# Messino v. City of Elmhurst

> District Court, N.D. Illinois · September 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10145739

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** September 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10145739. Public record. Not legal advice.