Glickman v. Village of Morton Grove

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACOB R. GLICKMAN,

Plaintiff,

No. 18 CV 4931

v.

Judge Manish S. Shah

VILLAGE OF MORTON GROVE, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Jacob R. Glickman alleges that he was mistreated at the hands of two

police officers from the Village of Morton Grove. Whether he is right depends in part

on what he was up to before they arrived and what the officers knew about it. Since

this is a motion to dismiss, Glickman’s version of the story controls whether he can

state a claim for violations of his constitutional and state-law rights. But Glickman

has told this same story elsewhere—including in another complaint he recently filed

involving this same set of events—and that complaint contains details that are absent

here. Those details matter.

I. Legal Standards

A complaint must contain a short and plain statement that plausibly suggests

a right to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009); Fed. R. Civ. P. 8(a)(2).

In ruling on a motion to dismiss, although a court must accept all factual allegations

as true and draw all reasonable inferences in the plaintiff’s favor, the court need not

do the same for legal conclusions or “threadbare recitals” supported by only

“conclusory statements.” Id. at 680–82. The plaintiff must provide “more than labels”

or “a formulaic recitation of a cause of action’s elements.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 545 (2007). A complaint must “contain either direct or inferential

allegations respecting all the material elements necessary to sustain recovery under

some viable legal theory.” Id. at 562.

II. Facts

For roughly ten days during the summer of 2017, Glickman and his dog

interacted with personnel from a camp that the Maine-Niles Association of Special

Recreation ran in Austin Park. [25-2] ¶¶ 21–22.1 Eventually, staff members from the

camp called their program manager, who called the police department to complain

about Glickman “with the intent of having [him] removed” from the park. [7] ¶ 21;

[25-2] ¶ 25. When Officers Atto and Walsh from the Village of Morton Grove arrived

on scene, a staff member from the camp told them that Glickman had been “acting

suspiciously for one and one-half weeks.” [25-2] ¶ 27.

Officers Atto and Walsh then approached Glickman. [7] ¶ 23. They stood on

either side of him to the point where he could not move, [7] ¶ 24, and then harassed

him, making him so concerned and apprehensive that he felt compelled to leave as

soon as Atto and Walsh backed-off and let him go. [7] ¶ 25.

1 Bracketed numbers refer to entries on the district court docket. The facts are taken from

the second amended complaint, [7], and documents that defendants submitted with their

motion to dismiss that I have judicially noticed, including the complaint that Glickman filed

in this court (the United States District Court for the Northern District of Illinois) against

the Maine-Niles Association of Special Recreation. See [25-2]; Glickman v. Maine-Niles

Association of Special Recreation et al., No. 18-cv-04907 (N.D. Ill. July 23, 2018) ECF No. 6.

See also infra, § III.A.

With Glickman on his way, Atto and Walsh circled back to the Maine-Niles

staff members, who told them that Glickman had been taking pictures in the direction

of two girls. [25-2] ¶ 28. Atto and Walsh left again and caught up to Glickman outside

his house. [7] ¶ 27. They accosted him and then continued to interrogate him while

demanding to see his cell phone. Id. Glickman asked if he was under arrest. [7] ¶ 28.

When they told him he was not, Glickman said he felt that Officers Atto and Walsh

were harassing him and that he was going to police headquarters to file a complaint.

Id. He then declined to answer any more questions without his attorney and walked

into his residence. Id.

Later that same day, Walsh went back to Austin Park and checked in again

with Maine-Niles staff. [25-2] ¶ 29.2 It was at this point that they gave him the blow-

by-blow. At first, they told Glickman to keep his distance from the campers. Id.

¶ 29(a). A few days later, they observed a camper who was separated from the group

holding Glickman’s puppy, and again distanced Glickman from the campers. Id.

¶ 29(b). Then, Glickman attempted to stop one camper as the camper ran past him,

and started approaching other campers, calling them by name and asking camp staff

about the campers and their medical conditions. Id. ¶ 29(c)–(d). Finally, on the

morning the camp staff called the police, Glickman initiated a conversation with them

and “was ‘confronted’ by” a Maine-Niles staff member. [25-2] ¶ 29(e).

2 The complaint in Glickman’s case against Maine-Niles does not clarify whether this

conversation took place before or after Atto’s and Walsh’s encounter with Glickman outside

of his house. See [25-2] ¶ 29. But since it is reasonable to infer that this conversation took

place after that encounter, and since that inference would be more favorable to Glickman’s

claims, I assume that it did.

The day’s events continued when Glickman appeared at Morton Grove’s police

headquarters and requested to speak with the ranking officer. [7] ¶ 30. While he was

waiting in the lobby of the station house, Atto and Walsh arrested him for disorderly

conduct. [7] ¶¶ 31–32. They never placed Glickman in a cell, but they did handcuff

him, make him remove his shoelaces, and issue him two summonses related to his

puppy (Glickman alleges both were baseless) before forcing him to leave through a

garage door into the garage area. [7] ¶¶ 32, 34–37. He was not given the chance to

retrieve his shoelaces. [7] ¶ 37. Glickman alleges that Atto and Walsh then caused

false information to be sent out on the police blotter. [7] ¶ 38.

The disorderly conduct charge was eventually dismissed because the

information on the criminal complaint failed to show that Glickman’s conduct had

breached the peace. [7] ¶ 39.

III. Analysis

A. Facts Considered

Normally, a court must convert a motion to dismiss to one for summary

judgment if it considers matters “outside the pleadings.” Fed. R. Civ. P. 12(d). There

are two pertinent exceptions. First, when opposing a Rule 12(b)(6) motion, a plaintiff

“may submit materials outside the pleadings to illustrate the facts the [plaintiff]

expects to be able to prove,” so long as those “new elaborations” are consistent with

the complaint. Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012).

Second, a court may consider judicially noticed facts. Papasan v. Allain, 478

U.S. 265, 269 n.1 (1986); Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).

