DeAngelo v. Veach

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MATTHEW DEANGELO, )

)

Plaintiff, )

)

v. ) No. 1:17 C 2571

) Hon. Marvin E. Aspen

VILLAGE OF ROSEMONT, DANIEL )

VEACH, JOSEPH ALBANDIA, and )

MONTERREY SECURITY )

CONSULTANTS, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff Matthew DeAngelo filed this action against the Village of Rosemont (the

“Village”), Officer Daniel Veach, Officer Joseph Albania (together, the “Officers”), and

Monterrey Security Consultants, Inc. (“Monterrey”), asserting a claim under 42 U.S.C. § 1983

for unreasonable seizure and use of excessive force (Count I), as well as state-law battery

(Count II) and malicious prosecution (Count III) claims. Presently before us is the Village and

the Officers’ motion for summary judgment on Counts I and II of Plaintiff’s complaint.1 For the

reasons set forth below, we grant the motion in part and deny it in part.

BACKGROUND

On August 6, 2016, Plaintiff visited Adobe Gila’s, a restaurant and bar located at MB

Financial Park in Rosemont, Illinois.2 (SOF ¶¶ 13–14, 32.) The Village contracted with

1 For the purposes of this motion for summary judgment, we refer to the Village and the Officers

as the “Defendants.”

2 Unless otherwise stated, the facts described herein are undisputed and culled from the parties’

Local Rule 56.1 statements of material facts and the attachments thereto (“SOF”). (See

Monterrey to provide private security services at MB Financial Park. (SOF ¶ 32;

PSAF ¶¶ 12–13; id., Ex. 2 (the “Agreement”) (Dkt. No. 55–2).) In the early morning hours of

August 7, 2017, Plaintiff had an encounter with a female bartender at Adobe Gila’s regarding a

spilled drink. (See Dep. of Matthew DeAngelo (“DeAngelo Dep”) at 39:1–47:3, SOF, Ex. D

(Dkt. No. 46–1) at Pg.ID#: 395–97.) Upset after the encounter, Plaintiff intentionally knocked

over a stack of napkins on the bar before returning to his group of friends with his drink. (Id.

at 46:2–46:12.) Shortly after returning to his group of friends, Plaintiff was approached by a

man wearing a black polo, who identified himself as a manager of Adobe Gila’s, and several

men wearing yellow shirts. (Id. at 47:4–48:6.) The man identifying himself as a manager asked

Plaintiff to leave the premises. (SOF ¶ 17; DeAngelo Dep. at 47:1–49:13.) Plaintiff walked over

to and stood by a stairway leading to the exit of Adobe Gila’s. (DeAngelo Dep. at 49:14–49:18.)

The individual who had identified himself as the manager and the men in yellow shirts again

approached Plaintiff and asked him to leave. (Id. at 50:11–50:18.) Plaintiff asked for a moment

to wait for his friends to catch up with him. (Id. at 50:13–51:1.) Then, five to seven men red in

shirts, who Plaintiff believed to be Monterrey security guards, exited an elevator, approached

Plaintiff, and instructed him to leave the bar immediately. (Pl. Resp. to SOF ¶ 18; DeAngelo

Dep. at 31:3–33:10, 51:4–52:9.) Plaintiff again requested a moment to wait for his friends. (Pl.

Resp. to SOF ¶ 18; DeAngelo Dep. at 52:1–52:9.) Two of the men in red shirts then pulled

SOF (Dkt. No. 46); Pl.’s Resp. to SOF (Dkt. No. 54); Pl.’s Statement of Additional Disputed

Facts (“PSAF”) (Dkt. No. 55).) Because Defendants’ did not file a response to Plaintiff’s

statements of additional facts, we deem all material facts set forth in Plaintiff’s statement of

additional facts admitted. See L.R. 56.1(a) (“If additional material facts are submitted by the

opposing party pursuant to section (b), the moving party may submit a concise reply in the form

prescribed in that section for a response. All material facts set forth in the statement filed

pursuant to section (b)(3)(C) will be deemed admitted unless controverted by the statement of the

moving party.”).

