Dominic White v. Village of Arlington Heights

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DOMINIC WHITE,

Plaintiff,

Case No. 18-cv-5952

v.

Judge Mary M. Rowland

JOHN GILMORE, DETECTIVE

PETAR MILUTINOVIC, and the

VILLAGE OF ARLINGTON

HEIGHTS,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Dominic White brought this suit claiming false arrest and malicious

prosecution based on his arrest in September 2017 for alleged battery of John

Gilmore. Defendants the Village of Arlington Heights and Detective Petar

Milutinovic have moved for summary judgment in their favor. For the reasons stated

below, Defendants’ motion [94] is granted.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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 substantive law controls which facts are

material. Id. After a “properly supported motion for summary judgment is made, the

adverse party must set forth specific facts showing that there is a genuine issue for

trial.” Id. at 250 (internal quotations omitted).

The Court “consider[s] all of the evidence in the record in the light most favorable

to the non-moving party, and [] draw[s] all reasonable inferences from that evidence

in favor of the party opposing summary judgment.” Skiba v. Ill. Cent. R.R. Co., 884

F.3d 708, 717 (7th Cir. 2018) (internal citation and quotations omitted). The Court

“must refrain from making credibility determinations or weighing evidence.”

Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson,

477 U.S. at 255). In ruling on summary judgment, the Court gives the non-moving

party “the benefit of reasonable inferences from the evidence, but not speculative

inferences in [its] favor.” White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016)

(internal citations omitted). “The controlling question is whether a reasonable trier

of fact could find in favor of the non-moving party on the evidence submitted in

support of and opposition to the motion for summary judgment.” Id. (citation

omitted).

BACKGROUND1

I. Events in August and September 2017

On the afternoon of August 28, 2017, John Gilmore went to the Village of

Arlington Heights, Illinois Police Department (AHPD) and reported to officer Nelson

1 The cited facts are undisputed unless otherwise noted. Defendants’ Rule 56.1 Statement of

Facts in support of their motion for summary judgment (Dkt. 96) is abbreviated as “DSOF.”

White’s Rule 56.1 Statement of Additional Facts (Dkt. 100) is abbreviated as “PSOF”.

Defendants responded to White’s statement at Dkt. 106. White responded to Defendants’

statement at Dkt. 102.

Calzadilla that he was attacked in front of his Arlington Heights residence in the

early morning hours of August 26, by a 6’0”, tanned, white male wearing a pink or

peach shirt. (DSOF ¶5).2 Gilmore stated he believed the man had followed him on

foot from a nearby street corner as Gilmore walked home from downtown Arlington

Heights. (Id.) Gilmore reported that he asked the man what he wanted and next

remembered waking up with abrasions to his head and face. (Id.) When Gilmore

awoke he noticed he was missing $200 which he speculated could have fallen from

his pocket as he was retrieving his phone to try (unsuccessfully) to take a picture of

the person, as he still had his wallet and phone. (Id.) Gilmore stated he was “half in

the bag” and could not further identify the person. (Id.) Gilmore said he did not

initially intend to file a report, but after talking to his family, he decided to report the

incident for the safety of his neighbors and himself. (Id.) At that point he did not

want to pursue criminal charges because he would not be able to recognize his

assailant. (Id.) Gilmore did provide Calzadilla photographs of his head injuries. (Id.)

The next day, August 29, Gilmore called the AHPD and again spoke to Officer

Calzadilla. (Id. ¶6). Gilmore reported that he now remembered his assailant’s voice

and it was that of White, who was a business acquaintance. (Id.) Gilmore said White

was experiencing hardship including a divorce that involved an order of protection,

and possible drug use. (Id.) He stated that White had been taking his hardship out

on those around him and had a “grudge” against Gilmore because Gilmore had asked

White’s boss to stop him from “bad-mouthing” Gilmore after Gilmore stopped using

2 All dates are from 2017 unless otherwise noted.

White’s business services. (Id.) Gilmore gave Calzadilla White’s Arlington Heights

address and offered to review any video footage in the area that might have shown

White returning to his residence from Gilmore’s residence. Calzadilla reported that

Gilmore was not “absolutely certain” his assailant was White, but that Gilmore

wanted to pursue charges. (Id. ¶7).

