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Swanigan v. Trotter

August 4, 2009

RASHAD B. SWANIGAN, PLAINTIFF,
v.
ROBERT TROTTER, THOMAS MUEHLFELDER, MICHAEL F. LYNCH, KEVIN T. MULLANE, JOSEPH J. POREBSKI, JAMES POREMBA, ANTHONY R. REYES, WILLIAM N. WOITOWICH, MAX J. GUAJARDO, STEVEN KAVANAGH, PETER W. ORSA, MATTHEW B. ROGUS, STEVEN F. SWITALLA, KEITH W. UGINCHUS, WILLIAM KAUPERT, LUIS MONTALVO, MICHAEL FRAZIER, THOMAS BEAZLEY, JANICE DILLON, KEVIN ANDERSON, CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Virginia M. Kendall, United States District Judge Northern District of Illinois

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Rashad Swanigan ("Swanigan") filed this nine-count action against twenty police officers and the City of Chicago, claiming violations of his civil rights following his arrest on August 22, 2006. Swanigan brings five claims under 42 U.S.C. § 1983: false arrest (Count I), unlawful detention (Count II), unlawful search and seizure (Count III), violation of due process (Count IV) and denial of access to counsel (Count V). The remaining four claims arise under Illinois law: intentional infliction of emotional distress (Count VI), malicious prosecution (Counts VII-VIII) and conversion (Count IX). Swanigan and the Individual Officer Defendants have filed cross motions for summary judgment. For the reasons stated, Defendants' Motion for Summary Judgment is granted in part and denied in part and Plaintiff's Partial Motion for Summary Judgment is granted in part and denied in part.

STATEMENT OF UNDISPUTED FACTS

The Chicago Police Department had assigned Defendant Officers Robert Trotter ("Trotter") and Thomas Muehlfelder ("Muehlfelder") to a bank robbery task force in the 17th District in response to several bank robberies in the area. (Pl. 56.1 Resp. ¶ 4.)*fn1 On August 22, 2006, before beginning their patrol, Trotter and Muehlfelder participated in the police roll call where other officers distributed a packet of information regarding a suspect wanted in connection with the bank robberies. (Pl. 56.1 Resp. ¶ 5.) The information packet described the suspect, known as the "Hard Hat Bandit," as a 25-30 year old black man with a dark complexion between 5'6" and 5'8" in height, weighing approximately 135-150 pounds, who wore a yellow construction hard hat and sometimes carried a blue steel revolver. (Id.; Pl. 56.1 Resp. ¶ 7.; Def. 56.1 Resp. ¶¶ 11-13.) The packet also included surveillance photographs of various other people and a crime analysis report that indicated that all of the related robberies occurred in the late afternoon hours. (Pl. 56.1 Resp. ¶¶ 5, 7.)

At approximately 4:00 p.m. on August 22, 2006, Swanigan, a 30 year old union carpenter, attempted to cash two checks at the Labe Bank located at 4337 N. Elston in Chicago, Illinois, at the intersection of Elston Avenue and Pulaski Road. (Def. 56.1 Resp. ¶¶ 7, 9.) The bank refused to cash one of the checks because it was not drawn on Labe Bank. (Swanigan Dep. at 8:17-19.) Although the other check was drawn on Labe Bank, Swanigan chose not to cash that check. (Id. at 158:20-159:5.) After Swanigan exited the bank, while driving in their squad car, Trotter and Muehlfelder observed Swanigan standing at the corner of Pulaski and Elston, in front of the bank. (Pl. 56.1 Resp. ¶ 6; Def. 56.1 Resp. ¶ 15.) The officers agreed that Swanigan fit the description of the suspected bank robber. (Pl. 56.1 Resp. ¶ 7.) As they drove, Trotter made eye contact with Swanigan. (Pl. 56.1 Resp. ¶ 8.) Swanigan then quickly turned, dropped his head and walked towards the parking lot. (Id.)*fn2 The officers turned the car around to investigate the situation further and observed Swanigan entering a car from the passenger side. (Pl. 56.1 Resp. ¶ 9; Swanigan Dep. at 131:1-19.)*fn3 Once the police reached the parking lot, they entered the license plate of Swanigan's car into the Law Enforcement Agency Database System (LEADS) and received a report that the license plates on Swanigan's car were suspended for a mandatory insurance violation. (Pl. 56.1 Resp. ¶ 10.)*fn4 Through the police dispatch radio system, they confirmed that the license plates had been suspended. (Id.) Based on that information, Trotter and Muehlfelder decided to perform a traffic stop. (Pl. 56.1 Resp. ¶ 11.)

