Opinion
No. 98 C 7382
August 22, 2000
MEMORANDUM OPINION AND ORDER
This consolidated action arises from an alleged incident of police brutality and subsequent attempted coverup by members of the Evergreen Park Police Department. Steven Podkulski (Podkulski), the victim of the alleged brutality, is the plaintiff in one complaint, and Raymond E. McNamara (McNamara) and Casimir Ostrowski (Ostrowski), who witnessed the incident and themselves were tried and acquitted of attempting to obstruct justice, bring the other lawsuit. Officers Randall Guinn (Guinn), John Kirincic (Kirincic), Winfield Wendt (Wendt) and the Village of Evergreen Park (the Village) (collectively "defendants") now seek summary judgment with respect to certain elements of both complaints. For the reasons set forth below, defendants' motions are granted in part and denied in part.
BACKGROUND
On the morning of May 6, 1998, Officers Guinn and Kirincic engaged in a chase, by car and on foot, of Podkulski, who reportedly had committed an armed robbery and was fleeing from the scene of the crime. The officers pursued Podkulski down an alley adjacent to McNamara's home. The parties have different versions of the ensuing events. Plaintiffs say that McNamara was talking with Ostrowski when he heard the officers and saw Podkulski coming down the alley. McNamara stepped out to block Podkulski's way, enabling the officers to catch up to the suspect. The officers approached with their guns drawn causing McNamara to freeze and black out for a few seconds at the sight of the weapons. The officers put Podkulski on the ground, handcuffed him, and then kicked his head and body causing severe wounds and bleeding. McNamara and Ostrowski protested at the time, but Guinn and Kirincic continued to beat Podkulski until two other officers arrived at the scene.
Defendants testify to a different scenario. They state that the officers caught Podkuiski after he "ran out of gas" while running down the alley. As Guinn and Kirincic approached Podkulski with guns drawn, McNamara, Ostrowski and a third unknown individual blocked their way and obstructed the apprehension of Podkulski. The officers were especially concerned by this development since Podkulski's hands were hidden and they suspected that he had a gun. Ultimately, the officers were able to push aside McNamara and Ostrowski and physically seize Podkulski. Guinn and Kirincic admit that some force was necessary in order to handcuff Podkulski, but state that no injuries resulted from the use of excessive force. Guinn and Kirincic eventually escorted Podkulski back to the squad car and transported him to the police station.
Upon returning to the station, Guinn and Kirincic prepared reports about the arrest. In their reports, they noted that three individuals (two of whom were later identified as McNamara and Ostrowski) attempted to obstruct the arrest of Podkulski and they recommended prosecuting those individuals for their interference. Guinn and Kirincic orally informed Wendt, the watch commander, of the content of their reports before filing them. Meanwhile, McNamara and Ostrowski remained upset with the events they had witnessed earlier in the day. McNamara contacted the Evergreen Park Police Department to complain about the beating of Podkulski. Suspecting that McNamara was one of the individuals who allegedly had interfered with the arrest, Wendt returned McNamara's call that afternoon and suggested that McNamara and Ostrowski come into the station to file a formal complaint. McNamara and Ostrowski followed Wendt's advice but, upon their arrival at the station, the trap was sprung. McNamara and Ostrowski were identified by Guinn and then arrested for obstructing the apprehension of Podkulski. McNamara and Ostrowaki were detained for approximately one hour before being released on bond.
On November 9 and 10, 1998, McNamara and Ostrowski were tried in state court for the criminal obstruction charges. The jury acquitted both men. After the not guilty verdicts were announced, McNamara fainted and subsequently was hospitalized for two days. McNamara, who was 63 years old at the time of the incident, also claims that he has suffered humiliation, fear, sleeplessness and nightmares as a result of his arrest and prosecution. Similarly, Ostrowski, then 71 years old, complains that the incident humiliated him, injured his pride, and increased tensions within his family. McNamara and Ostrowski expended a considerable amount of time and money in defending against the criminal charges and McNamara also incurred medical costs related to his hospital stay. They now seek to hold defendants responsible for their injuries. As for Podkulski, the record does not indicate whether he was ever charged or tried in connection with the armed robbery and subsequent flight, but he, too, sues defendants for violating his federal and common law rights.
