Petition for Writ of Certiorari — Marshall Spiegel, Petitioner v. Corrine McClintic, et al.

Supreme Court briefJun 17, 2019

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IN THE

Supreme Court of the United States

MARSHALL SPIEGEL, PETITIONER

CORRINE MCCLINTIC AND VILLAGE OF WILMETTE,

A MUNICIPAL CORPORATION

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOHN S. XYDAKIS

Suite 402

30 North Michigan Ave.

Chicago Illinois, 60602

johnxlaw@gmail.com

(312) 488-3497

MARINA TRAMONTOZZI

Counsel of Record

40Country Club Rd

N. Reading, MA 01864

mtramontozzi@tramontlaw.com

978-664-1671

CURRY & TAYLOR 202-350-9073

QUESTION(S) PRESENTED

Does the First Amendment protect a person’s right

to photograph or videotape in public?

If so, where officers threaten to arrest a person for

photographing or videotaping in public does the First

Amendment require a heightened pleading standard or

particular mental state to hold the officer and

municipality liable? Similarly, should municipalities have

rules forbidding officers from arresting persons who

photograph or videotape in public?

TABLE OF CONTENTS

Page

QUESTION(S) PRESENTED ........................................................... i

TABLE OF AUTHORITIES ............................................................iii

OPINIONS BELOW ......................................................................... 1

JURISDICTION ............................................................................... 1

RELEVANT PROVISIONS INVOLVED ......................................... 1

STATEMENT .................................................................................. 2

REASONS FOR GRANTING THE PETITION ................................. 3

CONCLUSION ................................................................................. 9

APPENDIX

Circuit Court Decision ........................................................... 1a

District Court Decision ........................................................ 15a

Order Denying Rehearing ................................................... 44a

iii

TABLE OF AUTHORITIES

Page

CASES

ACLU V. ALVAREZ, 679 F.2D 583, 589 (7TH CIR.

2012) ........................................................................................... 3

BOSE V. CONSUMERS, 466 U.S. 485, 506-511 (1984).................. 8

BRYAN CTY. V. BROWN, 520 U.S. 397, 406 (1997) ..................... 5

BURTON V. WILMINGTON PARKING, 365 U.S. 715,

725 (1961) ................................................................................... 4

CIRAOLO V. NEW YORK, 216 F.3D 236, 247 (2ND CIR.

2000) ........................................................................................... 9

CITY OF CANTON V. HARRIS, 489 U.S. 378, 389 FN. 8

(1989).......................................................................................... 4

COATES V. CINCINNATI, 402 U.S. 611, 615 (1971)..................... 6

CONNICK V. THOMPSON, 563 U.S. 51, 61 (2011)......................... 7

EDMONSON V. LEESVILLE CONCRETE, 500 U.S.

614, 621-623 (1991) .................................................................... 3

ELONIS V. UNITED STATES, 135 S.CT. 2001, 2011

(2015).......................................................................................... 6

JOHNSON V. VANDERKOOI, 918 N.W.2D 785, 793-794

(MICH. 2018).............................................................................. 5

JONES V. CLARK, 630 F.3D 677, 683 (7TH CIR. 2011) ................ 3

LAKEWOOD V. PLAIN DEALER, 486 U.S. 750, 758

(1988).......................................................................................... 7

LEATHERMAN V. TARRANT CTY., 507 U.S. 163, 164

(1993).......................................................................................... 8

MCCAULEY V. CITY OF CHICAGO, 671 F.2D 611, 623624 (7TH CIR. 2011)................................................................... 8

MILLER V. CALIFORNIA, 413 U.S. 15, 30 (1973).................... 8, 9

MONELL. AMNESTY V. W. HARTFORD, 361 F.3D 112,

125-126 (2ND CIR. 2004) ........................................................... 5

OLSON V. CITY OF INDEPENDENCE, 445 U.S. 622,

627 (1980) ................................................................................. 10

OSU V. RAY, 699 F.3D 1053, 1071 (9TH CIR. 2012)................ 4, 5

PEMBAUER V. CINCINNATI, 475 U.S. 469, 480-481

(1986).......................................................................................... 4

REED V. TOWN OF GILBERT, 135 S.CT. 2219, 2229

(2015).......................................................................................... 4

REHER V. VIVO, 656 F.3D 772, 776 (7TH CIR. 2011).................. 3

SIMS V. MULCHAY, 902 F.2D 524, 543 (7TH CIR.

1990) ........................................................................................... 7

SPIEGEL V. MCCLINTIC, 916 F.3D 611 (7TH CIR.

2019) ........................................................................................... 1

ST. LOUIS V. PRAPROTNIK, 485 U.S. 112, 117 (1988) ................ 4

SWEIRKIEWICZ V. SOREMA, 534 U.S. 506 (2002) ...................... 8

UNITED STATES V. PLAYBOY, 529 U.S. 803, 818

(2000).......................................................................................... 7

UNITED STATES V. STEVENS, 559 U.S. 460, 470

(2010).......................................................................................... 6

WAL-MART V. DUKES, 564 U.S. 338, 349 (2011)........................ 9

WHITE V. CITY OF CHICAGO, 829 F.3D 837 (7TH CIR.

2016) ........................................................................................... 8

WIDMAR V. VINCENT, 454 U.S. 263, 277 (1981)......................... 4

STATUTES

28 U.S.C. §2101(c) ......................................................................... 1

42 U.S.C. §1983 ............................................................................. 1

720 ILCS 5/2601 ............................................................................ 6

RULES

Fed.R.Civ.Pro 9(b) ....................................................................... 8

Supreme Court Rule 13 ............................................................... 1

OTHER AUTHORITIES

Restatement (Second) of Agency, §97, cmt. a.

Principals.................................................................................... 5

Governmental Conspiracies to Violate Civil Rights,

57 Mont. L.R.,1 22 (1996). ........................................................ 5

Problems With Rules, Cass Sunstein, 83 Cal.L.R.

953, 964-965 (1995). .................................................................. 6

The Justices of Rules and Standards, 106 Harv.

L.R. 22, 59 (1999). ...................................................................... 6

Categoricalism and Balancing, 84 N.Y. Univ. L.R.

375, 381 (2009). ......................................................................... 6

Rules & Standards, 33 UCLA L.R., 379, 380 (1985). ............. 6

Legal Reasoning, Cass Sunstein, e-loc *122 (2018).................. 6

Justices of Rules and Standards, 106 Harv. L.R. 22,

59 (1999)...................................................................................... 6

Rules & Standards, 33 UCLA L.R., 379, 380 (1985) ................ 7

Disorderly (mis)Conduct” The Problem with

“Contempt of Cop” Arrests, Am.Const.Soc.

(2010). ......................................................................................... 8

Deterrence Effects under Twombly, 44 Int’l. Rev.

Law & Econ. 61, 68 (2015). ...................................................... 9

Fed. Jud. Ctr. Nat’l., Case-Based Civil Rule

Survey, *2 (2009). ..................................................................... 9

OPINIONS BELOW

The opinion of the Seventh Circuit Court of

Appeals is reported as Spiegel v. McClintic, 916 F.3d

611 (7th Cir. 2019). App.1a-14a. The District Court

Opinion is not reported. App15a-43a.

JURISDICTION

The Seventh Circuit denied the petition for

rehearing on March 19, 2019. App.44a. This petition for

writ of certiorari is filed within 90 days of the decision

in accordance with Supreme Court Rule 13. This

Honorable Court has jurisdiction pursuant to 28 U.S.C.

§2101(c).

RELEVANT PROVISIONS INVOLVED

U.S. Const., Amendment 1

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

government for a redress of grievances.

42 U.S.C. §1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or

other proper proceeding for redress. . .

STATEMENT

A private individual, Corrine McClintic, filed a

report with the Village of Wilmette police claiming she

was upset because Marshall Spiegel took pictures of her

while she was leaving the condominium building where

she and Spiegel reside. McClintic lurks around the

building peering into Spiegel’s windows to draft

condominium rule violations. App.2a-4a. McClintic’s

husband sits on the condominium building’s board.

App.3a.

An hour later, a Wilmette police officer appeared

at Spiegel’s building and threatened that Spiegel had

broken the law. App.3a. The officer warned him not to

photograph or videotape McClintic again. App.3a.

A few days later, two Wilmette detectives

showed up at Spiegel’s building. The two detectives

again warned Spiegel about any further photographing

and videotaping of McClintic in public places or

otherwise. App.3a.

A few months later, a Wilmette detective called

Spiegel and stated that McClintic again was upset

because Spiegel had photographed or videotaped her in

public. The detective threatened that he would file

disorderly conduct charges against Spiegel if he did it

again. App.3a-4a. Thereafter, McClintic would taunt

Spiegel that if he photographed or videotaped her

again, Wilmette would arrest him. App.4a.

Spiegel sought a declaratory judgment and

injunction against Wilmette and McClintic to preclude

any future arrest. App.15a-16a. In briefing, Wilmette

admitted McClintic’s being annoyed was the only

“breach of the peace.” App.11a-12a. Wilmette’s briefs

also ratified its officers’ acts, claiming Spiegel lacked

any “interest in preserving his right” to photograph or

videotape in public places and Wilmette had a

“significant public interest” to let its officers”

determine whether probable cause exists” to charge

Spiegel or others with disorderly conduct if they did.

App.11a-12a.

The District Court dismissed Spiegel’s

declaratory judgment and request for an injunction

against Wilmette and McClintic. App.15a-38a. The

District Court held three incidents were insufficient for

Monell liability, Twombly required a heightened

pleading standard, and Monell requires an express

policy. App.15a-38a. The Seventh Circuit agreed.

App.1a-14a.

REASONS FOR GRANTING THE PETITION

First Amendment Does Not Require Proof of

a Mental State.

The First Amendment protects “audiovisual

recording.” ACLU v. Alvarez, 679 F.2d 583, 589 (7th Cir.

2012). “It is not a crime to take pictures on the street.”

Jones v. Clark, 630 F.3d 677, 683 (7th Cir. 2011).

Similarly, “[v]ideotaping other people in public, while

potentially intrusive, is not illegal in Illinois.” Reher v.

Vivo, 656 F.3d 772, 776 (7th Cir. 2011).

State action can arise from private use of state

laws or procedures with the encouragement, approval,

or assistance of state officials. Edmonson v. Leesville

Concrete, 500 U.S. 614, 621-623 (1991). The state’s

putting its power and prestige behind the

unconstitutional action alone may suffice. Burton v.

