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Cote v. Hopp

April 1, 2010

EVELYN COTE AND ALFRED COTE, PLAINTIFFS,
v.
TOM HOPP, SARAH HOUSTON, N/K/A SARAH STROPE, SCOTT COWSER, DAN LEEZER, DON FAULKNER, JOHN JEFFERSON, JAMES DROZDZ, BRIAN HUNTER, CITY OF NAUVOO, HANCOCK COUNTY SHERIFF'S DEPARTMENT, JANE DOE, AND JOHN DOE, DEFENDANTS.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

On February 23, 2010, a Report & Recommendation was filed by Magistrate Judge Byron G. Cudmore in the above-captioned case recommending that certain of Defendants' Motions to Dismiss be granted in whole or in part. Plaintiffs filed a timely response to the Report & Recommendation, and this Order follows.

BACKGROUND

The relevant facts were sufficiently set forth in the comprehensive Report & Recommendation of the Magistrate Judge and need not be restated here. Suffice it to say that this action arises out of what Plaintiffs allege was their false arrest and malicious prosecution following an incident involving the towing of a car that occurred on or around June 23, 2007, as well as their subsequent arrest. On that day, Defendant Cowser, a Hancock County Deputy Sheriff, arrested Plaintiff's son on charges of driving with a suspended license. Defendant Hopp, a Nauvoo police officer, arrived on the scene and dealt with the Plaintiffs and the eventual towing of the car, which also involved recording the incident from his dashboard camera. Approximately a week later, arrest warrants were obtained for Plaintiffs on charges of obstructing a police officer in connection with the towing. Defendants Strope, a Nauvoo police officer, and Leezer, a state trooper, executed the arrest warrants at Plaintiffs' home on July 7, 2007. Defendants Hopp, Drozdz, the Hancock County State's Attorney, and Hunter, an Assistant State's Attorney, are alleged to have altered the dashboard recording for purposes of Plaintiffs' prosecution. Any claims against Defendants Faulkner, the Nauvoo City Marshall, and Jefferson, the Sheriff of Hancock County, appear to be based solely on their status as the supervisor of other Defendants.

Plaintiffs commenced the present litigation by filing a Complaint on February 17, 2009. An Amended Complaint followed on July 6, 2009. Separate Motions to Dismiss were brought by: (1) Defendant Leezer; (2) Defendants Cowser, Jefferson, Drozdz, Hunter and the Hancock County Sheriff's Department (the "Hancock County Defendants"); (3) Defendant Strope; and (4) Defendants Hopp, Faulkner, and the City of Nauvoo (the "Nauvoo Defendants"). Once the Motions were fully briefed, the Magistrate Judge recommended that Defendant Leezer's Motion be granted and that the remainder of the Motions be granted in part and denied in part.

STANDARD OF REVIEW

A district court reviews de novo any portion of a magistrate judge's report and recommendation to which written objections have been made. See Fed. R. Civ. P. 72(b).

"The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Id.

ANALYSIS

Plaintiffs first object to the portion of the Report & Recommendation finding that other than Mrs. Cote's Fourth Amendment claim that Defendant Strope smashed in the door to their home in effectuating the arrest, Plaintiffs have pled no other viable claims against Defendant Strope for her conduct.*fn1 Although the Complaint had alleged that Defendant Strope removed Mrs. Cote from the toilet in arresting her, Mrs. Cote's own affidavit contradicts this assertion. Plaintiffs also complain that Defendant Strope violated their rights by not having a search warrant at the time, but it is clear that the officers did possess a valid arrest warrant, which is all that was necessary under the circumstances. Accordingly, these objections are without merit.

The Magistrate Judge next concluded that both Plaintiffs have stated a Fourth Amendment false arrest claim against Defendants Hopp and Drozdz based on a lack of probable cause as a result of the alleged false statements used to obtain the arrest warrants. The Magistrate Judge noted that based on the allegations of the Complaint, none of the other Defendants were present during the towing incident or participated in obtaining the arrest warrants. Plaintiffs response to this finding argues summarily that they hope to discover evidence to maintain false arrest claims against Cowser and Hunter, as well as the Hancock County Sheriff's Department. However, these bald assertions devoid of factual basis are insufficient to entitle Plaintiffs to proceed on such claims at this time, and their objections warrant no further discussion.

The Magistrate Judge then found that no other federal claims are stated in the Complaint. Specifically, the claim for eavesdropping or wrongful interception of a conversation is barred by the exception under 18 U.S.C. § 2511(d), which excludes communications to which the interceptor was a party. As Defendant Hopp was clearly a party to the recorded conversation, no viable claim based on the conduct exists. Plaintiffs suggest that the fact that the Recommendation recognizes a viable claim against Hopp for false arrest, the Magistrate Judge has necessarily concluded that Hopp was in the process of committing a criminal or tortious act while secretly recording them at the scene of the towing incident, making the exception in §2511(d) inapplicable. However, Plaintiffs have misconstrued the Recommendation. The existence of a viable claim in connection with providing false statements in obtaining an arrest warrant several days after the towing incident simply does not provide a basis for or finding of any viable claim for wrongdoing by Hopp prior to that time.

Plaintiffs take issue with the finding that Mr. Cote cannot maintain a claim against Defendant Leezer pursuant to the Americans With Disabilities Act ("ADA") based on his conduct during the course of Mr. Cote's arrest. Plaintiffs argue that Mr. Cote was disabled due to "West Nile" and could not comply with Defendant Leezer's direction to put his hands behind his back and bend over without injuring himself. However, it is clear that Defendant Leezer is neither Mr. Cote's employer nor a public entity, and was not excluded from participation or denied publicly available benefits or services because of his disability, as required to sustain a claim under the ADA, 42 U.S.C. § 12112, et seq. Plaintiffs' objection that Defendant Leezer knew that he was in fact disabled ignores these deficiencies and must therefore be overruled.

Plaintiffs make no response to the Magistrate Judge's recommendation that they cannot pursue a federal claim for malicious prosecution based on the availability of a state law remedy. However, Plaintiffs do object to the finding that Mr. Cote cannot state a claim against Defendant Drozdz for denial of access to the courts based on his alleged "blocking" him from filing a petition in the courthouse. Given the fact that Mr. Cote did ultimately file his petition, he suffered no actual injury as a result of Drozdz' action as required by Lewis v. Casey, 116 S.Ct. 2174 (1996), and Walters v. Edgar, 163 F.3d 430 (7th Cir. 1998). Plaintiffs' attempt to distinguish this ...


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