Holzhauer v. Town of Normal

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

LINDSEY HOLZHAUER, )

)

Plaintiff, )

v. ) Case No. 20-cv-1037-JEH-JES

)

TOWN OF NORMAL, et al., )

)

Defendants. )

ORDER AND OPINION

This matter is now before the Court on the Amended Motion for Summary Judgment

(Doc. 81) of the Town of Normal (“Normal”) and Normal Police Department Defendants

Richard Bleichner, Tim Edmiaston, and James Ferguson. The sole remaining Defendant, Brian

Williams, is represented by different counsel and does not join in the motion. Plaintiff has filed a

Response to summary judgment (Doc. 84), and Defendants have filed a Reply (Doc. 90). For the

reasons set forth herein, Defendants’ Motion (Doc. 81) is GRANTED in part and DENIED in

part.

I. BACKGROUND

Plaintiff, Lindsey Holzhauer, has filed a 4-Count Complaint alleging in Count

I that on November 25, 2019, Defendant Williams, not a party to this motion, confiscated and

wrongly kept cash he found in her residence while responding to an emergency medical call

there. When Defendant Williams learned that an investigation of the theft was underway, he

allegedly called Plaintiff on November 28, 2019, identifying himself as “Jonathan.” He told

Plaintiff that a friend had taken the money and would return it if she would drop the

investigation. During this conversation, Defendant Williams allegedly told Plaintiff that agreeing

to this would be the best for herself and her children, something which Plaintiff considered a

threat. Defendant Williams was arrested the following day, November 29, 2019, in a sting

operation undertaken by the Illinois State Police (“ISP”). Williams was criminally charged in

McLean County case No. 19-CF-1206, ultimately pleading guilty to Official Misconduct, a Class

3 felony.

In Count II, Plaintiff asserts a claim under 42 U.S.C. § 1983, for a violation of her First

and Fourth Amendment rights. She asserts that Normal Police Chief Bleichner, Sgt. Edmiaston,

and Officer Ferguson conspired to cover-up Defendant Williams’ involvement by obstructing her

efforts to report the illegal seizure of her money and seek legal recourse. In Count III, Plaintiff

alleges that Defendants Bleichner, Edmiaston, and Ferguson are liable to her under Illinois tort

law for the intentional infliction of emotion distress (“IIED”). In Count IV, Plaintiff alleges that

the Town of Normal is obligated, under 745 ILCS 10/902, to indemnify Defendants for the

claims asserted against them. Plaintiff requests compensatory and punitive damages as to Counts

I and II, and compensatory damages as to Count III.

II. PROCEDURAL HISTORY

On June 3, 2022, Defendants filed (Doc. 73), a prior “Motion for Summary Judgment”

which was actually a statement of 295 Undisputed Material Facts (“UMF”) and (Doc. 75, 76, 77

and 78), separate Memoranda on behalf of each Defendant. Each of the four Memoranda had an

Argument section with the result that Defendants exceeded the 15-page limit provided in ILCD-

LR 7.1(D)(2)(c). The various motions were stricken with leave to refile. Defendants

subsequently filed an amended motion for summary judgment, with approximately 30 pages of

Argument. On July 11, 2022, with leave, Plaintiff filed an oversized memorandum in response.

Defendant made a similar motion which the Court allowed, with Defendants filing a 63-page

Reply with numerous objections to Plaintiff’s Additional Material Facts (“AMF”).

Defendants’ objections to Plaintiff’s AMF are based, in large part, on caselaw which

holds that a plaintiff does not have a constitutional right to a police investigation. Here, of

course, Plaintiff does not allege merely that an investigation was not undertaken or that the

investigation was inadequate. She alleges the investigation was stalled to protect Officer

Williams when Defendants knew or should have known that Williams had taken the money.

Plaintiff also alleges that the Defendants acted together as part of a conspiracy to intimidate her

and discourage her seeking redress for the theft.

Defendants further claim that many of Plaintiff’s AMF responses are based on hearsay.

On many occasions, Plaintiff testified as to statements made to her by others, including the

Defendants and non-defendant officers. Defendants assert these statements should not be

considered at summary judgment, citing Gunville v. Walker, 583 F. 3d 979 (2009). This ignores

that these may be admissible as the statements of an opposing party. See Fed. R. Civ. P.

801(d)(2) (enumerating statements of an opposing party as one of the exceptions to the rule

against hearsay); Kyles v. Krizan, No. 17-188, 2018 WL 3824144, at *2 (W.D. Wis. Aug. 10,

2018), aff’d, 771 Fed. Appx. 676 (7th Cir. 2019).

In addition, it is likely that the statements of both the Defendant and non-Defendant

officers would be admissible under 801(d)(2)(D) as made by agents or employees of the

Defendant Town of Normal. In addition, statements made to Plaintiff by Defendants might well

be admissible under 801(d)(2)(E), as allegedly “made by the party’s coconspirator during and in

furtherance of the conspiracy.” Id. Furthermore, in many instances, Plaintiff does not offer the

statements for a hearsay purpose. Rather, Plaintiff alleges that officers’ statements regarding the

investigation were false and meant to mislead her, not offering the statements for the truth of the

matter asserted. As a result, Defendants’ objections to Plaintiff’s AMF are generally denied.

