### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 1070

M ARSHALL S PIEGEL

, Plaintiff

‐ Appellant

,

v.

C ORRINE M C C LINTIC and V ILLAGE OF W ILMETTE

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16 C 9357

— Sara L. Ellis

, Judge

.

____________________

A RGUED D ECEMBER 4, 2018

— D ECIDED F EBRUARY 14, 2019

____________________

Before B AUER

, K ANNE

, and B RENNAN

, Circuit Judges

.

K ANNE

, Circuit Judge

. Ma tt hew Spiegel believes that Cor

‐

rine McClintic (and her husband William) have been violating

condominium association rules since the McClintics pur

‐

chased a unit in the building where he lives. To document

their perceived violations, Spiegel took to photographing and

fi lming the McClintics. In response to his less

‐ than

‐ subtle sur

‐

veillance, Corrine McClintic began fi ling police reports. Spie

‐ gel was not arrested. But members of the Village of Wilme tt e2 No. 18

‐ 1070

Police Department threatened him with arrest for disorderly

conduct if he persists in photographing and videotaping the

McClintics. Spiegel subsequently sued Corrine and the Vil

‐ lage of Wilme tt e. In his second amended complaint—the dis

‐

missal of which Spiegel now appeals—he argues that Wil

‐

me tt e and McClintic conspired together to violate his consti

‐

tutional 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

identi fi ed a constitutional violation or shown that he su ff ered

damages from the alleged intrusion upon his seclusion, we

a ffi rm the dismissal.

I. B ACKGROUND

We take the well

‐ pleaded allegations from Spiegel’s sec

‐

ond amended complaint as true. 1 Marshall Spiegel has lived

in a condominium building in Wilme tt e, Illinois for 22 years.

In 2015, Corinne and William McClintic bought a unit in the

building. Despite condominium association rules which pro

‐

hibit 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 allega

‐

tions,” he began “documenting violations of the Association’s

1 For reasons explained below, Spiegel’s motion for leave to file a third

amended complaint was untimely. Accordingly, the few additional fac

‐

tual allegations Spiegel advances in that proposed complaint are not rele

‐

vant to our analysis. Spiegel also makes several new factual assertions in

his brief. Those facts would not change our analysis even if Spiegel had

included them in his complaint.No. 18

‐ 1070 3

rules by the McClintics.” Speci fi cally, he began photo

‐ graphing 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 pic

‐

tured is looking directly at the camera.

The tensions between Spiegel and the McClintics quickly

escalated. Corrine fi led numerous police reports between

June and October 2016. In one report—in June 2016—Corrine

told o ffi cers that Spiegel jumped in front of her car and pho

‐ tographed her. In response, Wilme tt e police o ffi cers warned

Spiegel against causing further problems. Spiegel told the of

‐

fi cers that the report contained false allegations and argued

that his conduct did not violate the disorderly conduct ordi

‐

nance, but the o ffi cers “insisted that Spiegel had broken the

law.” On September 20, 2016, Spiegel videotaped Corrine,

William, and another unit owner talking near the pool. Cor

‐

rine reported to the Wilme tt e police that Spiegel was vide

‐ otaping 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 a tt empting to

evade a process server in front of the condominium building.

Corrine McClintic informed Spiegel that the Wilme tt e police

had promised to arrest him if he videotaped her again. She

reported the incident.

Spiegel also videotaped Corrine McClintic at a later, un

‐ speci fi ed Association meeting. Once again, she threatened

Spiegel with arrest if he continued videotaping her. The sec

‐

ond amended complaint does not clarify whether McClintic

fi led a police report.4 No. 18

‐ 1070

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 a tt empted 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 speci fi cally allege that

he reported these incidents to the Wilme tt e police.

He does assert, however, that “Wilme tt e police have re

‐

fused to act on Spiegel’s claims against residents and others.”

The only speci fi c example he gives in the second amended

complaint involves an altercation at a “recent Association

meeting” where “a resident’s son

‐ in

‐ law ba tt ered Spiegel in

front of roughly ten people until security guards pulled him

o ff .” Spiegel reported the incident to Wilme tt e police, but they

declined to charge the man.

3. Procedural History

Spiegel fi led suit against Corrine McClintic, alleging state

law defamation and requesting a declaration that the First

Amendment protected his public videotaping. Two days

later, he fi led a fi rst amended complaint which added the Vil

‐ lage of Wilme tt e as a defendant. The district court dismissed

the fi rst amended complaint for lack of subject ma tt er juris

‐

diction but granted Spiegel leave to fi le a second amended

complaint. In that complaint, Spiegel sought relief against

Corrine McClintic and the Village of Wilme tt e under 42 U.S.C.

