UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

VAN THUY VONG, )

)

Plaintiff, )

)

vs. ) 12 C 2289

)

TRUE RELIGION SALES LLC, d/b/a )

TRUE RELIGION BRAND JEANS; )

VILLAGE OF NORTHBROOK; and )

JONATHON SALMI, )

)

Defendants. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Now before the Court are Defendants True Religion Sales LLC’s (“True

Religion”), Village of Northbrook’s (“Northbrook”), and Jonathon Salmi’s (“Salmi”)

(together “Defendants”) motion to dismiss under Federal Rule of Civil Procedure

12(b)(6). For the following reasons, Defendants’ motion is granted.

BACKGROUND

Plaintiff Van Thuy Vong (“Vong”) is a resident of Cook County, Illinois. True

Religion, a Delaware concern, maintains a retail clothing store (“Store”) at Northbrook

Court, a shopping mall in Northbrook, Illinois. Salmi is a Northbrook police officer.

Vong visited the Store with her husband and nine-year-old daughter on the

afternoon of December 11, 2011. Store employee Cassandra Melick (“Melick”) brought
Vong four pairs of jeans to try on. Vong tried the jeans on in a fitting room, but did not

purchase any of them. Vong then left the Store and Northbrook Court with her husband

and daughter.

Later that day, Melick found a sensor in one of the fitting rooms. The sensor had

been removed from a pair of jeans that were missing. She notified mall security and the

Northbrook Police Department that a pair of jeans had been stolen. Salmi arrived on

the scene and wrote up a police report documenting the matter. Salmi was told that

Vong had taken the jeans, and was shown portions of a video recording from a camera

in the Store. Salmi asked that a copy of the recording be prepared for him, but he never

followed up on his request, and the recording was eventually destroyed.

Salmi called Vong’s phone number, which the Store had on file. Salmi informed

Vong that a pair of jeans was missing from the Store and asked Vong to return to the

Store. Vong denied any wrongdoing, and asked Salmi to look at the video recording.

Vong at first refused to comply with Salmi’s request that she immediately return to the

Store, but changed her mind after Salmi threatened to arrest her if she refused to

cooperate.

Vong returned to the Store. She was accompanied by her husband, daughter, a

friend and the friend’s boyfriend, who helped interpret Salmi’s words into Vong’s

arterial language. Vong spoke with Salmi and again denied taking the jeans. Salmi told

Vong that True Religion would not prosecute her if she gave the jeans back. After

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Vong explained that she did not have the jeans, she was charged with retail theft.

Melick signed the charging document. Salmi handcuffed Vong and walked her to the

mall security office. There, her picture and personal information were entered into the

mall shoplifter database. Salmi then escorted Vong to the Northbrook Police Station,

where she was detained for three hours. Upon her release, Vong was given a notice

forbidding her from returning to Northbrook Court for one year, and a summons to

appear in court on January 19, 2012.

Vong hired an attorney to represent her in the criminal proceeding. The attorney

served subpoenas on the Northbrook Police Department for records related to the

criminal case and on True Religion for the video surveillance tapes and copies of all

reports pertaining to the incident.

Vong appeared for her January 19th court date, but no one representing any of

the Defendants was present. The case against Vong was dismissed by non-suit at the

prosecutor’s direction, and the case has not been reinstated.

Vong filed the instant five-count first amended complaint (“complaint”). She

alleges claims against all the Defendants for false arrest (Count I) and malicious

prosecution (Count II); Salmi and True Religion under 42 U.S.C. § 1983 (“Section

1983”) (Count IV) for false arrest and malicious prosecution; True Religion for

intentional infliction of emotional distress (Count III); and Northbrook for

indemnification (Count V).

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The complaint does not state the basis of the Court’sjurisdiction, as Federal Rule

of Civil Procedure 8(a)(1) requires. Inasmuch as Vong alleges a federal law claim and

state common law claims based on the same underlying conduct, it is apparent that

Vong seeks to invoke federal question and supplemental jurisdiction under 28 U.S.C.

§§ 1331 and 1367, respectively. The Defendants now move to dismiss Counts I-IV

under Rule 12(b)(6).

LEGAL STANDARD

In assessing a motion to dismiss, the Court accepts all well pled facts as true and

draws all permissible inferences in the plaintiff’s favor. Agnew v. NCAA, 683 F.3d 328,

334 (7th Cir. 2012). A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the

complaint. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001). The

allegations in a complaint must set forth a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff need

not provide detailed factual allegations; she must only provide enough factual support

to raise her right to relief above a speculative level. Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007). Furthermore, a claim must be facially plausible, a requirement

that is satisfied if the pleadings “allow[] the court to draw the reasonable inference that

the defendant isliable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

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DISCUSSION

I. Section 1983 False Arrest and Malicious Prosecution Claims

Vong assertsthat Salmi and True Religion are liable under Section 1983 for false

arrest and malicious prosecution. Salmi argues that the claims against it should be

dismissed because the complaint sufficiently demonstrates that Vong’s arrest was

supported by probable cause. True Religion contends that Vong’s Section 1983 claims

do not state a claim because she does not sufficiently allege that it acted under “color

of state law.”

A. Salmi’s Motion to Dismiss

The presence of probable cause to arrest a suspect is an absolute bar to Section

1983 claims for false arrest and malicious prosecution. Terket v. Lund, 623 F.2d 29, 31

(1980). A police officer has probable cause to make an arrest when reasonable and

trustworthy information known to him would lead a prudent person to believe that the

suspect had committed a crime. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir.

1994) (quotation omitted). Probable cause is a “commonsense determination, measured

under a reasonableness standard,” Tangwall v. Stuckey, 135 F.3d 510, 519 (7th Cir.

