Gaddis v. Demattei

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MARLEIS TROVER, as Personal )

Representative of the Estate of Donald )

Gaddis, )

)

Plaintiff, )

)

vs. ) Case No. 3:18-cv-1464-DWD

)

CRAIG OGLESBY and DUSTIN )

KELLEY, )

)

Defendants. )

MEMORANDUM & ORDER

DUGAN, District Judge:

Before the Court is Defendants’ Motion for Summary Judgment and Supporting

Memorandum. (Doc. 102). Plaintiff filed an Amended Response in Opposition to the

Motion for Summary Judgment. (Doc. 104-1). Thereafter, Defendants filed a Motion for

Leave to File an Untimely Reply in Support of the Motion for Summary Judgment

instanter, which is now GRANTED, without objection from Plaintiff, for good cause and

excusable neglect shown by Defendants. See Fed. R. Civ. P. 6(b)(1); (Docs. 107 & 109).1 For

the reasons explained below, the Motion for Summary Judgment is GRANTED.

I. BACKGROUND

In this case, the parties largely agree on the underlying factual circumstances.

Plaintiff indicates: “Defendants’ able counsel has offered a factual summary of the case,

1Plaintiff states she “does not believe that exceptional circumstances exist which warrant the filing

of a Reply, but…out of an abundance of caution, Plaintiff has no objection to the Court considering the

arguments so that the record will be complete in the event that any appeal is taken.” (Doc. 109, pgs. 1-2).

the bulk of which Plaintiff does not and cannot object to.” (Docs. 102, pgs. 2-4; 104-1, pg.

3). Accordingly, the Court begins with the areas of agreement between the parties.

The former Plaintiff, Donald Gaddis, who died on May 20, 2022, was a respondent

in proceedings for an order of protection. (Doc. 98, pg. 2). Former Defendant Bryan

DeMattei, who is a police officer for the City of Marion, Illinois, was a witness in that

proceeding. (Doc. 98, pg. 2). In March 2018, “Gaddis was driving on the street in front of

DeMattei’s house, and Gaddis noticed DeMattei’s car in the driveway.” (Doc. 98, pg. 2).

DeMattei was outside of the home with another officer, Sam Ward, and both were off

duty. (Doc. 98, pg. 2). Gaddis drove onto DeMattei’s driveway to discuss DeMattei’s

testimony in the order of protection proceedings. (Doc. 98, pg. 3).

Defendants Oglesby and Kelley, who are police officers for the Williamson

County, Illinois, Sheriff’s Office, were separately dispatched to DeMattei’s home, where

Gaddis was refusing to leave. (Docs. 98, pgs. 2-3; 102-1, pgs. 14-15. When Defendant

Oglesby arrived on scene, DeMattei and Ward were restraining Gaddis on the ground.

(Docs. 98, pg. 3; 102-1, pg. 38). Defendant Oglesby found Gaddis had trespassed on

DeMattei’s real property; therefore, Defendant Oglesby arrested Gaddis and placed him

in the back of a police car. (Doc. 102-1, pgs. 22, 24-25).

Before towing Gaddis’s car due to his arrest, Defendant Kelley conducted an

inventory search of that car. (Docs. 98, pg. 3; 102-1, pgs. 27, 29; 102-2, pg. 7; 102-3).

Pursuant to Williamson County Sheriff’s Office Policy No. 0-28, which pertains to motor

vehicle inventories, an inventory search is “designed to protect motor vehicles and their

contents while in policy custody; to protect the agency against claims of lost, stolen or

damaged property; and to protect Sheriff’s Office personnel and the public against injury

or damaged property due to hazardous materials or substances that may be in the

vehicle.” (Doc. 102-4, pg. 9). Policy No. 0-28 states an inventory search may be conducted

without a warrant or probable cause when a car’s driver has been arrested. (Doc. 102-4,

pg. 10). Generally, the inventory search must occur at the location where the car is seized.

(Doc. 102-4, pgs. 10, 13). All items of value must be itemized in detail on a Vehicle Tow

and Inventory Form. (Doc. 102-4, pgs. 10, 13). Under Policy No. 0-29, an impoundment is

required if “a subject is arrested for purposes of incarceration and…[t]he vehicle was

used in a crime,” such as a trespass. (Doc. 102-4, pg. 14).

During the inventory search, Defendant Kelley found “some type of paperwork”

or “misc paper work,” i.e., a notebook, on the passenger-side floorboard or seat of the car.

(Docs. 98, pg. 3; 102-2, pgs. 7-8, 13; 102-3.2 Defendant Kelley also identified golf clubs, a

black bag, a brown bag, headphones, jumper cables, a flashlight, clothes, mace, speed

loaders for a revolver, and Jordan tennis shoes. (Doc. 102-3). He signed a Williamson

County Sheriff’s Office Vehicle Impoundment and Inventory Record that identified this

property. (Doc. 102-3). Defendant Kelley briefly looked inside the notebook during the

inventory search of the car. (Doc. 102-2, pg. 8). He explained the process as follows:

When I opened it, I would have been making sure there was nothing of

value in there. If there’s…something valuable like cash or something like

that, we’re not going to leave it in the vehicle in an unsecured position. So

I would have opened it briefly, made sure there was no valuable items,

what I believe to be valuable items.

* * *

2The Court notes the notebook has also been referred to as a journal or miscellaneous papers.

I wouldn’t say I read it. I briefly looked at it to make sure it wasn’t

anything of value or any, like, bank numbers or anything of value that

could affect Mr. Gaddis’s loss of some type of value.

(Doc. 102-1, pgs. 7-8).

Defendant Kelley may have placed the notebook on the hood of the car. (Doc. 102-

2, pgs. 9-10, 24). Otherwise, he testified, “I wouldn’t say I removed it” from the car. (Doc.

