Pogodzinski v. Vill. of Skokie

• Decision Date: 30 September 2021
• Docket Number: 16-cv-04236
• Parties: STEVEN POGODZINSKI, Plaintiff, v. VILLAGE OF SKOKIE, SGT. G. GUTIERREZ, and K. IWANSKI, Defendants.
• Court: U.S. District Court — Northern District of Illinois

STEVEN POGODZINSKI, Plaintiff,
v.
VILLAGE OF SKOKIE, SGT. G. GUTIERREZ, and K. IWANSKI, Defendants.

No. 16-cv-04236

United States District Court, N.D. Illinois, Eastern Division

September 30, 2021

MEMORANDUM OPINION AND ORDER

Andrea R. Wood, United States District Judge

In April 2014, Plaintiff Steven Pogodzinski was arrested for possession of a controlled substance while visiting the home of his friend, Ninous Zomaia (“Ninous”). Pogodzinski claims that his arrest was the result of a conspiracy between Defendant G. Gutierrez, an Illinois State Police officer, Defendant K. Iwanski, a Skokie police officer, and Ninous's family. Specifically, he asserts that the officers arrested him for possession of gamma-butyrolactone (“GBL”) despite knowing that did not in fact possess GBL. Pogodzinski has sued Gutierrez and Iwanski under 42 U.S.C. § 1983 for alleged violations of his rights under the Fourth and Fourteenth Amendments to the United States Constitution. Now, Gutierrez and Iwanski seek summary judgment in their favors on all claims. (Dkt. Nos. 122, 124.) For the reasons stated below, the Court grants their motions.

BACKGROUND

The following facts are undisputed unless otherwise noted.

At the time the events underlying this action occurred, Pogodzinski resided in Wyoming, Michigan. (Pl.'s Resp. to Defs.' Local Rule 56.1 Joint Statement of Facts (“PRDJSF”) ¶ 1, Dkt.

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No. 135.) But he would travel from Michigan to Illinois every two months to visit his best friend, Ninous Zomaia, staying for a week or two at a time. (Id. ¶ 5.) Ninous was married to Nathalie Tachaba. (Id. ¶ 6.).

All parties agree that Ninous would consume “Liquid G, ” which is the street-name for either gamma hydroxybutyric acid (“GHB”) or one of its analogues, gamma butyrolactone (“GBL”). (PRDJSF ¶ 8; Defs' Joint Statement of Material Facts (“DJSMF”), ¶¶ 16-17, Dkt. No. 126.) Both Pogodzinski and Tachaba, as well as Ninous's brothers Zaia and Bilous Zomaia, grew increasingly concerned about Ninous's consumption of Liquid G, especially after he was hospitalized at least twice after using Liquid G, and his cousin, Rami Zomaia, passed away from a drug overdose. (PRDJSF ¶¶ 8-10.) According to Pogodzinski, Ninous's family was convinced that he was responsible for Rami's death and sought to keep Ninous separated from him. (Id. ¶¶ 9-10.) Pogodzinski also claims that Zaia sought to leverage his friendship with Defendant Iwanski, a Skokie police officer, to accomplish that end. (Id. ¶¶ 25, 73.)^[1] Iwanski disputes this, however, and testified that he has never met or spoken with Zaia. (Defs.' Joint Resp. to Pl.'s Statement of Add. Facts (“DJRPSAF”), ¶ 73, Dkt. No. 145; DJSMF, Ex. 9, Iwanski Dep. Tr. 60:8-14.)

All parties agree, however, that several weeks before Pogodzinski was arrested, Zaia, Bilous, and Tachaba met with police. (PRDJSF ¶ 10.) The officers did not introduce themselves, although Defendant Gutierrez, a sergeant with the Illinois State Police and member of the Illinois State Police Narcotics and Currency Interdiction Task Force (“NARCINT”), was present. (Id. ¶¶ 10-11.) At the meeting, Zaia, Bilous, and Tachaba relayed their concerns about Ninous's drug

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use, and Tachaba informed police that Pogodzinski supplying Ninous with Liquid G. (Id. ¶ 10, 15.)

On April 8, 2014, Pogodzinski came to visit Ninous and Tachaba at their apartment in Skokie. (Id. ¶ 6.) Pogodzinski brought with him jugs of 1, 4 Butanediol (“BD”), an industrial chemical that is also an analogue of GHB, which he claims was intended to be used in a polyaspartic flooring job on which he had recently begun to work. (PRDJSF ¶¶ 7, 17; DJSMF ¶ 17.) On April 10, 2014, Ninous and Pogodzinski argued after Ninous attempted to access an unsealed jug of BD while under the influence and, in response, Pogodzinski dumped the contents into a toilet. (PRDJSF ¶ 21.) Tachaba joined the argument, which became physical, and she ultimately left the apartment to stay with Ninous's parents and brother. (Id. ¶¶ 22- 23.) The next day, on April 11, 2014, police officers picked up Tachaba at her work and took her to the courthouse in Skokie to file a domestic violence report. (Id. ¶¶ 25, 74.) Tachaba recognized one of the officers as a participant in the meeting a few weeks earlier. (Id.)

