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DOE v. CITY OF CHICAGO

March 23, 1999

JANE DOE, PLAINTIFF,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, OFFICER BRUCE (# 4481), JOSEPH PANTALENA, AND E & R TOWING & GARAGE, INC., DEFENDANTS.



The opinion of the court was delivered by: Ann Claire Williams, District Judge.

MEMORANDUM OPINION AND ORDER

Jane Doe ("Doe") is suing Environmental Auto Removal, Inc. ("EAR") and one of its employees, Joseph Pantalena ("Pantalena"), over events related to Doe's arrest for disorderly conduct at the City of Chicago auto pound ("the pound").*fn1 In count I of her six-count complaint, Doe alleges that Pantalena violated 42 U.S.C. § 1983 when he deprived her of her right to be free from unlawful seizure. In count II, Doe claims that her arrest and subsequent criminal proceedings constituted a malicious prosecution by Pantalena, also in violation of 42 U.S.C. § 1983. In count IV, Doe alleges a state law false arrest claim against both EAR and Pantalena. In count V, Doe asserts a state law claim of malicious prosecution against EAR and Pantalena. Finally, in count VI, Doe alleges intentional infliction of emotional distress against EAR and Pantalena. EAR and Pantalena now move for summary judgment on all counts against them. For the following reasons, the court grants in part and denies in part EAR and Pantalena's motion for summary judgment.

Background

On February 20, 1996, Doe was involved in an automobile accident which left her car severely damaged. (Def.12(M) ¶ 5.) After the accident, Doe's car was towed to the pound, and Doe and her son then went to the pound to remove property from her damaged automobile. (Doe Dep. at 35; Def.12(N) ¶¶ 6-7.) At the pound, Doe obtained a pass from a City employee which read, "Pick Up Personal Belongings," and walked to her vehicle. (Pl.'s 12(N) Stmt. of Add'l Facts ¶¶ 34-35.) Doe's son removed all of the parts of the stereo system which he found in the car and also wanted to also take the battery out of the car. (Pl.'s 12(N) Stmt. of Add'l Facts ¶¶ 36-37; Doe Dep. at 40.)

Carrying the items taken from the car, Doe and her son walked to a trailer where pound personnel work to inquire whether they could also take the car's battery. (Def.12(M) ¶ 10; Pl.'s 12(N) Stmt. of Add'l Facts ¶ 37.) As Doe and her son walked toward the trailer, Pantalena appeared and ordered Doe to return the items she and her son were carrying to her car. (Def.12(M) ¶ 13; Pl.'s 12(N) Stmt. of Add'l Facts ¶ 38.) Doe stated that she was simply trying to collect her personal property from her automobile. (Pl.'s 12(N) Stmt. of Add'l Facts ¶ 39.) Pantalena informed Doe that the car stereo and battery were not considered personal property and that she would have to return those items to her car. (Def.12(M) ¶ 13.)

Apparently displeased with Pantalena's instructions, Doe then followed Pantalena into the trailer, requesting that Pantalena provide her with a copy of the written policies which define "personal property." (Def.12(M) ¶ 14; Pl.'s 12(N) Stmt. of Add'l Facts ¶ 41.) Pantalena did not produce any written policies; instead, Pantalena stated that the policy defining personal property was whatever he said it was. (Def.'s Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 47.) Pantalena told Doe that only items such as clothing or a purse constitute personal property. (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 42.)

The actual written policy of the pound allows a person to remove anything from the vehicle that is not affixed to or part of the vehicle. (Pl.'s 12(N) Stmt. of Add'l Facts ¶ 43; Sorfleet Dep. at 27-29; EAR Handbook at D-E & R000150.) Specifically, the relevant part of the handbook provides:

  When verified and properly documented, the owner of
  an impounded vehicle will be allowed to remove
  his/her personal property from the vehicle. The
  definition of personal property in this case is as
  follows: Any item(s) or possession(s) that is not
  affixed to or part of the vehicle with the exception
  of license plates. Example of what is not personal
  property: (battery, radio or speakers, tires, etc.)
  Example of what is personal property: (clothing,
  tools, documents/important papers etc.).

(EAR Handbook at D-E & R000150.) EAR provides its employees with a copy of the handbook which contains this provision. (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 48.)

After Pantalena refused to produce a written copy of the policy, Doe asked to speak to Pantalena's supervisor. (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 49.) Pantalena refused, stating that he was the supervisor. (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 50.) Pantalena then told Doe that the only way she could remove the items in question was to pay the tow fee and remove her entire vehicle from the pound. (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 52.) Doe then offered to pay the tow fee, but requested that she be able to leave the car at the pound since it was too severely damaged for her to drive away from the pound. (Pl.'s 12(N) Statement of Additional Facts ¶ 56.) Pantalena rejected Doe's offer and ordered her to leave the property, (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 57), but Doe refused to leave the pound without the property she wanted to take with her. (Def.12(M) ¶ 15.)

When Doe refused to leave the pound, Pantalena asked the secretary to call the police. (Def.12(M) ¶ 16.) Chicago police officer James Bruce responded to the call and arrived on the scene. (Def.12(M) ¶ 17.) Pantalena identified himself to officer Bruce as the supervisor on the site and explained to Bruce that Doe was causing a disturbance in the trailer and that she refused to leave when Pantalena asked her to leave. (Def.12(M) ¶ 22; Bruce Dep. at 67.) After hearing Pantalena's version of the events, officer Bruce asked Doe to leave the pound several times, instructing her that it was a business and her refusal to leave violated the law. (Bruce Dep. at 78-79.) Doe persisted in her refusal to leave without her belongings and officer Bruce then arrested her. (Def.12(M) ¶¶ 25-26.)

Officer Bruce handed Pantalena a blank complaint form, which Pantalena signed. (Bruce Dep. at 80.) Officer Bruce filled out the complaint at the police station after taking Doe into custody. (Bruce Dep. at 80.) The complaint alleged that Doe engaged in disorderly conduct by refusing to leave the pound where she was creating a disturbance and refused to leave the property even after being advised that her failure to do so would result in her arrest. (Crim.Compl., Pl.'s Ex. 1.) Doe later appeared at a hearing on the disorderly conduct charge. The court dismissed the charge because neither Pantalena nor officer Bruce appeared to testify. (Doe Dep. at 118; Def. 12(M) at ¶ 32.) Doe filed her six-count complaint against EAR and Pantalena. Defendants EAR and Pantalena now move for summary judgment on counts I, II, IV, V and VI.

Analysis

The court will render summary judgment only if the factual record shows "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." Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 173 (7th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In ruling on a motion for summary judgment, the court views the facts in the light most favorable to the nonmoving party. Bratton, 77 F.3d at 171 (citation omitted); Sullivan, 78 F.3d at 325 (citation omitted). On a motion for summary judgment, the moving party "bears the initial burden of showing that no genuine issue of material fact exists." Hudson Ins. Co. v. City of Chicago Heights, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Then the burden shifts to the nonmoving ...


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