Elmhurst Answer To Messino Lawsuit

Case: 1:19-cv-02985 Document #: 23 Filed: 08/01/19 Page 1 of 21 PageID #:55
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN MESSINO, )
)
Plaintiff, )
)
v. ) Case No. 19-cv-2985
)
CITY OF ELMHURST AND ELMHURST )
POLICE OFFICER JASON KRUEGER, )
STAR NO. 244, )
)
Defendants. )
ANSWER TO FIRST AMENDED COMPLAINT

FOR VIOLATION OF CIVIL RIGHTS
NOW COME the Defendants, City of Elmhurst (“City”) and Elmhurst Police Officer
Jason Krueger, Star No. 244 (“Krueger”) (collectively “Defendants”), by and through their
attorneys, Storino, Ramello & Durkin, and for their Answer to Plaintiff, John Messino’s
(“Plaintiff”) First Amended Complaint for Violation of Civil Rights, state as follows:
JURISDICTION AND VENUE
1. This action arises under the United States Constitution and the Civil Rights Act of
1871 (42 U.S.C. Section 1983). This court has jurisdiction under and by virtue of 28 U.S.C.
Sections 1343 and 1331 and 1367.
ANSWER: The Defendants admit the allegations contained in paragraph 1.
2. Venue is founded in this judicial court upon 28 U.S.C. 1391 as the acts
complained of arose in this district.
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PARTIES
3. At all times herein mentioned, Plaintiff John Messino (“Messino”) was and is a
citizen of the United States, and was within the jurisdiction of this court.
4. At all times herein mentioned, Elmhurst Police Officer Jason Krueger, Star No.
244 (“Krueger”) was employed by the Elmhurst Police Department, and was citing [sic] under
color of state law and as the employee, agent, or representative of the Elmhurst Police
Department. This Defendant is being sued in his individual capacity.
5. At all times herein mentioned, the City of Elmhurst was a political division of the
State of Illinois, existing as such under the laws of the State of Illinois. At all relevant times, the
City of Elmhurst maintained, managed, and/or operated the Elmhurst Police Department.
FACTUAL ALLEGATIONS
6. On June 27, 2018, Plaintiff was lawfully located at or near 531 N. Walnut St., in
the City of Elmhurst, County of DuPage, State of Illinois.
7. On that day and place Defendant Krueger seized Plaintiff’s person and subjected
him to a custodial arrest.
ANSWER: The Defendants admit that on that day and place Defendant Krueger
seized Plaintiff’s person and subjected him to a custodial arrest for driving his
vehicle while his license was revoked or suspended, and adds affirmatively, as
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alleged in its Affirmative Defenses, such actions by Defendant Krueger were taken
pursuant to probable cause.
8. At the time of Plaintiff’s seizure and arrest Defendant Krueger was not aware of
any facts that created probably cause to seize and/or arrest Plaintiff.
ANSWER: The Defendants deny the allegations contained in paragraph 8.
9. On that date, Plaintiff had not engaged in any criminal activity, or any action that
created probable cause to seize and/or subject Plaintiff to a custodial arrest.
10. Despite the lack of probable cause Defendant Krueger arrested Plaintiff and
caused Plaintiff to be charged with driving his vehicle while his license was revoked or
suspended.
ANSWER: The Defendants deny that Defendant Krueger lacked probable cause to
arrest Plaintiff, but admit that Defendant Krueger arrested Plaintiff and caused
Plaintiff to be charged with driving his vehicle while his license was revoked or
suspended.
11. Prior to his arrest, Plaintiff was in possession of a valid restricted driving permit
issued by the State of Illinois, and he presented the driving permit to Defendant Krueger for
inspection.
ANSWER: The Defendants admit the allegations contained in paragraph 11 and
attach hereto as Exhibit A to this Answer a true and correct copy of Plaintiff’s
restricted driving permit as in effect on or about June 27, 2018.
12. Prior to his arrest, Plaintiff had not violated the terms of his restricted driving
permit.
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13. Prior to arresting Plaintiff, Defendant Krueger did not possess information that
created probable cause to believe Plaintiff had violated the terms of his restricted driving permit.
14. Defendant Krueger subjected Plaintiff to a custodial arrest based solely upon his
own false allegation that Plaintiff violated the terms of Plaintiff’s restricted driving permit.
15. After subjecting Plaintiff to custodial arrest, Defendant Krueger caused Plaintiff
to be charged with committing the criminal offense of driving while his license was revoked or
suspended.
ANSWER: The Defendants admit the allegation contained in paragraph 15.
16. Defendant Krueger was not aware of any facts that created probable cause to
charge Plaintiff with driving while his license was revoked or suspended.
