Sroga v. Reyes et al

Filing 28

MEMORANDUM Opinion and Order. Signed by the Honorable Sharon Johnson Coleman on 12/30/2015: For the reasons set out in the Memorandum Opinion and Order, this Court grants defendants' Motion to Dismiss 14 and dismisses the Complaint in its entirety. Civil case terminated. Mailed notice(air, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEVIN SROGA,

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Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendant.

Case No. 14 cv 8316
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
On October 22, 2014, plaintiff, Kevin Sroga, filed an eleven Count pro se Complaint pursuant
to 42 U.S.C. §1983 stemming from his arrest on October 21, 2012, and conviction by a jury on
September 3, 2014, of one count of displaying or affixing to a vehicle any license plate not
authorized by law for use on such vehicle, in violation of 625 ILCS 5/4-104(a)(4). Defendants jointly
move to dismiss the Complaint for failure to state a claim and because several of the claims are
untimely [14]. Despite this Court having given Sroga several opportunities over a six-month period
to respond to defendants’ motion, no response has been filed. This Court grants the motion to
dismiss for the reasons that follow.
Background
Plaintiff, Kevin Sroga, asserts that defendant Chicago Police Officers Reyes, Cecchin,
Mendez, and Sgt. John Doe, violated his Fourth Amendment and Fourteenth Amendment
constitutional rights by falsely claiming he was parked on a public sidewalk, causing his arrest for
violating 625 ILCS 5/4-104(a)(4). Sroga also alleges that in the course of his arrest, defendant
Officer Reyes applied the handcuffs too tightly, causing pain and extreme discomfort. Sroga further
alleges that the defendant police officers falsified police reports and provided false testimony in his

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criminal proceedings, which resulted in his conviction. He seeks to hold the City of Chicago liable
for the officers’ conduct.
Legal Standard
In order to survive dismissal under Rule 12(b)(6), a complaint need only provide “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
“While specific facts are not necessary, the complaint must give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.” Olson v. Champaign Cnty., 784 F.3d 1093, 10981099 (7th Cir. 2015) (internal citations omitted). The allegations in the complaint must state a
plausible claim for relief with factual allegations sufficient to raise the right to relief above the
speculative level. Id. at 1099 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955,
167 L. Ed. 2d 929 (2007)). When considering a motion to dismiss, the court accepts as true all wellpleaded allegations, Twombly, 550 U.S. at 555, and draws all reasonable inferences in favor of the
nonmoving party. Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007).
A plaintiff may plead himself out of court by including factual allegations that establish that
the plaintiff is not entitled to relief as a matter of law. O'Gorman v. City of Chi., 777 F.3d 885, 889 (7th
Cir. 2015). “Thus, although a plaintiff need not anticipate or overcome affirmative defenses such as
those based on the statute of limitations, if a plaintiff alleges facts sufficient to establish a statute of
limitations defense, the district court may dismiss the complaint on that ground.” Id. (citing Cancer
Fndtn, Inc. v. Carberus Capital Management, LP, 559 F.3d 671, 674-75 (7th Cir. 2009)).
Discussion
Defendants move to dismiss the Fourth Amendment claims for false arrest (Count I),
unlawful search and seizure (Count II), excessive force (Count IV), and the dependent claims of
conspiracy (Count III) and failure to intervene (Count VII) as well as the state law claim of
intentional infliction of emotional distress (Count VIII) because they are untimely. Defendants
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move to dismiss the remaining counts for due process violations (Count II), malicious prosecution
(Count V), supervisor liability (Count VI), and the municipal liability claims (Counts IX-XI) for
failure to state a claim.
1. Statute of Limitations
Defendants argue that Sroga has pled all the facts necessary to establish a statute of
limitations defense for all of Sroga’s Fourth Amendment claims. The statute of limitations for §
1983 actions is based on state law, which is two years in Illinois. Moore v. Burge, 771 F.3d 444, 446
(7th Cir. 2014). A §1983 action accrues when the plaintiff “knows or has reasons to know that his
constitutional rights have been violated.” Serino v. Hensley, 735 F.3d 588, 591 (7th Cir. 2013). Claims
for excessive force and unlawful search and seizure accrue immediately at the time of the alleged act.
Evan v. Poskon, 603 F.3d 362, 363 (7th Cir. 2010); Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865,
104 L. Ed. 2d 443 (1989). Thus, Sroga’s claims for excessive force and unlawful search and seizure
of his vehicle accrued on October 21, 2012. Sroga did not file the instant Complaint until October
22, 2014, more than two years from the date of his arrest. Although one day late may seem
inconsequential, the Court is entitled to strict compliance with the rules especially where the plaintiff
has been given more than one opportunity to respond to the motion to dismiss and fails to do so.
Accordingly, this Court dismisses with prejudice Counts II and IV as untimely.
Defendants also assert that Sroga’s false arrest claim is untimely. As with other Fourth
Amendment claims brought under §1983 the statute of limitations is two years. See Moore, 771 F.3d
at 446. For false arrest claims, the action accrues “‘at the time the claimant becomes detained
pursuant to legal process’—that is, when the arrestee is bound over by a magistrate or arraigned on
charges.” Serino, 735 F.3d at 591 (quoting Wallace v. Kato, 549 U.S. 384, 397, 127 S. Ct. 1091, 166 L.
Ed. 2d 973 (2007). As stated above, the incident occurred on October 21, 2012, although it appears

