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Flores v. Walgreen Co.

September 30, 2010


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Kimberly Flores ("Flores") filed suit against Walgreen Co. ("Walgreens"), Detective Ricardo Galarza ("Galarza"), Officer Nolan S. McCleary ("McCleary"), Officer S. Mantzke ("Mantzke"), Officer T. Kearbey ("Kearbey"), and the City of Aurora ("Aurora") alleging that she was unlawfully seized, falsely arrested, illegally imprisoned, and maliciously prosecuted in violation of federal and Illinois law. Specifically, Count I of Flores' Amended Complaint alleges, pursuant to 42 U.S.C. § 1983, that Galarza, McCleary, Mantzke, and Kearbey conspired to falsely arrest her in violation of the Fourth and Fourteenth Amendments.*fn1 Count II alleges a § 1983 Monell claim against Aurora for its inadequate police training and supervision that caused Flores' constitutional injuries. Count III alleges Galarza, McCleary, Mantzke, Kearbey, and Aurora maliciously prosecuted Flores after arresting her without legal justification or probable cause. Count IV alleges Walgreens, through the action of its employees, wrongfully and maliciously identified Flores in a photo-lineup, leading to Flores' indictment and trial, in violation of Illinois state malicious prosecution laws. Count V alleges that Galarza, McCleary, Mantzke, Kearbey, and Aurora falsely arrested and illegally imprisoned Flores in violation of Illinois state law.

Walgreens' Motion to Dismiss with prejudice was granted*fn2 , and Flores voluntarily dismissed Officers McCleary and Mantzke. The remaining defendants, Galarza, Kearbey, and Aurora (collectively "Defendants") now move for summary judgment. For the reasons stated below, the Court grants Defendants' Motion for Summary Judgment.


Galarza has been employed by the Aurora's Police Department ("APD") since January 21, 2002 and was assigned to APD's Investigative Unit in January 2007. (P 56.1 Resp. ¶ 2; D 56.1 Resp. ¶ 1.) He did not receive a training partner or any specialized training from APD after becoming a detective other than attendance at an interrogation class. (D 56.1 Resp. ¶ 2.) Kearbey has been employed by APD for twenty-one years and has been the Sergeant in charge of the Investigations Division since 2007. (P 56.1 Resp. ¶ 5.)

I. January 12, 2007

On January 12, 2007 at approximately 11:24 a.m., Deanna Durbin ("Durbin") was working as a cashier at a Walgreens store located at 1221 N. Lake Street, Aurora Illinois. (P 56.1 Resp. ¶ 8.)

A female customer approached Durbin and attempted to purchase $200.00 worth of Virgin Mobile phone cards. (P 56.1 Resp. ¶ 8.) Durbin tried to complete the sale but the satellite was down so she had to call executive assistant manager Kimberly Naumann ("Naumann") to void the purchase on the register. (P 56.1 Resp. ¶ 9.) Naumann voided the phone card purchase and the customer instead purchased a couple of cartons of Newport cigarettes totaling $92.74. (P 56.1 Resp. ¶ 12.) Durbin rang up the items and the customer paid for her purchase using a MasterCard credit card, swiping it herself on the small machine in front of the register. (P 56.1 Resp. ¶ 13.) The transaction was approved and Durbin asked the customer to sign the receipt. (P 56.1 Resp. ¶ 14.) The customer signed, and then pursuant to store policy, Durbin asked for identification to verify the signature. (P 56.1 Resp. ¶ 16.)

At this time, Durbin noticed that the name on the receipt was a man's name. (P 56.1 Resp. ¶ 16.) The female customer refused to show identification, angrily stating she did not have time to do that, grabbed her items and ran out of the store. (P 56.1 Resp. ¶ 17.) Durbin was never able to verify the signature or see the credit card, although she had the receipt that the customer signed. (P 56.1 Resp. ¶ 17.) The name on the receipt was Charles M. Larson ("Larson"), but the customer had signed the receipt "I Forge." (P 56.1 Resp. ¶ 19.) Durbin immediately informed Naumann, who looked at the receipt and went outside to see if she could get a license plate or any other information about the customer, but she was unsuccessful. (P 56.1 Resp. ¶ 21.) An hour and fifteen minutes later, Durbin met with store manager Mike Levine ("Levine"), and explained what had happened. (P 56.1 Resp. ¶ 22.) Flores claims she was not at this Walgreens store at any point on January 12, 2007. (P 56.1 Resp. ¶ 24.)

II. January 17, 2007

Five days later, on January 17, 2007, Flores entered the Walgreens on 1221 N. Lake Street. (P 56.1 Resp. ¶ 25.) Durbin again was working as a cashier and recognized Flores by her hair color and facial features as the customer who used Larson's credit card on January 12, 2007 and fled the store. (P 56.1 Resp. ¶ 25.) Durbin called Levine and Naumann, and they told Durbin to handle the situation discreetly and notify her if Flores attempted to pay with a credit card. (P 56.1 Resp. ¶ 26.)