17. Defendant Krueger’s decision to charge Plaintiff with the crime of driving while
his license was revoked or suspended was based solely upon Defendant Krueger’s knowingly
false allegation that Plaintiff had violated the terms of his restricted driving permit.
18. As a result of Defendant Krueger causing Plaintiff to be charged with a criminal
offense, Plaintiff was subjected to a legal process, criminal prosecution, pretrial detention, and/or
deprivation of his liberty.
ANSWER: The Defendants admit that as a result of Defendant Krueger causing
Plaintiff to be charged with a criminal offense, Plaintiff was subjected to a legal
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851060.1
process and criminal prosecution, however, the Defendants deny the remaining
allegations contained in paragraph 18, and adds affirmatively, as alleged in the
Defendants’ affirmative defenses, Plaintiff was released from police custody
pursuant to bond on June 27, 2018, at or about 1:25 p.m., approximately one hour
and seven minutes after he had arrived at the Elmhurst Police Department
headquarters for booking and processing.
19. Defendant Krueger knew that the criminal prosecution, pretrial detention and/or
deprivation of Plaintiff’s liberty was based solely upon Defendant Krueger’s false allegation that
Plaintiff had violated the terms of his restricted driving permit, and thus Defendant Krueger
knew Plaintiff’s prosecution, pretrial detention, and/or deprivation of Plaintiff’s liberty were not
supported by probable cause.
20. On November 29, 2018, Plaintiff was found not guilty of the criminal charge that
was initiated and continued on the basis of Defendant Krueger’s false allegation that Plaintiff
exceeded the terms of his restricted driving permit.
ANSWER: The Defendants admit that on November 29, 2018, Plaintiff was found
not guilty of the criminal charge but deny the remaining allegations contained in
paragraph 20.
21. By reason of the above-described acts and omissions of Defendant Krueger,
Plaintiff sustained injuries, including but not limited to, humiliation and indignities, and suffered
great mental and emotional pain and suffering all to his damage in an amount to be ascertained.
ANSWER: The Defendants lack knowledge or information sufficient to form a
belief as to the truth of Plaintiff’s allegations related to any injuries he allegedly
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851060.1
sustained, and Defendants deny the remaining allegations contained in paragraph
21.
22. The aforementioned acts of Defendant Krueger were willful, wanton, malicious
oppressive and done with reckless indifference to and/or callous disregard for Plaintiff’s rights
and justify the awarding of exemplary and punitive damages in an amount to be ascertained
according to proof at the time of trial.
23. By reason of the above-described acts and omissions of Defendant Krueger,
Plaintiff was required to retain an attorney to institute, prosecute then render legal assistance to
him in the within action so that he might vindicate the loss and impairment of his rights. By
reason thereof, Plaintiff requests payment by Defendant Krueger, of a reasonable sum of
attorney’s fees pursuant to 42 U.S.C. Section 1988, the Equal Access to Justice Act or any other
provision set by law.
belief as to the truth of Plaintiff’s allegations that Plaintiff was required to retain an
attorney to institute, prosecute then render legal assistance to him in the within
action so that he might vindicate the loss and impairment of his rights, and
Defendants deny the remaining allegations contained in paragraph 23.
COUNT I
Plaintiff against Krueger for
UNREASONABLE SEIZURE
24. Plaintiff hereby incorporates and realleges paragraphs one (1) through twenty-
three (23) hereat as though fully set forth at this place.
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ANSWER: The Defendants hereby incorporate by reference their Answers to
paragraphs one (1) through twenty-three (23) as their Answer to paragraph 24 of
Count I of Plaintiff’s Amended Complaint.
25. By reason of Defendant’s conduct, Plaintiff was deprived of rights, privileges and
immunities secured to him by the Fourth Amendment of the Constitution of the United States
and laws enacted thereunder.
26. The arbitrary intrusion by Defendant, into the security and privacy of Plaintiff’s
person was in violation of Plaintiff’s constitutional rights and not authorized by law. Defendant
violates Plaintiff’s rights in the following manner: (1) the seizure and/or custodial arrest of
Plaintiff was not support by probable cause. These acts were in violation of Plaintiff’s Fourth
Amendment rights. Therefore, Defendant Krueger, in his individual capacity, is liable to
Plaintiff pursuant to 42 U.S.C. § 1983.
WHEREFORE, the Defendants, City of Elmhurst (“City”) and Elmhurst Police Officer