1998), and “requires only that a probability or a substantial chance of criminal activity

exist.” Purvis v. Oest, 614 F.3d 713, 722-23 (7th Cir. 2010). Although determining

whether probable cause exists is usually a question of fact, that determination may be

made as a matter of law where the facts are undisputed. Penn v. Harris, 296 F.3d 573,

577 (7th Cir. 2002).

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According to the complaint, Melick told Salmi that Vong visited the Store and

tried on four pairs of jeans in a fitting room. Melick went on to tell Salmi that she

discovered that a pair of jeans was missing, and that she believed that Vong had taken

the jeans. The complaint contains no allegations suggesting that Melick was lying or

that she otherwise appeared untrustworthy or incredible. Further, although the

complaint alleges that Salmi relied on other evidence to conclude that probable cause

for Vong’s arrest existed – such as the video recording and Salmi’s conversations with

Vong – the complaint fails to suggest that any of this evidence sufficiently extinguished

the probable cause created by Melick’s statements. See Gramenos v. Jewel Cos., 797

F.2d 432, 439 (7th Cir. 1986) (holding that allegations from a credible eyewitness or

victim that a crime has been committed is sufficient to establish probable cause). In the

absence of any allegationsthat Salmi was aware of facts that sufficiently erased Salmi’s

suspicion of Vong’s guilt, it was reasonable for him to conclude that Vong had taken

the jeans, in violation of municipal and Illinois theft statutes. See 720 ILCS 5/16-

1(a)(1)(A) (a person commits theft when she knowingly obtains or exerts unauthorized

control over property of the owner and intends to deprive the owner permanently of the

use or benefit of the property).

Notwithstanding the absence of allegations dispelling the presence of probable

cause, Vong argues that she is entitled to an inference that probable cause for her arrest

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was lacking. Making such an inference in the face of affirmative allegations to the

contrary would require the Court to ignore the substantial portion of the complaint

devoted to establishing Salmi’s probable cause, which the Court declines to do. See

Quranic Literacy Institute v. Boim, 291 F.3d 1000, 1008 (7th Cir. 2002) (assessing a

motion to dismiss requires the court to “examine the complaint as a whole.”). Vong

also asserts that her Section 1983 claims should survive because she is innocent of the

criminal charge against her. However, a suspect’s denial of wrongdoing, without more,

does not require a finding that an officer lacked probable cause to make an arrest. See

Askew v. City of Chi., 440 F.3d 894, 895 (7th Cir. 2006). Further, probable cause does

not require that a police officer’s belief in the suspect’s guilt is correct, only that it is

reasonable. See Mahone v. Kesery, 976 F.2d 1054, 1057-58 (7th Cir. 1992). Given the

information available to Salmi at the time that he arrested Vong, the Court finds that his

belief was reasonable.

Because the complaint contains allegations that completely bar her Section 1983

claims for false arrest and malicious prosecution, Salmi’s motion to dismiss the claims

is granted.

B. True Religion

The presence of probable cause for Vong’s arrest forecloses any possibility of

Section 1983 liability on True Religion, a non-governmental entity. See Reynolds v.

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Jamison, 488 F.3d 756, 764 n.4 (7th Cir. 2007). In any event, Vong does not state a

claim against True Religion because she fails to sufficiently allege that True Religion

was acting under color of law.

Section 1983 provides a remedy to individuals who have been deprived of a

constitutional right by persons acting under color of state law. 42 U.S.C. § 1983; Lugar

v. Edmondson Oil Co., 457 U.S. 922, 923 (1982). Section 1983 liability requires an

infringement of federal rights attributable to the State. Rodriguez v. Plymouth

Ambulance Serv., 577 F.3d 816, 823 (7th Cir. 2009) (quotation omitted). For Section

1983 liability to attach to a private party, the plaintiff must establish that a state official

and private party “somehow reached an understanding to deny the plaintiffs their

constitutional rights.” Tabet v. Mill Run Tours, Inc., Case No. 10-CV-4660, 2011 U.S.

Dist. LEXIS 32887, at *11 (N.D. Ill. Mar. 28, 2011) (citing Loubser v. Thacker, 440

F.3d 439, 445 (7th Cir. 2006)). Accordingly, a private party may be liable under

Section 1983 if an agent of the state (1) directs or controls the actions of the private

party such the state can be held responsible for the private party’s decision, or

(2) delegates a public function to a private party or entity. Payton v. Rush-Presbyterian

St. Luke’s Med. Ctr., 184 F.3d 623, 628 (7th Cir. 1999).

Here, Vong alleges that True Religion called the Northbrook police, gave a

statement to Salmi, and that Melick signed the charging document. These allegations

alone fall far short of establishing any type of agreement or understanding between

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Salmi and True Religion to deprive Vong of her federal rights. See Moore v.

Marketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir. 1985) (holding that

providing information to a police officer, even if the information is false, is not

sufficient to state a Section 1983 claim against a private individual). Vong’s Section

1983 claims against True Religion are therefore dismissed.

II. State Common Law Claims

With Vong’s Section 1983 claims dismissed, the Court declines to exercise

supplemental jurisdiction over her remaining state common law claims. 28 U.S.C.

§ 1367(c); Miller v. Herman, 600 F.3d 726, 738 (7th Cir. 2010). Vong’s common law

claims are therefore dismissed.

CONCLUSION

For the foregoing reasons, Vong’s Section 1983 claims are dismissed for failure

to state a claim, and her common law claims are dismissed for lack of subject-matter

jurisdiction.

Charles P. Kocoras

United States District Judge

Dated: December 12, 2012

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