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MOCNY v. RAKE

August 2, 2005.

WARREN MOCNY, Plaintiff,
v.
OFFICER KEVIN RAKE and the VILLAGE OF JUSTICE, Defendants.



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.

Facts*fn1

  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) ¶ 14.)

  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) ¶ 20.)

  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.)

  Discussion

  Motion to Strike

  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 as moot.

  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, denied.

  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 ...


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