complained that someone matching Graham’s description was videotaping women in a public
parking lot after dark. Indeed, Graham did in fact alarm at least one citizen—the woman who called
the police to report his suspicious activity. See, e.g., People v. Hinton, 360 N.E. 2d 451, 453 (Il.
App. Ct. 1977) (call to police that person was peering into apartment windows showed that suspect
had in fact “disturbed and alarmed” the residents), Similarly, Illinois courts have held that
unwelcome and offensive sexual remarks can support a disorderly conduct charge. See People v.
Allen, 680 N.E.2d 795, 800 (Ill. App. Ct. 1997); see also People v. Bailey, 657 N.E. 2d 954 (ill.
1995) (comparing stalking to disorderly conduct); People v. Nakajima, 691 N.E. 2d 153 (Ill. App.
Ct. 1998) (prior to arrest for stalking, police informed man who harassed and frightened a woman
in Best Buy parking lot had committed disorderly conduct based on woman’s complaint), People
v. Bergeson, 627 N.E.2d 408,409 (Ill. App. Ct. 1994) (knowingly looking in a woman’s window so
as to disturb or alarm and provoke a breach of peace sufficient to charge suspect with disorderly
conduct under 720 ILCS 5/26(a)(1)); In Interest of P.S., 498 N.E.2d 325,327 (Ill. App. Ct. 1986)
(defendant committed offense of disorderly conduct by exposing himself in car wash so as to alarm
others and provoke a breach of the peace).

Taken in the light most favorable to Graham, the undisputed facts show that: (1) Officers
Fragassi and Nallen received a call that a African American male in a Grainger truck was video
taping women’s breasts at a Target store in Niles; (2) it was past sunset;? (3) Officers Fragassi and
Nallen found Graham sitting in a Grainger truck in the Target store parking lot with a video camera;

(4) Officers Fragassi and Nallen found Graham’s answers to what he was doing to be evasive; (5)

3 According to the United States Navel observatory, sunset occurred at 6:13 in Niles,
Illinois, on Friday, March 29, 2002. http://aa.usno.navy.mil/data/docs/RS_OneYear.html.

13


are merely varying interpretations of the facts, and thus except as discussed below the Defendants’
motion is denied.

At the same time, some of Defendants’ objections are valid. For example, Defendant argues
that Plaintiff fails to properly refute Defendants’ statement in Paragraph A-12, concerning
photographs found in a gym bag in Graham’s truck. Plaintiff denies the statement (though
misnumbers it as paragraph A-11 because Defendants failed to include a Paragraph numbered A-8),
citing to page fifteen of his deposition. Plaintiff, however, failed to include page fifteen of his
deposition. In response to Paragraph A-12, Plaintiff also directs the Court to the deposition of
Wesley Gibson, who states that the police told him they found videotapes in the gym bag— but that
does not refute the Defendants’ statement that they found photographs in the gym bag. Similarly,
in Paragraphs A-16 and B-12, Defendants state that Officers Fragassi and Nallen never removed the
videotape from Plaintiff's camera. Plaintiff's response—that Officer Fragassi picked up the camera,
walked away, and eventually placed it in Officer Nallen’s squad car and that the videotape was not
in the camera when he looked for it one week later—does not refute the Defendants’ statement. The
Court strikes Paragraphs A-1, A-11, A-15, B-2, B-9, and B-12 of Plaintiff’s Rule 56.1(b)(3)(A)
response to Defendants’ statement of facts, and thus paragraphs A-1, A-12, A-16, B-2, B-9, and B-12
of Defendants’ statement are admitted.

