UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANDREW PEIRICK,

Plaintiff,

v.

PIOTR DUDEK,

Defendant.

No. 20 CV 3013

Judge Manish S. Shah

MEMORANDUM OPINION AND ORDER

Illinois State Trooper Piotr Dudek pulled over Andrew Peirick in the middle of 

the night after clocking his vehicle going 140 miles per hour on Interstate 90. Dudek 

questioned Peirick’s sobriety, but Peirick denied drinking. Peirick refused to take a 

breath test and failed two field sobriety tests. Dudek arrested him for driving under 

the influence. In the approximately fifteen minutes that Peirick sat handcuffed in the 

back of the squad car before arriving at the station, he repeatedly told Dudek that 

the handcuffs were too tight. Dudek insisted that the handcuffs were fine and did not 

check or loosen them. An Illinois judge ultimately found Peirick guilty of exceeding 

the speed limit by more than 35 mph but not guilty of driving under the influence. 

Arguing that Dudek’s use of handcuffs amounted to excessive force and that his DUI 

charge was baseless, Peirick brought claims against Dudek for violating the Fourth

Amendment under 42 U.S.C. § 1983, and for malicious prosecution under Illinois law.

Dudek moves for summary judgment. For the reasons below, the motion is granted. 

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I. Legal Standards

Summary judgment is proper when there is no genuine dispute of material fact 

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). I 

construe all facts and reasonable inferences in Peirick’s favor. Robertson v. 

Department of Health Services, 949 F.3d 371, 377–78 (7th Cir. 2020). Dudek is

entitled to summary judgment, however, if Peirick has not made “a sufficient showing 

on an essential element” of his case for which he has the burden of proof. Celotex Corp. 

v. Catrett, 477 U.S. 317, 323 (1986); see also Wade v. Ramos, 26 F.4th 440, 446 (7th 

Cir. 2022) (nonmovant’s version of events must be “backed up by a measure of 

plausible evidence” in the record).

II. Background

Just after 3 a.m. on November 5, 2019, Andrew Peirick drove westbound on 

Interstate 90, just past O’Hare Airport. [63] ¶ 1.1 Illinois State Trooper Piotr Dudek 

was on a routine patrol and observed Peirick’s Volkswagen Passat traveling behind 

his squad car at a high rate of speed. Id. ¶¶ 1–2.2 When Peirick passed him, Dudek

1 Bracketed numbers refer to entries on the district court docket. Referenced page numbers 

are taken from the CM/ECF header placed at the top of filings, except in the case of citations 

to depositions, which use the deposition transcript’s original page number. The facts are 

largely taken from Peirick’s response to Dudek’s Local Rule 56.1 statement, [63], and Dudek’s 

response to Peirick’s statement of additional material facts, [70], where both the asserted fact 

and the opposing party’s response are set forth in one document. When necessary, I also 

consider other materials in the record. See Fed. R. Civ. P. 56(c)(3).

2 Peirick objects to many of Dudek’s asserted facts that are based on his police report, 

claiming (without argument or citation to legal authority) that the report is inadmissible 

hearsay. But in civil cases, police reports that record the firsthand observations of an officer 

are admissible under the public records exception to the hearsay rule, unless the party 

opposing admission shows that the record is untrustworthy. See Fed. R. Evid. 803(8); Jordan 

v. Binns, 712 F.3d 1123, 1133 (7th Cir. 2013) (“[P]olice reports have generally been excluded 

except to the extent to which they incorporate firsthand observations of the officer.” (quoting 

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activated his moving radar and registered Peirick’s vehicle going 140 miles per hour

(double the speed limit); Dudek then activated his emergency lights and pulled over 

Peirick. Id. ¶¶ 3–4.3

Dudek approached the vehicle on the driver’s side and asked Peirick for his 

license and proof of insurance. Id. ¶ 5. Peirick produced his license, and while he 

looked for his insurance, he asked Dudek whether it would make a difference if he 

had a family member in the Chicago Police Department. Id.; [70] ¶ 2. Dudek said that 

it would not and told Peirick that he was going 140 miles per hour. [63] ¶ 6; [55-3] at 

45:4–6. Dudek noticed that Peirick had red and watery eyes and asked him how much 

he had to drink. [63] ¶ 6; [55-3] at 45:8–12; [55-4] at 3:09:03–12.4 Peirick said he had 

not been drinking and suggested that Dudek was smelling his chewing gum. [63] ¶ 7; 

Fed. R. Evid. 803(8) advisory committee’s note)). Dudek’s field report documents his firsthand 

observations of his encounter with Peirick, and Peirick offers no argument suggesting that 

the report is untrustworthy. In fact, Peirick admits many of the facts that Dudek offers from 

his police report.

