DeAngelo v. Veach et al
Filing
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MEMORANDUM Opinion and Order: In accordance with the accompanying Memorandum Opinion and Order, Defendants Theodoropoulos and Adobe Gila's Motion to Dismiss Count III of Plaintiff's complaint against them is granted without prejudice. See Order for further details. Status hearing previously set for 9/28/17 at 10:30 a.m. will stand. Signed by the Honorable Marvin E. Aspen on 7/26/2017. Mailed notice(ep, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MATTHEW DEANGELO,
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Plaintiff.
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v.
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VILLAGE OF ROSEMONT,
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DANIEL VEACH, JOSEPH ALBANDIA, )
SPIRO THEODOROPOULOS,
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ADOBE GILA’S, MONTERREY
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SECURITY CONSULTANTS, INC.,
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UNKNOWN EMPLOYEES OF
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MONTERREY SECURITY
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CONSULTANTS, INC. and/or
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VILLAGE OF ROSEMONT,
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Defendants.
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No. 17 C 02571
Hon. Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Plaintiff Matthew DeAngelo filed this action seeking damages pursuant to state law
and 42 U.S.C. § 1983 for violations of his rights under the Fourth and Fourteenth Amendments.
Plaintiff’s complaint stems from an altercation in which he alleges Defendants forcibly removed
him from a Rosemont, Illinois restaurant, physically assaulted him, and then falsely charged him
with an ordinance violation for refusing to leave to the restaurant. Plaintiff asserts claims against
the restaurant, the restaurant manager, the Village of Rosemont, the arresting officers, Monterrey
Security Consultants, Inc., and several of its security guards. Presently before us is a motion to
dismiss Plaintiff’s malicious prosecution claim against Adobe Gila’s, the restaurant, and Spiro
Theodoropoulos, its facility manager. For the reasons set forth below, we grant Defendants’
motion, without prejudice.
BACKGROUND
For the purposes of a motion to dismiss, we accept all well-pleaded factual allegations as
true and draw all inferences in the plaintiff’s favor. Katz-Crank v. Haskett, 843 F.3d 641, 646
(7th Cir. 2016). During the early morning hours of August 7, 2016, Plaintiff was a patron of
Adobe Gila’s restaurant and bar in Rosemont, Illinois. (Compl. ¶ 13.) Around 1:00 a.m.,
Village of Rosemont police officers Daniel Veach and Joseph Albandia were dispatched to
Adobe Gila’s. (Id. ¶ 15.) Plaintiff was “swarmed” by Veach, Albandia, and unknown security
guards and law enforcement officers, who forcibly removed him from Adobe Gila’s and took
him to a private security office. (Id. ¶ 16.) Plaintiff alleges that at some point thereafter, as he
stood near the exit of the restaurant waiting for friends to leave with him, the defendants “struck
and kicked plaintiff about the face and body resulting in bruising and a concussion.” (Id. ¶ 17.)
Plaintiff further alleges that in “order to conceal their tortious use of excessive force and batteries
upon the plaintiff, defendants maliciously and without probable cause charged plaintiff Matthew
DeAngelo with a municipal ordinance violation of trespass, asserting that plaintiff had ‘entered
5455 Park PL [sic] (Adobe Gila’s) after being told to leave.’” (Id. ¶ 18.) Plaintiff contends that
to the contrary, he “at no time entered (or re-entered) the premises after being told to leave.”
(Id. ¶ 19.)
Plaintiff also alleges that at the time Officers Veach and Albandia entered the restaurant,
they spoke with Theodoropoulos.1 (Id. ¶ 40.) Plaintiff states that during that conversation,
“Theodoropoulos falsely and maliciously created a story about the actions of plaintiff DeAngelo
1
There is an internal conflict in the complaint as to the date the officers spoke with
Theodoropoulos, but we find it immaterial to deciding the pending motion. (Compare
Compl. ¶ 40 (alleging “at the time Officers Veach and Albandia entered the Adobe Gila’s on
August 6, 2017, they spoke with defendant Theodoropoulos, the manager of the facility”), with
id. ¶ 15 (alleging Officers Veach and Albandia were “dispatched” to Adobe Gila’s “[a]t or
about 1:00 AM, Sunday August 7, 2016”).)
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having ‘entered’ the restaurant after being told to leave.” (Id. ¶ 41.) Plaintiff further asserts that
“[a]s a result of that conversation, an ordinance violation complaint was executed by . . .
