AMH/SBD IML.20273

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TORI ARTMAN,

Plaintiff,

v.

DAVE GUALANDRI and the CITY OF 

OTTAWA,

Defendants.

Court No. 1:20-cv-04501

Judge Alonso

DEFENDANTS’ MEMORANDUM OF LAW

IN SUPPORT OF THEIR MOTION TO DISMISS

Defendants, DAVE GUALANDRI and CITY OF OTTAWA, by and through their 

attorneys, ALISON HARRINGTON and SCOTT DOLEZAL of BEST, VANDERLAAN & 

HARRINGTON, in further support of their motion to dismiss pursuant to Federal Rule of Civil 

Procedure 12(b)(6), submit as follows: 

SUMMARY OF THE PLEADING

The Plaintiff alleges that she was an employed as a deputy auditor in the of the LaSalle 

County Auditor’s office. Complaint at ¶ 9, attached as Exhibit A. The Complaint alleges that 

LaSalle County State’s Attorney Karen Donnelly requested Defendant Dave Gualandri of the 

Ottawa Police Department to investigate the Plaintiff and her co-worker. Id. at ¶ 2, 12. 

Specifically, Gualandri was asked to investigate the overtime pay claimed by the Plaintiff and 

her co-worker, Pamela Wright. Id. at ¶ 13. According to the Complaint, the Plaintiff would 

inform the auditor of the amount of overtime they worked, and the auditor would include the 

overtime hours in the Plaintiff’s timesheets. Id. at ¶ 19. 
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Gualandri’s investigation of whether the paid overtime was appropriate included 

interviewing the Plaintiff. Id. at ¶ 21. The Complaint alleges that Gualandri did not properly 

report that the Plaintiff denied that she inflated her overtime in order to receive compensation for 

time that she did not work. Id. at ¶ 22-24. The Complaint further maintains that instead of 

documenting the denial, Gualandri reported that the Plaintiff confessed to accepting payment for 

overtime she did not work. Id. at ¶ 24. The Complaint alleges that Gualandri testified before a 

grand jury and falsely testified that the Plaintiff confessed to accepting overtime pay that they 

did not earn. Id. at ¶ 27. The Complaint alleges that as a result of this testimony, the Plaintiff 

was indicted on felony charges of theft, official misconduct, and conspiracy, and that these these 

charges were not supported by probable cause. Id. at ¶ 28-29. After the indictments were 

returned, the Complaint maintains that the Plaintiff turned herself in and was released on bond. 

Id. at ¶ 30. The criminal prosecution against the Plaintiff proceeded to trial, and on August 14, 

2019, a jury returned a verdict of not guilty. Id. at ¶ 33-34. The Complaint alleges that following 

the criminal trial, the Plaintiff was offered her position as a deputy auditor back if she paid back 

the money she earned in overtime. Id. at ¶ 35. The Complaint further alleges that “[d]espite 

Plaintiff having worked most of the overtime hours for which she was paid, Plaintiff agreed to 

pay back all overtime to get her position back.” Id. at ¶ 35. 

As a result of these allegations, the Plaintiff alleges that her Fourth Amendment rights 

were violated because she was indicted and arrested without probable cause (Count I) and 

because she was placed on bond and her liberty interests were restricted without probable cause 

(Count II). The Plaintiff’s Complaint also alleges state law claims for malicious prosecution, 

willful and wanton conduct, and indemnity. For the reasons that follow, the Plaintiff’s 

Complaint must be dismissed, with prejudice. 
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STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege facts 

sufficient to state a plausible claim for relief, that is, facts “that allow[ ] the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Firestone Fin. 

Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir. 2015) (citations omitted). A complaint must “give 

the defendant fair notice of what the claim is and the grounds on which it rests.” Erickson v. 

Pardus, 551 U.S. 89, 93 (2007) (citation and alterations omitted). The court is not bound to 

accept a plaintiff's legal conclusions or conclusory allegations. Richards v. Mitcheff, 696 F.3d 

635, 638 (7th Cir. 2012).

ARGUMENT

I. THE COMPLAINT MUST BE DISMISSED BECAUSE THE ALLEGATIONS 

OF THE COMPLAINT ESTABLISH THERE WAS PROBABLE CAUSE TO 

BRING CRIMINAL CHARGES AGAINST THE PLAINTIFF

The Plaintiff’s claims against Gualandri all rely on the absence of probable cause to 

support the criminal charges brought against her. In her Fourth Amendment claim for false 

arrest alleged in Count I, the existence of probable cause bars the Plaintiff’s claim. Kelley v. 

