United States District Court, N.D. Illinois, Eastern Division
August 11, 2004.
UWAKWE AKPULONU, Plaintiff,
NATE McGOWAN, et al., Defendants.
The opinion of the court was delivered by: WILLIAM HART, Senior District Judge
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Uwakwe Akpulonu is Black. He was born in
Nigeria and now lives in Illinois. Plaintiff alleges that he is a
Nigerian citizen, but also that he has resided in the United
States for more than 30 years, which indicates that he is a
permanent resident. On June 12, 2003, plaintiff filed a lawsuit
in the Circuit Court of Cook County, Illinois, naming as
defendants the City of Chicago and Nate McGowan, a Streets and
Sanitation Department Superintendent for the 20th Ward. After
being served with a summons, on June 30, 2003, the City removed
the case to federal court based on the inclusion of federal
claims.*fn1 On November 5, 2003, plaintiff filed his Amended Complaint. He
again named the City and McGowan as defendants, as well as
additional defendants. All the individual defendants are
employees of the City and are named in their individual and
official capacities. Also named as defendants in the Amended
Complaint are Mayor Richard M. Daley; Alderman Arenda Troutman of
the 20th Ward; Chester Mack of the Planning and Development
Department; and Police Officers Vanessa Muhummad and Carl Cuevas.
Plaintiff also named John T., an employee of the Bureau of
Traffic or Department of Streets and Sanitation, but he has not
yet been identified and served. Plaintiff also has not yet
identified or served John Doe members of the Internal Affairs
division of the Police Department. Although not included in the
caption of the complaint, in the body of the complaint plaintiff
refers to E & T Towing Company and four of its drivers as
defendants, but they have not been served. They will not be
considered as defendants. Plaintiff's claims generally revolve
around defendants allegedly improperly removing personal property from real property owned by plaintiff and located at 5941-59
South State Street in Chicago's 20th Ward. All the defendants who
have been fully named and served have moved to dismiss the
Amended Complaint.*fn2 To the extent an argument made by one
defendant applies equally to another defendant, the argument will
be considered as to all defendants for whom it may be applicable.
I. MOTION TO DISMISS STANDARD
On defendants' Rule 12(b)(6) motions to dismiss, plaintiff's
well-pleaded allegations of fact are to be taken as true and all
reasonable inferences are drawn in plaintiff's favor. Leatherman
v. Tarrant County Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 164 (1993); Dixon v. Page, 291 F.3d 485, 486 (7th
Cir. 2002); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir.
1992). A complaint need not set forth all relevant facts or
recite the law; all that is required is a short and plain
statement showing that the party is entitled to relief.
Fed.R.Civ. P. 8(a); Boim v. Quranic Literacy Institute,
291 F.3d 1000, 1008 (7th Cir. 2002); Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). A plaintiff in a suit in
federal court need not plead facts; conclusions may be pleaded as
long as the defendant has at least minimal notice of the claim.
Fed.R. Civ. P. 8(a)(2); Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 512 (2002); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.
2002); Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir.
1995). It is unnecessary to specifically identify the legal basis
for a claim as long as the facts alleged would support relief.
Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir.
2000); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073,
1078 (7th Cir. 1992).
Because plaintiff is proceeding pro se, his complaint must be
construed liberally with plaintiff being held to less stringent
standards than those applied to complaints drafted by attorneys.
Henderson v. Sheahan, 196 F.3d 839, 845-46 (7th Cir. 1999),
cert. denied, 530 U.S. 1244 (2000); Swofford,
969 F.2d at 549. Additionally, consideration is not limited to the complaint;
allegations contained in other court filings, such as plaintiff's
answer to the motion to dismiss and related motions, must be
considered as well. Id. However, in response to a motion to
dismiss that raises the issue, plaintiff must identify the legal
basis for a claim and make adequate legal arguments in support of
it. Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039,
1041-42 (7th Cir. 1999). While a pro se plaintiff is given more leeway as to raising arguments or citing all relevant
precedents, his brief must be sufficient to discern a cogent
argument and he must do more than just generally assert error
without citation to any pertinent authority.*fn3 See
Anderson v. Hardiman, 241 F.3d 544, 545 (7th Cir. 2001);
United States ex rel. Redmond v. Jungwirth, 2003 WL 21960352 *5
(N.D. Ill. Aug. 14, 2003); Rhodes v. Murray's Discount Auto
Stores, 2003 WL 1127615 *5 (N.D. Ill. March 12, 2003).
It is also true that a plaintiff, including a pro se
plaintiff, can plead himself out of court by alleging facts
showing no viable claim. Henderson, 196 F.3d at 846; Jackson,
66 F.3d at 153-54; Tregenza v. Great American Communications
Co., 12 F.3d 717, 718 (7th Cir. 1993), cert. denied,
511 U.S. 1085 (1994); Early v. Bankers Life & Casualty Co., 959 F.2d 75,
79 (7th Cir. 1992). While compliance with a statute of
limitations need not be pleaded in the complaint, the timeliness
of a claim can be raised on a motion to dismiss if the plaintiff
has pleaded facts showing that the claim is untimely. See Tregenza,
12 F.3d at 718; Early, 959 F.2d at 79; United States ex rel.
Bidani v. Lewis, 1999 WL 163053 *4 (N.D. Ill. March 12, 1999).
II. FACTUAL ALLEGATIONS
Liberally construing the Amended Complaint and allegations made
in response to the motions to dismiss, the facts taken as true
for purposes of ruling on the motions to dismiss are as follows.
In 1996, plaintiff purchased three parcels of property located at
5941-59 South State Street in Chicago.*fn4 In 1996,
plaintiff cleaned waste from the properties, fenced in the
properties, and installed two gates and a mailbox. The properties
are alleged to be in a neighborhood that requires security
against burglars and thieves. Besides the fences with locked
gates, plaintiff purchased dogs. Plaintiff then began parking
construction equipment and other vehicles on the property, as
well as trailers in which he stored other personal property that
was intended for resale. From 1996 through 2003, plaintiff also
lived on the property. At the time the personal property was removed in 2003, plaintiff alleges the personal
property included tractors, a pay loader, tow trucks, pick-up
trucks, vans, semi-tractors, automobiles, trailers, compressors,
tools, welding machines, popcorn machines, heaters, concrete mix,
spare parts, clothing, and other marketable goods and items.
Plaintiff's allegations as to the worth of this property varies
from $20,000,000 to $100,000,000.
In 1999, defendants Mayor Daley and Planning and Development
employee Mack made plans for redevelopment that involved
plaintiff's State Street properties. At some point thereafter,
the City obtained tax deeds for the property, but those deeds
were subsequently cancelled on May 22, 2002. Plaintiff does not
allege when the tax deeds were first issued, but it was some date
before March 2001.*fn5 Plaintiff does allege that tax deeds
for two of the State Street parcels were obtained by the City
when it failed to serve plaintiff with notice of the proceedings.
