Sroga v. Hondzinski et al

Filing 80

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 8/2/2017:Mailed notice(wp, )

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
Before the Court are Motions to Dismiss all but one count of
an eleven-count Complaint.

For the reasons stated herein, the

Court grants in part and denies in part the Motion brought by the
individual Defendants [ECF No. 52] and grants the Motion brought
by the City of the Chicago [ECF No. 54].
I.

BACKGROUND

Plaintiff Kevin Sroga (“Sroga”), as the Seventh Circuit has
remarked, is “a prolific civil litigant” who keeps both the courts
and the Chicago Police Department busy.

Sroga v. Weiglen, 649

F.3d 604, 605-06 (7th Cir. 2011).

In the past year and in this

district

five

alone,

Sroga

has

filed

separate

lawsuits,

all

alleging some sort of constitutional deprivations relating to the
tows

of

his

vehicles.

See,

Sroga

v.

Rendered

Services

Inc.,

No. 17 C 03602 (alleging unlawful tows by agents of the State of

Illinois); Sroga v. William, No. 17 C 01333 (alleging unlawful
seizures of his vehicles by employees of the Chicago Department of
Streets and Sanitation); Sroga v. Laboda, No. 16 C 8366 (same);
Sroga v. Doe, No. 16 C 6965 (same); Sroga v. Hondzinski, No. 16 C
5796 (same).
In
against

This is one of those five cases.

this

lawsuit,

seventeen

Sroga

individuals

brings
and

generally, ECF No. 39 (Am. Compl).

an

the
The

Complaint fall into two categories:

eleven-count

City

of

Complaint

Chicago.

allegations

in

See,
Sroga’s

those relating to a specific

event occurring on June 18, 2014 and those purporting to link the
2014 event to a larger conspiracy and municipal policy.

Sroga

leads with allegations regarding the conspiracy. Upon information
and

belief,

Hondzinski
Pagan

he

alleges

that

(“Hondzinski”),

(“Pagan”),

Tracey

Chicago

Sonia
Sroka

Police

Moriarty

Officers

Jennifer

(“Moriarty”),

(“Stroka”),

and

Donna

Edwin
Tarala

(“Tarala”) (collectively, “the Core Defendants”) “have agreed to
target his vehicles for citation and towing in order to harass
Sroga.”

Am. Compl. ¶ 25.

Since about 2003, the Core Defendants,

along with other Chicago Police Officers, “have ordered the towing
of Sroga’s vehicles approximately 30 or more times.” Id. ¶ 24.
Approximately eight of these 30 tows were done under the municipal
policy that Sroga here complains about, the Confidential Vehicle
Identification Number (“VIN”) checks.
- 2 -

Id. ¶ 25.

On further information and belief, Sroga alleges that the
Chicago Police Department (“CPD”) issues such a Confidential VIN
check “to verify that the vehicle subject to the check has (1) a
VIN Number and (2) verify that essential parts are not stolen.”
Am. Compl. ¶ 26.

Furthermore, “when CPD lists a vehicle for a

Confidential VIN check, it is towed and CPD personnel then search
the vehicle to check and verify the VIN numbers.” Id. ¶ 27.

Sroga

does not quarrel with the dual purpose of the Confidential VIN
checks policy nor does he contend that the VINs can be verified
without a tow.
policy

Instead, Sroga takes issue with the fact that the

(allegedly)

does

not

require

CPD

personnel

to

have

“probable cause to believe the vehicles are stolen or have stolen
parts” before listing them for VIN checks. Id. ¶ 28.

Because of

this gap in the policy and the “personal vendetta” that “police
officers,

including

Defendant

Hondzinski

and

Sroka

have

had

against Sroga,” his vehicles were subjected to numerous tows, all
of which “were done without probable cause and solely for the
purpose

of

harassment”

and

none

of

which

was

“found

to

be

justified.” Id. ¶¶ 23, 24, 29.
After

making

the

above

allegations

about

the

putative

conspiracy and municipal policy, Sroga switches gears and begins
to allege the details of a tow that happened on June 18, 2014, one
of the eight tows alluded to previously.
- 3 -

According to Sroga, on

June 18, 2014 he arrived at his Ford Crown Victoria and found that
a

tow

truck

identified

had

pulled

himself

to

up

the

in
tow

front

of

operator

his
as

vehicle.

the

owner

Sroga
of

the

vehicle, and the operator told him that he had “a Tow Report” to
remove

the

vehicle.

Putting

this

report

together

with

other

“information and belief,” Sroga surmised that “the tow was ordered
by the Chicago Department of Streets and Sanitation based on a
request

by

Defendant

check.” Id. ¶ 37.

Hondzinski

to

conduct

a

confidential

VIN

Sroga requested the tow operator to contact his

dispatch to cancel the tow.

He then got into his car.

Shortly thereafter, two employees of the Chicago Department
of

Streets

and

Sanitation,

Defendants

Raymound

Soutchet

(“Soutchet”) and Leroy Kaminski (“Kaminski”) (collectively, “the
Sanitation Defendants”), arrived on the scene “in response to a
call that the tow operator had placed.” Id. ¶¶ 38-42.

When they

got to the area, the Sanitation Defendants parked their vehicles
in such a way as to make it “impossible for Sroga to drive his
vehicle out of his parked space” or to “open[] his driver-side
door.”

Am. Compl. ¶ 49.

They asked Sroga to get out of his car,

but he “declined their requests.” Id. ¶ 50.

At some point, the

Sanitation Defendants instructed the tow operator to wrap his tow
cable around the front bumper of Sroga’s vehicle, and he did so.
Id. ¶ 52.
- 4 -

About ten minutes after the Sanitation Defendants appeared,
two of the Core Defendants – Officers Moriarty and Tarala – also
arrived on the scene.

Tarala attempted to open Sroga’s door but

was unable to do so as it was locked.

She thereafter “unlawfully

ordered Sroga to get out of his vehicle.”

Am. Compl. ¶ 57.

He

did not comply and instead requested that she “call a Sergeant to
come to the scene.” Id.
Of

these

officers,

name.

Additional police officers then arrived.

only

Subsequently,

a

Core

Defendant

sergeant

–

Pagan

is

presumably

identified
Sergeant

by

James

Poremba (“Poremba”), as he is the sole defendant named in the
Complaint

who

appearance.
ordered

is

identified

as

a

sergeant

–

also

made

an

Both Defendant Pagan and Sergeant Poremba “unlawfully

[Sroga]

to

get

out

of

his

vehicle.”

Am.

Compl.

¶ 58.

“Sroga continued to stay in his vehicle.” Id. Pagan then forced
entry into the Ford Crown Victoria by breaking the rear passengerside

window,

unlocking

the

door,

and

entering.

He

thereafter

reached over to the driver’s door, opened it, and pushed Sroga
out.
Multiple officers then “descended upon [Sroga] to take him to
the ground.” Am. Compl. ¶ 64.

Although Sroga did not resist, the

officers “manhandl[ed]” him; one officer “placed a boot forcibly
on his head pushing his face into the pavement,” while others put
“handcuffs on Sroga excessively tightly.” Id.
- 5 -

Sroga alleges that

as a result “of the unnecessary and excessive force used to take
[him] to the ground, [he] suffered torn tendons in both his right
and left elbows.” Id.

After being arrested, Sroga was transported

to the police station and put in a holding room.