Facts that may be judicially noticed include those that are “not subject to reasonable

dispute” because they “can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Such sources can

include “documents contained in the public record,” Menominee Indian Tribe of

Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998), and filings in other federal

cases, so long as they are also made a part of the record in the instant case. Cancer

Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 676 n.2 (7th Cir. 2009);

McFields v. Sheriff of Cook Cty., No. 17-CV-7424, 2018 WL 1784138, at *1 n.1 (N.D.

Ill. Apr. 13, 2018); Jackson v. Kane Cty., No. 09CV-4154, 2010 WL 4719713, at *2

(N.D. Ill. Nov. 9, 2010) (taking judicial notice of facts alleged in plaintiff’s state case).

Both exceptions apply, with limitations. The first applies to the documents that

Glickman attached to his response to the motion to dismiss, insofar as those

documents are consistent with the allegations in the complaint. See [30]; [30-1]; [30-

2]; [30-3]; [30-4]; Geinosky, 675 F.3d at 745 n.1. And for the most part, they are. For

instance, the operative complaint says that Atto and Walsh “did not observe”

Glickman do anything that would support a finding of probable cause, either while

he was in the park, [7] ¶ 6, outside his house, id. ¶ 8, or at Morton Grove’s police

headquarters. Id. ¶ 33. That technically comports with the report that the camp

program manager filed, [30-3], which describes a series of events that Atto and Walsh

did not observe but that were communicated to them by the program manager, who

heard about them largely from a staff member on-site. See id.

The problem is that the program manager’s report undermines Glickman’s

claims. It tends to suggest that Atto and Walsh knew more about Glickman’s

activities than Glickman lets on. If Glickman had attached these documents to his

complaint, they could be considered and would control. Forrest v. Universal Sav.

Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007). But as attachments to his briefing, they

remain “evidence” not properly considered as part of a motion to dismiss—even

though he relies on portions of them in his opposition. Accordingly, I have excised

them from my recitation of the facts.

The second exception also applies, but again, with limitations. Defendants

request that I take judicial notice of six documents, each of which is a public record.

See [25-2] (complaint in Glickman’s other federal lawsuit); [25-3] (the criminal

complaint in Glickman’s misdemeanor case); [25-4] (Glickman’s cash deposit bail

bond form); [25-5] (the criminal disposition sheet and transcript from Glickman’s

proceedings before the Cook County Second Municipal Department); [25-6]

(Glickman’s post-trial motion); [25-7] (the criminal disposition sheet and transcript

from Glickman’s post-trial motion proceedings in that same court). Their authenticity

has not been challenged, see [28], their existence is “not subject to reasonable

dispute,” and their “accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

I take judicial notice of these documents, but where they conflict with Glickman’s

allegations, I have credited the operative complaint and ignored the public record.

Tobey v. Chibucos, 890 F. 3d 634, 648 (7th Cir. 2018).

What’s trickier is defendants’ request to take judicial notice of the contents of

these documents. Of particular import are the allegations in the amended complaint

in the lawsuit that Glickman filed against the Maine-Niles camp, Glickman v. Maine-

Niles Association of Special Recreation et al., No. 18-cv-04907 (N.D. Ill. July 23, 2018)

ECF No. 6. [25-2]. That complaint is the source of facts pertinent to the resolution of

this motion. For instance, that is where Glickman alleges that Maine-Niles staff told

Atto and Walsh that he had been “acting suspiciously for one and one-half weeks.”

[25-2] ¶¶ 22, 27. That is also where Glickman alleges that Walsh learned about the

other actions Glickman had taken (i.e., that a camper had been separated from the

group and was found holding Glickman’s dog, that Glickman had “attempted to stop

a camper as the camper ran past him,” etc.). [25-2] ¶ 29(c)–(d).3 These facts are absent

from Glickman’s complaint here. See [7].4 See also [30-3] (many of these facts are also

contained in the documents that Glickman submitted with, and relied upon in, his

opposition to the motion to dismiss).

Although courts “routinely take judicial notice of the actions of other courts or

the contents of filings in other courts,” “[t]aking judicial notice of the contents of

3 Glickman’s other complaint also alleges that the information that the Maine-Niles staff

gave to Atto and Walsh was false. Id. at ¶ 30. But that allegation is unimportant here because

the probable cause determination (discussed below) turns on what Atto and Walsh

reasonably believed at the time that they encountered Glickman, not whether the

information that substantiated their beliefs was in fact accurate. Carmichael v. Vill. of

Palatine, Ill., 605 F.3d 451, 457 (7th Cir. 2010).

4 If the litigant’s “personal observations differ from the public record,” I must draw my

recitation of the facts “from the well-pleaded allegations of the complaint, however

improbable they seem.” Tobey, 890 F.3d at 639. But here, Glickman’s allegations do not differ

from the public record so much as they carefully omit facts in the public record that he alleged

elsewhere.

hearsay statements in such filings to prove the truth of the matters is much harder

to justify.” Daniel v. Cook Cty., 833 F.3d 728, 742 (7th Cir. 2016). See also Tobey, 890

F.3d at 648 (“[c]ourt records, like any other documents, may contain erroneous

information”).

An important difference in Glickman’s case, though, is that these are

statements he himself made (through his attorney) about the events at issue in this

lawsuit. Allegations in a complaint are “binding admissions” that “can of course admit

the admitter to the exit from the federal courthouse.” Jackson v. Marion Cty., 66 F.3d

151, 153–54 (7th Cir. 1995). And though these are allegations in a complaint from a

different case, Glickman has not challenged that complaint’s authenticity nor

advanced any other argument explaining why judicial notice would be improper.

Instead, Glickman says only that defendants “cannot point to any document

identifying what [Atto and/or Walsh] knew at the time of the arrest,” [28] at 13, a pat

reference to his careful draftsmanship. See also Philips Med. Sys. Int’l, B.V. v.

Bruetman, 982 F.2d 211, 215 (7th Cir. 1992) (there is a “longstanding rule” that courts

will “make exceptions” to the rule against judicially noticing new evidence “where the

new evidence is of a ‘proceeding[ ] in other courts, both within and outside of the

federal judicial system,’” so long as “the proceedings have a direct relation to matters

at issue”); United States v. Coonce, 961 F.2d 1268, 1281 (7th Cir. 1992) (criminal

defendant’s failure to object to use of judicially-noticed statements resulted in

waiver).