As the officers approached the vehicle in the parking lot, they observed Swanigan lying across the front seat of the car with his feet dangling out of the passenger's side door and his head underneath the steering column as he attempted to "hot wire" the vehicle to get it started. (Def. Add'l 56.1 Resp. ¶ 1; Swanigan Dep. at 130:22-132:10.)*fn5 Swanigan successfully started the car when the officers approached him and asked for his driver's license and insurance information. (Pl. 56.1 Resp. ¶ 11.)*fn6 Swanigan provided his driver's license and told the officers that he had insurance but he did not hand them a proof of insurance card. (Id.; Def. Add'l 56.1 Resp. ¶ 2.) Despite the information contained in the LEADS report, Swanigan had valid insurance for his vehicle on August 22, 2006. (Def. 56.1 Resp. ¶ 25.) Trotter ordered Swanigan out of the car and placed him in handcuffs. (Pl. 56.1 Resp. ¶ 12.) After Trotter searched him and read him his Miranda rights, Muehlfelder escorted Swanigan towards the police car. (Id.; Trotter Dep. at 39:1-4.) As they moved towards the police car, Muehlfelder roughly pushed, tugged and shook Swanigan. (Pl. 56.1 Resp. ¶ 12.) When Swanigan complained that his handcuffs were too tight on his wrists, Muehlfelder tightened them further and placed Swanigan inside the police car, driving his elbow into Swanigan's right side, near his ribs. (Id.; Def. Add'l 56.1 Resp. ¶ 9.) Sergeant William Kaupert ("Kaupert") and Officer Luis Montalvo ("Montalvo") arrived on the scene and attempted to interrogate Swanigan. (Pl. 56.1 Resp. ¶ 15.) When Swanigan refused to talk to Kaupert, Montalvo pulled Swanigan out of the police car, pushed him once and demanded that he talk to the officers. (Id.; Def. Add'l 56.1 Resp. ¶ 10.) After Swanigan refused, Montalvo put him back into the police car. (Pl. 56.1 Resp. ¶ 15.)

Trotter and Muehlfelder then conducted a search of Swanigan's vehicle although Swanigan repeatedly informed them that he did not consent to the search. (Pl. 56.1 Resp. ¶ 14; Def. Add'l 56.1 Resp. ¶ 8.) During the search, they found a steak knife with a fixed blade longer than two and a half inches on the passenger seat and several hard hats in the back seat, including a yellow one. (Pl. 56.1 Resp. ¶¶ 13-14; Def. Add'l Resp. ¶ 5; Def. 56.1 Resp. ¶ 21.) Trotter, Muehlfelder, Kaupert and Montalvo huddled together to discuss how to handle the situation. (Pl. 56.1 Resp. ¶ 17.) After finding the construction hats in the car and comparing Swanigan with the description of the Hard Hat Bandit, the officers believed that Swanigan could be the Hard Hat Bandit. (Pl. 56.1 Resp. ¶ 16; Def. 56.1 Resp. ¶ 17.) Kaupert approved arresting Swanigan for traffic violations and told Trotter and Muehlfelder to contact the detectives investigating the bank robberies. (Def. 56.1 Resp. ¶ 20.) Trotter and Muehlfelder had Swanigan's car towed and drove him to the 17th District Police Station for processing at approximately 4:20 p.m. (Pl. 56.1 Resp. ¶ 19; Pl. Add'l 56.1 Resp. ¶ 14.) They notified the FBI and the Chicago Police Department's Detective Division that they had Swanigan in custody and that they believed he could be the Hard Hat Bandit. (Pl. 56.1 Resp. ¶ 19.) Detectives Kevin Mullane ("Mullane") and Michael Lynch ("Lynch") began investigating Swanigan's involvement in the bank robberies. (Pl. 56.1 Resp. ¶ 25.) The detectives did not conduct an investigation into the traffic or weapon charges. (Def. 56.1 Resp. ¶ 44.)