II. Factual Background

Rodger Graham patrolled multiple W.W. Grainger, Inc., worksites in Niles, Illinois, as an
Initial Security guard, (Defs.’ L.R. 56.1(a) Statement of Material Facts (Defs.’ Statement) {| C-1;
Pl.’s L.R. 56.1(b) Response to Defs.’ Statement of Material Facts (P1.’s Response)  C-1). On the

evening of March 29, 2002, Graham worked a shift from 3:00 p.m. to 11:00 p.m., during which he



Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001); Beauchamp v. City
of Noblesville, 320 F.3d 733, 743-44 (7th Cir. 2003). If a constitutional right is violated, then the
Court must determine if that right was clearly established at the time of the alleged violation.
Saucier, 533 U.S. at 201; Finsel v. Cruppenink, 326 F.3d 903, 906 (7th Cir.2003). The relevant
inquiry in determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation that the officer confronted. Saucier,
533 US. at 202; Payne v, Pauley, 337 F.3d 767, 776 (7th Cir. 2003).

The actual existence of probable cause to arrest precludes a § 1983 suit for false arrest.
Ochana v. Flores, 347 F.3d 266, 271 (7th Cir. 2003); Biddle v. Martin, 992 F.2d 673, 676 (7th Cir.
1993); Juriss v. McGowan, 957 F.2d 345, 349 n. 1 (7th Cir. 1992), A person arrested with probable
cause can not cry false arrest, and thus can not establish that he has suffered a constitutional
violation. See Juriss, 957 F.2d at 349 n. 1 (citing Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct.
2689, 2692-93, 61 L .Ed. 2d 433 (1979)). Accordingly, the Court turns first to Graham’s claim that
Officers Fragassi and Nallen lacked probable cause to arrest him and therefore violated his Fourth
Amendment rights. In order to have probable cause for an arrest, the officers must reasonably have
believed, in light of the facts and circumstances within their knowledge at the time of the arrest, that
the suspected had committed or was committing an offense. Payne, 337 F.3d at 767.

The Defendant Officers argue that they had probable cause to arrest Graham for driving under
asuspended license. According to the Defendants, Officer Fragassi asked for and received Graham’s
identification when he first approached Graham’s vehicle and a subsequent investigation revealed

that Graham’s license had been suspended. The Defendants argue that Graham “theorizes that the

officers did not learn of the Plaintiff's suspended driver’s license until ‘just before they left the scene



According to Graham, in the next ten to fifteen minutes, both Officers Fragassi and Nallen
questioned him about his activity with the video camera. (Pl.’s Statement J J 11-12, 21). Graham
contends that the officers told him that it was illegal to videotape people in public. (P1.’s Statement
49). At some point during the conversation between the officers and Graham, Officer Fragassi
retrieved the video camera from the seat of his car and viewed the contents of the tape that was
contained within it. (Pl.’s Statement J 15, Defs.’ Statement {| A-11). Officer Fragassi filed an
affidavit stating that when he viewed the video tape, he saw images of three women going in and out
of the target store, “with the images zooming in on each woman’s torso area, to the chest.” (Defs.’
Statement J A-11). Graham refutes Officer Fragassi’s claim only by stating that he did not take any
footage from the Target parking lot, (Pl.’s Response {] A-10).! But Graham admits that he never
viewed the video tape “to see what was, in fact, on the video tape,” (Defs.’ Statement § C-17; Pl.’s
Response { C-17; Pl.’s Statement App. A (Graham Dep.) at 67). After viewing the tape, Officer
Fragassi then entered the store and spoke to the Target security officer regarding whether Target
would sign a complaint against Graham on behalf of Target customers. (P1.’s St. ¢ 17). The Target
representative declined to sign any complaint against Graham. Jd. When he returned, Officer
Fragassi informed Graham that the video tape contained footage focusing on women’s breasts as they
entered or left the Target. (Pl.’s Statement 18).

Upon conclusion of the conversation about the video tape, Graham states that the officers
placed him, unhandcuffed, in the back seat of Officer Nallen’s squad car. (Pl.’s Statement {[ 21).

While he was in the back of the car, Officer Fragassi informed Graham’s supervisor at Grainger,

' Curiously Defendants did not move to strike this paragraph, which clearly does not
refute the Defendants’ claim regarding what Officer Fragassi saw.

