Kejbo v. Caho

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ISAM KEJBO and CHRISTOPHER YALDO,

Plaintiffs,

No. 15 CV 10751

v.

Judge Manish S. Shah

ERIC CAHO, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Christopher Yaldo was able to sneak peeks at cards that were

supposed to be hidden and face-down while he and his cousin, plaintiff Isam Kejbo,

played Mississippi Stud Poker at a casino. When he could, Yaldo signaled the value

of the cards to Kejbo. After Kejbo won $8,000 from a hand, the two left the casino

without cashing in their chips, which prompted security personnel to take a closer

look at the surveillance footage of plaintiffs’ manner of play. When Kejbo and Yaldo

returned to the casino, defendants detained and charged plaintiffs with cheating in

violation of the Illinois Riverboat Gambling Act. A state-court judge acquitted

plaintiffs of all charges, and in this case, plaintiffs bring federal and state-law

claims against the Illinois State Police Officers, the Illinois Gaming Board agents,

and the casino employees who participated in the investigation and arrest. Both the

private and state defendants move for summary judgment. For the following

reasons, those motions are granted.

I. Legal Standards

Summary judgment is appropriate if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists

if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

party seeking summary judgment has the burden of establishing that there is no

genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). A court must view all facts and reasonable inferences in the light most

favorable to the non-moving party. Roh v. Starbucks Corp., 881 F.3d 969, 973 (7th

Cir. 2018).

II. Facts

A game of Mississippi Stud Poker at Hollywood Casino1 begins when each

player places an ante bet. [71-3] at 19, 73:8–9. Next, the dealer puts three

community cards face down on the table and deals each player two cards. Id. at 19,

73:15–74:12. The two cards in a player’s hand along with the three community

1 Defendant HC Joliet, LLC operates Hollywood Casino. [80] ¶ 5. Bracketed numbers refer

to entries on the district court docket. Page numbers are taken from the CM/ECF header at

the top of filings. In addition to the page number from the CM/ECF header, citations to

depositions also include the page and line numbers from the deposition transcript. The facts

are largely taken from plaintiffs’ response to the defendants’ Local Rule 56.1(a) statements,

[80], and the defendants’ responses to plaintiffs’ Local Rule 56.1(a) statement, [82] and [85],

where both the asserted fact and the opposing party’s response are set forth in one

document. When the parties raised arguments in their statements, included additional

facts in their responses or replies, failed to support their statements by admissible

evidence, or failed to cite to supporting material in the record, I disregarded those portions

of those statements, responses, or replies. See LR 56.1(b)(3)(C) (facts are deemed admitted

if not properly controverted).

cards on the table create a player’s poker hand. Id. at 18, 72:15–19. The player

reviews his own two cards and, without knowing the value of the three community

cards, the player decides whether to fold or to place an additional bet, which can be

either one, two, or three times his ante bet. Id. at 19, 74:22–75:9. If a player bets,

the dealer reveals the first of the three community cards. Id. at 19, 76:7–12. Then,

the player would decide whether to fold or to place another bet. Id. at 19, 76:13–22.

If a player places another bet, the dealer reveals the second community card and

the same process would repeat before the dealer revealed the third community card,

which ends that round of the game. Id. at 19–20, 76:24–79:8. Given these rules, it is

an advantage to know the value of a community card before the dealer reveals it.

Plaintiffs acknowledge this fact. Id. at 22, 85:15–23; [71-4] at 12, 47:15–48:9.

In 2012, Kejbo began gambling with his cousin Yaldo, who had learned the

strategy of previewing the value of a community card in Mississippi Stud Poker

before the dealer reveals it to the table; Yaldo taught Kejbo how to catch a glance of

the community card as the dealer pulls the card out of the shuffler. [71-4] at 5,

19:21–20:3; id. at 19, 75:16–76:2. Each time Kejbo and Yaldo gambled together,

they tried to see the community card. Id. at 21, 81:4–6. On November 30, 2013,

Kejbo and Yaldo went to Hollywood Casino with the understanding that they would

try to gamble at a table where the dealer was exposing the community card in

Mississippi Stud Poker. [71-3] at 26, 101:22–102:11. Additionally, they understood

that while gambling, if either of them saw the community card before the dealer

revealed its value to the table, they would use discreet hand signals to communicate

that value to each other. Id. at 27, 108:6–16. They used the following hand signals:

the left pinky finger signaled ace, the left ring finger signaled two, and so on,

continuing to the right pinky to signal ten; making a “hook” or “J” with the index

finger and thumb signaled a jack, making an “O” shape with the hand signaled a

queen, and crossing the middle finger over the pointer finger signaled a king. [80]

¶¶ 31, 33–34. They also had signals for when the dealer did not perfectly expose the

value of the community card: if they saw a face card, but could not determine which

kind it was, they would scratch their wrist; and if they could not see the card at all,

they would rub their eyes. Id. ¶¶ 32, 34; [71-3] at 34, 134:22–3.

