Pepper, Charise v. Village of Oak Park

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3948

CHARISE PEPPER,

Plaintiff-Appellant,

v.

VILLAGE OF OAK PARK and

LEONARD DONAIRE,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 CV 3890—Rebecca R. Pallmeyer, Judge.

____________

ARGUED SEPTEMBER 20, 2005—DECIDED NOVEMBER 30, 2005

____________

Before CUDAHY, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge. We are asked to determine

whether providing “escort services” to an estranged spouse

by the Oak Park Police Department gives rise to a remedy

under 42 U.S.C. § 1983 for the other spouse. If Charise

Pepper’s colloquial characterization had accurately de-

scribed Oak Park Police Officer Leonard Donaire’s in-

volvement with Pepper’s husband John Redd on June 1,

2001, we might be inclined to hold in the affirmative. The

phrase “escort services,” however, does not fit Pepper’s

allegations, which in turn are not supported by the evi-

dence. For the following reasons, we affirm the district

court’s grant of summary judgment in the defendants’ favor.

2 No. 04-3948

I. BACKGROUND

Charise Pepper married John Redd in June 1999. In

October 2000, Pepper left Redd in Arizona and moved to

Oak Park, Illinois, where she rented part of a residence

from her brother, Kenneth Pepper. In December 2000, after

reconciliation, Redd moved in with Pepper at the Oak Park

residence.

Pepper and Redd’s relationship deteriorated again,

however, and in May 2001, police officers came to the

residence in response to a call in which Pepper reported

that Redd had refused to leave as she requested and had

threatened to abuse her physically. Pepper claims that

when the police arrived, she showed them a lease to the

residence in her name only; that Redd refused to leave

in the presence of the police; and that, ultimately, the

officers forcibly ejected Redd from the residence. As Redd

left the premises, he asked the police officers when he could

return to collect his property. One of the officers told Redd

that he would need a police escort to retrieve his property.

On the morning of June 1, 2001, Redd allegedly phoned

Pepper and told her that he was going to burn down her

house and shoot out the windows. Pepper reported these

threats to the Oak Park police the same morning seeking to

have Redd arrested. The officer instructed Pepper to get an

order of protection against Redd, which she did not do.

Later that day, the Oak Park police dispatcher sent

Officer Donaire to the residence “for a police escort. Subject

wants to remove property from the house.” When Donaire

arrived, Pepper was not at home, but Redd and another

man were present. Donaire noticed that the men had gained

access to the residence through an open door with no sign

of forced entry. Redd identified himself to Donaire and said

that he was in the process of getting a divorce from his wife.

Redd explained that he wanted to retrieve certain items he

had rented from a facility in Arizona. Redd showed Donaire

No. 04-3948 3

several documents, including an Arizona marriage certifi-

cate, a driver’s license showing the Oak Park residence as

his address, an itemized rental agreement, and a typed

“lease.”

The rental agreement which Redd showed Donaire

contained a list of various items of personal property that

Redd had rented in Arizona. The “lease” contained the

names “Sherry Redd and John Redd” and the address to the

residence. There now is no dispute that the “lease” was a

forgery because Pepper was the only rightful lessee.

From his police car, Donaire accessed the Illinois State

Police’s database and confirmed that Redd’s address on his

driver’s license matched that of the residence. Donaire then

asked the dispatcher whether there had been any recent

police calls at the residence’s address and learned about the

disorderly conduct complaint called in earlier that morning.

Donaire did not inquire any further about the complaint,

nor did the dispatcher elaborate. Donaire ran a check on the

license plates for Redd’s vehicle. Finally, Donaire verified

that there were no reported warrants outstanding, orders

of protection, or signed complaints against Redd.

For approximately fifteen minutes, Redd and his friend

moved items from Pepper’s residence into Redd’s vehicle

and an attached trailer parked in the driveway. During this

time, Donaire remained in front of the house to prevent

violence or argument between Redd and Pepper should

Pepper return. Donaire stayed in his police car much of this

time but occasionally got out to monitor the removal of the

property. Donaire inventoried the items Redd removed from

the residence, most of which, including a television, a

computer, and a printer, were identified on the rental

agreement. The only item Redd removed that was not listed

on the rental agreement was a second television set, which

Redd claimed was his.

