Marshall Spiegel v. CORRINE MCC LINTIC and VILLAGE OF WILMETTE

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1070
MARSHALL SPIEGEL ,
Plaintiff‐Appellant,
v.
C ORRINE MCC LINTIC and VILLAGE OF WILMETTE ,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 9357 — Sara L. Ellis, Judge.
____________________
A RGUED D ECEMBER 4, 2018 — D ECIDED FEBRUARY 14, 2019
____________________
Before BAUER , KANNE , and BRENNAN, Circuit Judges.
KANNE , Circuit Judge. Marshall Spiegel believes that Cor‐
rine McClintic (and her husband William) have been violating
condominium association rules since the McClintics pur‐
chased a unit in the building where he lives. To document
their perceived violations, Spiegel took to photographing and
filming the McClintics. In response to his less‐than‐subtle sur‐
veillance, Corrine McClintic began filing police reports. Spie‐
gel was not arrested. But members of the Village of Wilmette

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2 No. 18‐1070
Police Department threatened him with arrest for disorderly
conduct if he persists in photographing and videotaping the
McClintics. Spiegel subsequently sued Corrine and the Vil‐
lage of Wilmette. In his second amended complaint—the dis‐
missal of which Spiegel now appeals—he argues that Wil‐
mette and McClintic conspired together to violate his consti‐
tutional rights. He further claims that Corrine intruded upon
his seclusion, in violation of Illinois law, by photographing
the interior of his condominium. Because Spiegel has not
identified a constitutional violation or shown that he suffered
damages from the alleged intrusion upon his seclusion, we
affirm the dismissal.
I. BACKGROUND
We take the well‐pleaded allegations from Spiegel’s sec‐
ond amended complaint as true.1 Marshall Spiegel has lived
in a condominium building in Wilmette, Illinois for 22 years.
In 2015, Corinne and William McClintic bought a unit in the
building. Despite condominium association rules which pro‐
hibit renting out units, the McClintics did so. They do not live
in the building but use the building pool almost daily.
1. Spiegel’s Surveillance of Corrine McClintic
Spiegel explains that, “to protect himself from false allega‐
tions,” he began “documenting violations of the Association’s
1 For reasons explained below, Spiegel’s motion for leave to file a third
amended complaint was untimely. Accordingly, the few additional fac‐
tual allegations Spiegel advances in that proposed complaint are not rele‐
vant to our analysis. Spiegel also makes several new factual assertions in
his brief. Those facts would not change our analysis even if Spiegel had
included them in his complaint.

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No. 18‐1070 3
rules by the McClintics.” Specifically, he began photo‐
graphing and videotaping the couple. His second amended
complaint is interspersed with pictures of the McClintics
around the building. In most of the photos, the person pic‐
tured is looking directly at the camera.
The tensions between Spiegel and the McClintics quickly
escalated. Corrine filed numerous police reports between
June and October 2016. In one report—in June 2016—Corrine
told officers that Spiegel jumped in front of her car and pho‐
tographed her. In response, Wilmette police officers warned
Spiegel against causing further problems. Spiegel told the of‐
ficers that the report contained false allegations and argued
that his conduct did not violate the disorderly conduct ordi‐
nance, but the officers “insisted that Spiegel had broken the
law.” On September 20, 2016, Spiegel videotaped Corrine,
William, and another unit owner talking near the pool. Cor‐
rine reported to the Wilmette police that Spiegel was vide‐
otaping her in her bathing suit (an allegation he denies) and
asked that they arrest him for disorderly conduct. On October
7, 2016, Spiegel documented Corrine McClintic attempting to
evade a process server in front of the condominium building.
Corrine McClintic informed Spiegel that the Wilmette police
had promised to arrest him if he videotaped her again. She
reported the incident.
Spiegel also videotaped Corrine McClintic at a later, un‐
specified Association meeting. Once again, she threatened
Spiegel with arrest if he continued videotaping her. The sec‐
ond amended complaint does not clarify whether McClintic
filed a police report.

