a a)

There being no set of facts under which Plaintiff can claim a violation of his Fourth
Amendment rights for any of the three incidents, the Court need not address the issue of whether
there was a clearly established right that was violated.*

2. Plaintiff's Fourteenth Amendment Claims

Moton’s Complaint claims that the police violated his rights under the Fourteenth
Amendment by arresting him solely because of his race. Under Section 1983, to state an Equal
Protection claim, the Plaintiff must allege that the state actor purposefully discriminated against
him because of his identification with a particular disadvantaged group. Payton v. Rush
Presbyterian St. Lukes Medical Center, 184 F.3d 623, 632 (7th Cir. 1999) (citing Sherwin Manor
Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216, 1220 (7th Cir. 1994)). Moton must demonstrate
that “the action taken by the state...was a spiteful effort to ‘get’ him for reasons wholly unrelated

to any legitimate state objective.” Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1983). This is

a more exacting standard than having to demonstrate the officers lacked probable cause for their
actions. Id.

The Court has already determined that the Gumee police officers had probable cause to
issue citations to Moton and to arrest him for the citation issued on March 30, 2001. Plaintiffs

own exhibits show that the officers were well within the bounds of their duties, and that the

that he was taken to the police station to be processed, and no subsequent interrogation ensued.
(Pl. Ex. C-B). Therefore, since Moton was not interrogated, the duty to Provide him with
Miranda warnings was not triggered.

® To the extent that Plaintiff alleges violations of his rights under the Seventh
Amendment, that claim is dismissed for failure to state a claim upon which relief can be
granted. Plaintiff's own evidence documents that he knowingly waived his right to a jury trial,
for the court proceedings arising from the events of March 30, 2001. (See Pl. Ex. C-J).

-13-



~ ~

spoke with some of Moton and Moore’s neighbors, including Moore’s sons, in order to obtain
more information about the altercation, but he could not find any independent corroborating
witnesses. Subsequently, Deperte issued battery citations to Moton and Moore. (Pl. Ex. A-H).
Later that evening, Moton went to the hospital, where he was informed that he had a hairline
fracture to his nose. Moton claims that Deperte filed false charges against him, and abused his
authority as a police officer by issuing a citation for battery to him. (Pl. Comp. { 14).
III. March 30, 2001 Incident?

On March 30, 2001, the Gurnee Police Department received a complaint from Moore that
Moton knowingly faced his stereo speakers against the wall adjacent to Moore’s apartment, and
played his music at a loud volume in order to disturb her. Based on this Complaint, three police
officers, including Police Officer Robert Januez (“Januez”), went to Moton’s residence. Moton
answered the door, and the police informed him that they wanted to check the configuration of
his stereo equipment. The officers asked Moton if they could come into his apartment. Moton
asked the officers if they had a search warrant. Januez replied that they did not need a search
warrant, because they had a complaint, and that they were coming in to arrest him. Plaintiff
replied “okay,” and the officers walked into his apartment, arrested Moton, and charged him with
disorderly conduct. (See Pl. Ex. C-A; See also Pl. Ex. C-E). Subsequently, Officer Januez took
Moton to the police station, processed him, and brought him home in about one hour. On July 6,
2001, the court for the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois,

found Moton guilty of disorderly conduct, in violation of 720 ILCS 5/26-1(a)(1). (Pl. Ex. C-M).

3 Unless otherwise noted, all facts surrounding this incident are taken from Plaintiff's
Exhibits C-A and C-B, Plaintiff's personal account of the events of March 30, 2001.

4


a fa)

fails to state a claim for relief alleging a conspiracy by Protine and Moore to violate his rights
under the Fair Housing Act.
Plaintiff's Claim Under 42  § 1983

Moton contends that under color of law, several members of the Gumee Police
Department infringed his Fourth and Fourteenth Amendment rights. Section 1983 “is not itself a
source of substantive rights,” but rather provides “a method for vindicating federal rights
elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144, n.3 (1979). The first step ina
Section 1983 claim is to identify the specific constitutional right allegedly infringed. Albright v.