Plaintiff from the railing, and all of the guards pushed him to the ground.

(Pl.’s Resp. to SOF ¶¶ 18, 27; DeAngelo Dep. at 52:24–53:21.) Plaintiff felt the men in red

shirts hit and kick him while he was on the ground before placing him in handcuffs. (DeAngelo

Dep. at 75:24–76:3, 86:15–21, 109:1–5.)

The men assisted Plaintiff off the ground and escorted him in handcuffs to an elevator

and then to a room with two desks and a metal bench in the nearby parking garage of MB

Financial Park. (SOF ¶¶ 19–20; DeAngelo Dep. at 54:15–57:6.) There were two male police

officers in Rosemont Police Department uniforms present in the parking garage room when

Plaintiff arrived. (SOF ¶ 20; DeAngelo Dep. 57:21–58:10.) The Rosemont Public Safety

Incident Report lists the assigned officers as Daniel Veach and Joseph Albandia. (SOF, Ex. F

(Dkt. No. 46–1) at Pg.ID#: 558.) Plaintiff did not see any police officers at Adobe Gila’s before

he entered the parking garage room. (SOF ¶ 22.) An arrest report prepared by Officer Veach

indicates that he was dispatched to Adobe Gila’s for a “Criminal Trespass to Property.” (SOF,

Ex. F at Pg.ID#: 557.) Officer Veach then, per the incident report that he prepared, spoke with

Spiros Theodoropoulos, who stated that he had asked Plaintiff to leave Adobe Gila’s several

times asked Monterrey to remove Plaintiff when he refused. (Id. at Pg.ID#: 559.)

Theodoropolous, however, has no recollection of these events, though he stated that calling the

police would be typical practice where Adobe Gila’s staff were unable to remedy a situation.

(SOF ¶ 26; PSAF ¶ 3; Deposition of Spiros Theodoropolous (“Theodoropolous Dep.”) at 24:6–

24:13, 32:1–32:6, 39:5–39:8.)

The Officers searched Plaintiff’s pockets, took photos of him, and asked such questions

as his name, date of birth, and employment while Plaintiff remained handcuffed. (DeAngelo

Dep. at 57:10–16, 116:1–19.) One officer took photos while the other officer wrote the ticket for

violation of the municipal trespass ordinance. (Id. at 60:5–60:18.) The Officers released

Plaintiff after he paid the cash bond. (SOF ¶ 29; DeAngelo Dep. at 122:1–122:14.) Plaintiff

remained in the parking garage room with the Officers for a total of ten to fifteen minutes.

(DeAngelo Dep. at 60:2–60:4.)

LEGAL STANDARD

Summary judgment is proper only when “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 “exists when there is sufficient evidence favoring the non-moving party to permit a trier

of fact to make a finding in the non-moving party’s favor as to any issue for which it bears the

burden of proof.” Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017); see

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986) (a genuine

issue for trial exists when “the evidence is such that a reasonable jury could return a verdict for

the nonmoving party”). In deciding whether summary judgment is appropriate, we must accept

the nonmoving party’s evidence as true and draw all reasonable inferences in that party’s favor.

Laskin v. Siegel, 728 F.3d 731, 734 (7th Cir. 2013); Anderson, 477 U.S. at 255,

106 S. Ct. at 2513. We do not “judge the credibility of the witnesses, evaluate the weight of the

evidence, or determine the truth of the matter. The only question is whether there is a genuine

issue of fact.” Gonzalez v. City of Elgin, 578 F.3d 526, 529 (7th Cir. 2009) (citing Anderson,

477 U.S. at 249–50, 106 S. Ct at 2511). “Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no genuine issue for trial.”

Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (citation omitted).

