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DAVIS v. NOVY

April 24, 2003

MICHAEL E. DAVIS, PLAINTIFF,
v.
CHARLES NOVY AND LUIS ESCOBAR, DEFENDANTS.



The opinion of the court was delivered by: Suzanne B. Conlon, United States District Judge

MEMORANDUM ORDER AND OPINION

Michael E. Davis ("Davis") sues Charles Novy ("Novy") and Luis Escobar ("Escobar") (collectively, "defendants"), individually and in their capacity as Bolingbrook police officers, for unlawful search and seizure in violation of his Fourth (Counts I through III) and Fourteenth Amendment (Count IV) rights pursuant to 42 U.S.C. § 1983. Davis requests punitive damages (Count V). Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6).

BACKGROUND

For purposes of a motion to dismiss, the court accepts all well-pleaded allegations in the complaint as true and draws all reasonable inferences in favor of Davis. Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000). Davis lives in Bolingbrook. Due to a back injury, Davis is unable to walk for any appreciable distance. As a result, he either uses a wheelchair or his vehicle.

On February 9, 2002, Davis drove through his neighborhood photographing snow piles and vehicles blocking access to sidewalks. According to Davis, he intended to present the photographs to Bolingbrook's public works department. During his drive, Davis noticed a Bolingbrook police car following him. Novy, who was driving the police car, pulled Davis over.

When Novy approached Davis' vehicle, Davis asked the police officer if he had committed a traffic offense. Novy responded, "No." According to Davis, Novy pulled him over in response to an anonymous tip called into Bolingbrook's emergency telephone system center. During the stop, Novy told Davis that a woman reported that he was photographing children. When Novy asked him what he was doing, Davis explained the purpose of his photographs. Davis produced a valid Indiana driver's license at Novy's request.

During their conversation, Escobar arrived in a second squad car. Escobar told Davis that their exchange was videotaped. Davis gave Escobar the film from his camera. Novy asked Davis if he could search his car, stating that if he refused, he would be taken to jail and his vehicle impounded. According to Davis, he agreed to the search because he felt he had no other choice "[g]iven [his] disability and his reliance on his vehicle in traveling any appreciable distance and in light of the police show of force and threat to incarcerate him if he did not agree." Complaint at ¶ 11. After searching Davis' car, Novy arrested Davis for not having a valid Illinois driver's license.

Davis was placed in Novy's squad car. Escobar then handed Davis a signature card authorizing a search of his house. When Davis asked what would happen if he refused to consent to the search, Novy told him that they would take him to jail and impound his car. Davis signed the consent form, alleging he felt he had no other choice. Defendants took Davis home and searched his house. After the search, defendants issued three vehicle citations. Davis later learned his film was lost and no videotape had been made.

DISCUSSION

I. Legal Standard

A motion to dismiss tests the sufficiency of the complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, the court considers "whether relief is possible under any set of facts that could be established consistent with the allegations." Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 839 (7th Cir. 1999), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A motion to dismiss should not be granted "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Gibson,355 U.S. at 45-46.

II. Qualified Immunity

Defendants claim dismissal is appropriate because they are entitled to qualified immunity. Once an officer raises qualified immunity as a defense, the court must determine whether: (1) the alleged conduct establishes a constitutional violation; and (2) the constitutional standards were clearly established at the time of the violation. Lanigan v. Village of East Hazel Crest, Illinois, 110 F.3d 467, 472 (7th Cir. 1997). Although the issue of qualified immunity must be resolved at the earliest stages of litigation. "dismissal of a ยง 1983 suit under Rule 12(b)(6) is a delicate matter that district ...


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