Prokop v. Hileman

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

VICTORIA PROKOP and )

WAYNE COGLIANESE, )

)

Plaintiffs, ) Case No. 21-cv-450

)

v. ) Hon. Steven C. Seeger

)

BRANDON HILEMAN, et al., )

)

Defendants. )

____________________________________)

MEMORANDUM OPINION AND ORDER

This case is about a search of a home, gone wrong. The police executed a search warrant

at the home of Joseph Gravelle, a suspected drug dealer. Except that it wasn’t his home. It was

his former home. Plaintiffs Victoria Prokop and Wayne Coglianese lived at the residence in

question. And they were surprised to see the police at their door.

When the police showed up, Prokop and Coglianese didn’t believe that they were the

police. The officers were in plain clothes, and the copy of the warrant was illegible. It was right

before Halloween, and Prokop and Coglianese thought that they were getting robbed.

When Prokop and Coglianese attempted to close the door, the police forced themselves

in. A major fracas ensued, involving both fight and flight. The police fought with Coglianese,

and eventually subdued him and placed him in handcuffs. Prokop, meanwhile, fled the home

with her cell phone, and called 911. The officers on the scene spoke with the 911 operator, and

said what was happening.

After a few minutes, Prokop and Coglianese realized that the police really were the

police. And the officers, for their part, realized that Prokop and Coglianese weren’t Gravelle.

The police realized that they were in the wrong home. The Chief of Police then showed up, and

apologized. The officers then left.

Prokop and Coglianese responded by filing suit against seven Hometown police officers

and the City of Hometown. They sued a Summit police officer and the City of Summit, too.

They alleged a collection of claims under the Fourth Amendment and under state law. The

Hometown Defendants and the Summit Defendants, in turn, moved to dismiss.

For the following reasons, both motions are granted in part and denied in part.

Background

At the motion to dismiss stage, the Court must accept as true the well-pleaded allegations

of the complaint. See Lett v. City of Chicago, 946 F.3d 398, 399 (7th Cir. 2020). The Court

“offer[s] no opinion on the ultimate merits because further development of the record may cast

the facts in a light different from the complaint.” Savory v. Cannon, 947 F.3d 409, 412 (7th Cir.

2020).

I. The Plaintiffs and Their Home

In March 2018, Plaintiff Victoria Prokop bought the house at 8840 South Ryan Road in

Hometown, Illinois, and has lived there ever since. See Cplt., at ¶ 16 (Dckt. No. 1). Two years

later, in March 2020, Plaintiff Wayne Coglianese moved in with her. Id. at ¶ 27. The home is a

duplex with a garage and a driveway, and the garage is visible from the street. Id. at ¶¶ 16–17.

Before Prokop purchased that home, Joseph Gravelle lived there. Id. at ¶ 20. Allegedly,

Gravelle is a known drug dealer in the neighborhood. Id. at ¶ 21. After Prokop bought the place,

Gravelle moved a few doors down (to 8885 South Ryan Road). Id. at ¶¶ 23–26. Plaintiffs have

no relationship or association with Gravelle. Id. at ¶ 28. They just live in his old house.

II. The Search Warrant

On October 30, 2020, Defendant Brandon Hileman (a Hometown police officer) applied

for a search warrant from the Circuit Court of Cook County. Id. at ¶¶ 6, 31. Specifically, he

asked to search Joseph Gravelle and the premises of 8840 South Ryan Road. Id. at ¶ 31.

Notice the address. At that point, 8840 South Ryan Road was the former home of

Gravelle, and was the then-current home of Prokop and Coglianese. Gravelle hadn’t lived there

for more than two and a half years. Id. at ¶¶ 20, 22.

The application for a search warrant included the factual basis for the request.

Apparently, a confidential informant (“John Doe”) spoke with Hometown’s Chief of Police,

Defendant Louis Dominguez, on October 27, 2020, meaning three days earlier. Id. at ¶¶ 7, 32.

According to John Doe, Gravelle had 6–10 marijuana plants growing in his garage. Id. at ¶¶ 33–

34. They were 3–4 feet tall, and were only two weeks away from harvest. Id. at ¶ 34.

John Doe added that Gravelle is a drug dealer who peddled marijuana, synthetic heroin,

and steroids. Id. John Doe also divulged that Gravelle uses his vehicle to transport drugs. Id.

And most importantly, John Doe said that Gravelle “uses the house to store synthetic heroin and

steroids.” Id.

The application for the search warrant also summarized a second conversation between

John Doe and law enforcement. On October 29, 2020, the day before the warrant request, John

Doe spoke with Defendant David Lis, a detective. Id. at ¶ 35. John Doe shared that he saw

marijuana plants in Gravelle’s garage on October 29, 2020 at 8:00 p.m. Id.

Hileman never independently verified any of the information from John Doe. Id. at ¶ 70.

None of the other Defendants did, either. Id. at ¶ 71. They never performed a title search, which

would have revealed that Prokop – not Gravelle – owned the property in question, meaning 8840

South Ryan Road. Id. at ¶ 72. They didn’t conduct a Google search, check with the utility

company, or search a database (like Accurint, Spokeo, or LexisNexis) to verify Gravelle’s

address. Id. at ¶¶ 73–75.

The search warrant was subscribed and sworn (the complaint does not say by whom) on

October 30, 2020 at 3:15 p.m.1 Id. at ¶ 38. The state court issued the warrant. Id. at ¶ 39.

With the warrant in hand, officers from the Hometown Police Department met to discuss

the plan to search 8840 South Ryan Road. The group included seven officers: Defendants

Hileman, Dominguez, Lis, James Sullivan, John Borgens, Timothy Casey, and Marcin Stafira.

Id. at ¶ 39. Again, Dominguez is the Chief of Police. Id. at ¶ 7. Hileman, Lis, Sullivan, and

Borgens are detectives. Id. at ¶¶ 6, 8, 9, 10. Casey and Stafira are police officers. Id. at ¶¶ 11,

12.

The officers then set up surveillance at 8840 South Ryan Road, meaning Gravelle’s

former home and the then-current home of Prokop and Coglianese. Id. at ¶ 40. The stakeout

began around 5:00 p.m. Id. at ¶¶ 41, 88. One police vehicle was near the residence, and other

vehicles were parked nearby. Id. According to the police report, they waited for two hours

without seeing Gravelle. Id. at ¶ 41.

