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Aboufariss v. City of De Kalb

July 07, 1999

ABEL JALIL ABOUFARISS, PLAINTIFF-APPELLANT,
v.
THE CITY OF DE KALB, CORWIN THOMAS, THE COUNTY OF DE KALB, AND ELLEN PAULING, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of De Kalb County. No. 94-L-60

The opinion of the court was delivered by: Presiding Justice Bowman

Honorable Douglas R. Engel and Roger W. Eichmeier, Judges, Presiding.

PRESIDING JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Abel Aboufariss, filed state and federal actions against defendants, De Kalb County Assistant State's Attorney Ellen Pauling (Pauling), De Kalb police officer Corwin Thomas (Thomas), the City of De Kalb (City), and the County of De Kalb (County). Plaintiff now appeals from the trial court orders granting the County's motion to dismiss and remaining defendants' respective motions for summary judgment. We affirm.

On June 2, 1994, plaintiff filed a complaint against defendants. The facts in the complaint are as follows. Plaintiff was formerly married to Symone Aboufariss (Symone). While married, plaintiff and Symone had one child, Tiffany. On May 6, 1992, the trial court entered a judgment for dissolution of marriage, which incorporated a joint parenting agreement.

The joint parenting agreement contained the following provision regarding the removal of Tiffany from Illinois:

"[e]ither of the parties may remove the children [sic] from the state [sic] of Illinois for trips or vacation purposes for a period not to exceed two (2) weeks without further leave of Court or consent of the other party, provided the party intending to remove the children [sic] shall give the other party reasonable notice of his or her intention to do so, and shall supply the other with information regarding the contemplated period of time outside of the state, and the address and telephone number of where the children [sic] will be during the period of time outside the state [sic] of Illinois, and shall permit reasonable telephone communication between the children [sic] and the parent who is not with the children [sic]."

Plaintiff alleged that on or about May 29, 1993, he informed Symone that he would be taking Tiffany to visit friends in the Boston area. On June 5, 1993, plaintiff went to Symone's home to pick up Tiffany for the purpose of taking her to Boston. Plaintiff provided his brother with a contact phone number and address in Boston and instructions to forward this information to Symone.

On June 6, 1993, at approximately 1:17 p.m., Officer Thomas was dispatched to Symone's residence. Symone informed Thomas that plaintiff picked up Tiffany the previous morning and agreed to return her by 8 a.m. on June 6. When plaintiff failed to return Tiffany by that time, Symone attempted to reach plaintiff by telephone at his Melrose Park, Illinois, residence. She also attempted to reach plaintiff at an out-of-state telephone number that plaintiff's sister-in-law provided her. Symone advised Thomas that plaintiff did not inform her that he was taking Tiffany out of the state. She also told Thomas that plaintiff threatened to take Tiffany to Morocco if the police were involved. Plaintiff alleged that Symone's representations to Thomas were false.

According to plaintiff, Thomas's investigation revealed that plaintiff had previously notified Symone of his plans to take Tiffany to Boston and that plaintiff had provided Symone with the Boston telephone number and address. Thomas learned that on two occasions plaintiff contacted Symone from Boston. Thomas was also aware that plaintiff and Tiffany intended to return to Chicago and knew their flight number as well as their expected arrival time. Plaintiff further alleged that, notwithstanding this information, Thomas contacted the Boston police department and advised a police sergeant that plaintiff violated the child abduction statute (720 ILCS 5/10--5 (West 1992)) and that the De Kalb police department was in the process of obtaining an arrest warrant.

Thomas also contacted Pauling, an assistant State's Attorney, to assist in the investigation and in obtaining an arrest warrant. Plaintiff alleged that, in drafting the complaint-for-arrest warrant, both Pauling and Thomas knew that plaintiff had notified Symone that he would be taking Tiffany to the Boston area, that plaintiff had provided Symone with a contact number and address, that Symone had talked to plaintiff and Tiffany, that plaintiff and Tiffany were at the airport to return to Chicago, and that Symone knew the return flight information.

Plaintiff alleged that both Pauling and Thomas knew that the statements made in the complaint-for-arrest warrant were false and failed to advise the trial court that plaintiff had previously notified Symone of his plans to take Tiffany to the Boston area and that plaintiff and Tiffany were at the airport intending to return to Chicago.

After the trial court issued a warrant for plaintiff's arrest, plaintiff was arrested at the airport in Boston and incarcerated for 10 days. Following plaintiff's preliminary hearing on the child abduction charge, the trial court made a finding of no probable cause. Plaintiff alleged that while incarcerated he suffered personal and pecuniary injury. Count I of plaintiff's complaint was based on malicious prosecution and false arrest and was directed against all defendants. Count II alleged that Pauling and Thomas violated plaintiff's civil rights pursuant to section 1983 of the Civil Rights Act of 1871 (42 U.S.C.A. §1983 (West 1994)). Counts III and IV were directed against the City and County, respectively, and asserted municipality liability pursuant to section 1983. Counts V and VI were based on state and federal conspiracy claims directed against all defendants. Counts VII and VIII alleged defamation and invasion of privacy, respectively, against all defendants.

On July 28, 1994, Pauling and the County filed a motion to dismiss plaintiff's complaint pursuant to sections 2--615 and 2--619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2--615, 619(a)(9) (West 1994)). The City also filed a motion to dismiss plaintiff's complaint pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 1994)). The trial court dismissed counts I, IV, V, VI, VII, and VIII against the County only.

The remaining defendants filed motions for summary judgment, which the trial court granted on July 24, 1998. In granting the motions for summary judgment, the trial court made several findings of fact and concluded that Pauling's and Thomas's actions fell within the protections of qualified immunity. Thereafter, plaintiff filed this timely appeal. Plaintiff raises three principal contentions on appeal: (1) the trial court erred in making specific findings of fact at the summary judgment stage, particularly when those findings involved disputed issues of material fact; (2) the trial court erred in granting summary judgment on the basis that there was probable cause ...


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