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December 5, 2005.

BRIAN K. SIDES, Plaintiff,
CITY OF CHAMPAIGN, A Municipal Corporation; FREDRICK STAVINS, City Attorney; RHONDA OLDS, Assistant City Attorney; RANDALL CUNNINGHAM, Champaign Police Officer; JOSEPH KETCHEM, Champaign Police Officer; and COLBY OLESON, Champaign Police Officer, Defendants.

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 summary judgment.

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 intercourse.

  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 ordinance violation.*fn3


  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 [#115].


  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 Fed.R.Civ.P. 56(e).

  The first few issues before the court relate to the legitimacy of the municipal ordinance under ...

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