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Doris Brown v. Deputy Sergeant Koeller

September 28, 2011


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant Sergeant Shelley Koeller's (Koeller) motion for summary judgment. For the reasons stated below, the motion for summary judgment is granted.


Plaintiff Doris Brown (Brown) alleges that Koeller, who is referred to in the pro se amended complaint as "Deputy Sheriff Koeller," is an Eviction Supervisor, who is responsible for overseeing evictions. On February 21, 2006, Koeller allegedly sent Sheriff's deputies to evict Brown from her property (Property). Brown contends that Koeller knew that prior to any eviction, Brown was entitled to exhaustion of remedies available to her in eviction court. Brown claims that the Sheriff's deputies evicted her despite her statements to them indicating that she still had an upcoming date in eviction court. Defendants Joe Varan (Varan), Deena Trammer (Trammer), and Anthony Russell (Russell) allegedly work for Cronus Projects, LLC (Cronus), which brought an eviction action against Brown in court and sought the eviction. (Am. Ans. 8). Koeller now moves for summary judgment on the claims brought against her.

Since Brown is proceeding pro se, her filings in this action have not been held to the "stringent standards" required for filings drafted by lawyers. Philos Technologies, Inc. v. Philos & D, Inc., 645 F.3d 851, 858 (7th Cir. 2011). The court notes, however, that the court has provided Brown with opportunities to retain counsel on her own in this case and has continued this case in order to allow her time to retain new counsel. The court has also offered on two occasions at status hearings to appoint counsel for Brown, but Brown has declined such an appointment and has indicated that she desires to proceed pro se.


Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).


I. Propriety of the Eviction

Koeller argues that the undisputed evidence shows that she properly authorized the eviction in accordance with an order of possession obtained by Cronus and that Koeller thus could not have violated Brown's constitutional rights. It is undisputed, pursuant to Local Rule 56.1, that on November 29, 2005, an Illinois State court entered an order of possession (Order of Possession), indicating that Cronus was entitled to possession of the Property. (R SF Par. 2); (D. Ex. C, Att 5); Dent v. Bestfoods, 2003 WL 22025008, at *1 n.1 (N.D. Ill. 2003)(indicating that a denial is improper if the denial is not accompanied by specific references to admissible evidence or at least evidence that represents admissible evidence that supports the denial). The undisputed record also indicates that the enforcement of the Order of Possession was stayed until December 30, 2005. (D Ex.C, Att 5). In addition, it is undisputed that Brown then filed a motion to vacate or stay the Order of Possession, that the motion was continued to February 2, 2006, and that the state court denied the motion to vacate or stay on that date. (R SF Par. 15-18); (D. Ex. C, Att 6-7). It is also undisputed that the record reflects that the state court judge indicated in the order on February 2, 2006: "No further stays allowed." (D. Exc. C, Att 7). The undisputed record indicates that on February 2, 2006, Brown filed a motion to reconsider, and that the motion was denied on March 1, 2006. (D. Ex. C., Att 8); (R SF Par. 19-22).

Brown contends that Koeller improperly authorized the eviction on February 21, 2006, despite the fact that there was a court date on Brown's motion for reconsideration on March 1, 2006. Brown argues that Koeller improperly allowed the eviction to proceed when the eviction proceedings were still ongoing. However, Brown was not allowed under Illinois law to put off her eviction indefinitely by continuing to file successive motions for reconsideration. Brown's motion for reconsideration filed on February 2, 2006, after her prior motion to vacate or stay the Order of Possession, was effectively her second motion for reconsideration. It was also a motion for reconsideration filed after the state court had indicated in a conclusive fashion: "No further stays allowed." (D. Exc. C, Att 7). The Seventh Circuit on remand in this case specifically indicated that Illinois law does not contain "any provision allowing a litigant to defer enforcement of an adverse judgment indefinitely by filing successive motions." Brown v. Varan, 2009 WL 899960, at *1 (7th Cir. 2009)(citing Sears v. Sears, 422 N.E.2d 610 (Ill. 1981)). Under Illinois law, a successive post-judgment motion "not filed within 30 days after the judgment . . .does not stay[] the judgment . . . ." Sears, 422 N.E.2d at 612. The motion for reconsideration filed on February 2, 2006 was filed more than 30 days after the entry of the Order of Possession on November 29, 2005 and more than 30 days after the enforcement date of the Order of Possession on December 30, 2005.

Brown cites Illinois Supreme Court Rule 304(a) to argue that the eviction was unlawful. However, the instant action deals with a forcible eviction. Rule 304(a) is a rule that deals with allowing some of the claims brought in an action to become final and appealable when there are multiple claims or parties. ILCS S. Ct. Rule 304. Brown also cites to Petersen Bros. Plastics, Inc. v. Ullo, 373 N.E.2d 416, 420 (Ill. App. Ct. 1978), in which the Court addressed whether a judgment against one of several defendants in the case was a final and appealable judgment. Id. at 420-21. The Illinois court rules concerning whether a judgment is final and appealable are not relevant to assessing whether the execution of Brown's eviction was unlawful and thus Brown's citations are not on point. The undisputed record does not reflect that this underlying case was anything other than a simple Forcible Entry and Detainer Complaint filed by Cronus, and there is no indication that the complaint dealt with multiple parties or claims that were partially resolved.

Brown also cites Jones v. Unknown Heirs or Legatees of Fox, 728 N.E.2d 1157 (Ill. App. Ct. 2000) for the proposition that a motion for reconsideration can toll the time for filing an appeal in state court. (Am. Ans. 3). However, in Jones, the court also stated that the state "courts have repeatedly held that the filing of multiple post-judgment motions does not extend the time for filing an appeal." 728 N.E.2d at 1160. In this case, Jones filed a post-judgment motion seeking to vacate the Order of Possession, which was denied, and her subsequent motion for reconsideration was a subsequent post-judgment motion that did not extend the time before the Order of Possession became a final and appealable order.

Brown also argues that Cronus "did not own the property. . . ." (Ans. 2). However, whether or not Cronus had a right to possess the Property is not material, since there is no evidence that Koeller, acting to enforce the Order of Possession which was issued by a state court judge, had any basis to believe that Cronus lacked a lawful right to the Property. The court notes that Brown claims certain facts regarding the history of her state court case that are not supported by the official records of the case. For example, Brown claims that Defendants are wrong that the judge in the eviction proceedings entered a ruling on Brown's motion to vacate on February 2, 2006. Brown states that "[t]here was no Judge Peters ruling on Plaintiff's motion to vacate February 2, 2006." (Am. Ans. 4). However, ...

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