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Cox v. Gillenwater

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

April 6, 2015

GEORGE COX and ERICA KNOX, Plaintiffs,
v.
JOHN GILLENWATER, et al., Defendants.

MEMORANDUM OPINION AND ORDER

MANISH S. SHAH, District Judge.

Plaintiffs' two-count amended complaint alleges two deputy sheriffs violated the Fourth Amendment and Illinois law when, during an eviction, they allowed movers to open a locked storage unit and tow away a legally parked cargo van. Plaintiffs also seek to hold the Sheriff of DuPage County vicariously liable for the actions of these two deputies. Defendants have moved for summary judgment on both counts.

For the following reasons, defendants' motion is granted in-part and denied in-part.

I. Legal Standard

Summary judgment is appropriate if 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. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). A genuine dispute as to any material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

II. Background[1]

In June 2012, plaintiffs George Cox and Erica Knox learned they were being evicted from 162 Fairfield Lane in Carol Stream, Illinois. [49] ¶¶ 5-7. Neither plaintiff was present when the eviction began, but much of their property was. Id. ¶ 8; [53] ¶¶ 4-8. Plaintiffs left belongings in a locked PODS storage unit, which itself sat on the home's driveway. [53] ¶ 5; [49] ¶ 7. Plaintiffs also left some of their property inside a white cargo van that Cox had parked in the development's visitor parking area. [53] ¶ 7.[2]

Defendant John Gillenwater, a deputy with the DuPage County Sheriff's Office, arrived at the home around 11:30 am (the scheduled start time for the eviction). [49] ¶¶ 17-20. Gillenwater met a contractor and property manager named Michael Morawski who-with Michelle Whitehead and Marcus Luckey-the homeowner had hired to perform the eviction. Id. ¶¶ 20-21. According to plaintiffs' evidence, Gillenwater (incorrectly) told Morawski that the area in which the cargo van was parked was technically part of 162 Fairfield Lane and-for that reason- the vehicle could be towed as part of the eviction. [53] ¶ 11. Gillenwater also told Morawski that the latter's team could hold the van and its contents as collateral until plaintiffs paid off their debt. Id. Armed with this misinformation, Morawski proceeded to have the van towed. Id. ¶ 12. A record from West & Sons Towing shows the call came in at "11:40" and had an "ETA" of "1 hour." [49-4] at 2. Morawski later testified that he would not have towed the car had Gillenwater not given the go ahead. [53] ¶ 13.

Morawski also spoke with Gillenwater about what should be done with the PODS storage unit in the home's driveway. Gillenwater, who correctly believed the unit contained plaintiffs' property, said that it could be removed but that PODS should be called first to see if they'd come take it. Id. ¶¶ 19, 21-22; [49] ¶ 22. Whitehead called PODS and relayed to Gillenwater that a pickup was scheduled for that day. [53] ¶ 18. Nevertheless, Gillenwater told Luckey he could cut the lock on the unit, and he told Morawski that the unit's contents now belonged to the landlord. Id. ¶ 21. Luckey and Whitehead began removing plaintiffs' property from the locker. Id. ¶ 22.

Around 12:10 pm, defendant Filippo Restivo-another deputy with the DuPage County Sheriff's Office-arrived to relieve Gillenwater. [49] ¶ 33. Restivo observed plaintiffs' property being removed from the house and PODS unit. Id. ¶¶ 34-35. At some point, a driver from PODS came to the house to retrieve the unit, but Restivo did not permit him to take it while it still contained plaintiffs' property. Id. ¶ 36. When Restivo left the scene at 2:45 pm, everything that had been taken from the PODS unit and residence had been placed on the front portion of the property. Id. ¶ 39.

Plaintiffs returned to 162 Fairfield Lane that evening to find the PODS storage unit in the same location as before, but with its padlock cut off, its door wide open, and its contents removed. [53] ¶ 24. Plaintiffs saw their personal property strewn across the driveway and yard. Id. ¶ 25. Cox also realized his cargo van was missing from the visitors' parking area, so he reported it stolen to the Carol Stream police. [49] ¶¶ 42-43. Cox eventually learned that the van had been towed, and when he went to retrieve it, he observed that its locks had been broken and that property was missing from inside. Id. ¶¶ 46-49. Altogether, plaintiffs allege that $42, 000 worth of property went missing from the PODS unit and van. Id. ¶ 48-49.

Plaintiffs filed a two-count amended complaint seeking relief for these alleged injuries. Count I, which arises under 42 U.S.C. § 1983 and is brought against Gillenwater and Restivo, alleges violations of plaintiffs' fourth-amendment rights in connection with both the PODS storage unit and the cargo van. Count II, which plaintiffs bring against Gillenwater, seeks to hold the deputy liable under Illinois state law for the allegedly willful and wanton conduct described above. Plaintiffs also allege that defendant John Zaruba, the sheriff of DuPage County, is vicariously liable for the acts of his employees, Gillenwater and Restivo. Defendants have moved for summary judgment on both counts.

III. Analysis

A. Count I - ...


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