6



drove a red, Dodge, Grainger security truck and patrolled two Grainger worksites in Niles. Jd. At
approximately 8:00 p.m., Graham drove from one worksite to the other, and stopped in the parking
lot of a Target Store on Touhy Avenue in Niles to take a break. (Defs.’ Statement § C-2; Pl.’s
Response §j C-2). Graham occasionally stopped at Target during his “downtime” between
assignments. (Pl.’s L.R. 56.1(b)(3)(B) Statement of Additional Facts (Pl.’s Statement) {| 2).
Graham reported that he did some paperwork, bought a soft drink, and then began experimenting
with his new video camera and its zoom function while sitting in the driver’s seat of his truck parked
near the store entrance. (P1.’s Statement {]4). At approximately 8:12 pm, the Village of Niles Police
Department dispatch alerted its officers that a female caller had complained that an African
American male in a red Grainger truck was videotaping women entering and leaving the Target at
which Graham had parked. (Defs.’ Statement {| A-1). Officer Fragassi responded to the dispatch
and pulled up behind Graham’s truck, using the squad car’s emergency lights. (Defs.’ Statement §
A-2; Pl.’s Response {| A-2). Officer Nallen also responded to the dispatch and arrived shortly after,
(Defs.’ Statement { B-2).

The parties dispute what happened next, but of course, the Court must present the facts in
the light most favorable to Graham, the non-moving party. According to Graham, Officer Fragassi,
without first asking for identification, asked Graham what he was doing. (PI.’s Statement ff 9-11).
When Graham responded that he was not doing anything, Officer Fragassi stated that the officers had
received a complaint about a man videotaping in the target parking lot. Jd. Graham admitted that
he had been sitting in the front seat of his employer’s security truck, experimenting with the
functions of his new video camera in close-proximity to the Target entrance, but insisted that the

camera was not recording. (P1.’s Statement { 10).



disorderly conduct and driving under a suspended license. (P].’s Statement {| 32, Defs.’ Statement
4] B-9 & B-10). At the station, Nallen fingerprinted Graham, took Graham’s phonograph, and
completed paperwork for Graham’s entry into the CRIS system. (PI.’s Statement 33). Graham’s
belongings were with him at all times in the Niles police station and he took his video camera and
belongings with him when he was released. (Defs.’ Statement {j C-28, Pl.’s Resp. {] C-28).

At the Niles police station, Officer Nallen spoke via telephone with a Cook County Assistant
State’s Attorney and was informed that since neither she nor Officer Fragassi had actually witnessed
Graham driving with a suspended license, they should not charge him with that offense. (Defs.’
Statement {] B-9). In addition, Officer Nallen’s supervisor, Commander Halley, instructed her to
drop the disorderly conduct charge because the initial female caller did not leave her name or
contact information. (Defs.’ Statement {| B-10, Pi.’s Response § B-10). Officer Nallen released
Graham without pressing any charges at approximately 11:00pm. (PI.’s Statement { 39). The entire
incident lasted approximately three hours. (Defs.’ Statement {] C-33, Pl.’s Response {/ C-33). One
week after the incident, Graham discovered that the video tape from the camera was missing (Defs.’
Statement {] C-30, Pl.’s Response { C-30).

I. ANALYSIS

Qualified immunity protects government actors performing discretionary functions from
liability so long as they do not violate "clearly established statutory or constitutional rights of which
a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 8. Ct. 2727,
73 L. Ed. 2d 396 (1982). To determine the availability of qualified immunity in a particular case the
Court engages in a two-step inquiry. The initial, threshold question is whether the facts, taken in the

light most favorable to the plaintiff, show that the official's conduct violated a constitutional right.



Form SV
_/

ie United States District Court, Northern District of Illinois

Nome ofhenet ies | William J. Hibbler | Sting dei ser
CASE NUMBER 02 C 4405 DATE 12/15/2003
CASE Graham v. Niles, et. al.
TITLE

[In the following box (a) indicate the party filing the motion, e.., plaintiff, defendant, 3rd party plaintiff, and (U) state briefly the
nature of the motion being presented.)