4 No. 04-3948

While at a beauty salon, Pepper received a telephone

call from her neighbor who told her that Redd was taking

“all your stuff” and that police were there. Pepper set off for

home.

After loading several additional items, Redd and his

friend drove away from the scene, and Donaire left soon

thereafter. Moments later, Pepper arrived and discovered

that personal property including her television set were

gone, and that the body of her couch and its cushions had

been slashed with a knife.

Pepper sued Donaire and the Village of Oak Park under

42 U.S.C. § 1983, claiming that Donaire violated the Fourth

and Fourteenth Amendments by unreasonably seizing her

property and denying her of substantive due process, and

that Oak Park’s lack of training and procedures for its

police was a proximate cause of her injury. Alternatively,

Pepper argued even if Donaire was entitled to qualified

immunity, Oak Park remained liable under Monell v.

Department of Social Services, 436 U.S. 658 (1978) for

allegedly lacking adequate procedures. Finding Donaire

committed no constitutional violation, the district court

granted summary judgment for both Donaire and Oak Park.

Pepper has abandoned her substantive due process claim

and advances on appeal only her unreasonable seizure and

Monell claims. We affirm.

II. ANALYSIS

A. Summary Judgment Standard

We review de novo the grant of summary judgment.

Williams v. Waste Mgmt. of Illinois, 361 F.3d 1021, 1028

(7th Cir. 2004). Summary judgment is proper only if the

record shows “that there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). When

No. 04-3948 5

considering whether a genuine issue of material fact exists,

we view all facts and make all inferences in favor of Pepper,

the non-moving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). In other words,

summary judgment can be awarded only if no rational trier

of fact could find for the non-moving party. Rogers v. City of

Chicago, 320 F.3d 748, 752 (7th Cir. 2003).

B. Pepper’s Claim Against Officer Donaire

To recover under § 1983, Pepper must prove that Donaire

deprived her of a federal right while acting under color of

state law. 42 U.S.C. § 1983; see Gomez v. Toledo, 446 U.S.

635, 640 (1980). The federal right Pepper asserts is her

right to property as protected by the Fourth Amendment. It

is undisputed that Donaire “acted” under color of state law

and that Redd by himself did not. At issue here is whether

Donaire was sufficiently involved with Redd to render

Pepper’s alleged injury to be caused by state action.

At the outset, we must determine whether Pepper has a

constitutionally protected right at stake. The Fourth

Amendment, made applicable to the states by the Four-

teenth Amendment, Ker v. California, 374 U.S. 23, 30

(1963), provides that the “right of the people to be secure in

their persons, houses, papers, and effects, against unrea-

sonable searches and seizures shall not be violated.” In

Soldal v. Cook County,1 a § 1983 case, the Supreme Court

reiterated that the Fourth Amendment applies to civil

cases, 506 U.S. 56, 67 (1992), and protects property inter-

ests, id. at 62-63, but not all types of property, id. at 63 n.7

1

The Soldal saga applies to two different aspects of Pepper’s

case. Here, Pepper uses the Supreme Court’s holding to assert her

Fourth Amendment right. As we will discuss below, Pepper

separately relies upon the Seventh Circuit’s finding a conspiracy

under the circumstances, which was not reviewed by the Supreme

Court, to buttress her conspiracy argument.

6 No. 04-3948

(citing Oliver v. United States, 466 U.S. 170, 176-77 (1984)

(open fields not protected by Fourth Amendment)). The

property in Soldal was the plaintiff’s mobile home, a

“house,” which the Court noted was explicitly included by

the text of the Fourth Amendment. Id. So too, we think,

that Pepper’s couch and television set are personal “effects”

protected by the Fourth Amendment. See Oliver, 466 U.S.

at 177 n.7 (explaining that the framers would have under-

stood “effects” to refer to personal, rather than real, prop-

erty); Altman v. City of High Point, 330 F.3d 194, 200-01

(4th Cir. 2003) (collecting authority).

