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Harney v. City of Chicago

February 10, 2010


The opinion of the court was delivered by: Judge Joan H. Lefkow


In this section 1983 civil rights suit against the City of Chicago, Chicago Police Officer Joseph Midona, Jr., and Pamela DeVarela, plaintiffs Timothy Harney and Patricia Muldoon allege claims against Midona for false and unlawful arrest and seek indemnification from the City of Chicago on these claims. Plaintiffs also allege state law claims against DeVarela. Pending before the court is the City of Chicago's and Midona's motion for summary judgment. For the following reasons, their motion for summary judgment [#58] is granted.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To determine whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed. R. Civ. P. 56(c) & advisory committee's notes. The party seeking summary judgment bears the initial burden of proving that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact is one that might affect the outcome of the suit. Insolia, 216 F.3d at 598--99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).


I. The Parties' Reported Interactions Prior to May 2005

Plaintiffs live in one unit of a three-unit condominium. DeVarela occupies another unit with Renata Pluharik. Plaintiffs and DeVarela have a tense relationship, and their disputes have at times led to the police being called. On April 17, 2004, DeVarela reported damage to her car mirror to the police, and Midona was dispatched to respond. DeVarela claimed plaintiffs had broken the mirror but, as she had no concrete proof, Midona stated in his police report that an unknown offender caused the damage. On September 21, 2004, Harney claimed one of DeVarela's dogs bit him. On September 23, 2004, DeVarela called Midona on his personal cell phone and informed him that plaintiffs chased her up the stairs of the building and pushed her when she tried to enter her unit. Midona then prepared a police report of this incident. Around this time, DeVarela, with Pluharik's help, installed a motion-activated video camera in the shared three-car garage.

II. Events Surrounding Plaintiffs' May 18, 2005 Arrests

On May 16, 2005, DeVarela called Midona on his cell phone. The next day, DeVarela met with Midona and a sergeant at DeVarela's husband's apartment. At some point before plaintiffs were arrested on May 18, 2005, DeVarela provided Midona with a videotape, which Midona viewed. DeVarela claimed the video showed plaintiffs damaging her car, specifically, stealing a valve cap and keying the rear bumper.

The videotape contained footage of two separate incidents that occurred in March 2005 in the garage plaintiffs, DeVarela, and another tenant of their building shared. The first clip, on March 6, 2005, depicts a man, identified as Harney, performing a series of tasks. Harney first examines his car's rear left tire, then briefly stops at DeVarela's car's rear left tire before squatting by her rear right tire and fiddling with it. He returns to his rear left tire, performs some work on it, and then turns to look at DeVarela's front left tire. After some time passes, Harney pulls his car partially out of the garage, changes the rear left tire, and drives away.Midona testified that the video showed "Mr. Harney removing the valve [cap] off of [DeVarela's] tire, letting out all the air in her vehicle's tire, and then putting that cap on his own car." Ex. 6 to Pl.'s L.R. 56.1 Stmt. at 23:19--21, hereinafter "Midona Dep." Although Midona admitted that he did not see Harney taking a valve cap or air coming out of DeVarela's tire on the video, he explained that DeVarela told him this was what happened. The second clip, on March 26, 2005, depicts a woman, identified as Muldoon, moving around the garage. Muldoon closes the garage door and walks past the rear of DeVarela's car with an object in her right hand. She then turns around, walking back toward her own car, with her right arm at her side, her wrist turned away from her body. Once she passes DeVarela's car, she turns her wrist over. She then opens the garage door and walks out.Midona testified that the video showed "Ms. Muldoon coming into the garage, shutting the garage door, walking behind her vehicle -- Ms. Devarela's vehicle -- and using some kind of an instrument and scratching the back of her vehicle. Then she goes and opens the door and I believe just leaves the garage." Id. at 23:22--24:2. Midona also testified that DeVarela showed him the damage to her car, although he testified that he thought the damage was on the metal part of the trunk, not the rear bumper. On May 17, 2005, DeVarela obtained an estimate of the damage to her car from the keying.

On May 18, 2005, DeVarela again called Midona and advised him that she had obtained a damage estimate. Two detectives, Kurt Kourakis and Gloria Ekerman, were sent to DeVarela's apartment to investigate. Kourakis and Ekerman viewed the video footage, and DeVarela and Pluharik described what happened and told the detectives that the male and female appearing in the video were plaintiffs. Kourakis also inspected DeVarela's vehicle. At some point that day, DeVarela signed a criminal complaint against each of the plaintiffs.

After the detectives met with DeVarela and Pluharik, they joined Midona to effectuate plaintiffs' arrest, without a search warrant but believing they had probable cause to do so. Harney testified that he met Midona, Kourakis, and Eckerman on the front walkway of the condominium building. Midona told Harney that he was there to arrest him as there was tape showing him letting air out of DeVarela's tire. Midona also informed Harney that there was footage of Muldoon keying DeVarela's car and that the officers wanted to speak with her. After telling the officers that Muldoon was in bed and that he would go tell her, Harney entered the building and the officers followed him into plaintiffs' unit. Harney went to the bedroom to tell Muldoon that the police wanted to talk to her, and Muldoon met them in the kitchen. After the officers told her they had a video of her keying DeVarela's car, they told her she was under arrest. At no point did Midona ask plaintiffs for their versions of the two incidents in question. Plaintiffs were taken out of their home to a squad car, where they sat for some time before being transported to the 18th District for processing.

Harney was charged with misdemeanor theft of property with a value under $300. Harney proceeded to trial on the charge. In finding the state did not sustain its burden of proving the crime beyond a reasonable doubt, the court stated its opinion that the video "shows a man working on his tire going over doing something or looking at a tire." Pl.'s Ex. 9 at 32:22--23.

Muldoon was charged with felony damage to property. She was held overnight and then released on her own recognizance after a judge found probable cause to require Muldoon to answer the charge. Muldoon proceeded to trial, and upon a motion for directed finding the court found Muldoon not guilty. In so finding, the court noted that "the quality of the video is such ...

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