Sosa

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JONATHAN SOSA, )

)

Plaintiff, )

v. ) No. 25-cv-11285

)

THE VILLAGE OF DES PLAINES ) Honorable Judge Thomas M. Durkin

VILLAGE OF DES PLAINES ) Magistrate Judge David Weisman

POLICE DEPARTMENT, OFFICERS )

DELOLLO, PENA and SGT, BONIAC )

and THE COOK COUNTY )

STATES' ATTORNEY )

Defendants. )

DES PLAINES DEFENDANTS’

12(c) MOTION FOR JUDGMENT ON THE PLEADINGS

NOW COME Defendants, the CITY OF DES PLAINES, incorrectly sued as the VILLAGE

OF DES PLAINES and the VILLAGE OF DES PLAINES POLICE DEPARTMENT, and

OFFICERS DELOLLO and PENA and SGT BONIAC (collectively hereinafter, the “Des Plaines

Defendants” unless otherwise referred to individually), by and through one of their attorneys,

DEBORAH ANNE OSTVIG of SCHAIN, BANKS, KENNY & SCHWARTZ, LTD., and

pursuant to Federal Rule of Civil Procedure 12(c) present their Motion for Judgment on the

Pleadings and state as follows:

Pertinent Claims Alleged in Plaintiff’s Complaint

Plaintiff filed a four-count Complaint against the Des Plaines Defendants and purports to

set forth the following claims for relief:

Count I Violation of 42 USC §1983

Count II Punitive Damages

Count III Pendent State Claim: Wrongful Arrest

Count IV Second Pendent State Claim: Malicious Prosecution

In his Complaint, the Plaintiff alleges that he was unlawfully arrested by the Des Plaines

Defendants in violation of his constitutional rights. [Plaintiff’s Complaint, DKT No. 1.]

Defendants deny these allegations. However, contrary to Plaintiff’s claims, Plaintiff refused to

identify himself and attempted to leave while detained when Defendant Officer Dilollo

encountered him with an open alcohol container in a public place. [See Defendants’ Affirmative

Defenses.] Additionally, the force used by the Defendants was not excessive. [Id.] As a result, this

Court should grant Defendants’ Motion for Judgment on the Pleadings and dismiss Plaintiff’s

complaint with prejudice pursuant to Rule 12(c).

PREFATORY STATEMENT

Under Rule 12(c), a party may move for judgment on the pleadings. See Fed.R.Civ.P. 12(c).

“Like Rule 12(b) motions, courts grant a Rule 12(c) motion only if ‘it appears beyond doubt that

the plaintiff[s] cannot prove any facts that would support [their] claims for relief.’” N. Ind. Gun

& Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir.1998) (quoting Craigs, Inc.

v. Gen. Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir.1993)). Thus, to succeed, the moving party

must demonstrate that there are no material issues of fact to be resolved. N. Ind. Gun & Outdoor

Shows, Inc., 163 F.3d at 452. (citations omitted). The facts are viewed in the light most favorable

to the nonmoving party, but facts set forth in the complaint that undermine the plaintiffs’ claims

are not ignored. Id. In other words, when assessing the facial plausibility of a claim, the court

draws all reasonable inferences and facts in favor of the non-movant but does not need to accept

as true any legal assertions. Milwaukee Police Ass'n v. Flynn, 863 F.3d 636, 640 (7th Cir. 2017).

The pleadings referenced in Rule 12(c) include the complaint, the answer, and any written

instruments attached as exhibits. N. Ind. Gun & Outdoor Shows, Inc., 163 F.3d at 452–53.

“Written instruments” include documents such as affidavits, letters, contracts, and loan

documentation. Id. at 453. Videos attached in support of a defendant’s affirmative defenses may

also be considered by the court in a Rule 12(c) context. Romero v. Vill. of Alsip, 1:24-CV-02175,

2025 WL 885691, at *2-3 (N.D. Ill. Mar. 21, 2025) (slip copy). Moreover, the court “may take

into consideration documents incorporated by reference to the pleadings.” Milwaukee Police

Ass'n, 863 F.3d at 640; see also 188 LLC v. Trinity Indus., Inc., 300 F.3d 730 (7th Cir. 2002)

(explaining that the purpose of the “incorporation by reference” doctrine is “to prevent parties

from surviving a motion to dismiss by artful pleading or by failing to attach relevant documents”).

The motion challenges the sufficiency of the complaint to state a claim upon which relief

may be granted. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th

Cir.1997). Judgment is warranted if the plaintiffs can prove no set of facts in support of their

claims that would entitle them to relief. Gen. Elec. Capital Corp., 128 F.3d at 1080. The essence

of the motion is not that the plaintiffs have pleaded insufficient facts, it is that even assuming all

of the facts are accurate, they have no legal claim. Payton v. Rush–Presbyterian–St. Luke’s Med.

Ctr., 184 F.3d 623, 627 (7th Cir.1999).

