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Rodney Mckinney (B-76809 v. Officer Joseph Moutesdeoca and Sergeant Richard Rochowicz

December 6, 2012

RODNEY MCKINNEY (B-76809), PLAINTIFF,
v.
OFFICER JOSEPH MOUTESDEOCA AND SERGEANT RICHARD ROCHOWICZ, DEFENDANTS.



The opinion of the court was delivered by: Blanche M. Manning United States District Court Judge

MEMORANDUM OPINION AND ORDER

In the early morning hours of May 14, 2009, the Sam's Food Mart at 1438 West 103d Street in Chicago was robbed. Ann Clancy reported the burglary and told a 911 operator that she saw a person carrying a box exit the Food Mart through a broken window and enter a green car with a brown door. Around 5:15 a.m. that same morning, plaintiff Rodney McKinney was in the alley behind his mother's house, which is near the Food Mart. He asserts that he was performing his filial duties by taking out the garbage. After Chicago Police Sergeant Richard Rochowicz and Officer Joseph Montes de Oca (mistakenly referred to as Moutesdeoca in the plaintiff's federal complaint and state court pleadings) responded to the 911 call and arrived at the alley, they saw a cash register box sitting by the open garage door. The plaintiff (who later admitted he drove a green car with a brown door) spotted the officers, entered the garage, and activated the door but was thwarted by one of the officers, who placed his hand underneath the door to prevent it from closing. The officers ultimately arrested the plaintiff, who was charged with burglary.

In his complaint, the plaintiff alleges that he is entitled to relief under 42 U.S.C. § 1983. The defendants' motion for summary judgment is before the court. The plaintiff did not file a response, despite being given an extension of time to do so. For the following reasons, the defendants' motion is granted in its entirety.

I. Standard of Review

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). In determining the existence of a genuine issue of material fact, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

If the moving party meets its burden of showing that there are no issues of material fact and that he or she is entitled to a judgment as a mater of law, the non-moving party must "go beyond the pleadings and affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact." Borello v. Allison, 446 F.3d 742, 748 (7th Cir. 2006) (internal quotation marks and citations omitted); Celotex, 477 U.S. at 322-26. A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Carrroll v. Merrill Lynch, __ F.3d __, 2012 WL 4875456 at *3 (7th Cir. Oct. 16, 2012). Rather, a genuine issue of material fact exists only if a reasonable finder of fact could return a decision for the nonmoving party based upon the record. See Anderson, 477 U.S. at 252; Insolia v. Phillip Morris Inc., 216 F.3d 596 (7th Cir. 2000).

When addressing a summary judgment motion, this court derives the background facts from the parties' Local Rule 56.1 Statements, which assist the court by "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000); see also N.D. Ill. Local Rule 56.1. Because the plaintiff is proceeding pro se, the defendants served him with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by N.D. Ill. Local Rule 56.2. (R. 66.) The notice explains that if a litigant fails to respond to the movant's Local Rule 56.1 Statement, the court will consider uncontroverted statements admitted if they are supported by the record. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). Although the plaintiff requested and received additional time to respond (R. 67, 68), he did not file a response. Accordingly, the facts in the defendants' Rule 56.1 Statement are admitted to the extent they are supported by the record. Raymond, 442 F.3d at 608. With these standards in mind, the court turns to the facts of this case.

II. Background

At approximately 5:15 a.m. on May 14, 2009, Officer Montes de Oco and Sergeant Rochowicz separately responded to a call of a burglary at Sam's Food Mart at 1438 W. 103 Street in Chicago. (R. 63, Defs.' Statement of Facts ("SOF") at ¶ 6.) The officers were told that the car involved in the burglary was green with a brown door, and the plaintiff admitted his car is green with a brown door. (Id. at ¶¶ 7, 8, citing R. 65, Exh. G, Pl.'s Response to Requests to Admit.) Ann Clancy reported the burglary and told a 911 operator that she saw a person carrying a box exit the Food Mart through a broken window and enter the above-described car. (Defs.' SOF at ¶ 10.) Ms. Clancy followed the car to the alley at the 11200 block of Homewood and remained on the phone with a 911 dispatcher until defendant Rochowicz arrived. (Id. at ¶ 11.)

