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AKPULONU v. McGOWAN

August 11, 2004.

UWAKWE AKPULONU, Plaintiff,
v.
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 civil case.

  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 occurred.

  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 [58]), 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 ...


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