Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 C 5409, Joel M. Flaum, Judge.
Wood, Circuit Judge, Pell, Senior Circuit Judge, and Grant, Senior Circuit Judge.*fn*
GRANT, Senior District Judge.
Appellant, Albert B. Friedman, appeals from the district court's opinion granting defendants' Motion to dismiss Counts II, III, IV and part of Count I of his complaint and granting summary judgment to the defendants on the part of Count I that was not dismissed. For the reasons set forth below, we AFFIRM the district court's judgment.
This court has exercised its discretion to recall its earlier dismissal of this appeal "with prejudice" in order to prevent injustice. American Iron & Steel Inst. v. E.P.A., 560 F.2d 589 (3d Cir. 1977).
On September 13, 1981, Friedman, a practicing trial attorney took his son and daughter to the Skatium in Skokie, Illinois. The Skatium is a public ice-skating facility operated by the Skokie Park District. While Friedman's daughter skated, Friedman and his son played a coin operated video game, "Pac Man," in the Skatiums's game room. Friedman put two quarters in the Pac Man game. When the game failed to work, Friedman pressed the coin return button. Friedman realized that both the coin return button and return slot had been welded closed. Friedman began kicking and shaking the Pac Man game.
Friedman made so much noise that a young patron summoned the Skatium's manager, Appellee Michael Carter. The noise also attracted the attention of 20 to 30 people who looked on from the Skatium's lobby.
Friedman told the manager that he had lost 50 cents in the machine and asked for a refund. The manager pointed to a sign on the wall that read: "Absolutely no refunds. Play at your own risk." Friedman told the manager that if he didn't get a refund he would continue to kick the machine. The manager threatened to call the police. Friedman continued to kick and tilt the machine, and the manager called the Skokie Police Department.
Appellants, Skokie Police Officers Gall and Solicki, arrived and spoke to the manager. Gall and Solicki told Friedman to leave the Skatium. When Friedman refused, the officers arrested him, handcuffed him and put him in a squad car. The officers later charged Friedman with disorderly conduct. The police kept Friedman in custody for one and one-half hours.
On January 14, 1982, Friedman was tried on the criminal charges in the Circuit Court of Cook County, Municipal Division, Second Circuit. Judge Alan Lane granted a motion for a directed verdict for Friedman at the close of the state's case.
Friedman filed a four-count complaint in the United States District Court for the Northern District of Illinois, alleging violation of his civil rights and false arrest and prosecution, which he subsequently amended. The court dismissed the Amended Complaint for failure to state a claim. Friedman then filed a Second Amended Complaint. The four counts of the Second Amended Complaint alleged:
Count I: That officers Gall and Solicki unlawfully arrested Friedman without probable cause, denied him liberty without due process, abridged his freedom of speech, and subjected him to cruel and unusual punishment, all in violation of the first, fourth, fifth eighth and fourteenth ...