§ 1983 and against Corrine McClintic for intrusion upon se

‐

clusion under Illinois law. On November 29, 2016, Spiegel

fi led a motion for a temporary restraining order or prelimi

‐

nary injunction, and the defendants moved to dismiss.No. 18

‐ 1070 5

On September 27, 2017, the district court dismissed Spie

‐ gel’s claims against McClintic and denied Spiegel’s motion for

a preliminary injunction. On November 7, 2017, after supple

‐

mental brie fi ng, the district court dismissed Spiegel’s claim

against Wilme tt e and entered fi nal judgment.

Approximately one month later, Spiegel fi led a combined

motion to vacate the judgment and to fi le a third amended

complaint. In a text

‐ only order, the district court denied the

motion to vacate because it presented arguments already con

‐

sidered and rejected and denied the motion to amend for the

same reasons articulated in the November 7, 2017, order. Spie

‐ gel’s proposed third amended complaint was largely identical

to his second amended complaint, but it o ff ered several addi

‐

tional factual allegations and named three Wilme tt e o ffi cers

as defendants. This appeal followed.

II. A NALYSIS

Spiegel frames his suit as one meant to vindicate his con

‐

stitutional 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, identi fi ed a constitutional violation because his

claims su ff er from threshold de fi ciencies.

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 sec

‐

ond amended complaint in a light most favorable to Spiegel.

Id.6 No. 18

‐ 1070

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 citi

‐

zen. “To state a claim for relief in an action brought under

§ 1983, respondents must establish

... that the alleged depri

‐

vation was commi tt ed under color of state law.” Am. Mfrs.

Mut. Ins. Co. v. Sullivan

, 526 U.S. 40, 49–50 (1999). The under

‐

color

‐ of

‐ state

‐ law element means that § 1983 does not permit

suits based on private conduct, “no ma tt er how discrimina

‐

tory or wrongful.” Id. at 50 (citation omi tt ed). But a private

citizen can act under color of law if there is “evidence of a con

‐

certed e ff

ort between a state actor and that individual.” Fries v.

Helsper

, 146 F.3d 452, 457 (7th Cir. 1998). We call this the “con

‐ spiracy 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 in

‐

consistent with the clear holding in Fries

. “To establish § 1983

liability through a conspiracy theory, a plainti ff must demon

‐

strate that: (1) a state o ffi cial and private individual(s) reached

an understanding to deprive the plainti ff of his constitutional

rights, and (2) those individual(s) were willful participant[s]

in joint activity with the State or its agents.” Id. (internal cita

‐

tions omi tt ed). “[M]ere allegations of joint action or a conspir

‐

acy do not demonstrate that the defendants acted under color

of state law and are not su ffi cient to survive a motion to dis

‐

miss.” Id. at 458.

Spiegel also argues that an “agreement among all the con

‐ spirators is not a necessary element of a civil conspiracy,”

quoting Lenard v. Argento

, 699 F.2d 874, 882 (7th Cir. 1983). ButNo. 18

‐ 1070 7

he misquotes Lenard : the court actually stated that “[a]n ex

‐

press agreement” is not required. Id. (emphasis added).

With the proper standard established, we a tt empt to fi nd

a conspiracy within Spiegel’s allegations. Spiegel quotes lan

‐

guage 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 Spie

‐ gel doesn’t allege that Wilme tt e police agreed to arrest Spiegel

if directed to do so by McClintic. The o ffi cers clearly retained

full discretion, evidenced by their decision to not arrest Spie

‐ gel.

We have repeatedly held that “the mere act of furnishing

information to law enforcement o ffi cers” does not constitute

joint activity in an unconstitutional arrest. Butler v. Goldbla tt

Bros.

, 589 F.2d 323, 327 (7th Cir. 1978); see also Kelley v. Myler

,

149 F.3d 641, 649 (7th Cir. 1998) (“Bell called the police when

Kelley refused to leave the property after being asked to do so

and then described the situation to the o ffi cers; he had no fur

‐

ther communication with the o ffi cers. Such evidence does not

support her charge that a conspiracy existed to arrest her in

violation of her civil rights.”); Gramenos

, 797 F.2d at 435 (con

‐

fi rming that “one who accuses someone else of a crime is [not]

exercising the powers of the state”). In Brokaw v. Mercer Cty.