Myler, 149 F.3d 641, 646 (7th Cir. 1998) (“An essential predicate to any § 1983 claim for 

unlawful arrest is the absence of probable cause.”). Similarly, there is no Fourth Amendment 

claim for an alleged unlawful pre-trial detention if probable cause exists for the detention. 

Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018) (“there is a constitutional right not to 

be held in custody without probable cause”). Under Illinois law, the Plaintiff must prove the 

absence of probable cause in order to succeed on a claim for malicious prosecution. Swick v. 

Liautaud, 169 Ill.2d 504, 662 N.E.2d 1238, 1242 (1996) (identifying the absences of probable 

cause as a requisite element of a malicious prosecution claim). Finally, the Plaintiff’s claims for 
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willful and wanton conduct rely on the Plaintiff’s allegation that the Plaintiff was arrested, 

charged and faced criminal charges without probable cause because Gualandri fabricated 

evidence against her. Exh. A at p. 8-9. Specifically, the Complaint alleges that “Gualandri 

falsely reported that the Plaintiff had confessed to accepting payment for time she did not 

work.” Exh. A at ¶ 24. The allegations of the Plaintiff’s complaint and the documents that this 

Count can take judicial notice of both establish that probable cause existed to support the 

Plaintiff’s arrest, and the Plaintiff’s Complaint must be dismissed with prejudice. 

A. The Factual Allegations of the Complaint Establish Probable Cause Existed to 

Charge the Plaintiff With Official Misconduct, Theft and/or Conspiracy

The Plaintiff’s federal constitutional claims against Gualandri rest on her allegation that 

Gualandri provided false testimony during the grand jury proceedings and that she was indicted 

and subjected to prosecution as a result of those statements. The Complaint alleges that 

Gualandri “testified before a grand jury and, upon information and belief, falsely stated that both 

deputy auditors had confessed to accepting money that they did not earn.” Exh. A at ¶ 27. The 

Complaint alleges that “[d]ue to Defendant Gualandri’s false testimony, the Plaintiff was 

indicated on felony charges of theft, official misconduct and conspiracy.” Id. at ¶ 28. 

The indictments which formed the basis of the criminal charges were based solely on the 

acceptance of overtime pay that was not earned by the Plaintiff. Exh. A at ¶ 27-29; see also 

Indictments attached as Exhibit B.

1

 In her Complaint, the Plaintiff admits that she received 

payment for overtime that she did not earn. Specifically, she pleads “[d]espite having worked 

 

1 This Honorable Court may take judicial notice of matters of public record without converting a 12(b)(6) motion 

into a motion for summary judgment. Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). Further, 

Plaintiff refers the criminal charges in the Complaint, and they are central to her claims, and therefore, this Court 

may consider this document. Venture Assocs. Corp. v .Zenith Data Sys. Corp. 987 F.2d 429, 431 (7th Cir. 1993). 

Further, Plaintiff refers to her conditions of bond, which are central to her 4th Amendment claim as is the dismissal 

order related to the criminal charges of her case. As such, the public court documents addressing these issues may be 

considered by the Court. Venture Assocs. Corp. v. Zenith Data Sys. Corp. 987 F.2d 429, 431 (7th Cir. 1993).
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most of the overtime hours for which she was paid, Plaintiff agreed to pay back all overtime to 

get her position back.” Id. at ¶ 35. The corollary to this allegation, and a reasonable inference to 

be derived from this allegation, is that there were at least some overtime hours for which the 

Plaintiff was paid that she did not earn. The allegations of the Plaintiff’s complaint admit her 

guilt to accepting payment for overtime for hours that she did not work. 

When a plaintiff pleads guilty to a criminal charge, she admits that there was probable 

cause for that charge. Gray v. Burke, 466 F. Supp. 2d 991, 997 (N.D. Ill. 2006), citing Shkrobut 

v. Chicago, 2005 WL 2787277, *2 (N.D. Ill. 2005) (“A criminal conviction based upon a guilty 

plea conclusively establishes for purposes of a subsequent civil proceeding that the defendant 

engaged in the criminal act for which he was convicted”); Appley v. West, 832 F.2d 1021, 1026 

(7th Cir. 1987) (“In this Circuit, a criminal conviction based upon a guilty plea conclusively 

establishes for purposes of a subsequent civil proceeding that the defendant engaged in the 

criminal act for which he was convicted”) (citations omitted). Just as a guilty plea admits that 

there was probable cause for the charge, so too the Plaintiff’s admissions in her complaint 

establish that probable cause existed. Jackson v. Marion Cty., 66 F.3d 151, 153–54 (7th Cir. 

