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Joseph Michael Rizzo v. the City of Wheaton

March 23, 2010


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


Plaintiff, Joseph Michael Rizzo, brings this action pursuant to 42 U.S.C. § 1983 against the State of Illinois, the City of Wheaton, and Wheaton Police Officers Ed Hasan, Michael Schumaker, and Clifford Dillon, in their official and individual capacities. Plaintiff claims that his Fourth and Fourteenth Amendment rights against unreasonable search and seizure were violated when Defendants entered his home and seized him without a warrant and without consent. Plaintiff further alleges he was arrested for a felony when his offense only classified as a misdemeanor. The court dismissed the State of Illinois and the City of Wheaton on initial review of Plaintiff's amended complaint [26]. Defendants Hasan, Schumaker and Dillon have now moved for summary judgment on all claims. For the reasons set forth below, the motion is granted.


On September 25, 2008, three City of Wheaton police officers--Defendants Ed Hasan, Michael Schumaker, and Clifford Dillon--went to the home of Plaintiff Joseph Michael Rizzo with the purpose of arresting Rizzo on public indecency charges. (Plaintiff's Rule 56.1 Statement of Material Facts (hereinafter "Pl.'s 56.1 Statement") at ¶¶ 1, 2.) Rizzo resided at 26 W. 080 Roosevelt Road, in Wheaton, Illinois.*fn2 (Id. at ¶ 5.) The building at this location is a split-level house with six bedrooms, each of which is available for rent--three in the basement and three on the second floor. (Id. at ¶ 6; Defendants' Rule 56.1(a)(3) Statement of Material Facts (hereinafter "Defs.' 56.1 Statement") at ¶ 10.) As of September 25, 2008, two of the upstairs bedrooms and two of the downstairs bedrooms were occupied. (Id. at ¶ 12.)

Plaintiff Rizzo rented one of the bedrooms on the second floor of the house. An individual named Kyle, last name unknown, rented the other second-floor bedroom, and two basement bedrooms were rented by Gary Moore and Ken Schneider. (Pl.'s 56.1 Statement ¶ 9; Defs.' 56.1 Statement at ¶ 12.) The entrance to the main floor was located at the front of the house and there was a back entrance that led to the basement. (Defs.' 56.1 Statement ¶¶ 13, 14.) A door that can be locked connects the basement to the living room of the house. Rizzo claims that residents of the basement bedrooms were not permitted on the main floor. (Rizzo Dep. 19, Ex. A to Defs.' 56.1 Statement.) The building owner, Thomas Schmerold, however, testified at his deposition that building residents were not permitted in one another's bedrooms, but all of the building's residents were permitted to use the living room, dining room and kitchen on the main floor. (Schmerold Dep. 17-18, 27, Ex. E to Defs.' 56.1 Statement.) Every resident was also allowed to have guests. (Defs.' 56.1 Statement ¶ 17.)

On September 25, 2008, the Wheaton Police Department received a phone call from a neighbor who lived across the street from Rizzo's residence. The neighbor reported she had observed Rizzo standing in the exterior doorway of his house, naked from the waist down, holding his erect penis in his hand and masturbating while staring at her. (Id. at ¶ 19; Schumaker Aff. ¶¶ 3, 4, Ex. C to Defs.' 56.1 Statement.) Defendants and several other police officers responded to the call. (Defs.' 56.1 Statement ¶ 20.) Defendants did not have a warrant for Rizzo's arrest. (Id. at ¶ 21.) On arrival at Rizzo's residence, Officer Hasan went to the rear of the house while other officers knocked on the front door. (Id. at ¶ 22.) While Hasan stood at the rear of the house, Ken Schneider, one of the basement bedroom residents, exited the house from the back door. (Id. at ¶ 23.) Officer Hasan explained his presence there and asked Mr. Schneider if he could come inside to talk to Rizzo. (Id. at ¶ 24.) Mr. Schneider allowed Officer Hasan into the house and directed him to Rizzo's bedroom on the upstairs level. (Id. at ¶¶ 25, 26.)

