United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge
the Court are Motions to Dismiss all but one count of an
eleven-count Complaint. For the reasons stated herein, the
Court grants in part and denies in part the Motion brought by
the individual Defendants [ECF No. 52] and grants the Motion
brought by the City of the Chicago [ECF No. 54].
Kevin Sroga (“Sroga”), as the Seventh Circuit has
remarked, is “a prolific civil litigant” who
keeps both the courts and the Chicago Police Department busy.
Sroga v. Weiglen, 649 F.3d 604, 605-06 (7th Cir.
2011). In the past year and in this district alone, Sroga has
filed five separate lawsuits, all alleging some sort of
constitutional deprivations relating to the tows of his
vehicles. See, Sroga v. Rendered Services Inc., No.
17 C 03602 (alleging unlawful tows by agents of the State of
Illinois); Sroga v. William, No. 17 C 01333
(alleging unlawful seizures of his vehicles by employees of
the Chicago Department of Streets and Sanitation); Sroga
v. Laboda, No. 16 C 8366 (same); Sroga v. Doe,
No. 16 C 6965 (same); Sroga v. Hondzinski, No. 16 C
5796 (same). This is one of those five cases.
lawsuit, Sroga brings an eleven-count Complaint against
seventeen individuals and the City of Chicago. See,
generally, ECF No. 39 (Am. Compl). The allegations in
Sroga's Complaint fall into two categories: those
relating to a specific event occurring on June 18, 2014 and
those purporting to link the 2014 event to a larger
conspiracy and municipal policy. Sroga leads with allegations
regarding the conspiracy. Upon information and belief, he
alleges that Chicago Police Officers Jennifer Hondzinski
(“Hondzinski”), Sonia Moriarty
(“Moriarty”), Edwin Pagan (“Pagan”),
Tracey Sroka (“Stroka”), and Donna Tarala
(“Tarala”) (collectively, “the Core
Defendants”) “have agreed to target his vehicles
for citation and towing in order to harass Sroga.” Am.
Compl. ¶ 25. Since about 2003, the Core Defendants,
along with other Chicago Police Officers, “have ordered
the towing of Sroga's vehicles approximately 30 or more
times.” Id. ¶ 24. Approximately eight of
these 30 tows were done under the municipal policy that Sroga
here complains about, the Confidential Vehicle Identification
Number (“VIN”) checks. Id. ¶ 25.
further information and belief, Sroga alleges that the
Chicago Police Department (“CPD”) issues such a
Confidential VIN check “to verify that the vehicle
subject to the check has (1) a VIN Number and (2) verify that
essential parts are not stolen.” Am. Compl. ¶ 26.
Furthermore, “when CPD lists a vehicle for a
Confidential VIN check, it is towed and CPD personnel then
search the vehicle to check and verify the VIN
numbers.” Id. ¶ 27. Sroga does not
quarrel with the dual purpose of the Confidential VIN checks
policy nor does he contend that the VINs can be verified
without a tow. Instead, Sroga takes issue with the fact that
the policy (allegedly) does not require CPD personnel to have
“probable cause to believe the vehicles are stolen or
have stolen parts” before listing them for VIN checks.
Id. ¶ 28. Because of this gap in the policy and
the “personal vendetta” that “police
officers, including Defendant Hondzinski and Sroka have had
against Sroga, ” his vehicles were subjected to
numerous tows, all of which “were done without probable
cause and solely for the purpose of harassment” and
none of which was “found to be justified.”
Id. ¶¶ 23, 24, 29.
making the above allegations about the putative conspiracy
and municipal policy, Sroga switches gears and begins to
allege the details of a tow that happened on June 18, 2014,
one of the eight tows alluded to previously. According to
Sroga, on June 18, 2014 he arrived at his Ford Crown Victoria
and found that a tow truck had pulled up in front of his
vehicle. Sroga identified himself to the tow operator as the
owner of the vehicle, and the operator told him that he had
“a Tow Report” to remove the vehicle. Putting
this report together with other “information and
belief, ” Sroga surmised that “the tow was
ordered by the Chicago Department of Streets and Sanitation
based on a request by Defendant Hondzinski to conduct a
confidential VIN check.” Id. ¶ 37. Sroga
requested the tow operator to contact his dispatch to cancel
the tow. He then got into his car.
thereafter, two employees of the Chicago Department of
Streets and Sanitation, Defendants Raymound Soutchet
(“Soutchet”) and Leroy Kaminski
(“Kaminski”) (collectively, “the Sanitation
Defendants”), arrived on the scene “in response
to a call that the tow operator had placed.”