1995) (allegations in a complaint are “binding admissions” that “can of course admit the admitter 

to the exit from the federal courthouse”). The Complaint alleges that the Plaintiff “most of the 

overtime hours for which she was paid.” Exh. A at ¶ 35. Her binding admission establishes that 

she did not work at least some of the overtime hours for which received payment. The Plaintiff’s 

allegation that she was guilty of accepting unearned overtime, but not to the extent alleged in the 

criminal proceedings, is an admission that probable cause existed for charges of theft, official 

misconduct and conspiracy, which were exclusively based on her receipt of unearned overtime. 

The Plaintiff’s admission that probable cause existed defeats the Fourth Amendment claims 
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alleged in Counts I and II, the malicious prosecution claim alleged in Count IIII and the willful 

and wanton claim alleged in Count IV, and these claims must be dismissed.

Moreover, the existence of probable cause entitles Gualandri to qualified immunity, “an 

additional layer of protection against civil liability.” Hughes v. Meyer, 880 F.2d at 867, 970 (7th

Cir. 1989). Police officers performing discretionary functions “enjoy qualified immunity from 

suit unless it would have been clear to a reasonable police officer that, given the situation she 

confronted, her conduct violated a constitutional right.” Pourghoraishi v. Flying J, 449 F.3d 751, 

761 (7th Cir. 2006). Qualified immunity shields officers who correctly determine that probable 

cause exists, and also those who “reasonably but mistakenly conclude that it does.” Spiegel v. 

Cortese, 196 F.3d 717, 723 (7th Cir. 1999). If there is no merit to plaintiff's constitutional claim, 

then courts are not required to inquire as to whether the purported right was clearly established at 

the time of the alleged violation. Pourghoraishi, 449 F.3d at 761. Plaintiff has a clearly 

established right to not be arrested without probable cause, but by admitting in the allegations of 

her complaint that she accepted overtime pay that she did not rightfully earn, she admitted to the 

existence of probable cause. Appley, 832 F.2d at 1026. Thus, qualified immunity bars the 

Fourth Amendment claims alleged in the Complaint and Counts I and II must be dismissed. 

B. The Plaintiff’s Criminal Trial Testimony Establishes That the Plaintiff Engaged in 

Official Misconduct, Theft, and/or Conspiracy

In deciding a motion to dismiss, the Court may “take judicial notice of documents that are 

part of the public record, including pleadings, orders, and transcripts.” Scherr v. Marriott Int'l, 

Inc., 703 F.3d 1069, 1073 (7th Cir. 2013); see also Philips Med. Sys. Int'l, B.V. v. Bruetman, 982 

F.2d 211, 215 (7th Cir. 1992) (there is a “longstanding rule” that courts will “make exceptions” 

to the rule against judicially noticing new evidence “where the new evidence is of a ‘proceeding[ 

] in other courts, both within and outside of the federal judicial system,’ ” so long as “the 
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proceedings have a direct relation to matters at issue”). During the course of her criminal trial, 

the Plaintiff offered testimony which conclusively established that she accepted payment for

overtime that she did not earn. Further, during the trial, the Plaintiff admitted that she told 

Gualandri that she accepted overtime that she did not earn. The Plaintiff’s admissions, which are 

part of the public record, are properly considered by this Court, and establish that she is not 

entitled to relief on her claims against Gualandri, and the Complaint must be dismissed. 

During the course of her criminal trial, the Plaintiff testified on her own behalf. See 

Criminal Trial Testimony of August 13, 2019, attached as Exhibit C. During the direct and 

cross-examination, the Plaintiff offered testimony that is in direct contravention to the allegation 

of her complaint that she did not tell Gualandri that she was aware that she received unearned 

overtime. As an initial matter, the Plaintiff testified unequivocally that she did not dispute that 

she received overtime that she did not earn. Id. at 25. (“Q: you’re not disputing the fact that you 

were paid overtime that you didn’t work for, correct? A: That’s correct”). Further, the Plaintiff 

testified that she advised Gualandri that she knew that she was paid overtime that she did not 

earn. Id. at 26. (“Q: And your best estimate to Captain Gualandri and Captain Kessinger was 

that, of the timesheets he showed you, about half of that overtime was not actually earned by 

you, correct? A. That was my best guesstimate at the time. I did not go time sheet by time sheet 

at that time’). During her conversation with Gualandri, the Plaintiff testified that she offered to 

pay back the unearned overtime. Id. at 31-32. (“Q. When you talked to Captain Gualandri, did 

you offer to pay the money back? A. Yes, I did.”). The Plaintiff further testified that she was 

aware that she had been paid this overtime and that she did not report that she received the same. 

Id. at 7. (“Q. In December of 2017, did you understand . . . that there was a potential of you 

having extra overtime on your timesheet that you did not work? A. No. Q: When did that come 
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to your attention? A. Around June of 2018. . . . Q: What, if any, action did you take as a result of 

that information? A. I didn’t take any action”). 