DISCUSSION
The two cases share not only a common factual background, but also encompass some of the same legal theories. Not surprisingly, the arguments advanced in defendants' motions also overlap to some extent. For clarity's sake, however, we will discuss the two complaints and related motions for partial summary judgment separately. of course, we review the motions keeping in mind the familiar summary judgment standards of Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
I . Podkulski
Podkulski filed a three-count complaint against defendants on April 30, 1999. Count I is a police brutality claim against Guinn and Kirincic brought under 42 U.S.C. § 1983. Count II alleges conspiracy under 42 U.S.C. § 1985, claiming that all four defendants schemed to arrest, detain and prosecute McNamara and Ostrowski in an effort to conceal the unlawful beating of Podkulski. Count III seeks to hold the Village responsible for the offenses of Guinn and Kirincic. Defendants move for summary judgment only with respect to Count II, raising a number of different arguments.
First, defendants correctly argue that Section 1985 is inapplicable to the facts presented in this lawsuit. In order to establish liability under Section 1985(3), a plaintiff must prove the existence of a "conspiracy motivated by racial or other class-based animus." Kyle v. Morton High School, 144 F.3d 448, 457 (7th Cir. 1998); see Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Podkulski has not alleged in his complaint, nor established on summary judgment, that he is a member of a protected class. While the precise scope of Section 1985(3) is somewhat unsettled in this circuit, see Jones v. Sabis Educational Systems, Inc., 52 F. Supp.2d 868, 877 (N.D. Ill. 1999), it is clear in this case that defendants' actions were not motivated by racial or other class-based animus and therefore Section 1985 is inapplicable. However, Podkulski may proceed with a conspiracy theory under Section 1983. See Hanania v. Loren-Maltese, 212 F.3d 353, 356 (7th Cir. 2000); Hampton v. Hanrahan, 600 F.2d 600, 620-23 (7th Cir. 1979), rev'd an part on other grounds, 446 U.S. 754 (1980). Therefore, we will construe Count II as being brought pursuant to that provision of the federal civil rights laws.
Contrary to Podkulski's suggestion, neither of the other two provisions of Section 1985 are relevant here.
Second, defendants argue that Wendt should be dismissed from Count II, the only claim brought against him. In order to establish Section 1983 liability on a conspiracy theory, a plaintiff must show that the defendants reached a mutual understanding to deprive plaintiff of his constitutionally-protected rights. See Kunik v. Racine County, 946 F.2d 1574, 1580 (7th Cir. 1991). No such evidence has been developed with respect to Wendt. His role in the events was limited. The record reveals that Wendt simply received the oral report of Guinn and Kirincic, returned McNamara's call, invited McNamara and Ostrowski to the station, and then ordered their arrest after Guinn made a positive identification. Wendt was not at the scene of the incident and his understanding of what happened in the alley was based entirely on the report of his subordinates. Wendt, as the watch commander, simply was doing his job and had no reason to doubt the veracity of Guinn and Kirincic. Based on these circumstances, Wendt cannot be held liable on a Section 1983 conspiracy theory. See Vukadinovich v. Zentz, 995 F.2d 750, 756 (7th Cir. 1993) (officer not liable for simply reviewing and signing police report); Fantasia v. Kinsella, 956 F. Supp. 1409, 1415-16 (N.D. Ill. 1997) (officer who arrested plaintiff on the basis of a fellow officer's report was not liable for conspiracy under Section 1983); Humphrey v. Demitro, 931 F. Supp. 571, 583 (N.D. Ill. 1996) (same), rev'd in part on other grounds, 148 F.3d 719 (7th Cir. 1998).
