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February 1, 1982


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


Plaintiff Donnell McCowen instituted this civil action pursuant to 42 U.S.C. § 1983 (1976). He alleges that he promised sometime in 1978 to repair and restore defendant Homean Baxter's "junk condition" 1966 Porsche automobile. In return, Baxter agreed to assign McCowen a 1961 Mercedes-Benz 190 SL automobile, also in "junk condition." During the next year or so McCowen worked on both cars. However, for reasons presently unclear, the parties at some point lapsed into serious dispute. On January 28, 1980, Baxter decided to resolve the matter by forcibly retaking the Mercedes from its parking space in front of the home of plaintiff's brother in Evanston, Illinois. He hired a private towing service to assist him; the car at that time was still inoperable.

Plaintiff's federal claim derives from the fact that Baxter also enlisted the aid of the Evanston police department in effectuating his plan. It is alleged that Baxter registered a complaint and was accompanied by Officer Richard Witney when he approached the parked Mercedes. Soon thereafter, plaintiff also came upon the scene. According to Witney's affidavit, both men began to argue in a violent manner. Witney ordered them to stand apart, and radioed his supervisor, Sergeant Charles Heuer, for assistance. When Heuer arrived, Baxter produced a notarized Ohio title to the car bearing his name.*fn1 McCowen was told to go home and obtain whatever proof of ownership he might have. When he returned empty-handed, the police officers determined that Baxter's claim was superior and that he would be allowed to remove the vehicle. Officer Witney then left to answer another call while Officer Heuer stayed behind and made sure that plaintiff did not obstruct defendant's attempt to tow the Mercedes.*fn2

Plaintiff claims that it was constitutionally improper for Officers Witney and Heuer to have assumed the role of "judge and jury"; by doing so they deprived plaintiff of his property without due process of law and thereby became liable for damages. Plaintiff asks in Count one for $25,000, the alleged fair market value of the Mercedes at the time of the January 28 incident. He asks also for $100,000 in punitive damages. The relief is sought from Witney, Heuer and their employer, the City of Evanston.

Counts two and three are state law claims over which pendent jurisdiction is claimed. They are asserted against Baxter and another private individual, Carol Dixon.*fn3

Count four seeks damages from the City of Evanston alone. As plaintiff has since voluntarily dismissed this claim, no more will be said concerning it.

Currently before the Court is a motion to dismiss, or in the alternative to grant summary judgment against, the claims listed in Count one. In that the parties have submitted matters outside of the pleadings the motion shall be treated as one for summary judgment. Fed.R.Civ.P. 12(b). So treated, the motion is granted insofar as it attempts to hold the City of Evanston liable for the incidents described in the complaint; it is denied insofar as it seeks dismissal of the claims against Officers Witney and Heuer.

I. Liability of the City of Evanston

Plaintiff lists no specific allegations against Evanston in Count one. His theory must therefore be that the City can be held liable solely because it is the employer of the allegedly culpable officers. This is incorrect. Municipal liability under § 1983 must be based upon more than respondeat superior. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The City's motion for summary judgment is accordingly granted.

II. Liability of Officers Witney and Heuer

For plaintiff to prevail on his due process allegation, he must establish four propositions: (1) that at the time of the January 28 incident, Officers Witney and Heuer acted under color of state law; (2) that plaintiff had a recognizable property interest in the Mercedes; (3) that defendants' acts caused plaintiff to be deprived of his property; and (4) that the above deprivation contravened the fundamental notions of fairness embedded within the concept of due process. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). The present motion can thus be granted in the officers' favor only if it appears certain that plaintiff must fail in his attempt to prove up one or more of the above elements.

It is undisputed that Heuer and Witney acted under color of state law at the time of the relevant incident. Both men responded to the property dispute in their capacity as police officers. They did not happen upon the scene as merely interested citizens.

The exact nature of plaintiff's interest in the Mercedes cannot be precisely determined from the pleadings and exhibits which have been submitted thus far. Plaintiff alleges and asserts that he obtained title to the Mercedes in 1978, at the time the original contract was formed. Defendants respond that any such claim is defective since the underlying oral contract was incapable of performance within a year and thus void under the Statute of Frauds. See, e.g., In re Marriage of Strand, 86 Ill. App.3d 827, 831, 42 Ill.Dec. 37, 39-40, 408 N.E.2d 415, 417-8 (4th Dist. 1980). This contention fails for the simple reason that no facts support a finding of the requisite impossibility. Nevertheless, serious doubts concerning plaintiff's claim are generated by Witney and Heuer's affidavits. Both reveal that only Baxter, and not McCowen, was able to produce any evidence of ownership. All this indicates, however, is that a material question of fact remains to be resolved at trial. It does not mean that plaintiff will inevitably fail in his showings. Defendants' summary judgment motion cannot be granted on this basis.

More subtle questions arise out of the issue of "deprivation." Defendants argue that all they did was prevent a breach of the peace and offer an opinion as to who was right. Any deprivation plaintiff suffered was thus inflicted not by them, but by Baxter and his tower: "Nothing in plaintiff's allegations demonstrates that Heuer's presence changed the outcome or could have changed the outcome of Baxter's summons of a tow truck." Reply Memorandum at 9. Heuer's own affidavit refutes this argument. There he acknowledges that he did more than merely restrain the parties while judging Baxter to be the property owner. He admits that he also affirmatively authorized Baxter's removal efforts and that he supervised the actual towing so as to insure that it proceeded without incident. By so doing, he "enforced" a "judgment" he had rendered. Thus, while it may be true that Baxter might have ...

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