United States District Court, N.D. Illinois, Eastern Division
July 20, 2004.
KIRTI A. MEHTA, Plaintiff,
DES PLAINES DEVELOPMENT LIMITED, Trading as Harrah's Joliet Casino & Hotel, SANDRA RZESZUTKO, JOHN PARSONS, FRAN FEHRENBACH, VINCE DONLEVIE, and THOMAS MUELLER, Defendants.
The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Before the court are the parties' cross-motions for summary
judgment on both plaintiff's complaint and defendant Sandra
Rzeszutko's counterclaim. For the reasons stated below,
plaintiff's motion for summary judgment is denied, and
defendants' motion is granted in part.
This is a civil rights action brought by pro se plaintiff
Kirti A. Mehta against Des Plaines Development Limited, also
known as Harrah's Joliet Casino & Hotel ("Harrah's") and Harrah's
employees or former employees Sandra Rzeszutko, John Parsons,
Fran Fehrenbach, Vince Donlevie, and Thomas Mueller. The thrust
of the complaint is that defendants discriminated against
plaintiff because of his national origin. (Mehta is originally
from India.) The following facts are taken largely from the defendants'
Local Rule 56.1(a)(3) Statement of Facts and plaintiff's
deposition testimony. These facts are undisputed except as
indicated and where plaintiff's version of the facts is noted.
Defendants have objected to the procedural inadequacies of
plaintiff's submissions, most notably his failure to comply with
Local Rule 56.1. We have a duty, however, to apply a more lenient
standard to pro se parties. Although plaintiff's failure to
comply with the local rules might provide adequate reason to rule
against him, we will instead evaluate his arguments on the
In 1996, plaintiff began going to Harrah's to gamble. Some time
later, he enrolled in Harrah's "Total Rewards" customer loyalty
program.*fn1 Plaintiff enrolled in the program because he
saw a Harrah's newspaper advertisement allegedly stating that
Total Rewards members would be reimbursed 50 percent of the
amount they gamble (their "play"). Plaintiff's problems with
Harrah's began the first time he gambled after having enrolled in
Total Rewards. Plaintiff lost $900.00 and complained to personnel
at the Total Rewards Center (in the casino) that he was entitled
to be reimbursed for 50 percent of $900.00. Harrah's personnel informed
him that he would only be reimbursed up to $100.00. According to
plaintiff, he never received the $100.00 reimbursement, and the
dispute over it continued "all the way through" 1999.
(Defendants' Motion for Summary Judgment, Ex. F, Mehta Dep. Tr.
Nonetheless, plaintiff continued to gamble at Harrah's about
three to four times a week. A few years went by without incident,
during which plaintiff attained "Platinum" status in the Total
Rewards program based on his level of play.*fn2 As a result,
plaintiff began receiving complimentary rewards ("comps") from
Harrah's, such as meals, drinks, and hotel stays.
One day in December 1999, plaintiff gambled at Harrah's and
received a comp ticket for four meals at Harrah's buffet
restaurant. The next day, he returned with his four children and
his wife to dine at the buffet. When plaintiff tried to redeem
his comp ticket at the buffet cashier's counter, a Total Rewards
supervisor named Sue (who has not been named as a defendant)
rushed over to the counter along with another supervisor and
confiscated the comp ticket. According to plaintiff, Sue told him
that he was not entitled to the comp and said, "You beggar. Go
back to the country where you come from." (Mehta Dep. Tr. at 53-55.)
Plaintiff and his family walked out without having a meal.
After that incident, plaintiff continued gambling at Harrah's.
The next problem occurred in March 2000. Plaintiff was playing
slot machines and told a slot supervisor, Mike Pavich (who is not
a defendant), that Harrah's had "ripped [plaintiff] off." (Mehta
Dep. Tr. at 72.) Plaintiff was referring to the $100.00 that he
claims Harrah's owed him due to his play years ago, after he had
first enrolled in Total Rewards. Plaintiff asserts that Mr.
