Summary
In Wright, the plaintiff, who resided in a friend's apartment but was not included in the lease, was behind in rent and attempted to pay the landlord with a check, but it came back for insufficient funds.
Summary of this case from Pigg v. Fair Collections & Outsourcing of new England, Inc.Opinion
No. 98 C 2788
November 29, 2000
MEMORANDUM OPINION AND ORDER
This case, at its core, involves a dispute between a landlord and one of its residents. Bogs Management, Inc. ("BMI"), through its officers Phyllis and Robert Bogs (collectively referred to herein, at times, as the "Bogs Defendants"), leased an apartment to Reginald Washington. Plaintiff Marvin Wright ("Plaintiff") claims that Robert Bogs later told Washington that Plaintiff could reside in the apartment as well. Washington (and Plaintiff) fell behind in their rent, and the Bogs Defendants sought to remove them both at any and all costs. The dispute might well have been resolved through established eviction procedures, but instead the Bogs Defendants felt the need to file a criminal trespass charge and, consequently, on August 19, 1997, police officers from the Village of Lansing (the "Village") arrested Plaintiff.
Plaintiff has since brought suit against the Village, BMI, and Phyllis Bogs under 42 U.S.C. § 1983, alleging that his arrest violated his Fourth and Fourteenth Amendment rights. Plaintiff has also brought claims against the Bogs Defendants for false arrest and/or imprisonment, constructive eviction, conversion, and intentional infliction of emotional distress. Finally, Plaintiff has brought suit solely against BMI for an alleged violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. All parties have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
For the reasons set forth below, Plaintiff's motion is denied and, with respect to Plaintiff's federal claims, Defendants' motions are granted. Plaintiff's pendent state law claims are consequently dismissed without prejudice for lack of subject matter jurisdiction.
FACTUAL BACKGROUND
The following facts are derived from the parties' Local Rule 56.1(a) and (b) statements of material facts and supporting materials.
All Defendants have moved to strike all, or alternatively, certain of the material facts in Plaintiff's Local Rule 56.1 ("56.1") statement. Defendants claim that Plaintiff's somewhat sprawling statement did not comply with 56.1's requirements in that it included many unsupported, conclusory statements and was no: structured in " short numbered paragraphs." The court acknowledges that certain of the items in Plaintiff's 56.1 statement were conclusory and unsupported by admissible evidence. Such assertions will be disregarded by this court. The court, however, does not find it necessary to strike Plaintiff's submission in its entirety — especially where the record reflects that he attempted to comply with the strictures of 56.1. The court consequently denies Defendants' motion [Doc. 161-1].
All Defendants have also moved to strike Plaintiff's Response to the Bogs Defendants' Statement of Additional Contested Facts, filed August 1, 2000 ("August 1 Filing"), as improper and in violation of 56.1, and Plaintiff's Statement of Additional Contested Facts to All Defendants, filed on July 24, 2000 ("July 24 Filing"), as in violation of the Court's briefing schedule. The August 1 Filing consists of direct responses to the ten additional uncontested facts that the Bogs Defendants' filed with their 56.1(a) Reply ("Bogs' July 21 Reply") to Plaintiff's 56.1(b) Response ("Plaintiff's June 29 Response") to the Bogs Defendants' 56.1(a) statement of material facts. The July 24 Filing consists of 14 additional facts filed by Plaintiff in his 56.1(a) Reply to the Bogs Defendants' 56.1(b) Response to Plaintiff's 56.1(a) statement of material facts.
While the court recognizes that the two disputed filings arguably depart from the letter of 56.1, it concludes that Defendants are not prejudiced by these filings and that the Bogs Defendants' own filings may indirectly have invited Plaintiff's infractions. To briefly explain, the Bogs' July 21 Reply included ten additional facts even though Plaintiff's June 29 Response did not include any additional material facts of its own. The Bogs Defendants' inclusion of these additional facts itself arguably violated 56.1(a). More significantly, the July 21 Reply may have prompted Plaintiff's July 24 and August 1 Filings. As a pro se litigant, Plaintiff should be given leeway with respect to his pleadings, especially in a situation such as this, where he was arguably led astray by the Bogs Defendants' own submissions. The court consequently denies these motions [Docs. 181-1 and 181-2] as well.
A. Parties
Plaintiff is a resident of Markham, Illinois. (Bogs Defs.' Rule 56.1(a)(3) Statement of Material Facts in Support of its Motion for Summary Judgment (hereinafter "Bogs Defs.' Statement of Facts") ¶ 1.) Defendant Village is an Illinois municipal corporation duly organized under the Constitution and laws of Illinois. (Bogs Defs.' Statement of Facts ¶ 4.) Defendant BMI is an Illinois corporation engaged in the business of managing residential properties, with a principal place of business in Lansing, Illinois. (Bogs Defs.' Statement of Facts ¶ 2.) Defendant Phyllis Bogs is an employee and officer of BMI. (Bogs Defs.' Statement of Facts ¶ 3.) Defendant Robert Bogs, the son of Phyllis, is also an employee and officer of BMI. ( Id.)
B. The Lease and Alleged Oral Agreement for Permission to Reside
On or about November 1, 1996, Reginald Washington, the brother of Plaintiff's ex-common-law wife, executed a one-year lease agreement with BMI (the "Lease") to rent Apartment 2-E (the "Apartment") of the Hickory Oaks Apartments (the "Apartment Complex"), located at 18336 Torrence Avenue, Lansing, Illinois, at $665 per month. As of 1996, the Apartment Complex was comprised of eight buildings with a total of 138 rental units. (Affidavit of Robert Bogs ¶ 3.) Prior to executing the Lease, Washington completed a rental application. Language printed on the applicaton warned Washington of BMI's policy requiring every adult planning to live or living in the Apartment Complex to complete a rental application. Although Washington and Plaintiff intended that Plaintiff would live there, Plaintiff did not fill out a rental application for the Apartment. (Village's Rule 56.1(a)(3) Statement of Material Facts in Support of its Motion for Summary Judgment (hereinafter "Village's Statement of Facts") ¶ 15.) According to Plaintiff's own testimony, he knew that, given his credit problems, it would have been futile for him to have applied to live at the Apartment Complex. (Wright Dep. at 463.)
According to Paragraph 23 of Washington's Lease, "[t]he Lessee [Washington] is in violation of this lease if more than 0 person or persons other than those listed on the attached application are residing in the subject apartment." (Village's Statement of Facts ¶ 16.) Moreover, the Lease contained a rider stating that:
Bogs Management has the right to bar individuals from the property. You must inform guest(s) of all Bogs Management lease rules and regulations. If rules and regulations are broken by your guest(s), they may be barred and/or arrested for criminal trespassing. If the rules and regulations are broken by a resident, [sic] grounds for termination of tenancy.
(Village's Statement of Facts ¶ 17.) Plaintiff claims that despite this language, on November 5, Washington received from Robert Bogs oral permission for Plaintiff to reside in the Apartment. ( Id.; Wright Dep. at 491-93.) The Bogs Defendants deny that either Washington or Plaintiff received permission for Plaintiff to reside in the Apartment. (Bogs Defs.' Statement of Facts ¶ 25, 26.) Plaintiff further alleges that, on the day he moved into the Apartment, he met with Robert Bogs. (Plaintiff's Rule 56.1(a)(3) Statement of Material Facts in Support of His Motion for Summary Judgment (hereinafter "Plaintiff's Statement of Facts") ¶ 15.) According to Plaintiff, Bogs (i) prepared a sticker bearing Plaintiff's name (which Bogs then affixed to the Apartment's mailbox), (ii) gave Plaintiff a mailbox key, and (iii) had a sticker made for Plaintiff's vehicle so that he could park in the lot that BMI provided for its tenants. (Plaintiff's Statement of Facts ¶ 16; Wright Dep. at 160-62.) The Bogs Defendants deny all three of these allegations. (Bogs Defs.' Reply to Plaintiff's Statement of Facts ¶ 16.)
