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Pesek v. Marzullo

July 22, 2008

WAYNE PESEK, PLAINTIFF,
v.
FRANK MARZULLO, RUSSELL MARZULLO, RUSSELL MARZULLO, JR., JERRY MARZULLO, MICHAEL FELLOWS, CHARLES BAUGH, MICHAEL VOKAC, BRIAN MARQUARDT AND CITY OF BERWYN, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Wayne Pesek filed multiple claims under 42 U.S.C. § 1983 and Illinois law against the City of Berwyn (hereinafter "Berwyn" or "the City"), along with a number of individual defendants, as a result of an altercation at the Golden Steer Restaurant in Forest Park, Illinois. The individual defendants are Frank Marzullo, Director of Public Safety ("DPS") for the City; Michael Fellows and Michael Vokac, Berwyn police officers; Jerry Marzullo, a Cook County Assistant State's Attorney; Russell Marzullo, Jr. and Brian Marquardt, Berwyn firefighters; and Russell Marzullo, Sr. and Charles Baugh, who were not Berwyn employees. Plaintiff alleges that on April 5, 2006, he was restrained and beaten by defendants both inside and outside the restaurant.

Defendants dispute this and contend plaintiff was drunk and the aggressor, and any contact with him was in self-defense. All defendants have moved for summary judgment and filed motions to strike. For the following reasons, defendants' motions for summary judgment are granted in part and the motions to strike are denied.

I.

Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 787 (7th Cir. 2007); FED. R. CIV. P. 56(c). I must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State" deprives a person of his federal constitutional or statutory rights shall be liable in an action at law. 42 U.S.C. § 1983. To succeed on a § 1983 claim, a plaintiff must establish the defendant(s) deprived him of a right secured by the Constitution or any law of the United States and that the deprivation of that right resulted from the defendant(s) acting under color of law. Thurman v. Village of Homewood, 446 F.3d 682, 687 (7th Cir. 2006). Non-state actors may be found to act under color of state law when defendants have conspired or acted in concert with state actors to deprive a person of his civil rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).

II. A. Frank Marzullo

Frank Marzullo moves for summary judgment on the ground that plaintiff cannot establish he was acting under color of law. "[A]cts by a state officer are not made under color of [] law unless they are related in some way to the performance of the duties of the state office." Honaker v. Smith, 256 F.3d 477, 484-85 (7th Cir. 2001) (citing Gibson v. City of Chicago, 910 F.2d 1510, 1516 (7th Cir. 1990); Briscoe v. LaHue, 663 F.2d 713, 721 n. 4 (7th Cir. 1981)).

In this case, there is a genuine issue of material fact as to whether Frank Marzullo was acting under color of law. Although the parties dispute what exactly happened at the bar that night, Frank Marzullo testified that he was trying to "keep the peace" at the time of the alleged incident; this is consistent with his duties as DPS. (Berwyn Ex. C at 40-41, 87.) Frank Marzullo also testified at his deposition that once the Forrest Park police arrived "[t]here was no more need for my assistance at that time -- other than to talk to the police officers and tell them what I had seen." (Id. at 100.) Michael Fellows also testified he was ordered by Frank Marzullo to leave the bar and he explained he followed those orders because "he's my boss. I follow anything that he tells me to do." (Berwyn Ex. G. at 82, 112-13.) Officer Grimes, of the Forest Park Police, also testified that Frank Marzullo flashed his badge and identified himself as police around the time Officer Grimes arrived at the scene and said he was in charge. (Berwyn Ex. P, 22, 33-34.) When these statements, along with plaintiff's deposition testimony, are taken in the best light to plaintiff there is a triable issue of fact as to whether Frank Marzullo was acting under color of law. Accordingly, Frank Marzullo's motion for summary judgment is denied.

B. Individual Defendants 1. Color of Law

The remaining individual defendants first argue that they were not acting under color of law. These individual defendants group themselves into the police officer defendants (Fellows and Vokac) and non-officer defendants (Russell Marzullo, Sr., Russell Marzullo, Jr., Charles Baugh, Jerry Marzullo, and Brian Marquardt). With respect to the officer defendants, these particular defendants make much of the fact that they were not on-duty at the time the altercation occurred, nor were they in uniform or flashed police identification or weapons. As a preliminary matter, the record is sparse on what actions, if any, were taken by Vokac. Plaintiff testified he was taken outside by Fellows and Baugh (a non-officer defendant). Plaintiff could not identify Vokac or his degree of involvement in the incident in his deposition testimony. Nor does Vokac appear to have been deposed, as his deposition is not included in the present record. Accordingly, in the absence of evidence of Vokac's involvement,*fn1 much less of whether he was acting under color of law or in concert with any other defendants, I cannot find the existence of a triable issue of fact and his motion for summary judgment is granted.

In contrast, Fellows is specifically identified as punching plaintiff and removing him from the restaurant. Consistent with plaintiff's testimony, Fellows testified he was acting at the direction of Frank Marzullo during the incident. "For a[] [private] individual to act under color of law, there must be evidence of a concerted effort between a state actor and that individual." Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (citations omitted) (emphasis in original). When taken in the best light to plaintiff, there is evidence of concerted action here. Therefore, even putting aside the issue of whether Fellows was a state actor as a result of his employment at the time of the event in question, there is a genuine issue of material fact as to whether he acted in concert with Frank Marzullo as a state actor. Accordingly, Fellows' motion for summary judgment on this ground must be denied.

The remaining non-officer defendants also argue they are entitled to summary judgment because they were not acting under color of law. Plaintiff argues there is sufficient evidence of a conspiracy or concerted action by these defendants with Frank Marzullo as a state actor. "To establish § 1983 liability through a conspiracy theory, a plaintiff must demonstrate that: (1) a state official and private individual(s) reached an understanding to deprive the plaintiff of his constitutional rights, . . . and (2) those individual(s) were willful participants in joint activity with the State or its agents." Id. (quotation and citations omitted).

Once again, the record is sparse with respect to the involvement of certain individual defendants. In his deposition testimony, plaintiff is only able to identify Charles Baugh, Jerry Marzullo, and Russell Marzullo, Sr. in addition to Fellows, as physically striking him and/or restraining him either inside or outside the restaurant at the direction of Frank Marzullo. (See Berwyn Ex. B at 142, 146, 147-48, 150, 157-60, 171-176.) These identified defendants' motions for summary judgment are denied in light of this testimony. In contrast, in the absence of evidence that the remaining defendants took directives from or otherwise acted in concert with Frank Marzullo, I cannot find plaintiff has established the existence of a ...


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