Having found that Pepper’s property is of the type

protected by the Fourth Amendment, we turn to whether

Pepper’s effects were seized. “A ‘seizure’ of property . . .

occurs when ‘there is some meaningful interference with an

individual’s possessory interests in that property.’ ” Soldal,

506 U.S. at 61 (quoting United States v. Jacobsen, 466 U.S.

109, 113 (1984)). In Soldal, the Court held that the forcible

removal of the plaintiff’s mobile home, leaving him dispos-

sessed, constituted a seizure. Id. at 61. The interference

which Pepper incurred—the permanent taking of her

television and the substantial damage to her couch, while

each was secured in her residence—likewise amounts to a

“seizure” under the Fourth Amendment.

But before we analyze whether the seizure was unreason-

able, Pepper must satisfy her burden of proving state

action. This she cannot do. The protections of the Fourth

Amendment apply only to governmental action and are

“wholly inapplicable ‘to a search or seizure, even an unrea-

sonable one, effected by a private individual not acting as

an agent of the Government or with the participation or

knowledge of any governmental official.’ ” Jacobsen, 466

U.S. at 113-14 (quoting Walter v. United States, 447 U.S.

649, 662 (1980) (Blackmun, J., dissenting)). Pepper admits

it was Redd, a private actor, who seized her property.

Pepper argues Donaire was sufficiently connected to Redd

No. 04-3948 7

to transform Redd’s private seizure into a public seizure by

allegedly serving as a “look-out” for Redd and by standing

by, despite allegedly knowing that Redd was stealing and

damaging her property, and allowing Redd to leave.

To support her “look-out” construction, Pepper analogizes

her § 1983 case to a criminal prosecution in the state of

Illinois. Pepper seems to argue that because Donaire should

be prosecuted, and would be guilty, under Illinois’s criminal

accountability theory by being a lookout, he is therefore

liable to her under § 1983. But Pepper has not explained to

us why a state’s criminal law should inform a § 1983

analysis. Indeed, as Pepper herself notes, § 1983 “creates a

species of tort liability and [we] interpret . . . it in light of

the background of tort liability.” City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999)

(collecting authority) (citations and quotations omitted).

Because the tort of civil conspiracy permits recovery similar

to that of criminal accountability, by imputing liability on

one for the acts of another without creating a separate

cause of action, see Hostrop v. Bd. of Jr. College Dist. No.

515, 523 F.2d 569, 576 (7th Cir. 1975), we agree with the

defendants that Pepper’s suggestion that Donaire commit-

ted criminal acts is an inflammatory, rather than legal,

argument, and we will pay no heed to it.

Under any theory, to be liable under § 1983, the individ-

ual defendant must have “caused or participated in a

constitutional deprivation.” Sheik-Abdi v. McClellan, 37

F.3d 1240, 1248 (7th Cir. 1994) (citing Wolf-Lillie v.

Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)). Pepper’s civil

conspiracy argument derives from this court’s holding in

Soldal v. Cook County, 923 F.2d 1241 (7th Cir. 1991), which

was vacated, Soldal v. Cook County, 931 F.2d 1073 (7th Cir.

1991), and then reinstated in part by an en banc review in

Soldal v. Cook County, 942 F.2d 1073 (7th Cir. 1991), rev’d

on other grounds, 506 U.S. (1992), which led to the Supreme

Court decision previously discussed. As detailed in the

8 No. 04-3948

reinstated panel opinion, the owner of a trailer park phoned

the Cook County sheriff’s office requesting deputy sheriffs

be present while she evicted the plaintiff because she feared

the family would resist. 923 F.2d at 1244. The deputies

were highly experienced in evictions and knew that well-

established Illinois law required the landlord to obtain a

court order of eviction in order for the eviction to be lawful.

Id. at 1247. Despite the landlord’s failure to produce an

eviction order, the deputies allowed the landlord’s employ-

ees to begin to detach the plaintiff’s mobile home and

remove it from the trailer park in the presence of the

plaintiff. Id. at 1244. A deputy told the plaintiff that he was

there to prevent him from interfering with the workers. Id.