Upon his arrival, Ms. Clancy pointed to the car, which Rochowicz saw backing into a garage. (Id. at ¶¶ 13, 15.) Defendant Montes de Oco then arrived at the scene and joined Rochowicz outside the garage, where both officers saw a cash register box in the alley in front of the garage door. (Id. at ¶ 19.) The plaintiff admits in his deposition that a cash register box was found by the garage he was using, but contends that it was actually outside his neighbor's garage door. (Id. at ¶ 20.) While the defendants were in the alley, the plaintiff activated the electric garage door. According to the plaintiff, he saw the officers while he was taking out the trash, became frightened, reentered the garage, and activated the door. (Id. at ¶ 23; see also Exh. F, Pl. Depo. at 55.) Rochowicz approached the door as it was descending, placed his hand under the door, pushed upward to prevent it from closing, and -- according to the plaintiff -- broke the door, the garage door opener, the tracks for the door, and rafters in the garage. (Defs.' SOF ¶¶ 24, 26.)

The officers entered the garage and handcuffed the plaintiff. (R. 63, Exh. F, Pl.'s Depo. at 59.) Montes de Oco then informed the plaintiff that the officers were responding to a burglary and began questioning him. (R. 63, Defs.' SOF ¶ 28.) The plaintiff asserts that he asked,"was it a black man," to which Montes de Oco replied, "shut up." (Id. at ¶ 29, quoting Pl.'s Depo. at 57-58.) The defendants brought the plaintiff into the alley to Ms. Clancy's car. (R. 63, Defs.' SOF ¶ 31.) Ms. Clancy identified the plaintiff as the person she saw burglarizing the Food Mart. (Id.)

The plaintiff was then taken to a police station, where he claims he was not read his rights and was questioned by additional officers before being charged with burglary. (Id. at ¶¶ 32-36, 38.)

The plaintiff filed a motion to quash the arrest and suppress evidence in his criminal case, arguing no probable cause supported his arrest. (Id. at ¶¶ 39, 43.) Both defendants testified at the hearing, and were questioned by the plaintiff's attorney. (See R. 65, Exh. E (transcript of March 11, 2010, suppression hearing in People v. McKinney, No. 09-09820 (Cook County Circuit Court) (Hill, J.)). After hearing testimony from the officers and the plaintiff's mother and considering arguments from the plaintiff's attorney and the Assistant State's Attorney, Cook County Circuit Court Judge Arthur Hill found that the officers had probable cause for the arrest and thus denied the motion to quash and to suppress evidence. (R. 63, Defs.' SOF ¶ 44; Exh. E at 29-30.) His ruling that probable cause existed has not been overturned. (R. 63, Defs.' SOF ¶ 45.)

Following the hearing, on September 8, 2010, the plaintiff pleaded guilty to burglary. (Id. at ¶ 46.) Shortly after he pleaded guilty, the plaintiff unsuccessfully sought to withdraw his plea. (R. 63, Exh. F, Pl.'s Depo. at 76-77; see also Exh. J, Docket of People v. McKinney, No. 09-09820, entries from 10/5/10.) The plaintiff acknowledged in his deposition that at the time of the deposition, neither his conviction nor the state court's finding of probable cause had been overturned. (R. 63, Defs.' SOF ¶¶ 45, 48.) In August of 2012, however, the state appellate court reversed the trial court's denial of the motion to vacate the plea. People v. McKinney, 975 N.E.2d 1212 (Ill.App. 1st Dist. Aug. 8, 2012). The state appellate court determined that the trial court mistakenly believed that the plaintiff was not eligible for a veteran's court and programs ...


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