Oliver, 510 U.S. 266, 271 (1994). Therefore, in order to establish a valid claim under 42 U.S.C.

§ 1983 (“Section 1983"), Moton must establish that certain members of the Gumee Police
Department, under color of law, violated his rights under the Fourth and Fourteenth Amendments
of the United States Constitution.

Police officers are granted qualified immunity from civil suit. “Public officials
performing discretionary functions are generally entitled to qualified immunity and are "shielded
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.” Sparing v.
Village of Olympia Fields, 266 F.3d 684, 687 (7th Cir. 2001) (quoting Wilson v. Layne, 526 U.S.
603, 609 (1999)). Qualified immunity exists to provide “ample protection to all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 343
(1986). In order to determine whether a defense of qualified immunity is valid, courts must: (1)
determine whether the plaintiff has alleged the deprivation of an actual constitutional right; and
(2) if so, determine whether the right was clearly established at the time of the alleged violation.

-9-

a



a) a

Il. Analysis

The claims in Moton’s Complaint can be divided into two broad categories. Moton
alleges violations of: (1) the Federal Fair Housing Act by Maria Protine (“Protine”) in her
capacity as manager of Brookhaven, including allegations of conspiracy under 42 U.S.C. § 1985
(“Section 1985"); (2) the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983 (‘‘ Section
1983") by various officers of the Gumee Police Department, and Lake County Assistant State’s
Attorney Haxall, including allegations of Haxall’s conspiracy with Protine and Moore to frame
Moton in violation of Section 1985. All allegations will be addressed in turn.

. Plaintiff's Claims Under the Fair Housing Act

Plaintiff's Complaint alleges violations of the Federal Fair Housing Act under 42 U.S.C.
§§ 3601, 3617, and 3631 (PI. Comp., ff 1-4). Plaintiff alleges that Protine, a white woman, in
her capacity as manager of Brookhaven Apartments, sought to remove Moton, a black man, from
his apartment at Brookhaven because of his race, in violation of various sections of the Fair
Housing Act. As an initial matter, Sections 3601 and 3617 do not confer any rights to sue.
Section 3601 is a declaration of policy only, and confers no power to sue. Further, Section 3631
empowers a government to pursue criminal charges and penalties for violations of the Fair
Housing Act under Chapter 18 of the United States Code. Therefore, the Court will address
whether the Plaintiff has stated a claim for relief under Section 3617 of the Fair Housing Act.

Section 3617 states:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the

exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account

of his having aided or encouraged any other person in the exercise or enjoyment of, any
right granted or protection by section 3603, 3604, 3605 or 3606 of this title.


rn ae)

The court ordered supervision of Moton through and including December 28, 2001, and for
Moton to pay a fine of $100. (Pl. Ex. C-L). Additionally, the Court ordered Moton not to play
his music so loud as to alarm and disturb Moore or any of his neighbors. (Pl. Ex. C-M).
Plaintiff's claims against James B. Haxall (“Haxall”), a Lake County Assistant State’s
Attomey, arise from Court proceedings related to Moton’s disorderly conduct citation. Moton
contends that Haxall failed to adequately investigate the charges against him, and conspired with
Moore, Maria Protine (“Protine”), manager of Brookhaven, and Januez to frame Moton, in order

to force a finding of guilty on the disorderly conduct charges. (P1. Comp. { 23).

DISCUSSION
I. Legal Standard for a Motion to Dismiss

A complaint should not be dismissed under Fed. R. Civ. P. 12 (b)(6) “unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957), The court “must accept all
well pleaded facts as true. In addition, the Court must view these allegations in the light most
favorable to the plaintiff.” z V. Illinois State Board cation, 811 F.2d 1030, 1039 (7th
Cir. 1987). Additionally, Moton has filed his complaint pro se, and when construing a pro se
complaint, the court must construe the complaint more liberally than a complaint prepared by an
attorney. Whitford v. Boglino, 63 F.3d 527, 535 (7th Cir. 1995). However, the complaint must
still allege facts that provide an adequate basis for each claim. Gray v. Dane County, 854 F.2d
179, 182 (7th Cir. 1989). Additionally, all documents and exhibits attached to the Complaint

become part of the pleadings for all purposes. See Fed. R. Civ, P. 10(c).

