Sroga v. Hondzinski et al
Filing
118
MEMORANDUM OPINION AND ORDER: For the reasons stated in the attached order, Defendant Officer's Motion to Dismiss Count I is denied. The City's Motion to Dismiss Count III is granted. Count III is dismissed with prejudice. Enter Memorandum Opinion and Order. Defendants to answer or otherwise plead on or before 7/20/18. Status hearing set for 8/1/18 at 09:00 AM. Signed by the Honorable Harry D. Leinenweber on 6/21/2018:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEVIN SROGA,
Plaintiff,
Case No. 16 C 5796
v.
Judge Harry D. Leinenweber
JENNIFER HONDZINSKI, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
The
Plaintiff,
a
“prolific
civil
litigant,”
originally
filed an eleven-count pro se Complaint against certain Chicago
police, certain sanitation workers, and a Monell claim against
the City itself.
In a lengthy Memorandum Opinion, the Court
exhaustively recounted the facts pled in the original Complaint.
The
Opinion
including
dismissed
the
Monell
without
claim.
prejudice
Because
most
the
of
part
the
of
case
the
case
remaining included an excessive force case against certain of
the
Defendant
Officers,
represent Plaintiff.
the
Court
appointed
an
attorney
to
This resulted in a three-count Amended
Complaint: Count I against individual city police officers for
the
illegal
seizure
of
his
motor
vehicle;
Count
II
against
certain city police officers for excessive force; and Count III
against
the
City
of
Chicago
under
Monell.
The
individual
officers have moved to dismiss Count I and the City of Chicago
has moved to dismiss Count III.
For the reasons stated herein
the Court denies the Motion to Dismiss Count I but dismisses
Count III with prejudice.
I.
BACKGROUND
Since the Court presumes familiarity with the facts as set
forth in the Court’s previous opinion, the Court will limit the
facts to the bare minimum.
On June 18, 2014, the Plaintiff’s
vehicle, a seventeen-year-old Ford Crown Victoria, was parked on
a Chicago street in the vicinity of 1240 N. Homan Avenue.
car
did
not
registration
have
license
renewal
was
plates
on
hold
comply with emissions testing.
because,
for
as
it
Plaintiff’s
turned
The
out,
failure
to
In lieu of license plates the
Plaintiff had affixed on the inside of a rear window a Seven-Day
Permit issued by the Illinois Secretary of State.
On
Officers
the
morning
made
Confidential
a
VIN
tow
of
June
18,
request
Check
after
2014,
for
one
of
Plaintiff’s
observing
license plates and with the VIN covered.
the
the
Defendant
vehicle
vehicle
for
a
without
A Confidential VIN
Check is a procedure utilized by the Chicago Police “to verify
that the vehicle subject to the check has (1) a VIN number and
(2) verify that essential parts are not stolen.”
Complaint, para. 26.)
(Original
A tow truck was dispatched in response to
the Confidential VIN Check request.
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At noon, when Plaintiff
arrived at the scene, he found a tow truck parked in front of
his vehicle preparing to tow it.
vehicle not be towed.
Plaintiff requested that the
A short time later a city police vehicle
arrived at the scene and was parked so as to prevent him from
moving his car.
tow
operator
Plaintiff’s
vehicle.
to
One of the Defendant Officers instructed the
wrap
vehicle
his
and
tow
cable
instructed
Plaintiff refused.
around
the
Plaintiff
to
front
exit
of
his
Because his vehicle was locked, an
officer broke the rear passenger-side window and unlocked the
car.
The officers then proceeded forcibly to remove Plaintiff
from the vehicle.
the
police
He was arrested, handcuffed and removed to
station.
Neither
the
original
nor
the
Amended
Complaint expressly alleges that the car was actually towed;
nevertheless it is clear that the City took possession of the
vehicle.
The Court previously ruled that Defendant Officers had
probable cause to arrest Plaintiff.
II.
MOTION TO DISMISS BY INDIVIDUAL DEFENDANTS
Plaintiff admits that the VIN was covered and not readable
from outside the vehicle.
He, however, denies that the vehicle
was
he
not
licensed
because
had
affixed
a
temporary
permit
issued by the Secretary of State to the window of his car.
For
this reason he denies that the vehicle was in violation of the
law
and
towable.
The
Defendant
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Officers
argue
that
the
Complaint does not allege that the temporary license was valid
and therefore the car was towable as part of the Confidential
VIN check.
Plaintiff argues that the Confidential VIN Check is
unconstitutional because there is no authority to tow a vehicle
even if it had an obscured VIN and was not licensed.
He cites
Gable v. City of Chicago, No. 97 C 4872, 2001 WL 290607 (N.D.
Ill. Mar. 20, 2001), which lists a number of bases for towing,
including abandonment but, according to Plaintiff, none apply to
this case.
Defendant
Officers
list
three
statutory
provisions,
625
ILCS 5/4-103(a)(2)-(3), 625 ILCS 5/3-413(a)-(b), and 625 ILCS
5/3-403 which they claim justifies the towing of the vehicle.
