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Foulks v. Emery

May 23, 2006

ARTHUR FOULKS AND PERRY FOULKS, A MINOR CHILD BY HIS FATHER AND NEXT FRIEND, ARTHUR FOULKS, PLAINTIFFS,
v.
CECIL TODD EMERY, MICKEY RODGERS, INDIVIDUALLY AND AS AGENTS OF THE DEPARTMENT OF LAW ENFORCEMENT OF THE VILLAGE OF PULASKI, A MUNICIPAL CORPORATION, RANDY KERN, INDIVIDUALLY AND AS AN AGENT OF PULASKI COUNTY, ILLINOIS, A MUNICIPAL CORPORATION, DEPUTY JOHN DOE, AS ONE OR MORE OTHER AGENTS OF THE PULASKI COUNTY SHERIFF'S DEPARTMENT, WHOSE NAMES ARE UNKNOWN AT THE COMMENCEMENT OF THIS SUIT, BUT WHOSE NAMES WILL BE ADDED UPON RECEIPT OF DISCOVERY DISCLOSURES, MASTER SGT. JON E. WRIGHT, SGT. FNU GRAMMAR, TROOPER FNU TURNER, INDIVIDUALLY AND AS AGENTS OF THE DEPARTMENT OF LAW ENFORCEMENT, OF THE STATE OF ILLINOIS, AND THE VILLAGE OF PULASKI, A MUNICIPAL CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Foreman, District Judge

MEMORANDUM AND ORDER

Before the Court are motions for summary judgment filed by defendants Jon Wright, Daryl Grammar, and Tammy Turner, (Doc. 68), by Mickey Rodgers, Cecil Todd Emery, and the Village of Pulaski, (Doc. 69), and by Randy Kern and Pulaski County (Doc. 71). Plaintiffs have filed responses, (Docs. 83,84), and defendants have filed replies. (Docs. 86,87).

I. Background

The following facts are not in dispute except where noted. On June 6, 2003, an arrest warrant was issued for Jamel Foulks in Pulaski County. (Doc. 68, Exh. B). On June 9, 2003, Village of Pulaski Officer Mickey Rodgers observed Jamel Foulks standing outside of his residence at 1000 Birch Street, Pulaski, Illinois. (Doc. 70, Exh. A, Rodgers Affidavit ¶3; Doc. 68, Exh. A, p.4). Officer Rodgers approached Jamel stating that he had a warrant for Jamel's arrest. (Doc. 70, Exh. A, Rodgers Affidavit ¶¶5,6). Jamel retreated, and despite Officer Rodger's orders to stop, Jamel ignored him and went inside the house. (Doc. 70, Exh. A, Rodgers Affidavit ¶¶5-9).

After Jamel went into the house, Officer Rodgers spoke to Jamel's brother, plaintiff Perry Foulks. (Doc. 70, Exh. A, Rodgers Affidavit ¶11). Officer Rodgers told Perry that he had a warrant for Jamel's arrest, and asked Perry to go into the house and tell Jamel to come out. (Doc. 70, Exh. A, Rodgers Affidavit ¶¶12; Doc. 68, Exh. A, p.9).

Perry went inside the house, and told his father, plaintiff Arthur Foulks, that Officer Rodgers was looking for Jamel. (Doc. 71, Exh. B, pp.5-6, Perry Foulks Dep., Tr.20-24). Arthur asked Perry if Jamel was home, Perry responded no, and Arthur asked Perry to search the house to make sure Jamel was not inside. (Doc. 71, Exh. B, pp.5-6, Perry Foulks Dep., Tr.20-24). At some point, Arthur called his attorney, Michael P. O'Shea. (Doc. 71, Exh. B, p.8, Perry Foulks Dep., Tr.29). Attorney O'Shea (or his office) gave Arthur a telephone number which he wrote down and gave to Perry to give to the police officers. (Doc. 71, Exh. B, p.8, Perry Foulks Dep., Tr.29-30).

Meanwhile, Officer Rodgers radioed the Village of Pulaski Sheriff, Cecil Todd Emery, and the Pulaski County Sheriff's Department for assistance. (Doc. 70, Exh. A, Rodgers Affidavit ¶14; Exh. E, Emery Affidavit ¶3). Sheriff Emery arrived, and thereafter, plaintiff Perry Foulks exited the house, and according to defendants, said that Jamel was not coming out. (Doc. 70, Exh. A, Rodgers Affidavit ¶¶15,16; Exh. E, Emery Affidavit ¶5). Perry denies saying that Jamel would not come out, and states that he simply told Officer Rodgers that Jamel was not at home. (Doc. 71, Exh. B, p.5, Perry Foulks Dep., Tr.20).

