United States District Court, Northern District of Illinois, E. D
October 6, 1981
FREDERICK L. EBERLE AND NORMA EBERLE, PLAINTIFFS,
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
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
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
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 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 § 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 with probable cause and whether
that belief was reasonable.
Alan Baumfalk's deposition states he told the arresting
(1) Frederick Eberle made obscene gestures at
him and shouted obscenities.
(2) Frederick Eberle took off his coat and
threatened to harm Alan Baumfalk physically.
That evidence alone provided the arresting officers with a
reasonable good faith belief that Frederick Eberle had
committed an assault — and an assault is of course probable
cause for an arrest.
Eberles have failed to submit any evidence countering (or
even supporting an adverse inference as to) that showing of
what information the officers acted upon. Fed.R.Civ.P. ("Rule")
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations or
denials of his pleading, but his response, by
affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there
is a genuine issue for trial. If he does not so
respond, summary judgment, if appropriate, shall
be entered against him.
Accordingly summary judgment is appropriate in favor of Stukey
and Henderson as to Count III.
Count IV simply alleges that Stukey and Henderson actually
arrested Frederick Eberle pursuant to the scheme charged in
Count III. Summary judgment is therefore appropriate for
Count V charges that Norma Eberle has suffered great harm
from (1) harassment by Baumfalks and (2) the unlawful arrest
of her husband. Stukey and Henderson are implicated only in
the second allegation.
Because they had probable cause to arrest Frederick Eberle,
any harm Norma Eberle suffered was not the result of an
unlawful act on their part. Stukey and Henderson thus are also
entitled to summary judgment on Count V.
Count VII states that Stukey and Henderson participated in
a scheme to prevent Eberles from obtaining the statement of
Sherry Hobbs. Both police defendants have unequivocally denied
that allegation by affidavit. Again Eberles have failed to
adduce any evidence in support of their allegations. Moreover,
Frederick Eberle has stated in an affidavit in a related state
court action that:
(1) He was aware of the Hobbs statement.
(2) He asked his attorney to obtain that
statement on several occasions.
(3) He was denied effective assistance of counsel
in that related state court action because,
among other reasons, his attorney failed to
secure the Hobbs statement.
There is no factual showing whatever that Stukey and Henderson
individually or by conspiracy concealed evidence. They are
therefore entitled to summary judgment as to Count VII.
Count VI alleges that Frederick Eberle was physically harmed
en route to jail when Stukey negligently "stopped the squad car
so suddenly that as a direct and proximate result, plaintiff
suffered injuries to his left shoulder and right thumb."
Defendants have not explicitly sought dismissal of Count VI.
But that Count raises a difficult legal question that should be
addressed: whether the negligent infliction of bodily injury
states a cause of action under Section 1983.*fn2
Last term the Supreme Court addressed the question whether
the loss of property caused by the negligence of state
officials stated a cause of action under Section 1983. In
Parratt v. Taylor, ___ U.S. ___, 101 S.Ct. 1908, 68 L.Ed.2d 420
(1981) the Court held that (1) a negligent act could constitute
a deprivation of property for Fourteenth Amendment purposes but
(2) a post-deprivation hearing in state court provided a
sufficient remedy. Thus due process has been accorded if
property was lost through state-imputed negligence but the
state provided a post-deprivation remedy.
By its literal terms Parratt appears to apply with equal
force to a Section 1983 claim for negligent infliction of
bodily injury (101 S.Ct. at 1913):
Accordingly, in any § 1983 action the initial
inquiry must focus on whether the two essential
elements to a § 1983 action are present: (1)
whether the conduct complained of was committed by
a person acting under color of state law; and (2)
whether this conduct deprived a person of rights,
privileges, or immunities secured by the
Constitution or laws of the United States.
This opinion will therefore first pursue the analysis in those
No issue exists as to the first part of the Parratt test if
applied here: Stukey was unquestionably acting under color of
state law. As for the second, Parratt held that a negligent act
can be a deprivation of a property interest, the only due
process question being whether a post-deprivation hearing was
enough. Because a bodily injury implicates a liberty interest
under the Fourteenth Amendment's Due Process Clause, Collum v.
Butler, 421 F.2d 1257, 1259 (7th Cir. 1970), by parity of
reasoning a negligent act may presumably be a deprivation of
that liberty interest. There appears to be no principled
distinction under Parratt
between negligent interference with a property as contrasted
with a liberty interest.*fn3
On that assumption it must next be determined whether, as
with the loss of property, a hearing after a negligent
deprivation of a liberty interest can satisfy the requirements
of the Due Process Clause. On that score, it is relevant that
Parratt (101 S.Ct. at 1916) adopted the analysis of Justice
(then Judge) Stevens in Bonner v. Coughlin, 517 F.2d 1311, 1319
(7th Cir. 1975), modified en banc, 545 F.2d 565 (1976), cert.
denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978):
It seems to us that there is an important
difference between a challenge to an established
state procedure as lacking in due process and a
property damage claim arising out of the
misconduct of state officers.