While there,

“Pagan slammed Sroga chest first into one of the walls,” causing
injuries to his chest and arms. Id. ¶ 66-67.
The arrest resulted in Sroga being charged with violating two
Illinois statutes – criminal trespass to vehicles, 720 ILCS 5/212, and resisting or obstructing a peace officer, 720 ILCS 5/31-1A. Am. Compl. ¶¶ 69-71.

The charges “were never tried,” and they

were dismissed on November 16, 2015 “because the State was not
ready when the case was called.” Id. ¶ 72.
On June 2, 2016, Sroga filed this lawsuit.

In the Amended

Complaint, Sroga asserts the following eleven causes of actions:
Count I:

seizure of his person and property in violation of the

Fourth Amendment against the Sanitation Defendants; Count II:

the

same illegal seizure but as asserted against the Core Defendants;
Count

III:

search

and

seizure

in

violation

Amendment against Defendant Hondzinski; Count IV:

of

the

Fourth

false arrest in

violation of the Fourth Amendment against the Core Defendants;
Count V:
against

excessive force in violation of the Fourth Amendment
Defendant

Pagan;

Count

VI:

malicious

prosecution

in

violation of the Fourth Amendment against Sergeant Poremba and the
- 6 -

Core Defendants; Count VII: conspiracy to deprive Sroga of his
constitutional rights by the Core Defendants; Count VIII: a statelaw claim for intentional infliction of emotional distress against
Sergeant Poremba, the Core Defendants, and Chicago Police Officers
Julie Butzen, David Deja, Cesar Echeverria, Robin Gonzalez, John
Nowik,

Edwin

Roman,

Nodal

Rosario,

and

John

and

Jane

Doe

(collectively, “the Secondary Defendants”); Count IX: supervisory
liability

against

Sergeant

Poremba;

Count

X:

violation

of

the

Eighth Amendment for failure to intervene against Sergeant Poremba
and

the

Secondary

Defendants;

and

finally,

Count

XI:

a

Monell

claim against the City of Chicago.
The

Defendants

seek

to

dismiss

all

but

Count

V

of

the

Complaint (that alleging excessive force by Defendant Pagan). The
Court grants in part and denies in part the Motions.
II.

ANALYSIS

With the exception of the state-law action for intentional
infliction of emotional distress (Count VIII), Sroga’s claims all
rest on 42 U.S.C. § 1983.

See, generally, Am. Compl.; see also,

Allen v. City of Chi., 828 F.Supp. 543, 563 (N.D. Ill. 1993)
(“Section 1983 provides a cause of action against municipalities
and municipal employees, and the availability of this statutory
remedy precludes direct claims under the Constitution.”).

The

Court

the

thus

examines

the

Complaint
- 7 -

while

bearing

in

mind

requirements

of

that

statute.

It

begins

with

the

individual

Defendants.
A.

Streets and Sanitation Defendants

Sroga levies two charges at Sanitation Defendants Soutchet
and Kaminski:

illegal seizure of his property (the Ford Crown

Victoria) and illegal seizure of his person.

The Court addresses

the second claim first.
The

Court

notes

that

Sroga

does

not

allege

that

the

Sanitation Defendants restrained his freedom to walk away from the
scene.

He alleges only that they parked their cars in such a way

that he could not leave by driving away in his vehicle or by
exiting from his front driver-side door.

The Court is thus not

convinced that the Sanitation Defendants limited Sroga’s freedom
of movement to the extent necessary to constitute seizure of his
person.

See,

Terry

v.

Ohio,

392

U.S.

1,

19

n.16

(1968)

(“Obviously, not all personal intercourse between policemen and
citizens involves ‘seizures’ of persons.

Only when the officer,

by means of physical force or show of authority, has in some way
restrained

the

liberty

of

a

citizen

may

we

conclude

that

a

‘seizure’ has occurred.”).
However,

even

if

they

did

seize

Sroga,

the

Sanitation

Defendants cannot have been acting under color of state law in so
doing.

This is crucial for Sroga’s § 1983 claim because § 1983
- 8 -

“affords a ‘civil remedy’ for deprivations of federally protected
rights

caused

by

persons

acting

under

color

of

state

law.”

Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other
grounds

by

Daniels

v.

Williams,

474

U.S.

327,

330-31

(1986).

Therefore, “state officials or employees who act without the cloth
of state authority do not subject themselves to § 1983 suits.”
Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir. 1989).

Sroga’s

§ 1983 claim against Defendants Soutchet and Kaminski thus fails
because

these

Defendants

are

“without

the

cloth

of

state

authority” to seize people.
It is important to keep in mind that Defendants Soutchet and
Kaminski are employees of the Streets and Sanitation Department,
not police officers.

They therefore do not have police powers,

including the power to stop, arrest, or generally seize people.
If they effected such a seizure, then their action went beyond the
performance of their job and thus was done without color of state
law.

See, Honaker v. Smith, 256 F.3d 477, 484-85 (7th Cir. 2001)

(“[A]cts by a state officer are not made under color of state law
unless they are related in some way to the performance of the
duties of the state office.”).
Moreover, Defendants Soutchet and Kaminski’s authority to tow
vehicles is expressly limited so that they do not seize people as
they perform their towing duties. As Sroga acknowledges, Section
- 9 -

9-44-060 of the Chicago Municipal Code prohibits any person from
operating “a vehicle to tow another vehicle if the towed vehicle
contains one or more passengers.” See, Am. Compl. ¶ 46.

Any

seizure of the kind Sroga alleges – that of his person as he sat
in his car while it was being towed – is forbidden by the statute.
As such, if the Sanitation Defendants seized Sroga, then they did
so with power that the state says they absolutely do not possess.
Their actions therefore fall outside the ambit of § 1983.
Wilson

v.

Price,

624

F.3d

389,

393

(7th

Cir.

2010)

See,
(“When

officials possess no authority to act, we have found that their
conduct is outside the ambit of § 1983.”); Gibson v. Chicago, 910
F.2d 1510, 1518-19 (7th Cir. 1990) (stating that “we have found no
authority

for

expanding

[§ 1983

liability]

to

encompass

the

actions of an official who possessed absolutely no authority to
act”).
As for Sroga’s claim that the Sanitation Defendants seized
his vehicle, the Court believes that it is targeted at the wrong
Defendants.

It is true that Streets and Sanitation employees have

the authority to tow cars.

See, Chicago Mun. Code § 9-92-030.

Unlike their alleged action in seizing Sroga, Defendants Soutchet
and Kaminski acted under color of state law when they attempted to
tow his car.

However, merely alleging that a defendant acted

under color of state law is not enough to state a § 1983 claim.
- 10 -

Sroga must also allege that the Sanitation Defendants’ attempted
tow deprived him of his constitutional rights.

See, Parratt, 451

U.S. at 535 (“[I]n any § 1983 action the initial inquiry must
focus on whether the two essential elements to a § 1983 action are
present:
person

(1) whether the conduct complained of was committed by a

acting

under

color

of

state

law;

and

(2)

whether

this

conduct deprived a person of rights, privileges, or immunities
secured

by

the

Constitution

or

laws

of

the

United

States.”).

This, he has failed to do.
The

gravamen

Defendants

is

that

of

Sroga’s
they

claim

violated

against
the

the

Fourth

Sanitation

Amendment

by

attempting to tow his car when they did not have “probable cause
to believe the vehicle[] [was] stolen or ha[d] stolen parts.” Am.
Compl. ¶ 28.

But Sroga has cited no authorities to suggest that

government employees who are not police officers must act with
probable cause lest they violate the Constitution.

