Judges: Per Curiam
Filed: Apr. 05, 2016
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued February 25, 2016 Decided April 5, 2016 Before WILLIAM J. BAUER, Circuit Judge DANIEL A. MANION, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 15-3131 ANTHONY PERAICA, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 1:10-cv-7040 VILLAGE OF MCC
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued February 25, 2016 Decided April 5, 2016 Before WILLIAM J. BAUER, Circuit Judge DANIEL A. MANION, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 15-3131 ANTHONY PERAICA, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 1:10-cv-7040 VILLAGE OF MCCO..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 25, 2016
Decided April 5, 2016
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 15‐3131
ANTHONY PERAICA, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 1:10‐cv‐7040
VILLAGE OF MCCOOK, et al.,
Defendants‐Appellees. Milton I. Shadur,
Judge.
O R D E R
This civil‐rights action arises out of plaintiff Anthony Peraica’s arrest for
destroying his opponent’s campaign sign in McCook, Illinois, when Peraica was
running for reelection as a Cook County commissioner. Following his arrest, Peraica
was convicted in state court of misdemeanor destruction of property. He also brought
this civil suit against the Village of McCook, Jeffrey Tobolski, seven named police
No. 15‐3131 Page 2
officers, and various unnamed police defendants. After the federal district court
dismissed Peraica’s complaint on issue‐preclusion grounds, he appealed to this court.
We affirm.
Background
Fifteen miles southwest of Chicago, in Cook County, the Village of McCook is
home to about 250 people. Tobolski has been its mayor for some time. He was also
Peraica’s political opponent in the race for Cook County commissioner in November
2012. And when the election was held on November 2, Tobolski won the county
commissioner race.
Three days before the election, Peraica was the passenger in a white Chevrolet
van traveling south through McCook. Local police were aware that the occupants of a
white Chevrolet van were suspected of damaging political signs, so when an officer saw
this white van failing to signal at a turn, the officer stopped the vehicle and detained its
occupants. He found Peraica campaign signs and a rake in the car. The officer testified
that he was familiar with Peraica’s name and knew that Peraica was running against
Tobolski for county commissioner, but he was unaware that Peraica was riding in the
van when he stopped it. While Peraica was detained, police learned more about the
damage to Tobolski campaign signs.
Louis Skorvanek, who owns the McCook Bohemian American Family
Restaurant, told police that a Tobolski sign outside his restaurant had been knocked
down. When Skorvanek left his restaurant around 11 p.m. that evening, his Tobolski
sign was still in its place and intact. He testified that the area outside his restaurant is
well lit and that he could see the sign well. About 10 minutes after Skorvanek left,
however, he received a call from Robert Baloga. Baloga is a tenant who lives above the
McCook Family Restaurant; he told Skorvanek that someone was “breaking” the
Tobolski sign. Skorvanek promptly turned around, found his sign broken, and then saw
a police officer picking up another broken Tobolski sign a short distance away. He
informed police about his own sign. As the McCook police investigated further, Baloga
told police that he saw the passenger of a white van damaging the sign. When Baloga
was brought to the stopped white van, and asked whether he could identify the man
who destroyed the sign, Peraica and the driver were standing outside the vehicle.
Baloga pointed to Peraica from a yard away, saying, “that’s the guy right there.”
Peraica was arrested, charged with misdemeanor damage to property, and
brought to the police station. Four hours later, when he was released from police
No. 15‐3131 Page 3
custody, a reporter was waiting for him outside. Peraica claims that Tobolski tipped off
the media. Someone in McCook also released Peraica’s mug shot to the media, in what
he calls an effort to discredit him immediately before the election for Cook County
commissioner.
During a bench trial in Cook County, Skorvanek testified that his Tobolski sign
was damaged outside the McCook Family Restaurant. Baloga testified that he watched
Peraica striking the Tobolski sign with a rake and breaking the sign into small pieces.
Baloga also said that Peraica was wearing a “gray baseball hat and a hoodie and jeans,”
which was consistent with police testimony at trial that Peraica was wearing a baseball
cap, gray fleece jacket, and denim jeans when he was arrested.
One day after his arrest, and one day before the election, Peraica also filed this
action under 42 U.S.C. § 1983. His federal case was stayed during the state criminal
proceedings. Through his criminal trial, Peraica was found guilty of misdemeanor
damage to property, and this conviction was affirmed on appeal. Peraica’s delayed
federal civil‐rights complaint originally included First Amendment retaliation, false
arrest, and common‐law claims, but this suit was narrowed to the retaliation claim
alone, and the defendants moved for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c). The district court noted facts determined in the state criminal
trial, concluded that Peraica’s federal suit is barred by issue preclusion, and granted
judgment in the defendants’ favor. Peraica now brings this appeal.
Discussion
Peraica’s appeal raises three issues, which we address in turn.
A. Judgment on the Pleadings
Under Federal Rule of Civil Procedure 12(c), if a party moves for judgment early
enough to avoid delaying trial, it may seek judgment on the pleadings after they close.
Peraica urges that the district court entered judgment too early because no order had
closed the pleadings or foreclosed further arguments. Rule 12 does not require a special
order to close the pleadings, however, and the district court’s entry of judgment itself
concluded any argument. Further, the district court relied on determinations in
Peraica’s state‐court case, which meant that more facts were established than is often
the case in a Rule 12(c) motion. As a result, the district court order was permissible.
