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MIHALOVITS v. VILLAGE OF CRESTWOOD

March 28, 2003

CHARLIE MIHALOVITS AND FRANK MIHALOVITS, BY THEIR MOTHER AND NEXT FRIEND, CHARLOTTE MIHALOVITS, PLAINTIFFS,
v.
VILLAGE OF CRESTWOOD, CHESTER STRANCZEK, AS MAYOR OF THE VILLAGE OF CRESTWOOD, CRESTWOOD POLICE DEP'T,[FN1] JAMES ARVANITES, AS CHIEF OF THE CRESTWOOD POLICE DEPARTMENT, CITY OF BLUE ISLAND, BLUE ISLAND CIVIL SERVICE COMMISSION, BLUE ISLAND FIRE DEP'T,[FN2] BLUE ISLAND PARK DISTRICT,[FN3] BLUE ISLAND UNTOUCHABLES FOOTBALL ORGANIZATION, AN UNINCORPORATED ASSOCIATION, AND THOMAS BROUKAL, AS AGENT, SERVANT AND EMPLOYEE OF THE VILLAGE OF CRESTWOOD, DEFENDANTS.



The opinion of the court was delivered by: Ronald A. Guzman, United States Judge.

Charlotte Mihalovits, on behalf of her sons, Charlie and Frank Mihalovits, has sued the Village of Crestwood, Chester Stranczek, Mayor of the Village of Crestwood, in his official capacity, James Arvanites, Chief of the Crestwood Police Department, in his official capacity, the City of Blue Island, the Blue Island Civil Service Commission, and Thomas Broukal, in his individual and official capacity as employee and agent of the Village of Crestwood, for deprivation of their constitutional right to substantive due process as guaranteed by the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 ("section 1983") because Broukal, apart-time police officer and firefighter, sexually abused Charlie and Frank.*fn4 Plaintiff has also sued the Blue Island Untouchables Football Organization for negligent hiring, retention, and supervision of Broukal because Frank played football for the organization and Broukal was a coach for the organization prior to Broukal's abuse of Frank. Defendants have moved for summary judgment.*fn5 For the reasons provided in this Memorandum Opinion and Order, the Court grants in part and denies in part defendants' motion.

FACTS

The following facts are either undisputed or deemed admitted because the party's response failed to comply with Local Rule 56.1. The following does not include any fact that was unsupported by the proponent's citation to the record or that did not comply with Local Rule 56.1.

In 1992, Thomas Broukal was employed as a Village of Crestwood ("Crestwood") police officer, a City of Blue Island ("Blue Island") firefighter, and a football coach for the Blue Island Untouchables Football Organization. (Pl.'s LR56.1(b)(3)(B) ¶ 1.) During 1992, Broukal was charged with neglect of a child and criminal sexual abuse for an incident involving Broukal's provision of alcohol to and alleged sexual abuse of Richard Arroyo, a sixteen year old boy who attended a party at Broukal's house. (Id ¶ 2.) At trial, Broukal was found guilty of child neglect and not guilty of criminal sexual abuse. (Id. ¶ 8.)

After his court-imposed supervision ended, Crestwood reappointed Broukal as a part-time police officer and the Blue Island Untouchables allowed Broukal to resume his duties coaching grade school children. (Id. ¶ 9, 15.) The record does not show whether Broukal was ever suspended from or disciplined by the Blue Island Fire Department dining the pendency of the charges against him or after his conviction for child neglect relating to the Arroyo incident.

In the Summer of 1998, Charlie Mihalovits was arrested for shoplifting at Target in Crestwood. (id ¶ 18.) Crestwood Juvenile Officer Mark Werner decided to allow Charlie to serve community service as opposed to bringing charges in juvenile court. (Id ¶ 19.) Werner made the decision to place Charlie at the Blue Island Fire Department to serve his community service. (Id. ¶ 25.) He told Charlie that Broukal was the contact person at the Blue Island Fire Department.*fn6 (Id.) Werner told Charlie that Broukal would be the person who would inform Werner as to whether his community service was successfully completed. (Id, at 45.) It is Werner's normal practice to tell juveniles that if they fail to comply with the conditions that were set in the station adjustment, that a petition could be lodged in the court, the state's attorney could file charges, and the juvenile could end up going to court. (Id, at 41.)

