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Golliher v. Jackson County Illinois Sheriff's Dep't

September 29, 2006


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



Before the Court is a Report and Recommendation ("R&R") (Doc. 65), issued by Magistrate Judge Proud, pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (c), recommending that Defendants' Motions for Summary Judgment (Docs. 39 & 51) be granted in part and denied in part. Objections to the R&R were timely filed by Defendants (Docs. 66 & 67) and Plaintiff (Doc. 68). Plaintiff brings his Complaint pursuant to 42 U.S.C. § 1983, for alleged deprivations of his constitutional rights. Upon the threshold review, performed pursuant to 28 U.S.C. § 1915A, the Court identified Plaintiff's claims (Doc. 10).

The Court found Plaintiff stated a claim for property damage due to excessive force of entry - a violation of his Fourth Amendment rights - when Defendants conducted an alleged unlawful search of his residence without a warrant or proper consent. Plaintiff alleged that during this unlawful search, Defendants unreasonably damaged his property in an amount over $10,000 (Id. at 2). This claim was not dismissed by the Court's threshold analysis. However, the Court denied Plaintiff's request for a protective order that all Defendants be taken into custody, finding such order was not warranted (Id. at 4). Additionally, the Court denied without prejudice Plaintiff's request for release from custody, stating that such claim should be brought in a writ of habeas corpus after Plaintiff has exhausted his state court remedies (Id. at 2). Further, the Court denied without prejudice Plaintiff's request for damages for wrongful incarceration, finding that such claim is only properly filed upon "reversal, expungement, or invalidation of his conviction" (Id. at 3).

Therefore, the Court takes this opportunity to clarify that the only pending claim in this action is Plaintiff's claim for property damage, which he claims was proximately caused by excessive force of entry during Defendants' unlawful search of his residence, subsequent to his arrest. Accordingly, the issue of whether Defendants reasonably relied upon the consent of a third-party (Plaintiff's wife) to search his residence without a warrant is not relevant to determine whether summary judgment should be granted in favor of Defendants regarding Plaintiff's property damage claim -- despite the fact that the parties' briefings and the R&R seem to construe the issue of the validity of the search as a claim separate and apart from the property damage claim. The issue of Defendants' reasonable reliance, in and of itself, may become relevant at a later time, should Plaintiff have the opportunity to re-file his wrongful incarceration claim and/or a writ of habeas corpus. Therefore, even though both sides have objected to the issue of whether Defendants' reliance upon third-party consent to search was reasonable, it is an unnecessary inquiry which does not bear significance on the Court's determination of whether there exists a genuine dispute of material fact regarding whether Defendants caused the alleged property damage to Plaintiff's residence.


Plaintiff was arrested on March 10, 2004. That same day, Defendants contacted Plaintiff's wife, Cheryl Golliher, at work, explaining that they had arrested Plaintiff and asking if they could search their marital residence. She gave consent to search the residence. However, she did not tell Defendants that she and Plaintiff were currently separated (although still married), and that she was staying with her parents. Defendants searched the residence. Plaintiff alleges that they kicked in the door using excessive force of entry, thereby damaging his property, causing damage to the door jam and lock, which subsequently lead to several items within the residence being stolen. Plaintiff is currently incarcerated and in the custody of the United States Bureau of Prisons. At the time of the events giving rise to his claims, he was a pretrial detainee being held in the Williamson County Jail. Evidence through party affidavits shows the search was conducted by a majority of Defendants: the Jackson County Sheriff's Department Detective Ryan Sykes, Detective Mike Ryan and Lieutenant Michael Teas, as well as Grand Tower Officer Fred Hunziker and Deputy Kenneth Akins. Defendants Dan Stone and Robert Burns did not participate in the search.



1. De Novo Review

Because Plaintiff filed timely objections to the R&R, this Court must undertake de novo review of the objected-to portions of the Report. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject, or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.

2. Summary Judgment

Summary judgment is proper where the pleadings and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Oats v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex, 477 U.S. at 323). In reviewing a summary judgment motion, the Court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. Celex Group, Inc. v. Executive Gallery, Inc., 877 F. Supp. 1114, 1124 (N.D. Ill. 1995). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

In response to a motion for summary judgment, the non-movant may not simply rest on the allegations in his pleadings. Rather, the non-movant must show through specific evidence that an issue of fact remains on matters for which he or she bears the burden of proof at trial. Walker v. Shansky, 28 F.3d 666, 670-71 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex, 477 U.S. at 324). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted); accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). "[P]laintiff's own uncorroborated testimony is insufficient to defeat ...

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