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Sexton v. Cotton

November 5, 2008

SHERYL SEXTON, PLAINTIFF,
v.
ZACHARY COTTON; CHRIS SANCHEZ; AND JOSEPH WILLETT, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Currently pending before the Court are three motions for summary judgment, one brought by each individual defendant. See [64, 68, 79]. In addition, Defendants Sanchez and Cotton move to strike certain responses to their statements of fact filed by Plaintiff pursuant to Local Rule 56.1 [135] and certain additional statements of fact offered by Plaintiff in her Local Rule 56.1(b)(3)(c) statement [133]. For the reasons stated below, Defendant Willett's motion [64] for summary judgment on Count II and to dismiss Count VII is granted with respect to Count II and stricken as moot as to Count VII; Defendant Sanchez's motion for summary judgment [68] is granted; and Defendant Cotton's motion for summary judgment [79] is granted in part and denied in part. In addition, the joint motion to strike certain additional facts from Plaintiff's L.R. 56.1(b)(3)(c) [133] filed by Defendants Cotton and Sanchez is denied with respect to paragraphs 3-5 and 60, and denied as moot as to the remaining paragraphs. Finally, the joint motion to strike certain responses made by Plaintiff to the joint statement of facts [135] filed by Defendants Cotton and Sanchez is denied as moot.

I. Background

Plaintiff Sheryl Sexton ("Plaintiff" or "Sexton") filed a seven-count complaint (see Am. Compl. [45]) against Defendants Zachary Cotton, Chris Sanchez, and Joseph Willett ("Defendants") as well as against the Village of Glenwood, which previously was dismissed from this action (see [137]), pursuing most of her claims under 42 U.S.C. § 1983. The following claims asserted in Plaintiff's amended complaint remain before the Court: (1) a Section 1983 claim against all remaining Defendants alleging that they conspired to deprive Plaintiff of her constitutional rights, including her First Amendment right to free speech (Count II); (2) a Section 1983 claim against Defendant Cotton alleging that he violated her First Amendment rights relating to her arrest which she contends was without probable cause (Count III); (3) a Section 1983 claim against Defendant Sanchez alleging that he violated her First Amendment rights relating to her arrest which she contends was without probable cause (Count IV); (4) a state-law false imprisonment claim against Defendants Sanchez and Cotton based on her assertion that they falsely arrested and imprisoned her without probable cause (Count V); (5) a state-law malicious prosecution claim against Defendants Sanchez and Cotton (Count VI); and (6) a battery claim against Defendant Willett (Count VII).

Defendant Willett seeks summary judgment on Count II (the Section 1983 conspiracy claim) and moves to dismiss Count VII, a battery claim that Plaintiff raises against him. Defendant Sanchez seeks summary judgment on all counts asserted against him: Counts II (Section 1983 conspiracy claim), Count IV (Section 1983 retaliatory arrest claim); Count V (Illinois false arrest/imprisonment claim); and Count VI (Illinois malicious prosecution claim). Defendant Cotton moves for summary judgment on all claims against him: Count II (Section 1983 conspiracy claim), Count III (Section 1983 retaliatory arrest claim); Count V (Illinois false arrest/imprisonment claim); and Count VI (Illinois malicious prosecution claim).