Wilmington Parking, 365 U.S. 715, 725 (1961).

Municipalities can also be liable for ratifying a

subordinate’s unconstitutional decision. St. Louis v.

Praprotnik, 485 U.S. 112, 117 (1988).

A single

ratification may suffice. Pembauer v. Cincinnati, 475

U.S. 469, 480-481 (1986). Here, the Seventh Circuit

followed Praprotnick:

the authorized policymaker

must usually “approve the decision” and “the basis for

it.” Praprotnik at 127.

But unlike supervisory liability, municipal

liability “does not turn on any underlying” mental test

culpability, like agreeing with the “basis” for a decision.

City of Canton v. Harris, 489 U.S. 378, 389 fn. 8 (1989).

Moreover, First Amendment “rights are entitled

to special constitutional solicitude.” Widmar v. Vincent,

454 U.S. 263, 277 (1981). Mental states are irrelevant.

Reed v. Town of Gilbert, 135 S.Ct. 2219, 2229 (2015).

The First Amendment “targets the operation of the

laws.” Id. Even good faith, content neutral laws, can be

struck down. Id. at 2229-2230.

Iqbal makes “crystal clear” that required mental

state varies with the “constitutional provision at issue.”

OSU v. Ray, 699 F.3d 1053, 1071 (9th Cir. 2012). For

example, for supervisory liability, “knowledge” alone

“suffices for free speech violations.” Id. at 1073. Free

speech violations “do not require specific intent” by a

supervisor. Id. at 1075. Neither are they required for

municipalities. Reed at 2220-2230.

The Seventh Circuit erred. Litigants need not

plead, or meet, any Praprotnik “basis” ratification

requirement for why a police officer acted.

municipality, like Wilmette’s, "basing of a defense” in

the suit constitutes ratification and “cannot be

retracted." Restatement (Second) of Agency, §97, cmt.

a. Principals need only “knowledge of the facts,” not

the basis for an agent’s acts. Id. at cmt. d.

II. Conspiracy & Ratification Theories Cannot

Superimpose Intent Requirement.

The Seventh Circuit also erred in imposing a

conspiracy’s heightened pleading standard to First

Amendment claims.

A “conspiracy creates specific–intent liability[,]”

knowing the conduct is wrongful, and agreeing to “the

achievement of that conduct.” Governmental

Conspiracies to Violate Civil Rights, 57 Mont. L.R.,1 22

(1996). As the First Amendment lacks any specific

intent, proof a third-party and the government

“conspired” is irrelevant.

A municipality’s propounding to an employee an

ad hoc decision causing a constitutional violation

suffices, regardless of a “conspiracy.” Pembauer at 480481. A municipality’s ratifying an employee’s ad hoc

decision that caused a constitutional violation should as

well.

Ratification is proof the municipality agrees the

employee acted appropriately. Bryan Cty. v. Brown,

520 U.S. 397, 406 (1997). An unconstitutional “as

applied” ordinance ratified by a municipality satisfies

Monell. Amnesty v. W. Hartford, 361 F.3d 112, 125-126

(2nd Cir. 2004).

Even giving an employee one unconstitutional

option suffices. Johnson v. Vanderkooi, 918 N.W.2d 785,

793-794 (Mich. 2018). The employee would be “taking

an action linked to a deliberate choice of the

municipality, even if no single option was mandated.”

Id. at 794.

III. First Amendment Requires Rules to Limit

Discretion.

Both Wilmette’s ordinance (12-4.1) and the

Illinois disorderly statute (720 ILCS 5/2601) require the

act the “unreasonable” and “disturb another and to

provoke a breach of the peace.”

But unlike rules (eg. a 55 mph speed limit), a

standard’s meaning, e.g., “excessive speed,” or

“unreasonableness,” can only be determined “with its

applications[,]” not in advance. Problems With Rules,

Cass Sunstein, 83 Cal.L.R. 953, 964-965 (1995).

For the accused, a “reasonableness” standard is

“inconsistent with the conventional requirement for

criminal conduct – awareness of some wrongdoing.”

Elonis v. United States, 135 S.Ct. 2001, 2011

(2015)(quoting case). It is even more inconsistent when

criminality turns on the State or “victim’s” view of

reasonableness. Similarly, the State cannot criminalize

conduct that “annoys” others. Coates v. Cincinnati, 402

U.S. 611, 615 (1971).

This “contains an obvious

invitation to discriminatory enforcement.” Id. at 616.

The “categorization” approach to First

Amendment claims is “a version of the rules/standards

distinction.” The Justices of Rules and Standards, 106

Harv. L.R. 22, 59 (1999). The Court’s categorization

binds the decision-maker “to respond in a

determinative way” to the facts. Categoricalism and

Balancing, 84 N.Y. Univ. L.R. 375, 381 (2009).

Similarly, the First Amendment does not

contemplate “ad hoc balancing of relative social costs

and benefits.” United States v. Stevens, 559 U.S. 460,

470 (2010). “[V]alue judgments” are “for the individual

to make” not the “Government to decree.” United

States v. Playboy, 529 U.S. 803, 818 (2000).

Municipalities cannot evade liability by delegating

discretionary authority to decide for themselves if the

First Amendment was violated. Municipalities must

carefully choose what authority to delegate, and to

whom.

To ensure this, municipalities must create fixed,

written “standards to cabin discretion” in First

Amendment cases. OSU at 1064. A sharp line also

assures permissible speech will not be chilled.” Rules &

Standards, 33 UCLA L.R., 379, 380 (1985). The case for

crisp rules in “criminal law is even more compelling.”

Legal Reasoning, Cass Sunstein, e-loc *122 (2018).

For example, only “standards limiting” a

municipality’s discretion to grant licenses will eliminate

the danger of self-censorship. Lakewood v. Plain

Dealer, 486 U.S. 750, 758 (1988).

Otherwise,

governments can evade responsibility with vague laws

or entrusting “lawmaking,” ie. gratuitous discretion, to

police.

Without

clear

guideposts,

“post

hoc

rationalizations” and “shifting or illegitimate criteria”

make it too hard for courts to effectively detect, review,

and correct violations. Id.

Similarly, though “as

applied” relief may vindicate plaintiff’s rights, it

provides no protection against “self censorship” by

speakers or a “chilling effect” on third parties. Id.

The failure to make rules regulating a municipal

policy may satisfy Monell. Sims v. Mulchay, 902 F.2d

524, 543 (7th Cir. 1990). A “stringent” “deliberate

indifference” requirement should not be required.

Connick v. Thompson, 563 U.S. 51, 61 (2011). Officers

don’t need training from a directive: “photographing or

videotaping persons in public is a protected First

Amendment right.”

Millions of persons using their cell phones to

take pictures every day should not be threatened with

criminal “disorderly conduct,” especially when this will

invariably be a pretext to let police target disfavored

persons or cover up their own abuses. Disorderly

(mis)Conduct” The Problem with “Contempt of Cop”

Arrests, Am.Const.Soc. (2010).

IV. Heightened Pleading Standards Do Not Apply.

The Seventh Circuit also erred by applying a

“heightened pleading standard” in civil rights cases.

Leatherman v. Tarrant Cty., 507 U.S. 163, 164 (1993).

“The Leatherman holding has survived the Court’s

later civil pleading decisions in Iqbal and Twombly,

which require the pleader to allege a ‘plausible’ claim.’”

White v. City of Chicago, 829 F.3d 837 (7th Cir. 2016).

Even if it didn’t, Iqbal also conflicts with the

requirement that “[m]alice intent, knowledge, and

other conditions of a person’s mind may be alleged

generally.” Fed.R.Civ.Pro 9(b). Iqbal also conflict with

prior cases (eg. Sweirkiewicz v. Sorema, 534 U.S. 506

(2002)) and the approved Rule 84 forms. McCauley v.

City of Chicago, 671 F.2d 611, 623-624 (7th Cir.

2011)(concur).

Moreover, First Amendment claims cannot be

windowed out by thousands of different trial judge’s

using Twombly/Iqbal’s “common sense” and “judicial

experience.” When A First Amendment “line must be

drawn,” it is drawn by the “Members of this Court,”

and the line is drawn for everyone. Bose v. Consumers,

466 U.S. 485, 506-511 (1984). First Amendment rights

should not “vary from community to community.”

Miller v. California, 413 U.S. 15, 30 (1973).

Finally, stronger pleading standards “decrease

deterrence, increasing the prevalence of unlawful

activity” which can increase “total litigation costs.”

Deterrence Effects under Twombly, 44 Int’l. Rev. Law

& Econ. 61, 68 (2015).

Similarly, most Federal litigants report “the cost

of discovery had ‘no effect on the likelihood of

settlement’.” Fed. Jud. Ctr. Nat’l., Case-Based Civil

Rule Survey, *2 (2009).

Most also agreed that

discovery is essential to narrow the issues for any

settlement. Id. Most disagreed with claims “discovery

is abused in almost every case in federal court.” Id. at

*2-3. At most, discovery makes up a mere 3.3% of the

reported stakes. Id. at *2.

CONCLUSION

This Honorable Court should grant the petition

for a writ of certiorari. Picture and video taking with

cell phones are too ubiquitous to let police use this as an

excuse to stop, arrest, or search someone on the pretext

of disorderly conduct.

Review will also ensure lower courts cannot

thwart a private person’s seeking declaratory relief on

a municipality’s position and giving it the option to

ratify its officer’s conduct. Deterrence is likely low for

constitutional tort litigation, especially in First

Amendment cases. Ciraolo v. New York, 216 F.3d 236,

247 (2nd Cir. 2000)(Calabresi concur)(quoting article).

Harm is invariably intangible, widely dispersed, and

often small. Id.

Municipalities will argue factual

differences between plaintiffs and situations preclude

class certification. Wal-Mart v. Dukes, 564 U.S. 338, 349

(2011).

Also, if review is granted, no possibility exists it

will resolve the case against Wilmette on qualified

immunity grounds. Olson v. City of Independence, 445

U.S. 622, 627 (1980)(municipalities not entitled to

qualified immunity). Moreover, the case comes to this

Honorable Court on a motion to dismiss; hence, the

facts are undisputed and present issues of law.

