IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAAIYAH MANNING, )

)

) Civil ActionNo. 12 CY 464

)

) Hon. Charles R. Norgle

)

Plaintiff,

JOHN SWEITZER, Park Forest Police )

Detective, et a1., )

)

)

OPINION AND ORDER

Defendants.

CHARLES R. NORGLE, District Judge

Before the Court is Defendant John Sweitzer ("Sweitzer"), Park Forest Police Detective,

Michael Baugh ("Baugh"), Park Forest Police Detective Corporal, Peter Green ("Green"), Park

Forest Police Detective Commander, Thomas Fleming ("Fleming"), former Park Forest Police

Department Chief of Police, and the Village of Park Forest's (collectively "Defendants") motion

for summary judgment on Count I of pro se Plaintiff Daaiyah Manning's Amended Complaintthe only remaining claim in this lawsuit-alleging unreasonable search and seizure mder 42

U.S.C. $ 1983 in violation of the Fourth Amendment. For the following reasons, summary

judgment is granted in favor of Defendants.

I. BACKGROUND

A. Local Rule 56.1

The Court has broad discretion "to require strict compliance with its local rules

governing summary judgment." Modrowski v. Pigatto , 7l2 F .3d 1166, 1169 (7th Cir. 201 3)

(internal quotation marks and citation omitted). Pursuant to Local Rule 56.1, a litigant opposing

a motion for summary judgment must serve and file the following:
(l) any opposing affidavits and other materials referred to in Fed. R. Civ. P. 56(e);

(2) a supporting memorandum of law; and (3) a concise response to the movant's

statement that shall contain. . . a response to each numbered paragraph in the

moving party's statement, including, in the case of any disagreement, specific

references to the affidavits, parts of the record, and other supporting materials

reliedupon....

N"D. I11. LR 56.1(b). These rules are designed to conserve judicial time and resources. See

Bordelon v. Chi. Sch. Reform Bd. of Trs. ,233 F .3d 524, 527 (7th Cir. 2000) ("These rules assist

the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely

how each side proposed to prove a disputed fact with admissible evidence." (internal quotation

marks and citation omitted)). Additionally, "Local Rule 56.1's enforcement provision provides

that when a responding party's statement fails to controvert the facts as set forth in the moving

party's statement in the manner dictated by the rule, those facts shall be deemed admitted for

purposes of the motion." Smith v. Lamz,32l F.3d 680, 683 (7th Cir. 2003) (citing N.D. Itl. LR

56.1.(bX3XC). It is well established that pro se litigants are required to comply with procedural

rules. See. e.s., Pearle Vision. Inc. v. Romm, 541 F.3d 751,758 (7th Cir. 2008) (citing McNeil

v. United States, 508 U.S. 106, 113 (1993).

Defendants filed their motion for summary judgment on January 17,2}l4,which

included Local Rule 56.2 notice to Manning, proceeding pro se, of the consequences of failing to

comply fully with the requirements of this rule. Nevertheless, Manning submits a response to

Defendants' Local Rule 56.1(a)(3) Statement of Material Facts without an accompanying

memorandum of law, or any evidentiary support in opposition. Although Manning admits the

majority of Defendants' statement of material facts as true, she fails to comply with Local Rule

56.1 with regard to the facts she asserts are genuinely disputed.
For example, Manning denies several of Defendants' statement of material facts without

citation to any evidence to justify her opposition. See Resp. to Defs. Mot. for Summ. J. fl 35, 55-

59,62-65. 'oAn answer that does not deny the allegations in the numbered paragraph with

citations to supporting evidence in the record constitutes an admission." Jupiter Aluminum

Corp. v. Home Ins. Co. ,225 F.3d 868, 871 (7th Cir. 2000) (internal quotation marks and citation

omitted). In addition, Manning simply fails to answer many of Defendants' statement of

material facts; instead, she claims, inter alia, that she "can neither admit or deny" the statements,

and otherwise concludes that Defendants' statement of material facts are immaterial or could be

disputed. See" e.g., Resp. to Defs. Mot. for Summ. J.tTfl l8-20. Further, Manning's responses

are improper to the extent that they include additional facts. See Cichon v. Exelon Generation

Co., 401 F.3d 803, 809 (7th Cir. 2005) ("Local Rule 56.1 requires specffically that alitigant

seeking to oppose a motion for summary judgment file a response that contains a separate

ostatement 

. . . of any additional facts that require the denial of summary judgment."' (quoting

N.D. ru. LR 56.1(b)(3)(C) (additional citations omitted)). All material facts submitted by

Defendants which are not properly contested or controverted by Manning are deemed admitted.

