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Kinkus v. Village of Yorkville

February 14, 2007

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

OPINION AND ORDER

I. INTRODUCTION

This matter is before the Court on Defendant James Popp's ("Officer Popp") Motion for Reconsideration of this Court's Order and Opinion dated September 28, 2006. In that order, this Court granted partial summary judgment in favor of Plaintiff Robert Kinkus ("Kinkus") and against Officer Popp on Count I, after finding that there are no genuine issues of material fact regarding whether Officer Popp is liable under 42 U.S.C. § 1983 for violating Plaintiff's Fourth and First Amendment rights. For the reasons stated herein, Officer Popp's Motion for Reconsideration is DENIED.

II. BACKGROUND

A. FACTS

On September 18, 2004, weather conditions caused a flood in Yorkville, Ohio.*fn1 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, Officer James 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, Officer Popp and Bailey observed a white jeep (hereinafter, the "Jeep") pull into the area that was formerly blocked off, and they saw the Jeep park in the middle of Fayette Street. Officer Popp and Bailey walked toward it to determine why the driver had parked in that area. When they approached the Jeep, Officer Popp and Bailey identified the driver as Plaintiff, who was, at the time of the incident, 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. Plaintiff did not move the Jeep from the middle of the Street after his conversation with Officer Popp, and Officer Popp and Bailey eventually left the area. Officer Popp did not file any charges against Plaintiff on the day of the incident.

After discussing this incident with Police Chief Gary Anderson ("Chief Anderson") and 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 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, Chief Anderson, and Officer Popp (collectively, "Defendants"). Plaintiff's complaint alleges that Defendants are liable to him on three separate legal bases: (1) 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) Defendants' acts "constituted an unlawful civil conspiracy to violate [Plaintiff's] rights"; and (3) 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 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. Specifically, Plaintiff moved for Summary Judgment against Officer Popp on two of the three 42 U.S.C. § 1983 claims in Count I. The Court granted summary judgment in favor of Plaintiff on these two claims. The Parties Cross-Motions for Summary Judgment on Plaintiff's 42 U.S.C. § 1983 retaliation claim against Officer Popp and Police Chief Anderson, conspiracy claim against Officer Popp and Police Chief Anderson, and Monell claim against the City of Yorkville are still pending before this Court. In this matter, Officer Popp moves this Court to reconsider its grant of ...


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