Theodoropoulos on behalf of his employer, thereby directly and proximately causing . . .
DeAngelo to be falsely charged with an ordinance violation.” (Id. ¶ 42.)
Plaintiff posted bond and was released from custody, after which he sought treatment for
his injuries. (Id. ¶ 21.) On October 6, 2016, following a proceeding before a municipal hearing
officer employed by Defendant Village of Rosemont, Plaintiff was found not guilty of violating
the ordinance. (Id. ¶ 22.) Plaintiff asserts he was falsely charged and the municipal trespass
complaint was fully resolved in his favor. (Id. ¶ 43.)
Plaintiff filed the instant complaint on April 4, 2017. Count I asserts a claim under
42 U.S.C §1983 against Officers Veach and Albandia, as well as other unknown law
enforcement officers, alleging violations of Plaintiff’s Fourth and Fourteenth Amendment rights
to be free from unreasonable seizures and excessive force. (Id. ¶ 28.) Count II asserts a state law
battery claim against the Village of Rosemont and Monterrey Security Consultants, Inc. on a
respondeat superior theory, alleging they are responsible for the actions of the arresting officers
and various unknown law enforcement officers and security guard employees. (Id. ¶ 32.)
Finally, Count III alleges a state law malicious prosecution claim against Adobe Gila’s and
Theodoropoulos. (Id. ¶¶ 39–43.) On May 5, 2017, Adobe Gila’s and Theodoropoulos filed a
motion to dismiss Count III of the complaint. (Dkt. No. 15.)
LEGAL STANDARD
Defendants’ motion to dismiss for failure to state a claim upon which relief may be
granted is governed by Federal Rule of Civil Procedure 12(b)(6). In ruling on a 12(b)(6) motion,
the court accepts “the allegations in the complaint as true unless they are ‘threadbare recitals of a
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cause of action’s elements, supported by mere conclusory statements.’” Katz-Crank,
843 F.3d at 646 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009)).
The complaint must state a claim that is plausible on its face. St. John v. Cach, LLC,
822 F.3d 388, 389 (7th Cir. 2016) (citing Vinson v. Vermilion Cnty., Ill., 776 F.3d 924, 928
(7th Cir. 2015)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. The plausibility standard “is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1964–65). That is,
while the plaintiff need not plead “detailed factual allegations,” the complaint must allege facts
sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555,
127 S. Ct. at 1964–65.
ANALYSIS
In order to state a claim for malicious prosecution under Illinois law, a plaintiff must
allege: “(1) the commencement or continuance of an original criminal or civil judicial
proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff;
(3) the absence of probable cause for such proceeding; (4) malice; and (5) damages.”
Cairel v. Alderden, 821 F.3d 823, 834 (7th Cir. 2016) (citing Sang Ken Kim v. City of Chi.,
368 Ill. App. 3d 648, 653, 858 N.E.2d 569, 574 (Ill. 2006)); Szczesniak v. CJC Auto Parts, Inc.,
2014 IL App (2d) 130636, ¶ 10, 21 N.E.3d 486, 490. “The absence of any one of these elements
bars a plaintiff from pursuing the claim.” Swick v. Liautaud, 169 Ill. 2d 504, 511,
662 N.E.2d 1238, 1242 (Ill. 1996) (citing Joiner v. Benton Cmty. Bank, 82 Ill. 2d 40, 45,
411 N.E.2d 229, 232 (Ill. 1980)). A municipal ordinance violation may serve as the basis for a
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malicious prosecution claim. See, e.g., Intl. Aerobatics Club Ch. 1 v. City of Morris,
76 F. Supp. 3d 767, 787–88 (N.D. Ill. 2014) (refusing to dismiss a malicious prosecution claim
based on a municipal ordinance violation). However, “the law does not look with favor upon
malicious prosecution suits, because of the general principle that the courts should be open for
litigants to settle their rights without fearing prosecution for doing so.” Indep.
Plus, Inc. v. Walter, 2012 IL App (1st) 111877, ¶ 19, 982 N.E.2d 860, 866; accord.
