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).
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 ...