III. The Traffic Stop

Meanwhile, as the officers waited, at 5:35 p.m. that same day, Prokop was driving in her

car in Hometown. Id. at ¶ 42. A marked Hometown police car pulled her over, and Officer

Stafira approached her vehicle. Id. at ¶¶ 43–44. Stafira told Prokop that she did not use her turn

1 Plaintiffs admit that they do not know much about the confidential informant, and allege several

potential facts in the alternative. They suggest that (1) he may have been made up; (2) he may have given

different information than the police suggested; (3) he may have lied to the police; (4) the police may

have told him to lie; or (5) the police may have lied about the information that he gave them. See Cplt., at

¶¶ 141–52 (Dckt. No. 1). No matter what really happened, Plaintiffs allege that Defendants knew that the

information used for the search warrant was false and used it anyway. Id. at ¶ 153.

signal. Id. at ¶ 46. But the dash camera video shows that she did, in fact, use her turn signal. Id.

at ¶¶ 47–48.

During the stop, Stafira asked for her license, registration, and insurance. Id. at ¶ 49.

Prokop’s license listed an old address (that is, not 8840 South Ryan Road). Id. at ¶ 51. But she

had updated the Illinois Secretary of State website to show 8840 South Ryan Road as her current

address. Id. at ¶¶ 52, 55. Stafira ran Prokop’s license, seemingly noticed the difference in

address, and asked Prokop if the address on her license was correct. Id. at ¶¶ 53–54. Prokop

explained that it was wrong, and that she had changed it online to the correct address. Id. at ¶ 55.

She also told Stafira that she bought the home at 8840 South Ryan Road. Id. at ¶ 56. After all

that, Stafira let Prokop off with a warning. Id. at ¶ 47.

The complaint alleges that Stafira told the other officers what happened during the stop.

Id. at ¶ 58. That is, Prokop believes Stafira “told the other Defendant Officers of what had

occurred at the traffic stop and had told them that Plaintiff Prokop resided at 8840 S. Ryan

Road.” Id.

The complaint doesn’t explain why Stafira told the other officers about the traffic stop.

On its face, the traffic stop would seem to be unremarkable. But reading between the lines, and

with the benefit of the response brief, it seems that Stafira was part of the stakeout of the home.

Id. at ¶ 39. And once the group saw Prokop drive away from the home – meaning the home that

was involved in the stakeout – Stafira pulled her over. And then he told the group what had

happened.

That reading isn’t the only way to read the complaint. But it is a plausible reading. And

if something else happened that is important, Plaintiffs can amend.

After Stafira let her go, Prokop went to the grocery store. Id. at ¶ 76. Plaintiffs allege, on

“information and belief,” that unspecified “Defendant Police Officers” followed her into the

store. Id. at ¶ 77. Plaintiffs don’t explain how some or all the officers followed her into the store

while also staking out their house. Regardless, the complaint does not allege that anything

important happened in the store, apart from some possible shopping for the soon-to-be BBQ.

When she finished shopping, Prokop returned home to 8840 South Ryan Road. Id. at ¶ 78.

IV. The Home Entry

When she got home, Prokop prepared dinner using an outdoor barbeque. Id. Both

Prokop and Coglianese made multiple trips in and out of the house, and any passerby could see

them from the street. Id. at ¶¶ 79–80.

Prokop also left the garage door open. Id. at ¶ 82. A passerby could see the open garage

from the street, too. Id. at ¶ 83. Plaintiffs left the garage door open the entire time they were

cooking, and they left it open when they returned inside after finishing their barbecue. Id. at

¶ 84. Plaintiffs didn’t keep any marijuana plants in the garage, and they allege that any person

looking into the garage could have seen the absence of marijuana plants. Id. at ¶¶ 85–86. But

Hileman’s police report did not mention that there were no plants in the garage. Id. at ¶ 87.

Meanwhile, the police spent two hours surveilling the property. Id. at ¶ 41. At 7:00 p.m.,

three Hometown police officers (Lis, Sullivan, and Hileman) and one Summit police officer

(Andrew Kosmowski) – approached 8840 South Ryan Road to execute the search warrant. Id. at

¶¶ 13, 88. As an aside, the complaint does not reveal why an officer from the City of Summit

(Kosmowski) participated in a search of a home in Hometown.

The officers had a search warrant. Id. at ¶¶ 39, 88, 96, 99. But they weren’t wearing

masks, despite the ongoing COVID-19 pandemic. Id. They weren’t wearing body cameras,

either. Id. at ¶ 89. And they weren’t wearing uniforms. Id. at ¶¶ 88, 97, 106

Lis, Sullivan, and Kosmowski approached the side door. Id. at ¶ 90. From their location,

the open garage door (and empty garage, presumably) was in full view. Id.

Lis knocked on the side entrance, which contained an outer glass door and an inner solid

door. Id. at ¶ 93. Prokop opened the solid door, but left the glass door shut. Id. at ¶¶ 94–95. So,

she could see the officers, and the officers could see her, but the entryway wasn’t open.

Lis announced that they were police officers and had a warrant to search the house. Id. at

¶ 96. The officers were wearing plain clothes under their vests, and Prokop had no reason to

believe that she had committed any crimes. Id. at ¶ 97. So, because the event took place right

around Halloween, Prokop did not believe them. Id. Instead, she suspected foul play, and

thought she was getting robbed. Id.

Prokop told the group at the door that they weren’t the police. Id. at ¶ 98. She made that

statement hoping to get the attention of Coglianese, who was in the living room. Id. Lis, in turn,

responded that they were, in fact, police officers. Id. at ¶ 99. To prove the point, and explain

why they were there, Lis showed Prokop a copy of the search warrant. Id.

If Lis was hoping to alleviate Prokop’s concerns, it backfired. Instead of verifying who

they were, and why they were there, the copy of the search warrant made Prokop even more

suspicious.

The copy of the warrant apparently wasn’t the best. The background was dark grey –

“almost black” – and the typed words were barely legible. Id. at ¶ 100. A reader needed the

paper close to her face to make out what it said. Id. As a result, Prokop became further

convinced that the men at her door were lying about being police officers. Id. at ¶ 101. She

refused to give her name. Id. at ¶ 102.

Up to that point, Prokop was handling the whole situation, while Coglianese was in the

living room. But Coglianese heard something, so he went to the door to see what was going on.

Id. at ¶ 103. He saw a Defendant holding up what looked like a “black piece of paper.” Id. at

¶ 104. Lis said that they were police officers and that they had a search warrant. Id. at ¶ 105.

But Coglianese didn’t believe them, either. Id. at ¶ 106. He was skeptical for a number

of reasons, including “the closeness in time to Halloween, the lack of uniform, the plain clothes

under the vest, the black piece of paper that was being claimed by the Defendants as a search

warrant, and the fact that he was not engaged in any illegal activity.” Id.