Joiner, 82 Ill. 2d at 44, 411 N.E.2d at 231 (“This court and others have indicated that suits for
malicious prosecution are not favored in law.”); Logan v. Caterpillar, Inc., 246 F.3d 912, 921
(7th Cir. 2001) (“At the outset, we note that malicious prosecution suits are disfavored by law
because of the potential deterrent effect on the reporting of crime.”). “Public policy encourages
the exposure of crimes and citizen cooperation, and these interests are furthered by narrowly
circumscribing the instances in which malicious prosecution actions may be brought,” and
therefore, individual citizens “acting in good faith who have probable cause to believe that
crimes have been committed should not be deterred from reporting them out of fear of
unfounded suits by those they have accused.” Allen v. Berger, 336 Ill. App. 3d 675, 678,
784 N.E.2d 367, 369–70 (1st Dist. 2002).
Defendants’ substantively spare motion only challenges the first and second elements of
Plaintiff’s malicious prosecution claim, arguing the complaint fails to sufficiently plead the
commencement of a proceeding or that it was terminated in Plaintiff’s favor. (Mem. ISO Mot. to
Dismiss (“Mem.”) (Dkt. No. 16) ¶¶ 6–7.) As Theodoropoulos and Adobe Gila’s have not
addressed whether the complaint sufficiently alleges the other elements of Plaintiff’s malicious
prosecution claim against them, we do not address the plausibility of Plaintiff’s allegations as to
those elements. G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012)
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(“We have repeatedly held that a party waives an argument by failing to make it before the
district court. That is true whether it is an affirmative argument in support of a motion to dismiss
or an argument establishing that dismissal is inappropriate.” (internal citations omitted)).
A criminal proceeding is commenced when a complaint, an information, or an indictment
is filed. Szczesniak, 2014 IL App (2d) 130636, ¶ 11, 21 N.E.3d at 491
(citing 725 ILCS 5/111–1). “Illinois law requires that, in order to commence or continue a
criminal proceeding, the defendant must have initiated the criminal proceeding or ‘his
participation in it must have been of so active and positive a character as to amount to advice and
cooperation.’” Logan, 246 F.3d at 922 (quoting Denton v. Allstate Ins. Co.,
152 Ill. App. 3d 578, 584, 504 N.E.2d 756, 760 (1st Dist. 1986)). “Thus, a private citizen does
not commence a criminal action merely by reporting information to the police—even if the
information later turns out to be incorrect.” Id. (citing Randall v. Lemke,
311 Ill. App. 3d 848, 850, 726 N.E.2d 183, 185 (2d Dist. 2000)); accord. Allen,
336 Ill. App. 3d at 678, 784 N.E.2d at 369–70 (explaining “a person who unwittingly gives a
prosecuting officer false information of another person’s alleged crime is not liable for malicious
prosecution, unless the person takes an active part in instituting criminal proceedings, by
requesting, directing, or pressuring the prosecuting officer into instituting the proceedings”).
Rather, legal causation exists with respect to a private citizen if the defendant knowingly
made false statements to a police officer, who then swears out a complaint.
Logan, 246 F.3d at 922; Denton, 152 Ill. App. 3d at 584, 504 N.E.2d at 760 (“[T]he attribution of
police action to a defendant requires that the defendant requested, directed or pressured an
officer into swearing out a complaint for plaintiff’s arrest, or that defendants knowingly gave
false information to the police.”). But even if an informer knowingly provides false information,
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“he or she is not liable for ‘commencing’ a criminal proceeding if the prosecution is based upon
separate or independently developed information.” Szczesniak, 2014 IL App (2d) 130636, ¶ 11,
21 N.E.3d at 491; Randall, 311 Ill. App. 3d at 851, 726 N.E.2d at 186 (“[W]hen an informer
knowingly gives false information to a prosecuting officer, he commences the prosecution only if
the prosecution is ‘based upon’ the false information.”). Alternatively, a plaintiff may show that
the “the defendant continued the proceeding by actively encouraging the prosecution despite
knowing that no probable cause existed.” Szczesniak, 2014 IL App (2d) 130636, ¶ 11,
21 N.E.3d at 491; accord. Denton, 152 Ill. App. 3d at 584, 504 N.E.2d at 760 (finding plaintiff
must establish that the defendant took an active part in the prosecution after learning no probable
cause existed and where the defendant’s “‘share in continuing the prosecution [is] active, as by
insisting upon or urging further prosecution’” (quoting Restatement (2d) of Torts § 655, cmt. c)).
