United States District Court, N.D. Illinois, Eastern Division
August 2, 2005.
WARREN MOCNY, Plaintiff,
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.
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.)
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
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 claims he asserted against the Village.
(See id.) That decision left only one claim against Rake: the
section 1983 false arrest claim. Thus, though plaintiff argues
extensively about the defunct claims, the Court's discussion will
be confined to the sole claim asserted against Rake that remains
in the suit.
Rake contends that he is entitled to judgment on the section
1983 false arrest claim because it is time-barred. Section 1983
claims filed in Illinois have a two-year statute of limitations.
Shropshear v. Corp. Counsel of the City of Chi., 275 F.3d 593,
594 (7th Cir. 2001). The limitations period on a section 1983
false arrest claim normally starts to run at the time of the
arrest. Gonzalez v. Entress, 133 F.3d 551, 553 (7th Cir. 1998).
Because plaintiff did not file this claim until August 25, 2003,
more than three years after the contested arrest, Rake contends
that the claim is time-barred.
The Court disagrees. An exception to the accrual-upon-arrest
rule exists when success in a section 1983 action would
"necessarily imply the invalidity of the plaintiff's actual or
potential conviction." Wiley v. City of Chicago, 361 F.3d 994,
996 (7th Cir.) (internal quotation marks and citation omitted),
cert. denied, 125 S. Ct. 61 (2004). In such cases, the claim
does "not accrue until the day on which the charge was
dismissed." Id. at 996 (internal quotation marks, alterations and citation omitted). Because plaintiff's success on
the false arrest claim would necessarily have implied that the
drug charges levied against him were invalid, his false arrest
claim did not accrue until August 28, 2001, the date the charges
against him were dropped. Mocny filed this suit less than two
years later. Thus, the false arrest claim is timely.
Even if it is timely, Rake says the arrest claim still must be
dismissed because the record establishes that he had probable
cause for the arrest. "[T]he existence of probable cause . . . is
an absolute bar to a Section 1983 claim for unlawful
arrest. . . ." Schertz v. Waupaca County, 875 F.2d 578, 582 (7th
Cir. 1989). Rake had probable cause to arrest if "the facts and
circumstances within [his] knowledge and of which [he had]
reasonably trustworthy information [were] sufficient to warrant a
prudent person in believing that [plaintiff] had committed or was
committing an offense." Kelley v. Myler, 149 F.3d 641, 646 (7th
Cir. 1998) (internal quotation marks, alterations and citation
The offenses with which plaintiff was charged were illegal
possession of a controlled substance and illegal possession of
drug paraphernalia. Plaintiff committed the former offense if he
"knowingly . . . possess[ed] a controlled or counterfeit
substance." 720 ILL. COMP. STAT. 570/402. He committed the latter
offense if he had any "equipment, products [or] materials of any
kind [that] are intended to be used unlawfully in . . .
injecting, ingesting, inhaling or otherwise introducing into the
human body cannabis or a controlled substance," which he
"knowingly possesse[d] . . . with the intent to use it in
ingesting, inhaling, or otherwise introducing cannabis or a
controlled substance into the human body." 720 ILL. COMP. STAT.
600/2, 600/3.5(a). Rake says the record establishes that he had
probable cause to arrest plaintiff for both of these crimes. The Court disagrees. The drug possession arrest was based on
Rake's discovery of the envelopes of suspected cocaine.
Plaintiff, however, denies that any such envelopes existed. Thus,
viewed favorably to plaintiff, the record does not establish that
Rake had probable cause for the drug possession arrest.
The same is true for the drug paraphernalia arrest. That arrest
was based on Rake's discovery of two small straws in a pack of
cigarettes in plaintiff's shirt pocket. Plaintiff admits that he
had the straws, but denies that they were "draw straws," i.e.
illegal drug paraphernalia, as Rake concluded. It may be that
Rake had a solid basis for drawing that conclusion. But the
record does not disclose it. In particular, there is no evidence
about: (1) how many times Rake has encountered draw straws; (2)
what, in Rake's experience, such straws are typically made of or
look like; (2) what the straws in plaintiff's possession were
made of and looked like; or (3) where, in Rake's experience, draw
straws are typically found. Absent evidence that the explains why
Rake believed these straws were illegal drug paraphernalia, we
cannot say that he had probable cause to arrest plaintiff on that
Qualified immunity shields police officers from liability for
civil damages if their conduct does not violate "clearly
established statutory or constitutional rights of which a
reasonable person would have known." Thompson v. Wagner,
319 F.3d 931, 935 (7th Cir. 2003) (internal quotation marks and
citation omitted). Rake is entitled to qualified immunity if a
reasonable officer could have believed, under the circumstances
surrounding the arrest, that a plaintiff had committed or was
committing an offense. Id. "A reasonable, but mistaken, belief
that probable cause exists is sufficient for entitlement to
qualified immunity." Id. Viewed favorably to plaintiff, the record does not establish
that a reasonable officer could have believed that plaintiff was
committing or had committed either of the offenses for which he
was arrested. Resolving all factual disputes in plaintiff's
favor, the record shows that Rake arrested plaintiff for
possession of illegal drugs and drug paraphernalia solely because
plaintiff had two small straws that Rake believed, for no
apparent reason, were used to snort cocaine. Given those facts, a
reasonable police officer could not have believed that probable
cause for arrest existed. Consequently, Rake is not entitled to
qualified immunity on the false arrest claim.
For the reasons set forth above, the Court denies Officer Kevin
Rake's motion for summary judgment [doc. no. 35] and denies in
part and dismisses as moot in part Rake's motion to strike [doc.