ANALYSIS

Defendants have moved for summary judgment on both of Plaintiff’s remaining claims:

Count I of his complaint against the Officers for violation of his constitutional rights pursuant to

42 U.S.C. § 1983 and Count II of his complaint against all defendants for state-law battery.

Respectively, the parties dispute whether the Officers had probable cause to seize Plaintiff and

whether Monterrey was the Village’s agents such that the Village may be held vicariously liable

for the Monterrey security guards’ alleged battery.

I. COUNT I: EXCESSIVE FORCE AND UNREASONABLE SEIZURE

The Officers and the Village argue that summary judgment should be granted in their

favor with respect to Plaintiff’s § 1983 claim because the Officers did not use physical force

against Plaintiff and had probable cause to believe Plaintiff had committed trespass. (Mem. ¶ 11;

Reply (Dkt. No. 56) at 2.) In his response, Plaintiff abandons his excessive force claims against

the Officers, and we therefore grant Defendants’ motion for summary judgment on Count I

insofar as it relates to Plaintiff’s excessive force claim. (Pl.’s Resp. (Dkt. No. 53) at 2–3.)

However, Plaintiff maintains his claim under 42 U.S.C. § 1983 that the Officers violated his

“right to be free from unreasonable seizures . . . from state actors such as defendants Veach and

Albania, as protected by the Fourth and Fourteenth Amendments to the Constitution of the

United States.” (Compl. ¶ 26; see id. ¶¶ 25–30; see also Pl. Resp. at 4–5.)

A. Waiver

Defendants ask us to enter judgment in their favor on Count I in its entirety, but their

opening brief addresses only Plaintiff’s excessive force claim under 42 U.S.C. § 1983. (See

Mem. ¶ 11 (“It is undisputed that no police officer struck plaintiff. No police officer threw him

onto the floor. He was not handcuffed or escorted out of Adobe Gila’s by any police officer. He

was issued an administrative violation ticket and was not charged criminally. Even viewing the

facts in the light most favorable to plaintiff, no harm was done to plaintiff by any police officer.

Plaintiff’s 42 U.S.C. § 1983 action cannot stand.”).) While their reply brief addresses Plaintiff’s

unreasonable seizure claim, arguments raised for the first time in a reply brief are generally

waived. Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“[T]he district court is entitled

to find that an argument raised for the first time in a reply brief is forfeited.” (citing Cromeens,

Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376, 389 (7th Cir. 2003))); see also, e.g., Alma

Garcia v. Draw Enters. III, LLC, 2018 WL 6045206, at *7 (N.D. Ill. Nov. 19, 2018) (“But by

failing to raise this argument until its reply brief, Draw forfeited the point for purposes of

summary judgment.”).

The waiver rule “is to ensure that the opposing party is not prejudiced by being denied

sufficient notice to respond to an argument.” Hernandez v. Cook Cty. Sheriff’s Office,

634 F.3d 906, 913 (7th Cir. 2011). Despite Defendants’ failure to address Plaintiff’s

unreasonable seizure claim in their opening brief, Plaintiff devoted most of his response brief to

arguments concerning his unreasonable seizure claim. (Pl.’s Resp. at 2–5.) Defendants’ reply

brief, while again limited, merely responds to Plaintiff’s arguments concerning his unreasonable

seizure claim. (Reply at 1–2.) We find that Plaintiff is not prejudiced by Defendants’ failure to

address his unreasonable seizure claim in their opening brief, and Defendants have not waived

their arguments regarding the same.

B. Unreasonable Seizure

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV. The “general rule” is

that “‘Fourth Amendment seizures are “reasonable” only if based on probable cause’ to believe

that the individual has committed a crime.” Bailey v. United States, 568 U.S. 186, 192,

133 S. Ct. 1031, 1037 (2013) (quoting Dunaway v. New York, 442 U.S. 200, 213,

99 S. Ct. 2248, 2257 (1979)); see Matz v. Klotka, 769 F.3d 517, 522 (7th Cir. 2014). Officers

have probable cause to seize an individual when the “totality of the circumstances known” would

warrant a reasonable person believing the individual “had committed, was committing, or was

about to commit a crime.” Gutierrez v. Kermon, 722 F.3d 1003, 1008 (7th Cir. 2013) (citing