III. MATERIAL FACTS

On November 25, 2019, around 9:50 AM, Plaintiff, Lindsey Holzhauer called the Normal

police to her home in response to a medical emergency. Plaintiff testified that she and her

children had left the house the night before, staying at her parents’ home. That night, Plaintiff

spoke with her husband, Dustin Holzhauer, who threatened to take a drug overdose. On Monday,

November 25, 2019, Plaintiff returned home to find all the doors locked. She gained entry after

breaking a basement window and found Dustin Holzhauer in the basement, unresponsive.

Plaintiff called the police and when she went upstairs, found $12,000 cash on the kitchen

counter. In the police report taken several days later, Plaintiff reported that in addition to the

$12,000, Dustin had given her $20,000 in cash several days prior; and Plaintiff had that money in

her car. For unspecified reasons, Dustin had withdrawn all that was in their bank safety deposit

box. She believes Dustin left the $12,000 on the counter to be used to pay his funeral expenses.

Plaintiff placed the $12,000 on the top shelf of an upper kitchen cabinet where Dustin’s

medications were kept.

The Town of Normal Fire and Police Departments responded to the call. The Normal

Police Officers in attendance were Officers Brock, Droege, Williams, and Sgt. Longfellow, with

Williams the only Defendant in this group. Plaintiff testified that EMS responders went into the

basement to stabilize and transport Dustin. While this was going on, Officer Droege asked

Plaintiff to identify any medications Dustin was taking. She responded that Dustin was on Zoloft,

an anti-depressant, Adderall, and a Xanax-like anti-anxiety medication. Plaintiff testified that she

never gave the officers consent to search her cabinets or drawers.

Plaintiff followed the ambulance to the hospital, leaving the first responders at the scene.

Dustin Holzhauer was pronounced deceased at the hospital, and Plaintiff returned to her home

around noon. When she arrived, her brother, John, and a neighbor, Larry, were attempting to

remove the broken basement window. Plaintiff entered the house, checked the kitchen cabinet,

and discovered the $12,000 missing. She asked her brother about the money, and he responded

that he knew nothing about it and that no one had been in the house. Plaintiff thereafter retrieved

the $20,000 from her car and hid it in a dresser drawer.

Plaintiff called the Normal Police Department around 12:30 p.m. and spoke with

Defendant Edmiaston. Plaintiff questioned whether one of the Officers had taken the money and

testified she attempted to file a report. Defendant Edmiaston testified at his deposition that he

could not remember whether Plaintiff asked to file a police report at that time. (Doc. 80-9 at 80).

Edmiaston advised Plaintiff that he would review the officers’ body worn cameras (“BWC”) and

would call her the following day. Police Officer Ritter, who was sent to take Plaintiff’s police

report several days later, testified that he heard of the theft report that afternoon and texted the

information to Defendant Williams.

The Court has reviewed the relevant BWC footage which shows Sgt. Longfellow and

another Officer, presumably Brock, as Droege had followed the ambulance to the hospital, in the

basement, after Dustin had been transported to the hospital. The video shows the two officers

examining the scene and then going upstairs to find Defendant Williams in the kitchen.

Defendant Williams had several pill bottles and a collection of pills on the countertop, trying to

identify them. When asked, Williams indicated he had found the medications in an upper cabinet

next to the refrigerator. Sgt. Longfellow had submitted a timeline in which he documents that

Williams had been alone upstairs for three minutes. (Doc. 85-9 at 5).

Sgt. Longfellow learned of the missing money later that day and ordered the responding

officers to return to the police station to dock their BWCs for review. Longfellow testified that he

classified the video for ease of access but did not view it. Officer Jason Wood, who served as the

Normal Police Department Communications Officer in charge of computer and cell phone

forensics, gave a deposition and testified as to the BWC access logs. He explained that any

access was recorded by the login credentials of the individual who entered the system. Wood

testified that on November 25, 2019, at 1:07 PM Sergeant Longfellow’s credentials were used to

activate the BWC viewer and to assign a file number to the footage. (Doc. 80-20 at 53). The log

shows someone with Defendant Edmiaston’s credentials accessing the viewer at 2:18 PM on

November 25, 2019, and Defendant Williams’ credentials accessing at 1:01 PM. (Doc. 80-21 at

5-8). Wood testified that Defendant Edmiaston’s credentials were used to access the viewer

again, on November 27, 2019, at 8:25 AM and several times thereafter.

Plaintiff did not hear from Sgt. Edmiaston on Tuesday, November 26, 2019, despite his

assurances that he would call her after reviewing the BWC footage. Plaintiff called a cousin,

Brian McCabe, a retired Livingston County Sheriff’s deputy. Mr. McCabe recommended that

Plaintiff have an agency other than the Normal Police Department investigate the theft.