102-2, pg. 9). Defendant Kelley “absolutely [did] not” take the notebook inside DeMattei’s

house. (Doc. 102-2, pg. 9). When asked if he ever took the notebook to DeMattei so he

could read its contents, Defendant Kelley initially answered, “No, sir. Not that I would

recall.” (Doc. 102-2, pg. 9). After a follow-up question, Defendant Kelley clarified his

answer, stating “I would not have carried the notebook over to his person for him to look

at it. No, sir, I would not have done that.” (Doc. 102-2, pg. 10). Further, at no time did

Defendant Kelley recall DeMattei or Ward interacting with Gaddis’s notebook or fooling

around in his car. (Doc. 102-2, pgs. 24-25). That said, Defendant Kelley also did not know

how DeMattei could have referenced statements contained in Gaddis’s notebook in

subsequently filed no-contact petitions in the Illinois state courts. (Doc. 102-2, pg. 11).

Defendant Oglesby testified that he did not conduct the inventory search, and he

did not recall anyone other than Defendant Kelley inventorying Gaddis’s car. (Doc. 102-

1, pg. 30). He observed an empty holster in the trunk of the car, but he had no recollection

of any miscellaneous paperwork. (Docs. 102-1, pgs. 31-32; 102-2, pg. 13). As such,

Defendant Oglesby testified that he did not show any paperwork or a notebook to

DeMattei in his house. (Doc. 102-1, pgs. 32, 40). He did not recall DeMattei ever entering

Gaddis’s car. (Doc. 102-1, pg. 40). Defendant Oglesby was also unaware of any

conversations that Defendant Kelley had with DeMattei, and Defendant Oglesby did not

observe Defendant Kelley perusing a notebook in any manner. (Doc. 102-1, pgs. 17, 32).

In any event, Defendant Oglesby testified that he would not have read any written

materials contained inside the car during the inventory search. (Doc. 102-1, pg. 36).

Although the parties largely agree on these facts, Plaintiff challenges two

statements of material fact asserted by Defendants. (Docs. 102, pgs. 4, 8; 104-1, pg. 3). In

particular, she contests Defendants’ statement of material fact that Defendant “Kelley

denied ever carrying the notebook over to DeMattei for him to look at.” (Docs. 102, pgs.

4, 8; 104-1, pg. 3). Likewise, Plaintiff contests Defendants’ statement of material fact that

“[n]either…Kelley nor…Oglesby took the notebook into DeMattei’s home…[and]

Oglesby never went into DeMattei’s home.” (Docs. 102, pgs. 4, 8; 104-1, pg. 3).

The primary evidentiary basis for Plaintiff’s argument is the deposition of

DeMattei. He testified that the factual basis for the subsequently filed no-contact petitions

came from “what I saw in the notebook.” (Doc. 103-1, pg. 11). DeMattei noted he was off-

duty and he did not inventory the car on the date of the incident; however, the notebook

“was presented to…[him] by a deputy.” (Doc. 103-1, pgs. 11, 15). DeMattei confirmed,

other than a supervisory officer from the Williamson County Sheriff’s Office, Jeffrey

Moore, who did not leave his vehicle on the date of the incident, Oglesby, Kelley, and

Ward (off duty) were the only officers on scene. (Docs. 102-5, pgs. 15, 25; 103-1, pgs. 11-

12). Even so, DeMattei did “not remember specifically” who showed him the notebook.

(Doc. 103-1, pg. 12). DeMattei conceded Lieutenant Moore could not have shown him the

notebook. (Doc. 103-1, pg. 12). DeMattei did not know if it could have been Defendant

Oglesby or Defendant Kelley. (Doc. 103-1, pg. 12). DeMattei also did not know if he was

shown the notebook by another unidentified person or officer. (Doc. 103-1, pgs. 12-13).

DeMattei did remember what he was told when presented with the notebook.

(Doc. 103-1, pg. 13). He “remember[ed] him saying that my name was in” the notebook.

(Doc. 103-1, pgs. 13-14). The notebook was presented to him for only a matter of minutes

in the kitchen of his home. (Doc. 103-1, pgs. 13-14). DeMattei stated, “[t]he notebook was

laid on my kitchen island and he said my name was in it and directed my attention

towards it.” (Doc. 103-1, pg. 14). He did not remember if the unidentified officer directed

him to a particular page or just to the notebook. (Doc. 103-1, pg. 14). DeMattei clarified

that the unidentified officer came into his house with the notebook. (Doc. 103-1, pg. 14).

Similarly, Lieutenant Moore testified that he was not aware of any inventoried

items, such as the notebook, being placed into evidence. (Doc. 102-5, pg. 30). When asked

if Defendant Kelley had the authority to read the notebook during the inventory search,

Lieutenant Moore stated, “I’m sure that he would have went through the miscellaneous

paperwork to make sure that there weren’t any narcotics or anything like that. I can’t

testify on what…his mindset was at the time.” (Doc. 102-5, pg. 31). Over the objection of

the Defense, Lieutenant Moore indicated DeMattei, as an off-duty officer, would not have

the authority to review Gaddis’s notebook or read its content. (Doc. 102-5, pg. 35). It was

Lieutenant Moore’s understanding that “nothing ha[d] been broken as far as the policies

and procedures of the Williamson County Sheriff’s Office.” (Doc. 102-5, pgs. 40-41).

As a result of these facts, Plaintiff filed an Amended Complaint (Doc. 98), alleging

an illegal search and seizure under 42 U.S.C. § 1983 (Count I) and an illegal trespass to

chattels under Illinois law (Count II). In Count I, Plaintiff alleges Defendants knew they

lacked probable cause to search Gaddis’s notebook or to share its contents with DeMattei.

(Doc. 98, pgs. 3-4). Even if Defendants believed the car contained evidence relevant to the

trespass charges for which he was arrested, Plaintiff states exigent circumstances did not

permit a search of the notebook. (Doc. 98, pg. 4). Plaintiff also alleges Gaddis’s car was

impounded by the Williamson County Sheriff’s Office, so a search warrant could have

been obtained based on probable cause. (Doc. 98, pg. 4). In Count II, Plaintiff alleges

Gaddis never gave Defendants consent to search his notebook. (Doc. 98, pg. 5). Gaddis

allegedly sustained damages due to the trespass to his notebook. (Doc. 98, pg. 5).