Under Sroga’s

theory of the case, those who work for the Streets and Sanitation
Department,

like

Defendants

Soutchet

and

Kaminski,

must

independently make an assessment that a vehicle has been stolen
before they may tow it.
Kaminski

are

unequipped

But clearly, Defendants Soutchet and
to

make

such

an

assessment,

as

the

Department of Streets and Sanitation does not train its workers to
determine the probability that a crime has occurred or that they
- 11 -

are faced with evidence of it.

Such is the province of police

officers, not Streets and Sanitation employees.
The
“plainly

Court

thus

concludes

incompetent”

nor

that

because

“knowingly

they

violat[ing]

were
the

neither

law”

when

they prevented Sroga from driving away in his car, the Sanitation
Defendants are shielded by qualified immunity.

See, Hughes, 880

F.2d at 971 (“Qualified immunity is designed to shield from civil
liability all but the plainly incompetent or those who knowingly
violate the law.”) (internal quotation marks omitted).

Simply

put, Sroga cannot sue them as he did here.
For

these

Complaint.

reasons,

the

Court

dismisses

Count

I

of

the

Furthermore, as it does believe that Sroga cannot cure

his Complaint against the Sanitation Defendants by amending, it
orders the dismissal with prejudice.
B.
The
Chicago
Sergeant

Court
Police

next

examines

Officer

Poremba,

Defendants.

Chicago Police Officers

the

(Although

the

Defendants,
Core
Sroga

claims
a

group

Defendants,
does

not

brought
which
and

mention

against

the

consists

of

the

Secondary

the

Secondary

Defendants in the factual allegations of his Complaint, the Court
assumes that they were the additional officers who arrived on the
scene shortly before Sergeant Poremba.)
these

Defendants

seem

endless,

the

- 12 -

While the claims against

Defendants

argue

that

they

should

all

be

dismissed

for

three

reasons:

probable

cause,

statute of limitations, and inadequate factual pleading.
1.

Probable Cause to Defeat the Fourth Amendment Claims

The Officer Defendants argue that they had probable cause to
arrest Sroga.

As such, they say that Sroga’s Fourth Amendment

claims for illegal seizure (Counts II through IV) and that for
malicious prosecution (Count VI) must be dismissed.

The Court

addresses one-by-one these two groups of claims.
The Defendants are correct that the existence of probable
cause skunks the Fourth Amendment illegal seizure claims.

As the

Seventh Circuit has said, “[t]he existence of probable cause to
arrest

a

suspect

for

any

offense

Amendment false-arrest claim.”

. . .

will

defeat

a

Fourth

Weiglen, 649 F.3d at 608.

Ergo,

Count IV must be dismissed if the Defendants had probable cause to
arrest

Sroga,

and

so

must

Counts

II

and

III,

since

a

Fourth

Amendment false arrest claim subsumes the illegal seizure claims.
See, Terry, 392 U.S. at 16 (indicating that the terminus of Fourth
Amendment seizures is “a trip to the station house and prosecution
for crime – ‘arrests’ in traditional terminology”).

The question

is whether Sroga has adequately alleged that the officers acted
without probable cause.

(The Court notes that although Count III

involves a claim for illegal search as well as seizure, Sroga has

- 13 -

not alleged any search of his person or vehicle.

The Court thus

does not consider this part of the claim any further.)
The

Seventh

circumstances

Circuit

like

those

has

told

alleged

probable cause to arrest.

Sroga

here,

himself

police

that

officers

in
have

As Sroga well knows, he had in Weiglen

sued Chicago police officers for three separate arrests they made
of him, two of which involved the tows of his vehicles and are
relevant here.

In the first incident, Sroga had an altercation

with a tow truck driver who was attempting to remove his car.
Weiglen, 649 F.3d at 605.

The altercation and ensuing spectators

summoned a police officer who told Sroga to let the driver do his
job.

“Instead Sroga leapt onto the moving car as it was being

towed away.” Id.

“At that point he was arrested.” Id.

second

Sroga

incident,

“got

into

another

spat

with

In the
a

City

employee” who was trying to tow a car parked in front of his
house. Id.

“To prevent the car from being towed, Sroga got into

it as the driver was hooking it up to the tow truck, and despite
repeated demands by police that he get out of the car he refused
to budge until a sergeant showed up and ordered him to get out.”
Id.

The police then arrested him.
The district court in Weiglen granted summary judgment to the

defendant
violated

police
his

officers

on

constitutional

Sroga’s
rights,
- 14 -

claims
and

the

that

the

arrests

Seventh

Circuit

affirmed.

Writing for the court, Judge Richard Posner explained

that the police officers had probable cause to arrest Sroga for
“knowingly resisting or obstructing the performance by one known
to the person to be a peace officer . . . of any authorized act
within his official capacity.”

Weiglen, 649 F.3d at 608 (internal

alteration and quotation marks omitted).

That is, the police had

probable cause to arrest Sroga for violating 720 ILCS 5/31-1(a),
the statute under which he was charged in this case. See, 720 ILCS
5/31-1(a)

(“A

person

who

knowingly

resists

or

obstructs

the

performance by one known to the person to be a peace officer,
firefighter,

or

correctional

institution

employee

of

any

authorized act within his or her official capacity commits a Class
A

misdemeanor.”).

Such

probable

cause

existed

because

“Sroga

disobeyed police officers’ lawful orders that he not impede the
towing of his car.” Id.

Both times, he violated 720 ILCS 5/31-

1(a) by “refusing to desist from behavior that was obstructing the
efforts of the police to enable his car to be towed.” Id.
There is no question that Sroga has alleged the same conduct
in this case.

More than once, he pleads that despite multiple

orders from the Defendants to exit the vehicle, he refused to
budge.
desist

Ergo, as with his previous arrests, Sroga “refus[ed] to
from

behavior

that

was

obstructing

police to enable his car to be towed.”
- 15 -

the

efforts

of

the

Weiglen, 649 F.3d at 608.

The Police Officer Defendants thus had probable cause to arrest
him for exactly the crime with which he was charged.
In an attempt to plead around Weiglen, Sroga in the Complaint
presses again and again that “[u]ntil Sroga’s vehicle was being
moved, Sroga had a legal right to sit in his vehicle.” See, e.g.,
Am. Compl. ¶¶ 87-88, 104-107, 113.

Sroga thus appears to concede

that had he “leapt onto the moving car as it was being towed,”
like he did in the first arrest described in Weiglen, then the
police could have lawfully arrested him. However, because the car
was not yet moving when he got into it, Sroga asserts that the
police should have allowed him to sit there until he felt like
leaving and the tow operator may do his job.
The Court cannot adopt such a proposition of law.
the

For one,

theory

in

means

that

whether

the

police

may

arrest

such

situations depends primarily on the progress of the tow rather
than the (eventual) arrestee’s behavior.

If the arrestee gets

into the car just before it begins moving, then the police may not
order him to step out; but if the arrestee is a tad late and the
tow operator has put his foot on the gas pedal, then the police
may arrest him.

Sroga has cited no authority to support such a

conception of the Fourth Amendment, and the Court is loath to
think that the Constitution forces tow operators to race against
vehicle owners.
- 16 -

For

another,

Sroga’s

theory

of

circumscribes the holding from Weiglen.

the

case

improperly

In particular, he seems

to have (conveniently) forgotten about the second arrest that the
Weiglen

court

arrested

considered.

after

he

“got

In

that

second

incident,

into

[his

vehicle]

as

the

Sroga

was

driver

was

hooking it up to the tow truck, and despite repeated demands by
police that he get out of the car he refused to budge.”
649 F.3d at 605.
it,

yet

the

Weiglen,

The vehicle was not moving when Sroga got into

Seventh

Circuit

still

found

that

the

police

had

probable cause to arrest Sroga for doing exactly what he did here:
refusing to exit a to-be-towed vehicle despite repeated police
orders to do so.
In sum, the holding from Weiglen controls the case at bar and
compels

dismissal

of

Sroga’s

Fourth

Amendment

seizure

claims.

