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Johnson v. Arroyo

March 22, 2010

DERIC JOHNSON, PLAINTIFF,
v.
CHICAGO POLICE OFFICER OSCAR ARROYO, STAR NO. 10910, INDIVIDUALLY AND AS AGENT OF THE CITY OF CHICAGO, CHICAGO POLICE OFFICER MICHAEL BURKE, STAR NO. 8447, INDIVIDUALLY AND AS AGENT OF THE CITY OF CHICAGO, CHICAGO POLICE OFFICER SIDRONIO ALMAZAN, STAR NO. 5011, INDIVIDUALLY AND AS AGENT OF THE CITY OF CHICAGO AND CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Deric Johnson was arrested in Chicago's Uptown neighborhood and charged with three traffic violations and with possession of cocaine and marijuana that police found in his car. After an initial hearing, the judge dismissed the marijuana charge for lack of probable cause, and the prosecutor abandoned the traffic charges. At the next hearing, Plaintiff presented evidence calling into question the credibility of one of the arresting officers who testified that he first approached Plaintiff's car because it was parked in a no-parking zone. Before the court could rule on a motion to suppress the evidence of drugs found in Plaintiff's car, the prosecutor abandoned the cocaine charge. Plaintiff then filed suit in state court against the three officers involved in the arrest and against the City of Chicago, asserting state law claims of false arrest (Count I), false imprisonment (Count II), malicious prosecution (Count III), and intentional infliction of emotional distress ("IIED") (Count IV). Plaintiff's complaint also includes federal claims, against the individual Defendants only, for false arrest (Count V) and conspiracy (Count VI). Plaintiff's final claim (Count VII) seeks indemnification from the City for the Defendant Officers' wrongdoing. Defendants removed the case to federal court and now move for summary judgment on the claims of malicious prosecution, IIED, and conspiracy, as well as the portions of the indemnity claim that relate to those three counts. For the reasons that follow, the motion is granted.

BACKGROUND

On March 29, 2007, at approximately 9:20 p.m., three Chicago Police Officers, Defendants Oscar Arroyo, Michael Burke, and Sidronio Almazan, were driving in the 5000 block of North Kenmore Avenue when they saw a car parked on the west side of the street. (Defs' 56.1(a)(3) ¶¶ 5, 7.) The officers returned to the same area five or ten minutes later and saw the parked car again. (Id. ¶ 10.) Officer Arroyo later testified that his attention was drawn to the car because it was illegally parked in a no-parking zone. (Defs' Ex. H, at 4.) Defendants approached the vehicle and asked Plaintiff, who was in the driver's seat, for his license and insurance information. (Defs' Ex. H, at 10, Ex. I, at 7.) Officers Arroyo and Almazan both testified to detecting the smell of marijuana coming from the car. (Defs' Ex. C, at 16; Ex. H, at 4.) Arroyo also testified that, while standing outside the car, he observed a "rolled cigar containing a green leafy substance in the ashtray." (Defs' Ex. H, at 4, 11.)

After Plaintiff gave Arroyo his licence, Arroyo asked him to step out of the car. (Defs' Ex. I, at 7.) Then, without asking for consent, the officers searched the car and found 2 grams of marijuana and 2.5 grams of cocaine. (Defs' Ex. H, at 4-6, Ex. I, at 7-8; Pl's Ex. E.) The officers arrested Plaintiff and charged him with possession of marijuana and cocaine as well as operating a vehicle without insurance, failure to display a city vehicle sticker, and parking in a no-parking zone. (Defs' Ex. G; Pl's Ex. E.) Defendant Arroyo signed the tickets and criminal complaints, Arroyo and Burke signed the arrest report, and all three Defendant Officers are listed on the arrest report, which identifies Arroyo as the "attesting officer." (Defs' Ex. G; Pl's Ex. D, E.) In that arrest report, Arroyo wrote "5050 N. Kenmore Ave." as the location of the incident. (Pl's Ex. E.) Officer Almazan later explained that the officers could not see an address at the location where Plaintiff's car was parked, so they looked across the street and saw the numbers 5047 and 5051 before choosing 5050 as the address for the report. (Defs' Ex. C, at 33.)

