Roger Whitmore's Automotive Services, Inc. v. Lake County

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-1978 & 05-1033

ROGER WHITMORE’S AUTOMOTIVE

SERVICES, INC., and ROGER WHITMORE,

Plaintiffs-Appellants,

v.

LAKE COUNTY, ILLINOIS, GARY DEL RE,

SHERIFF OF LAKE COUNTY, GARY STRYKER,

UNDERSHERIFF OF LAKE COUNTY,

and CITIZENS TO ELECT GARY DEL RE,

Defendants-Appellees.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 2504—Samuel Der-Yeghiayan, Judge.

____________

ARGUED NOVEMBER 8, 2004—DECIDED SEPTEMBER 22, 2005

____________

Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge. Towing operator Roger Whitmore

and his company sued Gary Del Re, Gary Stryker, and

others for violation of the Racketeer Influenced Corrupt

Organization Act (RICO) and for retaliation based on

constitutionally protected speech. The district court granted

summary judgment to the remaining defendants on all

counts and, later, granted motions for attorneys’ fees and

awarded costs. The plaintiffs appeal both the summary

2 Nos. 04-1978 & 05-1033

judgment and the award of fees. We affirm the order

granting summary judgment on the merits. As to the award

of fees, we affirm in part, reverse in part, and remand to the

district court for further proceedings.

I. History

Large municipalities make extensive use of towing

services to deal with stranded vehicles, accidents, and the

like. The towing fees can be quite expensive for motorists

and profitable to the companies furnishing the tow trucks.

Since at least 1968, the Lake County, Illinois, Sheriff’s

Department has implemented a system that spreads this

wealth among certain of the county’s towing operators. The

department maintains a list of “approved” towers, each of

which is assigned a particular territory within the county.

When the department requires the services of a tow truck,

the sheriff’s dispatcher calls the towing company of the

vehicle operator’s choice; if no tower is specified, the

dispatcher calls the listed tower whose territory includes

the location of the vehicle in question.

The various Lake County sheriffs implementing this

system over the years have done so without the benefit of

any local ordinances or written procedures, guidelines, or

rules to govern the selection of which towing companies

receive a spot on the list and an assigned territory. These

assigned towing areas are occasionally redrawn and towers

added or removed from the list, particularly following

elections. From 1997-1999, there were about a dozen towers

on the list.

Roger Whitmore (“Roger1”), president of Roger Whitmore’s

Automotive Services, Inc. (“Roger’s”), operates a listed

1

Both parties use this convention, so we shall follow suit for

simplicity’s sake. In addition, “Roger” denotes both plaintiffs— the

person and the corporation—collectively.

Nos. 04-1978 & 05-1033 3

towing service that has done work for the sheriff’s depart-

ment since 1972. In 1980, Roger’s was allocated a specific

towing territory in the northeastern corner of Lake County

and retained that area with some adjustments through at

least 1999. According to Roger, inclusion on the list does not

come cheap. Three different sheriffs had, over the years,

personally visited Roger in order to sell tickets for political

fund raisers. For example, Sheriff Thomas Brown made

personal appearances at Roger’s with tickets in hand.

Sheriff Mickey Babcox came to Roger’s, placed fund-raiser

tickets on the counter, and collected checks from Roger.

Sheriff Clinton Grinnell did likewise. Sheriff’s deputies

often followed up these visits, to pick up checks or to verify

that Roger would be attending the fund raisers.

Roger felt pressured to purchase the tickets for several

reasons. For one, the officers appeared at Roger’s business

openly displaying badge and gun. Plus, Roger had heard

rumors that a towing company refusing to purchase tickets

had found itself “kicked off” the approved list. Roger

therefore felt intimidated and concluded that he had no

choice but to purchase the tickets, because otherwise

“maybe they would take [his] business away.” Even when

some sheriffs mailed tickets, rather than making personal

appearances, Roger felt “slightly uncomfortable.” Until

1998, Roger always supported the incumbent sheriff during

elections.

A. Del Re’s Campaign for Sheriff

In 1996, Sheriff Grinnell retired, and the county board

appointed Undersheriff Gary Del Re as Grinnell’s replace-

ment for the remainder of the term. When Del Re assumed

the helm as Grinnell’s replacement, he delegated responsi-

bility for all towing matters to Gary Stryker, his replace-

ment as undersheriff. In 1997, Del Re kicked off a campaign

to be elected sheriff in his own right. Del Re duly formed a

4 Nos. 04-1978 & 05-1033

campaign committee that included Stryker and several

others. The committee was officially in charge of obtaining

campaign contributions for Del Re and for filing all required

disclosure forms. Del Re also enlisted the services of Tom

Crichton, a real estate broker, who had extensive experi-

ence (including fund raising) in various political campaigns

in Lake County and statewide.

During the campaign, Crichton introduced Del Re, who

was relatively new to Lake County, to various business

owners in the county. The parties dispute whether Del Re’s

meet-and-greets were for the purpose of soliciting campaign

funds.2 Of the businesses Del Re visited, only three of them

2

Of course, we construe all facts and draw all reasonable

inferences in Roger’s favor. McDonald v. Vill. of Winnetka, 371

F.3d 992, 1001 (7th Cir. 2004). We take this opportunity, however,

to note that Roger repeatedly violated Local Rule 56.1 of the

Northern District of Illinois in the manner in which he contested

summary judgment in the court below. As we have often pointed

out, L.R. 56.1 and similar rules assist the district court by

“organizing the evidence, identifying undisputed facts, and

demonstrating precisely how each side proposed to prove

a disputed fact with admissible evidence.” Bordelon v. Chi. Sch.

Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000) (citation

omitted). It is not the duty of the district court to scour the record

in search of material factual disputes, nor is it ours. See Carter v.

Am. Oil Co., 139 F.3d 1158, 1163 (7th Cir. 1998); United States v.

Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not

like pigs, hunting for truffles buried in” the record.).

Roger took the wrong approach—in several egregious examples,

Roger denies certain of the defendants’ factual assertions

by citation to all 244 paragraphs of his own statement of facts.