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Sroga’s initial appearance before a judge was not until October 25, 2012. See Dkt. 14-1, Ex. 1 at 2.
Accordingly, his false arrest claim filed October 22, 2014, is timely.
However, Sroga’s false arrest claim must be dismissed because precedent precludes him
from bringing this false arrest claim. See Heck v. Humphrey, 512 U.S. 477, 486, 114 S. Ct. 2364, 129 L.
Ed. 2d 383 (1994). Heck bars a lawsuit under section 1983 where a judgment in favor of the plaintiff
necessarily would imply the invalidity of his criminal conviction, unless the criminal conviction has
been vacated. Id. at 487; Skinner v. Switzer, 131 S. Ct. 1289, 1298, 179 L. Ed. 2d 233 (2011).
Ordinarily a false arrest claim does not imply the invalidity of the conviction and thus does not
implicate Heck as a bar to suit under § 1983. However, where, as here, a plaintiff’s false arrest claim
is based on “allegations that are inconsistent with his conviction’s having been valid, Heck kicks in
and bars his civil suit.” Gordon v. Miller, 528 Fed.Appx. 673, 674 (7th Cir. 2013) (internal quotation
marks omitted); see also Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003); Mehta v. Vill. of
Bolingbrook, No. 12 C 6216, 2014 WL 7450304, at *5 (N.D. Ill. Dec. 29, 2014) (Kennelly, J.). Sroga
alleges that the very basis for the charge pursuant to 625 ILCS 5/4-104(a)(4) is invalid. Section 5/4104(a)(4) provides that it is a violation for “[a] person to display or affix to a vehicle any certificate
of title, manufacturers statement of origin, salvage certificate, junking certificate, display certificate,
temporary registration permit, registration card, license plate or registration sticker not authorized by
law for use on such vehicle”. Because Sroga claims that the vehicle was his and parked on private
property, the allegations in the complaint challenge the validity of the conviction. Since his
conviction has not been vacated, Heck bars Sroga’s false arrest claim.
Dismissal of Counts I, II, IV, requires dismissal of the derivative Counts III, VI, VII for the
reasons set forth above.
Sroga’s state law claim for intentional infliction of emotional distress in Count X is also timebarred. Such claims carry a one-year statute of limitations. 745 ILCS 10/8-101. Therefore, Sroga had
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one year from the date of his arrest on October 21, 2012, in which to file a complaint. The
complaint was filed on October 22, 2014. Accordingly, Count X is untimely and dismissed with
prejudice.
2. Failure to State a Claim
Defendants argue that the remainder of the complaint should be dismissed for failure to
state a claim upon which relief can be granted. In Count II, Sroga asserts a Fourteenth Amendment
due process violation based on allegations that defendant officers falsified police reports and their
testimony at trial. Count V alleges a state law claim of malicious prosecution against defendant
officers Reyes and Cecchin. Counts IX, X, and XI assert municipal liability against the City of
Chicago for failure to train, supervise and discipline its police officers, respondeat superior, and
indemnification. The Court will address each count in turn.
With respect to Count II, the fabrication or falsification of evidence only violates due
process if it results in a wrongful conviction. Bianchi v. McQueen, No. 12 C 0364, 2014 WL 700628, at
*11 (N.D. Ill., Feb. 24, 2014) (discussing Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012), and
Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014), and their effect on the formerly settled rule that
evidence fabrication does not state a cognizable due process claim). Thus, in order for Sroga to state
a claim for a due process violation based on the fabrication of evidence by police, his conviction
must be reversed or vacated. “Short of that, an evidence fabrication claim is, in essence, a claim of
malicious prosecution (i.e., a claim that the plaintiff was arrested and prosecuted without probable
cause), which, in Illinois, must be brought pursuant to state law.” Bianchi, 2014 WL 700628, at *11.
In Count V, Sroga claims state law malicious prosecution. However, as the Complaint
alleges, Sroga’s jury trial resulted in a finding of guilty. To state a claim for malicious prosecution,
Sroga must allege that the criminal proceedings terminated in his favor. See Hurlbert v. Charles, 238 Ill.
2d 248, 938 N.E.2d 507, 512, 345 Ill. Dec. 68 (Ill. 2010); Mosley v. City of Chicago, 614 F.3d 391, 399
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(7th Cir. 2010) (applying Illinois law). Since Sroga cannot allege that the criminal proceedings
terminated in his favor, he fails to state a claim for malicious prosecution.
Counts IX, X, and XI, assert claims against the City of Chicago for municipal liability,
respondeat superior and indemnification. To establish liability for the City of Chicago, Sroga must
allege that: (1) he suffered a deprivation of a federal right; (2) as a result of either an express
municipal policy, widespread custom, or deliberate act of a decision-maker with final policy-making
authority for the City; which (3) was the proximate cause of his injury. See Monell v. New York City
Department of Social Services, 436 U.S. 658, 690-91, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Ienco v. City
of Chicago, 286 F.3d 994, 998 (7th Cir. 2002). In the Complaint before the Court, Sroga’s allegations
are bare assertions that the City failed to monitor, train, and supervise its officers. See Dkt. 8 at ¶¶
74-79. Beyond the fact of the single incident of which Sroga complains, his arrest and subsequent
prosecution, there are no facts indicating a widespread policy or practice in circumstances such as
these. “Ordinarily, one incident is not sufficient to establish a custom that can give rise to Monell
liability.” Williams v. Heavener, 217 F.3d 529, 532 (7th Cir. 2000). Thus, this Court finds the
Complaint fails to state a claim for municipal liability and Count IX is dismissed. Count X is also
dismissed because the doctrine of respondeat superior is not available to a plaintiff in a section 1983
suit. West by & Through Norris v. Waymire, 114 F.3d 646, 649 (7th Cir. 1997) (citing, e.g., Board of
County Commissioners v. Brown, 137 L. Ed. 2d 626, 117 S. Ct. 1382, 1388 (1997)).
This Court having dismissed Counts I-X of the Complaint, Count XI against the City of
Chicago must also be dismissed without prejudice because there is no claim that can form the basis
of the City’s duty to indemnify under 745 ILCS 10/9-102.

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Conclusion
Based on the foregoing, this Court grants defendants’ Motion to Dismiss [14] and dismisses
the Complaint in its entirety. Civil case terminated.
IT IS SO ORDERED.
Date: 12/30/2015

Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge

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