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Kay v. County of Cook

August 29, 2006

IAN KAY, PLAINTIFF,
v.
COUNTY OF COOK, ILLINOIS, COOK COUNTY SHERIFF MICHAEL SHEAHAN, COOK COUNTY SHERIFF DEPUTY RAYMOND GREVE, OTHER UNKNOWN MEMBERS OF THE COOK COUNTY SHERIFF'S DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Ian Kay filed a six-count Complaint based on the December 27, 2004 shooting of his dog and the temporary impounding of his other dog. Specifically, Kay alleges violations of his Fourth and Fourteenth Amendment rights. See 42 U.S.C. § 1983.*fn1 Kay also brings state law claims of trespass, conversion, respondeat superior, and indemnification. Defendants Cook County, Cook County Sheriff Michael Sheahan, Cook County Sheriff Deputy Raymond Greve, and other unknown members of the Cook County Sheriff's Department filed the present Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the Court grants in part and denies in part Defendants' summary judgment motion.

BACKGROUND

On December 27, 2004, Deputy Raymond Greve was assigned to deliver a summons to a person named Alar Piir who was listed at the address of 217 W. Palatine Road, Unit B, Palatine, Illinois. (R. 34-1, Defs.' Rule 56.1 Stmt. Facts ¶¶ 1, 20.) At that time, however, only Ian Kay resided at this address. (Id. ¶ 37.) Around 8:15 a.m. on December 27, 2004, Deputy Greve arrived at the 217 W. Palatine Road location. (Id. ¶ 2.) Based on a red car parked near the location, Deputy Greve testified that he thought someone may be at home. (Id. ¶¶ 3, 4.) The parties dispute whether the storm door and the steel entry door to Unit B were open at that time, although it is not disputed that the doors were unlocked and that Deputy Greve knocked on the door several times. (Id. ¶ 5; R. 41-1, Pl.'s Rule 56.1 Stmt. Facts ¶¶ 45, 46, 56.) At his deposition, Deputy Greve testified that he could see through the window and that there was a light on upstairs inside of the residence. (Defs' Stmt. Facts ¶ 6.) While looking through the window, Deputy Greve also saw a white dog jumping up and down.*fn2 (Id. ¶ 7; Pl.'s Stmt. Facts ¶ 56.)

Further, Deputy Greve testified that he radioed the dispatcher explaining that the door was open, he knocked on the door, and no one responded. (Defs' Stmt. Facts ¶ 8.) He also told the dispatcher that he was going to check on the well-being of whoever was inside. (Id.) A well-being check is a check that is done to ensure that there is no crime scene, as well as a check for sick or injured people who cannot call out for help. (Id. ¶ 9.) At his deposition, Deputy Greve testified that he thought there might be someone who was in trouble inside of Unit B. (Id. ¶ 10.)

Deputy Greve further testified that thereafter a large brown dog pushed open the storm door and grabbed him by the sleeve. (Id. ¶ 11; Pl.'s Stmt. Facts ¶ 60.) Deputy Greve also testified that he shoved the dog back with his foot, after which the dog then lunged at him. (Defs' Stmt. Facts ¶¶ 12, 13.) Deputy Greve then drew his weapon and shot the dog. (Id. ¶ 13.) The dog stepped back and dropped to the floor in the doorway having been struck by the single bullet in its mouth. (Id. ¶ 15.) The dog then died. (Id. ¶ 16.) Deputy Greve no longer saw the white dog. (Id. ¶ 18.) Animal Care and Control was called to remove the dead brown dog. (Id.)

When Animal Warden Frank Pierson arrived at the residence, he and Deputy Greve entered the residence together. (Id. ¶ 23.) It was Pierson's intention to "dart" the white dog and remove it once it was asleep. (Id. ¶ 22.) Accordingly, Pierson shot the white dog with a dart while it was in the basement of the residence and the dog ran to the second floor before succumbing to the anesthesia. (Id. ¶ 27; Pl.'s Stmt. Facts ¶¶ 65, 66.) Pierson then removed the white dog and took it to the Animal Welfare League. (Defs' Stmt. Facts ¶ 30.) Animal Control also removed the dead dog. (Id. ¶ 31.)

When Kay returned from work that evening, the doors to his residence were locked and he saw blood and bloody footprints in his living room. (Pl.'s Stmt. Facts ¶¶ 47, 49.) When he called the Palatine Police Department, an officer told him to call the Cook County Sheriff's Department. (Id. ¶ 51.) Kay then went to the Cook County Sheriff's Department in Skokie, Illinois and learned for the first time that someone may have shot one of his dogs. (Id. ¶ 52.) The next day, Kay eventually found his dogs after calling various animal shelters and he retrieved his white dog from the Animal Welfare League. (Id. ¶ 53, Defs' Stmt. Facts ¶ 32.) At no time did Deputy Greve attempt to contact the owner of the residence or leave information regarding what transpired at the residence. (Pl.'s Stmt. Facts ¶¶ 69, 71.)

SUMMARY JUDGMENT STANDARD

Summary judgment is proper when "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). A genuine issue of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, the Court construes the facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. The existence of a factual dispute is not sufficient to defeat a summary judgment motion, instead the non-moving party must present definite, competent evidence to rebut the summary judgment motion. Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004).

ANALYSIS

I. Fourth Amendment Claim

A. Seizure of Dogs

In Count I of his Complaint, Kay contends that the shooting of his brown dog and the impounding of his white dog were unreasonable seizures ...


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