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DOBIECKI v. PALACIOS

July 13, 1993

BRUCE DOBIECKI, Plaintiff,
v.
GERALD PALACIOS, THE FOREST PRESERVE DISTRICT OF COOK COUNTY, ILLINOIS, a municipal corporation, CHICAGO OSTEOPATHIC HOSPITALS AND MEDICAL CENTERS, an Illinois not-for-profit corporation, d/b/a Chicago Osteopathic Hospitals and Medical Centers, INVESTIGATIVE SERVICES BUREAU, an Illinois corporation, STAR INVESTIGATIONS, INC., an Illinois corporation, CLIFF LEMAY and LEONARD SULLIVAN, Defendants.


Hart


The opinion of the court was delivered by: WILLIAM T. HART

Plaintiff Bruce Dobiecki was employed as a pharmacy technician at defendant Chicago Osteopathic Hospitals and Medical Centers ("Chicago Osteopathic"). Plaintiff was discharged, allegedly because he was stealing controlled and non-controlled drugs. Chicago Osteopathic reported the alleged offense to the local police and Dobiecki was indicted. Named as defendants in this case are the following persons and entities. Defendant Gerald Palacios is a Forest Preserve District of Cook County sworn police officer. Palacios is also employed by defendant Star Investigations, Inc. ("Star") and defendant Investigative Services Bureau, Inc. ("ISB"). Chicago Osteopathic contracted with Star and ISB to have Palacios investigate Dobiecki. Defendant Cliff LeMay was the director of Chicago Osteopathic's outpatient pharmacy. Defendant Leonard Sullivan was Chicago Osteopathic's director of safety and security. *fn1"

 Plaintiff contends that defendants falsely accused him of stealing drugs from the pharmacy. He contends that Palacios and LeMay coerced him into confessing to stealing drugs. He also contends that defendants reported the false allegations to local authorities which resulted in his being charged with theft. The charges were subsequently dismissed.

 Count I of the complaint is against Palacios, Chicago Osteopathic, Sullivan, and LeMay. This claim is pursuant to 42 U.S.C. § 1983. It is claimed that Palacios was acting as a police officer and that the other charged defendants acted jointly with Palacios or conspired with him. The complaint refers to Dobiecki being denied "his right to equal protections of the law and due process of law, all in violation of the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States.

 Counts II, III, and IV are state law claims. Counts II III, and IV are designated as being pleaded in the alternative. In those counts, it is alternatively pleaded that Palacios was only working as a private investigator, not as a municipal employee. Count II is a claim for false arrest, Count III is for false imprisonment, and Count IV is for malicious prosecution.

 Presently pending are defendants' various motions to dismiss and for summary judgment. Plaintiff makes no contention that he needs further discovery in order to respond to any of the issues raised on the motions for summary judgment.

 On a motion to dismiss, all the well pleaded allegations of the complaint are assumed to be true and all reasonable inferences from the facts alleged are drawn in favor of plaintiff. Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1039 (7th Cir. 1987). Documents outside the pleadings, including court documents in other cases, may properly be considered if they are documents appropriate for judicial notice. Mandarino v. Pollard, 718 F.2d 845, 849 (7th Cir. 1983), cert. denied, 469 U.S. 830, 83 L. Ed. 2d 59, 105 S. Ct. 116 (1984); Green v. Warden, United States Penitentiary, 699 F.2d 364, 369 (7th Cir.), cert. denied, 461 U.S. 960, 77 L. Ed. 2d 1321, 103 S. Ct. 2436 (1983); Garcia v. City of Chicago, 1991 WL 289204 *1-2 (N.D. Ill. Dec. 23, 1991).

 The standard applicable to the summary judgment motions is different. On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing a lack of any genuine issue of material fact rests on the movants. Id. at 473. The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:

 
The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 ("the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

 First, it should be considered whether plaintiff has any viable federal claim since, if he does not, it is unlikely to be necessary to consider the merits of the state law claims. See 28 U.S.C. § 1367(c)(3).

 Contrary to defendants' argument, plaintiff's complaint need not correctly label his claim or cite the correct statutory support. See Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). Plaintiff has adequately alleged a federal claim for coercing an involuntary confession and making out a criminal complaint that lacked probable cause, see Jones v. City of Chicago, 856 F.2d 985, 992-94 (7th Cir. 1988); Duncan v. Nelson, 466 F.2d 939 (7th Cir.), cert. denied, 409 U.S. 894, 34 L. Ed. 2d 152, 93 S. Ct. 116, 93 S. Ct. 175 (1972), if not other claims as well. Also, plaintiff has adequately alleged state action. Civil rights causes of action do not require a higher, more specific standard of pleading. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993). Except for a limited issue, whether these claims can withstand a motion for summary judgment or a motion for a directed verdict is not now before the court.

 Palacios moves for summary judgment on Count I on the ground that the uncontested facts show that Palacios was not working for the Forest Preserve at the time of the conduct alleged in the complaint. In his affidavit, Palacios concedes that time records indicate that he was on duty at the time of the arrest of plaintiff, but Palacios states that the time records are in error and that he was not actually on duty. On the motion for summary judgment, however, plaintiff's reliance on the authenticated time records creates a factual dispute as to whether Palacios was on duty at the time of the arrest. On defendants' motions for summary judgment, it must be assumed that Palacios was on duty and, therefore, that the state action requirement was satisfied. Also, Palacios's argument that the false arrest claim fails because plaintiff has a remedy in state court is without merit. See Zinermon v. Burch, 494 U.S. 113, 125, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990); Hood v. City of Chicago, 927 F.2d 312, 314 (7th Cir. 1991); O'Brien v. City of Chicago, 1993 WL 116757 *2 (N.D. Ill. April 15, 1993). The Count I federal claim will not be dismissed.

 Defendants argue that the state law claims are preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. *fn2" See generally Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988). Although not alleged in the complaint, in their summary judgment motions, defendants show that it is uncontested that Dobiecki's employment was subject to a collective bargaining agreement and that he grieved his dismissal. Following arbitration of the dispute, the arbitrator found that good cause existed for Dobiecki's dismissal. The arbitrator found that Dobiecki had agreed to resign and that Chicago Osteopathic had agreed to refrain from pursuing criminal charges. The arbitrator further found that Chicago Osteopathic reneged on its promise. The arbitrator considered the pressing of charges to be a form of discipline. The arbitrator still found that good cause existed for Dobiecki's dismissal, but determined that it would have taken longer to dismiss Dobiecki if the broken promises had not been made. The arbitrator did not reinstate Dobiecki, but awarded him lost wages for the additional time ...


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