The opinion of the court was delivered by: JAMES H. ALESIA
Before the court are plaintiff Michael Hill's ("Hill") objections to Magistrate Judge Bucklo's Report and recommendation ("Report") regarding defendant Dennis Barbour's ("Barbour") motion for summary judgment and defendant Michael Sheahan's
("Sheahan") motion to dismiss. Hill brought this action under 42 U.S.C. § 1983 ("§ 1983") against Barbour, a Cook County Deputy Sheriff, and Sheahan, Sheriff of Cook County. Hill's complaint alleges a deprivation of Hill's civil rights under color of state law as a result of Barbour's use of excessive force on February 21, 1989 ("Count One"). Hill's complaint also alleges that this conduct was a result of Sheahan's policy which allowed deputy sheriffs to remain armed while off duty, as well as improper training by Sheahan in the use of deadly force, and inadequate supervision by Sheahan of his deputies ("Count Two"). In addition, Hill's complaint alleges a pendent state law battery claim ("Count Three").
Sheahan moved to dismiss Hill's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and Barbour moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. The court referred the motions to Magistrate Judge Bucklo who recommended that both motions be granted and that, in the absence of any remaining federal claim, the state-law claim be dismissed. Hill has made three objections to the Magistrate Judge's recommendation that Barbour's motion for summary judgment be granted. Hill has not objected to the Magistrate Judge's recommendation that Sheahan's motion to dismiss be granted. For the reasons set forth below the court adopts in full the Magistrate Judge's Report. Accordingly, Barbour's motion for summary judgment and Sheahan's motion to dismiss are granted.
Pursuant to Federal Rule Civil Procedure 72, this court must conduct a de novo review of the portions of the Magistrate Judge's Report to which there are objections. A party is entitled to summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact. FED. R. CIV. P. 56(c). The court must draw all inferences in favor of the nonmoving party. The moving party bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. New Burnham Prairie Homes, Inc. v. Burnham, 910 F.2d 1474, 1477 (7th Cir. 1990). If the moving party meets this burden, the nonmoving party must show the existence of specific facts which provide a basis for a jury to return a verdict in his favor. New Burnham Prairie Homes, 910 F.2d at 1447. If not, summary judgment in favor of the moving party is appropriate.
Hill's initial objection relates to a procedural aspect of this case. Hill states that Barbour may not move for summary judgment because Barbour's attorney has not filed an appearance in this case. Hill contends that a default judgment was entered against Barbour and unless the judgment is properly vacated and an appearance filed on behalf of the defendant the court can not properly consider Barbour's motion for summary judgment.
Hill's objection can be dealt with quickly. On May 14, 1991, the court granted Hill's motion for an entry of default
as to Barbour. On June 13, 1991, sua sponte, the court vacated the ofder of default against Barbour. There was no need for Barbour's attorney to refile his appearance on behalf of Barbour, as the court's vacating of the entry of default removed any disability on Barbour to proceed in the case. Accordingly, the court overrules Hill's objection regarding the propriety of the court's consideration of Barbour's motion for summary judgment.
Hill's other two objections to the Magistrate Judge's Report address the issue of whether Barbour acted under color of law. In both objections, Hill states that the Magistrate Judge erroneously concluded that under no circumstances could a trier of fact find that Barbour acted under color of state law. Hill contends that it is sufficient that Barbour identified himself as "Sheriff's Office" to conclude that Barbour acted under color of law. Hill compares Barbour's actions to that an off-duty police officer who claims to exercise official authority by displaying a badge, carrying a service revolver, or identifying himself as a law enforcement official.
Section 1983 affords a plaintiff the right to bring a civil action for the deprivation of constitutional rights under color of law. A defendant in a § 1983 suit acts under color of law when he abuses the position given to him by the State. West v. Atkins, 487 U.S. 42, 50, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988). As a general rule, a government employee who acts in his official capacity or exercises his responsibilities pursuant to state law acts under color of state law. West, 487 U.S. at 50. A police officer's acts are not under color of law unless they are related to the performance of police duties. Gibson v. Chicago, 910 F.2d 1510, 1516-19 (7th Cir. 1990). Therefore, a defendant's status as an officer does not transform all of his actions into acts under color of law. Gibson, 910 F.2d at 1516. Similarly, whether a defendant was on or off duty does not resolve the question of whether he acted under color of law. Gibson, 910 F.2d at 1517. The essential inquiry is whether the defendant's actions related in some way to the performance of a police duty. Gibson, 910 F.2d at 1517.
Applying the principle set forth in Gibson, the Magistrate Judge found no evidence that Barbour was performing a police duty when he shot Hill. Report, at 5-7. Barbour was responding to his wife's concern about noise on their property on the night when he encountered Hill running from the garage. Barbour wore his pajamas not his uniform. Barbour's rifle was personal property; he was not carrying his service revolver. The Magistrate Judge reasoned that Barbour's actions did not relate in any way to his ...