So, Prokop and Coglianese attempted to close the solid door and go about their night. Id.

at ¶ 107. But Defendants opened the glass door first, and entered the home. Id. at ¶ 108.

Chaos ensued. Lis and Kosmowski fought with Coglianese. Id at ¶ 109. The officers

eventually subdued him, and placed him in handcuffs. Id. at ¶ 110.

Meanwhile, Prokop ran to the living room and dialed 911 on her cell phone. Id. at ¶ 113.

She then fled the home, running out the front door. Id.

Around this time, as the inside of the house turned to pandemonium, Officer Hileman

entered the home through the side door, too. Id. at ¶ 111. From that vantage point, Hileman

would have been able to see that there were no marijuana plants in the garage. Id. at ¶ 112.

At 7:04 p.m., four minutes after the police knocked on the door, Prokop connected with

the 911 operator. Id. at ¶ 114. The call was recorded. Id. at ¶ 116.

Prokop told the 911 operator that people who claimed to be the police had entered her

home with an alleged search warrant. Id. at ¶ 115. Lis then exited the house and spoke to the

911 operator using Prokop’s phone, and he apparently explained the situation. Id. at ¶ 117. At

that point, Prokop began believing that the people in her home were, in fact, police officers. Id.

at ¶ 118.

So, finally believing that the people in her home were police officers, Prokop reentered

the house with Lis. Id. at ¶ 119. Both Prokop and Coglianese gave their names to the police,

and the officers kept them in their living room for questioning. Id. at ¶¶ 119–20. They were not

free to leave. Id. at ¶ 120. Eventually, the officers uncuffed Coglianese, and he and Prokop

showed the officers their IDs. Id. at ¶ 121. Only then did some Defendants (but not all) put on

face masks. Id. at ¶ 122.

Despite seeing their IDs, the officers asked if either of them was Joseph Gravelle. Id. at

¶ 123. Prokop and Coglianese replied that Gravelle used to live in that house, but had sold it and

moved down the street. Id. at ¶ 124.

The complaint doesn’t reveal how the police responded. But presumably, a light bulb

must have gone off. It undoubtedly dawned on the police that maybe they were searching the

wrong house, and had handcuffed the wrong person.

The officers wrapped up their search. They asked Prokop and Coglianese if they were

injured. Id. at ¶ 125. Both said that they were fine. Id.

Then, Dominguez (again, the Chief of Police) arrived on the scene and apologized for the

errant entry and search. Id. at ¶ 126. He said that the raid should not have happened. Id. At that

point, the officers left. Id. at ¶ 127.

V. The Effects of the Home Entry

After the adrenaline wore off, Coglianese began experiencing swelling and intense pain

in his shoulder. Id. at ¶ 128. He went to the doctor for treatment, missing a week of work. Id. at

¶¶ 129–30. Due to the pandemic, Coglianese has not been able to return to a doctor to figure out

the extent of the damage to his shoulder. Id. at ¶ 135.

Seven days after the raid, Coglianese was diagnosed with COVID-19. Id. at ¶ 132. His

last known exposure to the virus was 13 days before the search. Id. at ¶ 131. As a result of his

COVID-19 diagnosis, Coglianese had to miss two more weeks of work. Id. at ¶ 133. He

believes that he caught the virus from one of the Defendants. Id. at ¶ 134.

Prokop, on the other hand, has experienced no symptoms and has not been tested for

antibodies, so she does not know if she contracted COVID-19. Id. at ¶ 137. She doesn’t allege

any physical injuries, but she does claim to suffer from anxiety due to the events. Id. at ¶ 139.

Both Plaintiffs allege that they now live in fear of the Hometown Police Department. Id.

at ¶ 140. As a result, they want to move out of town. Id.

VI. Prior Interactions between Prokop and the Hometown Police

The complaint includes allegations about three other times when the police came to

Prokop’s home, or otherwise heard her address. Id. at ¶¶ 60–61. The theory appears to be that

Prokop told the police where she lived. Or more precisely, the police knew who lived at 8840

South Ryan Road (i.e., Prokop), and therefore they knew who didn’t live there (i.e., Gravelle).

The other incidents took place in January 2019, May 2019, and April 2020. By way of

comparison, the wayward search of Plaintiffs’ home took place in October 2020.

First, in January 2019, in the middle of the night, a Hometown officer informed Prokop

that they were checking on the house because the garage door was left open. Id. at ¶ 62. Prokop

told the officer that it was a mistake and gave him her name. Id. at ¶ 63. The officer insisted that

they go to the garage together to check that nobody had stolen anything, and then left. Id.

Second, around May 19, 2019, an officer responded to a noise complaint when Prokop

was hosting a bonfire for a friend’s birthday. Id. at ¶ 64. The officer reviewed Prokop’s ID and

gave her a warning. Id.

Third, around April 17, 2020, a stray dog walked up to Prokop’s home. Id. at ¶ 65. She

didn’t see any tags, so she called the non-emergency number. Id. Two officers came, recorded

the ID information for both Prokop and Coglianese, and took the dog. Id. at ¶ 66. Later that

night, one of the officers called Prokop and let her know that the dog belonged to an old resident

of 8840 South Ryan Road, and had been returned to its owners. Id. at ¶ 67. Prokop believes that

the police returned the dog to Joseph Gravelle (and to Terri McDaniels, his “significant other”).

Id. at ¶¶ 23, 68.

The complaint alleges that the police should have a record of each incident. Id. at ¶¶ 62,

64, 69.

VII. The Lawsuit

Prokop and Coglianese later filed suit. They brought claims against eight individual

officers – Hileman, Dominguez, Lis, Sullivan, Borgens, Casey, Stafira, and Kosmowski – as well

as the cities of Hometown and Summit. Id. at Counts I–X. Recall that Kosmowski was from the

City of Summit. Id. at ¶ 13. The rest were from Hometown.

The complaint included ten counts: (1) unlawful seizure during the traffic stop;

(2) unlawful search, fabrication of evidence, and illegal entry; (3) false arrest; (4) battery;

(5) assault; (6) trespass; (7) intentional infliction of emotional distress; (8) negligent infliction of

emotional distress; (9) respondeat superior; and (10) indemnification. There are a lot of

Defendants, and a lot of claims, but not all counts are against all Defendants.

Defendants filed two motions to dismiss. The Hometown Defendants moved to dismiss

some of the claims, and the Summit Defendants moved to dismiss all of the claims. See Pls.’