At a preliminary hearing, the prosecutor abandoned (nolle prosequied) the traffic tickets, and the court found that there was no probable cause for the marijuana charge. (Defs' Ex. H at 14.) Plaintiff moved to suppress the cocaine evidence. At a hearing on that motion, Plaintiff's lawyer questioned Defendant Arroyo about the no-parking zone. (Defs' Ex. I, at 42-45.) Arroyo testified that he drove past 5050 N. Kenmore "a couple of days" before the hearing and observed a no-parking sign at that time. (Id. at 44.) Plaintiff's lawyer showed Arroyo photos of the 5000 block of North Kenmore that the lawyer had taken the day before the hearing, and Arroyo could not locate a no-parking sign in those photos. (Id. at 42-45.) When proceedings reconvened the next day, the prosecutor abandoned (nolle prosequied) the cocaine charge. (Defs' Ex. J at 26, 28.)

In their summary judgment submissions to the court, Defendants have admitted that there never was a no-parking sign at 5050 North Kenmore, though two such signs were located at approximately 5040 North Kenmore at the time Plaintiff was arrested. (Pl's 56.1(b)(3)(C) Statement of Additional Facts ¶¶ 9-10; Defs' Response to Pl's 56.1(b)(3)(C) Statement of Additional Facts ¶ 9.) Those signs were removed in May 2007, two months after Plaintiff's arrest and two months before the suppression hearing. (Pl's 56.1(b)(3)(C) Statement of Additional Facts ¶ 10.)

Immediately after his arrest, four months before the suppression hearing, Plaintiff had spent two days in jail awaiting his bond hearing. (Defs' Ex. L, at 29, 74.) He described the experience as "hell," but acknowledged that nothing out of the ordinary had occurred while he was in custody, that he did not suffer any mistreatment, and that he had no complaints about his treatment. (Id. at 29-31, 74-77.) According to Plaintiff, he "felt bad" when he was locked up; he "was going through a lot" because he was concerned about his job and his family. (Id. at 36-37.) Plaintiff testified that as a result of his arrest, he felt "depressed" until the charges were dropped. (Defs' Ex. L at 92-94.) Since his release, Plaintiff has not sought treatment for any physical or mental ailment related to his arrest. (Id. at 33-35.) Nor has the incident affected Plaintiff's employment or his relationship with his family. Plaintiff testified that when he informed his employer of his arrest, she told him it would "be all right and go back to work," that he received a pay raise later that year, and that his employer never brought up the incident. (Id. at 82-83, 85-86.) Plaintiff's children only stay with him part time, and he testified that he did not miss any time with them due to his arrest. (Id. at 87-89.)

Plaintiff's complaint includes seven counts: four state claims against all Defendants-false arrest, false imprisonment, malicious prosecution, and IIED-and two federal claims against the individual Defendants-false arrest and conspiracy-and a claim of indemnity against the City for the Defendant Officers on all counts. Defendants move for summary judgment on the malicious prosecution, IIED, and conspiracy claims, as well as the indemnity claim as it relates to those three.

ANALYSIS

The court will grant summary judgment 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "On a motion for summary judgment, the district court must construe all facts and draw all reasonable inferences in favor of the non-movant." Srail v. Village of Lisle, 588 F.3d 940, 948 (7th Cir. 2009).

A. Count III-Malicious Prosecution

In order to establish malicious prosecution under Illinois law, a party must show: "(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff."

Kunz v. DeFelice, 538 F.3d 667, 681-82 (7th Cir. 2008) (quoting Swick v. Liautaud, 169 Ill.2d 504, 512, 662 N.E.2d 1238, 1242 (1996)). Liability for malicious prosecution "extends to all persons who played a significant role in causing the prosecution of the plaintiff, provided all of the elements of the tort are present." Rodgers v. Peoples ...


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