United States District Court, N.D. Illinois, Eastern Division
September 21, 2004.
DANIEL CLAEYS, Plaintiff,
VILLAGE OF BROOKFIELD and LIEUTENANT MICHAEL MANESCALCHI, Defendants.
The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Before the court is defendants' motion for summary judgment.
For the reasons explained below, the motion is granted in part
and denied in part.
This is a § 1983 action brought by plaintiff Daniel Claeys
against Brookfield Police Lieutenant Michael Manescalchi and the
Village of Brookfield (the "Village"). Plaintiff complains that
Manescalchi wrongfully arrested him and took his money. The
following summary of the relevant facts is drawn from the
parties' Local Rule 56.1 Statements; several factual disputes
exist*fn1 Plaintiff's Home Repair Work for Cecelia Welenowski
In August 2002, plaintiff began working for himself as a
handyman doing odd jobs in the western suburbs of Chicago. He
created flyers advertising "Help Around the House" and
distributed them in Brookfield. Around November 18, 2002,
plaintiff received a telephone call from a prospective customer,
Mrs. Cecelia Welenowski, who apparently learned about Help Around
the House through a flyer left at her home. Welenowski is a
76-year-old widow who owns a home in Brookfield. She needed work
done in her basement and on a walkway and a patio/driveway on her
On November 22, 2002, plaintiff went to Welenowski's home with
his wife and children. (It is disputed whether plaintiff's wife
and children went into Welenowski's home, as Welenowski
testified, or remained in their van, as Claeys testified.) After
plaintiff examined Welenowski's basement, patio, and walkway and
discussed their condition with her, he entered into an oral
contract with Welenowski to make repairs. Plaintiff and
Welenowski agreed that the repairs to the patio and walkway would
not be a complete removal and replacement of the concrete, but
patchwork where needed and blacktopping to smooth the surfaces.
They also agreed that the "waterproofing" work in the basement
would not be true waterproofing, but rather the application of a
water-sealant paint on the basement walls and floors. In addition
to the basement, patio, and walkway work, plaintiff also agreed
to make a few other small repairs, including repairs to a step and a door. Plaintiff
estimated that it would take a total of six to seven days to
complete all the work.
Plaintiff gave Welenowski two written price estimates. One
estimate stated "repair driveway/sidewalk" for $850.00, and the
other estimate stated "waterproof basement" for $270.00. These
estimates total $1120.00, but according to plaintiff, he agreed
to perform all the repairs for $1180.00. (Welenowski does not
remember the two separate written estimates, but rather one piece
of paper that showed the total estimate.) Plaintiff told
Welenowski that she need only pay part of the price up front and
the remainder upon completion, but Welenowski offered to pay the
total amount immediately. Welenowski drafted a personal check for
$1180.00 on her account at the First National Bank of Brookfield
(the "Bank"), payable to the plaintiff's wife, Sharon Claeys.
Later that same day, Mrs. Claeys went to the Bank and cashed the
Plaintiff went to various hardware stores and bought materials
and equipment, including approximately 21 bags of concrete. He
spent more than $500.00. On Saturday, November 23 and Monday,
November 25, 2002, plaintiff began the work, including moving
Welenowski's belongings away from the basement walls and starting
some of the concrete work. Plaintiff worked for about six hours
on November 23 and more than four hours on November 25. He intended to continue working at Welenowski's home on November 26.
First National Bank of Brookfield
On Monday, November 25, Welenowski called her personal banker
at the Bank, Roseann Majcen. (Welenowski and Majcen typically had
several long conversations each week. Majcen was aware that
Welenowski was having repairs done at her house because the
previous week, Welenowski had told Majcen that she had hired a
repairman whose flyer she had seen and that she was having her
driveway blacktopped and sealant applied in her basement.
