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Dakhlallah v. Zima

United States District Court, N.D. Illinois, Eastern Division

May 28, 2014

Justice Police Officer CPL. RYAN ZIMA, and THE VILLAGE OF JUSTICE, Defendants

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For Yaser Dakhlallah, Plaintiff: Edward M. Fox, Jonathan Daniel Wassell, Ed Fox & Associates, Chicago, IL.

For Village of Justice, The, Cpl. Ryan Zima, Star No. 56, Defendants: Patrick John Ruberry, LEAD ATTORNEY, Litchfield and Cavo, LLP, Chicago, IL.

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Hon. Marvin E. Aspen, U.S. District Court Judge.

Presently before us is a motion for summary judgment filed by Defendants Ryan Zima and the Village of Justice as to all claims brought by Plaintiff Yaser Dakhlallah. Defendants contend that Plaintiff's claims for false arrest, unreasonable search, trespass, and malicious prosecution should be dismissed, as well as Plaintiff's request for punitive damages. For the reasons discussed below, we grant Defendants' motion for summary judgment in its entirety.


In May 2011, Lisa Aydin obtained from the Circuit Court of Cook County an order of protection that prohibited Plaintiff from contacting her and from taking, transferring, encumbering, concealing, damaging or otherwise disposing of her property. (RSOF ¶ 2.) Aydin then vacated that order of protection on June 14, 2011, but filed for a second order of protection against Plaintiff on February 21, 2012. ( Id. ¶ ¶ 8-10.) In June 2012, Plaintiff and Aydin spoke over the phone. (RSOF ΒΆ 12.)

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According to Aydin, Plaintiff called to ask her to " drop the restraining order" because of his " immigrant status" and to meet and provide him with a written, notarized statement. (SOF ¶ ¶ 12-14, 30.) Plaintiff disputes this fact, stating that he never told Aydin that she needed to drop the restraining order because there was no active restraining order against him on her behalf. (RSOF ¶ ¶ 12-14.) Plaintiff denies that the order of protection was active at the time, testifying that he wanted Aydin to provide a written statement admitting that she lied under oath when she obtained the order of protection against him and that the order of protection was " all lies." ( Id. ¶ 29.) Regardless of the intended purpose of the meeting, the parties agree that on June 8, 2012, Aydin drove to Plaintiff's apartment at 8142 Thomas Street, Apartment 1-E, Justice, Illinois. ( Id. ¶ ¶ 1, 17.) Plaintiff was living with his brother, Abdul-Aziz Aldakhlla, who at the time was 19-years-old and had been living in the U.S. on and off for four years. ( Id. ¶ ¶ 1, 81.)[1]

Although the parties dispute the sequence of events,[2] they agree that Aydin at some point entered Plaintiff's apartment, where Plaintiff's brother as well as his brother-in-law, Yasser Lakoud, were present, and worked on the statement for approximately two minutes before Aydin began screaming at Plaintiff. ( Id. ¶ ¶ 23, 31.) Plaintiff then exited his apartment and called the Justice Police Department, telling the dispatcher that Aydin was " at his home screaming, fighting." ( Id. ¶ 33.) Aydin, believing her cell phone to be missing, also called 911 after she left the apartment and told the operator that her " ex" had taken her cell phone. ( Id. ¶ ¶ 25-26.)

Defendant Corporal Ryan Zima and officer Joseph Bonkowski were dispatched to Plaintiff's apartment in response to a " domestic disturbance" call. ( Id. ¶ ¶ 34-35.) Upon arrival, both officers approached Plaintiff, who was standing in a driveway adjacent to the apartment building, and asked for his identification, which Plaintiff provided. ( Id. ¶ ¶ 37-38, 41.) Plaintiff told Zima that he had called the police because he was unsure if Aydin was going to come back to the apartment, and if she did, she had a history of attacking him, which he did not want to happen. ( Id. ¶ 40.)

