Messino v. City of Elmhurst

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

John Messino,

Plaintiff,

Case No. 19-cv-2985

v.

Judge Mary M. Rowland

City of Elmhurst and Elmhurst Police

Officer Jason Krueger, Star No. 244,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff John Messino alleges that Elmhurst police officer Jason Krueger

arrested, detained, and initiated a criminal complaint against him without probable

cause. Plaintiff sues Krueger and Krueger’s employer, the City of Elmhurst, under

42 U.S.C. § 1983 for violations of his Fourth Amendment rights and for malicious

prosecution under Illinois law. Defendants have moved for summary judgment on all

claims. [47]. For the reasons explained below, this Court grants in part and denies

in part Defendants’ motion.

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 Chicago, 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. June 27, 2018 Incident

Plaintiff lives at 531 North Walnut Street, in Elmhurst, Illinois. [46] ¶ 7. At

all relevant times, Plaintiff worked at the CVS pharmacy in Glendale Heights,

1 This Court takes the following facts from Defendants’ statement of facts [46], Plaintiff’s

response to Defendants’ statement of facts [49-1], Plaintiff’s statement of additional facts [49-

2], and Defendants’ response to Plaintiff’s statement of additional facts [51].

Illinois, which sits about seven miles from his home. [49-2] ¶ 1. At all relevant times,

Defendant City of Elmhurst employed Defendant Krueger as a police officer. [46] ¶

6.

On June 27, 2018, at or around 11:18 a.m., Krueger responded to a dispatch to

investigate a neighbor dispute reported by Tina Blazer, who resides in a single-family

residence located at 535 North Walnut Street, Elmhurst, Illinois. Id. ¶ 9. There

exists a paved, City-owned right-of-way known as West Gladys Avenue which sits, in

part, along the north boundary of Plaintiff’s property, and in another part, along the

south boundary of Blazer’s property. Id. ¶ 10. West Gladys Avenue runs the length

of both lots and dead-ends at the east property boundary of the lots. Id. Residents

at both 531 North Walnut and 535 North Walnut use West Gladys Avenue as a

driveway for access to their respective properties. Id.

Upon arrival, Krueger met with Blazer at her home, where according to

Krueger, Blazer related that one of her neighbors at 531 North Walnut backed his

light blue Ford pickup truck down the right-of-way separating the two properties into

the shrubs and bushes, as well as a wooden marker stake in front of the bushes. Id.

¶ 11. Plaintiff drives a light blue Ford Ranger pickup truck. Id. ¶ 14. Krueger walked

with Blazer to inspect the bushes; he observed no damage to the bushes but noted a

broken wooden marker stake. Id. ¶ 12; [46-3] at 6. Krueger then walked with Blazer

back to her home. [46] ¶ 12.

About ten to fifteen minutes after he arrived at Blazer’s home, Krueger

observed Plaintiff drive his vehicle (the light blue pickup truck) north on North

Walnut Street, turn east driving onto the right-of-way, park in front of his house at

531 North Walnut, exit his vehicle, and enter his home. Id. ¶ 13. After Krueger saw

Plaintiff arrive at his home, he radioed for another officer. Id. ¶ 16. Minutes later,

an Officer Carney arrived at 535 North Walnut in full uniform, driving a fully marked

City police vehicle. Id.

Krueger advised Carney of the situation as related by Blazer. Id. ¶ 17. The

officers then went to the front door of 531 North Walnut and knocked on the door. Id.

After Plaintiff answered the door, Krueger asked Plaintiff to speak with him. Id.

Krueger told Plaintiff that Blazer had complained about Plaintiff backing his truck

out of the driveway into the bushes located on Blazer’s property. Id. ¶ 18. Plaintiff

said to Krueger that he may have gotten close to or brushed the neighbor’s bushes

“but did not hit anything.” Id. ¶ 20; [46-1] at 72–73.

Krueger asked Plaintiff if he had any identification. [46] ¶ 23; [49-2] ¶ 9.

