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MCCRIMMON v. KANE COUNTY

February 20, 1985

JAMES W. MCCRIMMON, ET AL., PLAINTIFFS,
v.
KANE COUNTY, ETC., ET AL., DEFENDANTS.



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

  MEMORANDUM OPINION AND ORDER

James McCrimmon ("McCrimmon") and Terri Gillis ("Gillis") filed this 42 U.S.C. § 1983 ("Section 1983") action against Kane County ("County"), its Sheriff George Kramer ("Kramer"), Deputy Sheriff Kenneth Ramsey ("Ramsey") and other Deputies ("Deputies"), County's State's Attorney's Office ("Office"), State's Attorney Robert Morrow ("Morrow") and Assistant State's Attorneys Gary Johnson ("Johnson") and John Barsanti ("Barsanti"). Plaintiffs seek compensatory and punitive damages for alleged violations of their Fourth and Fourteenth Amendment rights in connection with a search of premises in Aurora Township and the later filing of various state charges against plaintiffs. Defendants now move under Fed.R.Civ.P. ("Rule") 12(b)(6) to dismiss the Complaint in its entirety for failure to state a claim on which relief can be granted. For the reasons stated in this memorandum opinion and order, that motion is granted in part and denied in part.

Facts*fn1

At 2:45 a.m. November 7, 1981 Ramsey and unidentified Deputies executed a warrant (the "Warrant," Pl. Mem. Ex.) for the search of a house owned by plaintiffs at 151 Edgewood in Aurora Township. Because issuing Judge John Krause had found probable cause to suspect gambling and the keeping of a gambling place on the premises, the Warrant authorized a search of the entire house and of any persons found there. In addition the officers were authorized to seize:

  Gambling devices, paraphernalia used in the act
  of gambling, cash monies, liquor to be sold at
  retail, documentation reference liquor sales,
  documentation reference gambling activities and
  proceeds, indicia of residency.

As the return on the Warrant reflected, the officers did seize a felt-covered table, dice and a dice cup, a juke box and other items contemplated by the Warrant's terms. But the return did not reflect the seizure of (1) $1,000 cash in a sealed envelope and a pair of diamonds (both items found in a drawer in Gillis' bedroom) or (2) a 1973 Kawasaki motorcycle discovered when the officers extended their search from the house to an unattached garage. Moreover the officers damaged the garage in the process of gaining entry. Various items of food and beverage were destroyed during the search of the house. In conjunction with their execution of the Warrant the officers arrested 63 persons, including plaintiffs, on gambling charges.

Each plaintiff was charged with (1) distribution of alcoholic liquor without a license, (2) keeping a gambling place and (3) maintaining a public nuisance. In addition McCrimmon was charged with unlawful possession of a motor vehicle. Plaintiffs — then defendants — moved in Kane County Circuit Court for a dismissal of all charges against them. That motion was granted and the property seized pursuant to the Warrant returned to plaintiffs (excluding presumably such contraband items as containers of suspected marijuana and cocaine). But the $1,000 cash, diamond earrings and motorcycle were not returned.

Nearly one year to the day after they filed their original complaint in this action, plaintiffs filed a four-count First Amended Complaint (the "Complaint"), which is the focus of the present motion. Count I charges County, Kramer, Ramsey and Deputies with violations of plaintiffs' rights under the Fourteenth Amendment's Due Process and Equal Protection Clauses in connection with the execution of the Warrant. Count II charges the same defendants with constitutional violations in the arrest of, and filing of charges against, plaintiffs. Count III claims a conspiracy on the part of the same defendants to prosecute charges against plaintiffs as alleged in Count II. Count IV asserts Fourteenth Amendment violations by Johnson, Barsanti, Morrow and Office in the execution of the Warrant.*fn2

Count I

Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981) states the operative considerations here:

  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.

Defendants do not deny they acted under color of state law in searching plaintiffs' house. Rather they contend plaintiffs have failed to allege any deprivation of their Fourteenth Amendment rights to equal protection and due process.

Defendants are right as to the alleged equal protection violation. As Briscoe v. Kusper, 435 F.2d 1046, 1052 (7th Cir. 1970) teaches:

Of course an individual alleging purposeful discrimination on the part of state officials may constitute a "class" of one for equal protection purposes. But absent allegations of deliberately having been singled out for disparate treatment from others similarly situated, a plaintiff fails to state an equal protection claim. No facts in the Complaint depict McCrimmon and Gillis as victims of such intentional or purposeful discrimination. While improper execution of the Warrant represented erroneous and arbitrary conduct by state officials, there is nothing to indicate that conduct was motivated by purposeful disparate treatment. Contrast Ossler v. Village of Norridge, 557 F. Supp. 219, 223-24 (N.D.Ill. 1983).

Plaintiffs' Count I due process claim requires a bit more analysis. Leaning heavily on Parratt, 451 U.S. at 543-44, 101 S.Ct. at 1916-17, defendants' Count I Mem. 7 argues plaintiffs have alleged no Fourteenth Amendment violation in that respect (emphasis in original):

  In the case at hand, plaintiffs do not allege
  that they were not given a hearing and an
  opportunity to be heard regarding the
  deprivations alleged in their Complaint.
  Nor can plaintiffs assert that they should have
  been given a hearing prior to the execution of the
  search warrant.

But plaintiffs claim more than a violation of their procedural rights. They assert (see Complaint ¶ 2) the execution of the search — in particular its extension to the garage, the seizure of property not contemplated by the Warrant and the destruction of certain property in the course of the search — violated their right to be free from unreasonable searches and seizures.*fn3 That Fourth Amendment guaranty is made applicable to the states through the due process clause ...


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