MOTION:

Defendants’ Motion for Summary Judgment (doc. # 19); Defendants’ Motion to Strike (doc. # 37)

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

2) Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer brief due

(4) Q Ruling/Hearingon____sset for at

(5) Oo Status hearing [held/continued to] [set for/re-set for]on__setfor at.

© ia Pretrial conference [held/continued to] [set for/re-set forlon__—ssetfor__— at.
(7) Qo Trial [set for/re-set for]on___at

(8) OQ — {Bench/Jury trial] [Hearing) held/continuedto___at

(9) Q This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]

OFRCP4(m) General Rule21 OO FRCP41(a)(1) 0 FRCP41(a)(2).

(10) B@ [Other docket entry] . Enter Memorandum Opinion and Order. For the attached reasons, Defendants’ motion to
strike (doc. #37) is granted in part and denied in part. Defendants’ motion for summary judgment (doc. # 19) is
GRANTED in favor of all Defendants on Count I and II, which are dismissed with prejudice. Counts II-VI are dismissed
without prejudice, for lack of jurisdiction. All other pending motions denied as moot.

(11) oo [For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court,

No notices required. number of notices

Notices mailed by judge’s staff.
Notified counsel by telephone. DEG, .1,6,,7003

Y_ | Docketing to mail notices.

Mail AO 450 form. docketiag A dL Db

Copy to judge/magistrate judge. uf AM ISIG Ss:
PY to judge/ magistrate judg Afo9 19lasSI0 sft bee 16 2093
courtroom t a . date mailed notice
me depaty's i HY ST aGcu
inicials
j _ el Das id sng Sept inis

A



presentation of the sequence of events. (P1.’s Statement § 26). Thus, Defendants’ statement that
Graham “overlooks the fact that there is no evidentiary support in the record for this theory,” is
incorrect. (Defs. Reply at 2). Even though Graham’s version of the facts is patently
unbelievable—the suggestion that not one but two officers would fail to check the identification of
a suspect, indeed fail to even perform a protective pat-down, before handcuffing said suspect strains
all reasonable credibility— at this point in the litigation the Court does not engage in questions of
credibility. Payne, 337 F.3d at 770; but see Birch v. Kim, 977 F. Supp. 926, 938 (N.D. Ill. 1997)
(court would entertain motion for Rule 11 sanctions after litigation concluded if plaintiff's claims
were based on false factual assertions). The sequence of events is in dispute, and in resolving this
summary judgment motion, the Court must present those facts in the light most favorable to the
Plaintiff—thus the Court must accept Plaintiff's assertion that his identification was not checked
until after he was handcuffed and placed in the back seat of Officer Nallen’s squad car. It goes
without saying that the police cannot “shoot first and ask questions later.” Similarly, any reasonable
police officer would understand that he could not arrest a citizen for driving under a suspended
license before learning that the citizen’s license was suspended.

But Graham was also arrested for disorderly conduct. Curiously, the Defendants, though they
state that Graham was arrested for both disorderly conduct and driving under a suspended license,
never argue that they had probable cause to arrest Graham for disorderly conduct. Graham, however,
has the burden of demonstrating that the officers lacked probable cause to arrest him. See, e.g.,
Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Doe v.
Heck, 327 F.3d 492, 515 (7th Cir. 2003); Sparing v. Village of Olympia Fields, 266 F.3d 684, 688

(7th Cir. 2001) (“Although qualified immunity is an affirmative defense, the burden of defeating an

il


for the Niles Police Station,” (emphasis in brief) and that Graham offers no evidence of any
disputed fact. The Defendants repeatedly suggests that Graham “had two and a half months, since
the time of filing of the Defendants’ Motion for Summary Judgment, within which time to present
the Court with an opposing affidavit.” (Defs. Reply at 2).? But Graham need not match the
Defendants “‘witness for witness’ or affidavit for affidavit, nor must [he] ‘persuade the court that
[his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that
there is a pending dispute of material fact.’” Payne, 337 F.3d at 771 (quoting Waldridge v. American
Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994)), Graham points to portions of his deposition
testimony where he plainly states that the officers did not check his identification until after he was

handcuffed and placed in the back of Officer Nallen’s squad car—placing in dispute the Officers’