Welenowski apparently also had told Majcen how much she was
paying for the work.) Welenowski told Majcen that one of her
books of checks was missing, and also told Majcen the following:
while the repairman was doing work in the basement, the
repairman's wife and children were with Welenowski. Welenowski
was reading Bible stories to the children. The repairman's wife
asked to use the restroom. When Welenowski went upstairs, the
wife was not in the restroom, but in another room. Some time
thereafter, Welenowski discovered that a book of checks was
missing. Majcen recommended that Welenowski close her current
account and open a new one to prevent any possible fraudulent
activity involving the missing checks.
After her conversation with Welenowski, Majcen suspected that
the repairman and his wife were trying to take advantage of
Welenowski, whom Majcen considered to be a "somewhat confused" person. Majcen spoke with a co-worker about the cost of
Welenowski's repairs, and the co-worker thought that the price
sounded "a bit excessive." (Defendants' Statement of Facts, Ex.
B, Deposition of Roseann Majcen, at 41.) Subsequently, Majcen
telephoned the Brookfield Police Department and asked for an
officer who was doing "social service type work so they could
check and see if this was legitimate work that they were doing on
the house." (Id.) Majcen was referred to defendant Lieutenant
Manescalchi and left a voice-mail message for him. Majcen stated
in the message that Welenowski, an elderly Bank customer, was
having repairs done at her house and that Welenowski suspected
the repairman's wife of taking a book of checks. Majcen also
mentioned that she suspected that the repairman brought his wife
and children to Welenowski's house to be a "distraction" so that
"maybe they could search around and take stuff." (Id. at 43.)
After Majcen left this message, she prepared paperwork in
anticipation of closing Welenowski's account and opening a new
Brookfield Police Involvement
Majcen testified that the next day, Tuesday, November 26,
Manescalchi came to the Bank around 9 or 9:30 a.m. to talk with
Majcen and follow up on her message. Majcen told Manescalchi what
Welenowski had told her: Welenowski had seen a repairman's flyer
and had hired him to do driveway and sealing work; the
repairman's wife went to the restroom and Welenowski found her in
a different room; and Welenowski's checks were missing. Majcen also told
Manescalchi the amount that Welenowski was paying for the work.
She asked him to "check out" the situation because of
Welenowski's "trusting" nature. Manescalchi said that he would do
Manescalchi's version of the meeting at the Bank is different.
He believes that the meeting may have occurred on Monday,
November 25 and that it did not occur on the same day he arrested
plaintiff. He testified that [Bank Vice President] Jayne
Williams, not Majcen, called him about Welenowski and that when
he went to the Bank, he met with Williams and the teller who had
waited on Sharon Claeys when she cashed Welenowski's check.
Manescalchi did not know the teller's name. (Evidently, he met
with Majcen, although she testified that she was not involved in
the check-cashing transaction.) He states that Williams and the
teller told him that "somebody came in to cash one of Ms.
Welenowski's checks. They were suspicious of the check and that
they called her to verify that it was good and that she said,
yes, I wrote that check. So they cashed it for the individual. I
believe that was on Friday. And then on Saturday Ms. Welenowski
came into the bank and went to that teller and told her, you
shouldn't have cashed that check, I'm being ripped off. And that
teller brought that to Ms. Williams' attention, who, in turn,
called me I believe on Monday, but I can't say for sure."
(Defendants' Statement of Facts, Ex. D, Deposition of Michael
Manescalchi, at 107.) Jayne Williams's account differs from Manescalchi's. She
testified that she did not meet with Manescalchi before Claeys's
arrest. According to Williams, Majcen and Manescalchi met on
Monday, November 25, when Williams was not at the Bank. The first
conversation she had with Manescalchi regarding Welenowski
occurred on Tuesday, November 26, when Manescalchi brought cash
to deposit in Welenowski's account, and Majcen and Manescalchi
had to "fill [her] in." (Plaintiff's Exhibits in Opposition to
Defendants' Motion, Ex. D, Deposition of Jayne Williams, at 20.)