Id. ¶¶ 38-42. When they got to the area,
the Sanitation Defendants parked their vehicles in such a way
as to make it “impossible for Sroga to drive his
vehicle out of his parked space” or to “open
his driver-side door.” Am. Compl. ¶ 49. They asked
Sroga to get out of his car, but he “declined their
requests.” Id. ¶ 50. At some point, the
Sanitation Defendants instructed the tow operator to wrap his
tow cable around the front bumper of Sroga's vehicle, and
he did so. Id. ¶ 52.
ten minutes after the Sanitation Defendants appeared, two of
the Core Defendants - Officers Moriarty and Tarala - also
arrived on the scene. Tarala attempted to open Sroga's
door but was unable to do so as it was locked. She thereafter
“unlawfully ordered Sroga to get out of his
vehicle.” Am. Compl. ¶ 57. He did not comply and
instead requested that she “call a Sergeant to come to
the scene.” Id. Additional police officers
then arrived. Of these officers, only Core Defendant Pagan is
identified by name. Subsequently, a sergeant - presumably
Sergeant James Poremba (“Poremba”), as he is the
sole defendant named in the Complaint who is identified as a
sergeant - also made an appearance. Both Defendant Pagan and
Sergeant Poremba “unlawfully ordered [Sroga] to get out
of his vehicle.” Am. Compl. ¶ 58. “Sroga
continued to stay in his vehicle.” Id. Pagan
then forced entry into the Ford Crown Victoria by breaking
the rear passenger-side window, unlocking the door, and
entering. He thereafter reached over to the driver's
door, opened it, and pushed Sroga out.
officers then “descended upon [Sroga] to take him to
the ground.” Am. Compl. ¶ 64. Although Sroga did
not resist, the officers “manhandl[ed]” him; one
officer “placed a boot forcibly on his head pushing his
face into the pavement, ” while others put
“handcuffs on Sroga excessively tightly.”
Id. Sroga alleges that as a result “of the
unnecessary and excessive force used to take [him] to the
ground, [he] suffered torn tendons in both his right and left
elbows.” Id. After being arrested, Sroga was
transported to the police station and put in a holding room.
While there, “Pagan slammed Sroga chest first into one
of the walls, ” causing injuries to his chest and arms.
Id. ¶ 66-67.
arrest resulted in Sroga being charged with violating two
Illinois statutes - criminal trespass to vehicles, 720 ILCS
5/21-2, and resisting or obstructing a peace officer, 720
ILCS 5/31-1-A. Am. Compl. ¶¶ 69-71. The charges
“were never tried, ” and they were dismissed on
November 16, 2015 “because the State was not ready when
the case was called.” Id. ¶ 72.
2, 2016, Sroga filed this lawsuit. In the Amended Complaint,
Sroga asserts the following eleven causes of actions: Count
I: seizure of his person and property in violation of the
Fourth Amendment against the Sanitation Defendants; Count II:
the same illegal seizure but as asserted against the Core
Defendants; Count III: search and seizure in violation of the
Fourth Amendment against Defendant Hondzinski; Count IV:
false arrest in violation of the Fourth Amendment against the
Core Defendants; Count V: excessive force in violation of the
Fourth Amendment against Defendant Pagan; Count VI: malicious
prosecution in violation of the Fourth Amendment against
Sergeant Poremba and the Core Defendants; Count VII:
conspiracy to deprive Sroga of his constitutional rights by
the Core Defendants; Count VIII: a state-law claim for
intentional infliction of emotional distress against Sergeant
Poremba, the Core Defendants, and Chicago Police Officers
Julie Butzen, David Deja, Cesar Echeverria, Robin Gonzalez,
John Nowik, Edwin Roman, Nodal Rosario, and John and Jane Doe
(collectively, “the Secondary Defendants”); Count
IX: supervisory liability against Sergeant Poremba; Count X:
violation of the Eighth Amendment for failure to intervene
against Sergeant Poremba and the Secondary Defendants; and
finally, Count XI: a Monell claim against the City
Defendants seek to dismiss all but Count V of the Complaint
(that alleging excessive force by Defendant Pagan). The Court
grants in part and denies in part the Motions.
the exception of the state-law action for intentional
infliction of emotional distress (Count VIII), Sroga's
claims all rest on 42 U.S.C. § 1983. See,
generally, Am. Compl.; see also, Allen v. City of
Chi., 828 F.Supp. 543, 563 (N.D. Ill. 1993)
(“Section 1983 provides a cause of action against
municipalities and municipal employees, and the availability
of this statutory remedy precludes direct claims under the
Constitution.”). The Court thus examines the Complaint
while bearing in mind the requirements of that statute. It
begins with the individual Defendants.
Streets and Sanitation Defendants
levies two charges at Sanitation Defendants Soutchet and
Kaminski: illegal seizure of his property (the Ford Crown
Victoria) and illegal seizure of his person. The Court
addresses the second claim first.
Court notes that Sroga does not allege that the Sanitation
Defendants restrained his freedom to walk away from the
scene. He alleges only that they parked their cars in such a
way that he could not leave by driving away in his vehicle or
by exiting from his front driver-side door. The Court is thus
not convinced that the Sanitation Defendants limited
Sroga's freedom of movement to the extent necessary to
constitute seizure of his person. See, Terry v.
Ohio, 392 U.S. 1, 19 n.16 (1968) (“Obviously, not
all personal intercourse between policemen and citizens
involves ‘seizures' of persons. Only when the
officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen may we
conclude that a ‘seizure' has
even if they did seize Sroga, the Sanitation Defendants
cannot have been acting under color of state law in so doing.