Two days later, on August 31, Sgt. Buczynski assigned Detective Milutinovic to

investigate Gilmore’s battery report. (Id. ¶8). Milutinovic had been employed by the

AHPD since 2008 and had been a detective since 2012. (Id. ¶2). Before being assigned

to this investigation, Milutinovic did not know Gilmore or White. (Id. ¶9). Once

assigned, Milutinovic reviewed Calzadilla’s police reports of his interviews of

Gilmore. (Id. ¶10). Milutinovic also reviewed the photographs of Gilmore’s head

injuries; Milutinovic believed they were consistent with Gilmore’s assertion that he

was first struck from behind, which caused him to fall forward onto his condominium

steps. (Id. ¶11). Milutinovic then phoned Gilmore who stated he now had a better

memory of the incident and was certain that White was his assailant. (Id. ¶12).

Multinovic recalled two phone conversations with Gilmore before meeting him in

person on September 13. (Id.).

During their discussions, Gilmore repeated his prior statements and further

explained his relationship with White. He reported that he and White were friends

and former business acquaintances as Gilmore was a realtor and White was in the

mortgage business, that White was having difficulties with his family and

employment, and that the two had quit doing business and had a falling out when

White alleged that Gilmore was badmouthing him to White’s boss. (Id. ¶13). Gilmore

added that White called him an “asshole” for calling White’s boss. (Id.).

Gilmore told Milutinovic that he walked about two blocks to his home from

downtown Arlington Heights before the attack, and that he first noticed someone

standing by bushes at a nearby intersection a half block from Gilmore’s apartment

building. (Id. ¶14). Gilmore told Milutinovic that as White closed in on him, Gilmore

pushed him away and told White to leave him alone, at which point Gilmore turned

around and was struck in the head. (Id. ¶15). Miltinovic reviewed about six hours of

footage from a Village video camera one block north of White’s residence. (Id. ¶16).

The camera is positioned at the northeast corner and faces the intersection. (Id.)

Milutinovic had reviewed White’s Department of Motor Vehicles photograph and a

mug shot of White but did not see anyone who looked like White pass through the

intersection on the video. (Id.) Milutinovic was aware there were multiple ways to get

to Gilmore’s residence from White’s without passing through that intersection. (Id.).

On September 11, at 7:05 p.m. Gilmore called the AHPD from the Shakou

Restaurant in Arlington Heights and reported that White had just threatened him in

the restaurant. (Id. ¶17). Officer Brandon Clabough responded to the restaurant and

reported that Gilmore said that White approached his table, leaned over and

whispered in his ear: “Don’t ever mention my name again or I’ll come back.” Gilmore

then reportedly said: “Did you just threaten me in public?” to which White stated:

“No, you fatass, you need a bigger chair”, before leaving. (Id.). Clabough also reported

that Gilmore identified a text he claimed was from White which was sent at 6:58 p.m.

(after White left the restaurant) which read: “Please don’t mention my name

personally or professionally again.” (Id. ¶18). Gilmore also told Clabough about his

battery report against White, and that he was alarmed, felt threatened, feared for his

safety, believed White will return and hurt him, and was willing to sign complaints

against White. (Id. ¶19). The following day Sgt. Buczynski told Milutinovic about

Gilmore’s new complaint against White. (Id. ¶20). Milutinovic called Gilmore, who

essentially repeated what was in Clabough’s report. Gilmore also told Milutinovic he

was having dinner with Gary Cortesi and Tom Woznicki when the incident occurred.

(Id.). Milutinovic interviewed Cortesi and Woznicki, who confirmed that White

walked up to Gilmore and said something in his ear which they could not hear, but

both recalled White told Gilmore he is a “fat ass” and needed a bigger chair. (Id.).