Moreover, it is of no import that the Seventh Circuit in Weiglen
was reviewing a grant of summary judgment and the Court is here
deciding a Motion to Dismiss.

Although it is true that “the

existence

a

of

probable

cause

is

fact-based

inquiry,”

Gay

v.

Robinson, No. 08-4032, 2009 U.S. Dist. LEXIS 5904, at *9 (C.D.
Ill.

Jan.

26,

2009),

“where

the

underlying

facts

are

not

in

dispute, the existence of probable cause is a question of law”
amendable to being decided on a motion to dismiss. Rusinowski v.
Vill. of Hillside, 835 F.Supp.2d 641, 648 (N.D. Ill. 2011) (citing
- 17 -

United States v. Ellis, 499 F.3d 686, 688 (7th Cir. 2007)).

In

determining whether the police had probable cause to arrest, the
Court accepts Sroga’s well-pleaded allegations as true and finds,
based on his account of the facts, that probable cause existed as
a matter of Seventh Circuit law.

Dismissal is appropriate in such

a case. Id.
In addition to the Fourth Amendment seizure claims, Sroga
asserts a Fourth Amendment malicious prosecution action against
Sergeant Poremba and the Core Defendants (Count VI).

Although the

presence of probable cause also defeats such a claim, see, Reed v.
City of Chi., 77 F.3d 1049, 1051 (7th Cir. 1996) (listing the
elements of a malicious prosecution claim), the Court can dismiss
this count on an alternative basis:

Sroga’s claim for malicious

prosecution is no more than a poorly labeled false arrest claim.
At

bottom,

Sroga

says

nothing

in

pleading

his

claim

for

malicious prosecution other than that the Defendants arrested him
without probable cause.

As alleged in the Complaint, the Core

Defendants

Poremba

and

Sergeant

“maliciously

commenced

and/or

continued a criminal action against Sroga without probable cause.”
Am. Compl. ¶ 132.
the

allegations

probable

cause

prosecution.

The “criminal action” is Sroga’s arrest, and
that

state

the
a

Defendants

claim

for

detained

false

arrest,

Sroga
not

without
malicious

See, Snodderly v. R.U.F.F. Drug Enf’t Task Force,
- 18 -

239 F.3d 892, 901 (7th Cir. 2001) (“[I]n order to state a claim
for

malicious

prosecution

against

the

police

officers

under

§ 1983, [a plaintiff] must do more than merely claim that they
arrested and detained him without probable cause.”); Bullock v.
Calumet Park, No. 00 C 6364, 2001 U.S. Dist. LEXIS 11078, at *8
(N.D. Ill. July 26, 2001) (“A plaintiff who ‘alleges only that he
was arrested and detained without probable cause has only pled
false arrest,’ and cannot simply convert that claim into one for
malicious prosecution.”) (quoting Sneed v. Rybicki, 146 F.3d 478,
481 (7th Cir. 1998)).
Nor

does

Defendants’
claim.

It

Sroga’s

single,

post-arrest
is

true

conclusory

allegation

about

the

conduct

that

save

his

malicious

prosecution

Sroga

pleads

in

Paragraph

130

of

the

Complaint that the Defendants “instituted or continued a criminal
prosecution against Sroga by the creation of false evidence and/or
knowingly

giving

false

police

reports.”

Am.

Compl.

¶ 130.

However, the Court is at a loss to infer what false evidence Sroga
could be referring to, as he makes no mention of any such evidence
elsewhere in the Complaint.

In fact, since Sroga alleges that

“[t]he charges [stemming from his June 2014 arrest] were never
tried,”

and

that

“the

Judge

dismissed

the

charges

because

the

State was not ready when the case was called,” Am. Compl. ¶ 72, it

- 19 -

does

not

appear

that

there

was

any

judicial

proceeding

during

which evidence could have been entered.
As for the false police reports, the Court is puzzled as to
how it is that Officer Sroka could have created a police report,
given that she is not alleged to have been present at the scene
during the June 2014 towing.

But even assuming that there were

false reports filed by all of the relevant Defendants, they do not
rise to the type of post-arrest misconduct that states a malicious
prosecution

claim.

Unlike

the

kind

of

police

misconduct

that

impacts a prosecution – for example, that the police “pressured or
influenced the prosecutors to indict, made knowing misstatements
to

the

prosecutor,

testified

untruthfully,

or

covered

up

exculpatory evidence” – the false police reports at issue here are
not

alleged

to

have

influenced

affected Sroga’s prosecution.
Sneed, 146 F.3d at 481.
remove

the

malicious

the

prosecutor

or

otherwise

Snodderly, 239 F.3d at 901; accord

As such, the reports are inadequate to
prosecution

claim

“anomalous” or raise a right to relief.

from

the

realm

of

See, Reed, 77 F.3d at

1053 (agreeing that “absent an allegation of pressure or influence
exerted by the police officers, or knowing misstatements made by
the officers to the prosecutor” “a malicious prosecution action
against police officers is ‘anomalous’ . . . because the State’s
Attorney, not the police, prosecutes a criminal action”) (quoting
- 20 -

Albright v. Oliver, 510 U.S. 266, 279 n.5 (1994) (Ginsburg, J.,
concurring)).
For these reasons, the Court dismisses Counts II, III, IV,
and VI of the Complaint.
2. Statute of Limitations to Defeat the
Intentional Infliction of Emotional Distress Claim
The Court also agrees with the Defendants that Count VIII for
intentional
barred.
claim

infliction

of

emotional

distress

(“IIED”)

is

time-

A one-year statute of limitations applies to an IIED
asserted

against

local

governmental

Chicago Police Officer Defendants.

employees

like

the

See, 745 ILCS 10/8-101 (“No

civil action . . . may be commenced in any court against a local
entity

or

commenced

any

of

within

its
one

employees
year

from

for
the

any
date

injury
that

unless

the

it

injury

is
was

received or the cause of action accrued.”); Williams v. Lampe, 399
F.3d 867, 870 (7th Cir. 2005).

Moreover, the one-year period

begins on the date of Sroga’s arrest.

This is a consequence of

the fact that, as with his (now-dismissed) malicious prosecution
claim, Sroga’s IIED claim rests on conduct relating to his arrest.
See,

Am.

Compl.

¶¶ 68,

141-47

(“Sroga

sustained

and

still

continues to suffer from trauma, humiliation, fear, undue stress,
lost wages, and the loss of employment as a result of his arrest
and injuries.”).
made

clear

that

In such circumstances, the Seventh Circuit has
the

clock

starts
- 21 -

ticking

on

the

date

of

the

arrest.
678

As the court stated in Bridewell v. Eberle, 730 F.3d 672,

(7th

Cir.

2013),

“a

claim

of

intentional

infliction

of

emotional distress in the course of arrest and prosecution accrues
on the date of the arrest.”
Therefore, since Sroga was arrested on June 18, 2014, he had
until June 18, 2015 to bring his IIED claim.
until

June

2,

2016,

Sroga

is

too

late

By not filing suit
by

nearly

a

year.