Respectfully Submitted,

Marina Tramontozzi

Counsel of Record

40 Country Club Rd.

N. Reading, MA 01864

mtramontozzi@yahoo.com

John S. Xydakis

Suite 402

30 North Michigan Ave.

Chicago Illinois, 60602

(312) 488-3497

johnxlaw@gmail.com

916 F.3d 611

United States Court of Appeals, Seventh Circuit.

Marshall SPIEGEL, Plaintiff-Appellant,

Corrine MCCLINTIC and Village of Wilmette,

Defendants-Appellees.

No. 18-1070

Argued December 4, 2018Decided February 14, 2019

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division. No. 16 C

9357 — Sara L. Ellis,

Ellis Judge.

Attorneys and Law Firms

John S. Xydakis, Attorney, LAW OFFICE OF JOHN

S. XYDAKIS, Chicago, IL, for Plaintiff-Appellant.

David Feller Hyde, Eugene E. Murphy, Jr., Attorneys,

MURPHY LAW GROUP, LLC, Chicago, IL, for

Defendant-Appellee CORRINE MCCLINTIC.

Michael R. Hartigan, Attorney, HARTIGAN &

O'CONNOR, P.C., Stacey Lynn Wilkins, Attorney,

TRESSLER LLP, Chicago, IL, for DefendantAppellee VILLAGE OF WILMETTE.

Before Bauer, Kanne, and Brennan, Circuit Judges.

Opinion

Kanne, Circuit Judge.

Marshall Spiegel believes that Corrine McClintic (and

her husband William) have been violating condominium

association rules since the McClintics purchased a unit

in the building where he lives. To document their

perceived violations, Spiegel took to photographing and

filming the McClintics. In response to his less-thansubtle surveillance, Corrine McClintic began filing

police reports. Spiegel was not arrested. But members

of the Village of Wilmette Police Department

threatened him with arrest for disorderly conduct if he

persists in photographing and videotaping the

McClintics. Spiegel subsequently sued Corrine and the

Village of Wilmette. In his second amended

complaint—the dismissal of which Spiegel now

appeals—he argues that Wilmette and McClintic

conspired together to violate his constitutional rights.

He further claims that Corrine intruded upon his

seclusion, in violation of Illinois law, by photographing

the interior of his condominium. Because Spiegel has

not identified a constitutional violation or shown that he

suffered damages from the alleged intrusion upon his

seclusion, we affirm the dismissal.

I. BACKGROUND

We take the well-pleaded allegations from Spiegel's

second amended complaint as true.1 Marshall Spiegel

has lived in a condominium building in Wilmette,

Illinois for 22 years. In 2015, Corinne and William

McClintic bought a unit in the building. Despite

condominium association rules which prohibit renting

out units, the McClintics did so. They do not live in the

building but use the building pool almost daily.

1. Spiegel's Surveillance of Corrine McClintic

Spiegel explains that, “to protect himself from false

allegations,” he began “documenting violations of the

Association's rules by the McClintics.” Specifically, he

began photographing and videotaping the couple. His

second amended complaint is interspersed with

pictures of the McClintics around the building. In most

of the photos, the person pictured is looking directly at

the camera.

The tensions between Spiegel and the McClintics

quickly escalated. Corrine filed numerous police reports

between June and October 2016. In one report—in June

2016—Corrine told officers that Spiegel jumped in front

of her car and photographed her. In response, Wilmette

police officers warned Spiegel against causing further

problems. Spiegel told the officers that the report

contained false allegations and argued that his conduct

did not violate the disorderly conduct ordinance, but

the officers “insisted that Spiegel had broken the law.”

On September 20, 2016, Spiegel videotaped Corrine,

William, and another unit owner talking near the pool.

Corrine reported to the Wilmette police that Spiegel

was videotaping her in her bathing suit (an allegation

he denies) and asked that they arrest him for disorderly

conduct. On October 7, 2016, Spiegel documented

Corrine McClintic attempting to evade a process server

in front of the condominium building. Corrine McClintic

informed Spiegel that the Wilmette police had promised

to arrest him if he videotaped her again. She reported

the incident.

Spiegel also videotaped Corrine McClintic at a later,

unspecified Association meeting. Once again, she

threatened Spiegel with arrest if he continued

videotaping her. The second amended complaint does

not clarify whether McClintic filed a police report.

2. Corrine McClintic's Surveillance of Spiegel

Spiegel alleges that Corrine McClintic, not he, is the

one engaged in illegal surveillance. He contends that,

between May 29 and June 4, 2016, she attempted to

peer into Spiegel's unit on three occasions. He suspects

she took pictures. Spiegel also caught Corrine

McClintic “spying” on him by the pool and near the

elevator. Spiegel does not specifically allege that he

reported these incidents to the Wilmette police.

He does assert, however, that “Wilmette police have

refused to act on Spiegel's claims against residents and

others.” The only specific example he gives in the

second amended complaint involves an altercation at a

“recent Association meeting” where “a resident's sonin-law battered Spiegel in front of roughly ten people

until security guards pulled him off.” Spiegel reported

the incident to Wilmette police, but they declined to

charge the man.

3. Procedural History

Spiegel filed suit against Corrine McClintic, alleging

state law defamation and requesting a declaration that

the First Amendment protected his public videotaping.

Two days later, he filed a first amended complaint

which added the Village of Wilmette as a defendant.

The district court dismissed the first amended

complaint for lack of subject matter jurisdiction but

granted Spiegel leave to file a second amended

complaint. In that complaint, Spiegel sought relief

against Corrine McClintic and the Village of Wilmette

under 42 U.S.C. § 1983 and against Corrine McClintic

for intrusion upon seclusion under Illinois law. On

November 29, 2016, Spiegel filed a motion for a

temporary restraining order or preliminary injunction,

and the defendants moved to dismiss.

On September 27, 2017, the district court dismissed

Spiegel's claims against McClintic and denied Spiegel's

motion for a preliminary injunction. On November 7,

2017, after supplemental briefing, the district court

dismissed Spiegel's claim against Wilmette and entered

final judgment.

Approximately one month later, Spiegel filed a

combined motion to vacate the judgment and to file a

third amended complaint. In a text-only order, the

district court denied the motion to vacate because it

presented arguments already considered and rejected

and denied the motion to amend for the same reasons

articulated in the November 7, 2017, order. Spiegel's

proposed third amended complaint was largely identical

to his second amended complaint, but it offered several

additional factual allegations and named three

Wilmette officers as defendants. This appeal followed.

II. ANALYSIS

Spiegel frames his suit as one meant to vindicate his

constitutional right to photograph and videotape in

public. He essentially argues that the defendants

violated his First Amendment rights by conspiring to

prosecute him for lawful conduct. We need not reach

the question of whether Spiegel has, in fact, identified a

constitutional violation because his claims suffer from

threshold deficiencies.

We review a district court's dismissal under Rule

12(b)(6) de novo. LaBella Winnetka, Inc. v. Vill. of

Winnetka, 628 F.3d 937, 941 (7th Cir. 2010). Like the

district court, we construe the second amended

complaint in a light most favorable to Spiegel. Id.

1. Spiegel Has Not Stated a § 1983 Claim Against

McClintic

The district court properly dismissed Spiegel's §

1983 claim against Corrine McClintic because she is a

private citizen. “To state a claim for relief in an action

brought under § 1983, respondents must establish ...

that the alleged deprivation was committed under color

of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999).

The under-color-of-state-law element means that §

1983 does not permit suits based on private conduct,

“no matter how discriminatory or wrongful.” Id. at 50,

119 S.Ct. 977 (citation omitted). But a private citizen

can act under color of law if there is “evidence of

a concerted effortbetween a state actor and that

individual.” Fries v. Helsper, 146 F.3d 452, 457 (7th Cir.

1998). We call this the “conspiracy theory” of §

1983liability.

Spiegel argues that he can hold Corrine McClintic liable

under § 1983 merely by alleging aid to or

encouragement of state action by McClintic, not an

actual conspiracy. That's inconsistent with the clear

holding in Fries. “To establish § 1983 liability through a

conspiracy theory, a plaintiff must demonstrate that: (1)

a state official and private individual(s) reached an

understanding to deprive the plaintiff of his

constitutional rights, and (2) those individual(s) were

willful participant[s] in joint activity with the State or

its agents.” Id.(internal citations omitted). “[M]ere

allegations of joint action or a conspiracy do not

demonstrate that the defendants acted under color of

state law and are not sufficient to survive a motion to

dismiss.” Id. at 458.

Spiegel also argues that an “agreement among all the

conspirators is not a necessary element of a civil

conspiracy,” quoting Lenard v. Argento, 699 F.2d 874,

882 (7th Cir. 1983). But he misquotes Lenard: the court

actually stated that “[a]n express agreement” is not

required. Id. (emphasis added).

With the proper standard established, we attempt to

find a conspiracy within Spiegel's allegations. Spiegel

quotes language in Gramenos v. Jewel Cos., asserting

that “[i]f the police promise to arrest anyone the

shopkeeper designates, then the shopkeeper is

exercising the state's function and is treated as if he

were the state.” 797 F.2d 432, 435 (7th Cir. 1986). But

Spiegel doesn't allege that Wilmette police agreed to

arrest Spiegel if directed to do so by McClintic. The

officers clearly retained full discretion, evidenced by

their decision to not arrest Spiegel.

We have repeatedly held that “the mere act of

furnishing information to law enforcement officers”

does not constitute joint activity in an unconstitutional

arrest. Butler v. Goldblatt Bros., 589 F.2d 323, 327 (7th

Cir. 1978); see also Kelley v. Myler, 149 F.3d 641, 649

(7th Cir. 1998) (“Bell called the police when Kelley

refused to leave the property after being asked to do so

and then described the situation to the officers; he had

no further communication with the officers. Such

evidence does not support her charge that a conspiracy

existed to arrest her in violation of her civil

rights.”); Gramenos, 797 F.2d at 435 (confirming that

“one who accuses someone else of a crime is [not]

exercising the powers of the state”). In Brokaw v.

Mercer

Cty.,

distinguished

Gramenos

and Butler because “they did not involve an alleged

agreement between the police and the private citizens;

rather, the private individuals acted independently

from the government in making the police reports.” 235

F.3d 1000, 1016 (7th Cir. 2000). The difference

in Brokaw was that two private citizens and a deputy

sheriff agreed to work together to remove a child from

a home by filing false allegations of child neglect. Thus,

the state actor intentionally set in motion the seizure of

the child, knowing that the removal was premised on

false allegations.