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4 No. 18‐1070
2. Corrine McClintic’s Surveillance of Spiegel
Spiegel alleges that Corrine McClintic, not he, is the one
engaged in illegal surveillance. He contends that, between
May 29 and June 4, 2016, she attempted to peer into Spiegel’s
unit on three occasions. He suspects she took pictures. Spiegel
also caught Corrine McClintic “spying” on him by the pool
and near the elevator. Spiegel does not specifically allege that
he reported these incidents to the Wilmette police.
He does assert, however, that “Wilmette police have re‐
fused to act on Spiegel’s claims against residents and others.”
The only specific example he gives in the second amended
complaint involves an altercation at a “recent Association
meeting” where “a resident’s son‐in‐law battered Spiegel in
front of roughly ten people until security guards pulled him
off.” Spiegel reported the incident to Wilmette police, but they
declined to charge the man.
3. Procedural History
Spiegel filed suit against Corrine McClintic, alleging state
law defamation and requesting a declaration that the First
Amendment protected his public videotaping. Two days
later, he filed a first amended complaint which added the Vil‐
lage of Wilmette as a defendant. The district court dismissed
the first amended complaint for lack of subject matter juris‐
diction but granted Spiegel leave to file a second amended
complaint. In that complaint, Spiegel sought relief against
Corrine McClintic and the Village of Wilmette under 42 U.S.C.
§ 1983 and against Corrine McClintic for intrusion upon se‐
clusion under Illinois law. On November 29, 2016, Spiegel
filed a motion for a temporary restraining order or prelimi‐
nary injunction, and the defendants moved to dismiss.

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No. 18‐1070 5
On September 27, 2017, the district court dismissed Spie‐
gel’s claims against McClintic and denied Spiegel’s motion for
a preliminary injunction. On November 7, 2017, after supple‐
mental briefing, the district court dismissed Spiegel’s claim
against Wilmette and entered final judgment.
Approximately one month later, Spiegel filed a combined
motion to vacate the judgment and to file a third amended
complaint. In a text‐only order, the district court denied the
motion to vacate because it presented arguments already con‐
sidered and rejected and denied the motion to amend for the
same reasons articulated in the November 7, 2017, order. Spie‐
gel’s proposed third amended complaint was largely identical
to his second amended complaint, but it offered several addi‐
tional factual allegations and named three Wilmette officers
as defendants. This appeal followed.
II. A NALYSIS
Spiegel frames his suit as one meant to vindicate his con‐
stitutional right to photograph and videotape in public. He
essentially argues that the defendants violated his First
Amendment rights by conspiring to prosecute him for lawful
conduct. We need not reach the question of whether Spiegel
has, in fact, identified a constitutional violation because his
claims suffer from threshold deficiencies.
We review a district court’s dismissal under Rule 12(b)(6)
de novo. LaBella Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937,
941 (7th Cir. 2010). Like the district court, we construe the sec‐
ond amended complaint in a light most favorable to Spiegel.
Id.

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6 No. 18‐1070
1. Spiegel Has Not Stated a § 1983 Claim Against McClintic
The district court properly dismissed Spiegel’s § 1983
claim against Corrine McClintic because she is a private citi‐
zen. “To state a claim for relief in an action brought under
§ 1983, respondents must establish … that the alleged depri‐
vation was committed under color of state law.” Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). The under‐
color‐of‐state‐law element means that § 1983 does not permit
suits based on private conduct, “no matter how discrimina‐
tory or wrongful.” Id. at 50 (citation omitted). But a private
citizen can act under color of law if there is “evidence of a con‐
certed effort between a state actor and that individual.” Fries v.
Helsper, 146 F.3d 452, 457 (7th Cir. 1998). We call this the “con‐
spiracy theory” of § 1983 liability.
Spiegel argues that he can hold Corrine McClintic liable
under § 1983 merely by alleging aid to or encouragement of
state action by McClintic, not an actual conspiracy. That’s in‐
consistent with the clear holding in Fries. “To establish § 1983
liability through a conspiracy theory, a plaintiff must demon‐
strate that: (1) a state official and private individual(s) reached
an understanding to deprive the plaintiff of his constitutional
rights, and (2) those individual(s) were willful participant[s]
in joint activity with the State or its agents.” Id. (internal cita‐
tions omitted). “[M]ere allegations of joint action or a conspir‐
acy do not demonstrate that the defendants acted under color
of state law and are not sufficient to survive a motion to dis‐
miss.” Id. at 458.
Spiegel also argues that an “agreement among all the con‐
spirators is not a necessary element of a civil conspiracy,”
quoting Lenard v. Argento, 699 F.2d 874, 882 (7th Cir. 1983). But

