UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

O’NEAL JOHNSON, 

 

 Plaintiff, 

 

 v.

SYMON, et al., 

 

Defendants. 

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 20 CV 2657

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

 Before the Court is Defendants Daniel Symons, Zachary Girard, David Showers, 

and the City of Chicago’s Motion to Dismiss Plaintiff’s Amended Complaint under 

Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants

Defendants’ motion.

BACKGROUND 

The following facts come from the Amended Complaint and are assumed true 

for the purpose of this Motion. Alam v. Miller Brewing Co., 709 F.3d 662, 665–66 (7th 

Cir. 2013). All reasonable inferences are drawn in Johnson’s favor. League of Women 

Voters of Chi. v. City of Chi., 757 F.3d 722, 724 (7th Cir. 2014).

Defendants Symon and Girard (“Defendant Officers”) are both Chicago police 

officers. At 10:32 p.m. on May 1, 2018, they pulled Johnson over at 71st Street and 

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Halsted. At that time, they ran Johnson’s license plate. The Defendant Officers arrested 

Johnson for driving on a suspended license.

At 10:19 p.m., prior to pulling over Johnson, the Defendant Officers pulled over 

another vehicle near 69th Street and Sangamon. They called the stop in to the Chicago 

Office of Emergency Management and Communications (“OEMC”). Defendant 

Officers let the car go at 10:25 p.m., but represented to OEMC that they were still on 

the stop after letting the car go. At 10:28 p.m., they pulled over another car at 71st and 

Halsted, got the driver’s license, and ran the license. Defendant Officer Symon “lied to 

911”, telling them the license he was running was for the 69th and Sangamon stop, 

while it was actually for the 71st and Halsted stop. At 10:29:55, while still on that stop, 

Defendant Officer Girard told 911 that they were on a traffic stop at 799 W. 71st Street. 

Defendant Officers then let the driver go and got in their car.

When they pulled Johnson over at 10:32 p.m., Defendant Officers again lied to 

“911”, saying they were still on the stop they called in at 10:29:55. After Johnson was 

released, he obtained copies of the police report and “other documents” that showed 

Defendant Officers falsified reports and gave false information about Johnson’s arrest 

to the OEMC. For example, they falsely recorded Johnson’s traffic stop as happening 

at 11:27 p.m. Furthermore, according to Johnson, Defendant Officers changed out 

Johnson’s license plate. See Dkt. # 40, ¶ 23 (“The defendants took off the license plate 

that was on [Johnson’s] car an[d] replaced it with another plate an[d] inventoried it as 

the plate [that] was on the car when they stopped [Johnson].”).

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The charges against Johnson in the related criminal case were dismissed on or 

about September 20, 2021.

On April 29, 2020, Johnson filed his complaint in this case. Dkt. # 1. On 

February 3, 2022, Johnson filed his three-count Amended Complaint against

Defendants for: (1) false arrest under 42 U.S.C. § 1983; (2) “tampering with evidence”; 

and (3) conspiracy to violate Johnson’s civil rights under 42 U.S.C. § 1983. Dkt. # 40. 

Defendants move to dismiss Johnson’s Amended Complaint with prejudice for failure 

to state a claim on all counts. Dkt. # 44.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) “tests the sufficiency of the complaint, 

not the merits of the case.” McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th 

Cir. 2012). The Court accepts as true well-pled facts in the complaint and draws all 

reasonable inferences in favor of the plaintiff. AnchorBank, FSB v. Hofer, 649 F.3d 

610, 614 (7th Cir. 2011). The allegations in the 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, but it must provide 

enough factual support to “raise a right to relief above the speculative level.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 555 (2007). The claim must be described “in 

sufficient detail to give the defendant ‘fair notice of what the . . . claim is and the 

grounds upon which it rests.’” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 

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776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements,” are 

insufficient to withstand a Rule 12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009). A claim is facially plausible if the complaint contains sufficient 

alleged facts that allow the Court “to draw the reasonable inference that the defendant 

is liable for the misconduct alleged.” Id. 

DISCUSSION

The Court first notes that Johnson, proceeding pro se, is entitled to have his 

Amended Complaint liberally construed by the Court. See Taylor v. JPMorgan Chase 

Bank, N.A., 958 F.3d 556, 562 (7th Cir. 2020); see also Erickson v. Pardus, 551 U.S. 

89, 94 (2007) (“[a] document filed pro se is to be liberally construed, and a pro se 

complaint, however inartfully pleaded, must be held to less stringent standards than 

formal pleadings drafted by lawyers.”).

