United States District Court, N.D. Illinois, Eastern Division
DAVID D. WILBON, RICO M. WILBON, and GEORGE J. SMITH, Plaintiffs,
JOSEPH M. PLOVANICH, et al., Defendants
[Copyrighted Material Omitted]
For Stacey Sue Berlinger, as Beneficiaries to the Rosa B. Schwiker Trust and all of its related trusts, also known as Stacey Berlinger O'Connor, Brian Bruce Berlinger, Heather Anne Berlinger, as Beneficiaries to the Rosa B. Schwiker Trust and all of its related trusts, Plaintiffs: Robert Michael Presley, Steven Michael Presley, LEAD ATTORNEYS, Presley Law & Associates, PA, Wellington, FL.
For Wells Fargo, N.A. as Successor to Wachovia Bank, N.A., as Corporate Trustee to the Rosa B. Schweiker Trust, and all of its related trusts, Defendant, Third Party Plaintiff, Counter Defendant: Amy S. Rubin, Dori K. Stibolt, LEAD ATTORNEYS, Fox Rothschild, LLP, West Palm Beach, FL.
For Esq. Reuben A Doupe, Interested Party: Reuben Alexander Doupe, LEAD ATTORNEY, Klaus Doupe PA, Naples, FL.
For Bruce D. Berlinger, Third Party Defendant, Cross Defendant: Alan Jay Braverman, LEAD ATTORNEY, Braverman & Bogen, Ft Lauderdale, FL; Michael A. Hymowitz, LEAD ATTORNEY, Alan Jay Braverman, Ft Lauderdale, FL; Robert Michael Presley, Steven Michael Presley, LEAD ATTORNEYS, Presley Law & Associates, PA, Wellington, FL.
For Sue Casselberry, Third Party Defendant, Cross Claimant, Counter Claimant: Alan Jay Braverman, Michael A. Hymowitz, LEAD ATTORNEYS, Braverman & Bogen, Ft Lauderdale, FL.
MEMORANDUM OPINION AND ORDER
Marvin E. Aspen, United States District Judge.
In their amended complaint, Plaintiffs set forth eight claims against Defendants under 42 U.S.C. § 1983: 1) false arrest, 2) unconstitutional search of Plaintiffs' persons, 3) unconstitutional search and seizure of a vehicle and its contents, 4) failure to intervene, 5) supervisory liability, 6) conspiracy, 7) malicious prosecution, and 8) indemnification. (Am. Compl. at 5-23.) Presently before us are cross-motions for summary judgment. (Defs.' Mem., Pls.' Mem.) Plaintiffs have moved for partial summary judgment on counts I, II, IV, and V of their amended complaint, (Pls.' Mem. at 1), and Defendants have moved for summary judgment on all counts, (Defs.' Mem. at 1). For the reasons discussed below, we deny in part and grant in part.
A. Plaintiffs' Voluntary Dismissals
Before we address the motions for summary judgment we first turn to Plaintiffs' request for voluntary dismissal of certain parties and claims. (Pls.' Resp. at 4-6.) First, Plaintiffs request that we approval their voluntary dismissal of officers Gorzokowski and Karczewski, without costs to Defendants. ( Id. at 4.) Second, they request that we approve the voluntary dismissal of count III (unconstitutional search and seizure of vehicle), and count VI (conspiracy pursuant to 1983), without costs to Defendants. ( Id.) Third, they ask that we approve the voluntary dismissal of Plovanich and Millan only from count II (unconstitutional search of persons), without costs to Defendants. ( Id.) Finally, they ask that we approve the voluntary dismissal of certain defendants from certain parts of claims, without costs to Defendants:
1) Defendants Plovanich and Millan only from count I (false arrest) as it pertains to Rico and George only.
2) All Defendants from count I (false arrest) as it pertains to George only, and only for the time period subsequent to the time that defendants claim they found a $5 bag of cannabis while searching George Smith's vehicle.
3) Defendants Plovanich and Millan only from count VII (malicious prosecution) as it pertains to the mob action charge against Rico, and the mob action charge against George.
4) All Defendants from count VII (malicious prosecution), as it pertains to the possession of cannabis charge against George only. ( Id. at 5.) We grant without prejudice all of Plaintiffs' aforementioned voluntary dismissals.