Jason Krueger, Star No. 244, as an individual and employee of the City of Elmhurst, request
judgment in their favor and against Plaintiff with costs assessed against Plaintiff and in favor of
the Defendants.
COUNT II
Plaintiff against Krueger for
UNREASONABLE PRETRIAL DETENTION
three (23) hereat as though fully set forth at this place.
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851060.1
paragraphs one (1) through twenty-three (23) as theirs Answer to paragraph 24 of
Count II of Plaintiff’s Amended Complaint.
28. Defendant Krueger subjected Plaintiff to criminal prosecution, a pretrial
detention, and/or deprivation of his liberty without probable cause.
ANSWER: The Defendants admit that Defendant Krueger caused Plaintiff to be
charged with a criminal offense and Plaintiff was subjected to criminal prosecution,
however, Defendants deny the remaining allegations contained in paragraph 28.
29. Defendant Krueger did not have probable cause to believe Plaintiff had
committed an offense or cause him to be subjected to any pretrial restriction of his liberty.
30. Defendant Krueger knew that Plaintiff’s arrest, detention, and criminal
prosecution were based solely upon Defendant Krueger’s false allegation that Plaintiff had
violated and terms of his restricted driving permit.
31. The criminal charge Defendant Krueger initiated against Plaintiff terminated in
Plaintiff’s favor when Plaintiff was found not guilty at the conclusion of his trial on November
29, 2018.
32. As a result of the foregoing, Plaintiff has sustained damage.
belief as to the truth of Plaintiff’s allegations that he sustained damage, however, the
Defendants deny the remaining allegations contained in paragraph 32 that any such
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851060.1
damage was sustained as a result of Defendants’ conduct as alleged by Plaintiff in
this Count II.
33. By reason of Defendants’ conduct, Plaintiff was deprived of rights, privileges and
immunities secured to him by the Fourth Amendment of the Constitution of the United States
and laws enacted thereunder.
34. The arbitrary intrusion by Defendant, into the security and privacy of Plaintiff’s
person was in violation of Plaintiff’s rights in the following manner: (1) Causing Plaintiff to be
subjected to pretrial detention that restrained his liberty without any probable cause for the
detention was in violation of Plaintiff’s Fourth Amendment Rights. Therefore, Defendant
Krueger in his individual capacity is liable to Plaintiff pursuant to 42 U.S.C. § 1983.
WHEREFORE, the Defendant, Elmhurst Police Officer Jason Krueger, Star No. 244, as
an individual and employee of the City of Elmhurst, requests judgment in his favor and against
Plaintiff with costs assessed against Plaintiff and in favor of the Defendant.
COUNT III
Plaintiff against Krueger and The City of Elmhurst For
MALICIOUS PROSECUTION
three (23) hereat as though fully alleged at this place.
paragraphs one (1) through twenty-three (23) as their Answer to paragraph 24 of
Count III of Plaintiff’s Amended Complaint.
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851060.1
36. Defendant Krueger was employed by the City of Elmhurst, and maliciously
commenced and caused to be continued criminal charges against Plaintiff.
ANSWER: The Defendants admit that Defendant Krueger was employed by the
City of Elmhurst, however, Defendants deny the remaining allegation contained in
paragraph 36.
37. Defendant Krueger initiated, facilitated, and/or continued this malicious
prosecution by giving false police reports, and/or preparing and/or signing a false criminal
complaint and/or giving false statements to prosecutors.
38. Defendant Krueger’s statement in a police report, criminal complaint, and/or
communication(s) to prosecutors that Plaintiff had exceeded the terms of his restricted driving
permit was false and made for the purpose of causing the initiation and/or continuation of the
criminal prosecution of Plaintiff.
ANSWER: The Defendants admit that Defendant Krueger made statements in a
police report, criminal complaint and/or communications to prosecutors related to
Defendant Krueger’s personal observation and/or personal knowledge of Plaintiff’s
operation of a motor vehicle on June 27, 2018, that exceeded the terms of Plaintiff’s
restricted driving permit, however, Defendants deny the remaining allegations
contained in paragraph 38.
39. Defendant Krueger’s false statement that Plaintiff exceeded the terms of his
restricted driving permit caused the criminal prosecution of Plaintiff to be commenced and
continued.
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40. The criminal proceedings terminated in Plaintiff’s favor when he was found not
guilty on November 29, 2018.
41. As a result of being prosecuted for these crimes Plaintiff was injured emotionally,
financially, and otherwise.