Plaintiff has not supplied the court with any deposition testimony from Washington, who was deposed, corroborating this alleged oral agreement. He did include in his filing an "Affidavit of Reginald Washington" (Exhibit V1 to Plaintiff's Statement of Facts); however, this affidavit is neither signed nor notarized and therefore cannot be considered by this court upon these cross-motions for summary judgment. See Sellers v. Henman, 41 F.3d 1100, 1101 (7th Cir. 1994).
Whether or not with the permission of Robert Bogs, Plaintiff resided in the Apartment on a regular basis. Washington, on the other hand, stayed over only about two nights per week. (Bogs Defs.' Statement of Facts ¶ 27, 29.) Given this arrangement, Plaintiff was primarily responsible for the rent and generally paid it in cash. (Plaintiff's Statement of Facts ¶ 17; Bogs Defs.' Statement of Facts ¶ 32; Wright Dep. at 73.) All receipts, however, were made out to "Reginald Washington." (Plaintiff's Statement of Facts ¶ 18; Bogs Defs.' Statement of Facts ¶ 32, 108.) In May 1997, Pinnacle Bank froze Plaintiff's checking account and the rental payments for the Apartment became delinquent. (Bogs Defs.' Statement of Facts ¶ 30; Affidavit of Robert Bogs ¶ 11; Wright Dep. at 105-06.) On June 5, 1997, Plaintiff attempted to pay the outstanding rent by check. (Bogs Defs.' Statement of Facts ¶ 32.) On the check, Plaintiff wrote "for Reginald Washington." ( Id.) Plaintiff's check was returned unpaid due to insufficient funds. ( Id.)
As a result of the delinquency in payment, Robert Bogs served a five-day notice (the "First Notice") on Plaintiff for non-payment of rent on June 17, 1997. (Plaintiff's Statement of Facts ¶ 19; Bogs Defs.' Statement of Facts ¶ 30.) The First Notice is addressed only to Reginald Washington. (Exhibit 31 to Bogs Defs.' Statement of Facts.) In his affidavit, Robert Bogs testified that he served the First Notice on Plaintiff believing that he was serving it on Washington. (Robert Bogs Affidavit ¶ 11.) The First No ice requested $1,029 in back rent, plus court costs and attorneys' fees. (Plaintiff's Statement of Facts ¶ 19.) Because the amount demanded in the First Notice was not paid, BMI filed a Complaint in Forcible Entry and Detainer against "Reginald Washington and All Occupents" seeking possession of the Apartment, and the $1,029 as rent or damages (the "First Eviction Action"). (Plaintiff's Statement of Facts ¶ 20; Bogs Defs.' Statement of Facts ¶ 33; Affidavit of Robert Bogs ¶ 13.) The Bogs Defendants contend that it is standard practice a BMI to name the lessee "and all occupants" as defendants in eviction actions so that the Cook County Sheriff has the authority to remove the entire contents of an apartment i an eviction becomes necessary. (Bogs Defs.' Statement of Facts ¶ 34; Affidavit of Robert Bogs ¶ 14.)
C. Plaintiff's July 24, 1997 Confrontations With Phyllis Bogs
On July 24, 1997, Plaintiff and Washington appeared in court to contest the First Notice. (Bogs Defs.' Statement of Facts ¶ 35.) During this court appearance, Plaintiff identified himself as living with Washington. ( Id.) The Bogs Defendants claim that this is the first time they realized that Plaintiff was living in the Apartment. (Bogs Defs.' Statement of Facts; Affidavit of Robert Bogs ¶ 15.) The court dismissed the First Notice as defective because it included a prayer for attorneys' fees and costs, relief that is not available in a Forcible Entry and Detainer action. (Plaintiff's Statement of Facts ¶ 21; Bogs Defs.' Statement of Facts ¶ 37.) Afterwards, according to Plaintiff, Phyllis Bogs approached Plaintiff and Washington in the hallway outside the courtroom and said, "You sons of bitches are going to pay for it. I'm going to show you who you're fucking with." (Wright Dep. at 578.)
The same day that the First Notice was deemed defective, Phyllis Bogs served a second five-day notice (the "Second Notice") upon Washington by leaving it with Plaintiff. (Bogs Defs.' Statement of Facts ¶ 38.) When Phyllis Bogs served the Second Notice, an argument ensued. The accounts of this argument are quite distinct. According to Phyllis Bogs, Plaintiff informed her that he was "after" her, BMI, and the Village. (Bogs Defs.' Statement of Facts ¶ 39.) Plaintiff denies ever saying this and claims that Phyllis Bogs yelled, "You pimping black-ass motherfucker, you're not going to pimp off me, you no good nigger. I am going to get your nigger-ass out of here." (Plaintiff's Statement of Facts ¶ 22; Wright Dep. 583-86.)
At some point during this argument, Plaintiff himself called the Village of Lansing Police Department (the "LPD") and told them that Phyllis Bogs wanted to have him arrested because she believed certain of his statements to be an assault on her person. (Bogs Defs.' Statement of Facts ¶ 40; Wright Dep. 137-38.) Police officers Timothy Glinski ("Glinski") and Paul Henry ("Henry") responded to Plaintiff's call. Henry testified that, upon his and Glinski's arrival at the Apartment Complex, Plaintiff was argumentative and claimed to be both an attorney and an FBI agent. (Henry Dep. 16-17.) According to the officers' police report, Plaintiff also said that he planned to sue the Bogs Defendants and the Village for discrimination. (Exhibit 14 (7/24/97 Police Report) to Bogs Defendants' Statement of Facts). Nevertheless, the officers refused to arrest Plaintiff, determining that his conduct did not constitute an assault. (Plaintiff's Statement of Facts ¶ 22; Bogs Defs.' Statement of Facts ¶ 41; Village's Statement of Facts ¶ 10.) Glinski told Phyllis Bogs that she should "continue the proper civil process if offenders continue non-payment of rent." (Exhibit 14 (7/24/97 Police Report) to Bogs Defs.' Statement of Facts.) There was no discussion of the question whether Plaintiff was or was not a party to the Lease or whether h was trespassing by being in the Apartment. (Bogs Defs.' Statement of Facts ¶ 44.)
D. The August 15, 1997 Posting of the "Barred" Notices
On July 31, 1997, BMI filed another Complaint in Forcible Entry and Detainer (the "Second Eviction Action") seeking possession of the Apartment and money damages in the amount of $2,160 plus costs. (Plaintiff's Statement of Fact ¶ 23; Bogs Defs.' Statement of Facts ¶ 63.) On August 15, upon Plaintiff's request, the court entered an order continuing the Second Eviction Action until August 22, 1997. (Plaintiff's Statement of Facts ¶ 24.) That same day, per the Lease's "barred" persons rider, the Bogs Defendants posted signs on the Apartment's front door, as well as both doors to the building where the Apartment was located, barring Plaintiff from the property (the "Barred Persons Notice"). (Plaintiff's Statement of Facts ¶ 25; Bogs Defs.' Statement of Facts ¶ 46.) The Barred Persons Notice stated as follows:
TO ALL RESIDENTS
THE FOLLOWING PERSONS HAVE BEEN BARRED FROM THESE PREMISES LOCATED AT 18336 TORRENCE AVENUE, LANSING, IL 60438 AS OF AUGUST 15, 1997.
1) Marvin Wright
BOGS MANAGEMENT HAS BARRED THESE PEOPLE FROM THE PREMISES. IF ANY OF THESE PERSONS ARE FOUND ON THE PROPERTY BOGS MANAGEMENT WILL SIGN COMPLAINTS WITH THE LANSING POLICE DEPARTMENT. THEY WILL BE SUBJECT TO ARREST FOR CRIMINAL TRESPASS AND/OR OTHER CHARGES PER THE "BARRED" LEASE RIDER.