So the mere act of filing false police reports is not

actionable under § 1983. Spiegel never alleges that the

officers were aware that the reports were false, much

less that they had previously agreed with McClintic to

investigate such false reports. In fact, it's unclear

whether Corrine McClintic's reports contained

falsehoods. He summarily alleges that the police

reports involved false allegations, but never identifies

them. Rather, Spiegel emphasizes that the officers

refused to listen to his explanations for why his conduct

was lawful. That's not enough to establish a conspiracy.

Because Spiegel has not plausibly alleged a conspiracy

between McClintic and Wilmette to violate his

constitutional rights, he failed to state a § 1983 claim

against McClintic.

2. Spiegel Has Not Stated a Monell Claim Against

Wilmette

The district court properly dismissed Spiegel's claim

against Wilmette because “a municipality cannot be

held

liable solely because

employs

tortfeasor.” Monell v. Dep't of Soc. Servs. of City of

New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d

611 (1978). Rather, a municipality can be liable under §

1983 only “when execution of a government's policy or

custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent

official policy, inflicts the injury.” Id. at 694, 98 S.Ct.

2018.

We interpret that language as creating three bases for

municipal liability: “(1) an express policy that causes a

constitutional deprivation when enforced; (2) a

widespread practice that is so permanent and wellsettled that it constitutes a custom or practice; or (3) an

10a

allegation that the constitutional injury was caused by a

person with final policymaking authority.” Estate of

Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d 509, 515

(7th Cir. 2007) (citation omitted).

Spiegel argues that Wilmette's disorderly conduct

ordinance constitutes the express policy of the City.

The ordinance does not expressly criminalize public

videography or photography. Wilmette, IL., Code ch.

12-4.1 (2017) (making it “unlawful for any person to

knowingly do any act in such unreasonable manner as

to alarm or disturb another and to provoke a breach of

the peace in the village”). And, given the requirement

that the person act in an “unreasonable manner,” the

ordinance does not raise facial constitutional

concerns. See Gower v. Vercler, 377 F.3d 661, 670 (7th

Cir. 2004) (explaining that the materially identical

Illinois disorderly conduct statute does not run afoul of

the First Amendment); see also Am. Civil Liberties

Union of Ill. v. Alvarez, 679 F.3d 583, 602 (7th Cir.

2012) (“[W]hen ‘speech’ and ‘nonspeech’ elements are

combined, and the ‘nonspeech’ element (e.g.,

prostitution) triggers the legal sanction, the incidental

effect on speech rights will not normally raise First

Amendment concerns.”). Certainly, a person can

photograph and videotape in a sufficiently disruptive

way that it would be not unconstitutional to arrest the

individual for disorderly conduct.

Spiegel's claim is thus about the enforcement of the

statute, not its facial constitutionality. “[A] written

policy that is facially constitutional, but fails to give

detailed guidance that might have averted a

11a

constitutional violation by an employee, does not itself

give rise to municipal liability.” Szabla v. City of

Brooklyn Park., 486 F.3d 385, 392 (8th Cir. 2007) (en

banc). Spiegel does not allege that Wilmette anticipated

or intended that the ordinance would be enforced to

chill

lawful,

expressive

conduct

photography. See Christensen v. Park City Mun. Corp.,

554 F.3d 1271, 1280 (10th Cir. 2009) (explaining that

enforcement of an ordinance can give rise

to Monell liability if the injury “was caused by a

straightforward enforcement of the ordinances, and not

by any additional discretionary actions by the officers”).

We do not think Spiegel has plausibly alleged an

express policy by Wilmette to enforce the disorderly

conduct ordinance unconstitutionally. He merely

alleges that officers received reports of a disturbance,

responded to the reports, and advised an apparent

provocateur to stop his surveillance. That's not

enough. See Surplus Store & Exch., Inc. v. City of

Delphi, 928 F.2d 788, 791 (7th Cir. 1991) (rejecting the

argument that a municipality was liable because it

“ha[d] a ‘policy’ of allowing or instructing its police

officers to enforce the challenged statutes”).

As for the other bases for Monell liability, Spiegel

wisely declines to argue that they exist. Two visits by

officers do not constitute a widespread policy or

practice. And the complaint makes no mention of any

Wilmette officials who might have policymaking

authority.

Spiegel also argues that Wilmette can be held liable

because the Village “ratified” its officers' actions. For a

12a

municipality to be liable on a ratification theory, the

municipality “must approve both the employee's

conduct and the basis for that conduct, i.e., the

employee's motivation.” Waters v. City of Chicago, 580

F.3d 575, 584 (7th Cir. 2009). Spiegel relies upon

briefing in which Wilmette argued that the threats to

arrest Spiegel did not violate the constitution. But

contending that no constitutional violation occurred is

far different from asserting that the actions were

appropriate even assuming the officers intended to chill

free speech. Spiegel did not state a Monell claim

against Wilmette.

3. Spiegel Has Not Stated a Claim for Intrusion Upon

Seclusion

Under Illinois law, a plaintiff may sue for an intrusion

upon seclusion. *619 Lawlor v. N. Am. Corp. of Ill.,

2012 IL 112530, ¶ 34, 368 Ill.Dec. 1, 983 N.E.2d 414. The

cause of action's elements are: “(1) the defendant

committed an unauthorized intrusion or prying into the

plaintiff's seclusion; (2) the intrusion would be highly

offensive or objectionable to a reasonable person; (3)

the matter intruded on was private; and (4) the

intrusion

caused

the

plaintiff

anguish

and

suffering.” Busse v. Motorola, Inc., 351 Ill.App.3d 67,

286 Ill.Dec. 320, 813 N.E.2d 1013, 1017 (2004). The

district court dismissed Spiegel's claim after finding

that he did not allege damages from the purported

intrusions.

Spiegel argues, simply, that damages for intrusion upon

seclusion are presumed. “Under Illinois law, a plaintiff

must prove actual injury in the form of, for example,

13a

medical care, an inability to sleep or work, or a loss of

reputation and integrity in the community in order to

recover damages for torts such as intrusion upon

seclusion. Injury is not presumed.” Schmidt v.

Ameritech Ill., 329 Ill.App.3d 1020, 263 Ill.Dec. 543, 768

N.E.2d 303, 316 (2002) (citation omitted) (emphasis

added); see also McGreal v. AT & T Corp., 892

F.Supp.2d 996, 1015 (N.D. Ill. 2012) (collecting cases in

which courts dismissed claims for intrusion upon

seclusion for failure to allege damages specifically).

Spiegel did not allege facts to support a required

element of his state law privacy claim.

4. Spiegel's Remaining Motions

Spiegel also appeals the district court's denial of his

motion for a preliminary injunction, motion to vacate

the judgment, and motion for leave to file a third

amended complaint. Because the district court correctly

found that Spiegel had not stated a claim against the

defendants, the court properly denied the motions for

injunctive relief and to vacate the judgment.

The proposed third amended complaint included claims

against three officers. The district court denied the

motion to amend on futility grounds but did not address

the addition of individual officers as defendants.

Despite that oversight, the court properly denied the

motion to amend. “When there has been an entry of

final judgment, a complaining party may amend a

complaint pursuant to Rule 15(a) only after that party

has successfully altered or amended the judgment

pursuant to Rule 59(e) or the judgment has been

vacated pursuant to Rule 60(b).” Dubicz v.

14a

Commonwealth Edison Co., 377 F.3d 787, 790 (7th Cir.

2004). Because the court entered final judgment and

denied Spiegel's motion to vacate the judgment, the

court had no jurisdiction to consider the motion to

amend. Id.

III. CONCLUSION

The district court correctly found that Spiegel did not

state constitutional or state law claims in his second

amended complaint. McClintic did not conspire with

Wilmette, and Spiegel has not identified an express

policy by Wilmette that caused a constitutional

deprivation. As to his state law privacy claim, Illinois

law requires that damages be specifically alleged.

AFFIRMED.

Footnotes

1For reasons explained below, Spiegel's motion for

leave to file a third amended complaint was untimely.

Accordingly, the few additional factual allegations

Spiegel advances in that proposed complaint are not

relevant to our analysis. Spiegel also makes several

new factual assertions in his brief. Those facts would

not change our analysis even if Spiegel had included

them in his complaint.

15a

United States District Court, N.D. Illinois, Eastern

Division.

Marshall SPIEGEL, Plaintiff,

Corrine MCCLINTIC, Village of Wilmette,

Defendants.

No. 16 C 9357

Signed 09/27/2017

Attorneys and Law Firms

John Stephen Xydakis, Law Office of John S. Xydakis,

Chicago, IL, for Plaintiff.

Eugene Edward Murphy, Jr., Murphy & Hourihane

L.L.C., Michael F. Zimmermann, Stacey Lynn Wilkins,

Tressler LLP, Chicago, IL, for Defendants.

OPINION AND ORDER

SARA L. ELLIS, United States District Judge

This case is one in a long line of many Plaintiff Marshall

Spiegel has brought arising out of his various disputes

with his condominium association and other owners

within the association. Here, Spiegel brings a § 1983

lawsuit against Defendants Corinne McClintic and the

Village of Wilmette (“Wilmette”) seeking a declaratory

judgment, injunctive relief, and damages because

Spiegel claims that McClintic and Wilmette police

officers violated his constitutional rights by seeking to

prevent him from videotaping McClintic and others in

public places. Because McClintic allegedly peered

16a

through his window, Spiegel additionally alleges that

McClintic is liable for intrusion upon seclusion.

In October 2016, Spiegel filed his first complaint against

McClintic, requesting declaratory relief and alleging a

claim for defamation. He amended that complaint,

adding a claim against Wilmette, and later moved for a

temporary restraining order and preliminary injunction

against Wilmette and McClintic. The Court denied the

motion for a temporary restraining order and

preliminary injunction because, based on the first

amended complaint, the Court could not determine a

basis for federal subject matter jurisdiction. The Court

also dismissed Spiegel’s first amended complaint

without prejudice. Spiegel then filed his second

amended complaint [14] and an amended second motion

for a preliminary injunction [36],1 which are currently

before the Court. Wilmette and McClintic both move to

dismiss the second amended complaint under Federal

Rule of Civil Procedure 12(b)(1) for lack of subject

matter jurisdiction [31], [18]. McClintic also moves to

dismiss the second amended complaint under Rule

12(b)(6) for failure to state a claim and requests

attorneys' fees [18].