Indeed, in their lawsuit, McNamara and Ostrowski concede that Wendt is not liable for his involvement in the alleged conspiracy.
In an attempt to rescue his claim against Wendt, Podkulski argues that we should not discount Wendt's involvement in the alleged conspiracy because, as a policymaker and supervisor, he played an instrumental role in carrying out the Village's custom of concealing incidents of police brutality. We are unpersuaded. Wendt does not qualify as a decisionmaker with final policymaking authority on behalf of the Village. See Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 1992); Sarantakis v. Village of Winthrop Harbor, 969 F. Supp. 1095, 1106 (N.D. Ill. 1997). Wendt was the supervisor on the day of the incident, but he had no knowledge of any misconduct by Guinn and Kirincic and simply believed their report of the events. See Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 477-78 (7th Cir. 1997). No matter what hat defendants attempt to put on Wendt — that of a conspirator, a policymaker, or a supervisor — he cannot be held liable under Section 1983 and has no place in this lawsuit.
In their third argument, defendants turn their attack away from the conspiracy element of Count II and direct their efforts toward the constitutional offenses underlying that claim. See Hampton. 600 F.2d 622-23 (Section 1983 conspiracy claim requires proof of conspiracy and proof of a deprivation of a constitutionally-protected right). Defendants argue that the evidence does not reveal any constitutionally actionable conduct on the part of the Village. In order to hold the Village liable under Section 1983, defendants must show that a constitutional offense resulted from an express municipal policy, a widespread custom, or the act of a decisionmaker with final policymaking authority. Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91 (1978). Podkulski asserts that the Village had a custom of concealing incidents of police brutality and that Wendt, a policymaker, effectuated that custom by ignoring established department procedures regarding the handling of excessive force complaints. However, we have been presented with no evidence of a widespread practice of misconduct by the Evergreen Park Police Department. See Williams v. Heavener, 2000 WL 862739, *3 (7th Cir. Jun. 28, 2000) ("Ordinarily, one incident is not sufficient to establish a custom that can give rise to Monell liability"). And, as we noted above, Wendt does not qualify as a policymaker. Podkulski has not uncovered evidence to support his municipal liability claim. Therefore, the Village is dismissed from Count II.
Finally, defendants argue that Guinn and Kirincic committed no constitutional offense and therefore also cannot be held liable under Count II. Defendants claim that the officers' role in prosecuting and testifying against McNamara and Ostrowski does not amount to constitutionally actionable malicious prosecution. Defendants misunderstand the nature of Podkulski's theory. Count II is not based solely on the officers' prosecution of McNamara and Ostrowski, but rather more broadly on their efforts in conspiring to cover up the beating of Podkulski. In any event, as we discuss more fully below, the officers' role in initiating and pursuing the criminal prosecutions against McNamara and Ostrowski are actionable under Section 1983. There is enough here to proceed with the conspiracy charge against Guinn and Kirincic.
In sum, Count II survives as a Section 1983 conspiracy claim against Guinn and Kirincic based on their alleged attempt to cover up the beating of Podkulski. Neither the Village nor Wendt are liable under Count II, and since Wendt is not named in any other count, he is dismissed from this lawsuit.
II. McNamara and Ostrowski
McNamara and Ostrowski filed their complaint against defendants on November 18, 1998. The complaint raises six counts. The first two causes of action arise under Section 1983: wrongful arrest and conspiracy related thereto (Count I), and malicious prosecution and conspiracy related thereto (Count II). The remaining counts are state law claims: false arrest and malicious prosecution (Count III), intentional infliction of emotional distress (Count IV), conspiracy (Count V), and indemnity (Count VI). Counts I and II are alleged only against Guinn, Kirincic and Wendt. Counts III-V are brought against all four defendants, and Count VI is directed only against the Village. Defendants raise three arguments in their motion for partial summary judgment. First, defendants claim that Wendt did not directly participate in the alleged conspiracy and therefore should be dismissed as a defendant. We addressed this argument above and accordingly dismiss Wendt from this lawsuit.