Plaintiff alleges that, in March 2002 in the tax deed
proceedings, he filed motions to dismiss raising federal grounds,
but the City prevented the cases from being removed to federal court. Plaintiff also complains that he filed motions to
vacate the tax deeds and the City failed to respond to those
motions. On the facts alleged, it must be accepted as true that
plaintiff never actually lost control or ownership of the State
Street properties. The tax deed cases were dismissed in their
entirety on September 16, 2002.
Plaintiff alleges that, in December 1999 or January 2000,
defendant Officer Cuevas drove upon the sidewalk and then stopped
in plaintiff's driveway. Cuevas asked plaintiff when he was
leaving the State Street properties. On March 20, 2000, plaintiff
was walking on a sidewalk when Cuevas drove up in his police car
and called plaintiff over to the car. Cuevas accused plaintiff of
having a court case with a "Big Big" police officer. Cuevas then
arrested plaintiff and took him to the police station to issue
him one parking ticket for parking in front of a fire hydrant and
five tickets for moving violations. Plaintiff points out that the
moving violations are inconsistent with the parking violation and
alleges Cuevas falsified the tickets and related police report.
Plaintiff complained to the Police Department's Internal Affairs
Division. On March 6, 2002, a court dismissed all six tickets.
Plaintiff also alleges a January 2001 incident in which Cuevas
issued three moving violations to James Moore even though Moore's car was not moving. This occurred eight days after Moore
failed to agree with Cuevas that plaintiff was a squatter.
On a daily basis during March 2002, Cuevas parked in an alley
behind plaintiff's properties and conducted "illegal
surveillance" of plaintiff.
On June 21, 2002, Mack posted eviction notices on plaintiff's
properties based on tax deeds purportedly recorded in March 2001.
However, the tax deeds had already been vacated in May 2002. It
is alleged that Mack had actual knowledge the deeds had been
vacated. It is generally alleged that all the City defendants had
knowledge the tax deeds had been vacated.
On June 2, 2003, John T. (unserved defendant) told plaintiff
the City was evicting him based on the tax deeds and that
defendant Alderman Troutman wanted the properties back
immediately. Although it was requested that plaintiff meet with
Troutman, he declined to do so.
On June 5, 2003, defendant McGowan, 20th Ward Streets and
Sanitation Superintendent, arrived at the State Street properties
and cut the chains and locks off the gates. He then announced to
the crowd that had gathered that the City owned the properties
under tax deeds, that plaintiff was illegally squatting at the
properties, and that Mack, Troutman, and the City wanted the
properties back. McGowan advised plaintiff that plaintiff did not
own the properties and had only been staying because of McGowan's good graces. McGowan stated that he would get a court
order to evict plaintiff. Plaintiff reminded McGowan, as he
already knew, that plaintiff owned the property and advised
McGowan that he could confirm this with a City attorney.
Plaintiff thereafter spoke to two attorneys in the City's
Corporation Counsel office who confirmed he owned the property
and said they would advise McGowan, Troutman, and Mack of that
fact. McGowan is alleged to have acted at the direction of Daley,
Troutman, and Mack.
After purchasing new locks and chains, plaintiff returned to
his property and discovered that one of his trailers had been
looted and he had lost $110,000.00 worth of property.
On June 11, 2003, John T. was at plaintiff's State Street
properties supervising employees of E. & T. Towing, an agent of
the City. They were removing all of plaintiff's personal property
from the site. Plaintiff spoke to John T. who claimed the City
owned the real property and that he was repossessing it pursuant
to a court order, though he did not actually have such an order.
Plaintiff showed John T. court orders vacating the previously
issued tax deeds, but he refused to acknowledge them. John T. and
the people he was supervising also stopped plaintiff from
removing any of the personal property himself.
After repeated requests from plaintiff, John T. called the
Chicago Police and defendant Officer Muhummad came to the property. Plaintiff showed Muhummad the order vacating the tax
deeds and John T. insisted that the City owned the property, but
could not produce a court order for the eviction that John T.
claimed he had. Muhummad called in a supervisor, but they
eventually decided they could not determine the validity of any
court order and told plaintiff he would have to instead pursue a
Over a period of three days, all of plaintiff's personal
property was removed from the State Street properties. John T.
and E & T Towing performed the removal work. McGowan either was
directly involved in the removal or was personally involved by
instructing John T. or others. It is also alleged that Daley,
Troutman, and Mack were personally involved in directing that the
removal be done and that they had full knowledge of what
Immediately after the personal property was taken, plaintiff
began inquiring as to what happened to it. Troutman falsely told
plaintiff she had no idea and had no involvement in the June 11
events. On June 20, a City Inspector from Troutman's office told
plaintiff he should report the property as stolen. Plaintiff
claims that defendants and other City employees took some of the
personal property for their own personal gain, some items were
crushed on site in June 2003, and, in November 2003, the
remaining property was destroyed. In one of his motions to amend the complaint (Docket Entry
), plaintiff also alleges that McGowan and others in the
Streets and Sanitation Department improperly towed away his 1981
Chevy pickup truck on March 9, 2004 and initially failed to enter
this fact in the City's tracking system. Plaintiff repeatedly
attempted to obtain the return of the truck. After plaintiff
wrote a letter to defendant Daley, Daley ordered that the truck
be returned and it was returned on March 26, 2004. A potential
claim based on this seizure would be against McGowan and the
City. Plaintiff's allegations include that this incident was
motivated by invidious discrimination. It is also alleged in this
motion that plaintiff has a claim against the City for improperly
seizing the same truck from November 4 through 13, 2003. It is
also stated in this motion that plaintiff desires to amend the
complaint to raise his claim for damages to five billion dollars.
Plaintiff alleges that all the named defendants acted
intentionally and that they also acted with a discriminatory
animus because of his race and his Nigerian nationality.
Plaintiff also alleges that all the actions were pursuant to an
official policy or custom of the City. In plaintiff's various
conspiracy allegations, it is alleged that McGowan, Mack, Cuevas,
Troutman, Daley, John T., and the City were members of a
conspiracy or conspiracies involving the seizure of his personal property on June 11, 2004, the destruction of that property, the
attempt to evict plaintiff from the real properties, and the
related court proceedings. Muhummad is not alleged to be a member
of any conspiracy.
The Amended Complaint is broken down into 23 counts,
denominated as follows: (I) A false arrest claim against Cuevas
for arresting plaintiff in March 2000 and falsely issuing the six
tickets. (II) A Fourteenth Amendment claim against Cuevas that is
labeled as "aggravated hate and malice," but which relies on the
factual allegations that Cuevas issued tickets that lacked a
factual basis and also falsified the supporting police reports.