Manescalchi testified that some time after the meeting at the
Bank, he telephoned Welenowski but got no answer, so then he went
to her house to meet with her in person. He estimates that this
meeting occurred in the early morning on November 26, around 8:30
or 9:00 a.m. (Welenowski disputes that Manescalchi met with her
at this point in time and testified that the first contact she
had with Manescalchi occurred after Claeys was arrested.) He
identified himself to Welenowski and said that he was there
because the Bank called him and told him what she had told them.
According to Manescalchi, Welenowski stated that "this nice man
and his wife came over and they were doing some work for me, but
I think I'm getting ripped off." (Manescalchi Tr. at 113.)
Welenowski also told him that she "thought she got a new driveway
put in and she paid $800 for it and that her basement was being
waterproofed" and asked Manescalchi to look at her basement.
(Id.) Manescalchi testified that he looked at the driveway that was
sealed, saw an empty five-gallon bucket of sealer, and saw one
painted wall in the basement. Welenowski gave him two receipts
from the person whom "she knew as Dan." (Manescalchi Tr. at 114.)
The receipts totaled over $1,000.00, and his understanding from
Welenowski was that $800 was the price for a new blacktopped
driveway and the remaining funds were for waterproofing the
basement. Manescalchi did not discuss any walkway repairs with
Welenowski. He concluded that Welenowski "believed that she got a
new asphalt driveway and, in fact, she had not." (Manescalchi Tr.
According to Manescalchi, Welenowski did not know "Dan's" last
name, and Manescalchi did not run any sort of records check on
plaintiff prior to arresting him.*fn2 When Manescalchi left
Welenowski's house, he instructed her to call him when the
repairman arrived at her house. He did this in order "to attempt
to identify [the repairman] to further investigate the home
repair fraud." (Manescalchi Tr. at 140.) Some time later that
day, Manescalchi received a radio call from the police dispatcher
telling him that Welenowski had telephoned and said that the
repairman was coming back to her house. The Arrest
Manescalchi headed back to Welenowski's house and parked three
or four houses away. He saw a gray minivan pull out of an alley
and approach Welenowski's house. Manescalchi turned his red
lights on and stopped the minivan. (Welenowski had told him that
"Dan" had a light-colored minivan.) Manescalchi also radioed for
According to Manescalchi, the driver matched Welenowski's
description of "Dan." The person in the passenger seat, whom
Manescalchi later determined to be Daniel Claeys's brother Jon
Claeys, "[l]ooked similar to [the driver]" "[a]bout the same
size, blond-ish, light color hair, longer, . . . [p]retty close
to the same age." Both men had facial hair and wore "shabby" work
clothes. (Manescalchi Tr. at 157-58.) Manescalchi walked up to
the driver's window, identified himself and showed his badge, and
asked the driver who he was and what he was doing there. The
driver said, "I'm Dan Claeys, I'm doing some work for the lady
here." (Id. at 159.) Manescalchi asked the two men to step out
of the car; they did so, both exiting on the passenger side of
the van. Manescalchi asked them for identification.
Two other police officers arrived, responding to Manescalchi's
call for backup. Manescalchi asked them to run a computer check
on the Claeyses. The resulting information was that plaintiff
Daniel Claeys's license had been revoked. Manescalchi testified
that he handcuffed both plaintiff and his brother and took them
into custody "[t]o complete [his] investigation of the home repair
fraud." (Id. at 167.) His additional reason for taking
plaintiff into custody was the driving on a revoked license.
Plaintiff's account of the arrest and ensuing events is
different. He testified that he recruited his brother Jon to help
him on November 26 with the work at Welenowski's home. Plaintiff
and Jon arrived at Welenowski's home around 10:00 a.m. They were
in plaintiff's wife's minivan, and Jon was driving, not
plaintiff.*fn3 They parked on the street outside
Welenowski's home and sat in the van for a moment or two. Both of
them started to get out of the van on the passenger's side
because the driver's side door was difficult to open. They saw
Manescalchi pull up behind them and get out of his car.
