The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Before this court is a motion for summary judgment on all counts filed by defendants of Blue Island, Frank Podbielniak, and David Anderson ("Defendants") against Lionel Trepanier ("Plaintiff" or "Trepanier"), pursuant to Federal Rule of Civil Procedure 56. Trepanier filed this action in October 2003. On or about September 13, 2005, Trepanier filed his First Corrected Amended Complaint ("Complaint") containing five counts. Count I states a § 1983 claim that the conduct of Officer Anderson and Corporal Podbielniak violated Trepanier's Fourth Amendment rights because they did not have probable cause to arrest him. Count II alleges a § 1983 claim that Defendants violated Trepanier's First Amendment rights because he would not have been arrested and charged but for the fact that he had previously settled a lawsuit against defendants and had made a complaint against Sgt. Craig Kincaid ("Sgt. Kincaid"). Count III alleges a § 1983 claim that Defendants violated G.T.'s Fourth Amendment right to privacy and freedom from unreasonable search and seizures. Count IV states a state law claim for malicious prosecution of Trepanier. Count V is a state law claim alleging that Defendants wrongfully invaded Plaintiff G.T.'s privacy. This motion has been fully briefed and will be addressed in this opinion. For the reasons set forth below, Defendants' motion is GRANTED in part and DENIED in part.
Plaintiff Lionel Trepanier is the father of Plaintiff G.T. ("Plaintiff G.T." or "G.T."). On October 21, 2002 at approximately 4:30 pm, Defendant David Anderson, a Blue Island Police Officer, received a report from a woman claiming she saw a child with no coat or shirt, being pulled in a wagon by a man. (Pet'r Resp. Ex. A at 61, lines 10-11 and 14-15).*fn2 Officer Anderson located and detained the man, who later identified himself as Trepanier. Within the wagon, Officer Anderson observed a 2 year old child, later identified as G.T., covered in a blanket. (Exhibit A to Defendant's Motion for Summary Judgment (hereinafter "Ex. A") 13; Comp. ¶¶ 12-14). Officer Anderson called Defendant Corporal Frank Podbielniak who arrived to assist. (Ex. A at 11; Comp. ¶¶ 17-18). Corporal Podbielniak then uncovered G.T., who was nude. (Ex. A at 39-40; Comp. ¶¶ 24-25). Mr. Trepanier was arrested and charged with Contributing to the Neglect of a Child. (Comp. ¶¶ 26, 33). On April 30, 2003, in his motion to quash arrest and suppress evidence, Trepanier presented live testimony, photographic evidence, and oral argument. The state court denied Trepanier's motion.
A party seeking summary judgment has the burden of showing that there are no genuine issues of material fact that would prevent judgment as a matter of law. Fed. R. Civ. P. 56. When reviewing a motion for summary judgment, the court will "view all facts and draw all inferences in the light most favorable to the non-moving party." Chortek v. City of Milwaukee, 356 F.3d 740, 745 (7th Cir. 2004). Once a summary judgment motion has been filed, the non-moving party must show through specific evidence that a triable issue of fact remains on issues it bears the burden of proof at trial. Liu v. T & H Machine, Inc., 191 F.3d 790, 797 (7th Cir. 1999). A party must "present more than mere speculation or conjecture to defeat a summary judgment motion." Sybron Transition Corp. v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir. 1997). Summary judgment is appropriate if the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial. Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996). "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The Defendant argues that summary judgment should be granted on Plaintiff's Claims I- V on the ground that each of the claims is barred by the principle of collateral estoppel. In assessing the preclusive effect of a state court judgment in a federal case, the district court applies the collateral estoppel principles of the state in which it sits. Brokaw v. Weaver, 305 F.3d 660, 669 (7th Cir. 2002) ("the preclusive effect of a state court judgment in a federal case is a matter of state [law] rather than of federal law"). Under Illinois law, collateral estoppel requires that: (1) the issues decided in the prior adjudication are identical to issues presented for adjudication in the current proceeding; (2) there be a final judgment on the merits; and (3) the party against whom estoppel is asserted was a party or in privity with a party in the prior action. Kalush v. Deluxe Corp., 171 F.3d 489, 493 (7th Cir. 1999). The person to be bound, whether a party or their privy, must have "had a full and fair opportunity to litigate" the issue, as well as an "incentive to vigorously litigate in the former proceeding." Talarico v. Dunlap, 177 Ill.2d 185, 685 N.E.2d 325, 328 (Ill. 1997).
A. Count I: Violation of Trepainer's Fourth Amendment Right
Defendants seeks to preclude Trepanier's Fourth Amendment claim under the doctrine of collateral estoppel. Defendants asserts that the state court determination that the police officers had probable cause to arrest Trepanier precludes him from relitigating the legality of his arrest in his civil case.
The Seventh Circuit has held that "[c]ollateral estoppel can be used to bar a § 1983 claimant from relitigating a Fourth Amendment search-and-seizure claim that he lost at a state suppression hearing." Scott v. Sutker-Dermer, 6 Fed. Appx. 448, 449 (7th Cir. 2001) (citing Allen v. McCurry, 449 U.S. 90 (1980)). Furthermore, several courts in this district have ruled that the foreclosure of an opportunity to appeal the denial of a motion to quash arrest does not preclude the application of collateral estoppel. See, e.g., Wallace v. City of Chicago, 2004 WL 2452728 (N.D. Ill. 2004); Williams v. Valtierra, 2001 WL 1263495 (N.D. Ill. 2001); James v. Concepcion, 1998 WL 729757 (N.D. Ill. 1998).
Trepanier disputes that the elements of collateral estoppel are satisfied, contending that the issues in the state suppression hearing are not identical to the issues under this claim because the trial judge did not conclude that the officers had probable cause to arrest Trepanier. Trepanier supports this claim by citing to the state judge's concluding comments:
Did the officer, in his community care-taking obligations, did he have the right to make a further determination, particularly after making observations that a blanket has urine on it, he observes that the defendant has been drinking, and he observes five cans of beer within the wagon? Does he have -- is it within his rights to be able to make that further determination?
I rule that, in fact, he has that obligation and has that right. (Ex. A at 84-85). Trepanier claims that the terms "community care-taking obligations" and "further determination" do not indicate a finding of probable cause, but reference what the Supreme Court of Illinois has labeled as the third tier of police-citizen encounters. In People ...