United States District Court, N.D. Illinois
March 23, 2004.
JAMES T. MOTON, Plaintiff
MARIA PROTINE, MANAGER BROOKHAVEN APARTMENTS; THE VILLAGE OF GURNEE POLICE OFFICERS, TOKARZ BADGE #135, DEPARTE, BADGE # 122; ROBERT JANUEZ; B. HAXALL; LAKE COUNTY STATES ATTORNEY; AND DORIS C. MOORE, Defendants
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Before this Court are two motions to dismiss James T. Moton's ("Moton"
or "Plaintiff) Complaint. The first motion was filed on behalf of B.
Haxall, a Lake County Assistant State's Attorney. The second motion to
dismiss was filed on behalf of Brookhaven Apartments, the Village of
Gurnee, and several Police Officers of the Village of Gurnee: Tokarz
(Badge Number 135), Deperte, (Badge Number 122), and Robert Januez.*fn1
For the reasons set forth below, Defendants' motions to dismiss are
GRANTED. Additionally, for the reasons set forth below, Plaintiffs claims
against Maria Protine and Doris C. Moore are dismissed in their
Moton is a resident of Brookhaven Apartment Complex ("Brookhaven"), a
federal housing project located in Gurnee, Illinois. Plaintiffs Complaint
arises from three separate incidents that occurred in Brookhaven on
January 5, 2001, March 29, 2001, and March 30, 2001. All three incidents
involve disputes with Doris Moore ("Moore"), Moton's neighbor. Each
incident will be addressed in turn.
I. January 5, 2001 Incident
On December 1, 2000, Moore made a complaint against Moton to the Gurnee
Police Department, and reported that Moton banged on the walls between
their apartments, thereby causing a disturbance. (Pl. Comp. ¶ 10).
Gurnee Police Officer Tokarz (Badge Number 135) ("Tokarz") responded to
Moore's Complaint and issued a disorderly conduct citation to Moore and a
summons to appear in the Circuit Court of the Nineteenth Judicial
Circuit, Lake County, Illinois on January 5, 2001. (See PL Ex. E).
Neither Tokarz nor Moore appeared in court on January 5, 2001, and the
case was dismissed. (PL Comp. ¶ 10) Moton claims that the intimidation
and harassment related to the disorderly conduct citation caused Moton
time, pain, suffering, and money, and alleges that it was an abuse of
police power for Tokarz to issue the citation to him. (PL Comp. ¶ 11).
II. March 29, 2001 Incident*fn2
On the evening of March 29, 2001, Moton called the Gurnee Police
Department to report a disturbance in Moore's apartment, which he
believed was being caused by Moore's son.
About five minutes after calling the police, Moton went outside to
wait for their arrival.
Approximately ten minutes after going outside, Moton noticed a police
car approach his wing of the apartment complex, which he believed was
responding to his call. However, the police car turned into another
section of the complex. Moton went to search for the police car, but as
soon as he turned the comer, he saw Moore come towards him in an
aggressive manner. Moore ran towards Moton, pushed him back with her
chest, and used explicit language towards him. Moton believed that Moore
wanted to start a physical altercation with him; therefore, he took his
right hand and pushed Moton away from him, and attempted to walk away.
However, Moore became more aggravated, began screaming, and Moore, her
two sons, and a friend of one of the sons surrounded Moton. Moore told
one of her sons to retrieve a stick from the house, which he did. The
friend of Moore's son blocked the sidewalk in an attempt to prevent Moton
from entering his apartment. Moton began to back up, and as a
consequence, fell backwards. Moore's sons kicked Moton in his side, and
continued to attempt to hit him. Moore advanced towards Moton, and swung
the stick towards Plaintiff, hitting him two or three times in the back.