belief as to the truth of Plaintiff’s allegations that he was injured emotionally,
financially, and otherwise, however, the Defendants deny the remaining allegations
contained in paragraph 41.
42. The City of Elmhurst is liable to Plaintiff for the acts of Defendant Krueger
pursuant to the doctrine of respondeat superior.
43. Therefore, Defendant Krueger and the City of Elmhurst are liable under the
supplemental state law claim of Malicious Prosecution.
WHEREFORE, the Defendants, City of Elmhurst (“City”) and Elmhurst Police Officer
Jason Krueger, Star No. 244, as an individual and employee of the City of Elmhurst, request
judgment in their favor and against Plaintiff with costs assessed against Plaintiff and in favor of
the Defendants.
AFFIRMATIVE DEFENSES
NOW COME the Defendants, City of Elmhurst (“City”) and Elmhurst Police Officer
Jason Krueger, Star No. 244, as an individual and employee of the City of Elmhurst, by and
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through their attorneys, Storino, Ramello & Durkin, and for their Affirmative Defenses to
Plaintiff’s Amended Complaint, allege as follows:
COMMON ALLEGATIONS
1. Defendants incorporate by reference their Answers to Paragraphs 1-43 to the Plaintiff’s
Amended Complaint as if fully set forth herein.
2. In support of the Defendants’ allegations contained in their Answers to this Amended
Complaint, attached hereto as Exhibit A is a true and correct copy of the “Restricted Driving
Permit” issued to Plaintiff by the Illinois Secretary of State, effective date March 19, 2018,
and expiration date March 19, 2019. The Restricted Driving Permit issued to Plaintiff
contains, in relevant part, the following language:
A. “Purpose: Original BMO Employment”
B. “Restrictions: CVS PHARMACY[,] 230 EAST NORTH AVENUE[,] GLENDALE
HEIGHTS, IL”
C. “WORK HOURS: ROTATING SHIFTS AND ROTATING DAYS AS ASSIGNED BY
EMPLOYER – SUBJECT TO LAW ENFORCEMENT VERIFICATION[,] 3 MILE
RADIUS”
D. “AUTHORIZES PERMITEE ADDITIONAL TRAVEL TIME OUTSIDE OF THE
ASSIGNED WORK HOURS TO DRIVE TO & FROM WORK LOCATION AND
AUTHORIZES PERMITEE TO DRIVE IN CONJUNCTION WITH EMPLOYMENT
RELATED DUTIES WITHIN THE ASSIGNED WORK HOURS AND RADIUS”
(Exhibit A.)
3. In support of the Defendants’ allegations contained in their Answers to this Amended
Complaint and Affirmative Defenses, attached hereto as Exhibit B is a true and correct copy
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of the “Elmhurst Police Department Arrest Report” prepared by Defendant Krueger related to
the incident involving Plaintiff and Plaintiff’s arrest occurring on June 27, 2018.
4. On June 27, 2018, Defendant Krueger was employed by the City as a police officer, and at all
time relevant, Defendant Krueger was on patrol duty, dressed in a full police officer uniform,
and operating a fully marked City police vehicle.
5. On June 27, 2018, at or about 11:18 a.m., Defendant Krueger responded to a dispatch to
investigate a neighbor dispute reported by a City resident, Tina Blazer (“Blazer”), who lives
in a single family residence located at 535 North Walnut Street, Elmhurst, DuPage County,
Illinois.
6. At that time and place, Defendant Krueger spoke with Blazer related to a dispute with her
next door neighbors residing at 531 North Walnut Street, Elmhurst, DuPage County, Illinois,
which is located adjacent to and immediately to the south of Blazer’s property. At all times
relevant, Plaintiff is one of the persons residing at 531 North Walnut Street.
7. At that time and place, Blazer related that there is a paved, City right-of-way, known as West
Gladys Avenue, that is located, in part, along the south boundary of Blazer’s property, and in
part, along the north boundary of Plaintiff’s property, running the length of both lots that
dead-ends at the east property boundary of the lots and is used in common by the residents of
both 531 North Walnut and 535 North Walnut as a driveway for access to their respective
properties. A true and correct copy of an aerial image obtained from Google Maps
(https://www.google.com/maps/place/535+Walnut+St,+Elmhurst,+IL+60126) on or about
July 30, 2019, depicting the overhead view of 531 North Walnut Street and 535 North
Walnut Street is attached hereto as Exhibit C.
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851060.1
8. At that time and place, Blazer related that the residents of 531 North Walnut frequently back
their vehicles down the City right-of-way, West Gladys Avenue, running over the
shrubs/bushes located on Blazer’s property along the Blazer’s fence situated at the north east
portion of the right-of-way and immediately to the north of the garage located at 531 North
Walnut. In fact, Blazer related that on the morning of June 27, 2018, Plaintiff backed his
vehicle, a light blue Ford pickup truck, down the right-of-way directly into the shrubs/bushes