B. Background Facts
Before delving into the facts, we first address the parties' requests to strike certain facts. Defendants ask us to strike Plaintiffs' statement of additional material facts, (Defs.' Resp. at 3), and Plaintiffs have filed a motion to strike Defendants' joint reply to Plaintiffs' response to Defendants' rule 56.1 statement of facts, (Pls.' Mot. Strike). In addition, most of the statements of fact are disputed in whole or in part. With exception to the undisputed facts concerning the presence of certain Defendant officers on the scene of Plaintiffs' arrest and the Defendant officers' respective roles in processing the relevant paperwork thereafter, we do not make any findings of fact. As such, the parties' requests to strike certain facts are irrelevant for purpose of the present motion.
1. Plaintiffs David Wilbon, Rico Wilbon, and George Smith
On the evening of April 9-10, 2010, Plaintiffs David Wilbon, Rico Wilbon, and
George Smith met up around 11:00 or 11:30 p.m. They drove a white 2001 Pontiac Aztec SUV, owned by the grandmother of George's girlfriend, to Carolyn's Lounge at N. Central Avenue and W. Bloomingdale Street in Chicago somewhere between 1:00 and 1:45 am. (Pls.' SOF ¶ 9.) They spent some time talking with people outside Carolyn's Lounge before deciding to go to David's home on Avers Street. ( Id. ¶ 11.) While en route, Rico received a call from his friend Tyrone Jones and the three Plaintiffs decided to change course to meet up with him and the other three friends Tyrone was with--LeCharn Lewis, Shawn Smith, and Anthony Pleas--who were driving a silver 2004 Cadillac. ( Id. ¶ 12.) The two groups met in front of the Chicago Police Department 15th district headquarters at 5701 W. Madison Street. ( Id. ¶ 13.) They pulled up next to one another, but then George pulled the SUV in front of the Cadillac to clear the way for an approaching police car whose emergency lights were on. ( Id. ¶ 62.) According to Plaintiffs, which Defendants dispute, after the police car pulled up, eight to ten officers arrived in a rush, in police vehicles and on foot from the 15th district headquarters, approached the SUV, and demanded that Plaintiffs exit the vehicle. ( Id. ¶ 63.) The officers ordered David and George to their knees and then handcuffed them as well as Rico, searched them, and ordered them to face, and place their hands on, the SUV. ( Id. ¶ 66.) The white, female supervisory officer, the only female officer on duty, ordered the male officers to arrest all seven men--David, Rico, George, Tyrone, LeCharn, Shawn, and Anthony. ( Id. ¶ 68.) Plaintiffs were then brought to the station where they were handcuffed to each other or the wall. ( Id. ¶ 66.) According to Plaintiffs, no private male citizen was in the back seat of a police car who identified or claimed to have identified them, and they were not placed in a line-up. ( Id. ¶ 67.) Plaintiffs were not told why they were arrested until they were released from custody the next morning. ( Id. ¶ 77.)
At no point during the evening of April 9-10, 2010, state Plaintiffs, were they on the 1300 block of N. Menard. ( Id. ¶ 14.)
The charges against Plaintiffs were ultimately dismissed. On June 1, 2010, George and Rico attended court for mob action charges, and George also for cannabis possession, all of which were stricken; no further proceedings were held with regard to these matters. (Defs.' SOF ¶ ¶ 111-12.) David's charges of mob action and aggravated assault of a peace officer were not stricken until September 10, 2010. ( Id. ¶ 110.) None of the Defendant officers testified against any of the Plaintiffs. ( Id. ¶ 113.) Nor did the officers take action to reinstate the charges for any of the Plaintiffs after they were stricken. ( Id. ¶ ¶ 115-17.)
The City of Chicago settled a civil rights case with the four men in the Cadillac--Tyrone, LeCharn, Shawn, and Anthony--for $50,000 in a case entitled Pleas, et al. v. Esquivel, et al., 11 C 7718. (Pls.' SOF ¶ 79.)
2. Witness Keith A. Thornton, Jr.
Keith A. Thornton, Jr. testified that on April 9-10, 2010, at ...