5.


~ “

1, Plaintiff's Conspiracy Allegations Under 42 USC § 1985‘

In his Complaint, Moton alleges that Protine and Moore (who is a black woman)
conspired to deprive him of his rights under the Fair Housing Act, thereby engaging in a unlawful
conspiracy under 42 USC § 1985. (“Section 1985").> There are four elements necessary for a
claim of civil conspiracy under Section 1985: (1) a conspiracy, (2) for purpose of depriving,
either directly or indirectly, any person or class of persons of equal protection under the laws, (3)

an act in furtherance, and (4) an injury. Heideman v, Wirsing, 840 F. Supp. 1285, 1201 (W.D.

Wis. 1992) (citing United Brotherhood of Carpenters & Joiners Local 610 v. Scott, 463 U.S. 825,

828-29 (1983)). However, the Court has determined that there was no violation of any of
Moton’s rights under the Fair Housing Act. Therefore, Plaintiff cannot sustain a claim under
Section 1985, as there is no underlying constitutional deprivation or injury. See Love v.
Bolinger, 927 F.Supp.1131, 1139 (S.D. Ind. 1996) (““Plaintiffs’ § 1985 claim is defeated by our

holding that they have not suffered any constitutional deprivation, or injury.”). Therefore, Moton

‘ Although there is no motion from Protine (in her individual capacity) to dismiss
Plaintiff's Complaint, and Moore has yet to respond to Moton’s Complaint, the Court, on its
own motion, will address the sufficiency of Moton’s claims against Protine and Moore.

5 Section 1985 (3), in relevant part, states:
If two or more persons in any State or Territory conspire or go in disguise on
the highway or premises of another, for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection of the laws,
or of equal privileges and immunities under the laws; or for the purpose of
preventing or hindering the constituted authorities of any State or Territory
from giving or securing all persons within such State or equal protection of the
laws...the party so injured or deprived may have an action for the recovery of
damages occasioned by such injury or deprivation, against any one or more
conspirators.

-8-



7 : ~
United States District Court, Northern District of Illinois

yy
\5 Name of Assigned Judge

i oO
or Magistrate Judge David H. Coar “(hae Asigned Judge
CASE NUMBER 02 C 8591 DATE 3/23/2004
CASE James T. Moton vs. Maria Protine et al.
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]

Defendants’ Motions to Dismiss Plaintiff's Complaint [Doc. No. 18]; [Doc. No. 26]

DOCKET ENTRY:
qd) Qo Filed motion of [ use listing in “Motion” box above.]
(2) Qo Brief in support of motion due
(3) oO Answer brief to motion due . Reply to answer brief due.
(4) o Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a) Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) a Trial[set for/re-set for] on at
(8) oO (Bench/Jury trial] [Hearing] held/continued to at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OLocal Rule 41.1 CIFRCP4I(a)(1) [1 FRCP41(a)(2).

ao =f [Other docket entry] For the reasons set forth in the attached memorandum opinion and order,

Defendants’ motions [Doc. No. 18]; [Doc. No. 26] to dismiss plaintiff's complaint are GRANTED in their

entirety. Additionally, all claims against Maria Protine and Doris C. Moore are dismissed in their entirety.

All other motions are moot and terminated. This case is closed. Yd | ]

¢
i
.

(11) @ (For further detail see order attached to the original minute order.)