Abbott, 705 F.3d at 714). “This standard does not require that the officer’s belief turn out to be

correct; it need only be reasonable.” Bailey v. City of Chi., 779 F.3d 689, 694 (7th Cir. 2015)

(citing Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543 (1983)); see also

Qian v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999) (“This flexible, commonsense approach does

not require that the officer’s belief be correct or even more likely true than false, so long as it is

reasonable.” (citing Brown, 460 U.S. at 742, 103 S. Ct. at 1543)). Thus, “[t]he existence of

probable cause to arrest is an absolute defense to any § 1983 claim against a police officer for

false arrest or false imprisonment.” Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 713–14

(7th Cir. 2013); see also Hurt v. Wise, 880 F.3d 831, 841 (7th Cir. 2018) (same).

Defendant argue that the Officers had probable cause to seize Plaintiff because, based on

the facts provided to them, “[c]learly there was probable cause to believe plaintiff was

trespassing.” (Reply at 2.) More specifically, Defendants argue the fact that Plaintiff “was

brought to them by security guards after being removed from Adobe Gila’s apparently against

his will” establishes the Officers’ probable cause to believe he had trespassed. Id.

Defendants have failed to show that no genuine issue of material fact remains as to

whether the Officers had probable cause to seize Plaintiff. As Plaintiff points out in his response

and statement of additional facts, that a “man was brought [the Officers] by security guards after

being removed from Adobe Gila’s apparently against his will” does not tell the whole story.

(Reply at 2; see Resp. at 5 (describing the conflicting accounts of the facts known to the Officers

at the time of Plaintiff’s seizure).) For example, Defendant Veach created an “incident report,”

provided by Defendants as an exhibit to their statement of material facts, which appears to give a

different account of the totality of the circumstances known to the Officers when they seized

Plaintiff:

“Upon arrival, I spoke with Spiros Theodoropoulos who was working security at

Adobe Gilas, 5455 Park Pl. He stated that he had asked the offender, named

Matthew Isiah Deangelo to leave the bar several times, because he was being

unruly. The offender refused to leave the bar and Spiros notified Monterey security

to remove him from the Bar. The offender was relocated to the security holding

facility at MB Financial Park, 5501 Park Pl.”

(SOF, Ex. F at Pg.ID#: 559.)

Thus on the one hand, the Officers state that Plaintiff was simply brought to them in

handcuffs, yet on the other hand they describe “arriving” at Adobe Gila’s and having a

discussion with Theodoropolous regarding Plaintiff’s alleged trespass. (Id.; Reply at 2) This

account is further complicated given that Mr. Theodoropoulos denies any recollection of this

conversation with the Officers, and that the Officers now deny being dispatched to Adobe Gila’s

at all. (SOF, Ex. B at Pg.ID#: 366; PSAF ¶ 11.) Moreover, while the “incident report” provides

that Plaintiff “refused to leave the bar,” the police complaint states that he entered Adobe Gila’s

after being told to leave. (SOF, Ex. F at Pg.ID#: 560; see also PSAF, Ex. 1 (Dkt. No. 55–1).)

These issues of fact go directly to the totality of the circumstances known to the Officers at the

time they seized Plaintiff for trespassing and thus to whether they had probable cause to do so.

Because these genuine issues of material fact remain, we deny Defendants’ motion for summary

judgment on Plaintiff’s unreasonable seizure claim set forth in Count I of his complaint.

II. COUNT II: STATE LAW BATTERY CLAIM

Defendants argue they are entitled to judgment on Plaintiff’s state-law battery claim

because the undisputed material facts show that the Officers did not attack Plaintiff.

(Mem. ¶ 12.) Plaintiff concedes that there is no valid claim for battery against the Officers.

(Pl.’s Resp. at 5.) Plaintiff contends, however, that the Village is liable for the actions of the

Monterrey security guards under a respondeat superior theory. (Id. at 5.) Plaintiff argues that a

contract between the Village and Monterrey to provide security services at MB Financial Park

indicates that Monterrey, and thus its security guards, were the Village’s agents. (Id.)