See Menasha Corp. v. News Am. Mktg. In-Store" Inc., 238 F.Supp.2d 1024,1029 (I.{.D. Ill.

2003) ("[T]he Court will disregard all argumentative, conclusory, unsupported or otherwise nonconforming portions of Menasha's 'Statement of Material Facts under L.R. 56.1."').
B. Factst

On April 21,2010, following a custody hearing in the Superior Court of Arizona,

Maricopa County, the court granted Raushanah Najeeullah ("Raushanah") and Emiliano Peraza

("Emiliano") joint custody of their five-year-old son, Peraza. The court designated Emiliano as

the primary residential parent in Tampa, Florida. By the terms of the court order,Perazawas to

remain in Raushanah's care until May 15,2010 at which time he would fly to Florida to be with

his father for three weeks. On May 14,2010, Manning flew from Illinois to Arizona, at her

daughter, Raushanah's request. The following day, Manning retumed to Park Forest, Illinois

with her grandson, Peraza.

On May 18, 2010, Emiliano sought and received an order in the Superior Court of

Arizona, Maricopa County, granting him sole custody of Peraza. This order authorized Emiliano

to enlist the services of local, state and federal law enforcement to locate Peraza and secure his

safe return.

On May 25,2010, Emiliano contacted the Park Forest Police Department because he

knew that Manning was a resident of the Village of Park Forest, Illinois. The same day, Park

Forest Police Officer Obremski went to Manning's residence, 432 Illinois Street, Park Forest,

Illinois, to investigate the matter, at which time she denied having her grandson. On May 27,

2010, Sweitzer learned that Manning's grandson was listed in the National Crime Information

Center ('NCIC"), an electronic clearinghouse of crime data, which includes files on missing

persons. The NCIC alert for the missing child listed Manning's home address as a possible

1 The Court takes the undisputed facts from Defendants' Local Rule 56.1(a)(3) Statement of

Material Facts and supporting evidentiary materials. Although the Court "need consider only the cited

materials," it"may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).
location. The NCIC alert also listed a beige Nissan with Illinois registrationHlTg}gg, registered

to Manning.

On May 27,2010, Sweitzer went to 432 Illinois Street to talk with Manning, but there

was no answer at the door. Sweitzer spoke to Manning's neighbor, Edison Albury ("Albury"),

who lived at 434Illinois Street. Sweitzer showed Albury a picture of Peraza as depicted on the

Missing and Exploited Children poster. Albury positively identified the child. Albury said that

he remembered seeing Peraza in Manning's backyard on May 19,2010 or May 20, 2010. The

same day, Sweitzer called Manning's cell phone and spoke to a woman who identified herself as

Manning. She denied having the missing child.

On June 2,2010, Manning allowed Sweitzer and another Park Forest Officer to search

her home. However, the search revealed no evidence of the missing child.

Meanwhile, Manning contacted Reverend Oscar Tillman ("Tillman"), a board member of

the NAACP in Arizona, and told him that she hadPeraza. Tillman notified the Chandler Police

in Arizona" Manning was indicted for conspiracy to commit custodial interference in Maricopa

County, Arizona. On July 16,2010, a fugitive felony warrant for her arrest was issued. On July

21,2010, Sweitzer received a fax copy of the arrest warrant, and called Manning, who agreed to

meet with him. Manning, however, failed to appear. When Sweitzer called Manning's cell

phone, Manning said that she knew her daughter had been arrested in Arizona and that she was

not willing to surrender.

On July 29,2010, Sweitzer learned that Manning had completed an application to rent an

apartment at7500 South Shore Drive, Chicago, Illinois. The apartment manager, James Bird

("Bird") informed Park Forest Police that Manning had been accompanied by a small boy, and

had appeared nervous while she finished the application paperwork. Bird reported that he had

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performed an internet search which turned up news that Manning was being sought for custodial

interference, and that the missing child, as depicted on the'oE-News Park Forest" post, was with

her when she completed the apartment application forms.

Bird asked Manning to return to 7500 South Shore Drive on July 29,2010 to pick up the

keys to the apartment. On JuJy 29,2010, Sweitzer and other Park Forest Police officers were

onsite at7500 South Shore Drive to conduct surveillance, take Manning into custody pursuant to

the arrest warrant, and recover the missing child. At approximately 3:45 p.m., Sweitzer observed

Manning exit from a blue Mazdawith Ohio plates (a rental car), and walk approximately a block

towards 7500 South Shore Drive. Sweitzer arrested Manning as she was about to enter the

apartment building. Sweitzer asked Manning where her missing grandson was, and she denied

knowledge of his location.