I take judicial notice of the allegations in Glickman’s complaint in Glickman v.

Maine-Niles Association of Special Recreation et al., No. 18-cv-04907 (N.D. Ill. July

23, 2018); [25-2].

B. Constitutional Claims

Glickman alleges that Atto and Walsh violated his First, Fourth, Eighth, and

Fourteenth Amendment rights, and that 42 U.S.C. § 1983 allows him to sue them

personally for their conduct. See [7] ¶¶ 40–43.5 He also alleges that § 1983 provides

him with a cause of action against the Village of Morton Grove, which he says violated

his First, Fourth, and Fourteenth Amendment rights when it failed to properly train,

supervise or discipline Atto and Walsh. [7] ¶ 45. And although it omits reference to

§ 1983, his third count alleges that these constitutional violations were caused by

Morton Grove’s “de facto policies, practices, [and] customs,” invoking Monell v. Dep’t

of Soc. Servs. of City of New York, 436 U.S. 658 (1978). [7] ¶¶ 47–51.

In order to state a § 1983 claim, Glickman must allege that each defendant was

(1) acting under color of state law when they (2) engaged in conduct that deprived

5 Glickman also alleges a violation of a constitutionally-grounded right to be free from “abuse

of process.” [7] ¶ 41(d[1]) (there are two subparagraphs that use the letter “d” in the forty-

first paragraph of the operative complaint; Glickman’s “abuse of process” claim is contained

in the first). Atto and Walsh move to dismiss that claim because there is, they argue, no such

right in the Constitution. See [25] at 14 n.3. At least when Illinois law provides a remedy, I

agree. Flanigan v. Masterson, No. 15 C 7715, 2016 WL 302129, at *2 (N.D. Ill. Jan. 25, 2016)

(abuse of process claims are not allowed under § 1983 when there is an equivalent state law

remedy); Podolsky v. Alma Energy Corp., 143 F.3d 364, 372 (7th Cir. 1998) (Illinois law

provides a remedy for abuse of process). See also Adams v. Rotkvich, 325 Fed. App’x 450, 453

(7th Cir. 2009) (“abuse of process is not a free-standing constitutional tort if state law

provides a remedy for abuse of process,” and “Illinois provides such a remedy”). Glickman

does not object. See [28] at 28–29. Glickman’s federal abuse of process claim is dismissed with

prejudice.

Glickman of the rights, privileges, or immunities secured by the Constitution or laws

of the United States, and (3) that their conduct proximately caused the deprivation.

Webb v. City of Chester, Ill., 813 F.2d 824, 828 (7th Cir. 1987). Only the second

element is at issue here.

1. Eighth and Fourteenth Amendment

The Eighth Amendment applies after conviction, Lopez v. City of Chicago, 464

F.3d 711, 719 (7th Cir. 2006); Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir.1992),

and the Fourteenth applies after a “judicial determination of probable cause,

otherwise known as a Gerstein hearing.” Ortiz v. City of Chicago, 656 F.3d 523, 530

(7th Cir. 2011). See also Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987)

(“Fourth Amendment standards govern all excessive force in arrest claims”).

Glickman’s complaint does not allege that any constitutional violation took place

after he was convicted of disorderly conduct. See [7]; [28]; [25-5] at 6 (he was not

convicted until the spring of 2018). His Eighth Amendment claim is dismissed with

prejudice. And since it also does not appear from the complaint that Glickman is

challenging police conduct that occurred after a judicial determination of probable

cause, his claim under the due process clause of the Fourteenth Amendment is

dismissed with prejudice, too. See [7]; [28].

Glickman’s opposition to the motion to dismiss clarifies that his claim is under

the equal protection clause of the Fourteenth Amendment, see [28] at 12, but even

equal protection claims based on a supposed “class of one” require an allegation that

“a state actor has intentionally treated [the plaintiff] differently than others similarly

situated,” and that “there is no rational basis for the difference in treatment.” Reget

v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010). Glickman’s complaint makes

no mention of any similarly situated comparators. See [7]. It does not even explain

what kind of discrimination he alleges occurred. See id.; [28] at 12. His claim under

the equal protection clause of the Fourteenth Amendment is dismissed without

prejudice.6

2. Fourth Amendment

The Fourth Amendment protects against “unreasonable searches and seizures

and provides that ‘no warrants shall issue, but upon probable cause.’” United States

v. Slone, 636 F.3d 845, 848 (7th Cir. 2011); U.S. CONST. amend. IV. There is an

exception to the warrant requirement that allows officers to “arrest someone outside

of the home when they have probable cause to believe that a suspect has committed,

is committing, or is about to commit an offense.” Slone, 636 F.3d at 848. Officers are

also allowed to “stop [a] person for a brief time and take additional steps to

investigate” (a Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968)) whenever they have

“reasonable suspicion that a person may be involved in criminal activity.” Hiibel v.

Sixth Judicial Dist. Court of Nevada, Humboldt Cty., 542 U.S. 177, 185 (2004). These

are two points on a “continuum in which the necessary degree of confidence increases

6 It may be possible for Glickman to cure the defect in his equal protection claim, so the

dismissal is without prejudice. See Barry Aviation Inc. v. Land O’Lakes Mun. Airport

Comm’n, 377 F.3d 682, 687 (7th Cir. 2004) (“[u]nless it is certain from the face of the

complaint that any amendment would be futile or otherwise unwarranted, the district court

should grant leave to amend after granting a motion to dismiss”). For claims that cannot be

cured by amendment, because the facts in the complaint and public record demonstrate that

amendment would be futile, dismissal is with prejudice.

with the degree of intrusion.” United States v. Burton, 441 F.3d 509, 512 (7th Cir.

