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Pendo v. Home Depot USA

November 13, 2007

JOSEPH YOSI PENDO, PLAINTIFF,
v.
HOME DEPOT USA, INC., DAVID BRIAN LYLE, WINSTON COATES, UNKNOWN DEFENDANT NUMBER 1, AND MICHAEL CAMERON, DEFENDANTS.



The opinion of the court was delivered by: George M. Marovich United States District Judge

Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff Joseph Yosi Pendo ("Pendo") filed an amended complaint against defendants Home Depot USA, Inc. ("Home Depot"), David Brian Lyle ("Lyle"), Winston Coates ("Coates"), unknown defendant number one*fn1 and Michael Cameron ("Cameron"). Before the Court is defendant Cameron's motion for summary judgment. For reasons set forth below, the Court grants the motion with respect to plaintiff's § 1983 claim against Cameron and dismisses without prejudice plaintiff's remaining claims.

I. Background

Unless otherwise noted, the following facts are undisputed (as to the parties to this motion).*fn2

On June 17, 2005, plaintiff Pendo experienced a frustrating situation while shopping at a Home Depot store in Evanston, Illinois. Before long, Pendo had been arrested.

Pendo's frustration stemmed from the fact that the Home Depot store had difficulty locating the proper price for one of the three items (a two-foot length of chain, a rope and a hook) he took to the check-out counter. When the cashier scanned the chain, it registered at a cost of $59.00. Pendo told the cashier that the proper price was about $1.05. In an attempt to clarify the proper price, the cashier called over the public address system for an employee from the Hardware Department. Minutes passed. The cashier called over the cashier manager, who, again, called over the public address system for an employee from the Hardware Department. Another five to ten minutes passed. Pendo asked the cashier manager to go to the Hardware Department, and the cashier manager said he could not. Another five to ten minutes passed. The cashier manager called over the public address system for the store manager. Another five to ten minutes passed. Pendo asked the cashier how much the items would cost, and he was told between $8.00 and $9.00. Pendo gave the cashier $9.00 along with a note that contained his name, address and telephone number. Pendo picked up the items and exited the store.

Once he had left the store, Pendo was accosted by Home Depot security officers, including defendant Coates. Plaintiff has put forth undisputed evidence (in the form of his own affidavit) that the Home Depot security officers grabbed Pendo by his hair, slammed him to the ground, slammed him into a car and handcuffed him.

It is also undisputed that on June 17, 2005 at 7:53 p.m., defendant Cameron, an Evanston Police Officer, responded to a call for service at the Home Depot. When he arrived at the Home Depot, Officer Cameron met with defendant Coates. Coates informed Officer Cameron that Pendo was waiting to pay for items when he became impatient and left the store with the items. Coates told Officer Cameron that Pendo had put $9.00 on the counter before exiting the store but that the cost of the goods he removed was $10.94. Coates also told Officer Cameron that when Coates asked Pendo for a receipt, he was unable to provide one.

Officer Cameron then went to the Home Depot security office, where Pendo was being detained by Home Depot. Pendo told Officer Cameron he had paid $9.00 for the items and that he had told the cashier to call him if he needed to pay more. Pendo also told Officer Cameron that he had been injured by Home Depot's employees. Officer Cameron learned from Home Depot employees that Home Depot wanted to press charges of retail theft. Ultimately, Coates signed a misdemeanor complaint against Pendo for retail theft.

Officer Cameron arrested Pendo and took him to the Evanston police station for processing. After processing, Officer Cameron called the Evanston paramedics to examine Pendo.

Pendo filed suit in this Court. The Court has jurisdiction over this case because Pendo brings a claim against Cameron under 42 U.S.C. § 1983. In that claim, Pendo asserts that he was arrested unlawfully in violation of the Fourth Amendment to the United States Constitution. Pendo's other claims are state-law claims. Cameron asserts a qualified immunity defense and moves for summary judgment. No other defendant has (yet) moved for summary judgment.

II. Summary Judgment Standard

Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). When making such a determination, the Court must construe the evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is appropriate, however, when the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "A genuine issue of ...


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