After scouting the Mississippi Stud Poker tables that evening, Yaldo decided

to sit at Table 20 because he felt that that dealer handled those cards in such a way

that he would be able to preview the value of the community cards and gain an

advantage. Id. ¶¶ 27–29. In fact, Yaldo was able to see the community card before

the dealer revealed its value to the table 50 to 60% of the time that night. Id. ¶ 36.

And each time Yaldo saw the value of the community card before the dealer

revealed it, Yaldo used hand signals to communicate the value to Kejbo, and they

both placed bets based on that information. [71-3] at 56, 222:17–223:5. Eventually,

Kejbo won $8,000 on one hand. [80] ¶ 37. For Kejbo’s winning hand, however,

plaintiffs did not use hand signals. [71-4] at 27, 108:3–9.

Whenever a patron wins a big payout at Hollywood Casino, the surveillance

team receives an alert, [71-8] at 9, 32:10–19, and the surveillance team must review

the win to make sure it was legitimate, [71-7] at 9, 33:10–24. If after the review, the

win appears to be fairly won, the surveillance team informs the games department

that they may pay the winning patron. Id. at 10, 34:1–3. Accordingly, when Kejbo

won $8,000, one of the surveillance team members, Chris Moore, performed an

initial review of the surveillance video footage of Kejbo’s play. [71-8] at 9, 33:13–24.

Next, another member of the surveillance team, Matthew Colabuono, pulled up the

live surveillance video feed of plaintiffs’ table, id. at 11, 40:13–19; he watched Kejbo

and Yaldo leave the table and then exit the casino without cashing out their chips,

id. at 12, 43:5–44:14; see also [80] ¶¶ 41–42.2

Since Colabuono believed Kejbo might have had enough chips to trigger

federal reporting requirements, plaintiffs’ decision to leave the casino without

cashing out their chips was suspicious to Colabuono—perhaps plaintiffs were trying

to avoid the reporting requirements altogether. [71-8] at 12, 42:1–44:14. Because of

that suspicion, Colabuono proceeded to review the surveillance video footage of

plaintiffs’ play at the table from earlier that night. [80] ¶ 47; [71-8] at 13, 46:1–10.

He observed Yaldo positioning himself so that his eyes were level to the plane of the

table, which Colabuono interpreted as an attempt to see the community card as the

dealer was pulling the card out. [80] ¶ 47; [71-8] at 13, 47:2–9. Colabuono reported

his observation to his supervisor, Pat Kauffman.3 [80] ¶ 48; [71-8] at 13, 47:18–21.

Colabuono’s description of plaintiffs’ play raised a concern for Kauffman

because it could be evidence of collusion between the dealer and the player or of

2 Yaldo said that they left the casino before cashing out their chips because it was

approximately 4:00 a.m. and they believed it was dangerous to travel home with a large

sum of money in their possession at that time of day. [71-3] at 49, 194:10–21.

3 Colabuono did not observe hand signaling by the plaintiffs. [71-8] at 15, 57:15–19.

other methods of cheating. [71-7] at 11, 38:5–14. As a result, Kauffman drove to the

casino to review the surveillance video footage with Colabuono. Id. at 11, 38:15–

39:1. Kauffman watched the video and determined that the Illinois Gaming Board’s

on-site agent should be notified because: (1) Yaldo was sitting in a manner to

attempt to preview the community card, and (2) Kejbo appeared to be trying to

circumvent federal reporting requirements. [80] ¶ 49. Next, Kauffman called IGB to

report the suspicious conduct4; he spoke to Eric Caho, who was in the on-site IGB

office at the time. [71-7] at 14, 51:21–52:11.

