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Elliot R. Kozel, Jerimie Sanders, and Matthew Kiely v. Village of Dolton

April 11, 2011


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:


Elliot R. Kozel, Jerimie Sanders, and Matthew Kiely sued the Village of Dolton, Robert Shaw, and Robert Fox under 42 U.S.C. § 1983, contending that the defendants retaliated against them for exercising their First Amendment right of free speech. Kozel also asserts false arrest and state law malicious prosecution claims. The Court previously dismissed Kiely's claims. Defendants have now moved for summary judgment on the claims of Kozel and Sanders. For the reasons stated below, the Court grants defendants' motion on count two and count three as to defendant Robert Fox but otherwise denies the motion.


Dolton is a municipality located in Cook County. Robert Fox is the chief of the Dolton Police Department. Robert Shaw was, at the time of the events giving rise to plaintiffs' claims, the inspector general of Dolton. He is also the brother of former Dolton mayor William Shaw. William Shaw died on November 26, 2008. As a result, his mayoral seat was left vacant.

On December 6, 2008, plaintiffs and other individuals were circulating petitions for Riley Rogers, who was running to succeed William Shaw as mayor. After arriving at Rogers' campaign headquarters at approximately 10:45 a.m., Kozel dropped Sanders and Kiely off in a residential area of Dolton to collect signatures. Sanders and Kiely assert that after approximately an hour and a half, they saw a black sedan cut across oncoming traffic and drive toward them. The sedan stopped approximately ten feet from where they were standing. An African-American man, who plaintiffs contend was defendant Robert Fox, stepped out of the car and approached Sanders and Kiely. Plaintiffs allege that the man had his hand inside of his sweatshirt, as if he was carrying a weapon. The man asked them what they were doing. Sanders and Kiely told him they were collecting petitions for Riley Rogers. According to Sanders, the man responded by saying "Shaw not even dead good in the ground yet and y'all mother f**kers already out here petitioning for mayor." Sanders Dep. 59:6-8. The man then grabbed Sanders and Kiely's clipboards and the petitions they had gathered and wrote the name "Jill Shaw" on one of the petitions. Sanders and Kiely took their petitions back from the man, who then left the scene in the black sedan.

Sanders called Kozel to report what had happened. Kozel picked up Sanders and Kiely, who were were standing on a side street that ended in a cul-de-sac. After Sanders and Kiely got into his car, Kozel called 911 and Riley Rogers. Plaintiffs assert that the black sedan then returned to the scene, this time followed by a tan/gold car. According to plaintiffs, these two vehicles cornered them in the cul-de-sac. In order to get past the vehicles, Kozel drove over grass on private lawns and then stopped his car a short distance away. Kozel exited his car and confronted the men in the other two vehicles. Robert Shaw then exited the tan/gold car. The parties dispute what happened next: Kozel contends that Shaw grabbed him, while Shaw contends that Kozel struck him.

Some time later, Officer Hope of the Dolton Police Department arrived on the scene. Kozel and Kiely testified at their depositions that Fox left the scene in the black sedan before Officer Hope arrived. Shaw told Officer Hope that Kozel had hit him. He asked Officer Hope to arrest Kozel, and Officer Hope did so. Shaw later filed a criminal complaint for battery against Kozel, but he failed to appear at the first court hearing on the charge. Kozel testified that Shaw's attorney appeared at the hearing and requested a continuance because Shaw had recently undergone surgery and was unable to come to court. The judge granted a short continuance. At the second hearing, however, Shaw's attorney appeared again and requested a second continuance. The judge then dismissed the complaint.

Plaintiffs filed the present action on February 23, 2009. Count one of plaintiffs' complaint is a First Amendment retaliation claim. Counts two and three are Kozel's false arrest and state law malicious prosecution claims. Count four is plaintiffs' state law claim for indemnification.


On a motion for summary judgment, the Court draws "all reasonable inferences from undisputed facts in favor of the nonmoving party and [views] the disputed evidence in the light most favorable to the nonmoving party." Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2009). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is appropriate "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

1. Retaliation claim

In count one, plaintiffs contend that defendants unlawfully retaliated against them because they "engaged in protected political speech on matters of public concern affecting residents of the Village of Dolton." Pls.' Compl. ¶¶ 21-22. In response, defendants contend that Kozel and Sanders were not engaged in protected political speech and that Kozel was properly arrested because he was operating his vehicle unlawfully.

"To establish a prima facie case of First Amendment retaliation, [a plaintiff] must establish that (1) it engaged in activity protected by the First Amendment, (2) it suffered a deprivation that would likely deter First Amendment activity in the future, and (3) the First Amendment activity was a 'at least a motivating factor' in the Defendants' decision to take the retaliatory action." Woodruff v. Mason, 542 F.3d 545, (7th Cir. 2008) (quoting Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006)). If a plaintiff can make this showing, "the burden then shifts to the defendants to produce evidence that they would have" taken the retaliatory action regardless of plaintiffs' actions. Massey, 457 F.3d at 717. "[A]ssuming the defendants carry that burden, the plaintiffs must then persuade a fact-finder that the defendants' proffered reasons wee pretextual and that retaliatory animus was the real reason" for their actions. Id.

Based on the evidence before the Court, a reasonable jury could conclude that plaintiffs have met these requirements. On the "protected activity" part of the test, defendants concede in their statement of uncontested facts that "[o]n December 6, 2008, Elliott Kozel, Jerimie Sanders, Matt Kiely, and others were collecting petitions for Riley Rogers for the Village of Dolton mayoral race." Defs.' 56.1 Stmt. ¶ 8. Kozel's role was to aid in the petitioning process by driving Sanders and Kiely from one location to another. Defendants, without citation, argue that these actions are not protected by the First Amendment. But the process of "[p]etition circulation . . . is 'core political speech,' because it involves 'interactive communication concerning political change.'" See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 186 (1999) (quoting Meyer v. Grant, 486 U.S. 414, 422 (1988)). Defendants also argue that Sanders was not engaged in protected speech because he was finished collecting petitions when the encounters with Fox and Shaw took place. But during his deposition, Sanders testified that he thought he and Kiely ...

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