According to plaintiff, as Manescalchi approached them,
Manescalchi yelled, "You cocksuckers are ripping off my great
aunt." (Defendants' Statement of Facts, Ex. A, Deposition of
Daniel Claeys, at 180.) Jon replied that they weren't ripping
anyone off, and Manescalchi told them that they were "scum of the
earth" and that he would blow their heads off if they ever came
to Brookfield again. (Id. at 181-82.) (Manescalchi flatly
denies swearing at the brothers or threatening them, although he
does acknowledge that he told the Claeyses that Welenowski was
his "great aunt" when in fact she was not related to him.)
Manescalchi then asked Jon if he was Dan; Dan said no.
Manescalchi turned to plaintiff and said, "You're Daniel Claeys.
How much parole time do you have left?" (Id. at 183.) Claeys,
who was on parole, said he had two months left. Manescalchi
purportedly said, "You're going to do it in jail" and that Claeys
would be charged with a Class 1 felony, punishable by 20 years in
prison. Claeys was confused and evidently asked why. Manescalchi
said that Claeys was going to be arrested for "home repair fraud,
scamming the elders." (Id. at 184.) Claeys tried to explain the
work he was doing for Welenowski, but Manescalchi "didn't want to
hear" anything Claeys had to say. (Id. at 185.)
Jon Claeys's testimony regarding the arrest is similar to that
of plaintiff. Jon testified that he drove the van, not plaintiff.
According to Jon, Manescalchi threatened plaintiff that he would
go to the penitentiary for defrauding Manescalchi's "great aunt."
When Jon protested that they were not defrauding anyone,
Manescalchi told him to shut up or he would "bust" him in the
head. (Plaintiff's Exhibits in Opposition to Defendants' Motion,
Ex. E, Deposition of Jon Claeys, at 64.) Manescalchi also said
that if he caught the Claeyses in Brookfield again, he would put
a bullet in their heads. (Id. at 67.) At the Police Station
Manescalchi testified that the backup officers transported
plaintiff and his brother to the Brookfield police station.
Manescalchi interviewed them separately; he spoke to Jon Claeys
first. Jon told Manescalchi that it was his brother's job and he
was just helping him out. Jon didn't know anything about the
price that Daniel was charging Welenowski. Jon was kept in
custody briefly until his identity was verified and was released.
He was not charged with any crime.
Manescalchi then talked with plaintiff. According to
Manescalchi, he told Claeys that Claeys was misleading Welenowski
and informed Claeys of the Illinois home repair fraud statutes.
Manescalchi asked Claeys if he had permits or licenses to do the
repairs; Claeys replied that he did not. Claeys asked Manescalchi
what would happen if he gave Welenowski her money back, and
Claeys then offered to return $600.00 to her. Manescalchi
telephoned Welenowski to inquire whether she would be willing to
accept $600.00 in restitution in lieu of prosecuting Claeys. She
agreed and said that $600.00 would be better than nothing.
Claeys turned over $700.00 in cash to Manescalchi: $600.00 for
restitution and $100.00 for bond for the driving on a revoked
license charge. Claeys still had some cash left over; he did not
give Manescalchi all the cash in his possession. Manescalchi gave
Claeys a written receipt indicating that Claeys had paid
Welenowski $600.00 in restitution. Later that day, Manescalchi took the
$600.00 cash to the Bank and instructed an employee to deposit
the money in Welenowski's account. Claeys was released from
custody, and Manescalchi estimates that Claeys was at the police
station for about an hour.
Claeys's version of the events at the police station is as
follows. After Claeys was transported to the station, he was
taken into an interview room, made to empty his pockets (which
contained $880.00 cash) onto a table, and handcuffed to the wall.
After twenty minutes or so, Manescalchi came in and picked up the
money that was on the table. He counted it and then said he was
going to contact the State's Attorney "to see if we can make
restitution." (Daniel Claeys Tr. at 191.) Claeys told Manescalchi
that the money was his wife's rent money, and Manescalchi replied
that he didn't care whose money it was it was Welenowski's.