No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

sit (le)

wana
Lung 4
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number of notices

WR 25 2004

dave docketed

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docketing deputy initiala

date muiled notice

Date/time received in

mailing deputy miials

Document
Number

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central Clerk's Office



aN “

show that the Gurnee Police Department received a complaint from Doris Moore concerning
Plaintiff's consistent banging on her walls. (See Pl. Ex. E). The Seventh Circuit has repeatedly
held that an identification or a report from a single, credible victim or eyewitness can provide the
basis for probable cause. Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir. 2000).
Therefore, Plaintiff cannot claim any set of facts that would indicate that the Gumee Police
Department did not have probable cause to issue a citation for Disorderly Conduct. Secondly, in
Plaintiff's documentation of the events of March 29, 2001, Moton admitted to Officer Deperte
that he pushed Moore and Moore admitted that she hit Plaintiff in the nose. Subsequently,
Officer Deperte issued battery citations to Moton and Moore, as he could not find an independent
witness to corroborate the events of that evening. (See Pl. Ex. A-H) Plaintiff's own
documentation of the events of March 29, 2001 preclude him from claiming any set of facts that
would indicate that Officer Deperte lacked probable cause to issue a battery citation.
b. March 30, 2001 Incident

Because the events surrounding March 30, 2001 involve the arrest of Moton in his home,
they must be analyzed under a different legal standard than the two preceding events. Moton
alleges a Fourth Amendment violation because the Gurnee officers made a warrantless arrest.
However, the Fourth Amendment is not violated when the police make an arrest for a
misdemeanor offense without a warrant, even if that offense did not occur in the officer’s

presence, and/or did not involve a breach of the peace. Woods, 234 F.3d at 992.° The court

° Under Illinois law, A person can engage in disorderly conduct when he knowingly,
“{dJoes any act in such unreasonable manner as to alarm another and to provoke a breach of
the peace.” 720 ILCS 5/26-1(a)(1}. Therefore, “breach of the peace” is an element of
disorderly conduct, and even under the old common law, the police could effectuate a
warrantless arrest for this offense. Woods, 234 F.3d at 991-92. Additionally, warrantless

-ll-



wn “

Saucier v. Katz, 533 U.S. 194, 201-2 (2001). Therefore, the Court will address whether Plaintiff
was deprived of his Fourth and/or Fourteenth Amendment rights, and if necessary, the Court will
determine if that violated right was clearly established at the time of the alleged violation.
1. Plaintiff's Fourth Amendment Claims

Moton’s Fourth Amendment claims contend (1) Officer Tokarz lacked probable cause to
issue a disorderly conduct citation to Moton on December 1, 2000; (2) Officer Deperte lacked
probable cause to issue a battery citation to Moton on March 29, 2001; and (3) Officer Januez
lacked probable cause to effectuate an arrest of Moton on March 30, 2001.

When evaluating a Section 1983 Claim that arises under the Fourth Amendment, the
Court must determine whether the officer had probable cause to make the arrest . Gerstein v.
Pugh, 420 U.S. 103, 111 (1975). “Probable cause is a function of information and exigency.”
BeVier v. Hucal, 806 F.2d 123, 127 (7th Cir. 1986). Probable cause requires showing a
probability or a substantial chance of criminal activity, not the actual showing of criminal
activity. Ilinois v. Gates, 462 U.S. 213, 244 (1983). “Probable cause exists at the time of arrest
when reasonably trustworthy information, facts and circumstances would lead a prudent person
to believe that a suspect had committed or was committing a crime.” Neiman v. Keane, 232 F.3d
577, 580 (7th Cir. 2000).

a. January 20, 2001 and March 29, 2001 Incidents

Plaintiff's claims concerning these two incidents are similar, as Moton contends that the
officers involved did not have probable cause to issue citations to him. However, based on
Plaintiff's own documents, it is clear that the officers had probable cause to issue citations on

January 20 and March 29, 2001. The documents that Plaintiff provides for January 20, 2001