? Defendants go so far as to suggest that Graham “testified at his deposition that he does
not recall whether Officer Fragassi had asked him for his identification and that he does not
remember giving Officer Fragassi his identification.” (Defs. Reply at 2). But Defendants cite to
no portion of the record to support this assertion, nor do any of the facts in their 56.1 statements
identify the relevant portion of Graham’s testimony. “A judge is the impartial umpire of legal
battles, not a plaintiffs' attorney. He is [not] required to hunt down arguments [parties] keep
camouflaged.” Williams v. Eastside Lumberyard and Supply Co., Inc., 190 F. Supp. 2d 1104,
1114 (N.D. IIL. 2001) (citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) ("Judges
are not like pigs, hunting for truffles buried in briefs.")). The Court shall not waste its time
hunting through the record for evidentiary support for a party’s argument where that party has
failed to direct the Court to the appropriate portion of the record. Indeed, throughout their
memoranda supporting their motion for summary judgment, the Defendants do not cite to the
record even once, requiring the Court to match the assertions they make in their memoranda to
their Rule 56.1 statements of fact. The Defendants’ failure to cite to the record in their
memoranda supporting their motion for summary judgment is sloppy, to say the least. See, e.g.,
Allen vy. Bake-Line Products, Inc., 98 C 1119, 2001 WL 1249054, *2 (N.D, Ill. Oct. 17, 2001)
(criticizing party for making the court’s task on summary judgment more difficult for failing to
cite to the record); Hoogwegt U.S., Inc. v. Schenker Int'l, Inc., 121 F. Supp. 2d 1228, 1231 n.1
(N.D. III. 2000) (same); Howse v. Northwestern Memorial Hosp., 98 C 4488, 2000 WL 764952,
*1 (ND. II. Jun. 13, 2000) (same); Fidelity & Deposit Co. of Maryland v. County of Lake, 97 C
6276, 2000 WL 347770, *1 (N.D.IIl. Apr. 3, 2000) (same); Overton v. City of Harvey, 29 F.
Supp. 2d 894, 905 (N.D. Ill. 1998) (refusing to consider facts in brief for which party provided no
cites).

10



Wesley Gibson, that Graham would be arrested and that someone needed to retrieve the Grainger
truck that Graham had been using from the Target parking lot. (P1.’s Statement § 20). Meanwhile,
Officer Fragassi then searched an open gym bag in the front seat of Graham’s truck and discovered
a men’s magazine that contained pictures of naked women. (Defs.’ Statement J A-12). While the
officers waited for Gibson to retrieve the Grainger truck, they removed Graham from the squad car
and, according to Graham, handcuffed him and returned him to the back seat of the squad car
without patting him down to check for weapons or asking for identification. (Pl.’s Statement § 23).
A few minutes later, Officer Nallen decided that the officers should check Graham’s identification
and, without removing him from the squad car, reached into Graham’s hip pocket and took his
wallet. (Pl.’s Statement { 26). Graham testified in his deposition that he was not threatened or
harmed in any way, but that he was “terrified” while in the back of the squad car. (Pl.’s Statement,
App. A (Graham Dep.) at 102).

When Graham’s supervisor, Gibson, arrived, the officers informed him that Graham was
being arrested for videotaping women’s breasts in the Target store’s parking lot. (PI.’s Statement
28). Gibson testified at his deposition that the officers offered to show him the video, but claimed
that the video camera’s battery was dead (P1.’s Statement, App. D (Gibson Dep.) at 16). Gibson also
testified that the officers mentioned they found other video tapes in Graham’s gym bag. Jd. Gibson,
however, does not recall whether the officers told him that Graham was arrested because he was
driving under a suspended license. (PI.’s Statement, App. D (Gibson Dep.) at 48).