At some point, Aydin drove back to Plaintiff's apartment, and upon seeing that the police had arrived, got out of the car. ( Id. ¶ 27.) Zima alleges, and Plaintiff denies, that Aydin began yelling at Plaintiff and accusing him of stealing her phone. (SOF, RSOF ¶ ¶ 42, 43.) Zima asked Aydin to produce identification and then ran her identification over to dispatch. (RSOF ¶ 44.) Aydin explained to Zima that when she started to leave Plaintiff's apartment, she realized that her phone was missing. ( Id. ¶ 45.) Zima also alleges, and Plaintiff denies, that Plaintiff stated, " Look, I don't have her cell phone, check my car, check my house. You are not going to find anything. I don't have anything." (SOF, RSOF ¶ 47.)

Dispatch informed Zima that the Law Enforcement Agencies Data System (" LEADS" ) showed an active order of protection, naming Plaintiff as respondent and Aydin as petitioner, that barred Plaintiff from having contact with Aydin and from removing or concealing Aydin's property. (RSOF ¶ ¶ 48-49.) Zima instructed Plaintiff

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to turn around and place his hands behind his back, stating to Plaintiff that he was placing him into custody for violating a restraining order. ( Id. ¶ ¶ 50-51.) He then placed Plaintiff in the backseat of the squad car. ( Id. ¶ 53.) Plaintiff informed Zima that there was no active order of protection. (RSOF ¶ 52, RSAF ¶ 4.) Moreover, Plaintiff alleges, and Zima denies, that he told Zima that he had a paper showing that the order had been vacated and that Aydin also told Zima " multiple times" that there was no active order of protection. (SAF, RSAF ¶ ¶ 4, 5.)[3]

After Zima placed Plaintiff in the squad car, he reviewed the information provided by LEADS. (RSOF ¶ 53.) The parties agree that the LEADS system showed that there was an active order of protection naming Plaintiff as respondent and Aydin as petitioner. (SOF ¶ 48.) Although Plaintiff denies the following, Zima states that he then asked Aydin what she wanted, to which Aydin responded that she wanted her phone returned. (SOF, RSOF ¶ 55.) Zima also alleges, and Plaintiff denies, that Zima then asked Plaintiff if he had the phone, to which Plaintiff responded that he did not have it and that Zima could search his car and his house. ( Id. ¶ 56.)

Zima walked up to Plaintiff's apartment building and pushed the buzzer for his unit, 1-E. (RSOF ¶ 57.) Plaintiff's brother, Abdul-Aziz, buzzed in Zima, who then proceeded to the unit, knocked on the door, and met Abdul-Aziz, who said " hi." ( Id. ¶ ¶ 58, 73.) The parties dispute whether Abdul-Aziz expressly told Zima that he could enter the apartment. Plaintiff states that Zima continued into the apartment without asking for permission or consent to enter. (RSOF ¶ 59, SAF ¶ 10.) Zima, on the other hand, alleges that Abdul-Aziz said he did not think the phone was in the house but that Zima could enter the apartment and help him search for it. (SOF ¶ 59.) According to Abdul-Aziz, before Zima walked into the apartment, he told Abdul-Aziz that he was looking for Aydin's phone. (RSOF ¶ 76.) Abdul-Aziz also testified that Zima did not " deceive" or " trick" him in order to gain access to the apartment. (RSOF ¶ 74.) Abdul-Aziz did not hear his brother yelling to him from outside that Zima did not have permission to enter the apartment. (Aldakhlla Dep. 67:20-24, 68:1-4.) According to Abdul-Aziz, he did not object to Zima entering because he was a police officer. (RSOF ¶ 74; SAF ¶ 11.) Lastly, Abdul-Aziz testified that he stood next to Zima while Zima searched for the phone, that he did not object while Zima searched, and that he did not feel threatened during the course of the search. (RSOF ¶ ¶ 76, 77.)