Resp. to Hometown Defs.’ Mtn. to Dismiss, at 4 (Dckt. No. 25); Summit Defs.’ Mtn. to Dismiss

(Dckt. No. 43).

In response, Plaintiffs did not file an amended complaint. But they did agree to drop

some of their claims. They dropped Defendants Hileman, Dominguez, Sullivan, Borgens, Casey,

and Stafira from the battery (Count IV) and assault (Count V) counts. See Pls.’ Resp. to

Hometown Defs.’ Mtn. to Dismiss, at 4 (Dckt. No. 25). They also agreed to drop the trespass

count (Count VI) in its entirety.2 Id. at 5. Those claims are dismissed.

As things stand, Plaintiffs are alleging the following counts against the following

defendants:

(1) Unlawful traffic stop against Hileman, Dominguez, Lis, Sullivan,

Borgens, Casey, Stafira, and Kosmowski (Count I)

(2) Unlawful search of home and seizure of person against Hileman,

Dominguez, Lis, Sullivan, Borgens, Casey, Stafira, and

Kosmowski (Count II);

(3) false arrest against Hileman, Dominguez, Lis, Sullivan, Borgens,

Casey, Stafira, and Kosmowski (Count III);

(4) battery against Lis and Kosmowski (Count IV);

(5) assault against Lis and Kosmowski (Count V);

(6) trespass against Kosmowski (Count VI);

2 The Hometown Defendants moved to dismiss Count VI. In response to that motion, Plaintiffs “agree[d]

that Count VI should be dismissed.” See Pls.’ Resp. to Hometown Defs.’ Mtn. to Dismiss, at 5 (Dckt.

No. 25). The Summit Defendants also moved to dismiss Count VI. But unlike their response to the other

motions, Plaintiffs did not agree to drop Count VI against the Summit Defendants. So, as the Court

understands the lay of the land, Count VI is a live claim against the Summit Defendants (only).

(7) intentional infliction of emotional distress against Hileman,

Dominguez, Lis, Sullivan, Borgens, Casey, Stafira, and

Kosmowski (Count VII);

(8) negligent infliction of emotional distress against Hileman,

Dominguez, Lis, Sullivan, Borgens, Casey, Stafira, and

Kosmowski (Count VIII);

(9) respondeat superior against Hometown and Summit for all the

above offenses (Count IX);

(10) indemnification by Hometown and Summit for all of the above

offenses (Count X).

For all counts, Plaintiffs seek compensatory damages, punitive damages, and attorneys’ fees.

See Cplt., at 29 (Dckt. No. 1).

After that whittling, the pending motions to dismiss involve challenges to some, but not

all, claims in the complaint.

The Hometown Defendants moved to dismiss three claims. First, they moved to dismiss

Count I (the claim about the traffic stop) against Hileman, Dominguez, Lis, Sullivan, Borgens,

and Casey (but not against Stafira). The basic idea is that only Stafira did the traffic stop, so

Prokop can’t sue anyone else. Second, the Hometown Defendants moved to dismiss the claim of

intentional infliction of emotional distress (Count VII) against all Hometown Defendants. Third,

they moved to dismiss the claim of negligent infliction of emotional distress (Count VIII) against

all Hometown Defendants. They moved to dismiss the demand for punitive damages, too. See

Hometown Defs.’ Mtn. to Dismiss, at 6–7, 10–15 (Dckt. No. 21).

The Summit Defendants moved to dismiss every count (Counts I–X). See Summit Defs.’

Mtn. to Dismiss, at 4–11 (Dckt. No. 43).

Legal Standard

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not

the merits of the case. See Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,

1520 (7th Cir. 1990). In considering a motion to dismiss, the Court must accept as true all well-

pleaded facts in the complaint and draw all reasonable inferences in the plaintiff’s favor. See

AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive, the complaint must

give the defendant fair notice of the basis for the claim, and it must be facially plausible. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678.

When reviewing a motion to dismiss under Rule 12(b)(6), the court may consider “the

complaint itself, documents attached to the complaint, documents that are critical to the

complaint and referred to in it, and information that is subject to proper judicial notice.”

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

Analysis

The Hometown Defendants and the Summit Defendants filed separate motions to

dismiss. The Court will address each motion, one at a time.

I. The Hometown Defendants

The City of Hometown and the Hometown police officers moved to dismiss three claims:

(1) the Fourth Amendment claim about the traffic stop against Hileman, Dominguez, Lis,

Sullivan, Borgens, and Casey (Count I); (2) the intentional infliction of emotional distress claim

against all Defendants (Count VII); and (3) the negligent infliction of emotional distress claim

against all Defendants (Count VIII). See Hometown Defs.’ Mtn. to Dismiss, at 4–11 (Dckt.

No. 21). They also moved to dismiss the demand for punitive damages. The Court will address

each in turn.

A. Traffic Stop (Count I)

The Hometown Defendants moved to dismiss the claim about the traffic stop against

Hileman, Dominguez, Lis, Sullivan, Borgens, and Casey. The reason is simple. Only Officer

Stafira pulled Prokop over.

The complaint includes more than a dozen paragraphs about the traffic stop. See Cplt., at

¶¶ 42–59 (Dckt. No. 1). Prokop “was stopped by a marked Hometown Police Department squad

car,” and “Defendant Officer Stafira was in that Hometown Police Department [s]quad [c]ar.”

Id. at ¶¶ 44–45. Stafira told her the reason for the traffic stop, asked for her license, ran her

information, and asked Prokop for her current address. Id. at ¶¶ 46, 49, 53, 54. He then gave her

a warning. Id. at ¶ 57.

None of the other officers were there. The complaint does allege that “[o]n information

and belief Defendant Stafira told the other Defendant Officers of what had occurred at the traffic

stop and had told them that Plaintiff Prokop resided at 8840 S. Ryan Road.” Id. at ¶ 58. But

notice the past tense. Stafira told the other officers what “had occurred” at the traffic stop. Id.

There’s no allegation that any of those officers participated in the stop. And there’s no

allegation that the other officers coaxed Stafira to pull over Prokop, or directed him to do so, or

otherwise participated in any way.

There is nothing else in the complaint tying the other Defendants to the traffic stop. The

only possible exception is the generic allegation that Stafira was “acting in concert with all other

defendants” when he conducted the stop. Id. at ¶ 155. But that’s it. A conclusory allegation

doesn’t count.

