Spiegel v. McClintic

• Decision Date: 14 February 2019
• Docket Number: No. 18-1070,18-1070
• Parties: Marshall SPIEGEL, Plaintiff-Appellant, v. Corrine MCCLINTIC and Village of Wilmette, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

916 F.3d 611

Marshall SPIEGEL, Plaintiff-Appellant,

v.Corrine MCCLINTIC and Village of Wilmette, Defendants-Appellees.

No. 18-1070

United States Court of Appeals, Seventh Circuit.

Argued December 4, 2018

Decided February 14, 2019

John S. Xydakis, Attorney, LAW OFFICE OF JOHN S. XYDAKIS, Chicago, IL, for Plaintiff-Appellant.

David Feller Hyde, Eugene E. Murphy, Jr., Attorneys, MURPHY LAW GROUP, LLC, Chicago, IL, for Defendant-Appellee CORRINE MCCLINTIC.

Michael R. Hartigan, Attorney, HARTIGAN & O'CONNOR, P.C., Stacey Lynn Wilkins, Attorney, TRESSLER LLP, Chicago, IL, for Defendant-Appellee VILLAGE OF WILMETTE.

Before Bauer, Kanne, and Brennan, Circuit Judges.

Kanne, Circuit Judge.

Marshall Spiegel believes that Corrine McClintic (and her husband William) have been violating condominium association rules since the McClintics purchased a unit in the building where he lives. To document their perceived violations, Spiegel took to photographing and filming the McClintics. In response to his less-than-subtle surveillance, Corrine McClintic began filing police reports. Spiegel was not arrested. But members of the Village of Wilmette Police Department threatened him with arrest for disorderly conduct if he persists in photographing and videotaping the McClintics. Spiegel subsequently sued Corrine and the Village of Wilmette. In his second amended complaint—the dismissal of which Spiegel now appeals—he argues that Wilmette and McClintic conspired together to violate his constitutional rights. He further claims that Corrine intruded upon his seclusion, in violation of Illinois law, by photographing the interior of his condominium. Because Spiegel has not identified a constitutional violation or shown that he suffered damages from the alleged intrusion upon his seclusion, we affirm the dismissal.

I. BACKGROUND

We take the well-pleaded allegations from Spiegel's second amended complaint as true.¹ Marshall Spiegel has lived in a condominium building in Wilmette, Illinois for 22 years. In 2015, Corinne and William McClintic bought a unit in the building. Despite condominium association rules which prohibit renting out units, the McClintics did so. They do not live in the building but use the building pool almost daily.

1. Spiegel's Surveillance of Corrine McClintic

Spiegel explains that, "to protect himself from false allegations," he began "documenting violations of the Association's rules by the McClintics." Specifically, he began photographing and videotaping the couple. His second amended complaint is interspersed with pictures of the McClintics around the building. In most of the photos, the person pictured is looking directly at the camera.

The tensions between Spiegel and the McClintics quickly escalated. Corrine filed numerous police reports between June and October 2016. In one report—in June 2016—Corrine told officers that Spiegel jumped in front of her car and photographed her. In response, Wilmette police officers warned Spiegel against causing further problems. Spiegel told the officers that the report contained false allegations and argued that his conduct did not violate the disorderly conduct ordinance, but the officers "insisted that Spiegel had broken the law." On September 20, 2016, Spiegel videotaped Corrine, William, and another unit owner talking near the pool. Corrine reported to the Wilmette police that Spiegel was videotaping her in her bathing suit (an allegation he denies) and asked that they arrest him for disorderly conduct. On October 7, 2016, Spiegel documented Corrine McClintic attempting to evade a process server in front of the condominium building. Corrine McClintic informed Spiegel that the Wilmette police had promised to arrest him if he videotaped her again. She reported the incident.

Spiegel also videotaped Corrine McClintic at a later, unspecified Association meeting. Once again, she threatened Spiegel with arrest if he continued videotaping her. The second amended complaint does not clarify whether McClintic filed a police report.

2. Corrine McClintic's Surveillance of Spiegel

Spiegel alleges that Corrine McClintic, not he, is the one engaged in illegal surveillance. He contends that, between May 29 and June 4, 2016, she attempted to peer into Spiegel's unit on three occasions. He suspects she took pictures. Spiegel also caught Corrine McClintic "spying" on him by the pool and near the elevator. Spiegel does not specifically allege that he reported these incidents to the Wilmette police.

