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Dick v. Carpenter

November 29, 2006

STEVEN DICK, PLAINTIFF,
v.
GEORGE CARPENTER, MICHAEL GERLITZ AND THE VILLAGE OF WILMETTE, DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiff Steven Dick ("Dick") has filed a Second Amended Complaint alleging seven instances in which Officer George Carpenter ("Carpenter"), Officer Michael Gerlitz ("Gerlitz"), and the Village of Wilmette ("Wilmette") deprived him of his constitutional rights, in violation of 42 U.S.C. § 1983, during his arrest and subsequent prosecution for possession of controlled substances with intent to deliver. The Circuit Court of Cook County eventually overturned Dick's conviction. Afterwards he filed this action. Gerlitz, Carpenter and the Village of Wilmette have all filed motions for summary judgment. For the following reasons, Defendants' motions are granted in part and denied in part.

FACTS

George Carpenter and Michael Gerlitz were officers in the Wilmette police force. In December of 1982, they enlisted the aid of Jeffrey Donahue ("Donahue") as a police informant. On January 17, 1983, Donahue informed the officers that Dick would be driving along a certain route and that the police would find a brown paper bag containing LSD and methamphetamines in Dick's jeep. At the time, Dick already had a criminal record due to his prior arrest for possession of marijuana. Several officers, including Carpenter, Gerlitz and agent Caesar Tovar of the Metropolitan Enforcement Group ("MEG") stopped the jeep along the route that Donahue described. When they approached the vehicle, a water pipe was visible on the vehicle floor. After searching the jeep, they found the drugs Donahue described in both the grocery bag, as well as additional drugs in Dick's jacket pocket. All three men in the vehicle were taken into custody. Donahue and the other person riding in the vehicle were released without charges. Dick was charged and later convicted of possession of LSD and methamphetamines with intent to deliver.

While in custody, Dick denied any knowledge of the drugs and claims that he told the officers that the drugs belonged to Donahue, who also had a large quantity of those types of drugs at his house. At some point that same day, Donahue had surrendered a large quantity of LSD and methamphetamines. Neither the police nor the prosecution informed Dick's criminal attorney about the drugs confiscated from Donahue.

After giving the police information about several people, Donahue stated that he feared for his personal safety and decided to move to Captiva Island, Florida. He claims he lived in the backseat of a Buick from February through May of 1983. Donahue did not have a personal phone and only received mail by asking for packages with his name at the local post office.

Based on his conversations with the officers involved, the prosecutor told Dick's attorney that there was a reliable informant but that the informant was not an occurrence witness. The contact information for Donahue that Dick's attorney received stated that Donahue's last known address was Captiva Island and that he was working at a hotel on the island. On November 14, 1983, the police department issued a supplemental police report indicating the name of Donahue's employer and that he was living with a friend in Jacksonville, Florida. Dick claims his attorney looked vigorously for Donahue but was unable to find him. However, he also admits that his attorney thought it would be a waste of time to hire an investigator to find Donahue. According to Dick, the attorney believed that the officers were hiding Donahue, but Dick has no support for that contention. Regardless of the actual reason, Dick's attorney did not pursue Donahue and Donahue did not testify at the trial. When the Circuit Court overturned Dick's conviction, it also found that Donahue was a paid informant and an occurrence witness, whose testimony would have affected the outcome of the case. Once he was released, Dick filed this suit against the people responsible for his imprisonment, alleging violations of his Constitutional rights under § 1983.

ANALYSIS

Summary Judgment

Defendants now move for summary judgment pursuant to Fed. R. Civ. P. 56(c).*fn1 Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A genuine issue of fact exists only when, based on the record as a whole, a reasonable jury could find for the non-movant. Pipitone v. United States, 180 F.3d 859, 861 (7th Cir. 1999). In determining whether a genuine issue of material facts exists, I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

However, I may not rely upon inadmissible hearsay to oppose the motion. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). If there has been adequate time for discovery and the party bearing the burden of proof has failed to establish an essential element of its case, I must grant summary judgment. Celotex, 477 U.S. at 322.

The Defendant Officers

In order to prove a claim under § 1983, Dick must establish: "1) [he] held a constitutionally protected right; 2) he was deprived of that right in violation of the Constitution; 3) the defendants intentionally caused the deprivation; and 4) the defendants acted under color of state law." Schertz v. Waupaca County, 875 F.2d 578, 581 (7th Cir. 1989). The parties agree that at the time of the arrest Carpenter and Gerlitz worked in the Wilmette Police Department and that their actions in the course of police duty are the subject of this suit, so there is no dispute that they were acting under color of law for the purposes ...


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