Caho immediately went to Kauffman’s office to review the footage. Id. at 14,

52:20–53:8. Simultaneously, another member of the casino’s surveillance team,

Edward McHale, reviewed the footage in an adjacent room and he noticed that

plaintiffs were using hand signals.5 [80] ¶ 51; [71-7] at 15, 54:1–19. McHale

reported this discovery to Kauffman, Kauffman reviewed the footage with McHale,

and then Kauffman returned to the room where Caho was watching the footage to

show Caho the footage of plaintiffs’ hand signaling. Id. at 15, 54:7–19. From

watching all the footage, Caho determined that there was reasonable suspicion to

4 Kauffman believed his duty to report to the IGB had been triggered by the suspicious

activity he observed on the surveillance footage of plaintiffs’ play. [71-7] at 37, 142:20–

143:2.

5 McHale worked the shift after Colabuono’s shift, so when McHale arrived at the casino

that day, Colabuono summarized the events that had transpired during Colabuono’s shift

regarding plaintiffs. [71-9] at 4, 11:1–12:9. Specifically, Colabuono told McHale that after

Kejbo won $8,000, plaintiffs left the casino without cashing out their chips; McHale also

found this behavior suspicious. Id. at 4, 12:10–13:14. When McHale reviewed the footage of

plaintiffs’ play, he noticed plaintiffs slouching down to try to see the dealer remove the

cards from the shuffler, id. at 5, 16:4–17; and after a more thorough review of the footage,

McHale observed plaintiffs hand signaling to one another, id. at 12–13, 45:23–46:3. McHale

notified Kauffman of his observation. Id. at 13, 46:4–6.

detain plaintiffs. [71-10] at 16, 58:14–60:2. When Willie Curry arrived for his shift

and to relieve Caho as an on-site IGB agent, there was an ongoing review by the

casino’s surveillance team, so Caho briefed Curry on the situation involving

plaintiffs. [80] ¶ 53; [71-10] at 14, 53:11–18; id. at 97:12–98:7. Per Caho’s

instructions, if plaintiffs returned to the casino Curry was to detain plaintiffs and

he was to contact the IGB investigators.6 [80] ¶ 54; [71-10] at 14, 52:15–53:15; [71-

11] at 29, 112:11–18. During Curry’s shift, the casino’s cashier cage called to notify

him that plaintiffs had returned to the property and that the cashier cage had

already called the casino’s security to detain plaintiffs. [80] ¶¶ 55–58; [82] ¶ 4; [71-

11] at 10, 34:23–35:3. Curry then notified his supervisor and contacted the IGB

investigators, Frank Scanio and Allen Brown. [80] ¶¶ 55–56; [71-11] at 11, 40:12–

41:4.

Before plaintiffs could cash out their chips, the casino’s security team

detained them. [71-7] at 16, 59:11–61:20. One of the security guards grabbed Kejbo’s

shoulder in the process of detaining plaintiffs.7 [71-4] at 30, 119:1–11. At the

direction of the IGB agents, the security personnel kept plaintiffs in the casino’s

holding room until Scanio and Brown arrived. [80] ¶¶ 60–61. Plaintiffs objected to

being detained; they insisted they had not cheated or done anything illegal. [82]

6 It is part of IGB protocol for the on-site IGB agents to contact the IGB investigators when

there is a situation that potentially involves cheating. [71-11] at 10, 35:18–24. On-site IGB

agents are responsible for regulating the casino industry, [71-10] at 8, 27:22–28:8; and IGB

investigators handle everything involved with investigating any alleged criminal activity,

id. at 17, 63:5–16.

7 Kauffman does not know how the casino’s security team got the message to detain

plaintiffs; the surveillance team did not make any requests of the security team about

plaintiffs. [71-7] at 36, 140:18–141:3.

¶ 14. Plaintiffs asked to leave, but they were told that they were not free to leave.

Id.

Scanio and Brown met at the casino, discussed the case, reviewed the video,

and then interviewed Kejbo. [80] ¶¶ 67, 70; [71-6] at 11, 40:14–41:17. In reviewing

the video, Scanio said he was looking for “everything,” even though he had been

briefed on the basic facts of the case—plaintiffs used hand signals to communicate

the value of the community card to each other before placing bets. [71-5] at 17,

63:11–64:6; id. at 22, 82:6–19. Scanio and Brown observed Yaldo slouching to view

the unexposed community card and communicating the card’s value to Kejbo with

his fingers; Scanio and Brown both believed that such hand signaling was illegal.