3 Dudek claims that Peirick changed two lanes without signaling, but he acknowledges that 

this was not captured on video, and Peirick testified that he used his signal. See [55-2] at 4; 

[55-3] at 32:18–33:8; [55-5] at 72:14–21. Whether Peirick used his signal is disputed. 

4 Peirick denies that his eyes were red and watery or that Dudek detected the smell of alcohol 

on his breath. The evidence Peirick cites—Dudek’s deposition testimony that Peirick denied 

drinking and was chewing gum and smoking a cigarette—does not controvert Dudek’s 

observations of Peirick’s eyes or breath. See [63] ¶ 6; [55-3] 46:1–6, 54:13–20. Under the 

court’s Local Rule 56.1(e)(3), a party fails to dispute an asserted fact unless it “cite[s] specific 

evidentiary material that controverts the fact and [ ] concisely explain[s] how the cited 

material controverts the asserted fact.” Id. The smell of alcohol can exist alongside the smell 

of gum and cigarette smoke. But while the fact is not properly controverted under the Local 

Rule, I nevertheless accept Peirick’s version because other evidence in the record, read in a 

light most favorable to Peirick, casts doubt on the asserted fact. In his deposition, for 

example, Peirick testified that he had two bourbon and sodas at least six and a half hours 

before being pulled over, and he further suggested that Dudek’s assertion that he smelled a 

strong odor of alcohol on Peirick’s breath was not plausible. [55-5] at 31:3–20, 74:3–8.

Whether Dudek in fact smelled alcohol on Peirick’s breath is disputed.

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[70] ¶ 3. Dudek then returned to his squad car to run a check on Peirick’s license and 

turned off his oscillating lights before reapproaching Peirick’s vehicle. [63] ¶¶ 8–10.

Dudek asked Peirick to step out of the car to perform field sobriety tests. Id. 

¶ 10. Peirick complied and had no problems getting out of his vehicle—he didn’t 

stumble or stagger. [70] ¶ 4. Once out of the vehicle, Dudek told Peirick to spit out 

his gum and put out the cigarette he was smoking. [63] ¶ 11. While speaking on the 

shoulder of the road, Dudek asked again how much he had to drink that night; Peirick 

again denied drinking. Id. ¶ 12. 

At that point, Dudek informed Peirick that he was going to administer field 

sobriety tests. Id. ¶ 13. Dudek asked Peirick if he wore glasses or contacts, or if he’d 

taken any medication that night; Peirick denied wearing glasses or contacts but 

stated that he had a “handicap” due to his hip. Id. ¶¶ 14–15. Dudek asked if that 

meant Peirick could not perform two of the tests—the walk-and-turn and one-leg

stand tests—but Peirick did not respond at the time. Id. ¶ 16. When Dudek inquired 

again about medication, Peirick said that he took antidepressant medication. Id. ¶ 17.

Dudek then gave Peirick instructions for the horizontal gaze nystagmus test, 

which measures how much a person’s eyes jerk as they attempt to follow an object

(often a finger or a pen) horizontally. [63] ¶ 18; [70] ¶ 5.5 Dudek told Peirick to stand 

with his feet together with his arms at his sides and to follow Dudek’s finger only 

5 “The test is premised on the understanding that, whereas everyone’s eyes exhibit some 

jerking while turning to the side, when the subject is intoxicated the onset of the jerking 

occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more 

distinct.” Pennsylvania v. Muniz, 496 U.S. 582, 585 n.1 (1990) (citation and quotation marks 

omitted).