ARGUMENT

I. THE DES PLAINES DEFENDANTS HAD PROBABLE CAUSE TO

ARREST PLAINTIFF FOR OBSTRUCTION AND POSSESSION/

DRINKING IN PUBLIC PLACES

Plaintiff makes state law claims for false arrest, malicious prosecution, as well as a Section

1983 claim for false arrest. Plaintiff’s claims fail because the evidence demonstrates that

Defendant Dilollo had probable cause to arrest Plaintiff.

Under Illinois law, an essential element of a plaintiff’s malicious prosecution and false

arrest claims is that the arrests, imprisonment, or prosecution be undertaken without probable

cause. Terket v. Lund, 623 F.2d 29, 31 (7th Cir. 1980). See also, Ross v. Mauro Chevrolet, 369

Ill.App.3d 794, 798 (1st Dist. 2006)(a plaintiff has to show that he was unreasonably restrained

without probable cause); Burghardt v. Remiyac, 207 Ill.App.3d 402, 406 (2nd Dist. 1991) and

Howard v. Firmand, 378 Ill.App.3d 147, 149 (1st Dist. 2007)(probable cause is a condition

precedent for a malicious prosecution claim). Thus, proof of the actual existence of probable cause

is an absolute bar to the action. Romero, WL 885691, at *3; Abbott v. Sangamon Cnty., Ill., 705

F.3d 706, 713–14 (7th Cir. 2013); Terket, 623 F.2d at 31; Ross, 369 Ill.App.3d at 798; Burghardt,

207 Ill.App.3d at 406; Howard, 378 Ill.App.3d at 149. Moreover, if the defendants had probable

cause to believe that a plaintiff was guilty of a crime, their allegedly malicious motives are

immaterial. Terket, 623 F.2d at 31, citing Magnus v. Cock Robin Ice Cream Co., 52 Ill.App.3d

110, 9 Ill.Dec. 769, 367 N.E.2d 203 (1st Dist. 1977). The same rules apply in an action under

Section 1983. Terket, 623 F.2d at 31, citing Hunter v. Clardy, 558 F.2d 290 (5th Cir. 1977);

Beauregard v. Wingard, 362 F.2d 901 (9th Cir. 1966). See also Mustafa v. City of Chicago, 442

F.3d 544, 547 (7th Cir.2006).

Under Plaintiff’s state law and Section 1983 claims, police officers possess probable cause

to arrest when the facts and circumstances within their knowledge and of which they have

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

suspect had committed an offense. Mustafa, 442 F.3d at 547 (quoting Kelley, 149 F.3d at 646);

Johnson v. Target Stores, Inc., 341 Ill.App.3d 56, 72-3 (1st . Dist. 2003)(to establish probable cause

in a malicious prosecution matter the facts must lead a person of ordinary caution and prudence to

believe or to entertain an honest and strong suspicion that the person arrested committed the

offense charged); Ross, 369 Ill.App.3d at 798 (probable cause is established when the defendant

officers have reasonable grounds to believe that an offense was committed by a plaintiff.).

Probable cause is not evaluated by the court based upon the facts as an omniscient observer would

perceive them but instead is determined by the facts as they would have appeared to a reasonable

person in the position of the arresting officer. Id. (quoting Kelley, 149 F.3d at 646; citing Woods

v. City of Chicago, 234 F.3d 979, 987 (7th Cir.2000). See also Johnson v. Target Stores, Inc., 341

Ill.App.3d at 72-3; Ross, 369 Ill.App.3d at 798. Plaintiff bears the burden of demonstrating that he

was arrested without probable cause. McBride v. Grice, 576 F.3d 703, 706 (7th Cir. 2009).

Additionally, when the evidence includes a videotape of the relevant events, the Court should not

adopt the nonmoving party’s version of the events when that version is blatantly contradicted by

the videotape. Scott v. Harris, 550 U.S. 372, 379–80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

See also Williams v. Brooks, 809 F.3d 936 (7th Cir. 2016); Williams v. Norfolk Southern

Corporation, 919 F.3d 469 (7th Cir. 2019).

As Officer Dilollo’s body camera video shows, based on the totality of the circumstances,

it was reasonable for Officer Dilollo to arrest Plaintiff for possession/drinking in public places and

obstruction. (See Ex. B attached to Des Plaines Defendants Answer and Affirmative Defenses.)

Plaintiff admitted that he was drinking on the Metra train and admitted to having an open alcohol

container in a public place. Moreover, when asked for identification, Plaintiff refused to provide

his identification. When asked his name and date of birth, Plaintiff refused to give them to Officer

Dilollo. Moreover, although Officer Dilollo told Plaintiff he was detained, Plaintiff attempted to

walk away from Officer Dilollo. These facts are sufficient to establish probable cause to arrest

Plaintiff, and this Court should dismiss Plaintiff’s Complaint with prejudice.

II. THE DES PLAINES DEFENDANTS' USE OF FORCE WAS REASONABLE

UNDER THE FOURTH AMENDMENT.