(III) A constitutional claim that Cuevas's March 2000 actions
were motivated by race and nationality discrimination and that he
conspired with other police officers to retaliate against
plaintiff. (IV) A state law "fraud and perjury" claim against
Cuevas based on issuing falsified tickets. (V) A state law claim
against Cuevas that is labeled as "contributory negligence," but
in which plaintiff is alleging that false statements in the
tickets, which plaintiff refers to as defamation, caused
plaintiff to lose a job and be turned down for a California
driver's license. (VI) A Fourth Amendment claim against Cuevas
for the "unconstitutional surveillance" that began in March 2002.
(VII) A state law defamation claim against Cuevas for telling
Moore in January 2001 that plaintiff was a "squatter" on the State Street properties. (VIII) This count is denominated simply
"42 U.S.C. § 1983" and is against the City. In this count
plaintiff alleges that the City encouraged all the actions of
Cuevas claimed in Counts I through VII, by failing to adequately
take action following plaintiff's complaint to the Internal
Affairs Division. (IX) This is a claim against the City that it
is liable for Cuevas's unconstitutional conduct and was aware
that it occurred. (X) This is a claim against defendants,
including the City, for a conspiracy to deprive rights in
violation of 18 U.S.C. § 241 and deprivation of rights under
color of law in violation of 18 U.S.C. § 242 regarding the
seizure of plaintiff's property. (XI) Plaintiff claims the City
discriminated against him and conspired by failing to remove the
tax deed case to federal court. (XII) This is a claim that the
City conspired with the judge who presided over the tax deed
case. (XIII) This is a claim, labeled as "conspiracy & deceit"
and complaining that "defendant" (apparently the City) failed to
file an answer or motion in a state court case filed by
plaintiff. (XIV) This count reincorporates all other allegations
against the City, expressly refers to the City's acts being
deliberately indifferent, and also refers to there having been an
abuse of judicial rules regarding the assignment of plaintiff's
case. (XV) This is a claim against the City for "conspiracy"
based on not being granted a substitution of judge in a state court case. (XVI) This is a state law claim for defamation
against Mack for posting eviction notices on June 21, 2002 which
falsely indicated the City had tax deeds for the State Street
properties. (XVII) This is a claim that Mack conspired with the
City and other defendants in posting the eviction notice and
taking improper actions in state court. (XVIII-XX) These counts
are against John T., who has not been identified or served. These
counts will be dismissed without prejudice. (XXI) This is a
Fourteenth Amendment "aggravated hatred and malice" claim against
McGowan based on cutting the chains and locks on June 5, 2003.
(XXII) This is a state law defamation claim against McGowan based
on his June 5, 2003 statement to the crowd that plaintiff was a
squatter. (XXIII) This is labeled as a "contributory negligence"
claim against McGowan based on cutting the chains and permitting
others to remove $110,000 of plaintiff's property. (XXIV) This is
a conspiracy claim against Troutman in which John T., McGowan,
and Mack are specifically identified as coconspirators.
III. FEDERAL CLAIMS
The federal claims will be considered first. Although plaintiff
has denominated 23 counts for his Amended Complaint, legal
characterizations of a claim that are contained in a complaint
are not binding and limiting. Forseth, 199 F.3d at 368; Bartholet, 953 F.2d at 1078. If the facts alleged
support relief, other legal bases for the claims may be
substituted. Id. Such flexibility is especially appropriate in
a case such as the present one in which the plaintiff is
proceeding pro se. Thus, although the counts that plaintiff has
set forth will be considered, for purposes of ruling on the
motions to dismiss, analysis will not be limited to the
particular characterizations or division of claims denominated in
the Amended Complaint. The heart of plaintiff's Amended Complaint
is the allegation that defendants acted in concert (conspired) to
seize his personal property and attempt to obtain his real
property. First, it will be considered whether the allegations
concerning that central claim state a basis for relief against
any defendant on various legal theories. Thereafter, particular
claims and allegations regarding specific defendants will be
considered. For purposes of ruling on the motions to dismiss, it
must be assumed that plaintiff's allegations are true.
A. June 11, 2003 Seizure and Subsequent Destruction of
Plaintiff's Personal Property
Plaintiff alleges that Daley, Troutman, and Mack agreed to
conspire together to obtain the State Street properties in order
to use them for development. It is also alleged that Cuevas,
McGowan, and John T. joined in the conspiracy. The City is claimed to be a member of the conspiracy as well. E & T Towing
is alleged to have performed under the direction of the
conspirators, but is not alleged to have been a member of the
conspiracy. The allegations do not indicate that Muhummad joined
in the conspiracy. In order to achieve the goal of the
conspiracy, defendants initially harassed plaintiff by issuing
unfounded tickets and arresting him on unfounded charges.
Defendants then used allegedly improper court procedures so that
the City obtained tax deeds for two of the State Street parcels.
Plaintiff, however, was able to vacate the tax deeds.
Nevertheless, defendants continued to harass plaintiff and
contend that he did not own the property. This eventually reached
the point of having McGowan cut the locks off plaintiff's
protective gates, which resulted in some looting of plaintiff's
personal property. Finally, defendants attempted to evict
plaintiff by unlawfully seizing all the personal property that
was stored on the State Street properties, converting some to
personal use and destroying the remainder. It is this last action
that is plaintiff's central complaint.
Defendants contend plaintiff has not adequately alleged a
conspiracy. Defendants contend that a higher level of pleading
applies to conspiracy allegations. However, absent the conspiracy
allegation being adequately intertwined with another allegation
requiring particularized pleading (e.g. fraud), the particularity requirement of Fed.R. Civ. P. 9(b) does not apply
to conspiracy allegations. Lachmund v. ADM Investor Services,
Inc., 191 F.3d 777, 783 (7th Cir. 1999); Hecht v. Commerce
Clearing House, Inc., 897 F.2d 21, 26 n. 4 (2d Cir. 1990);
Guaranty Residential Lending, Inc. v. International Mortgage
Center, Inc., 305 F. Supp. 2d 846, 853-54 (N.D. Ill. 2004).
"[I]t is enough in pleading a conspiracy merely to indicate the
parties, general purposes, and approximate date, so that the
defendant has notice of what he is charged with." Hoskins v.
Poelstra, 320 F.3d 761, 764 (7th Cir. 2003) (quoting Walker v.
Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002)). Accord
Guaranty Residential, 305 F. Supp. 2d at 863. Although the
complaint is not artfully drafted, plaintiff has alleged that all
defendants, except Muhummad, joined in the conspiracy. He has
identified the purpose of the conspiracy, acts pursuant to the
conspiracy, and that the parties acted in concert. Plaintiff has
alleged a conspiracy.