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with his eyes without moving his head. [63] ¶ 18. When asked if he understood the 

instructions, Peirick said it was hard for him to stand because of his hip and offered 

to let Dudek see his hip multiple times. Id. ¶¶ 19–20. Dudek said he believed Peirick 

about his hip condition and did not want to see it, and he instructed Peirick to support 

himself against the back of his car for the test. Id. ¶¶ 20–21.

Peirick did not follow Dudek’s instructions and continued to insist that he had

had hip surgery. Id. ¶ 22. Dudek sought to clarify whether Peirick was saying that 

he was unable to stand at all, and Peirick stated that “standing is not a problem, but 

walking is.” Id. ¶¶ 22–23. Dudek gave Peirick the instructions for the test again and 

told him he could support himself on the car, and Peirick confirmed that he 

understood. Id. ¶¶ 24–25. During the test, Dudek had to tell Peirick four times not to 

move his head and to use only his eyes to follow Dudek’s finger. Id. ¶ 26. Other than 

moving his head, Peirick kept his hands by his side, stood still, wasn’t staggering or 

falling down, and didn’t lose his balance. [70] ¶ 6. 

After completing the horizontal gaze nystagmus test, Dudek asked Peirick 

whether he could perform the walk-and-turn test and the one-leg stand test. [63] ¶ 27. 

In response, Peirick repeatedly offered to show Dudek his hip, and Dudek kept telling 

him that said he did not want to see it. Id. ¶¶ 28–29. Peirick then stated that he “can’t 

walk on his hip;” in response, Dudek asked whether he could stand on one leg and 

Peirick said that his right leg was the bad one but he could stand on his left leg. Id. 

¶¶ 29–30. When Dudek asked whether Peirick could stand on one leg to perform the 

one-leg stand test, Peirick asked if he had failed the horizontal gaze nystagmus test. 

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Id. ¶ 31. Dudek did not respond to that question and asked Peirick to answer his 

question about the one-leg stand test, and Peirick said that he had a handicap. Id.

¶ 32. 

At that point, Dudek asked Peirick to walk back to his squad car with him. Id.

¶ 33. On the walk to Dudek’s vehicle, Peirick again asked if could show Dudek his 

hip, and Dudek again said Peirick did not need to show him anything. Id. ¶ 34. Dudek 

retrieved a portable breath test from his squad car and asked Peirick if he’d take the 

test. Id. ¶ 35. Peirick said no and that he’d rather do anything else. Id. ¶ 36. Peirick 

then stated “let’s do the walking test,” to which Dudek responded, “you said that you 

are handicapped.” Id. ¶ 37. Peirick replied that he was handicapped but wanted to do 

the walk-and-turn test before the breath test. Id. Dudek reminded Peirick that he 

had stated several times that he was unable to perform the walk-and-turn test 

because of his hip, but Peirick insisted that he now wanted to try it. Id. ¶¶ 38–40. 

Peirick kept asking if he could show Dudek his hip, and Dudek kept saying no. Id. 

¶¶ 40–41. Dudek said that he did not want to force Peirick to perform the walk-andturn test if he had a problem with his hip and asked again whether Peirick was 

physically able to perform the test; Peirick replied, “well now I’m cold.” Id. Dudek told 

Peirick not to play games with him, and Peirick said, “I’m not doing that, but I’m cold 

and I have a problem with my leg.” Id. ¶ 42. After a few more minutes of a similar 

exchange, Peirick insisted upon performing the walk-and-turn test; he stated that he 

had a disability but would “do [the test] anyways—let’s see if I pass it.” Id. ¶ 43. 

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Before instructing Peirick on the walk-and-turn test, Dudek asked again if he 

had anything to drink that night. Id. ¶ 44. Peirick responded: “yeah, six hours—seven 

hours ago ... six, seven, eight hours ago.” Id. In his police report on this statement,

Dudek wrote that “Peirick admitted drinking six drinks seven hours prior.” [70] ¶ 17;

[55-2] at 5. Dudek also testified during a state-court hearing that Peirick had “stated 

that seven hours ago he had six drinks.” [70] ¶ 18; [55-7] at 35:20–24. Dudek said 

that if Peirick had something to drink eight hours ago, he should be “absolutely fine” 

to take a breath test. [63] ¶ 45. Peirick responded, “yeah, but that’s not my option,”

and he continued to insist that he’d rather perform the walk-and-turn test than take 

the breath test. Id. ¶¶ 45–46. Dudek relented and instructed Peirick on how to 

perform the walk-and-turn test; Peirick listened with his arms by his sides and did 

not have any problem standing (he did not stagger or fall). Id. ¶ 46; [70] ¶ 7.