[80] ¶¶ 68–69. After that, Scanio and Brown interviewed Kejbo separately and

outside the presence of the casino’s personnel. Id. ¶ 70. By the time Scanio and

Brown began the interview, plaintiffs had already been detained for approximately

three hours and thirty minutes. [71-5] at 31, 120:8–16. During his interview, Kejbo

said that Yaldo would hand signal the value of the community card to him while

they were playing, and Kejbo admitted that he was cheating during his play. [80]

¶ 71; [71-6] at 5, 15:24–16:13. Meanwhile, Yaldo also attempted to provide Scanio

with case law finding that hole carding and signaling are not illegal. [82] ¶ 14.

Ultimately, both Kejbo and Yaldo signed an Illinois State Police Voluntary

Statement. [80] ¶¶ 72, 73. Kejbo’s statement includes the following language: “we

saw the bottom of the first card place [sic] on the table during Missippipi [sic] Stud

gaming.” Id. ¶ 72. Scanio drafted an Arrest Synopsis Sheet detailing the charge of

“Cheats at a Gambling Game – 230 ILCS 10/18(d)(4)” and plaintiffs’ arrest. Id. ¶ 77.

Scanio and Brown then escorted plaintiffs to Will County Detention. Id. ¶ 78.

Plaintiffs were charged with a Class 4 Felony for Cheating in a Gambling Game

under 230 ILCS 10/18(d)(4). Id. ¶ 79. The basis for plaintiffs’ charges was Scanio’s

and Allen’s independent review of the surveillance video footage, and their

interview of Kejbo, through which they learned that plaintiffs used hand signals to

convey the value of the community card and to adjust their bets accordingly. [71-5]

at 46–47, 181:22–182:15. Plaintiffs were acquitted after a bench trial. [80] ¶ 81. The

trial judge, however, stated: “there is absolutely no doubt in my mind that these two

defendants cheated when they were in the casino, they knew they were cheating

when they were in the casino and they wanted to cheat.” Id. ¶ 82; [71-31] at 26. The

judge acquitted Kejbo and Yaldo of the cheating charges because he found that the

state had failed to prove beyond a reasonable doubt that any particular bet had

been placed as a result of the cheating. Id. at 27.

In turn, plaintiffs brought federal and state-law claims against the private

and state defendants. Plaintiffs do not oppose defendants’ motions for summary

judgment on the intentional infliction of emotional distress and defamation claims,

and plaintiffs agree that defendant Shelton is entitled to summary judgment for

lack of personal involvement in the alleged violation. [78] at 18 n.4, 22. Accordingly,

plaintiffs’ negligence and respondeat superior claims, to the extent they are based

on the duty to refrain from defaming plaintiffs, are dismissed. That leaves plaintiffs’

claims for unreasonable search, unreasonable seizure, and false arrest under 42

U.S.C. § 1983; plaintiffs civil conspiracy claim under 42 U.S.C. § 1983 and § 1985;

plaintiffs’ state-law claims for false arrest, malicious prosecution, and theft and

conversion; and the remainder of their negligence and respondeat superior claims.

III. Analysis

A. Unreasonable Search, Unreasonable Seizure, and False Arrest

In order to prevail on plaintiffs’ § 1983 claims for unreasonable search,

unreasonable seizure, and false arrest, plaintiffs must show that probable cause

was lacking. Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015). Probable cause

exists at the time of an arrest if the facts and circumstances within the officer’s

knowledge would make a reasonable person believe that the suspect has committed

an offense. Ewell v. Toney, 853 F.3d 911, 919 (7th Cir. 2017). In deciding whether

probable cause exists, courts must consider the perspective of a reasonable officer

facing the same situation. Id. On summary judgment, though, courts must also give

the non-moving party “the benefit of conflicts in the evidence about what the officers

actually knew at the time.” Hart v. Mannina, 798 F.3d 578, 587 (7th Cir. 2015)

(quoting Williams v. City of Chi., 733 F.3d 749, 756 (7th Cir. 2013)).