Plaintiff provided Krueger with a revoked driver’s license and a restricted driver’s

permit. [46] ¶ 24; [49-2] ¶ 9. Plaintiff’s permit described his “Restrictions” as “CVS

PHARMACY 230 EAST NORTH AVENUE GLENDALE HEIGHTS, IL,” and his

work hours as “Rotating shifts and rotating days as assigned by employer – subject

to law enforcement verification[;] 3 mile radius.” [49-2] ¶ 10; [46] ¶ 31; [23-1]. The

restricted driver’s permit also authorized Plaintiff “Additional travel time outside of

the assigned work hours to drive to & from work location and authorizes permittee

to drive in conjunction with employment related duties within the assigned work

hours and radius.” [46] ¶ 31; [23-1]. Plaintiff testified that his restricted driving

permit allowed him only to go from home to work, to get his BAIID (a device installed

in his vehicle that tests his blood alcohol content) recalibrated, and to obtain repairs

and maintenance for his car. [46-1] at 43–44. Plaintiff testified that he did not get

any repairs and maintenance or his BAIID recalibrated that day. Id. at 44–45.

That day, Plaintiff’s employer originally scheduled him to begin working his

shift at 2:00 p.m. [49-2] ¶ 2. According to Plaintiff, he left his home earlier—around

10:30 a.m.—to drive to work because his supervisor had called and requested that he

report to work earlier than his scheduled start time of 2:00 p.m. Id. ¶ 3; [46-1] at 59.

Plaintiff maintains that, while driving to work, he realized he had forgotten his cell

phone, so he turned his vehicle around to drive home for his cell phone; on his way

home, he realized his vehicle needed gas, so he stopped for gas before proceeding

home. [49-2] ¶ 4; [46-1] at 60–61.

The parties dispute exactly what Plaintiff told Krueger about his whereabouts.

They agree that Plaintiff told Krueger that: (1) he did not actually work that morning;

(2) he was scheduled to work at 2:00 p.m.; and (3) that he was returning home from

getting gas. [46-1] at 77–79; [51] ¶ 11; [46] ¶¶ 25, 27, 28, 45. According to Plaintiff,

he also told Krueger that he had been driving to work when he backed out of the

driveway that morning. [46-1] at 7. Plaintiff testified that he was uncertain whether

he told Krueger that he returned home because he forgot his cell phone. Id. at 80.

Krueger, for his part, insists that Plaintiff never related that he was going to

work earlier than his originally scheduled 2:00 p.m. shift, or that he returned home

to retrieve his cell phone. [46-3] at 9; [51] ¶ 11. As Krueger testified, “He never gave

me reason to believe he was going to or from work.” [46-3] at 9. As such, he disputes

that Plaintiff ever told him he was “on his way to work, realized he didn’t have his

cell phone and returned home.” Id.

II. The Arrest and State Court Proceeding

After reviewing Plaintiff’s restricted driver’s permit, Krueger told Plaintiff

that the permit does not allow him to get gas. [46] ¶ 32. Krueger then informed

Plaintiff that he was under arrest for driving outside of the restrictions of his

restricted driver’s permit. Id. ¶ 34. He took Plaintiff into custody, placed handcuffs

on Plaintiff’s wrists, put Plaintiff in the back of the City police vehicle, and

transported him the police department headquarters. Id. ¶ 34. They arrived at

headquarters at about 12:18 p.m. Id. Krueger then booked and processed Plaintiff

and released Plaintiff on an I-Bond at approximately 1:25 p.m. Id. ¶ 35. The I-Bond

required Plaintiff to appear in court at a date and time yet to be determined; it

contained no other conditions. Id. ¶ 37; [46-5] at 6.

Krueger subsequently initiated a criminal charge against Plaintiff. [46] ¶ 38.

The charge ultimately terminated in Plaintiff’s favor on November 29, 2018. Id.

III. Plaintiff’s Claims and Procedural History

Plaintiff’s (operative) amended complaint asserts claims for: (1) unreasonable

seizure against Krueger (Count I); unreasonable pretrial detention against Krueger

(Count II); and malicious prosecution against both Defendants (Count III). [21].

ANALYSIS

Defendants have moved for summary judgment on all three counts of Plaintiff’s

amended complaint. [47]. This Court analyzes each count in order below.

