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STRONG v. TORRES

March 24, 2004.

EDWARD STRONG, Plaintiff,
v.
EDWIN TORRES, Badge Number 840, and GREGORY SMITH, Badge Number 29, and CITY OF COUNTRY CLUB HILLS, Defendants



The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Edward Strong ("Strong") brought suit against Defendants City of Country Club Hills ("City"), Edwin Torres ("Torres") and Gregory Smith ("Smith") asserting violations of his privileges and immunities as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Count I alleges that police officers Torres and Smith unlawfully detained Strong and maliciously charged him with aggravated assault and battery. Count II claims that Torres and Smith violated Strong's right to freedom from unreasonable searches and seizures. Count III alleges that, through the tortious acts of Defendants and others, Strong "was deprived" of his property without due process of law. Finally, Count IV charges that Torres and Smith illegally searched Strong's automobile and illegally seized property from it. For the Page 2 following reasons, Defendants' motion for summary judgment is GRANTED.

I. LOCAL RULE 56.1 RESPONSES

  Local Rule 56.1 of the United States District Court for the Northern District of Illinois ("Local Rule 56.1") establishes procedures that both moving and opposing parties must follow in filing and responding to a motion for summary judgment. Under Local Rule 56.1, the moving party must submit a statement of material facts with "references to the affidavits, parts of the record, and other supporting materials relied upon." Local Rule 56.1(a)(3) (hereafter, "56.1 Statements"). In turn, the opposing party must file "a response to each numbered paragraph in the moving party's statement," and, in the case of disagreement, provide specific references to supporting evidentiary material. Local Rule 56.1(b)(3)(A). If the opposing party does not respond and controvert the moving party's statement of material facts, those facts are deemed to be admitted for the purposes of the motion. Local Rule 56.1(b)(3)(B); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

  Here, Strong did not respond to Defendants' 56.1 Statements. Therefore, for the most part, Defendants' 56.1 Statements are admitted as true for purposes of compiling this factual record and this motion. However, Defendants' Statement 22 is admitted — but interpreted in a limited fashion, according to its underlying Page 3 factual support in the evidentiary materials. Statement 22 states that "Certain items the police gave back to [Strong], but everything that had to do with guns they did not return because his FOID card was revoked." Purportedly, this "uncontested fact" is based on page 120 of the transcript of Strong's deposition testimony. Reading that statement in context makes clear that Strong testified only that the police returned "everything" (excluding firearm — related items) on a property list prepared by the police. However, Strong also states on page 122 of his deposition transcript that "From my conversation that I overheard at the police station, I believe that the police officers took the computers and whatever else they wanted to take." Strong further testifies, on page 121, that "one of my neighbors told me that they saw people running in and out of my house, that the police left the doors wide open." Therefore, the Court admits the literal text of Statement 22 as neither side contests that the police returned "certain items" to Strong. However, the Court does not read Statement 22 to imply, as an uncontested fact, that the police returned everything not firearm — related to Strong.

  II. FACTUAL BACKGROUND

  On the evening of January 14, 2001, Plaintiff Edward Strong ("Strong") noticed three men in a truck pull up and park in his driveway. The men, Pete Shimkus ("Shimkus"), Todd Osinski ("Osinski"), and Michael Gron ("Gron")(together "Repossessors") Page 4 announced that they were there to repossess his 2000 Mercedes CLK 430 automobile, parked in Strong's open garage. Strong told the Repossessors to get off his property. When one of the Repossessors responded by trying to grab Strong's car key, Strong pushed him. Shortly thereafter, the police arrived and both Strong and the Repossessors told the officers their sides of the story. The Repossessors reported to the police that Strong threatened them with a gun. According to Shimkus, Strong claimed to be a police officer during the confrontation. At that time, the police placed Strong under arrest, searched him, and escorted him to the police station. The police gave his car key to the Repossessors.

  At the police station, the Repossessors all filed aggravated assault charges against Strong. The police officers then asked Strong for his consent to search his home. When Strong refused, the police officers obtained a search warrant and proceeded to search his residence. Upon consent from the Repossessors, the police also searched the Mercedes formerly belonging to Strong.

  Strong claims that the police seized and did not return some items seized from his house, such as his three computers. The police contend that they have returned everything they took during the search, except for Strong's guns and ammunition because his Illinois FOID card was revoked. Some of Strong's neighbors report that the police left the doors to Strong's house open, and that various people ran in and out of his house with Strong's property. Page 5

  Strong was never convicted of any charge in relation to the incidents of January 14, 2001.

  III. STANDARD OF REVIEW

  Summary judgment is appropriate 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). A fact is "material" if it could affect the outcome of the suit under the governing law; a dispute is "genuine" where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

  The burden is initially upon the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In assessing the moving party's claim, the court must view all the evidence and any reasonable inferences that may be drawn from that evidence in the light most favorable to the nonmoving party. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). Once the moving party has met its burden, the nonmoving party "may not rest upon the mere allegations" contained in its pleading, but rather "must set forth specific facts showing that there is a genuine issue for trial." FED. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German Page 6 Airlines, 875 ...


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