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White v. City of Markham

November 13, 2002


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 3162--James B. Zagel, Judge.

Before Coffey, Manion, and Williams, Circuit Judges.

The opinion of the court was delivered by: Manion, Circuit Judge.


Brian White and his son Quentin McClinton lived in a house owned by Brian's aunt, Claudette Brooks Witcher, under an oral agreement. During a verbal altercation with his aunt, White called the police for assistance. Officer Kenneth Muldrow of the Markham Police Department arrived on the scene and, after determining that Witcher was the owner of the residence, requested that White vacate the premises or face arrest. White and his son left the house and subsequently filed suit against the City of Markham, Officer Muldrow, Markham Chief of Police Eric Lymore and Witcher, alleging that they violated his Fourth Amendment right to be secure against unreasonable seizures, in violation of 42 U.S.C. § 1983. White also asserted state law claims of wrongful eviction and breach of quiet enjoyment. The district court dismissed the claims against the officers under a grant of qualified immunity and granted summary judgment to all defendants, finding that Officer Muldrow's actions were reasonable. White appeals the district court's judgments and we affirm.


In 1999, Brian White and his son Quentin McClinton lived in a home owned by White's aunt, Claudette Witcher. White began living in the house, along with his mother and brothers, in January 1998 after a fire damaged their home. The extended family stayed in Witcher's home under a four-month written lease during the spring of 1998. At the expiration of the lease, White's mother and brothers moved out but White remained and was later joined by his son. They did not have a written lease to stay in the house, but instead had an oral agreement with Witcher, who did not live in the home, that White would perform chores, pay some of the utility bills, and protect the property in return for living there rent-free. They also agreed that White and his son would move out sometime after April 1, 1999 because Witcher was planning on remodeling the home. However, Witcher began to remodel her home prior to April 1. The construction project impacted several areas of the house including areas frequently used by White and his son. Interior walls were knocked out, the ceiling in one room was removed, and at least one wall connecting the interior of the house to the garage had a hole in it covered only by plastic.

On the morning of March 8, 1999, Witcher went to her house and told White and his son that they were no longer welcome to stay. A verbal altercation between the parties ensued and Witcher started throwing their belongings around the house. White called the Markham Police Department for assistance and Officer Kenneth Muldrow responded to the call. When Officer Muldrow arrived, he discovered broken lamps and other personal belongings scattered on the living room floor along with White's shattered fish tank. Witcher and White continued to argue and both asked Officer Muldrow to remove the other from the premises.

Officer Muldrow spoke with both of them about the condition of the house and called a building inspector, but learned that the inspector could not come to the house at that time. Officer Muldrow eventually determined that Witcher was the owner of the property and told White, while placing a hand on White's shoulder, that if he did not leave immediately, he would be arrested. White stated that he did not want to leave, and instead asked Officer Muldrow to talk to Dwight Levert, his attorney. Officer Muldrow declined to speak to Levert and repeated his threat to arrest White if he did not leave the premises. During this time, Witcher continued to yell at White and started throwing his personal belongings out of the house. After repeated threats of arrest, White and McClinton eventually took their personal belongings and left the house. Levert then called Markham Chief of Police Eric Lymore and asked him to intervene in the situation. Chief Lymore spoke to Levert about the situation but declined to intervene, stating that he would talk to Officer Muldrow later in the day to get his version of the events.

In May 1999 White and McClinton (hereinafter "plaintiffs") filed a five-count complaint seeking damages pursuant to 42 U.S.C. § 1983, alleging a deprivation of their rights secured by the Fourth Amendment. They also sought damages for violations of state law including wrongful eviction and breach of quiet enjoyment. The complaint named the City of Markham, Chief Eric Lymore, and police officer Ken Muldrow, as well as their aunt, Claudette Witcher, as defendants. In November 1999, the district court dismissed all state law claims filed against the City, Lymore and Muldrow, and the federal claims against Lymore and Muldrow, finding they were entitled to qualified immunity. The court then granted summary judgment in favor of all defendants in October 2000. White appeals both decisions.


On appeal, the plaintiffs argue that the district court incorrectly ruled that the police officers who seized them were entitled to qualified immunity. They contend that it was well-established in March 1999 that forcing a family out of their home under threat of immediate arrest constituted an unconstitutional seizure under the Fourth Amendment. The plaintiffs also argue that the district court erred in granting the defendants summary judgment because of the existence of contested issues of material fact. Finally they argue that the grant of summary judgment was flawed because it was based upon the erroneous conclusion that a police officer acts lawfully if he participates in an illegal eviction when a property owner requests assistance in expelling non-owner residents.

A. Qualified Immunity

The plaintiffs contend that the district court erred in dismissing the claims against Officer Muldrow and Chief Lymore based on qualified immunity. This court reviews the grant of a motion to dismiss de novo, accepting all of the well-pleaded factual allegations contained in the plaintiff's complaint as true and drawing all inferences in favor of the complainant. See Crenshaw v. Baynerd, 180 F.3d 866, 868 (7th Cir. 1999). We shall affirm the district court's dismissal of the complaint only if it appears beyond doubt that the plaintiffs cannot prove any set of facts that would entitle them to relief. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Crenshaw, 180 F.3d at 868.

The threshold inquiry in a qualified immunity analysis is whether the plaintiff's allegations, if true, establish a constitutional violation. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out based on the plaintiff's allegations, a court should then inquire as to whether the right was clearly established. See id. As the Court explained in Saucier, qualified immunity operates "to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier, 533 U.S. at 206. Thus, for a constitutional right to be clearly established, "its contours 'must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent.' " See Hope v. Pelzer, 122 S.Ct. 2508, 2515 (2002) (internal quotations and citations omitted). Accordingly, in this case we must first determine if, assuming the facts alleged in the complaint are true, Officer Muldrow violated the plaintiffs' Fourth Amendment rights by threatening him with arrest if he did not leave the premises, and if Chief Lymore violated the plaintiffs' rights by failing to intervene in the situation. If so, we ...

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