Plaintiff alleges upon information and belief that Theodoropoulos spoke with Officers
Veach and Albandia at the time they entered Adobe Gila’s, and that “during that conversation
defendant Theodoropoulos falsely and maliciously created a story about the actions of plaintiff
DeAngelo having ‘entered’ the restaurant after being told to leave,” when “[i]n fact, plaintiff at
no time entered (or re-entered) the premises after being told to leave.” (Id. ¶¶ 40–41.) Plaintiff
asserts that as “a result of that conversation, an ordinance violation complaint was executed by
defendant Theodoropoulos on behalf of his employer, thereby directly and proximately causing
plaintiff DeAngelo to be falsely charged with an ordinance violation.” (Id. ¶ 42.) Elsewhere, the
complaint alleges that after “unknown security guards and law enforcement officers, along with
defendants Veach and Albandia” struck and kicked Plaintiff, “[i]n order to conceal their tortious
use of excessive force and batteries upon the plaintiff, the defendants maliciously and without
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probable cause” charged Plaintiff with a trespass violation for entering Adobe Gila’s after being
told to leave. (Id. ¶¶ 16–18.)
On the one hand, Plaintiff’s allegations convey that Theodoropoulos, acting in his
capacity as facility manager on behalf of Adobe Gila’s, executed an ordinance violation
complaint and created a false story that Plaintiff entered the restaurant after being told to leave.
However, Plaintiff simultaneously alleges that all of the defendants, including Officers Veach
and Albandia, asserted that Plaintiff entered Adobe Gila’s after being told to leave and
“maliciously and without probable cause” charged Plaintiff with a trespass violation “[i]n order
to conceal their tortious use of excessive force and batteries.” (Id. ¶ 18.) Taking Plaintiff’s
allegations as true, and viewing them in a light most favorable to him, his complaint establishes
that even though Theodoropoulos may have executed a complaint based on knowingly false
information, the officers independently acted to falsely charge Plaintiff in order to conceal their
own conduct. See, e.g., Randall, 311 Ill. App. 3d at 850, 726 N.E.2d at 185 (finding plaintiff’s
allegations that “defendant instigated the prosecution by ‘willfully’ and ‘wantonly’ making a
‘false report’ to the police” were sufficient to “convey[] that defendant knowingly gave false
information,” but concluding plaintiff’s claim failed because in addition to the informer’s false
report, the prosecution was based upon the police’s independently gathered information);
Johansen v. Officer Haydysch, No. 14 C 4994, 2015 WL 7568447, at *3
(N.D. Ill. Nov. 25, 2015) (granting motion to dismiss where plaintiff’s complaint established that
even if the private citizen had lied to the police, the police officers “went rogue and trumped up
the theft charge” against plaintiff, and their superseding conduct was thus an independent cause
of the prosecution initiated against the plaintiff).
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Nor does it matter that the officers would not have been dispatched to Adobe Gila’s and
they would not have investigated Plaintiff without Theodoropoulos’ false information, because
the charges were not based upon his report alone. See Randall, 311 Ill. App. 3d at 850,
726 N.E.2d at 185 (“If the officer relies upon the informer’s report, the informer interferes with
the officer’s intelligent exercise of discretion, and the informer may be subject to liability. If,
however, the prosecution is based upon separate information, the informer does not affect the
officer’s discretion, and the officer alone is responsible for the prosecution.”). Further, the
complaint contains no allegations supporting a claim that Theodoropoulos or Adobe Gila’s
continued the proceeding by actively encouraging the prosecution despite knowing that no
probable cause existed. Szczesniak, 2014 IL App (2d) 130636 ¶ 14; Denton, 152 Ill. App. 3d at
584, 504 N.E.2d at 760. Aside from alleging Theodoropoulos spoke with Officers Veach and
Albandia and then executed an ordinance violation complaint, Plaintiff does not allege any
subsequent involvement or conduct by Theodoropoulos or Adobe Gila’s. Accordingly,
Theodoropoulos and Adobe Gila’s did not commence the prosecution of Plaintiff, and they may
not be held liable for malicious prosecution. Defendants’ motion to dismiss Count III against
them is granted.
CONCLUSION
For the reasons set forth above, Defendants Theodoropoulos and Adobe
Gila’s Motion to Dismiss Count III of Plaintiff’s complaint against them is granted without
prejudice. It is so ordered.
___________________________________
Honorable Marvin E. Aspen
United States District Judge
Dated: July 26, 2017
Chicago, Illinois
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