2006) (“a ‘stop’ without limiting the suspect’s freedom requires no suspicion; a brief

detention calls for reasonable suspicion; an arrest requires probable cause; invasive

techniques such as surgery require more”); United States v. Chaidez, 919 F.2d 1193,

1198 (7th Cir. 1990).

Probable cause is a “practical, nontechnical conception.” Illinois v. Gates, 462

U.S. 213, 231 (1983). It “deal[s] with probabilities” and the “factual and practical

considerations of everyday life on which reasonable and prudent men, not legal

technicians, act.” Id. The reasonableness of the officer’s conduct must be judged in

relation to the totality of surrounding circumstances, Thayer v. Chiczewski, 705 F.3d

237, 247–48 (7th Cir. 2012), not as an “omniscient observer would perceive them but

on the facts as they would have appeared to a reasonable person in the position of the

arresting officer—seeing what he saw, hearing what he heard.” Carmichael v. Vill. of

Palatine, Ill., 605 F.3d 451, 457 (7th Cir. 2010). “When facts support a ‘fair

probability’ that a suspect has committed a crime, probable cause to arrest exists.”

Bridewell v. Eberle, 730 F.3d 672, 675 (7th Cir. 2013).

Probable cause also “depends on the elements of the applicable criminal

statute.” Thayer, 705 F.3d at 247. Atto and Walsh arrested Glickman for disorderly

conduct, which Illinois’s criminal statutes define as any act done “in such

unreasonable manner as to alarm or disturb another and to provoke a breach of the

peace.” 720 Ill. Comp. Stat. Ann. 5/26-1. Harassment, threats, and behavior similar

to stalking can each qualify. Reher v. Vivo, 656 F.3d 772, 777 (7th Cir. 2011).

The “reasonable suspicion” analysis is similar to the probable cause analysis:

it cannot be reduced to a “neat set of legal rules,” and must take into account the

“totality of the circumstances.” United States v. Arvizu, 534 U.S. 266, 274 (2002).

“‘[R]easonable suspicion’ is a less demanding standard than probable cause and

requires a showing considerably less than preponderance of the evidence.” Illinois v.

Wardlow, 528 U.S. 119, 123 (2000). “The officer must be able to articulate more than

an ‘inchoate and unparticularized suspicion or “hunch”’ of criminal activity.” Id.

Whether an officer had probable cause (or reasonable suspicion) can depend on

the source of their information. Where that source is a “credible victim or eyewitness,”

that victim’s or eyewitness’s report alone can provide the basis for probable cause.

Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir. 2000); Holmes v. Vill. of Hoffman

Estate, 511 F.3d 673, 680 (7th Cir. 2007); Abbott v. Sangamon Cty., Ill., 705 F.3d 706,

716 (7th Cir. 2013). The “informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’

are all highly relevant in determining the value of his report.” Gates, 462 U.S. at 230.

In Reher, 656 F.3d at 774, officers responded to a call in a public park and

arrived on scene to find a group of visibly upset residents. Id. at 774. Some of the

residents were screaming that a suspect was videotaping their children, and others

were making comments about “kids being photographed” and sex offenders. Id. One

officer (Gabinski) interviewed a witness that identified Reher as the suspect, and

then remembered previous allegations that Reher had thrown a rock through an ex-

girlfriend’s window and distributed nude photographs of her. Id. at 774–75. When

Reher called Gabinksi a “fucking bitch,” a different officer (Vivo) arrested Reher. Id.

at 775. Gabinksi had probable cause to arrest Reher for disorderly conduct and, even

though Vivo did not have probable cause, Vivo was entitled to qualified immunity. Id.

at 777. Without Gabinski’s additional background knowledge, the “neighbors’

allegations were probably a bit too vague to support an arrest for disorderly conduct.”

Id. Had there been an allegation that Reher had been “getting close” to the children,

it might have changed the analysis. Id. at 777–78.

At least according to Glickman’s complaint, by the time Atto and Walsh

approached Glickman, the facts they had available to them fell just shy of presenting

a “fair probability” that Glickman had disturbed the peace. Bridewell, 730 F.3d at

675; 720 Ill. Comp. Stat. Ann. 5/26-1; Reher, 656 F.3d at 777. Someone from Maine-

Niles had called the police to complain about Glickman’s presence in Austin Park.

[25-2] ¶ 25. When Officers Atto and Walsh arrived, they found both Glickman and

staff members from Maine-Niles nearby. Id. ¶ 27; [7] ¶ 23. They spoke with

eyewitnesses from Maine-Niles, who told them that Glickman had been “acting

suspiciously for one and one-half weeks” prior to their arrival. See [25-2] ¶ 27. Even

though the crime in question (disorderly conduct) can include behavior that resembles

stalking, Atto and Walsh had less reason to believe a crime had been committed than

the arresting officer (Vivo) in Reher, 656 F.3d at 777. It is plausible that they lacked

probable cause.

But according to the complaint, what Atto and Walsh did in Austin Park also

falls shy of an arrest, so it required less than probable cause. The complaint alleges

an encounter that might even fall short of a Terry stop: Glickman says that Atto and

Walsh “bodied up” to him so that he “could not move,” [7] ¶ 24, and that Glickman

left once they “backed off.” [7] ¶ 25. Even drawing all reasonable inferences in

Glickman’s favor, the detention was brief. It did not involve any searching of

Glickman’s person or personal effects. And even though a stop that is reasonable at

the start can become unlawful if its “manner of execution unreasonably infringes

interests protected by the Constitution,” Illinois v. Caballes, 543 U.S. 405, 407 (2005),

the relevant inquiry is whether “the police diligently pursued a means of

investigation that was likely to confirm or dispel their suspicions quickly, during

which time it was necessary to detain the defendant.” United States v. Sharpe, 470

U.S. 675, 686 (1985). Atto and Walsh’s investigation meets this standard: the officers

had eyewitness information justifying inquiry into Glickman’s presence in the park,

and they restrained him briefly to investigate. Based on both of Glickman’s

complaints, Atto’s and Walsh’s seizure of Glickman in Austin Park was reasonable,

so Glickman’s unreasonable seizure claim is dismissed with prejudice.