The Plaintiff’s testimony in which she admitted that she told Gualandri that she did not 

earn approximately 50% of the overtime she was paid establishes that there was probable cause 

to believe that the Plaintiff committed theft and official misconduct. The Plaintiff was charged 

with theft of government property in violation of 720 ILCS 5/16-(a)(1) based on her receipt of 

overtime pay she did not receive. Exh. B at 2. To prove a claim of theft, the state must prove 

that the criminal defendant was not the owner of the property in question; that the defendant 

knowingly obtained control over the property; that the defendant obtained control over such 

circumstances as would reasonably induce her to believe that the property was stolen; and that 

the defendant intended to deprive the owner permanently of the use or benefit of the property. 

Ill. Pattern Criminal Jury Inst. 13.24. A charge of official misconduct arising from the receipt of 

government funds requires the additional element that the defendant was a public official. 

People v. Kotero, 2012 IL. App. (1st) 100951 at ¶ 21, 978 N.E.2d 315 (2012). Based on the 

admissions contained in the Plaintiff’s criminal trial testimony, there can be no doubt that 

probable cause existed to bring criminal charges against the Plaintiff for theft. “[Probable] cause 

exists where the facts and circumstances within [the officers'] knowledge and of which they had 

reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable 

caution in the belief that an offense has been or is being committed.” Brinegar v. United States, 

338 U.S. 160, 175–76 (1949). Prior to the commencement of criminal charges, the Plaintiff 

admitted to Gualandri that she was in receipt of overtime she had not earned. The information 

provided to Gualandri further established that the Plaintiff made no attempt to return the 

unearned money that she was aware that she had been paid, indicating that she intended to 
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permanently deny the County of its property. Because the Plaintiff’s criminal trial testimony 

clearly establishes that probable cause existed to charge the Plaintiff with theft and official 

misconduct, the Plaintiff is not entitled to the relief sought in her Complaint and it must be 

dismissed. 

II. THE PLAINTIFF’S FOURTH AMENDMENT CLAIMS ARISING FROM 

HER ALLEGED INDICTMENT AND ARREST WITHOUT PROBABLE 

CAUSE CONTAINED IN COUNT I ARE NOT ACTIONABLE

In Count I of the Complaint, the Plaintiff alleges that she was arrested and subject to 

indictment without probable cause. Exh. A at ¶ 39-41. The Fourth Amendment claim is based 

on the alleged arrest and issuance of an indictment without probable cause. Id. at ¶ 41. The 

Complaint does not allege that Gualandri arrested her. Instead, the Complaint alleges that the 

Plaintiff was turned herself into authorities and that she was released on bond. Id. at ¶ 30. 

A. The Plaintiff’s Fourth Amendment Claim Arising From The Alleged Arrest of The 

Plaintiff Must Be Dismissed Because There Is No Allegation Gualandri Was 

Personally Involved In Detaining the Plaintiff

The Complaint alleges that “the Plaintiff was caused to be arrested. . .” based on the 

indictment. Exh. A at ¶ 39. The Complaint further alleges that “upon being informed of the 

indictment, Plaintiff turned herself in and subsequently released on bond [sic].” Id. at ¶ 30. 

Based on the allegations of the Complaint, the Plaintiff was not subjected to an arrest by 

Gualandri. Instead, she was subjected to booking following the issuance of an indictment. Id. 

However, there is no allegation that Gualandri was personally involved in the booking process. 

“A damages suit under § 1983 requires that a defendant be personally involved in the alleged 

constitutional deprivation.” Matz v. Klotka, 769 F.3d 517, 528 (7th Cir. 2014), citing Minix v. 

Canarecci, 597 F.3d 824, 833 (7th Cir. 2010) (“[I]ndividual liability under § 1983 requires 

‘personal involvement in the alleged constitutional deprivation’”) (quoting Palmer v. Marion 
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Cty., 327 F.3d 588, 594 (7th Cir. 2003)). Because there is no allegation that Gualandri was 

personally involved in an arrest, detention, booking, or any other physical restraint of the 

Plaintiff, the Plaintiff’s Fourth Amendment claim must be dismissed.