II. ANALYSIS3

Defendants seek summary judgment on both Counts I and II of the Amended

Complaint. The Court may grant that relief if Defendants show there is no genuine

dispute as to any material fact, such that they are entitled to a judgment as a matter of

law. See Fed. R. Civ. P. 56(a); accord Driveline Systems, LLC v. Arctic Cat, Inc., 936 F.3d 576,

579 (7th Cir. 2019) (quoting Dunderdale v. United Airlines, Inc., 807 F.3d 849, 853 (7th Cir.

2015); citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Assertions that a fact cannot

be or is genuinely disputed must be supported by citations to the record. See Fed. R. Civ.

P. 56(c)(1)(A). Alternatively, the assertions must be supported by a showing that the

3The Court notes that Plaintiff’s responsive arguments, at times, are presented in an abbreviated

form and are a bit disconnected from the organization of Defendants’ Motion for Summary Judgment. The

Court has done its best to discuss Plaintiff’s responsive arguments where they are most applicable.

materials cited do not establish the absence or presence of a genuine dispute or that an

adverse party cannot produce evidence to support the fact. See Fed. R. Civ. P. 56(c)(1)(B).

If Defendants present evidence showing the absence of a genuine dispute of

material fact, then the burden shifts to Plaintiff to provide evidence of specific facts

creating a genuine dispute of material fact. See Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir.

2012) (citing Hudson Ins. Co. v. City of Chic. Heights, 48 F.3d 234, 237 (7th Cir. 1995)). A

genuine dispute of material fact exists if there is sufficient evidence for Plaintiff to receive

a verdict. See Driveline Systems, 936 F.3d at 579 (quoting Aregood v. Givaudan Flavors Corp.,

904 F.3d 475, 482 (7th Cir. 2018), reh’g denied (Oct. 30, 2018)). Speculation about a material

fact, unsupported by evidence, does not defeat summary judgment. See Moje v. Fed.

Hockey League, LLC, 377 F. Supp. 3d 907, 920 (N.D. Ill. 2019) (citing Sbika v. Ill. Cent. R.R.

Co., 884 F.3d 708, 721 (7th Cir. 2018); Cleveland v. Porca Co., 38 F.3d 289, 295 (7th Cir. 1994)).

When considering a motion for summary judgment, the Court does not determine

credibility, weigh the evidence, or decide which inferences to draw from the facts, as

those tasks are within the province of a jury. See Runkel v. City of Springfield, 51 F.4th 736,

741 (7th Cir. 2022) (quoting Johnson v. Advocate Health & Hospitals Corp., 892 F.3d 887, 893

(7th Cir. 2018)). Instead, based on the record evidence, the Court merely decides whether

a genuine dispute of material fact requires a trial. See id. (quoting Johnson, 892 F.3d at 893).

When doing so, the Court construes the evidence in a light most favorable to the

nonmovant while avoiding the temptation of deciding one party’s version of facts is more

likely true than the other party’s version of facts. See id. (quoting Johnson, 892 F.3d at 893).

Having outlined this procedural posture, the Court separately considers whether

summary judgment is appropriate on Counts I or II of the Amended Complaint.

B. Defendants’ Alleged Illegal Search and Seizure under § 1983 (Count I)

Now, Defendants argue Gaddis’s car and notebook were the subject of a lawful

inventory search by Defendant Kelley after Gaddis’s arrest. (Doc. 102, pgs. 5, 7-8).

Defendants also argue Defendant Oglesby lacked personal involvement in the inventory

search, which is a necessary element to a § 1983 claim. (Doc. 102, pg. 8). They state

Defendant Oglesby did not participate in the inventory search beyond merely “observing

a gun holster in the trunk.” (Doc. 102, pg. 8). Defendants also argue Defendant Oglesby

did not recall viewing any paperwork on the passenger side of the car; however, even if

he had, it was not Defendant Oglesby’s practice to read written materials found during

an inventory search. (Doc. 102, pg. 8). Also, in Defendants’ view, there is no evidence that

they were personally involved in reading or sharing the information contained in the

notebook, except for Defendant Kelley’s review “for bank numbers or other information

of pecuniary value.” (Doc. 102, pg. 5). In any event, Defendants argue they are entitled to

summary judgment on Count I due to qualified immunity and, as to Defendant Kelley,

the fact that Count I was filed outside the statute of limitations. (Doc. 102, pgs. 5, 9-10).

Plaintiff states “it is abundantly clear that in the process of ‘inventorying’ Gaddis’s

vehicle…one of [the Defendants]…not only read a journal[] belonging to Gaddis but also

showed it to an off-duty Marion police officer, Bryan DeMattei.” (Doc. 104-1, pg. 1).

Plaintiff suggests it is obvious DeMattei was shown the notebook because he and another

officer cited the notebook in subsequent no-contact petitions. (Doc. 104-1, pgs. 2-4). Since

Defendants deny showing the notebook to DeMattei, Plaintiff argues the question must

be presented to a jury. (Doc. 104-1, pgs. 2, 4). Plaintiff also argues “Oglesby himself stated

that it was against policy for even him to read the notebook, much less [to] permit

DeMattei to read the notebook,” so qualified immunity is unavailable. (Doc. 104-1, pg. 5).

Personal liability under § 1983 is contingent upon “the relevant official ‘caus[ing]

the constitutional deprivation at issue’ or ‘acquiesc[ing] in some demonstrable way in the

alleged constitutional violation.’ ” Gonzalez v. McHenry County, Illinois, 40 F.4th 824, 828

(7th Cir. 2022) (quoting Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003)). In other

words, a lawsuit against individual defendants requires their personal involvement in

the alleged constitutional deprivation. See id. (quoting Palmer, 327 F.3d at 594);

see also Taylor v. Ways, 999 F.3d 478, 493 (7th Cir. 2021) (recognizing, under § 1983, a

government official is only liable for his or her own misconduct).