Accordingly, his IIED claim is time-barred and must be dismissed
with prejudice.
Sroga’s
argues

that

arguments
his

IIED

to

the

claim

contrary

did

not

are

accrue

unpersuasive.
until

against him were dismissed on November 16, 2015.

the

He

charges

This is because,

says Sroga, his malicious prosecution claim did not accrue until
that date and his IIED claim is “based on the same conduct that
form[s] the basis of his malicious prosecution claim.”
at 13-14.

ECF No. 63

Admittedly, some courts in this district have adopted

such an approach, holding that “when an IIED claim is based on the
same conduct that forms the basis of that malicious prosecution
claim,

the

cause

of

action

does

not

accrue

until

proceedings are terminated in the plaintiff’s favor.”

criminal
Renaud v.

City of Chi., No. 12 CV 08758, 2013 U.S. Dist. LEXIS 71424, at *15
(N.D. Ill. May 21, 2013); accord, La Playita Cicero, Inc. v. Town
of Cicero, No. 11 CV 1702, 2014 U.S. Dist. LEXIS 31070, at *43-44
- 22 -

(N.D.

Ill.

Mar.

11,

2014).

However,

the

validity

of

those

decisions has been cut from under their feet by Bridewell.
As

discussed

previously,

the

Seventh

Circuit

in

Bridewell

held that the accrual date for an IIED claim based on an arrest
“accrues on the date of the arrest.”

Bridewell, 730 F.3d at 678.

In reaching this conclusion, the Bridewell court relied on Evans
v. City of Chi., a case where the Seventh Circuit confronted the
precise argument that Sroga here advances. See, Evans, 434 F.3d
916, 934 (7th Cir. 2006), overruled on other grounds by Hill v.
Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013).

Like Sroga,

the plaintiff in Evans sought to avoid the statute of limitations
by

arguing

that

his

IIED

claim

“did

not

accrue

until

the

termination of the state criminal proceedings against him.” Id.
The Seventh Circuit rejected the argument, hewing instead to “the
default rule . . . that a cause of action for personal injuries
accrues
quotation

when

the

marks

plaintiff

omitted).

suffers
Thus,

injury.”

when

a

Id.

(internal

plaintiff

suffers

emotional distress because of an arrest, the date of the arrest is
the date when the statute of limitations clock begins ticking.
Clearly,

Bridewell

and

decisions to the contrary.

Evans

trump

any

district

court

Indeed, since Bridewell, “courts in

this district have consistently applied [the arrest-accrual rule]
broadly, holding that IIED claims of this sort accrue on the day
- 23 -

of arrest, even where the distress alleged is ‘intertwined’ with a
claim for malicious prosecution.”

Friends-Smiley v. City of Chi.,

No. 16-cv-5646, 2016 U.S. Dist. LEXIS 144657, at *5-6 (N.D. Ill.
Oct. 19, 2016) (collecting cases). Insofar as the two cases cited
by Sroga held differently, they appear to be against both the
trend and law in this circuit.
Relatedly, Sroga argues that his IIED claim is a “continuing
tort”

and,

in

particular,

that

against him were dismissed.

it

continued

until

the

charges

It is true that the Illinois Supreme

Court has decided in an opinion to allow an IIED claim to be
maintained as a continuing tort.
Ill.

2d

263,

284

(2003).

See, Feltmeier v. Feltmeier, 207

However,

the

court

was

delineate circumstances permitting such treatment.
stated,

“[a]

continuing

violation

or

tort

is

careful

to

As the court
occasioned

continuing unlawful acts and conduct.” Id. at 278.

by

In contrast,

“where there is a single overt act from which subsequent damages
may flow, the statute begins to run on the date the defendant
invaded the plaintiff’s interest and inflicted injury, and this is
so despite the continuing nature of the injury.” Id.
Sroga’s case presents “a single overt act” – his arrest on
June 18, 2014.
and

conduct”

Sroga has made no allegation of any “unlawful acts
occurring

after

that

date.

He

has

pleaded

no

interaction with the Defendants after June 18, 2014 and no fresh
- 24 -

act to inflict injury other than those from the June 18 arrest.
Cf. Hill v. City of Chi., No. 06 C 6772, 2007 U.S. Dist. LEXIS
40211,

at

*5,

plaintiff’s
when

the

18

(N.D.

“allegations

allegations

Ill.
may

May

10,

support

include

2007)

a

charges

(finding

continuing

that

the

that

tort

police

the

theory”
obtained

“false confessions secured by means of improper coercion during
police

interrogations”

and

that

plaintiff

was

convicted

and

imprisoned for murder based upon the coerced confessions).

As

such, even though an IIED claim may be treated as a continuing
tort, in this case, nothing continued Sroga’s IIIED action past
the date of his arrest.
In sum, because Count VIII pleads a claim that is barred by
the statute of limitations, the Court dismisses it with prejudice.
3. Inadequate Factual Pleadings to
Support the Conspiracy Claim
To

plead

civil

conspiracy

(Count

VII),

Sroga

must

allege

“facts [to] support an agreement between the defendants.”

Kunik

v. Racine Cty., 946 F.2d 1574, 1580 (7th Cir. 1991).

That is, he

must

inference

of

mutual

conspirators.

Id.

“[A]cts

allege

understanding”
performed

acts

that

between

together

by

“raise

the

the

purported

the

members

of

a

conspiracy”

meet

that

threshold “when they are unlikely to have been undertaken without
an agreement.” Id.

Finally, such allegations must be “apparent in

- 25 -

the complaint” since “a whiff of the alleged conspirators’ assent
cannot await discovery.” Id.
Sroga’s
inadequate.

allegations

to

suggest

conspiracy

are

woefully

They consist of the following:

“Upon information and belief, Defendants Hondzinski,
Sroka, and Tarala know what vehicles belong to Sroga,
and Defendants Moriarty, Tarala, Pagan, Hondzinski, and
Sroka have agreed to target his vehicles for citation
and towing in order to harass Sroga.” Am. Compl. ¶ 25.
“Police
Officers
in
the
14th
district,
including
Defendants Moriarty, Tarala, Pagan, Hondzinski, and
Sroka have ordered the towing of Sroga’s vehicles
approximately 30 or more times.” Id. ¶ 24.
“Since on or about 2003, the police officers, including
Defendant Hondzinski and Sroka have had a personal
vendetta against Sroga, which has lead [sic] to numerous
unfounded citations, arrests, and harassment.” Id. at
¶ 28.
“Upon information and belief, the [June 2014] towing was
ordered by the Chicago Department of Streets and
Sanitation based on a request by Defendants [sic]
Hondzinski to conduct a confidential VIN check.” Id.
¶ 37.
The

Complaint

thus

mixes

allegations

about

the

purported

conspirators with those about non-conspirators, doing so in such a
way as to make it impossible to infer what the conspirators did
that

they

Kunik,

946

were

unlikely

F.2d

at

1580.
the

have
For

done

“without

example,

conspirators

any

Sroga’s

ordered

the

agreement.”

most
towing

concrete

allegation

is

vehicles.

However, he alleges that non-conspirators did so as

well.

that

to

of

his

As the allegation states, “Police Officers in the 14th
- 26 -

district,

including

Defendants

Moriarty,

Tarala,

Pagan,

Hondzinski, and Sroka have ordered the towing of Sroga’s vehicles
approximately 30 or more times.” Am. Compl. ¶ 24.

The allegation

thus asserts that non-conspirators were responsible for least some
of the tows and otherwise gives no indication as to how many tows
were initiated by the conspirators versus the non-conspirators.
Given such an allegation, that the conspirators, too, ordered some
tows cannot raise a reasonable inference of an agreement.