After a sergeant advised Officer Dillon that a resident had consented to police entry, Dillon entered the house through the front door. (Id. at ¶ 28.) As Detective Dillon entered the house, he saw, standing in the living room with other officers, a man whom he understood to be one of the residents and who directed him to Rizzo's bedroom. (Id. at ¶ 29.) Around this time, Officer Schumaker knocked on the front door of the house and was allowed entry by a man whom he understood to be a resident of the house. (Id. at ¶ 30.) Officer Schumaker stood at the base of the stairs while Officers Hasan and Dillon proceeded upstairs and down a hallway to Rizzo's bedroom. (Id. at ¶ 31.)

The door to Rizzo's bedroom was closed and Rizzo was inside. (Id. at ¶ 32.) The police officers knocked on the door and yelled, "Rizzo, come out of the room, we know you're in there, or else we won't leave." (Id. at ¶¶ 33, 34.) Rizzo testified at his deposition that he opened the door because the officers were yelling loudly at him; he had no specific memory of any physical contact from the officers, and Defendant officers have all denied having any contact with Rizzo before he stepped out of his bedroom. (Rizzo Dep. 57, 58; Hasan Aff. ¶¶ 11, 12, Ex. B to Defs.' 56.1; Schumaker Aff. ¶¶ 9, 10, Ex. C to Defs.' 56.1 Statement; Dillon Aff. ¶¶ 10, 13, Ex. D to Defs.' 56.1 Statement.) At Officer Hasan's direction, he walked down the hallway and down to the first floor. Then, after speaking with the officers, he walked outside with them.(Defs.' 56.1 Statement ¶¶ 37, 38.)

The neighbor who called in the complaint had told Officer Schumaker that she wanted to sign a complaint against Rizzo for public indecency. (Defs.' 56.1 Statement ¶ 39.) Once outside the house, the police informed Rizzo they were placing him under arrest. (Id. at ¶¶ 40, 41.) Officer Hasan contacted the DuPage County State's Attorney for screening of the case as a felony because he was aware that Rizzo had a history of arrests for public indecency and similar misconduct within the City of Wheaton and surrounding communities. (Hasan Aff. ¶17.)*fn3 On September 26, 2008, the DuPage County State's Attorney authorized felony charges against Rizzo. (Felony Complaint, Ex. F to Defs.' 56.1 Statement.) On October 23, 2008, a grand jury indicted Rizzo on felony public indecency charges. (Indictment, Ex. G to Defs.' 56.1 Statement.) The charges against Rizzo were later lowered to a misdemeanor; though Rizzo does not know precisely how this happened, he acknowledges that it was a product of efforts on the part of the Public Defender who represented him. (Defs.' 56.1 Statement ¶ 48; Rizzo Dep. 55-56, Ex. A to Defs.'s 56.1 Statement.) On February 5, 2009, a jury convicted Rizzo of a Class A misdemeanor public indecency charge, and he was sentenced to 364 days in the county jail. (Criminal Sentence Order, Ex. H to Defs.' 56.1 Statement.) Rizzo was incarcerated from September 25, 2008 through March 24, 2009. (Id. at ¶ 50.)


Summary judgment is appropriate if the materials in the record demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In considering a motion for summary judgment, the court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in its favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009). The mere existence of an alleged factual dispute between the parties, however, will not defeat a properly supported motion for summary judgment where there is no genuine issue of material fact--a fact that might affect the outcome of the suit under applicable substantive law. See East-Miller v. Lake County Highway Department, 421 F.3d 558, 561-62 (7th Cir. 2005) (citing Anderson).

A. Claim of Unlawful Entry

Rizzo initially claims that Defendants entered his home without a warrant and without consent in violation of his Fourth and Fourteenth Amendment rights. The record, ...

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