Shortly after Gibson retrieved the Grainger truck, Officer Nallen informed Graham that the
officers had run a check on his license and that his license had been suspended. (Pl.’s Statement

4/31). Officer Nallen then transported Graham to the Niles police station in order to charge him with



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 replied upon." L.R. 56.1(b)(3)(A). In addition, the nonmoving party shall file
its own statement of any additional facts that require the denial of summary judgment. L.R.
56.1(b)(3)(B). Defendants move to strike many paragraphs of Graham’s 56.1(b)(3)(A) statement,
arguing that Graham failed to identify the parts of the record that deny, refute or rebut the
Defendants’ statements. Many of Defendants’ objections, however, lack support. For example,
Defendants move to strike Graham’s response to paragraph A-3, in which they assert that Officer
Fragassi asked Graham for identification upon approaching Graham’s truck. Graham denies the
statement and points to several parts of his deposition in which he plainly states that the officers did
not ask for his identification until after he was handcuffed and in the back of a squad car, thus
directly refuting the statement offered by the Defendants. Defendants argue that if Graham “Desired
to refute the fact statement contained in Paragraph A-3, [he] could have readily presented the court
with his opposing affidavit.” But Graham need not present his facts in a form acceptable to the
Defendants. He need only offer evidence of a type admissible at trial, and his deposition testimony
more than suffices. Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir.2001); Fed. R. Civ. P.
56(e). Defendants also suggest that in his deposition Graham testified that he could not recall
whether he gave Fragassi any type of identification and point the Court to pages 112 and 113 of
Graham’s deposition. Despite Defendants’ claim that those pages are “‘attached hereto” their motion
to strike, the record contains neither page 112 nor page 113 of Graham’s deposition—they are not
attached to the motion to strike, they are not appended to any of Defendants’ 56.1 statements, nor

are they included with any of Plaintiff's 56.1 statements. In the end, most of Defendants’ objections



Officer Fragassi viewed the contents of the tape on the video camera and found it to contain images
zooming in on women’s breasts as they entered and left the Target store.* Given that Illinois courts
have found that probable cause to arrest on a disorderly conduct charge exists when a suspect
videotapes in a public place with an illicit sexual purpose, Blair, 748 N.E. 2d 318, and that Illinois
courts have found that probable cause to arrest on a disorderly conduct charge also exists where a
suspect exhibits peeping-tom or stalking behavior, Nakajima, 691 N.E. 2d at 954, Bergeson, 627
N.E.2d at 409, Hinton, 360 N.E. 2d at 453, the Court finds that Graham’s nighttime activity are
more than sufficient to create probable cause for an arrest for disorderly conduct. The police knew
that Graham had frightened at least one woman in the Target parking lot and they knew that he had
been “messing around” with a video camera, exhibiting behavior similar to peeping-toms and
stalkers. It matters not that Graham was never charged or released, for probable cause does not
require the police officers to be certain that a crime was committed. See Biddle v. Martin, 992 F.2d
673, 677 (7th Cir. 1993). Indeed, the prosecutor did not inform Officer Nallen that Graham had not
violated the disorderly conduct statute, but that a conviction would be unlikely without the
complaining witness, who had decided to remain anonymous. Moreover, even if the officers had
been mistaken that Graham’s behavior in the Target parking lot violated the disorderly conduct

statute, that mistake was reasonable—and a reasonable mistake is sufficient to entitle an officer to

‘Graham offers no facts to dispute Officer Fragassi’s testimony—he did not view the tape
with Officer Fragassi and he never viewed the tape after his arrest. Quite simply, Graham does
not know what is on the tape, and he has not produced it as an exhibit. Graham intimates that the
officers might have removed the tape. But he admits that he never saw any of the officers
remove the tape from the camera and admits that the camera was never outside of his presence
except when Officer Fragassi viewed the footage (Pl.’s Response § 28, Pl.’s Statement § 16).
Moreover, he admits that he let the camera sit unattended in a bag in his closet for at least a
week. (PI1.’s Response, § 30). Graham has produced no facts that make it reasonable to infer that
any officer removed the video tape from the camera without his permission.