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No. 18‐1070 7
he misquotes Lenard: the court actually stated that “[a]n ex‐
press agreement” is not required. Id. (emphasis added).
With the proper standard established, we attempt to find
a conspiracy within Spiegel’s allegations. Spiegel quotes lan‐
guage in Gramenos v. Jewel Cos., asserting that “[i]f the police
promise to arrest anyone the shopkeeper designates, then the
shopkeeper is exercising the state’s function and is treated as
if he were the state.” 797 F.2d 432, 435 (7th Cir. 1986). But Spie‐
gel doesn’t allege that Wilmette police agreed to arrest Spiegel
if directed to do so by McClintic. The officers clearly retained
full discretion, evidenced by their decision to not arrest Spie‐
gel.
We have repeatedly held that “the mere act of furnishing
information to law enforcement officers” does not constitute
joint activity in an unconstitutional arrest. Butler v. Goldblatt
Bros., 589 F.2d 323, 327 (7th Cir. 1978); see also Kelley v. Myler,
149 F.3d 641, 649 (7th Cir. 1998) (“Bell called the police when
Kelley refused to leave the property after being asked to do so
and then described the situation to the officers; he had no fur‐
ther communication with the officers. Such evidence does not
support her charge that a conspiracy existed to arrest her in
violation of her civil rights.”); Gramenos, 797 F.2d at 435 (con‐
firming that “one who accuses someone else of a crime is [not]
exercising the powers of the state”). In Brokaw v. Mercer Cty.,
we distinguished Gramenos and Butler because “they did not
involve an alleged agreement between the police and the pri‐
vate citizens; rather, the private individuals acted inde‐
pendently from the government in making the police re‐
ports.” 235 F.3d 1000, 1016 (7th Cir. 2000). The difference in
Brokaw was that two private citizens and a deputy sheriff
agreed to work together to remove a child from a home by

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8 No. 18‐1070
filing false allegations of child neglect. Thus, the state actor
intentionally set in motion the seizure of the child, knowing
that the removal was premised on false allegations.
So the mere act of filing false police reports is not actiona‐
ble under § 1983. Spiegel never alleges that the officers were
aware that the reports were false, much less that they had pre‐
viously agreed with McClintic to investigate such false re‐
ports. In fact, it’s unclear whether Corrine McClintic’s reports
contained falsehoods. He summarily alleges that the police re‐
ports involved false allegations, but never identifies them. Ra‐
ther, Spiegel emphasizes that the officers refused to listen to
his explanations for why his conduct was lawful. That’s not
enough to establish a conspiracy.
Because Spiegel has not plausibly alleged a conspiracy be‐
tween McClintic and Wilmette to violate his constitutional
rights, he failed to state a § 1983 claim against McClintic.
2. Spiegel Has Not Stated a Monell Claim Against Wilmette
The district court properly dismissed Spiegel’s claim
against Wilmette because “a municipality cannot be held lia‐
ble solely because it employs a tortfeasor.” Monell v. Depʹt of
Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). Rather,
a municipality can be liable under § 1983 only “when execu‐
tion of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury.” Id. at 694.
We interpret that language as creating three bases for mu‐
nicipal liability: “(1) an express policy that causes a constitu‐
tional deprivation when enforced; (2) a widespread practice
that is so permanent and well‐settled that it constitutes a cus‐

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No. 18‐1070 9
tom or practice; or (3) an allegation that the constitutional in‐
jury was caused by a person with final policymaking author‐
ity.” Estate of Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d 509,
515 (7th Cir. 2007) (citation omitted).
Spiegel argues that Wilmette’s disorderly conduct ordi‐
nance constitutes the express policy of the City. The ordinance
does not expressly criminalize public videography or photog‐
raphy. Wilmette, IL., Code ch. 12‐4.1 (2017) (making it “un‐
lawful for any person to knowingly do any act in such unrea‐
sonable manner as to alarm or disturb another and to provoke
a breach of the peace in the village”). And, given the require‐
ment that the person act in an “unreasonable manner,” the
ordinance does not raise facial constitutional concerns. See
Gower v. Vercler, 377 F.3d 661, 670 (7th Cir. 2004) (explaining
that the materially identical Illinois disorderly conduct statute
does not run afoul of the First Amendment); see also Am. Civil
Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 602 (7th Cir. 2012)
(“[W]hen ‘speech’ and ‘nonspeech’ elements are combined,
and the ‘nonspeech’ element (e.g., prostitution) triggers the
legal sanction, the incidental effect on speech rights will not
normally raise First Amendment concerns.”). Certainly, a per‐
son can photograph and videotape in a sufficiently disruptive
way that it would be not unconstitutional to arrest the indi‐
vidual for disorderly conduct.
Spiegel’s claim is thus about the enforcement of the stat‐
ute, not its facial constitutionality. “[A] written policy that is
facially constitutional, but fails to give detailed guidance that
might have averted a constitutional violation by an employee,
does not itself give rise to municipal liability.” Szabla v. City of
Brooklyn Park., 486 F.3d 385, 392 (8th Cir. 2007) (en banc). Spie‐
gel does not allege that Wilmette anticipated or intended that