Although a conspiracy is alleged, it is not one that can
support relief under the civil rights statutes. Under the
intracorporate conspiracy doctrine, a conspiracy cannot exist
between members of the same governmental entity nor between the
entity and one of its employees. Payton v. Rush-Presbyterian-St.
Luke's Medical Center, 184 F.3d 623, 632-33 (7th Cir. 1999);
Aida Food & Liquor, Inc. v. City of Chicago, 2004 WL 719663 *10
(N.D. Ill. March 31, 2004); Frazier v. Harris, 266 F. Supp. 2d 853,
870-71 (C.D. Ill. June 10, 2003). There are two exceptions to the
intracorporate conspiracy doctrine, neither of which are
applicable here. One exception is where the corporation or
governmental entity's employees are motivated solely by their
own personal interests. Hartman v. Board of Trustees of
Community College District No. 508, 4 F.3d 465, 470 (7th Cir.
1993); Payton, 184 F.3d at 633 n. 9. That exception is not
applicable to the present case. Although it is alleged that some
defendants used the seized property for their own gain, that is
not alleged to be the sole motivation. Instead, it is alleged
that the goal of the conspiracy was to obtain the real property
for development by the City, which is conduct in furtherance of
the governmental entity's interests. The other exception to the
doctrine is where there is a broad pattern of unconstitutional
conduct that permeates the entity. Hartman, 4 F.3d at 470-71;
Wright v. Illinois Department of Children & Family Services,
40 F.3d 1492, 1508 (7th Cir. 1994). That exception does not apply in
the present case which involves allegations that some employees
of a large municipality, which employs thousands, are attempting
to obtain three parcels of land for the municipality.
Because the allegations of conspiracy do not overcome the
intracorporate conspiracy doctrine, all the federal claims of
conspiracy will be dismissed. Since a conspiracy is essential to any claim under § 1985 or § 1986, all claims under those statutes
will be dismissed. The § 1983 conspiracy allegations are
dismissed, but other claims under § 1983 still must be
considered. It need not be decided whether the intracorporate
conspiracy doctrine applies to 18 U.S.C. § 241, since Count X
will be dismissed in that there is no civil remedy under §§ 241
and 242. Sarelas v. Anagnost, 332 F.2d 111 (7th Cir. 1964);
Moore v. Kamikawa, 940 F. Supp. 260, 265 (D. Haw. 1995), aff'd
by unpublished order, 82 F.3d 423 (9th Cir. 1996). The
intracorporate conspiracy doctrine also applies to preclude
pursuit of any state law conspiracy claims. See Salaymeh v.
InterQual, Inc., 155 Ill. App. 3d 1040, 508 N.E.2d 1155, 1158
(5th Dist. 1987); Hanania v. Loren-Maltese,
319 F. Supp. 2d 814, 836 (N.D. Ill. 2004); EEOC v. Outsourcing Solutions
Inc., 2002 WL 31409584 *17 (N.D. Ill. Oct. 24, 2002).
The § 1983 claims based on personal participation in the June
11, 2003 seizure of the personal property still must be
considered. Although Daley, Troutman, and Mack contend that
plaintiff has not alleged their personal participation, plaintiff
has alleged that they personally participated by directing the
alleged misconduct. It is also alleged that they all had full
knowledge of what occurred, that they all knew plaintiff (not the
City) owned the State Street properties, and that they all acted
with a discriminatory animus. Contrary to the contentions of some defendants, it is sufficient to conclusorily allege that
defendants directed the conduct, had a discriminatory animus, and
had certain knowledge. See Fed.R. Civ. P. 9(b) ("Malice,
intent, knowledge, and other condition of mind of a person may be
averred generally."); Bennett v. Schmidt, 153 F.3d 516, 518
(7th Cir. 1998); Triad Associates, Inc. v. Robinson,
10 F.3d 492, 497 (7th Cir. 1993). Directing the unconstitutional conduct
of underlings, condoning it, or knowingly permitting it to
continue is personal participation that can support supervisory
liability. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.
2001); Chavez v. Illinois States Police, 251 F.3d 612, 651 (7th
Cir. 2001); Anderson v. Cornejo, 284 F. Supp. 2d 1008, 1029
(N.D. Ill. 2003). Plaintiff also alleges McGowan personally
participated in the June 11, 2003 seizure.
Defendants contend that plaintiff's claim regarding the seizure
of his property fails because it is a due process claim and
plaintiff has an adequate postdeprivation remedy. If plaintiff's
seizure claims were indeed limited to being simply due process
claims and being against non-policymaking individuals, that would
likely be true. See Gable v. City of Chicago, 296 F.3d 531,
539-41 (7th Cir. 2002). Plaintiff's claim, however, is not
limited to being a due process claim. Plaintiff also alleges
invidious racial discrimination and his claim is also properly
characterized as a Fourth Amendment claim. Also, it is alleged that the conduct was pursuant to official
policy in that it was ordered by the Mayor of the City.*fn6
The postdeprivation remedy due process rule that is stated in
Parratt v. Taylor, 451 U.S. 527 (1981), Hudson v. Palmer,
468 U.S. 517 (1984), and their progeny is limited to situations where
the due process violation is random and unauthorized, that is,
committed by government employees and not pursuant to official
policy or custom. It does not apply to situations where the
conduct is directed by a policymaking official or is otherwise
pursuant to official policy, custom, or practice. Zinermon v.
Burch, 494 U.S. 113 (1990); Matthiessen v. Board of Education
of North Chicago Community High School District 123,
857 F.2d 404, 407 n. 3 (7th Cir. 1988). As defendants concede, Mayor Daley
is a policymaking official of the City of Chicago. See
65 ILCS 5-1-1-2(2) (a); McGuire v. City of Chicago, 2001 WL 1164129 *9
(N.D. Ill. Sept. 28, 2001); Radic v. Chicago Transit Authority,
878 F. Supp. 1130, 1134 (N.D. Ill. 1995), aff'd, 73 F.3d 159
(7th Cir.), cert. denied, 517 U.S. 1247 (1996). Since plaintiff
alleges that the conduct at issue was directed by Mayor Daley, a constitutional due process claim
is is stated even if plaintiff otherwise had an adequate
Also, plaintiff alleges that defendants' actions in seizing his
property without any adequate legal basis whatsoever was
motivated, at least in part, by plaintiff's race and national
origin. Therefore, plaintiff has stated a substantive due process
claim that involves a violation of a substantive constitutional
right. The existence of an adequate postdeprivation remedy is not
an adequate ground for dismissing such a claim. Gable,
296 F.3d at 541; Wudtke v. Davel, 128 F.3d 1057, 1062-63 (7th Cir.
1997); Doherty v. City of Chicago, 75 F.3d 318, 325-26 (7th
The facts alleged regarding the seizure also state a Fourth
Amendment claim. The Supreme Court has held that municipal
employees participating in the seizure of a person's property
constitutes a seizure protected by the Fourth Amendment. Soldal
v. Cook County, Ill., 506 U.S. 56, 61-70 (1992). To the extent
the seizure was unreasonable, the seizure violates the Fourth
Amendment. Here, the defendants knew plaintiff had the right to
remain on his property and no legal basis existed for attempting
to evict plaintiff from the property. Therefore, defendants'
seizure of plaintiff's personal property was unreasonable and in
violation of the Fourth Amendment. The Parratt postdeprivation rule is limited to due process claims;
it does not apply to Fourth Amendment claims. McCullah v.