II. Facts

A. Motions to Strike Filed by Defendants Cotton and Sanchez

Defendants Cotton and Sanchez filed a motion to strike certain paragraphs from Plaintiff's L.R. 56.1(b)(1)(3)(c) statement of additional facts [133] and a separate motion to strike certain responses made by Plaintiff to Defendants' L.R. 56.1(a) statement [135]. A party who wishes to argue that portions of an opposing party's statement of facts contain errors or are inadmissible on evidentiary grounds may file a motion to strike those portions of the statement. Goltz v. University of Notre Dame du Lac, 177 F.R.D. 638, 640 (N.D. Ind. 1997). "Pleadings that do not conform with the local rules may be stricken at the discretion of the court." Id. at 640 (citing Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir. 1990)); Pfeil v. Rogers, 757 F.2d 850, 858 (7th Cir. 1985); Graham v. Security Sav. & Loan, 125 F.R.D. 687, 688-89 (N.D. Ind. 1989), aff'd, 914 F.2d 909 (7th Cir. 1990)). Indeed, it is the function of the Court, with or without a motion to strike, to review carefully both statements of material facts and statements of genuine issues and the headings contained therein and to eliminate from consideration any argument, conclusions, and assertions that are unsupported by the documented evidence of record offered in support of the statement. See, e.g., Sullivan v. Henry Smid Plumbing & Heating Co., Inc., 2006 WL 980740, *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., 2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor, 324 F. Supp. 2d 917, 920 n.1 (N.D. Ind. 2004). The Court is capable of redacting the statement of facts and disregarding all argumentative headings, interpretation or analysis of the facts, or unfounded assertions of fact found in the statement. The Court's scrutiny of material statements of facts applies equally to the party seeking summary judgment and the party opposing it.

For example, testimony must be based on personal knowledge. See, e.g., Joseph P. Caulfield & Assocs., Inc. v. Litho Prods., Inc., 155 F.3d 883, 888 (7th Cir. 1998) (testimony "that was necessarily speculative and lacking in foundation * * * is insufficient."); Fed. R. Civ. P. 56(e). In addition, although the evidence supporting a factual contention need not be admissible itself, it must represent admissible evidence. For example, a deposition transcript usually is not admissible at trial but (obviously) may be used in support of summary judgment; however, a hearsay statement made during a deposition does not constitute adequate evidentiary support for a factual proposition. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) ("hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial, except that affidavits and depositions * * * are admissible in summary judgment proceedings to establish the truth of what is attested or deposed").

The Court need not rule on all of the particulars of Defendants' motions to strike because any statements or responses that contain legal conclusions or argument, are evasive, contain hearsay or are not based on personal knowledge, are irrelevant, or are not supported by evidence in the record will not be considered by the Court in ruling on Defendants' motions for summary judgment. Many of the parties' assertions comply with Local Rule 56.1; some do not. Any paragraph or fact that is not supported by record evidence will be disregarded. Indeed, the Court has not relied on any evidence as to which the admissibility is disputed in its disposition of Defendants' motions for summary judgment in this case.

Consistent with the discussion above and the further analysis as to certain paragraphs explained below, the Court denies the motion to strike [133] paragraphs 3-5 and 60 of Plaintiff's statement of additional facts. As for the remaining paragraphs in dispute, the Court denies Defendants' motion as moot as the Court declined to rely on those paragraphs, consistent with its obligations under the federal and local rules to rely only on material statements of fact which are both admissible and supported by the record compiled at the summary judgment stage. See Fed. R. Civ. P. 56(e); L.R. 56.1; see also Davis v. Elec. Ins. Trs., 519 F. Supp. 2d 834, 836 (N.D. Ill. 2007); Lawrence v. Bd. of Election Com'rs of City of Chicago, 524 F. Supp. 2d 1011, 1014 (N.D. Ill. 2007). For similar reasons, the Court denies as moot Defendant Cotton's and Defendant Sanchez's motion to strike certain of Plaintiff's responses [135] to Defendant's joint statement of facts in support of their motions for summary judgment. Although the Court agrees with Defendants that Plaintiff failed in many respects to comply with L.R. 56.1, Defendants' motion is denied because the Court did not rely on irrelevant or inadmissible facts or statements unsupported by the record for purposes of its summary judgment determinations. Id.

B. Facts Relevant to Defendants' Summary Judgment Motions*fn1

The Court takes the relevant facts from the parties' respective Local Rule 56.1 ("L.R. 56.1") statements. The Court resolves all genuine factual ambiguities in Plaintiff's favor (see Foley v. City of Lafayette, Ind., 359 F.3d 925, 928 (7th Cir. 2004)), and takes no position on whose version of disputed factual matters is correct. See, e.g., Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (stressing that on summary judgment, courts must look "at the evidence as a jury might, construing the record in the light most favorable to the non-movant and avoiding the temptation to decide which party's version of the facts is more likely true").

