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Pappas v. Zorzi

United States District Court, Seventh Circuit

December 3, 2013



WILLIAM T. HART, District Judge.

Plaintiff Katherine Pappas, who is now an adult, alleges that she was sexually assaulted at her high school by another student, Eric Brown.[1] After Calumet City police investigated the assault and provided a report to the Cook County State's Attorney, prosecutors declined pursuing charges against Brown. Subsequently, officers took plaintiff into custody on juvenile misdemeanor disorderly conduct charges based on falsely reporting that she had been sexually assaulted. Juvenile charges were brought, but were subsequently dismissed. Named as defendants are Calumet City Police Department employees Captain Dante Zorzi, Officer Carter Rickey, [2] Officer Marisa Chavez, and Investigator John Bolda. Against these defendants, plaintiff brings a federal claim of false arrest and a state law claim of malicious prosecution. A claim for indemnity is brought against Calumet City. Presently pending are plaintiff's motion for partial summary judgment as to liability on the false arrest claim and defendants' motion for summary judgment dismissing all claims against them.

On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 274 n.1 (2009); Malen v. MTD Prods., Inc., 628 F.3d 296, 303 (7th Cir. 2010); Stokes v. Bd. of Educ. of City of Chicago, 599 F.3d 617, 619 (7th Cir. 2010). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). The nonmovant, however, must make a showing sufficient to establish any essential element for which she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324; Freundt v. Allied Tube & Conduit Corp., 2007 WL 4219417 *2 (N.D. Ill. Nov. 29, 2007); O'Brien v. Encotech Constr., 2004 WL 609798 *1 (N.D. Ill. March 23, 2004). Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Lorillard Tobacco Co. v. A & E Oil, Inc., 503 F.3d 588, 594-95 (7th Cir. 2007); Yasak v. Ret. Bd. of Policemen's Annuity & Benefit Fund of Chicago, 357 F.3d 677, 679 (7th Cir. 2004); Lampley v. Mitcheff, 2010 WL 4362826 *6 (N.D. Ind. Oct. 27, 2010). As the Seventh Circuit has summarized:

The party moving for summary judgment carries the initial burden of production to identify "those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986) (citation and internal quotation omitted)). The moving party may discharge this burden by "showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies this burden, the nonmovant must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The nonmovant must do more, however, than demonstrate some factual disagreement between the parties; the issue must be material.'" Logan, 96 F.3d at 978. "Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute." Id. (citation omitted). In determining whether the nonmovant has identified a "material" issue of fact for trial, we are guided by the applicable substantive law; "[o]nly disputes that could affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir. 1996) (citation omitted). Furthermore, a factual dispute is "genuine" for summary judgment purposes only when there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505 (1986). Hence, a "metaphysical doubt" regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and "the nonmovant fails to demonstrate a genuine issue for trial where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party....'" Logan, 96 F.3d at 978 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986)).

Outlaw, 259 F.3d at 837.

Resolving all genuine factual disputes and drawing all reasonable inferences in plaintiff's favor for the purposes of considering defendants' motion, the facts assumed to be true for purposes of summary judgment are as follows.[3] Brown's assault of plaintiff occurred on May 4, 2009. To the extent it is material, on defendants' summary judgment motion it is taken as true that Brown assaulted plaintiff in the manner she described at her deposition. As is discussed below, a central issue for the false arrest claim is not whether plaintiff actually was sexually assaulted, but whether defendants had a sufficient basis to believe-even mistakenly-that plaintiff had engaged in an unforced sexual act with Brown. At the time, both were students at Thornton Fractional North High School in Calumet City, Illinois. Plaintiff was 15 years old and Brown was 16 years old. Brown offered to give plaintiff a necklace that he had found and told her it was hidden in the boys bathroom. Plaintiff voluntarily entered the bathroom with Brown, but he then grabbed her by the hair and forced her into a toilet stall. She screamed for help, but stopped when he threatened to kill her. Brown forced plaintiff to engage in oral sex. During the assault plaintiff vomited and Brown ejaculated on plaintiff's pants. At the time, plaintiff did not know what ejaculate was, but her brother explained it to her after her first police interview. The assault stopped when a female janitor came into the bathroom and asked who was in the stall. Brown told the janitor that plaintiff was his sick sister who was in the bathroom vomiting.