Gadert, 344 F.3d 655, 660 (7th Cir. 2003). Plaintiff adequately
alleges a Fourth Amendment claim based on the seizure of his
The individual defendants also contend that they are entitled
to qualified immunity. Having determined that certain claims are
not otherwise subject to dismissal, the remaining qualified
immunity question is whether the right on which the claim is
based was clearly established as of the date of the alleged
misconduct. McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir.
2003). As the case law previously cited shows, prior to June
2003, it was clearly established that the facts alleged support a
procedural due process, substantive due process, equal
protection, and Fourth Amendment claim against the individual
B. Claims Based on Cuevas's Conduct
The federal claims based on Cuevas's conduct are essentially
for false arrest, malicious prosecution, illegal surveillance,
and discrimination based on plaintiff's race and national origin.
The Amended Complaint implies, and plaintiff's answer brief makes
clear, that it is alleged that Cuevas was acting at the direction
of Daley and Mack. Although Mack would not be in a line of
authority that makes him a superior to Cuevas, who is a police
officer, it still must be taken as true that Cuevas was being directed by Mack as well. Since they
directed him to act, it must be taken as true that Daley and Mack
personally participated in Cuevas's conduct and may be held
liable for their supervisory or supervisory-type role. Plaintiff
alleges that Daley and Mack had knowledge of the conduct of
Cuevas and acted with the same intent. To the extent any claims
against Cuevas survive the motion to dismiss, they will also
continue as against Daley and Mack.
Cuevas contends that all the federal claims against him, except
the surveillance claim, are untimely. The statute of limitations
applicable to plaintiff's § 1983 claims is two years. Wiley v.
City of Chicago, 361 F.3d 994, 996 (7th Cir. 2004). No claim was
brought against Cuevas, Daley, or Mack until November 2003.
A civil rights claim generally accrues at the time the wrongful
conduct occurs. However, under Heck v. Humphrey, 512 U.S. 477
(1994), and its progeny, where success on a constitutional claim
would be inconsistent with or undermine the validity of a related
criminal charge or conviction, the claim does not ripen or accrue
until after the criminal charges or conviction have been
dismissed or nullified. Wiley, 361 F.3d at 996. The issue of
arrest without probable cause generally is distinct from the
issue of guilt for the crime. Snodderly v. R.U.F.F. Drug
Enforcement Task Force, 239 F.3d 892, 897 (7th Cir. 2001). Therefore, success on a false arrest claim usually will
not undermine the related criminal charges and a false arrest
claim generally accrues at the time a person is arrested. See
Wiley, 361 F.3d at 996-97. In Wiley, though, it was
recognized that certain successful false arrest claims do
undermine the validity of the related criminal charges. Wiley
involved a false arrest claim in which it was alleged that the
defendant police officers had falsified evidence by planting
illegal drugs on Wiley. To the extent the only evidence of the
crime available to the prosecution was the falsely planted
evidence, success on the false arrest claim would undermine the
related criminal prosecution. See id. at 997-98.
The present case is similar to Wiley. Plaintiff alleges that
Cuevas falsely reported that plaintiff had committed moving
violations even though the car was parked. Plaintiff apparently
also alleges that the parking ticket for parking the car at a
fire hydrant is also based on false information. There is nothing
to indicate that there was any evidence supporting the parking
and moving violations other than the report and tickets written
by Cuevas and his possible testimony. Therefore, like in Wiley,
success on the false arrest claim would undermine the validity of
the prosecution of the tickets. Thus, plaintiff's false arrest
claim did not accrue until a court dismissed the tickets in March
2002. Since the lawsuit was brought within two years after that, the false arrest claim against Cuevas will not
be dismissed as untimely.
The Count II aggravated hate and malice claim, to the extent it
is distinct from the Count I false arrest claim, is essentially a
malicious prosecution claim. Assuming such a claim exists, an
essential element of that claim would be that plaintiff was not
guilty of the crime for which he was prosecuted. Therefore,
success on such a claim would undermine the prosecution for the
tickets. See Heck, 512 U.S. at 484-86; Snodderly,
239 F.3d at 900. Thus, the Count II claim against Cuevas also did not
accrue until the tickets were dismissed in 2002. Heck, supra.
Therefore, that claim is not untimely. However, although
plaintiff's federal malicious prosecution claim is timely, that
claim fails on its merits because there is no federal
constitutional claim against police officers for malicious
prosecution. See Newsome v. McCabe, 256 F.3d 747, 750-53 (7th
Cir. 2001); Wiley, 361 F.3d at 996; Gauger v. Hendle,
349 F.3d 354, 359 (7th Cir. 2003). Count II will be dismissed.
The Count III discrimination claim is based on the conduct that
occurred in March 2000. To the extent plaintiff is simply
alleging that he was taken into custody because of his race and
nationality, that claim accrued in 2000 and is untimely. However,
to the extent he alleges that, because of invidious
discrimination, he was arrested based on falsified evidence, success on that claim would undermine the prosecution for the
tickets. That aspect of Count III did not accrue until the
tickets were dismissed in 2002. Similarly, a claim that plaintiff
was maliciously prosecuted because of invidious discrimination
would not accrue until 2002. But, like the Count II claim, there
is no separate discriminatory malicious prosecution claim because
it was the prosecutors, not Cuevas, that made the decision to
prosecute the tickets. Count III will be dismissed except to the
extent it is based on Cuevas being motivated by plaintiff's race
and nationality in deciding to arrest plaintiff based on false
The allegedly unconstitutional illegal surveillance on which
Count VI is based occurred in March 2002, less than two years
prior to Cuevas being joined in this suit. Plaintiff alleges that
Cuevas looked at his property from the alley. There is no
violation of the Fourth Amendment when a police officer, without
a warrant or probable cause, visually observes property from a
public location. See Kyllo v. United States, 533 U.S. 27,
31-32 (2001). The Count VI surveillance claim will be dismissed.