L.R. 56.1 requires that statements of facts contain allegations of material fact and that those allegations be supported by admissible record evidence. See L.R. 56.1; Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). The Seventh Circuit repeatedly has confirmed that a district court has broad discretion to require strict compliance with L.R. 56.1. See, e.g., Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Curran v. Kwon, 153 F.3d 481, 486 (7th Cir. 1998) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995) (collecting cases)). As noted above, where a party has offered a legal conclusion or a statement of fact without offering proper evidentiary support, the Court will not consider that statement. See, e.g., Malec, 191 F.R.D. at 583. Additionally, where a party improperly denies a statement of fact by failing to provide adequate or proper record support for the denial, the Court deems that statement of fact to be admitted. See L.R. 56.1(a), 56.1(b)(3)(B); see also Malec, 191 F.R.D. at 584. The requirements for a response under Local Rule 56.1 are "not satisfied by evasive denials that do not fairly meet the substance of the material facts asserted." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000). Finally, the Court disregards any additional statements of fact contained in a party's response brief rather than in its statement of additional facts. See, e.g., Malec, 191 F.R.D. at 584 (citing Midwest Imports, 71 F.3d at l317).

Defandants Cotton, Sanchez, and Willett all are employed as Sergeants with the Village of Glenwood Police Department ("GPD"). Willett SOF ¶¶ 1-3. From May of 2005 until February of 2006, Defendant Cotton was acting as the Deputy Chief of the GPD. Willett SOF ¶ 1. From 2003 until January of 2006, Defendant Cotton was assigned to investigations. Willett SOF ¶ 2. During the time period in which the incident that gives rise to this lawsuit took place (July-August 2005), Defendant Willett had not yet become a Sergeant. Willett SOF ¶ 3; Pl. Resp. Willett SOF ¶ 3. In the summer of 2005, the GPD police force consisted of a chief, a deputy chief, four sergeants, and fewer than twenty patrol officers. Pl. SOAF ¶ 1. Defendants Cotton and Willett were friends at work, and Defendants Cotton, Sanchez, and Willett had socialized with each other outside of work. Pl. SOAF ¶¶ 6, 74; Willett Resp. SOAF ¶ 6.

On July 23, 2005, Plaintiff was driving with a friend, Jeff Fink. Defs. SOF ¶ 3. Defendant Willett was patrolling traffic as part of his regular duties. Pl. SOAF ¶ 14; Willett Resp. SOAF ¶ 14. Defendant Willett initiated a traffic stop of Plaintiff's vehicle for driving with a cracked windshield and for failure to display a front license plate. Willett SOF ¶ 4; Defs. SOF ¶¶ 8-9. Defendant Willett pulled Plaintiff over in a parking lot at the T.J. Meat Packing Plant. Pl. SOAF ¶ 17. After Plaintiff produced her license and proof of insurance, Willett ran Plaintiff's license using his high-band traffic device and learned that Plaintiff's license was suspended.*fn2 Defs. SOF ¶ 12; Pl. SOAF ¶¶ 18, 21, 29. Defendant Willett searched Plaintiff's vehicle and found marijuana and a marijuana pipe. Willett SOF ¶ 5; Defs. SOF ¶ 22. Defendant Willett performed a pat-down search of Plaintiff (Willett SOF ¶ 6, Defs. SOF ¶ 15), which Plaintiff contends was improper (Pl. Resp. Willett SOF ¶ 6, Pl. Resp. Defs. SOF ¶ 15).*fn3

Plaintiff's friend, Jeff Fink, did not observe the pat-down. Defs. SOF ¶ 24; Pl. Resp. Defs. SOF ¶ 24; Fink Dep. at 88:9-89:16. At the same time that Defendant Willett was conducting the traffic stop and search of Plaintiff, Officer Bennett of the GPD was conducting a traffic stop in an adjacent parking lot. Defs. SOF ¶ 17. After completing his traffic stop, Officer Bennett walked over to assist Officer Willett. Defs. SOF ¶ 18. Officer Bennett completed a second search of Plaintiff. Defs. SOF ¶ 19. A female officer employed by the village of Thornton, Michelle Arendt, was then called to the scene and completed a final search of Plaintiff. Defs. SOF ¶ 21. Plaintiff was placed into police custody and charged with possession of marijuana, driving with a defective windshield, and driving on a suspended license. Willett SOF ¶ 7; Defs. SOF ¶¶ 1, 23.

