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FITTANTO v. CHILDREN'S ADVOCACY CTR.

September 22, 1993

JOHN FITTANTO and TERESA FITTANTO, individually and as parents of Sara Fittanto, a minor child, and TERESA FITTANTO, as mother and next friend of Marie Lodge, a minor, Plaintiffs,
v.
CHILDREN'S ADVOCACY CENTER, an Illinois not-for-profit corporation, et al., Defendants.



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

 SUMMARY JUDGMENT STANDARD

 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. Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989); 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). Summary judgment will be denied where there is a genuine issue of material fact such that a reasonable jury could find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Jakubiec, 844 F.2d at 473. The movant need not, however, provide affidavits or deposition testimony. Celotex v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmovant must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Catrett, 477 U.S. at 322. Also, it is not sufficient for the nonmovant 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). If the evidence presented by the nonmovant is merely "colorable," summary judgment is appropriate. Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). 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 nonmoving party will bear the burden of proving at trial, the nonmoving 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 nonmoving 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 nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving 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).

 On Monday, October 16, 1989, Kristina Lopez became upset at school and was taken to the principal's office, where, after various complaints about her next door neighbor, Marie Fittanto, as well as the dog in the Fittanto's house, Kristina said Marie's father was "bad" because he "touched her privates." *fn1" The alleged touching occurred over her clothing and apparently during the preceding weekend. School authorities attempted reporting the matter to the Department of Child and Family Services ("DCFS"), which declined the report. Mrs. Lopez was contacted and referred to the local police.

 The Village of Hanover Park Police Department arranged for an interview to be conducted at the Center. Detective Martinez of the Village police and Sandy Trumpinski, a social worker at the Center, were present during the initial interview. Kristina claimed that John Fittanto had brought her into the bathroom and "touched her privates" over her clothing. Kristina also used anatomically correct dolls to demonstrate how John touched her over her underpants. Kristina alleged that after John touched her, Kristina told her friend Marie, who, responded that John does the same thing to her.

 At the conclusion of this October 16, 1989 interview, the Lopez family was referred by Martinez to Glen Oaks Medical Center for an examination of Kristina. Although medical personnel at Glen Oaks requested permission to conduct an internal examination using the sexual assault kit provided by the State, Mrs. Lopez would allow only a superficial examination. The Glen Oaks examination found no physical evidence of abuse. At this point, Martinez did not believe he had probable cause to arrest anyone.

 On October 19, 1989, Kristina was again interviewed at the Center. Pamela Klein, director of the Center, scheduled the interview. Both Klein and Trumpinski performed the interview with Kristina. The interview was monitored by Martinez, Sgt. Dan Driscoll of the Village police, Assistant State's Attorney Joel Block and Illinois State Police Officer Wayne Fieroh. Klein arranged Fieroh's attendance because Klein had a low opinion of Martinez's abilities. Driscoll did not feel Fieroh's presence was necessary because the case involved only allegations of fondling. In this interview, Kristina again alleged that John had touched her private parts while in the bathroom of the Fittanto home.

 Klein directed the questioning at the October 19 session, steering the child's attention from topic to topic. After the interview, Martinez was skeptical of Kristina's allegations. Kristina did not exhibit any emotion during this interview. At the conclusion of the interview, Block indicated that he could not approve charges. Klein lashed-out in a verbal outburst, calling Block an "asshole." Klein scheduled another interview for October 24.

 On October 24, Kristina again reported that she had been abused by John. She also disclosed, for the first time, that John had forced her to perform oral sex, demonstrating his acts with the dolls. Kristina's allegations on this date, however, seemed to Martinez to be "nonsensical" and some seemed "strange." For example, Kristina also reported that John poked himself with scissors, she spoke of the presence of blood and of other men who videotaped her, dog feces in the bathtub which John wanted to put on her, that the dog urinated on her, that various diagrams were drawn, that she was called a "bitch," that John put a gold knife on her head, that John would marry her when she grew up, that she was forced to drink wine, that John touched her in various places, that John "had his privates in her privates," that John waved a magic wand at her, and that John drew on his wife, Teresa, with blood. At the conclusion of this interview, Martinez did not believe there was sufficient evidence to arrest John Fittanto.

 Kristina was also interviewed again on October 25. This interview was the first interview attended by DCFS officials, but was terminated by the Assistant State's Attorney when Kristina was too tired to pay attention. There is no police report of this interview. In attendance at this interview were Driscoll, Martinez, Assistant State's Attorney Bruce Lester and Al Ragland from DCFS. Assistant State's Attorney Lester was instructed to go to the Center by his supervisor because an interview was being conducted regarding a possible sexual abuse/assault and his services were needed to evaluate the evidence gathered by the police.

 Kristina was brought back to the Center on October 27th and interviewed by Klein. In attendance were Driscoll, Martinez, Lester and Fieroh. Kristina again alleged that John had taken her into the bathroom and "touched her privates" through her clothing and reiterated many of the allegations Martinez had found to be strange and nonsensical during the interview on October 24th. Klein interpreted some of these allegations to have satanic overtones.

 There is a dispute over how and why charges against John Fittanto were ultimately approved. Martinez has testified that he did not recall any conversation with Mt. Sinai on the 27th, but that he was told by Klein and others that Kristina suffered from a sexually transmitted disease. As a result, Martinez so testified before the Grand Jury. Lester, however, testified that he found Kristina's testimony to be "clear and convincing" with respect to the two incidents that were being alleged against John Fittanto. Plaintiffs dispute whether or not Lester actually believed this. Driscoll has testified that Lester "was not impressed" after the October 27 interview. After Lester expressed this to Klein, Klein started a volatile exchange with Lester in efforts to get him to change his mind. Klein insisted felony charges be approved. Fieroh also expressed his view that charges should be approved. Driscoll then took Lester from the room. Driscoll advised Lester that there had been previous credible interviews and that there had been a positive report of a sexually transmitted disease from Mt. Sinai. Following this discussion, Lester sought and obtained approval from his supervisors for charges. Driscoll believes the charges were based upon Kristina's interview statements and the report of a sexually transmitted disease. Driscoll had learned of the sexually transmitted disease from someone at the Center. Lester later testified that he did not recall any mention of a sexually transmitted disease and that it did not play any role in his decision to seek charges. Lester testified that Kristina's testimony and medical evidence of the perihymenal trauma *fn2" formed the basis of his decision to pursue charges. The parties dispute whether Lester had any medical information prior to seeking charges against John Fittanto. Martinez thought the evidence was "weak" and did not believe there was probable cause to arrest John Fittanto. *fn3"

 Lester instructed Driscoll and Martinez as to what charges should be prepared. Per Lester's instructions, Driscoll prepared the charges and typed the complaint. Martinez and Driscoll then went to the Rolling Meadows Courthouse on October 27, 1989 to obtain an arrest warrant for John Fittanto. After explaining to Judge Zagone that Kristina had made allegations regarding a ...


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