Plaintiffs argue that they were under arrest from the moment the casino’s

security team escorted them to the casino’s holding cells, and that defendants did

not make a probable cause determination before effectuating that arrest. [78] at 2–

4. Plaintiffs take issue with the fact that, according to plaintiffs, IGB agents relied

solely on representations made by the casino’s employees when the IGB agents

ordered the casino’s employees to detain plaintiffs. Plaintiffs also note that Caho

admitted that when he directed the casino’s employees to arrest plaintiffs, he did

not know one way or the other whether hand signaling was illegal. Finally,

plaintiffs fault defendants for ignoring exculpatory evidence and clarifying facts

that were relevant to plaintiffs’ arrest, namely an opinion by the Supreme Court of

Nevada, which held that learning the value of the hole card in blackjack because of

the dealer’s sloppiness and signaling that value is not cheating.

Even if plaintiffs were seized for Fourth Amendment purposes when the

casino’s security escorted them to the holding cells, there was probable cause to

believe they violated the Illinois Riverboat Gambling Act. Caho authorized the

detention, and it is undisputed that he did more than simply rely on the word of the

casino’s employees. He independently reviewed the surveillance footage before

concluding that plaintiffs should be detained. From watching the surveillance

footage, Caho learned that plaintiffs used hand signals to communicate the value of

the community card to each other before it was revealed to the table so that they

could adjust their betting strategies in light of that information; and he learned that

plaintiffs left the casino without cashing in their chips, even though they had won a

large sum and had enough chips from their previous winnings to likely trigger

federal reporting requirements.8

8 The Illinois Gaming Board requires casino employees to “prevent[] a patron from

circumventing the reporting requirements.” [71-15] at 3. Such requirements were

established “to guard against money laundering through financial institutions.” 31 U.S.C.

§ 5318(h)(1). The regulation requires casinos, in relevant part, to train personnel to identify

“unusual or suspicious transactions, to the extent that the reporting of such transactions is

required by this chapter, by other applicable law or regulation, or by the casino’s own

administrative and compliance policies.” 31 C.F.R. § 1021.210(b)(iii). One such regulation,

which is relevant here, provides: “Each casino shall file a report of each transaction in

Plaintiffs emphasize Caho’s admission that he did not know whether hand

signaling was illegal at the time of the arrest. [71-10] at 14, 53:4–10. Yet, certainty

is not required for probable cause to exist. Hart, 798 F.3d at 587. Probable cause is

a “fluid concept that relies on the common-sense judgment of the officers based on

the totality of the circumstances.” Id. (quoting U.S. v. Reed, 443 F.3d 600, 603 (7th

Cir. 2006)). Caho gave the order to arrest plaintiffs because he had concluded from

viewing the surveillance footage that plaintiffs cheated because they took

“deliberate actions . . . to try to gain an advantage at a table game.” [71-10] at 16,

58:21–59:8. And Caho reasoned that trying to gain an advantage in that manner

met the criteria for a criminal charge, so plaintiffs should be detained and

interviewed. Id. at 16, 59:9–16.

The Illinois Riverboat Gambling Act makes it a Class 4 felony to cheat at a

gambling game, 230 ILCS 10/18(d)(4); and the statute defines cheating as

“alter[ing] the selection of criteria which determine[s] the result of a gambling game

or the amount or frequency of payment in a gambling game.” 230 ILCS 10/4(i). The

statute also prohibits players from placing a bet “after acquiring knowledge, not

available to all players, of the outcome of the gambling game which is subject of the

bet.” 230 ILCS 10/18(d)(7). Given that the subject of a player’s bet in Mississippi

Stud Poker is the unknown value of the community card, a reasonable officer in

Caho’s position could conclude that when plaintiffs figured out the value of the

currency, involving either cash in or cash out, of more than $10,000.” Id. § 1021.311.

Structuring transactions to evade the reporting requirement can be a federal crime, and

“walking with chips” is potentially indicative of illegal structuring. 31 U.S.C. § 5324; In re

Equip. Acquisition Res., Inc., 803 F.3d 835, 837–38 (7th Cir. 2015).

community card and communicated it to each other in order to place effective bets,

plaintiffs were violating the Illinois Riverboat Gambling Act. When plaintiffs

communicated the value of the community card to each other, they acquired

information that they were not supposed to have about what card(s) would be a part

of the complete hand. As such, they gained an unfair advantage in betting on that

hand—they knew whether the two cards in their own hands would combine with

the community cards to create a winning hand. Since the standard in assessing

probable cause is objective, it is irrelevant that Caho was subjectively unaware of

whether hand signaling was illegal. Caho used common-sense judgment in light of

all the facts before him in deciding that plaintiffs should be arrested.