Roger also repeatedly responds to factual assertions with

conclusory allegations that the statements are “fabrications.”

Needless to say, this does not cut it. It is true, as Roger blithely

reminds us, that this court’s duty is to review the entire record.

(continued...)

Nos. 04-1978 & 05-1033 5

were towing operators—Ray’s Shell, A-Tire, and Max

Johnson’s Auto Center. Johnson’s was a used car dealership

that provided the sheriff’s department with a number of

vehicles for use in undercover investigations. Johnson’s was

also a backup tower for the sheriff’s department and not on

the approved list.

Roger initially supported Del Re’s campaign for sheriff. In

February 1998, however, Roger decided to switch his

support to Willie Smith, Del Re’s challenger in the primary

election. Roger’s change of heart came about following a

conversation with another towing operator, Ernie Vole. Vole

passed on a rumor that Wildwood Towing Service “had the

ear of Sheriff Del Re” and was working to exclude Roger’s

from a new towing area coming open due to an operator

being dropped from the list. According to the rumor, Del Re

had planned to split the new territory between Roger’s and

Wildwood, but Wally Herman, Wildwood’s owner, convinced

Del Re to “screw” Roger’s and give Wildwood the entire

territory.

Shortly after his conversation with Vole, Roger contacted

Undersheriff Stryker and asked about the rumors. Stryker

denied them as “nonsense,” but Roger was not convinced.

He also believed that Willie Smith had a decent shot of

winning the election and would be more accessible than Del

Re, who, Roger believed, didn’t “like to return his phone

2

(...continued)

But de novo review does not mean that we must make and support

the parties’ arguments for them, even if the district court did not

take Roger to task for failure to follow L.R. 56.1. It is the parties’

duty to package, present, and support their arguments, and we

shall not waste our time searching in vain for a dispute of

material fact if we come across a factual contention or denial not

adequately supported in the record by citation to admissible

evidence. Cf. Albrechtsen v. Bd. of Regents of the Univ. of Wis.

Sys., 309 F.3d 433, 436 (7th Cir. 2002).

6 Nos. 04-1978 & 05-1033

calls and stuff like that.” Thereafter, Roger attended several

fund raisers for Smith. Smith promised Roger that he would

be “fair” in towing area distributions, which Roger inter-

preted to mean that Smith would “divvy” the new towing

area between Roger’s and Wildwood. Roger donated $500 to

Smith for his primary challenge. Roger also lent Smith a

van from his shop at no charge for use in campaigning. A-

Tire and Ernie’s Wrecker Service (owned by Vole), both on

the approved list, also supported Smith and donated money

to his primary campaign ($1000 and $500, respectively).

Later, Roger informed Undersheriff Stryker that he and

his brother Randy (who owned Whitmore’s Service, another

approved tow operator) had decided to support Smith.

Stryker expressed disappointment with the brothers’

decision.

Unfortunately for Smith and his backers, however, Del Re

won the primary election in April 1998. Shortly thereafter,

in June 1998, Roger donated $250 to Del Re’s general

election campaign. Other Smith backers, including A-Tire,

Ernie’s Wrecker Service, and Roger’s brother, did likewise,

contributing various sums. Del Re went on to win the

general election in November of 1998, and towing matters

proceeded as normal for the remainder of 1998. Roger’s

continued to tow for the sheriff’s department as it had

before, and for a while, Roger did not notice any difference

in the way his company was being treated by the depart-

ment.

B. Del Re’s Modification of Towing Areas

Sometime in early 1999, Del Re decided to change the

towing boundaries. Del Re discussed his decision with

Stryker and brought up the possibility of having Max

Johnson do some towing for the department. During Del

Re’s campaign, Johnson had spoken to Crichton to ask how

he might receive towing referrals from the department. The

Nos. 04-1978 & 05-1033 7

parties dispute whether Johnson contacted the

sheriff’s department directly to request a towing area, or if

he spoke only with Crichton. At any rate, Del Re decided to

include Johnson on the list. Del Re ordered one of his

deputies to inspect Johnson’s Auto Center as soon as

possible to ensure that it met all the requirements of the

Illinois Vehicle Code.

When devising the new towing boundaries, Stryker split

off part of Roger’s territory to give to Johnson because his

business was located within Roger’s geographic area, and

Roger’s received substantially more calls than most of the

towers on the list. In April 1999, upon Del Re’s approval of

Stryker’s plan, the sheriff’s department sent letters to each

of the twelve towers on the list advising them of the

changes. The letter stated that the department planned

to “slightly modify” assigned territories in order to “main-

tain organizational efficiency.”

As a result of the new plan, at least five of the towers

experienced changes in their towing boundaries. Roger

believed that his business suffered “significant loss” of

territory due to the split with Johnson. Ernie’s Wrecker

Service picked up all of Illinois Route 60, whereas before it

had only isolated portions of the roadway. A-Tire’s bound-

aries changed “slightly” or not at all. Randy, Roger’s

brother, lost a busy intersection. The areas of other listed

towers, including H&H Towing, Snyder’s, and Wildwood,

were modified slightly or remained the same.

C. Del Re’s Fund Raising

Unlike his predecessors, Del Re established a policy that

no uniformed officers could solicit campaign contributions;

instead, he solicited the purchase of fund-raiser tickets

through the mail. All told, Del Re received $11,585 in

campaign contributions from towing operators, out of about

$88,500 in total contributions to his primary and general

election campaigns.

8 Nos. 04-1978 & 05-1033

After winning the general election, Del Re carried

considerable campaign debt. In late summer of 1999,

Crichton formulated a plan to raise money to pay off Del

Re’s campaign debt. After consultation with Stryker,

Crichton planned a fund-raising event for that purpose.

Crichton broached the idea with towing operators Fred

Moser, Ed Kohlmeyer, and Wally Herman. Four towing

companies on the approved list—A-Tire, Johnson’s Auto

Center, Wildwood, and Ray’s Shell—contributed to the fund

raiser. Kevin’s Towing, a company not on the approved list,

donated $2000 to Del Re’s campaigns.