To succeed on a section 1983 claim, “[p]laintiffs must show that the defendants were

personally responsible for the deprivation of their rights.” Wilson v. Warren County, 830 F.3d

464, 469 (7th Cir. 2016). “[S]ome causal connection or affirmative link between the action

complained about and the official sued is necessary for § 1983 recovery.” Gentry v. Duckworth,

65 F.3d 555, 561 (7th Cir. 1995). “Plaintiffs must allege more than mere negligence – they must

show that the defendant knew that the primary actor ‘was acting wrongfully and facilitated it,

approved it, condoned it, or turned a blind eye.’” Molina v. Latronico, 430 F. Supp. 3d 420, 437

(N.D. Ill. 2019) (Dow, J.) (quoting Pepper v. Village of Oak Park, 430 F.3d 805, 811 (7th Cir.

2005)).

The complaint does not allege that the other Defendants participated in the traffic stop, so

it fails to state a claim. Count I against Hileman, Dominguez, Lis, Sullivan, Borgens, and Casey

is dismissed.

That said, there might be more to the story. In her response brief, Prokop asked for leave

to amend the complaint to add three new allegations. See Pls.’ Resp. to Hometown Defs.’ Mtn.

to Dismiss, at 4 (Dckt. No. 25). Specifically, Prokop seeks to add the following: (1) “[w]hile

defendant officers were surveilling 8840 S. Ryan Road on October 30, 2020, defendant officers

observed plaintiff Prokop leave 8840 S. Ryan Road in her vehicle;” (2) “Defendant Stafira was

part of the surveillance team;” and (3) “[a]fter defendant officers observed Prokop leave 8840 S.

Ryan Road, they directed defendant Stafira to follow Prokop and stop her.” Id.

So, maybe the other Defendants directed Prokop to make that traffic stop after all. If

Prokop has a factual basis to allege that the other Defendants directed the traffic stop, then she

can amend the complaint to add that allegation. The Court grants Plaintiffs leave to file an

amended complaint no later than two weeks after entry of this Order.

B. Intentional Infliction of Emotional Distress (Count VII)

The Hometown Defendants argue that Prokop and Coglianese failed to plead a claim of

intentional infliction of emotional distress. See Hometown Defs.’ Mtn. to Dismiss, at 10–13

(Dckt. No. 21).

“Under Illinois law, a plaintiff may recover damages for intentional infliction of

emotional distress only if she establishes that (1) the defendant’s conduct was truly extreme and

outrageous; (2) the defendant intended to inflict severe emotional distress (or knew that there

was at least a high probability that its conduct would cause severe emotional distress); and (3)

the defendant’s conduct did in fact cause severe emotional distress.” Richards v. U.S. Steel, 869

F.3d 557, 566 (7th Cir. 2017) (citing Feltmeier v. Feltmeier, 207 Ill. 2d 263, 278 Ill. Dec. 228,

798 N.E.2d 75, 80 (2003)); see also Ulm v. Mem’l Med. Ctr., 2012 IL App (4th) 110421, 357 Ill.

Dec. 953, 964 N.E.2d 632, 641 (2012). Negligence isn’t enough, because negligence isn’t

intentional conduct. See, e.g., Kawaauhau v. Geiger, 523 U.S. 57, 61–62 (1998) (noting that

“[i]ntentional torts generally require that the actor intent ‘the consequences of an act,” while

“negligent or reckless torts” require “simply ‘the act itself’”) (emphasis omitted) (quoting

Restatement (Second) of Torts § 8A, cmt. A (1964)).

First, the Hometown Defendants argue that Plaintiffs have not alleged outrageous

conduct. “[T]o qualify as outrageous, the nature of the defendant’s conduct must be so extreme

as to go beyond all possible bounds of decency and be regarded as intolerable in a civilized

community.” Feltmeier, 798 N.E.2d at 83. Courts conduct an objective, fact-based inquiry and

“often consider the degree of power or authority which a defendant has over a plaintiff; whether

the defendant reasonably believed that his objective was legitimate; and whether the plaintiff is

particularly susceptible to emotional distress.” Gross v. Chapman, 475 F. Supp. 3d 858, 864

(N.D. Ill. 2020) (cleaned up).

Read in a light favorable to the Plaintiffs, the complaint contains enough – just enough –

factual material about potentially outrageous conduct to go forward. The Federal Rules impose

low hurdles for pleadings, and this complaint slips over the barrier, by the skin of its teeth.

First, Defendants failed to verify where Gravelle lived. The police accepted the claim by

John Doe that Gravelle lived at 8840 South Ryan Road, but they didn’t take any steps to

doublecheck that address. See Cplt., at ¶¶ 70–75 (Dckt. No. 1). And based on other interactions

with Prokop, the police had reason to believe that she lived there.3 Id. at ¶¶ 60–69. Those

allegations sound like negligence – and again, negligence isn’t enough. But maybe the facts will

shed more light.

Second, shortly before the entry, the officers learned more information that might have

called into question who lived at 8840 South Ryan Road. A few hours before the entry, Stafira –

who participated in planning the entry, too – pulled Prokop over and learned her address. Id. at

¶¶ 42–59. And, while staking out the house, the officers would have seen Prokop and

Coglianese making dinner, too. Id. at ¶ 80. Again, the fact that Prokop and Coglianese lived

there doesn’t mean that Gravelle didn’t live there. But it’s a datapoint.

Third, right before knocking on the door, the officers could have seen that there were no

marijuana plants in the garage. Id. at ¶¶ 33, 83–86, 90–91, 112. That’s not much, but it’s

something.

3 Knowledge that Prokop lived at 8840 South Ryan Road is not the same thing as knowing that Gravelle

didn’t live there. They’re not mutually exclusive. True, Prokop and Gravelle have different last names.

But then again, so do Prokop and Coglianese, and they live together.

Taken together, that conduct may not rise to the level of conduct that is “truly extreme

and outrageous.” See Richards, 869 F.3d at 566. Still, there is little harm in allowing the claim

to go forward, because Defendants moved to dismiss only some of the claims, so discovery about

the incident will go forward anyway. The claim may not be long for this world. But for now, it

survives.

The viability of the claim will depend on the facts. Did all of the officers actually know

that Prokop lived at 8840 South Ryan Road? Did they know about the incidents involving the

open garage door (in January 2019), the noisy bonfire (in May 2019), or the stray dog (in April

2020)? See Cplt., at ¶¶ 62–69 (Dckt. No. 1). And more importantly, did any of the officers

know that Gravelle didn’t live at 8840 South Ryan Road? Did the officers fail to doublecheck

the address, and if so, was that failure anything more than negligence?

Time will tell. And it’s time for discovery.