Five days later, on July 28, 2005, Plaintiff, accompanied by her daughter Sarah Sexton, visited the GPD to file a citizen complaint against Defendant Willett in connection with the July 23, 2005 search and arrest. Willett SOF ¶ 8; Defs. SOF ¶ 25; Pl. SOAF ¶ 39. On that day, Plaintiff met with Defendant Cotton who was, at that time, acting Deputy Chief. Willett SOF ¶ 9; Defs. SOF ¶ 26. Plaintiff told Defendant Cotton that she had been inappropriately touched by an officer during the course of her July 23 arrest. Defs. SOF ¶ 27. Defendant Cotton asked Plaintiff to describe the incident and she proceeded to tell him that she had been pulled over during a routine traffic stop and had been arrested for driving on a suspended driver's license. Defs. SOF ¶ 28. Plaintiff told Defendant Cotton that while she was being searched, the officer pulled her pants out, stuck his hands down her pants, groped her breast, and massaged her feet. Defs. SOF ¶ 29. After describing the alleged incident, Plaintiff filled out a citizen complaint form provided to her by Defendant Cotton. Defs. SOF ¶ 30; Pl. SOAF ¶ 41; Defs. Resp. SOAF ¶ 41; Willett Resp. SOAF ¶ 41. The interview lasted approximately fifteen to twenty minutes. Defs. Resp. SOAF ¶ 61.

After Plaintiff completed her sworn complaint, Defendant Cotton spoke with Chief Joseph Falica, at which time Chief Falica informed Defendant Cotton that the Illinois State Police Public Integrity Unit did not handle complaints of this nature. Defs. SOF ¶ 31; see also Pl. SOAF ¶ 45. Chief Falica assigned Defendant Cotton the task of conducting an investigation. Defs. SOF ¶ 31. Defendant Cotton wrote up a report memorializing his meeting with Plaintiff. Defs. SOF ¶ 32.

Plaintiff did not see or interact with Defendant Willett on the day that she filed her complaint. Willett SOF ¶ 10. Approximately one week after Defendant Willett's initial stop of Plaintiff, Defendant Cotton informed Defendant Willett that Plaintiff had filed a citizen complaint against him. Willett SOF ¶ 11. Defendant Cotton did not discuss the specifics of the citizen complaint with Defendant Willett at that time, other than to inform him that it was a complaint for improper touching. Willett SOF ¶ 12.

Defendant Cotton then conducted an internal investigation. Willett SOF ¶ 13. Defendant Cotton attempted to identify potential witnesses to the incident of which Plaintiff's complained. Defs. SOF ¶ 33. Defendant Cotton interviewed witnesses, including Defendant Willett, in regard to Plaintiff's complaint. Willett SOF ¶ 14. Defendant Willett denied engaging in any improper activity, including but not limited to touching Plaintiff inappropriately. Defs. SOF ¶ 43. During the course of his interview with Defendant Willett, Defendant Cotton made no mention of Defendant Willett's then-pending lawsuits. Willett SOF ¶ 15. Defendant Willett has previously stated that it did not occur to him that Plaintiff's complaint against him could threaten his career. Willett SOF ¶ 16; Pl. Resp. Willett SOF ¶ 16. The initial contact from Defendant Cotton about the fact that Plaintiff filed a citizen complaint and the subsequent interview in connection to the internal investigation were the only discussions between Defendant Cotton and Defendant Willett concerning Plaintiff's complaint. Willett SOF ¶ 17.