Second, defendants argue that the facts do not support a Section 1983 malicious prosecution claim, defeating Count II. Relying on Washington v. Summerville, 127 F.3d 552, 558-59 (7th Cir. 1997), cert. denied, 523 U.S. 1073 (1998), defendants argue that Count II alleges nothing more than a wrongful arrest and therefore no federal claim for malicious prosecution exists. The evidence developed by McNamara and Ostrowski indicates otherwise. Count II raises questions of fact not only as to whether Guinn and Kirincic wrongfully arrested and detained McNamara and Ostrowski, but also as to whether they covered up their misconduct, drafted false arrest reports, wrongfully initiated and pressed the criminal prosecutions, and perjured themselves at trial. Moreover, McNamara and Ostrowski assert that the officers not only withheld the truth, but also made affirmative misrepresentations and fabricated criminal charges. It bears keeping in mind that Guinn and Kirincic were the motivating forces and only complaining witnesses in a pair of criminal prosecutions against two men who ultimately were acquitted of (unsuccessfully) attempting to obstruct an arrest. See Cervantes v. Jones, 188 F.3d 805, 809-10 (7th Cir. 1999) (discussing importance of police officer's role as a complaining witness), cert. denied, 120 S.Ct. 1159 (2000). There is a sufficient basis for proceeding with the Section 1983 claim of malicious prosecution against Guinn and Kirincic. A host of cases from this district, all decided after Washington, supports this conclusion. See Starling v. Cronin, 2000 WL 1036301, *6 (N.D. Ill. July 21, 2000); Cook v. Dedore, 1999 WL 259955, *2-3 (N.D. Ill. Apr. 7, 1999); Womack v. Aguirre, 1998 WL 249228, *2 (N.D. Ill. May 11, 1998);Treece v. City of Naperville, 1998 WL 142391, *4-5 (N.D. Ill. Mar. 25, 1998); Salto v. Mercado, 1998 WL 142397, *1-2 (N.D. Ill. Mar. 24, 1998);DelValle v. Rodriguez, 1997 WL 695710, *6 (N.D. Ill. Oct. 31, 1997); cf.Williams, 217 F.3d 532 (holding that "misconduct following arrest can give rise to a malicious prosecution claim against police officers that is distinct from an unlawful arrest" claim, but that no such misconduct existed in that case). Therefore, Count II survives.
Defendants also argue that McNamara and Ostrowaki have not been deprived of any liberty Interest. See Spiegel v. Rabinovitz, 121 F.3d 251, 256 (7th Cir.), cert. denied, 522 U.S. 998 (1997). While the fog in our circuit has not lifted to reveal the precise contours of what constitutes a liberty interest in the context of a federal malicious prosecution claim, we are confident that the criminal prosecutions of McNamara and Ostrowski implicate a liberty interest sufficient to support their Section 1983 claim. See Cook v. Dedore, 1999 WL 259955, *2-3 (N.D. Ill. Apr. 7, 1999); Treece v. City of Naperville, 1998 WL 142391, *4-5 (N.D. Ill. Mar. 25, 1998).
Third, defendants assert that their conduct does not amount to an intentional infliction of emotional distress and therefore Count IV should be rejected. In order to sustain that cause of action under Illinois law, a plaintiff must establish that 1) the conduct at issue was extreme and outrageous, 2) the defendants either knew or were substantially certain that their conduct would cause severe emotional distress, and 3) the conduct in fact caused severe emotional distress. See Doe v. Calgmet City, 641 N.E.2d 498, 506 (Ill. 1994). Illinois courts have read this intentional tort narrowly and thus made the task difficult for plaintiffs. With regard to the first element, liability has been found "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency."Public Finance Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976). Moreover, as to the third prong, an action may lie "only where the distress inflicted is so severe that no reasonable man could be expected to endure it." Id.; see McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988).
