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Misher v. Barnett

May 26, 2010

LEVOGNE MISHER, PLAINTIFF,
v.
KEVIN BARNETT, ET AL., DEFENDANT.



The opinion of the court was delivered by: Judge Blanche M. Manning

MEMORANDUM AND ORDER

January 12, 2007, was to have been a day of celebration. Ernest Austin had just turned 88, and his family and friends gathered to commemorate the event. However, hysteria erupted as reports spread among the partygoers that one guest had drawn a gun and threatened to use it.

Amid the ensuing chaos, plaintiff LeVogne Misher called police. But Misher ended up among those arrested when police arrived. They charged her with obstructing a police officer, alleging that she refused to leave the scene when ordered by police. See 720 Ill. Comp. Stat. 5/31-1(a)

Misher's version of events differs greatly from the police's. She disputes that she refused to leave the scene and, instead, contends that an officer punched her in the back, grabbed her hair and one of her breasts, and slammed her into a wall before handcuffing and arresting her. The criminal charge was eventually dropped against her when no police officer showed up to Misher's initial court appearance.

She has sued the village of Bellwood, Illinois, and several of its police officers for various civil rights claims under federal law, see 42 U.S.C. § 1983, as well as state law claims such as malicious prosecution, and assault and battery. Defendant police officers Ronald Hopkins, Kevin Davis, Ronald Stanfel, and the village of Bellwood have moved for summary judgment on various claims. Specifically: Hopkins and Stanfel seek summary judgment on the false arrest claim (Count III) against them; Hopkins seeks summary judgment on the malicious prosecution (Count II), and failure to intervene to prevent a civil rights violation (Count IV) claims against him; Davis seeks summary judgment on the failure to intervene claim (Count IV) against him; and the village of Bellwood seeks summary judgment on the respondeat superior claim (Count V) against it. For the reasons stated below, the motion for summary judgment on the failure to intervene claim against Davis is granted, while the remainder of the motion is denied.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Valenti v. Qualex, Inc., 970 F.2d 363, 365 (7th Cir. 1992), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Moreover, a court should grant a motion for summary judgment only when the record shows that a reasonable jury could not find for the nonmoving party. See Valenti, 970 F.2d at 365; see also Anderson, 477 U.S. at 248.

Thus, in order to withstand a motion for summary judgment, the nonmoving party must show that a dispute about a genuine issue of material fact exists; that is, the evidence is such that a reasonable jury could render a verdict for the nonmoving party. See Anderson, 477 U.S. at 248. The nonmoving party may not merely rest upon the allegations or details in his pleading, but instead, must set forth specific facts showing there is a genuine issue for trial. See Celotex, 477 U.S. at 322; Anderson 477 U.S. at 248.

ANALYSIS

I. Malicious Prosecution under State Law (Count II)

The elements of a claim of malicious prosecution under Illinois law*fn1 are: (1) commencement or continuation of legal proceedings by the defendant; (2) the termination of proceedings in favor of the plaintiff; (3) the absence of probable cause for the proceedings; (4) the presence of malice; and (5) damages. See Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996). Defendant Ronald Hopkins moves for summary judgment on this claim because, he contends, he did not participate in the commencement or continuation of legal proceedings against Misher.

However, Misher has identified evidence to support her claim that Hopkins was involved in the commencement or continuation of the legal proceedings against her. First, he admits that he told a fellow officer, defendant Ronald Stanfel, to arrest Misher:

She was one of the individuals standing outside who was continuing to yell back and forth in defense of one of the offenders. We asked her several times to leave the area, she refused to do so, and at that time I looked over at Officer Stanfel. I said she needs to be placed under arrest.

Statements of Additional Facts [99-5], Ex. E at 23. Hopkins also describes holding Misher's wrists while officer ...


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