On Wednesday, November 27, 2019, Plaintiff called and spoke with Defendant

Edmiaston. Defendant Edmiaston reported to her, and testified at his deposition, that he had

viewed the BWC of the responding officers and there was no evidence of theft. (Doc. 80-9 at

85). While Plaintiff claims that Edmiaston had not reviewed the video prior to this conversation,

as noted, the logs document that Edmiaston’s credentials had been used to access the BWC two

days prior, on November 25, 2019. (Doc. 80-21 at 7). At some point, Edmiaston noted that

Williams’s camera had been temporarily turned off and did not show him opening the cabinets. It

is unclear whether he discovered this on Monday, the 25th, or Wednesday, the 27th. On

Wednesday, November 27, 2019, Edmiaston asked Officer Longfellow about Williams having

accessed the kitchen cabinet. Longfellow texted Williams, asking whether he had done so.

Williams responded that he had opened the cabinets and drawers but had not searched them.

It does not appear that Defendant Edmiaston disclosed to Plaintiff any suspicions he

might have had about Defendant Williams during this conversation on November 27, 2019.

Plaintiff reiterated that the only people present when the money went missing were first

responders. She also told Edmiaston that her husband had home security cameras and she would

try to access the footage. At that point, Defendant Edmiaston sent Officer Ritter to the home to

take a report. Plaintiffs asserts that this was only done because she had footage which could have

potentially incriminated an officer.

Officer Ritter has testified that he objected to being sent to take the statement as he was

aware there was a potential issue of officer misconduct. It was his opinion that the report should

have been taken by a supervisor or someone in the investigation unit. Nonetheless, Ritter arrived

at the residence about 8:30 AM and spoke with Plaintiff. Ritter testified that when he later asked

Edmiaston whether he should list the responding police officers as suspects, he was told “no.”

(Doc. 87-3 at 27). Edmiaston disputes this, testifying that he did not tell Ritter to exclude police

officers as potential suspects. (Doc. 81-8 at 98).

Ritter also testified that Edmiaston told him to list Dustin Holzhauer’s brothers as

suspects. (Doc. 81-6 at 27). Ritter did so, listing John and Jeremy Holzhauer as the only suspects.

(Doc. 85-2 at 38). Plaintiff claims she told Ritter that Dustin’s brothers were not there, as only

emergency responders were at the scene. Plaintiff did tell Ritter, and later testified in her

deposition to an incident later that day, involving Dustin’s brother, John Holzhauer. Plaintiff

testified that she had taken the $20,000 from her car and hidden in a drawer some time after

returning from the hospital. John Holzhauer came to the house later that day, and Plaintiff found

him wandering about the house, going into her closet, and behaving strangely. When Plaintiff

went to the drawer for the $20,000, it was gone. She called John’s Mother who spoke with John.

He returned the money to Plaintiff that day, claiming that he had found it in a drawer and that she

had merely overlooked it. (Doc. 85-3 at 26).

Defendant Edmiaston was questioned at his deposition regarding Ritter’s testimony that

he was not to list the responding officers as suspects. Edmiaston asserted that Ritter was not

being truthful in this, and that on one prior occasion, he had believed Ritter was “not fully

honest” with him. Edmiaston testified vaguely that an informal investigation into the not

particularly described matter did not reveal wrongdoing or, at least, end in Ritter being

disciplined. When asked why, after this incident, he had recommended that Ritter be promoted to

CSO, Edmiaston professed to not remembering having done so. (Doc. 85-1 at 9-10). He also

testified that, while, he had made a record of Defendant Williams having temporarily turned off

his BWC but could not remember where or when he had documented it. (Doc. 85-1 at 12).

Later that same day, Defendant Edmiaston sent Officers Rippy and Underwood to

Plaintiff’s home to obtain the home surveillance video. Plaintiff asserts that Defendant

Edmiaston’s reason for doing so was to confiscate any footage which might implicate an officer.

Plaintiff gave the Officers the password so they could access the system. Rippy noted that the

videos showed an “offline” prompt, leading him to believe that the cameras were not hooked up

or were not operating properly. Rippy asked whether the video could have been stored on a hard

drive or laptop, asking that Plaintiff hand over these items. She refused to do so, and the officers

left. That same day, Edmiaston filed a citizen’s complaint of the events, back-dating it to

November 25th, his first contact with Plaintiff. He had no further interaction with her.

At some point on Wednesday, November 27, 2019, Assistant Chief Stephen Petrilli

informed Defendant Bleichner that first responders may have been involved in the theft and that

a report had been taken. Defendant Bleichner also learned that an officer had turned off his body

camera during the event.

