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Sroga v. Hondzinski

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

August 3, 2017

KEVIN SROGA, Plaintiff,
v.
JENNIFER HONDZINSKI, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Harry D. Leinenweber, Judge

         Before 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].

         I. BACKGROUND

         Plaintiff 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.

         In this 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.

         On 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.

         After 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.

         Shortly 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.

         About 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.

         Multiple 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.

         The 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.

         On June 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 of Chicago.

         The 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.

         II. ANALYSIS

         With 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.

         A. Streets and Sanitation Defendants

         Sroga 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.

         The 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 occurred.”).

         However, 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.

         It is 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.”).

         Moreover, 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 act”).

         As for 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.

         Sroga 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.

         The 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 Sanitation employees.

         The 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 here.

         For 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.

         B. Chicago Police Officers

         The 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 ...


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