After

all, those who did not agree engaged in the same conduct, and
there is no allegation that they did so less frequently, only when
justified,
Sroga.

or

unaccompanied

by

the

improper

motive

to

harass

Likewise, that alleged conspirators Hondzinski and Sroka

“have had a personal vendetta against Sroga” does not suggest that
the two of them conspired against him since, as pleaded, other
unnamed,

uncharged

police

officers

did

as

well.

The

personal

animus thus was not sufficient to motivate the conspiracy; and it
does

not

Officers

explain
Moriarty,

why

the

Pagan,

three
and

other

Tarala

–

alleged
joined

conspirators
the

campaign

–
to

harass Sroga.
As further evidence of their inadequacy, the allegations do
not give the five conspirator Defendants notice of what they are
charged with.

For instance, are they charged with having ordered

the towing of Sroga’s vehicles, like Hondzinski did?
- 27 -

Or do they

stand accused for every instance in which they simply showed up at
the scene, like Moriarty and Tarala did at the June 2014 incident?
Or are they accused even if they were not present, as was the case
with Sroka during the June 2014 event? By failing to give notice,
Sroga has fallen short of even the very undemanding standard for
pleading conspiracy articulated in Walker v. Thompson that he here
presses for.

See, Walker v. Thompson, 288 F.3d 1005, 1007-08 (7th

Cir. 2002) (“[I]t is enough in pleading a conspiracy merely to
indicate the parties, general purpose, and approximate date, so
that the defendant has notice of what he is charged with.”).

But

see, id. (explaining that allegations of conspiracy fail as to a
defendant deputy when he “had not participated in the [complainedof unlawful] search, and the complaint did not so much as hint at
what role he might have played or agreed to play in relation to
the search”); Roehl v. Merrilees, No. 11 C 4886, 2012 U.S. Dist.
LEXIS

50253,

at

*22

(N.D.

Ill.

Apr.

10,

2012)

(calling

into

question the continuing validity of Walker given that “Walker was
decided

prior

to

the

Supreme

Court’s

decisions

in

Twombly

and

Iqbal, which impose a plausibility standard on all pleadings”).
This is to say nothing of the more rigorous pleading that the
Seventh Circuit, outside of Walker, has demanded.

In Cooney v.

Rossiter, 583 F.3d 967, 971 (7th Cir. 2009), for example, the
court recognized that “conspiracy allegations were often held to a
- 28 -

higher standard than other allegations,” and rightly so, as “mere
suspicion

that

persons

adverse

to

the

plaintiff

conspiracy against him or her was not enough.”
“the

height

of

the

circumstances.” Id.

pleading

requirement

had

joined

a

In particular,
is

relative

to

In this case, Sroga has alleged that five

Chicago police officers conspired to harass him for over a decade
out of nothing more than personal animus.

They ordered the towing

of his vehicles as often as “30 or more times,” caused “numerous
unfounded

citations,

arrests,

and

harassment,”

and

involved

an

untold number of their colleagues in their unlawful, but open and
notorious, harassment.
–

a

vast

and

Given the circumstances of what he pleads

sprawling

conspiracy

born

of

nothing

more

than

perceived personal antipathy – Sroga “must meet a high standard of
plausibility.” See, Cooney, 583 F.3d at 971 (stating that when a
case “may be paranoid pro se litigation, arising out of a bitter
custody

fight

conspiracy

.

and
.

.

alleging,
the

as

plaintiff

it

does,

must

meet

a

vast,
a

high

encompassing
standard

of

plausibility”).
Sroga plainly fails this standard.

Not only has he not met a

“high standard,” he has not even come up to plausibility. He has
not alleged “who conspired to commit which violations or offer any
facts that suggest that there was an overarching scheme involving
all defendants.”

Sroga v. Decero, No. 09 C 3286, 2010 U.S. Dist.
- 29 -

LEXIS

119594,

“[w]ithout

at

such

*9

(N.D.

Ill.

allegations,

Nov.

this

9,

2010)

[conspiracy]

(holding
claim

does

satisfy either Rule 8 or the dictates of Twombly and Iqbal”).

that
not
He

also has not alleged “facts or circumstances upon which either an
express or implied agreement between Defendants could be inferred
above the speculative level.”

Roehl, 2012 U.S. Dist. LEXIS 50253,

at *22 (dismissing a plaintiff’s claim alleging conspiracy in the
absence of such allegations) (internal quotation marks omitted).
At bottom, Sroga has articulated nothing more than “suspicion that
persons adverse to the plaintiff had joined a conspiracy against
him.”

Cooney, 583 F.3d at 971.
For

these

reasons,

the

This is not enough. Id.
Court

dismisses

Count

VII

of

the

Complaint.
4.

Lack of Constitutional Violations
to Support Secondary Liability

Given the above dismissals of the Fourth Amendment claims,
the Court also dismisses the secondary liability claims that are
premised on those underlying constitutional violations.
The two secondary liability claims in this case are Counts IX
and

X.

Count

IX

charges

Sergeant

Poremba

with

supervisory

liability, but only for “unlawfully ordering [Sroga] out of his
vehicle”

and

participating

in

the

decision

“to

unlawfully

forcibly enter Sroga’s vehicle.” Am. Compl. ¶¶ 151-52.
Court

has

ruled

that

the

police

had

- 30 -

probable

cause

to

and

As the
arrest

Sroga, neither of these complained-of acts is a constitutional
violation of his rights.
Poremba is dismissed.

Accordingly, the claim against Sergeant

See, Corbett v. Biggs, No. 01 C 7421, 2005

U.S. Dist. LEXIS 7883, at *31-32 (N.D. Ill. Mar. 23, 2005) (“A
section

1983

individual

claim
or

constitutional

for

supervisory

official
violation

liability,

capacity,
by

an

officer

requires
who

was

whether
an

in

an

underlying

subject

to

the

defendant’s supervision.”) (citing Higgins v. Correctional Medical
Servs. of Illinois, Inc., 178 F.3d 508, 513-14 (7th Cir. 1999);
Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 596-97 (7th
Cir. 1997)).
Likewise, the claim for failure to intervene (Count X) is
dismissed to the extent that it complains of lawful conduct.

See,

Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005) (“In order
for there to be a failure to intervene, it logically follows that
there

must

exist

an

underlying

constitutional

violation[.]”);

Chatman v. City of Chi., No. 14 C 2945, 2015 U.S. Dist. LEXIS
28707, at *24 (N.D. Ill. Mar. 10, 2015) (“To recover on a failure
to intervene claim, a plaintiff must plead an underlying violation
of his constitutional rights.”).
However, as Count X also incorporates the allegation that
Sergeant Poremba and the Secondary Defendants failed to intervene
in the “use of excessive force in the false arrest of Sroga,” and
- 31 -

the excessive force claim against Defendant Pagan (Count V) is
unchallenged,

this

part

of

the

claim

survives.

Nonetheless,

excessive use of force at the scene of the arrest is the only
underlying constitutional violation on which Count X may proceed.
This is because Sroga has made no allegation that Sergeant Poremba
and the nine Secondary Defendants were even present during the
incident at the station where Defendant Pagan is alleged to have
slammed Sroga against a wall.

Without such an allegation, the

incident cannot support a failure to intervene claim.

See, e.g.,

Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (requiring as
elements of a failure to intervene claim that a police officer was
present, had reason to know that excessive force was being used,
and “had a realistic opportunity to intervene to prevent the harm
from occurring”).
The Court thus dismisses Count IX of the Complaint but allows
Count X, as limited, to proceed.
C.