,

we distinguished Gramenos and Butler because “they did not

involve an alleged agreement between the police and the pri

‐

vate citizens; rather, the private individuals acted inde

‐ pendently from the government in making the police re

‐ ports.” 235 F.3d 1000, 1016 (7th Cir. 2000). The di ff erence in

Brokaw was that two private citizens and a deputy sheri ff

agreed to work together to remove a child from a home by8 No. 18

‐ 1070

fi ling false allegations of child neglect. Thus, the state actor

intentionally set in motion the seizure of the child, knowing

that the removal was premised on false allegations.

So the mere act of fi ling false police reports is not actiona

‐

ble under § 1983. Spiegel never alleges that the o ffi cers were

aware that the reports were false, much less that they had pre

‐ viously agreed with McClintic to investigate such false re

‐

ports. In fact, it’s unclear whether Corrine McClintic’s reports

contained falsehoods. He summarily alleges that the police re

‐

ports involved false allegations, but never identi fi es them. Ra

‐

ther, Spiegel emphasizes that the o ffi cers refused to listen to

his explanations for why his conduct was lawful. That’s not

enough to establish a conspiracy.

Because Spiegel has not plausibly alleged a conspiracy be

‐

tween McClintic and Wilme tt e to violate his constitutional

rights, he failed to state a § 1983 claim against McClintic.

2. Spiegel Has Not Stated a Monell Claim Against Wilme tt e

The district court properly dismissed Spiegel’s claim

against Wilme tt e because “a municipality cannot be held lia

‐

ble solely because it employs a tortfeasor.” Monell v. Dep ʹ t of

Soc. Servs. of City of New York

, 436 U.S. 658, 691 (1978). Rather,

a municipality can be liable under § 1983 only “when execu

‐

tion of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said

to represent o ffi cial policy, in fl icts the injury.” Id. at 694.

We interpret that language as creating three bases for mu

‐ nicipal liability: “(1) an express policy that causes a constitu

‐

tional deprivation when enforced; (2) a widespread practice

that is so permanent and well

‐ se tt led that it constitutes a cus

‐No. 18

‐ 1070 9

tom or practice; or (3) an allegation that the constitutional in

‐ jury was caused by a person with fi nal policymaking author

‐ ity.” Estate of Sims ex rel. Sims v. Cty. of Bureau

, 506 F.3d 509,

515 (7th Cir. 2007) (citation omi tt ed).

Spiegel argues that Wilmette’s disorderly conduct ordi

‐

nance constitutes the express policy of the City. The ordinance

does not expressly criminalize public videography or photog

‐ raphy. Wilmette, IL., Code ch. 12

‐ 4.1 (2017) (making it “un

‐

lawful for any person to knowingly do any act in such unrea

‐

sonable manner as to alarm or disturb another and to provoke

a breach of the peace in the village”). And, given the require

‐

ment that the person act in an “unreasonable manner,” the

ordinance does not raise facial constitutional concerns. See

Gower v. Vercler

, 377 F.3d 661, 670 (7th Cir. 2004) (explaining

that the materially identical Illinois disorderly conduct statute

does not run afoul of the First Amendment); see also Am. Civil

Liberties Union of Ill. v. Alvarez

, 679 F.3d 583, 602 (7th Cir. 2012)

(“[W]hen ‘speech’ and ‘nonspeech’ elements are combined,

and the ‘nonspeech’ element (e.g., prostitution) triggers the

legal sanction, the incidental effect on speech rights will not

normally raise First Amendment concerns.”). Certainly, a per

‐

son can photograph and videotape in a sufficiently disruptive

way that it would be not unconstitutional to arrest the indi

‐

vidual for disorderly conduct.

Spiegel’s claim is thus about the enforcement of the stat

‐

ute, not its facial constitutionality. “[A] wri tt en policy that is

facially constitutional, but fails to give detailed guidance that

might have averted a constitutional violation by an employee,

does not itself give rise to municipal liability.” Szabla v. City of

Brooklyn Park.

, 486 F.3d 385, 392 (8th Cir. 2007) (en banc). Spie

‐ gel does not allege that Wilme tt e anticipated or intended that10 No. 18

‐ 1070

the ordinance would be enforced to chill lawful, expressive

conduct like photography. See Christensen v. Park City Mun.

Corp.

, 554 F.3d 1271, 1280 (10th Cir. 2009) (explaining that en

‐

forcement of an ordinance can give rise to Monell liability if

the injury “was caused by a straightforward enforcement of

the ordinances, and not by any additional discretionary ac

‐

tions by the o ffi cers”).

We do not think Spiegel has plausibly alleged an express

policy by Wilme tt e to enforce the disorderly conduct ordi

‐

nance unconstitutionally. He merely alleges that o ffi cers re

‐

ceived reports of a disturbance, responded to the reports, and

advised an apparent provocateur to stop his surveillance.