IF ANY RESIDENT SEES ANY OF THESE PERSONS ON THE PREMISES PLEASE CALL THE LANSING POLICE DEPARTMENT AND I WILL PERSONALLY SIGN A COMPLAINT AGAINST THEM.
A COPY OF THIS BARRED LIST IS FILED WITH THE LANSING POLICE DEPARTMENT.
There is no evidence in the record as to whether a copy of the Barred Persons Notice was in fact filed with the LPD. Plaintiff immediately called the LPD to seek their assistance and guidance with respect to the Barred Persons Notice. (Plaintiff's Statement of Facts ¶ 26; Village's Statement of Facts ¶ 19.) Officer John Kuehn went to BMI's office to question Robert Bogs about the reason for the Barred Persons Notice. (Village's Statement of Facts ¶ 20.) In response, Robert Bogs showed Kuehn a copy of the Lease and application. (Village's Statement of Facts ¶ 22.) Kuehn and Bogs then went to the Apartment where Officer Glinski (who had been to the Apartment on July 24) was waiting with Plaintiff. (Glinski Dep. at 28.) All Defendants claim that Plaintiff and Robert Bogs agreed that Plaintiff would be allowed to stay in the Apartment until, but no later than, the morning of August 18, 1997. (Bogs Defs.' Statement of Facts ¶ 49; Village's Statement of Facts ¶ 22.) If found on the premises after such time, Plaintiff would be considered a trespasser. ( Id.) Glinski testified that he witnessed Plaintiff agree to this. (Glinski Dep. 37.) Glinski's police report memorializes the alleged agreement:
R/O spoke to Mr. Bogs who provided an application and lease signed by Reginald Washington. Attached to the lease was a signed rider in which Mr. Washington acknowledged if he was in violation of he lease's occupancy rules the management could "ban" subjects. Since Mr. right did not receive prior notice of being banned it was agreed he would be allowed to stay the weekend. After 0800 on 081897 he will be considered trespassing if he is found on the property located at 18336 Torrence. Both parties a reed to this arrangement.
(Exhibit 15 (8/15/97 Police Report) to Bogs Defs.' Statement of Facts.)
Plaintiff denies ever making any agreement with Robert Bogs. ( Id.; Wright Dep. at 561-62, 635.) Instead, he claims to have told Officers Glinski and Kuehn that (1) a forcible entry and detainer case had been filed by BMI against Plaintiff and Washington, and had been continued until August 22, (2) Robert Bogs had orally agree with Washington that Plaintiff could reside at the Apartment, and (3) the officers could as Washington about such an oral agreement when he returned to town on August 18. (Plaintiff's Statement of Facts ¶ 27.)
E. Plaintiff's August 19, 1997 Arrest
Plaintiff did not vacate the Apartment on August 18. On August 19, 1997, Phyllis Bogs saw Plaintiff on the premises. (Bogs Defs.' Statement of Facts ¶ 54.) She immediately called the LPD and complained against Plaintiff for criminally trespassing on her property. (Village's Statement of Facts ¶ 27; Bogs Defs.' Statement of Facts ¶ 54.) When Police Officers William Hastings ("Hastings") and Walter Weeden ("Weeden") arrived at the Apartment, Phyllis Bogs demanded that Plaintiff be arrested. (Village's Statement of Facts ¶ 28.)
The following is Plaintiff's account of the subsequent arrest: Phyllis Bogs, referring to the August 15, 1997 alleged agreement, told Hastings and Weeden that "Robert stated that we've got it taken care of. He will be — we'll be getting him out of here." When Plaintiff asked why he had to leave, Officers Hastings and Weeden responded, "Because she says so. She carries a lot of weight. She's this [sic] in the Village." (Plaintiff's Statement of Facts ¶ 36.) The police officers then acceded to Phyllis Bogs' command, and arrested Plaintiff without question. The arrest occurred notwithstanding the fact that (1) Plaintiff showed them a electricity bill and phone bill in his name (Wright Dep. at 152-55), (2) both Plaintiff and Kenneth Schaal, the maintenance man for the Apartment Complex, told the police officers that Plaintiff had been residing in the Apartment since November, and (3) Plaintiff told the police officers that there was an eviction action already pending against him. (Plaintiff's Statement of Facts ¶¶ 36, 59.)
Plaintiff claims to have served Kenneth Schaal with a subpoena for his deposition on three different occasions, but, notwithstanding Magistrate Judge Ian Levin's granting of an emergency motion, Schaal has yet to appear for his deposition. (Plaintiff's Statement of Facts ¶ 59.)
Defendants tell a much different story. According to the Village, Officers Hastings and Weeden were entirely unaware of any pending eviction action. (Village's Statement of Facts ¶ 31.) Officer Weeden testified that upon arriving at the Apartment Complex, he reviewed the Lease and the August 15, 1997 police rep it. (Weeden Dep. 9-11.) Officer Weeden confirms Plaintiff's assertion that Phyllis Bogs demanded he be arrested. (Weeden Dep. 10.) Nevertheless, while the officers considered the two documents to be a sufficient basis for a criminal trespass charge, they offered Plaintiff an opportunity to avoid arrest by removing his possessions and vacating the Apartment. (Bogs Defs.' Statement of Facts ¶ 55; Village's Statement of Facts ¶ 29.) Plaintiff was generally nonresponsive, declined their option to vacate without arrest, and actually asked to be arrested. (Village's Statement of Facts ¶ 30.) Hastings and Weeden ultimately complied with this request, placing Plaintiff under arrest on a charge of criminal trespass to real property. (Village's Statement of Facts ¶ 33.)
According to Plaintiff's deposition, the police officers told him that "if [he didn't] leave, [he would] be placed under arrest," and he responded, "Then I guess you're going to place me under arrest. . . ." (Wright Dep. at 185.)
Plaintiff was arrested and then transported by Hastings to the LPD where he was fingerprinted, photographed, and detained. (Plaintiff's Statement of Facts ¶ 29; Village's Statement of Facts ¶¶ 34, 35.) This detention lasted a out three hours. (Bogs Defs.' Statement of Facts ¶ 60.) There is no evidence that anyone other than Plaintiff has ever been arrested by the Village at the request (or demand) of the Bogs Defendants. (Bogs Defs.' Statement of Facts ¶ 111; Village's Statement of Facts ¶ 37.)
While the Village may not have arrested any other individuals at the request of the Bogs Defendants, it has been sued in federal court for false arrest, see SSDD Enterprises, Inc., No. 95 C 6064, 1998 WL 326727 at *18 (N.D. Ill. June 2, 1998) (Pallmeyer, Magistrate Judge) ("There is a question of fact as to whether Village officers had probable cause to arrest Pearson, Clausen, and Bloom, however, so these claims [against the Village] remain alive."). The discovery of this fact caused Plaintiff, on August 4, 2000, to file a Rule 37(c) motion for sanctions against the Village for allegedly providing false, or at the very least, misleading information in response to Plaintiff's interrogatories. Specifically, when asked whether it had been a defendant in a lawsuit for false arrest from 1989 to the present ("Interrogatory #15"), the Village (which first had to be compelled to respond by Magistrate Judge Ian Levin) unilaterally altered the interrogatory to extend back only five years and then answered, "None to my knowledge." Plaintiff notes that the Village was represented in SSDD Enterprises by the same law firm which has represented it in the present case, and which presumably authored the responses to Plaintiff's interrogatories. (Plaintiff's Rule 37(c) Motion for Sanctions, ¶ 7, Exhibit D.) The court finds the behavior of both the Village and its attorneys disappointing. It is highly unlikely that they were unaware of SSDD Enterprises, wherein a summary judgment ruling had been issued by this very court only two years before it served its response to Interrogatory #15. The court grants Plaintiff's Rule 37(c) motion [Doc. 177-1] and, although it will not award sanctions at this time, reminds the Village of its obligation to be forthcoming in discovery responses. See Fed.R.Civ.P. 37(c)(1).