The Hometown Defendants make one other argument. They point out that, as soon as

they learned that Gravelle lived down the street, they ceased executing the warrant, apologized,

and left. See Hometown Defs.’ Mtn. to Dismiss, at 12 (Dckt. No. 21); see also Cplt., at ¶¶ 126–

27 (Dckt. No. 1). In their view, that reaction is inconsistent with acting with intent to inflict

extreme emotional distress or knowledge of the high probability of extreme emotional distress.

See Richards, 869 F.3d at 566.

Not so. A person can act with intent, and later apologize. They’re not mutually

exclusive. People apologize for intentional conduct all the time (but less often than they should).

The Court denies the Hometown Defendants’ motion to dismiss Plaintiffs’ intentional

infliction of emotional distress claim.

C. Negligent Infliction of Emotional Distress (Count VIII)

The Hometown Defendants also moved to dismiss the claim of negligent infliction of

emotional distress under the Illinois Tort Immunity Act. See Hometown Defs.’ Mtn. to Dismiss,

at 14–15 (Dckt. No. 21).

As the name reveals, a claim of negligent infliction of emotional distress is about

negligence. But the Illinois Tort Immunity Act protects public employees from negligence

claims. “A public employee is not liable for his act or omission in the execution or enforcement

of any law unless such act or omission constitutes willful or wanton conduct.” See 745 ILCS

10/2-202. “Because negligence is by definition a lesser state of mind than willful and wanton,

‘negligence claim[s are] barred by the Illinois Tort Immunity Act.’” Tyagi v. Sheldon, 2017 WL

4130532, at *20 (N.D. Ill. 2017) (citation omitted) (collecting cases).4

True, the statute is an affirmative defense, and plaintiffs do not need to plead around

affirmative defenses in their complaints. See Hyson USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935,

939 (7th Cir. 2016). But here, delaying dismissal would merely delay the inevitable. Defendants

4 Even if the Tort Immunity Act did not bar the claim, the Court would still dismiss the claim for Prokop.

“Generally, to state a claim for negligent infliction of emotional distress, a plaintiff must allege the

traditional elements of negligence: duty, breach, causation, and damages.” Schweihs v. Chase Home

Fin., LLC, 2016 IL 120041, 412 Ill. Dec. 882, 77 N.E.3d 50, 58 (2016). After those basic elements,

Illinois courts then draw a “distinction between a direct victim and a bystander.” Id. A direct victim must

satisfy the “impact rule” by showing that “he suffered (1) emotional distress and (2) a contemporaneous

physical injury or impact.” Id. (cleaned up). Meanwhile, a bystander must satisfy the “zone-of-physical

danger rule” by showing he was “in a zone of physical danger and . . . because of the defendant’s

negligence, [had] reasonable fear for his own safety . . . .” Id. (cleaned up). Prokop alleged that she was

present in the home when Defendants executed the warrant, entered her house, and fought with

Coglianese. See Cplt., at ¶¶ 94–113 (Dckt. No. 1). That is, she was in the same location as Coglianese,

who suffered physical injury. This adequately alleges the zone of danger. But Prokop has only alleged

that she “continues to suffer anxiety from the events of the illegal raid.” Id. at ¶ 139. A plaintiff need not

“suffer a physical impact or injury at the time of the negligent act,” but she “must show physical injury or

illness as a result of the emotional distress, caused by the defendant’s negligence and not a

contemporaneous physical injury or impact.” Schweihs, 77 N.E.3d at 58 (emphasis added). Prokop

alleges emotional distress (her anxiety), but no physical manifestations of that distress. So, the Court

would dismiss this claim anyway.

have invoked the defense, and there’s no way around it. “[B]ecause the Tort Immunity Act

immunizes the Defendant Officers’ liability for negligent conduct, any repleading would be

futile.” Winn v. City of Chicago, 2022 WL 80272, at *6 (N.D. Ill. 2022).

The Court grants the Hometown Defendants’ motion to dismiss the negligent infliction of

emotional distress claim with prejudice.

D. Punitive Damages

Finally, the Hometown Defendants make a state-law procedural argument about punitive

damages. Illinois law requires a pretrial motion and a hearing before an award of punitive

damages. See Hometown Defs.’ Mtn. to Dismiss, at 15 (Dckt. No. 21). That hasn’t happened,

so the Hometown Defendants ask this Court to throw out the demand for punitive damages. Id.

Illinois law states that “[i]n all actions on account of bodily injury or physical damage to

property, based on negligence . . . where punitive damages are permitted no complaint shall be

filed containing a prayer for relief seeking punitive damages.” See 735 ILCS 5/2-604.1. Instead,

“a plaintiff may, pursuant to a pretrial motion and after a hearing before the court, amend the

complaint to include a prayer for relief seeking punitive damages.” Id. A court must allow

amendment “if the plaintiff establishes at such hearing a reasonable likelihood of proving facts at

trial sufficient to support an award of punitive damages.” Id.

Basically, state law imposes procedural requirements before a plaintiff can seek punitive

damages. That argument might have legs if this case were in state court. But this case is in

federal court, so federal procedural rules apply. The law “is procedural and does not apply” in

federal court. See Audia v. Briar Pl., Ltd., 2018 WL 1920082, at *5 n.6 (N.D. Ill. 2018); see also

MCI Worldcom Network Servs., Inc. v. Big John’s Sewer Contractors, Inc., 2003 WL 22532804,

at *3 (N.D. Ill. 2003) (collecting cases).

The Court denies the Hometown Defendants’ motion to dismiss the demand for punitive

damages.

II. The Summit Defendants

Kosmowski and the City of Summit moved to dismiss all ten counts against them. See

Summit Defs.’ Mtn. to Dismiss (Dckt. No. 43). Before turning to the merits, the Court must take

care of two housekeeping chores.

First, the Summit Defendants seek a dismissal with prejudice because, in their view, the

complaint does not include sufficient facts to support a claim. But a dismissal with prejudice is a

dismissal on the merits. District courts typically allow at least one opportunity to file an

amended complaint before dismissal with prejudice. See O’Brien v. Village of Lincolnshire, 955

F.3d 616, 628 (7th Cir. 2020). And the Plaintiffs here have filed only one complaint. So, the

time is not right for a dismissal with prejudice.

Second, the Summit Defendants invoked federal procedural rules and state procedural

rules in their motion to dismiss. See, e.g., Pls.’ Resp. to Summit Defs.’ Mtn. to Dismiss, at 9–10

(Dckt. No. 47) (invoking the pleading standards under 735 ILCS 5/2-619(a)(9)). They relied on

federal procedure for the federal claims, and state procedure for the state claims.