Pavich issued him a $100.00 voucher by making a computer entry.
When plaintiff went to the Total Rewards Center about a week
later to claim his voucher, the woman named Sue (with whom
plaintiff had the run-in at the buffet) refused to issue the
voucher. Thereafter, plaintiff contacted various casino personnel
by telephone, asking that the voucher be issued.
A week or two later, plaintiff went to the VIP Lounge and spoke
with Mr. Pavich's supervisor, defendant Fran Fehrenbach.
Fehrenbach refused to issue the voucher to plaintiff and told him
that it was a moot point because the $100.00 credit never
existed. Plaintiff also brought two other complaints to
Fehrenbach's attention. One was that plaintiff had written a
check to Harrah's for $5.00 that had been cashed for $500.00. The
other issue had to do with a "Wheel of Fortune" slot machine that
plaintiff claimed was "fixed" because he had lost a lot of money
playing the machine and had never received a "bonus spin" while playing. Fehrenbach
denied that the game was "fixed."
After the conversation, plaintiff turned around and was leaving
the VIP Lounge when he purportedly heard someone use the term
"camel jockey." Plaintiff states that he doesn't know who said
it, but it "sounded like [Fehrenbach] to [him]." (Mehta Dep. Tr.
at 94.) (Fehrenbach denies it.) There were other customers in the
same area of the VIP Lounge at the time.
Clashes between plaintiff and Harrah's continued to occur. On
June 29, 2000, Harrah's overcharged plaintiff for a hotel stay.
According to plaintiff, Harrah's compensated for the error by
giving him two dinner buffet comps, each for six people
(plaintiff, his wife, and the four children), and a two-night
hotel suite stay. Harrah's had originally issued a comp for a
two-night stay in a standard hotel room, but plaintiff protested
that he wanted a suite, and plaintiff alleges that an employee
added the word "suite" to the comp ticket.
On July 20, 2000, plaintiff complained to VIP Lounge employees
that he was not credited for table game play. On July 27, 2000,
plaintiff tried to get comps from various Total Rewards
representatives for four buffet dinners, but was denied. Around
that time, plaintiff tried several times to use the dinner
vouchers that were issued for the June overcharge, but was told
that they would not be honored. In October 2000, plaintiff phoned Harrah's, attempting to
reserve his purportedly-comped two-night suite stay, and was told
that the comp would not be honored by phone and that he should
bring the comp voucher with him in person. On October 12, 2000,
he and his wife checked into the hotel and plaintiff attempted to
redeem his suite stay comp again. Plaintiff showed his comp
voucher to defendant Thomas Mueller, a hotel supervisor. Mueller
called non-defendant Jeff Kasuda, Executive Host, to the hotel
desk. Kasuda refused to give plaintiff a suite and stated that
the original hotel voucher did not have the word "suite" written
on it. Mueller and Kasuda took the voucher, but plaintiff asked
to see the voucher again, quickly put it in his pocket, and
walked away. Plaintiff alleges that as he was walking away, he
heard Kasuda ask Mueller whether "that fucking Indian" had
checked in. Mueller said yes.
Plaintiff gambled all night in the casino and returned to his
hotel room early the next morning. Defendant Vince Donlevie,
Vice-President of Operations, called plaintiff in his hotel room.
Donlevie was angry about the previous night's incident, but
according to plaintiff stated that he would look into the
situation and that Harrah's would accommodate plaintiff if it was
true that plaintiff had received a comp for a suite. (Donlevie
later sent plaintiff a letter stating that a two-night comp would
be honored in December for a standard room, but not for a suite.) Plaintiff sent a fax to Donlevie and Mueller on November 1,
2000, threatening suit for violation of his civil rights.
Donlevie referred the matter to Harrah's general counsel. The
same day, plaintiff brought his family to the buffet for dinner
and attempted to use a comp that he had just received at the
Total Rewards Center. A Total Rewards supervisor came to the
buffet and told the restaurant manager not to honor plaintiff's
comp. The restaurant manager honored plaintiff's comp anyway.