14


see also Ienco v. City of Chicago, 286 F.3d 994, 998 (7th Cir. 2002). Graham has produced no such
facts and his claims against the Village are therefore dismissed.

Finally, Graham raises several supplemental state law claims. The Defendants argue the
merits of Graham’s state law claims and urge the Court to grant summary judgment in their favor
on these claims as well. However, federal courts are courts of limited jurisdiction and district courts
should relinquish jurisdiction over any pendent state claims when all the federal claims are dismissed
before trial. Estate of Allen v. City of Rockford, No. 02-1873, — F.3d. —, 2003 WL 22724670 (7th
Cir. Nov. 20, 2003); Williamson vy. Indiana Univ., 345 F.3d 459 (7th Cir. 2003); 28 U.S.C.
§ 1367(c)(3). Because the Court has granted summary judgment on Graham’s two federal claims
(false arrest and improper search), it declines to exercise supplemental jurisdiction over Graham’s
supplemental state law claims, which are dismissed without prejudice.

TV. Conclusion

Graham’s suspicious, nighttime activity in the Target parking lot, which frightened at least
one women, and gave Officers Nallen and Fragassi probable cause to arrest him for disorderly
conduct. Consequently, the Officers also had probable cause to conduct a search incident to a
custodial arrest of Graham’s truck. Thus, the Court finds that Officers Nallen and Fragassi are
entitled to qualified immunity and grants summary judgment in favor of all Defendants on Count I
(Unlawful Search) and Count II (False Arrest). Those counts are dismissed with prejudice. Counts
II-VI, which rest on alleged violations of state law, are dismissed without prejudice.

IT IS SO ORDERED.

LAS IS fed KE tA? 4 Ls )
Dated The Honota¥le William J. Hibbler

United States District Court

16


for trial exists when "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, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986). This standard places the initial burden on the moving party to identify "those
portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)
(citations omitted). Once the moving party has met this burden of production, the nonmoving party
"must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c).
In deciding whether summary judgment is appropriate, the Court accepts the nonmoving party's
evidence as true, and draw all inferences in that party's favor. See Anderson, 477 U.S. at 255;
Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999).

Before proceeding, the Court must resolve Defendants’ motion to strike certain paragraphs
from Graham’s response to their statement of facts. To say the least, both parties’ presentation of
the “undisputed” facts are not only sloppy, but also replete with argument, making significantly more
onerous the Court’s task in sifting through the supposedly undisputed facts. “A lawsuitis nota game
of hunt the peanut.” Greer v. Board of Educ. of City of Chi., 267 F.3d 723, 727 (7th Cir. 2001).
Local Rule 56.1 statements that are full of argument, evasion, and improper denials defeat the point
of Local Rule 56.1, which is to identify precisely which facts are actually in dispute. Bordelon v.
Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th 2000); Little v. Cox's Supermarkets, 71
F.3d 637, 641 (7th Cir. 1995).

Local Rule 56.1 sets forth the requirements for supporting and opposing motions for

summary judgment. Among other things, the nonmovant must file a statement of facts that must



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
RODGER GRAHAM, )
)
Plaintiff, )
)
)
V. ) Case No. 02 C 4405
) ha
) The Honorable William-J*Hibbler.
VILLAGE OF NILES, OFFICER LISA NALLEN, ) Es
AND OFFICER TOM FRAGASSI, ) Pe OP,
) sa iy
Defendants. ) lee Le

MEMORANDUM OPINION AND ORDER...

Rodger Graham asserts that Officers Lisa Nallen and Thomas J. Fragassi deprived him of his
tights under the Fourth and Fourteenth Amendments in violation of 42 U.S.C. § 1983. Graham
alleges that Officers Nallen and Fragassi, acting upon an anonymous tip that Graham was
surreptiously videotaping women’s breasts, unlawfully searched him and arrested him without
probable cause in the parking lot of a Target Store in the Village of Niles, Illinois. Graham also
asserts various state law claims related to the search and arrest against both officers and the Village
of Niles. The Defendants move for summary judgment, arguing that they are entitled to qualified
immunity for their actions.

