Wilbon v. Plovanich

67 F.Supp.3d 927

David D. Wilbon, Rico M. Wilbon, and George J. Smith, Plaintiffs

v.Joseph M. Plovanich, et al., Defendants.

No. 12 CV 1132

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

Signed September 9, 2014

Irene K. Dymkar, Chicago, IL, for Plaintiffs.

Dana Marie Pesha, Kristin M. Pinkston, Mark David Winistorfer, Lindsey M. Vanorny, City of Chicago, Department of Law, George John Yamin, Jr., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, 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.

BACKGROUND

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.)¹ 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.²

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.³ 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.)⁴ 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 approximately 1:00 or 2:00 a.m., he was on his way to volunteer at a Chicago fire station located at 1747 North Pulaski, where Plaintiffs state he was not expected, when he drove through the 1300 block of N. Menard so as to avoid interfering with several squad cars. (Defs.' SOF ¶ 99; Pls.' SOF ¶ 38.) While on N. Menard, he observed people throwing objects, one of whom was an African American male with dreadlocks. (Defs.' SOF ¶ 100.) According to Thornton, he then called 911 and informed them that: 1) a female police officer had been hit on the head with a bottle; 2) the individual who threw the bottle was African American and had dreadlocks; 3) the individual was running south while talking on a cellular phone; and 4) the individual got into an SUV, which pulled away from the scene. (Pls.' SOF ¶ 50; Defs.' SOF ¶¶ 100–02.) Thornton then followed the SUV, while communicating the details of the route and the SUV's license plate, until both vehicles arrived at the 15th district station. (Defs.' SOF ¶¶ 103–04.)

The 911 recordings provided, however, by the City of Chicago Office of Emergency Management and Communications through Defendants for the 15th and 25th districts for April 9–10, 2010 contain no 911 call from Thornton or from anyone claiming he saw a man with dreadlocks throw a bottle at a female police officer and/or who was following a dark-colored SUV. (Pls.' SOF ¶ 51.)

After parking his vehicle, Thornton entered the station and spoke with a Caucasian female lieutenant for about 1–1/2 minutes, telling her what he observed on the 1300 block of N. Menard and how he followed the SUV to the 15th district station. (Defs.' SOF ¶ 105; Pls.' SOF ¶ 54.) In the presence of the lieutenant and potentially other officers, he then identified an individual with dreadlocks standing outside the station as the individual whom he saw throw the bottle that struck an officer on the 1300 block. (Defs.' SOF ¶ 106.) According to Defendants, two officers then took Thornton to their vehicle and drove him past the individuals standing near the SUV, and Thornton identified the same individual, David, as the one who threw a bottle at the officer on the 1300 block. (Id. ¶ 107.) Thornton observed the officers relay his identification to other officers and then returned to the station where he spoke with other officers about his identification. (Id. ¶ 108–09.)

3. Defendant Lt. Sarah McDermott

That evening, Lt. Sarah McDermott was acting watch commander for the 15th district. (Id. ¶ 40.) While at the 15th district station, McDermott heard over police radio communication reports of objects being thrown at police officers on the 1300 block of N. Menard as well as an emergency request to assist officers, known as a “10–1,” which was immediately cancelled. (Id. ¶ 41.) She also heard over police radio communication that a citizen called 911 and reported that he was following a vehicle whose occupants were involved in the events that took place on the 1300 block. (Id. ¶ 42.) Her understanding was that the witness and the vehicle he was following were near the front of the...