Moton blocked Moore's advances with his elbow. Moore struck Moton in the
nose with her stick, which caused the Plaintiff to bleed profusely. Moton
claims that the police in the squad car he observed prior to this
incident should have seen and/or heard the altercation, but failed to do
anything to stop it. Approximately thirty-five minutes after Moton called
the police, Officer Deperte (Badge Number 122) ("Deperte") arrived on the
scene, and Moton described the altercation to Deperte. After receiving
Moton's version of the events, Deperte went to Moore's apartment to speak
with her. Subsequently, Deperte returned to Moton's apartment and asked
him if he would like an ambulance due to his significant blood loss, but
Moton refused. Immediately thereafter, Deperte
spoke with some of Moton and Moore's neighbors, including Moore's
sons, in order to obtain more information about the altercation, but he
could not find any independent corroborating witnesses. Subsequently,
Deperte issued battery citations to Moton and Moore. (Pl. Ex. A-H). Later
that evening, Moton went to the hospital, where he was informed that he
had a hairline fracture to his nose. Moton claims that Deperte filed
false charges against him, and abused his authority as a police officer
by issuing a citation for battery to him. (Pl. Comp. ¶ 14).
III. March 30, 2001 Incident*fn3
On March 30, 2001, the Gurnee Police Department received a complaint
from Moore that Moton knowingly faced his stereo speakers against the
wall adjacent to Moore's apartment, and played his music at a loud volume
in order to disturb her. Based on this Complaint, three police officers,
including Police Officer Robert Januez ("Januez"), went to Moton's
residence. Moton answered the door, and the police informed him that they
wanted to check the configuration of his stereo equipment. The officers
asked Moton if they could come into his apartment. Moton asked the
officers if they had a search warrant Januez replied that they did not
need a search warrant, because they had a complaint, and that they were
coming in to arrest him. Plaintiff replied "okay," and the officers
walked into his apartment, arrested Moton, and charged him with
disorderly conduct. (See PI. Ex. C-A; See also Pl. Ex. C-E).
Subsequently, Officer Januez took Moton to the police station, processed
him, and brought him home in about one hour. On July 6, 2001, the court
for the Circuit Court of the Nineteenth Judicial Circuit, Lake County,
Illinois, found Moton guilty of disorderly conduct, in violation of 720
ILCS 5/26-1(a)(1). (Pl. Ex. C-M).
The court ordered supervision of Moton through and including December
28, 2001, and for Moton to pay a fine of $100. (Pl. Ex. C-L).
Additionally, the Court ordered Moton not to play his music so loud as to
alarm and disturb Moore or any of his neighbors. (PL Ex. C-M).
Plaintiffs claims against James B. Haxall ("Haxall"), a Lake County
Assistant State's Attorney, arise from Court proceedings related to
Moton's disorderly conduct citation. Moton contends that Haxall failed to
adequately investigate the charges against him, and conspired with Moore,
Maria Protine ("Protine"), manager of Brookhaven, and Januez to frame
Moton, in order to force a finding of guilty on the disorderly conduct
charges. (Pl. Comp. ¶ 23).
I. Legal Standard for a Motion to Dismiss
A complaint should not be dismissed under Fed.R. Civ, P. 12(b)(6)
"unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief." Conley
v, Gibson, 355 U.S. 41, 45-46 (1957). The court "must accept all well
pleaded facts as true. In addition, the Court must view these allegations
in the light most favorable to the plaintiff." Gomez v. Illinois State
Board of Education, 811 F.2d 1030, 1039 (7th Cir. 1987). Additionally,
Moton has filed his complaint pro se, and when construing a pro se
complaint, the court must construe the complaint more liberally than a
complaint prepared by an attorney. Whitford v. Boglino, 63 F.3d 527, 535
(7th Cir. 1995). However, the complaint must still allege facts that
provide an adequate basis for each claim. Gray v. Dane County, 854 F.2d 179,
182 (7th Cir. 1989). Additionally, all documents and exhibits attached to
the Complaint become part of the pleadings for all purposes. See Fed, R.
Civ. P. 10(c).
The claims in Moton's Complaint can be divided into two broad
categories. Moton alleges violations of: (1) the Federal Fair Housing Act
by Maria Protine ("Protine") in her capacity as manager of Brookhaven,
including allegations of conspiracy under 42 U.S.C. § 1985 ("Section
1985"); (2) the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983 ("
Section 1983") by various officers of the Gurnee Police Department, and
Lake County Assistant State's Attorney Haxall, including allegations of
Haxall's conspiracy with Protine and Moore to frame Moton in violation of
Section 1985. All allegations will be addressed in turn.
