ADAM HOLM and DANIEL HOLM v. Village of Coal City, et. al

*After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 16, 2009 *
Decided September 16, 2009
Before
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐3639
ADAM HOLM and DANIEL HOLM,
Plaintiffs‐Appellants,
v.
VILLAGE OF COAL CITY, et. al,
Defendants‐Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 05 C 3910
Wayne R. Andersen,
Judge.
O R D E R
This case involves the repeated run‐ins of a father and son with local police over a
motorized scooter, resulting in multiple citations and an arrest for obstruction of a peace
officer. Following these events, Adam Holm and his teenage son Daniel sued the Village of
Coal City, Illinois, and several local police officers, claiming that these defendants had
conspired to violate their constitutional rights, used excessive force while arresting Adam,
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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and illegally seized their scooter. The district court granted summary judgment for the
defendants and we affirm.
One evening in July 2005, a Coal City police officer pulled Adam over for a routine
traffic stop. The officer knew that Adam had an outstanding criminal complaint against
him stemming from his refusal to accept two citations that Coal City police officers had
issued to him and Daniel, following Daniel’s repeated misuse of a motorized scooter (riding
without a license and riding in the road). After he was stopped, Adam promptly called
family friends, who soon arrived and parked their car across the street. A second officer
arrived to assist in the arrest, and together, the officers handcuffed Adam, forcefully took
him by the elbow, and twice pushed him toward the police car.
Three weeks later a Coal City police officer again observed Daniel riding a motorized
scooter on the road without a driver’s license. He therefore impounded the scooter, cited
Daniel for riding without a license, and cited Adam, as the scooter’s owner, for permitting
an unauthorized person to drive the vehicle. Both citations, however, were later dismissed.
The Holms then filed this suit under 42 U.S.C. § 1983, asserting a wide variety of civil
rights claims, and the defendants moved to dismiss the complaint for failure to state a
claim, see FED. R. CIV. P. 12(b)(6). The court dismissed several of the Holms’ claims, ranging
from an alleged violation of substantive due process to illegal seizure of the Holms’ car.
Following the close of discovery, the court ultimately granted summary judgment for the
defendants on the Holms’ remaining claims. Regarding Adam’s claim of excessive force,
the court concluded that the officers’ use of force was objectively reasonable in light of
Adam’s actions and, in any event, he had presented no evidence of a resulting injury. As
for the Holms’ claims of false arrest and illegal seizure of the scooter, the court found that
the officers’ actions in each instance were supported by probable cause. As for the Holms’
claim that the scooter’s impoundment violated their equal protection rights under a
class‐of‐one theory, the court determined that they failed to identify anyone similarly
situated to them who was treated differently. And finally, regarding the Holms’ claims of
conspiracy and municipal liability under Monell v. Department of Social Services, 436 U.S. 658
(1978), the court rejected these as a matter of law because the Holms had not established any
constitutional violations.
On appeal the Holms contend that the district court ignored their version of events
and overlooked unresolved issues of fact regarding their claims of excessive force, illegal
seizure, equal protection, conspiracy, and municipal liability. To survive summary
judgment, they had to present sufficient evidence of a genuine issue of material fact to
counter the defendants’ assertions that they are entitled to judgment as a matter of law. See
FED. R. CIV. P. 56(c); Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); Keri v. Bd. of Trs. of

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No. 08‐3639 Page 3
Purdue Univ., 458 F.3d 620, 627‐28 (7th Cir. 2006). And, as the non‐moving party, the Holms
could no longer rest on the allegations contained in their pleadings but were required to
come forward with specific evidence to establish a genuine issue for trial. See Keri, 458 F.3d
at 628.
Adam Holm first challenges the district court’s ruling on his excessive force claim,
taking issue with the court’s finding that he escalated the situation by calling additional
people to the scene, repeatedly yelling to them, and pausing on his way to the police car.
He contends that he remained calm and cooperative, yelled only out of pain, and did not
intentionally stop. Adam’s characterization of the facts, however, is inconsistent with the
record evidence, and, as our review of the undisputed facts shows, the officers’ use of force
was objectively reasonable. An officer’s right to arrest an individual includes the right to
use some degree of physical force, but as the Fourth Amendment requires, that force must
be objectively reasonable in light of the facts and circumstances of the particular situation.
Graham v. Connor, 490 U.S. 386, 396 (1989); Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir.
2009). Here, Adam’s own deposition testimony shows that as he was escorted to the police
car, he repeatedly yelled across the street to his friends, complained to the officers, and took
a short pause. To guide him to the car, the officers “yanked” his arm, and issued two quick
pushes to his back, and as Adam later testified, it was as if the officer was trying to “keep
me going . . . trying to hurry me up.” In light of these circumstances, the officers’ efforts to
physically “hurry” him to the car, were not unreasonable.
Adam also takes issue with the court’s statement that he presented no evidence of an
injury, pointing to hospital records from a visit shortly after his arrest and his deposition
testimony that he experienced pain for several months in his right rotator cuff and upper
back and neck and continues to have pain in his right arm. As for the records Adam relies
upon to show that he was injured by the officers’ actions, we question their usefulness given
that they document his visit to the emergency room following a subsequent car accident and
contain inadmissible hearsay. See Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007). But
regardless, Adam had to do more than point to an injury or its seriousness; he had to “also
‘identify the specific unreasonable conduct that caused his or her injuries,’” Stainback, 569
F.3d at 772‐73 n.7 (quoting Abdullahi v. City of Madison, 423 F.3d 763, 770‐71 (7th Cir. 2005)),
and this he has not done.
Next the Holms challenge the district court’s conclusion that the defendants’
impoundment of the scooter was supported by probable cause and thus did not violate the
Fourth Amendment’s prohibition against unreasonable interferences with property. See Lee
v. City of Chi., 330 F.3d 456, 460 (7th Cir. 2003). Noting that the scooter citations were later
dismissed, the Holms contend that the officer impounded the scooter without justification.
They further argue that the provision of the Illinois Motor Vehicle Code regulating the

