Pindak v. Dart
| Decision Date | 27 August 2015 |
| Docket Number | No. 10 C 6237,10 C 6237 |
| Parties | Kim Pindak, Norman Talley and Sam Phillips, Plaintiffs, v. Thomas J. Dart, Sheriff of Cook County, Cook County, Illinois; Securitas Security Services USA, Inc., an Illinois Corporation; and Deron Truman, Antonio Kelly, Laverne Nance, and Dalibor Jevtic, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Adele D. Nicholas, Nicholas Law Office, Mark G. Weinberg, Attorney at Law, Chicago, IL, for Plaintiffs.
Anthony E. Zecchin, Colleen Bernadette Cavanaugh, James Charles Pullos, Anthony Raymond Rutkowski, Rutkowski Law Group P.C., Chicago, IL, for Defendants.
This case is a First Amendment challenge to restrictions imposed by private security officers and Cook County Deputy Sheriffs on panhandling activities in Daley Plaza. Plaintiffs Kim Pindak, Norman Talley, and Sam Phillips are three individuals who regularly panhandle to supplement their income and who have attempted to panhandle on Daley Plaza. Plaintiffs allege that Cook County Deputy Sheriffs and private security guards employed by Securitas Services, Inc. have repeatedly interfered with Plaintiffs' constitutional rights by barring them from panhandling on Daley Plaza. They filed this § 1983 suit seeking compensatory and punitive damages; a declaration that Securitas' and the Sheriff's policy of removing panhandlers is unconstitutional; and an injunction barring Defendants from interfering with lawful panhandling on the Plaza. Plaintiffs named Securitas guards Antonio Kelly and Deron Truman (Count II), and Deputy Sheriffs Dalibor Jevtic and Laverne Nance (Count V) as Defendants. Plaintiffs also contend that Securitas, Inc. (Count I) and Thomas Dart, in his official capacity as Cook County Sheriff (Count IV), are liable as entities under Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because they have established policies or customs of removing peaceful panhandlers from Daley Plaza. Finally, Plaintiffs assert that, even if Securitas is not directly liable under Monell, it should nonetheless be vicariously liable for the actions of its employees based on a theory of respondeat superior (Count III).
The parties have filed cross-motions for summary judgment. Plaintiffs seek summary judgment [217] against Kelly, Truman, and Securitas ("Securitas Defendants"). In a second motion, Plaintiffs move for summary judgment [257] against Deputy Jevtic and Sheriff Dart. Plaintiffs do not seek summary judgment against Deputy Nance.1
Defendants also move for summary judgment. Securitas Defendants seek summary judgment [254] on Counts I, II, and III (the only counts pertaining to those Defendants), urging that Securitas Defendants do not act "under color of state law" and are therefore not subject to § 1983 liability. Even if they could be held liable under § 1983, Securitas Defendants contend, Plaintiffs have not identified sufficient evidence showing (1) that Kelly and Truman actually prohibited Plaintiffs from panhandling on the Plaza; or (2) that Securitas had a policy or custom that would create entity liability under Monell. Finally, Securitas contends that it may not be held vicariously liable because Seventh Circuit case law precludes a respondeat superior theory of liability in § 1983 actions.
As explained in detail below, the court concludes that Securitas guards do act under color of state law when they regulate speech activities on Daley Plaza, a public forum, and that the undisputed evidence establishes that Truman and Kelly interfered with Plaintiffs' attempts to panhandle on the Plaza. Though the court is sympathetic to Plaintiffs' request to hold Securitas vicariously liable for the actions of its employees, it ultimately agrees with Securitas that respondeat superior liability is barred by Seventh Circuit precedent. Plaintiffs may still be able to prevail on their Monell claim against Securitas, however, as material disputes of fact remain regarding whether Securitas had a policy or custom of interfering with panhandling on the Plaza. Securitas' motion is accordingly granted with respect to Plaintiffs' respondeat superior claim (Count III), but otherwise denied. Plaintiffs' motion against Securitas is granted with respect to Plaintiffs' claims for individual liability (Count II), but denied with respect to its claims for entity liability against Securitas (Counts I and III).
