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Bisharat v. Village of Niles

United States District Court, N.D. Illinois, Eastern Division

June 4, 2014

VILLAGE OF NILES, a municipal corporation, The NILES POLICE DEPARTMENT, NILES Chief of Police DEAN STRZELECKI, Star # 1, Niles Police Officers DENNIS McENERNEY, Star # 5, ANTHONY MUSCOLINO, Star # 173, NENOUS ESHA, and SARGON HINAWER, Defendants.


JOHN J. THARP, Jr., District Judge.

This case involves a dispute over the ownership of a 2005 H2 Hummer. Plaintiff Issa Bisharat alleges that defendants Nenous Esha and Sargon Hinawer sold the Hummer to him and then stole it back from him. The dispute is in federal court because the plaintiff has alleged that three police officers from the Village of Niles violated his constitutional rights by conspiring with Esha and Hinawer to deprive him of the vehicle by failing to properly investigate the plaintiff's allegations. A default judgment has already been entered against Esha and Hinawer. Before the Court now is a motion for summary judgment filed by the Niles defendants. For the reasons explained below, their motion is granted in its entirety.

I. Background

A. Factual Background[1]

The facts relating to the dispute over ownership of the Hummer are in dispute-and that is a state of affairs that serves to illustrate how baseless are the plaintiff's claims. The essence of the plaintiff's claim is that the Niles police inappropriately classified his dispute with defendants Hinawer and Esha as involving a stolen vehicle, but as the following recitation should illustrate, one can hardly blame the officer who responded to a 911 call reporting a stolen vehicle for being unable immediately to sort through the conflicting claims of the antagonists in this drama.

The story begins in early 2009, when, Bisharat claims, he agreed to purchase a 2005 H2 Hummer that was owned by defendant Sargon Hinawer but operated and driven by defendant Nenous Esha. Bisharat claims that he was to pay Hinawer $12, 000 plus the approximately $7, 300 that Hinawer owed to Chase Bank on a loan secured by the car. Bisharat and Hinawer signed an agreement (the "Bill of Sale") on February 6, 2009, at the Baghdad Grocery Store in Niles (where Esha worked), reflecting a total price for the vehicle of $19, 308. Bisharat claims that he gave Hinawer $12, 000 in cash, but did not obtain a receipt; he has a canceled check (in the amount of $7, 328) to show for the payment to Chase Bank. At the time of the agreement, either Hinawer or Esha gave a set of keys to the Hummer to Bisharat. Bisharat claims that they agreed that Hinawer would keep the car itself until Bisharat received the title from the bank.

Hinawer admitted in his deposition that he signed the Bill of Sale.[2] He did so, he said, as a favor to Esha, who really owned the car, and he denied that Bisharat paid him $12, 000 in cash for the car. For his part, however, Esha denied that he had ever sold the Hummer to Bisharat (the summary judgment record does not reflect what Esha said about the Bill of Sale). Esha claimed that while he was doing a remodeling project at Bisharat's bar, he told Bisharat that he wanted to sell his car to CarMax. He testified that Bisharat offered to pay the amount that Esha still owed on the vehicle as a favor, and was going to allow Esha to pay him back bit by bit; the two went to Chase Bank, where Bisharat paid off the approximately $7, 300. Bisharat denies that he gave Esha a loan. Sometime later, Esha came to Bisharat's store, Manny's Food & Liquor, and gave Bisharat three $1, 000 post-dated checks (presumably, in partial repayment for the purported loan). Bisharat refused to keep them.

Bisharat maintains that title to the vehicle was sent to his business address in Hinawer's name and that, after receiving the title, he called Hinawer to arrange to pick up the vehicle. Hinawer, he alleges, was uncooperative, telling Bisharat that he would meet him to sign the title but repeatedly failed to show up and ultimately stopped taking Bisharat's calls. Maintaining that he was the rightful owner of the Hummer, Bisharat arranged for D&D Towing to tow the vehicle from the Baghdad Grocery Store in Niles for $200 on May 11, 2009.[3] Upon discovering that the Hummer was missing, Esha called Hinawer, who went to the store to make a report about the stolen car. Esha called 911.

Officer Anthony Muscolino, a police officer for the Village of Niles, was dispatched to the store to respond to Esha's 911 call concerning a stolen vehicle. Esha told Muscolino that the Hummer had been taken from the store; he said that someone[4] had loaned him $7, 000 to pay off the vehicle and that he was trying to repay the money.[5] He also said that he had given the person a set of keys in the transaction. Esha wanted to report the vehicle as stolen, but Muscolino ran the license plate and VIN number through the LEADS system and learned that the registered titled owner was Hinawer. Hinawer was also at the store, though the parties dispute whether he arrived before or after the police. Adding to the confusion, Muscolino observed Hinawer and Esha having a heated discussion in Assyrian, which Muscolino did not understand. Muscolino asked Hinawer whether he wanted Bisharat arrested and whether he wanted to sign a criminal complaint and would testify in court against Bisharat; Hinawer was undecided. Neither Hinawer nor Esha signed a criminal complaint.

To Muscolino's knowledge, he had neither seen nor met Esha before that day, nor had he been to the store.[6] Esha had similarly never seen Muscolino, nor does he have any relatives at the Niles Police Department. Hinawer also had neither seen nor heard of Muscolino before that date. Hinawer could not remember what Muscolino asked him at the store.

That evening, Muscolino spoke to Bisharat on the phone[7] and asked him if he had possession of the vehicle; Bisharat responded that he did. Muscolino and Bisharat's account of this phone conversation differ, though both agree that Muscolino wanted Bisharat to bring the vehicle back to the store or to the police department. According to Bisharat, Muscolino told Bisharat that "this is a felony" and that he would be arrested if he did not return the car; he claims that Muscolino asked for his location so that he could arrest him. Bisharat also claims that Muscolino referred to the Bill of Sale on the phone, stating that it was not legal if it was not notarized, but Muscolino denies having said this and maintains that he was never given the Bill of Sale.

According to Muscolino, Bisharat became belligerent on the phone and did not want to bring the car back. Muscolino testified that he told Bisharat that the matter might be entered as a stolen vehicle and that Bisharat could be arrested if he were caught driving the vehicle. Muscolino cannot recall Bisharat's words, but testified that Bisharat told him that he had entered into some sort of agreement with Hinawer and Esha regarding the vehicle and that he had loaned them money; he does not recall Bisharat saying that he owned the vehicle or had a Bill of Sale. Muscolino claims that Bisharat said he had a person named Ahmed get the car; Muscolino believes he tried unsuccessfully to contact Ahmed.[8] Bisharat would not give his full name, and when Muscolino asked for his address, he said something to the effect of "come find me."

The next day, May 12, 2009, Esha went to the Niles Police Station and gave Bisharat's name and address to Officer Muscolino. Two days later, Esha went to Bisharat's store, Manny's Food & Liquor, found the Hummer parked there, and drove away in it. From the back window of the store, Bisharat saw him drive it away. To Bisharat's knowledge, no one from the Village of Niles or the Village of Niles Police Department ever took, seized, or impounded the vehicle for any reason.

Muscolino filled out an "Incident Report" that indicated that the victim and complaining witness (Hinawer, as the registered owner) and Esha had been loaned money by "Suspect #2" and that Suspect #2 was given a set of keys to the vehicle; Esha noticed the vehicle missing and was advised by Suspect #2 that it had been taken by another person ("Suspect #1") and would be returned once the loan was paid. The incident report also described a call during which Muscolino advised Suspect #2 that a report would be filed for a stolen vehicle if it was not returned immediately. Muscolino indeed filed the ...

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