Manescalchi then left the interview room for about ten minutes.
When he returned, he told Claeys that the State was "willing to
deal." (Id. at 193.) Manescalchi stated that Claeys could
either be charged with home repair fraud, a Class 1 felony
punishable by 20 years in prison, or Claeys could pay Welenowski
part of her money back. Claeys repeated that half of the cash he
had was his wife's money. Then, according to Claeys, Manescalchi
grabbed the money, counted out $80.00, put it on the table and
said it was for Claeys to get his van back. Then he took out
$100.00 "for bond." Claeys asked, "What bond?" (Id. at 194.)
Manescalchi said that it was bond for the ticket he was going to
write Claeys for driving on a revoked license. Manescalchi took
the rest of the money, which was $700.00.
Claeys testified that he never offered to or agreed to make
restitution to Welenowski and that he told Manescalchi that he
didn't see why he should give his wife's money to Manescalchi.
Manescalchi replied that Claeys would "get 20 years plus [his]
parole time [for] scamming the elders" and that Manescalchi would
call the State's Attorney. (Id. at 196.) Then he left the room
to call Welenowski. When Manescalchi returned, he gave Claeys the
$180.00 he had previously set aside and said that Claeys was
being charged with driving on a revoked license. Claeys asked,
"When was I driving?" and said that he was not driving, but that
his brother was. (Id. at 198.) Manescalchi did not respond. He
walked Claeys out of the room to a desk where bond is paid, and
Claeys used $100.00 of the $180.00 Manescalchi gave him to pay
bond. Then Manescalchi gave Claeys a receipt for $780.00
restitution and bond.
According to Claeys, $100.00 of the money he had in his pocket
is missing and unaccounted for. Claeys concedes that he did not
protest and tell Manescalchi that he was shortchanged, explaining
that "I didn't say nothing to him. I just wanted the man as far
away from me as possible." (Id. at 200.) Claeys did not go back
to the station to make a complaint or to ask for the purportedly missing $100.00. He never went back to Welenowski's home and left
most of his equipment and supplies there, although Jon did pick
up plaintiff's wheelbarrow. Because the money allegedly taken by
Manescalchi included plaintiff's and his wife's rent money, they
were unable to pay their rent, and their family was evicted from
Manescalchi went to court several times in relation to Claeys's
charge of driving on a revoked license. Eventually, there was a
hearing on Claeys's motion to quash the arrest, at which both
Manescalchi and Claeys testified about the circumstances of the
arrest. The judge granted Claeys's motion, stating that "I don't
believe anything that occurred that day was related to anything
that was a proper police investigation." (Defendants' Statement
of Facts, Ex. J, Tr. of Proceedings of April 30, 2003, at 22.)
The State then moved to strike (with leave to reinstate) the
charge of driving on a revoked license, and the motion was
granted. Apparently, the State did not reinstate the charge.
As for Welenowski, she testified that Manescalchi spoke with
her for the first time only after plaintiff was arrested.
Manescalchi told her that she had been "ripped off" and that
Claeys and his brother had criminal records and that she should
stay away from them. Manescalchi said that he was going to return
some of the money to her. Welenowski was so upset by the arrest
that she called plaintiff to apologize and ended her relationship with
Majcen for her role in the incident. The repair and maintenance
work at Welenowski's home remains incomplete because she has been
unable to find anyone else to complete the jobs for as low of a
price as plaintiff gave her. Welenowski would like Claeys to
return to complete the work, but Claeys has no desire to return
The Instant Action
Plaintiff filed the complaint in the instant action on May 29,
2003. The first amended complaint contains seven counts: § 1983
claims for false arrest/false imprisonment and "unreasonable
seizure/taking" (Counts I and II); false imprisonment (Count
III); malicious prosecution (Count IV); conversion (Count V);
respondeat superior (Count VI); and indemnification (Count VII).