Peirick then performed the test, walking forward along an imaginary line, 

pivoting, and walking back. [70] ¶ 9. He put one foot in front of the other, did not raise 

his arms for balance, and did not lose his balance on the turn. Id. But Peirick also 

missed all the heel-to-toe steps in both directions, took an incorrect number of steps, 

stepped off the line, and staggered. [63] ¶ 47. Dudek then explained how to perform 

the one-leg stand test, but Peirick started to complain about his hip; Dudek told him 

that if he could not perform the test, he should not do it. Id. ¶¶ 48–49.

Dudek told Peirick that he had failed both the horizontal gaze nystagmus test 

and the walk-and-turn test. Id. ¶ 50. He then asked Peirick again if he would submit 

to a breath test to prove that he was below the legal blood-alcohol limit. Id. Peirick 

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said that he would “never ever” submit to a breath test. Id. ¶ 51. At that point, Dudek 

placed Peirick under arrest for driving under the influence of alcohol, handcuffed him,

and put him in the back of his squad car. Id. ¶¶ 51–52; [70] ¶¶ 10, 13. Peirick did not 

protest or resist in any way. [70] ¶ 11. Dudek did not leave for the station immediately 

because he had to wait for a tow truck. Id. ¶ 13.

Between the time Peirick was handcuffed and his arrival at the station for 

processing—about fifteen minutes—Peirick repeatedly expressed discomfort with his 

handcuffs. [63] ¶ 53; [70] ¶¶ 14–15. Specifically, he stated that his handcuffs were:

too tight (nine times), uncomfortable (four times), hurting his wrists (once), 

“strangling his wrists” (once), and starting to hurt his hands (once). [63] ¶ 53; [70] 

¶¶ 22–36. In addition to repeatedly telling Dudek that the cuffs were “way too tight,” 

Peirick also noted that he was “in pain,” and later, complained that “the procedure is 

not to cuff someone so tight that their hands start to hurt.” [70] ¶¶ 23–25, 27–30, 35. 

In response to Peirick’s initial complaints, Dudek stated that the handcuffs were not 

tight, he knew what he was doing, Peirick was cuffed properly, and the handcuffs

were “not for comfort.” [63] ¶ 54; [55-4] at 3:35:35–47. Over the next several minutes

waiting for the tow truck, Peirick continued to complain that the handcuffs were too 

tight, and Dudek continued to insist that Peirick was cuffed properly—he did not 

check the handcuffs at any point. [70] ¶¶ 15, 37; [55-4] at 3:36:20–44:31. Peirick said 

that he wanted his hands photographed when he got to the station. [70] ¶ 19; [55-4] 

at 3:45:06–30. Peirick did not make any other comments regarding any injury or pain 

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he was experiencing due to the handcuffs, and he did not ask for medical attention. 

[63] ¶¶ 56, 67.

Upon arrival at the station, Peirick was escorted inside and his handcuffs were 

removed. Id. ¶ 57. Dudek did not take any photos of Peirick’s wrists, nor did he 

instruct any other officer to do so. Id. ¶¶ 58–59; [70] ¶ 19. Dudek placed Peirick under 

a 20-minute observation period, advised him of his Miranda rights, and asked him to 

submit to a breath test (which Peirick again refused). [63] ¶ 61. Dudek wrote four 

traffic citations for Peirick: (1) exceeding the speed limit by more than 35 miles per 

hour; (2) driving under the influence of alcohol; (3) failing to signal when changing 

lanes; and (4) improper use of the left lane. Id. ¶ 63. Peirick was released on bond just 

before 5 a.m. and took an Uber home. Id. ¶ 64. Upon arriving home, Peirick took three 

photographs of his right wrist. Id. ¶¶ 68–70. The photos show a small red mark in 

the shape of a line across approximately half of the back of Peirick’s wrist. Id. ¶ 70;

[55-6]. There’s no evidence that Peirick suffers from any continued pain or discomfort 

in his wrists as a result of being handcuffed by Dudek, or and he never saw a doctor 

about any physical injury caused by the handcuffs. [63] ¶¶ 67, 73.