I. Count I: Unreasonable Seizure

In Count I of his amended complaint, Plaintiff asserts that Krueger

contravened the Fourth Amendment’s prohibition against unreasonable seizures by

arresting him without probable cause. [21] at Count I. Krueger argues that: (1) he

possessed probable cause to arrest Plaintiff; and (2) the qualified immunity doctrine

bars Plaintiff’s claim against him. [48] at 3–9.

The Fourth Amendment guarantees the “right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. To prevail on his claim for unreasonable seizure

under the Fourth Amendment, Plaintiff must prove that Krueger lacked probable

cause to arrest him. Cibulka v. City of Madison, 992 F.3d 633, 638 (7th Cir. 2021).

Probable cause constitutes an absolute bar to Fourth Amendment unreasonable

seizure claims. Farnik v. City of Chicago, 1 F.4th 535, 545 (7th Cir. 2021), reh’g

denied (July 12, 2021). Officers possess probable cause “when the facts and

circumstances within their knowledge and of which they have reasonably

trustworthy information are sufficient to warrant a prudent person in believing that

the suspect has committed an offense.” United States v. Hammond, 996 F.3d 374,

391 (7th Cir. 2021) (quoting United States v. Haldorson, 941 F.3d 284, 290–91 (7th

Cir. 2019), cert. denied, 140 S. Ct. 1235 (2020)). The probable cause inquiry is

objective; thus, an “arresting officer’s state of mind (except for the facts that he

knows) is irrelevant to the existence of probable cause.” United States v. Reedy, 989

F.3d 548, 554 (7th Cir. 2021) (quoting Devenpeck v. Alford, 543 U.S. 146, 153 (2004));

see also United States v. Simon, 937 F.3d 820, 829 (7th Cir. 2019), cert. denied, 140 S.

Ct. 824 (2020).

Krueger argues that probable cause existed to arrest Plaintiff based upon his

violation of the parameters of his restricted driving permit. Relevant here, section 6-

205 of the Illinois Vehicle Code sets forth the purposes for which a restricted driving

permit may be issued. People v. Close, 939 N.E.2d 463, 470 (Ill. 2010). It states, in

relevant part:

the court may recommend and the Secretary of State in his discretion,

… issue to the person a restricted driving permit granting the privilege

of driving a motor vehicle between the petitioner's residence and

petitioner's place of employment or within the scope of the petitioner's

employment related duties, … if the petitioner is able to demonstrate

that no alternative means of transportation is reasonably available and

that the petitioner will not endanger the public safety or welfare;

provided that the Secretary's discretion shall be limited to cases where

undue hardship, as defined by the rules of the Secretary of State, would

result from a failure to issue the restricted driving permit.

625 Ill. Comp. Stat. Ann. 5/6-205. Section 6-303 of the Code provides that:

any person who drives or is in actual physical control of a motor vehicle

on any highway of this State at a time when such person's driver's

license, permit, or privilege to do so or the privilege to obtain a driver's

license or permit is revoked or suspended as provided by this Code or

the law of another state, except as may be specifically allowed by a

judicial driving permit issued prior to January 1, 2009, monitoring

device driving permit, family financial responsibility driving permit,

probationary license to drive, or a restricted driving permit issued

pursuant to this Code or under the law of another state, shall be guilty

of a Class A misdemeanor.

625 Ill. Comp. Stat. Ann. 5/6-303(a). Read together, the two sections make it a Class

A misdemeanor for a restricted driving permit holder to drive outside the parameters

of his or her permit.

Based upon the record, there exists a genuine dispute as to whether probable

cause existed to arrest Plaintiff for violating the parameters of his restricted driving

permit. The parties agree that Plaintiff told Krueger that he did not work that

morning, that he was scheduled to work at 2:00 p.m., and that he was returning home

from obtaining gas. Krueger insists that Plaintiff never said he was on his way to or

from work that morning. According to Krueger, he knew only that Plaintiff had gone

to get gas and believed thus that Plaintiff had driven outside of the parameters of his

restricted driving permit which allowed him to drive only to and from work. If a jury

believed Krueger, it could find that a reasonable officer possessed probable cause that

Plaintiff had violated the Illinois Vehicle Code.

