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Poole v. City of Burbank

July 10, 2009


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


Plaintiff Daniel Poole's ("Poole") seven count complaint arises from an incident on January 19, 2006, when he was pulled over, arrested, and allegedly subject to excessive force at the hands of defendant City of Burbank (the "City") police officers Kara Kush ("Kush") and Gregory Perovich ("Perovich")(together "defendant officers"). The City, also a defendant in this case, moves for summary judgment on all of Poole's claims against it, namely, his 42 U.S.C. § 1983 claims for unreasonable search and seizure (count I), excessive force (count II), false imprisonment (count III), and false arrest (count IV).

The defendant officers move for partial summary judgment on counts I, III, and IV. They argue that these claims fail because there was probable cause for Poole's initial detention and subsequent arrest, and that the claims are barred by Poole's payment of a fine for failure to wear a seatbelt. Both motions are granted for the reasons stated in this opinion.


On January 19, 2006, at approximately 5:40 p.m. Kush observed Poole driving northbound in his vehicle on Cicero Avenue near 85th Street and purportedly believed him to be driving without having his seatbelt properly fastened. The shoulder strap of the seat belt in Poole's vehicle is situated low and does not go over the driver's shoulder. Kush activated her lights and sirens, to effectuate a traffic stop due to the alleged seatbelt violation.

Poole continued northbound on Cicero Avenue to 84th Street where he turned left. Kush called for assistance when he did not pull over, indicating that the driver she was pursuing was refusing to stop. Poole continued down 84th Street for another block and then turned right into the Burlington Coat Factory ("BCF") parking lot where he worked. He drove near the entrance and stopped in a fire lane. Kush approached Poole's car, obtained his license and insurance card, and returned to her vehicle to process that information.

In response to Kush's call for assistance, Perovich arrived at the BCF parking lot. Kush remained in her car processing the license information while Perovich approached Poole's vehicle, allegedly for safety reasons. The parties dispute the subsequent events, but agree that Poole and Perovich ended up fighting and both of them sustained injuries. Poole was issued a citation for the alleged seatbelt violation, arrested, and charged with resisting a peace officer and aggravated battery. The seatbelt fine was paid and Poole was found guilty of that violation. He was found not guilty of the criminal charges at trial.


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. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The "court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). A genuine issue for trial exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). I must construe all facts in the light most favorable to the non-movant and draw all justifiable inferences in favor of that party. See id. at 255.


The City moves for summary judgment on Poole's four § 1983 claims because it claims Poole cannot prove that his alleged constitutional injuries were caused by "(1) the enforcement of an express policy of the [municipality], (2) a widespread practice that is so permanent and well settled as to constitute a custom or usage with the force of law, or (3) a person with final policymaking authority." Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001). Poole proceeds on the second theory, but provides no evidence of a widespread practice or custom of condoning violations like those alleged by Poole. This is fatal to his claims against the City. See Phelan v. Cook County, 463 F.3d 773, 790 (7th Cir. 2006)("The plaintiff must introduce evidence demonstrating that the unlawful practice was so pervasive that acquiescence on the part of policymakers was apparent and amounted to a policy decision.")

Poole argues that he does not have to show a pervasive practice because one violation is enough where the City fostered "'a culture that permitted and condoned violations of policies that were designed to protect' individuals like Poole or where the violation was a 'highly predictable consequence' of the [City's] failure to act." (See Pl.'s Resp. pp. 14-15)(citations omitted). He provides no factual support for this position, noting only that Kush and Officer Gurra ("Gurra"), the officer who later investigated the disputed arrest-related events, both testified that the arrest was handled in a manner consistent with City policies. But these statements do not support Poole's claims against the City because they were premised on a version of events that did not involve any constitutional violations.

Poole also argues that because Kush and Perovich were dating during the relevant time period, it was foreseeable that Perovich would have difficulty exhibiting restraint and was likely to be provoked into misbehavior. No authority or evidence is cited in support of this argument. In particular, plaintiff does not point to any evidence that the City knew Kush and Perovich were dating, that there was an express policy allowing or prohibiting dating among fellow police ...

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