Cuevas also raises a qualified immunity argument, but may only
be raising it as regards Count VI which is otherwise being
dismissed. Nevertheless, qualified immunity will be considered as
to the claims that are not otherwise subject to dismissal. It was
clearly established prior to 2000 that a person may not be arrested when there are absolutely no facts supporting that he
possibly committed any crime in this case being arrested for
allegedly committing a moving violation even though plaintiff was
not even driving a car at the time he allegedly committed the
offense. See Haywood v. City of Chicago, 2002 WL 31118325 *4
(N.D. Ill. Sept. 25, 2002). It was also clearly established that
it violates the Constitution to select a person for arrest
because of racial or national origin discrimination. See Whren
v. United States, 517 U.S. 806 (1996); Chavez,
251 F.3d at 635.
The Count I false arrest claim and Count III discrimination
claim (to the extent based on being arrested based on falsified
information) remain pending as against Cuevas. The related claims
as against Daley and Mack also remain pending. All other federal
claims against Cuevas will be dismissed, as well as any related
claims against Daley and Mack.
C. Claim Against Muhummad
Although no specific count is denominated as being against
Muhummad, the allegations against Muhummad are that she was
called to the scene when plaintiff's possessions were being
removed from his property and she declined to stop John T. and
the others who were removing the possessions. There is no
allegation that Muhummad was involved with the other defendants
or that she had any knowledge of plaintiff's situation until receiving the call that day. There is also no allegation that
Muhummad aided John T. in any way nor took any action to prevent
plaintiff from attempting to act on his own behalf to protect his
rights. Instead, plaintiff contends Muhummad should be held
liable for failing to stop the looting of his property because
John T. could not show Muhummad any court order under which he
purportedly had authority to remove plaintiff's possessions from
A municipality and its employees do not have a constitutional
duty to protect its residents from crime and prevent any criminal
acts from occurring. DeShaney v. Winnebago County Department of
Social Services, 489 U.S. 189, 195 (1989); Estate of Allen v.
City of Rockford, 349 F.3d 1015, 1019 (7th Cir. 2003). However,
a municipality and its employees may have a duty to protect
persons who are in custody or have some other special
relationship with the municipality. Allen, 349 F.3d at 1019-20.
Here, plaintiff was not in custody at the time his property was
being looted. Therefore, there must have been a special
relationship in order for Muhummad to have had a duty to prevent
the crime. In this case, the Chicago Police were called and
Muhummad was the officer sent in response to the call and she was
a witness to the activities that plaintiff characterizes as
criminal looting. But even assuming there is a constitutional
duty to act to prevent a property crime that is occurring in front of a responding officer, the allegations do not support
that Muhummad knowingly ignored an ongoing crime. Plaintiff
showed her a court order that, according to plaintiff, shows tax
deeds in the City's favor had been vacated in 2002. Even
accepting that the court order was clear on that point, that does
not conclusively show the City did not obtain the right to the
property between May 2002 and the June 2003 incident. Plaintiff's
own allegations are that Muhummad initially stopped the removal
of plaintiff's property and then spoke with both plaintiff and
John T. Additionally, she consulted with a superior regarding who
had the right to the property. Muhummad thereafter expressed the
opinion that she could not determine who was in the right. The
facts alleged are inconsistent with Muhummad knowingly ignoring
plaintiff's property rights or otherwise acting with deliberate
indifference to plaintiff's rights. Muhummad could not be certain
that any crime was occurring that she might have a duty to
prevent. Muhummad's failure to stop a purported crime does not,
by itself, state a constitutional claim.
It is also true that a police officer has a duty to take
reasonable action to prevent unconstitutional conduct by another
officer that is occurring in the first officer's presence. See
Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994); Cornejo,
284 F. Supp. 2d at 1030. Even assuming this duty extends to preventing such misconduct by other municipal employees as well,
the allegations do not support that Muhummad knew there was no
basis for removing plaintiff's possessions from the property.
Therefore, she would not have known that John T. was acting
improperly and had no duty to stop him.
It is also generally alleged that Muhummad was motivated by
invidious discrimination. See Am. Compl. ¶ 88 ("Police
Officers" defendants). Even if the Constitution does not require
that a person be provided police protection, it does prohibit
denying police protection because of a person's race or national
origin. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Didzerekis v.
Stewart, 41 F. Supp. 2d 840, 846-47 (N.D. III. 1999);
DeShaney, 489 U.S. at 197 n. 3 (dictum); Bowers v. DeVito,
686 F.2d 616, 618 (7th Cir. 1982) (dictum). If Muhummad would
have acted to stop John T. from taking the personal property had
plaintiff not been Black or from Nigeria, then plaintiff was
denied equal protection of the law. The equal protection claim
may proceed against Muhummad, but all other aspects of the claim
against her will be dismissed. Muhummad is not entitled to
qualified immunity on the equal protection claim. It has been
clearly established for more than a century that municipal
protective services cannot be denied on the basis of invidious
discrimination. See Yick Wo, supra. D. Additional Claims Based on McGowan's Conduct
It is alleged that, on June 5, 2003, McGowan personally cut the
chains and locks off the gates at plaintiff's State Street
properties. As a result, burglars were able to take $110,000.00
of plaintiff's property. On the facts alleged, it must be taken
as true that McGowan knew that plaintiff owned the State Street
properties and that the City did not have any legal claim to the
property, including no right to remove the locks from the gates.
It must also be taken as true that McGowan acted at the direction
of Daley, Mack, and Troutman. To the extent any claim against
McGowan based on the June 5 conduct survives the motion to
dismiss, the claim will also remain pending as against Daley,
Mack, and Troutman.
As previously discussed regarding the claim against Muhummad,
there is no constitutional right to have a municipality protect a
resident from criminal conduct. See DeShaney,
489 U.S. at 195; Allen, 349 F.3d at 1019. One exception to this rule is
that the municipality or one of its employees may be liable if it
affirmatively places a person in a danger that he would not have
been in absent the state action. See Allen, 349 F.3d at 1019,
1022; Monfils v. Taylor, 165 F.3d 511, 516 (7th Cir. 1998),
cert. denied, 528 U.S. 810 (1999). This state-created danger
exception, however, has not been applied outside the context of
physical safety and danger. See Allen, 349 F.3d at 1019, 1022 (collecting cases); Monfils, 165 F.3d at 516 (same). See also
DeShaney, 489 U.S. at 201. Cf. Harajli v. Huron Township,
365 F.3d 501, 507 (6th Cir. 2004) (assuming for the sake of
argument that the exception applies to deprivations of property).