Yet Plaintiff has a different account of his exchange with Krueger. Plaintiff

maintains that he told Krueger that he was on his way to work that morning and that

he had returned home upon realization that he forgot his cell phone. A jury could

reasonably believe Plaintiff’s account, too. And if it did, the jury could conclude that

Krueger lacked probable cause to arrest Plaintiff because he possessed facts

indicating that Plaintiff was driving within the parameters of his permit, i.e., to and

from work. In short, based upon the disputed facts, a triable issue exists as to

whether Krueger possessed probable cause.

The factual disputes here also preclude qualified immunity, a defense that

Krueger raises. [48] at 7–9. The doctrine of qualified immunity “balances dueling

interests—allowing officials to perform their duties reasonably without fear of

liability on the one hand and ‘affording members of the public the ability to vindicate

constitutional violations by government officials who abuse their offices’ on the

other.” Lopez v. Sheriff of Cook Cty., 993 F.3d 981, 987 (7th Cir. 2021) (quoting

Weinmann v. McClone, 787 F.3d 444, 447–48 (7th Cir. 2015)). In determining

whether qualified immunity applies, courts ask: (1) whether an official’s conduct

violated a constitutional right; and if so, (2) whether that right was clearly

established at the time of the alleged violation. Id. In the Fourth Amendment

context, qualified immunity exists where there is “arguable probable cause,” Cibulka,

992 F.3d at 638, or in other words, where a reasonable officer “could have mistakenly

believed that probable cause existed,” Burritt v. Ditlefsen, 807 F.3d 239, 250 (7th Cir.

2015) (quotation omitted). Drawing all inferences in Plaintiff’s favor at this stage, a

reasonable jury could find that, based upon Plaintiff’s version of the facts, Krueger

arrested Plaintiff even though he knew that Plaintiff was traveling to and from work,

an action allowed under his permit. No reasonable officer could have mistakenly

believed that probable cause existed to arrest Plaintiff based upon Plaintiff’s version

of the facts. Accordingly, the qualified immunity doctrine does not entitle Krueger to

summary judgment.

For these reasons, this Court denies summary judgment on Count I of

Plaintiff’s amended complaint.2

II. Count II: Unreasonable Detention

Plaintiff alleges in Count II that Krueger violated the Fourth Amendment by

unlawfully detaining him. [21] at Count II. An unlawful pretrial detention occurs

“when the police hold someone without any reason before the formal onset of a

criminal proceeding.” Manuel v. City of Joliet, 137 S. Ct. 911, 918 (2017). Like an

arrest, a pretrial detention constitutes a Fourth Amendment “seizure” and “is

justified only on probable cause to believe that the detainee has committed a crime.”

Young v. City of Chicago, 987 F.3d 641, 644 (7th Cir. 2021) (quoting Lewis v. City of

Chicago, 914 F.3d 472, 477 (7th Cir. 2019)). The Seventh Circuit recognizes two

possible theories of unlawful pretrial detention: (1) a detention attendant to an arrest

unsupported by probable cause; and (2) a detention attendant to pretrial release if

the “conditions of that release impose significant restrictions on liberty.” Mitchell v.

City of Elgin, 912 F.3d 1012, 1015–16 (7th Cir. 2019); see also Artman v. Gualandri,

No. 20 C 4501, 2021 WL 2254961, at *5 (N.D. Ill. June 3, 2021).

2 Krueger also suggests, without further explanation, that he had probable cause—or arguable

probable cause—to arrest Plaintiff for criminal damage to property or vandalism. [48] at 9. He fails,

however, to fully develop this argument, and thus waives it. See M.G. Skinner & Assocs. Ins. Agency

v. Norman-Spencer Agency, Inc., 845 F.3d 313, 321 (7th Cir. 2017) (“Perfunctory and undeveloped

arguments are waived, as are arguments unsupported by legal authority.”).

Plaintiff apparently bases his unlawful detention claim upon both the

detention attendant to his arrest and the subsequent bond conditions imposed upon

him during pretrial release. [49] at 11–12. To the extent Plaintiff bases his unlawful

detention claim upon initial arrest, however, the claim is redundant to his unlawful

seizure claim in Count I because both counts “are premised on the same alleged

conduct and implicate the same constitutional right—the right to be free from

unlawful detentions absent probable cause.” See Artman, 2021 WL 2254961, at *5

(dismissing a count for false arrest as being redundant to a count alleging unlawful

detention).

