Hans C. Kuhn v. THADDEUS GOODLOW , Building Commissioner, City of Markham, in his individual capacity

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1762
H ANS C. K UHN ,
Plaintiff-Appellant,
v.
T HADDEUS G OODLOW ,
Building Commissioner,
City of Markham,
in his individual capacity,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CV 1661—James B. Zagel, Judge .
A RGUED J ANUARY 11, 2012—D ECIDED M AY 2, 2012
Before K ANNE , W ILLIAMS , and H AMILTON , Circuit Judges.
K ANNE , Circuit Judge. Hans Kuhn and a prospective
tenant signed a residential lease at a home for which
Kuhn had not yet obtained a valid certificate of occu-
pancy. As the tenant began moving his belongings into the
house, building inspector Thaddeus Goodlow reminded

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2 No. 11-1762
In Markham, a landlord must obtain a certificate of occupancy 1
before a tenant can take possession of the rental dwelling.
Markham, IL Code § 151.23(A).
Kuhn that all rental property must have a certificate
of occupancy before a tenant can live in the house.
Visibly upset, Kuhn allegedly berated Goodlow in the
presence of Markham police officer, Kenneth Muldrow,
who then arrested Kuhn for disorderly conduct.
Following his conviction, Kuhn brought this suit
claiming he was unlawfully arrested without probable
cause. The district court dismissed Officer Muldrow as
a party early in the proceedings and later granted sum-
mary judgment to Goodlow. We affirm.
I. B ACKGROUND
Hans Kuhn owned residential rental property
on Cyprus Avenue in Markham, Illinois. During the
summer of 2007, Kuhn renovated portions of the
property, including the destruction of a dilapidated
back porch that stood approximately five feet from the
ground. To temporarily prevent anyone from using the
door that opened onto the now-destroyed porch, Kuhn
bolted it shut. As he finished the renovations, but before
he replaced the deck, Kuhn applied for a certificate of
occupancy from the city. On the morning of October 22,1
2007, Thaddeus Goodlow, Markham’s Building Com-
missioner and a city building inspector, met Kuhn to
assess the home’s compliance with the city’s building
code. In a written inspection report, Goodlow reported

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No. 11-1762 3
Despite statements to the contrary in the inspection report, 2
Kuhn claims that Goodlow orally approved his application for
a certificate of occupancy. Kuhn also claims that Goodlow
directed him to the Buildings Department office to pick up
the certificate. We need not resolve this factual dispute
because once Kuhn went to the Buildings Department, he was
unequivocally denied a permit. At no time did Kuhn ever
possess a valid certificate of occupancy for the Cyprus
Avenue property.
that the “Fences/Porches/Decks” portion of the house
did not meet the city’s standards. In the notes section of
the report, Goodlow wrote that the house was “ok for
occupancy except it has no back door or deck.” Based on
the missing deck, Goodlow rejected Kuhn’s application
for a certificate of occupancy permit. But, evidently2
believing that obtaining a certificate was a sure thing,
Kuhn had previously agreed to lease the house to a
tenant who was scheduled to move in later that same day.
That afternoon, Goodlow, with Officer Kenneth Muldrow
in tow, returned to the Cyprus Avenue house. Goodlow
claims that he and Officer Muldrow just happened
to drive by Kuhn’s house after investigating a nearby
water-theft complaint. Although Kuhn calls Goodlow’s
explanation pretextual, the motivation for their visit
is immaterial. The important fact is that once Goodlow
and Officer Muldrow were at the Cyprus Avenue
house, the two men observed Kuhn’s tenant moving
into the house despite Goodlow’s earlier refusal to issue
Kuhn a certificate of occupancy. On arrival, Goodlow
approached the tenant to explain the situation and the

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4 No. 11-1762
tenant quickly called Kuhn. Kuhn then drove to the
house to confront Goodlow.
Kuhn and Goodlow vehemently disagree about what
happened next. Goodlow claims that Kuhn was furious
upon arrival. Kuhn is reported to have said, “call my
lawyer, call my wife,” and “I can buy and sell this city,
I own five pharmacies.” (Goodlow Dep. at 46.) Ac-
cording to Goodlow, Officer Muldrow asked Kuhn
to calm down. (Id.) Kuhn refused, and Officer
Muldrow then placed Kuhn under arrest for disorderly
conduct. (Id. at 47.) At the station house, Kuhn was
given a citation indicating that he had “no occupancy
permit.” As expected, Kuhn disputes Goodlow’s
version of events. Kuhn acknowledges his arrest,
but claims that he was “calm and respectful[]”
while interacting with Officer Muldrow. (Kuhn Aff.
at 5.) Kuhn also offered two witness affidavits to sup-
port this contention. Because Kuhn was acting calmly,
he claims that he could not have been arrested for dis-
orderly conduct, and thus, he could have only been
arrested for failing to obtain the required certificate
of occupancy.
On November 10, 2007, Kuhn appeared at some type
of judicial proceeding—the parties suggest it was before
a Markham municipal court—where Kuhn was con-
victed and agreed to pay a fine. But inexplicably, neither
party can locate a record of the actual judgment
rendered against Kuhn. Nevertheless, Kuhn now con-
cedes that he was convicted of disorderly conduct, and
the record certainly supports that theory. For example,

