The opinion of the court was delivered by: Getzendanner, District Judge.
MEMORANDUM OPINION AND ORDER
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 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.
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 ...