Because Spiegel has sufficiently alleged his standing to

bring a claim against Wilmette, the Court denies

Wilmette’s motion to dismiss [31]. Although the Court

finds it has subject matter jurisdiction over the case,

the Court dismisses Spiegel’s claims against McClintic

for failure to plead their required elements. The Court

declines to award McClintic her attorneys' fees,

however. Finally, because the Court finds that Spiegel

17a

is unlikely to succeed on his claim against Wilmette, the

Court denies Spiegel’s motion for a preliminary

injunction [36].

BACKGROUND 2

Spiegel owns a condominium located on Sheridan Road

in Wilmette, Illinois, where he has resided for 22 years.

McClintic and her husband also own a condominium

unit located in the same building. McClintic does not

live in her unit and instead rents it to tenants.

However, she frequents the condominium building and

uses the building pool. During her visits to the

condominium building and pool, McClintic “spies on

Spiegel by peering through his window, taking pictures,

and harassing him.” Doc. 14 ¶ 7.

McClintic has also filed “numerous police reports

against Spiegel.” Id. ¶ 8. One such report occurred in

June 2016, when McClintic filed a report with the

Wilmette police claiming that while she was leaving the

condominium building, Spiegel jumped in front of her

car and took pictures. A Wilmette police officer went to

the building and discussed the complaint with Spiegel.

The officer “erupted into a tirade” and “insisted that

Spiegel had broken the law.” Id. ¶ 10. Days later, two

Wilmette detectives visited the building and “warned

Spiegel about any further problems.” Id. ¶ 12.

In October 2016, McClintic called the Wilmette police

with another complaint regarding Spiegel. Spiegel had

documented McClintic “trying to evade [a] process

server on the public sidewalk in front of the

building.” Id. ¶ 14. McClintic then told Spiegel that the

18a

Wilmette police advised her to call the police if Spiegel

took videos of her in order to have Spiegel arrested.

McClintic subsequently threatened Spiegel that he

would be arrested for videotaping her in public places.

McClintic also complained to the Wilmette police

regarding a September 2016 incident when Spiegel,

from inside his condominium, videotaped McClintic, her

husband, and another condominium owner talking at

the pool. McClintic “told the police she felt threatened

and wanted to report Spiegel for disorderly

conduct.” Id. ¶ 18. In addition, a Wilmette detective

told Spiegel that if the police received another

complaint, the detective would come to Spiegel’s house

and “ ‘execute the charges’ against him.” Id. ¶ 19.

Spiegel has also made his own complaints to the

Wilmette police regarding condominium residents and

others. However, the Wilmette police have “refused to

act on Spiegel’s claims.” Id. ¶ 20.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(1) challenges the

Court’s subject matter jurisdiction. Fed. R. Civ. P.

12(b)(1). The party asserting jurisdiction has the

burden of proof. United Phosphorus, Ltd. v. Angus

Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled

on other grounds by Minn-Chem, Inc. v. Agrium, Inc.,

683 F.3d 845 (7th Cir. 2012). The standard of review for

a Rule 12(b)(1) motion to dismiss depends on the

purpose of the motion. Apex Digital, Inc. v. Sears,

Roebuck & Co., 572 F.3d 440, 443–44 (7th Cir. 2009). If a

defendant challenges the sufficiency of the allegations

19a

regarding subject matter jurisdiction (a facial

challenge), the Court must accept all well-pleaded

factual allegations as true and draw all reasonable

inferences in the plaintiff’s favor. See id.; United

Phosphorus, 322 F.3d at 946. If, however, the defendant

denies or controverts the truth of the jurisdictional

allegations (a factual challenge), the Court may look

beyond the pleadings and view any competent proof

submitted by the parties to determine if the plaintiff

has established jurisdiction by a preponderance of the

evidence. See Apex Digital, 572 F.3d at 443–

44; Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536,

543 (7th Cir. 2006).

A motion to dismiss under Rule 12(b)(6) challenges the

sufficiency of the complaint, not its merits. Fed. R. Civ.

P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,

1520 (7th Cir. 1990). In considering a Rule

12(b)(6) motion to dismiss, the Court accepts as true all

well-pleaded facts in the plaintiff’s complaint and draws

all reasonable inferences from those facts in the

plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d

610, 614 (7th Cir. 2011). To survive a Rule

12(b)(6) motion, the complaint must not only provide

the defendant with fair notice of a claim’s basis but

must also be facially plausible. Ashcroft v. Iqbal, 556

U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed. 2d 868

(2009); see also Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007). “A

claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

20a

misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct.

1937.

ANALYSIS

In his second amended complaint, Spiegel brings one

claim against Wilmette under § 1983 requesting (1) a

declaration that videotaping or photographing while in

his residence, on common elements of the condominium

property, or on public property does not constitute

disorderly conduct, and (2) an injunction prohibiting

Wilmette from prosecuting disorderly conduct charges

based on such conduct. Spiegel alleges that Wilmette

threatens to apply state or local law, specifically

Wilmette Ordinance § 12-4.13 or Illinois statute 5/261(a)(1),4 in a way that violates his right to freedom of

speech under the First Amendment and his rights to

due process and equal protection under the Fourteenth

Amendment. Spiegel also brings a § 1983 claim against

McClintic alleging that she conspired with Wilmette

and seeking the same declaration and an injunction

against McClintic from pursuing disorderly conduct

charges. In addition, Spiegel brings one claim against

McClintic for intrusion upon seclusion requesting

compensatory and punitive damages and attorneys'

fees.

I. Wilmette’s Motion to Dismiss

Wilmette asks the Court to dismiss Spiegel’s claim

against it under Rule 12(b)(1) because Spiegel lacks

standing required for federal jurisdiction.5 A plaintiff

must establish Article III standing to bring an action in

federal court for declaratory or injunctive relief. Susan

21a

B. Anthony List v. Driehaus, ––– U.S. ––––, 134 S.Ct.

2334, 2341, 189 L.Ed.2d 246 (2014). Article III standing

requires a plaintiff to show three elements: (1) “an

injury in fact,” (2) “a causal connection between the

injury and the conduct complained of,” and (3) a

likelihood “that the injury will be redressed by a

favorable decision.” Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed. 2d 351

(1992) (citation omitted) (internal quotation marks

omitted). Wilmette argues that Spiegel has failed to

show an injury in fact.

To establish standing, a plaintiff’s injury must be “

‘concrete and particularized’ and ‘actual or imminent,

not conjectural or hypothetical.’ ” Susan B. Anthony

List, 134 S.Ct. at 2341 (quoting Lujan, 504 U.S. at 560,

112 S.Ct. 2130). An alleged “future injury may suffice if

the threatened injury is ‘certainly impending,’ or there

is a ‘substantial risk that the harm will occur.’

” Id. (quoting Clapper v. Amnesty Int'l USA, 568 U.S.

398, 414 n.5, 133 S.Ct. 1138, 1147, 1150 n.5, 185 L.Ed.2d

264 (2013)). The injury-in-fact requirement is satisfied if

a plaintiff alleges “an intention to engage in a course of

conduct arguably affected with a constitutional interest,

but proscribed by a statute, and there exists a credible

threat

prosecution

thereunder.” Id. at

2342 (quoting Babbitt v. United Farm Workers Nat'l,

442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed. 2d 895 (1979)).

It is not necessary that a plaintiff “first expose himself

to actual arrest or prosecution to be entitled to

challenge a statute that he claims deters the exercise of

his constitutional rights.” Steffel v. Thompson, 415 U.S.

452, 459, 94 S.Ct. 1209, 39 L Ed. 2d 505 (1974).

22a

However, a plaintiff does not establish jurisdiction if he

fails to allege that he has been threatened with

prosecution, that a prosecution is likely, or that a

prosecution is remotely possible. Babbitt, 442 U.S. at

298–99, 99 S.Ct. 2301. Although the threat of

prosecution may be established by the existence of a

statute, if a plaintiff’s desired conduct is “clearly

outside” the scope of that statute, the plaintiff must

show “some indication of a nontrivial probability of

prosecution” to establish standing for a preenforcement challenge to that statute. Lawson v. Hill,

368 F.3d 955, 957–58 (7th Cir. 2004) (collecting

cases); Schirmer v. Nagode, 621 F.3d 581, 586–87 (7th

Cir. 2010)(citing Lawson, 368 F.3d at 957).

Here, Spiegel has alleged an intention to engage in

“conduct arguably affected with a constitutional

interest, but proscribed by a statute.” Susan B.

Anthony List, 134 S.Ct. at 2342. Spiegel states in his

opposition to Defendants' motions to dismiss that he

“will continue to invoke his right to videotape” and

argues that the conduct is protected by the First

Amendment. Doc. 41 at 15–19. Although videotaping is

not explicitly proscribed by the Illinois disorderly

conduct statute or the Wilmette ordinance, Wilmette

officers have allegedly threatened Spiegel with criminal

prosecution for disorderly conduct if he videotapes

others in public. In addition, courts have held that

under certain circumstances, videotaping others in

public may constitute disorderly conduct under Illinois

law or provide probable cause to arrest an individual

for disorderly conduct. See Reher v. Vivo, 656 F.3d 772,

776 (7th Cir. 2011) (holding that videotaping other

23a

people in public is not illegal in Illinois but “videotaping

other people, when accompanied by other suspicious

circumstances, may constitute disorderly conduct”

(citing Graham v. Vill. of Niles, No 02 C 4405, 2003 WL

22995159, at *6 (N.D. Ill. 2003)); Graham, 2003 WL

22995159, at *6 (“Illinois courts have sustained arrests

for disorderly conduct where videotaping was

accompanied by other suspicious circumstances.”).

Spiegel has also alleged a credible threat of prosecution.

He claims that Wilmette police officers have threatened

to criminally charge him with disorderly conduct for

videotaping others in public places. Spiegel alleges that

on three occasions, Wilmette police officers visited his

condominium building in response to complaints by

McClintic about his videotaping. He alleges that during

these visits, the Wilmette police officers and detectives

“insisted that Spiegel had broken the law,” “warned

Spiegel about any further problems,” and stated that

they “would come to his house and ‘execute the charges’

against him” if they received another complaint. Doc. 14

¶¶ 10, 12, 19. Based on these allegations, which the

Court must accept as true for purposes of Wilmette’s

motion to dismiss, Spiegel faces a credible threat of

prosecution. See Vasquez v. Foxx, No. 16-cv-8854, 2016

WL 7178465, at *4 (N.D. Ill. Dec. 9, 2016) (finding that

plaintiffs had standing to bring a pre-enforcement

challenge to a statute where police department

threatened enforcement of statute if plaintiffs did not

move from their homes in a given time period); Pindak

v. Dart, No. 10 C 6237, 2011 WL 4337017, at *3 (N.D. Ill.