D. Roger’s Lawsuit

Roger was dissatisfied with Del Re’s new towing plan,

believing that it had an adverse effect on his business. In

April 1999, within weeks of receiving Del Re’s new plan,

Roger and his company filed a two count complaint against

Lake County and Del Re seeking damages and injunctive

relief pursuant to 42 U.S.C. § 1983 for alleged retaliation by

Del Re for Roger’s support of Smith in the primary election.

On April 7, 2000, the plaintiffs filed an amended complaint

adding Stryker, Del Re’s campaign committee, Crichton,

and a host of Roger’s rival towing operators. The amended

complaint also added various RICO and fraud claims. The

plaintiffs later filed a second amended complaint further

refining the RICO allegations and dropping several defen-

dants.

After several rounds of dismissals weeded out various

parties and claims, the plaintiffs had remaining a handful

of claims against a few defendants—most important for our

purposes, two RICO counts against Del Re and Stryker and

two retaliation claims brought under § 1983 against Del Re.

In March 2004, the district court granted summary judg-

ment in the defendants’ favor on all remaining counts. The

defendants also filed a motion for attorneys’ fees pursuant

Nos. 04-1978 & 05-1033 9

to 42 U.S.C. § 1988, which the district court granted. Roger

appeals the grant of summary judgment in Del Re and

Stryker’s favor, as well as the grant of attorneys’ fees.3

II. Discussion

Roger devotes much, if not most, of his briefs and argu-

ment to an extensive critique of the district court’s memo-

randum opinion. It is the district court’s judgment that we

review, however, and we do so de novo. See Corley v.

Rosewood Care Ctr., Inc., 388 F.3d 990, 1001 (7th Cir.

2004). We view the facts and make all reasonable inferences

therefrom in the light most favorable to the nonmoving

party, Roger. Id. Summary judgment is appropriate if the

record as a whole reveals no genuine issue of material fact

for trial, and the moving party therefore is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(c). Thus,

summary judgment is not appropriate if a dispute about a

material fact is “ ‘genuine,’ that is, if the evidence is such

that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). The nonmoving party must offer something

more than a “scintilla” of evidence to overcome summary

judgment, see id. at 252, and must do more than simply

“show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986).

The gravamen of Roger’s complaint is that Del Re and

Stryker punished Roger for supporting Willie Smith in the

primary race for sheriff. Roger also broadly alleges that Del

3

This is a consolidated appeal of the district court’s order

granting summary judgment and the order awarding attorneys’

fees to the defendants. The appeal of the attorneys’ fees was

submitted on the briefs.

10 Nos. 04-1978 & 05-1033

Re and Stryker operated a corrupt “pay-for-play” system for

towing in Lake County, in which the defendants intimi-

dated towing operators into donating money to Del Re’s

campaign to remain on the towing list and solicited bribes

from towing operators seeking to buy a spot on the ap-

proved list. In sum, Roger’s legal claims are that: (1) Del Re

retaliated against Roger for exercising his constitutional

right to support the political candidate of his choice (counts

7 and 8), and (2) the defendants accepted bribes, engaged in

extortion, and otherwise acted corruptly in violation of

RICO (counts 3 and 4). We take these arguments in turn.

A. Retaliation Claims

Roger brings his retaliation claims pursuant to 42 U.S.C.

§ 1983, alleging that he was punished for exercising his free

speech rights under the federal and Illinois constitutions.

The legal basis for Roger’s claims comes from companion

Supreme Court decisions issued on the same day. Bd. of

County Comm’rs, Wabaunsee County v. Umbehr, 518 U.S.

688 (1996); O’Hare Truck Serv., Inc. v. City of Northlake,

518 U.S. 712 (1996). In both cases, the Court recognized the

right of independent contractors not to be retaliated against

by the government on the basis of their exercise of free

speech, expression, or association.

O’Hare involved facts superficially similar to those before

us in this case. O’Hare was a towing operator that, like

Roger, was on a rotation list of available towers. O’Hare,

518 U.S. at 715. O’Hare had been on the list for nearly

thirty years and its owner had an understanding that

O’Hare would remain on the list as long as it provided good

service. Id. Northlake’s new mayor, elected in 1989, indi-

cated that he was pleased with O’Hare’s work and would

continue using and referring its services. Id. Four years

later, the mayor’s reelection committee asked O’Hare’s

owner for a campaign contribution. Id. O’Hare’s owner

refused, however, and threw his support behind the mayor’s

Nos. 04-1978 & 05-1033 11

opponent. Id. Shortly thereafter, O’Hare was removed from

the towing rotation list in retaliation for his stance during

the campaign. Id. at 715-16.

O’Hare brought suit under § 1983, alleging that the

retaliation violated his First Amendment right of political

association. The district court dismissed O’Hare’s com-

plaint, and this court affirmed, because controlling caselaw

at the time did not recognize that independent contractors

enjoyed such a right. See id. at 716. The Court disagreed,

however, concluding that O’Hare had stated a valid consti-

tutional claim. Id. at 720-21. The Court held that independ-

ent contractors, like public employees, are protected against

retaliation by public entities for their political beliefs,

consistent with the principles set forth in prior free speech

and political affiliation cases. See id. at 726; see also id. at

716-720; Branti v. Finkel, 445 U.S. 507 (1980); Elrod v.

Burns, 427 U.S. 347 (1976); Pickering v. Bd. of Educ. of

Twp. High Sch. Dist. 205, 391 U.S. 563 (1968). The Court

left open whether O’Hare’s case should be governed by the

Elrod-Branti line of cases, which governs political patron-

age and affiliation claims, or the Pickering line, which

governs government employee free speech claims. See

O’Hare, 518 U.S. at 726.

Umbehr involved facts less similar to ours: an independ-

ent contractor alleged that the defendant county commis-

sioners terminated his contract in retaliation for his pub-

lic criticism of the county and the board. Umbehr, 518 U.S.

at 671. The Court concluded that summary judgment in the

county board’s favor was not appropriate and held, echoing

O’Hare, that independent contractors may not be retaliated

against for the exercise of protected expression. Id. at 673.