Defendant Cotton telephonically interviewed Rosa Hernandez, who was the individual stopped by Officer Bennett at the same time that Plaintiff was stopped by Defendant Willett.*fn4

Defs. SOF ¶ 34; see also Pl. SOAF ¶ 50. Defendant Cotton also interviewed Jeff Fink, Officer Arendt, and GPD Officers Bennett, Fisher, and Johnson. Defs. SOF ¶ 39. Defendant Cotton learned that Fink did not observe Defendant Willett touching Sexton (Def. SOF ¶ 41; Fink Dep. at 88:9-89:16), and Officers Bennett and Fisher informed Defendant Cotton that they had not observed any inappropriate touching nor had Sexton been searched inappropriately. Defs. SOF ¶ 43. Defendant Cotton summarized his interview with Fink in a written report. Pl. SOAF ¶ 54. After completing his witness interviews, Defendant Cotton contacted Plaintiff and requested that she return to GPD to speak about her complaint. Willett SOF ¶ 18. Plaintiff returned to GPD on August 8, 2005, and met with Defendant Cotton in his office. Willett SOF ¶¶ 19, 20. Plaintiff's daughter Sarah accompanied Plaintiff to this second interview.*fn5 Defs. Resp. SOAF ¶ 60. Defendant Cotton took notes, but did not record the interview. Id. Defendant Cotton informed Plaintiff that inconsistencies existed between her account of what happened in the complaint and what other witnesses had told him. Willett SOF ¶ 20. Plaintiff replied that she did not want to make any additions or changes to her statement. Pl. Resp. Willett SOF ¶ 20; Sexton Dep. at 201. During the course of the interview Defendant Cotton asked Plaintiff on three separate occasions whether she wanted to change any of the statements in her report.*fn6 Pl. Resp. Willett SOF ¶ 20; Sara Sexton Dep. at 81: 16-17; Pl. SOAF ¶ 61.

At the conclusion of his second meeting with Plaintiff, Defendant Cotton thought that probable cause existed to arrest Plaintiff for filing a false report, as he believed that Plaintiff had contradicted her prior statements during his interview of her that day. Willett SOF ¶¶ 21-22; Defs. SOF ¶ 53; Pl. Resp. Willett SOF ¶ 21; Pl. Resp. Defs. SOF ¶ 53; Cotton Dep. at 116:16-23 ("[W]hen I determined that she was not telling the truth, there was probable cause to make the arrest for filing a false report"). Defendant Cotton's belief that probable cause existed was based in part on statements that he contends were made by Plaintiff that day that no difference existed between an officer placing his hands in her pockets or putting his hands down her pants, and that patting her down up to her breasts was no different than grabbing her breasts. Willett SOF ¶ 21; Defs. SOF ¶ 53. Defendant Cotton was responsible for making the decision to arrest Plaintiff. Pl. SOAF ¶ 69.

Defendant Cotton notified Defendant Sanchez, the investigator working at that time, and "brought him up to speed" as to Cotton's belief that Plaintiff made a false complaint based on contradictions between what Plaintiff had told him in the interview that day and what she had stated in the original complaint. Willett SOF ¶¶ 25, 27; Defs. SOF ¶ 59.*fn7 Defendant Cotton had not talked to Defendant Sanchez prior to determining that he had probable cause to arrest Plaintiff. Willett SOF ¶ 23. This was the first time Defendant Sanchez had heard of Plaintiff. Willett SOF ¶ 26; Defs. SOF ¶ 60.

Defendant Cotton instructed Defendant Sanchez to investigate whether Plaintiff had made a false complaint. Willett SOF ¶ 28; Defs. SOF ¶ 58. Defendant Cotton provided Defendant Sanchez with the documentation he had already gathered and informed Defendant Sanchez of his belief that probable cause existed to make an arrest. Willett SOF ¶ 30; Cotton Dep. at 141:17-19; Defs. SOF ¶ 61. Defendant Cotton informed Defendant Sanchez that he needed "take it up" where Defendant Cotton had left off because the situation had progressed from an internal affairs investigation, which was within his purview, to a criminal investigation, which was part of Defendant Sanchez's responsibilities. Willett SOF ¶ 30; Cotton Dep. at 141-20-24.

