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Norris v. Ferro

April 17, 2009

JOHN V. NORRIS, PLAINTIFF,
v.
FRANCIS FERRO, DEFENDANT.



The opinion of the court was delivered by: Blanche M. Manning United States District Judge

MEMORANDUM AND ORDER

Plaintiff John Norris drove his friends, Rodney Walls and Charles Hinch, to two different 24-hour supermarkets (Jewel and Cub Foods) in the early morning hours of August 27, 2005. Walls parted company with Norris and Hinch at the Jewel, but Hinch returned to Norris' vehicle with a variety of purloined sirloins (a total of four strip steaks, three top sirloin steaks, and one tenderloin steak). Witnesses called police, and Francis Ferro, a City of Joliet police officer, arrested Norris for retail theft. Following his arrest, Norris sued Ferro pursuant to 42 U.S.C. § 1983, contending that Ferro violated his Fourth Amendment rights by unlawfully arresting him and maliciously prosecuted him and intentionally inflicted emotional distress in violation of Illinois law. Ferro's motion for summary judgment is before the court. For the following reasons, Ferro's motion is denied.

I. Background

A. Local Rule 56.1

Under Local Rule 56.1, a party seeking summary judgment must submit a statement of material facts, consisting of short numbered paragraphs accompanied by citations to admissible evidence. Loc. R. 56.1(a). "Failure to submit such a statement constitutes grounds for denial of the motion." Id. Here, Ferro did not submit a separate statement of facts and, instead, included a fact section consisting of numbered paragraphs in his memorandum in support of his motion for summary judgment. The court will construe this as his Local Rule 56.1(a) statement of facts, but encourages counsel to more carefully follow the rules in the future.

This is not the end of Ferro's difficulties with Local Rule 56.1(a), as Norris correctly notes that Ferro's statement of facts does not include a citation to the record after every sentence. For the most part, this is not a problem as each paragraph of Ferro's fact statement includes citations to the record and the evidentiary basis for his facts is largely clear. The court, however, is not required to scour the record to unearth evidentiary support for a party's position. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-18 (7th Cir. 2004). Thus, to the extent that any facts are not supported by citations to the record, those facts are stricken. With this understanding, the following facts are derived from the parties' Local Rule 56.1 statements.

B. Facts

The relevant facts are straightforward. On August 27, 2005, John Norris left work around 1:00 or 2:00 a.m. While driving, he spotted two friends, Rodney Walls and Charles Hinch, near the intersection of Chicago and McDonough Streets in Joliet. Norris stopped to chat and Hinch asked Norris for a ride to a grocery store in exchange for gas money. According to Norris, he never asked Hinch or Walls why they were walking in the area of Chicago and McDonough Streets or what they needed to get from the grocery store.

Hinch and Walls got into Norris's car, and Norris drove to the Cub Foods in Joliet on Larkin Avenue. Hinch and Walls went into the store and Norris waited in the car. After five to ten minutes, Hinch and Walls emerged. Norris testified at his deposition that Walls was not carrying anything, and Hinch, who was wearing a t-shirt and jeans, was holding a public aid Link card and what appeared to be a receipt.

Hinch said that his Link card did not work and asked Norris to take him across the street to the Jewel Foods Store. Norris complied and parked close to the store. Once again, Hinch and Walls went into the Jewel while Norris stayed in his car. Norris testified that at this point, he still did not know what Hinch or Walls wanted to get from the supermarket.

From his vantage point in his car, Norris saw Walls run from the Jewel, then disappear around the back of the building. According to Norris, Walls did not have anything in his hands, have anything bulky under his clothes, throw anything, or come anywhere near the car Norris was sitting in, and no one chased after Walls. Norris then looked into the glass windows on the front of the Jewel and saw Hinch walking towards the exit.

Norris started his car and drove to the front of the store to pick up Hinch. He saw a female cashier (later identified as Jewel employee Pam Gibbs) walking next to Hinch and talking to him. Norris could clearly see Gibbs and she could see him as she was within ten to fifteen feet of Norris's car. According to Norris, Hinch and Gibbs appeared to be having a normal conversation and Gibbs did not look upset. Norris did not notice anything bulky under Hinch's shirt.

Hinch then got into the passenger side of the car and told Norris to "go, go, go." Norris pulled away at a normal rate of speed without asking for clarification, and testified that he may have run a red light. As Norris drove, Hinch began pulling packages of meat from his pants and shirt and attempted to hide the filched foodstuffs in Norris's car. Norris testified this was the first time he knew that Hinch had taken anything from the Jewel.

Norris also testified that as he drove, he noticed a police officer, who turned out to be staking out his vehicle. The officer subsequently stopped Norris's car to grill the occupants about the missing meat. The traffic stop transpired because Officer Ferro had patrolled the Jewel supermarket, where another Jewel employee, Mark Wojas, stated that steaks had been snatched and provided a description of the getaway vehicle which matched Norris's car. After stopping Norris's car, Officer Ferro told Norris and Hinch that there was a possible retail theft at a nearby Jewel and that Norris's ...


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