On November 9, 2000, Harrah's Vice President of Legal Affairs
sent plaintiff a letter indicating that Harrah's believed that
any lawsuit by plaintiff would be frivolous. In addition, the
letter suggested that plaintiff take his business elsewhere and
noted that Harrah's would no longer issue plaintiff "service
recoveries"*fn3 or direct mail solicitations (offering room
comps or discounts).
On November 9 or 10, 2000, plaintiff was gambling and received
a $43.00 comp. He asked a Total Rewards representative,
non-defendant Heather Shaw, if the comp could be dated so that he
could use it on November 20 to buy his daughter a birthday
dinner. (Vouchers are valid only for a specified length of time.)
Shaw agreed and dated the voucher accordingly.
On November 20, 2000, presumably after plaintiff had received
the November 9 letter from Harrah's, plaintiff and his family
went to the buffet, intending to redeem the $43.00 comp voucher. When
plaintiff presented the voucher to the cashier, she recognized
plaintiff from the incident on November 1 and immediately took
the voucher to the Total Rewards Center. Plaintiff asked to see
the restaurant manager, who was not there. Defendant John
Parsons, the Food & Beverage Manager, approached plaintiff and
asked him to move to the center of the pavilion by the buffet.
Plaintiff stated that he wanted the voucher back, and Parsons
indicated that the cashier had taken it to the Total Rewards
Defendant Sandra Rzeszutko, who was the Total Rewards
representative who had issued the comp voucher, then joined
plaintiff and Parsons. Rzeszutko had the voucher in her hand and
told plaintiff that it was invalid. Plaintiff pulled the voucher
out of Rzeszutko's hand According to plaintiff, she grabbed
plaintiff's hand to get the voucher back. Rzeszutko, on the other
hand, claims that plaintiff grabbed and twisted her hand to take
the voucher, and that she did not have a chance to grab it back
because plaintiff began to walk away. Parsons told plaintiff that
plaintiff could not leave with the voucher because it was
Harrah's property.*fn4 Parsons, along with Harrah's security personnel, followed
defendant and his family into Harrah's parking garage. Then Mike
Follenweider, a Guest Safety (Security) Trainer, arrived.
Plaintiff alleges that he explained the situation to
Follenweider. Plaintiff also told Follenweider that plaintiff had
contacted Donlevie regarding Harrah's "discrimination." According
to plaintiff, Follenweider said that he knew about plaintiff's
threat of legal action but that it had nothing to do with the
current situation and that plaintiff had to return the voucher
because it was Harrah's property. Plaintiff refused to return the
Eventually, Officer Thomas Stein arrived at the garage. He was
a City of Joliet police officer specially assigned to Harrah's,
paid for his time by the City and not directly by Harrah's.
(While the incident was unfolding, Harrah's security personnel
had contacted Officer Stein, who was directing traffic in the
valet parking area, and asked him to go to the parking garage.)
Officer Stein spoke to plaintiff, who explained the situation,
and then spoke to Follenweider and Parsons privately in the
garage stairwell. Follenweider and Parsons explained to Officer
Stein what had happened between plaintiff and Rzeszutko. When
Officer Stein returned to plaintiff, he placed plaintiff under
arrest. A scuffle occurred when Officer Stein attempted to
handcuff plaintiff, although plaintiff claims that he did not
resist arrest. Plaintiff asserts that he heard Officer Stein use the word
"Palestinian" during the scuffle.*fn5 (Officer Stein denies
Afterward, plaintiff was taken to the police station and
charged with battery (to Rzeszutko) and resisting a police
officer. The case eventually went to trial in state court, and a
jury convicted plaintiff of both charges. Plaintiff was sentenced
to a term of conditional discharge.