Further, the Fourth Amendment to the U.S. Constitution only forbids

unreasonable searches and seizures. See U.S. v. Ambriz-Villa, 482 F. Supp. 3d 777, 781-82

(S.D. Ill. 2020) (quoting Elkins v. U.S., 364 U.S. 206, 222 (1960)). It is well-settled that an

inventory search is an exception to that Amendment’s warrant and probable cause

requirements. U.S. v. Cherry, 436 F.3d 769, 772 (7th Cir. 2006) (citing U.S. v. Wilson, 938

F.2d 785, 788 (7th Cir. 1991)); accord U.S. v. Davis, 627 F. Supp. 3d 983, 992 (N.D. Ind. 2022).

A police officer who lawfully impounds a car may conduct an inventory search of its

contents, as the police officer is responsible for the car and its contents while in his or her

custody. See U.S. v. Clinton, 591 F.3d 968, 972 (7th Cir. 2010) (citing Colorado v. Bertine, 479

U.S. 367, 373 (1987)). Such “[a]n inventory search is lawful if (1) the individual whose

possession is to be searched has been lawfully arrested, and (2) the search is conducted

as part of the routine procedure incident to incarcerating an arrested person and in

accordance with established inventory procedures.” U.S. v. Cartwright, 630 F.3d 610, 614

(7th Cir. 2010) (citing U.S. v. Jackson, 189 F.3d 502, 508-09 (7th Cir. 1999)). The

“procedures,” which may be executed before the tow, protect the property and the police

officer from charges that it was stolen, lost, or damaged. See Cherry, 436 F.3d at 772

(quoting U.S. v. Pittman, 411 F.3d 813, 817 (7th Cir. 2005)); accord Davis, 627 F. Supp. 3d at

983. An inventory search may not be used, however, “to rummage generally through a

vehicle in order to discover incriminating evidence.” U.S. v. Reed, 319 F. Supp. 3d 1112,

1121 (S.D. Ind. 2018) (citing Florida v. Wells, 495 U.S. 1, 4 (1990)); see also U.S. v. Travis, No.

21-cr-91, 2022 WL 832096, *5 (E.D. Wisc. March 21, 2022) (“An inventory search should

comport with its purpose, i.e., to ‘produce an inventory’ of the items in the car.”).

Also, the decision to inventory, i.e., to search, the car is analyzed as distinct from

the decision to impound, i.e., to seize, the car. Cartwright, 630 F.3d at 614 (quoting U.S. v.

Duguay, 93 F.3d 346, 351 (7th Cir. 1996)); accord Manning v. Sweitzer, 891 F. Supp. 2d 961,

967 (N.D. Ill. 2012); see also Stewart v. City of Fort Wayne, No. 18-cv-286, 2020 WL 335418,

*6 (N.D. Ind. Jan. 21, 2020) (“The Seventh Circuit has also explained that for an inventory

search to be valid, the impoundment of the vehicle must be valid.”). The impoundment

itself is lawful, absent probable cause, if, for example, “the vehicle was left in a parking

lot or parked illegally or no one else could legally take the vehicle to a safer location.”

Thompson v. Village of Monee, 110 F. Supp. 3d 826, 848-49 (N.D. Ill. 2015) (collecting cases).

Here, the Court initially rejects the argument that Defendant Kelley is entitled to

summary judgment based on the statute of limitations. Section 1983 is subject to a two-

year statute of limitations. See Olson v. Cross, ---F. Supp. 3d----, 2024 WL 361200, *13 (N.D.

Ill. Jan. 30, 2024) (citing Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998); 735 ILCS

5/13-202). Defendant Kelley was not added as a party to the case until the filing of the

Amended Complaint on June 21, 2023, but the entire case was stayed due to the state

criminal proceedings between February 6, 2019, and June 30, 2022. (Docs. 36 & 80). The

Court agrees with Plaintiff that the time for filing claims against Defendant Kelley during

the stay was tolled. See 735 ILCS 5/13-216 (“When the commencement of an action is

stayed by injunction, order of a court, or statutory prohibition, the time of the continuance

of the injunction or prohibition is not part of the time limited for the commencement of

the action.”); James v. Buckhalter, No. 11-cv-4418, 2022 WL 103711, *1-3 (N.D. Ill. Jan. 10,

2022) (finding, in § 1983 case, “[b]ecause the Court stayed all proceedings in this case

pending resolution of James’ criminal case…[§] 13-216 tolled the statute of limitations for

the entirety of the stay, making James’ claims against Welch and Zuber timely,”

notwithstanding the fact that James already knew their identities); White v. Williams, No.

94-cv-3836, 1997 WL 261357, *2 (N.D. Ill. May 8, 1997) (“Unlike the doctrine of equitable

tolling, the ‘stay of action’ statute does not require a demonstration of diligence.”).

Further, it is clear to the Court that the substantive analysis is multilayered. As to

the inventory search of Gaddis’s car, including of the notebook by Defendant Kelley, the

evidence indicates Defendant Oglesby had no personal involvement. See Gonzalez, 40

F.4th at 828; Taylor, 999 F.3d at 493. In other words, as far as the actual inventory search

of Gaddis’s notebook goes, the evidence undisputedly indicates that it was Defendant

Kelley, not Defendant Oglesby, who conducted the inventory search at issue in this case.

As to Defendant Kelley, the evidence also indicates he comported with

constitutional principles. He did not need a warrant or probable cause because Gaddis

was lawfully arrested for trespassing on DeMattei’s property and, as an incident to that

arrest, the inventory search was conducted pursuant to the written procedures of the

Williamson County Sheriff’s Office. See Cherry, 436 F.3d at 772; Davis, 627 F. Supp. 3d at

992; compare Cartwright, 630 F.3d at 614-15 (finding police department’s “comprehensive”

impoundment policy was sufficiently standardized, the district court committed no clear

error in finding the officers followed that policy, and the officers’ actions were

reasonable); with Reed, 319 F. Supp. 3d at 1121-22 (holding a search could not be justified

as a reasonable inventory search where neither the owner nor authorized driver of a car

were under arrest, the police officers deviated from the county towing policies and

procedures, there was no evidence of any completed forms to show an inventory search

was done, and the inventory search was a pretext); (Docs. 102-1, pgs. 22, 24-25; 102-3; 102-

4, pgs. 9-10, 13). Here, the inventory search comported with its purpose of producing a

list of the items, including a notebook or miscellaneous papers, contained in the car.

