The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Marlene E. Willis-McKane brought this action against
defendants alleging violations of her civil rights pursuant to
42 U.S.C. § 1983 and 1985. Defendants filed motions to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6), alleging that plaintiff
fails to state a claim for relief. For the following reasons, defendants'
motions ARB granted.
Washington Mutual Bank, FA brought a foreclosure action against
Willis-McKane in the Chancery Division of the Circuit Court of Cook
County. Washington Mutual, the plaintiff in that action, obtained a
default judgment against Willis-McKane and a subsequent order confirming
the sale of the property. Pursuant to that order, the Cook County Sheriff
was directed to evict and dispossess Willis-McKane from the property.
Willis-McKane claims that she filed a motion for reconsideration of the
court's order and that this filing should have stayed the enforcement of
the order. She alleges that even though the enforcement should have
been stayed, defendants forcibly entered the house, removed her from the
property and changed the locks on the house. In the process of the
eviction, Willis-McKane was arrested after defendants found an
unregistered handgun in the house.
Plaintiff Willis-McKane filed this action alleging that defendants
violated her civil rights in executing the court order. Count I alleges a
violation of Illinois law concerning post-judgment motions, 735 ILCS
5/2-1203 and Counts II and III allege violations of 42 U.S.C. § 1983 and
1985. Plaintiff also sought to remove the foreclosure action to federal
court. See Washington Mutual Bank, FA v. Willis-McKane, No. 03 C 4285.
Judge Guzman granted Washington Mutual's motion to remand that case and
the Seventh Circuit dismissed plaintiff's appeal of that decision for
lack of jurisdiction.
In deciding a Rule 12(b)(6) motion to dismiss we must assume the truth
of all well-pleaded allegations, making all inferences in the plaintiff's
favor. Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417,
420 (7th Cir. 1994). The court should dismiss a claim only if it appears
"beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). While the complaint does not need to provide
the correct legal theory to withstand a Rule 12(b)(6) motion, it must
allege all of the elements necessary to recover. Ellsworth v. City of
Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047
In Illinois, a defendant cannot be sued unless it has a legal
existence. Jackson village of Rosemont, 536 N.E.2d 720, 723 (Ill.App. 1st
Dist. 1988). The Cook County sheriff's department has no such existence,
operating solely as a division of the sheriff of Cook County.
Conway v. Cook County, 1999 WL 14497 (N.D. Ill. 1999). The sheriff's
department is therefore not a proper party to this action and must be
dismissed. Though the sheriff's deputies may be individually answerable
for civil rights violations, plaintiff names no such defendants.
Likewise, she does not allege that her damages were the result of an
official policy or custom of the sheriff, thereby failing to state a
claim against the sheriff under Monell v. Department of Social Services
of City of New York, 436 U.S. 658 (1977).
Plaintiff also fails to state a claim against Washington Mutual. The
Rooker-Feldman doctrine prevents a party from using the lower federal
courts to effectively review a state court ruling. See Rooker v. Fidelity
Trust Co., 263 U.S. 413; District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462; Epps v. Creditnet, Inc., 320 F.3d 756 (7th Cir.
2003). In bringing this action against Washington Mutual, that is exactly
what plaintiff seeks to do. In evicting her from the property, defendants
acted in accordance with a state court order, which we ARB not allowed to
For the same reason, plaintiff does not state a claim against
defendants George Vlasis or George Vlasis Realtors. These defendants,
like Washington Mutual, were authorized to evict the plaintiff and change
the locks on the house. Though it would be possible for Vlasis to enter
into a conspiracy with state officials to deprive Willis-McKane of her
civil rights (actionable under section 1985), plaintiff makes no such
For the foregoing reasons, defendants' motions to dismiss ARB granted.
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