Crestwood's Chief of Police knew that Werner assigned juveniles to do community service outside the Village of Crestwood. (Pl.'s LR56.1(b)(3)(B) ¶ 24.) Werner had the authority to choose the sites where community service would be performed. (Id. ¶ 21.) Werner had set up the Blue Island Fire Department as a community service site because Broukal worked there as a firefighter. (Id. ¶ 22.) Werner is a friend of Broukal and they spend time together outside of work. (Id. ¶ 40.) Werner was aware of the criminal proceedings against Broukal and the outcome of the trial relating to the Arroyo incident. (Id. ¶ 35.) Despite this knowledge, Werner made no efforts to obtain other information regarding Broukal's arrest on these criminal charges other than talking to Broukal himself about the outcome of the trial. (Id. ¶ 36.) Even though Werner is a juvenile officer, Broukal's conviction for an offense related to a juvenile did not give Werner any concern. (Id. ¶ 39.)

No acts of abuse occurred when Charlie was performing community service at the Blue Island Fire Department. (Defs.' LR56.1(a)(3) ¶ 128.) Charlie states that he was sexually abused by Broukal on four occasions within months of his performing community service. (Pl.'s LR56.1(b)(3)(B) ¶ 149.) Broukal told Charlie that he was his probation officer. (Id. ¶ 148.) Charlie believed that Broukal had the right to report anything that he did wrong. (Id. ¶ 146; Pl.'s Ex. 14, Charlie Mihalovits Dep., at 45.) Charlie was scared of Broukal in every way. (Pl.'s LR56.1(b)(3)(B) ¶ 176.)

In early August 1998, late one evening, Charlie was walking in Blue Island, and Broukal stated to Charlie that it was past curfew and offered to give him a ride home. (Defs.' LR56.1(a)(3) ¶ 133.) Charlie accepted and got into Broukal's personal van. (Id. ¶ 134.) Broukal took off Charlie's pants and fondled him. (Id. ¶ 138; Pl.'s LR56.1(b)(3)(B) ¶ 152.) When Charlie became upset, Broukal told him that as his supervisor, Broukal could get Charlie in even more trouble and that no one would believe Charlie because he was already in trouble with the police department. (Pl.'s LR56.1(b)(3)(B) ¶ 154.)

The second incident of abuse occurred late one evening when Broukal told Charlie, who again was walking in Blue Island late one evening, that he was violating his probation by being out after curfew. (Id ¶ 155-58.) Broukal drove Charlie in his personal van to Broukal's house, fondled and performed oral sex on Charlie, and videotaped the abuse. (Id. ¶ 158, 161-62.)

The third incident occurred when Charlie and Frank, along with other children and adults, including Crestwood Juvenile Officer Werner, went to Broukal's Michigan cottage for the weekend. (Id ¶ 165.) After coming home from drinking at a local bar, Broukal woke Charlie up, brought him downstairs, and sexually abused him. (Id ¶ 167.)

The fourth incident occurred when Broukal saw Charlie in Blue Island and told Charlie he would drive him home. (Id. ¶ 169.) Broukal got Charlie into the back of his van and despite Charlie's resistance, fondled him and attempted to force Charlie to touch Broukal and perform oral sex on Broukal. (Id ¶ 170-72.)

Charlie's brother, Frank, who was eleven years old at the time, states that in one incident, he was also sexually abused by Broukal, whom Frank knew to be Charlie's probation officer, a police officer, and a firefighter. (Id ¶ 182-83, 189, 190.) Frank met Broukal when Frank visited the Blue Island Fire Department while Charlie performed his community service. (Id. ¶ 181.) Frank also saw Broukal when he stopped by the Mihalovits' house a couple of times. (Id. ¶ 184.)

Charlie mentioned to Broukal that Frank wanted to play football, and Broukal arranged and paid for Frank to play football for the Untouchables for whom Broukal volunteered as coach. (Id. ¶ 185-86.) Broukal was not Frank's coach. (Defs.' LR56.1(a)(3) ¶ 190.) Frank played football for one month and quit after two games. (Id. ¶ 191, 193.) Frank was never alone with Broukal while he participated in the Untouchables and was never touched by Broukal while he was playing football, or while he was at a football function, practice, or game. (Id. ¶ 194-95.)

In December 1998, days prior to Christmas, Broukal called the Mihalovits' home to say he was stopping by to talk to Frank about his Christmas gift. (Id. ¶ 197; Pl.'s LR56.1(b)(3)(B) ¶ 187.) When Broukal pulled into the driveway in his van, Frank came out and got into the van. (Pl.'s LR56.1(b)(3)(B) ¶ 188.) Broukal pulled Frank onto his lap and put his hands down Frank's pants and sexually molested Frank. (Id. ¶ 189; Defs'. LR56.1(a)(3) ¶ 201.)

DISCUSSION

Pursuant to Federal Rule of Civil Procedure 56(c), the court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c). When considering the evidence submitted by the parties, the court does not weigh it or determine the truth of asserted matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). All facts must be viewed and all reasonable inferences drawn in the light most favorable to the non-moving party. NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, ...


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