This is crucial for Sroga's § 1983 claim because
§ 1983 “affords a ‘civil remedy' for
deprivations of federally protected rights caused by persons
acting under color of state law.” Parratt v.
Taylor, 451 U.S. 527, 535 (1981), overruled on other
grounds by Daniels v. Williams, 474 U.S. 327, 330-31
(1986). Therefore, “state officials or employees who
act without the cloth of state authority do not subject
themselves to § 1983 suits.” Hughes v.
Meyer, 880 F.2d 967, 971 (7th Cir. 1989). Sroga's
§ 1983 claim against Defendants Soutchet and Kaminski
thus fails because these Defendants are “without the
cloth of state authority” to seize people.
important to keep in mind that Defendants Soutchet and
Kaminski are employees of the Streets and Sanitation
Department, not police officers. They therefore do not have
police powers, including the power to stop, arrest, or
generally seize people. If they effected such a seizure, then
their action went beyond the performance of their job and
thus was done without color of state law. See, Honaker v.
Smith, 256 F.3d 477, 484-85 (7th Cir. 2001)
(“[A]cts by a state officer are not made under color of
state law unless they are related in some way to the
performance of the duties of the state office.”).
Defendants Soutchet and Kaminski's authority to tow
vehicles is expressly limited so that they do not seize
people as they perform their towing duties. As Sroga
acknowledges, Section 9-44-060 of the Chicago Municipal Code
prohibits any person from operating “a vehicle to tow
another vehicle if the towed vehicle contains one or more
passengers.” See, Am. Compl. ¶ 46. Any
seizure of the kind Sroga alleges - that of his person as he
sat in his car while it was being towed - is forbidden by the
statute. As such, if the Sanitation Defendants seized Sroga,
then they did so with power that the state says they
absolutely do not possess. Their actions therefore fall
outside the ambit of § 1983. See, Wilson v.
Price, 624 F.3d 389, 393 (7th Cir. 2010) (“When
officials possess no authority to act, we have found that
their conduct is outside the ambit of § 1983.”);
Gibson v. Chicago, 910 F.2d 1510, 1518-19 (7th Cir.
1990) (stating that “we have found no authority for
expanding [§ 1983 liability] to encompass the actions of
an official who possessed absolutely no authority to
Sroga's claim that the Sanitation Defendants seized his
vehicle, the Court believes that it is targeted at the wrong
Defendants. It is true that Streets and Sanitation employees
have the authority to tow cars. See, Chicago Mun.
Code § 9-92-030. Unlike their alleged action in seizing
Sroga, Defendants Soutchet and Kaminski acted under color of
state law when they attempted to tow his car. However, merely
alleging that a defendant acted under color of state law is
not enough to state a § 1983 claim.
must also allege that the Sanitation Defendants'
attempted tow deprived him of his constitutional rights.
See, Parratt, 451 U.S. at 535 (“[I]n any
§ 1983 action the initial inquiry must focus on whether
the two essential elements to a § 1983 action are
present: (1) whether the conduct complained of was committed
by a person acting under color of state law; and (2) whether
this conduct deprived a person of rights, privileges, or
immunities secured by the Constitution or laws of the United
States.”). This, he has failed to do.
gravamen of Sroga's claim against the Sanitation
Defendants is that they violated the Fourth Amendment by
attempting to tow his car when they did not have
“probable cause to believe the vehicle [was] stolen
or ha[d] stolen parts.” Am. Compl. ¶ 28. But Sroga
has cited no authorities to suggest that government employees
who are not police officers must act with probable cause lest
they violate the Constitution. Under Sroga's theory of
the case, those who work for the Streets and Sanitation
Department, like Defendants Soutchet and Kaminski, must
independently make an assessment that a vehicle has been
stolen before they may tow it. But clearly, Defendants
Soutchet and Kaminski are unequipped to make such an
assessment, as the Department of Streets and Sanitation does
not train its workers to determine the probability that a
crime has occurred or that they are faced with evidence of
it. Such is the province of police officers, not Streets and
Court thus concludes that because they were neither
“plainly incompetent” nor “knowingly
violat[ing] the law” when they prevented Sroga from
driving away in his car, the Sanitation Defendants are
shielded by qualified immunity. See, Hughes, 880
F.2d at 971 (“Qualified immunity is designed to shield
from civil liability all but the plainly incompetent or those
who knowingly violate the law.”) (internal quotation
marks omitted). Simply put, Sroga cannot sue them as he did
these reasons, the Court dismisses Count I of the Complaint.
Furthermore, as it does believe that Sroga cannot cure his
Complaint against the Sanitation Defendants by amending, it
orders the dismissal with prejudice.
Chicago Police Officers
Court next examines the claims brought against the Chicago
Police Officer Defendants, a group which consists of Sergeant
Poremba, the Core Defendants, and the Secondary Defendants.
(Although Sroga does not mention the Secondary Defendants in
the factual allegations of his Complaint, the Court assumes
that they were the additional officers who arrived on the
scene shortly before Sergeant Poremba.) While the claims
against these Defendants seem endless, the Defendants argue