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March 23, 2004.

JAMES T. MOTON, Plaintiff

The opinion of the court was delivered by: DAVID COAR, District Judge


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 entirety. Page 2


  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. Page 3 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 Page 4 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). Page 5 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 ...

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