F. Plaintiff's Alleged Post-Arrest Discussions With the Lansing Police Department
On August 20, 1997, Plaintiff claims that he returned to the police station and spoke with an LPD lieutenant. (Wright Dep. at 208.) He told the lieutenant that while there was an eviction action pending against him, Phyllis Bogs had told him that he would receive no help from the police. ( Id.) The lieutenant allegedly responded that, while he did not know what, if anything, Phyllis Bogs had said, "ain't no body going to go against Miss Bogs." ( Id.) Then, on August 21, 1997, Plaintiff allegedly returned to the police department and, this time, spoke to the LPD's Captain. The Captain allegedly informed Plaintiff that "there was nothing [he] could do" and that "Phyllis Bogs carries a lot of weight." (Wright Dep. at 212.) Plaintiff did not identify these two officers by name. Deputy Chief Henry Roberts of the LPD testified that, prior to his deposition., he had neither met nor spoken to Plaintiff, and specifically denied ever telling Plaintiff that the LPD "would not go against" Phyllis or Robert Bogs. (Roberts Dep. 35-36.)
G. Eviction
On August 22, 1997, the court entered judgment i favor of BMI and against Plaintiff in the Second Eviction Action, with possession instanter. (Bogs Defs.' Statement of Facts ¶ 64.) According to a transcript from the case, the judge stated:
Mr. Wright was by his own testimony, was [sic] permitted to stay in the apartment at Mr. Washington's invitation. He certainly was a guest of Mr. Washington's. But I have no evidence showing that you are a tenant. Therefore, if you are not a tenant, you must be a trespasser. And if you are not a trespasser, no notice need to be served.
(Exhibit 29 to Bogs Defs.' Statement of Facts at 60.) On week later, trial was held in the same action, this time with respect to Washington. (Bog Defs.' Statement of Facts ¶ 66.) The court again found in favor of BMI. An order for past-due rent and possession was entered against Washington, stayed until September 3, 1997. (Bogs Defs.' Statement of Facts ¶ 66.) Yet, despite these court orders, Defendants contend that Plaintiff retained a set of the Apartment's keys until October 13, 1997. (Bogs Defs.' Statement of Facts ¶ 86.) Moreover, according to Defendants, representatives of BMI told Plaintiff's then-attorney that Plaintiff could return to the Apartment at any time to retrieve his property. (Bogs Defs.' Statement of Facts ¶ 87.)
H. The Alleged Conversion of Plaintiff's Property
On September 4, 1997, BMI placed an order of possession with the Cook County Sheriff requesting eviction. (Bogs Defs.' Statement of Facts ¶ 67; Affidavit of Robert Bogs ¶ 24.) On October 1, 1997, the Cook County Sheriff's department removed all of Plaintiff's belongings from the Apartment, and put them in a pile outside the building. (Plaintiff's Statement of Facts ¶ 44; Bogs Defs.' Statement of Facts ¶ 68.) Phyllis Bogs was present at the Apartment Complex's rental office that day, but was at no time in the vicinity of the Apartment or its contents. (Bogs Defs.' Statement of Facts ¶ 73.) Robert Bogs was in Indiana from 8:00 a.m. to 5:30 p.m. that day. (Bogs Defs.' Statement of Facts ¶ 74.) He arrived at the Apartment Complex at 6:00 p.m. ( Id.) Amy Rosell, a resident of the Apartment Complex, testified that she saw individuals removing some of Plaintiff's property from the pile, but that these individuals were neither Robert Bogs nor Phyllis Bogs. (Exhibit 12 to Bogs Defs.' Statement of Facts (Rosell Dep.) at 27-31, 53-54). Plaintiff's sister, Jeanette Pat St. Julien ("St. Julien"), was also present at the Apartment Complex for part of the day in order to help remove Plaintiff's belongings. (Exhibit 7 to Bogs Defs.' Statement of Facts (St. Julien Dep.) at 43.) She testified that when she arrived, she witnessed a man and a woman taking some of Plaintiff's property back into the building. ( Id.) She did not recognize these individuals. ( Id.) St. Julien also testified that she saw Robert Bogs search through the pile of Plaintiff's property and remove an envelope full of Plaintiff's personal papers. (Plaintiff's Reply to Bogs Defs.' Statement of Facts ¶ 76.) Robert Bogs admits that he had contact with St. Julien that day. (Affidavit of Robert Bogs ¶ 27). He claims that when he passed the pile, carrying a "no trespassing" sign that he had taken off the Apartment's door, she began to shout at him to stay away from Plaintiff's possessions. ( Id. at ¶¶ 27, 28.)
Two days later, Plaintiff and St. Julien filed a charge of theft against Robert Bogs. (Exhibit 17 (10/3/97 Police Report) to Bogs Defs.' Statement of Facts.) The police report states:
Ms. St. Julien stated she was watching Plaintiff's property from her vehicle in the parking lot, when she stated she observed Mr. Bogs milling around victim's property outside the building. Ms. St. Julien stated she observed Mr. Bogs reach into a paper bag, and remove unidentified articles of paper from the area near victim s property.
( Id.) Plaintiff has not supplied the court with any deposition testimony from St. Julien to support this statement made to the police. Plaintiff estimates the total loss of the stolen property at approximately $13,600 (such estimation includes a $3,800 fur jacket, two white bear-size fur rugs valued at $900, and a $400 microwave oven). (Bogs Defs.' Statement of Facts ¶ 71.)
I. The Credit Report and the Private Investigator
On October 2, 1997, without Plaintiff's permission, BMI made an inquiry to Trans Union Credit Reporting Agency and obtained a copy of Plaintiff's credit report. (Plaintiff's Statement of Facts ¶ 41; Bogs Defs.' Statement of Facts ¶ 82.) The record does not indicate whether BMI stated a purpose for its request. Defendant Bogs claims that it is the policy of BMI to require a credit check for every individual over 18 years of age who resides in the Apartment Complex. (Bogs Defs.' Statement of Facts ¶ 80; Affidavit of Robert Bogs ¶ 33.) Plaintiff admits that he did not incur any damage as a result of BMI's procurement of the credit report. (Bogs Defs.' Statement of Facts ¶ 85; Plaintiff's Response to Bogs Defs.' Statement of Facts ¶ 85.)
On May 11, 1998, Phyllis Bogs contacted a private investigator to check into the background of Plaintiff and, according to Plaintiff, sent this investigator the personal papers Robert Bogs allegedly stole from Plaintiff on October 1, 1997. (Plaintiff's Statement of Facts ¶ 50.) Along with materials sent to this investigator, Phyllis Bogs allegedly included a handwritten note stating "All of these documents were left in the apartment by the Sheriff's Department when they moved Washington's possessions out 10-1-97." (Exhibit 3K to Plaintiff's Statement of Facts.) A letter from the private investigator to Phyllis Bogs dated May 14, 1998 confirms his receipt of "three envelopes containing copies of court complaints, canceled checks and other data relative to this investigation and a check in the amount of $500.00 as a retainer in this case." (Exhibit 3B-J to Plaintiff's Statement of Facts.) The letter listed a number of specific documents which included: a copy of a lease agreement between Plaintiff, St. Julien and Wellington Arms Apartment Rentals; a copy of a letter from the law firm of Edelstein Edelstein to Plaintiff and St. Julien; and, an Illinois Department of Public Aid/Illinois Department of Revenue Informal Notice, dated 11/27/95. (Plaintiff's Reply to the Bogs Defs.' Statement of Facts ¶ 76.)