Counts III-VII are state-law claims. Plaintiff appears to assert
Monell claims against the Village of Brookfield in Counts I and
II as well. Plaintiff seeks compensatory and punitive damages as
well as attorney's fees.
Defendants now move for summary judgment.
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. Section 1983 False Arrest/False Imprisonment (Count I)
and State-Law False Imprisonment (Count III)
Defendants contend that the existence of probable cause to
arrest plaintiff for home repair fraud bars recovery under §
1983. The Illinois Home Repair Fraud Act provides in relevant
(a) A person commits the offense of home repair fraud
when he knowingly enters into an agreement or
contract, written or oral, with a person for home
repair, and he knowingly:
(1) Misrepresents a material fact relating to the
terms of the contract or agreement or the preexisting
or existing condition of any portion of the property
involved, or creates or confirms another's impression
which is false and which he does not believe to be
true, or promises performance which he does not
intend to perform or knows will not be
performed. . . .
815 ILCS 515/3(a)(1). Home repair fraud is aggravated and
considered a felony when it is committed against a person 60
years of age or older. 815 ILCS 515/5.
A police officer may make a warrantless arrest based on
probable cause only "if the information available to the officer
at the time of the arrest indicates that the arrestee has
committed a crime." BeVier v. Hucal, 806 F.2d 123, 126 (7th
Cir. 1986). "Probable cause is a fluctuating concept; its
existence depends upon `factual and practical considerations of
everyday life.' It is the totality of circumstances, including
the facts available to defendant, that are dispositive. Police
officers are allowed to make mistakes, but those mistakes must be
reasonable ones." Id. (citations omitted).
According to defendants, there is no genuine issue that
Manescalchi had probable cause to arrest plaintiff for home
repair fraud because of the "mosaic of suspicious circumstances"
present. (Defendants' Memorandum at 4.) However, given the
Seventh Circuit's observation that "probable cause is a function
of information and exigency," BeVier, 806 F.2d at 127, we
disagree. According to Manescalchi, he interviewed three people
before arresting Claeys: a bank teller (who evidently was Majcen,
although she is not a teller and did not cash the check made out
to Sharon Claeys, as Manescalchi recalls); the teller's
supervisor, Jayne Williams; and Cecelia Welenowski. It is undisputed that Manescalchi spoke with Majcen before the
arrest, but Manescalchi's account of the conversation is
materially different from Majcen's. According to Manescalchi,
Majcen told him that Welenowski said that she was being "ripped
off." However, Majcen testified that the focus of her
conversation with Manescalchi was the allegedly missing checks,
which would indicate a possible theft, but not home repair fraud.
Moreover, Jayne Williams denies that Manescalchi spoke with her
before Claeys's arrest. Welenowski, the would-be complainant,
also denies that Manescalchi spoke with her before the arrest.
And it appears to be undisputed that Manescalchi never questioned
Claeys himself about the details of the work he was doing for
"A police officer may not close her or his eyes to facts that
would help clarify the circumstances of an arrest. Reasonable
avenues of investigation must be pursued especially when . . . it
is unclear whether a crime had even taken place." BeVier,
806 F.2d at 128. Because there are disputed issues of material fact
regarding whether Manescalchi pursued reasonable avenues of
investigation before arresting plaintiff, summary judgment for
defendants on Count I will be denied.*fn4 This discussion applies equally to plaintiff's state-law claim
for false imprisonment in Count III. Regarding Count III,
defendants briefly and halfheartedly argue that Manescalchi also
had reasonable grounds to believe that plaintiff committed the
offense of driving on a revoked license, but there is a genuine
issue of fact regarding whether Manescalchi had reasonable
grounds to believe that plaintiff was driving the van. Plaintiff
and his brother both testified that plaintiff was not driving.
The state court judge presiding over the driving on a revoked
license case quashed plaintiff's arrest. Defendants put great
emphasis on the fact that Welenowski claims to have seen
plaintiff driving on a date before his arrest, which only
marginally bears on the issue of whether he was driving on the
morning of his arrest.