II. Battery Complaint, White’s Arrest and Trial

On September 13, Milutinovic met Gilmore at his home to have Gilmore sign a

battery complaint. (Id. ¶21). Before Gilmore signed, Milutinovic again went over the

incidents of August 26 and September 11 but did not ask if Gilmore wanted to sign a

complaint for the September 11 incident. (Id.). When Milutinovic asked about

September 11, Gilmore stated he had previously told co-workers and other

acquaintances that he had reported White to the police for the August 26 battery, and

that he believed the September 11 incident occurred because White likely became

aware of the prior report. (Id. ¶22). Milutinovic believed the September 11 incident

was further support of Gilmore’s battery claim against White. (Id.). Milutinovic asked

Gilmore if he was willing to testify that White was his assailant and Gilmore

responded “yes”. (Id. ¶23). He also asked, in accordance with his practice when an

identification was made, how certain Gilmore was on a scale of one to ten that White

was his assailant, and Gilmore said “ten.” (Id.) Milutinovic then presented Gilmore

with a misdemeanor battery complaint. (Id. ¶24). Gilmore attested in Milutinovic’s

presence that: “Dominic White…had, on or about August 26, 2017…, committed the

offense of battery in that he intentionally caused bodily harm to John Gilmore, in

that Dominic White struck Gilmore on the back of his head which caused Gilmore to

fall to the ground.” (Id.) As a result, Gilmore incurred abrasions to the back of his

head and face.” (Id.).3

After Gilmore signed the criminal complaint, Milutinovic and Detective Joe

Murphy went to White’s residence to arrest White. (Id. ¶25). When no one responded

at White’s door, Milutinovic left his business card for White to contact him. (Id.) White

testified he called Milutinovic on September 13 and after learning about the charge,

stated he was not in Arlington Heights on August 26 and that White’s attorneys

would contact Milutinovic. (Id. ¶26). After speaking to White’s attorney, Timothy

O’Donoghue, Milutinovic interviewed White’s girlfriend Lauren Grybash on

September 26, who stated that she was continuously with White at her Palatine

residence from 6:30 or 7:00 p.m. on August 25 through the following morning,

including at the time Gilmore was allegedly attacked. (Id. ¶27). Milutinovic

memorialized and reported Grybash’s account. (Id. ¶28). Milutinovic told Gilmore

3 The misdemeanor complaint (Dkt. 96-12, Ex. I) was signed on September 21, 2017. Neither

party addresses why this date is different from September 13 but it does not impact the

Court’s analysis.

about Grybash’s account and Gilmore confirmed he still wanted to move forward on

his complaint. (Id. ¶29).

Attorney O’Donoghue brought White to the station for processing on September

27. (Id. ¶30). White was arrested that day by Milutinovic for misdemeanor battery to

Gilmore. (Id. ¶1). Milutinovic filed a booking sheet with the arrest report showing

White was placed into custody at 9:30 a.m. (Id.). (Because of a computer issue, they

returned the following day to complete the booking process. (Id.)). A Cook County

Assistant State’s Attorney prosecuted the misdemeanor battery charge against

White. (Id. ¶31). White was found not guilty after a bench trial which began January

30, 2018 and continued until March 7, 2018. (Id. ¶33).

ANALYSIS

Milutinovic seeks summary judgment on the §1983 false arrest claim (Count I)

because he argues that he had probable cause to arrest White for battery. In the

alternative, Milutinovic contends he is entitled to qualified immunity. Defendants

further argue that dismissal of Count I requires that judgment be entered in the

Village’s favor on the indemnification claim (Count VI).4

I. False Arrest Claim

“Probable cause is an absolute bar to a claim of false arrest asserted under the

Fourth Amendment and section 1983. Probable cause exists to arrest a suspect if at

the time of arrest the facts and circumstances within the arresting officer’s knowledge

4 The remaining claims are state law claims against Gilmore for false arrest (Count III),

malicious prosecution (Count IV), and IIED (Count V). Count II was voluntarily dismissed

on October 15, 2019. (Dkt. 68). Gilmore asserts state law counterclaims against White for

civil battery and negligence.

and of which he has reasonably trustworthy information would warrant a prudent

person in believing that the suspect had committed or was committing an offense.”