Glickman’s allegation that Atto and Walsh used unreasonable force during

their detention is different, but fares no better. Officers may not use “greater force

than [is] reasonably necessary to make [an] arrest.” Lester, 830 F.2d at 713. Although

the “right to make an … investigatory stop necessarily carries with it the right to use

some degree of physical coercion or threat thereof to effect it,” Graham v. Connor, 490

U.S. 386, 396 (1989), “[w]hat is reasonable depends upon the particulars of a given

case, including ‘the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether [s]he is actively

resisting arrest or attempting to evade arrest by flight.’” Johnson v. LaRabida

Children’s Hosp., 372 F.3d 894, 898 (7th Cir. 2004). See also United States v. Bigham,

812 F.2d 943, 949 (5th Cir. 1987) (“[t]echnical batteries, angry words, or passing

thumps do not rise to constitutional abuses, [citation omitted], but injuries far shy of

disablement suffice to offend”); Meyer v. Robinson, 992 F.2d 734, 739 (7th Cir. 1993)

(“[w]hile excessive force does not require injury, [citation omitted], no injury gives

weight to the assertion of no excessive force”); Cyrus v. Town of Mukwonago, 624 F.3d

856, 863 (7th Cir. 2010) (the force used is reasonable only when it is “exercised in

proportion to the threat posed”).

The allegation that Atto and Walsh pinned Glickman between their bodies is

not enough to establish an unreasonable use of force. See [7] ¶¶ 24–25. The officers

had some information about suspicious activity by Glickman, and briefly stopping

him in a manner that caused no physical injury was a reasonable way to dispel their

suspicions.7

In any event, Atto and Walsh are entitled to qualified immunity. Qualified

immunity “protects police officers ‘who act in ways they reasonably believe to be

lawful.’” Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008). There are “two key

inquiries for qualified immunity assertions: (1) whether the facts, taken in the light

most favorable to the plaintiffs, show that the defendants violated a constitutional

7 Although Atto and Walsh said that they “‘put the fear of god in [Glickman]’ about interacting

again with [the] campers,” [30-3] at 3, their underlying intent and motivation is irrelevant.

Cyrus, 624 F.3d at 863; Graham v. Connor, 490 U.S. 386, 397 (1989) (“[a]n officer’s evil

intentions will not make a Fourth Amendment violation out of an objectively reasonable use

of force”).

right; and (2) whether that constitutional right was clearly established at the time of

the alleged violation.” Gonzalez, 578 F.3d at 540. To be clearly established at the time,

“the right’s contours must be sufficiently clear that every reasonable official would

have understood that what he is doing violates that right ... and existing precedent

must have placed the statutory or constitutional question beyond debate.” Chasensky

v. Walker, 740 F.3d 1088, 1094 (7th Cir. 2014). Qualified immunity both “affords

enhanced deference to officers’ on-scene judgments about the level of necessary force,”

Abbott, 705 F.3d at 725, and “provides ‘ample room for mistaken judgments’ and

protects all but the ‘plainly incompetent and those who knowingly violate the law.’”

Wheeler, 539 F.3d at 639.

It was clearly established that “a police officer’s use of force in arresting a

suspect violates the Constitution if … the officer used greater force than was

reasonably necessary to make the arrest.” Lester, 830 F.2d at 713. But “[o]ur inquiry

… requires a higher level of specificity,” Jones by Jones v. Webb, 45 F.3d 178, 184 (7th

Cir. 1995), and it was not clearly established in 2017 that “bodying-up” to a person

suspected of engaging in disorderly conduct was an unreasonable use of force in

violation of the Fourth Amendment. See Reher, 656 F.3d at 777. Glickman’s complaint

does not depict facts and circumstances that establish it was “beyond debate” that

the use of force was unreasonable. Chasensky, 740 F.3d at 1094. Glickman’s claim of

unreasonable force during the encounter in Austin Park is dismissed without

prejudice.8

Atto and Walsh’s encounter with Glickman outside of his house barely

implicated the Fourth Amendment at all. Atto and Walsh were free to approach

Glickman and ask him questions. United States v. Drayton, 536 U.S. 194, 195 (2002);

United States v. Breland, 356 F.3d 787, 791 (7th Cir. 2004). Glickman has not alleged

facts that suggest conduct so coercive that a reasonable person would not have felt

free to decline the requests and terminate the encounter. All he says is that Atto and

Walsh “interrogated” him and “demanded to see his cell phone.” See [7] ¶¶ 27–28. He

declined their requests and terminated the encounter. Neither a search nor a seizure

occurred. Any Fourth Amendment claim about the encounter outside of Glickman’s

house is dismissed with prejudice.

That brings us to the station house. By the time Atto and Walsh arrested

Glickman at police headquarters, see [7] ¶¶ 31–32, they were aware of more facts that

substantiated the allegations that Glickman was committing disorderly conduct. For

instance, they had learned that Glickman had repeatedly refused requests to keep

his distance from the campers, had allowed his dog to separate one of the campers

from the group, had touched the campers, called them by their names and asked

questions about their medical conditions, and been taking pictures of two girls shortly

8 Although it seems unlikely that Glickman can allege facts about the use of force that change

the qualified immunity analysis, it is not obvious that amendment would be futile.

before the police arrived. [25-2] at ¶ 28–29.9 Bridewell, 730 F.3d at 675; 720 Ill. Comp.

Stat. Ann. 5/26-1; Reher, 656 F.3d at 777. This is similar to the type of information

sufficient for probable cause in Reher, 656 F.3d at 777, and it gave Atto and Walsh

probable cause to arrest Glickman upon his arrival at the station house.

Glickman has failed to allege that Atto and Walsh used unreasonable force

during this arrest, too. He was handcuffed, forced to remove his shoelaces and then

let out a doorway through the garage area. [7] ¶¶ 33–34, 37. The handcuffs were

necessary to make the arrest, Graham, 490 U.S. at 396, and there has been no

allegation that they were used with unnecessary force or in a way that harmed

Glickman. Smith v. Ball State Univ., 295 F.3d 763, 771 (7th Cir. 2002) (force that is

measured, brief, and appropriate to accomplish the purposes of the investigatory stop

is reasonable). Forcing Glickman to remove his shoelaces was reasonable, too, in light

of the potential that he use them to harm himself or others. See State Bank of St.

Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir. 1983) (guards not guilty of Eighth

Amendment violation for deliberate indifference when inmate hung himself in part

because they took precautions to protect against his suicide, such as removing his

belt and shoelaces). And it is a stretch to suggest that it was a “use of force” to require

9 Glickman asserts that these allegations are “totally unfounded” and that, if accurate,

Glickman “would have been engaging in criminal conduct much worst [sic] than a ‘disorderly

persons’ offense.” [28] at 15. He also says that the defendants “fail to indicate when they came

into possession of this absurd allegation” and that it is a “total fabrication.” Id. at 15–16. But

the source of these allegations is not the defendants—it is Glickman. In his suit against the

camp, Glickman alleges that staff from Maine-Niles told Walsh each of these things after

Walsh returned from Glickman’s house, [25-2] at ¶¶ 28–29. Glickman alleges that the

accusations were false, but does not allege that they were not made. Police officers may rely

on accusations from witnesses to establish probable cause, even if those accusations end up

being false.

that Glickman exit the station house through a different door than the one he entered,

but in any event it was not unreasonable.

Nor were the other harms visited upon Glickman during his station house

arrest unreasonable uses of force. There is sparse authority for the proposition that

unreasonable uses of force include nonphysical encounters. See Wilkins v. May, 872

F.2d 190, 194 (7th Cir. 1989) (“[w]here the officer merely points a gun at a suspect in

the course of arresting him, the suspect would have no basis for claiming that he had

been seized with excessive force in violation of the Constitution”). But see Jacobs v.

City of Chicago, 215 F.3d 758, 773–774 (7th Cir. 2000) (affirming viability of excessive

force claim where defendant officer continued to point a gun at the plaintiff even after

ascertaining that the plaintiff was not the person he was looking for). Even if such a

nonphysical display implicated a Fourth Amendment unreasonable-use-of-force

claim, the actions taken here are not enough. But since it is conceivable that

Glickman could allege additional facts concerning the use of force, this part of the

Fourth Amendment claim is dismissed without prejudice.

Glickman’s Fourth Amendment claims are dismissed in their entirety, but

without prejudice in part as to unreasonable use of force.

3. First Amendment

Atto and Walsh move to dismiss Glickman’s First Amendment claim on the

basis of qualified immunity. [25] at 14. It was not clearly established in 2017 that a

defendant’s First Amendment rights would be violated if an officer (even one

harboring retaliatory intent) had probable cause to arrest a defendant and then

arrested that defendant. Thayer, 705 F.3d at 253; see also Lozman v. City of Riviera

Beach, Fla., – U.S. –, 138 S. Ct. 1945, 1954 (2018) (whether probable cause defeats a

typical retaliatory arrest claim is a question that awaits a different case). Nor was it

clearly established that a retaliatory Terry stop supported by reasonable suspicion

violated the First Amendment. Atto and Walsh had reasonable suspicion in Austin

Park and probable cause when they arrested Glickman at the station house, so they

are entitled to qualified immunity insofar as Glickman’s First Amendment claim

addresses those encounters.10 Glickman’s claims are dismissed with prejudice.11

But that is not the final word on Glickman’s constitutional claims. He also

alleges that Atto and Walsh retaliated against him for saying he was going to file a

complaint, and that they did so by (among other things) issuing baseless citations and

broadcasting false information on the police blotter. See, e.g., [7] ¶ 35 (“[i]n further

retaliation against Plaintiff for indicating he was going to file a harassment complaint

against them” Atto and Walsh issued Glickman a baseless summons). To make out a

prima facie case for First Amendment retaliation, Glickman must show that “(1) [he]

engaged in activity protected by the First Amendment; (2) [he] suffered a deprivation

that would likely deter First Amendment activity; and (3) the First Amendment

10 Glickman’s complaint also does not allege that Atto and Walsh acted with retaliatory intent

at the park or when arresting him at the station house. See [7] ¶¶ 23–26; Thayer, 705 F.3d

at 253 (dismissing a First Amendment retaliation claim in part because the “record is void of

evidence showing that the officers acted with retaliatory animus in arresting him”). Glickman

has limited his allegations about the officers’ intent to the conduct that took place after

Glickman was arrested at the station house. See [7] ¶¶ 34–39.

11 “Even though dismissal under Rule 12(b)(6) on qualified immunity grounds may be

inappropriate in many cases, in some cases it is proper.” Doe v. Vill. of Arlington Heights, 782

F.3d 911, 916 (7th Cir. 2015) (citations omitted).

activity was at least a motivating factor in the police officer’s decision.” Thayer, 705

F.3d at 251. Atto and Walsh do not address this claim at all. See [25]; [34]. That

portion of Glickman’s First Amendment retaliation claim survives.

4. Monell Claims Against Morton Grove

Glickman’s complaint advances two claims against the Village of Morton Grove

under § 1983. [7] ¶¶ 44–46. A municipality like Morton Grove can be liable under

§ 1983 only if “its officers acted pursuant to: (1) an official policy; (2) a practice or

custom that although not officially authorized, was widespread and well settled; or

(3) instructions from a city official with final policy-making authority.” Gonzalez v.

Vill. of W. Milwaukee, 671 F.3d 649, 664 (7th Cir. 2012); Monell, 436 U.S. at 690.

Such a policy, practice or custom must have been the “moving force behind the

plaintiff’s constitutional injury.” Valentino v. Vill. of S. Chicago Heights, 575 F.3d

664, 674 (7th Cir. 2009).

