The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Warren Mocny ("Mocny") has sued Officer Kevin Rake and the
Village of Justice ("Village") under 42 U.S.C. § ("section") 1983
for their alleged violations of his Fourth Amendment rights.
Before the Court are Rake's Federal Rule of Civil Procedure
("Rule") 56 motion for summary judgment and his motion to strike
portions of plaintiff's submissions. For the reasons set forth
below, the motion to strike is denied in part and dismissed as
moot in part and the motion for summary judgment is denied.
Mocny is a resident of Chicago Ridge, Illinois. (Def.'s LR
56.1(a)(3) ¶ 6.) Rake is a Village police officer and was so
employed at the time of the incidents in question. (Id. ¶ 7.)
On April 8, 2000, Rake stopped the car in which Mocny was a
passenger. (Id. ¶ 10.) Though Mocny disputes it, Rake claims
that, as he approached the car, he saw two objects being thrown
out of the passenger window. (Id. ¶ 13; Pl.'s LR 56.1(b)(3)(a)
Stmt. ¶¶ 13, 18.) Rake says he retrieved the objects, which were two small envelopes
that contained what appeared to be cocaine. (Def.'s LR 56.1(a)(3)
After finding the suspected cocaine, Rake searched Mocny.
(Id. ¶ 17.) Rake says he found two "draw straws," small straws
commonly used to snort cocaine, in a pack of cigarettes in
Mocny's shirt pocket. (Id.) Mocny denies that the straws found
in his cigarette pack are illegal drug paraphernalia. (Pl.'s LR
56.1(b)(3)(a) Stmt. ¶¶ 17, 18.) Rake arrested Mocny and charged
him with unlawful possession of a controlled substance and
unlawful possession of drug paraphernalia. (Def.'s LR 56.1(a)(3)
On August 28, 2001, a state court judge granted Mocny's motion
to quash the arrest and suppress the evidence Rake had found.
(Id. ¶¶ 24, 30.) As a result of the court's ruling, the State's
Attorney decided to nolle prosequi the criminal prosecution.
(Id. ¶ 31.)
Rake asks the Court to strike paragraphs 11, 13-16, 27-28 and
30 of plaintiff's LR 56.1(b)(3)(A) Statement. Because the Court
did not use any of the facts asserted in those paragraphs in
resolving this motion, Rake's motion to strike them is dismissed
Paragraphs 13 and 14, however, go to the heart of the motion.
In those paragraphs, plaintiff disputes Rake's assertions that he
saw two objects being thrown from the passenger window of the car
and that he retreived the objects, which were small envelopes,
opened them and concluded that they contained cocaine.
Plaintiff's denials should be stricken, Rake says, because he is
not competent to testify as to what Rake observed and believed. The Court disagrees. Plaintiff says Rake could not have seen
two objects thrown from the passenger window of the car because
plaintiff, who was in the passenger seat of the car, did not
throw anything out of the window. If that is true, and for the
purposes of this motion we must assume that it is, then
plaintiff's denial of paragraphs 13 and 14 of Rake's LR 56.1(a)
Statement are proper. Rake's motion to strike those paragraphs
from plaintiff's LR 56.1(b)(3)(A) Statement is, therefore,
Rake also asks us to strike paragraphs 5-7, 9-10, 13, 15-17,
19-20, 22-23, 27, 36-38 and 41-43 of Rake's LR 56.1(b)(3)(B)
Statement because they are not properly supported or are
irrelevant to the case. Paragraphs 5-7 assert facts that Rake
asserts or assumes in his own papers. Rake admits the facts
plaintiff asserts in paragraphs 19 and 41-43. And, paragraphs
9-10, 13, 15-17, 20, 22-23, 27, 36-38 were not considered by the
Court. Thus, Rake's motion to strike these statements is
dismissed as moot.
Motion for Summary Judgment
To prevail on a summary judgment motion, "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, [must] 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). At this stage, we do not weigh evidence or determine
the truth of the matters asserted. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). We view all evidence and draw
all inferences in favor of the non-moving party. Michas v.
Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir.
2000). Summary judgment is appropriate only when the record as a
whole establishes that no reasonable jury could find for the
non-moving party. Id. Before we turn to Rake's motion, we need to say a word about
the procedural history of his case. On July 29, 2004, the Court
granted, in part, defendants' motion to dismiss plaintiff's
amended complaint. (See 7/29/04 Mem. Op. & Order.) On that
date, the Court dismissed with prejudice the section 1983
unreasonable search, malicious prosecution and due process claims
Mocny asserted against Rake, as well as the corresponding
state-law indemnification ...