Trettenero v. Kendall County Illinois et al

Filing 33

MEMORANDUM Opinion and Order: For the reasons stated in the attached memorandum opinion and order, because the Complaint sufficiently alleged the plausibility of a constitutional injury and for the reasons explained, Defendants' motion to dismi ss 24 is denied. The Court strikes the statement that Trettenero "never presented any threat to either officer" in paragraph 24 and all of paragraph 26 in the Amended Complaint. Signed by the Honorable Virginia M. Kendall on 1/17/2017:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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TASHA TRETTENERO,
Plaintiff,
v.
KENDALL COUNTY, ET AL.
Defendants.

No. 16 C 05892
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiff, Tasha Trettenero claims that Defendants Deputy Brian Harl and Deputy Robert
Lechowicz violated her constitutional rights when arresting her on June 7, 2014. She brings
claims against the Defendants under 42 U.S.C. § 1983 for Excessive Force (Count I), Failure to
Intervene (Count II), and Conspiracy to Deprive Constitutional Rights (Count III). Defendants
move to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). 1

Defendants argue

Trettenero’s claims are barred by collateral estoppel and the Heck doctrine. For the reasons
stated below, the Motion is denied.
BACKGROUND
The Court takes the following allegations from the Complaint and treats them as true for
purposes of the motion. See Vinson v. Vermillion County, Ill., 776 F.3d 924, 925 (7th Cir. 2015).
On June 7, 2014, at 9:00 p.m., Deputy Harl pulled Trettenero over in a traffic stop near
Route 30 and Briarcliff Road in Montgomery, Illinois in an unmarked car. (Dkt. 13 at ¶ 2.)
Trettenero, an unarmed 135 pound 24-year-old, was driving alone at the time of the stop on a
vacant roadway. Trettenero was therefore reluctant, and ultimately refused, when Deputy Harl
1

In addition to her Section 1983 claims, in Count IV Trettenero brings a claim for Respondent Superior
against Kendall County, and in Count V she asks for indemnification. In response to Defendants’ Motion
to Dismiss, Trettenero voluntarily dismisses these claims.

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asked her to step out of her vehicle without providing a reason. (Id. at ¶¶ 14, 17.) Deputy Harl
then proceeded to grab Trettenero by her ponytail, pull her out of the car, and slam her face down
onto the roadway. (Id. at ¶ 19.) When she was on the ground, he dug his knee into her back and
ground her face into the road. (Id. at ¶ 20.) Meanwhile, Deputy Lechowicz arrived, and
positioned his vehicle so that his dashcam was obstructed by Deputy Harl’s vehicle. (Id. at ¶ 31.)
Deputy Lechowicz joined Deputy Harl in physically assaulting Trettenero. (Id. at ¶¶ 21-22.)
Trettenero further alleges that she never “hit, kicked, or injured either officer.” (Id. at ¶ 26.)
Trettenero attached two photographs to her Complaint which show bruising to her eye
and her thigh.

(Dkt. 13 at 2.)

Additionally, although Deputy Lechowicz’s dashcam was

obstructed by Deputy Harl’s vehicle, there is an audio recording of the incident. Trettenero
alleges that in the recording she asks why she is being attacked, and screams and weeps telling
the officers that they are hurting her.

(Id. at ¶ 32.) The recording also captures Deputy

Lechowicz asking “do you like it” while assaulting her. (Id. at ¶ 34.)
The resulting information charged Trettenero with:
…AGGRAVATED BATTERY … in that said defendant knowing
Deputy Robert Lechowicz to be a peace officer … knowingly
made physical contact of an insulting or provoking nature with
Deputy Robert Lechowicz in that she kicked Deputy Robert
Lechowicz multiple times in the lower abdomen and upper thigh
area.
(Dkt 24-4 at 2.) On April 22, 2015, Trettenero was found guilty of battery to a police officer and
resisting arrest after a bench trial in Kendall County, Illinois. (Dkt. 13 at ¶ 34.) The judge
rendered a verdict of not guilty for the alleged traffic violations. (Dkt. 24-4 at 1.) Trettenero
was sentenced to 90 days of incarceration, 36 months of probation, as well as other fines,
counseling, and treatment. (Dkt. 13 at ¶ 34.) She appealed the conviction, and her appeal is
pending. (Id. at ¶ 34.)
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Defendants filed a Motion to Dismiss the Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(6) arguing that Trettenero’s state court conviction bars her civil claims pursuant
to the doctrine of collateral estoppel and/or the Heck doctrine.
LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the
viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.
Fed. R. Civ. P. 12(b)(6); Doe v. Village of Arlington Heights, 782 F.3d 911, 914 (7th Cir. 2015).
To survive a motion to dismiss under Rule 12(b)(6), the complaint must provide sufficient facts
so as to “state a claim to relief that is plausible on its face” and “raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court accepts all
well-pled facts as true and views them in the light most favorable to the plaintiff. Hatmaker v.
Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010).
DISCUSSION
Neither the doctrines of collateral estoppel nor Heck warrant dismissal of Trettenero’s
Complaint. While Trettenero is estopped from relitigating issues determined in her criminal
case, specifically whether she committed a battery against the Defendants, her Complaint states a
claim that her constitutional rights were violated when Defendants used unreasonable force in
arresting her, and those allegations do not upset her criminal conviction. The Court strikes,
however, those portions of her Complaint that are in direct conflict with the criminal conviction.
A. Collateral Estoppel
Illinois law governs whether Trettenero is precluded from pursuing a § 1983 claim. See
Brown v. City of Chicago, 599 F.3d 772, 774 (7th Cir. 2010). To invoke collateral estoppel
under Illinois’ preclusion rules, a defendant must demonstrate that:

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(1) the issue decided in the prior adjudication is identical to the issue presented in the current
case; (2) the prior adjudication resulted in a final judgment on the merits; and (3) the plaintiff
was a party or is in privity with a party in the prior adjudication. Illinois State Chamber of
Commerce v. Pollution Control Bd., 78 Ill.2d 1, 7, 398 N.E.2d 9, 11 (1979). In determining
whether Trettenero’s claims are barred, it must “conclusively appear that the matter of fact was
so in issue that it was necessarily determined.” Wells v. Coker, 707 F.3d 756, 762 (7th Cir.
2013). The Court does not apply estoppel “if there is any uncertainty on the point.” Id.
Defendants argue that because Trettenero was convicted of aggravated battery, the issue
is identical in her civil lawsuit for excessive force. (Dkt. 25 at 4.) In the criminal case, however,
the trial court only determined that Trettenero resisted arrest and committed aggravated battery
when she kicked Deputy Harl during the arrest. In other words, the trial court focused on
Trettenero’s conduct, not the Defendants.

Here, the issue is whether Defendants used

unreasonable force during the course of the arrest. For example, while the issue of whether
Trettenero resisted arrest was litigated in her criminal case, in her civil suit she concedes that she
refused Deputy Harl’s command for her to leave her vehicle, but brings a Complaint that he
proceeded to pull her by the ponytail out of her vehicle. (Dkt. 13 at ¶ 4.) Trettenero’s conduct in
her criminal case is not identical to the issue of the Deputies’ conduct in her civil suit.
Defendants, therefore, do not meet the first element of collateral estoppel.
In support of their estoppel argument, Defendants also argue that the criminal conviction
is prima facie evidence of the facts underlying Trettenero’s conviction. Defendants cite to the
Thornton prima facie evidence rule discussed in Bay State Ins.Co. v. Wilson, 96 Ill.2d 487, 451
N.E.2d 880, 882 (Ill. 1983) (citing Thornton v. Paul, 74 Ill.2d 132 (1978)) which they assert
precludes Trettenero from litigating Defendants’ conduct during the arrest. Many years ago,

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Thornton stood for the proposition that criminal convictions were only prima facie evidence in a
civil suit, and a plaintiff was still given the opportunity to rebut the factual evidence in the
underlying conviction in the civil suit. Id. Yet, for at least fifteen years, this is no longer the
law. After Am. Family Mut. Ins. Co. v. Savickas, 193 Ill. 2d 378, 384 (2000), a criminal
conviction “now acts as a bar and collateral estops the retrial of issues in a later civil trial that
were actually litigated in the criminal trial.” Id. citing Zinger v. Terrell, 336 Ark. 423, 428
(1999) (collecting authorities and overruling its prior precedent to allow estoppel effect to be
accorded to criminal convictions).
While Trettenero is not barred from bringing her suit under Illinois estoppel law, she is
precluded from litigating whether she physically harmed the Defendants, a fact already
determined in her criminal suit. In Trettenero’s Complaint, there are two paragraphs containing
allegations inconsistent with her criminal conviction: in paragraph 26 Trettenero alleges that she
“never hit, kicked, or injured either officer” (Dkt. 13 at ¶ 26), and the

statement within

paragraph 24 that Trettenero “never presented any threat to either officer.” 2 Tellingly, these
paragraphs constitute the gravamen of Defendants’ Reply brief. (Dkt. 31.) While Trettenero is
estopped from relitigating whether she committed a battery upon the officers, she is not estopped
from litigating whether Defendants’ conduct violated her constitutional rights.
The Court strikes that portion of the Complaint, paragraph 26 and the statement in
paragraph 24 that Trettenero “never presented any threat to either officer,” because these
allegations are inconsistent with Trettenero’s criminal conviction. See Fed. R. Civ. P. 12(f)(1)
(the court may order stricken from any pleading any “redundant, immaterial, impertinent, or
scandalous matter”); see also Talbot v. Robert Matthews Distributing Co., 961 F.2d 654 (7th
2

The remaining portion of paragraph 24, that Trettenero is “5 and a half feet tall and weighs 135 pounds”
is not stricken. It is conceivable that this portion of the allegation may credit Trettenero’s testimony that
she was frightened and did not want to leave her car when pulled over.