See Travis, 2022 WL 832096, *5; see also U.S. v. Andrews, 22 F.3d 1328, 1335 (5th Cir. 1994)

(“Cash, credit cards, negotiable instruments, and any number of other items could be

hidden between the pages of a notebook, and could give rise to a claim against the city if

lost.”). Similarly, the impoundment of the car was also legal. (Doc. 102-4, pg. 14). In short,

after Gaddis was arrested, the car could not be left to sit in DeMattei’s driveway.

See Cartwright, 630 F.3d at 614; Thompson, 110 F. Supp. 3d at 848-49; see also Clinton, 591

F.3d at 972 (finding the towing and inventorying of a car was lawful where, inter alia, the

police officers followed a standard police procedure after the driver and passenger of the

car were arrested on suspicion of stealing a firearm, leaving no one to drive the car).

Even if Defendant Kelley observed DeMattei’s name written in plain view as an

incident to the inventory search of the notebook, the Court cannot conclude that was

unreasonable, as necessary to be unconstitutional. See Ambriz-Villa, 482 F. Supp. 3d at 781-

82; Mapp v. Warden, 531 F.2d 1167, 1172 (2d Cir. 1976) (finding rent receipts were properly

seized in plain view where, inter alia, their incriminating nature was apparent after a

suspicious name “naturally caught…the attention” of the police in the course of an

otherwise lawful search); U.S. v. Shakur, Nos. 82-cr-312 & 84-cr-220, 1988 WL 9944, *1 (S.D.

N.Y. Feb. 1, 1988) (noting, under plain view doctrine, “[a] ‘limited inspection’ of a suspect

item is permissible; this includes perusal of documents.”); U.S. v. Silva, 714 F. Supp. 693,

695 (S.D. N.Y. 1989) (“Courts have almost unanimously concluded that an officer may

cursorily inspect books, documents, or ledgers to determine whether they constitute

seizable evidence, even in the absence of probable cause.”). To thumb through the pages

of the notebook as part of the inventory search, Defendant Kelley, to some extent, had to

view the notebook’s pages. If Defendant Kelley were expected to avoid seeing what was

right in front of him, then it would have made little sense to conduct the inventory search

at all. See U.S. v. Ochs, 595 F.2d 1247, 1257 n. 8 (2d Cir. 1979) (“As this court has recently

stated, ‘[i]t would be absurd to require an investigator to be oblivious to that which would

be apparent to anyone else with normal powers of observation.’ ”). Therefore, to the

extent the evidence shows Defendant Kelley searched the pages of the notebook to find

DeMattei’s name, rather than the mere cracks between its pages, the Court finds that

search was reasonable and not violative of the Fourth Amendment. Compare Andrews, 22

F.3d at 1334-36 (holding, in case involving patrolman’s “page-by-page” search of a

notebook as part of an inventory search, defendant did not demonstrate violations of his

Fourth Amendment rights where, inter alia, the inventory search was pursuant to normal

and standardized procedures, the patrolman’s testimony showed the police agency

required the completion of inventory searches and inventory forms to protect against

claims of lost property, the opening of the notebook to determine whether there were

valuables contained between its pages was consistent with the police agency’s policy and

procedures, and the procedures sufficiently regulated the discretion of its officers); with

U.S. v. Santos, 961 F. Supp. 71, 74 (S.D. N.Y. 1997) (finding “affirmative, investigatory act”

of reading the defendant’s books and letters in order to discover incriminating evidence

“overstepped the limits of the inventory search” where the agent “did so not because her

eye happened to fall upon clearly printed words on the face of inventoried items[] or

because she was attempting to determine the nature of an object to be inventoried”).

Now, Plaintiff states, “[i]f that was all there was to this case, i.e., [an] inventory [of

a] vehicle, summary judgment should be granted in…[Defendants’] favor.” (Doc. 104-1,

pg. 1). The gray area, of course, relates to whether either Defendant shared the notebook

with DeMattei upon learning it referenced his name. Such an action would be separate

from the limited purpose of the inventory search, even if Defendant Kelley, at a

minimum, only observed DeMattei’s name in plain view in the notebook. And, in light

of DeMattei’s deposition testimony, questions related to whether Defendant Oglesby or

Defendant Kelley provided the notebook to DeMattei for a review undisputedly exist.

It must be remembered, however, that DeMattei was not on duty for the City of

Marion at the time of the incident involving Gaddis. DeMattei, as a private citizen,

requested police assistance when Gaddis refused to leave his property. It was ultimately

determined that DeMattei was the victim of a trespass to real property. DeMattei and

Ward restrained Gaddis on the ground until Defendants arrived on scene; however, the

evidentiary record otherwise indicates DeMattei was not performing police functions at

the time of the incident. Indeed, if DeMattei reviewed the notebook, as Plaintiff alleges,

the evidence indicates that was done after one of the Defendants brought the notebook

to DeMattei in his private residence. Since a private citizen cannot violate the Fourth

Amendment, and DeMattei was a private citizen at the time of the incident, the Court

concludes Defendants did not violate the Fourth Amended by facilitating a review, i.e., a

second search, of the notebook by DeMattei after the inventory search. See U.S. v. Hudson,

86 F.4th 806, 810 (7th Cir. 2023) (“The [Fourth] Amendment protects citizens against

unreasonable searches and seizures by the government; it does not apply to searches or

seizures conducted by private individuals, no matter how unreasonable.”); U.S. v. Couch,

378 F. Supp. 2d 50, 55 (N.D. N.Y. 2005) (“Numerous courts addressing the issue have held

that a search by an off-duty law enforcement officer in his or her capacity as a private

citizen, and not as a law enforcement officer, does not violate the prohibition against

unreasonable searches and seizures.”). Notably, the evidence does not indicate that

DeMattei in any way acted at the request of or to assist Defendants after their arrival on

scene. See Hudson, 86 F.4th at 810. Indeed, Plaintiff’s allegations indicate the only result

was DeMattei’s personal decision to seek an order of protection against Gaddis. See id.