While the list of documents did not include Plaintiff's credit report, he hypothesizes that the report may nonetheless have been sent to the private investigator. (Plaintiff's Response to Bogs Defs.' Statement of Facts ¶ 83.) Plaintiff contends that he is unable to know one way or the other at this time because the Bogs Defendants first produced evidence concerning their contacts with the private investigator after discovery had closed. (Plaintiff's Response to Bogs Defs.' Statement of Facts ¶ 84.)
J. The Contempt Charge and the Disposition of the Criminal Trespass Charge
On November 7, 1997, an agreed order was entered by Judge John Sorrentino in Plaintiff's criminal trespass case. (Bogs Defs.' Statement of Facts ¶ 88.) The order provided that the matter would be dismissed if Plaintiff had no contact with either Phyllis Bogs or Robert Bogs — except during legal proceedings — from November 7, 1997 until June 10, 1998. ( Id.) On or about December 20, 1997, however, Plaintiff violated that order by sending a letter to both Phyllis and Robert Bogs stating that he would file a lawsuit against them and BMI. (Bogs Defs.' Statement of Facts ¶ 89.) As a result f this letter, the State's Attorney filed a Petition for Rule to Show Cause Why Defendant Should Not Be Held in Contempt. (Bogs Defs.' Statement of Facts ¶ 90.) The judge considered the order breached and consequently denied Plaintiff's motion to dismiss the trespass charge. (Bogs Defs.' Statement of Facts ¶ 91.) On May 4, 1998, the court found Plaintiff "not-guilty" of criminal trespass. (Bogs Defs.' Statement of Facts ¶ 92.) The judge stated that he felt that the individuals involved should have resolved their differences through the civil process. (Bogs Defs.' Statement of Facts ¶ 92.)
K. Plaintiff's Alleged Emotional Distress
Plaintiff asserts that, as a result of his August 19 arrest, he has suffered great humiliation, continues to suffer mental strain and anguish, and has been unable to work and earn an adequate living. (Plaintiff's Statement of Material Facts ¶ 66.) After his arrest, Plaintiff did work one day, at the Sunny Rehab Center, but was terminated when he missed his second day on the job to attend to "an important legal matter." In his deposition, Plaintiff stated that the present litigation is his job. (Wright Dep. at 45-46.)
With respect to his physical/mental condition, Plaintiff first sought medical attention on October 14, 1997. His doctor, Dr. Fallah, noted "some feature [sic] of chronic alcoholism," and prescribed Pepcid for stomach problems that Plaintiff had been struggling with since the 1980s. (Exhibit 13 (Plaintiff's medical records) to Plaintiff's Statement of Material Facts.) Plaintiff returned to Dr. Fallah on October 27. ( Id.) Dr. Fallah noted that Plaintiff was "much better. . . . He has stopped drinking, but is severely depressed" ( Id.) Dr. Fallah placed Plaintiff on Paxil. ( Id.) Plaintiff stopped using the Paxil after only 10 pills. (Wright Dep. at 738-39.) As of December 14, 1999, Plaintiff had not returned to Dr. Fallah. ( Id. at 734-35.)
L. Procedural History
On May 6, 1998, two days following his acquittal on the criminal trespass charge, Plaintiff filed a six count complaint against the Village and the Bogs Defendants. Plaintiff claimed that: (1) all Defendants violated his civil rights by falsely arresting him (Count I) (such claim brought pursuant to 42 U.S.C. § 1983); (2) the Bogs Defendants falsely arrested and/or imprisoned him in violation of state law (Count II); (3) the Bogs Defendants maliciously prosecuted him for contempt of court (Count III); (4) the Bogs Defendants illegally locked him out (Count IV); (5) the Bogs Defendants intentionally inflicted emotional distress upon him (Count V); and (6) BMI violated the Fair Credit Reporting Act when it requested his credit report without a permissible purpose (Count VI).
Both the Village and the Bogs Defendants moved to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Wright v. Bogs, No. 98 C 2788, 1999 WL 688775 (N.D. Ill. Mar. 31, 1999) (" Wright I"). Judge Ann Williams denied the Village's motion because she believed that Wright had pleaded facts sufficient to show that the Village had a policy which deprived him of his constitutional rights. Next, Judge Williams denied the Bogs Defendants' motion with respect to Plaintiff's claims of a § 1983 conspiracy with the Village (Count I), false arrest (Count II), and intentional infliction of emotional distress (Count V) because she found that Plaintiff had pleaded sufficient facts to show that Plaintiff's arrest was ordered by Phyllis Bogs, as without probable cause, was extreme and outrageous, and caused Plaintiff severe emotional distress. Judge Williams also denied BMI's motion to dismiss Plaintiff's FCRA claim (Count VI) because she found that Plaintiff had pleaded sufficient facts to demonstrate that BMI obtained his report for an impermissible purpose. Judge Williams did, however, grant the Bogs Defendants' motion to dismiss Plaintiff's malicious prosecution claim (Count III) with prejudice, and his illegal lockout claim (Count IV) without prejudice. Plaintiff has since amended Count IV, claiming constructive eviction and conversion.
Judge Williams granted Robert Bogs' motion to dismiss Count I because "Wright merely ma[de] a bare allegation, unsupported by facts, that Robert Bogs conspired with the Lansing Police Department." Wright I, 1999 WL 688775, at *6 n. 4.
Now before the court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, are (1) Plaintiff's motion for summary judgment against all applicable Defendants on Counts I, II, IV, and VI (Plaintiff does not seek summary judgment on his claim for intentional infliction of emotional distress (Count V)); (2) the Village's motion for summary judgment on Count I; (3) Phyllis Bogs' motion for summary judgment on Counts I, II, IV, and V; (4) Robert Bogs' motion for summary judgment on Counts II, IV, and V; and (5) BMI's motion for summary judgment on Counts I, II, IV, V, and VI.
DISCUSSION
I. Summary Judgment Standard
A motion for summary judgment should be granted where the record shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 377 (7th Cir. 1995). In opposing such a motion, a party may not merely rest upon the allegations and denials in the pleadings, but must produce affirmative evidence raising a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). In considering a summary judgment motion, the court accepts as true the facts set forth by the non-movant, and draws all justifiable inferences in that party's favor Anderson, 477 U.S. at 248. The court is not required, however, to "draw every conceivable inference from the record — only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) (citations omitted). When considering cross motions for summary judgment, as the court is in the present case, the court considers the motions simultaneously, "extend[ing] to each party the benefit of any factual doubt when considering the other's motion." See Buttitta v. City of Chicago, 803 F. Supp. 213, 217 (N.D. Ill. 1992), aff'd, 9 F.3d 1198 (7th Cir. 1993). This "Janus-like perspective sometimes forces the denial of both motions," but only where there are material facts in dispute. See id.
II. The Village
Plaintiff, under 42 U.S.C. § 1983, contends that the Village violated his rights under the Fourth and Fourteenth Amendments by wrongfully arresting and/or imprisoning him for criminal trespass to real property. The Village, as previously noted, is a municipal corporation. Before a municipality such as the Village can be liable under § 1983, a plaintiff must show that (1) the municipality has an express policy, that when enforced, causes a constitutional deprivation; (2) the municipality has a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; or (3) the constitutional injury in question was caused by a person with final policymaking authority. See Monell v. Department of Soc. Svcs., 436 U.S. 658, 690 (1978); Roach v. City of Evansville, 111 F.3d 544, 548 (7th Cir. 1997).
