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Jesse Blanco v. Judge James B. Zagel Kevin Farley

January 27, 2011

JESSE BLANCO, PLAINTIFF,
v.
JUDGE JAMES B. ZAGEL KEVIN FARLEY, DEFENDANT.



The opinion of the court was delivered by: James B. ZagelUnited States District Judge

MEMORANDUM OPINION AND ORDER

I. FACT STATEMENT

Plaintiff Jesse Blanco ("Plaintiff" or "Blanco") filed a three-count complaint against Defendant Kevin Farley ("Defendant" or "Farley") alleging (1) a violation of 42 U.S.C. § 1983, (2) assault, and (3) willful and wanton conduct inflicting severe emotional distress.

The facts of this case are undisputed. Farley is a police officer with the DuPage County Sheriff's Office. On January 22, 2007, in the early hours of the morning, Defendant made two phone calls to Plaintiff. The first phone call occurred at 1:11 a.m. Plaintiff did not answer the phone and Defendant left a voice message. In the voice message, Farley identified himself as a Detective. The voice message concerned Christine Cheeks ("Cheeks"). Cheeks is Blanco's ex-girlfriend and the two have a child together. Cheeks is also a friend of Defendant Farley. Farley warned that Plaintiff should "[l]ay off Christine, let her be the mom she deserves to be." He also stated that Blanco should "be a father and respect his mother and if you don't, I will bring a world of hurt to you." He further threatened that "I [will] have the Illinois Law Enforcement Community [to] come down on you like a f_cking cinderblock." Farley called back soon after and this time personally spoke to Plaintiff. He relayed a similar message stating that "I am a forensic cop. I will plant drugs on you. I will do whatever I can, you know, if you don't leave Christina Cheeks alone. I will put you away for as long as I can." Plaintiff listened to the voice message following his conversation with Defendant.

II. STANDARD OF REVIEW

Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of triable fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Once the moving party has set forth the basis for summary judgment, the burden shifts to the nonmoving party who must go beyond mere allegations and offer specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). A party will be successful in opposing summary judgment only if it presents "definite, competent evidence to rebut the motion." EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000). I consider the record in the light most favorable to the nonmoving party, drawing all reasonable inferences in the non-movant's favor. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002).

III. DISCUSSION

A. Defendant Is Granted Summary Judgment As To Count I.

Defendant argues that although his actions could be considered inappropriate and unprofessional, they do not rise to the level of a constitutional violation. Defendant is correct. Verbal threats or abuse are insufficient to state a constitutional violation pursuant to § 1983. See Patton v. Przbylski, 822 F.2d 697, 700 (7th Cir. 1987) ( derogatory racial remarks do not constitute a deprivation of a liberty interest within the meaning of the Due Process Clause); Pittsley v. Warish, 927 F.2d 3, 7-8 (1st Cir. 1991) ("[f]ear or emotional injury which results solely from verbal harassment or idle threats is generally not sufficient to constitute an invasion of an identified liberty interest"); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (vulgar language, and verbal harassment or abuse are insufficient grounds on which to state a constitutional deprivation pursuant to § 1983). Plaintiff alleges no facts to show that Defendant Farley acted on his verbal threats, or even continued to contact, threaten, or harass Plaintiff after January 22, 2007. Accordingly, I grant Defendant's motion for summary judgment as to count I.

B. Defendant Is Granted Summary Judgment As To Count II.

Pursuant to Illinois law, a person commits assault when he engages in "conduct which places another in reasonable apprehension of receiving a battery." 720 ILL. COMP. STAT. 5/12-

1(a). "Ever since the fourteenth century, assault, whether civil or criminal has involved (1) a threatening gesture, or otherwise innocent gesture made threatening by the accompanying words, that (2) creates a reasonable apprehension of an imminent battery. Kijonka v. Seitzinger, 363 F.3d 645, 647 (7th Cir. 2004) (emphasis original). "A merely verbal threat of indefinite action in the indefinite future is not an assault." Id.

Here, Plaintiff describes one phone call, and one voice message. Although both contained strong language, a verbal threat, such as the one described by Blanco, cannot constitute an assault because it lacks both a gesture and imminence. Kijonka, 363 F.3d at 647. Defendant's phone calls were accompanied by no threatening gesture, and did not describe any immediate harm that would ...


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