Then the sheriff’s lieutenant, who was standing by in the

landlord’s office, refused to permit the plaintiff to lodge a

criminal complaint against the landlord, telling him to take

it up with the district attorney. Id. Subsequently, the

plaintiff prevailed in state court, and the landlord’s eviction

was ruled improper, prompting the return of the damaged

mobile home to the plaintiff. Id. at 1245.

The plaintiff brought a § 1983 action against Cook

County, the sheriff’s officers, and the trailer park owner

and manager, alleging that the defendants conspired to

seize and remove his mobile home. This court found that

because the deputies prevented the plaintiff from using

reasonable force to protect his home from private action

that the deputies knew was illegal, there was sufficient

evidence of conspiracy to constitute state action. Id.

at 1247.2

Although we agree that the circumstances in Soldal could

give rise to finding a conspiracy, Pepper’s case is distin-

2

The Supreme Court, reversing on other grounds, expressly

did not review this holding of the reinstated opinion and accepted

it as true. 506 U.S. at 60 n.6.

No. 04-3948 9

guishable in so many respects that a similar conclusion is

unwarranted. In Soldal, without the deputies’ presence, the

landlord was afraid to evict the plaintiff. Id. Pepper argues

that without Donaire’s presence, Redd similarly would have

been afraid to take Pepper’s television and to damage her

couch. Furthermore, Pepper argues, either Pepper or her

neighbor would have called the police had Donaire not

already been at the scene.

Unlike Soldal, we cannot reasonably infer that Redd

was too afraid to take and to vandalize Pepper’s property

without the presence of police. Pepper was not present

at her residence at any point during the relevant time,

and Redd’s motivation appears to have been to comply with

the instructions the police gave him earlier that day to call

for a police escort before retaking his belongings. Nor can

we reasonably infer that the police’s presence somehow

prevented either Pepper or her neighbor from calling the

police. Admittedly, it may be plausible that the presence of

the police would deter someone from calling the police to

the scene of a crime in progress. Such an effort might be

redundant, if the police were there to stop the crime, or

futile, if the police were taking part in it. But we need not

consider whether Pepper’s allegations would be sufficient to

defeat summary judgment because she presented no

evidence that either she or her neighbor were deterred from

calling the police due to Donaire’s presence.

Even if we were to find that Donaire’s actions somehow

amounted to proximate cause, it is plain from the record

that Donaire lacked the requisite mental state to find that

he was in cahoots with Redd. At a minimum, Pepper

must show that Donaire was more than negligent—that

he knew Redd was acting wrongfully “and facilitate[d] it,

approve[d] it, condone[d] it, or turn[ed] a blind eye.” Gentry

v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (quoting

Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988)).

In Soldal, we found indirect evidence of a conspiracy where

10 No. 04-3948

the police were aware that the landlord’s eviction without

a court order was unlawful but nevertheless allowed it to

proceed. 923 F.2d at 1247. But here the evidence shows the

exact opposite—that Donaire took appropriate measures to

eliminate any suspicion that Redd was up to no good and

reasonably concluded that Redd was the rightful owner of

the property and his access to the residence was lawful.

There is no circumstantial evidence upon which to infer a

conspiracy between Donaire and Redd was formed. Prior to

the dispatch, Donaire had never met or heard of Redd. Redd

called dispatch, not Donaire directly, to get the process

started, which indicates Redd had no prior knowledge that

it would be Donaire who would arrive for the escort. Merely

calling police to the scene of possible violence does not

create a conspiracy. Id. at 1246 (citing Gramenos v. Jewel

Cos., 797 F.2d 432, 435 (7th Cir. 1986); Moore v. Market-

place Rest., Inc., 754 F.2d 1336, 1352-53 (7th Cir. 1985);

Johnson v. Miller, 680 F.2d 39, 40-41 (7th Cir. 1982)).

