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Hegwood v. Weis

August 13, 2009

TALMON HEGWOOD, JR., PLAINTIFF,
v.
JODY P. WEIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge David H. Coar

MEMORANDUM OPINION AND ORDER

Plaintiff, Talmon Hegwood, Jr., filed suit in the Circuit Court of Cook County, Illinois, pro se, against Defendants, Superintendent Jody P. Weis, Lieutenant Victor Mitkal, Tina M. Skahill, and the City of Chicago, alleging a violation of his due process and equal protection rights under 42 U.S.C. § 1983. The Defendants removed the action to this Court and have moved to dismiss the action pursuant to Federal Rule fo Civil Procedure 12(b)(6) for failing to state a claim. For the reasons stated in this order, the motion to dismiss is granted in part and denied in part.

BACKGROUND

A reading of Plaintiff's complaint supports the following summary of the alleged operative conduct of the parties:

On October 25, 2007, Plaintiff was arrested in Chicago, Illinois, for shoplifting at a grocery store. Plaintiff was transported to a Chicago Police district station at which time his personal property, including two platinum chains, were seized. Plaintiff was provided a property receipt that incorrectly indicated only one platinum chain was seized. The receipt further indicated that Plaintiff must claim his property within 30 days.

Plaintiff sent a notarized letter, dated November 21, 2007, to the Chicago Police Department seeking the return of his property. Plaintiff received a letter from Lt. Mitkal of the Chicago Police Department, dated December 4, 2007, informing him that he must send a notarized letter indicating the name and address of the person to which the Police Department should send his property. The letter further informed Plaintiff that, due to his incarceration, he must have his social worker/counselor fax a copy of the letter to Evidence and Recovered Property Section, Attention P.O. Buckley.

On March 22, 2008, Plaintiff wrote a letter to Lt. Mitkal informing him that he had complied with the instructions provided to him for the retrieval of his property. He further wrote that he had sent him a letter dated November 21, 2007, and responded to his December 4, 2007, letter on December 13, 2007. Plaintiff requested that the property be given to Associate Judge Marcus Salone within eight days.

On April 8, 2008, Plaintiff sent a letter to Superintendent Weis, congratulating him on his recent appointment. Plaintiff included a copy of his March 22, 2008, letter to Lt. Mitkal, and asked Superintendent Weis to "see that he acts according to CPD policy enacted by you." In an April 11, 2008, letter from Lt. Mitkal, Plaintiff was informed that his previous correspondence regarding his property was received in excess of the 30-day limitation period. The letter further stated that the property was destroyed and his chain was sold at a public auction. The letter further stated that while efforts were made to preserve his property, an overriding computer program caused the efforts to fail and the property was disposed of in accordance with state law.

Plaintiff next received a letter from the Chief of Internal Affairs Division, Tina M. Skahill, dated April 14, 2008, that informed Plaintiff that his property was sent to Timothy Nance (Plaintiff's former friend and attorney) per Plaintiff's written request. Plaintiff has not received his property and he believes that law enforcement personnel stole the chains.

ANALYSIS

A complaint need only provide a "short and plain statement of the claim showing that the pleader is entitled to relief" that sufficiently provides the defendant with "fair notice" of the claim and the claim's basis. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff demonstrates that he is entitled to relief by showing through his allegations that "it is plausible, rather than merely speculative, that he is entitled to relief." Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008) (quotation omitted); see also Bell Atlantic, 550 U.S. at 555. The allegations "must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level." Tamayo, 526 F.3d at 1084 (quotation omitted). In making this determination, the complaint is construed in the light most favorable to the plaintiff, accepting as true the well-pleaded allegations, and drawing all reasonable inferences in plaintiff's favor. Tamayo, 526 F.3d at 1081. Furthermore, pro se complaints are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006). However, a plaintiff can plead himself or herself out of court by pleading facts that undermine the allegations set forth in the complaint. See, e.g., Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006). The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits. Weiler v. Household Finance Corp., 101 F.3d 519, 524 n. 1 (7th Cir. 1996) (citations omitted).

I. Procedural Due Process Claim

Defendants argue that Plaintiff's procedural due process claim fails because the alleged theft of his chains was a random and unauthorized act of an a state employee and Illinois law provides him an adequate state remedy.

The loss of property resulting from "random and unauthorized" acts of state employees does not constitute a procedural due process violation as long as a meaningful post-deprivation remedy is available. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986); Wynn v. Southward, 251 F.3d 588, 592-93 (7th Cir. 2001). In determining whether conduct is "random and unauthorized," courts consider whether the conduct was predictable. See, e.g., Hamlin v. Vaudenberg, 95 F.3d 580, 584 (7th Cir. 1996). The loss of property by tortuous conduct in accordance with an official custom of policy is not considered random ...


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