On Thursday, November 28, 2019, Thanksgiving Day, Plaintiff checked her phone and

saw that the evening before, she had missed four or five calls from a number she did not

recognize. (Doc. 85-3 at 35). At approximately 11:00 a.m., Plaintiff received a call from an

individual who identified himself as “Jonathan.” Jonathan claimed that a friend had taken the

money and that he would return it if Plaintiff abandoned the investigation. Jonathan mentioned

that the return of the money would help Plaintiff’s minor children, something which Plaintiff

viewed as a threat. Fearing for her children’s safety, Plaintiff collected them and left the house.

That same day, Plaintiff’s brother, Adam Deal, contacted Tim Price of the Illinois State

Police (“ISP”). Price learned that the ISP would not be able to initiate an investigation until

Monday and called Officer Rippy of the Normal Police to advise him of the report to the ISP.

Rippy reported this to Sgt. Cherry who, in turn, reported it to Defendant Bleichner. Defendant

Bleichner asked Cherry to arrange a meeting between Plaintiff, Bleichner, Cherry, and Officer

Ferguson who was head of the Vice Unit. Cherry did so, calling Plaintiff late that evening.

The following day, Friday, November 29, 2019, Plaintiff met with Cherry, Bleichner and

Ferguson, with McCabe in attendance. At the meeting, Defendant Bleichner questioned whether

the thief might have been a family member, reportedly asking Plaintiff if she would be willing to

accept that, if true. Plaintiff became upset and cursed, telling Bleichner that when she followed

the ambulance to the hospital, the only people in the house were the first responders. Chief

Bleichner testified that when he made the comment, it was not clear to him that first responders

were the only ones at the scene. (Doc. 81-10 at 112).

McCabe also testified about the meeting. He stated that Defendants Bleichner and

Ferguson appeared upset about the ISP being involved and were “almost insistent” that Plaintiff

put off meeting with Jonathan until they had furthered their investigation. (Doc. 85-8 at 7-8).

McCabe testified that he confronted Defendant Bleichner afterward, stating that Bleichner and

the others knew who had taken the money and should “do the right thing” by Plaintiff. Id.

After the Friday, November 29, 2019 meeting, Defendant Bleichner determined that an

outside investigation should be undertaken and contacted the ISP. Later that afternoon, Sgt.

Cherry and Officer Ferguson met with several ISP officers. The ISP set up a sting operation that

same day whereby Plaintiff would meet Jonathan at a gas station in Pontiac. Defendant Williams

showed up at the appointed time and gave Plaintiff $13,000 dollars in a plastic bag. He was

arrested as he pulled away. On November 20, 2020, Williams pled guilty to Official Misconduct,

a Class 3 Felony, resulting in a fine and 30 days imprisonment. (Doc. 80-5 at 2).

Plaintiff was later interviewed by the ISP and initially reported that Ritter was kind to

her, and that Cherry and Ferguson were “super cool.” She testified at her deposition that after

reflection, she believes that Ritter had “an agenda” and that Ferguson had been “very

manipulative.” (Doc 85-3 at 42-43). She had fewer good things to say about Defendant

Edmiaston. Plaintiff has provided affidavit testimony that she felt intimidated during the Friday

meeting with Bleichner, Cherry and Ferguson, and would not have made any further efforts to

reach out to the ISP. (Doc. 85-19).

IV. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant if entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). When presented with a

motion for summary judgment, the Court must construe the record “in the light most favorable to

the nonmovant and avoid[] the temptation to decide which party’s version of the facts is more

likely true.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). The moving party has the

burden of providing proper documentary evidence to show the absence of a genuine issue of

material fact. Celotex Corp., 477 U.S. at 323-24. Once a properly supported motion for summary

judgment is filed, the burden shifts to the non-moving party to demonstrate with specific

evidence that a triable issue of fact remains for trial. Gracia v. Volvo Europa Truck, N.V., 112

F.3d 291, 294 (7th Cir. 1997). The party opposing summary judgment “must present definite,

competent evidence in rebuttal.” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir.

2004).

Accordingly, the non-movant cannot rest on the pleadings alone, but must designate

specific facts in affidavits, depositions, answers to interrogatories or admissions that establish

that there is a genuine triable issue; he “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). Finally, a scintilla of evidence in support of the non-movant’s position

is not sufficient to oppose successfully a summary judgment motion; “there must be evidence on

which the jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986).

V. DISCUSSION

A. CONSPIRACY

In Count II, Plaintiff asserts a claim under 42 U.S.C. § 1983, alleging that Defendants

Bleichner, Edmiaston, and Ferguson conspired with one another to violate her First and Fourth

Amendment Rights. Plaintiff asserts a Fourth Amendment violation in that Defendants covered-

up the illegal seizure of her property and a First Amendment violation in that Defendants

compromised her efforts to seek legal redress. Hartman v. Moore, 547 U.S. 250, 256 (2006);

Rossi v. City of Chicago, 790 F.3d 729, 734 (7th Cir. 2015) (“Interference with the right of court

access by state agents who intentionally conceal the true facts about a crime may be actionable as

a deprivation of constitutional rights under § 1983.”) (internal citation omitted).