Like the lower courts, the Court assumed that the plaintiff

had in fact suffered retaliation and concluded that the

Pickering rule was the appropriate test to evaluate the

propriety of the government’s actions. See id. at 675-80.

12 Nos. 04-1978 & 05-1033

The principles set forth in the above-cited line of cases

guide our analysis of Roger’s retaliation claims. There is

some uncertainty regarding which legal standard applies in

political retaliation cases depending on whether the

case involves political patronage or speech/affiliation. See

Heideman v. Wirsing, 7 F.3d 659, 661-62 (7th Cir. 1993). As

noted, even the Supreme Court in O’Hare, which was

factually similar to this case, left this determination open

on remand.

Regardless of which of these tests is the better fit, for

a plaintiff to prevail in a political retaliation case, it is clear

that two fundamental requirements must be satisfied: the

expression at issue must be protected, and it must have

brought about the retaliatory action complained of. See

Umbehr, 518 U.S. at 675 (“The First Amendment[ ] . . .

protects government employees from termination because of

their speech on matters of public concern . . . . To prevail,

an employee must prove that the conduct at issue was

constitutionally protected, and that it was a substantial or

motivating factor in the termination.”) (emphasis

in original, citation omitted); Spiegla v. Hull, 371 F.3d

928, 940-42 (7th Cir. 2004); Kokkinis v. Ivkovich, 185 F.3d

840, 843 (7th Cir. 1999); Nelms v. Modisett, 153 F.3d 815,

818 (7th Cir. 1998); accord Curinga v. City of Clairton, 357

F.3d 305, 310 (3d Cir. 2004); Lucas v. Monroe County, 203

F.3d 964, 973 (6th Cir. 2000). We may resolve Roger’s

retaliation claim in light of these two basic requirements,

so this framework shall suffice for our purposes.

As to whether Roger’s political support of Smith was

constitutionally protected, the parties quibble over whether

the support was for public or private purposes. The district

court agreed with the defendants that Roger’s support of

Smith was for selfish reasons, because Roger “contribut[ed]

to [Smith] hoping to get beneficial treatment by the newly

elected Sheriff and thus benefit[ ] from the same type of

alleged unlawful patronage that he alleges harmed him.”

Nos. 04-1978 & 05-1033 13

The record does seem to support the district court’s conclu-

sion that Roger’s motives were less than pure, but that

determination is irrelevant to this inquiry. We shall assume

that Roger’s campaign contributions themselves were

expressions of protected political speech or affiliation, no

matter what motives Roger may have had in making them.

E.g., Buckley v. Valeo, 424 U.S. 1, 16-19 (1976). So Roger

satisfies the first requirement.

It is at the second requirement, however, where Roger’s

retaliation case founders. As noted, Roger must present

an indication of a causal link between the protected act and

the alleged retaliation—that the act was a substantial or

motivating factor in the retaliation. Cf. Umbehr, 518 U.S.

at 675. Although Roger’s campaign support of Smith was

constitutionally protected, Roger presents very little

evidence that his political support for Smith was a substan-

tial or motivating factor in the modification of his towing

area. In fact, much of Roger’s “evidence” is simply that his

towing area changed at some point after he failed to support

Del Re in the primary election. Beyond this, Roger points,

for example, to the sheriff’s department’s lack of written

guidelines for devising towing areas as evidence of Del Re’s

“opportunity” to punish dissenters like Roger and reward

supporters. Roger claims that his brother Randy (who also

supported Smith) lost a busy intersection under the new

plan. Roger also points to Stryker being “upset” that Roger

chose not to support Del Re in the primary, and he suggests

that Del Re’s use of the phrase “organizational efficiency”

was nothing but a sham because some towers on the list did

not lose territory.

This “evidence” does not carry the day for Roger. Indeed,

it is almost as if Roger points to the lack of evidence as

proof that his case should go to trial—the first time he

failed to support an incumbent in a primary race, he

suffered a loss in towing territory. As Roger sees it, the loss

in territory, which occurred in April 1999, could only have

14 Nos. 04-1978 & 05-1033

come as retaliation for supporting Smith in early 1998, and

thus his case must proceed to trial. This is a classic post hoc

ergo propter hoc logical fallacy, which might make the grade

at the pleading stage. But to defeat summary judgment,

Roger must present something by which a jury could

connect the dots between the propter and the post, and at

best he has presented only bare speculation or a scintilla of

evidence, neither of which will suffice. See, e.g., Anderson,

477 U.S. at 251-52; Beard v. Whitley County REMC, 840

F.2d 405, 410 (7th Cir. 1988) (“[A] party who bears the

burden of proof on a particular issue may not rest on its

pleading, but must affirmatively demonstrate, by specific

factual allegations, that there is a genuine issue of material

fact which requires trial.”) (emphasis in original).

On the record before us, we believe no rational jury

could conclude that Del Re modified Roger’s towing area

in retaliation for Roger’s support of Smith. Indeed, the

record appears to contain ample evidence cutting against

Roger’s position. For example, we note the substantial lapse

in time between Roger’s support of Smith and the alleged

retaliation—about fourteen months. Such a long stretch

between the protected conduct and alleged retaliation

significantly weakens any inference of a causal connection.

Cf. Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir. 2001);

Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 1992).

In addition, Roger and his brother were not the only

towing operators whose assigned areas changed under the

new plan. The towing area for A-Tire, which donated even

more money than Roger did to Willie Smith’s primary

campaign, was “modified slightly or not at all.” The towing

area of Ernie Vole, who donated to Smith and whose

rumor mongering helped induce Roger to do likewise,

actually increased under the new plan. Even Roger concedes

that he was unaware of any retaliation these two towers

may have suffered as a result of their support of Smith. As

for his own towing area, Roger claims that the new plan

Nos. 04-1978 & 05-1033 15

resulted in a “significant loss,” though we note that undis-

puted evidence indicates that since 1999, Roger’s ranked

either second or third among all twelve listed towing

companies in terms of volume of business generated by

sheriff’s department referral.

