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James F. Osterbur v. Illinois Environmental Protection Agency

September 14, 2011

JAMES F. OSTERBUR, PLAINTIFF,
v.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge

E-FILED

Wednesday, 14 September, 2011 01:33:20 PM Clerk, U.S. District Court, ILCD

REPORT AND RECOMMENDATION

In December 2010, Plaintiff James F. Osterbur, acting pro se, filed a complaint in the Champaign County Sixth Judicial Circuit Court. In January 2011, the United States Defendants filed a Notice of Removal (#1). Plaintiff brought suit against six government agencies with a "demand for enforcement of the rules and laws." In his complaint, Plaintiff primarily complained of the government's failure to regulate a grain elevator in Royal, Illinois, which created noise and traffic.

United States Defendants filed a Motion to Dismiss the Federal Defendants as Party Defendants (#10).*fn1 Plaintiff filed a response (#15). In addition, Illinois Defendants filed Defendants' Motion to Dismiss for Lack of Personal Jurisdiction (#7).*fn2 Plaintiff filed a response (#14). After reviewing the parties' pleadings and memoranda, this Court recommends, pursuant to its authority under 28 U.S.C. § 636(b)(1)(B), that the United States Defendants' Motion to Dismiss the Federal Defendants as Party Defendants (#10) be GRANTED. The Court further recommends that the Defendants' Motion to Dismiss for Lack of Personal Jurisdiction (#7) filed by Illinois Defendants be deemed MOOT, and that the case be remanded to state court for further proceedings.

I. Background

In a complaint filed in state court, Plaintiff filed a "legal demand for enforcement of rules and laws," seeking unspecified remedy with respect to a grain elevator operated in Royal, Illinois, near Plaintiff's residence. Plaintiff alleges that the elevator emits excessive noise, and the trucks driving to and from the elevator create a traffic hazard. Defendants have taken Plaintiffs' complaint as a request for injunctive relief to shut down the grain elevator.

Plaintiff's claim is summarized in the following excerpt from his complaint: NOT A CLAIM FOR MONEY from me. Rather it is a demand upon government officials to do your job, which is to protect all our lives from injury, protect us from infraction of the law that harms without cause/ or subsequently takes away our freedom and our right to decide for our own lives: thereby damaging our property or ability to remain in our homes. This is an unreasonable seizure of our environment/ trespassing and causing in effect "an enemy soldier, to be quartered in my house/ without my consent"; for sustained periods of time. MORE SIMPLY: keep this corporation from dramatically affecting our lives, by demanding they stay on their side of the line. Don't trespass over here/ not, past "the legal limit or this standard". Is that not, "what the law means"?

(#1-2, p. 9).*fn3

Plaintiff has filed many claims in this court within the past year, with unspecified demands for redress of grievances, demands for compliance with the Constitution, and demands that government employees do their jobs.*fn4 In a recent order from this Court, entered after Plaintiff filed this instant lawsuit, the Court sua sponte enjoined Plaintiff from filing any further lawsuits, motions or pleadings in the United States District Court, Central District of Illinois, Urbana Division (other than habeas corpus petitions and criminal cases in which he is a party defendant), unless those lawsuits, pleadings, and motions are filed through counsel. Osterbur v. Quinn, No. 11-2111 (C.D. Ill. July 20, 2011) (#20, p. 4).

II. Standard

The purpose of a motion to dismiss for failure to state a claim is to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The complaint must give fair notice of what the claim is and the grounds upon which it rests.

E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007). However, fair notice is not enough by itself; in addition, the allegations must show that it is plausible, rather than merely speculative, that the plaintiff is entitled to relief. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008).

When considering a motion to dismiss for failure to state a claim, the Court is limited to the allegations contained in the pleadings. Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). The Court must treat all well-pleaded allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (requiring plausible grounds for inferences if those inferences are to sustain a complaint). In considering the plaintiff's factual allegations, the Court should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). The application of the notice pleading standard is a context-specific task, in which the height of the pleading requirement is relative to circumstances. Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009) (citing ...


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