Federal courts apply federal procedural rules. The Federal Rules of Civil Procedure

govern all claims in federal court. The substance of the claims makes no difference. Federal

procedure applies to federal claims and to state claims, too. “[F]ederal courts in diversity cases

(and any other cases in which state law supplies the rule of decision) apply state ‘substantive’

law but federal ‘procedural’ law.” Gacek v. Am. Airlines, Inc., 614 F.3d 298, 301 (7th Cir.

2010). “[I]t is not the substantive or procedural nature or purpose of the affected state law that

matters, but the substantive or procedural nature of the Federal Rule.” Shady Grove Orthopedic

Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 410 (2010).

With those two housekeeping matters aside, the Court turns to the Summit Defendants’

motion to dismiss.

A. Federal Law Claims (Counts I–II)

The Summit Defendants moved to dismiss the first two claims based on qualified

immunity. They argue that Kosmowski receives qualified immunity for his actions, and that

Summit cannot be liable if Kosmowski is not liable. See Summit Defs.’ Mtn. to Dismiss, at 5

(Dckt. No. 43).

“The doctrine of qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,

231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[D]ismissal under Rule

12(b)(6) can preserve an official’s right, under qualified-immunity doctrine, ‘not to stand trial or

face the other burdens of litigation,’ including pretrial discovery.” Hanson v. LeVan, 967 F.3d

584, 589 (7th Cir. 2020) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

Qualified immunity depends on the facts. See Hardeman v. Curran, 933 F.3d 816, 823

(7th Cir. 2019) (explaining that qualified immunity “closely depends” on the facts of the case);

Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009) (assessing defendant’s conduct “in

light of the particular circumstances” he faced). The Court asks whether “particular conduct”

violated a clearly established right “in light of the specific context of the case, not as a broad

general proposition.” Leiser, 933 F.3d at 702 (emphasis in original) (cleaned up); see Mullenix

v. Luna, 577 U.S. 7, 12 (2015) (“The dispositive question” for qualified immunity is “whether

the violative nature of particular conduct is clearly established.”) (emphasis in original) (cleaned

up).

“While qualified immunity is an affirmative defense, once raised, the burden shifts to the

plaintiff to defeat it.” Leiser v. Kloth, 933 F.3d 696, 701 (7th Cir. 2019). To meet that burden,

the plaintiff must “demonstrate[] that the official violated a statutory or constitutional right and

that the right was ‘clearly established’ at the time of the challenged conduct.” Howell v. Smith,

853 F.3d 892, 897 (7th Cir. 2017) (emphasis in original) (citation omitted).

The Summit Defendants argue that Kosmowski executed a valid search warrant, so he

deserves qualified immunity. See Summit Defs.’ Mtn. to Dismiss, at 5 (Dckt. No. 43). They cite

a string of cases that allegedly declare police officers “immune from liability” when executing a

facially valid warrant.5 Id. This formulation is less an argument for qualified immunity, and

more a claim that Plaintiffs did not plead a Fourth Amendment violation at all. Nevertheless, the

invocation of the defense is enough, and the burden shifts to Plaintiffs to provide case law

showing that the conduct violated a clearly established right.

Prokop and Coglianese respond with two arguments.

First, they contend that the warrant was illegible, and Kosmowski did not read it, so he

could not rely on it in good faith. See Pls.’ Resp. to Summit Defs.’ Mtn. to Dismiss, at 6–7

(Dckt. No. 47).

Plaintiffs have not carried their burden of showing that Kosmowski violated clearly

established law. Plaintiffs rely on cases from different districts, circuits, and states. “‘In

determining whether a right is ‘clearly established,’ [the Court] look[s] first to controlling

5 As an aside, none of the cases that the Summit Defendants cite held that the officers were “immune

from liability.” They are each criminal appeals, in which a court ruled evidence admissible because the

police obtained it in accordance with the Fourth Amendment.

precedent on the issue from the Supreme Court and from [the Seventh] [C]ircuit’. If such

precedent is lacking, [the Court] look[s] to all relevant case law to determine ‘whether there was

such a clear trend in the case law that [the Court] can say with fair assurance that the recognition

of the right by a controlling precedent was merely a question of time.’” Phillips v. Cmty. Ins.

Co., 678 F.3d 513, 528 (7th Cir. 2012) (citations omitted).

There is no clear trendline. Plaintiffs offer only one case about an illegible warrant. It

came from a different district (the Eastern District of Virginia) nearly two decades ago. See

Freedman v. Am. Online, Inc., 325 F. Supp. 2d 638 (E.D. Va. 2004). And the facts were much

different.

Freeman involved a warrant application that was signed by the police, but not by a judge.

Id. at 641 (“The juxtaposition of these words and Detective Bensey’s signature might lead a

reader to assume, incorrectly, that Detective Bensey’s signature is that of a judge. But careful

review of the form discloses that there is a line below the words ‘Signed (Judge of the Superior

Court)’ that is meant for the judge’s signature and this line is blank. Nor is the form signed

anywhere else by a judge. Moreover, no signature, including that of Detectives Young and

Bensey, appears on page five, even though the warrant appears to require the signature of a judge

on that page.”). So it wasn’t a warrant.

That’s not this case. The police here had a lawful warrant. A judge signed it. In fact, the

complaint acknowledges that the police “obtained a search warrant” for 8840 South Ryan Road.

See Cplt., at ¶ 158 (Dckt. No. 1); see also id. at ¶¶ 39, 96, 99–100, 105, 153, 170.

The illegibility of the warrant does not undermine the existence of the warrant. The

lawfulness of the warrant does not depend on its readability. In fact, the police do not have to

show the warrant at all, which necessarily means that they don’t have to show a legible warrant.

See United States v. Sims, 553 F.3d 580, 584 (7th Cir. 2009) (“[N]othing in the amendment

requires that the warrant be shown to the person whose premises are to be searched. As a matter

of prudence, police will show a search warrant to the person whose premises are to be searched if

he questions their authority to conduct the search. But they do not have to.”).

Plaintiffs have not come forward with clearly established law that a police officer cannot

conduct a search if the police arrive at the home with a warrant that is illegible. So qualified

immunity applies.

Second, Plaintiffs argue that Kosmowski (and the other officers) learned facts after

receiving the warrant that destroyed probable cause. Plaintiffs cite a footnote from a Supreme

Court opinion, which noted that “probable cause may cease to exist after a warrant is issued.