After Plaintiff was placed under arrest, Defendant Sanchez read Plaintiff her Miranda rights. Pl. SOAF ¶ 75. Defendant Sanchez attempted to interview Plaintiff, but she would not speak with him. Willett SOF ¶ 32; Defs. SOF ¶¶ 62, 66. Following Plaintiff's refusal to answer questions, a female officer escorted Plaintiff to the GPD lock-up. Willett SOF ¶ 33; Defs. SOF ¶¶ 64-65. Defendant Sanchez did not have conversations with anyone else from the time at which Plaintiff was placed in lock-up until the time at which Defendant Cotton gave his supplemental report to Defendant Sanchez approximately an hour or so later. Willett SOF ¶ 35. Defendant Sanchez did not speak to Defendant Cotton when he received the supplemental report from him. Willett SOF ¶ 36. While Plaintiff was in custody, Defendant Sanchez reviewed Plaintiff's complaint and the supplemental report prepared by Defendant Cotton regarding the internal investigation. Willett SOF ¶ 34; Sanchez Dep. at 35:24-36:1-2. Defendant Sanchez did not speak with Officers Willett, Bennett, Johnson, or Fisher about his investigation of Plaintiff or about her arrest. Defs. SOF ¶ 95.

Upon completion of his review, Defendant Sanchez intended to charge Plaintiff with perjury. Pl. SOAF ¶ 76. Defendant Sanchez contacted the state's attorney's office to obtain approval for felony charges of perjury. Willett SOF ¶ 37; Pl. Resp. Willett SOF ¶ 37; Sanchez Dep. at 44:10-12; Pl. SOAF ¶ 79. Defendant Sanchez read the reports to the state's attorney and explained to him the conversations that he had had with Defendant Cotton. Defs. SOF ¶ 70. The state's attorney rejected Defendant Sanchez's request to charge Plaintiff with perjury. Defs. SOF ¶ 71; Pl. SOAF ¶ 81; Sanchez Dep. at 49:1-3. The state's attorney then advised Defendant Sanchez to charge Plaintiff with disorderly conduct, a misdemeanor, for filing a false report. Willett SOF ¶ 38; Defs. SOF ¶ 72; Sanchez Dep. at 49:13-15.

Defendant Cotton learned later that evening, by telephone call from Defendant Sanchez, that Plaintiff had been charged with disorderly conduct. Willett SOF ¶ 41; Cotton Dep. at 143:9-11. This was the last in a series of telephone calls between Defendants Sanchez and Cotton regarding Plaintiff where they discussed whether the GPD wanted to move forward with the perjury charges, which the state's attorney would allow only if the GPD agreed to allow an independent investigation by the state police. Cotton Dep. at 143:19-144:24. Defendant Cotton informed Defendant Sanchez that the chief of police did not want the GPD to undergo an additional investigation. Id. Defendant Sanchez charged Plaintiff with disorderly conduct in violation of 720 ILCS 5/26-1(a)(4), on the basis that Plaintiff submitted a false report of battery knowing at the time that there was no reasonable ground for believing such offense had been committed. Pl. SOAF ¶ 89.

Defendant Willett had no part in charging Plaintiff with disorderly conduct that day, and was not present at any point in time during Plaintiff's August 8, 2005 charge and arrest. Willett SOF ¶ 39. The first time that Defendant Willett learned of Plaintiff's arrest was the night of or the day after her arrest. Willett SOF ¶ 44. Either Chief Falica or Defendant Cotton called Defendant Willett to inform him that Plaintiff had been arrested and charged with making a false complaint. Willett SOF ¶¶ 45, 46; Willett Dep. at 119-120. Defendant Willett was never told that Plaintiff's arrest was made to protect the police department and him from another law suit against them. Willett SOF ¶¶ 47, 51.

Defendant Willett had not discussed Plaintiff's citizen complaint with Defendant Sanchez prior to August 8, 2005. Willett SOF ΒΆ 50. Prior to that date, Defendant Willett had no knowledge of the results of the investigation or that Plaintiff's ...


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