Although the amount of time that Zima was initially in the apartment is in dispute, the parties agree that Zima at some point left to ask Aydin for her cell phone number so that he could call it from his phone, which Aydin agreed to do. ( Id. ¶ ¶ 61-62.) When Zima returned to the apartment building, Abdul-Aziz again buzzed Zima in and then also opened the apartment door for him. ( Id. ¶ 79.) Zima dialed Aydin's number and heard a ringtone coming from the bathroom sink. ( Id. ¶ ¶ 63-64.) After finding her phone, he returned it to her outside. ( Id. ¶ 65.) Plaintiff asserts, and Zima denies, that Plaintiff " informed Zima multiple times prior to entering his apartment, the first and second time, that he

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did not have permission or consent." (SAF, RSAF ¶ 7.)

After arriving at the Village of Justice Police Department, Zima spoke to Plaintiff's immigration attorney, Cherissa Loire, over the phone. (RSAF ¶ 12.) Loire faxed the order that vacated or terminated the May 23, 2011 order of protection and spoke with someone at the police department after the document was received. ( Id. ¶ 14.) Loire informed whomever she was speaking with that he could call the Cook County Clerk to verify that the order was vacated. ( Id. ¶ 17.) The parties agree that Zima was shown the fax, although they dispute whether that occurred before or after Plaintiff was processed. (SOF, RSOF ¶ 66.) They also dispute whether the faxed copy had an official seal. ( Id. ¶ ¶ 66, 67.)

Plaintiff was charged with violating the protective order. (RSOF ¶ 70.) When Plaintiff was released from jail five days later, on June 13, 2012, he was required to wear a GPS monitoring device until June 22, 2012, when his case was called for hearing and the charges were dismissed against him. (RSAF ¶ ¶ 23, 24.) At the hearing, Plaintiff's attorney, Peter Papoutsis, told the court that " it looks like this is a violation of an order of protection" and that " there has been an ongoing issue with this order of protection inasmuch as my client has been arrested for violating it several times." ( Id. ¶ 71.) Papoutsis told the court that the order had been terminated on June 14, 2011, but " it has never come out of the computer for LEADS so he keeps getting picked up on this." ( Id. ¶ 72.) According to Officer Bonkowski, there have been times when the LEADS system has been incorrect and Village of Justice police officers, upon seeing the person's " proper paperwork on them, the official stamp from a judge" have either released the person or investigated it further. (SAF ¶ 20 (citing Bonkowski Dep., SAF, Ex. 6, 41:6-23 (referring to situations involving a suspended license or warrant)).)

Plaintiff filed a complaint on October 12, 2012, and an amended complaint on March 5, 2013, against Zima for (1) unreasonable search and (2) false arrest, and against both Zima and the Village of Justice for (3) malicious prosecution and (4) trespass. (Compl., Dkt. No. 1; Amended Compl., Dkt. No. 15.) The Village of Justice, Plaintiff avers, is liable for Zima's acts under the doctrine of respondeat superior. (Amended Compl., Dkt. No. 15, ¶ ¶ 35, 39.) On October 31, 2013, Zima and the Village of Justice filed a motion for summary judgment. (Mot., Dkt. No. 22.)[4]


I. Summary Judgment Standard of Review

Summary judgment will be granted in favor of the moving party if " there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the burden of establishing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). When ruling on a motion for summary judgment, we must view evidence in the light most favorable

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to the nonmoving party and draw all reasonable inferences in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Rebolar ex rel. Rebolar v. City of Chi., Ill., 897 F.Supp.2d 723, 726 (N.D. Ill. 2012). If and only if a reasonably jury could not return a verdict for the nonmovant, is summary judgment warranted. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

