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Stevens v. Weiss

United States District Court, Seventh Circuit

September 5, 2013

SUSAN STEVENS, Plaintiff,
v.
KATHY WEISS and RYAN BUEHNERKEMPER, Defendants.

OPINION

SUE E. MYERSCOUGH, District Judge.

This cause is before the Court on Defendant Ryan Buehnerkemper's Motion for Summary Judgment (d/e 59), Defendant Kathy Weiss' Motion for Summary Judgment (d/e 66), and Defendant Weiss' Motion for Sanctions Under Rule 11 and 28 U.S.C. § 1927 (d/e 55). For the reasons that follow, Defendants are awarded summary judgment on Plaintiff Susan Stevens' § 1983 claims for false arrest and false imprisonment (Counts I and II). Further, the Court declines to exercise supplemental jurisdiction over Plaintiff's state law malicious prosecution claim (Count III). Finally, Defendant Weiss' Motion for Sanctions (d/e 55) and Plaintiff's request for sanctions made in her response to Defendant Weiss' Motion for Sanctions are both DENIED.

I. INTRODUCTION

On March 23, 2007, Plaintiff Susan Stevens was terminated from her employment as deputy clerk and bookkeeper in the DeWitt County Circuit Clerk's office. On May 13, 2009, Plaintiff was arrested for theft over $100, 000 and official misconduct. On May 15, 2009 and May 19, 2009, charges of theft and official misconduct were filed against Plaintiff. On August 17, 2010, all charges against Plaintiff were dismissed with prejudice.

On May 16, 2011, Plaintiff filed suit against Defendant Weiss, who was the DeWitt County Circuit Clerk until November 30, 2008; Defendant Buehnerkemper, the Illinois State Trooper who investigated the case; Defendant Andrew Killian, a DeWitt County Assistant State's Attorney from February 2003 to July 3, 2008; Defendant Richard Koritz, the DeWitt County State's Attorney beginning December 1, 2008; and DeWitt County. This Court has already dismissed the claims against Killian, Koritz, and DeWitt County. See Opinions (d/e 27, 38).

The remaining claims in this lawsuit are a § 1983 claim for false arrest, a § 1983 claim for false imprisonment, and a state law claim for malicious prosecution against Defendants Buehnerkemper and Weiss. Plaintiff alleges that shortly after she told fellow employees that she was considering a run for Circuit Clerk when Defendant Weiss retired, Defendant Weiss fired Plaintiff and started a false and malicious criminal prosecution against Plaintiff that led to her arrest, imprisonment, and prosecution. Plaintiff alleges Defendant Weiss' actions were made under color of state law when she was Circuit Clerk. After Weiss' retirement, Weiss' actions were taken in concert with other state actors, such as the prosecutors, Defendant Buehnerkemper, and the newly elected Circuit Clerk Lori Berger.

Plaintiff also alleges that Defendant Buehnerkemper arrested her without probable cause. According to Plaintiff, Defendant Buehnerkemper accumulated no credible evidence that any money was missing or that Plaintiff had committed any crime.

In March 2013, Defendants Weiss and Buehnerkemper filed separate motions for summary judgment. Defendant Weiss also filed a Motion for Sanctions. On July 29 and July 30, 2012, the Court heard oral argument on the motions for summary judgment. Plaintiff requested oral argument on the Motion for Sanctions. That request is denied.

II. LEGAL STANDARD ON SUMMARY JUDGMENT

Summary judgment is appropriate "if 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 a judgment as a matter of law." See Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. Celotex Corp. , 477 U.S. at 323. Once the movant has met his burden, the "nonmovant must show through specific evidence that a triable issue of fact remains on issues on which he bears the burden of proof at trial." Warsco v. Preferred Technical Group. , 258 F.3d 557, 563 (7th Cir. 2001).

Moreover, facts must be viewed in the light most favorable to the non-moving party, and all reasonable inferences must be drawn for the non-movant. See Trentadue v. Redmon , 619 F.3d 648, 652 (7th Cir. 2010). The Court's role "is not to evaluate the weight of the evidence, to judge the credibility of the witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." Outlaw v. Newkirk , 259 F.3d 833, 837 (7th Cir. 2001).

III. FACTS

A. Plaintiff's Job Duties Included Keeping the Manual Ledger and Depositing Money in the Bank

Plaintiff began working in the DeWitt County Circuit Clerk's office in August 1983. She was terminated on March 23, 2007. At the time of her termination, Plaintiff was a deputy clerk and the bookkeeper. She made bank deposits, kept track of the daily ledger, kept the general ledger, and made the payouts at the end of the month.

Plaintiff testified that, every day she was at work, she was responsible for making the deposits into the bank. However, other employees, including Defendant Weiss, sometimes made the deposits. The office did not have a rule that required that deposits be made the next business day.

All of the employees in the Clerk's office had access to the checks, the Judicial Information Management System (JIMS), and the vault. Plaintiff testified that other employees in the office had access to the manual ledger because it was kept at her desk and was not "locked up or hidden." However, Plaintiff did not know if anyone ever accessed it to modify it in any way.

B. Kayte Goodin Tells Defendant Weiss that She Has Concerns About the Bookkeeping

On March 22, 2007, Kayte Goodin, a computer software trainer, went to the Circuit Clerk's office at Defendant Weiss' request to transfer the county books from the manual bookkeeping system to JIMS. Goodin is not an accountant.

At the end of the day, Goodin went to Defendant Weiss and asked her for the December bank statements. Goodin was concerned about inaccurate information Plaintiff had given Goodin regarding the December checks and about Plaintiff's behavior.