Dollard v. Whisenand, 946 F.3d 342, 353 (7th Cir. 2019), reh'g denied (Feb. 24, 2020)

(citations and quotations omitted).5 Probable cause is evaluated objectively; it

requires an officer’s belief “be reasonable, not that it be correct.” Huff v. Reichert, 744

F.3d 999, 1007 (7th Cir. 2014). Probable cause must be “more than bare suspicion but

need not be based on evidence sufficient to support a conviction, nor even a showing

that the officer’s belief is more likely true than false.” Woods v. City of Chicago, 234

F.3d 979, 996 (7th Cir. 2000) (citation and quotations omitted). It is “not a high bar”

and “the existence of some contrary evidence does not defeat probable cause.” Hyung

Seok Koh v. Graf, 307 F. Supp. 3d 827, 848 (N.D. Ill. 2018) (citations and quotations

omitted).

Further, qualified immunity protects an officer who has “‘arguable’ probable

cause.” Huff, 744 F.3d at 1007 (emphasis added). “Arguable probable cause exists

when a reasonable officer in the same circumstances and ... possessing the same

knowledge as the officer in question could have reasonably believed that probable

cause existed in light of well-established law.” Id. (internal citation and quotations

omitted). Qualified immunity “gives public officials breathing room to make

reasonable but mistaken judgments about open legal questions. When properly

5 “Probable cause hinges on the elements of the relevant criminal statute.” Mahnke v.

Garrigan, 428 F. App'x 630, 635 (7th Cir. 2011). In Illinois, battery is: “A person commits

battery if he or she knowingly without legal justification by any means (1) causes bodily harm

to an individual or (2) makes physical contact of an insulting or provoking nature with an

individual.” 720 ILCS 5/12-3.

applied, it protects all but the plainly incompetent or those who knowingly violate the

law.” Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 713 (7th Cir. 2013) (internal

citations and quotations omitted).

“[O]nce [a qualified immunity defense] is raised, the burden shifts to the plaintiff

to defeat it.” Holleman v. Zatecky, 951 F.3d 873, 877 (7th Cir. 2020). “To overcome

[Milutinovic’s] invocation of qualified immunity, [White] must show both (1) that the

facts make out a constitutional violation, and (2) that the constitutional right was

‘clearly established’ at the time of the official’s alleged misconduct.” Abbott, 705 F.3d

at 713. Probable cause “inherently allows room for reasonable mistakes” and qualified

immunity “affords an added layer of protection by shielding officers from suit for

damages if ‘a reasonable officer could have believed [the arrest] to be lawful, in light

of clearly established law and the information the [arresting] officers possessed.’” Id.

at 714 (citation omitted).

Here, White has the burden of defeating Milutinovic’s qualified immunity defense

“either by identifying a closely analogous case or by persuading the court that the

conduct is so egregious and unreasonable that, notwithstanding the lack of an

analogous decision, no reasonable officer could have thought he was acting lawfully.”

Id. at 724. “To be clearly established, a right must be sufficiently clear that every

reasonable official would have understood that what he is doing violates that right”

meaning that “existing precedent must have placed the statutory or constitutional

question beyond debate.” Leiser v. Kloth, 933 F.3d 696, 702 (7th Cir. 2019) (quoting

Reichle v. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088 (2012)). White has not met

this burden.

White maintains that the qualified immunity question requires a jury to resolve

disputed facts. But the facts about what Milutinovic knew at the time of White’s

arrest are not in dispute. White believes Milutinovic should have interpreted those

facts differently and that he made investigatory mistakes. These arguments do not

defeat qualified immunity here. See Hunter v. Bryant, 502 U.S. 224, 228 (1991)

(“Immunity ordinarily should be decided by the court long before trial.”).

The undisputed facts are that at the time of White’s arrest, Gilmore identified

White as the person who battered him to Milutinovic. It is well-settled that “[s]o long

as a reasonably credible witness...informs the police that someone has committed, or

is committing, a crime, the officers have probable cause to place the alleged culprit

under arrest, and their actions will be cloaked with qualified immunity [even] if the

arrestee is later found innocent.” Wollin v. Gondert, 192 F.3d 616, 625 (7th Cir. 1999)

(internal citation and quotations omitted). See also Woods, 234 F.3d at 987.