-10-



ra ry

Courts have interpreted Section 3617 to apply to threatening, intimidating, or extremely violent
conduct, designed to drive an individual out of his home. Halprin v. Prairie Single Family
Homes of Dearborn Pk. Assoc., 208 F.Supp.2d 896, 903-4 (N.D. Ill. 2002). Acts that have been
found to provide a claim under Section 3617 include cross-buming (Johnson v. Smith, 810
F.Supp. 235, 238-39 (N.D. Ill. 1992)), firebombing homes or cars (Stackhouse v. DeSitter, 620 F.
Supp 208 (N.D. Ill. 1985)), throwing Molotov cocktails Byrd v. Brandenburg, 922 F.Supp. 198,
200-01 (N.D. Ohio 1996)), or physical violence used to induce an individual to leave his home

because of his race. (Seaphus v. Lilly, 691 F.Supp. 127, 139 (N.D. Ill. 1988)).

Moton has presented no facts that would provide him with a claim under Section 3617 of
the Fair Housing Act. Moton has failed to state any allegations that show racial animus or
discrimination against him with respect to his housing. Further, the incidents that occurred on
January 5, March 29, and March 30, 2001 contain no hint of intimidation or interference with his
housing because of his race. The exhibits Plaintiff provides clearly demonstrate that these
incidents were the result of a mutual dispute with his neighbor, with some incidents aggravated
by Moore’s behavior, and some incidents aggravated by Moton’s behavior. None of the
circumstances surrounding these incidents remotely suggest that any of the defendants sought to
deprive Moton of any the rights provided to him under the Fair Housing Act. Therefore, Plaintiff

has not stated a claim for relief under the Fair Housing Act.

-7-


‘al a

About five minutes after calling the police, Moton went outside to wait for their arrival.
Approximately ten minutes after going outside, Moton noticed a police car approach his wing of
the apartment complex, which he believed was responding to his call. However, the police car
turned into another section of the complex. Moton went to search for the police car , but as soon
as he turned the corner, he saw Moore come towards him in an aggressive manner. Moore ran
towards Moton, pushed him back with her chest, and used explicit language towards him. Moton
believed that Moore wanted to start a physical altercation with him; therefore, he took his right
hand and pushed Moton away from him, and attempted to walk away. However, Moore became
more aggravated, began screaming, and Moore, her two sons, and a friend of one of the sons
surrounded Moton. Moore told one of her sons to retrieve a stick from the house, which he did.
The friend of Moore’s son blocked the sidewalk in an attempt to prevent Moton from entering his
apartment. Moton began to back up, and as a consequence, fell backwards. Moore’s sons
kicked Moton in his side, and continued to attempt to hit him. Moore advanced towards Moton,
and swung the stick towards Plaintiff, hitting him two or three times in the back. Moton blocked
Moore’s advances with his elbow. Moore struck Moton in the nose with her stick, which caused
the Plaintiff to bleed profusely. Moton claims that the police in the squad car he observed prior
to this incident should have seen and/or heard the altercation, but failed to do anything to stop it.
Approximately thirty-five minutes after Moton called the police, Officer Deperte (Badge
Number 122) (“Deperte”) arrived on the scene, and Moton described the altercation to Deperte.
After receiving Moton’s version of the events, Deperte went to Moore’s apartment to speak with
her. Subsequently, Deperte returned to Moton’s apartment and asked him if he would like an

ambulance due to his significant blood loss, but Moton refused. Immediately thereafter, Deperte

3.



police had legitimate reasons to take the actions they did. Therefore, Plaintiff can claim no set of

facts upon which relief can be granted on his Fourteenth Amendment claim.’