Plaintiffs assert that hand signaling is not illegal, because knowledge about

the value of the community card does not change the outcome of the hand. [78] at

14. I disagree. The criteria that determine the result of the game—the success or

failure of the wager—include the revelation of the community card at a specific

moment in time. By spying on the cards, Yaldo altered the criteria and cheated as

that term is defined in the statute. By receiving the secret information through the

hand signals, Kejbo also cheated. The information presented to Caho about

plaintiffs’ play also reasonably suggested that Kejbo and Yaldo placed bets after

acquiring knowledge about the outcome of the hand that was not available to all

players—a violation of 230 ILCS 10/18(d)(7). Even if the crime charged was

different than the crime for which probable cause existed, there is no Fourth

Amendment violation so long as the information known to an officer supported

probable cause to believe a closely related crime had been committed. Kelley v.

Myler, 149 F.3d 641, 647–48 (7th Cir. 1998).9 Here, Caho had reliable information

that Yaldo was sneaking looks at the cards and signaling that information to Kejbo.

Since the crime described in 230 ILCS 10/18(d)(4) is closely related to the crime

described in 230 ILCS 10/18(d)(7), the fact that plaintiffs were charged under the

former and not the latter is of no consequence. There was probable cause to arrest

the plaintiffs before the casino security guards escorted them to the holding area.

Plaintiffs’ objection that Scanio ignored exculpatory evidence and clarifying

facts by disregarding Yaldo’s citation to an opinion from the Supreme Court of

Nevada is immaterial. Decisions from another state do not control Illinois law and

police officers can, consistent with the Fourth Amendment, leave the finer points of

statutory interpretation to the court system.

In any event, probable cause existed before the private security guards

detained plaintiffs for an independent reason: plaintiffs were suspected of

attempting to evade federal reporting requirements by leaving the casino without

redeeming approximately $10,000 in chips. Colabuono noticed that Kejbo had other

chips on the table when he won $8,000; although Colabuono could not determine for

certain the total value of Kejbo’s chips, he found plaintiffs’ decision to leave without

9 Neither party presented any controlling authority on the legality of spying and signaling

the value of a community card under the Illinois Riverboat Gambling Act. Even if Caho’s

application of the facts before him to the statute was wrong or is later determined to be

incorrect, his decision to arrest plaintiffs was reasonable and not a constitutional violation.

Heien v. North Carolina, 135 S.Ct. 530, 539 (2014) (no Fourth Amendment violation when a

police officer’s suspicion that conduct was illegal was based on an objectively reasonable

mistake of law). There is sufficient ambiguity in the statute’s definition of cheating to make

Caho’s belief reasonable even if it was mistaken. Indeed, the trial judge seemed to agree—

he branded Kejbo and Yaldo as cheaters notwithstanding his decision to acquit them.

cashing out suspicious. Kauffman was aware of Colabuono’s observation and

Kauffman similarly perceived plaintiffs’ behavior to be suspicious. This suspicion

was one of the reasons Kauffman notified on-site IGB agents about what he and

Colabuono had observed on the surveillance footage. Aside from characterizing

defendants’ points about the potential reporting evasion as “unavailing” and adding

a conclusory assertion that that requirement “does not excuse or validate the

defendants’ unlawful arrest and detainment of Plaintiffs,” see [78] at 21, plaintiffs

offer no substantive arguments in response. As such, they have forfeited any claim

that probable cause did not exist for an arrest based on that suspicion.

The facts before Caho were a sufficient basis from which he could form a

reasonable belief to suspect criminal activity from plaintiffs. Smith v. Lamz, 321

F.3d 680, 684–85 (7th Cir. 2003). Even though Caho did not know with complete

certainty that plaintiffs’ conduct (both the hand signaling and the leaving the casino

without cashing out) constituted criminal activity, only a probability of criminal

activity was necessary. Information received from a reasonably truthful source that

raises a substantial chance of criminal activity is sufficient. Id. There is no evidence

in the record that Colabuono or Kauffman were not reliable sources; it was

reasonable for Caho to consider their information in combination with his own

analysis from reviewing the surveillance footage before concluding that there was

probable cause to arrest plaintiffs.10

10 Even if plaintiffs’ theory of arrest involved Curry, Scanio, or Brown, the conclusion would

remain the same. Curry had the same facts as Caho—Caho briefed Curry on the situation

when Curry arrived for his shift and Curry did not take any further investigatory steps.

