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February 26, 1991

JAMES E. O'GRADY, Sheriff of Cook County, et al., Defendants

Suzanne B. Conlon, United States District Judge.

The opinion of the court was delivered by: CONLON


 In this action brought pursuant to 42 U.S.C. ยง 1983, plaintiffs William and Rosemary Scott ("the Scotts") sue Cook County Sheriff James O'Grady; Deputy Sheriff Kelvin Branch; Diamond Mortgage Corp. of Illinois d/b/a Diamond Financial Services of Illinois, Inc. ("Diamond"); and Commerce Mortgage Corp. d/b/a Tracy Mortgage Corp. ("Commerce") (collectively, "defendants"). The Scotts claim that defendants violated their constitutional right to due process when defendants evicted the Scotts from the Scotts' rented residence pursuant to a writ of assistance issued by the Circuit Court of Cook County. Defendants move to dismiss the complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6).


 On a motion to dismiss, the court accepts as true all the well-pleaded factual allegations of the complaint and views those allegations in the light most favorable to the plaintiff. Gillman v. Burlington Northern R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989). On February 24, 1986, Commerce filed a mortgage foreclosure action in the Circuit Court of Cook County, Illinois concerning property located at 449 West 61st Street in Chicago ("the property"). Complaint para. 8. On August 22, 1986, Commerce assigned its mortgage interest in the property to Diamond. Id. P 9. On October 31, 1987, the mortgagor of the property, Larry Holder, entered into a lease agreement with plaintiff William Scott. Id. P 10. Under the agreement, Scott rented the first floor and basement apartment units of the property for a two-year period beginning November 4, 1987. Id. At the time Scott executed the lease agreement, Holder failed to inform Scott of the pending foreclosure action concerning the property. Id. P 12.

 On November 10, 1987, the state court entered judgment for foreclosure and sale in favor of Commerce and against Holder and the property. Id. P 13. On January 5, 1988, Commerce purchased the property at a sheriff's sale. Id. P 14. The sale was approved by the Circuit Court of Cook County on January 19, 1988. Id.

 The Scotts moved into their rented units at the property in March 1988. Id. P 15. At that time, the Scotts remained unaware of the foreclosure and sale of the property; they continued to pay Holder monthly rent under the lease agreement. Id. On July 20, 1988, Commerce received a sheriff's deed to the property. Id. P 16. On August 23, 1988, Commerce moved for and received from the Cook County Circuit Court a writ of assistance directing the Sheriff of Cook County to accompany Commerce to the property and assist Commerce in obtaining possession of the property. Id. P 17. The writ of assistance authorized the sheriff to use any and all force required in securing Commerce's possession of the property. Id. The Scotts claim that Commerce and/or Diamond knew or should have known that the Scotts were tenants in possession of the property, and that the Scotts had not been named as parties to the foreclosure action. Id. PP 18-19. Nevertheless, the Scotts did not receive notice of the motion for a writ of assistance. Id. P 20. Nor were the Scotts named in the writ of assistance. Id. In addition, in applying for the writ of assistance, Commerce did not inform the Cook County Circuit Court that the Scotts were living at the property. Id. P 21.

 After receiving the writ of assistance, Commerce gave it to the Cook County Sheriff's Department without informing the Scotts of the writ's existence. Id. PP 22-23. On October 11, 1988, Commerce and/or Diamond arrived at the property with Deputy Sheriff Branch and other employees of the Sheriff's Department. Id. 27. Scott informed defendants that he had not been served with any written notice of a court proceeding affecting his tenancy. Id. P 28. Commerce and/or Diamond then directed Deputy Sheriff Branch to immediately and forcibly evict the Scotts and their belongings from the property pursuant to the writ of assistance. Id. P 29. Many of the Scotts' personal belongings were damaged or lost when the sheriff's agents deposited their personal property in the street. Id. PP 29, 31. The Scotts claim that defendants' forcible eviction deprived them of their property without due process of law.


 Generally, the federal system of notice pleading does not favor dismissal for failure to state a claim. Gray v. Dane County, 854 F.2d 179, 182 (7th Cir. 1988). In determining the sufficiency of the complaint, the court must construe pleadings liberally; vagueness or lack of detail are insufficient grounds for dismissal. Fed.R.Civ.P. 8; Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). However, the court need not ignore facts set forth in the complaint that undermine the plaintiffs' claim, nor is the court required to accept the plaintiffs' legal conclusions. American Nurses' Ass'n v. Illinois, 783 F.2d 716, 724 (7th Cir. 1986). Dismissal is proper if it appears beyond doubt that plaintiffs can prove no set of facts in support of their claim that would entitle them to the relief requested. Illinois Health Care Ass'n v. Illinois Dep't of Public Health, 879 F.2d 286, 288 (7th Cir. 1989), citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The defendant bears the burden of establishing the legal insufficiency of the complaint. Yeksigian v. Nappi, 900 F.2d 101, 104-05 (7th Cir. 1990).

 I. Sheriff O'Grady and Deputy Sheriff Branch's Motion to Dismiss

 Sheriff O'Grady and Deputy Sheriff Branch assert several grounds for dismissal under Fed.R.Civ.P. 12(b)(6). The court addresses each theory separately.

 A. Immunity

 O'Grady and Branch contend that they are immune from the Scotts' civil rights action for damages under the doctrine of public official immunity. O'Grady and Branch argue that they are entitled to quasi-judicial absolute immunity or, in the alternative, qualified immunity. However, the immunity defenses asserted by O'Grady and Branch apply only to government officials sued in their personal or individual capacities. Henry v. Farmer City State Bank, 808 F.2d 1228, 1237-38 (7th Cir. 1986). The complaint clearly alleges that O'Grady and Branch are sued in their official capacities as government officials. Complaint paras. 4-5. Because official capacity suits are treated as suits against the governmental entity, "any damage award may be satisfied by looking only to the entity itself, not the official, and the official may not assert any personal immunity defenses." ...

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