After Manning was secured, Sweitzer took Manning's car keys, returned to the car, and

searched it in an attempt to locate the missing child or evidence of his whereabouts-Manning

had toys, shoes, and toiletries in the rental car. Sweitzer seized a computer and flash drives from

Manning's rental car. Sweitzer also seized her cell phone. Manning alleges that Sweitzer

accessed her cell phone address book and contacted various individuals contained therein.

Baugh, Green, and Fleming were not present at the scene of the arrest. Nor did they

participate or supervise the searches and seizures.

Manning was transported to the Park Forest Police station where she was placed in a

holding cell. On July 31, 2010, Manning's lawyer, Irwin Frazin, brought the missing child to the

Park Forest Police station. On August 2,2010, Manning was transferred to the custody of the

Cook County Sheriff s Department. She was subsequently extradited to Arizorra on the custodial

interference warrant. On October 14,2010, Manning pleaded guilty to conspiracy to commit

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custodial interference. Manning was never charged or convicted of committing any crime in the

State of Illinois.

C" Procedural History

On January 20,2012, Manning filed a twelve-count complaint against Defendants,

alleging unreasonable search and seizure of her vehicle, denial of the right to counsel, cruel and

unusual punishment, conspiracy under 42 U.S.C. $ 1985, failure to train, unlawful detention, as

well as several pendent state-law claims. On July 2,2012, the Court granted in part and denied

in part Defendants' motion to dismiss Manning's complaint. Manning v. Sweitzer, 891 F.

Supp.2d 96I,964 (N.D. Ill.2012). The Court denied Defendants' motion to dismiss Manning's

claims for unreasonable search and seizure, denial of the right to counsel, and indemnification.

Id. The remainder of the complaint was dismissed. Id. On September 2l,20l2,the Court

granted Manning leave to file an amended complaint on or before October 19,2012. Manning

availed herself of this opportunity, and filed a three-count complaint, alleging $ 19S3 claims for

unreasonable search and seizure in violation of the Fourth Amendment (Count I) and denial of

her right to counsel in violation of the Sixth Amendment (Count II), and intentional infliction of

emotional distress under Illinois state law (Count III). On lune26,20l3,the Court granted in

part and denied in part Defendants' motion to dismiss Manning's amended complaint; Counts II

and III were dismissed. Mannine v. Sweitzer, No. 12 C 464,2013 WL 3293544, at *3 Qrl.D. Ill.

June,26,2013). Count I is the only remaining claim in this case. In her prayer for relief,

Manning seeks, inter alia, damages, punitive damages, an injunction from further retaliation, and

a declaration that Defendants' conduct and practices were unlawful. Defendants now move for

summary judgment on Count I. The motion is fully briefed and before the Court.
II. DISCUSSION

A. Standard of Decision

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." Fed. R. Civ. P.

56(a); see also Ault v. Speicher, 634 F .3d 942,945 (7th Cir. 20ll). o'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."' Kvapil v. Chippewa Countv. Wis.,752F.3d708,712 (7th Cir. 2014)

(quoting Anderson v. Liberty Lobby. Inc. , 477 U.S. 242,248 (1986)). o'In determining summary

judgment motions, 'facts must be viewed in the light most favorable to the nonmoving party only

if there is a "genuine" dispute as to those facts."' Id. (quoting Scott v. Harris, 550 U.S. 372,380

(2007)). Put differently, before the nonmoving party'ocan benefit from a favorable view of

evidence, he must first actually place evidence before the courts." Montgomery v. Am. Airlines.

lnc., 626 F .3d 382,389 (7th Cir. 2010). "[I]n a $ 1983 claim, the plaintiff bears the burden of

proof on the constitutional deprivation that underlies the claim, and thus must come forward with

sufficient evidence to create genuine issues of material fact to avoid summary judgment." Ault,

634 F.3d at945 (internal quotation marks and citation omitted).

B. Count I: Search and Seizure

Manning claims that Sweitzer violated the Fourth Amendment when he searched her

rental car, and searched and seized her electronic devices without a warrant. The Fourth

Amendment provides:

The right ofthe people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.
U"S" CoNsr. amend. IV. "[T]he ultimate touchstone of the Fourth Amendment is

reasonableness." Rile), v. California, 134 S. Ct.2473,2482 (2014) (internal quotation marks and

citation omitted). 'oln the absence of a warrant, a search is reasonable only if it falls within a

specific exception to the warrant requirement." ]4 (citing Kentucky v. Kine, 131 S. Ct. 1849,

1856-1857 (2011). A search incident to a lawful arrest is one such exception. Arizona v. Gant,

556 U.S. 332,338 (2009) (citing Weeks v. United States,232U.5.383,392 (1914). Underthis

exception, "an automobile search incident to a recent occupant's arrest is constitutional (l) if the

a:restee is within reaching distance of the vehicle during the search, or (2) if the police have

reason to believe that the vehicle contains 'evidence relevant to the crime of arrest."' Davis v.

