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Walter J. Urbanski v. City of Chicago

March 25, 2011


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.,


Plaintiff Walter Urbanski has sued the City of Chicago and Chicago Police Officers Dennis O'Keefe, Mike Mayhew, and Tim Silder for violations of state and federal law stemming from his arrest on November 11, 2008. Counts I, III, and V are brought pursuant to 42 U.S.C. § 1983, alleging unlawful seizure/false arrest (Count I), false imprisonment (Count III), and malicious prosecution (Count V). Plaintiff's remaining claims allege state law violations for false arrest (Count II), false imprisonment (Count IV), malicious prosecution (Count VI), and indemnity (Count VII). Defendants have moved for summary judgment on all counts. For the reasons set forth below, the Court grants Plaintiff's motion for leave to file surreply [46] and also grants Defendants' motion for summary judgment [32] on Counts I, III, and V. The Court dismisses without prejudice Plaintiff's state law claims for false arrest (Count II), false imprisonment (Count IV), malicious prosecution (Count VI), and indemnity (Count VII).

I. Factual Background*fn1

On November 11, 2008, Chicago Police Officers Dennis O'Keefe, Mike Mayhew, and Tim Silder (collectively "Defendant Officers" or "Defendants") were assigned to an 8th District tactical team that was given a burglary mission to focus on patrols of garages and residences in the area. Defendants were patrolling the 8th District in an unmarked vehicle driven by Mayhew; all were wearing plain clothes, police stars, bulletproof vests, gun belts, and radios. Shortly before midnight on November 11, Mayhew saw someone in an alley and proceeded to turn the car around, turn off its headlights, and drive down the alley towards the individual. Upon arriving, Defendant Officers saw that the individual was urinating in the alley. In response to Defendants' inquiries, Walter Urbanski, the plaintiff in this matter, said he was coming home from a bar and admitted urinating in the alley. Defendants contend, and Plaintiff does not dispute, that Plaintiff appeared to be intoxicated and that he was flailing his arms while answering questions, his speech was slurred, and he smelled like alcohol. Mayhew asked Plaintiff for some basic information-his name, address, phone number, and other personal details-and Plaintiff cooperated. Defendant Silder then emptied all the contents from Plaintiff's pockets and set them out on the hood of the police car. At this point, the parties' stories diverge-Plaintiff maintains that the property, including Plaintiff's wallet, remained in Defendants' possession. Defendants contend that the property was returned to Plaintiff. In any event, both parties agree that Plaintiff was then handcuffed and placed under arrest. At some point during the arrest (either in the alley or on the way back to the police station), Plaintiff was advised that he was under arrest for urinating in a public way, to which Plaintiff responded, "Do you have anything better to do?"

At the station, Plaintiff was asked to remove his shoelaces, empty his pockets, and take his belt off before being brought to a secure processing area. During his deposition, Plaintiff admitted that he was searched while in custody at the 8th District station, and that they inventoried his personal effects at that time. Plaintiff's possessions were laid out on a table and Plaintiff was taken by Silder to the lockup area to be photographed and fingerprinted by the lockup personnel. Defendant Officers took Plaintiff's personal items to the station's tactical office, where Officer Silder began removing and separating the items from the plastic bag for inventory purposes. While plaintiff was waiting to be processed, O'Keefe entered the room and told Plaintiff that he was being charged with felony possession of heroin. According to Defendants, they had found an orange, folded piece of paper in Plaintiff's wallet, and the paper contained a white powder substance that the offers suspected was heroin. During his deposition, Plaintiff first claimed that he did not have possession of "any type of powder * * * in an orange piece of paper." Later, when pressed on his possession of an orange piece of paper, he clarified that he did not remember exactly what was in his wallet and did not specifically remember having any orange paper. The orange piece of paper was a menu from a pizza restaurant at 5136

S. Archer Avenue, just a few blocks from where Plaintiff was living at the time.

O'Keefe signed two complaints against Plaintiff, a felony complaint charging Plaintiff with heroin possession, and an ordinance violation complaint for "Human Defecating on Public Property," which alleged that Plaintiff "while on the public way, did defecate upon the alley, in view of citizens who are in this immediate area."*fn2 Plaintiff was held overnight and on the morning of November 12, 2008, was transported to the Cook County Department of Corrections where he appeared before a judge via video for a bond hearing. Two court dates were set for Plaintiff's two charges: December 3, 2008 for the urinating charge and December 4, 2008 for the possession of a controlled substance charge. Plaintiff's bond was set at $5,000. Because Plaintiff could not pay the $500 required for his release, Plaintiff remained at the Cook County Jail.

The orange paper with the white powder was sent to the Illinois State Police Crime Lab for testing and was received on November 13. Jason George, a forensic scientist for the Illinois State Police Forensic Science Center at Chicago with ten years of experience testing for illegal drugs, tested the white powder found on the orange, folded pizza menu that Defendants claim they found in Plaintiff's wallet. When conducting his analysis, George noted that the white powder "looks like flour, fluffy." He then testified that "based directly on my personal experience with flour, it looked like flour to me." Based on the tests conducted on the powder, George concluded that there was no scheduled substance in the white powder. During his deposition, George estimated that about five percent of the substances he receives contain no scheduled substances. He further testified that most white powders that do contain a scheduled substance end up containing heroin, and that such powders come in a range of colors and textures. He also testified that it was not common to see a white powder in a folded piece of paper-he stated that he did not "have a specific memory of [testing a white powder found in a folded piece of paper and having it test positive for a scheduled substance]," although he testified to a "belief" that he had received powder in a folder piece of paper that tested positive for heroin. He testified that typically heroin is carried in a small Ziploc plastic bag or a folded foil packet.

Because George's report showed that no scheduled substances were found in the inspected powder, Plaintiff's case was advanced to November 24, 2008, at which time the drug charges were dismissed. Plaintiff was released from custody that day, after spending 13 days in the County Jail.

II. Standard of Review

Summary judgment is proper where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Factual disputes that are irrelevant to the outcome of the suit "will not be counted." Palmer v. Marion County, 327 F.3d 588, 592 (7th Cir. 2003) (quotation marks and citations omitted).In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted).

A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the "mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252.

III. Analysis

A. Plaintiffs' Fourth and Fourteenth ...

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