J. Standard of Review
Summary judgment is proper only when "there is no genuine issue as to any material fact and

the moving party is entitled to a judgment as a matter of law." Fed R. Civ. P. 56(c). A genuine issue



assertion of qualified immunity rests with the plaintiff.”); Guenther v. Holmgreen, 738 F.2d 879, 888
(7th Cir. 1984) (plaintiff bears burden in § 1983 case of demonstrating arrest was without probable
cause and that officer lacked a reasonable belief that arrest was made with probable cause). Graham
cannot establish that his arrest for disorderly conduct was made without probable cause, and thus
cannot demonstrate a constitutional violation.

In Illinois, a person commits disorderly conduct when he commits “any act in such
unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.” 720 ILCS
5/26-1(a)(1). Illinois courts have summarized that disorderly conduct is conduct that “at least has
the potential to disturb public order.” People v. Tingle, 665 N.E. 2d 383, 389 (Ill. App. Ct. 1996);
see also People v. Hoffman, 258N.E. 2d 326 (Ill. App. Ct. 1970) (arrest for disorderly conduct
sustained for man walking around in public with vulgarism printed on his forehead). And an arrest
for disorderly conduct is justified when “the defendant directly bothers or harasses other people.”
Id. (citing People v. Kolichman, 578 N.E.2d 569 (1991); In re. D.W., 502 N.E.2d 419 (1986)). The
IMinois Supreme Court has held that disorderly conduct is “intended to guard against an invasion of
the right of others not to be molested or harassed, either mentally or physically, without
justification.” People v. Davis, 413 N.E. 2d 413, 415 (Ill. 1980) (internal quotation omitted).

While videotaping in public in and of itself may not give police probable cause to arrest a
person for disorderly conduct, see Cooper v. City of Waukegan, No. 86 C 7051, 1987 WL 10956
(N.D. Ill. Apr. 22,1987), Illinois courts have sustained arrests for disorderly conduct where the
videotaping was accompanied by other suspicious circumstances, see People v. Blair, 748 N.E. 2d
318 (ill. App. Ct. 2001) (defendant arrested for disorderly conduct after videotaping children at a

zoo). Here there are similar suspicious circumstances. The police were aware that a woman had

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qualified immunity. Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991);
Thompson v. Wagner, 319 F.3d 931, 935 (7th Cir. 2003). Because the Officers had probable cause
to arrest Graham for disorderly conduct, his § 1983 claim for false arrest and imprisonment must fail.

Graham also contends that the officers’ search of his truck was an unlawful violation of his
Fourth and Fourteenth Amendment rights. However, “a police officer who has made a lawful
custodial arrest of an occupant of a vehicle may search the passenger compartment of the vehicle,
including the contents of any containers found therein.” Smith v. City of Chicago, No. 97 C 0763,
1999 WL 162811, at *3 (N.D. Ill. Mar. 9, 1999) (citing New York v. Belton, 453 U.S. 454, 460-61,
101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)). Even a search of the glove compartment and any
containers such as “luggage, boxes, bags, clothing, and the like” is permissible when a lawful
custodial arrest has been made. Belton, 453 U.S. at 460 n. 4. As previously discussed, Officers
Nallen and Fragassi had probable cause to arrest of Graham for disorderly conduct. This custodial
arrest gave them authority to search the passenger area of his truck, including any containers therein.
The Officers thus are entitled to qualified immunity for Graham’s claim that their search of his truck
was unconstitutional.

Although the Court denied the Village of Niles’ motion to dismiss the federal claims against
it because Graham had alleged in his complaint that a policy, custom or practice of the Village was
responsible for his violation, he has come forward with no facts supporting this theory on summary
judgment. Monell v. New York City Dept. of Social Servs, requires that a plaintiff seeking to impose
liability upon a municipality must prove that the deprivation of federal rights was proximately caused

by a municipal policy, custom or practice. 436 U.S. 658, 690-91, 98S. Ct. 2018, 56 L. Ed. 2d 611;

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