Plaintiff originally framed his § 1983 argument against the Village under the "custom or usage" theory — the second prong of the Monell standard. See Wright I, 1999 WL 688775, at *5 n. 2. He alleged that it was the custom or practice of the Village to unhesitatingly defer to the demands of the Bogs Defendants. A single instance of unconstitutional conduct, however, is not sufficient to impose liability under the "customor usage" theory. See Roach, 111 F.3d at 548. See also Tabor v. City of Chicago, 10 F. Supp.2d 988, 993 (N.D. Ill. 1998) ("To state a claim under a custom or usage theory, the plaintiff must allege an unconstitutional pattern of conduct, including incidents other than those in the plaintiff's own case giving rise to an inference that an unconstitutional custom, policy, or practice must exist."). Judge Williams thus rejected Plaintiff's argument because he had only alleged one instance of unconstitutional conduct — his August 19, 1997 arrest. See Wright I, 1999 WL 688775, at *5 n. 2 ("[I]t does not appear from the facts contained in the complaint that Wright can show that the Lansing Police Department made it a widespread practice to violate individuals' civil rights in deference to the Bogs Defendants."). Notwithstanding her rejection of Plaintiff's "custom or usage" argument, Judge Williams, sua sponte, raised an "express policy" argument on Plaintiff's behalf, see id., and ultimately held that "a liberal reading of Wright's complaint reveals that Wright has alleged sufficient facts to charge the Village with enforcing an express policy that was the proximate cause of his injury." See id. at *4 Judge Williams based this decision primarily on the comments allegedly made to Plaintiff by Village police officers.
Following this lead, Plaintiff now contends that the Village deprived him of his constitutional rights by falsely arresting him pursuant to its "express policy" of deferring to the Bogs Defendants. In Monell, the Court differentiated between an express (or official) policy and a custom:
Because Plaintiff has not argued that "the constitutional injury in question was caused by a person with final policy making authority," the court does not address this third prong of the Monell standard.
Local governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, 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. Moreover, although the touchstone o the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels.Monell, 436 U.S. at 690-91. In the rare cases where a plaintiff proceeds on an "express policy" theory, the defendant will often concede the existence of the "officially adopted and promulgated" policy, and then dispute its allegedly unconstitutional effect(s). Plaintiff has not cited to one case wherein an "express policy" was proven solely on the basis of isolated comments by municipal officials, and the court, upon its own search, has not found one.
Presumably, Judge Williams considered the police officers' alleged comments to be extreme, and expected Plaintiff to gather concrete evidence of an "express policy" through discovery. He has not done so. In fact, in his briefs, Plaintiff merely quotes the language of Judge Williams' decision, perhaps unaware that he is now faced with a more difficult evidentiary burden. The record is therefore silent as to any policy statement, ordinance, regulation, or decision officially adopted and promulgated by the Village instructing its officers to defer to or conspire with the Bogs Defendants. As a matter of fact, the record demonstrates that Village officers do not accede to the Bogs Defendants' every demand. For example, when Phyllis Bogs asked the LPD to have Plaintiff arrested for allegedly assaulting her on July 24, Officer Glinski reasonably determined that Plaintiff's comments did not rise to the level of an assault and, therefore, refused to arrest him. More notably, the record indicates that Plaintiff is the only individual to have been arrested by the Village at the request of the Bogs Defendants. Without evidence beyond the officers' alleged comments, Plaintiff's "express policy" argument must fail. Consequently, the court grants the Village's motion for summary judgment.
The court has concerns about the Village's responses to Plaintiff's discovery requests, see supra note 5; but, without even a thread of evidence of another similar instance, the court feels comfortable accepting this fact as true.
III. The Bogs Defendants
A. Section 1983
The court first addresses Plaintiff's § 1983 claim against the Bogs Defendants. To state a § 1983 claim against a private entity, a plaintiff must demonstrate that such entity jointly participated with a public official in the deprivation of his constitutional rights. See Fries Helsper, 146 F.3d 452, 457 (7th Cir. 1998). This can be the case even where, as here, there was no "express policy" on the part of the Village supporting the state officials' alleged conduct. Plaintiff claims that, during the period from July 24, 1997 up to and including the date of his arrest, August 19, 1997, the Bogs Defendants jointly participated with LPD officers to unconstitutionally deprive him of his Fourth and Fourteenth Amendment rights. The court finds that no such "joint participation" existed, and that, even though the police officers may have misapplied Illinois law, Plaintiff's constitutional rights were not violated.
1. Joint Participation
To establish the existence of joint participation, or conspiracy, for purposes of a § 1983 claim, a plaintiff must show that: (1) a state official (in this case, one or more of the LPD officers) and private party (in this case, Phyllis Bogs an BMI) reached an understanding to deprive the plaintiff of his constitutional rights; and ) the private party was a willful participant in the joint activity. See Fries, 146 F.3d a 457. Such a conspiracy may be demonstrated by circumstantial evidence. See Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir. 1985).
In cases such as this, however, where the plaintiff alleges an arrangement under which the police would arrest anyone the defendant wanted arrested, the Seventh Circuit has warned that "a party may not cry `conspiracy' and throw himself on the jury's mercy." Gramenos v. Jewel Cos., 797 F.2d 432, 436 (7th Cir. 1986) (rejecting the presence of an alleged conspiracy under which the police would arrest anyone who the defendant supermarket chain wanted arrested). See also Moore, 754 F.2d at 1352 (rejecting the presence of an alleged conspiracy under which the sheriff would, without probable cause, arrest any person "fingered" by defendant restaurant owner). With this caveat in mind, the court evaluates Plaintiff's argument. The Bogs Defendants (or at least Phyllis Bogs) were undoubtedly willful participants in Plaintiff's August 19 arrest. In fact, it is undisputed that Phyllis Bogs actually demanded that Plaintiff be arrested. The second element of the Fries standard is thus easily satisfied. The more difficult issue is whether Plaintiff has provided enough evidence to reach a jury on the first element of Fries — the understanding or "meeting of the minds," see Kunik v. Racine County, 946 F.2d 1574, 1579 (7th Cir. 1991). As with his "express policy" argument, the primary pieces of evidence upon which Plaintiff relies are the alleged comments by the Village officers. In order to buttress this evidence, Plaintiff hints at a surreptitious back-and-forth between the Village and the Bogs Defendants during the period from July 24 to August 19. The court finds that no such back-and-forth occurred.
On July 24, 1997, Officers Glinski and Henry were called to the Apartment by Plaintiff When the officers arrived, Phyllis Bogs demanded that they arrest Plaintiff for assault. The officers refused. When Phyllis Bogs then asked that Plaintiff be arrested for failure to pay his rent, Officer Glinski, who was not shown a Lease or application, told Phyllis Bogs to "continue the civil process." There is no evidence of any further contact between the Bogs Defendants and the LPD until August 15, when Plaintff contacted the LPD about the Barred Persons Notice posted on his door. Officers Glinski and Kuehn, who responded to the call, were apparently unaware of the Barred Persons Notice until they questioned Robert Bogs about it. Robert Bogs showed these officers the Lease and the application. Again, the officers did not immediately arrest Plaintiff; instead, they gave him the weekend to remove his possessions. The next contact between the LPD and the Bogs Defendants was on August 19, when Phyllis Bogs called to have Plaintiff arrested. Officers Weeden and Hastings, who had absolutely no prior involvement with the matter, arrived at the Apartment Complex, but, even after reviewing the Lease and the August 15 police report, refused to automatically arrest Plaintiff. They offered Plaintiff an opportunity to remove his possessions, and only arrested him after he turned down this option. Plaintiff is yet again left with only the alleged comments of the Village officers. Unfortunately, courts have found that, "on summary judgment, bare allegations that a defendant made certain statements, without any other proof of a conspiracy, is insufficient to sustain a conspiracy claim." Nelson v. Vastine, No. 89 C 5358, 1991 WL 78180, at *2 (N.D. Ill. May 6, 1991) (citing Moore, 754 F.2d at 1352.)
Based on these facts, the court finds that the Bogs Defendants were not acting under the color of state law, and therefore are entitled to summary judgment on Plaintiff's § 1983 claim.