located on Blazer’s property along her fence, and then drove away from the area.
9. Defendant Krueger had previously been dispatched to 535 North Walnut and 531 North
Walnut for a neighbor dispute arising from the same nature of complaints expressed by
Blazer and had previously spoken with Blazer and Plaintiff regarding the dispute.
10. At that time and place, on June 27, 2018, Blazer related that she has attempted to prevent the
residents of 531 North Walnut from running over her shrubs/bushes by placing wooden
marker stakes in front of her shrubs/bushes, however, on the morning of June 27, 2018,
Blazer related that Plaintiff ran over the wooden marker stakes as well as the shrubs/bushes
while backing his vehicle down the right-of-way before driving away on North Walnut
Street. In fact, at that place and time, Blazer showed Defendant Krueger the location of the
shrubs/bushes wherein Defendant Krueger observed one broken wooden marker stake lying
on the ground.
11. At that time and place, while Defendant Krueger was standing on the front porch of 535
North Walnut talking with Blazer, Defendant Krueger observed Plaintiff drive his vehicle, a
light blue Ford pickup truck, north on North Walnut Street, turn east driving onto the City
right-of-way, then parked his vehicle in front of the residence at 531 North Walnut on the
north side of the City right-of-way, exit his vehicle and then entered the residence.
14
851060.1
12. At that time and place, City of Elmhurst Police Officer Carney (“Carney”), arrived at 535
North Walnut in full uniform driving a fully marked City police vehicle to assist Defendant
Krueger.
13. At that time and place, Defendant Krueger advised Carney of the situation related to him by
Blazer, and together Defendant Krueger and Carney went to the front door of 531 North
Walnut and knocked on the door which was answered by Plaintiff, and Defendant Krueger
asked Plaintiff to speak with him.
14. At that time and place, Defendant Krueger had a conversation with Plaintiff wherein Plaintiff
made statements to the effect that he knew why the police were there because of his
neighbors complaining, over the past year they have been having issues because Blazer has
been swearing and cussing at Plaintiff’s mother.
15. At that time and place, Plaintiff made further statements to Defendant Krueger to the effect
that the area along the right-of-way near Blazer’s property is parkway, is not owned by
Blazer, and that Plaintiff may have backed up his vehicle too far while backing his vehicle
down the right-of-way.
16. At that time and place, Defendant Krueger asked Plaintiff if he had any identification, and
Plaintiff provided Defendant Krueger with an Illinois ID card. Defendant Krueger then used
his police radio to conduct a LEADS check.
17. At that time and place, Plaintiff provided Defendant Krueger with a revoked driver’s license
and subsequently, a restricted driver’s permit.
18. At that time and place, Defendant Krueger asked Plaintiff where he was coming from earlier
when he arrived home; Plaintiff responded by making statements to the effect that he had
gone to the gas station to fill up. Defendant Krueger asked Plaintiff if he was coming from
15
851060.1
work; Plaintiff responded by making statements to the effect that he was not coming from
work. Defendant Krueger asked Plaintiff when he started work; Plaintiff responded by
making statements to the effect that he worked later that afternoon.
19. At that time and place, Defendant Krueger requested Plaintiff to provide him with his
restricted driver’s permit; Plaintiff provided Defendant Krueger with his restricted driver’s
permit. See, Exhibit A, attached hereto.
20. At that time and place, Defendant Krueger reviewed the language contained on Plaintiff’s
restricted driver’s permit and based upon the limitations contained therein as quoted above in
paragraph 2 of the Affirmative Defenses, based upon Blazer’s statements that Plaintiff had
driven his vehicle away from the property that morning, based upon Defendant Krueger’s
personal observations of Plaintiff driving his vehicle on North Walnut Street, and based upon
Plaintiff’s statements to Defendant Krueger that Plaintiff had driven his vehicle to the gas
station to fill it up, that Plaintiff was not coming from work (when Defendant Krueger
observed Plaintiff driving), and that Plaintiff did not work until later that afternoon,
Defendant Krueger determined that he had probable cause to arrest Plaintiff pursuant to 625
ILCS 5/6-303 for driving while Plaintiff’s license was suspended/revoked in violation of the
terms of his restricted driver’s permit.
21. At that time and place, Defendant Krueger informed Plaintiff that he was under arrest for
driving outside of the restrictions of his restricted driver’s permit; Defendant Krueger then