In any event, the Court finds Defendants are entitled to qualified immunity, which

involves a question of law for the Court, not a jury, to decide. Smith v. Finkley, 10 F.4th

725, 742 (7th Cir. 2021) (quoting Riccardo v. Rausch, 375 F.3d 521, 526 (7th Cir. 2004);

Warlick v. Cross, 969 F.2d 303, 305 (7th Cir. 1992)). That doctrine shields public officials

from civil liability unless (1) their actions violated a constitutional right that (2) was

clearly established at the time of the violation. Doxtator v. O’Brien, 39 F.4th 852, 863 (7th

Cir. 2022) (quoting Plumhoff v. Rickard, 572 U.S. 765, 778 (2014)). A right is “clearly

established” only “if its ‘contours were sufficiently definite that any reasonable official in

the defendant’s shoes would have understood that he was violating it.’ ” Id.

(quoting Plumhoff, 572 U.S. at 778); Campbell v. Kallas, 936 F.3d 536, 546 (7th Cir. 2019)

(“Put slightly differently, a right is clearly established only if ‘every reasonable official

would have understood that what he is doing violates that right.’ ”) (Emphasis added and

in original). Existing legal precedent must place the constitutional question “beyond

debate.” Doxtator, 39 F.4th at 863 (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011)).

“Beyond debate,” in turn, means clearly established law shares specific details with the

facts of the case. Id. (citing White v. Pauly, 580 U.S. 73, 137 (2017)); see also Smith, 10 F.4th

at 742 (stating the requirement that a clearly established right be defined with specificity

“means ‘[w]e analyze whether precedent squarely governs the facts at issue, mindful that

we cannot define clearly established law at too high a level of generality.’ ”). It is “[o]nly

in the ‘rare “obvious case” ’ ” that the unlawfulness of an officer’s conduct will be

sufficiently clear without precedent that addresses like circumstances. Doxtator, 39 F.4th

at 863 (quoting District of Columbia v. Wesby, 583 U.S. 48, 64 (2018)). It is by design that

this sounds like a high bar to clear. See id. (quoting Lopez v. Sheriff of Cook Cnty., 993 F.3d

981, 988 (7th Cir. 2021)). The doctrine of qualified immunity “protects ‘all but the plainly

incompetent or those who knowingly violate the law.’ ” Lopez, 993 F.3d at 988 (quoting

Malley v. Briggs, 475 U.S. at 341); accord Doxtator, 39 F.4th at 863; Campbell, 936 F.3d at 546.

Here, Plaintiff addresses Defendants’ invocation of qualified immunity, without

any legal citation, in four sentences in her Response to the Motion for Summary

Judgment. (Doc. 104-1, pg. 5). This is woefully inadequate, especially when considering

“to defeat a defendant’s assertion of qualified immunity plaintiffs need not produce a

case directly on point, [but] defining the applicable law ‘at a high level of generality’

simply will not do.’ ” Doxtator, 39 F.4th at 863 (quoting Ashcroft, 563 U.S. at 741);

see also Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000) (noting, if there is a

statutory or constitutional violation, it remains the plaintiff’s burden to show the right

was clearly established when violated). In short, Plaintiff presented no case on qualified

immunity, let alone a case that is directly on point or of high generality. See De v. City of

Chicago, 912 F. Supp. 2d 709, 733 (N.D. Ill. 2012) (recognizing, if a party opposing

summary judgment fails to inform the trial judge of the reasons why summary judgment

should not be entered through the development of arguments in a memorandum of law,

the arguments may be deemed waived, such that the nonmovant will lose the motion).

Regardless, as discussed in relation to the above authorities, the Court finds Plaintiff has

not demonstrated Defendants violated Gaddis’s clearly established Fourth Amendment

rights, such that any reasonable police officer would have known, “beyond debate,” that

his or her actions rose to the level of constitutional violations. See Doxtator, 39 F.4th at 863.

For these reasons, Defendants are GRANTED summary judgment on Count I.

C. Defendants’ Alleged Trespass to Chattels under Illinois Law (Count II)

Defendants argue summary judgment is proper on Count II for many of the same

reasons as Count I. (Doc. 102, pg. 10). They also suggest Plaintiff’s claim relates to the

notebook entries, not the notebook itself, so “this tort simply does not apply as compared

to a physical item, possession, or animal.” (Doc. 102, pg. 10). That is, “the private thoughts

and writings…[are] not the type of tangible personal property for which a trespass to

chattels tort applies.” (Doc. 102, pg. 11). Defendants argue Plaintiff cannot prove a

trespass to chattels, as there is no evidence Gaddis was dispossessed of the notebook.

(Doc. 102, pgs. 5, 10-11). The notebook was left in the car during the impoundment, and

it was recovered at the same time as the car. (Doc. 102, pgs. 5, 10). There is also allegedly

no evidence Defendants altered or diminished the value of the notebook. (Doc. 102, pgs.

5-6, 10-11). Any review of the notebook, to “determine if there was anything of pecuniary

value contained therein,” was allegedly pursuant to a lawful inventory search. (Doc. 102,

pgs. 6). Finally, Defendants argue this claim is time barred as to Defendant Kelley or they

are immune under Illinois law. See 745 ILCS 5/2-201-204; (Doc. 102, pgs. 6, 11-16).

In response, Plaintiff appears to rely upon the same arguments as those relating to

Count I. Also, Plaintiff argues no claim is time barred due to the prior stay, as only “[a]

total of 631 days have run where there was no stay in effect.” (Doc. 104-1, pgs. 5-6).

A trespass to chattels is a tort that redresses the unauthorized use of or

intermeddling with physical property. Barnes v. Northwest Repossession, LLC, 210 F. Supp.