City of Chicago

The Court has reached the last count in this eleven-count
Complaint:
Chicago.

the

Monell

claim

as

asserted

against

the

City

of

In this count, Sroga charges that the City is liable for

his injuries because its policy of allowing for Confidential VIN
checks

without

constitutional

requiring
rights.

probable
The

City
- 32 -

cause

deprived

responds

that

him

Sroga

of

his

has

not

pleaded any such municipal policy and therefore his claim must
fail.
The parties agree, as well they should, that the existence of
a municipal policy is crucial to Sroga’s § 1983 claim against the
City.

See, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978) (“[A] local government may not be sued under § 1983 for an
injury inflicted solely by its employees or agents. Instead, it is
when execution of a government’s policy . . . inflicts the injury
that the government as an entity is responsible under § 1983.”);
accord, Gable v. City of Chi., 296 F.3d 531, 537 (7th Cir. 2002).
The parties also agree that Sroga has pleaded no act of a final
policymaker; as such, he must make out either an express policy or
an implied policy in the form of a practice “so permanent and well
settled as to constitute a custom or usage with the force of law.”
See, Gable, 296 F.3d at 537 (internal quotation marks omitted)
(listing the above as ways to establish a municipal policy). Sroga
grasps for both prongs, alleging both a gap in the express policy
and an implied policy.

Nevertheless, his burden, and the Court’s

analysis, does not change depending on which of these he pleads.
See, Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005) (“[W]e
think that it is more confusing than useful to distinguish between
claims about express policies that fail to address certain issues,

- 33 -

and claims about widespread practices that are not tethered to a
particular written policy.”).
Whatever form of Monell liability he reaches for, Sroga must
plead facts allowing for the reasonable inference that “there is a
true municipal policy at issue, not a random event.” Calhoun, 408
F.3d

at

380.

Because

“[n]o

government

has,

or

could

have,

policies about virtually everything that might happen,” it is not
enough for Sroga to state that the City’s Confidential VIN checks
policy

lacks

a

probable

cause

requirement

unconstitutional on its face. Id.

and

so

is

Instead, as with an implied

policy, Sroga must allege facts indicating that the City “must
have been aware of the risk created by the custom or practice and
must

have

plaintiff.”

failed

to

take

appropriate

steps

to

protect

the

Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293,

303 (7th Cir. 2009).

That is, Sroga must allege that the City was

deliberately indifferent because enough incidents have arisen so
that

the

City

should

have

been

aware

violations caused by the practice.
(requiring

enough

incidents

widespread

custom

of

aware”);

Calhoun,

which

408

F.3d

“to
City
at

of

constitutional

See, Gable, 296 F.3d at 538

indicate

that

policymakers
380

the

(“Both

the
had

in

City
reason

the

had

a

to

be

widespread

practice implicit policy cases and in the cases attacking gaps in
express policies, what is needed is evidence . . . [to suggest
- 34 -

that] the same problem has arisen many times and the municipality
has acquiesced in the outcome [as then] it is possible (though not
necessary) to infer that there is a policy at work.”).
The

City

takes

two

tacks

in

arguing

that

Sroga

pleaded that the City was deliberately indifferent.

has

not

First, it

points out that Sroga has made allegations with regards to only
his own experience.
make

out

a

Personal experience, says the City, does not

municipal

policy

since,

by

its

nature,

a

policy

necessarily affects persons other than the plaintiff.
The

Court

disagrees

insofar

as

it

does

not

think

that

reliance on personal experience is an absolute bar to pleading a
municipal policy.
(7th

Cir.

demonstrate

2008)
the

See, Grieveson v. Anderson, 538 F.3d 763, 774
(“[I]t

is

existence

not
of

impossible

an

official

for

policy

presenting evidence limited to his experience.”).
a

plaintiff’s

own

experience

may

fall

a

short

plaintiff
or

custom

to
by

The reason that
is

that

many

plaintiffs only have a single brush with the municipal policy.
See, e.g., Klinger v. City of Chi., No. 15-CV-1609, 2017 U.S.
Dist. LEXIS 26653, at *3-13 (N.D. Ill. Feb. 24, 2017) (pleading
constitutional violations based on one instance of excessive use
of force and cover-up); Lanton v. City of Chi., No. 16 C 2351,
2017 U.S. Dist. LEXIS 19741, at *3-9 (N.D. Ill. Feb. 13, 2017)
(complaining about a single failure to promote); Kowalski v. Cty.
- 35 -

of Dupage, No. 2013 CV 526, 2013 U.S. Dist. LEXIS 110967, at *2-3
(N.D. Ill. Aug. 7, 2013) (pleading one incident of excessive force
stemming from single arrest).
inadequate

because

Their personal experience thus is

“allegation

of

a

single

incident

of

unconstitutional conduct by a municipal employee usually does not
establish a sufficient basis for suing the municipality.”

Strauss

v. City of Chi., 760 F.2d 765, 767 (7th Cir. 1985); see also,
Thomas, 604 F.3d at 303 (“[T]here is no clear consensus as to how
frequently such conduct must occur to impose Monell liability,
except that it must be more than one instance, or even three.”)
(internal citations and quotation marks omitted); Klinger, 2017
U.S. Dist. LEXIS 26653, at *51-61 (dismissing the Monell claims
for failure to make out a municipal policy based on allegations of
a single instance of constitutional violation); Lanton, 2017 U.S.
Dist. LEXIS 19741, at *12-17 (same); Kowalski, 2013 U.S. Dist.
LEXIS 110967, at *6-7 (same).
However,

Sroga’s

Complaint

does

not

fall

prey

to

this

vulnerability.

He has alleged more than one encounter with the

City’s policy.

Specifically, he has alleged eight instances in

which the City allegedly conducted an unlawful Confidential VIN
check on his vehicle.

In recognition of the fact that Sroga’s

experience with tows and arrests certainly is plentiful, the Court
will not dismiss his Complaint on the ground that he has pleaded
- 36 -

only his personal experience.

See, Ojeda v. Kramer, No. 15 CV

7309, 2017 U.S. Dist. LEXIS 51717, at *13-14 (N.D. Ill. Apr. 5,
2017) (“The sum of Plaintiff Ojeda’s multiple allegations, taking
place over the course of up to two months, do not constitute a
single incident or a random event.”) (internal quotation marks
omitted); Barrios v. City of Chi., No. 15 C 2648, 2016 U.S. Dist.
LEXIS 4951, at *19-20 (N.D. Ill. Jan. 14, 2016) (“Barrios has
alleged that on multiple occasions — not just a single time — he
tried to get his car back by providing what should have been
definitive documentation establishing his right to drive his Honda
out of the pound, scot-free. . . .

These allegations plausibly

suggest that the City acted pursuant to a policy of trying to part
people in Barrios’ situation from their cars[.]”); Hare v. Cty. of
Kane, No. 14 C 1851, 2014 U.S. Dist. LEXIS 172541, at *5-6 (N.D.
Ill.

Dec.

15,

2014)

(denying

a

motion

to

dismiss

when

the

plaintiff has “alleged frequent instances of a failure to provide
adequate medical treatment over a twenty-five day period”).
Second, and more on point, the City argues that Sroga’s eight
incidents cannot reasonably give rise to an inference that the
City was aware of a pattern of wrongful conduct.

That is, even if

the

eight

incidents

Sroga

pleads

had

happened

to

different

individuals, then still, the incidents are insufficient to make
out a policy.