McGowan cannot be held liable simply for placing plaintiff in a
situation where others would have an easier opportunity to steal
plaintiff's property. Alternatively, even if a police officer can
be held liable for placing a person in such a situation, McGowan
would be entitled to qualified immunity because, as of June 2003,
it was not clearly established that such a rule applied to
placing a person at risk of being subject to a property crime.
It is also possible that McGowan could be held liable for
intentionally damaging and taking plaintiff's locks and chains.
The locks and chains are themselves items of property. As was
previously discussed regarding the June 11, 2003 events, such a
claim survives regardless of the existence of any postdeprivation
remedy because the conduct is alleged to have been directed by a
policymaking official (Mayor Daley), is alleged to have been
motivated by invidious discrimination, and may also be brought as
a Fourth Amendment claim. Whether such a claim is a basis for
consequential damages, including the subsequent looting on that
date, need not be decided at this time. It is sufficient at this
time to hold that the claims against McGowan (and the others) regarding the June 5, 2003 removal of locks and chains state a
basis for relief. Count XXI will not be dismissed.
Plaintiff also seeks to amend his complaint to add a claim that
McGowan improperly took his truck in March 2004. To the extent
this is a simple due process claim, no claim would be stated
because of the existence of a postdeprivation remedy. See Lee
v. City of Chicago, 330 F.3d 456, 467 (7th Cir. 2003).
Plaintiff, however, alleges that this conduct was motivated by
invidious discrimination. He also indicates that the City is
responsible for this conduct. It cannot be determined that
permitting an amendment to add this claim would be futile because
plaintiff cannot possibly state a basis for relief.
E. City's Liability
In order for the City to be liable on any federal claim, the
City's conduct must have been pursuant to an official policy or
custom. McCormick v. City of Chicago, 230 F.3d 319, 324 (7th
Cir. 2000); Wilson v. Giesen, 956 F.2d 738, 744 (7th Cir.
1992); Alexander v. City of South Bend, 320 F. Supp. 2d 761,
780 (N.D. Ind. 2004); Beard v. City of Chicago,
299 F. Supp. 2d 872, 873-74 (N.D. Ill. 2004). There are allegations in the
complaint that are consistent with seeking respondeat superior
liability, as well as allegations that Mack and others are
policymakers. However, as previously discussed, plaintiff has
alleged that conduct was directed by Mayor Daley, whom the City concedes is a
policymaker. Thus, plaintiff has adequately alleged a basis for
the City's liability. Additionally, it is sufficient to
conclusorily allege in the Amended Complaint that conduct was
pursuant to a policy or custom of the City. Leatherman,
507 U.S. at 165-66; McCormick, 230 F.3d at 324-25; McNeal v. Cook
County Sheriff's Department, 282 F. Supp. 2d 865, 868-69 (N.D.
Ill. 2003). To the extent federal claims have been adequately
alleged against the individual defendants, those claims will also
continue as against the City. However, suing the individuals in
their official capacity is duplicative of naming the City as a
defendant. There is no need for the official capacity
designation, which will be dismissed without prejudice. Searles
v. Board of Education of City of Chicago/Chicago School Reform
Board of Trustees, 2004 WL 1474583 *4 (N.D. Ill. June 29, 2004);
Estate of O'Bryan v. Town of Sellersburg, 2004 WL 1234215 *17
(S.D. Ind. May 20, 2004); Berry v. Illinois Department of Human
Services, 2003 WL 22462547 *1 n. 3 (N.D. Ill. Oct. 29, 2003).
Additionally, to the extent plaintiff files an amended
complaint, he would be permitted to add allegations that the City
seized his truck without due process in November 2003. IV. STATE LAW CLAIMS
Plaintiff claims that, in 2001, Cuevas defamed him when Cuevas
told Moore that plaintiff was a squatter. He also alleges that
Cuevas committed defamation and fraud in 2000 based on false
statements in the traffic tickets. On June 21, 2002, Mack
allegedly committed defamation when posting an eviction notice
falsely stating that the City had tax deeds for the State Street
properties. In June 2003, McGowan allegedly committed defamation
when he told a crowd that plaintiff was a squatter. These claims
are apparently brought against the City as well.
A one-year statute of limitation applies to the state law
claims against both the City and its employees.
745 ILCS 10/8-101. The state law claims based on Cuevas's statements in
2000 and 2001 are barred by the statute of limitations. Since
Mack was not joined in this suit until November 2003, the
defamation claim against him is also barred by the statute of
limitations. The City, however, was made a party to this suit
less than one year after Mack's allegedly defamatory statement.
The City, however, cannot be held liable for purportedly
defamatory statements of either Mack or McGowan.
745 ILCS 10/2-107.
The defamation claim against McGowan himself still needs to be
considered. McGowan invokes the immunity of 745 ILCS 10/2-201,
contending he is immunized from liability for any acts involving the exercise of discretion. The statute provides:
"Except as otherwise provided by Statute, a public employee
serving in a position involving the determination of policy or
the exercise of discretion is not liable for an injury resulting
from his act or omission in determining policy when acting in the
exercise of such discretion even though abused." Simply
exercising discretion is not enough, the act must also involve
the determination of policy. Harinek v. 161 North Clark Street
Ltd. Partnership, 181 Ill. 2d 335, 692 N.E.2d 1177, 1181 (1998);
Ellis v. City of Chicago, 272 F. Supp. 2d 729, 735 (N.D. Ill.
2003). On the facts alleged, it was not a determination of policy
for McGowan to announce to a gathering crowd that plaintiff was a
squatter. Section 2-201 does not immunize McGowan from the
McGowan's other contention is that, as a public employee, he is
absolutely immune from defamation claims based on statements made
within the scope of his official duties. This is a common law
immunity based on the need to ensure that government officials
are "free to exercise their duties unembarrassed by the fear of
damage suits in respect of acts done in the course of those
duties suits which would consume time and energies which would
otherwise be devoted to governmental service." Harris v.
News-Sun, 269 Ill. App. 3d 648, 646 N.E.2d 8, 11 (2d Dist. 1995)
(quoting Barr v. Matteo, 360 U.S. 564, 571 (1959)). Not all officials are entitled to the immunity. Whether the immunity
applies depends "on the nature of the government official's
duties, and not on his/her rank or title." Harris,
646 N.E.2d at 11. The immunity only applies to statements "which are
legitimately related to matters committed to [the employee's]
responsibility." Id. (quoting Blair v. Walker, 64 Ill. 2d 1,
349 N.E.2d 385, 389 (1976)).
Here, it is alleged that McGowan is the 20th Ward
Superintendent. On the facts alleged, it is not established that
it is within a Superintendent's ordinary responsibilities to work
to evict a person from his property, to cut locks off the
resident's fence, or to speak about legal matters with any crowd
that may then gather. On the facts alleged, it cannot be
conclusively determined that the privilege applies.