B. The Plaintiff’s Fourth Amendment Claim Arising From An Alleged Prosecution 

Without Probable Cause Is Not Cognizable

The Plaintiff’s Fourth Amendment claim alleged in Count I is based, in part, on her 

alleged indictment and prosecution without probable cause. Exh. A at ¶ 39-42. Gualandri is 

entitled to dismissal of this aspect of the Fourth Amendment claim because the Plaintiff is not 

entitled to relief on this claim. “[T]here is no such thing as a constitutional right not to be 

prosecuted without probable cause.” Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013); 

Manuel v. City of Joliet, Illinois, 903 F.3d 667, 670 (7th Cir. 2018). There is only a constitutional 

right not to be held in custody without probable cause. Manuel, 903 F.3d at 670. In Manuel, the 

plaintiff sued police officers after he was arrested for possession of a controlled substance. Id. at 

668. After being detained for 47 days, the charges were dismissed after the prosecutor 

determined that the pills the plaintiff was carrying were legal. Id. The Court determined that the 

Plaintiff could not pursue a claim against the officers for pursuing the prosecution without 

probable cause because the Fourth Amendment did not permit such a claim. Id. at 670. 

Likewise, in this case, the Plaintiff is not entitled to relief on her Fourth Amendment 

claim which arises out of the alleged prosecution without probable cause. The Fourth 

Amendment does not protect against prosecutions without probable cause. Id. As such, the 

Plaintiff’s claim that her Fourth Amendment rights were violated by virtue of the alleged 

criminal prosecution without probable cause is without merit, and Count I must be dismissed. 

C. To The Extent Plaintiff Is Attempting to Allege A Fourth Amendment Malicious 

Prosecution Claim In Count I, This Claim Must Also Be Dismissed
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In Count I, Plaintiff’s Complaint maintains that she is seeking recovery for a “false 

arrest.” Exh. A at Count I. However, where, as here, a complaint alleges that police officers 

“fabricated evidence during the investigation, which in turn was used to indict and arrest the 

plaintiffs without probable cause,” the complaint does not allege a false arrest claim. Bianchi v. 

McQueen, 818 F.3d 309, 321 (7th Cir. 2016) (“The problem with this [false arrest] claim is that 

it is not actually one for false arrest. . . .”). A “false arrest is detention without legal process.” 

Id. (emphasis in original, internal quotations omitted). Where a plaintiff alleges she was arrested 

“after and as a consequence of formal legal process,” the claim is one for malicious prosecution. 

Id. Applying this reasoning, in Bianchi, the court found that the plaintiff failed to state a claim 

for false arrest where the complaint alleged that fabricated evidence was presented to the grand 

jury to obtain an indictment and the indictment led to the issuance of arrest warrants. Id. at 322. 

Instead, the court found that the allegation that an arrest occurred pursuant to form legal process 

stated a claim for malicious prosecution rather than false arrest. Id. 

As in Bianchi, the Plaintiff alleges that she was indicated based on allegedly false 

information presented during a formal legal process and that she was subsequently subjected to 

prosecution. Exh. A at ¶ 28-34. The Complaint fails to state a false arrest claim because it is 

alleged that the Plaintiff was arrested after and as a consequence of formal legal process, which 

included the presentation of evidence before a grand jury. The Complaint fails to state a false 

arrest claim because there is no allegation that the alleged arrest occurred prior to the initiation of 

legal process. Under these circumstances, the Plaintiff has alleged only a malicious prosecution 

claim and has not alleged any claim for relief which implicates the Fourth Amendment, and her 

false arrest claim alleged in Count I must be dismissed. 
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III. COUNT II MUST BE DISMISSED BECAUSE THE COMPLAINT DOES NOT 

ALLEGE A VIOLATION OF THE FOURTH AMENDMENT ARISING 

FROM THE IMPOSITION OF BOND CONDITIONS

In Count II, the Plaintiff alleges that an indictment was issued as a result of Gualandri’s 

allegedly false grand jury testimony. Exh. A at ¶ 44. The complaint alleges that the Plaintiff was 

taken into custody and placed on bond as a result of this alleged testimony. Id. at ¶ 45. The 

Complaint alleges that the Plaintiff was subjected to a Fourth Amendment violation because the 

conditions of her bond restricted her liberty interests. Id. at ¶ 46.

A. The Plaintiff’s Claim Related to Bond Conditions Do Not Implicate the Fourth 

Amendment

The Complaint does not identify the conditions of the Plaintiff’s bond. However, the bail 

bond, of which this Court may take judicial notice, requires that the Plaintiff pay $1,000 bond, 

that she not leave the state, and that she appear in court as ordered. See Bail Bond attached as

Exhibit D. These bond conditions are consistent with Illinois statutes. 725 ILCS 5/110-10. The 

Seventh Circuit has rejected the notion that these bond conditions implicate the Fourth 