Based on the events of November 20, 2000 and his previous
disputes with Harrah's, plaintiff filed the complaint in the
instant action on March 20, 2001. The complaint contains four
counts: national origin discrimination in defendants' refusal to
honor plaintiff's comps (Count I); denial of comps in retaliation
for plaintiff's having protested the alleged national origin
discrimination (Count II); willful and wanton misconduct and
collusion with Joliet police in falsely charging plaintiff with
battery (Count III); and violation of plaintiff's civil rights in
relation to plaintiff's arrest for battery and resisting arrest
(Count IV). Plaintiff seeks $5 million in damages.
Defendant Sandra Rzeszutko has filed a one-count counterclaim
for assault and battery. Defendants move for summary judgment on both the complaint and
the counterclaim. Plaintiff cross-moves for summary judgment on
the complaint and counterclaim as well.
Summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). In considering such a motion, the court construes the
evidence and all inferences that reasonably can be drawn
therefrom in the light most favorable to the nonmoving party.
See Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th
Cir. 1999). "Summary judgment should be denied if the dispute is
`genuine': `if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.'" Talanda v. KFC Nat'l
Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The
court will enter summary judgment against a party who does not
"come forward with evidence that would reasonably permit the
finder of fact to find in [its] favor on a material question."
McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995). A. Cross-Motions for Summary Judgment on the Complaint
1. Counts I and II
Before reaching the issue of summary judgment, we must first
attempt to ascertain from the complaint precisely what claims
plaintiff is bringing. Counts I and II involve the denial of, or
refusal to honor, plaintiff's comps. Viewing the complaint very
liberally, it appears that Count I could assert a claim of
national origin discrimination in a place of public accommodation
in violation of Title II of the Civil Rights Act of 1964,
42 U.S.C. § 2000a. Similarly, Count II could allege a claim for
retaliation for plaintiff's having sent Harrah's a letter
protesting the purported discrimination, in violation of
42 U.S.C. § 2000a-2. If we construed Counts I and II in this way,
however, the claims would have to be dismissed because there is
no evidence that plaintiff has met the procedural and
jurisdictional requirement of 42 U.S.C. § 2000a-3. Section
2000a-3(c) requires a Title II plaintiff, prior to filing suit in
federal court, to give notice to state or local authorities when
a state or local law prohibits the complained-of discrimination
and the state or local authority is authorized to grant or seek
relief from such discrimination. These conditions are satisfied
in Illinois. See Stearnes v. Baur's Opera House, Inc.,
3 F.3d 1142, 1145 (7th Cir. 1993). In addition, we note that a
prevailing plaintiff in a Title II action cannot recover damages;
he can only obtain injunctive relief and reasonable attorney's fees. See Newman v. Piggie Park Enters., 390 U.S. 400, 401-02
(1968); Sprogis v. United Air Lines, Inc., 517 F.2d 387, 391 n.
5 (7th Cir. 1975).
We would also have to dismiss Counts I and II if we construed
them as attempting to state claims pursuant to 42 U.S.C. § 1981,
which provides that "[a]ll persons . . . shall have the same
right . . . to make and enforce contracts . . . as is enjoyed by
white citizens."*fn6 Plaintiff fails to state claims under §
1981 because he alleges discrimination based solely on the fact
that he is foreign-born.*fn7 "[C]laims founded on that
status are not cognizable under section 1981, which is designed
to remedy discrimination based on race or ethnicity." Von
Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472 (7th Cir.
1993). In Von Zuckerstein, the Seventh Circuit acknowledged
that "the line between national origin and race or ethnicity for
section 1981 claims cannot be bright," id., citing St. Francis College v. Al-Khazraji, 481 U.S. 604,
613 (1987). In Al-Khazraji, the Supreme Court held that § 1981
proscribes not only racial discrimination, but also
discrimination based on "ancestry or ethnic characteristics . . .
rather than solely on the place or nation of his origin." Id.
Here, as explained in detail supra n. 7, we do not have a
line-drawing problem because plaintiff complains that he was
discriminated against because he is foreign-born, not because of
his particular race, ancestry, or ethnicity. In fact, the
complaint does not even include an allegation regarding
plaintiff's race or ancestry, see supra n. 7.