However, even pro se litigants “must expect to file a legal argument and some 

supporting authority” because “[a] litigant who fails to press a point by supporting it 

with pertinent authority or by showing why it is sound despite a lack of supporting 

authority forfeits the point.” Mathis v. New York Life Ins. Co., 133 F.3d 546, 548 (7th 

Cir. 1998) (cleaned up); see Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994) (“[P]ro 

se litigants are not entitled to a general dispensation from the rules of procedure or court 

imposed deadlines.”).

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“If [a court] is given plausible reasons for dismissing a complaint, [the court is] 

not going to do the plaintiff’s research and try to discover whether there might be 

something to say against the defendants’ reasoning.” Kirksey v. R.J. Reynolds Tobacco 

Co., 168 F.3d 1039, 1041 (7th Cir. 1999). “It follows that a plaintiff’s failure to respond 

to a Rule 12(b)(6) motion giving plausible reasons for dismissal provides adequate 

grounds for granting the motion.” Garza v. Cervantes, 2015 WL 468748, at *1 (N.D.

Ill. 2015) (granting dismissal where a pro se plaintiff failed to respond to plausible 

arguments raised by defendants in a 12(b)(6) motion); see Alioto v. Town of Lisbon, 651 

F.3d 715, 719 (7th Cir. 2011) (“As to the defendants’ motion to dismiss the complaint, 

Alioto waived his right to contest the dismissal by failing to oppose the motions.”); 

Lekas v. Briley, 405 F.3d 602, 614–15 (7th Cir. 2005) (“While Lekas alleged in his 

complaint that his segregation was in retaliation for his filing of grievances, he did not 

present legal arguments or cite relevant authority to substantiate that claim in 

responding to defendants’ motion to dismiss,” and “[a]ccordingly, [his] retaliation 

claim has been waived.”); Kirksey, 168 F.3d at 1041 (“In effect the plaintiff was 

defaulted for refusing to respond to the motion to dismiss. And rightly so.”).

Defendants move to dismiss Johnson’s Amended Complaint with prejudice for 

failure to state a claim on three grounds: (1) Johnson’s false arrest claim fails because 

Defendants Symon and Girard had probable cause to arrest Johnson; (2) Johnson has 

failed to sufficiently plead his “tampering with evidence” claim, whether as a due 

process claim or spoliation claim; and (3) Johnson has failed to sufficiently plead a 

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federal conspiracy claim. Defendants also argue that Johnson fails to state a claim 

against Defendant Showers as to all three counts. The Court agrees with Defendants 

that Johnson failed to sufficiently plead all three counts of his Amended Complaint. 

I. False Arrest

Defendants argue that Johnson’s false arrest claim (Count I) fails because there 

was probable cause to arrest him for driving on a suspended license. Dkt. # 44, at 5. 

Defendants’ argument has two bases: (1) Johnson “does not allege that he was not

driving on a suspended or revoked license[,] [n]or does he plead facts suggesting that 

he had a valid license”; and (2) police body camera footage of the incident, attached as 

video exhibits to Defendants’ Motion, in their view shows that Johnson told Defendants 

he did not have a valid license. While Defendants spend several pages on the second 

basis, arguing why the Court should the consider the video clips despite the fact they 

are “not directly incorporated in Plaintiff’s amended complaint,” id. at 6, the first basis 

is sufficient to show why Johnson’s claim fails.

The Court first notes that Johnson seems to bring this claim under both the Fourth 

and Fourteenth Amendment. But false arrest claims are assessed under the Fourth 

Amendment, and the Supreme Court has prescribed that the Fourteenth Amendment is 

not applicable. See Albright v. Oliver, 510 U.S. 266, 271–74 (1994). We therefore 

assess the false arrest claim under the Fourth Amendment.

“To prevail on a false-arrest claim under [Section] 1983, a plaintiff must show 

that there was no probable cause for his arrest.” Neita v. City of Chi., 830 F.3d 494, 

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497 (7th Cir. 2016) (citation omitted); see also Mitchell v. Plano Police Dep’t, 2017 

U.S. Dist. LEXIS 160636, at *12–15 (N.D. Ill. 2017) (“A plaintiff must plead a lack of 

probable cause in order to succeed on a Fourth Amendment false arrest claim.”). An 

officer has probable cause to arrest if “at the time of the arrest, the facts and 

circumstances within the officer’s knowledge are sufficient to warrant a prudent person, 

or one of reasonable caution, in believing, in the circumstances shown, that the suspect 

has committed, is committing, or is about to commit an offense.” Thayer v. Chiczewski, 

705 F.3d 237, 246 (7th Cir. 2012). “[P]robable cause to believe that a person has 

committed any crime will preclude a false arrest claim, even if the person was arrested 

on additional or different charges for which there was no probable cause.” Andersen v. 