As Defendants note, a claim for conspiracy to violate a Constitutional right may only

proceed if there has been an underlying constitutional violation. Kunz v. City of Chicago, 234 F.

Supp. 2d 820, 825 (N.D. Ill. 2002). To proceed on a conspiracy claim, Plaintiff must establish

that: (1) two or more defendants reached an agreement or meeting of the minds to violate her

constitutional rights, and (2) Defendants participated in an overt act which caused the

Constitutional violation and did so in furtherance of the conspiracy. Reynolds v. Jamison, 488

F.3d 756, 764 (7th Cir. 2007). Defendants deny both that Plaintiff suffered a constitutional injury

and that they participated in a conspiracy.

Defendants note that in Rossi, the Seventh Circuit found the Constitution does not

provide a protected right to a police investigation. There, Plaintiff alleged that he had been

assaulted by several individuals, including an off-duty police officer. Plaintiff brought an action

against the investigating detective, alleging that the detective violated his First and Fourteenth

Amendment rights to judicial access when he concealed the assailant officer’s identity and failed

to investigate the crime scene.

In Rossi, the Appellate Court referenced the Supreme Court’s decision in DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189, 196 (1989) finding there was

no Constitution right to governmental aid, “even where such aid may be necessary to secure life,

liberty, or property interests of which the government itself may not deprive the individual.” The

Court held that “mere inactivity by police does not give rise to a constitutional claim,” framing

the issue as not whether plaintiff’s case suffered due to an inadequate investigation, but whether

the lack of police cooperation amounted to a denial of judicial access. Id. at 735. It found that as

the police misbehavior did not prevent plaintiff timely filing a claim against the assailants, his

rights to access were not infringed. This was so, even though plaintiff’s case would likely have

been “stronger” with a more robust investigation. Id. at 736.

Plaintiff’s claims against Defendant Bleichner are that Defendant impeded her efforts to

seek legal redress by delaying referral to the ISP, and counseling Plaintiff to let the Normal

Police handle the matter. Plaintiff also claims that Bleichner attempted to obfuscate the

investigation by suggesting that it was family members who were to blame. Here, however, it is

clear that after meeting with Plaintiff, Defendant Bleichner referred the matter to the ISP, this

within two days of learning of possible police involvement, and within four days of the theft.

Plaintiff offers nothing to support that any alleged delay impeded her rights to access by

prejudicing the criminal proceedings against Defendant Williams.

Plaintiff alleges that Defendant Edmiaston, too, violated her rights to seek legal redress.

She asserts that, despite her request, Defendant Edmiaston did not take a police report on

November 25, 2019, only directing Officer Ritter to do so two days later. She also asserts that

Defendant Edmiaston was untruthful when he told her he had viewed the officers’ BWCs prior to

his conversation with her on November 27, 2019. As noted, however, Edmiston asserts otherwise

and there is evidence in the video logs which suggests that he had viewed the footage on

November 25, 2019. Lastly, Plaintiff asserts that Edmiaston impeded the investigation by

directing Ritter to omit the responding officers as potential suspects and did not inform her when

it should have been clear to him that Williams took the money. Here again, however, Plaintiff

fails to establish that any action or inaction on Defendant Edmiaston’s part prejudiced any claim

she might have against Williams.

Plaintiff alleges against Defendant Ferguson that at the November 29, 2019 meeting, he

sought to intimidate her against moving for an ISP investigation, and that she, in fact, resolved

not to do. Shortly after the meeting, however, Defendant Bleichner agreed to involve the ISP and

Williams was apprehended that same day. As a result, Plaintiff suffered no appreciable prejudice

to her rights to legal redress as a result of the alleged intimidation by Ferguson.

In short, Plaintiff offers no evidence that the actions of Bleichner, Edmiaston, or

Ferguson impeded her right to legal access. Plaintiff first contacted the Normal Police

Department on Monday, November 25, 2019, and on Friday, November 29, 2019, Defendant

Bleichner made the decision to turn the matter over to the ISP with the result that Defendant

Williams was apprehended that day. It might be that Plaintiff and her brother forced Defendants’

hand when they preemptively contacted the ISP, and if they had not done so, the outcome would

have been different. That is not the case before the Court, however, and there is nothing to

suggest that a few days’ delay in arresting Williams prejudiced Plaintiff’s access to the courts.

As Plaintiff has failed to establish that the actions of Bleichner, Edmiaston, and Ferguson caused

a violation of her constitutional rights, she cannot proceed on a claim that Defendants conspired

together to violate her constitutional rights. See Kunz, 234 F. Supp. 2d at 825 (finding that § 1983

does not create an independent action for the conspiracy itself, but allows recovery only where

the conspiracy caused the violation of a clearly established constitutional right).