A. plaintiff's Claims Under the Fair Housing Act
Plaintiffs Complaint alleges violations of the Federal Fair Housing Act
under 42 U.S.C. § 3601, 3617, and 3631 (Pl. Comp., ¶¶ 1-4). Plaintiff
alleges that Protine, a white woman, in her capacity as manager of
Brookhaven Apartments, sought to remove Moton, a black man, from his
apartment at Brookhaven because of his race, in violation of various
sections of the Fair Housing Act. As an initial matter, Sections 3601 and
3617 do not confer any rights to sue. Section 3601 is a declaration of
policy only, and confers no power to sue. Further, Section 3631 empowers a
government to pursue criminal charges and penalties for violations of the
Fair Housing Act under Chapter 18 of the United States Code. Therefore,
the Court will address whether the Plaintiff has stated a claim for
relief under Section 3617 of the Fair Housing Act.
Section 3617 states:
It shall be unlawful to coerce, intimidate, threaten,
or interfere with any person in the exercise or
enjoyment of, or on account of his having exercised or
enjoyed, or on account of his having aided or
encouraged any other person in the exercise or
enjoyment of, any right granted or protection by
section 3603, 3604, 3605 or 3606 of this title.
Courts have interpreted Section 3617 to apply to threatening,
intimidating, or extremely violent conduct, designed to drive an
individual out of his home. Halprin v. Prairie Single Family Homes of
Dearborn Pk. Assoc., 208 F. Supp.2d 896, 903-4 (N.D. Ill. 2002). Acts
that have been found to provide a claim under Section 3617 include
cross-burning (Johnson v. Smith, 810 F. Supp. 235, 238-39 (N.D. Ill.
1992)), flrebombing homes or cars (Stackhouse v. DeSitter, 620 F. Supp. 208
(N.D. Ill. 1985)), throwing Molotov cocktails Byrd v. Brandenburg,
922 F. Supp. 198, 200-01 (N.D. Ohio 1996)), or physical violence used to
induce an individual to leave his home because of his race. (Seaphus v.
Lilly, 691 F. Supp. 127, 139 (N.D. Ill. 1988)).
Moton has presented no facts that would provide him with a claim under
Section 3617 of the Fair Housing Act. Moton has failed to state any
allegations that show racial animus or discrimination against him with
respect to his housing. Further, the incidents that occurred on January
5, March 29, and March 30, 2001 contain no hint of intimidation or
interference with his housing because of his race. The exhibits Plaintiff
provides clearly demonstrate that these incidents were the result of a
mutual dispute with his neighbor, with some incidents aggravated by
Moore's behavior, and some incidents aggravated by Moton's behavior. None
of the circumstances surrounding these incidents remotely suggest that
any of the defendants sought to deprive Moton of any the rights provided
to him under the Fair Housing Act. Therefore, Plaintiff has not stated a
claim for relief under the Fair Housing Act.
1. Plaintiff's Conspiracy Allegations Under 42 U.S.C. § 1985*fn4
In Ms Complaint, Moton alleges that Protine and Moore (who is a black
woman) conspired to deprive him of his rights under the Fair Housing
Act, thereby engaging in a unlawful conspiracy under 42 U.S.C. § 1985.
("Section 1985").*fn5 There are four elements necessary for a claim of
civil conspiracy under Section 1985: (1) a conspiracy, (2) for purpose of
depriving, either directly or indirectly, any person or class of persons
of equal protection under the laws, (3) an act in furtherance, and (4) an
injury. Heideman v. Wirsing, 840 F. Supp. 1285, 1201 (W.D. Wis. 1992)
(citing United Brotherhood of Carpenters & Joiners Local 610 v. Scott,
463 U.S. 825, 828-29 (1983)). However, the Court has determined that
there was no violation of any of Moton's rights under the Fair Housing
Act. Therefore, Plaintiff cannot sustain a claim under Section 1985, as
there is no underlying constitutional deprivation or injury. See Love v.
Bolinger, 927 F. Supp. 1131, 1139 (S.D. Ind. 1996) ("Plaintiffs' § 1985
claim is defeated by our holding that they have not suffered any
constitutional deprivation, or injury."). Therefore, Moton
fails to state a claim for relief alleging a conspiracy by Protine
and Moore to violate his rights under the Fair Housing Act.
B. Plaintiff's Claim Under 42 U.S.C. $1983
Mo ton contends that under color of law, several members of the Gurnee
Police Department infringed his Fourth and Fourteenth Amendment rights.
