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EBERLE v. BAUMFALK

October 6, 1981

FREDERICK L. EBERLE AND NORMA EBERLE, PLAINTIFFS,
v.
ALAN BAUMFALK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Frederick and Norma Eberle ("Eberles") sue their neighbors Alan and Caren Baumfalk ("Baumfalks"), Baumfalks' attorney Marianne Yacobellis ("Yacobellis") and DuPage County Sheriff's Policemen Thomas Stukey ("Stukey") and James Henderson ("Henderson"). Eberles' Complaint alleges in separate Counts:

  I   Alan Baumfalk verbally assaulted and abused
      Frederick Eberle with malice and intent to
      inflict emotional harm.
  II  Baumfalks and Yacobellis lied to the police
      to secure the false arrest of Frederick
      Eberle.
  III Baumfalks, Stukey and Henderson conspired to
      arrest and detain Frederick Eberle falsely in
      violation of 42 U.S.C. § 1983 ("Section 1983").
  IV  Stukey and Henderson falsely arrested
      Frederick Eberle in violation of Section
      1983.
  V   All defendants' actions have caused Norma
      Eberle great mental and physical distress.
  VI  Frederick Eberle was injured in violation of
      Section 1983 while being transported to jail
      after his arrest.
  VII All defendants conspired in violation of
      Section 1983 to hide the identity and
      testimony of Sherry Hobbs, a witness to the
      events leading up to Frederick Eberle's
      arrest.

Stukey and Henderson have moved for summary judgment on Counts III, IV, V and VII. For the reasons stated in this memorandum opinion and order their motion is granted. On its own motion the Court also addresses the jurisdictional problem posed by Count VI.

Count III

Count III asserts that Stukey and Henderson conspired with Baumfalks and Yacobellis to arrest Frederick Eberle without cause or justification. There is however no evidence to support that claim.*fn1

For purposes of a Section 1983 action claiming false arrest the controlling question was put in Brubaker v. King, 505 F.2d 534, 536 (7th Cir. 1974):

  The test, thus, under ยง 1983 is not whether the
  arrest was constitutional or unconstitutional or
  whether it was made with or without probable cause
  but whether the officer believed in good faith that
  the arrest was made ...

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