United States, 131 S. Ct.2419,2425 (2011) (quoting Gant, 556 U.S. at343).

Here, Sweitzer arrested Manning pursuant to a fugitive felony warrant for custodial

interference in the State of Arizona, Maricopa County, with nationwide extradition. "A custodial

arrest exacts an obvious toll on an individual's liberty and privacy. . . . The arrestee is subject to

a full search of her person and confiscation of her possessions." Atwater v. City of Lago Vista,

532 U.S. 318,364 (2001) (O'Connor, J., dissenting) (citing United States v. Robinson,4l4 U.S.

218 (1973)). Moreover, in executing the arrest warrant, Sweitzer had reason to believe that the

rental car he searched would contain evidence relevant to the crime of arrest. Based upon his

investigation of the matter, Sweitzer knew that the missing child, Peraza, had been seen with

Manning when she completed the rental application for the 7500 South Shore Drive apartment,

andPerazahad been seen in the backyard of her residence, 432 Illinois Street, Park Forest,

Illinois. The missing child was not with Manning at the time of her arrest for custodial

interference; therefore, there was a reasonable basis to believe that the rental car contained
relevant evidence of Peraza's whereabouts. Accordingly, Sweitzer's search of Manning's rental

car incident to her arrest was reasonable under the Fourth Amendment.

However, with respect to the alleged search of Manning's electronic devices, including

her cell phone, the Supreme Court has recently held that police officers must generally secure a

warrant before searching digital data on a cell phone-even where, as here, electronic devices

are seized incident to a lawful arrest. Riley, 134 S. Ct. at 2493. In declining to extend the search

incident to arrest exception to digital data on cell phones, the Supreme Court found that the

underlying concerns announced in Chimel v. California, 395 U.S. 752 (1969) for the search

incident to arrest doctrine-offrcer safety and evidence preservation-simply do not apply to

digital data. Riley, 134 S. Ct. at 2484-88. Additionally, the Supreme Court determined that

searching digital data is quantitatively and qualitatively different from searching physical

personal property-there are immense privacy concerns "far beyond those implicated by the

search of a cigarette pack, a wallet, or a purse." Id. at 2488-89. The Supreme Court observed

that modern cell phones are "in fact minicomputers that also happen to have the capacity to be

used as a telephone." I4 at2489.

This is not to say, however, that digital data contained on computers, flash drives, or cell

phones is immune from search; other case-specific exceptions may justify a warrantless search of

such digital data. See id. at2493-94. For example, the exigent circumstances exception'oapplies

when the exigencies of the situation make the needs of law enforcement so compelling that a

warrantless search is objectively reasonable under the Fourth Amendment." Id. at2494 (internal

quotation marks and citation omitted). Such an emergency includes "fact-specific threats" such

as "a child abductor who may have information about the child's location on [her] cell phone."

Id. The exigent circumstances exception could have justified Sweitzer's search of Manning's

l0
electronic devices, but Defendants fail to make an exigent circumstances argument. Instead,

Defendants argue that Sweitzer's search of Manning's electronic devices was supported by

probable cause; and, that Sweitzer is otherwise entitled to qualified immunity.

"Qualified immunity oprotects government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known."' Gibbs v. Lomas,755 F.3d 529, 536 (7th Cir.

2014) (quoting Pearson v. Callahan, 555 U.S. 223,231 (2009). In determining whether

Sweitzer is entitled to qualified immunity, the Court applies a two-prong test: "(1) whether the

facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional

right, and (2) whether that constitutional right was clearly established at the time of the alleged

violation." Id. (internal quotation marks and citation omitted). If either prong is answered in the

negative, the defendant official is entitled to summary judgment. Id. The Court, in its discretion,

may determine the order of the qualified immunity analysis. Id. (citing Pearson, 555 U.S. at236).

