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PEPPER v. VILLAGE OF OAK PARK

August 27, 2003

CHARISE PEPPER, PLAINTIFF,
v.
VILLAGE OF OAK PARK AND OAK PARK POLICE OFFICER LEONARD DONAIRE, DEFENDANTS.



The opinion of the court was delivered by: Rebecca Pallmeyer, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Charise Pepper brought this action under 42 U.S.C. § 1983, claiming that Defendant, Oak Park Police Officer Leonard Donaire, violated her Fourth Amendment rights when he allowed Pepper's estranged husband to enter her home and remove or damage her belongings. (Compl. ¶ 1, 5.) Because the court concludes that Donaire's conduct amounted, at worst, to negligence, however, Defendants' motion for summary judgment is granted. The court dismisses Pepper's state law claim against Defendant Village of Oak Park without prejudice.

FACTUAL BACKGROUND

The Plaintiff, Charise Pepper, is a resident of the Northern District of Illinois. (Compl. ¶ 2.) Defendant Leonard Donaire is a police officer with Defendant Village of Oak Park, a municipal corporation in Western Cook County. (Defendant's Local Rule 56.1(a) Statement, hereinafter, "Def.'s56.1(a)" ¶ 1.)

Plaintiff married John Redd ("Redd") in June of 1999. (Plaintiffs Local Rule 56.1(b) Statement, hereinafter, "Pl.'s 56.1(b)" ¶ 1.) In October of 2000, Plaintiff left Redd. who then resided in Arizona, and moved to Oak Park, Illinois, where she rented part of the residence at 244 South Clinton from her brother, Kenneth Pepper. (Id. ¶ 2.)

In December 2000, Plaintiff and Redd reconciled, and Redd moved in with Plaintiff at the [ Page 2]

244 South Clinton home. (Pepper Dep., at 10-11.) Their relationship soon deteriorated again, however (Pepper Dep., at 13-16),*fn1 and in May 2001, police officers came to 244 South Clinton in response to a call in which Plaintiff reported that Redd had refused to leave as she requested and had threatened to abuse her physically. (Id. at 13.) Regarding the May 2001 incident, Plaintiff asserts: (1) that she showed police the [ease, in her name only, to the 244 South Clinton property (Id. at 13-15); (2) that Redd refused to leave even after police arrived, and (3) that, ultimately, the officers "forcibly ejected" Redd from Plaintiff's home. (Id. at 15-16.) Defendants deny the relevance of these assertions, but offer no evidence to rebut them. (Defendant's Rule 56.1(a) Reply to Plaintiff's Additional Facts, hereinafter, "Def.'s Rule 56.1(a) Reply to Add. F." ¶ 5.) It is undisputed that when Redd did leave the premises, he asked the police officers when he could return to collect his property, and that one of the officers told him that he would need "a police escort to retrieve his property." (Id. ¶ 7.)

On the morning of June 1, 2001, Plaintiff testified that Redd phoned her and threatened that he was going to burn down her house and shoot out the windows. (Pepper Dep., at 49.) Plaintiff reported these threats to the Oak Park police that day and asked an unidentified officer to arrest Redd. (Id. at 50.) The officer instructed Plaintiff to obtain an order of protection against Redd. (Id. at 51.) That same day, June 1, 2001, Defendant Oak Park Police Officer Donaire was dispatched to 244 South Clinton to perform the "escort" duty, monitoring Redd's property retrieval. (Def.'s 56.1(a) ¶ 4.) When Donaire arrived at the scene, Plaintiff was not at home, but Redd and another man were present. (Donaire Dep., at 9.)*fn2 As Plaintiff emphasizes, Donaire acknowledges that he [ Page 3]

made no "effort to find out where [Plaintiff] was at that time." (Id. at 19.) Donaire has testified that the side door, where Redd and the other gentleman entered the 244 South Clinton home, was ajar and did not appear to Defendant to have been opened forcibly. (Def.'s 56.1(a) ¶ 11.)

One of the two men identified himself to Donaire as John Redd ("Redd") and told Donaire that he was "in the process of getting a divorce from his wife." (Id. ¶ 6.) Redd explained that he wanted to retrieve certain items he had rented from a facility in Arizona. (Donaire Dep., at 10 — 11.) Redd showed Defendant several documents, including an Arizona marriage certificate and a typed copy of a lease, with the names "Sherry Redd and John Redd" on it, for "244 South Clinton." (Def.'s 56.1(a) ¶ 7.) Plaintiff notes that Defendant "did not do anything to determine" that the lease Redd showed Donaire was genuine (Pl.'s 56.1(b) Additional Facts, hereinafter "Pl.'s 56.1(b) Add. F.", ¶ 12.), and the parties have stipulated that any lease that Redd showed Donaire was a forgery, "since the authentic lease was in Plaintiff's name only." (Pl.'s 56.1(b) ¶ 5.)*fn3

Redd also showed Defendant a rental agreement for various items of personal property from the Arizona rental facility. (Def.'s 56.1(a) ¶ 15.) In addition, Redd produced identification; through the LEADS computer system in his police car, Donaire verified that Redd resided at 244 South Clinton. (Id. ¶ 10.) Defendant also asked the police communications department whether there had been any recent police calls at the 244 South Clinton address and learned that there had been a disorderly conduct call that very morning. (Donaire Dep., at 14.) Regarding the disorderly conduct call, Defendant did not ask more about it, nor did communications staff elaborate further. (Id.) Donaire also checked Redd's Ford Explorer license plates, but the record does not indicate [ Page 4]

what, if anything, Donaire determined about Redd's vehicle from the license-plates check. (Id. at 27.) Finally, Defendant verified that there were no reported warrants outstanding, orders of protection, or signed complaints against Redd. (Id. at 15-16.)

During the approximately 15-minute period while Redd and his companion moved items from Plaintiffs home into Redd's vehicle, Defendant remained in front of the house, "to intervene if Charise Pepper were to return home. [Donaire's] purpose was . . . to prevent violence or an argument between the two spouses." (Def.'s 56.1(a) ¶ 13-14.) Defendant stayed in his squad car for part of the time, but he also left the car for at least a few minutes to monitor the removal of the property, making a list of the removed items. (Id. ¶ 13.) Redd took various items listed on the rental agreement (television, computer, printer). (Id. ¶ 15.) He also removed a television set not listed on the rental agreement and a bedroom set. (Id.)*fn4

Between 5:00 and 6:00 p.m. on June 1, 2001, while at a beauty salon with her daughter, Plaintiff received a telephone call from Trina Simmons, the upstairs tenant at 244 South Clinton. (Pl.'s 56.1(a) Add. F. ΒΆ 18.) Plaintiff claims Simmons told her that Redd was removing "all ...


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