Defendants contend that Plaintiff did not include the theory of respondeat superior in his

complaint, and therefore Plaintiff cannot rely on the theory at this stage. (Reply at 3.)

Defendants further urge that even if Plaintiff’s respondeat superior theory is available, it is

without merit because the Agreement stated that Monterrey was an independent contractor and

thus not an agent for which the Village would have respondeat superior liability.3 (Id. at 3–4).

A. Waiver

As an initial matter, Plaintiff adequately put the Village on notice of his respondeat

superior theory against the Village of Rosemont in his complaint. The doctrine of respondeat

superior provides that a principal or employer may be held liable for the acts undertaken by its

agent or employee within the scope of his agency or employment. Lawlor v. N. Am. Corp. of Ill.,

2012 IL 112530, ¶ 42, 983 N.E.2d 414, 427 (Ill. 2012); Lang v. Silva, 306 Ill. App. 3d 960, 972,

3 Defendants again did not raise these arguments until their reply. However, given that the scope

of their reply on the issue is limited to Plaintiff’s argument regarding the Village of Rosemont’s

respondeat superior liability, Plaintiff has not been prejudiced and we find that Defendants have

not waived their argument. See Hernandez, 634 F.3d at 913 (explaining that the waiver rule “is

to ensure that the opposing party is not prejudiced by being denied sufficient notice to respond to

an argument”).

715 N.E.2d 708, 716 (1st Dist. 1999). Here, Plaintiff directly alleged a contractual relationship

between the Village and Monterrey to provide security at the location of the incident at issue.

(Compl. ¶ 7 (“Upon information and belief, the Village of Rosemont contracted with Monterrey

Security Consultants, Inc., to provide security at various Village owned venues, such as MB

Financial Park at 5501 Park Place in Rosemont, IL.”).) Plaintiff also alleged that the Village was

liable as a principal for torts committed by “its agents and employees,” not just the Village of

Rosemont police officers. (Id. ¶ 37 (“Defendant City Village of Rosemont is liable as a principal

on a respondeat superior basis for all state law torts committed by its agents and employees

against the plaintiff.”).) Plaintiff thus gave Defendant “fair notice” of his claim and “the grounds

upon which it rests”—that is, he adequately pleaded his claim for state-law battery against the

Village of Rosemont on the basis that it is liable for the actions of Monterrey security officers as

its agents. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103 (1957)).

B. Vicarious Liability

We must next determine whether there is a genuine dispute of material fact as to whether,

as Defendants argue, the Monterrey security guards were independent contractors and thus not

the Village’s agents. Plaintiff argues the Agreement establishes that the Monterrey security

guards were agents of the Village. (See PSAF ¶ 13 (“Based upon that contractual arrangement,

adopted pursuant to the Village of Rosemont’s powers authorized under the ‘home rule’

provisions of the Illinois Constitution, the Monterrey Security employees who attacked and

arrested Mr. DeAngelo were agents of the defendant Village of Rosemont at the time of the

incident at issue in this litigation.”).) While “[a]s a general rule, no vicarious liability exists for

the actions of independent contractors,” Lawlor, 2012 IL 112530, ¶ 42, 983 N.E.2d at 427 (citing

Petrovich v. Share Health Plan of Ill., Inc., 188 Ill. 2d 17, 31, 719 N.E.2d 756, 765 (Ill. 1999)),

liability is not precluded if the individual is also an agent, Id. ¶ 43, 983 N.E.2d at 427 (citing

Horwitz v. Holabird & Root, 212 Ill. 2d 1, 13, 816 N.E.2d 272, 279 (Ill. 2004)). “The

determination of whether a person is an agent or independent contractor rests upon the facts and

circumstances of each case.” Lawlor, 2012 IL 112530, ¶ 44, 983 N.E.2d at 427. While the right

to control the manner in which the work is performed is the most significant factor, courts should

also consider: “(1) the question of hiring; (2) the right to discharge; (3) the manner of direction

of the servant; (4) the right to terminate the relationship; and (5) the character of the supervision

of the work done.” Id. (citing Petrovich, 188 Ill. 2d at 46, 719 N.E.2d at 772).