Sept. 14, 2011) (finding that the possibility plaintiff will

be arrested and charged is not “highly speculative”

24a

where plaintiff alleged three specific incidents with law

enforcement officers who told plaintiff his conduct was

illegal or would result in arrest).6

Wilmette argues that Spiegel’s allegations are

insufficient to show an imminent threat of criminal

charges because, to date, Spiegel has not been charged,

arrested, or prosecuted for videotaping. However, a

showing of prior enforcement is not necessary to

establish the injury-in-fact requirement in a preenforcement challenge. Steffel, 415 U.S. at 459, 94 S.Ct.

1209. The plaintiff is only required to show that he

“faces ‘a realistic danger of sustaining a direct injury as

a result of the statute’s operation or enforcement.’

” Ctr. for Individual Freedom v. Madigan, 697 F.3d

464, 473 (7th Cir. 2012) (citing Babbitt, 442 U.S. at 298,

99 S.Ct. 2301). Wilmette’s argument that Spiegel’s

claims are too speculative to establish standing ignores

Spiegel’s allegations that he has been threatened by

Wilmette police officers and detectives on three

separate occasions.

The Court finds that Spiegel has alleged an injury-infact sufficient to establish standing for federal

jurisdiction and denies Wilmette’s motion to dismiss

under Rule 12(b)(1).

II. McClintic’s Motion to Dismiss

McClintic asks the Court to dismiss Spiegel’s claims

against her under Rule 12(b)(1) for lack of federal

subject matter jurisdiction and under Rule 12(b)(6) for

failure to state a claim. The Court first considers

25a

McClintic’s 12(b)(1) motion to determine whether

jurisdiction exists.

A. Subject Matter Jurisdiction

McClintic argues that Spiegel’s § 1983 claim should be

dismissed for lack of federal subject matter jurisdiction

because Spiegel fails to allege that McClintic acted

under color of law. To state a claim for relief under §

1983, a plaintiff must establish that the defendant acted

“under color of state law.” Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed. 2d

130 (1999). However, failure to allege action under color

of law “does not deprive a district court of jurisdiction

over a § 1983 claim.” Miles v. Mirrorball, Inc., 65

Fed.Appx. 569, 570 (7th Cir. 2003) (collecting cases).

Rather, such a deficiency “simply means that the

plaintiff has failed to state a claim for which relief can

be granted.” Id. Therefore, McClintic’s argument that

Spiegel failed to allege conduct under color of law

cannot form the basis for a Rule 12(b)(1) dismissal for

lack of subject matter jurisdiction.

In her reply in support of her motion to dismiss,

McClintic further argues that Spiegel’s § 1983 claim

lacks federal subject matter jurisdiction because

Spiegel fails to allege a deprivation of a constitutional

right. McClintic argues that § 1983 and the Declaratory

Judgment Act do not on their own confer federal

jurisdiction and because Spiegel does not allege a

constitutional deprivation, there is no federal question

in this case and therefore no federal subject matter

jurisdiction.

26a

McClintic is correct that § 1983 and the Declaratory

Judgment Act do not confer federal jurisdiction.

However, a plaintiff alleging a § 1983 claim “may invoke

jurisdiction of a federal court under 28 U.S.C. § 1331,

the general federal question statue, or 28 U.S.C. §

1343(3), the jurisdictional counterpart to §

1983.” Mattingly v. Allstate Ins. Co., No. 86 C 2914,

1986 WL 12836, at *2 (N.D. Ill. Nov. 10,

1986) (citing Malak v. Associated Physicians, Inc., 784

F.2d 277, 280 n.2 (7th Cir. 1986); Haldorson v. Blair,

449 F.Supp. 1025, 1027 (D. Minn. 1978)). In his second

amended complaint, Spiegel alleges that jurisdiction

exists under § 1331.

To establish jurisdiction under § 1331, a plaintiff’s claim

“must arise under the laws of the United States and

cannot be made for the sole purpose of obtaining

jurisdiction.” Cortes v. Midway Games, Inc., No. 04 C

0510, 2004 WL 1611967, at *1 (N.D. Ill. July 16,

2004) (citing Bell v. Hood, 327 U.S. 678, 682–83, 66 S.Ct.

773, 90 L.Ed. 939 (1946)). A cause of action arises under

the laws of the United States “when the federal

question appears on the face of the well-pleaded

complaint.” Anglin v. Sears, Roebuck & Co., No. 93 C

3438, 1993 WL 437430, at *1 (N.D. Ill. Oct. 27,

1993) (citing Franchise Tax Bd. v. Constr. Laborers

Vacation Tr., 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed. 2d 420

(1983)).

Spiegel alleges throughout his complaint that his

constitutional rights under the First and Fourteenth

amendments were violated when police officers or

McClintic threatened to arrest or prosecute him for

27a

videotaping others in public places. These allegations,

which appear on the face of the complaint, raise a

federal question under the United States Constitution.

Although Spiegel’s complaint includes allegations which

are irrelevant to this federal question, his claim

regarding his constitutional right to videotape

comprises a substantial portion of his complaint.

Therefore, the Court finds that his federal question

claim is not made for the sole purpose of establishing

jurisdiction and federal subject matter jurisdiction

under § 1331 exists.7 The Court denies McClintic’s

12(b)(1) motion to dismiss.

B. Failure to State a Claim under § 1983 (Count II)

McClintic argues that Spiegel’s § 1983 claim should be

dismissed under Rule 12(b)(6) for failure to state a

claim because Spiegel does not plausibly allege that

McClintic acted under color of law and because Spiegel

fails to allege a deprivation of any constitutional right.

To state a claim for relief under § 1983, a plaintiff must

establish that the defendant acted “under color of state

law.” Am. Mfrs. Mut. Ins. Co., 526 U.S. at 49–50, 119

S.Ct. 977. Action under color of state law requires that

the defendant “be a person who may fairly be said to be

a state actor.” Id. (quoting Lugar v. Edmondson Oil

Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed. 2d 482

(1982)). “Merely private conduct, no matter how

discriminatory or wrongful,” cannot be considered

action “under color of state law.” Id.

A private citizen may be held liable under § 1983 for

acting under color of state law if the citizen conspires

28a

with a state actor. Brokaw v. Mercer County, 235 F.3d

1000, 1016 (7th Cir. 2000) (citing Bowman v. City of

Franklin, 980 F.2d 1104, 1107 (7th Cir. 1992)). “To

establish Section 1983 liability through a conspiracy

theory, a plaintiff must demonstrate that: (1) a state

official and private individual(s) reached an

understanding to deprive the plaintiff of his

constitutional rights, and (2) those individuals were

willful participants in joint activity with the State or its

agents.” Id. (quoting Fries v. Helsper, 146 F.3d 452, 457

(7th Cir. 1998)). “[I]t is not sufficient to allege that the

(private and state) defendants merely acted in concert

or with a common goal.” Tarkowski v. Robert Bartlett

Realty Co., 644 F.2d 1204, 1206 (7th Cir.

1980)(quoting Sparkman v. McFarlin, 601 F.2d 261, 268

(7th Cir. 1979)). “There must be allegations that the

defendants had directed themselves toward an

unconstitutional action by virtue of a mutual

understanding” and such allegations “must further be

supported by some factual allegations suggesting such a

‘meeting of the minds.’ ” Id. (quoting Sparkman, 601

F.2d at 268).

Spiegel alleges in his second amended complaint that

McClintic “has conspired or acted jointly with the

Village of Wilmette.” Doc. 14 at ¶ 36. However, Spiegel

does not allege facts that show McClintic and Wilmette

reached an understanding to deny Spiegel any of his

constitutional rights. Spiegel alleges that McClintic has

filed false reports against him and that, on three

occasions, Wilmette police officers came to Spiegel’s

residence in response to complaints by McClintic. But

police reports do not indicate that a private actor is

29a

conspiring with the police. See Kelley v. Myler, 149 F.3d

641, 648–49 (7th Cir. 1998) (finding the private

defendant’s complaint to police officers about plaintiff’s

conduct did not support allegation of conspiracy

between defendant and police to arrest plaintiff in

violation of her civil rights); Rodgers v. Lincoln Towing

Serv., Inc., 596 F.Supp. 13, 21 (N.D. Ill. Mar. 29, 1984) (a

“private citizen does not become a state actor just

because he reports a crime and the police rely on his

report to make an arrest,” collecting cases). Spiegel also

alleges that McClintic “stated that the Village of

Wilmette police told her that she should call them to

have Spiegel arrested” and that a Wilmette detective

“told Spiegel that if they got another complaint, [the

detective] would come to his house and ‘execute the

charges’ against him.” Id. ¶¶ 14, 19. However, the

Court cannot draw a reasonable inference that

McClintic conspired with Wilmette based on these

statements and the fact that Wilmette police responded

to McClintic’s complaints. Allegations that require

“some imagination and speculation to conclude that an

agreement existed” are insufficient. Turner v. City of

Chicago, Ill., No. 12 C 9994, 2013 WL 4052607, at *6

(N.D. Ill. Aug. 12, 2013) (finding that plaintiffs failed to

sufficiently plead a conspiracy claim because conspiracy

allegations were conclusory and threadbare and failed

to demonstrate any type of agreement); see

also Thompson v. Vill. of Monee, No. 12 C 5020, 2013

WL 3337801, at *7–8 (N.D. Ill. July 1, 2013) (dismissing

complaint against private party where plaintiff made

“only conclusory allegations regarding any agreement”

between the private party and officer).

30a

Spiegel argues that under the Supreme Court’s decision

in Lugar v. Edmondson Oil Company, an agreement or

conspiracy between the state actor and the private

party is not required to establish state action under §

1983. He asserts that under Lugar, “a private

individual need only ‘act together with’ or obtain

‘significant aid’ from a state official to be liable.” Doc. 41

at 29. However, the Supreme Court’s Lugardecision “is

limited to the particular context of prejudgment

attachment.” Lugar, 457 U.S. at 939 n.21, 102 S.Ct.