Amendment. Specifically, the Seventh Circuit has determined that construing these bond 

conditions as a Fourth Amendment seizure would fundamentally alter the understanding and 

structure of the pretrial system. Bielanski v. Cty. of Kane, 550 F.3d 632, 642 (7th Cir. 2008) (“To 

hold otherwise would transform every traffic ticket and jury summons into a potential § 1983 

claim.”); see also Mitchell, 912 F.3d at 1017 (“We have misgivings about construing a simple 

obligation to appear in court—a uniform condition of any pretrial release—as a ‘seizure’ for 

Fourth Amendment purposes.”); Smith v. City of Chicago, No. 18 C 4918, 2019 WL 4242503, at 

*2 (N.D. Ill. Sept. 6, 2019) (rejecting a Fourth Amendment claim related to these bail 

conditions); Allen v. Utreras, No. 17 C 2144, 2018 WL 8261309, at *1 (N.D. Ill. Nov. 9, 2018)
13

(citations omitted) (“the Seventh Circuit was not concerned with the lesser freedom restrictions 

imposed on a person released on his own recognizance, but specifically with detention itself.”)

Routine conditions of bail do not rise to the level of a Fourth Amendment violation. 

Instead, conditions of pretrial release must “impose significant restrictions on liberty” before 

they implicate the Fourth Amendment. Mitchell, 912 F.3d at 1016 (emphasis added). Monthly 

court hearings at which a criminal suspect is required to appear and asking for permission to 

leave the state fall far short of that benchmark. Spring-Weber v. City of Chicago, 2018 WL 

4616357, at *12 (N.D. Ill. Sept. 26, 2018) (“Nor is there a seizure every time the government 

compels a person to be in a particular place. For instance, service of a summons to appear in 

court—even though it is backed by a court’s power to hold the recipient in contempt and 

imprison her if she does not comply—does not amount to a seizure within the meaning of the 

Fourth Amendment.”). “When minor and routine restrictions limit a person’s liberty, seizure 

concerns are simply not implicated. Instead, the primary focus is on physical detention or 

restrictions that are similarly severe.” Allen, 2018 WL 8261309, at *1 (N.D. Ill. Nov. 9, 2018).

Similarly, the Plaintiff’s allegation that her liberty interests were implicated by the 

conditions of bond imposed by virtue of the criminal proceedings do not rise to the level of a 

Fourth Amendment violation. The Plaintiff was booked and released on bond, and the 

conditions of her bond clearly demonstrate that the conditions to which she was subjected do not 

implicate the Fourth Amendment. Exh. D. Because the Plaintiff’s conditions of bond did not 

rise to the level of a physical detention or any other restriction of her liberty to a similar degree, 

the Plaintiff is not entitled to relief on her Fourth Amendment claim arising out of her bond 

conditions, and Count II must be dismissed.

B. If The Plaintiff’s Claim Arising From Her Bond Conditions Implicate the Fourth 

Amendment, The Defendants Are Entitled to Qualified Immunity on Her Claim
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Even if this claim were cognizable as a Fourth Amendment violation, which is denied, 

Gualandri is entitled to qualified immunity because the Plaintiff immediately posted bonded and 

was released. In Bianchi, the Plaintiff alleged that she was subjected to prosecution based on 

falsified evidence. Bianchi v. McQueen, 818 F.3d 309, 315 (7th Cir. 2016). The Plaintiff 

alleged that falsified evidence was presented to the grand jury in order to obtain indictments 

against her. Id. The Plaintiff alleged that she was arrested and released on bond. Id. The 

Seventh Circuit determined that the investigators who allegedly provided the false testimony 

were entitled to qualified immunity. Id. at 323. In support of this, the Court determined that 

“[b]ecause the plaintiffs were immediately released on bond and were neither seized nor 

detained, they suffered no Fourth Amendment injury” and found that qualified immunity barred 

the claim against the officers. Id. 

Similarly, Gualandri is entitled to qualified immunity on the Plaintiff’s claim that she was 

subjected to a Fourth Amendment violation as a result of the charges brought against her. The 

Plaintiff alleges that she was arrested as a result of Gualandri’s actions. Exh. A at ¶ 44. 

However, the records of the LaSalle County Sheriff indicate that intake occurred at 16:00 and 

that she was released on the same day at 16:15. Sheriff’s Booking Record attached as Exhibit E. 

These records indicate that the Plaintiff was subjected to an “arrest” of approximately 15 minutes

that amounted to being booked. Id. As the Seventh Circuit determined in Bianchi, the Plaintiff’s 

arrest and immediate release on bond demonstrate that the Plaintiff was not subjected to a Fourth 

Amendment violation, and Gualandri is entitled to qualified immunity on the Plaintiff’s Fourth 

Amendment claim. 

