Mong v. McKenzie

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

AGWU MONG,

Plaintiff

No. 21 CV 2420

v.

Judge Jeremy C. Daniel

STEVEN M. MCKENZIE, et al.,

Defendants

ORDER

The defendants’ motion to dismiss [47] is granted because the second amended

complaint fails to state a claim. Because this is the plaintiff’s second amended

complaint, the dismissal is with prejudice. Agnew v. Nat’l Collegiate Athletic Ass’n,

683 F.3d 328, 347 (7th Cir. 2012). Civil case terminated.

STATEMENT

Before the Court is the defendants’ motion to dismiss the second amended complaint.

(R. 47.) The Court previously dismissed certain claims raised in the plaintiff’s first

amended complaint, which was filed pro se, but granted him leave to amend. (R. 39.)

With the assistance of counsel, the plaintiff filed a second amended complaint that

raises two claims under § 1983: civil conspiracy (Count I) and unlawful arrest (Count

II). (R. 43 (“SAC”).) Shedding new light on the bare bones form complaint the plaintiff

filed originally, the second amended complaint alleges that defendants Jesus Vasquez

and Raul Cervantes, both Chicago police officers, arrested the plaintiff for trespassing

without probable cause. The plaintiff further alleges that defendants Jose Lisowski

and Samuel Muniz, also Chicago police officers, participated in the arrest.

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

complaint only needs to contain factual allegations that, when accepted as true, are

sufficient to “state a claim that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–57 (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.” Id. When considering a Rule 12(b)(6) motion to dismiss, the Court “must

draw all reasonable inferences in the plaintiff’s favor.” Virnich v. Vorwald, 664 F.3d

206, 212 (7th Cir. 2011).

According to the plaintiff, defendants Vasquez and Cervantes arrested him at 324 N.

Lotus Avenue in Chicago, Illinois. (SAC ¶ 7.) The purported owner of the property

told Vasquez and Cervantes that a trespass order had been entered against the

plaintiff, but Vasquez and Cervantes did not see the trespass order or any other

evidence of ownership of the property prior to arresting the plaintiff. (Id. ¶¶ 7–9.) At

the time of the plaintiff’s arrest, the trespass order (and its supporting affidavit) had

expired. (Id. ¶¶ 10–11.) At some point during the encounter, one of the defendants

“spoke with [defendant Steven] McKenzie’s office,” which confirmed “that there was

a trespass affidavit in effect when in fact the affidavit had lapsed six months earlier.”

(Id. ¶¶ 15.) Additionally, during the encounter, one or more of the defendants

commented that the plaintiff would receive an “I–bond” and “this would be a civil

matter.” (Id. ¶ 16.) Prior to his arrest, the plaintiff told defendants Vasquez and

Cervantes that the plaintiff lived at the Lotus Avenue property and had identification

that could prove it. (Id. ¶ 13.)

These allegations fail to state a claim. In Illinois, a “person commits criminal trespass

to real property when he enters upon the land of another, after receiving, prior to the

entry, notice from the owner or occupant that the entry is forbidden” or “remains upon

the land of another, after receiving notice from the owner or occupant to depart.” 720

ILCS 5/21–3. Here, the complaint alleges that police officers were told by the

purported owner of a property that a trespass order had been entered against the

plaintiff. The only reasonable inference from the alleged efforts taken by the

purported property owner to show the police officers that a trespass order had been

entered, as well as from the fact of the plaintiff’s arrest for trespass, is that the

plaintiff was not allowed on the property by the purported property owner. These

allegations show that the defendants had probable cause to arrest the plaintiff for

criminal trespass.

The plaintiff asserts that the defendants had insufficient information to arrest him.

(R. 55 ¶ 7.) According to the plaintiff, the defendants should have taken additional

steps to review the “deed or any other ownership document,” confirm the effective

dates of the trespass order, review the trespass affidavit, and accept the plaintiff’s

representation that he lived at the property. (Id. ¶¶ 1, 7.) But “[p]robable cause

requires only that a probability or a substantial chance of criminal activity exist.”

Tebbens v. Mushol, 692 F.3d 807, 819 (7th Cir. 2012) (quoting Purvis v. Oest, 614 F.3d

713, 722–23 (7th Cir. 2010)). “The evidence need not show that the officer’s belief is

more likely true than false.” Purvis v. Oest, 614 F.3d 713, 723 (7th Cir. 2010).

Moreover, “allegations by eyewitnesses supply probable cause when the statements,

if true, show that a crime has occurred.” Askew v. City of Chi., 440 F.3d 894, 895 (7th

Cir. 2006). This is true even if the accused person denies the allegations. Id. “Police

need not conduct an investigation but may arrest and let prosecutors and courts

determine who is telling the truth.” Id. To the extent that the defendants knew that

the purported owner may have held a grudge against the plaintiff given the apparent

property dispute, see id. (noting exception where the police know of a grudge between

the accuser and the accused), the steps taken by the defendants to confirm the

existence of the trespass order provided sufficient corroboration to render the arrest

reasonable.

With respect to that confirmation, the plaintiff alleges that someone in “McKenzie’s

office” confirmed that a trespass order existed. (SAC § 15.) The second amended

complaint does not allege that Steven McKenzie himself provided that information or

that the person in “McKenzie’s office” acted at Steven McKenzie’s direction.

Accordingly, to the extent that the second amended complaint attempts to state a

claim against McKenzie, it fails to do so.

Finally, the second amended complaint also fails because the defendant officers have

qualified immunity. “Whether qualified immunity applies turns on two questions:

first, whether the facts presented, taken in the light most favorable to the plaintiff,

describe a violation of a constitutional right; and second, whether the federal right at

issue was clearly established at the time of the alleged violation.” Smith v. Finkley,

10 F.4th 725, 737 (7th Cir. 2021). Here, there was no constitutional violation as the

police officers had probable cause to arrest the plaintiff for criminal trespass. The

Court therefore grants the defendants’ motion to dismiss in its entirety.

S—

Date: 5/1/2024

JEREMY C. DANIEL

United States District Judge