The police may learn, for instance, that contraband is no longer located at the place to be

searched.” United States v. Grubbs, 547 U.S. 90, 96 n.2 (2006).6

The argument rests on the absence of marijuana plants in the garage. John Doe said that,

on the day before the search, he saw 6–10 plants in the garage, and that they were 3–4 feet tall.

Id. at ¶ 34. But on the day of the search, there were no marijuana plants in the garage. And the

officers could have seen that they weren’t there. The garage door was open, and the garage was

in plain view. See Cplt., at ¶¶ 90–91 (Dckt. No. 1).

As Plaintiffs see it, the warrant rested on the fact that there were marijuana plants in the

garage. But the police could have seen that there were no marijuana plants. So, in their view,

probable cause for a search no longer existed. Without plants, there’s no probable cause.

6 They also cite a Washington Supreme Court case and a D.C. Circuit case, but as explained above, those

cases do little to clearly establish law in this district.

That argument faces a number of problems. For starters, the application for the warrant

was not limited to marijuana plants in the garage. John Doe divulged that Gravelle “uses the

house to store synthetic heroin and steroids.” Id. at ¶ 34. So there was an independent basis to

search the home, even if the marijuana plants were not in the garage.

The warrant was not confined to the garage, either. It authorized a “search [of] Joseph

Gravelle and the premises of 8840 S. Ryan Rd.” Id. at ¶ 31. Premises include “[a] house or

building, along with its ground.” See Premises, Black’s Law Dictionary (11th ed. 2019). The

warrant covered the premises, and the premises included the house.

Based on the information from the informant, there was probable cause to search the

home. “Law enforcement officials have probable cause to search a particular place where ‘the

known facts and circumstances are sufficient to warrant a man of reasonable prudence in the

belief that contraband or evidence of a crime will be found.’” United States v. Aljabari, 626 F.3d

940, 944 (7th Cir. 2010) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). The

sufficiency determination is based on the “totality of the circumstances known at the time a

warrant is requested. Those circumstances need only indicate a reasonable probability that

evidence of crime will be found in a particular location; neither an absolute certainty nor even a

preponderance of the evidence is necessary.” Id. (citation omitted).

The fact that the marijuana plants were not in the garage was not especially noteworthy.

According to John Doe, the marijuana plants were only 3–4 feet tall. They weren’t sequoias.

They were mobile. Someone could have easily picked them up, and taken them inside the home.

Also, Plaintiffs did not allege that Kosmowski had any role in obtaining the search

warrant. So, unlike the Hometown Defendants, Kosmowski entered the home solely based on

the contents of warrant, not based on what the informant told the officers. That is, nothing in the

complaint alleges that Kosmowski had any reason to know that the drugs were exclusively in the

garage.

Based on the allegations in the complaint, the totality of the circumstances at the time of

Kosmowski’s entry suggest “a reasonable probability” that the drugs might be in the house. The

warrant did not expire when the officers saw the garage was empty, and it allowed them to

search the house for the drugs. As a result, he acted pursuant to a valid search warrant, and

Plaintiffs provided no case law to suggest their actions exceeded clearly established law. So,

Kosmowski is entitled to qualified immunity on Count I.

The Summit Defendants also moved to dismiss Count II (the traffic stop) on qualified

immunity grounds, too. But there is a more basic problem. The complaint does not allege that

Kosmowski or anyone else from Summit participated in the traffic stop. So there is no claim.

The Court grants the Summit Defendants’ motion to dismiss Counts I and II.

B. State Law Claims (Counts III–X)

The Summit Defendants also moved to dismiss all eight state law claims: false arrest

(Count III), battery (Count IV), assault (Count V), trespass (Count VI), intentional infliction of

emotional distress (Count VII), negligent infliction of emotional distress (Count VIII),

respondeat superior (Count IX), and indemnification (Count X). See Summit Defs.’ Mtn. to

Dismiss, at 7 (Dckt. No. 43).

Their only argument is that the Illinois Tort Immunity Act protects Kosmowski (and

therefore Summit) from liability. Id. Specifically, they argue that Plaintiffs have failed to plead

any facts suggesting that Kosmowski’s actions were willful and wanton. Id. at 8.

As discussed above, the Illinois Tort Immunity Act states that “[a] public employee is not

liable for his act or omission in the execution or enforcement of any law unless such act or

omission constitutes willful and wanton conduct.” See 745 ILCS 10/2-202. The Act defines

willful and wanton conduct as “a course of action which shows an actual or deliberate intention

to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard

for the safety of others or their property.” See 745 ILCS 10/1-210. The conduct must be “more

than mere inadvertence, incompetence, or unskillfulness.” Stevenson v. City of Chicago, 2018

WL 1784142, at *32 (N.D. Ill. 2018). Additionally, “[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.” See

745 ILCS 10/2-109.

But overcoming the Illinois Tort Immunity Act is not part of the plaintiff’s case in chief.

The Illinois Tort Immunity Act is an affirmative defense, and a plaintiff does not have to plead

around affirmative defenses. See Sterling v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202,

2021 WL 809763, at *7 (N.D. Ill. 2021) (“[The Tort Immunity Act] provides affirmative

defenses, and plaintiffs generally need not anticipate and overcome affirmative defenses in their

complaint.”); Doe v. Sch. Dist. U-46, 2021 WL 3849635, at *10 (N.D. Ill. 2021); Khan v. Bd. of

Educ. of City of Chicago, 2018 WL 6192186, at *7 (N.D. Ill. 2018). “As a general rule,

‘[w]hether conduct is willful and wanton is a factual question.’” Grimes v. County of Cook, 455

F. Supp. 3d 630, 643 (N.D. Ill. 2020) (quoting Carter v. Simpson, 328 F.3d 948, 951 (7th Cir.

2003)).

That said, the Court does dismiss the negligent infliction of emotional distress claim

against Kosmowski. Negligence is, by definition, less than wanton and willful. See 745 ILCS

10/2-202; Tyagi, 2017 WL 4130532, at *20 (collecting cases); Winn, 2022 WL 80272, at *6. It

is inevitable that a negligence-based claim will fail, because Defendants have asserted an

affirmative defense showing that they can’t be liable for mere negligence. The Court dismisses

that count with prejudice.

The Court grants the Summit Defendants’ motion to dismiss Count VII (negligent

infliction of emotional distress) with prejudice. The Court denies the Summit Defendants’

motion to dismiss Counts II-VI and [X—X.

Conclusion

For the foregoing reasons, the Court grants in part and denies in part the Hometown

Defendants’ motion to dismiss. The Court grants in part and denies in part the Summit

Defendants’ motion to dismiss.

Date: March 2, 2022 py

Steven C. Seeger

United States District Judge

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