2744. Furthermore, the Seventh Circuit has not

adopted Spiegel’s interpretation of the Lugar decision

and continues to require an agreement or

understanding among the state actor and the private

actor.8 Brokaw, 235 F.3d at 1016; Tarkowski, 644 F.2d

at 1206.

Because Spiegel has failed to sufficiently allege that

McClintic acted under color of law, the Court dismisses

Spiegel’s § 1983 claim against McClintic.

C. Failure to State a Claim for Intrusion Upon

Seclusion (Count III)

McClintic also argues that the Court should dismiss

Spiegel’s claim against her for intrusion upon seclusion

for failure to state a claim.9 To state a claim for

intrusion upon seclusion under Illinois law, a plaintiff

must allege: “(1) an unauthorized intrusion or prying

into the plaintiff’s seclusion, (2) the intrusion would be

‘highly offensive or objectionable to a reasonable

person,’ (3) the matters upon which the intrusion

occurred were private, and (4) the intrusion caused

anguish and suffering.” Vega v. Chicago Park Dist., 958

31a

F.Supp.2d 943, 959 (N.D. Ill. 2013) (citing Busse v.

Motorola, Inc., 813 N.E.2d 1013, 1017, 351 Ill. App. 3d

67, 286 Ill.Dec. 320, (2004)). McClintic argues that

Spiegel has failed to allege the second, third, and fourth

elements.

Spiegel alleges that McClintic “repeatedly spied on

Spiegel by peering through his windows and loitering

around the common areas.” Doc. 14 ¶ 13. He claims that

on May 29, June 2 or 3, June 4, and September 20,

McClintic “peered into” Spiegel’s condominium or

waved at Spiegel while he was inside his

condominium. Id. “[P]eering into the windows of a

private home” is an actionable intrusion upon seclusion

under Illinois law. Benitez v. KFC Nat'l Mgmt. Co., 714

N.E.2d 1002, 1033, 305 Ill. App. 3d 1027, 239 Ill.Dec. 705

(1999) (citing Lovgren v. Citizens First Nat'l Bank, 534

N.E.2d 987, 989, 126 Ill. 2d 411, 128 Ill.Dec. 542 (1989)).

Such conduct “involves ‘highly offensive’ intrusion into

private

matters.” Vega,

958

F.Supp.2d

959 (citing Horgan v. Simmons, 704 F.Supp.2d 814, 822

(N.D. Ill. 2010)). Spiegel’s allegations that McClintic

peered into his residence are therefore sufficient to

plead the second and third elements of the intrusion

upon seclusion claim.10 However, Spiegel fails to plead

any facts in support of the fourth required element of

the claim—anguish and suffering caused by the alleged

intrusion. Spiegel merely states that McClintic’s actions

“proximately damaged” him. Doc. 14 ¶ 47. A conclusory

allegation of injury that is unsupported by facts is “not

sufficient to plausibly suggest that [a plaintiff] is

entitled to relief based on a claim of intrusion upon

seclusion.” See McGreal v. AT&T Corp., 892 F.Supp.2d

32a

996, 1015 (N.D. Ill. Sept. 24, 2012); see also Heffron v.

Green Tree Servicing, LLC, No. 15-cv-0996, 2016 WL

47915, at *6 (N.D. Ill. Jan. 5, 2016) (dismissing intrusion

upon seclusion claim for failure to state a claim and

noting plaintiff did not plausibly allege how intrusion

caused anguish and suffering); Shea v. Winnebago

County Sheriff’s Office, No. 12 CV 50201, 2014 WL

4449605, at *7 (N.D. Ill. Sept. 10, 2014) (citing failure to

include allegations regarding any anguish or suffering

resulting from the alleged intrusion as one of the

reasons plaintiff’s claim for intrusion failed).

Spiegel argues that damages are presumed for an

intrusion upon seclusion. In support of his argument,

Spiegel cites Laba v. Chicago Transit Authority, a case

in which the court declined to dismiss an intrusion upon

seclusion claim based on the fact that plaintiffs only

alleged that they suffered damages as a result of the

alleged intrusion. No. 14 C 4091, 2015 WL 3511483, at

*5 (N.D. Ill. June 2, 2015). In Laba, the court found that

it could infer “that any reasonable person could have

suffered emotional distress or embarrassment after

discovering that they were being filmed while changing

their clothes at work.” Id. However, in this case, the

nature of the alleged intrusion is significantly different

from that alleged in Laba and the Court cannot infer

that McClintic’s alleged peering into Spiegel’s

condominium caused Spiegel “anguish and suffering.”

Other cases cited by Spiegel are also distinguishable

and do not support his argument that damages are

presumed for intrusion upon seclusion.11

33a

Because Spiegel fails to allege facts in support of an

element required to state a claim for intrusion upon

seclusion, the Court dismisses Spiegel’s claim against

McClintic for intrusion upon seclusion. See McGreal,

892 F.Supp.2d at 1015 (dismissing intrusion upon

seclusion claim because plaintiff’s “unsupported

statement that she suffered injury is not sufficient to

plausibly suggest that she is entitled to relief based on

a claim of intrusion upon seclusion”).

III. McClintic’s Request for Attorneys' Fees

McClintic argues that the Court should award her

attorneys' fees under § 1988. McClintic argues that

Spiegel “ignored the law” and “pursued a course of

litigation that is clearly barred by existing precedent.”

Doc. 18 at 10–11.

A court may award prevailing defendants attorneys'

fees in a § 1983 case only if “the plaintiff’s ‘claim was

frivolous, unreasonable, or groundless, or if the plaintiff

continued to litigate after it clearly became so.’

” Cooney v. Casady, 735 F.3d 514, 521 (7th Cir.

2013) (quoting Christiansburg Garment Co. v. EEOC,

434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed. 2d 648 (1978)).

A suit may be frivolous if the plaintiff’s claims were

“clearly foreclosed” by case law. Hamilton v. Daley, 777

F.2d 1207, 1213 (7th Cir. 1985) (upholding award of fees

based on district court’s determination that suit was

frivolous where plaintiff’s claims were clearly

foreclosed by case law regarding prosecutorial

immunity).

34a

McClintic argues that Spiegel’s claim is frivolous

because “basic case law and precedent shows that a

private individual does not act under color of law by

making a police report.” Doc. 18 at 10. However,

Spiegel’s § 1983 claim against McClintic alleges that

McClintic conspired or acted jointly with the Wilmette

officers. As discussed in Section II(B), conspiracy with

a state actor is a well-recognized basis for § 1983

liability against a private citizen. See Brokaw, 235 F.3d

at 1016. Although Spiegel failed to plead sufficient facts

in support of his conspiracy allegation, his claim was not

clearly foreclosed by case law. The Court denies

McClintic’s request for attorneys' fees.

IV. Spiegel’s Motion for Preliminary Injunction

Spiegel moves for a preliminary injunction against

Wilmette and McClintic. Because the Court dismisses

Spiegel’s § 1983 claim against McClintic for failure to

state a claim, it need only consider Spiegel’s motion for

a preliminary injunction against Wilmette.

The party seeking a preliminary injunction must first

show: (1) it is reasonably likely to succeed on the

merits, (2) it will suffer irreparable harm absent an

injunction before final resolution of its claims, and (3) it

has no adequate remedy at law. Girl Scouts of Manitou

Council, Inc. v. Girl Scouts of the U.S.A., Inc., 549 F.3d

1079, 1086 (7th Cir. 2008). If the moving party fails to

demonstrate any of these three requirements, the

Court will deny the motion. Id. But if the moving party

meets this threshold showing, the Court attempts to

“minimize the cost of potential error” by “balanc[ing]

the nature and degree of the plaintiff's injury, the

35a

likelihood of prevailing at trial, the possible injury to

the defendant if the injunction is granted, and the wild

card that is the ‘public interest.’ ” Id. “Specifically, the

court weighs the irreparable harm that the moving

party would endure without the protection of the

preliminary injunction against any irreparable harm

the nonmoving party would suffer if the court were to

grant the requested relief.” Id. (citing Abbott Labs. v

Mead Johnson & Co., 971 F.2d 6, 11–12 (7th Cir. 1992)).

The Seventh Circuit has described this balancing test

as a “sliding scale” in which “[t]he more likely the

plaintiff is to win, the less heavily need the balance of

harms weigh in his favor; the less likely he is to win, the

more need it weigh in his favor.” Id. (quoting Roland

Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th

Cir. 1984)).

The Court first considers whether Spiegel is reasonably

likely to succeed on the merits of his claim against

Wilmette. “[T]he threshold for demonstrating a

likelihood of success on the merits is low,” with Spiegel

needing only to demonstrate that his chances of

prevailing are “better than negligible.” D.U. v.

Rhoades, 825 F.3d 331, 338 (7th Cir. 2016). Spiegel

brings a § 1983 claim against Wilmette for deprivation

of his First and Fourteenth amendment rights. A

municipality can be held liable under § 1983 on three

particular grounds: “(1) an express policy that would

cause a constitutional deprivation if enforced; (2) a

common practice that is so widespread and well-settled

that it constitutes a custom or usage with the force of

law even though it is not authorized by written law or

express policy; or (3) an allegation that a person with

36a

final policy-making authority caused a constitutional

injury.” Rossi v. City of Chicago, 790 F.3d 729, 737 (7th

Cir. 2015) (citing Lawrence v. Kenosha County, 391

F.3d 837, 844 (7th Cir. 2004)). “[A] municipality cannot

be held liable solely on the grounds of respondeat

superior.” Id. (citing Monell v. Dep't of Soc. Servs. of

New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d

611 (1978)); see alsoGrieveson v. Anderson, 538 F.3d

763, 771 (7th Cir. 2008) (“Government entities cannot be

held liable for the unconstitutional acts of their

employees unless those acts were carried out pursuant

to an official custom or policy.” (citing Pourghoraishi v.

Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006)). A

municipality cannot be held liable under § 1983 where a

plaintiff has not alleged an unconstitutional custom or

policy. Hosea v. Slaughter, 669 Fed.Appx. 791, 792 (7th

Cir. 2016).

Spiegel does not assert any facts or theories to support

municipal liability for his alleged constitutional

deprivations. He seeks to hold Wilmette liable for the

conduct of its individual police officers and detectives

without alleging that the acts were carried out

pursuant to an express policy or widespread practice or

caused by a person with final policy-making authority.