625
ILCS
5/4-103(a)(2)-(3)
makes
it
illegal
(1)
“to
remove,
alter, deface, destroy, falsify or forge” a VIN of a vehicle;
(2) and “to knowingly conceal or misrepresent the identity of a
vehicle.”
625 ILCS 5/3-413(a)-(b) requires license plates to be
attached to the vehicle.
permits
for
vehicles
625 ILCS 5/3-403 limits short-term
suspended
under
the
Vehicle
Emission
Inspection Law to use to obtain repairs in order to bring the
vehicle into compliance and to travel to and from a vehicle
inspection station.
Plaintiff argues that none of these statutory provisions
apply.
There is nothing in the record to indicate that the VIN
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had been removed, altered, defaced, falsified, or forged and the
mere
fact
Plaintiff
that
there
admits,
“concealing.”
on
was
the
some
temporary
windshield
obstruction,
could
not
be
which
considered
Plaintiff also contests the applicability of the
licensure requirement because the car had a temporary permit
which excuses it from having to have valid licenses attached in
the
statutory
manner.
Plaintiff
denies
that
his
claim
has
anything to do with the temporary permit and therefore 625 ILCS
5/3-403
has
no
relevance.
Defendant
Officers
respond
by
asserting that nowhere in the Complaint is it alleged that the
temporary permit was valid.
The Court believes Plaintiff has the better of the argument
on Count I.
The posture of the case is on a motion to dismiss,
not for summary judgment.
It appears to the Court that the two
statutory provisions relied upon by Defendant Officers are at
best arguably applicable under a rather strained interpretation
of the facts alleged.
If, as Plaintiff alleges, the obstruction
resulted from the placement of a parking receipt it would be
hard to argue that this was an attempt at concealing.
With
respect to the temporary permit, this is notice pleading and an
allegation the car had a temporary permit affixed to the window
would be sufficient to put Defendant Officers on notice that
Plaintiff was relying on a valid permit.
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It may turn out that
the permit was indeed not valid but this is a question of fact.
The Motion to Dismiss Count I is denied.
III.
The
THE MOTION TO DISMISS THE MONELL COUNT
Court
dismissed
the
Monell
count
of
the
original
Complaint on the ground that eight instances of the city towing
Plaintiff’s
insufficient
widespread
vehicles
to
over
place
pattern
of
the
a
more
City
than
wrongful
on
ten-year
notice
conduct.
of
period
a
was
pervasive,
They
were
“too
scattershot” to raise such an inference, citing Latuszkin v.
City of Chicago, 250 F.3d 502, 505 (7th Cir. 2001).
Plaintiff
has in his Amended Complaint attempted to cure this deficiency
by removing the time element and by alleging that the police
have used the Confidential VIN Check for more than twenty years.
This is a complete change in Plaintiff’s theory which was
originally that the City police were targeting his vehicles in
order
to
harass
him.
(Original
Complaint,
para.
25.)
The
resulting claim now is that the City has a policy of performing
Confidential VIN checks when it finds vehicles parked on the
street
without
license
plates
and
with
Plaintiff states is unconstitutional.
obscured
VINs,
which
However, the purpose of
this policy, as the Court stated earlier, is twofold:
(1) to
determine ownership of the vehicle, and (2) to determine whether
the vehicle or part thereof was stolen.
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Plaintiff takes issue
with the constitutionality of this policy which is the basis for
his Monell claim.
He however cites no authority indicating that
this procedure is in fact unconstitutional.
why it would be.
It is hard to see
How can ownership be determined when police
encounter a locked vehicle parked in a public street without
license
plates
and
an
facility to open it.
obscured
VIN
without
towing
it
to
a
Failure to license a vehicle or to operate
a vehicle without licenses is a violation of the State Motor
Vehicle Code 625 ILCS 5/4-103(a)(2)-(3).
It is difficult, if
not impossible, to write a ticket without ownership information.
Moreover a parked vehicle without license plates and with an
obscured VIN number could reasonably be assumed to be abandoned.
At most this could be argued that it is a violation of a city
ordinance, which does not by itself raise constitutional issues.
Here Plaintiff admits on eight previous occasions his vehicle
was
towed
obscured
because
and
he
without
parked
it
license
on
the
plates.
street
If
with
nothing
the
else,
VIN
it
appears that Plaintiff is a scofflaw.
However, Plaintiff argues that on this occasion his vehicle
was, in fact, licensed:
he had obtained a temporary permit from
the Secretary of State which meant that, while the vehicle had
an obscured VIN number, it was legally licensed.
While this may
be true, as the Court agreed in the ruling on the Motion to
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Dismiss Count I, nevertheless it does not fit in Plaintiff’s
Monell claim which is that the City tows vehicles that have
obscured VINs and no license plates.
As far as the Complaint is
concerned, this is the only allegation that the Confidential VIN
check was attempted to be performed on an obscured VIN and a
temporary
permit.
widespread practice.
There
is
no
evidence
that
this
was
a
The Motion to Dismiss Count III is granted
with prejudice.
IV.
CONCLUSION
For the reasons stated herein, Defendant Officer’s Motion
to Dismiss Count I is denied.
Count III is granted.
The City’s Motion to Dismiss
Count III is dismissed with prejudice.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
6/21/2018
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