3d 954, 971 (N.D. Ill. 2016) (quoting Fidlar Techs. v. LPS Real Estate Data Sols., Inc., 82 F.

Supp. 3d 844, 859 (C.D. Ill. 2015), aff’d, 810 F.3d 1075 (7th Cir. 2016)). Under Illinois law,

it occurs when there is an injury to or interference with the possession of property. Id.

(quoting Smith v. City of Chicago, 143 F. Supp. 3d 741, 761 (N.D. Ill. 2015)); accord Zissu v.

IH2 Property Illinois, L.P., 157 F. Supp. 3d 797, 803 (N.D. Ill. 2016). “A trespass to a chattel

‘may be committed by intentionally (a) dispossessing another of the chattel, or (b) using

or intermeddling with a chattel in the possession of another.’ ” Barnes, 210 F. Supp. 3d at

971 (citing Frazier v. U.S. Bank Nat. Ass’n, No. 11-cv-8775, 2013 WL 1337263, *11 (N.D. Ill.

March 29, 2013); Restatement (Second) of Torts § 217 (1965)); accord Zissu, 157 F. Supp. 3d

at 803; see also Ogbolumani v. Young, 2015 IL App (1st) 141930-U, ¶ 32 (noting, under § 221

of the Restatement (Second) of Torts, an intentional dispossession of a chattel may occur

through a taking without consent, a taking by fraud or duress, a bar to access, destruction

while in another’s possession, or a taking into the custody of the law). Harm to the

property, or a diminution in its quality, condition, or value, as a result of the defendant’s

actions, may result in liability. Barnes, 210 F. Supp. 3d at 971 (quoting Smith, 143 F. Supp.

3d at 761); see also Loman v. Freeman, 375 Ill. App. 3d 445, 458 (2006) (noting, under §§ 278

and 892A of the Restatement (Second) of Torts, “ ‘[o]ne who exercises any privilege to

commit an act which would otherwise be a trespass to a chattel…is subject to liability for

any harm to the interest of another in the chattel caused by dealing with it in a manner

which is in excess of the privilege….’ In short, ‘[i]f the actor exceeds the consent, it is not

effective for the excess.’ ”). This tort has generally been limited to intentional interference,

which occurs if an act is done (1) to use or intermeddle with the chattel or (2) with

knowledge the intermeddling will, to a substantial certainty, result from the act. Barnes,

210 F. Supp. 3d at 971 (quoting Restatement (Second) of Torts § 217, cmts. b, c (1965)).

Initially, the Court accepts the argument that Count II is time-barred as to

Defendant Kelley. Section 8-101 of the Local Governmental and Governmental

Employee’s Tort Immunity Act states: “[n]o civil action other than an action described in

subsection (b),” which is inapplicable here, “may be commenced in any court against a

local entity or any of its employees for any injury unless it is commenced within one year

from the date that the injury was received or the cause of action accrued.” 735 ILCS 10/8-

101. Unlike the § 1983 claim in Count I, which has a 2-year statute of limitations, the

trespass to chattels tort under Illinois law has a 1-year statute of limitations. See id.; Olson,

2024 WL 361200, *13. Plaintiff concedes that “[a] total of 631 days have run where there

was no stay in effect…[so] [t]he two year statute of limitations has not run.” (Doc. 104-1,

pg. 6) (Emphasis added). Count II may not be maintained against Defendant Kelley.

Even if this were not so, Count II would fail on the merits as to both Defendant

Oglesby and Defendant Kelley for the same reasons. Initially, the Court tends to agree

with Defendants that Plaintiff’s argument tends to center on the alleged intermeddling

with Gaddis’s private thoughts and writings, as opposed to his physical notebook, such

that the tort is not implicated. However, even if Plaintiff could maintain such a cause of

action, it is obvious to the Court that Plaintiff was not dispossessed of the notebook in a

manner contemplated by the case law. The notebook was part of a permissible inventory

search following Gaddis’s arrest for trespass to real property. There is no accusation that

Defendants failed to return the notebook following the impoundment of Gaddis’s car.

Also, even assuming that Defendants shared the notebook with DeMattei, there is no

accusation that Gaddis suffered an alteration or diminution in the value of the notebook

after the incident. Therefore, in short, the Court finds there was no injury to or

interference with the possession of the notebook. See Barnes, 210 F. Supp. 3d at 971.

Alternatively, “[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.” 745 ILCS 10/2-202. “Willful and wanton conduct,” by extension,

“means 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.” 745 ILCS 10/1-210. With respect to the intentional tort

of trespass to chattels, the record is devoid of evidence that Gaddis’s notebook was either

physically harmed or that Defendants “actual or deliberate intention” was to cause harm.

Similarly, Defendants are not liable for a trespass to chattels by DeMattei, as “a public

employee…acting within the scope of his employment, is not liable for an injury caused

by the act or omission of another person.” 745 ILCS 10/2-204. As such, Defendants are

immune from liability, providing an independent basis for a grant of summary judgment.

For these reasons, Defendants are GRANTED summary judgment on Count II.

D. Defendants’ Alleged Spoliation of Evidence

Finally, Plaintiff alleges Defendant Oglesby testified in the related state criminal

case that the “computer in his squad car,” despite being operational, “was not available

because he and…[another officer] had made several attempts to download the [video]

file but they had been unsuccessful.” (Doc. 104-1, pg. 6). The video file would purportedly

show who searched Gaddis’s car, who took the notebook, whether the notebook was

read, and whether the notebook was removed for a review by DeMattei. (Doc. 104-1, pgs.

6, 8). Gaddis attempted to have an expert retrieve the computer files but, upon reaching

out to the prosecution, he was told “the computer system had malfunctioned and was

not available.” (Doc. 104-1, pg. 7). Gaddis was allegedly told that there was no video of

the incident, and it was believed that the computer system no longer existed. (Doc. 104-

1, pgs. 7-8). For these reasons, Plaintiff indicates it would be appropriate for the Court to

read an adverse inference instruction to a potential jury. (Docs. 104-1, pg. 7; 109, pg. 2).