Vill. of Glenview, 821 F. App’x 625, 627 (Fed. Cir. 2020) (citing Holmes v. Vill. of 

Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007)). 

Here, Johnson was arrested for driving on a suspended license. Johnson did not 

plead that Defendants lacked probable cause to arrest him on May 1, 2018, for example 

by pleading that he was driving with a valid driver’s license. He also did not respond 

to Defendants’ argument regarding probable cause in his response brief, Dkt. # 47, or 

his “Addition to Response”, Dkt. # 51. Johnson has therefore waived this argument. 

See Garza, 2015 WL 468748, at *1; Lekas, 405 F.3d at 614–15. Because Johnson has 

failed to “show that there was no probable cause for his arrest,” Neita, 830 F.3d at 497, 

the Court dismisses Johnson’s false arrest claim. The claim is dismissed without 

prejudice. If Johnson believes he can allege sufficient facts that would show a lack of 

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probable cause for his arrest for driving on a suspended license, he may amend his 

complaint to do just that. 

II. “Tampering with Evidence”

Count II of Johnson’s Amended Complaint asserts a claim of “tampering with 

evidence.” The legal basis for this claim is not clear, but Defendants argue that, 

assessing the claim as either one for violation of due process or as a type of spoliation 

of evidence claim, it must be dismissed as legally insufficient. The Court agrees.

Defendants first analyze this claim as “related to a due process violation based 

on manipulated or fabricated evidence as it pertains to [Johnson’s] indicated criminal 

prosecution.” Dkt. # 44, at 9. The Court agrees with Defendants that Johnson cannot 

make out a claim under the Fourteenth Amendment/Due Process Clause. Johnson’s 

criminal charges were dismissed; he was not convicted. The Seventh Circuit, applying 

Supreme Court precedent, has stated that “the Fourth Amendment, not the Due Process 

Clause, is the source of the right in a [Section] 1983 claim for unlawful pretrial 

detention, whether before or after the initiation of formal legal process.” Lewis v. City 

of Chi., 914 F.3d 472, 479 (7th Cir. 2019) (citing Manuel v. City of Joliet, 137 S. Ct. 

911, 917–20 (2017)). Johnson did not address Defendants’ argument and thus any 

response to this argument is waived. See Garza, 2015 WL 468748, at *1; Lekas, 405 

F.3d at 614–15. 

Next, Defendants assess Count II as claim for spoliation of evidence. The Court 

agrees with Defendants that Johnson cannot and has not pleaded a federal spoliation 

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claim under Section 1983. See Edwards v. David, 2017 WL 2653077, at *7 (N.D. Ill. 

2017) (“Plaintiff has failed to identify a constitutional right or interest separate and apart 

from [Section] 1983 that he believes Defendant [] violated with regard to the allegedly 

manipulated audio recording, and as such, he has not alleged a plausible civil federal 

claim for spoliation of evidence.”). We therefore turn to Illinois state law.

Illinois recognizes neither a tort of “intentional spoliation of evidence” nor an 

independent tort for negligent spoliation—rather, spoliation of evidence is a type of 

negligence. See Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 509–10 (7th 

Cir. 2007); Edwards, 2017 WL 2653077, at *7 n.8; Moorer v. Valkner, 2021 WL 

5998533, at *18. To succeed on a spoliation claim, a plaintiff must demonstrate that: 

“(1) the defendant owed the plaintiff a duty to preserve the evidence; (2) the defendant 

breached that duty by losing or destroying the evidence; (3) the loss or destruction of 

the evidence was the proximate cause of the plaintiff’s inability to prove an underlying 

lawsuit; and (4) as a result, the plaintiff suffered actual damages.” Scheidler v. Metro. 

Pier & Exposition Auth., 2019 WL 1426260, at *7 (quoting Grayson v. City of Aurora, 

157 F. Supp. 3d 725, 748 (N.D. Ill. 2016)).

Johnson’s claim fails under this analysis. He does not make any allegation or 

argument that Defendants owed him a duty to preserve evidence. While there is no 

general duty to preserve evidence under Illinois law, one may arise if the parties are 

sufficiently related and it was foreseeable that the evidence would be used in future 

litigation. Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 609 (7th 

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Cir. 2016). But “standard police practices aren’t enough to show a duty under Illinois 

law,” Moorer, 2021 WL 5998533, at *18, and Johnson failed to respond in any way to 

Defendants’ argument on this point. 

