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Doe v. v. of T.

September 30, 2008

JOHN DOE, A MINOR, BY AND THROUGH HIS FATHER AND NEXT BEST FRIEND, BILL DOE, PLAINTIFF,
v.
V. OF T., A MUNICIPAL CORPORATION, J.K., INDIVIDUALLY AND AS AN AGENT OF V. OF T., AND V. OF T. BOARD OF FIRE AND POLICE COMMISSIONERS, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

In November 2001, then sixteen-year-old John Doe ("Plaintiff") participated in the Village of Thornton's ("Village") fire cadet training program, an extracurricular program offered to minors who are between the ages of fourteen and eighteen. The program was run by J.K., the Village's fire chief at the time. In December 2001, J.K. asked Plaintiff to accompany him to pick up an ambulance from another fire station. However, after J.K. and Plaintiff left the Village fire station, J.K. drove Plaintiff to J.K.'s house, where he sexually assaulted Plaintiff. On July 18, 2002, J.K. was arrested, and on July 21, 2002, J.K. gave written statements to the police in which he admitted to having a sexual relationship with Plaintiff while he was fire chief and Plaintiff was a cadet and also admitted to having a sexual relationship with another cadet while serving as fire chief.

At the outset, it is important to note what is and is not before the Court at this time. Plaintiff has sued J.K. alleging five state law causes of action--assault, battery, reckless infliction of emotional distress, invasion of privacy, and negligence. In his third amended complaint, he also alleges two causes of action against the Village and the Village's Board of Fire and Police Commissioners ("Fire and Police Board") for a constitutional deprivation pursuant to 42 U.S.C. § 1983 and for municipal and supervisory liability under Monell, and one cause of action against the Village, Fire and Police Board, J.K., and the Village president for civil conspiracy under Section 1983. The pending motion for summary judgment [97], filed by the Village and the Fire and Police Board, targets Counts VI (42 U.S.C. § 1983), VII (Monell claim), and VIII (Section 1983 conspiracy claim) of Plaintiff's operative third amended complaint. The state law claims against the individual Defendant, J.K., set forth in Counts I through V of the operative complaint, are not at issue. As explained in greater detail below, nor is any Section 1983 claim against J.K. in his individual capacity, because no such claim is fairly presented on the current complaint. For the following reasons, the Court grants Defendants' summary judgment motion [97] as to Counts VI, VII, and VIII.

I. Background*fn1

A. Factual Background

The Village of Thornton is an Illinois municipal corporation located in Southwestern Cook County with a population of approximately 2,400. The Village is organized under the Illinois Municipal Code, 65 ILCS 5, and has six elected trustees and one elected village president. At all times relevant to this action, the Village president was Jack Swan.*fn2 The Village has a paid-on-call volunteer fire department which consists of one full-time fire chief who is appointed, pursuant to Village ordinances, by recommendation of the Village president with the Village Board of Trustees' advice and consent. Def. Ex. 5.

For many years, the Village maintained a fire cadet program. Through that program, high school students ages fourteen through eighteen were eligible, with the approval of their parents, to receive training and to participate in certain activities of firefighting.*fn3 After turning eighteen, cadets would be eligible to serve as full-time volunteer firefighters. Defendant J.K. was a cadet in the fire cadet program and then served as a paid-on-call firefighter for the Village from August 1989 until July 1991.

Defendant J.K. served as an auxiliary police officer for the Village from February 1994 until his resignation in December 1997.*fn4 Upon his resignation, J.K. disclosed to police chief Peter Belos that he had a cocaine addiction for which he had entered and completed a program of rehabilitation. Def. Ex 36. at 32-36. Belos testified that right after J.K. resigned, Belos met with the Village manager, Jim Marino, and Village trustee Edward Baumgart, the trustee in charge of the police department, and notified them of J.K.'s resignation and reasons behind it. Id. Belos also advised Village president Jack Swan of J.K's cocaine addition and the fact that J.K. had lied to obtain a leave of absence to attend rehab and expressed his desire to file charges against J.K. Id. at 36. The parties dispute Swan's response, but it is clear from the record that J.K. was never fired or prosecuted by the Village; rather, he resigned and moved on to the Village fire department. Id. at 42.

In February 1998, then-acting fire chief, Mike McCrary,*fn5 recommended to Village president Swan that J.K. be hired as a paid-on-call firefighter. J.K. was hired and rose to the rank of captain in June 1998. In September 1998, J.K. was appointed fire chief administrator. In early 1999, Jim Swan, son of Village president Jack Swan, recommended to his father that J.K. be appointed fire chief.*fn6 In April 1999, the Village merged the position of fire chief administrator and fire chief into the single, full-time position of fire chief, and J.K. was the first person to hold that position. Def. Ex. 26 at 49-51. J.K. served as fire chief until his arrest on July 18, 2002. At the time J.K. became fire chief, the Village had in place policies prohibiting sexual misconduct and mandating a drug free work place.

