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MOORE v. MARTIN

May 22, 1991

KATHLEEN MOORE and JAMES SERIO, Plaintiffs,
v.
LeROY MARTIN, Superintendent of Police, CHICAGO POLICE DEPARTMENT, THE POLICE BOARD OF THE CITY OF CHICAGO and CITY OF CHICAGO, A Municipal Corporation, Defendants


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE

 Defendants LeRoy Martin and the City of Chicago have moved for summary judgment on all claims in the amended verified complaint of plaintiffs Kathleen Moore and James Serio. For the reasons stated below, defendants' motion must be granted in part and denied in part.

 I. BACKGROUND FACTS

 The parties do not dispute the following facts. Plaintiffs Kathleen Moore and James Serio were City of Chicago police officers assigned to beat patrol in the City's 9th District. For a brief period of time, both officers were suspended as police officers.

 Both plaintiffs were suspended for allegedly taking two black youths into their custody on August 14, 1989 and verbally and physically abusing them. The plaintiffs then allegedly released the youths at 35th and Union Streets in Chicago, where the youths were then physically abused by a gang of white youths.

 During the evening of August 16, 1989, plaintiffs were each brought into an office in the 9th District station where they were presented with Notifications of Charges/Allegations. Plaintiffs understood the Notifications, had no questions, and signed the notifications.

 Plaintiffs were also presented with "Waiver of Counsel/Request to Secure Counsel" forms. Plaintiffs marked the forms stating that they requested to secure counsel. Plaintiffs also wrote on the forms that because they chose to seek counsel, they agreed to proceed with "hearing, examination or interrogation" at a time and date "to be notified." Plaintiffs then signed the forms.

 Plaintiffs were not, however, called in for interrogations prior to their suspensions. Instead, on September 25, 1989, defendant Superintendent of Police LeRoy Martin ordered both officers to be suspended for thirty days pending the filing of formal charges with the Chicago Police Board. The suspensions were effective September 26, 1989.

 On October 3, 1989 plaintiffs filed their original verified complaint for injunction, declaratory judgment and other relief. Prior to hearing plaintiff's companion emergency motion for temporary restraining order, however, the parties reached an agreement -- an agreement set forth in an Agreed Order entered by Judge Hart on October 4, 1989.

 Under the terms of the Agreed Order, defendants agreed to reinstate plaintiffs with full back pay and benefits retroactive to September 26, 1989 -- the date of plaintiffs' suspensions. In the same order, plaintiffs agreed to "appear no later than October 10, 1989, with counsel, at the offices of the Chicago Police Department for the purpose of responding to those allegations referred to within their instant Complaint and Motion." (Agreed Order, para. 3.)

 On October 4, 1989, Superintendent Martin rescinded plaintiffs' suspensions. Plaintiffs were reimbursed for the portion of their salaries that had been withheld pursuant to their suspension orders -- a period lasting from September 26 to October 4, 1989. Between August 16, 1989 and September 25, 1989 and again upon their return to duty on October 5, 1989 through October 15, 1989, plaintiffs were given desk assignments.

 On October 10, 1989 plaintiffs appeared with their attorney at the offices of the Chicago Police Department for their interrogations. At that time plaintiffs again were provided with Notifications of Charges/Allegations. Both officers understood the Notifications, had no questions, and signed the Notifications. Plaintiffs then were advised of their constitutional rights to remain silent. Plaintiffs understood those rights, had no questions, and acknowledged those rights with their signatures. Both plaintiffs then gave a statement asserting their rights to remain silent while a criminal investigation into their conduct was in progress.

 On October 13, 1989 Superintendent Martin again suspended plaintiffs for thirty days pending the filing of charges against them with the Chicago Police Board. Plaintiffs' charges currently are pending before the Police Board, where plaintiffs are scheduled to receive a full evidentiary hearing on the allegations against them. Plaintiffs currently are working part time for a security firm.

 On March 29, 1990 plaintiffs filed a three-count amended verified complaint for injunction, declaratory judgment and other relief. In their amended complaint plaintiffs challenge only their initial, September 26, 1989 suspensions.

 Plaintiffs base their amended complaint on 42 U.S.C. Section 1983. Count I alleges that Superintendent Martin's September 26, 1989 suspension of plaintiffs deprived them of property without due process of law. In Count II plaintiffs aver that by placing "adverse employment information" in plaintiffs' employment files, defendants have deprived plaintiffs of liberty without due process. (Amended Verified Complaint, para. 28.) And Count III alleges that defendants deprived plaintiffs of property interests by not assigning them to "less sensitive" jobs in lieu of suspension.

 II. DISCUSSION

 Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment the evidence of plaintiffs, the nonmovants here, must be believed, and all justifiable inferences must be drawn in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).

 However, when confronted with a motion for summary judgment, a party who bears the burden of proof on a particular issue may not rest on its pleading, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue ...


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