The next spring, Peirick appeared in state court for his petition to rescind the 

summary suspension of his driver’s license related to the November 5 stop and arrest. 

Id. ¶ 77. The court found Peirick guilty of exceeding the speed limit by more than 35 

miles per hour but not guilty of driving under the influence (he was also found not 

guilty of the other two traffic violations). [63] ¶ 80; [70] ¶ 38; [55-7] at 56:8–13, 58:11–

23. Peirick then filed this suit, bringing claims against Dudek for excessive force in 

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violation of the Fourth Amendment and 42 U.S.C. § 1983 (Count I), and for malicious 

prosecution under Illinois law (Count II). [20]. Dudek moves for summary judgment.

III. Analysis

A. Excessive Force

Peirick bases his excessive-force claim solely on his allegations that Dudek 

fastened his handcuffs too tightly and—despite Peirick’s repeated complaints that 

they were too tight—refused to check or loosen them.

Section 1983 authorizes suits against officers who violate an individual’s 

constitutional rights while acting under color of state law. See 42 U.S.C. § 1983. An

officer violates an arrestee’s Fourth Amendment right to be free from unreasonable 

seizures when he “uses greater force than reasonably necessary to make an arrest.” 

Day v. Wooten, 947 F.3d 453, 460–61 (7th Cir. 2020). The “reasonableness” of an 

officer’s use of force “is judged from the perspective of a reasonable officer on the 

scene, rather than with the 20/20 vision of hindsight.” Sow v. Fortville Police Dep’t, 

636 F.3d 293, 303 (7th Cir. 2011) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

A lawful arrest “necessarily carries with it the right to some degree of physical 

coercion to effect it,” but “[n]ot every push or shove, even if it may later seem 

unnecessary ... violates the Fourth Amendment.” Sow, 636 F.3d at 304 (quoting 

Graham, 490 U.S. at 396) (quotation marks omitted). Yet while “[a]n officer who has 

the right to arrest an individual also has the right to use some degree of physical force 

or threat of force to effectuate the arrest, [ ] that right is circumscribed by the Fourth 

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Amendment’s insistence on reasonableness.” Stainback v. Dixon, 569 F.3d 767, 772 

(7th Cir. 2009) (citation omitted).

As such, an excessive-force claim may be based on unreasonably tight 

handcuffs. See Tibbs v. City of Chicago, 469 F.3d 661, 666 (7th Cir. 2006); see also 

Rooni v. Biser, 742 F.3d 737, 742 (7th Cir. 2014) (“A person has the right to be free 

from an officer’s knowing use of handcuffs in a way that would inflict unnecessary 

pain or injury, if that person presents little or no risk of flight or threat of injury.”). 

In Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003), for example, the court held that an 

excessive-force plaintiff was entitled to reach a jury when the record contained

evidence that: (1) the defendant handcuffed the plaintiff so tightly that she lost 

feeling in her hands, (2) the defendant refused to loosen the cuffs when she told them 

of the numbness, (3) the defendant fought with other officers over plaintiff’s arm for 

thirty minutes and twisted her arm, and (4) the plaintiff later underwent two carpal 

tunnel surgeries because of the handcuffing. Id. at 774–75, 779–81. And in Herzog v. 

Village of Winnetka, 309 F.3d 1041 (7th Cir. 2002), the court held that the plaintiff’s 

excessive-force claim survived summary judgment based on evidence that arresting 

officers: (1) lacked probable cause for her arrest, (2) shoved her to the ground when

she was not resisting, (3) forced a breath-screening device into her mouth, cracking 

her tooth, (4) waited over an hour to loosen handcuffs she complained were too tight, 

and (5) subjected her to blood and urine testing at a hospital, even though she had 

passed all field sobriety tests and registered a 0.00 on a breath test. Id. at 1043–44. 