White responds, however, that: (1) Milutinovic should not have believed Gilmore;

(2) Milutinovic should have done a better investigation; and (3) White’s girlfriend’s

confirmation of his alibi should have led Milutinovic to decide there was no probable

cause to arrest.

First as to Gilmore’s credibility, White contends Gilmore made “multiple

conflicting statements”. The undisputed facts show that while Gilmore could not

initially identify the person who attacked him, the next day he followed up his initial

report stating that he remembered more and believed it to be White, and then in the

weeks following stated he was certain it was White and his confidence in his

identification was a “ten” on a scale of one to ten. White suggests that Gilmore’s

inability to initially identify White, who he had known for years, calls into question

the identification. But “[p]robable cause is a holistic, commonsense inquiry, and

officers are allowed to draw reasonable inferences based on their experience and

judgment.” Hyung Seok Koh, 307 F. Supp. 3d at 848–49.

White also challenges Gilmore’s credibility by arguing that Gilmore was a

“stumbling drunk” the night of the alleged attack. However White does not cite any

evidence that at the time of White’s arrest, Milutinovic knew Gilmore was a

“stumbling drunk” on August 26. The evidence shows only that Milutinovic knew

Gilmore had been drinking.6 The testimony White cites showing Gilmore had “at least

6” drinks is from Gilmore’s deposition testimony in 2020, not from any evidence that

Milutinovic knew before September 27, 2017. See Abbott, 705 F.3d at 714 (focus is on

what officer knew at the time of the arrest). Importantly, White does not cite any

clearly established law requiring an officer to disbelieve a victim who did not identify

the suspect in his initial report to police or who had been drinking alcohol before he

was attacked. To the contrary, the Seventh Circuit has explained that “[n]othing

suggests that a victim’s report must be unfailingly consistent to provide probable

cause” and the “credibility of a putative victim or witness is a question, not for police

6 The police report referred to Gilmore being “half in the bag” but did not explain further.

(Exh. D, Dkt. 96-6). Milutinovic was told that Gilmore was “three sheets to the wind”. PSOF

¶44. But there is no evidence that Milutinovic understood these statements to mean Gilmore

was a “stumbling drunk” on August 26.

officers in the discharge of their considerable duties, but for the jury in a criminal

trial.” Spiegel v. Cortese, 196 F.3d 717, 725 (7th Cir. 1999), as amended (Jan. 7, 2000)).

Second, White complains about the quality of the investigation. He asserts that

Milutinovic did not try to talk to White or corroborate Gilmore’s story. It is true that

“[a] police officer may not close her or his eyes to facts that would help clarify the

circumstances of an arrest” and must pursue “reasonable avenues of investigation”

particularly when “it is unclear who committed the crime.” Sornberger v. City of

Knoxville, Ill., 434 F.3d 1006, 1016 (7th Cir. 2006) (citations and quotations omitted).

But as explained, police have probable cause to arrest the suspect once “a reasonably

credible witness informs an officer that a suspect has committed a crime.” Abbott, 705

F.3d at 716 (citations omitted). There is “no constitutional obligation to conduct any

further investigation before making an arrest if they have received information from

a reasonably credible victim [] sufficient to supply probable cause…even if sound

police technique would have required such further investigation.” Woods, 234 F.3d at

997. And here Milutinovic did investigate. White does not contend that there is any

evidence of Milutinovic falsifying any reports, fabricating evidence, conspiring with

Gilmore, or having a bias against White.