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Cir. 1992) (District court did not abuse its discretion in striking “scandalous” paragraphs devoid
of any factual basis); see also Fed. Nat. Mortg. Ass'n v. Cobb, 738 F. Supp. 1220, 1224 (N.D.
Ind. 1990) (“Court may strike matter from pleading on its own initiative where doing so
advances progress of litigation.”) (internal citations omitted); see also Moore v. Mahone, 652
F.3d 722, 723-24 (7th Cir. 2011) (a judge may disregard those portions of a complaint in a civil
suit that conflict with the underlying criminal conviction) (citing U.S. ex rel. Garst v. LockheedMartin Corp., 328 F.3d 374, 378 (7th Cir. 2003) (“Instead of insisting that the parties perfect
their pleadings, a judge should bypass the dross and get on with the case.”).) Absent the
allegations that Trettenero did not kick Deputy Harl, she states a plausible claim for relief that is
not barred by collateral estoppel. See Ashcroft v. Iqbal, 556 U.S. 662 (2009).
B. The Heck Doctrine
The Heck doctrine holds that the plaintiff in an action under 42 U.S.C. § 1983 may not
pursue a claim for relief that implies the invalidity of a criminal conviction, unless that
conviction has been set aside by appeal, collateral review, or pardon. Heck v. Humphrey, 512
U.S. 477, 486 (1994). But this is not to say that a plaintiff convicted of resisting arrest or
assaulting a police officer during the course of an arrest may not subsequently maintain a § 1983
action for excessive force stemming from the same confrontation. See McCann v. Neilsen, 466
F.3d 619, 621 (7th Cir. 2003) (A contrary conclusion would “imply that once a person resists law
enforcement, he has invited the police to inflict any reaction or retribution they choose, while
forfeiting the right to sue for damages.”) (internal citations omitted); see also Helman v.
Duhaime, 742 F.3d 760, 762 (7th Cir. 2014) (plaintiff convicted of resisting arrest can proceed
on a Section 1983 excessive force claim to the extent that the facts underlying the excessive
force claim are not inconsistent with the essential facts supporting the conviction.).
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Defendants argue that Trettenero cannot succeed in her Section 1983 claim without
undermining her criminal conviction and thus she is barred by Heck.

In support of their

argument, Defendants rely on the Seventh Circuit’s decision in Okoro v. Callaghan, 324 F.3d
488, 490 (7th Cir. 2003). In that case, despite being convicted of selling drugs to an undercover
officer, plaintiff Okoro maintained in his civil trial for unconstitutional search and seizure that he
had not sold drugs. Okoro alleged that, rather than drugs, he had been trying to sell gems, and
that the police officers stole these gems and framed Okoro. The Circuit noted that Okoro could
have maintained the position that the defendants had taken both gems and drugs, casting no
cloud over the conviction; or he could’ve argued that the police took the gems and said nothing
of the drugs, and then he would not actually be challenging the guilty verdict. Id. at 490.
Instead, Okoro refused to maintain an “agnostic position toward his conviction” and thus his
claim could not succeed unless his conviction was invalid. See Gilbert v. Cook, 512 F.3d 899,
901–02 (7th Cir. 2008). By challenging the guilty verdict, Okoro was barred by Heck.
Trettenero contends this case is more analogous to Evans v. Poskon, 603 F.3d 362, 36364 (7th Cir. 2010), rather than Okoro. In Evans, the plaintiff made three contentions in a civil
suit brought against officers to 42 U.S.C. § 1983: “(1) that he did not resist being taken into
custody; (2) that the police used excessive force to effect custody; and (3) that the police beat
him severely even after reducing him to custody.” Evans, 603 F.3d at 364. The Seventh Circuit
concluded that the plaintiff’s suit survived a Heck challenge because it did “not understand
Evans to assert that he is advancing propositions (2) and (3) if and only if the district court
accepts proposition (1).” Id. Trettenero similarly does not rest the weight of her Complaint on
the allegations that she did not physically harm Defendants; she has a plausible claim based on
allegations that are similar to Evans’ propositions (2) and (3).