Although Spiegel alleges three incidents in which

Wilmette officers and detectives threatened to arrest

him for videotaping, he does not allege that these

incidents were the result of a widespread practice. The

Court cannot conclude from these three incidents alone

that Wilmette police have a practice “so well-settled

that it constitutes a custom or usage with the force of

law.” See Grieveson, 538 F.3d at 774 (plaintiff’s evidence

37a

of four incidents that he alone experienced failed to

meet the test of a widespread unconstitutional practice

so well settled that it constitutes a custom or usage

with the force of law). Spiegel argues that “Wilmette is

liable for [sic] because Spiegel’s constitutional rights

were ‘directly injured by an ordinance or policy’ ” and

“for acquiescing, approving or ratifying the police

officer’s acts.” Doc. 41 at 34. However, Spiegel does not

allege facts to support these conclusory statements.

Conclusory allegations are not enough to establish §

1983 liability against a municipality. See Mikolon v.

City of Chicago, No. 14 CV 1852, 2014 WL 7005257, at

*4–5 (N.D. Ill. Dec. 11, 2014). As a result, the Court

concludes that Spiegel has not shown a likelihood of

success on his § 1983 claim against Wilmette.

Because failure to meet one of the three threshold

requirements for a preliminary injunction results in a

denial of the motion, the Court need not consider the

remaining requirements. See Girl Scouts of Manitou

Council, Inc., 549 F.3d at 1086. The Court denies

Spiegel’s motion for a preliminary injunction.

V. Failure to State a Claim against Wilmette

Wilmette has not moved to dismiss Spiegel’s claims

under Rule 12(b)(6). However, for the reasons stated

above, the Court finds that Spiegel’s second amended

complaint fails to state a § 1983 claim against Wilmette

because he does not sufficiently plead municipal

liability. See Section IV. “A district court cannot sua

sponte dismiss a complaint on the merits without

notifying the parties and allowing the plaintiff an

opportunity either to cure the defect in the complaint or

38a

at least a chance to defend the merits of his

claim.” Swanigan v. City of Chicago, 775 F.3d 953, 959

(7th Cir. 2015). Thus, the Court will allow Spiegel file a

response as to why the Court should not dismiss his

claim against Wilmette for failure to state a claim.

Spiegel’s response is limited to three pages and must be

filed by October 18, 2017. The Court sets a status date

for November 8, 2017 at 9:30 a.m. for a ruling on

whether the Court should dismiss Spiegel’s claim

against Wilmette.

CONCLUSION

For the foregoing reasons, the Court denies Wilmette’s

motion to dismiss [31], grants in part McClintic’s motion

to dismiss [18], denies McClintic’s request for

attorneys' fees [18], and denies Spiegel’s motion for

preliminary injunction [36]. The Court dismisses

Spiegel’s claims against McClintic without prejudice.

The Court allows Spiegel to respond as to why the

Court should not dismiss his claim against Wilmette for

failure to state a claim. The Court sets a status date for

November 8, 2017 at 9:30 a.m. for ruling.

All Citations

Not Reported in Fed. Supp., 2017 WL 4283727

Footnotes

1Spiegel also moved for a temporary restraining order.

However, on February 8, 2017, Spiegel withdrew the

motion for a temporary restraining order.

2The facts in the background section are taken from

Spiegel’s second amended complaint and are presumed

39a

true for the purpose of resolving Defendants' motions

to dismiss. See Virnich v. Vorwald, 664 F.3d 206, 212

(7th Cir. 2011); Local 15, Int'l Bhd. of Elec. Workers,

AFL-CIO v. Exelon Corp., 495 F.3d 779, 782 (7th Cir.

2007).

3The Village of Wilmette Code of Ordinances § 12-4.1

states: “It is unlawful for any person to knowingly do

any act in such unreasonable manner as to alarm or

disturb another and to provoke a breach of the peace in

the village. The causing or making of any unnecessary

loud noise and shouting or yelling is considered

disorderly conduct.” Wilmette, Ill., Code of Ordinances

§ 12-4.1.

4Section 5/26-1(a)(1) of the Illinois statutes states: “A

person commits disorderly conduct when he or she

knowingly [ ] [d]oes any act in such unreasonable

manner as to alarm or disturb another and to provoke a

breach of the peace.” 720 Ill. Comp. Stat. 5/26-1(a).

5In his opposition to Defendants' motions to dismiss,

Spiegel argues that Wilmette’s Rule 12(b)(1) motion

should be treated as a Rule 12(b)(6) motion because it is

an indirect attack on the merits of Spiegel’s complaint.

However, Wilmette’s 12(b)(1) motion challenges

Spiegel’s Article III standing to bring a claim in federal

court, specifically whether he has established injury-infact. A challenge to Article III standing is properly

reviewed under Rule 12(b)(1). Smith v. City of Chicago,

143 F.Supp.3d 741, 747 n.1 (N.D. Ill. Nov. 9, 2015).

6Because courts have held that videotaping others in

public, in and of itself, is not illegal in Illinois, Reher,

40a

656 F.3d at 776, Spiegel’s desired conduct could be

considered “clearly outside” the scope of the statute.

The Court finds that the threat of prosecution Spiegel

faces is also sufficient to show a “nontrivial probability

of prosecution,” which is required for standing if

Spiegel’s desired conduct is “clearly outside” the scope

of the statute at issue. Lawson, 368 F.3d at 957–

58; Schirmer, 621 F.3d at 586–87 (citing Lawson, 368

F.3d at 957).

7This finding also defeats McClintic’s argument that

Spiegel’s second amended complaint should be

dismissed because it is “basically unchanged” from the

first amended complaint, which the Court dismissed for

lack of subject matter jurisdiction. Doc. 18 at 4.

Spiegel’s first amended complaint alleged a count for

declaratory judgment and injunctive relief without

sufficiently identifying an independent basis for federal

subject matter jurisdiction. Although similar to his first

amended complaint, Spiegel’s second amended

complaint identifies that his requests for declaratory

and injunctive relief are based on a § 1983 claim for a

violation of his constitutional rights. Because Spiegel

has identified a basis for federal jurisdiction, he has

addressed the deficiency that caused the dismissal of

his first amended complaint. Therefore, the Court will

not dismiss the second amended complaint for lack of

subject matter jurisdiction solely based on the fact that

it is similar to the first amended complaint.

8Other cases cited by Spiegel contradict his position

that a conspiracy is not required to establish state

action. In Greco v. Guss, the court found that the

41a

private defendants acted under color of law based on

evidence that they conspired with a deputy sheriff. 775

F.2d 161, 169 (7th Cir. 1985). In Latosky v. Strunc, the

court ruled that the plaintiff’s claim that a private

defendant acted under color of law by conspiring with

the police could survive summary judgment based on

evidence that the police acted in concert with and at the

direction of the plaintiff. No. 8-C-771, 2009 WL 1073680,

at *8–10 (E.D. Wisc. Apr. 21, 2009).

9In his second amended complaint, Spiegel asserts that

the Court has supplemental jurisdiction over this state

law claim against McClintic under § 1367(a). Section

1367(a) permits supplemental jurisdiction over all

claims that are “so related” to and “form the same case

or controversy” with the claims over which original

jurisdiction exists. 28 U.S.C. § 1367(a). Under §

1367 supplemental jurisdiction extends to “claims that

involve the joinder or intervention of additional

parties.” Id. Claims form the same case or controversy

for purposes of supplemental jurisdiction when they

“derive from a common nucleus of operative

facts.” Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir.

1995) (internal citations omitted). “A loose factual

connection between the claims is generally

sufficient.” Id. Although the Court dismisses Spiegel’s

federal claim against McClintic for failure to state a

claim, the Court retains supplemental jurisdiction over

the state law claim against McClintic based on Spiegel’s

federal claim against Wilmette. Spiegel argues that he

videotapes McClintic to document and protect himself

from McClintic’s unlawful conduct. Therefore, his

allegations that McClintic intrudes upon his seclusion

42a

have a loose factual connection to his federal claim

against Wilmette regarding his right to videotape

others in public.

10Spiegel also alleges that McClintic is liable for

intrusion upon seclusion based on her alleged false

police reports. However, the basis of the tort of

intrusion upon seclusion is the act of offensively prying

into the private domain of another, “not publication or

publicity.” Mlynek v. Household Fin. Corp., No. 00 C

2998, 2000 WL 1310666, at *3 (N.D. Ill. Sept. 13,

2000)(citing Lovgren, 128 Ill.Dec. 542, 534 N.E.2d at

989). According to the facts alleged in the second

amended complaint, only one of McClintic’s alleged

police reports occurred as a result of an offensive

prying into Spiegel’s private domain (the September

2016 report). The other police reports allegedly

occurred based on incidents that occurred in public (in

front of her car, on the sidewalk, and at a public

meeting). Therefore, the Court does not consider the

alleged conduct related to these police reports as

intrusion upon seclusion.

Spiegel argues that the decisions in Vega v. Chicago

Park District and Webb v. CBS Broadcasting

Inc. support his argument that damages are presumed.

However, in Vega, the court stated that the anguish

and suffering element of the intrusion claim was not

contested by the parties. Vega, 958 F.Supp.2d at

959 (“[O]nly the second and third elements are

contested.”). In Webb, the court found that the plaintiffs

did allege harm resulting from the intrusion. Webb v.

CBS Broad. Inc., No. 08 C 6241, 2009 WL 1285836, at

43a

*1, 3 (N.D. Ill. May 7, 2009) (“[plaintiffs] claim that the

actions of CBS caused them ‘severe emotional distress’

and ‘public humiliation’ ” and plaintiffs “alleged that

they were harmed by the acts of videotaping itself”).

44a

United States Court of Appeals, Seventh Circuit.

Marshall SPIEGEL, Plaintiff-Appellant,

Corrine MCCLINTIC and Village of Wilmette,

Defendants-Appellees.

No. 18-1070

3/19/2019

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division. No. 16 C

9357 — Sara L. Ellis,

Ellis Judge.

Before Bauer, Kanne, and Brennan, Circuit Judges.

ORDER

On consideration of the petition for rehearing and

rehearing en banc, no judge in active service has

requested a vote on the petition for rehearing en banc

and all members of the original panel have voted to

deny rehearing. It is, therefore, ORDERED that

rehearing and rehearing en banc are DENIED.

DENIED

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