Charise Pepper v. VILLAGE OF OAK PARK and LEONARD DONAIRE

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3948
C HARISE P EPPER ,
Plaintiff-Appellant,
v.
V ILLAGE OF O AK P ARK and
L EONARD D ONAIRE ,
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.
____________
A RGUED S EPTEMBER 20, 2005—D ECIDED N OVEMBER 30, 2005
____________
Before C UDAHY , K ANNE , and R OVNER , Circuit Judges.
K ANNE , 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.

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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

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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.

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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

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No. 04-3948 5
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.
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

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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

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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

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8 No. 04-3948
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.
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-

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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

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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

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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.

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12 No. 04-3948
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.
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

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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 A FFIRM 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

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