took Plaintiff into custody, placed handcuffs on Plaintiff’s wrists, placed Plaintiff in the back
of the City police vehicle, and transported him to the Elmhurst Police Department
headquarters, arriving there at approximately 12:18 p.m.
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851060.1
22. At that time and place, Defendant Krueger booked and processed Plaintiff at the Elmhurst
Police Department headquarters. Plaintiff was bonded out of custody at approximately 1:25
p.m. on June 27, 2018, approximately one hour and seven minutes after he arrived at police
headquarters. At no time subsequent to June 27, 2018, was Plaintiff held in custody by
Defendant Krueger or any other Elmhurst police officer for the incident occurring on June
27, 2018.
AFFIRMATIVE DEFENSE NO. 1
QUALIFIED IMMUNITY
23. Defendants incorporate by reference paragraphs 1-22 of the Common Allegations of the
Affirmative Defenses as paragraph 23 of Affirmative Defense No. 1 as if fully set-forth
herein.
24. At all times relevant, Defendant Krueger was a government official, namely a police officer,
who performed discretionary functions. At all relevant times, a reasonable police officer
objectively viewing the facts and circumstances confronted by Defendant Krueger could
have believed that his actions were lawful, in light of clearly established law and the
information Defendant Krueger possessed. Defendant Krueger, therefore, is entitled to
qualified immunity as to Plaintiff’s federal civil rights claims as asserted in Counts I and II of
Plaintiff’s Amended Complaint.
745 ILCS 10/2-202 - ILLINOIS TORT IMMUNITY ACT
herein.
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851060.1
26. At all times relevant, Defendant Krueger was in the act of executing and enforcing the law.
Defendant Krueger cannot be held liable to the Plaintiff under state law and is immune from
liability pursuant to Section 745 ILCS 10/2-202 of the Illinois Tort Immunity Act. Defendant
Krueger cannot be held liable to Plaintiff under state law for his acts or omissions in the
execution or enforcement of any law because at no time did Defendant Krueger engage in
any act or omission which constitutes willful and wanton conduct within the meaning of the
Tort Immunity Act.
herein.
28. At all times relevant, Defendant Krueger was in the act of executing and enforcing the law.
Defendant Krueger cannot be liable under state law for any injury caused by instituting or
prosecuting any judicial proceeding because Defendant Krueger’s actions with respect to the
Plaintiff was done within the scope of Defendant Krueger’s employment and did not act
maliciously or without cause. Defendant Krueger cannot be held liable to the Plaintiff under
state law and is immune from liability pursuant to Section 745 ILCS 10/2-208 of the Illinois
Tort Immunity Act.
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851060.1
herein.
30. To the extent that Defendant Krueger is not liable to Plaintiff in this matter, the City of
Elmhurst is immune from liability to Plaintiff pursuant to 745 ILCS 5/2-109 of the Tort
Immunity Act, which provides, inter alia, “[a] local public entity is not liable for an injury
resulting from an act or omission of its employee where the employee is not liable.”
PROBABLE CAUSE
herein.
32. At all times relevant, Defendant Krueger was a government official, namely a police officer,
who performed discretionary functions. At all relevant times, a reasonable police officer
objectively viewing the facts and circumstances confronted by Defendant Krueger could
have believed that his actions were lawful, in light of clearly established law and the
information Defendant Krueger possessed.
33. Based upon the facts alleged herein, Defendant Krueger had probable cause to arrest Plaintiff
and to institute state criminal proceedings against Plaintiff pursuant to 625 ILCS 5/6-303 for
driving while Plaintiff’s license was suspended/revoked in violation of the terms of his
restricted driver’s permit, and therefore should not be liable to Plaintiff for his state claim
asserted in Count III of the Amended Complaint.
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851060.1
COMPARATIVE FAULT
herein.
35. To the extent any injuries or damages claimed by Plaintiff was proximately caused, in whole
or in part, by any wrongful conduct on the part of the Plaintiff, then any verdict or judgement
obtained by Plaintiff on any claims brought under state law should be reduced or barred
under the state law principles of comparative fault.
WHEREFORE, the Defendants, City of Elmhurst (“City”) and Elmhurst Police Officer Jason
Krueger, Star No. 244, as an individual and employee of the City of Elmhurst, request judgment
in their favor and against Plaintiff with costs assessed against Plaintiff and in favor of the
Defendants.
Respectfully submitted,
By: /s/ Andrew Y. Acker