The defamation claim against McGowan will not be dismissed.
V. SUMMARY OF RULING ON MOTIONS TO DISMISS
Based on the foregoing rulings, the following claims remain
from the Amended Complaint. Counts I, III (to the extent it is
based on Cuevas being motivated by plaintiff's race and
nationality in deciding to arrest plaintiff based on false
evidence), VIII-IX (to the extent individual claims remain
pending against Cuevas), XIV (to the extent claims remain pending against the individual defendants other than Muhummad), XXI, and
XXII. To the extent not otherwise clearly stated within these
counts, Fourth Amendment, Equal Protection, and substantive due
process claims remain pending against Cuevas, Mack, Daley,
McGowan, Troutman, and the City relating to removing plaintiff's
personal property on June 11, 2003 and the following days. An
equal protection claim also remains pending against Muhummad.
Plaintiff would also be permitted to file a Second Amended
Complaint claiming the seizures of his truck in November 2003 and
Subject to resolution of the in forma pauperis issue
discussed in the following section, plaintiff will be permitted
to file a Second Amended Complaint limited to those claims set
forth as still pending. In light of plaintiff's past history of
redundancy and tangential discussion, the Second Amended
Complaint will be limited to being no more than 20 pages long.
However, leave to file the Second Amended Complaint will not be
granted until after an in forma pauperis issue is resolved.
VI. IN FORMA PAUPERIS STATUS
On June 30, 2003, this case was removed from state court. As
the removing parties, defendants paid the federal court filing
fee. On July 25, 2003, plaintiff filed a motion for appointment
of counsel. To be entitled to appointment of counsel, plaintiff had first to be granted leave to proceed in forma pauperis. On
July 30, 2003, plaintiff filed an application to proceed in
forma pauperis along with an accompanying financial affidavit.
See Docket Entry . The application to proceed in forma
pauperis was granted. See Minute Order dated July 30, 2003
(Docket Entry ). The motion for appointment of counsel was
In paragraph 2 of his July 30, 2003 financial affidavit,
plaintiff stated that, during the previous twelve months, he had
no income from a business, profession, or other self-employment,
nor any income from rent. Plaintiff indicated that his only
income during that time period was $17.00*fn7 of wages and
$700.00 from an unspecified other source. In paragraphs 6 and 7,
plaintiff also stated that he owned no real estate and no
automobiles, boats, trailers, mobile homes or other items of
personal property with a then current market value of more than
The in forma pauperis statute provides in part:
"Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if
the court determines that (A) that allegation of poverty is
untrue." 28 U.S.C. § 1915(e) (2) (A). Since the statute uses
"shall," dismissal is mandatory when the financial affidavit is false. Thomas v. General Motors Acceptance Corp., 288 F.3d 305,
306 (7th Cir. 2002). It is within the district court's discretion
as to whether to dismiss the case with or without prejudice.
Id. at 307-08; Mathis v. New York Life Insurance Co.,
133 F.3d 546, 547-48 (7th Cir. 1998). The possible grounds for
dismissing with prejudice have not been fully delineated in the
case law, but it has been held that, when the affidavit is
intentionally false, it is within the court's discretion to
dismiss the case with prejudice. Id.; Chung v. Dushane, 2003
WL 22902561 *3 (N.D. Ill. Dec. 9, 2003), aff'd by unpublished
order sub nom., Chung v. KPMG LLP, 2004 WL 1435198 (7th Cir.
June 24, 2004).
The financial affidavit was filed on July 30, 2003. In his
Amended Complaint filed on November 5, 2003 (Docket Entry ),
and subsequent pleadings, plaintiff alleges that he owns real
estate located at 5941-59 South State Street in Chicago. While
there are allegations that City employees have claimed he no
longer owns the property, plaintiff repeatedly alleges that he
continues to own those properties. In the Amended Complaint,
plaintiff alleges that, from 1996 through 2003, he was in the
business of buying and loading goods and dealing with "West
African Traders." Plaintiff alleges that the State Street
properties had trailers and other vehicles, some of which were
loaded with goods, which had a combined value of $30,000,000. Other allegations value the goods at as much as $100,000,000.
Plaintiff also alleges that he had contracts to sell some of
these vehicles and goods. Plaintiff does allege that all of this
personal property was seized in June 2003. Although he may not
have controlled the personal property as of July 30, 2003 nor
have had immediate access to it, he alleges that he continued to
own the property. Plaintiff alleges that his personal property
was not destroyed until November 2003. Thus, according to the
allegations, the personal property still existed in July 2003 and
plaintiff had an ownership interest in the personal property as
of July 30, 2003.
The allegations contained in plaintiff's Amended Complaint and
answer to the motions to dismiss indicate that he likely had
significant sales income up until June 2003, as well as sources
of capital. The allegations indicate that plaintiff has owned the
real property on State Street since prior to 2003 and continues
to own it. The allegations further indicate that plaintiff owned
substantial personal property as of July 30, 2003, but that he
did not have access to it. These three allegations are
inconsistent with statements in plaintiff's July 2003 financial
affidavit that he had less than $1,000.00 in income during the
preceding year and owned no real or personal property.
Indications are that either the financial affidavit is false or allegations of the Amended Complaint are false and in
A rule to show cause will be issued requiring plaintiff to show
cause why his cause of action should not be dismissed based on
false statements in his financial affidavit. Plaintiff should
also address the question of whether any dismissal should be with
or without prejudice. Defendants will also be provided an
opportunity to express their views on this matter. No brief shall
exceed 15 pages. Until it is determined whether the Amended
Complaint should be dismissed based on a false financial
affidavit, the filing of a Second Amended Complaint will be held
IT IS THEREFORE ORDERED that defendants' motions to dismiss
[32-1, 33-1, 40-1, 42-1, 51-1] are granted in part and denied in
part. Plaintiff's motions to amend [34-1, 58-2, 63-1, 66-1] are
granted in part and denied in part. Plaintiff's motion to strike
and dismiss [35-1,2] is denied. Plaintiff's motions to refile
[58-1, 63-1] are denied without prejudice as moot. Counts II, III
(in part), IV-VII, VIII-IX (in part), XII, XIII, XIV (In part),
XV-XVII, XVIII-XX (without prejudice), XXIII, and XXIV of the
Amended Complaint are dismissed. The official capacity claims are
dismissed without prejudice. A rule to show cause shall issue. By
August 30, 2004, plaintiff shall file a brief, not in excess of
15 pages, showing cause why this case should not be dismissed in accordance with 28 U.S.C. § 1915(e)
(2) (A). By September 14, 2004, defendants may file responses to
plaintiff's show cause brief. Ruling on the § 1915(e) (2) (A)
issue will be by mail.