Considering the language of the Agreement in the context of these factors, no reasonable

jury could find that Monterrey employees were the Village’s agents. The Agreement explicitly

defines Monterrey as an independent contractor and not an agent. (Agreement § 6.1 (“It is

understood and agreed that Monterrey acts solely as an independent contractor in providing

services pursuant to this Agreement. Nothing herein shall be construed to create the relationship

of employer and employee, partnership, principal or agent or joint venture between Monterrey

and Village.”).) Further, the Agreement indicates that Monterrey, not the Village, retains control

over the manner in which the work is performed. (Id. §§ 5.1, 5.3, 6.2 (“All employees of

Monterrey shall be subject to the direction, supervision and control of Monterrey. . . . Monterrey

is solely responsible for all acts and omissions of Monterrey agents and employees in providing

services under this Agreement . . . Monterrey shall be solely responsible for all means, methods

and techniques employed in providing security services pursuant to this Agreement.”).)

Specifically, while the Village requests particular dates and places for security services,

Monterrey oversees the scheduling of its employees. (Id. § 2.5 (“Monterrey shall be responsible

for the scheduling of security personnel at the times and locations requested by the Village to

provide security services requested at a Village Event Venue.”).)

With respect to the other factors, although the Village retains the ability to prevent a

Monterrey employee from providing security services at a Village venue, the Agreement does

not provide the Village with the right to wholly discharge a Monterrey employee from

employment with Monterrey. (See Id. §§ 2.6, 7.3.) It is Monterrey, not the Village, that pays

wages and administers benefits to Monterrey employees. (Id. §2.11 (“Except as otherwise

expressly provided herein, Monterrey shall be responsible for all matters relating to the

employment of security personnel assigned to providing services . . . .”).) Monterrey also has

responsibility for the “training, licensing, and certification” and the “proper appearance and

conduct” of its employees. (Id. § 2.2.) Finally, Monterrey provides direct supervision of its

employees while they are on duty. (Id. §§ 5.1–5.3, 7.2.) See Dixon v. MB Real Estate Servs.,

LLC, 2016 IL App (1st) 152329-U, 2016 WL 3177987, ¶¶ 15–20 (1st Dist. June 7, 2016)

(holding that security guard was an independent contractor where contract between security

company and defendant identified guards as independent contractors and security company paid

salaries and benefits, provided guards with training and licensure, and scheduled and assigned

supervisors to oversee guards); Amigo’s Inn Inc. v. License Appeal Comm’n of City of Chi.,

354 Ill App. 3d 959, 966–67, 822 N.E.2d 107, 114–15 (1st Dist. 2004) (finding that bar security

guard was an independent contractor where bar did not directly pay, train, or provide uniforms or

assignments to guards although guards took direction from bar manager while on duty).

In sum, viewing the evidence in the light most favorable to Plaintiff, there exists no

dispute of material fact that Monterrey employees were not the Village’s agents. Therefore, the

Village cannot be liable for the actions of Monterrey employees on a respondeat superior basis.

Because no reasonable jury could find that the Village was liable on a respondeat superior basis

for the actions of Monterrey employees and Plaintiff concedes the liability of Officers Veach and

Albandia for the state-law battery claim, the Defendants’ motion for summary judgment with

respect to Count II is granted.

CONCLUSION

For the above reasons, we grant Defendants’ motion for summary judgment on Count I’s

excessive force claim and on Count II. (Dkt. No. 44.) Defendants’ motion for summary

judgment on Count I is denied as to Plaintiff’s unreasonable seizure claim. It is so ordered.

Progn Oper

United States District Judge

Dated: February 11, 2019

Chicago, Illinois

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