With respect to Scanio and Brown, they had more information than Caho because they

B. Civil Conspiracy

Plaintiffs bring a civil conspiracy claim under both § 1983 and § 1985. Since

plaintiffs’ false arrest and unreasonable search and seizure claims did not survive

summary judgment, plaintiffs may not prevail on their civil conspiracy claim under

§ 1983. Katz-Crank v. Haskett, 843 F.3d 641, 650 (7th Cir. 2016) (“Without a viable

federal constitutional claim, the conspiracy claim under § 1983 necessarily fails;

there is no independent cause of action for § 1983 conspiracy.”). Plaintiffs’ civil

conspiracy claim under § 1985(3) also fails because there is no evidence in the

record of the requisite element of racial or class-based discriminatory animus. Katz-

Crank, 843 F.3d at 650.

In any event, there is no evidence of an agreement between the private and

state defendants to violate plaintiffs’ constitutional rights. Moore v. Marketplace

Rest., Inc., 754 F.2d 1336, 1352 (7th Cir. 1985) (“In order to establish a conspiracy,

the plaintiff must demonstrate that the state officials and the private party

somehow reached an understanding to deny the plaintiffs their constitutional

rights.”). Both sets of defendants operated within their own spheres, following

directives where appropriate. The casino reported what it perceived to be suspicious

conduct to the state defendants, and the casino obeyed Caho’s order and detained

plaintiffs when they returned to the casino, but there is no evidence that private

defendants asked the state defendants to arrest or prosecute plaintiffs, nor is there

evidence of a meeting of the minds between the private and state defendants about

interviewed Kejbo and discussed their analysis together before deciding to seek charges

against plaintiffs.

plaintiffs’ arrest and prosecution. In fact, there is evidence that the state defendants

performed their own investigation before deciding to arrest plaintiffs. Without more,

this evidence is insufficient to establish a conspiracy between defendants.

C. Qualified Immunity

Even if probable cause were lacking, plaintiffs’ § 1983 claims still would not

prevail against the state defendants because qualified immunity shields the state

defendants from liability. The threshold for qualified immunity is lower than

probable cause—as long as the officer reasonably believed that probable cause

existed to arrest plaintiffs, then the officer is entitled to qualified immunity, even if

that belief was mistaken. Fleming v. Livingston Cty., Ill., 674 F.3d 874, 880 (7th

Cir. 2012). All of the state defendants had arguable probable cause—Kejbo and

Yaldo appeared to be cheating by spying on the community cards and

surreptitiously signaling the value before placing bets, and it was reasonable to

believe that this conduct was a crime. Qualified immunity protects all but the

plainly incompetent, and plaintiffs cite no controlling Illinois authority interpreting

the Illinois Riverboat Gambling Act to permit their behavior. The state defendants

based their decisions on a review of surveillance footage and the conversations with

casino personnel. This was not a plainly incompetent investigation and it did not

violate clearly established law. The state defendants are protected by qualified

immunity.

D. Under the Color of State Law

Plaintiffs’ § 1983 claims against the private defendants do not survive

summary judgment because plaintiffs cannot establish that the private defendants

were acting under color of state law. L.P. v. Marian Catholic High Sch., 852 F.3d

690, 696 (7th Cir. 2017) (private individuals may only be liable under § 1983 if they

acted under color of state law). To satisfy the “under color of state law” requirement,

plaintiffs must show one of the following: (1) that the state effectively directs or

controls the private defendants’ actions or that the state delegates a public function

to a private entity, Swanson v. Horseshoe Hammond, LLC, 445 Fed. App’x. 868, 870

(7th Cir. 2011); or (2) that the private defendants were a willful participant in joint

action with the state, L.P., 852 F.3d at 696.