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No. 11-1762 5
Goodlow testified at Kuhn’s hearing that Kuhn was out
of control and that “[h]e went ballistic” (Goodlow Dep.
at 61), which of course suggests that he was charged
and convicted of disorderly conduct. We also have
Officer Muldrow’s police report, which was completed
on the same day as Kuhn’s arrest. In the report,
Officer Muldrow notes that Kuhn was arrested for dis-
orderly conduct. He goes on to write that Kuhn “be-
came irate and began yelling and refused to obey any
of [Officer Muldrow’s] verbal commands” after being
told that he was in violation of a city ordinance. The
police report concludes by noting that Kuhn was also
given “a citation under ordinance number 151.23”—the
Markham city ordinance requiring landlords to obtain
a certificate of occupancy for all rental property.
In March 2008, Kuhn filed a three-count complaint
against Goodlow and Officer Muldrow. Under 42 U.S.C.
§ 1983, Kuhn first claims that Officer Muldrow, acting
at the direction of Goodlow, violated his Fourth Amend-
ment rights by arresting him without probable cause.
Kuhn also asserts two state-law claims against both
men, claiming that he was falsely imprisoned and
falsely arrested, again on the ground that there was no
probable cause for his arrest. In August 2008, the
district court dismissed the entire complaint against
both defendants without prejudice. Kuhn filed an
amended complaint in September 2008, essentially
making the same three allegations against both Goodlow
and Officer Muldrow. In November 2008, the district
court dismissed the amended complaint in its entirety
as to Officer Muldrow, but denied most of Goodlow’s

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6 No. 11-1762
Kuhn does not contest summary judgment on his two state- 3
law allegations. Accordingly, we only consider Kuhn’s appeal
as to Count I of his amended complaint—the § 1983 allegation.
motion to dismiss. Following discovery, the district
court granted Goodlow’s motion for summary judg-
ment on all remaining counts, reasoning that Heck v.
Humphrey, 512 U.S. 477 (1994), bars the § 1983 claim and
collateral estoppel bars the two state-law claims. Kuhn
filed this timely appeal. 3
II. A NALYSIS
Summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). We review grants
of summary judgment de novo, viewing the record in
the light most favorable to Kuhn and drawing all rea-
sonable inferences in his favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Draper v. Martin, 664
F.3d 1110, 1113 (7th Cir. 2011). But, “before a
non-movant can benefit from a favorable view of
the evidence, it must show that there is some genuine
evidentiary dispute.” SMS Demag Aktiengesellschaft v.
Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009).
We will only find that a factual dispute is genuine if a
reasonable jury could find for either party. Stokes v. Bd.
of Educ. of Chicago, 599 F.3d 617, 619 (7th Cir. 2010).
Before proceeding, we want to make clear that unlike
the district court below, we offer no opinion on Heck’s

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No. 11-1762 7
applicability to this case. In Heck, the Court held that state-
prisoner § 1983 actions must be dismissed if a “judg-
ment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence . . . unless
the plaintiff can demonstrate that the conviction or sen-
tence has already been invalidated.” 512 U.S. at 487; see
also Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003)
(“[I]f he makes allegations that are inconsistent with
the conviction’s having been valid, Heck kicks in and
bars his civil suit.”). Here, the district court found that
Heck bars Kuhn from arguing that he behaved calmly
towards Officer Muldrow, because such an argument
necessarily implies the invalidity of his disorderly con-
duct conviction. The district court’s conclusion is both
well-reasoned and persuasive, but the record in this case
is unclear as to the type of judicial proceeding in
which Kuhn took part—neither party could even
produce a copy of the judgment rendered against
Kuhn, although they both suggest it was before a mu-
nicipal court. We have previously reserved judgment
on whether Heck applies to “an administrative pro-
ceeding or a finding of a violation of a city ordinance,”
Justice v. Town of Cicero, 577 F.3d 768, 773 (7th Cir. 2009),
and we continue to reserve judgment until the issue
can be more thoroughly considered from a carefully
maintained record. Despite our departure from the
district court’s reasoning, “we may affirm the judgment
on any basis that is supported by the record before
us.” Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 681
(7th Cir. 2007) (citing Winters v. Fru-Con Inc., 498 F.3d
734, 743 (7th Cir. 2007)); see also Ruth v. Triumph P’ships,
577 F.3d 790, 796 (7th Cir. 2009).