Plaintiff appears to assert a Monell claim in Count I against
the Village of Brookfield for the alleged false arrest. To
establish the Village's liability, plaintiff must prove: (1) he
suffered a deprivation of a federal right; (2) as a result of
either an express municipal policy, widespread custom, or
deliberate act of a decision-maker with final policymaking
authority for the City; that (3) proximately caused his injury.
See Monell v. Department of Soc. Servs., 436 U.S. 658 (1978);
Ienco v. City of Chicago, 286 F.3d 994, 998 (7th Cir. 2002).
Defendants contend that even if there is a genuine issue as to
whether plaintiff's constitutional rights were violated,
plaintiff has not shown any municipal policy or practice of the Village of
Brookfield reflecting deliberate indifference to the risk of a
constitutional violation or causation. We agree; plaintiff has
presented no evidence of such a policy or practice. Moreover,
plaintiff does not respond to defendant's argument at all; the
Monell argument in plaintiff's response brief focuses solely on
the Count II Monell claim. Accordingly, summary judgment for
the Village will be entered on plaintiff's Count I Monell
B. Section 1983 Procedural Due Process Violation (Count II)
In Count II, plaintiff alleges that Manescalchi "illegally
seized" his property "without lawful justification." (First
Amended Complaint, ¶ 21.) Accordingly, Count II appears to assert
a substantive due process claim because the challenge is to the
conduct itself. However, plaintiff asserts in his brief that he
was wrongfully deprived of his money without being afforded any
pre-deprivation hearing, which is a procedural due process claim,
and cites case law pertaining to procedural due process.
Therefore, we will treat the claim as one for violation of
plaintiff's procedural due process rights.
Defendants' first argument is that no unconstitutional seizure
occurred because plaintiff "never expressly said that he would
not make restitution." (Defendants' Reply at 7.) We disagree.
Because it would not be warranted for Manescalchi to take
plaintiff's money even if plaintiff "never expressly said that he would not make restitution," the critical issue is whether
plaintiff offered to make restitution. And there is a genuine
issue of fact regarding the circumstances of the money transfer:
plaintiff says that Manescalchi simply took his money and told him
what "restitution" would be and that plaintiff neither offered nor
agreed to make restitution. Manescalchi, on the other hand, claims
that plaintiff freely offered to make restitution of $600.00.
Defendant's second argument is that even if there is a genuine
issue regarding a deprivation, plaintiff's claim fails because he
has adequate post-deprivation state court tort remedies and,
indeed, has asserted a conversion claim. Plaintiff responds that
"this case deals with authorized and intentional conduct outside of
the state's criminal process" and thus that "[t]he availability of
state court tort remedies is immaterial to this case where a
pre-deprivation hearing was required." (Plaintiff's Response at 13.)
Plaintiff argues that Manescalchi took plaintiff's money
"[u]nder the authority and knowledge of the municipality." (Id. at
12.) According to plaintiff, the Village of Brookfield "has an
express policy and practice permitting `street justice' of the sort
that Manescalchi improperly meted out here." (Id. at 16.)
However, plaintiff has presented no evidence to that effect.
Brookfield Police Chief, Arthur Kuncl, testified that the Village
Has no written policy governing restitution. However, he did not
testify that the Village allows a police officer to take a person's money when that person has not offered the money as restitution;
rather, he testified that the Village gives officers discretion
to "mediate" restitution payments from suspects to victims. The
purported wrongful conduct here is not that Manescalchi
"mediated" restitution, but rather that he simply took
Accordingly, even accepting plaintiff's factual account,
plaintiff still has not demonstrated that Manescalchi's actions
were authorized by the Village. Rather, plaintiff has presented
evidence of a random, unauthorized intentional deprivation. The
Supreme Court has held that pre-deprivation hearings are not
practicable where this type of deprivation causes the loss of
property. See Hudson v. Palmer, 468 U.S. 517, 533-34 (1984).
