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Kinkus v. Village of Yorkville

September 28, 2006

ROBERT KINKUS, PLAINTIFF,
v.
THE VILLAGE OF YORKVILLE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Algenon L. Marbley

Magistrate Judge King

ORDER AND OPINION

I. INTRODUCTION

This matter comes before the Court on Plaintiff Robert Kinkus' Motion for Partial Summary Judgment against Defendant Officer James Popp.*fn1 For the reasons stated herein, the Court GRANTS Plaintiff's Motion for Partial Summary Judgment against Defendant Popp.

II. BACKGROUND

A. Facts

On September 18, 2004, weather conditions caused a flood in Yorkville, Ohio.*fn2 Because of the rising floodwaters, many of Yorkville's streets were closed to traffic, including Ohio Route 7, the major street running through the Ohio River Valley.

On the day of the flood in Yorkville, Ohio, Officer James Popp (hereafter, "Officer Popp" or "Popp"), a police officer with the Yorkville Police Department, was patrolling the low-lying south side area of Yorkville when he encountered Jim Bailey ("Bailey"), a fireman with the Yorkville Fire Department. During a conversation between Officer Popp and Bailey, a woman approached them and requested that they remove some barricades that were blocking Fayette Street so that she could move her vehicle. Popp and Bailey agreed to move the barricades from Fayette Street temporarily for the woman.

After they moved the barricades from Fayette Street, Officer Popp and Bailey observed a white jeep (hereafter, the "Jeep") pull into the area that was formerly blocked off, and they saw the Jeep park in the middle of Fayette Street. Unaware of who was driving the Jeep, Officer Popp and Bailey walked toward it to determine why the driver had parked in that area. When they approached the Jeep, Popp and Bailey identified the driver as Plaintiff, who is a member of the Yorkville Village Council and the assistant fire chief for the Yorkville Fire Department. The Jeep was parked in the middle of the Street in front of Plaintiff's residence. Officer Popp and Plaintiff conversed about why the Jeep was parked in the middle of the Street.*fn3 Plaintiff did not move the Jeep from the middle of the Street after his conversation with Officer Popp, and Popp and Bailey eventually left the area. Officer Popp did not file any charges against Plaintiff on September 18, 2004.

After discussing this incident with other officers in the Yorkville Police Department, Officer Popp filed a criminal complaint against Plaintiff on October 21, 2004 (the "Criminal Complaint"), which accused Plaintiff of committing disorderly conduct on September 18, 2004. Plaintiff was not arrested or jailed as a result of the Criminal Complaint; rather, Plaintiff simply was presented with a criminal summons. After a short bench trial in state court, Plaintiff was acquitted of disorderly conduct on December 30, 2004.

B. Procedural History

On October 11, 2005, Plaintiff filed a complaint in federal court against the Village of Yorkville, Ohio, Yorkville Police Chief Gary Anderson, and Officer Popp (collectively, "Defendants"). Plaintiff's complaint alleges that Defendants are liable to him under three separate legal bases: (1) that Defendants' acts "constitute violations of the rights of Mr. Kinkus guaranteed by 42 U.S.C. § 1983, and the First, Fourth, and Fourteenth Amendments to the United States Constitution"; (2) that Defendants' acts "constituted an unlawful civil conspiracy to violate [Plaintiff's] rights"; and (3) that Defendants' acts "were proximately caused by certain customs and policies engaged in by Defendant Village of Yorkville, including but not limited to a failure to adequately train, supervise, and discipline officers regarding the constitutional rights of citizens; and the ratification and approval of retaliatory prosecutions to silence critics." Pl.'s Compl. at 5. Plaintiff seeks from Defendants an award of compensatory and punitive damages, reasonable attorney fees, and court costs.

On January 10, 2006, Plaintiff filed a Motion for Partial Summary Judgment on its claims against Officer Popp ("Plaintiff's Motion"). In particular, Plaintiff argues that Popp filed a charge of disorderly conduct against him which lacked probable cause and violated his First Amendment rights. Popp initially responded timely to Plaintiff's Motion on February 3, 2006, and Plaintiff replied on February 14, 2006. On April 20, 2006, Defendants noticed the Court that they had substituted their trial counsel. After retaining new counsel, Officer Popp supplemented his response to Plaintiff's Motion on ...


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