The opinion of the court was delivered by: Michael J. Reagan United States District Judge
Derek Wynn, a resident of the Village of Herrin, Illinois, sued three law enforcement officers on August 11, 2008 in the Circuit Court of Williamson County, Illinois: Clinton Ronchetto, a Herrin police officer, Kyle Rinella, a Williamson County Deputy Sheriff, and Kyle Murray, a police officer from the Village of Energy, Illinois. Wynn alleges that the three engaged in a civil conspiracy to deprive him of his constitutional rights, making them liable under 42 U.S.C. § 1983. He also claims that Rinella and Murray are directly liable under § 1983 for this deprivation and includes in his complaint related tort claims under Illinois law. Ronchetto removed the case to this Court on September 12, 2008. The case was randomly assigned to Chief Judge Herndon, who transferred the case to the undersigned in September 2009.
Each of the defendants, one before transfer and two afterwards, moved that the Court grant partial summary judgment on the federal claims only (Docs. 16, 31, 44). Because there are material issues of fact with respect to the alleged conspiracy between all three defendants, the Court will deny in part the defendants' motions; however, because Wynn has failed to present any evidence that Rinella and Murray, by themselves, acted under color of state law, the Court will grant in part their motions. Also pending is Wynn's motion to strike the affidavit of Chad Parks offered by Ronchetto (Doc. 28), which the Court will deny as moot.*fn1
I. Applicable Legal Standard
Courts should grant summary judgment to the moving party when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party that moves for summary judgment "bears the initial responsibility of informing a court of the basis for its motion," meaning that it must identify the materials listed in Rule 56(c) that "demonstrate the absence of a genuine issue of material fact." Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may do so by "pointing out . . . that there is an absence of evidence to support the non-moving party's case." Id. (quoting Celotex Corp., 477 U.S. at 325).
Once the moving party satisfies its burden, "the non-moving party must do more than raise a metaphysical doubt as to the material facts" if it wants to defeat summary judgment. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Because the primary purpose of summary judgment is to isolate and dispose of factually unsupported claims, the non-moving party cannot rest on the pleadings but must respond, with affidavits or other materials under Rule 56(c), setting forth specific facts that show a genuine issue for trial. Fed. R. Civ. P. 56(e); Oest v. Ill. Dep't of Corrections, 240 F.3d 605, 610 (7th Cir. 2001) (quoting Fed. R. Civ. P. 56(e)). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-moving party must also be careful as to what Rule 56(c) materials it proffers to the Court, as "conclusory allegations and selfserving affidavits, if not supported by the record, will not preclude summary judgment." Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir. 1999) (citing Darnell v. Target Stores, 16 F.3d 174, 176--77 (7th Cir. 1994)). The non-moving party does have one benefit, though, in that the Court must construe the Rule 56(c) materials in the non-moving party's favor, including all reasonable inferences from those materials. Keri, 458 F.3d at 628.
Viewing the discovery and affidavits presented by the parties in the light most favorable to Wynn, the non-moving party, the Court assumes the following facts for the purpose of deciding the defendants' motions.
Wynn's problems began at a birthday party for Debbie Vigiano at a local bar on August 12, 2007. The birthday party was well attended by law enforcement officers because Vigiano's brother is a retired Herrin police officer. In attendance were the defendants and two others of note: Chad Parks, a Herrin police officer, and Michael Carruthers, a friend of Murray's, neither a party to the suit. Rinella, Murray and Parks were off duty at the time of the party. Ronchetto, who was on duty, arrived at 9 PM, but stayed only five minutes which was long enough to contribute to a gift. He was not present for the next event significant to the story. The rest of the notable parties that were already at the party were intoxicated by the time Wynn arrived.
Wynn and a friend Chris Goodson arrived at the bar around 1 AM. Rinella approached Wynn at the bar, saying that he heard that Wynn had a problem with Parks. An argument ensued, but Parks intervened to break up the altercation. The bar owner overheard during the argument someone exclaim that Wynn previously had made a pass at a wife or girlfriend. Wynn, for his part, acknowledges that he went out with a woman two years ago who was accompanied by Parks's wife.
The bar owner asked Wynn to leave; he did. When in the bar parking lot, Wynn was again approached by Rinella. He grabbed Wynn's shirt while Wynn was in his car and tried to turn the car off. Parks again intervened, and Wynn left the bar. He swung around to see if Goodson was outside waiting for a ride, but not seeing him Wynn left for home. A police vehicle approached on the other side of the road, and the car executed a U-Turn and began following Wynn. The vehicle followed Wynn until Wynn arrived in the alley behind Wynn's home around 2:00 am. The car was parked so that it was not visible to the street, being behind Wynn's detached garage. At 2:06 AM, Rinella, Murray and Carruthers attacked Wynn while he was sitting in his car. They struck him in the face, torso, head, back and legs, shattered Wynn's car window, damaged Wynn's car and tore his clothes, after which they fled in a truck.
After the attack, Wynn called the Herrin Police, and identified as his attackers Rinella, Murray, an unknown man and mistakenly thought that Parks attacked him as well. Herrin police informed him that he needed to take his complaint to the Illinois State Police, which he did. The resultant investigation brought criminal charges against Rinella, Murray and Carruthers, who pleaded guilty to the battery of Wynn along with criminal damage to property, mob action and criminal trespass.
Before the attack back at the bar, Rinella, Murray and Carruthers gave Goodson a ride home. During the ride, Rinella asked Goodson the address to Wynn's home. He asked several times, but Goodson refused to disclose the location and was dropped off at his home. After the attack, the three arrived at Vigiano's ...