The opinion of the court was delivered by: HAROLD BAKER, District Judge
The plaintiff, Brian K. Sides ("Sides"), filed this action on
July 10, 2003. He alleges that the City of Champaign, Illinois
("the City") and several of its employees have violated his
constitutional rights and committed acts in violation of state
law. Sides and the defendants have filed cross-motions for
For the following reasons, the defendants' motion for summary
judgment is granted in its entirety. The plaintiff's motion for
summary judgment is denied.
On the afternoon of July 10, 2001, Sides and a female passenger
were inside Sides' car, which was parked behind the Champaign
Target store. Target security personnel monitoring surveillance
cameras observed, and videotaped, through the windshield of the
car, Sides engaging in sexual activity, or simulated sexual
activity, with his female passenger. A Target employee contacted
METCAD, and Champaign police officers responded to the call. By
the time police officers arrived, Sides had driven to the Borders
parking lot across the street from the Target store. Defendant
Randall Cunningham ("Cunningham"), a Champaign police officer,
arrived at the Borders parking lot, approached the car, and
directed Sides to step out of the vehicle. Defendant Colby Oleson
("Oleson"), also a Champaign police officer, approached the passenger side of the vehicle and questioned Sides'
passenger.*fn1 Sides was released after Cunningham issued
him a notice to appear in court on an ordinance violation for
public indecency by engaging in the specific offense of sexual
Sides alleges that during his detention (which he claims was
unreasonable) the officers (1) unreasonably searched him and
seized his wallet; (2) committed the common law torts of assault
and battery, trespass to chattel and invasion of privacy; and (3)
were deliberately indifferent to Sides' physical and medical
needs when they conducted the hour-long interrogation on that hot
July afternoon. He also alleges that officer Dale Rawdin defamed
him when he yelled in the Borders parking lot that Sides had had
unconsensual sex with a minor.*fn2 Sides also alleges that
the officers violated the Equal Protection Clause of the
United States Constitution by issuing a citation only to him and not to
his female passenger. Sides alleges that the City, through
defendants Fredrick Stavins ("Stavins") and Rhonda Olds ("Olds"),
prosecuted him for the ordinance violation contrary to the ex
post facto provision of the United States Constitution. He also
claims that Stavins and Olds maliciously prosecuted him by
committing improprieties during the underlying trial of the
Five motions are pending: a motion to bar the plaintiff's
expert [#76]; the defendants' motion for summary judgment [#81];
Sides' motion for summary judgment [#83]; an emergency motion to
stay proceedings for Red Cross deployment [#114]; and a motion to
stay the case pending state court proceedings [#115].
The emergency motion to stay proceedings for Red Cross
deployment is accompanied by Sides' affidavit. Sides sought to
stay the proceedings for a period of three weeks in October while
he provided volunteer disaster assistance for the Red Cross in
Washington, D.C. Sides has not sought to extend his motion;
therefore, the motion to stay proceedings [#114] is moot.
The basis for the motion to stay proceedings pending state
court proceedings [#115] is Sides' pending appeal of a state
court ruling that allowed the defendants to remove from the Champaign County Circuit Clerk's files the original videotape of
his activities next to the Target loading dock and in the
Border's parking lot. The defendants submit the videotape as an
exhibit in support of their motion for summary judgment. The
defendants have provided Sides with a copy of the videotape.
In support of their argument, Sides and the defendants cite
Green v. Benden, 281 F.3d 661, 666 (7th Cir. 2002). "The
Younger abstention doctrine requires federal courts to abstain
from enjoining ongoing state proceedings that are (1) judicial in
nature, (2) implicate important state interests, and (3) offer an
adequate opportunity for review of constitutional claims, (4) so
long as no extraordinary circumstances exist which would make
abstention inappropriate." Green, 281 F.3d at 666.
In his appeal, Sides argues that the exhibit's chain of custody
has been destroyed and the defendants' unfettered access to the
original videotape has left it vulnerable to tampering.
Therefore, he seeks an order from the state appellate court for
the defendants to return the tape to the Circuit Clerk, refile it
as part of the ordinance violation case, have the videotape
verified in that court, and copied for use in this case. Sides
states that he does not seek to limit this court's review of the
tape but only seeks to protect the proceedings by forcing proper
procedure upon the defendants. He does not argue that the
videotape has been altered in any way; he merely challenges the
procedure used by the defendants to provide this exhibit in
support of their motion.
Even if this court were to agree with Sides that the first
three elements of Younger abstention are met, he cannot meet
the fourth element of the test. The circumstances of this case
make abstention inappropriate: proceeding to trial in this case
will not interfere in any way with the state appellate court's
determination of the narrow issue on appeal. The videotape is
relevant to the issues before this court, and Sides does not
contend that the videotape has been altered in any way.
Furthermore, the appellate court, upholding Sides' conviction,
described some of the content of the videotape and further noted
that Sides had not objected to the videotape's chain of custody.
City of Champaign v. Sides, 810 N.E.2d 287, 296 (Ill.App.Ct.
2004). Of course, the chain of custody at issue then was
different from the chain of custody now at issue. However, as
discussed more fully below, this court has relied on the content
of the videotape only insofar as it is consistent with the images
described by the state appellate court when the chain of custody
was not at issue. See, e.g., Sides, 810 N.E.2d at 295.
Proceeding with this case will in no way interfere with the
appeal of the circuit court's ruling on the defendants'
possession of the original videotape. Therefore, the court denies
Sides' motion to stay proceedings pending state court proceedings
Summary judgment is granted "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). Summary
judgment is proper when "a party . . . fails to make a showing sufficient to establish the existence of an element essential to
that party's case[.]" Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The court must consider the evidence in the light
most favorable to the party opposing summary judgment. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The burden of
establishing that no genuine issue of material fact exists rests
with the movant. Jakubiec v. Cities Serv. Co., 844 F.2d 470,
473 (7th Cir. 1988). Once the movant has done so, the party
opposing the motion bears the burden to respond, not simply by
resting on the pleadings, but by affirmatively demonstrating that
there is a genuine issue of material fact for trial. See
Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322-324.
In order to be a "genuine" issue, there must be more than "some
metaphysical doubt as to the material facts." Matsushita Elec.
Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
"Summary judgment is not a dress rehearsal or practice run; it is
the put up or shut up moment in a lawsuit, when a party must
show what evidence it has that would convince a trier of fact
to accept its version of the events." Hammel v. Eau Galle Cheese
Factory, 407 F.3d 852, 859 (7th Cir. 2005) (emphasis added). "If
[the non-movant] does not [meet his burden], summary judgment, if
appropriate, shall be entered against [the non-movant]." See
The first few issues before the court relate to the legitimacy
of the municipal ordinance under ...