While at another location, Illinois State Trooper Master Sergeant Jon Wright received a request from Pulaski County for assistance in executing the warrant. (Doc. 68, Exh. C, Wright Affidavit ¶2). Master Sergeant Wright dispatched Illinois State Troopers Sergeant Daryl Grammar and Tammy Turner to the residence at 1000 Birch Street. (Doc. 68, Exh. C, Wright Affidavit ¶3; Grammar Affidavit ¶2; Turner Affidavit ¶2; Exh. A, p.4). Shortly thereafter, Troopers Grammar and Turner arrived at the scene, as did Tony Neely of the Pulaski County Sheriff's Department. (Doc. 70, Exh. A, Rodgers Affidavit ¶17).

Shortly thereafter, Trooper Grammar contacted Master Sergeant Wright, a trained negotiator, and asked him to proceed to 1000 Birch Street to negotiate with Perry and Jamel in an attempt to get Jamel to come out of the residence. (Doc. 68, Exh. C, Wright Affidavit ¶4; Grammar Affidavit ¶4; Turner Affidavit ¶4; Doc. 70, Exh. E, Emery Affidavit ¶8). Upon arriving at the residence, Master Sergeant Wright spoke with Trooper Grammar and Officer Rodgers. (Doc. 68, Exh. C, Wright Affidavit ¶5; Doc. 70 Exh. A, Rodgers Affidavit ¶4). Officer Rodgers told Wright that he had just observed Jamel Foulks go into the residence.

(Doc. 68, Exh. C, Wright Affidavit ¶6). Sergeant Grammar informed Wright that Jamel Foulks had previously been arrested on a weapons charge on two previous occasions. (Doc. 68, Exh. C, Wright Affidavit ¶7).

According to defendants, Master Sergeant Wright then knocked on the front door of the residence and advised plaintiff, Perry Foulks, that the officers had an arrest warrant for his brother, Jamel Foulks. (Doc. 68, Exh. C, Wright Affidavit ¶4; Grammar Affidavit ¶5; Doc. 70, Exh. E, Emery Affidavit ¶11). According to plaintiff, it was Officer Rodgers who told him that they had a warrant for his brother's arrest. (Doc. 68, Exh. A, p.9). Plaintiff Perry Foulks told Wright that he could not come in unless he had a search warrant (Doc. 71, Exh. B, p.7, Perry Foulks Dep., Tr. 25). Seeing an open window, Wright advised Perry that he would come in through the window. (Doc. 68, Exh. C, Wright Affidavit ¶12). Perry did not open the door and Wright entered the residence through the window. (Doc. 68, Exh. C, Wright Affidavit ¶13; Grammar Affidavit ¶¶6,7; Turner Affidavit 7). Trooper Turner, Emery, Rodgers, and Kern then entered the residence through the front door after Officer Rodgers kicked it open. (Doc. 68, Exh. C, Wright Affidavit ¶15; Turner Affidavit ¶8). Although plaintiffs' complaint alleges that Emery gained entry by "kicking it open, damaging the frame of the door," (Doc. 36, p. 5, ¶30 ), at his deposition, plaintiff Perry Foulks testified that the officers "just opened it and came in." (Doc. 71, Exh. B. P. 9, Perry Foulks Dep., Tr. 35).

Officers Wright, Turner, Emery, Rodgers and Kern searched the residence but could not locate Jamel. (Doc. 68, Exh. C, Wright Affidavit ¶¶15,16; Turner Affidavit ¶9).

Thereafter, according to defendants, Officer Emery and Perry got into some sort of altercation and Emery arrested Perry by placing him in handcuffs. (Doc. 70, Exh. E, Emery Affidavit, ¶¶17-21; Exh. A, Rodgers Affidavit, ¶¶28-30). Perry Foulks denies defendants' version of events, but does admit that he pushed Officer Emery's hand away as Emery was attempting to arrest and handcuff him. (Doc. 71, Exh. B, pp.10-11,20, Perry Foulks Dep., Tr. 37-38,40-43,76-77).

Officer Emery arrested Perry, and Perry was later charged with aggravated battery, obstructing justice, resisting a police officer, and aggravated assault. Perry pleaded guilty to aggravated battery, resisting a police officer and aggravated assault. The obstructing justice charge was dismissed (Doc. 83, Exh. A).

Based on the above events, plaintiffs have sued the individual defendants, (Emery, Rodgers, Kern, Wright, Grammar, Turner, and the unnamed defendants), for violating their constitutional rights under 42 U.S.C. ยง 1983, (Count I), and under Illinois law for illegal imprisonment, illegal search of residence, false arrest, and malicious prosecution (Count II). Plaintiffs have sued the Village of Pulaski and Pulaski County for allegedly having policies and/or customs that ...


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