A claim that a law enforcement officer used excessive force when effectuating an arrest is

analyzed under the Fourth Amendment’s objective reasonableness standard. Avina v. Bohlen, 882

F.3d 674, 678 (7th Cir. 2018) (citing Cyrus v. Town of Mukwonago, 624 F.3d 856, 861 (7th Cir.

2010)). An officer’s determination of the appropriate level of force to use must be measured from

the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir. 2002) citing Graham v.

Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)(the facts of the matter should

not be viewed with hindsight’s distorting lens).

An officer who has the right to arrest an individual also has the right to use some degree of

physical force or threat of force to effectuate the arrest, Graham, 490 U.S. at 396. But that right is

circumscribed by the Fourth Amendment's insistence on reasonableness. Stainback v. Dixon, 569

F.3d 767, 772 (7th Cir. 2009). For example, “an officer may not knowingly use handcuffs in a way

that will inflict unnecessary pain or injury on an individual who presents little or no risk of flight

or threat of injury.” Id. (citing Herzog v. Vill. Of Winnetka, Ill., 309 F.3d 1041, 1043 (7th Cir.

2002)). If the undisputed material facts establish that the officer acted reasonably under the

circumstances, the court must resolve the issue as a matter of law, rather than allow a jury to

“second-guess” the officer’s action. Id. (citing Bell v. Irwin, 321 F.3d 637, 640 (7th Cir. 2003)).

Analysis of excessive-force claims is an objective one based on the information the officers had at

the time. Id.

Here, Officer Dilollo’s body camera video shows that on the Metra platform, Plaintiff

voluntarily went to his knees when he was informed that the Officers would be taking his

backpack. Contrary to his claims, the Officers brought Plaintiff to his feet, removed his backpack,

and released the handcuffs to do so. Additionally, the body camera footage shows that Plaintiff

refused to leave the squad car upon arrival at the Des Plaines Police Department. Moreover,

contrary to his claims, he was not dragged into the police station; he walked in under his own

power. Additionally, the Officers used appropriate force when they removed his necklace, ring,

belt, watch, outer shirt, and shoes. Lastly, Plaintiff was carried to another unpadded cell when he

refused to walk. Based on all these facts, the Defendants’ force was reasonable under the

circumstances, and this Court should dismiss Plaintiff’s complaint with prejudice.

III. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO QUALIFIED

IMMUNITY.

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.’” Armstrong v. Daily, 786 F.3d 529, 538 (7th Cir.

2015) citing Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808, quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To determine if the

defendants are entitled to qualified immunity, courts ask two questions: (1) whether “the

facts alleged show the municipal employee’s conduct violated a constitutional right,” and (2)

whether “it would be clear to a reasonable [municipal employee] that his conduct was unlawful in

the situation he confronted.” Armstrong, 786 F.3d at 538 citing Saucier v. Katz, 533 U.S. 194,

201–02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), modified on other grounds by Pearson, 555

U.S.at 236, 129 S.Ct. 808 (allowing courts discretion to conduct two-step inquiry in sequence

better suited to particular case); accord, Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th

Cir.2012). Here, the Individual Defendants are entitled to qualified immunity because Plaintiff has

failed to demonstrate that the Individual Defendants should have known that his detainment and

arrest and the force used violated his constitutional rights. As such, this Court should dismiss

Plaintiff’s complaint with prejudice.

VI. BECAUSE THE INDIVIDUAL DEFENDANTS ARE NOT LIABLE TO THE

PLAINTIFF, THE CITY OF DES PLAINES IS NOT LIABLE TO THE

PLAINTIFFS.

Under Illinois Law, a municipality 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; 745 ILCS

10/2-302; 65 ILCS 5/1-4-6. As Plaintiff has failed to prove his claims against the Individual

Defendants, he failed to prove his claims against the City of Des Plaines. Thus, this Court should

dismiss Plaintiff’s complaint against Defendant the City of Des Plaines.

WHEREFORE, Defendants CITY OF DES PLAINES, incorrectly sued as the VILLAGE

OF DES PLAINES and the VILLAGE OF DES PLAINES POLICE DEPARTMENT, and

OFFICERS DELOLLO and PENA and SGT BONIAC respectfully request that this Court grant

their Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c) and

dismiss Plaintiff’s complaint with prejudice.

Respectfully Submitted,

CITY OF DES PLAINES, incorrectly sued as

the VILLAGE OF DES PLAINES and the

VILLAGE OF DES PLAINS POLICE

DEPARTMENT, and OFFICERS

DELOLLO and PENA, and SGT BONIAC

Michael E. Kujawa, ARDC# 6244621 By: s/Deborah A. Ostvig

Deborah A. Ostvig, ARDC# 6287031 One of Their Attorneys

Schain, Banks, Kenny & Schwartz, Ltd.

70 W. Madison Street, Suite 5400

Chicago, Illinois 60602

Phone: (312) 345-5700 / Fax: (312) 345-5701

mkujawa@schainbanks.com

dostvig@schainbanks.com

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