Furthermore, this claim is time-barred by the Illinois Tort Immunity Act’s oneyear statute of limitations. 745 ILCS 10/8-101(a). 

For the foregoing reasons, we dismiss Count II of Johnson’s Amended 

Complaint with prejudice.

III. Conspiracy under Section 1983

In Count III, Johnson’s claim for “[conspiracy] to violate plaintiff[’s] civil 

rights”, he alleges that Defendants “acted in their individual capacity and under color 

of law, having given false reports an[d] tampered with evidence[,] acted to undertake a 

course of conduct that violate[d] Plaintiff[‘s] civil rights.” Dkt. # 40, at 5.

“A civil conspiracy is ‘a combination of two or more persons acting in concert 

to commit an unlawful act, or to commit a lawful act by unlawful means.’” Beaman v. 

Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015) (quoting Scherer v. Balkema, 840 F.2d 

437, 441 (7th Cir. 1988)). To establish conspiracy liability under [Section] 1983, 

Johnson must show that “(1) the individuals reached an agreement to deprive him of his 

constitutional rights, and (2) overt acts in furtherance actually deprived him of those 

rights.” Id. In other words, Johnson “must ‘show an underlying constitutional 

violation’ and ‘demonstrate that the defendants agreed to inflict the constitutional 

harm.’” Daugherty v. Page, 906 F.3d 606, 612 (7th Cir. 2018) (quoting Hurt v. Wise, 

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880 F.3d 831, 842 (7th Cir. 2018)). “[C]onspiracy is not an independent basis of 

liability in [Section] 1983 actions,” Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008), 

so “[w]here there is no underlying constitutional deprivation, there is no Section 1983 

conspiracy claim,” Wheeler v. Piazza, 2018 WL 835353, at *8 (N.D. Ill. 2018) 

(collecting cases). See also Hill v. City of Chi., 2009 WL 174994, at *9 (N.D. Ill. 2009) 

(“[I]f a plaintiff fails to prove an underlying constitutional injury, any attendant 

conspiracy claim necessarily fails.”). 

As discussed above, Johnson has failed to plead a constitutional deprivation. His 

conspiracy claim is therefore dismissed without prejudice.

1

IV. Defendant Showers

Defendant Showers, barely mentioned in Johnson’s complaint, seems to be 

Defendant Officers’ supervising officer. Dkt. # 47, at 10–11. Johnson states in his 

response brief (not his complaint) that Defendant Showers, acting in his position as 

supervisor on the night of May 1, 2018, approved Defendant Officers’ “event query” 

regarding the 10:29:55 traffic stop despite knowing “that the time wasn’t right.” Id. at 

11–12. According to Johnson, “this could only be because he was corroborating with 

1

 The Court recognizes that Johnson submitted a large number of exhibits and additional facts 

with his response to Defendants’ motion and his “addition to response.” See generally Dkt. # 47, 

51. The Court notes that a complaint “may not be amended by the briefs in opposition to a 

motion to dismiss.” Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 348 (7th Cir. 2012). 

Should Johnson file a second amended complaint, he should include any factual allegations that 

he intends to rely on. 

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the Defendants to violate Plaintiff[’s] [rights] and wrongfully incarcerated Plaintiff.” 

Id. at 11–12.

Because the Court dismisses all three of Johnson’s claims, it need not address 

Defendant Showers individually. However, the Court notes that Johnson’s conclusory

allegations that Showers “knowingly signed [the] false arrest report on Plaintiff” and 

that he “corroborated [the] false story” are not sufficient. See Iqbal, 556 U.S. at 680–

81 (rejecting allegations that petitioners “knew of, condoned, and willfully and 

maliciously agreed to subject” respondent to harsh conditions as “conclusory and not 

entitled to be assumed true.”). Johnson must plead specific facts that would show 

Showers was part of any alleged conspiracy, including how he may have come to know 

certain facts, and/or allege specific actions Showers took to cause a constitutional 

violation.

CONCLUSION 

For the foregoing reasons, the Court grants Defendants’ Motion to Dismiss 

(Dkt. # 44). Counts I and III are dismissed without prejudice. Count II is dismissed 

with prejudice. Johnson may file an amended complaint by 5/17/2023. It is so ordered.

Dated: 4/19/2023 

 ________________________________

 Charles P. Kocoras

 United States District Judge

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