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No. 08‐3639 Page 4
operation of “motorized pedalcycles,” 625 ILL. COMP. STAT . 5/11‐1403.1, was not yet in effect
and therefore, they contend, Daniel could not have broken any law at the time.
The officer’s impoundment of the scooter did not violate the Fourth Amendment.
An impoundment is permissible so long as it is supported by probable cause or is
“consistent with the police role as ‘caretaker’ of the streets,” United States v. Duguay, 93 F.3d
346, 352 (7th Cir. 1996). Although the citations were later dismissed, the officer’s
uncontested testimony was that he stopped Daniel because he believed that Daniel was
violating the general statutory prohibition against driving a motorized vehicle without a
license, see 625 ILL. COMP. STAT . 5/6‐101. Moreover, where, as here, there was no licensed
driver available to remove the vehicle from the public roadway, an officer is authorized to
remove it as part of his “community care‐taking function.” See South Dakota v. Opperman,
428 U.S. 364, 368‐69 (1976); Duguay, 93 F.3d at 354 n.2 (“Impoundment may be appropriate
where no passenger has a valid license.”); United States v. Griffin, 729 F.2d 475, 480 (7th Cir.
1984); see also Davis v. Novy, 433 F.3d 926, 930 (7th Cir. 2006) (noting that “the Illinois Vehicle
Code directs that a driver who is lacking both license and insurance ‘shall have his or her
motor vehicle immediately impounded by the arresting law enforcement officer.’ 625 ILCS
5/6‐101(d).”).
The Holms also contest the district court’s determination that the impoundment of
the scooter did not violate their equal protection rights under a “class‐of‐one” theory. See
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); United States v. Moore, 543
F.3d 891, 896 (7th Cir. 2008). Under that theory, the Holms had to show (1) that they were
intentionally treated differently from others similarly situated, and (2) that there is no
rational basis for that differential treatment, or that the cause of the differential treatment is
the defendants’ illegitimate animus toward them. See McDonald v. Vill. of Winnetka, 371 F.3d
992, 1001 (7th Cir. 2004). The Holms insist that they identified a similarly situated
individual who was treated differently—Samantha Cerda, who was also riding a motorized
scooter when the officer stopped Daniel. But Cerda was not similarly situated because she
was not “prima facie identical in all relevant respects.” Purze v. Vill. of Winthrop Harbor, 286
F.3d 452, 455 (7th Cir. 2002). Unlike Daniel, Cerda had not already received multiple
warnings about driving the scooter in the road or been previously cited for such actions. See
Levenstein v. Salafsky, 414 F.3d 767, 776 (7th Cir. 2005) (rejecting claim by suspended
employee for failing to show that other employees also accused of sexual harassment but
who were not suspended or investigated were identical in all relevant respects).
Finally, the Holms argue that by ignoring their evidence purporting to show that the
defendants violated their constitutional rights, the district court compounded its error by
rejecting their claims of conspiracy and municipal liability. But as the Holms acknowledge,

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a showing of a constitutional violation is needed to recover on either a Monell claim for
municipal liability or a § 1983 claim of conspiracy. See Reynolds v. Jamison, 488 F.3d 756, 764
& n.4 (7th Cir. 2007); Alexander v. City of South Bend, 433 F.3d 550, 557 (7th Cir. 2006). And
they have not successfully established that any constitutional violation occurred.
Accordingly, we AFFIRM the decision of the district court.

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