In Reply, Defendants state: “there is no concrete evidence that if any dash camera

footage had been preserved during the criminal matter, that the position of Oglesby’s

squad [car] and dash camera was such that it would have captured any event or action

in controversy.” (Doc. 107-1, pg. 3). Defendants also view any argument the video “was

intentionally destroyed by some unidentified individual to hide adverse information

harmful to” their case as speculative and without factual basis, especially in light of

Defendant Oglesby’s testimony at the hearing in the criminal case. (Doc. 107-1, pg. 3).

Now, the “[c]ase law from…within the Seventh Circuit recognizes that Rule 37(e)

provides ‘the sole source to address the loss of relevant ESI that was required to be

preserved but was not because reasonable steps were not taken.” Pable v. Chicago Transit

Auth., No. 19-cv-7868, 2023 WL 2333414, *18 (N.D. Ill. March 2, 2023). Therefore, while

Plaintiff does not explicitly invoke Rule 37(e)(2)(B) when requesting an adverse inference

instruction in her Response to the Motion for Summary Judgment, the Court must

proceed under that Rule. See id.; (Doc. 104-1, pgs. 6-8).4

Rule 37(e) provides as follows:

(e) Failure to Preserve Electronically Stored Information. If electronically

stored information that should have been preserved in the anticipation or

conduct of litigation is lost because a party failed to take reasonable steps

to preserve it, and it cannot be restored or replaced through additional

discovery, the court:

(1) upon finding prejudice to another party from loss of the

information, may order measures no greater than necessary to cure

the prejudice; or

(2) only upon finding that the party acted with the intent to deprive

another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the

party;

(B) instruct the jury that it may or must presume the

information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Fed. R. Civ. P. 37(e) (Emphasis in original omitted); see also Hamilton v. Oswego Cmty Unit

School District 308, No. 20-cv-0292, 2022 WL 580783, *2 (N.D. Ill. Feb. 25, 2022) (noting

violations of Rule 37(e) occur if the lost information is (1) electronically stored, (2) existing

during anticipated or actual litigation, (3) subject to a duty to preserve in light of its

relevance, (4) lost due to a party’s failure to take reasonable steps of preservation, and

(5) beyond restoration or replacement through additional discovery procedures); Pable,

4Notably, though, Plaintiff states in her Response to Defendants’ Motion for Leave to File a Reply

that they “are correct in reading [her] response to request a discovery-type sanction for destruction of the

dashboard camera program,” i.e., an adverse inference instruction under Rule 37(e)(2)(B). (Doc. 109, pg. 2).

2023 WL 2333414, *17) (noting Rule 37(e)’s threshold requirements and stating, if they are

met, the Court must assess prejudice and/or whether there was an intent to deprive).

As to intent under Rule 37(e)(2), which is difficult for a party to prove and for a

court to find, it is almost always proven with circumstantial evidence. Hollis v. CEVA

Logistics U.S., Inc., 603 F. Supp. 3d 611, 623 (7th Cir. 2022) (collecting cases). To apply here,

the video footage must be “deleted…with ‘the intent to deprive another party of the

information’s use in the litigation,’ ” meaning there must be “actual evidence of intent.”

Freidig v. Target Corp., 329 F.R.D. 199, 210 (W.D. Wisc. 2018); see also Schmalz v. Village of

North Riverside, No. 13-cv-8012, 2018 WL 1704109, *4 (N.D. Ill. March 23, 2018) (noting

“[a] finding of negligence, or even gross negligence, would not satisfy the intent

requirement under subsection (e)(2))”). If there is evidence of an intent to deprive, the

Court may order an adverse inference instruction under Rule 37(e)(2)(B). Pable, 2023 WL

2333414, *17 (quoting DR Distribs., LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839,

958 (C.D. Ill. 2021)); see also Schmalz, 2018 WL 1704109, *4) (noting an adverse inference

instruction “requires a finding of intent” and is “one of the most severe sanctions”).

Here, Defendant Oglesby purportedly knew of Gaddis’s desire to view the video

of the incident. (Doc. 102-1, pg. 26). However, pursuant to Plaintiff’s own argument,

Defendant Oglesby testified in the state criminal proceedings that he and another officer

attempted to download the footage, but they were unsuccessful in doing so. Likewise,

upon reaching out to the state prosecution about an expert examination, Gaddis was

allegedly given a similar explanation, namely, that the computer system containing the

dash camera video had malfunctioned and no longer existed. (Doc. 104-1, pgs. 6-7). The

Court cannot conclude from these arguments that Defendants failed to take reasonable

steps to preserve the computer system and/or dash camera video, which is a threshold

requirement under Rule 37(e). Alternatively, the Court has not been directed to any

evidence that Defendants actually intended to deprive Gaddis or Plaintiff of the

evidentiary value of the computer system and/or dash camera video, as necessary for an

adverse inference instruction under Rule 37(e)(2)(B). See Freidig, 329 F.R.D. at 210 (finding

the plaintiff did not adduce evidence of the defendant’s intent, despite having the burden

of proof, requiring a denial of the request for sanctions under Rule 37(e)(2)). The Court

understands that requirement is usually proven by circumstantial evidence. However,

without more than is presented on the current record, the Court is left with mere

speculation about whether either Defendant, or some unidentified third-person,

spoliated the computer system containing the dash camera footage, despite a duty to take

reasonable steps of preservation, with an intent to deprive. Thus, even assuming the other

Rule 37(e)(2) requirements are met, the Court finds Plaintiff is not entitled to that relief.

III. CONCLUSION

As explained above, Defendants Motion for Leave to File an Untimely Reply (Doc.

107) and Motion for Summary Judgment (Doc. 102) are GRANTED. The Clerk of the

Court is DIRECTED to terminate all pending deadlines and hearings before entering

judgment for Defendants and against Plaintiff. All other motions are DENIED as moot.

SO ORDERED.

s/ David W. Dugan

Dated: April 9, 2024 __________________________

DAVID W. DUGAN

United States District Judge