Section 1983 "is not itself a source of substantive rights," but rather
provides "a method for vindicating federal rights elsewhere conferred."
Baker v. McCollan, 443 U.S. 137, 144, n.3 (1979). The first step in a
Section 1983 claim is to identify the specific constitutional right
allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
Therefore, in order to establish a valid claim under 42 U.S.C. § 1983
("Section 1983"), Moton must establish that certain members of the Gurnee
Police Department, under color of law, violated his rights under the
Fourth and Fourteenth Amendments of the United States Constitution.
Police officers are granted qualified immunity from civil suit. "Public
officials performing discretionary functions are generally entitled to
qualified immunity and are `shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.'"
Sparing v. Village of Olympia Fields, 266 F.3d 684, 687 (7th Cir. 2001)
(quoting Wilson v. Layne, 526 U.S. 603, 609 (1999)). Qualified immunity
exists to provide "ample protection to all but the plainly incompetent or
those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 343
(1986). In order to determine whether a defense of qualified immunity is
valid, courts must: (1) determine whether the plaintiff has alleged the
deprivation of an actual constitutional right; and (2) if so, determine
whether the right was clearly established at the time of the alleged
Saucier v. Katz, 533 U.S. 194, 201-2 (2001). Therefore, the Court will
address whether Plaintiff was deprived of his Fourth and/or Fourteenth
Amendment rights, and if necessary, the Court will determine if that
violated right was clearly established at the time of the alleged
1. Plaintiff's Fourth Amendment Claims
Melon's Fourth Amendment claims contend (1) Officer Tokarz lacked
probable cause to issue a disorderly conduct citation to Moton on
December 1, 2000; (2) Officer Deperte lacked probable cause to issue a
battery citation to Moton on March 29, 2001; and (3) Officer Januez
lacked probable cause to effectuate an arrest of Moton on March 30, 2001.
When evaluating a Section 1983 Claim that arises under the Fourth
Amendment, the Court must determine whether the officer had probable
cause to make the arrest. Gerstein v. Pugh, 420 U.S. 103, 111 (1975).
"Probable cause is a function of information and exigency." BeVier v.
Hunal, 806 F.2d 123, 127 (7th Cir. 1986). Probable cause requires showing
a probability or a substantial chance of criminal activity, not the
actual showing of criminal activity. Illinois v. Gates, 462 U.S. 213, 244
(1983). "Probable cause exists at the time of arrest when reasonably
trustworthy information, facts and circumstances would lead a prudent
person to believe that a suspect had committed or was committing a crime."
Neiman v. Keane, 232 F.3d 577, 580 (7th Cir. 2000).
a. January 20, 2001 and March 29, 2001 Incidents
Plaintiffs claims concerning these two incidents are similar, as Moton
contends that the officers involved did not have probable cause to issue
citations to him. However, based on Plaintiffs own documents, it is clear
that the officers had probable cause to issue citations on January 20 and
March 29, 2001. The documents that Plaintiff provides for January 20,
show that the Gurnee Police Department received a complaint from Doris
Moore concerning Plaintiffs consistent banging on her walls. (See Pl.
Ex. E). The Seventh Circuit has repeatedly held that an identification or
a report from a single, credible victim or eyewitness can provide the
basis for probable cause. Woods v. City of Chicago, 234 F.3d 979, 996
(7th Cir. 2000). Therefore, Plaintiff cannot claim any set of facts that
would indicate that the Gurnee Police Department did not have probable
cause to issue a citation for Disorderly Conduct. Secondly, in Plaintiffs
documentation of the events of March 29, 2001, Moton admitted to Officer
Deperte that he pushed Moore and Moore admitted that she hit Plaintiff in
the nose. Subsequently, Officer Deperte issued battery citations to Moton
and Moore, as he could not find an independent witness to corroborate the
events of that evening. (See Pl. Ex. A-H) Plaintiffs own documentation of
the events of March 29, 2001 preclude him from claiming any set of facts
that would indicate that Officer Deperte lacked probable cause to issue a
b. March 30, 2001 Incident
Because the events surrounding March 30, 2001 involve the arrest of
Moton in his home, they must be analyzed under a different legal standard
than the two preceding events. Moton alleges a Fourth Amendment violation
because the Gurnee officers made a warrantless arrest. However, the
Fourth Amendment is not violated when the police make an arrest for a
misdemeanor offense without a warrant, even if that offense did not occur
in the officer's presence, and/or did not involve a breach of the peace.