In any event, however Roger may measure the magnitude

of his loss, he must show the required causal link. This he

has not done, so this case is distinguishable from facially

similar cases in which plaintiffs provided evidence of

causation that precluded summary judgment. See, e.g.,

Lucas, 203 F.3d at 975 (finding that the plaintiffs presented

“overwhelming evidence that their removal from [a] tow call

list was motivated by their constitutionally protected public

criticism of the Sheriff’s Department”).

Finally, aside from the causation shortcomings noted

above, Roger points to no local laws, regulations, or guide-

lines that require Sheriff Del Re to maintain a list

of favored towing operators, let alone to do so in a pre-

scribed fashion. Therefore, as long as Del Re did not act in

a manner that offended towers’ constitutional rights, he

was free to add or remove them from the list as he saw fit.

Cf. O’Hare, 518 U.S. at 725-26; Kevin v. Thompson, 235

F.3d 1026, 1027-28 (7th Cir. 2000) (collecting authority).

Roger argues simply that his monthly towing volume (and

therefore revenue) dropped, but that of course is consistent

with the reduction in his towing area. He has not, however,

shown that the reduction in towing area was improper—i.e.,

in retaliation for his protected expression. The fact that the

Constitution extends some First Amendment protection to

independent contractors like Roger does not mean that he

enjoys some constitutional guarantee to a particular towing

area.

For all of these reasons, the district court properly

granted summary judgment on Roger’s retaliation claims.

16 Nos. 04-1978 & 05-1033

B. RICO Claims

Roger’s RICO claims purport violations of 18 U.S.C.

§§ 1962(c) and 1962(d). We first tackle the § 1962(c) claims.

To prove a violation of § 1962(c), a plaintiff must establish

that there has been (1) conduct (2) of an enterprise (3)

through a pattern (4) of racketeering activity. See Sedima,

S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). A pattern

of racketeering activity consists of at least two predicate

acts of racketeering committed within a ten-year period. 18

U.S.C. § 1961(5).

Roger asserts that the enterprises in question are Del

Re’s election committee and the Lake County Sheriff’s

Department. He argues that the racketeering activity

consists of the defendants’ solicitation and acceptance of

various contributions relating to Del Re’s primary and

general elections. In essence, Roger claims that the defen-

dants enforced a corrupt “pay-for-play” system in which

towers bribed their way onto the approved list or felt

intimidated into making sizable campaign contributions so

that Del Re would not take their business away. Roger

alleges the following predicate acts in connection with

defendants’ scheme: (1) extortion in violation of the Hobbs

Act, 18 U.S.C. § 1951; (2) mail fraud, 18 U.S.C. § 1341; (3)

wire fraud, 18 U.S.C. § 1343; and (4) bribery and intimida-

tion in violation of Illinois law, 720 Ill. Comp. Stat. 5/33-1

and 5/12-6.

At the outset, we note that it is far from clear that the

defendants’ deeds qualify as racketeering activity, particu-

larly the alleged violations of the Hobbs Act. It is undis-

puted that the ultimate object of the alleged predicate

acts was to raise money for Del Re’s primary and general

election campaigns. Campaign contributions, of course, are

not in and of themselves illegal, and they reflect the nature

of the American political system for better or worse. E.g.,

McCormick v. United States, 500 U.S. 257, 272-74 (1991);

Nos. 04-1978 & 05-1033 17

United States v. Giles, 246 F.3d 966, 972 (7th Cir. 2001);

United States v. Allen, 10 F.3d 405, 410-11 (7th Cir. 1993).

Illinois law authorizes the sort of solicitation of campaign

contributions at issue in this case. See 10 Ill. Comp. Stat.

5/9-1.4(2). Yet Roger claims that the defendants engaged in

Hobbs Act extortion, defined as “the obtaining of property

from another, with his consent, induced by wrongful use of

actual or threatened force, violence, or fear, or under color

of official right.” 18 U.S.C. § 1951(b)(2).

In cases in which “color of official right” extortion is

alleged, it can be difficult to separate above-board political

contributions from the shady. Cf. Giles, 246 F.3d at 972

(“[C]ampaign contributions often are made with the hope

that the recipient, if elected, will further interests with

which the contributor agrees; there is nothing illegal about

such contributions.”). The Supreme Court therefore requires

proof of a quid pro quo. Evans v. United States, 504 U.S.

255, 268 (1992) (“[T]he [plaintiff] need only show that a

public official has obtained a payment to which he was not

entitled, knowing that the payment was made in return for

official acts.”); Giles, 246 F.3d at 972 (“To distinguish legal

from illegal campaign contributions, it makes sense to

require the [plaintiff] to prove that a particular contribution

was made in exchange for an explicit promise or undertak-

ing by the official.”). For the other type of Hobbs Act

extortion at issue—the fear-induced variety—the victim’s

fear must be reasonable. See Sutherland v. O’Malley, 882

F.2d 1196, 1202 (7th Cir. 1989).

For either type of extortion, Roger’s evidence is woefully

inadequate. Roger offers no objective evidence that the

defendants were extorting the campaign funds from him or

other towing operators. Instead, Roger merely points to

evidence that Del Re accepted money from him and other

towers (which, of course, is undisputed) and contends that

the contributions could only have been in exchange for

presence on the list or from fear of being removed from the

18 Nos. 04-1978 & 05-1033

list. Roger relies heavily on subjective belief that the

payments were a sort of quid pro quo or offered out of fear.

For example, he offers the fact that towers made up a

disproportionate percentage of Del Re’s campaign contribu-

tions. He claims that the defendants received one contribu-

tion of cash in an envelope, and argues that Del Re violated

his rule prohibiting face-to-face solicitation. Roger also

testified to his discomfort at having sheriffs sporting guns

and badges personally pick up contributions and cites

isolated testimony from a fellow tower that “it helps” to

make contributions to the incumbent sheriff. All of this,

Roger contends, is proof that the defendants extorted funds

from towers.