The janitor brought plaintiff to the Dean's office. Plaintiff spoke with the male Dean who eventually sent her to speak with a female Athletic Director (Terese McLaughlin). After that, plaintiff went to the nurse's office. Plaintiff did not tell any of the school employees that she had been forcibly sexually assaulted. She told McLaughlin that she had vomited and that the white stain on her pants was vomit. Plaintiff was crying at the nurse's office and continued crying into the evening at home. The nurse provided a new pair of pants for plaintiff and gave her the stained capri pants in a bag. Plaintiff threw the stained capri pants in a gym locker. In different interviews with investigators, plaintiff said she threw the pants in a garbage can outside the Dean's office and in a garbage can outside the nurse's office. The pants were found in the gym locker by an investigator and had white stains on one leg.

Plaintiff later told her older brother she had been sexually assaulted and he took her to the police station around 5:48 p.m. Plaintiff spoke with Officer Louis Picicco, who is not a defendant. Plaintiff told Picicco that she went into the boys bathroom because she felt like she had to vomit and that she vomited in a toilet. While still in the stall, Brown approached and forced her to perform oral sex. She said she did not scream for help. When asked if Brown ejaculated, she said she did not know what that meant, but Picicco put in his report that she said Brown did not ejaculate.

Plaintiff reported that the female janitor came into the bathroom, Brown said "my sister is in here puking, " Brown ran out of the bathroom, and the janitor escorted plaintiff to the Dean. She said that she spoke with the Dean and an Athletic Director, but did not report the assault to them.

The next day, May 5, defendants Chavez and Bolda began an investigation of the assault. They viewed videotape of the hallway outside the bathroom. Later that day, Chavez interviewed plaintiff who provided information similar to what she had told Picicco. She stated that she did not know it was the boys bathroom. When asked why she did not scream for help, she said she was not the type to yell. Also, she said that she tried to tell the janitor what had happened, but the janitor "wasn't trying to hear" what she had to say. Chavez's report summary then states:

I informed Katie that I viewed the video surveillance tapes from the school showing everything that happened in the hallway. Katie then stated she could not remember how she went into the bathroom. I asked Katie why she didn't vomit in the garbage can that was located right outside the boys bathroom. Katie stated she wasn't thinking and just decided to go into the stall. She then stated that she knew it was the boys bathroom. I asked Katie if she kissed Brown back, which she then stated that she did pucker her lips. I informed Katie that the video shows that two male students went into the bathroom separately on two different occasions during the time she and Brown were in the bathroom. I asked Katie why she didn't scream or yell, to which she stated that she was not aware anyone entered the bathroom.

The following day, May 6, Chavez interviewed Athletic Director McLaughlin who said she had a friendly relationship with plaintiff and that she thought plaintiff would feel comfortable talking to her about problems. McLaughlin reported that plaintiff told her she ran in the boys bathroom because she had to vomit. McLaughlin specifically asked if anything else went on in there and if plaintiff had been hurt.

On May 6, Chavez also interviewed Brown. Brown reported that he and plaintiff were walking in the hallway and she asked if he wanted to go in the bathroom with her. He explained that students go into the bathrooms to do sexual acts. He said that, after the bell rang and the halls cleared, he put his arm around plaintiff and they went in the bathroom. He stated that plaintiff performed oral sex in a stall and that he ejaculated on her clothing. He stated that he ran out when the janitor paged the Dean.

The video surveillance showing plaintiff and Brown entering the bathroom was consistent with Brown's statement to Chavez, not plaintiff's statement ...

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