When they arrived at the police station, Trotter left Swanigan handcuffed in a holding cell while he and Muehlfelder prepared the arrest and inventory paperwork. (Pl. 56.1 Resp. ¶ 20.) The handcuffs caused welt marks on Swanigan's wrist and caused the fingers on one of his hands to go numb but he did not complain about the tightness of the handcuffs. (Def. Add'l 56.1 Resp. ¶ 19; Swanigan Dep. at 204:13-19, 205:1-4.) Trotter prepared an arrest report to indicate that he had cited Swanigan for the following offenses: 1) unlawful use of a weapon in violation of § 8-24-020 of Chicago's Municipal Code; 2) operating a vehicle with suspended registration in violation of 625 ILCS 5/3-702; and 3) operating a vehicle without insurance in violation of 625 ILCS 5/3-707. (Pl. 56.1 Resp. ¶ 20; Def. Ex. V.) While Swanigan remained in the holding cell, Mullane and Lynch discussed the evidence with Trotter and Muehlfelder. (Pl. 56.1 Resp. ¶ 26.) After Swanigan had been in the holding cell for about twenty or thirty minutes, two unidentified officers ignored his requests to use the restroom and Swanigan urinated on the floor. (Pl. 56.1 Resp. ¶ 21; Def. Add'l 56.1 Resp. ¶ 16.) When Trotter returned to Swanigan's holding cell and noticed the urine on the floor, Trotter told him that he should remain in the cell "and sit in this piss." (Def. Add'l 56.1 Resp. ¶ 17.)

At 6:57 p.m., Acting Watch Commander Lieutenant Joseph Porebski ("Porebski") approved the arrest reports that Trotter and Muehlfelder prepared. (Def. 56.1 Resp. ¶ 28.) In reviewing the arrest reports, Porebski examined them for completeness and to determine if the report's narrative supported a finding of probable cause. (Id.) At 7:17 p.m., Trotter and Muehlfelder transferred Swanigan to the lockup and told Porebski that Swanigan had been charged with traffic offenses and the unlawful use of a weapon. (Pl. 56.1 Resp. ¶ 23.) They also told Porebski that they suspected Swanigan was involved with several bank robberies because he matched the general description of the Hard Hat Bandit and because they found him near a bank with construction hard hats in his car.

(Pl. 56.1 Resp. ¶¶ 23-24.) Trotter and Muehlfelder had no further contact with Swanigan after they took him to the lockup. (Pl. 56.1 Resp. ¶ 22; Def. 56.1 Resp. ¶ 36.) Once Swanigan arrived at the lockup, unidentified officers searched and fingerprinted him. (Def. 56.1 Resp. ¶ 34.)

After escorting Swanigan to the lockup, Trotter and Muehlfelder discussed the evidence with Mullane and Lynch and showed them the hard hats found in Swanigan's car. (Pl. 56.1 Resp. ¶ 26.) Based upon their investigation, Mullane and Lynch determined that Swanigan also could have been involved in the August 17, 2006 "Popeye's Chicken Robbery," a different robbery linked with the Hard Hat Bandit. (Pl. 56.1 Resp. ¶¶ 25, 38.) They notified their supervisor, Sergeant Max Guajardo ("Guajardo"), that they recommended placing a "hold" on Swanigan to allow sufficient time to round up witnesses and create a lineup for the investigation of the Popeye's Chicken Robbery. (Pl. 56.1 Resp. ¶ 25; Def. Add'l 56.1 Resp. ¶ 14; Def. 56.1 Resp. ¶¶ 39-40.) The hold request was not directed at the traffic or weapon charges. (Def. 56.1 Resp. ¶ 45.) When officers place a hold on a suspect, the suspect will not be released from custody or go to court until the hold is lifted. (Def. 56.1 Resp. ¶ 39.) After the watch commander places a hold on a suspect, only the officer that initiated the hold request can terminate the hold. (Def. 56.1 Resp. ¶ 53.) Guajardo agreed with the request and asked Porebski to place a hold on Swanigan, which he did at 7:36 p.m. (Pl. 56.1 Resp. ¶¶ 25, 27; Def. 56.1 Resp. ¶ 41.) Without the hold, the police could have released Swanigan on bail on August 22, 2006. (Def. 56.1 Resp. ¶ 46.) As a result of the hold, Swanigan could not post bond before August 24, 2006. (Def. 56.1 Resp. ¶ 55.)