He does assert, however, that "Wilmette police have refused to act on Spiegel's claims against residents and others." The only specific example he gives in the second amended complaint involves an altercation at a "recent Association meeting" where "a resident's son-in-law battered Spiegel in front of roughly ten people until security guards pulled him off." Spiegel reported the incident to Wilmette police, but they declined to charge the man.

3. Procedural History

Spiegel filed suit against Corrine McClintic, alleging state law defamation and requesting a declaration that the First Amendment protected his public videotaping. Two days later, he filed a first amended complaint which added the Village of Wilmette as a defendant. The district court dismissed the first amended complaint for lack of subject matter jurisdiction but granted Spiegel leave to file a second amended complaint. In that complaint, Spiegel sought relief against Corrine McClintic and the Village of Wilmette under 42 U.S.C. § 1983 and against Corrine McClintic for intrusion upon seclusion under Illinois law. On November 29, 2016, Spiegel filed a motion for a temporary restraining order or preliminary injunction, and the defendants moved to dismiss.

On September 27, 2017, the district court dismissed Spiegel's claims against McClintic and denied Spiegel's motion for a preliminary injunction. On November 7, 2017, after supplemental briefing, the district court dismissed Spiegel's claim against Wilmette and entered final judgment.

Approximately one month later, Spiegel filed a combined motion to vacate the judgment and to file a third amended complaint. In a text-only order, the district court denied the motion to vacate because it presented arguments already considered and rejected and denied the motion to amend for the same reasons articulated in the November 7, 2017, order. Spiegel's proposed third amended complaint was largely identical to his second amended complaint, but it offered several additional factual allegations and named three Wilmette officers as defendants. This appeal followed.

II. ANALYSIS

Spiegel frames his suit as one meant to vindicate his constitutional right to photograph and videotape in public. He essentially argues that the defendants violated his First Amendment rights by conspiring to prosecute him for lawful conduct. We need not reach the question of whether Spiegel has, in fact, identified a constitutional violation because his claims suffer from threshold deficiencies.

We review a district court's dismissal under Rule 12(b)(6) de novo . LaBella Winnetka, Inc. v. Vill. of Winnetka , 628 F.3d 937, 941 (7th Cir. 2010). Like the district court, we construe the second amended complaint in a light most favorable to Spiegel. Id.

1. Spiegel Has Not Stated a § 1983 Claim Against McClintic

The district court properly dismissed Spiegel's § 1983 claim against Corrine McClintic because she is a private citizen. "To state a claim for relief in an action brought under § 1983, respondents must establish ... that the alleged deprivation was committed under color of state law." Am. Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). The under-color-of-state-law element means that § 1983 does not permit suits based on private conduct, "no matter how discriminatory or wrongful." Id. at 50, 119 S.Ct. 977 (citation omitted). But a private citizen can act under color of law if there is "evidence of a concerted effort between a state actor and that individual." Fries v. Helsper , 146 F.3d 452, 457 (7th Cir. 1998). We call this the "conspiracy theory" of § 1983 liability.

Spiegel argues that he can hold Corrine McClintic liable under § 1983 merely by alleging aid to or encouragement of state action by McClintic, not an actual conspiracy. That's inconsistent with the clear holding in Fries . "To establish § 1983 liability through a conspiracy theory, a plaintiff must demonstrate that: (1) a state official and private individual(s) reached an understanding to deprive the plaintiff of his constitutional rights, and (2) those individual(s) were willful participant[s] in joint activity with the State or its agents." Id. (internal citations omitted). "[M]ere allegations of joint action or a conspiracy do not demonstrate that the defendants acted under color of state law and are not sufficient to survive a motion to dismiss." Id. at 458.

Spiegel also argues that an "agreement among all the conspirators is not a necessary element of a civil conspiracy," quoting Lenard v. Argento , 699 F.2d 874, 882 (7th Cir. 1983). But he misquotes Lenard : the court actually stated that "[a]n express agreement" is not required. Id. (emphasis added).

With the proper standard established, we attempt to find a conspiracy within Spiegel's allegations. Spiegel quotes language in Gramenos v. Jewel Cos. , asserting that "[i]f the police promise to arrest anyone the shopkeeper designates, then the shopkeeper is exercising the state's function and is treated as if he were the state." 797 F.2d 432, 435 (7th Cir. 1986).

But Spiegel doesn't allege that Wilmette police agreed to arrest Spiegel if directed to do so by McClintic. The officers clearly retained full discretion, evidenced by their decision to not arrest Spiegel.

We have repeatedly held that "the mere act of furnishing information to law enforcement officers" does not constitute joint activity in an unconstitutional arrest. Butler v. Goldblatt Bros. , 589 F.2d 323, 327 (7th Cir. 197...