Judge Bucklo on Color of Law, Monell, and Access to the Courts

"Plaintiff alleges that on April 5, 2006, he was restrained and beaten by defendants both inside and outside the restaurant. Defendants dispute this and contend plaintiff was drunk and the aggressor, and any contact with him was in self-defense." Several defendants claimed they were not acting under color of law and thus could not be held liable under Section 1983. Judge Bucklo ruled: there was "a genuine issue of material fact as to whether [individual] was acting under color of law. " "The [Individual] testified that he was trying to "keep the peace" at the time of the alleged incident... also testified at his deposition that once the Forrest Park police arrived "[t]here was no more need for my assistance at that time-other than to talk to the police officers and tell them what I had seen."...[one witness] testified he was ordered by [the individual] to leave the bar and he explained he followed those orders because "he's my boss. I follow anything that he tells me to do." Judge Bucklo also found a question of fact existed on some other officer and non-officer defendants wether they were acting under color of law. As to plaintiff's Monell claim: Judge Bucklo found that one of the individuals at the restaurant, In light of [his] powers and responsibilities as DPS, as set forth under municipal law and the internal police department procedural manual, was a final policymaker under local law. Defendants argued, even if he was a final policy maker, his actions at the restaurant "did not constitute policymaking and cannot be attributed to the City." Judge Bucklo explained: "[N]ot every action taken by employees with decisionmaking authority gives rise to the potential for liability." Eversole, 56 F.3d at 715. "The fact that a particular official-even a policymaking official-has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.... The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable." Pembaur, 475 U.S. at 481-83 (citations and footnotes omitted). The law is clear that a single act can constitute policymaking. Id. at 481 ("[A] government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government 'policy' as that term is commonly understood.") And concluded "There is a question of fact as to whether [individual's] conduct fell within the ambit of his policymaking authority." Judge Bucklo, did however, grant summary judgement on plaintiff's "access to the courts" claims: Judge Bucklo explained: "The First and Fourteenth Amendments to the U.S. Constitution guarantee the right to seek legal relief for asserted injuries that have a reasonable basis in fact and in law." Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 422 (7th Cir.2000) (citations omitted). Judicial access should be allowed to be rendered inadequate as a result of efforts by state actors to impede an individual's access to courts. Id. (citations omitted); Vasquez v. Hernandez, 60 F.3d 325, 328 (7th Cir.1995) (an attempt to cover up police wrongdoing which succeeded in briefly hiding the facts from the plaintiffs, and which ultimately neither prevented the plaintiffs from pursuing relief nor reduced the value of their claim was not actionable under section 1983). Here, plaintiff first argues that defendants interfered with his access to courts because several witnesses were allegedly ordered to leave the scene by Frank Marzullo. The problem with this argument is that the Forest Park Police was ultimately able to interview Fellows, Baugh, and Jerry Marzullo (who allegedly fled the scene). There is no evidence the Frank Marzullo or any other defendant prevented Forest Park police from actually interviewing any witnesses. Plaintiff also argues that Frank Marzullo intimidated witnesses at the scene as a result of his employment and actions on the night in question. Again, plaintiff concedes, however, that these witnesses did give statements to the Forest Park police. Moreover, plaintiff's argument that the value of this lawsuit has been hindered as a result of Frank Marzullo's conduct is based on the speculation that the Forest Park police would have obtained "more meaningful statements" from witnesses had Frank Marzullo not been involved. None of plaintiff's arguments or speculation establish a genuine issue of material fact with respect to the access to courts claim. See Walters v. Edgar, 163 F.3d 430, 434 (7th Cir.1998) ("[I]n the case of a denial of access to the courts ... if the denial has had no effect on the legal relief sought by the plaintiff, no right has been violated"); Vasquez, 60 F.3d at 329. Accordingly, defendant's motion for summary judgment on count VIII is granted." Pesek v. Marzullo, 2008 WL 2812257 (July 22, 2008) (Bucklo) Thomas George Dicianni and Allen Duarte of Ancel, Glink represent the plaintiff Terrence James Goggin, Goggin and Associates, Oak Brook, IL, Richard J. Reimer, Thomas Steven Radja, Jr., Richard J. Reimer & Associates, LLC, Hinsdale, IL, Keith A. Karlson, Carlson Law Offices, Chicago, IL, Burton S. Odelson, Brian Michael Begley, Mark H. Sterk, Michael Ray Gibson, Michael Joseph Hayes, Jr., Michael J. McGrath, Robert R. Wilder, Odelson & Sterk, Ltd., Evergreen Park, IL, for Defendants.