After Swanigan answered screening questions, took booking photographs and allowed officers to fingerprint him, he made phone calls to his grandmother and father*fn7 at 9:00 p.m. (Pl. 56.1 Resp. ¶ 30.) Swanigan's father told him that he would visit the 17th District Police Station the next day. (Id.) After the phone calls, officers offered Swanigan some pizza to eat. (Pl. 56.1 Resp. ¶ 31.) Although he only ate the crust because he thought the pizza did not look appetizing, Swanigan did not ask for anything else to eat. (Id.) An unidentified officer took Swanigan's shirt away from him but when he became cold in the lockup that night, a different unknown officer gave him a paper suit to wear. (Id.; Def. Add'l 56.1 Resp. ¶ 20.) At 12:05 a.m. on August 23, 2006, Swanigan's fingerprints cleared the system, indicating that he did not have any outstanding arrest warrants. (Def. 56.1 Resp. ¶ 50.) Although his fingerprints cleared, Swanigan remained in custody because of the hold placed on him. (Def. 56.1 Resp. ¶ 49.)

At 9:54 a.m. on August 23, 2006, the police transported Swanigan from the 17th District Police Station to the Area 5 Detective Division. (Pl. 56.1 Resp. ¶ 32.) Officer Peter Orsa ("Orsa") worked at the 17th District's intake desk that day and entered Swanigan's transfer information into the computer system. (Id.) Orsa never had direct contact with Swanigan. (Id.) When Swanigan arrived at the Area 5 Detective Division, officers placed him uncuffed in a room. (Pl. 56.1 Resp. ¶ 33.) While waiting thirty to forty five minutes for a detective to meet with him, Swanigan knocked on the door and twice asked an unidentified officer to use a restroom but the officer told him to wait each time. (Id.) Swanigan urinated on the floor while he waited in the room. (Id.; Def. Add'l 56.1 Resp. ¶ 16.) Detective Anthony Reyes ("Reyes") came into the room and stepped in the urine on the floor. (Def. Add'l 56.1 Resp. ¶ 18.) In response, Reyes cursed at Swanigan. ( Pl. 56.1 Resp. ¶¶ 33, 34.) Reyes then placed him in leg shackles and took him to a different room where the police could set up a lineup. (Id.) Inside that room, an unidentified officer escorted people to the restroom and mentioned to Swanigan that he had given bologna sandwiches, chips and soft drinks to the others in the room. (Pl. 56.1 Resp. ¶ 35.) Because he is a vegetarian, Swanigan asked for granola bars, fruits or vegetables. (Id.; Def. Add'l 56.1 Resp. ¶ 21.) The officer told him that the police department did not have those types of food available. (Pl. 56.1 Resp. ¶ 35; Def. Add'l 56.1 Resp. ¶ 21.) The officer offered Swanigan "flamin' hot" chips but Swanigan declined them. (Pl. 56.1 Resp. ¶ 35; Def. Add'l 56.1 Resp. ¶ 21.)

After Swanigan arrived in the room, the police conducted several lineups. (Pl. 56.1 Resp. ¶ 36.) Several witnesses identified Swanigan as the offender in the Popeye's Chicken Robbery. (Id.) At the same time, Detective Michael Frazier, assigned to the FBI Violent Crime Task Force, conducted lineups in conjunction with an investigation into the Hard Hat Bandit bank robberies. (Pl. 56.1 Resp. ¶ 37; Def. Add'l 56.1 Resp. ¶ 15; Pl. Add'l 56.1 Resp. ¶¶ 17-18.) The Task Force's investigation into the bank robberies was completely independent from the Chicago Police Department's investigation into the Popeye's Chicken Robbery. (Pl. 56.1 Resp. ¶ 37.) Although Frazier believed that Swanigan was a "pretty close" match to the surveillance photographs he had seen of the Hard Hat Bandit, neither of the two eyewitnesses to the bank robberies identified Swanigan as the Hard Hat Bandit. (Pl. 56.1 Resp. ¶¶ 38-39.) At 2:45 p.m., Sergeant Thomas Beazley ("Beazley") approved the General Offense Case Report for Swanigan. (Pl. 56.1 Resp. ¶ 54.) Beazley's approval only meant that the report had been completed properly according to the police department's internal guidelines; it did not mean that he approved of Swanigan's arrest or detention. (Id.)