One of Defendants’ attorneys
Andrew Y. Acker (ARDC #6211620)

aacker@srd-law.com
Michael R. Durkin (ARDC #6292753)
mdurkin2@srd-law.com
STORINO, RAMELLO & DURKIN
9501 W. Devon Avenue, 8th Floor
Rosemont, Illinois 60018
847.318.9500
Attorneys for Defendants City of Elmhurst and Officer Krueger
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851060.1
CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that on August 1, 2019, he served a copy of the
ANSWER TO FIRST AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
upon all counsel of record by filing same with the Court via the ECF system, as follows:
Mr. Edward M. Fox

efox@efoxlaw.com
Mr. Garrett W. Browne
gbrowne@efoxlaw.com
Ed Fox & Associates
300 W. Adams Street, Suite 330
Chicago, IL 60606
Respectfully submitted,
By: /s/ Andrew Y. Acker

One of the Defendants’ attorneys
Andrew Y. Acker (ARDC #6211620)

aacker@srd-law.com
Michael R. Durkin (ARDC #6292753)
mdurkin2@srd-law.com
STORINO, RAMELLO & DURKIN
9501 W. Devon Avenue, 8th Floor
Rosemont, Illinois 60018
847.318.9500
Attorneys for Defendants City of Elmhurst and Officer Krueger
21
851060.1

Elmhurst Answer To Messino Lawsuit

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Elmhurst Answer To Messino Lawsuit

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Case: 1:19-cv-02985 Document #: 23 Filed: 08/01/19 Page 1 of 21 PageID #:55

IN THE UNITED STATES DISTRICT COURT

ANSWER TO FIRST AMENDED COMPLAINT

JURISDICTION AND VENUE

Sections 1343 and 1331 and 1367.