Therefore, the earliest point at which a conspiracy could

have been hatched between Redd and Donaire is when

Donaire arrived at the residence. Nothing in the record

suggests at any time after Donaire showed up, he and Redd

somehow concocted a plan by which Donaire would help

Redd steal and vandalize Pepper’s property with no benefit

accruing to Donaire. Nothing in the record contradicts

Donaire’s stated purpose—to prevent an outbreak of

violence between estranged spouses—or supports Pepper’s

characterization that Donaire was providing an “escort

service.”

There is no reason for Donaire to suspect that Redd, after

calling police, requesting assistance, and providing identifi-

cation to Donaire, would then commit a crime in Donaire’s

presence. Because there was nothing under the circum-

stances to indicate to Donaire that Redd was not entitled to

enter the residence, did not own the television set, or would

vandalize the apartment, Donaire was not on notice of any

No. 04-3948 11

apparent wrongdoing. Donaire took reasonable measures to

verify Redd’s identity, address, and claim of ownership to

the property he removed from Pepper’s apartment. The

documentation Redd provided Donaire was more than

sufficient to assuage any concern which Donaire might

reasonably have had that Redd’s actions were wrongful.

That Redd produced any proof of ownership at all for

personal household items is above and beyond what the

rightful owner would reasonably be expected to produce for

property of this type.

It is likely that Donaire may have increased his scrutiny

of Redd if he had learned of the police visit to the resi-

dence in the preceding month and the nature of the phone

call to police earlier that day. However, the principle

additional precaution which Donaire could have taken

would have been to enter the Pepper house. But we cannot

hold this against Donaire because without a warrant,

exigent circumstances, or consent, he lacked authority to do

so. See, e.g., Payton v. New York, 445 U.S. 573, 590 (1980).

We conclude that the district court correctly granted

summary judgment in favor of Donaire.

12 No. 04-3948

C. Pepper’s Claim Against Oak Park

As a last resort, Pepper contends that because Oak

Park has not filed an answer to her amended complaint,3

her new allegations are deemed admitted under Federal

Rule of Civil Procedure 8(d), at least until her cause is

remanded. On remand, if granted, Pepper claims she would

not oppose Oak Park’s request to file an answer. This

“argument” ignores the primary role of pleadings in the

federal system, which is to provide notice, not to prolong a

losing case beyond its natural life. See Conley v. Gibson, 355

U.S. 41, 48 (1957) (“The Federal Rules reject the approach

that pleading is a game of skill in which one misstep by

counsel may be decisive to the outcome and accept the

principle that the purpose of pleading is to facilitate a

proper decision on the merits.”); see also Trotter v. Jack

Anderson Enters., 818 F.2d 431, 436 (5th Cir. 1987) (ex-

plaining that defendant’s motion for summary judgment

without prior responsive pleading to allegation in complaint

provided plain notice that the issue was to be litigated).

Rather than file an answer to the additional allegations,

Oak Park filed a motion for summary judgment. Reaching

the merits, Pepper concedes, as she must, that she has no

case against Oak Park under Monell if Donaire did not

violate the Fourth Amendment. City of Los Angeles v.

Heller, 475 U.S. 796, 799 (1986); Treece v. Hochstetler, 213

F.3d 360, 364 (7th Cir. 2000); Tesch v. County of Green

Lake, 157 F.3d 465, 477 (7th Cir. 1998); Estate of Phillips v.

City of Milwaukee, 123 F.3d 586, 596-97 (7th Cir. 1997). As

we explained, Donaire did not violate the Fourth Amend-

ment because Pepper presented no evidence to impute

3

Pepper asserted only state law claims against Oak Park in

her original complaint. After Donaire and Oak Park moved for

summary judgment, and after Pepper responded, the district court

granted leave for Pepper to amend her complaint by adding her

Monell claim against Oak Park.

No. 04-3948 13

liability to Donaire for Redd’s unlawful acts. Because

summary judgment in favor of Donaire was proper, Pepper

has no claim against Oak Park as a matter of law, and

remanding merely for Oak Park to file its answer would be

a waste of time.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment in favor of Leonard Donaire

and the Village of Oak Park.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-30-05