And to the extent that Plaintiff bases Count II upon bond conditions, Seventh

Circuit precedent forecloses that theory in light of the facts of this case. In Smith v.

City of Chicago, the court of appeals held that only bond conditions presenting

“significant restrictions of freedom” amount to a Fourth Amendment seizure. 3 F.4th

332, 342 (7th Cir. 2021). Requirements to “appear in court” or “request permission

before travel” do not constitute significant restrictions of freedom. Id. Here,

Plaintiff’s I-Bond required only that he appear in court; it contained no other

restrictions of freedom, much less “significant restrictions of freedom.” [46-5] at 6.

Thus, Plaintiff’s theory of unlawful detention based upon bond conditions fails as a

matter of law because those bond conditions do not amount to a Fourth Amendment

seizure.

In sum, to the extent Plaintiff’s unlawful detention claim is based upon the

detention attendant to his arrest, that claim is duplicative of Count I. And to the

extent Plaintiff bases his claim upon bond conditions, the Seventh Circuit’s decision

in Smith clearly forecloses that theory. For these reasons, this Court grants summary

judgment to Krueger on Count II.

III. Count III: Malicious Prosecution

In Count III, Plaintiff asserts a claim for malicious prosecution against

Krueger individually and the City of Elmhurst on a vicarious liability theory. [21] at

Count III.

To succeed on this claim under Illinois law, Plaintiff must prove: Defendants

commenced an original judicial proceeding; (2) the proceeding terminated in

Plaintiff’s favor; (3) the absence of probable cause for such proceeding; (4) the

presence of malice; and (5) damages. Lund v. City of Rockford, 956 F.3d 938, 949 (7th

Cir. 2020). In moving for summary judgment, Defendants argue that: (1) the

existence of probable cause defeats the third element of Plaintiff’s claim; and (2) the

Illinois Tort Immunity Act immunizes their actions. [50] at 14. Neither argument is

persuasive.

First, Defendants argue that the same facts justifying probable cause to arrest

Plaintiff also justify initiation of a criminal complaint against him. [50] at 14. But

because this Court has already found the existence of genuine issues of material fact

over whether Krueger possessed probable cause to arrest Plaintiff, it necessarily also

finds the existence of triable issues as to whether Krueger possessed probable cause

to initiate the state criminal proceeding. See Hill v. City of Harvey, No. 17 C 4699,

2020 WL 5800729, at *5 (N.D. Ill. Sept. 29, 2020) (finding that disputed evidence

concerning probable cause precluded summary judgment on Fourth Amendment and

malicious prosecution claims). The disputed facts surrounding probable cause thus

similarly preclude summary judgment on Plaintiff’s malicious prosecution claim.

Defendants also unsuccessfully invoke the Illinois Tort Immunity Act. The

particular section of the Act that they rely upon, see [50] at 14, provides: “A public

employee is not liable for injury caused by his instituting or prosecuting any judicial

or administrative proceeding within the scope of his employment, unless he acts

maliciously and without probable cause.” 745 Ill. Comp. Stat. Ann. 10/2-208

(emphasis added). The trier of fact can infer malice from an absence of probable

cause. Williams v. City of Chicago, 733 F.3d 749, 760 (7th Cir. 2013). Thus,

Defendants can only successfully invoke immunity pursuant to section 2-208 if this

Court finds that probable cause existed to initiate Plaintiff’s criminal prosecution.

Because, as discussed repeatedly, fact issues persist as to whether probable cause

existed to prosecute Plaintiff, this Court concludes that section 2-208 does not

immunize Defendants against Plaintiff’s malicious prosecution claim.

For these reasons, this Court denies summary judgment on Count III.

CONCLUSION

For the reasons explained above, this Court grants in part and denies in part

Defendants’ motion for summary judgment [47]. This Court grants summary

judgment to Defendants on Count II of Plaintiff’s amended complaint but Counts I

and III stand.

ENTER:

Dated: September 23, 2021 Mug Vf bt L/

MARY M. ROWLAND

United States District Judge

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