Woods, 234 F.3d at 992.*fn6 The court
must focus its inquiry on whether there was probable cause for the arrest
Id. As stated in the discussion of the January 20 and March 29, 2001
incidents, a report from a single, credible victim or eyewitness can
provide the basis for probable cause. Woods, 234 F.3d at 996. Therefore,
Januez and the officers working alongside him had probable cause to
Secondly, the Court must determine whether Moton has claimed any set of
facts that allege a Fourth Amendment violation due to the officer's
entrance into his apartment. Generally, absent exigent circumstances,
police may not enter a person's home to arrest him without an arrest
warrant. U.S. v. Berkowitz, 927 F.2d 1376, 1385 (7th Cir. 1991).
However, courts generally uphold arrest "where the police go to a
person's home without a warrant, knock on the door, announce from outside
the home the person is under arrest when he opens the door to answer, and
the person acquiesces to the arrest." Id. at 1386. Based on Plaintiffs
own account of the events surrounding his arrest on March 30, 2001, the
police followed the appropriate procedures: the police went to Moton's
home without a warrant, knocked on the door, announced from outside his
home that he was under arrest, and Moton stated "okay." It was only after
Moton consented to the arrest that the officers entered the home to
remove Moton's speaker from against the wall. The police had the
authority to briefly enter Plaintiffs home to complete the arrest. See
Berkowitz, 927 F.2d at 1387.*fn7
There being no set of facts under which Plaintiff can claim a violation
of his Fourth Amendment rights for any of the three incidents, the Court
need not address the issue of whether there was a clearly established
right that was violated.*fn8
2. Plaintiff's Fourteenth Amendment Claims
Moton's Complaint claims that the police violated his rights under the
Fourteenth Amendment by arresting him solely because of his race. Under
Section 1983, to state an Equal Protection claim, the Plaintiff must
allege that the state actor purposefully discriminated against him
because of his identification with a particular disadvantaged group.
Payton v. Rush Presbyterian St. Lukes Medical Center, 184 F.3d 623, 632
(7th Cir. 1999) (citing Sherwin Manor Nursing Ctr., Inc. v. McAuliffe,
37 F.3d 1216, 1220 (7th Cir. 1994)). Moton must demonstrate that "the
action taken by the state . . . was a spiteful effort to `get' him for
reasons wholly unrelated to any legitimate state objective." Esmail v.
Macrane, 53 F.3d 176, 180 (7th Cir. 1983). This is a more exacting
standard than having to demonstrate the officers lacked probable cause
for their actions. Id.
The Court has already determined that the Gurnee police officers had
probable cause to issue citations to Moton and to arrest him for the
citation issued on March 30, 2001. Plaintiffs own exhibits show that the
officers were well within the bounds of their duties, and that the
police had legitimate reasons to take the actions they did. Therefore,
Plaintiff can claim no set of facts upon which relief can be granted on
his Fourteenth Amendment claim.*fn9
C. Plaintiffs' Suit Against B. Haxall, Lake County Assistant State's
In his Complaint, Plaintiff claims that B. Haxall, a Lake County
Assistant State's Attorney, deliberately tried Plaintiff on the words of
Doris C. Moore, Maria Protine, and Officer Januez under a scheme of
perjury, in order to frame Moton for the charge of Disorderly Conduct.
(Pl. Comp. ¶ 20). A state prosecutor is absolutely immune from civil
damages for all prosecutorial activities "intimately associated with the
judicial phase of the criminal process." Imbler v. Pachtman.
424 U.S. 409.430 f!976). In Imbler, a prosecutor was granted absolute
immunity for the use of false testimony and the deliberate suppression of
exculpatory evidence. Id. at 431. Therefore, even if Plaintiffs claim is
correct, and Haxall knowingly procured the false testimony of Moore,
Protine and Januez in order to obtain a conviction, Haxall is immune from
suit. Therefore, Plaintiff can claim no set of facts that would allow him
state a claim for relief against Haxall.*fn10
For the foregoing reasons, Defendants' motions to dismiss are GRANTED
in their entirety. Additionally, all claims against Maria Protine and
Doris C. Moore are dismissed in their entirety. This case is closed.