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But to defeat summary judgment, a plaintiff must do more than rely on

discomfort and pain from tight handcuffs. In Tibbs v. City of Chicago, 469 F.3d 661 

(7th Cir. 2006), the record contained the following evidence supporting the plaintiff’s

excessive-force claim:

Tibbs likely suffered some discomfort and pain from handcuffs that Officer 

Kooistra applied somewhat too tightly; Tibbs complained to Officer Kooistra 

once about his handcuffs without elaborating on any injury, numbness, or 

degree of pain; Tibbs was handcuffed for about twenty-five to thirty minutes 

(from the time of his arrest to his arrival at the lockup facility); he experienced 

redness on his wrists for less than two days; and he neither sought nor received 

medical care for any alleged wrist injury.

Id. at 666. The court concluded that no reasonable jury could find for Tibbs “based on 

such mild allegations.” Id. Payne was different, the court reasoned, because “the 

plaintiff in Payne told the officers her hands were numb and ultimately underwent 

two surgeries because of wrist injuries caused by the too-tight handcuffs,” while 

“Tibbs complained only once to Officer Kooistra, gave the officers no indication of the 

degree of his pain, experienced minimal (if any) injury, and sought no medical care.” 

Id. (citation omitted). Herzog was likewise inapplicable, said the court, because the 

case was “hardly based on overly tight handcuffs alone.” Id. Rather, the Herzog

plaintiff presented evidence that she “had suffered numerous additional injuries,”

including a cracked tooth and gratuitous blood and urine testing. Id.

Similarly, in Sow v. Fortville Police Department, 636 F.3d 293 (7th Cir. 2011), 

the plaintiff failed to get past summary judgment based on his complaint to an officer

that his handcuffs were too tight. Id. at 304. Because the plaintiff failed to elaborate

on any injury and did not receive any medical treatment resulting from the use of the 

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handcuffs, the facts were “not sufficient to raise a genuine issue of material fact 

regarding whether [the defendant] used excessive force.” Id. 

Peirick has failed to produce sufficient evidence to defeat summary judgment. 

There is no dispute that Dudek had the lawful authority to arrest Peirick for going 

140 mph in a 70-mph zone. See Tapley v. Chambers, 840 F.3d 370, 378 (7th Cir. 2016)

(“As long as there is probable cause to stop someone for a crime—even a minor one 

like a traffic offense—the Fourth Amendment permits an arrest.” (citing Atwater v. 

City of Lago Vista, 532 U.S. 318, 354 (2001))). In the approximately fifteen minutes 

Peirick spent handcuffed in the back of Dudek’s squad car, he complained that the 

handcuffs were too tight, uncomfortable, and causing pain. When he got home from 

the station, Peirick took photos showing a small red mark on his right wrist. But

minor redness on his wrists immediately following a lawful arrest does not, without 

more, suggest excessive force, especially when Peirick offered no evidence of short- or 

long-term wrist injury and concedes he received no medical care for either wrist or 

hand. See Tibbs, 469 F.3d at 666.6

Because there is no “indication that his arrest was effected in an unusual or 

improper manner,” Braun v. Baldwin, 346 F.3d 761, 763 (7th Cir. 2003), no

6 Peirick compares the facts of his case to Threlkeld v. White Castle Sys., Inc., 201 F.Supp.2d 

834 (N.D. Ill. 2002). There, the court concluded that the plaintiff had presented enough 

evidence to survive summary judgment on an excessive-force claim based on tight handcuffs. 

Id. at 841. While there was no evidence that the plaintiff resisted when she was handcuffed 

and officers did nothing in response to her complaints, the plaintiff in Threlkeld also offered 

evidence that the handcuffs “cut into her skin and left a mark nearly two years later” and

“still ha[d] pain in her wrists, which one doctor told her might have been caused by tight 

handcuffs.” Id. The case is not analogous because there is no evidence that Peirick sustained 

any injuries as a result of Dudek’s handcuffs.

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reasonable jury could find that the handcuffs were excessively tight. Peirick says that 

his case is different because the plaintiffs in Tibbs and Sow complained only one or 

two times about their handcuffs, while he repeatedly told Dudek that the handcuffs 

were too tight. But repeating the same general complaints that his handcuffs were 

too tight and hurting his wrists—without any elaboration on his pain or evidence that 

the handcuffs were in fact too tight—is not enough to raise a genuine dispute of 

material fact on his excessive-force claim. Discomfort and pain from handcuffs are 

not by themselves proof of unconstitutional force. Peirick’s subjective 

contemporaneous complaints—without any evidence of injury or unreasonable 

duration—are not enough to allow a jury to conclude that Dudek inflicted 

unnecessary pain on Peirick.