It does not appear that Counts I and II can be construed as
stating a claim under any other civil rights statute.
Accordingly, Counts I and II of the complaint will be dismissed.
2. Counts III and IV
Plaintiff does not fare much better with respect to Counts III
and IV, which relate to the events of November 20, 2000. Count
III alleges "willful and wanton misconduct" in that Harrah's
purportedly colluded with Joliet police to falsely charge
plaintiff with battery and arrest. Count IV is based on the same
alleged conduct, but plaintiff styles this claim as one for
violation of his Fourth Amendment rights.*fn8 As with Counts I and II,
neither count specifies under what statute it is brought.
Let us first suppose that Count III or IV is a 42 U.S.C. § 1983
claim for subjecting plaintiff to an unlawful arrest. To recover
under § 1983, plaintiff must show that defendants acted "under
color of state law" in depriving plaintiff of his federally
protected rights. Case v. Milewski, 327 F.3d 564, 566 (7th Cir.
2003). All of the defendants here are private citizens or
entities. "[T]here are two circumstances in which private
citizens can be brought within the grasp of section 1983 even
though the statute is limited to acts under color of state law."
Proffitt v. Ridgway, 279 F.3d 503, 507 (7th Cir. 2002). "First
and more common, the citizen may have conspired with a public
employee to deprive the plaintiff of his constitutional rights."
Id. at 507. Second, the private citizen may have been
"deputized" by police in order to help officers enforce the law.
See id. at 507-08. Plaintiff relies on the former theory and
argues that Harrah's and its employees conspired with Joliet
police officers to deprive plaintiff of his rights. "In cases involving private entities open to the public, courts
have held that a conspiracy can be shown by evidence of a
customary arrangement or pre-existing agreement between the
entity and the police `under which the police simply carry out
the private entity's directions.'" Stewart v. Harrah's Illinois
Corp., No. 98 C 5550, 2000 WL 988193, at *10 (N.D. Ill. July 18,
2000). In circumstances where private security guards detain
individuals, courts have found conspiracies between the private
actors and police where "the police allow the security guard's
judgment about whether probable cause exists to be substituted
for their own." Id.
Here, there is no evidence of a pre-existing agreement between
Harrah's and Joliet police pursuant to which police simply carry
out the directions of Harrah's employees, nor is there evidence
that Officer Stein allowed Harrah's security force to substitute
their judgment for his. Rather, the evidence is to the contrary.
Officer Stein testified that Harrah's security force had no
authority to order or direct Joliet police officers to make
arrests. (Defendants' Motion for Summary Judgment, Ex. J, Stein
Dep. Tr. at 54.) Before arresting plaintiff, Officer Stein spoke
with John Parsons, who witnessed the incident with Rzeszutko; and
Mike Follenweider, the Security Trainer who spoke with plaintiff
in the garage. (Id., Ex. E; Ex. I, Follenweider Dep. Tr. at
31.) Officer Stein stated that, after speaking with Follenweider,
he made the independent conclusion that probable cause existed to
arrest plaintiff. (Stein Dep. Tr. at 17-18.)
Because there is no indication that Officer Stein allowed the
judgment of Harrah's employees to be substituted for his own, but
rather that he made his own judgment regarding probable cause,
there is no genuine issue regarding state action, a requirement
of a § 1983 claim. Accordingly, if either Count III or Count IV
is construed as a § 1983 claim, it is appropriate to grant
summary judgment in favor of defendants on that claim.
It is also possible that Count III or IV could be construed as
a claim under 42 U.S.C. § 1985(3), which prohibits private
conspiracies to deprive persons of their civil rights. "To
establish a claim for civil conspiracy under § 1985(3), a
plaintiff must demonstrate (1) the existence of a conspiracy, (2)
a purpose of depriving a person or class of persons of equal
protection of the laws, (3) an act in furtherance of a
conspiracy, and (4) an injury to person or property or a
deprivation of a right or privilege granted to U.S. citizens."