Plaintiffs argue that the private defendants acted at the direction of and on

behalf of the state defendants when they detained plaintiffs. But not all directions

from a state official provide the color of law for private actors. Private citizens have

the power to make an arrest based on reasonable grounds in Illinois, see 725 ILCS

5/107-3, and plaintiffs do not cite any authority for the proposition that the casino

defendants needed to make an independent decision to detain to be acting in a

private capacity. In Swanson, the court considered a similar fact pattern to this

case—a casino security guard called the police to report a trespassing patron and

the security guard waited with the patron in a private office until the police

arrived—and concluded that the casino’s security officer did not act under color of

state law in detaining a patron until the police arrived. Swanson, 445 Fed. App’x. at

870. The reasoning behind this decision, in part, was that the power to arrest is not

exclusively reserved to the government and by itself does not constitute state action.

Id. (citing Wade v. Byles, 83 F.3d 902, 906 (7th Cir. 1996)); see also Spencer v. Lee,

864 F.2d 1376, 1380 (7th Cir. 1989). The direction given by the state defendants

was a power that the private defendants already had, and like Swanson, that is not

state action.

Plaintiffs also argue that the private defendants acted jointly with the state

defendants because the private defendants conspired with the state defendants to

arrest plaintiffs. As discussed above, however, there is no evidence of a

conspiratorial agreement. The private defendants communicated information to and

did not request action from the state. Reporting activity to an officer, as required by

federal regulation and the casino’s rules, does not rise to the level of acting under

the color of state law. Gayman v. Principal Fin. Servs., Inc., 311 F.3d 851, 853 (7th

Cir. 2002) (“That ‘a business is subject to state regulation does not by itself convert

its action into that of the State for purposes of the Fourteenth Amendment.’”)

(citation omitted). That defendants worked side-by-side and communicated with one

another does not establish a sufficient nexus between defendants; the private

defendants did not act under color of state law and they cannot be liable under

§ 1983.

E. State-Law Claims

The state-law claims of false imprisonment and malicious prosecution, like

the § 1983 claims, require proof of the absence of probable cause. Coleman v. Vill. of

Evergreen Park, 2017 IL App (1st) 161492-U, ¶ 23, (2017); Grainger v. Harrah’s

Casino, 2014 IL App (3d) 130029, ¶ 38 (2014). But there was probable cause to

arrest and prosecute the plaintiffs, as discussed above, so defendants are entitled to

judgment as a matter of law on these claims. To the extent plaintiffs’ negligence and

the related respondeat superior claims are based on the private defendants’ duty to

refrain from arresting and prosecuting plaintiffs or the duty to know the law and

rules regarding cheating at a gambling game, see [50] ¶¶ 87–88, they too must fail

because defendants had probable cause to take such actions, and therefore, they did

not owe plaintiffs a duty to refrain from taking those actions and they did not

breach a duty to know the law and rules.

The remaining claims are for theft and conversion, as well as negligence and

respondeat superior, but only to the extent they are based on the private

defendants’ duty to refrain from taking plaintiffs’ property or the duty to inform

patrons of casino rules regarding cheating at a gambling game. Id. [50] ¶¶ 87, 89.

When all of the federal claims drop out, the default rule advises district courts to

relinquish jurisdiction over any supplemental state-law claims. Burritt, 807 F.3d at

252. This case does not present any unique circumstances that would warrant a

departure from this default rule. Plaintiffs have not established that diversity

jurisdiction exists. The third amended complaint is based on federal question and

supplemental jurisdiction; moreover, it only alleges plaintiffs’ citizenship and it does

not allege defendants’ citizenships (and one defendant is an LLC with unknown

members). Dalton v. Teva North America, 891 F.3d 687, 690 (7th Cir. 2018)

(complete diversity among the parties is required and plaintiffs bear the burden of

proving the citizenship of each party); Martin v. Living Essentials, LLC, 653 Fed.

App’x. 482, 485 (7th Cir. 2016) (the citizenship of an LLC is the citizenship of its

members). As such, plaintiffs’ remaining state-law claims are dismissed without

prejudice. 28 U.S.C. § 1367(c)(8).

IV. Conclusion

Defendants’ motions for summary judgment, [69] and [72], are granted. The

clerk shall enter judgment on the merits in favor of the defendants on all federal

claims and the state-law claims for false arrest, malicious prosecution, intentional

infliction of emotional distress, and defamation. The state-law claims for theft and

conversion, as well as for negligence and respondeat superior, only to the extent

they are based on a duty to refrain from taking property or the duty to inform

patrons of casino rules regarding cheating at a gambling game, are dismissed

without prejudice. Terminate civil case.

ENTER:

hA CAL.

ManishS.Shah

United States District Judge

Date: June 29, 2018

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