This is because the alleged incidents occurred over
- 37 -

the course of more than a decade – any time from 2003 to 2014.
This comes out to less than one unlawful Confidential VIN check
every year.
any

City

One incident every year would hardly be enough to put

policymaker

on

notice

that

a

pervasive,

widespread

pattern of wrongful conduct was taking place.
The

Court

agrees.

The

tows

alleged

here

are

unlike

the

situations in any of the cases where the courts have found a
plaintiff’s personal experience sufficient to make out a municipal
policy.

In particular, the sporadic tows that Sroga has alleged

bear no resemblance to the “frequent instances of a failure to
provide adequate medical treatment over a twenty-five day period”
pleaded in Hare.

Hare, 2014 U.S. Dist. LEXIS 172541, at *5.

Neither are they like the “continual[] . . . improper dosages” the
plaintiff

in

Ojeda

received

over

two

months.

Ojeda,

2017

U.S.

Dist. LEXIS 51717, at *13-14 (internal quotation marks omitted).
Nor do the periodic tows stretching over ten years recall the
every-few-day refusals by the City to release the plaintiff’s car
in Barrios.

Barrios, 2016 U.S. Dist. LEXIS 4951, at *10.

In sum, the Court concludes that Sroga’s eight tows are too
scattershot to raise an inference that “City policymakers were
aware of the behavior of the officers, or that the activity was so
persistent and widespread that City policymakers should have known
about the behavior.”

Latuszkin v. City of Chi., 250 F.3d 502, 505
- 38 -

(7th Cir. 2001).

Accordingly, his Monell claim must be dismissed.

See, id.; Johnson v. Sandidge, 87 F.Supp.2d 832, 834 (N.D. Ill.
1999) (“[A] municipality can be held liable only if it had actual
or imputed awareness of the custom and its consequences, thereby
showing

the

municipality’s

approval

of

the

alleged

unconstitutional violation.”) (citing Sims v. Mulcahy, 902 F.2d
524, 543 (7th Cir. 1990)).
This conclusion is bolstered by the fact that there is an
obvious

lawful

vehicles.
Cir.

explanation

for

the

City’s

tows

of

Sroga’s

See, McCauley v. City of Chi., 671 F.3d 611, 616 (7th

2011)

(“If

the

allegations

give

rise

to

an

obvious

alternative explanation, then the complaint may stop short of the
line

between

relief.”)
omitted).

possibility

(internal

and

citations,

plausibility
alterations

of

entitlement

and

quotation

to

marks

In this case, the alternative explanation to Sroga’s

vehicles being towed without probable cause out of pure spite is
that they were towed because their VINs were not visible.
Recall that Sroga alleges that the Confidential VIN checks
were performed for two reasons:

(1) “to verify that the vehicle

subject to the check has [] a VIN Number,” and (2) to “verify that
essential parts are not stolen.” Am. Compl. ¶ 26.

Sroga does not

complain that this dual purpose of the Confidential VIN checks
policy

is

improper.

Specifically,
- 39 -

he

does

not

assert

that

ordering a Confidential VIN check to verify that the vehicle has a
VIN is unconstitutional.
deprived

him

of

his

Yet, he says that the City’s policy

constitutional

rights

because

it

does

not

require “probable cause to believe the vehicles are stolen or have
stolen parts.” Id. ¶ 28.

Sroga thus skips over the first reason

why a Confidential VIN check may be ordered:

to verify the VIN.

He instead focuses exclusively on how his vehicles do not fall
into the second category.

This is inadequate as Sroga does not

complain that towing a car to verify its VIN deprives the car
owner of his rights under the Constitution.
Moreover, even assuming that a Confidential VIN check should
be ordered only when a vehicle is suspected of being stolen or
containing

stolen

parts,

then

according

to

Sroga’s

Complaint,

checking and verifying the VIN number is the way CPD personnel
ascertain whether a vehicle falls into this category. See, Am.
Compl.

¶ 27

(alleging

that

“when

CPD

lists

a

vehicle

for

a

Confidential VIN check, it is towed and CPD personnel then search
the vehicle to check and verify the VIN numbers”).

Thus, the

obvious alternative explanation to why Sroga’s vehicles were towed
is apparent on the face of the Complaint itself:

they were towed

because their VINs were not visible and so could be verified only
after

a

tow.

That

Sroga

pleads

such

details

about

the

verification of the VINs and yet fails to say that the VINs on his
- 40 -

vehicles were easily verifiable is a pregnant omission that, along
with everything else already discussed, stops his Complaint short
of “the line between possibility and plausibility of entitlement
to relief.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 548 (2007).

Finally, to the extent that Sroga’s Monell claim is premised
on

the

June

violations

18,

2014
the

against

incident,
individual

incident have been dismissed.

his

alleged

Defendants

constitutional
based

on

that

It is true that “a municipality can

be held liable under Monell, even when its officers are not.”
Thomas, 604

F.3d

at

305

(“[W]e

find

unpersuasive

the

County’s

argument that it cannot be held liable under Monell because none
of

its

employees

were

constitutional rights. . ..
is much narrower:

found

to

have

violated

Smith’s

The actual rule, as we interpret it,

a municipality can be held liable under Monell,

even when its officers are not, unless such a finding would create
an inconsistent verdict.”) (emphasis in original).

However, such

a finding of naked municipality liability, unaccompanied by any
individual defendant’s liability, is usually possible only where
the individual defendants assert some sort of affirmative defense.
See, id. (stating in its discussion of Los Angeles v. Heller, 475
U.S. 796, (1986) that “If, for instance, the officer had pled an
affirmative defense such as good faith, then the jury might have
found

that

the

plaintiff’s

constitutional
- 41 -

rights

were

indeed

violated, but that the officer could not be held liable. . ..
[But] [w]ithout any affirmative defenses, a verdict in favor of
the officer necessarily meant that the jury did not believe the
officer violated the plaintiff’s constitutional rights.”).
In this case, none of the Chicago Police Officer Defendants
relied
against

on

an

them.

affirmative
While

defense

the

Court

to

the

did

constitutional

dismiss

the

claims

Sanitation

Defendants on a finding of qualified immunity, the charge against
these Defendants – that they seized Sroga’s vehicle by parking
next to his car in such a way as to prevent him from driving away
– is not linked to the municipal policy Sroga alleges.

As such,

the City’s policy (assuming arguendo that there is one) was not
the “moving force” behind Sroga’s constitutional violation (to the
extent that there was such a violation).

See, Gable, 296 F.3d at

537 (“[T]o maintain a § 1983 claim against a municipality, one
must establish . . . the requisite causation (the policy or custom
was the ‘moving force’ behind the constitutional deprivation).”).
Sroga thus has not pleaded any constitutional violation upon which
he can seek to hold the City liable on a Monell theory.
Accordingly, the Court dismisses the Monell claim (Count XI)
against the City of Chicago.

- 42 -

III.

CONCLUSION

For the reasons stated herein, City of Chicago’s Motion to
Dismiss [ECF No. 54] is granted.
The Individual Defendants’ Motion to Dismiss [ECF No. 52] is
granted in part and denied in part as follows:
1.

Counts I and VIII are dismissed with prejudice;

2.

Counts II, III, IV, VI, VII, IX, and XI are dismissed

without prejudice; and
3.

Count

X

survives

the

dismissal,

as

limited

to

the

allegation that the Defendants should have intervened to stop the
use of excessive force at the scene of the tow and arrest.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: August 3, 2017

- 43 -