In this instance, the Court begins its inquiry with the second prong. "An officer

conducting a search is entitled to qualif,red immunity where clearly established law does not

show that the search violated the Fourth Amendment." Pearson, 555 U.S. at243-44 (citing

Anderson v. Creighton, 483 U.S. 635,641 (1987). "This inquiry turns on the objective legal

reasonableness of the action, assessed in light of the legal rules that were clearly established at

the time it was taken." Id. (internal quotation marks and citations omitted). "To be clearly

established at the time of the challenged conduct, the right's contours must be 'sufficiently clear

that every reasonable official would have understood that what he is doing violates that right,'

and 'existing precedent must have placed the statutory or constitutional question beyond

ll
debate""' Rabin v. Flynn ,725 F .3d 628, 632 (7th Cir. 2013) (quoting Humphries v. Milwaukee

Cnty., 702F.3d 1003, 1006 (7th Cir.2012)).

In July of 2010, the legal contours of the Fourth Amendment as it pertains to the search

ofcell phones or other electronic devices in general public use that are seized incident to arrest

was yet unclear. Riley was decided on June 25,2014-nearly four years after the events at issue

took place. Indeed, there is only one decision in the Seventh Circuit addressing the search

incident to arrest doctrine in the context of such technology, United States v. Flores-Lopez, 670

F.3d 803 (7th Cir. 2012). There, the Seventh Circuit held that the warrantless search of a cell

phone for its phone number (and the seizure of that information) did not infringe the Fourth

Amendment. Id. at 810. The Seventh Circuit opined:

It's not even clear that we need a rule of law specific to cell phones or other

computers. If police are entitled to open a pocket diary to copy the owner's

address, they should be entitled to turn on a cell phone to leam its number. If

allowed to leaf through a pocket address book, as they are, United States v.

Rodriguez, 995 F .2d 77 6, 778 (7th Cir. 1 993), they should be entitled to read the

address book in a cell phone.

Id. at 807. But even this decision post-dated Sweitzer's alleged search of Manning's cell phone

and other electronic devices.

At the time of the alleged violation, the Seventh Circuit had held that based upon the

need to preserve evidence, the search of a pager did not violate the Fourth Amendment because

the activation of the pager and retrieval of its contents-telephone numbers-was incident to

arrest. United States v. Ortiz, 84 F.3d 977,984 (7th Cir. 1996). Sweitzer was entitled to rely on

this case-despite technological advances-without facing damages liability for his actions. In

July of 2010, it would not have been clear to a reasonable police officer that a warrantless search

of cell phones or other electronic devices seized incident to arrest would generally violate the

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Fourth Amendment. Because Manning's Fourth Amendment right was not clearly established,

Sweitzer is entitled to qualified immunity on Manning's claim for monetary damages. Although

Manning's amended complaint also seeks to "enjoin Defendants from further retaliating against

Plaintiff'and asks the Court "[t]o declare the conduct and practices unlawful," Am. Compl. at

7l-I2, Manning fails to establish a well-founded fear of being subjected to an allegedly unlawful

search and seizure ofher cell phone or electronic devices again; thus, there is no live controversy

between the parties under Article III of the Constitution to merit prospective relief. See O'Shea

v" Littleton, 414 U.S. 488,493-96 (1974) ("Past exposure to illegal conduct does not in itself

show a present case or controversy regarding injunctive relief, however, if unaccompanied by

any continuing, present adverse effects."); see also Atkins v. City of Chi., 631 F.3d 823, 838 (7th

Cir.2011) (Hamilton, J., concurring) ("To obtain prospective relief, even someone who has

experienced such treatment by mistake might well need to show that he has an objectively

reasonable fear of being subjected to it again, which I expect would be difficult." (citing Los

Angeles v. Lyons,461 U.S. 95 (1983)).

Because Sweitzer's search of Manning's rental car was reasonable under the Fourth

Amendment, and because Sweitzer is entitled to qualified immunity for searching Manning's

electronic devices and seizing the digital data contained therein, summary judgment is

appropriate. The Court, therefore, need not reach Defendants' remaining arguments.

Finally, to the extent that Manning seeks to impose liability on Sweitzer's supervisors,

Baugh, Green, and Fleming, her claims are without merit. "[T]o be liable under $ 1983, the

individual defendant must have 'caused or participated in a constitutional deprivation."' Pepper

v. Vill. of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (internal quotation marks and citation

omitted). Baugh, Green, and Fleming were not present when Manning was arrested, and had no

13
personal involvement in the alleged underlying searches and seizures incident to arrest.

Accordingly, Baugh, Green, and Fleming are also entitled to summary judgment.

III. CONCLUSION

For the foregoing reasons, Defendants' motion is granted. Summary judgment is entered

in favor of Defendants and against Manning on Count I.

IT IS SO ORDERED.

DATE: September 18, 2014

CHARLES RONALD NQR.GL.{ Judge

United States District Court

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