Green v. Benden, 281 F.3d 661, 665 (7th Cir. 2002). "The
plaintiff also must show some racial, or otherwise class-based,
invidiously discriminatory animus behind the conspirators'
actions, and that the conspiracy aimed at interfering with rights
that are protected against private, as well as official,
encroachment." Id. The evidence shows that there is no genuine issue regarding a
discriminatory animus behind defendants' actions on November 20,
2000, the subject of Counts III and IV. We note initially that
there is no evidence that defendants Fehrenbach, Donlevie, or
Mueller were involved in the November 20 incident. (The only
wrongful conduct alleged against those defendants relates to
Counts I and II, the denial of comps.) Moreover, the statements
about which plaintiff testified are insufficient to establish a
genuine issue regarding a discriminatory motive for the report of
battery and plaintiff's subsequent arrest. There are four remarks
in question: (1) "You beggar. Go back to the country where you
come from," purportedly made by a supervisor named Sue; (2)
"camel jockey," which plaintiff believes to have been made by
defendant Fehrenbach; (3) "that fucking Indian," purportedly made
by Kasuda; and (4) "Palestinian," purportedly made by Officer
Stein. The first three statements are alleged to have occurred
earlier than November 20, 2000 and do not relate to the arrest of
plaintiff, but to the denial of comps. Furthermore, there is no
evidence that the persons allegedly making the remarks were
present or involved in the November 20 incident. Plaintiff fails
to create a genuine issue as to the last alleged statement as
well because the remark occurred after the decision to arrest
plaintiff had already been made. According to plaintiff, the
statement was made during the scuffle, after Officer Stein had
told plaintiff that he was under arrest and had handcuffed plaintiff. In addition, the remark does
not bear on the intent of Harrah's or its employees whatsoever.
Given the lack of evidence of a discriminatory motive behind
defendants' actions, defendants will be granted summary judgment
on plaintiff's § 1985(3) claim.
There is a final possibility of claim construction, and that is
that Count III is a state-law false arrest claim. Pursuant to
28 U.S.C. § 1367 (c)(3), we are permitted to decline to exercise
supplemental jurisdiction over a state-law claim if we have
dismissed all claims over which we have original jurisdiction.
Having resolved the federal questions in this action, we decline
to exercise supplemental jurisdiction over Count III, and Count
III will be dismissed to the extent it can be construed as claim
arising under state law.
One final matter concerning the complaint must be addressed.
Plaintiff has not filed a formal motion, but requests in his
supplemental brief in support of summary judgment that he be
allowed to amend the complaint to add the City of Joliet and/or
the Joliet Police Department as defendants. Plaintiff refers to
"newly discovered evidence reveal[ed] on June 27, 2003," the date
that the deposition of Officer Stein was taken. We are
unpersuaded. Plaintiff had enough information from the outset to
determine whether he wanted to sue any Joliet defendants. Based
on his insufficient explanation for his failure to add the
defendants in a timely fashion, the undue delay, and the prejudice that would
result, plaintiff's request for leave to amend the complaint is
B. Cross-Motions for Summary Judgment on the Counterclaim
Defendant Sandra Rzeszutko's counterclaim is for assault and
battery, a state-law claim. As with Count III of the complaint,
we decline to exercise supplemental jurisdiction over this
state-law claim as well. Therefore, the counterclaim will be
For the foregoing reasons, plaintiff's motion for summary
judgment is denied.
Defendants' motion is granted in part. Counts I and II of the
complaint are dismissed with prejudice. Summary judgment is
entered in favor of the defendants and against the plaintiff on
Counts III and IV. To the extent that Count III asserts a
state-law claim, we decline to exercise supplemental jurisdiction
over it and is therefore dismissed. We also decline to exercise
supplemental jurisdiction over defendant Sandra Rzeszutko's
counterclaim, and it is dismissed.