The next day, March 23, 2007, Goodin spoke with Defendant Weiss and prepared a letter outlining what Goodin found. In the letter, Goodin stated:

When comparing a bank statement to circuit clerk reports, it should be very easy to see that the money came in on one day and either got deposited on that day or perhaps the next morning. In some counties you may be able to see that two daily totals were combined into one deposit (a practice that I highly discourage when training) but even so, it is usually easy to see where two daily totals add up to a certain deposit that was made shortly afterward. When the clerk and I reviewed the bank statement for December, we found that none of the deposit totals added up to what should have been deposited for a given day. We then looked at a couple of other bank statements and found the same thing - none of them matched up with the daily totals in the computer.
On March 23, 2007 I looked further into this and found that I could locate a specific deposit amount eventually, but that the money that came in one day may not have actually been deposited until days, weeks and sometimes even months later. I am attaching some reports that show my scribbles where I documented when the amount of the deposit didn't match and also make note of the dates that the deposits were actually made.

C. Defendant Weiss Contacts the Assistant State's Attorney and Terminates Plaintiff's Employment

That same day, Defendant Weiss and Goodin went to speak to Assistant State's Attorney (ASA) Andrew Killian. Before doing so, Defendant Weiss did not look at any records, did not speak to Plaintiff, and did not contact Larry Allison of Allison & Associates, who had audited the office books for decades. Weiss asked ASA Killian to conduct an investigation on her behalf. She also told ASA Killian that she believed money was missing from the Circuit Clerk's office and that Plaintiff was responsible for the missing funds.

Weiss also terminated Plaintiff's employment. The Sheriff's office secured the books and Plaintiff's work area.

D. ASA Killian Contacts the Illinois State Police

On March 27, 2007, ASA Killian contacted the Illinois State Police to request assistance concerning potential embezzlement by Plaintiff. Defendant Buehnerkemper was assigned to investigate the matter.

Defendant Buehnerkemper testified that his supervisor told him they were not going to take the case unless a "forensic audit" was done. Defendant Buehnerkemper testified he did not know the definition of a forensic audit.

E. Kent Kull is Hired to Conduct an "Agreed Upon Procedures, " and Kull Prepares a Report

The DeWitt County Board hired Kent Kull, an accountant with Mose, Yockey, Brown & Kull, to conduct an "Agreed Upon Procedures" of the books. (Kull testified that an Agreed Upon Procedures is a lower level of service than an audit.)

On June 1, 2007, Kull submitted a report (the Kull Report) based on the Agreed Upon Procedures he conducted. In the Kull Report, Kull compared daily voucher report totals per JIMS (which would have recorded money received by Circuit Clerk personnel) to bank deposits for the time period of January 1, 2004 to March 22, 2007. Kull also compared the date per the daily voucher report to the date a deposit cleared the bank. Of the 810 deposits made between January 1, 2004 through March 22, 2007, 101 of those were not made within one week of the business date. One deposit was not made until 61 days later.

Kull also found 272 deposit discrepancies totaling $83, 518.20 and five missing deposits totaling $31, 202.83. The Kull Report provided:

For the majority of identified differences, manual alterations to the daily voucher report were noted. Generally, the bank deposit amount was less than the deposit total per the daily voucher report by an amount equal to the manual alteration. In addition, we noted the deposit amount recorded in the manual subsidiary cash receipts journal maintained by Ms. Stevens reflected the altered deposit total per the daily voucher report and the bank deposit amount. In some instances, the daily voucher report was not altered but the bank deposit was less than the deposit total per the daily voucher report. In those instances, the deposit amount recorded in the manual subsidiary cash receipts journal reflected the bank deposit amount. Additionally, we noted five deposit totals per daily voucher reports from February and March 2007 for which deposits have not cleared the bank through the date of our procedures nor has the deposit support been located on-site.

The Report also contains the language that:

The sufficiency of these procedures is solely the responsibility of the Finance Committee of the DeWitt County Board. We make no representation regarding the sufficiency of the procedures performed either for the purpose for which this report has been requested or any other purpose.

Kull testified that in his Report, he assumed the JIMS receipts were accurate. He admitted that whether money was missing depended on the accuracy of JIMS. Plaintiff asserts the records were kept manually and not on JIMS and JIMS was not integrated with the manual system.

Defendant Buehnerkemper testified that while he was sure he read the Kull Report during his investigation, he did not read it "word for word, " he never made an extensive review of the document, and he did not go through each line of the report looking for key words (which was his definition of "skimming" a document).

F. Defendant Buehnerkemper Testifies Before the Grand Jury

In June 2007, after receiving the Kull Report, ASA Killian turned the matter over to the Illinois State Police. Killian did not hear back from the Illinois State Police until 2008. Killian testified the reason for the delay was that Defendant Buehnerkemper had been assigned other duties and the case was shelved.

In February or March of 2008, Defendant Buehnerkemper indicated he needed financial records to move forward with the investigation.

On March 27, 2008, Defendant Buehnerkemper testified before the grand jury seeking subpoenas to obtain Plaintiff's financial records. During the leading examination by ASA Killian, Defendant Buehnerkemper answered yes when asked: (1) whether Weiss told him she believed there was an $80, 000 discrepancy; (2) that Plaintiff was the only one with access to the manual ledger; (3) that a forensic audit is a more detailed audit of income and expenses that attempts to track not only where the money comes from but where it goes; (4) that a forensic audit was conducted; and (5) the forensic audit determined there ...


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