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Trettenero admits that the allegation that she did not “hit[], kick[], or injure[] either
officer,” (Dkt. 13 at ¶ 26), necessarily implies the invalidity of her conviction, but suggests this
could be cured at trial with a Gilbert instruction. (Dkt. 30 at 9) (citing Gilbert 512 F.3d at 902.)
In Gilbert, portions of the plaintiff’s testimony in his civil suit, if accepted, would have
undermined his criminal conviction in the underlying lawsuit. The trial court cured this by
instructing the jury that Gilbert struck the first blow against the officer defendants in his civil suit
and that any statements to the contrary by Gilbert must be ignored. Id. While Trettenero’s
suggestion of a Gilbert instruction demonstrates that she does not rest her claims on the
allegation that she did not harm the officers, the Court need not wait for the jury trial to address
the issue. Trettenero may not relitigate the allegations in paragraph 26, or the statement that she
did not pose a threat to the Defendants in paragraph 24, which were clearly subject in the
criminal case.

In addition to the reasons stated under Illinois’ collateral estoppel doctrine, the

Court strikes this paragraph as bared by the Heck doctrine.
Defendants maintain that Moore v. Mahone requires dismissal of the Complaint. Moore,
652 F.3d at 723-724. In that case, plaintiff Moore denied in his civil suit that he was violent
against the defendant prison guards in an incident that resulted in disciplinary action against him.
His allegations that he was not violent were in direct contradiction to the prison board’s findings
in the disciplinary action. But the Moore decision undermines Defendants’ position that the case
should be dismissed. The Seventh Circuit stated that the judge in Moore “could, perhaps should,
have disregarded, as mere surplusage, the portions of the complaint in which the plaintiff denies
the board’s findings.” Id. at 725. The judge could have retained the case on the authority of
Evans, and “just have forbidden the plaintiff to embroider his claim with the rejection of the
disciplinary board's findings.” Id. The court could not, however, dismiss the complaint with

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prejudice as it did, yet Defendants ask the Court to do just that based on Moore. Id. Defendants
also discuss Teague v. Armstead, 82 F.Supp.3d 817, 824–25 (N.D. Ill. 2015), but in Teague, the
court had the benefit of a record on summary judgment in making a determination as to whether
the plaintiff’s claims were barred by Heck. Only after reviewing the entire record did the court
determine that the plaintiff could not remain “agnostic” about the state court findings: “Teague’s
theory, and the evidence Teague has offered supporting it, presents a ‘clear sequence of
events’… Teague’s version of the events and Officer Armstead's version of the events (which
was adopted by the trial court) are mutually exclusive.” Id. at 826. It is not clear whether
Trettenero’s narrative at trial would inherently contradict the criminal conviction. It is clear that
a dismissal on that basis would be premature.
The other cases that Defendants rely on are likewise unpersuasive. First, many of the
cases are not precedential, and similar to Teague, the cases were at the summary judgment stage.
See Crooms v. Mercado, 955 F.Supp. 985, 987 (N.D. Ill. 1997) (the district court granted
summary judgment holding that no reasonable trier of fact could find that the officer used
excessive force according to the plaintiff’s version of the incident.); see also Holder v. Ivanjack,
93 F. Supp. 2d 933, 939 (N.D. Ill. 2000) (the district court granted summary judgment and relied
on deposition testimony in determining that plaintiff could not succeed in the civil rights claim
without invalidating the underlying arrest.) Finally, while Case v. Milewski, 327 F.3d 564 (7th
Cir. 2003) is precedential, the plaintiff specifically relied on the theory that the defendants did
not have probable cause to arrest him in his claim for false arrest. Id. at 568. A false arrest claim
always implies the invalidity of a conviction. Id. at 567-9. In contrast, Trettenero’s excessive
force claim may coexist peacefully with her criminal conviction.
C. Trettenero’s Failure to Intervene and Conspiracy Claims

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Defendants focus their argument on the inconsistency between Trettenero’s excessive
force claim in Count I and her underlying criminal conviction. The only argument Defendants
set forth with respect to the remaining two counts for failure to intervene and conspiracy are that
those claims rest on the excessive force claim and “if there is no underlying excessive force
claim, Plaintiff’s entire claim must be dismissed.” (Dkt. 25 at 8) (citing Abdullahi v. City of
Madison, 423 F.3d 763, 767–68 (7th Cir. 2005).) Because Defendants do not otherwise address
Counts II and III, the Court will not address the sufficiency of the pleading with respect to those
counts.
CONCLUSION
Because the Complaint sufficiently alleged the plausibility of a constitutional injury and
for the reasons explained above, Defendants’ motion to dismiss is denied. The Court strikes the
statement that Trettenero “never presented any threat to either officer” in paragraph 24 and all of
paragraph 26 in the Amended Complaint.

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Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: January 17, 2017

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