Defendant J.K. testified that during his tenure as fire chief, he discovered various inefficiencies and irregularities in the way the fire department was run. Def. Ex. 25 at 76-78. He claims that he removed some individuals from their positions within the fire department because of "illegal" activity. Id. However, the individuals whom J.K. terminated testified that the tensions within the department arose from J.K.'s treatment, demotion, prosecution, and termination of individuals who raised concerns regarding J.K.'s inappropriate sexual conduct with minor cadets. Pl. Ex. 2 at 23, 30-31; Pl. Ex. 3 at 6. James Bruinsma stated that he joined the fire department in the fall of 1999 due to concerns that his son was involved in narcotics and inappropriate sexual conduct with J.K. Pl. Ex. 2 at 23, 30-31. Bruinsma was terminated in or around April 2000 by J.K. due to unsubstantiated charges of "insubordination." Id. at 30. Bruinsma testified that when he was terminated, he told J.K., "I don't want you to touch my son again and I don't want my son ever to be in your presence alone. I don't want my son at your house and I don't want you giving him another ounce of alcohol." Id. at 31. Another member of the fire department, Wayne Braley, gave a statement to police in May 2002 that he witnessed J.K. involved in sexual activity with Bruinsma's son during a bachelor party. Pl. Ex. 4. In February 1999, Braley was suspended from the department by J.K. due to allegations that Braley was having inappropriate conduct with an underage female. Braley was later reinstated when the allegations proved to be unfounded. Pl. Ex. 3 at 66.

While serving as a police officer and later as fire chief administrator and fire chief, various rumors circulated about J.K.'s former drug addition and alleged sexual activity with male cadets. Several cadets also testified to being teased in a sexual manner in which they had not been teased prior to J.K. becoming fire chief. On July 21, 1997, while J.K. was still an auxiliary police officer for the Village, two citizens met with police chief Belos. Def. Ex 36. at 11. During the meeting, the two citizens advised the chief that their minor son was involved in narcotic and sexual activity with J.K. Id. at 12. The parents refused to press charges or make their son available to talk. Id. Belos advised Village president Jack Swan of the complaint but the parties dispute what action, if any, was taken by the Village president. Although Swan was aware of drug allegations and had a conversation with J.K. regarding his resignation from police duty as a result of that drug use (Def. Ex. 26 at 70-71), Swan testified that prior to J.K's arrest for sexual assault in July 2002, he was unaware of any sexual misconduct between J.K. and minor fire cadets from the Village of Thornton (Id. at 94-95).

During J.K.'s tenure as fire chief, he also owned and operated at least two private businesses--Quality Mobile Power Wash in South Holland, Illinois, and "MBR," both car washes. J.K. retained a number of part-time employees for his private businesses, including Plaintiff and other fire cadets. In addition to supervising cadets at the fire station and at his private businesses, J.K. would also have parties at his house where alcohol was available and which were attended by members of the fire department, including minor cadets.

Plaintiff was born in March of 1985. He applied for admission to the fire cadet program at the age of fourteen, in or around 1999, and ended his involvement with the program in early 2003. During the time that he was involved with the cadet program, Plaintiff also worked with J.K. at his car washes. Plaintiff testified that in the fall of 2001, J.K. asked him if he could "blow him off," to which Plaintiff responded, "I don't know." Pl. Ex. 8 at 48-49. In November or December 2001, on a night in which Plaintiff planned to sleep at the fire station, Defendant J.K. asked Plaintiff to leave the fire house and accompany him to pick up an ambulance. Id. at 50-53. According to Plaintiff, J.K. then drove him, in his village-issued vehicle, to J.K's house where J.K. took off Plaintiff's pants and performed oral sex on Plaintiff in exchange for either $250 or $300. Id. at 52, 94. Plaintiff testified that he told J.K. to stop and pushed him away, but that J.K. did not stop. Id. at 52. According to Plaintiff, although J.K. asked Plaintiff on one more occasion if J.K. could perform oral sex on Plaintiff, the 2001 incident was the only sexual contact between Plaintiff and J.K. Id.

While he was fire chief, J.K. also had a sexual relationship with James Bruinsma son, E.B., when E.B. was a seventeen year-old cadet. E.B. testified that he and J.K. had sexual contact at a bachelor party in a bar (although the extent of that contact is disputed), in J.K.'s village-issued vehicle, and in a hotel room in Indianapolis during a firefighter's convention. Pl. Ex. 12 at 67-69, 76-88; Pl. Ex. 13, at 21-25; Pl. Ex. 4. He never discussed his involvement with J.K. with any official from the Village while he was a member of the fire department, either as a cadet or probationary firefighter. Def. ...


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