We do not believe a rational jury could find in Roger’s

favor on the basis of this evidence. For one, it should hardly

be surprising that towers made up a disproportionate

percentage of Del Re’s campaign contributions, given the

manner in which the Lake County sheriff’s department has

long used a list of approved towers. Cf. Allen, 10 F.3d at 411

(“It would be naive to suppose that contributors do not

expect some benefit—support for favorable legislation, for

example—for their contributions.”). This is the very nature

of politics, and in the absence of evidence indicating some

wrongdoing independent of legal solicitation of campaign

contributions, this proportional disparity is evidence of

nothing. As stated, Illinois law expressly allows for solicita-

tion of contributions like Del Re’s, so merely accepting cash

is not evidence of extortion, especially when there is no

separate evidence of an explicit, promised quid pro quo. See

Evans, 504 U.S. at 268; cf. United States v. Martin, 195

F.3d 961, 966 (7th Cir. 1999) (collecting authority).

Likewise, Roger’s bald assertion that he and other towers

had been intimidated does not carry the day. As noted, any

fear that Roger or the others may have felt must be reason-

able. This is where Roger’s failure to present some objective

evidence of extortion—for example, historical data tying the

Nos. 04-1978 & 05-1033 19

award or denial of towing to contributions made or not

made—becomes a serious problem for Roger’s case. If a

plaintiff’s subjective discomfort with uniformed and armed

law enforcement officers dropping by for contributions is

enough to qualify as Hobbs Act extortion, it won’t be long

before all police fund raisers (for political or other purposes)

come to an end. There must be objective evidence to indi-

cate that the plaintiff’s fears are reasonable and otherwise

to allow a jury to find Hobbs Act extortion; we find none in

this record to satisfy Roger’s burden of establishing a

material issue of fact for trial.

In any event, we need not delve into a discussion of

whatever flaws there may be in the remaining predicate

acts that allegedly amount to racketeering activity. Even if

we generously assume that all of the remaining acts in

question so qualify, Roger still must show a pattern of

racketeering activity. The Supreme Court long ago made

clear that the statutory definition of a pattern—two racke-

teering acts within ten years—did “not so much define a

pattern of racketeering activity as state a minimum

necessary condition for the existence of such a pattern.”

H.J. Inc. v. N.W. Bell Tel. Co., 492 U.S. 229, 237 (1989). To

establish a pattern of racketeering activity, a plaintiff must

show continued criminal activity (or the threat thereof) and

relationship between the predicate acts—a standard

commonly dubbed the “continuity plus relationship” test.

See id. at 239.

Relatedness of the alleged predicate acts does not pose a

problem here. All of the acts complained of were indisput-

ably for the purpose of raising funds for Del Re’s primary

and general election campaigns or paying off his campaign

debt, so we shall assume that Roger meets the relationship

prong. See id. at 240 (teaching that predicate acts are

related if they have “the same or similar purposes, results,

participants, victims, or methods of commission, or other-

20 Nos. 04-1978 & 05-1033

wise are interrelated by distinguishing characteristics and

are not isolated events”) (citation omitted).

Roger does not, however, supply sufficient evidence to

satisfy the continuity prong. As the Court has noted,

continuity is “both a closed- and open-ended concept.” Id. at

241. As its name suggests, a closed period of racketeering

activity involves a course of criminal conduct that has

ended. A plaintiff may demonstrate a closed period of

continuity by proving a series of related predicates extend-

ing over a substantial period of time. Id. at 242. On the

other hand, an open-ended period of racketeering is a

course of criminal conduct that lacks the duration and

repetition to establish continuity. A plaintiff may neverthe-

less satisfy continuity by showing past conduct that by its

nature projects into the future with a threat of repetition.

See id. To summarize, a RICO plaintiff can satisfy the

continuity prong either by (1) demonstrating a close-ended

series of conduct that existed for such an extended period of

time that a threat of future harm is implicit, or (2) an open-

ended series of conduct that, while short-lived, shows clear

signs of threatening to continue into the future. See Mid-

west Grinding Co. v. Spitz, 976 F.2d 1016, 1023 (7th Cir.

1992).

This court has analyzed continuity under a multifactor

test, in which we consider (1) the number and variety of

predicate acts and the length of time over which they were

committed, (2) the number of victims, (3) the presence of

separate schemes, and (4) the occurrence of distinct inju-

ries. See Morgan v. Bank of Waukegan, 804 F.2d 970, 975

(7th Cir. 1986). No one factor is dispositive of a claim. Olive

Can Co. v. Martin, 906 F.2d 1147, 1151 (7th Cir. 1990).

Rather, our analysis of the continuity prong is fact-specific

and undertaken with the goal of achieving a “natural and

commonsense” result, consistent with Congress’s concern

with long-term criminal conduct. See id.; see also Vicom,

Nos. 04-1978 & 05-1033 21

Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 780 (7th

Cir. 1994) (citations omitted); Sutherland, 882 F.2d at 1204.

Analysis of the various factors present in this case leads

us to conclude that Roger has not shown closed-ended

continuity. As previously noted, Roger’s RICO claim is

against both Del Re and Stryker. The campaign contribu-

tions at issue spanned at most about two years—from 1997,

when Del Re started off his campaign for sheriff, to 1999,

when Del Re solicited donations to pay off his campaign

debt. Perhaps the most important element of RICO continu-

ity is its temporal aspect. See, e.g., Midwest Grinding Co.,

976 F.2d at 1024. Although we have not employed a bright-

line rule for how long a closed period must be to satisfy

continuity, we have not hesitated to find that closed periods

of several months to several years did not qualify as “sub-

stantial” enough to satisfy continuity. See id. (citing H.J.

Inc. and collecting additional authority).

Likewise, the number of predicate acts alleged is not

large. Roger points to several different instances of what he

believes to be mail fraud—mailings of solicitations for

purchase of fund-raising tickets and Del Re’s notice to

towers that the towing areas would be revised. Roger also

claims that various phone calls between Johnson and

Crichton and the department constituted wire fraud.