B. IIED CLAIM

In Count III, Plaintiff alleges a state law claim against Defendants Bleichner, Edmiaston,

and Ferguson for the intentional infliction of emotion distress (“IIED”). In support, Plaintiff

asserts that her husband had just died, she returned home to find $12,000 missing, and

Defendants attempted a cover-up by blaming Plaintiff’s family members. She also claims,

generally, that “Defendants” gave Williams notice of Plaintiff’s complaint, so as to tip him off,

precipitating Williams contacting her and threatening her children.

“Under Illinois law, a plaintiff claiming intentional infliction of emotional distress must

demonstrate that the defendant intentionally or recklessly engaged in ‘extreme and outrageous

conduct’ that resulted in severe emotional distress.” Dent v. Nally, No. 16-00442, 2016 WL

2865998, at *4 (S.D. Ill. May 17, 2016) (internal citations omitted). IIED requires more than

mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Boston v.

U.S. Steel Corp., 816 F.3d 455, 467 (7th Cir. 2016). “[E]motional distress alone is not sufficient

to give rise to a cause of action. The emotional distress must be severe.” Sornberger v. City of

Knoxville, Ill., 434 F.3d 1006, 1030 (7th Cir. 2006) (internal citations omitted). “Fright, horror,

grief, shame, humiliation, worry, etc. may fall within the ambit of the term ‘emotional distress,’

these mental conditions alone are not actionable.” Id. at 1030. The emotional distress must be “so

severe that no reasonable man could be expected to endure it. The intensity and duration of the

distress are factors to be considered in determining its severity.” McGrath v. Fahey, 126 Ill. 2d

78, 86 (1988).

To determine whether conduct is extreme and outrageous, the Court is to consider: 1) the

degree of power or control Defendants had over plaintiff; 2) whether Defendants reasonably

believed they had a legitimate objective; and 3) whether Defendants were aware that Plaintiff

was “peculiarly susceptible to emotional distress, by reason of some physical or mental

peculiarity.” Hardy v. Hardy, No. 10-5921, 2013 WL 5325077, at *5 (N.D. Ill. Sept. 20, 2013)

(citing Franciski v. Univ. of Chi. Hosp., 338 F.3d 765, 769 (7th Cir. 2003)).

Plaintiff cites Cairel v. Alderden, 821 F.3d 823 (7th Cir. 2016) to support that as police

officers, Defendants were in a position of power over Plaintiff; and due to her husband’s death,

Plaintiff was particularly susceptible to suffering severe emotional distress. The Court notes that

the plaintiff in Cairel was an arrestee with a learning disability who falsely confessed to robbery

during police interrogation. The court in that case noted the inherent power imbalance between

the parties but determined that this would not pose a problem unless defendants’ actions “were

far out of bounds for an interrogation of a lawfully arrested suspect.” Id. at 836. The court

dismissed plaintiff’s IIED claim at summary judgment, finding that defendants had a legitimate

law enforcement objective and that “defendants were entitled to try to solve the crimes by

investigating and interrogating the plaintiffs.” Id. at 836.

Here, Plaintiff was neither arrested nor interrogated, being in the position of a

complaining witness. Plaintiff was free to go about as she pleased, without fear of imprisonment.

While Plaintiff claims to be intimidated at the time of the November 29, 2019 meeting with

Defendants Bleichner and Ferguson, and Sgt. Cherry, Plaintiff had present an ally in retired

officer McCabe. Alleged power imbalances have not been recognized in far more restrictive

environments. See Hardy, 2013 WL 5325077, at *7 (finding in a prison setting, the defendant

doctor did not have the “physical authority” or “complete control” over the prisoner plaintiff so

as to satisfy the first element of an IIED claim). As to Defendant Edmiaston, Plaintiff does not

identify facts to support a power imbalance between herself and Edmiaston during their several

telephone calls.

Plaintiff also fails to establish the second and third elements; that Defendants’ conduct

was extreme or outrageous; or they could not reasonably have believed they had a legitimate

objective. Plaintiff bases her IIED claim against Defendant Bleichner, in part, on Bleichner’s

suggestion at the Friday, November 29, 2019 meeting, that one of Plaintiff’s family members

might have taken the money. Defendant has testified, however, that prior to the meeting, he read

Defendant Ritter’s report, which identified only the two Holzhauer brothers as potential suspects.

However, as Assistant Chief Petrilli testified, Bleichner was on notice at this time that one of the

responding officers had turned off his BWC, and likely already suspected Williams. Still, as

noted in Cairel, Bleichner was “entitled” to further investigate the matter and apparently did so

by speaking directly with Plaintiff. See id. 821 F.3d at 836. Here, there is no evidence to support

that Bleichner’s actions were outrageous, knowing Plaintiff was particularly susceptible to

emotional distress. In addition, the evidence is not sufficient evidence to establish that Bleichner

could not have reasonably believed his actions were in furtherance of a legitimate law

enforcement objective.