II. Federal Claims

A. False Arrest

1. Probable Cause

a. Standard of review

To prevail on a claim of false arrest under the Fourth Amendment and Section 1983, Plaintiff must show that he was arrested without probable cause. " Probable cause is an absolute bar to a claim of false arrest asserted under the Fourth Amendment and Section 1983." Zitzka v. Westmont, 743 F.Supp.2d 887, 908 (N.D. Ill. 2010) (citing Stokes v. Bd. of Educ. of the City of Chi., 599 F.3d 617, 622 (7th Cir. 2010)); Abbott v. Sangamon County, 705 F.3d 706, 713-14 (7th Cir. 2013); Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009). Probable cause must be assessed objectively. " [A] court looks at the conclusions that the arresting officer reasonably might have drawn from the information known to him rather than his subjective reasons for making the arrest." Holmes v. Hoffman Estates, 511 F.3d 673, 679 (7th Cir. 2007) (citing Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 593-94, 160 L.Ed.2d 537 (2004); Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996)). To make that objective assessment, we " must consider the facts as they reasonably appeared to the arresting officer, seeing what he saw, hearing what he heard, and so forth." Holmes, 511 F.3d at 679 (citing Wagner v. Washington County, 493 F.3d 833, 836 (7th Cir. 2007)); Williams v. Rodriguez, 509 F.3d 392, 398-99 (7th Cir. 2007). While probable cause to arrest depends on the elements of the applicable state criminal law, Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 761 (7th Cir. 2006) (citing Williams v. Jaglowski, 269 F.3d 778, 782 (7th Cir. 2001)), it " does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands," Gerstein v. Pugh, 420 U.S. 103, 121, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975); Mucha v. Village of Oak Brook, 650 F.3d 1053, 1056-57 (7th Cir. 2011); U.S. v. Funches, 327 F.3d 582, 587 (7th Cir. 2003).

Also an important factor is the timing of a probable cause determination, the existence of which turns on the information known to the officer at the moment the arrest is made, not on subsequently received information. Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 2000). Once probable cause has been established, an officer has " no constitutional obligation to conduct further investigation in the hopes of uncovering potentially exculpatory evidence." Id. (quoting Eversole v. Steele, 59 F.3d 710, 718 (7th Cir. 1995)). Keeping these standards in mind, we next assess whether no reasonable trier of fact could find that Zima did not have probable cause to arrest Plaintiff.

b. The parties' arguments as to probable cause

Zima argues that he had probable cause to arrest Plaintiff based on the information he had at the scene, including LEADS, which showed that the May 23, 2011 order of protection against Plaintiff was still active. (Mem. at 7-8.) Plaintiff counters that the " only" information Zima relied upon to arrest Plaintiff was the information in LEADS, which " is known to be

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incorrect and contain information that has been improperly left in the system." (Resp. at 6-7.) After Zima handcuffed Plaintiff and placed him in the back of the squad car, Plaintiff argues that both he and Aydin informed Zima " multiple times" that the order of protection had been vacated months prior to June 8, 2012 and that they could obtain copies of the order. ( Id. at 7.) According to Plaintiff, no reasonable officer in Zima's position would believe that there was probable cause to arrest Plaintiff. ( Id. at 6.)

Furthermore, Plaintiff avers, even if the order of protection was active, Zima still lacked probable cause to arrest him because no reasonable person would believe, based on the facts with which Zima was presented, that the elements required to prove a violation were present. ( Id. at 7.) To violate an order of protection, both an actus reus, " an act prohibited by a valid order of protection," and mens rea, " actual knowledge of the contents of the order," are required. People v. Hinton, 402 Ill.App.3d 181, 183-84, 931 N.E.2d 769, 771, 341 Ill.Dec. 872 (3rd Dist. 2010) (quoting 720 ILCS 5/12-30(a)(2)); People v. Davit, 366 Ill.App.3d 522, 525, 851 N.E.2d 924, 927, 303 Ill.Dec. 737 (2nd Dist. 2006) (" The offense of violating an order of protection is not a strict liability offense, and the State is required to prove both actus reus, a guilty act, and mens rea, a guilty mind." ). Accordingly, given how Plaintiff had committed neither element of the offense, and " [b]ased upon all the facts known to Zima at the time, a reasonable and prudent person would not believe there was probable cause to arrest Plaintiff on June 8, 2012. Alternatively, there is at the very least a genuine issue of material fact." (Resp. at 8.) According to Plaintiff, he notified Zima that it was Aydin who contacted Plaintiff over the phone and drove voluntarily to his apartment and that Plaintiff was the one who ...

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