Finally, Roger broadly asserts that the handful of face-to-

face meetings between the defendants and some towing

operators constituted bribery and intimidation. The fairly

small number of predicate acts cuts against showing

continuity, particularly when a large proportion of the

acts involved wire or mail fraud, neither of which are

favored means of establishing a RICO pattern in this

circuit. See Vicom, 20 F.3d at 781 (collecting authority).

What is more, the victims of the defendants’ activities

were confined to a small group—the dozen or so approved

towers from 1997 to 1999—which does not help Roger’s case

22 Nos. 04-1978 & 05-1033

for continuity. Cf. W. Assocs. Ltd. v. Market Square Assocs.,

235 F.3d 629, 635 (D.C. Cir. 2001) (distinguishing a single

“set” of victims from a “class of victims who are all similarly

and directly injured”). Most important, Roger alleges only

one overarching scheme—that the defendants illegally

obtained contributions to fund Del Re’s election campaign.

Although a RICO pattern may be established on the basis

of a single scheme, “it is not irrelevant, in analyzing the

continuity requirement, that there is only one scheme.”

Sutherland, 882 F.2d at 1204 (citing H.J. Inc., 492 U.S. at

240); U.S. Textiles, Inc. v. Anheuser-Busch Co., 911 F.2d

1261, 1269 (7th Cir. 1990). The campaign at issue was Del

Re’s first, and all of the predicate acts alleged were for the

purpose of raising money for that campaign. There is no

indication that the defendants engaged in any other

racketeering scheme before or after that closed period

associated with Del Re’s campaign, or that there was a

concurrent and unrelated scheme to use the campaign

contributions for other purposes. Thus, the fact that we are

faced with a single, isolated scheme with a confined set of

victims also supports the conclusion that Roger has not

shown closed-ended continuity, even if we generously

assume that the alleged scheme brought about distinct

injuries to the affected towers.

We also conclude that Roger has not established open-

ended continuity. Instead of presenting meaningful evi-

dence and argument on this score, Roger merely recites the

legal standard for showing open-ended continuity

and complains that the district court “did not credit mate-

rial evidence as to pattern.” Conclusory and unsupported

allegations of this sort will not carry the day for Roger. Cf.

Vicom, 20 F.3d at 783 (“A threat of continuity cannot be

found from bald assertions. . . .”).

In any event, schemes with a “clear and terminable goal

have a natural ending point.” Id. at 782. As discussed,

Roger has alleged that defendants’ scheme involved raising

Nos. 04-1978 & 05-1033 23

funds for Del Re’s 1998 campaign (both the primary and the

general election) and retirement of its campaign debt. All of

the predicate acts Roger alleged related to the solicitation

of funds for the 1998 campaign. In this regard, Roger

pleaded himself out of showing a continuing threat of

continued activity, because the alleged scheme had a

natural ending point when Del Re was elected sheriff and

he retired the debt accrued in that campaign. See id.; Olive

Can, 906 F.2d at 1151; accord Hindes v. Castle, 937 F.2d

868, 874 (3d Cir. 1991); Int’l Bhd. of Teamsters v. Carey, 297

F. Supp. 2d 706, 718 (S.D.N.Y. 2004), aff’d sub nom., 124

Fed. Appx. 41 (2d Cir. 2005). Nor has Roger offered any-

thing more than the unadorned allegation in his complaint

that “the schemes were a regular . . . way the enterprises

did business”; a generous review of the record does not

indicate the existence of evidence to satisfy that aspect of

open-ended continuity. Cf. Vicom, 20 F.3d at 784.

In sum, our review of the record supports the conclusion

that Roger has not satisfied the continuity prong and thus

has not presented evidence of a RICO pattern sufficient

to survive summary judgment on his § 1962(c) claim. This is

a “natural and commonsense” result, given the facts alleged

and our analysis of the various continuity factors. See, e.g.,

U.S. Textiles, 911 F.2d at 1269.

As for Roger’s § 1962(d) claim, he again offers only his

conclusory assertion that a conspiracy must be present,

because the defendants’ conspiratorial intent can be shown

through circumstantial evidence—namely, the fact that the

defendants were present “when illegal acts occur[red].” This

is wholly inadequate. A conspiracy to violate RICO may be

shown “by proof that the [defendant], by his words or

actions, objectively manifested an agreement to participate,

directly or indirectly, in the affairs of an enterprise, through

the commission of two or more predicate crimes.” United

States v. Neapolitan, 791 F.2d 489, 497 (7th Cir. 1986)

(citation omitted); see also Gagan v. Am. Cablevision, Inc.,

24 Nos. 04-1978 & 05-1033

77 F.3d 951, 961 (7th Cir. 1996). The fact that defendants

may have been physically present during commission of

predicate acts, without more, is insufficient to defeat

summary judgment on the § 1962(d) claim (indeed, such an

expansive view would transform virtually all substantive

RICO violations into conspiracies). Roger steers us to no

specific evidence sufficient to raise a material issue of fact

on this score, nor does our review of the record reveal such

evidence. The district court properly granted summary

judgment on Roger’s § 1962(d) claim.

C. Attorneys’ Fees

At last, we turn to Roger’s appeal of the district court’s

order awarding attorneys’ fees.

Recall that the district court granted the defendants’

motion for summary judgment in its entirety in March

2004. Thereafter, Lake County (which in March 2001 was

dismissed from the action) and Del Re filed a motion for

attorneys’ fees pursuant to 42 U.S.C. § 1988 on the basis

that Roger’s suit was frivolous. The district court referred

the issue to a magistrate judge, who recommended that Del

Re be awarded $91,271.50 in fees, but that Lake County’s

claim be denied. The district court adopted the magistrate

judge’s recommendation with regard to Del Re, but dis-

agreed with the recommendation regarding Lake County.

On December 3, 2004, the district court entered an opinion

and order awarding Lake County and Del Re $110,331.50

in fees and $4,154.74 in costs.

Section 1988 provides for the award of attorneys’ fees

to the prevailing party in a § 1983 action. 42 U.S.C.