Following the lineup, Frazier and Mullane took Swanigan's fingerprints. (Pl. 56.1 Resp. ¶ 40.) During that time Mullane made general conversation with Swanigan. (Id.) Later, when Mullane tried to ask Swanigan questions about the charges, Swanigan refused. (Id.) Frazier did not attempt to interrogate Swanigan that day. (Pl. 56.1 Resp. ¶ 42.) That evening, the police permitted Swanigan to see his father, who brought apples, bananas and grapes for Swanigan to eat. (Pl. 56.1 Resp. ¶ 43.) Additionally, Frazier gave Swanigan a salad to eat. (Id.) At 1:46 a.m. on August 24, 2006, Officer Matthew Rogus ("Rogus") transported Swanigan back to the 17th District station, where Officer Steven Switalla ("Switalla") was on duty as the Lockup Keeper until Officer Keith Urginchus ("Urginchus") relieved him at 5:30 a.m. (Pl. 56.1 Resp. ¶¶ 44-45.) Urginchus had turkey bologna and white bread available in the lockup to feed to the detainees. (Pl. 56.1 Resp. ¶ 45.)

Swanigan remained at the 17th District Station until Officer Steven Kavanaugh ("Kavanaugh") took him back to the Area 5 Detective Division at 12:38 p.m. on August 24, 2006. (Pl. 56.1 Resp. ¶ 46.) The fifteen minute ride to Area 5 was the only contact between Swanigan and Kavanaugh. (Id.) At 1:00 p.m., Swanigan's attorney arrived at Area 5 and met with his client for about thirty minutes after a brief conversation with Mullane. (Pl. 56.1 Resp. ¶¶ 47-48.) Although he participated in more lineups that day, he did not discuss the charges against him based upon his lawyer's advice. (Pl. 56.1 Resp. ¶ 49.)

At 4:30 p.m. on August 24, 2006, the police requested that an Assistant States Attorney from the Felony Review group conduct a review of the case. (Pl. 56.1 Resp. ¶ 50; Def. 56.1 Resp. ¶ 56.) In response, Assistant States Attorney Emily Stevens ("Stevens") interviewed all of the witnesses to the Popeye's Chicken Robbery. (Pl. 56.1 Resp. ¶ 50.) During the interviews, one of the witnesses that had identified Swanigan as the perpetrator stated that he or she had incorrectly identified Swanigan in the lineup the previous day. (Id.) Stevens declined to charge Swanigan with the Popeye's Chicken Robbery because the police did not recover proceeds or a weapon from the crime, Swanigan did not give an incriminating statement, two witnesses had misidentified him during the lineups and Swanigan's carpentry work provided a reason for him to have multiple hard hats in his car. (Id.; Def. 56.1 Resp. ¶ 57.) She ended her review of the case at 6:43 p.m. on August 24, 2006. (Def. 56.1 Resp. ¶ 58.) Once Stevens concluded her review, Lynch released the hold on Swanigan.

(Pl. 56.1 Resp. ¶ 59.) At 7:30 p.m., Lieutenant William Woitowich ("Woitowich") released Swanigan from custody after Swanigan posted his driver's license as bail for the traffic charges. (Pl. 56.1 Resp. ¶ 51; Def. 56.1 Resp. ¶ 60.) In total, Swanigan spent 51.5 hours in custody, 43.5 of which occurred after his fingerprints had cleared. (Def. 56.1 Resp. ¶ 61.) During the detention, Swanigan did not receive a judicial determination of probable cause for his arrest. (Def. 56.1 Resp. ¶ 66.)