B. Issue Preclusion
The heart of Peraica’s appeal is issue preclusion: whether matters decided in his
state criminal case block him from bringing this civil‐rights suit. Issues previously
determined in a criminal conviction can foreclose civil litigation. Appley v. West, 832
No. 15‐3131 Page 4
F.2d 1021, 1025–26 (7th Cir. 1987). If allowing Peraica to proceed with this civil‐rights
lawsuit would require the federal courts to contradict his state conviction, then issue
preclusion will have to bar this litigation. We review the district court’s issue‐preclusion
ruling de novo. Adams v. Adams, 738 F.3d 861, 864 (7th Cir. 2013).
In determining whether issue preclusion applies, we look to the preclusion law
of the state that made the earlier judgment. Id. at 865. The Illinois Supreme Court
provides a three‐part test for issue preclusion. Hurlbert v. Charles, 238 Ill. 2d 248, 255 (Ill.
2010). First, the issue decided in the prior adjudication must be identical to the issue at
stake in the current adjudication. Id. Second, the prior adjudication must have been
finally decided on the merits. Id. Third, the party against whom issue preclusion is
argued must have been a party, or in privity with a party, to the prior adjudication. Id.
The second and third elements of issue preclusion are readily met here: the state
court entered a final conviction against Peraica and he was, necessarily, party to his
own conviction. As a result, the remaining question is whether this case satisfies the
first element. We must ask whether the facts that Peraica seeks to litigate here, and facts
decided by the state court when he was tried for property damage, are identical.
To establish a prima facie claim for First Amendment retaliation, Peraica must
establish three elements. First, his activity must have been protected by the First
Amendment. Second, he must have suffered a deprivation that would likely deter
future First Amendment activity. Third, his protected activity must be “at least a
motivating factor” in the defendants’ actions. Woodruff v. Mason, 542 F.3d 545, 551 (7th
Cir. 2008).
The parties do not dispute that Peraica satisfies the first and second elements of
his First Amendment claim. First, Peraica was engaged in lawful campaign activity, as
distinct from his unlawful sign destruction, when he drove through McCook to place
his own campaign signs on October 30. This is activity protected by the First
Amendment. Second, being stopped by police and ultimately arrested is enough to
deter future activity protected by the First Amendment. The controlling question is thus
whether, in his effort to prove the third element of retaliation, Peraica will raise issues
that have already been decided in his state‐court conviction. And whether we are
considering police actions in stopping Peraica or police actions in arresting him, issue
preclusion prevents Peraica from proving the third element of his First Amendment
retaliation claim.
To begin with, the state court found that police were justified in stopping the van
in which Peraica was traveling. Its driver had violated a traffic law: he failed to signal.
We also note Peraica’s failure to even suggest that, when police initially stopped this
No. 15‐3131 Page 5
van, they knew he was the passenger. There is no allegation that his name or campaign
for Cook County commissioner were advertised on the outside of the van. On the
contrary, the record indicates a nondescript Chevy van which any number of people
could have been driving. With regard to the traffic stop, the record simply does not
support the third element of Peraica’s retaliation claim. There is nothing to indicate that
his lawful campaign activity was any motivation behind the police decision to stop him.
In other words, there is no evidence that the police knew that Peraica was a passenger
in the van, or that the police were making a pretextual stop to nab him.
Regarding Peraica’s arrest, the Illinois state court also made relevant findings. It
established that, when the police officer stopped the Chevy van, he was aware of
reports that suspects in a similar van were engaging in vandalism. Before Peraica was
arrested, he was positively identified by a witness as the man who destroyed a Tobolski
campaign sign. In addition, the Tobolski sign was destroyed with a stick‐like object, and
the van in which Peraica was traveling contained a rake that fit the description. Under
the “at least a motivating factor” test, police could arrest Peraica on valid grounds,
while also being motivated to hinder his First Amendment rights by finding reasons to
arrest him. But these facts do not indicate that Peraica’s lawful campaign, as distinct
from his unlawful sign destruction, motivated police to arrest him on the night of
October 30.
As the district court noted, it would also be too speculative to conclude that
Peraica was arrested for political reasons simply because (1) Tobolski subsequently
notified a reporter of Peraica’s arrest, or (2) someone in McCook later released Peraica’s
mugshot. As the district court observed, these facts leave open the possibility that
Peraica’s lawful campaign activities were at least a motivating factor for his arrest. But
mere possibility is insufficient. Peraica is appealing a Rule 12(c) judgment on the
pleadings, where the survival of his First Amendment retaliation claim depends on
plausibility pleading. In other words, Peraica must satisfy a higher standard: “where the
well‐pleaded facts do not permit the court to infer more than the mere possibility of
misconduct,” they fail to show that the plaintiff is entitled to relief. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). Peraica speculates about actions that occurred after he was stopped
and arrested, but this fails to plausibly establish that police were politically motivated to
retaliate against Peraica when they stopped and arrested him.
As a result, we conclude that the Illinois state court has made factual
determinations that are identical to factual issues at stake in the third element of
Peraica’s retaliation claim. We thus affirm the district court ruling on issue preclusion.
Peraica is estopped from bringing his First Amendment retaliation claim.
No. 15‐3131 Page 6
C. Leave to Amend
Finally, Peraica argues that the district court erred in dismissing his retaliation
claim without granting leave to amend. District courts may deny requests to amend,
however, when amendment would be futile. Gandhi v. Sitara Capital Mgmt., LLC, 721
F.3d 865, 869 (7th Cir. 2013). We recognize that this case raises difficult issues,
personally for Peraica, and perhaps publicly for McCook. But we are obligated by
principles of federalism and comity to respect the state court decision, rather than
speculate about improper motives in ways that would undermine the state’s factual
determinations. Because Peraica’s First Amendment claim is barred by issue preclusion,
the district court acted properly in denying Peraica’s effort to amend his complaint.
Conclusion
The rulings of the district court are AFFIRMED.