2. Deprivation of Constitutional Rights
While the absence of a "conspiracy" ends the practical inquiry, the court will nevertheless complete the § 1983 analysis. The Bogs Defendants argue that another reason Plaintiff's § 1983 claim for unlawful arrest cannot survive summary judgment is that he has not sufficiently established the absence of probable cause, a essential predicate to any § 1983 claim for unlawful arrest or imprisonment. See Kelly v. Myler, 149 F.3d 641, 645 (7th Cir. 1998). According to Seventh Circuit law, a police officer is considered to have probable cause to arrest when "the facts and circumstances within [his or her] knowledge and of which [he or she] has reasonably trustworthy information are sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense." Id. in order to properly evaluate the reasonableness of Officers Weeden's and Hastings' decision to arrest Plaintiff on August 19, though, the court must digress or a moment and discuss the interrelationship that has developed between Illinois' criminal trespass to real property statute and its Forcible Entry and Detainer Act.
Under the Illinois criminal trespass to real property statute, a person commits a Class B misdemeanor if he or she "enters upon the land of another, after receiving, prior to such entry, notice from the owner or occupant that such entry is forbidden. . . ." 720 ILCS § 5/21-3(a). A person is considered to have received notice from the owner or occupant "if a printed or written notice forbidding such entry has been conspicuously posted or exhibited at the main entrance to such land or the forbidden part thereof." 720 ILCS § 5/21-3(b). The statute, however, contains the following, critical exception: "This section does not apply to any person . . . living on such land at the request of, or by occupancy, leasing or other agreement or arrangement with the owner or his agent, nor anyone invited by such person so living on such land to visit him at the place he is so living upon the land." 720 ILCS 5/21-3(c). Under this section, then, neither a tenant nor his invited guest may be charged as a trespasser.
Indeed, it is "well-settled that a landlord cannot use the criminal trespass statute to settle a dispute over the right of possession of land." City of Quincy v. Daniels, 246 Ill. App.3d 792, 796, 615 N.E.2d 839, 843 (4th Dist. 1993). Such disputes are to be governed exclusively by the Illinois Forcible Entry and Detainer Act. See 735 ILCS 5/9-10. See also Gordon v. Degelmann, 29 F.3d 295, 297 (7th Cir. 1994) ("[I]n Illinois a person residing in a dwelling under a claim of right is entitled to the judicial hearing afforded by the forcible entry and detainer statute before he may be removed as a trespasser."); City of Quincy, 246 Ill. App. 3 d at 796, 615 N.E.2D at 843 (same); People v. Evans, 163 Ill. App.3d 561, 564, 516 N.E.2d 817, 819 (1st Dist. 1987) (" Evans I") (same); People v. Rynberk, 92 Ill. App.3d 112, 115, 415 N.E.2d 1087, 1090 (1st Dist. 1980) ("[W]e note that Keeling was on defendant's property at the express invitation of a tenant on the property and therefore cannot be deemed a trespasser as a matter of law even if defendant misapprehended that an invitee of a lessee could be guilty of a trespass.").
The related rulings in Evans I, Evans v. West, No 88 C 0222, 1989 WL 81933 (N.D. Ill. July 12, 1989) (" Evans II"), Evans v. Meyers, No. 88 C 0222, 1990 WL 43395 (N.D. Ill. Mar. 29, 1990) (" Evans III"), and Evans v. West, 935 F.2d 922 (7th Cir. 1991) (" Evans IV") provide an example of how the relationship between the statutes as played itself out in Illinois and federal courts. Evans responded to a newspaper advertisement placed by West and decided to rent one of the bedrooms in West's condominium. See Evans IV, 935 F.2d at 923. She tendered a security deposit to West and moved in, but the refused to sign a lease. Id. After Evans broke her promise to move out, West called the police, who demanded that she leave the premises and, when she refused, arrested her for criminal trespass. Id.
The First District Appellate Court overturned t e conviction, noting that "the forcible entry and detainer statute provided the sole means for settling the dispute." Id. (citing Evans I, 163 Ill. App.3d at 564, 516 N.E.2d at 819.) Evans then brought § 1983 claims in federal court against West and the police officers (but t the municipality). The court granted summary judgment to Evans on her claims against the police officers based almost entirely on the fact that they had arrested her for an offense with which she could not be properly charged. See Evans III, 1990 WL 43395, at *3 ("A of the time of plaintiff's arrest, the law was clearly established that, where a person has take possession of property with the owner's consent, use of the criminal trespass statute against that person is improper.").
The law changed slightly in 1994 when the Supreme Court of Illinois decided Williams v. Nagel, 162 Ill.2d 542, 643 N.E.2d 816 (1994). In Williams, the plaintiffs, friends and family members of tenants, were barred from visiting an apartment complex under a lease provision practically identical to the one in the present case. The plaintiffs nonetheless entered the property and were arrested under Illinois' criminal trespass statute. They later brought suit against the landlord, claiming that, under § 21-3(c), they had a statutory right to enter the apartment complex as "invited guests," and be free from arrest. The Williams court disagreed and held:
[T]he plaintiffs had been barred from the premises by management. As a result, any attempt by tenants to invite the plaintiffs onto the premises would be invalid. Therefore, since a valid invitation was never extended to the plaintiffs, they do not fall within the scope of the exception set forth in section 21-3(c). Accordingly, we reject the plaintiffs' argument that the management . . . violated their statutory rights under section 21-3(c) to enter the property.Williams, 162 Ill. 2d at 556, 643 N.E.2d at 822. No court — either federal or Illinois — has since explained the boundaries of or distinguished this holding.
The Bogs Defendants claim that, according to Williams, the police officers correctly applied Illinois law. The court is less certain. Plaintiff was in fact residing at the Apartment. In other words, Plaintiff can claim status as "a person residing in a dwelling under a claim of right," see Gordon, 29 F.3d at 297, as opposed to a mere "invited guest." As such, Williams does not control this case. See Williams v. Nagel, 251 Ill. App.3d 176, 180, 620 N.E.2d 1376, 1379 (4th Dist. 1993) ("These cases are distinguishable. In Flanagan, defendant was asked to leave by his mother because of a fight over money, but e could not be prosecuted because he resided at that house. This case offers no support to Plaintiff's because they do not reside in the complex."), aff'd Williams v. Nagel, 162 Ill.2d 542 643 N.E.2d 816 (1994). This is so even if there was no promise by Robert Bogs to allow Plaintiff to reside in the Apartment.
Case law suggests that the principles set forth in the Evans rulings have survived Williams. See e.g., White v. City of Markham, No. 99 C 3162, 1999 WL 1044835, at *3 n. 5 (N.D. Ill. Nov. 16, 1999) ("[T]he unlawful nature of the ouster under state law may raise Fourth Amendment concerns. In Illinois, self-help is not an appropriate method of eviction." ) (citing Evans I, 163 Ill. App.3d at 564, 516 N.E.2d at 819).
In fact, any such promise might be unenforceable. In Illinois, a lease is a contract, see Kimball Hill Mgmt. Co. v. Roper, 314 Ill. App. d 975, 980, 733 N.E.2d 458, 462 (2d Dist. 2000), and "a modification of an existing contract, like a newly formed contract, requires consideration to be valid and enforceable," Doyle v Holy Cross Hosp., 186 Ill.2d 104, 111, 708 N.E.2d 1140, 1145 (1999). Plaintiff has provided no evidence of any separate consideration to support a modification of the Lease. Washington did not agree that additional rent would be paid. And, while Plaintiff has not offered such a justification, Illinois law does not allow a third-party beneficiary, such s Plaintiff, to claim promissory estoppel as a substitute for consideration. See Bolden v. General Accident, Fire Life Assurance Corp., 119 Ill. App.3d 263, 456 N.E.2d 306 (1st Dist. 1983).