C. Plaintiffs’ Suit Against B. Haxall Lake County Assistant State's Attorney

In his Complaint, Plaintiff claims that B. Haxall, a Lake County Assistant State’s
Attomey, deliberately tried Plaintiff on the words of Doris C. Moore, Maria Protine, and Officer
Januez under a scheme of perjury, in order to frame Moton for the charge of Disorderly Conduct.
(Pl. Comp. { 20). A state prosecutor is absolutely immune from civil damages for all
Prosecutorial activities “intimately associated with the judicial phase of the criminal process.”
Imbler v. Pachtman, 424 U.S. 409, 430 (1976). In Imbler, a prosecutor was granted absolute
immunity for the use of false testimony and the deliberate suppression of exculpatory evidence.
1d. at 431. Therefore, even if Plaintiff's claim is correct, and Haxall knowingly procured the
false testimony of Moore, Protine and Januez in order to obtain a conviction, Haxall is immune
from suit. Therefore, Plaintiff can claim no set of facts that would allow him state a claim for

relief against Haxall,!°

° Plaintiff also names the village of Gurnee as a defendant, apparently under a theory of
respondeat superior. Respondeat Superior is not a basis for rendering municipalities liable
under § 1983 for the constitutional torts of their employees. Monell v. Department of Social
Services of the City of New York, 436 U.S. 658, 663, n.7 (1973). Municipal liability attaches
only when “the action that is alleged to be unconstitutional implements or executes a policy,
statement, ordinance, regulation or decision officially adopted and Promulgated by that body’s
officers” Id. at 690-91. Therefore, Plaintiff's Complaint fails to state a claim for relief against
Gurnee for two reasons: (1) he cannot bring suit against them under a theory of respondeat
superior; and (2) there is no unconstitutional policy that the city adopted and promulgated.
Therefore, Moton’s claim against:the village of Gurnee is dismissed.

© Further, to the extent that Moton alleges a conspiracy by Protine and Moore to bring
forward false charges to the Police against Moton, as with Moton’s Conspiracy claims against
Protine and Moore for violations of the Fair Housing Act, these conspiracy charges fail, as
there is no underlying deprivation of a constitutional right. See Love v. Bolinger, 927

14.


~ a)

FACTUAL BACKGROUND

Moton is a resident of Brookhaven Apartment Complex (“Brookhaven”), a federal
housing project located in Gurnee, Illinois. Plaintiff's Complaint arises from three separate
incidents that occurred in Brookhaven on January 5, 2001, March 29, 2001, and March 30, 2001.
All three incidents involve disputes with Doris Moore (“Moore”), Moton’s neighbor. Each
incident will be addressed in turn.
I, January 5, 2001 Incident

On December 1, 2000, Moore made a complaint against Moton to the Gurnee Police
Department, and reported that Moton banged on the walls between their apartments, thereby
causing a disturbance. (Pl. Comp. { 10). Gurnee Police Officer Tokarz (Badge Number 135)
(“‘Tokarz”) responded to Moore’s Complaint and issued a disorderly conduct citation to Moore
and a summons to appear in the Circuit Court of the Nineteenth Judicial Circuit, Lake County,
Illinois on January 5, 2001. (See Pl. Ex. E). Neither Tokarz nor Moore appeared in court on
January 5, 2001, and the case was dismissed. (P1. Comp. 10) Moton claims that the
intimidation and harassment related to the disorderly conduct citation caused Moton time, pain,
suffering, and money, and alleges that it was an abuse of police power for Tokarz to issue the
citation to him. (Pl. Comp. ¥ 11).
Il. March 29, 2001 Incident

On the evening of March 29, 2001, Moton called the Gumee Police Department to report

a disturbance in Moore’s apartment, which he believed was being caused by Moore’s son.

? Unless otherwise stated, all facts surrounding this incident are taken from Plaintiff's
Exhibits A-C, A-D, and A-E, Moton’s personal account of the March 29, 2001 incident.

-2-


~ A

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS +©DOCKETED
EASTERN DIVISION war 95 2004

JAMES T. MOTON

Plaintiff,
No. 02 C 8591
ve
HONORABLE DAVID H. COAR
MARIA PROTINE, MANAGER
BROOKHAVEN APARTMENTS; THE
VILLAGE OF GURNEE POLICE
OFFICERS, TOKARZ BADGE #135,
DEPARTE, BADGE # 122; ROBERT
JANUEZ; B. HAXALL; LAKE COUNTY
STATES ATTORNEY; AND DORIS C.
MOORE

wee ewe we we SS we SS weer

Defendants.