Flores approached Durbin with her items, totaling less than $20.00, and attempted to pay with a credit card. (P 56.1 Resp. ¶ 28.) Durbin informed Flores that there was a problem with her credit card. (P 56.1 Resp. ¶ 32.) Flores then offered to pay with a personal check. (P 56.1 Resp. ¶ 32.) Walgreens' policy is to look at a state ID or driver's license when a customer pays by check, so Naumann, who had arrived at the cash register, took and processed Flores' check. (P 56.1 Resp. ¶ 33.) Naumann wrote Flores' driver's license number on top of the check and, according to Flores, Naumann took the check and Flores' driver's license to the back room and did not return for ten minutes. (P 56.1 Resp. ¶ 34). Naumann said everything was fine, handed Flores her driver's license, and Flores, irritated, collected her items and left the store. (P 56.1 Resp. ¶ 34.) Naumann went outside and wrote down Flores' license plate number and then returned and spoke to Durbin and Levine. (P 56.1 Resp. ¶ 35.) Durbin confirmed that she was sure Flores and the customer who paid with Larson's credit card on January 12 were the same person. (P 56.1 Resp. ¶ 37.) Naumann agreed. (P 56.1 Resp. ¶ 37.)

III. Naumann Contacts APD

Shortly after Flores' visit to the store on January 17, 2007, Naumann called APD. (P 56.1 Resp. ¶ 38.) McCleary was dispatched to Walgreens where he spoke with Naumann and Levine about both transactions on January 12 and January 17. (P 56.1 Resp. ¶ 38.) Levine described the customer on January 12 as a white female with wavy dirty blonde hair and wearing pink sweat pants. (P 56.1 Resp. ¶ 39.) Naumann described the customer as Caucasian with medium length dark blonde hair and wearing a sweatshirt. (P 56.1 Resp. ¶ 41.) Levine said he would check to see if he had any security footage of the transactions, but did not provide any to McCleary. (P 56.1 Resp. ¶ 43.) McCleary confirmed the license plate was registered to Flores and wrote up a field report, which was reviewed by Mantzke. (P 56.1 Resp. ¶ 44.)

IV. Galarza Assigned to Investigate

Approximately three days later, around January 20, 2007, Kearbey assigned Galarza to investigate the fraudulent use of a credit card belonging to Larson. (P 56.1 Resp. ¶ 45.) Galarza contacted MasterCard and was informed that Larson's credit card was reported stolen on January 13, 2007. (P 56.1 Resp. ¶ 47.) Larson told Galarza that he did not know Flores nor did he allow her permission to use his credit card. (P 56.1 Resp. ¶ 47.) No video surveillance footage was obtained. (P 56.1 Resp. ¶ 49.) Galarza also investigated another January 12, 2007 incident of fraudulent use of Larson's credit card that occurred at a Walgreens store located at 1207 N. Randall Road, Aurora, Illinois. (D 56.1 Resp. ¶¶ 4, 12.) The manager of the Randall Road Walgreens, Anthony Loyd ("Loyd") stated that he was sure the fraudulent transaction was captured on video tape. (D 56.1 Resp. ¶ 12.) In January 2007 APD had a policy in place that instructed officers to utilize all available evidence when conducting any investigation. (D 56.1 Resp. ¶ 10.) Galarza was trained to secure video tape when it was available. (D 56.1 Resp. ¶ 10.) However, the security camera footage from the Randall Road Walgreens and the N. Lake Street Walgreens were never obtained by Galarza or provided by Walgreens*fn4 (D 56.1 Resp. ¶ 12.)

V. The Photo-Lineup on January 24, 2007

Galarza and another Detective, Sally Trujillo ("Trujillo"), went to the Walgreens store on 1221 N. Lake Street to interview Durbin and Naumann. (P 56.1 Resp. ¶ 50.) Galarza presented Durbin and Naumann with advisory forms and a photo-lineup. (P 56.1 Resp. ¶ 50.) Durbin immediately identified and confirmed photograph # 2 as the individual involved in both incidents on January 12 and 17, 2007. (P 56.1 Resp. ¶ 53.) Naumann positively identified photograph # 2 as the individual involved in the January 17 transaction, but was less certain about the individual involved in the January 12 transaction.*fn5 (P 56.1 Resp. ¶ 52.) Naumann said she did not get a good look at the customer but that Durbin was sure it was Flores. (P 56.1 Resp. ¶ 57.) The individual in photograph # 2 was Flores. (P 56.1 Resp. ¶ 56.)

On January 22, 2007, Galarza had gone to the Randall Road Walgreens and spoken to its manager, Loyd. Galarza presented photo-lineups to two employees at the Randall Road Walgreens, Ashley Dazzo ("Dazzo") and Christina Magana ("Magana"). Neither Dazzo nor Magana could identify the offender from January 12, 2007 in the photo-lineups that contained pictures of Flores. (D 56.1 Resp. ¶ 7.)

VI. First Interview of Flores

Flores returned to her home on February 5, 2007 and found a card left by Galarza who had written a note informing her that he wanted to speak with her at APD about a credit card investigation. (P 56.1 Resp. ¶ 60.) Flores went to APD later that day and met with Galarza alone. Galarza read her her Miranda rights and then informed her that the evidence in a fraudulent credit card case he was investigating implicated her as a suspect. (P 56.1 Resp. ¶ 61.) After Galarza described the events of January 12, 2007, Flores denied being in a Walgreens on January 12, 2007 and asked to take a lie detector test. (P 56.1 Resp. ¶ 63.) Flores then confronted Galarza with her check from the January 17, 2007 transaction, including the area where a Walgreen's employee had made markings after checking her driver's license. (P ...

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