Even assuming a charge of criminal trespass was i proper, however, there is no basis for finding a constitutional deprivation here. See Schlessinger v. Salimes, 100 F.3d 519, 522-23 (7th Cir. 1996) ("[A] suit under § 1983 is not the right w to test the meaning of state law, as if the police violate the fourth amendment every time hey err in interpreting a statute. Misapplication of state law does not violate the Constutution."). Officers Weeden and Hastings received a complaint from Phyllis Bogs that Plaintiff was trespassing on her property. They verified that she was the owner of the property. They viewed the Lease and application for the Apartment and saw that Plaintiff's name was not listed. They also viewed the August 15 police report which evidenced Plaintiff's knowledge of the Barred Persons Notice and agreement to vacate by August 18. Under similar circumstances, the Gordon court found no constitutional violation to have occurred. Gordon, 29 F.3d at 299-301. In Gordon, after the relationship between plaintiff and his girlfriend collapsed, she asked him to leave her home, where both of them had been living. Id. at 297. When he refused, she called the police, who arrested plaintiff because he had no evidence of his interest in the home. Id. In Gordon's subsequent § 1983 action for false arrest, the Seventh Circuit acknowledged that the arresting officer had effectively violated the Forcible Entry and Detainer Act, but concluded this violation did not mean that he "transgressed against the Constitution of the United States." Id. at 300. In the words of the Gordon court, "because [the police officer] followed the procedures that the Constitution prescribes for making arrests, his failure to afford Gordon additional procedures established by state law [the Forcible Entry and Detainer Act] does not matter — not, at least, to a claim under the fourth amendment and § 1983. . . ." Id. at 301. To the extent that Gordon is inconsistent with the district court's ruling in Evans III, this court is guided by the Seventh Circuit.
B. Fair Credit Reporting Act
Plaintiff's only other federal law claim is brought under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq. Plaintiff has claimed that BMI obtained a copy of his credit report from Trans Union Credit Reporting Agency willfully, or at the very least, negligently, in violation of the FCRA. The FCRA is a consumer protection statute which requires consumer reporting agencies to "adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information." 15 U.S.C. § 1681b. While the FCRA primarily regulates the behavior of consumer reporting agencies, it also extends to cover the conduct of users who request credit information. See Pappas v. Calumet City, 9 F. Supp.2d 943, 946 (N.D. Ill. 1998). Consumers may, under the FCRA, maintain a civil action against any users who either willfully or negligently fail to comply with FCRA requirements. See 15 U.S.C. § 1681n, 1681o.
Civil liability for users of information under § 1681n and 1681o often turns on two inquiries: (1) whether the user obtained the credit report for one of the "permissible purposes" enumerated in § 1681b; and (2) whether the user accessed the consumer information under "false pretenses." The two inquiries actually overlap so that if a user is found to have obtained a consumer report under false pretenses, the user did not have a permissible purpose for procuring the report. Similarly, if a user obtained a consumer report for a permissible purpose, that user could not have obtained the report under false pretenses. See Pappas, 9 F. Supp. 2d at 949 n. 3. The issue of whether a report has been obtained for a permissible purpose presents a question of law that may be decided in the context of a motion for summary judgment. See Edge v. Professional Claims Bureau, Inc., 64 F. Supp.2d 115, 117 (E.D.N.Y. 1999).
The fact that BMI obtained a credit report regarding Plaintiff is undisputed. The only question then is whether the purpose for which it requested the report was permissible. On June 5, 1997, Plaintiff attempted to make a rental payment to BMI with a bad check, and BMI has never recovered the amount. Plaintiff had been living in the Apartment since November 5, 1996. BMI contends that its intent to collect on Plaintiff's outstanding debt is a permissible purpose for requesting the report under § 1681b. According to § 1681b, one permissible purpose for the release of a consumer credit report is release to a person "who intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer." 15 U.S.C. § 1681b(a)(3)(A). The Federal Trade Commission's Statements of General Policy or Interpretations Under the Fair Credit Reporting Act provide various examples of situations within the scope of the § 1681b(a)(3)(A) permissible purpose. In fact, the court finds the following example to be quite germane to the issue at hand:
The Statements of General Policy or Interpretations Under the Fair Credit Reporting Act, Subchapter F, 16 C.F.R. Part 600, App., do not constitute trade regulation rules or regulations. 16 C.F.R. § 600.2(a). Nonetheless, courts have relied on them for authority. See, e.g., Ali v. Vikar Mgmt. Ltd., 994 F. Supp. 492, 499 n. 7 (S.D.N.Y. 1998).
A party attempting to recover the amount due on a bad check is attempting to collect a debt and, therefore, has a permissible purpose to obtain a consumer report on the consumer who wrote it, and on any other consumer who is liable for the amount of that check under applicable state law.
16 C.F.R. Pt. 600, App. Moreover, while the Seventh Circuit has not yet been presented with this question on FCRA grounds, it has determined that a dishonored check creates a "debt" for purposes of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. See Bass v. Stolper, Koritzinsky, Brewster Neider, S.C., 111 F.3d 1322 (7th Cir. 1997). Other circuits have held the same. See Snow v. Jesse L. Riddle, P.C., 143 F.3d 1350, 1353 (10th Cir. 1998); Brown v. Budget Rent-A-Car Sys., Inc., 119 F.2d 922, 924-25 (11th Cir. 1997). See also Romea v. Heiberger Assocs., 163 F.3d 111, 115 (2d Cir. 1998) (holding that back rent, like a bad check, is a debt under the FDCPA). The FDCPA, like FCRA, is a consumer protection statute. In fact, the two acts are subchapters found under the same chapter of the United States Code: The Consumer Protection Act. See Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182, 186 (D. Del. 1991) ("Both [the FCRA] and [the FDPCA] are schematically very similar and designed not to overly burden credit reporting or debt collection practices."). Based on the language of FCRA, the FTC's guidance, and the Seventh Circuit's interpretation of "debt" in one of the FCRA's sister statutes, the court finds BMI's intent to use the information from the credit report in order to recover the amount due on Plaintiff's bounced check to be a permissible purpose. Cf Allen v. Kirkland Ellis, No. 91 C 8271, 1992 WL 206285, at *2 (N.D. Ill. Aug. 17, 1992) (holding that under the FCRA, preparation for litigation to collect a business debt constitutes a permissible purpose for obtaining a credit report); Baker v. Bronx-Westchester Investigations, 850 F. Supp. 260, 262 (S.D.N.Y. 1994) (a judgment creditor and private investigators working on her behalf had a permissible purpose to obtain a credit report on a judgment debtor because collection of her judgment constituted a "collection of an account" under FCRA § 1681b(a)(3)(A)).
Plaintiff contends that, in order to succeed on such an argument, BMI must concede that Plaintiff was its tenant. Even though the court has found that Plaintiff was residing in the Apartment without an express contractual right to do so, he was still, in effect, accruing indebtedness to BMI from the period of November 5 to August 19. In Illinois, an owner of land has a right to rent "when lands are held and occupied by any person [even] without any special agreement for rent." 735 ILCS 5/9-201. See also Brown v. Veile, 254 Ill. App.3d 575, 626 N.E.2d 395 (5th Dist. 1994). The court rejects Plaintiff's argument and therefore grants BMI's motion for summary judgment.
CONCLUSION
For the reasons explained above, Defendants' motions to strike [Docs. 161-1, 181-1 and 181-2] are denied. Plaintiff's motion for sanctions [Doc. 177-1] is granted. Plaintiff's motion for summary judgment on Counts I and VI [Doc. 148-1] is denied. Defendant Village's motion for summary judgment on Count I [Doc. 128-1] is granted. Defendant Phyllis Bogs' motion for summary judgment on Count I and Defendant BMI's motion for summary judgment on Counts I and VI [Doc. 141-1] are granted. Because judgment is entered against Plaintiff on his federal claims, this court no longer has jurisdiction over the pendent state law claims. See Maguire v. Marquette Univ., 814 F.2d 1213, 1218 (7th Cir. 1987). Consequently, Counts II, IV and V are dismissed without prejudice for lack of subject matter jurisdiction.