The remaining question is whether the state of Illinois provides
plaintiff with an adequate post-deprivation remedy. Plaintiff
does not, and cannot contend, that he is without such a remedy.
The tort claim of conversion is available; indeed, plaintiff
asserts a conversion claim in Count V.
Because the state has provided an adequate post-deprivation
remedy, plaintiff cannot pursue a § 1983 claim for the recovery
of his money, and summary judgment for defendants will be granted
on Count II. Plaintiff's Monell claim against the Village in
Count II fails as well. C. Malicious Prosecution (Count IV)
Plaintiff complains that his prosecution for driving on a
revoked license was malicious. The elements of a malicious
prosecution claim under Illinois law are as follows: (1)
plaintiff was subjected to judicial proceedings; (2) for which
there was no probable cause; (3) the defendant instituted or
continued the proceedings maliciously; (4) the proceedings were
terminated in the plaintiff's favor; and (5) there was an injury.
See Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir.
Defendants argue that "clearly Manescalchi had probable cause
to arrest the Plaintiff for home repair fraud." (Defendants'
Memorandum at 13.) The argument is irrelevant because Count IV is
not concerned with home repair fraud. Moreover, in section A,
supra, we found that there is a genuine issue regarding
probable cause for an arrest for home repair fraud as well.
Defendants also maintain that plaintiff has not produced any
evidence showing that Manescalchi was motivated by malice. This
argument also fails. Plaintiff testified that Manescalchi swore
at him, threatened to blow his head off, asked plaintiff about
being on parole and told him that he was going back to prison,
ignored plaintiff's attempts to explain the work he was doing for
Welenowski, and wrongfully took his money. This testimony creates
a genuine issue of fact as to Manescalchi's motivation and
precludes summary judgment for defendants on Count IV. D. Conversion (Count V)
Plaintiff alleges in Count V that Manescalchi wrongfully
converted plaintiff's money. "The essence of conversion is the
wrongful deprivation of property to the owner or the person
entitled to possession." Landfield Fin. Co. v. Feinerman,
279 N.E.2d 30, 32 (Ill.App. Ct. 1972). Defendants contend that
plaintiff has not shown that he was entitled to possession of the
money in question "because he entered into a restitution
agreement." (Defendants' Reply at 13.) Again, whether plaintiff
agreed to make restitution is a genuine issue of fact.
Defendants also assert that plaintiff's conversion claim fails
because he admits that he never made a demand for a return of the
money. We reject this argument. Under Illinois law, "one who
knowingly takes possession of personal property which belongs to
another is liable to the person whose property has been
appropriated whether or not a demand is made for the return of
such property." Landfield, 279 N.E.2d at 33. Here, plaintiff's
testimony is that Manescalchi knowingly took plaintiff's money
without authorization. In addition, no demand for possession need
be shown where some other independent act of conversion can be
shown and a demand thus would be futile. See Pavilon v.
Kaferly, 561 N.E.2d 1245, 1253 (Ill.App. Ct. 1990). It is
undisputed that Manescalchi took $600.00 of the money allegedly
taken from plaintiff to the Bank and that the money was deposited into
Welenowski's account there.
Summary judgment for defendants on Count V will be denied.
E. Respondeat Superior and Indemnification (Counts VI &
Defendants' only argument for summary judgment on these counts
is that defendant Manescalchi is entitled to summary judgment on
all of plaintiff's state-law claims. Because summary judgment
will be denied on the state-law claims, it will be denied as to
Counts VI and VII as well.
For the foregoing reasons, defendants' motion for summary
judgment is denied as to Counts III, IV, V, VI, and VII of the
first amended complaint. Summary judgment for defendants is
granted as to Count II, and summary judgment for the Village of
Brookfield is granted as to plaintiff's Monell claim in Count
I. Summary judgment is denied as to the remainder of Count I
(which is asserted against defendant Manescalchi).
This case is set for a status hearing on October 13, 2004, at
10:30 a.m, at which time a trial date will be set.