That same day, Gutierrez prepared an application for a search warrant based on Tachaba's statements. (Id. ¶ 29.) Although Pogodzinski disputes whether Tachaba provided certain details that were included in the affidavit, such as the price at which he allegedly sold Liquid G, he does not dispute the substance of the affidavit; namely, that Tachaba communicated to Gutierrez that she believed Pogodzinski, who was currently staying with her, was selling Liquid G.^[2] (PRDJSF ¶¶ 26-28; DJSMF ¶¶ 26-28.) Specifically, Pogodzinski provides no evidence to dispute that Tachaba told Gutierrez that Pogodzinski was presently at her apartment with a gallon of Liquid G, that she had observed Pogodzinski pouring out Liquid G that Ninous would then sell, or that she

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had seen Pogodzinski with large quantities of cash.^[3] (PRDJSF ¶ 28.) The warrant application did not mention that Gutierrez had previously met with Tachaba. (DJRPSAF ¶ 79.) Finally, Gutierrez brought Tachaba in front of a judge to support the application for a search warrant. (DJSMF ¶ 29; PRDJSF ¶ 29.) Tachaba testified that Pogodzinski was selling Liquid G and providing it to Ninous. (DJSMF ¶ 29; PRDJSF ¶ 29.) The judge granted the search warrant. (PRDJSF ¶ 30.)

While compiling the search warrant, Gutierrez telephoned Inspector Anthony Anderson, a Morton Grove police officer assigned full-time to NARCINT. (Id. ¶¶ 13, 31.) Anderson had substantial training in narcotics interdiction and the identification of so-called “designer” drugs. (Id. ¶ 14.) After Gutierrez requested that Anderson telephone a member of the Skokie Police Department to inform them that a search warrant would be executed within the jurisdiction of Skokie, Anderson phoned Iwanski.^[4] (Id. ¶¶ 32-33.)

On April 11, 2014, approximately eight officers, including Anderson, executed the search warrant. (Id. ¶ 34.) Pogodzinski was handcuffed during the search, although he does not know by whom, and he only saw Gutierrez and Iwanski inside the apartment roughly fifteen minutes after the first officers arrived and began to search the apartment. (Id. ¶¶ 36-37.) According to Pogodzinski, Iwanski mostly just stood around, although he eventually searched the kitchen. (Id.

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¶ 38.) Similarly, Pogodzinski did not observe Gutierrez conducting a search but noted that he stood around “in a supervising way.” (Id. ¶ 38.)

Shortly after Iwanski and Gutierrez arrived, an unknown officer carried a plastic milk jug containing a clear substance, along with several other small plastic and glass bottles, into the living room. (Id. ¶ 39.) Pogodzinski told officers that the jug contained BD, which he used for a flooring job. (Id. ¶¶ 39-40.) But when asked by an officer why the substance had been transferred to plastic bottles, rather than kept in industrial containers, Pogodzinski did not have a response. (DJSMF ¶ 40; PRDJSF ¶ 40.) Anderson performed a shake test on the contents of the jug to determine whether the substance had a thicker viscosity than water. (PRDJSF ¶¶ 42-44.) After conducting the test, Anderson formed an opinion that the substance was GHB, GBL, or BD. (DJSMF ¶ 46; PRDJSF ¶ 46.) Gutierrez and Anderson then questioned Pogodzinski about the substance that had been emptied out of another gallon jug. (PRDJSF ¶ 47.)

Pogodzinski was subsequently arrested for possession of GHB or GBL. (DJSMF ¶ 48; PRDJSF¶ 48.) Iwanski is listed as the arresting officer on the police reports, although he disputes that he was involved in the arrests. (PRDJSF ¶¶ 48-49; DJSMF ¶ 48-49.) Iwanski also prepared a brief report detailing the execution of the search warrant, recording that “approximately 3, 896 grams of liquid GBL (Gamma-Butyrolactone) were recovered from inside the apartment.” (PRDJSF ¶ 51; DJSMF, Ex. 14, Skokie Police Rep. No. 14-03162.)

After transporting Pogodzinski to the Skokie Police Department and interviewing him further, the NARCINT team decided to charge Pogodzinski with unlawful possession of GBL. (DJSMF ¶¶ 52- 55, 58; PRDJSF ¶¶ 52-55, 58.) Gutierrez signed the criminal complaint charging

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Pogodzinski with unlawful possession of GBL.^[5] (DJSMF ¶ 61; PRDJSF ¶ 61.) Later, when asked what he believed the seized substance was, Gutierrez testified that he “didn't think it was [BD] at the time, ” but rather he “thought it was GHB . . . GBL, one of those two.” (DJRPSAF ¶ 84; DJSMF, Ex. 7, Gutierrez Dep. Tr. 73:23-74:12.)

On April 13, 2014, a judge determined there was probable cause for Pogodzinski's arrest and set bail. (PRDJSF ¶ 65.) Pogodzinski posted bond on May 12, 2014. (Id. ¶ 66.) Testing of the substances found in the jugs and bottles conducted by the Illinois State Police Forensic Laboratory later confirmed that the substance was BD. (Id. ¶ 67.) The State subsequently dismissed the charges against Pogodzinski, although the record is silent as to the reason. (DJSMF ¶ 68; PRDJSF ¶ 68.) Defendants suggest the dismissal was the result of the exercise of prosecutorial discretion, as while Pogodzinski could have still been prosecuted for possession of BD as a controlled substance analogue, proving the case would require the use of an expert witness. (DJSMF ¶ 68); 720 ILCS 570/401. Pogodiznski disputes this explanation as an unfounded assumption. (PRDJSF ¶ 68.)

DISCUSSION

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). And “[t]he moving party is ‘entitled to a judgment as a matter of law' [where] the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with...