MEMORANDUM OPINION AND ORDER

Before this Court are two motions to dismiss James T. Moton’s (“Moton” or “Plaintiff’)
Complaint. The first motion was filed on behalf of B. Haxall, a Lake County Assistant State’s
Attorney. The second motion to dismiss was filed on behalf of Brookhaven Apartments, the
Village of Gumee, and several Police Officers of the Village of Gurnee: Tokarz (Badge Number
135), Deperte, (Badge Number 122), and Robert Januez.' For the reasons set forth below,
Defendants’ motions to dismiss are GRANTED. Additionally, for the reasons set forth below,

Plaintiff's claims against Maria Protine and Doris C. Moore are dismissed in their entirety.

' All defendants will be referred to collectively as “Defendants”

-1-


Fea A

must focus its inquiry on whether there was probable cause for the arrest. Id. As stated in the
discussion of the January 20 and March 29, 2001 incidents, a report from a single, credible

victim or eyewitness can provide the basis for probable cause. Woods, 234 F.3d at 996.

Therefore, Januez and the officers working alongside him had probable cause to arrest Moton.
Secondly, the Court must determine whether Moton has claimed any set of facts that
allege a Fourth Amendment violation due to the officer’s entrance into his apartment. Generally,
absent exigent circumstances, police may not enter a person’s home to arrest him without an
arrest warrant. U.S. v. Berkowitz, 927 F.2d 1376, 1385 (7th Cir. 1991). However, courts
generally uphold arrest “where the police go to a person’s home without a warrant, knock on the
door, announce from outside the home the person is under arrest when he opens the door to
answer, and the person acquiesces to the arrest.” Id. at 1386. Based on Plaintiff's own account
of the events surrounding his arrest on March 30, 2001, the police followed the appropriate
procedures: the police went to Moton’s home without a warrant, knocked on the door, announced
from outside his home that he was under arrest, and Moton stated “okay.” It was only after
Moton consented to the arrest that the officers entered the home to remove Moton’s speaker from
against the wall. The police had the authority to briefly enter Plaintiff's home to complete the

arrest. See Berkowitz, 927 F.2d at 1387.’

misdemeanor arrests are authorized by Illinois law. See 725 ILCS 5/107-2.

7 Additionally, Moton contends that the officers violated his Fifth Amendment tights by
failing to read Miranda warnings to him. However, in a recent decision, the Supreme Court held
that there is no cause of action under Section 1983 for violations of Miranda and the Fifth
Amendment privilege against self-incrimination, Chavez vy. Martinez, 123 S. Ct. 1994, 1998
(2003). Further, there was no violation of Moton’s rights under the Fifth Amendment. For
Miranda rights to be triggered, “a subject must be ‘in custody’ and subject to ‘interrogation.””
United States v. Burns, 37 F.3d 276, 280 (7th Cir. 1991). Plaintiff's own exhibits demonstrate

-12-



CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss are GRANTED in their entirety.
Additionally, all claims against Maria Protine and Doris C. Moore are dismissed in their entirety.

This case is closed.

United States District Judge

Dated: March 23, 2004

F.Supp. 1131, 1139 (S.D. Ind. 1996) (“Plaintiff's § 1985 claim is defeated by our holding that
they have not suffered any constitutional deprivation, or injury.”). Additionally, to the extent
that Moton alleges other constitutional violations against Protine and Moore, those claims fail.
Protine and Moore are not “state actors,” as they are not private actors who are “willful
participants in joint action with the State or its agents.” See Gramenos v. Jewel Companies,
Inc., 797 F.2d 432, 435 (7th Cir. 1986) (quoting Dennis v. Sparks, 449 U.S. 24, 28 (1980)).

-15-