C. RODNEY YODER, Plaintiff,
LORA ACRA and DARREN ONWILER, Defendants.
MEMORANDUM & ORDER
WILLIAM D. STIEHL, District Judge.
Plaintiff C. Rodney Yoder brings this action under 42 U.S.C. § 1983 claiming that defendants Lora Acra and Darren Onwiler, who are police officers, violated his Fourth Amendment rights by arresting him without probable cause. Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). In their motion, defendants re-ferred to an attached affidavit from defendant Acra, and asked the Court to treat the motion as a motion for summary judgment under Rule 56. The Court agreed to do so and gave no-tice to the parties. See Fed.R.Civ.P. 12(d). Plaintiff has responded accordingly, calling his brief a response to defendants' motion for summary judgment and including exhibits. Thus now before the Court is defendants' motion for summary judgment (Doc. 14) and plaintiff's response (Doc. 15).
The Court must first comment on some issues. Neither party's brief for this motion includes a statement of facts. Defendants' motion consists almost entirely of citations to legal authority, while plaintiff's response gives facts that are out of order, mixed with ar-gument, and often irrelevant. In addition, some of plaintiff's allegations are not supported by the citations provided. The Court's local rules do not require a separate statement of facts, but they do require all briefs to contain citations to the record, and they warn that "[a]llegations of fact not supported by citation may, in the Court's discretion, not be con-sidered." SDIL-LR 7.1(d). Further, "[a]ny brief in support of or in opposition to a motion for summary judgment shall contain citation... to the record...." SDIL-LR 7.1(e). The Court has reviewed the briefs and the record as it stands, but many facts, particularly those in defendant Acra's affidavit, were neither alleged in a brief nor supported by citation. Those facts are generally omitted in this order and are not considered. Since this is a mo-tion for summary judgment, the Court construes all facts and makes all reasonable infer-ences in favor of plaintiff, the nonmoving party. See, e.g., Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1125 (7th Cir. 2006). The Court may not make credibility determinations or weigh conflicting evidence. See, e.g., McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 752 (7th Cir. 2010).
Plaintiff C. Rodney Yoder was renting a house to Kevin and Christina Jacoby. (On-ly Christina Jacoby is involved in the pertinent facts, so from here on the singular "Jacoby" refers only to her.) On July 11, 2012, plaintiff served the Jacobys with a 30-day notice ter-minating their lease, giving them until August 12 to move out (Doc. 2, Ex. 1). Jacoby was upset by the notice and phoned the police on July 16 to complain. Defendant Darren On-wiler, a deputy in the Madison County Sheriff's Department, was dispatched to the house. While Onwiler was there, plaintiff drove by, so Onwiler waved him over. Onwiler told plaintiff that he was harassing Jacoby by phoning her that morning for permission to ac-cess the property to perform repairs. Plaintiff explained that his actions were necessary for his business and that he was not harassing Jacoby, but Onwiler responded that he would not believe anything plaintiff said. Plaintiff gave Onwiler a copy of the 30-day notice he'd served on the Jacobys (Doc. 15, Ex. 1, ¶ 3).
Plaintiff is able to see the Jacoby property every day, and he watched the Jacobys move their belongings out of the house before August 11 ( id., ¶ 2). After that, he says no one was in the house and the Jacobys' pit bulls were gone.
On August 14, at 8:00 a.m., plaintiff went to the house. The grass had not been mowed. A vacuum cleaner and television that had been sitting in the front yard were now gone ( id., ¶ 5). He could not see anyone inside the house. The beds were gone. He went inside, though he is opaque about how. He did not break any locks. He says police officers, while responding to an emergency, had broken the window frame on the front door a year earlier ( id., ¶ 12). The window was replaced with Plexiglas, such that now "[o]ne could simply push the bottom of the window in and reach around to unlock the door" (Doc. 15, Ex. 1, ¶ 12). He found garbage all over the floors of the house and in the garage. The re-frigerator was filthy. Plaintiff then changed the locks to the house and padlocked the door to the garage. He took pictures of the house and mowed the grass.
At about 9:00 a.m., another of plaintiff's tenants, Brian Ernst, arrived in a pickup truck to help plaintiff clean and remove the garbage. Ernst says no one was in the house. The condition of the property, he says, was "deplorable." (Doc. 15, Ex. 4, ¶ 6). "Junk was all over the floor and the kitchen was filthy" ( id. ). He says there was "no question" in his mind that the Jacobys had abandoned the premises.
Plaintiff noticed at some point that a ladder and eight boxes of floor tiles, which had been there on July 11, were now missing. He called the Sheriff's Department to report them as stolen ( id., ¶ 7). Soon after, Jacoby showed up at the house across the street, then defendants Acra and Onwiler arrived.
Defendants questioned several people and made phone calls for a half hour. Plain-tiff says he told them he did not steal the Jacobys' property; he was only there to clean up so he could lease it to other people. A friend of the Jacobys was at the scene. She said that the Jacobys had already moved out and that Jacoby was only trying to "get back" at plain-tiff (Doc. 15, Ex. 4, ¶ 7). Defendants did not interview her, however. Defendant Acra asked plaintiff about items he had taken to his minivan. Plaintiff responded it was "just some trash, " and told her he was burning trash in the backyard in a burn barrel. At that point, she took plaintiff into custody and secured him in the back of her squad car (Doc. 14, Ex. 1, ¶¶ 13-14).
Under Federal Rule of Civil Procedure 56, the court must grant summary judgment where "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." Fed.R.Civ.P. 56(a). The movant "al-ways bears the initial responsibility of informing the district court of the basis for its mo-tion, and identifying those portions of the pleadings, depositions, answers to interrogato-ries, and admissions on file, together with the affidavits, if any, ' which it believes demon-strate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). A party asserting that a fact cannot be, or is genuinely disputed, must support the assertion by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed.R.Civ.P. 56(c)(1).
After the moving party has satisfied its burden, the burden shifts to the nonmoving party. The nonmoving party "must do more than raise some metaphysical doubt as to the material facts; [it] must come forward with specific facts showing that there is some genu-ine issue for trial.'" Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008) (quot-ing Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006)). A genuine is-sue for trial exists "only if sufficient evidence favoring the nonmoving party exists to per-mit a jury to ...