§ 1988(b). Although the statute specifies the award of such

fees is within the court’s discretion, it is clear that prevail-

ing defendants have a much harder row to hoe than do

prevailing plaintiffs. See Gonzalez v. Transfer Tech., Inc.,

301 F.3d 608, 609 (7th Cir. 2002). A prevailing defendant

Nos. 04-1978 & 05-1033 25

may be entitled to fees only in cases in which the plain-

tiff’s action was frivolous, unreasonable, or groundless. Cf.

Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421

(1978); see also Hughes v. Rowe, 449 U.S. 5, 14-15 (1980)

(extending Christianburg’s Title VII fee-shifting standard

in the § 1983 context); Khan v. Gallitano, 180 F.3d 829, 837

(7th Cir. 1999); Hamer v. County of Lake, 819 F.2d 1362,

1367 (7th Cir. 1987). We have defined a suit as frivolous “if

it has no reasonable basis, whether in fact or in law.”

Tarkowski v. County of Lake, 775 F.2d 173, 176 (7th Cir.

1985).

We review decisions awarding attorneys’ fees for abuse of

discretion, taking into consideration whether the district

court properly applied the Christianburg standard and

whether the court’s findings are supported by the record.

Hamilton v. Daley, 777 F.2d 1207, 1212 (7th Cir. 1985).

Having done so, we cannot agree with the district court’s

conclusion that Roger’s retaliation claims against Del Re

were frivolous. O’Hare and Umbehr expanded First Amend-

ment protection to cover independent contractors like

Roger, and O’Hare’s facts are facially quite similar to those

in this case. As our extensive discussion of Roger’s claims

on the merits indicates, Roger’s theory of the case was not

so lacking in reasonableness that it should be deemed

frivolous and thus eligible for fee-shifting under § 1988. As

to Roger’s claims against Del Re, we cannot conclude that

Roger’s counsel failed to conduct a sufficient legal and

factual investigation. Cf. LaSalle Nat’l Bank of Chi. v.

County of DuPage, 10 F.3d 1333, 1340 (7th Cir. 1993). True,

it was ultimately revealed that Roger’s evidence established

that his case was weak at best—so weak, in fact, that no

triable issues of fact could be discerned and the defendants

were entitled to summary judgment in the entirety. But a

weak case does not a frivolous case make, so we must

conclude that the district court abused its discretion with

regard to the award of fees in Del Re’s favor.

26 Nos. 04-1978 & 05-1033

Matters become much trickier with regard to Lake

County, however. Roger filed his original complaint pursu-

ant to 42 U.S.C. § 1983 in April 1999, naming only Lake

County and Sheriff Del Re as defendants and alleging

deprivation of Roger’s free speech rights, among other

things. He later amended his complaint to state that “the

County ceded all towing authority to Del Re, [Del Re] acted

on behalf of the County regarding the matters set forth

herein, and the County is responsible for his actions.”

In August 2000, the defendants filed a motion to dismiss

the complaint against it. In March 2001, Judge Gottschall,

the district judge to whom the case was then assigned,

granted the motion with respect to Lake County, among

others, noting that the plaintiffs had conceded that the

county was not a proper party defendant and admonishing

that “[t]he court cannot imagine how plaintiffs can justify

naming the county in these counts consistent with Rule 11.”

(R. 63 at 8.)

It was on this basis that the magistrate judge apparently

concluded that Roger’s suit against the county was frivo-

lous. The magistrate judge did not, however, recommend an

award of fees to the county because it failed to mitigate its

losses. As noted, the district court disagreed with the

magistrate judge’s conclusion with regard to mitigation.

Under the deferential standard of review in play here, we

cannot say that the district judge committed error when he

concluded that the case against Lake County was frivolous,

particularly in light of the reasoning of Judge Gottschall

and the magistrate judge. At the time Roger filed his suit,

under clearly established law, Lake County was not a

proper party defendant under the apparent theory of joint

or vicarious liability that Roger pleaded. See Monell v. Dep’t

of Soc. Servs. of the City of New York, 436 U.S. 658, 692

(1978); Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th

Cir. 1995). Thus, Roger’s claim against Lake County had no

Nos. 04-1978 & 05-1033 27

reasonable legal basis. See Tarkowski, 775 F.2d at 176; see

also Hamer, 819 F.2d at1367 (noting that “it is the responsi-

bility of counsel to know the law and to know whether a

claim is clearly foreclosed by precedent”) (citation omitted).

Roger is not helped by the fact that later developments in

the law clarified that Illinois counties may properly be

pleaded as necessary parties in suits seeking damages

against independently elected sheriffs like Del Re. See

Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th

Cir. 2003). This clarification relates not to substantive

liability of the sort Roger alleged, but instead addresses

Illinois law that requires counties to bear financial respon-

sibility for damages in such suits.

We therefore affirm the award of fees to Lake County,

because we cannot say that the court’s finding of frivolous-

ness was an abuse of discretion. We note, however, that the

district court provided only the most cursory explanation for

its determination that the county had no need to mitigate

its damages. See Mary Beth G. v. City of Chicago, 723 F.2d

1263, 1278 (7th Cir. 1984) (noting that district courts must

provide clear explanations and make sufficient factual

findings to assist appellate review); cf. Leffler v. Meer, 936

F.2d 981, 987 (7th Cir. 1991). Moreover, the court lumped

together the fees awarded to both Del Re and the county,

and it is not clear to us that the difference between the

district judge’s award of fees and the magistrate judge’s

award of fees accurately represents the county’s share. On

remand, the district court shall determine what reasonable

attorneys’ fees Lake County alone may be entitled to, and

it should provide a reasoned explanation for its conclusions

regarding mitigation or any other relevant issue bearing on

the award of fees. See id.

Lastly, we note that the plaintiffs do not challenge the

district court’s award of costs to Del Re and Lake County;

that portion of the court’s order shall stand.

28 Nos. 04-1978 & 05-1033

III. Conclusion

For the reasons stated, we AFFIRM the district court’s

order granting summary judgment in the defendants’ favor.

We REVERSE the award of fees in Del Re’s favor and

REMAND for a determination of the appropriate amount,

if any, to be awarded to Lake County.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-22-05