B. Qualified Immunity

What’s more, even if the Fourth Amendment required Dudek to take Peirick’s 

complaints more seriously, Dudek would still be entitled to qualified immunity. The 

doctrine of qualified immunity shields government officials from liability for civil 

damages when “their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982). Once raised, the plaintiff bears the burden of

showing that the defendant violated a constitutional right and that the constitutional 

right at issue was clearly established at the time of the alleged violation. See Fosnight 

v. Jones, —F.4th—, No. 20-1033, 2022 WL 2965668, at *5 (7th Cir. July 27, 2022). “A 

failure to show either is fatal for the plaintiff’s case.” Id. (citation omitted). To be 

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clearly established, a Fourth Amendment right “must be defined more specifically 

than simply the general right to be free from unreasonable seizure” because “it is 

sometimes difficult for an officer to determine how the relevant legal doctrine, here 

excessive force, will apply to the factual situation the officer confronts.” Day, 947 F.3d 

453, 461 (7th Cir. 2020) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)).

There is no Seventh Circuit or Supreme Court case clearly establishing that 

Dudek’s conduct—failure to check and adjust handcuffs following repeated general 

complaints about tightness—violated Peirick’s rights. Peirick argues that at the time 

of his arrest, “the right to be free from unreasonably tight handcuffing was clearly 

established under Payne.” [62] at 7. The Seventh Circuit has clarified, however, that 

Payne established a narrower right: “it was unlawful to use excessively tight 

handcuffs and violently yank the arms of arrestees who were not resisting arrest, did 

not disobey the orders of a police officer, did not pose a threat to the safety of the 

officer or others, and were suspected of committing only minor crimes.” Day, 947 F.3d 

at 461 (quoting Payne, 337 F.3d at 780).

The facts here differ from those in Payne. Dudek did not violently yank or jerk

Peirick’s arms and shoulders or cause any injury suggesting that handcuffs were any

tighter than they would have been in a typical arrest. Neither Payne nor Herzog (nor 

any other case) has established a right to have an officer adjust and loosen handcuffs 

upon an arrestee’s repeated complaints to an officer.7 To the contrary, because the 

7 Plaintiff also cites Vainder ex rel. Vainder v. Powell, No. 03 C 1509, 2004 WL 1660618 (N.D. 

Ill. July 26, 2004). But “district court opinions cannot clearly establish a constitutional right 

because they are not binding precedential authority.” Day, 947 F.3d at 462.

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decisions in Tibbs and Sow “both found in the officer’s favor on similar allegations ...

there was nothing that would have alerted [Dudek] to the fact that a constitutional 

violation was looming.” Rooni, 742 F.3d at 743. Without notice of a known injury to 

Peirick, Dudek did not violate a clearly established right by refusing to loosen the 

handcuffs. See Day, 947 F.3d at 463 (“[L]ike the right in Payne, Rooni, and Tibbs, the 

right at issue in Stainback to have a known injury or condition considered by officers 

when handcuffing an arrestee is not implicated by the facts of this case.”).

C. Malicious Prosecution

To prevail on his malicious-prosecution claim under Illinois law, Peirick must 

show that: “(1) he was subjected to judicial proceedings; (2) for which there was no 

probable cause; (3) the defendant[ ] instituted or continued the proceedings 

maliciously; (4) the proceedings were terminated in the plaintiff’s favor; and (5) there 

was an injury.” Martinez v. City of Chicago, 900 F.3d 838, 849 (7th Cir. 2018) (citation 

omitted). The existence of probable cause is a complete defense to a maliciousprosecution claim. See id.; Wade v. Collier, 783 F.3d 1081, 1085 (7th Cir. 2015).

