The opinion of the court was delivered by: SHADUR
This Court's September 26, 1995 oral order dismissed Debra's claims for intentional infliction of emotional distress (Count IV) and abuse of process (Count VI). Both Nielsens then dismissed Totosian as a defendant. All remaining defendants now move under Fed. R. Civ. P. ("Rule") 56 for summary judgment as to all surviving claims, and their motions are fully briefed and ready for decision.
For the reasons stated in this memorandum opinion and order, the motions are granted and this action is dismissed.
Summary Judgment Standards
Familiar Rule 56 principles impose on parties moving for summary judgment the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to nonmoving parties ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). As with every summary judgment motion, this Court accepts nonmovants Nielsens' version of any disputed facts.
Nielsens, Callahan and Totosian all lived on the 100 block of Hunters Path in Village. Nielsens lived at 117 Hunters Path, Callahan lived next door at 115 and Totosian lived across the street at 118 (V. 12(M) P3). Their three households shared mailboxes located "within inches of each other" on the south side of Hunters Path (Decker Aff. P8). For some time before the summer of 1994 the households had engaged in a number of disputes, including incidents of egg tossing, pumpkin smashing and threats of physical violence (N. 12(N) P4; Wright Aff. P5).
Beginning in late 1993 or early 1994, Callahan also began to suspect that someone was tampering with her mail (V. 12(M) P5; Wright Aff. P6). Although Debra has denied removing mail "from anyone's mailbox but my own" (Nielsen Aff. P6), Callahan's son Joseph ("Joseph") reports seeing her take mail from the Callahan mailbox on May 5. While resting at home with asthma at about 3 p.m. that day, Joseph noticed a person--whom he was able to identify "with certainty" as Debra--reach into the Callahan mailbox and remove what appeared to be a music catalog (V. 12(M) PP6-9; J. Callahan Aff. I PP8-9
). After looking through the catalog, Debra assertedly tossed it into a garbage receptacle on the street awaiting removal (V. 12(M) P9; J. Callahan Aff. I P10).
Meanwhile, on May 5 Callahan had also taken Joseph to the Police Department to report what he had seen. At the station Joseph discussed his observations with Wright (V. 12(M) P10; J. Callahan Aff. I PP11-13; Wright Aff. P8). Ultimately Joseph made out a written statement of the incident before Wright and Callahan (J. Callahan Aff. I P14; J. Callahan Aff. II P4; Wright Aff. P8; K. Callahan Aff. PP3-4). Nielsens now call the authenticity of Joseph's signature on that document into question (N. 12(N) PP6-10; Hennessy Aff. P3).
On May 25 Callahan again called the Police Department, reporting to Wright that her mail remained the subject of tampering (V. 12(M) P16; Wright Aff. P9). Wright then spoke with Postal Service Supervisor Jim Brenner ("Brenner"), who referred him to Postal Service Inspector Robert Smith ("Smith") (Wright Aff. PP10-11). After Wright discussed Callahan's complaints with Smith, the Postal Service and the Village Police Department jointly decided to conduct surveillance of the Nielsen-Totosian-Callahan mailboxes (V. 12(M) P19; Wright Aff. P12).
At about 12:15 p.m. on May 26, Decker and Smith arrived at the 100 Block of Hunters Path to conduct such surveillance (Decker Aff. P9). They parked their Dodge Caravan about 20 to 30 yards from the Nielsen-Totosian-Callahan mailboxes, positioning the van with its rear facing the mailboxes to allow the taking of still photos and a camcorder video through the van's windows (V. 12(M) PP20-21; Decker Aff. P9).
At 12:44 p.m. the two officers witnessed the delivery of mail (V. 12(M) P22; Decker Aff. P11). At 12:46 p.m. they saw a Sterling automobile licensed to Nielsens pull out of Nielsens' driveway and approach the mailboxes (V. 12(M) P23; Decker Aff. P12). First the driver of the Sterling vehicle removed items from the Nielsens' mailbox, then the driver pulled up several inches and twice removed items from the Totosian household mailbox (V. 12(M) PP24-27). Finally the Sterling automobile drove away from the mailboxes and directly past the van occupied by Decker and Smith (V. 12(M) P28).
Although windshield glare had kept the two officers from identifying the Sterling's driver to that point, they were able to see the driver with a "clear and unobstructed view" as she passed "within only a few feet of the van's window" (Decker Aff. P20). Decker could "positively identify" the driver as Debra (Decker Aff. P20), for he had become familiar with her while responding to an earlier neighborhood incident (Decker Aff. P3). Smith was able to identify the driver only as a female in her late thirties or early forties (V. 12(M) P30).
No one at the Totosian household had given Debra permission to remove items from the Totosian mailbox, and the items taken from that mailbox on May 5 were not returned (Decker Aff. PPl7, 23).
Although the State pursued charges against Debra under the Illinois general theft statute, 720 ILCS 5/16-1, those charges were dismissed in the Circuit Court on September 24 when Judge Arnold ruled that federal courts have exclusive jurisdiction over criminal offenses involving the United States mail (Nielsens' Ex. 9). On July 11, 1995 Nielsens brought this action, and the proceedings described in the introductory section of this opinion then ensued.
Counts I and II: False Arrest/False Imprisonment
Complaint Counts I and II set out Debra's Section 1983 charges against Wright, Decker and Callahan for conspiring to violate her Fourth Amendment right against unreasonable seizure. Debra alleges that they conspired to have Debra arrested in bad faith and for the personal benefit of Callahan and Totosian. More specifically, Debra asserts that Callahan conspired to file false police reports and that Wright and Decker conspired to arrest Debra without probable cause for a crime they knew had not be committed.
Section 1983 provides a remedy for injured parties who have been deprived of a federally guaranteed right "under color of" state law. Ordinarily, then, the target of a Section 1983 claim is a state, one of its lesser governmental units or some officially designated officer of a state or such lesser unit. As recently reconfirmed in Vickery v. Jones, 100 F.3d 1334, 1996 U.S. App. LEXIS 30389, 1996 WL 676719, at *11 (7th Cir.), quoting from Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)(emphasis in original), private individuals act "under color of" state law--and thus are subject to suit under Section 1983--only where jointly engaged with a public official in the deprivation of federal rights:
Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.
Because examination of Debra's Section 1983 claims against Callahan necessarily includes that additional inquiry, this opinion first considers the Section 1983 charges against Wright and Decker.
Section 1983 Claims Against Wright and Decker
Chief Justice Rehnquist's plurality opinion in Albright v. Oliver, 510 U.S. 266, 271, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994) (citations omitted) provides a succinct statement of the province of Section 1983 ...