Plaintiff also asserts that at the November 29th meeting, Bleichner encouraged her to put

off meeting with Jonathan while the Normal Police investigated further. Plaintiff asserts that she

was in fear of Jonathan who had threatened her children, and that any suggested delay was

extreme, outrageous, and certain to cause her severe emotional distress. Plaintiff ignores that the

alternative she sought, a clandestine meeting with Jonathan in a parking lot, was also likely to

cause her emotional distress. The fact remains that Bleichner changed his mind after meeting

with Plaintiff and reached out to the ISP which apprehended Williams that same day. While

Plaintiff argues that Bleichner unreasonably delayed this decision, the Court cannot find that a

delay of several days while the Normal Police investigated the matter was outrageous and done

with the intent or reasonable belief that this would result in severe emotional distress to Plaintiff.

As to Defendant Edmiaston, the Court credits Plaintiff’s statement, as it must, that she

wished to file a police report at the time of her initial conversation with Defendant. Still, the

Court cannot find that a two day delay between this conversation, and Defendant Edmiaston

sending Ritter out to take the report, would be likely to cause severe emotional distress. While

Plaintiff had several telephone conversations with Defendant Edmiaston and suspects he was

trying to cover-up for Williams, she does not identify any extreme reaction she had as a result of

these conversations.

Plaintiff’s claim of extreme and outrageous conduct by Defendant Ferguson, is even

thinner. Plaintiff bases this solely on Ferguson’s alleged efforts on November 29, 2019, to

intimidate her and manipulate her into withdrawing any request for an ISP investigation. It is

uncontroverted that Ferguson only learned of the theft the day before. On the following day, he

met with Plaintiff and coordinated efforts with the ISP, which resulted in Defendant Williams’s

arrest. There is nothing here to support that this conduct reached the level necessary for IIED.

Plaintiff makes the general claim that Defendants Bleichner, Edmiaston, and Ferguson’s

“improper handling of her theft complaint” caused this information to be leaked to Defendant

Williams. Plaintiff asserts that this caused Williams to contact her, intimidate her, and precipitate

her leaving her home in fear. Plaintiff asserts, without support, that this “would not have

happened but for the Defendants’ wholly inappropriate handling of Plaintiff’s theft report.” (Doc.

84 at 52). Plaintiff has not offered evidence, however, that Defendants Bleichner, Edmiaston or

Ferguson “leaked” information to Williams. While Sgt. Longfellow and Officer Ritter have

admitted to speaking with Defendant Williams about Plaintiff’s theft allegations, neither is

named a Defendant.

In addition, Plaintiff does not address that to properly investigate the allegations,

Williams had to be directed to download his BWC, and to be questioned by Longfellow about

his search of the kitchen. This alone would likely have placed Williams on notice that the theft

was being investigated. Plaintiff offers no evidence that Bleichner, Edmiaston or Ferguson

leaked information to Williams, and it is clear that they did not leak information as to the ISP

sting operation as Williams showed up, unaware.

Plaintiff makes much of the Court’s Order on Defendants’ Motion to Dismiss, where it

found that Plaintiff had pled enough to proceed on an IIED claim as “[t]he various abuses of

power by the Defendants to conceal the crime and protect the individual police officer and

Normal Police Department while threatening the safety of Plaintiff’s minor children constitute

extreme and outrageous conduct.” (Doc. 21 at 9-10). The standard applied at summary judgment

is higher, however, than that applied to a Rule 12(b)(6) motion to dismiss. Plaintiff’s allegations

that she was treated with disrespect and intimidation do not rise to the level of outrageous

conduct which no reasonable person could be expected to endure. McGrath, 126 Ill. 2d at 86.

The same applies to Plaintiff’s complaint that family members were suggested as suspects, this,

particularly, as Plaintiff’s brother and a neighbor were on the premises, albeit outside the house,

when she returned from the hospital.

The most compelling of Plaintiff’s claims is that Williams was tipped off, leading him to

contact and threaten her. As the Court has noted, however, the matter could not have been

investigated without some notice to Williams and there is no evidence that any of the named

Defendants tipped him off. While Williams’s conduct might well reach the level necessary for

IIED, the same cannot be said of Defendants Bleichner, Edmiaston and Ferguson.

Plaintiff has failed to sufficiently rebut Defendants’ evidence and establish that

Bleichner, Edmiaston and Ferguson acted in an outrageous manner with the intent to cause her

severe emotional distress, without a reasonable belief that they were pursuing a legitimate law

enforcement objective. See Gracia, 112 F.3d at 294 (when the movant properly supports a

motion for summary judgment, the burden shifts to the other to identify specific evidence that

there remains a triable issue of fact).

C. QUALIFIED IMMUNITY

Defendants Bleichner, Edmiaston and Ferguson assert the affirmative defense of

qualified immunity; that their conduct did not violate a clearly-established constitutional or

statutory right of which they should reasonably have been aware. Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). Here, however, the Court has found that these Defendants are not liable to

Plaintiff, so the Court need not address the qualified immunity defense. Van den Bosch v.

Raemisch, 658 F.3d 778, 787 n. 9 (7th Cir. 2011).