Probable cause “is a common-sense inquiry requiring only a probability of criminal 

activity; it exists whenever an officer or a court has enough information to warrant a 

prudent person to believe criminal conduct has occurred.” Young v. City of Chicago, 

987 F.3d 641, 644 (7th Cir. 2021) (quoting Whitlock v. Brown, 596 F.3d 406, 411 (7th 

Cir. 2010)). An officer’s belief need not be “correct or even more likely true than false, 

so long as it is reasonable.” Gaddis v. DeMattei, 30 F.4th 625, 630–31 (7th Cir. 2022)

(citation omitted). Instead, probable cause exists “when, given the totality of the 

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circumstances, a reasonable officer would believe that the suspect had committed a 

crime.” Cibulka v. City of Madison, 992 F.3d 633, 638 (7th Cir. 2021) (citation and 

quotation marks omitted).

Dudek possessed probable cause to believe that Peirick was driving under the 

influence of alcohol, barring any malicious-prosecution claim based on that charge.8

To recap, Dudek stopped Peirick at 3 a.m. for going 70 mph over the speed limit and

when he approached the vehicle, he noticed that Peirick had red and watery eyes. 

Peirick denied drinking initially but repeatedly refused to take a breath test. See 

People v. Johnson, 218 Ill.2d 125, 140 (2005) (“[E]vidence of a person’s refusal to take 

a test designed to determine the person’s blood-alcohol content is admissible and may 

be used to argue the defendant’s consciousness of guilt.”); People v. Garriott, 253 

Ill.App.3d 1048, 1052 (4th Dist. 1993) (“[A] driver’s refusal is relevant because it 

implies that he believes he is intoxicated, something he is clearly in a prime position 

to appraise. The police officer’s statutory inability to require the driver to submit to 

the breathalyzer test neither affects the relevancy of the driver’s refusal nor 

diminishes its evidentiary value.”). When Dudek administered the horizonal gaze 

nystagmus test, Peirick failed to follow directions and keep his head still, and 

ultimately, failed the test. When asked again whether he’d had anything to drink,

Peirick changed his story and admitted to drinking six to eight hours prior. Still, 

Peirick continued to refuse to submit to a breath test and insisted that he could do 

8 The amended complaint bases the malicious-prosecution claim solely on the DUI charge. 

[20] ¶¶ 22–24.

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the walk-and-turn test. He failed that test, too, and after he refused a breath test 

again, it was reasonable for Dudek to conclude that Peirick was under the influence. 

Peirick’s argument to the contrary is unpersuasive. Dudek lacked probable 

cause, says Peirick, because Peirick: (1) denied drinking; (2) testified that Dudek 

smelled his chewing gum and a cigarette; and (3) “[e]ven though he was disabled,” he 

“performed satisfactory” on the field sobriety tests. [62] at 11–12. But Peirick’s 

conclusory assertion that he performed satisfactorily on the field sobriety test finds 

no support in the record—there’s no evidence that any issues with his hip prevented 

him from performing the horizontal gaze nystagmus test, and Peirick insisted on 

performing the walk-and-turn test to avoid taking a breath test. That Peirick initially 

denied drinking and Dudek smelled chewing gum and a cigarette does not alter the 

probable-cause analysis. Dudek still had probable cause to believe Peirick had been 

driving under the influence based on his extreme speeding, repeated refusals to take 

a breath test, and failed field sobriety tests. See Holloway v. City of Milwaukee, —

F.4th—, No. 21-3007, 2022 WL 3152594, at *6 (7th Cir. Aug. 8, 2022) (“If the 

underlying facts supporting the probable cause determination are not in dispute, ... 

the court can decide whether probable cause exists.” (quoting Maxwell v. City of 

Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993))).9

9 Dudek’s false statements and testimony that Peirick admitted to drinking six drinks seven 

hours earlier do not affect the probable-cause analysis either. The objective undisputed facts 

(speed, failure of field sobriety tests, refusal to take a breath test) provided any reasonable 

officer in Dudek’s position with probable cause to suspect Peirick had driven under the 

influence of alcohol.

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Because probable cause bars Peirick’s malicious-prosecution claim, I do not 

reach Dudek’s arguments regarding state-law immunity.

V. Conclusion

Dudek’s motion for summary judgment, [53], is granted. Enter judgment and

terminate civil case.

ENTER: 

___________________________ 

Manish S. Shah

United States District Judge

Date: August 10, 2022

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