ANSWER: The Defendants admit the allegations contained in paragraph 1.

complained of arose in this district.

ANSWER: The Defendants admit the allegations contained in paragraph 2.

ANSWER: The Defendants admit the allegations contained in paragraph 3.

Department. This Defendant is being sued in his individual capacity.

ANSWER: The Defendants admit the allegations contained in paragraph 4.

ANSWER: The Defendants admit the allegations contained in paragraph 5.

the City of Elmhurst, County of DuPage, State of Illinois.

ANSWER: The Defendants admit the allegations contained in paragraph 6.

him to a custodial arrest.

pursuant to probable cause.

ANSWER: The Defendants deny the allegations contained in paragraph 8.

created probable cause to seize and/or subject Plaintiff to a custodial arrest.

ANSWER: The Defendants deny the allegations contained in paragraph 9.

ANSWER: The Defendants admit the allegations contained in paragraph 11 and

restricted driving permit as in effect on or about June 27, 2018.

ANSWER: The Defendants deny the allegations contained in paragraph 12.

ANSWER: The Defendants deny the allegations contained in paragraph 13.

ANSWER: The Defendants deny the allegations contained in paragraph 14.

ANSWER: The Defendants admit the allegation contained in paragraph 15.

ANSWER: The Defendants deny the allegations contained in paragraph 16.

ANSWER: The Defendants deny the allegations contained in paragraph 17.

18. As a result of Defendant Krueger causing Plaintiff to be charged with a criminal

deprivation of his liberty.

ANSWER: The Defendants admit that as a result of Defendant Krueger causing

Plaintiff to be charged with a criminal offense, Plaintiff was subjected to a legal

allegations contained in paragraph 18, and adds affirmatively, as alleged in the

Defendants’ affirmative defenses, Plaintiff was released from police custody

headquarters for booking and processing.

supported by probable cause.

ANSWER: The Defendants deny the allegations contained in paragraph 19.

exceeded the terms of his restricted driving permit.

21. By reason of the above-described acts and omissions of Defendant Krueger,

ANSWER: The Defendants lack knowledge or information sufficient to form a

belief as to the truth of Plaintiff’s allegations related to any injuries he allegedly

sustained, and Defendants deny the remaining allegations contained in paragraph

according to proof at the time of trial.

ANSWER: The Defendants deny the allegations contained in paragraph 22.

23. By reason of the above-described acts and omissions of Defendant Krueger,

reason thereof, Plaintiff requests payment by Defendant Krueger, of a reasonable sum of

provision set by law.

ANSWER: The Defendants lack knowledge or information sufficient to form a

Defendants deny the remaining allegations contained in paragraph 23.

three (23) hereat as though fully set forth at this place.

ANSWER: The Defendants hereby incorporate by reference their Answers to

paragraphs one (1) through twenty-three (23) as their Answer to paragraph 24 of

Count I of Plaintiff’s Amended Complaint.

and laws enacted thereunder.

ANSWER: The Defendants deny the allegations contained in paragraph 25.

Amendment rights. Therefore, Defendant Krueger, in his individual capacity, is liable to

Plaintiff pursuant to 42 U.S.C. § 1983.

ANSWER: The Defendants deny the allegations contained in paragraph 26.

three (23) hereat as though fully set forth at this place.

ANSWER: The Defendants hereby incorporate by reference their Answers to

paragraphs one (1) through twenty-three (23) as theirs Answer to paragraph 24 of

Count II of Plaintiff’s Amended Complaint.

28. Defendant Krueger subjected Plaintiff to criminal prosecution, a pretrial

detention, and/or deprivation of his liberty without probable cause.