That’s not enough. See Surplus Store & Exch., Inc. v. City of Del

‐ phi

, 928 F.2d 788, 791 (7th Cir. 1991) (rejecting the argument

that a municipality was liable because it “ha[d] a ‘policy’ of

allowing or instructing its police o ffi cers to enforce the chal

‐ lenged statutes”).

As for the other bases for Monell liability, Spiegel wisely

declines to argue that they exist. Two visits by o ffi cers do not

constitute a widespread policy or practice. And the complaint

makes no mention of any Wilme tt e o ffi cials who might have

policymaking authority.

Spiegel also argues that Wilme tt e can be held liable be

‐

cause the Village “rati fi ed” its o ffi cers’ actions. For a munici

‐ pality to be liable on a rati fi cation theory, the municipality

“must approve both the employee’s conduct and the basis for

that conduct, i.e., the employee’s motivation.” Waters v. City of

Chicago

, 580 F.3d 575, 584 (7th Cir. 2009). Spiegel relies upon

brie fi ng in which Wilme tt e argued that the threats to arrest

Spiegel did not violate the constitution. But contending thatNo. 18

‐ 1070 11

no constitutional violation occurred is far di ff erent from as

‐ serting that the actions were appropriate even assuming the

o ffi cers intended to chill free speech. Spiegel did not state a

Monell claim against Wilme tt e.

3. Spiegel Has Not Stated a Claim for Intrusion Upon Seclu

‐

sion

Under Illinois law, a plainti ff may sue for an intrusion

upon seclusion

. Lawlor v. N. Am. Corp. of Ill.

, 2012 IL 112530, ¶

34. The cause of action ʹ s elements are: “(1) the defendant com

‐

mi tt ed an unauthorized intrusion or prying into the plainti ff ’s

seclusion; (2) the intrusion would be highly o ff ensive or ob

‐ jectionable to a reasonable person; (3) the ma tt er intruded on

was private; and (4) the intrusion caused the plainti ff anguish

and su ff ering.” Busse v. Motorola, Inc

., 813 N.E.2d 1013, 1017

(Ill. App. Ct. 2004). The district court dismissed Spiegel’s

claim after fi nding that he did not allege damages from the

purported intrusions.

Spiegel argues, simply, that damages for intrusion upon

seclusion are presumed. “Under Illinois law, a plainti ff must

prove actual injury in the form of, for example, medical care,

an inability to sleep or work, or a loss of reputation and integ

‐ rity in the community in order to recover damages for torts

such as intrusion upon seclusion. Injury is not presumed. ”

Schmidt v. Ameritech Ill.

, 768 N.E.2d 303, 316 (Ill. App. Ct. 2002)

(citation omi tt ed) (emphasis added); s ee also McGreal v. AT &

T Corp.

, 892 F. Supp. 2d 996, 1015 (N.D. Ill. 2012) (collecting

cases in which courts dismissed claims for intrusion upon se

‐

clusion for failure to allege damages speci fi cally). Spiegel did

not allege facts to support a required element of his state law

privacy claim.12 No. 18

‐ 1070

4. Spiegel’s Remaining Motions

Spiegel also appeals the district court’s denial of his mo

‐

tion for a preliminary injunction, motion to vacate the judg

‐

ment, and motion for leave to fi le a third amended complaint.

Because the district court correctly found that Spiegel had not

stated a claim against the defendants, the court properly de

‐

nied the motions for injunctive relief and to vacate the judg

‐

ment.

The proposed third amended complaint included claims

against three o ffi cers. The district court denied the motion to

amend on futility grounds but did not address the addition of

individual o ffi cers as defendants. Despite that oversight, the

court properly denied the motion to amend. “When there has

been an entry of fi nal judgment, a complaining party may

amend a complaint pursuant to Rule 15(a) only after that

party has successfully altered or amended the judgment pur

‐

suant to Rule 59(e) or the judgment has been vacated pursu

‐

ant to Rule 60(b).” Dubicz v. Commonwealth Edison Co.

, 377 F.3d

787, 790 (7th Cir. 2004). Because the court entered fi nal judg

‐

ment and denied Spiegel’s motion to vacate the judgment, the

court had no jurisdiction to consider the motion to amend. Id.

III. C ONCLUSION

The district court correctly found that Spiegel did not state

constitutional or state law claims in his second amended com

‐ plaint. McClintic did not conspire with Wilme tt e, and Spiegel

has not identi fi ed an express policy by Wilme tt e that caused

a constitutional deprivation. As to his state law privacy claim,

Illinois law requires that damages be speci fi cally alleged.

AFFIRMED.