On September 1, 2006, the City of Chicago's Department of Administrative Hearings sent Swanigan a notice of hearing for the municipal code violation indicating that Swanigan had been charged with having an "unlawful firearm or laser sight accessory in [his] motor vehicle" in violation of § 8-20-015 of the Municipal Code of Chicago. (Pl. 56.1 Resp. ¶ 20; Pl. Ex. I.) The notice made no reference to a charge for unlawful use of a weapon under § 8-24-020 of the Municipal Code of Chicago and nothing in the record explains why the paperwork indicated a pending firearms charge against Swanigan. (Pl. Ex. I.) A court dismissed the traffic charges against Swanigan on September 25, 2006. (Pl. 56.1 Resp. ¶ 52; Def. 56.1 Resp. ¶ 67.) On September 26, 2006, the City non-suited the municipal violation charge for "unlawful firearm or laser sight accessory in motor vehicle" under § 8-20-015 of the Municipal Code of Chicago after Trotter informed the prosecution that Swanigan did not posses a firearm or laser sight accessory on August 22, 2006. (Pl. 56.1 Resp. ¶ 52; Def. 56.1 Resp. ¶ 68.) Approximately two weeks later, Sergeant James Poremba ("Poremba") reviewed and approved the Detective Division's reports regarding Swanigan by marking the file "Cleared - closed other exceptional." (Pl. 56.1 Resp. ¶ 53; Def. Add'l Resp. ¶ 22.) That designation and the accompanying narrative indicated that the police closed their investigation because the prosecutor refused to approve charges. (Poremba Dep., at 16:9-15.)*fn8 In October 2006, the police captured Brian Price, who pled guilty to the Hard Hat Bandit bank robberies. (Def. 56.1 Resp. ¶ 72.)

On August 22, 2007, Swanigan initiated this action. In his Third Amended Complaint, he brought claims against all defendants for all counts. Swanigan brought federal causes of action under 42 U.S.C. § 1983 against all Individual Officer Defendants for false arrest (Count I), unlawful detention (Count II), unreasonable search and seizure of his vehicle (Count III), due process violations (Count IV), and denial of access to counsel (Count V). Additionally, he brought state law causes of action against all of the Individual Officer Defendants and the City of Chicago for intentional infliction of emotional distress (Count VI), malicious prosecution with respect to the traffic tickets (Count VII), malicious prosecution for the unlawful use of a weapon charge (Count VIII) and conversion (Count IX). Defendants have moved for summary judgment on all counts.*fn9 Swanigan moved for partial summary judgment, claiming that he is entitled to judgment as a matter of law against several officers in Counts I and II. Specifically, he claims that he is entitled to summary judgment for false arrest against Trotter, Muehlfelder, Kaupert and Porebski and for unlawful detention against Trotter, Muehlfelder, Kaupert, Lynch, Mullane, Porebski, Guajardo, Woitowich, Anderson and Dillon.

STANDARD OF REVIEW

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("'Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.'").

DISCUSSION

I. Voluntary Dismissal of Claims

As a preliminary matter, in his Brief in Opposition to Defendants' Motion for Summary Judgment, Swanigan voluntarily consented to the dismissal of all claims against the following defendants: Kavanaugh, Peter Orsa ("Orsa"), Matthew Rogus ("Rogus"), Steven Switalla ("Switalla"), Keith Uginchus ("Uginchus") and Beazley. Those defendants all request that the Court dismiss them from the action with prejudice.

After a defendant has served either an answer or a motion for summary judgment, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed. R. Civ. P. 42(a)(2). District courts have discretion to impose terms and conditions as a quid pro quo of permitting the plaintiff to voluntarily dismiss the suit in order to protect the other parties from prejudice. See Ratkovich v. Kline, 951 F.2d 155, 157-58 (7th Cir. 1991). When a plaintiff moves to voluntarily dismiss defendants after the defendants have served an answer or a motion for summary judgment, a court may dismiss the case with prejudice after taking the following factors into account: 1) the defendant's effort and expense of preparation for trial; 2) excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action; 3) insufficient explanation for the need to take a dismissal; and 4) whether the defendant has filed a motion for summary judgment. See Pace v. S. Express Co., 409 F.2d 331, 334 (7th Cir. 1969).

Here, Swanigan consented to the dismissal of certain defendants only after the parties put much expense and effort into the litigation. The parties engaged in an extensive discovery period that included at least sixteen depositions. Swanigan's consent to dismissal did not include any explanation of his need to voluntarily dismiss those defendants and Swanigan did not consent to their dismissal until after all defendants had moved for summary judgment. Therefore, under Fed. R. Civ. P. 42(a)(2), the Court ...


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