As in Parratt and Bonner, Frederick Eberle was allegedly
subjected to the negligence of one police officer, not a state
policy or intentional act. Cf. this Court's opinion in
Magayanes v. Terrance, No. 80 C 1299 (N.D. Ill. Aug. 12, 1981)
(plaintiff injured because police vehicle in which he was
transported was entirely metal on the inside). Based on that
reasoning a post-deprivation hearing would arguably be both
necessary and sufficient to accord due process to Frederick
Another portion of the Parratt opinion also indicates
inferentially that situations involving bodily harm are
susceptible to the same treatment. Justice Rehnquist stated
(101 U.S. at 1916) that the Court's majority was applying an
analysis consistent with Ingraham v. Wright, 430 U.S. 651, 682,
97 S.Ct. 1401, 1418, 51 L.Ed.2d 711 (1977). a case involving
corporal punishment in schools. Ingraham pointed to "the
common-law safeguards that already exist" as a basis for
finding no due process violation despite that deprivation of
If Parratt were thus extended to Stukey's alleged negligence
causing Frederick Eberle's bodily injuries, the final question
would be whether Illinois law permits a negligence action for
those injuries. Stukey is a deputy sheriff employed by the
DuPage County Sheriff. Stukey's liability is therefore
controlled by the Illinois Local Governmental and Governmental
Employees Tort Immunity Act (the "Act"), Ill.Rev. Stat. ch. 85,
§§ 1-101 ff. Section 2-202 of the Act provides:
A public employee is not liable for his act or
omission in the execution of any law unless such
act or omission constitutes wilful or wanton
Because plaintiffs' Complaint alleges only a
negligent act committed in the course of Stukey's employment,
Stukey is immune from suit under Illinois law. Accordingly
Illinois law does not provide a post-deprivation remedy such as
the Supreme Court found in Parratt. If Parratt's requirements
applied with full vigor, Count VI would have to be preserved
under Section 1983 — though non-maintainable under state law.
That logic has to be flawed. It would make of Section 1983
a Procrustean bed to whose dimensions state tort law would
have to be stretched or cut. See the pre-Parratt case, Onley v.
Simms, 476 F. Supp. 974 (E.D. Pa. 1979). No state could make the
kind of policy judgment reflected in the Act. This Court can do
no better than to quote the last substantive paragraph of
Justice Rehnquist's opinion in Parratt (101 S.Ct. at 1917):
To accept respondent's argument that the conduct
of the state officials in this case constituted a
violation of the Fourteenth Amendment would
almost necessarily result in turning every
alleged injury which
may have been inflicted by a state official
acting under "color of law" into a violation of
the Fourteenth Amendment cognizable under § 1983.
It is hard to perceive any logical stopping place
to such a line of reasoning. Presumably, under this
rationale any party who is involved in nothing more
than an automobile accident with a state official
could allege a constitutional violation under §
1983. Such reasoning "would make the Fourteenth
Amendment a font of tort law to be superimposed
upon whatever systems may already be administered
by the states." Paul v. Davis, 424 U.S. 693, 701
[96 S.Ct. 1155, 1160, 47 L.Ed.2d 405]. We do not
think that the drafters of the Fourteenth Amendment
intended the amendment to play such a role in our
For that reason this Court does not accept the literal
extension of Parratt exemplified by the foregoing analysis.
Unless and until controlling case law were to develop by
mandating that result, this Court would have to find that the
Parratt Court did not intend — because it did not consider —
such consequences in the garden variety personal injury case.
Section 2-202 of the Act will therefore be applied in
accordance with its terms. Count VI is dismissed under
Illinois law because it makes no claim that Stukey was guilty
of "willful or wanton negligence."*fn5
There is no genuine issue as to any material fact respecting
any of Counts III, IV, V and VII, and defendants Stukey and
Henderson are entitled to a judgment as a matter of law. Their
motion for summary judgment on those Counts is granted. Count
VI is dismissed under Section 2-202 of the Act. Because Counts
I and II and the remaining claims under Counts III, IV, V and
VII have been in this Court only under pendent jurisdiction,
and they are no longer sustained by federal claims, this
action is dismissed in its entirety (without prejudice of
course to the reassertion of those Counts and claims in a
court of competent jurisdiction).*fn6