Since the defendants here are police officers and questions of fact remain as to whether they reasonably believed that they were pursuing a legitimate objective in prosecuting McNamara and Ostrowski, we cannot hold as a matter of law that defendants' conduct was not extreme or outrageous. See Doe, 641 N.E.2d 506-508; McGrath, 533 N.E.2d 809-11; see also Treece, 1998 WL 142391, *13. Turning to the third element of the test, we find that Ostrowski has not suffered enough to meet its stringent standard. Ostrowski claims that the arrest and prosecution humiliated him and injured his pride (Ostrowski dep., p. 6). He also asserts that, because of the incident, he now frequently argues with his family and occasionally receives embarrassing questions from his grandchildren (id. at 6-11). These injuries fall short of the mark. See Public Finance, 360 N.E.2d 767 ("fright, horror, grief, shame, humiliation, worry, etc. . . . are not actionable"); Adams v. Sussman Hertzberg, Ltd., 684 N.E.2d 935, 941-42 (Ill.App. 1 Dist.) (holding that plaintiff's "shame, humiliation" and fear about "what his colleagues, friends and loved ones would think" are not actionable), appeal denied, 689 N.E.2d 1137 (Ill. 1997). Furthermore, Ostrowski has not required any medical care, psychiatric counseling, or other therapy as a result of the incident (Ostrowski dep., pp. 8-9, 12). Although it is not a dispositive factor, the lack of any medical or psychological treatment suggests that the emotional distress suffered by Ostrowski is not severe enough to support his claim. See Bristow v. Drake Street Inc., 41 F.3d 345, 349-50 (7th Cir. 1994); Neal v. Children's Habilitation Center, 1998 WL 673592, *2 (N.D. Ill. Sep. 14, 1998); Adams, 684 N.E.2d 942; Knysak v. Shelter Life Ins. Co., 652 N.E.2d 832, 840 (Ill.App. 5 Dist. 1995). In short, Ostrowski's injuries are not sufficiently egregious enough to constitute severe emotional distress.
With respect to McNamara, many of his injuries are similar to those endured by Ostrowski. McNamara claims that he has endured humiliation, injured pride, shame, fear of the police, sleeplessness, and nightmares (McNamara dep., pp. 13-19). Illinois law does not recognize these maladies as actionable manifestations of emotional distress. See Public Finance, 360 N.E.2d 767; Adams, 684 N.E.2d 941-42; Mucklow v. John Marshall Law School, 531 N.E.2d 941, 947 (Ill.App. 1 Dist. 1988). In other ways, however, McNamara has fared worse than Ostrowski. Most significantly, McNamara fainted upon conclusion of his criminal trial and subsequently was hospitalized for two days (McNamara dep., p. 11). McNamara also testified that he vomited several times after being released from arrest on May 6, 1998 ( id. at 14). When read in light of the Illinois courts' opinions on the subject, it becomes apparent that these physical episodes of emotional distress tip the scales in McNamara's favor such that at the summary judgment stage there is sufficient evidence of severe emotional distress to proceed. See Doe, 641 N.E.2d 508; McGrath, 533 N.E.2d 808, 812; see also Pavilon v. Kaferly, 561 N.E.2d 1245, 1252 (Ill.App. 1 Dist. 1990); Van Duyn v. Smith, 527 N.E.2d 1005, 1011-112 (Ill.App. 3 Dist. 1988).
We do not mean to minimize the significance of the alleged injuries suffered by McNamara and Ostrowski. They understandably are very real to both men and maybe raised in the context of their other counts. But while McNamara's injuries are severe enough to sustain a cause of action for intentional infliction of emotional distress under Illinois law, Ostrowski's are not.
CONCLUSION
With respect to Podkulski's complaint, we dismiss Wendt from the lawsuit and dismiss the Village from Count II, but we deny the other elements of defendants' motion for partial summary judgment. As for the lawsuit filed by McNamara and Ostrowski, we dismiss Wendt from all counts and grant summary judgment in defendants' favor on Count IV with respect to Ostrowski, but otherwise deny defendants' motion.