Sheriff Dart and Deputies Nance and Jevtic ("Sheriff's Defendants") also seek summary judgment [231], arguing that Plaintiffs have not identified any evidence (1) that Deputies Nance and Jevtic actually prohibited Plaintiffs from panhandling; or (2) that the Sheriff's Department has a policy or custom sufficient to support Monell liability. Sheriff's Defendants also assert that they are entitled to qualified immunity. The Sheriff's Defendants' motion is denied: An audio recording of Deputy Jevtic declaring to Pindak that panhandling is prohibited provides undisputed evidence that Deputy Jevtic interfered with Pindak's rights. Material disputes of fact preclude summary judgment for Deputy Nance or Sheriff Dart, and the court concludes that Sheriff's Defendants are not entitled to qualified immunity. As noted, Plaintiffs have moved for summary judgment against Defendants Jevtic and Dart [257]. That motion is granted with respect to Pindak's claims against Deputy Jevtic (Count V) and denied with respect to Plaintiffs' allegations against Sheriff Dart (Count IV).
The Daley Center is a 30–story office building and an iconic landmark in the heart of Chicago. The building houses the Circuit Court of Cook County, among other tenants, and hosts approximately 30,000 visitors each day. It is undisputed that the Plaza is a public forum: It stretches across the block in front of the courthouse; is home to an eternal flame in honor of those who died in the U.S. armed forces, a large Picasso sculpture, a fountain, and outdoor seating; and is a frequent location for political rallies, demonstrations, and various cultural events.
The building opened in 1966 as the Chicago Civic Center and was renamed ten years later, in honor of the first Mayor Daley, Richard J. Daley. The Daley Center was built by the Public Building Commission of Chicago ("PBC"), a municipal corporation created pursuant to the Illinois Public Building Commission Act. (Securitas SOF ¶¶ 1–2; Pls.' Resp. to Securitas SOF ¶¶ 1–2); 50 ILCS 20/14. PBC is the legal owner and a tenant of the Daley Center and since 1988 has maintained regulations and procedures for the use of the Daley Center lobby and Plaza. (Securitas SOF ¶¶ 9, 11; Pls.' Resp. to Securitas SOF ¶ 9, 11); see 50 ILCS 20/14(a), (f) (delegating to all Public Building Commissions in Illinois the power to "select, locate and designate" buildings for municipal and county use and "to provide rules and regulations for the operation, maintenance and management of" such buildings.). PBC also contracts with MB Real Estate Services, LLC ("MBRE") to manage the Daley Center and Plaza.
By state statute, the Cook County Sheriff is responsible for providing security at all Cook County courthouses, and the Sheriff therefore provides security services for the Circuit Court of Cook County within the Daley Center. (Securitas SOF ¶ 13; Pls.' Resp. to Securitas SOF ¶ 13; Sheriff's Resp. to Pls.' SAF ¶¶ 79–80); 55 ILCS 5/3–6017. Two Sheriff's deputies are assigned to outside posts on Daley Plaza—one on the east side and one on the west—and a third deputy provides lunch relief and fills in when one of the first two is absent. Two marked Cook County Sheriff's squad cars are also stationed at Daley Plaza.2
Defendants Deputy Laverne Nance and Deputy Dalibor Jevtic are both assigned to the Daley Center. Deputy Nance has been a Sheriff's Deputy since 2004 and has been assigned to an outside post at Daley Plaza since 2008. Deputy Nance works 8:30 a.m. to 4:30 p.m. Monday through Friday and typically patrols on the west side of the Plaza, near Clark Street. Before Deputy Jevtic became a Sheriff's Deputy in 2003, he worked as a private security guard on Daley Plaza for Aargus Security Systems, Inc., one of Securitas' predecessors.3 Deputy Jevtic became a Sheriff's Deputy in 2003 and was assigned to an outside post on Daley Plaza from 2005 to 2007. Since 2008, however, Jevtic has been assigned to a courtroom in the Daley Center and works outside only...
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