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10 No. 18‐1070
the ordinance would be enforced to chill lawful, expressive
conduct like photography. See Christensen v. Park City Mun.
Corp., 554 F.3d 1271, 1280 (10th Cir. 2009) (explaining that en‐
forcement of an ordinance can give rise to Monell liability if
the injury “was caused by a straightforward enforcement of
the ordinances, and not by any additional discretionary ac‐
tions by the officers”).
We do not think Spiegel has plausibly alleged an express
policy by Wilmette to enforce the disorderly conduct ordi‐
nance unconstitutionally. He merely alleges that officers re‐
ceived reports of a disturbance, responded to the reports, and
advised an apparent provocateur to stop his surveillance.
That’s not enough. See Surplus Store & Exch., Inc. v. City of Del‐
phi, 928 F.2d 788, 791 (7th Cir. 1991) (rejecting the argument
that a municipality was liable because it “ha[d] a ‘policy’ of
allowing or instructing its police officers to enforce the chal‐
lenged statutes”).
As for the other bases for Monell liability, Spiegel wisely
declines to argue that they exist. Two visits by officers do not
constitute a widespread policy or practice. And the complaint
makes no mention of any Wilmette officials who might have
policymaking authority.
Spiegel also argues that Wilmette can be held liable be‐
cause the Village “ratified” its officers’ actions. For a munici‐
pality to be liable on a ratification theory, the municipality
“must approve both the employee’s conduct and the basis for
that conduct, i.e., the employee’s motivation.” Waters v. City of
Chicago, 580 F.3d 575, 584 (7th Cir. 2009). Spiegel relies upon
briefing in which Wilmette argued that the threats to arrest
Spiegel did not violate the constitution. But contending that

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No. 18‐1070 11
no constitutional violation occurred is far different from as‐
serting that the actions were appropriate even assuming the
officers intended to chill free speech. Spiegel did not state a
Monell claim against Wilmette.
3. Spiegel Has Not Stated a Claim for Intrusion Upon Seclu‐
sion
Under Illinois law, a plaintiff may sue for an intrusion
upon seclusion. Lawlor v. N. Am. Corp. of Ill., 2012 IL 112530, ¶
34. The cause of actionʹs elements are: “(1) the defendant com‐
mitted an unauthorized intrusion or prying into the plaintiff’s
seclusion; (2) the intrusion would be highly offensive or ob‐
jectionable to a reasonable person; (3) the matter intruded on
was private; and (4) the intrusion caused the plaintiff anguish
and suffering.” Busse v. Motorola, Inc., 813 N.E.2d 1013, 1017
(Ill. App. Ct. 2004). The district court dismissed Spiegel’s
claim after finding that he did not allege damages from the
purported intrusions.
Spiegel argues, simply, that damages for intrusion upon
seclusion are presumed. “Under Illinois law, a plaintiff must
prove actual injury in the form of, for example, medical care,
an inability to sleep or work, or a loss of reputation and integ‐
rity in the community in order to recover damages for torts
such as intrusion upon seclusion. Injury is not presumed.”
Schmidt v. Ameritech Ill., 768 N.E.2d 303, 316 (Ill. App. Ct. 2002)
(citation omitted) (emphasis added); see also McGreal v. AT &
T Corp., 892 F. Supp. 2d 996, 1015 (N.D. Ill. 2012) (collecting
cases in which courts dismissed claims for intrusion upon se‐
clusion for failure to allege damages specifically). Spiegel did
not allege facts to support a required element of his state law
privacy claim.

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12 No. 18‐1070
4. Spiegel’s Remaining Motions
Spiegel also appeals the district court’s denial of his mo‐
tion for a preliminary injunction, motion to vacate the judg‐
ment, and motion for leave to file a third amended complaint.
Because the district court correctly found that Spiegel had not
stated a claim against the defendants, the court properly de‐
nied the motions for injunctive relief and to vacate the judg‐
ment.
The proposed third amended complaint included claims
against three officers. The district court denied the motion to
amend on futility grounds but did not address the addition of
individual officers as defendants. Despite that oversight, the
court properly denied the motion to amend. “When there has
been an entry of final judgment, a complaining party may
amend a complaint pursuant to Rule 15(a) only after that
party has successfully altered or amended the judgment pur‐
suant to Rule 59(e) or the judgment has been vacated pursu‐
ant to Rule 60(b).” Dubicz v. Commonwealth Edison Co., 377 F.3d
787, 790 (7th Cir. 2004). Because the court entered final judg‐
ment and denied Spiegel’s motion to vacate the judgment, the
court had no jurisdiction to consider the motion to amend. Id.
III. CONCLUSION
The district court correctly found that Spiegel did not state
constitutional or state law claims in his second amended com‐
plaint. McClintic did not conspire with Wilmette, and Spiegel
has not identified an express policy by Wilmette that caused
a constitutional deprivation. As to his state law privacy claim,
Illinois law requires that damages be specifically alleged.
AFFIRMED.

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