IV. THE PLAINTIFF’S MALICIOUS PROSECUTION CLAIM MUST BE 

DISMISSED BECAUSE THE PLAINTIFF IS NOT ENTITLED TO RELIEF 

ON HER CLAIM
15

In Count III, the Plaintiff alleges a malicious prosecution claim based on a prosecution

without probable cause. Exh. A ¶ 53. The Complaint further alleges that the criminal prosecution 

was terminated in a manner indicative of innocence by virtue of the voluntary dismissal of the 

charges by the State’s Attorney. Exh. A at ¶ 35, 57. In order to establish a claim of malicious 

prosecution under Illinois law, the plaintiff must show “(1) the commencement or continuance of 

an original criminal or civil judicial proceeding by the defendant; (2) the termination of the 

proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) 

the presence of malice; and (5) damages resulting to the plaintiff.” Swick v. Liautaud, 169 Ill.2d 

504, 662 N.E.2d 1238, 1242 (1996) (citations omitted). “The absence of any one of these 

elements bars a plaintiff from pursuing the claim.” Id. The Plaintiff is not entitled to relief on 

her claims against Gualandri, and Count III must be dismissed. 

A. The Plaintiff Cannot Establish That There Was No Probable Cause To Bring The 

Charges Against Her

For the reasons stated in part I, supra, the Plaintiff’s admissions contained in the 

Complaint and the Plaintiff’s criminal trial testimony, the Plaintiff cannot establish that an 

absence of probable cause to bring the criminal charges against her. As a result, she is not 

entitled to relief on her malicious prosecution claim, and the Complaint must be dismissed. 

B. The Plaintiff’s Fails To Allege that She Sustained Special Damages

To succeed on her malicious prosecution claim, the Plaintiff must establish that she 

sustained a special injury as a result of the alleged prosecution. The element of special injury has 

been defined as that “injury not necessarily resulting in any and all suits prosecuted to recover 

for like causes of action.” Stopka v. Lesser, 82 Ill.App.3d 323, 325, 402 N.E.2d 781, 783 (1st

Dist. 1980) (citations omitted). Thus, the special injury must be an injury this is “beyond the 
16

anxiety, loss of time, attorney fees, and necessity for defending one's reputation, which are an 

unfortunate incident of many (if not most) lawsuits.” Id. (citations omitted); Howard v. 

Firmand, 378 Ill.App.3d 147, 152, 880 N.E.2d 1139, 1144 (1st Dist. 2007) (citations omitted).

Levin v. King, 271 Ill.App.3d 728, 730, 648 N.E.2d 1108 (1995). An example of special injury 

has been defined as “an arrest or seizure of property or some constructive taking or interference 

with the person or property.” Levin v. King, 271 Ill.App.3d 728, 730-31, 648 N.E.2d 1108 (1st

Dist. 1995). The purpose of a special injury component in a malicious prosecution complaint is 

to “maintain a proper balance between the societal interest in preventing harassing suits and in 

permitting the honest assertion of rights in our court rooms.” Cult Awareness Network v. Church 

of Scientology International, 177 Ill.2d 267, 284, 685 N.E.2d 1347 (1997).

The Plaintiff’s Complaint fails to plead she sustained any special damages as a result of 

the criminal prosecution as required under Illinois law. The Complaint pleads that the Plaintiff 

was required to retain an attorney, pay bond, and that she suffered unspecified “damages of a 

personal and pecuniary nature.” Exh. A at ¶ 59. These allegations are insufficient to establish a 

malicious prosecution claim. The Complaint pleads that the Plaintiff faces criminal charges. To 

the extent that the Plaintiff sustained financial damages by virtue of posting bond or paying an 

attorney, these are the types of damages that are part of the ordinary expense, time, and 

annoyance of defending a criminal prosecution. As a matter of law, these alleged damages fail to 

establish that the Plaintiff sustained special damages as required to sustain a malicious 

prosecution claim, and Count III must be dismissed. 

V. THE WILLFUL AND WANTON CLAIM ALLEGED IN COUNT IV MUST 

BE DISMISSED BECAUSE GUALANDRI IS ENTITLED TO ABSOLUTE 

IMMUNITY ON ANY CLAIMS ARISING FROM HIS GRAND JURY 

TESTIMONY AND BECAUSE THIS CLAIM IS BARRED BY THE STATUTE 

OF LIMITATIONS
17

In Count IV, the Complaint alleges a claim against Gualandri and the City of Ottawa for 

willful and wanton conduct under Illinoi law. Exh. A at p. 8-9. The Complaint alleges that 

Gualandri had a duty to refrain from willful and wanton conduct. Id. at ¶ 62. The Plaintiff’s 

claim must be dismissed because Illinois law does not recognize an independent tort of willful 

and wanton conduct. The Illinois Supreme Court has indicated that there is independent tort

under Illinois law for willful and wanton conduct. Ziarko v. Soo Line R. Co., 161 Ill.2d 267, 641 

N.E.2d 402, 406 (1994) (“There is no separate and independent tort of ‘willful and wanton’ 

misconduct”). However, Illinois recognizes a claim for willful and wanton conduct as a form of 

aggravated negligence. To state such a claim, “a plaintiff must plead ... the basic elements of a 

negligence claim—that the defendant owed a duty to the plaintiff, that the defendant breached 

that duty, and that the breach was a proximate cause of the plaintiff's injury,” as well the 

additional element that the defendant had “either a deliberate intention to harm or a conscious 

disregard for the plaintiff's welfare.” Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs.,

973 N.E.2d 880, 887, 2012 IL 112479, 362 Ill. Dec. 484 (2012) (citations omitted).

Plaintiff’s willful and wanton claim is premised upon Gualandri’s allegedly false grand 

jury testimony that led to the criminal charge against the Plaintiff. Exh. A at ¶ 63. Under Illinois 

law, a witness before a grand jury is entitled to absolute immunity from a lawsuit that is based on 

his testimony. See Barnes v. Martin, 2014 IL App (2d) 140095U, ¶ 57 (2014) (citing Rehberg v. 

Paulk, 132 S.Ct. 1497, 1506 (2012), which applies this rule to suits under 42 U.S.C. § 1983). 

Because Gualandri is entitled to absolute immunity on the Plaintiff’s willful and wanton claim 

arising from his alleged grand jury testimony, Count IV must be dismissed. 

Further, the claim against Gualandri related to his investigation of the Plaintiff and 

preparation of a police report must be dismissed because these claims do not allege negligent 
18

conduct. A willful and wanton claim is a form of aggravated negligence under Illinois law. Jane 

Doe-3, 973 N.E.2d at 887. The Plaintiff’s claim is subject to Illinois’ one year statute of 

limitations against municipal entities and their employees. 745 ILCS 10/8-101. The Complaint 

alleges that Gualandri fabricated evidence against the Plaintiff by conducting an investigation 

and completing a police report that falsely reported Wright’s statements to him. Exh. A at ¶ 22-

28, 62. Based on the allegations of the Complaint all of these actions took place prior to the time 

that the Plaintiff was indicted. Although the date of the indictment is not identified in the 

Complaint, the Plaintiff posted bond on September 27, 2018. Exh. D. Therefore, the Plaintiff’s 

willful and wanton claim arising from this alleged conduct had to be filed on or before 

September 27, 2019, at the latest, to be timely. However, the Plaintiff’s claim was not filed until

July 31, 2020, and her willful and wanton claim arising from Gualandri’s pre-indictment 

investigation of the Plaintiff is untimely, and it must be dismissed. The willful and wanton claim 

arising from Gualandri’s grand jury testimony must also be dismissed on this basis. The 

Plaintiff’s allegation that Gualandri “continued” the criminal investigation of the Plaintiff is 

insufficient to timely state a willful and wanton claim against him because there is no allegation 

in the Complaint which would establish that Gualandri took any action in furtherance of the 

criminal prosecution after he testified before the grand jury. Because the willful and wanton 

claim is untimely, it must be dismissed.

WHEREFORE, the Defendants, DAVID GUALANDRI and the CITY OF OTTAWA, 

respectfully request that Plaintiff’s Complaint be dismissed, with prejudice and that this Court 

award any other relief deemed reasonable.
19

Respectfully submitted, 

DAVID GUALANDRI and THE CITY OF 

OTTAWA

By: /s/ Scott B. Dolezal_____________

One of theur attorneys

Alison M. Harrington

Scott B. Dolezal

Best, Vanderlaan & Harrington

25 E. Washington St., Suite 800

Chicago, IL 60602

(312) 819-1100

(312) 819-8062 (Fax)

CERTIFICATE OF SERVICE

I, the undersigned, state that I caused copies of the foregoing to be served, with 

enclosures referred to thereon, if any, by Electronic filing to the attorney(s) of record at the 

address(es) and/or facsimile number(s) of record from 25 E. Washington St., Suite 800, Chicago, 

IL prior to 5:00 p.m. on September 29, 2020.

/s/ Scott B. Dolezal_________________
Re: Wright v. City of Ottawa, et al.

Court No.: 1:20-cv-04504

BVH File: IML.20273

ATTORNEY SERVICE LIST

Shawn Barnett

Hale & Monico, LLC

53 W. Jackson St., #337

Chicago, IL 60604

(312) 870-6905

Attorney for Plaintiff

Pamela Wright

,