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8 No. 11-1762
With Heck out of the way, we begin by identifying
the one guiding principle that controls this dispute. That
is, § 1983 liability is premised on the wrongdoer’s
personal responsibility. “An individual cannot be held
liable in a § 1983 action unless he caused or participated
in an alleged constitutional deprivation.” Wolf-Lillie v.
Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); see also
Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008);
Townsend v. Fuchs, 522 F.3d 765, 775 (7th Cir.
2008). Here, Kuhn’s personal-liability theory is
grounded in his steadfast belief that he was only
arrested for failing to obtain a certificate of occupancy.
Kuhn contends that because this was the sole basis
for his arrest, Goodlow must have personally directed
Officer Muldrow to make the arrest. Otherwise,
Officer Muldrow would have had no personal
knowledge of Kuhn’s housing-code violation. Goodlow’s
connection to the arrest, according to Kuhn, is enough
to impose personal liability under § 1983. We disagree.
At the outset, Kuhn ignores significant portions of
the record suggesting he was arrested for disorderly
conduct. For example, Kuhn solely and repeatedly
points to his citation—or “arrest citation” as he
erroneously refers to it—as evidence that he was exclu-
sively cited and arrested for failing to obtain a certificate
of occupancy. To Kuhn, this is conclusive proof that
the disorderly conduct charge was added by Goodlow
and Officer Muldrow only after he was arrested. Kuhn is
of course correct in that the citation describes the pro-
hibited act as “no occupancy permit,” but he fails to
mention that Officer Muldrow issued the certificate-of-

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No. 11-1762 9
occupancy citation after Kuhn’s arrest and trip to the
station house. (Muldrow Dep. at 30.) The timing of the
citation suggests that Kuhn was arrested for something
more than simply failing to obtain the certificate. More-
over, this citation is not a record of arrest, and thus,
Kuhn cannot credibly claim that the citation completely
documents the crimes for which he was arrested.
Kuhn also ignores Officer Muldrow’s police report,
completed on the day of the arrest, which plainly
states that Kuhn was arrested for disorderly conduct.
Goodlow’s deposition and testimony at Kuhn’s judicial
hearing corroborate Officer Muldrow’s report. Addi-
tionally, the narrative section of the report indicates
that Kuhn was also issued a citation for failing to obtain
a certificate of occupancy. Thus, the only reasonable
understanding of Kuhn’s arrest is that he was initially
arrested for disorderly conduct and then cited for
failing to obtain a certificate of occupancy.
Kuhn attempts to dispute Goodlow’s evidence by
claiming that the police report is a post-arrest fabrica-
tion. But, there is no evidence in the record to support
this inference, other than Kuhn’s one recycled argu-
ment pointing to the citation as evidence that he was
only arrested for failing to obtain a certificate of occu-
pancy. To create a genuine issue of material fact
needed to survive summary judgment, Kuhn must
dispute Goodlow’s evidence such that a reasonable
jury could find that he was not arrested for disorderly
conduct. See Stokes, 599 F.3d at 622 (“We may reverse
the district court’s grant of summary judgment only

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10 No. 11-1762
if we find that the [non-movant] offered sufficient
evidence to create a genuine dispute of material fact . . . .”).
Even when we draw all justifiable inferences in Kuhn’s
favor, his one argument is simply not enough. Therefore,
we conclude that Goodlow has satisfied his summary-
judgment burden in showing that Kuhn was arrested
for disorderly conduct.
This brings us back to Wolf-Lillie and personal
liability under § 1983. Here, of course, Kuhn argues that
Goodlow must have been directly and personally
involved in Kuhn’s arrest if that arrest occurred solely
because he failed to obtain a certificate of occupancy.
But as the preceding review of the record indicates,
Kuhn was arrested (and then convicted) for disorderly
conduct—a charge that Officer Muldrow personally
observed. It was Officer Muldrow who then made the
arrest; something that Goodlow, as a city building in-
spector, is not authorized to do. There is simply no evi-
dence in the record to suggest a causal connection
or affirmative link between Goodlow and the alleged
false arrest for disorderly conduct. See Wolf-Lillie,
699 F.2d at 869 (“Without a showing of direct responsi-
bility for the improper action, liability will not lie
against a supervisory official. A causal connection, or
an affirmative link, between the misconduct com-
plained of and the official sued is necessary.”). Because
Goodlow had no personal responsibility for Kuhn’s
disorderly conduct arrest, he cannot be held liable
under § 1983.

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No. 11-1762 11
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment in favor of Goodlow.
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