D. THE TOWN OF NORMAL’S DUTY TO INDEMNIFY

In Count IV, Plaintiff asserts that under the Illinois Local Governmental and

Governmental Employees Tort Immunity Act, 745 ILCS 10/9-102, Normal is obligated to

indemnify Defendants for their employment-related actions. The Act provides, in pertinent part,

that an employer is required “to pay any tort judgment or settlement for compensatory damages”

for which an employee becomes liable “while acting within the scope of his employment . . .”

For such a claim to succeed, Defendants must have been acting within the scope of their

employment when they injured Plaintiff. See Copeland v. County of Macon, 403 F.3d 929, 932

(7th Cir. 2005) (citing Pyne v. Witmer, 129 Ill. 2d 351, 359 (1989)).

The Court need not consider the indemnification issue as to Defendants Bleichner,

Edmiaston, and Ferguson as it finds in their favor on summary judgment, so there remains no

liability to be indemnified. “An indemnification claim necessarily will be tied to an underlying

claim for liability.” Baskins v. Gilmore, No. 17-07566, 2018 WL 4699847, at *12 (N.D. Ill. Sept.

30, 2018) (finding that where plaintiff failed to state a claim against the employees, “there was

no wrongdoing to indemnify.”).

As Defendant Williams remains a party, the Court must consider whether Normal has a

duty to indemnify him. Normal asserts that Williams’s actions were so wrong as to take him

outside the scope of his employment, obviating any duty to indemnify. Bagent v. Blessing Care

Corp., 224 Ill. 2d 154, 164 (2007) (an employee’s act is not within the scope of employment if it

is not of the kind he was ordinarily employed to perform). Plaintiff counters, citing caselaw to

support that Normal has a duty to defend despite Williams’s illegal activity. See Hibma v.

Odegaard, 769 F.2d 1147, 1153 (7th Cir. 1985) (finding an employer liable if defendant, while

pursuing his own objectives, simultaneously furthers the objectives of the employer). Defendant

Williams, who is represented by separate counsel, has not made a response.

Although there is no response from Williams, the Court will deny Defendants’ motion

regarding the indemnification of Williams as it is not ripe for review. “Ripeness ‘is a doctrine of

justiciability invoked to determine whether a dispute has matured to a point that warrants

decision.’” Medline Indus., Inc. v. Ram Med., Inc., 892 F. Supp. 2d 957, 963 (N.D. Ill. 2012)

(internal citations omitted). “Inquiries into ripeness generally address two factors: first, whether

the relevant issues are sufficiently focused so as to permit judicial resolution without further

factual development; and, second, whether the parties would suffer any hardship by the

postponement of judicial action.” Id. (citing Triple G Landfills, Inc. v. Bd. of Commis. of

Fountain Cnty., Ind., 977 F.2d 287, 288–89 (7th Cir. 1992).

“[A[n indemnification claim is not ripe (unless and) until liability has been established.”

Humphrey v. City of Anderson, No. 19-00764, 2020 WL 3060363, at *12 (S.D. Ind. June 8,

2020) (citing Nationwide Ins. v. Zavalis, 52 F.3d 689, 693 (7th Cir. 1995); McFerson v. Gilden,

No. 16-186, 2020 WL 7642352, at *4 (N.D. Ind. Dec. 23, 2020) (denying summary judgment

challenge to indemnification and dismissing without prejudice “[b]ecause [Defendant’s] liability

has yet not been determined.”). Where there is a dispute as to whether an employee was acting

within the scope of employment, the issue should typically “await resolution at trial.” Baskins,

2018 WL 4699847, at *10 (N.D. Ill. Sept. 30, 2018) (declining to consider indemnification at the

motion to dismiss stage). Doe v. City of Chi., 360 F.3d 667, 672 (7th Cir. 2004) (reversing trial

court’s disposition of indemnity issue at summary judgment) (“The district judge jumped the gun

when she entered a final, appealable judgment on Doe's claim against the City. We have warned

repeatedly against trying to resolve indemnity before liability.”).

As there has been no finding as to Defendant Williams’ liability, any decision as to

Defendant Normal’s duty to indemnify him is premature and is denied. This denial is without

prejudice to Defendants reasserting at a later date.

VI. CONCLUSION

For the reasons stated above, the Court hereby makes the following findings:

1. The Court GRANTS Defendants’ Motion for Summary Judgment (Doc. 81) in

part and DENIES in part. The Court grants summary judgment to Defendants Bleichner,

Edmiaston and Ferguson and they are dismissed as parties. The Clerk is to amend the docket to

reflect this.

2. The Court denies summary judgment to the extent the Town of Normal seeks a

ruling on its obligation to indemnify the only remaining Defendant, Brian Williams. The Court

finds this issue premature as it is not ripe for review. This denial is without prejudice to

Defendant reasserting at a later time.

3. This case will proceed as to Defendant Williams only.

ENTERED this 3rd day of January, 2023.

s/James E. Shadid______

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE