motion for summary judgment, a party who bears the burden of proof on a particular issue may not rest on its pleading, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
Defendants urge several bases for awarding summary judgment in their favor. The court addresses these bases in turn.
Defendants argue that plaintiffs' claims are moot and that plaintiffs lack standing to challenge the constitutionality of Police Board Rule IV(C). In their amended complaint, plaintiffs pray for the following relief:
Citing Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.1988), defendants assert that plaintiffs' challenge to the constitutionality of Police Board Rule IV(C), discussed below, is moot because "there is no reasonable expectation that the putatively illegal conduct will be repeated, and there are no remaining effects of the alleged violation." However, as this court noted in an earlier opinion, it is defendants' heavy burden of persuading the court that a controversy is moot. Moore v. Martin, No. 89 C 7473, slip op. at 4, 1990 WL 37767 (N.D.Ill. Mar. 15, 1990), quoting Ragsdale, 841 F.2d at 1365. Although the question is a close one, defendants have failed to carry their burden.
Plaintiffs argue that their claims are not moot and that they have standing to sue because their claims fall within the "capable of repetition but evading review" exception to the mootness and standing doctrines. Air Line Pilots Ass'n, Int'l. v. UAL Corp., 897 F.2d 1394, 1399 (7th Cir. 1990), citing Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975); see also Feit v. Ward, 886 F.2d 848, 856-857 (7th Cir.1989). The "capable of repetition, yet evading review" doctrine is limited to the situation where two elements combine:
The court finds both elements present here.
It is clear that plaintiffs' "emergency suspensions" under Police Board Rule IV(C) were too short in duration to be fully litigated. The suspensions were rescinded within nine days pursuant to the parties' settlement. Moreover, in any event the suspensions could not exceed thirty days. See Rules and Regulations of the Police Department, City of Chicago, IV(D), at 37, attached as Exhibit A to P1. Response.
But is there a reasonable expectation that the plaintiffs again will be subjected to the same emergency suspensions? Neither plaintiffs nor defendants specifically address this point.
Nonetheless, according to the facts before this court, plaintiffs currently remain suspended — suspensions based upon Superintendent Martin's October 13, 1989 suspension order which plaintiffs do not challenge in their amended complaint. According to the available evidence, plaintiffs' charges currently are pending before the Police Board, where plaintiffs are scheduled to receive a full...
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