White argues, however, that Milutinovic ignored exculpatory evidence. White

points to the video evidence which did not show him at Gilmore’s residence at the

relevant time. He also contends that Milutinovic did not consider that the “bad blood”

between the former friends meant Gilmore might have lied about White being his

assailant. These arguments do not help White meet his burden since he does not cite

law requiring an officer to resolve potential inconsistencies or get to the bottom of a

grudge. Indeed “no clearly established precedent required [the officer] to resolve these

inconsistencies before arresting [the suspect].” Spiegel, 196 F.3d at 724. See also

Askew v. City of Chicago, 440 F.3d 894, 897 (7th Cir. 2006) (“inconsistencies and

glitches that characterize real investigations do not disentitle police to rely on

eyewitness statements”); Anderer v. Jones, 385 F.3d 1043, 1049 (7th Cir. 2004),

amended on denial of reh'g, 412 F.3d 794 (7th Cir. 2005) (an officer has “no

constitutional obligation to conduct any further investigation in the hopes of

uncovering potentially exculpatory evidence.”) (citation and quotations omitted).

Finally, White relies on his statement that he was with his girlfriend, Lauren, the

night of the alleged battery, and Lauren confirmed that, along with details of what

they did that evening and that White remained at her house through the morning.

But a reasonable officer in the same circumstances and possessing the same

knowledge as Milutinovic “could have reasonably believed that probable cause existed

in light of well-established law” (Huff, 744 F.3d at 1007, emphasis added) permitting

an arrest based on reasonably credible victim informing Milutinovic that White

committed the crime. Milutinovic also believed the September 11 incident further

established or was another indication of motive to support Gilmore’s battery claim

against White. (DSOF ¶22).

White does not cite any law undermining the conclusion that Milutinovic had

arguable probable cause. The cases White relies on either affirmed a finding of

qualified immunity (Eversole v. Steele, 59 F.3d 710 (7th Cir. 1995)) or involved

disputed issues of fact about the circumstances of the arrest (Gonzalez v. City of Elgin,

578 F.3d 526 (7th Cir. 2009); Meyer v. Robinson, 992 F.2d 734 (7th Cir. 1993)).7 As

discussed, the relevant facts about what Milutinovic knew at the time of White’s

arrest are not in dispute.

White has not met his burden to defeat Milutinovic’s qualified immunity defense.

The Court does not need to decide whether Milutinovic had probable cause because

he had arguable probable cause, providing him with qualified immunity from White’s

claim here.8

II. Indemnification and Remaining Claims

Under Illinois law, “[a] local public entity is not liable for an injury resulting from

an act or omission of its employee where the employee is not liable.” 745 ILCS 10/2-

109. The false arrest claim does not survive summary judgment against Milutinovic,

and so White’s indemnification claim against the Village also does not survive

summary judgment.

Because the Section 1983 false arrest claim does not survive summary judgment

and is the only remaining federal claim in this case, the Court declines to exercise

supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. §

7 White also relies on a number of cases from outside of this circuit that involve decisions

denying qualified immunity, for example, where there was evidence of any officer fabricating

statements on an arrest affidavit.

8 White does not explain the relevance of his discussion about whether there was probable

cause to charge White with disorderly conduct for the September 11th incident. (Dkt. 101 at

12-15). Rather it is undisputed that “Milutinovic believed the September 11 incident further

established or was another indication of motive to support Gilmore’s battery claim against

[White]” for the August 26 incident. (DSOF ¶22).

1367(c)(8); Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 631 (7th Cir. 2016)

(“when the federal claims are dismissed before trial, there is a presumption that the

court will relinquish jurisdiction over any remaining state law claims.”).9

CONCLUSION

For the stated reasons, Defendants’ motion for summary judgment [94] is granted.

Judgment is entered in favor of Defendants and against Plaintiff Dominic White. The

Clerk is directed to close the case.

ENTER:

NV )

Dated: February 16, 2021 ly YM buh L/

MARY M. ROWLAND

United States District Judge

® Although technically Gilmore was named in the §1983 false arrest claim (Dkt. 45), on

Gilmore’s oral motion to be dismissed from the case, the Court decided it had pendant state

jurisdiction (only) over him (see Dkt. 68). Indeed Gilmore is a private citizen and the record

does not reveal any basis under which he have acted under color of state law. See Barnes v.

City of Centralia, Hlinots, 943 F.3d 826, 831 (7th Cir. 2019) (‘Action is taken under color of

state law when it involves a misuse of power, possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of state law... Section 1983

does not cover disputes between private citizens....”) Gnternal citations and quotations

omitted).

16