Count II of the complaint alleges that Morton Grove failed to “properly train,

supervise, or discipline” Atto and Walsh, and, by doing so, Morton Grove caused the

violation of Glickman’s rights under § 1983. [7] ¶¶ 44–46. It makes no mention of an

official policy, nor a widespread and well settled practice or custom, nor any action

by a city official. See id. Failure to train can be a theory of Monell liability, but there

must be some fact alleged that suggests a practice beyond a single incident of failed

supervision of the named defendants.

Count III alleges that, by acting “through” Atto and Walsh, and via other “de

facto policies, practices, customs and usages,” Morton Grove caused “unconstitutional

conduct.” [7] ¶¶ 49–50. But Glickman is required to “‘plead[ ] factual content that

allows the court to draw the reasonable inference’ that the [Village] maintained a

policy, custom, or practice” that caused a constitutional violation. McCauley v. City of

Chicago, 671 F.3d 611, 616 (7th Cir. 2011). Instead, he listed the legal elements of a

Monell claim. See [7] ¶¶ 49–50. Those paragraphs of his complaint do not contain

“factual allegations and as such contribute nothing to the plausibility analysis under

Twombly/Iqbal.” McCauley, 671 F.3d at 616. Nor are there factual allegations

anywhere else in his complaint that advance his Monell claims. Those claims are both

dismissed without prejudice.

C. State-Law Claims

Glickman alleges that Morton Grove was negligent when it hired Atto and

Walsh, [7] ¶¶ 55–57, and that both the officers (and Morton Grove, via respondeat

superior) are liable for state-law tort claims. [7] ¶¶ 52–54, 58–60. But for Glickman’s

remaining First Amendment retaliation claim against Atto and Walsh, his state-law

claims would be dismissed for want of federal jurisdiction. See Domanus v. Locke Lord

LLP, 847 F.3d 469, 483 (7th Cir. 2017). But that claim survives.

Glickman’s false arrest and false imprisonment claims are insufficient. The

“essential elements” for false arrest and false imprisonment claims are (1) that “the

plaintiff was restrained or arrested by the defendant,” and (2) that “the defendant

acted without having reasonable grounds to believe that an offense was committed

by the plaintiff.” Meerbrey v. Marshall Field & Co., 139 Ill.2d 455, 474 (1990). The

existence of probable cause is “an absolute bar” to both claims for false arrest,

Friedman v. Vill. of Skokie, 763 F.2d 236, 239 (7th Cir. 1985), and claims for false

imprisonment. See Terket v. Lund, 623 F.2d 29, 31 (7th Cir. 1980).

Atto and Walsh had probable cause to arrest Glickman by the time he arrived

at the station house, so Glickman’s state-law claim for false arrest and false

imprisonment fails, and if the Illinois Supreme Court were to be presented with the

issue, it would find that an investigatory stop justified by reasonable suspicion cannot

form the basis of a false arrest or false imprisonment claim, either. See Ramos v. City

of Chicago, 716 F.3d 1013, 1016 (7th Cir. 2013) (upholding district court’s dismissal

of claim for false arrest where the district court held that “the brief detention of

[plaintiff] while investigating the situation was not an arrest, but rather was an

investigatory stop that … is permissible as long as the officers have reasonable

suspicion that criminal activity is ongoing”). Glickman’s false arrest and false

imprisonment claims are dismissed with prejudice because the allegations in his

complaints establish justification for the arrest.

Under Illinois law, “[a] person commits an assault when, without lawful

authority, he or she knowingly engages in conduct which places another in reasonable

apprehension of receiving a battery.” 720 Ill. Comp. Stat. Ann. 5/12-1. Similarly, “[a]

person commits a battery if he intentionally or knowingly without legal justification

causes bodily harm to an individual [citation omitted] or makes physical contact of

an insulting or provoking nature with an individual.” People v. Villareal, 114

Ill.App.3d 389, 395 (2nd Dist. 1983). As discussed, Atto and Walsh had lawful

authority to arrest Glickman at the station house. They also had lawful authority to

conduct a Terry stop with reasonable force in Austin Park. Those claims are both

dismissed without prejudice, because if Glickman is able to allege facts that

demonstrate unreasonable use of force, he may be able to state a claim for assault or

battery.

In order to state a claim for malicious prosecution, Glickman must allege “(1)

the commencement or continuance of an original criminal or civil judicial proceeding

by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3)

the absence of probable cause for such proceeding; (4) the presence of malice; and (5)

damages resulting to the plaintiff.’” Swick v. Liautaud, 169 Ill.2d 504, 512 (1996).

Glickman’s claim does include an allegation of malice, [7] ¶ 43, and Glickman has

sufficiently alleged that the criminal complaint was terminated in a manner

indicative of his innocence. See [7] ¶ 39. It is more than a “technicality” when the

information on the complaint fails to show that the defendant has committed the

charged conduct. But Atto and Walsh had reasonable grounds to believe that

Glickman had committed disorderly conduct, and “a mistake or error that is not

grossly negligent will not affect the question of probable cause in an action for

malicious prosecution when there is an honest belief by the complainant that the

accused is probably guilty of the offense.” Johnson v. Target Stores, Inc., 341

Ill.App.3d 56, 72 (1st Dist. 2003). As discussed, Glickman’s complaints establish

probable cause to believe he committed disorderly conduct, so Glickman’s claim for

malicious prosecution is dismissed with prejudice.

“The only elements necessary to plead a cause of action for abuse of process

are: (1) the existence of an ulterior purpose or motive and (2) some act in the use of

legal process not proper in the regular prosecution of the proceedings.” Kumar v.

Bornstein, 354 Ill.App.3d 159, 166 (2nd Dist. 2004). The second element is the

“gravamen of the offense,” and in order to satisfy it, the plaintiff must “plead facts

that … the process was used to accomplish some result that is beyond the purview of

the process,” Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill.App.3d 177,

183 (2nd Dist. 2003), “or which compels the party against whom it is used to do some

collateral thing which he could not legally and regularly be compelled to do.”

Cartwright v. Wexler, Wexler & Heller, Ltd., 53 Ill.App.3d 983, 986 (1st Dist. 1977).

“When process is used only for its intended purpose, there has been no misapplication

of process,” even if the process was used by someone with an immoral motive. Id.

