The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Thursday, 10 February, 2011 02:47:58 PM
Clerk, U.S. District Court, ILCD
Pro Se Plaintiff, Kenneth W. Simmons, filed a multicount Second Amended Complaint (#38) on April 13, 2009, against Defendants Craig Catton, Brent Troyer, and Tazewell County Sheriff Robert Huston, in his individual and official capacity. On June 18, 2010, Defendants' filed their Motion for Summary Judgment (#145). Plaintiff filed two "Motions to Consider Evidence" (#157), (#164). For the following reasons, Plaintiff's Motions to Consider Evidence (#157), (#164) are GRANTED and Defendants' Motion for Summary Judgment (#145) is GRANTED in full.
This case arises out of an incident between Plaintiff and Defendants Catton and Troyer that occurred in Tazewell County on April 25, 2008. On that date, Defendant Troyer, employed as a Deputy Sheriff for Tazewell County, was dispatched to 12836 Appenzeller Road (Plaintiff's home) to investigate a report and complaint that Plaintiff was throwing dog feces from his dog kennel onto a public roadway. Due to Troyer's prior interactions with Plaintiff, and being made aware of other prior interactions between Plaintiff and law enforcement, Troyer believed that Plaintiff was prone to hostile behavior when contacted by law enforcement officials. Troyer believed it was not safe to approach Plaintiff's house alone and requested the presence and assistance of a Mackinaw Police Department officer. Troyer was assisted in the service call by Mackinaw Police Officer Travis Cowley.
Upon arriving, Troyer approached the residence and stood on the front porch. Troyer knocked on the front door and, after waiting for a minute or two, saw Plaintiff open a window adjacent to the porch. According to Troyer, Plaintiff yelled and cursed at him, informed Troyer he was being recorded, and demanded Troyer exit his property. Troyer explained the reason for his presence to Plaintiff, but Plaintiff began to again curse at Troyer and Cowley and slammed the window shut. After Plaintiff shut the window, Troyer immediately left the property and returned to his vehicle. Troyer was advised by his sergeant to take pictures of the feces in the road and write a report about his encounter with Plaintiff, which he did. As Troyer was taking the photos, Plaintiff began yelling at Troyer from the window and took photographs of Troyer and Cowley. Troyer completed photographing the feces and exited the area.
Troyer, in his affidavit, states that the entire encounter on Plaintiff's porch lasted no more than a few minutes. Troyer denies conducting any kind of search on Plaintiff's property. Troyer denies threatening Plaintiff in any way. Troyer claims his purpose in approaching Plaintiff's residence was to investigate a complaint made that Plaintiff was depositing dog feces in the roadway and that his only intent in approaching Plaintiff's residence on April 25, 2008 was to speak to him. Troyer denies looking in the window for the purpose of any kind of search and, rather, looked in the window for officer safety reasons, to (1) see if anyone was coming to answer his knock and (2) he was aware (due to his own prior interactions with Plaintiff and the experience of others) that Plaintiff was prone to hostile behavior when contacted by or in communication with law enforcement officials. Further, Troyer had been made aware by the Sheriff's Department that Plaintiff or his wife may be in possession of a firearm. Troyer denies keeping his hand on his gun the entire time at Plaintiff's residence. Troyer has never been informed by any party that Plaintiff has ever sent a letter demanding that no Sheriff's Department employee enter his property without a warrant. Troyer's version of events is backed up by the affidavits of Officer Cowley and Sgt. Craig Catton.
Plaintiff's affidavit, filed with his Response (#153), claims that there was no kennel in his yard or residence on April 25, 2008, as it had been destroyed in a previous incident and given to a neighbor. Plaintiff, and his wife in her affidavit, claim that their previous interactions with Troyer had been cooperative. For the April 25, 2008 incident, Plaintiff claims Troyer "kept beating on my door until I answered." Plaintiff claims Troyer and Cowley had their hands on their guns at all times. Plaintiff claims he felt threatened because Troyer kept asking him to come outside. Plaintiff claims that Troyer refused to leave when asked and continued to look in Plaintiff's windows. Plaintiff claims that Troyer was in his yard for approximately twenty to thirty minutes, in which five to ten minutes were spent looking into his windows.
Plaintiff, in his affidavit, also claims he called the Sheriff's Department on November 19, 2008, and was forwarded to Defendant Catton. Plaintiff claims that when he spoke with Catton, Catton informed Plaintiff that he knew who Plaintiff was and, due to a prior lawsuit Plaintiff filed against the county, would not investigate Plaintiff's call. Catton then hung up the phone. In his affidavit, Catton denies speaking with Plaintiff on November 19, 2008, and denies ever having met Plaintiff. Further, Catton denies a Sheriff's Department policy existed of refusing to respond to or properly investigate complaints made by Plaintiff. Rather, Catton states that the Department has responded to numerous complaints made by Plaintiff over the years. In support of this contention, Defendants attached Tazewell County Sheriff's Department incident reports dated from 2005-2009, which show their deputies routinely responded to various complaints made by Plaintiff. Catton's statements are affirmed by Sheriff Robert Huston in his affidavit. Plaintiff filed a compact disc recording of the phone call he placed to the Sheriff's Department on November 19, 2008, but the compact disc only includes a recording of Plaintiff speaking with dispatch and being told he would be transferred to Sgt. Catton. At that point, the recording ends.
Following various motions to dismiss and the amended complaint filings, Plaintiff's remaining claims in this case are as follows: (1) Defendant Troyer unlawfully searched Plaintiff's home by making a visual inspection; (2) Defendants Catton and Huston retaliated against him by, as an official policy or practice, directing Plaintiff's neighbor Larry Morgan to commit criminal acts against Plaintiff and then selectively choosing to prosecute Plaintiff, while ignoring Plaintiff's complaints against Morgan, all in retaliation for a prior lawsuit of Plaintiff's against county deputies- thus violating the retaliation provision of Title VII and Equal Protection; (3) Sheriff Huston failed to train ...