Actions for abuse of process are disfavored, and the elements are strictly construed.

Erlich v. Lopin-Erlich, 195 Ill.App.3d 537, 539 (5th Dist. 1990).

Glickman has alleged an act sufficient to state a claim for abuse of process—

an actual arrest, Neurosurgery, 339 Ill.App.3d at 184—but has failed to allege that

that process was used for something other than its intended purpose (i.e., to

apprehend a suspected criminal or investigate suspected criminal activity), and his

complaint is vague at best about Atto’s and Walsh’s ulterior motives. See, e.g., [7] ¶ 43

(alleging only that all of Atto’s and Walsh’s “actions and/or omissions” were performed

“maliciously” and “intentionally”). Glickman’s briefing clarifies that he thinks Atto

and Walsh arrested him in order to retaliate against him for filing a police complaint,

[28] at 28–29, but that allegation is not clear from the face of the complaint. See [7].

“Although a plaintiff may assert additional facts in a motion to defeat dismissal, he

or she cannot amend his or her complaint to state new claims in such a motion.” Dart,

803 F.3d at 311. Glickman’s claim for abuse of process is dismissed without prejudice.

In order to state a claim for intentional infliction of emotional distress,

Glickman must show that “(1) the defendants’ conduct was extreme and outrageous;

(2) the defendants knew that there was a high probability that their conduct would

cause severe emotional distress; and (3) the conduct in fact caused severe emotional

distress.” Swearnigen-El v. Cook Cty. Sheriff’s Dep’t, 602 F.3d 852, 864 (7th Cir.

2010). “Extreme and outrageous behavior requires conduct that goes beyond all

possible bounds of decency, such that a reasonable person would hear the facts and

be compelled to feelings of resentment and outrage.” Duffy v. Orlan Brook Condo.

Owners’ Ass’n, 2012 IL App (1st) 113577, ¶ 36. Such conduct can “arise from the

defendant’s abuse of some position which gives him actual or apparent authority over

the plaintiff or the power to affect the plaintiff’s interests.” Id. But “[w]hen a

defendant in an action for emotional distress is accused of improperly using a position

of power or authority, courts view this allegation in conjunction with another

significant consideration: whether the defendant reasonably believed that his

objective was legitimate.” McGrath v. Fahey, 126 Ill.2d 78, 88 (1988). And the law will

“intervene[] only where the distress inflicted is so severe that no reasonable man

could be expected to endure it.” Feltmeier v. Feltmeier, 207 Ill.2d 263, 276 (2003).

The complaint alleges that Atto and Walsh had reasonable grounds to believe

that their objectives were legitimate. “Although the reasonable belief that his

objective is legitimate does not provide a defendant carte blanche to pursue that

objective by outrageous means [citation omitted], it is a substantial factor in

evaluating the outrageousness of his conduct.” McGrath, 126 Ill.2d at 276. Atto and

Walsh were justified in stopping Glickman in Austin Park and in arresting him at

the station house, and, as alleged, used reasonable force so they did not act

outrageously. Glickman’s claim for intentional infliction of emotional distress is

dismissed without prejudice.

Lastly, Glickman’s claim for negligent infliction of emotional distress is barred

by Illinois’s statute regarding immunity for public employees. 745 Ill. Comp. Stat.

Ann. 10/2-202. That section “immunizes liability for negligence.” Barnett v. Zion Park

Dist., 171 Ill.2d 378, 390 (1996). That claim is dismissed with prejudice.

With regards to Glickman’s state-law claims against Morton Grove, defendants

are right that Glickman’s state-law respondeat superior claim against Morton Grove

is “entirely derivative” of Glickman’s remaining state-law claims against Atto and

Walsh. Moy v. Cty. of Cook, 159 Ill.2d 519, 524 (1994). The claims against Morton

Grove are dismissed without prejudice; if Glickman files an amended complaint that

states a claim against Atto and Walsh for a state-law violation, he may be able to

state a claim against Morton Grove under a respondeat superior theory, too.

Lastly, in order to succeed on a claim for negligent hiring, Glickman must show

that Morton Grove “(1) … knew or should have known that [Atto and Walsh] had a

particular unfitness for the position so as to create a danger of harm to third persons;

(2) that such particular unfitness was known or should have been known at the time

of [their] hiring or retention; and (3) that this particular unfitness proximately caused

the [Glickman’s] injury.” Van Horne v. Muller, 185 Ill.2d 299, 311 (1998). Nowhere

has Glickman alleged that Morton Grove knew or should have known that Atto and

Walsh were unfit for their positions when they hired them. [7] ¶¶ 55–57. Moreover,

“[t]he decision to hire or not to hire a police officer is an inherently discretionary act

and, thus, is subject to the immunities contained in the Immunity Act.” Johnson v.

Mers, 279 Ill.App.3d 372, 380 (2nd Dist. 1996). Glickman’s claim for negligent hiring,

training and supervision against Morton Grove is dismissed without prejudice.

IV. Conclusion

Defendants’ motion to dismiss is granted in part, denied in part. Count I may

proceed insofar as it alleges that Atto and Walsh violated Glickman’s First

Amendment rights after arresting him at the station house. Glickman’s remaining

claims against Atto and Walsh under § 1983 are dismissed with prejudice in part and

without prejudice in part. Glickman’s Monell claims against Morton Grove (Counts

II and III) are dismissed without prejudice, and his state-law claims against Atto and

Walsh (Count VI) are dismissed with prejudice in part and without prejudice in part.

Lastly, Glickman’s claims against Morton Grove for negligent hiring (Count V) and

respondeat superior (Count IV) are dismissed without prejudice. Glickman may file

an amended complaint to replead the claims dismissed without prejudice by May 13,

2019. If no amended complaint is filed, the dismissals will convert to dismissals with

prejudice, and the case will proceed solely on the surviving First Amendment claim.

A status hearing is set for May 17, 2019, at 9:30 a.m.

ENTER:

hA SAL.

ManishS.Shah

United States District Judge

Date: April 19, 2019

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