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Daniel Giljen v. Thomas Dart

April 17, 2012


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Daniel Giljen ("Giljen" or "Plaintiff"), on behalf of himself and others similarly situated, brought this action against Defendant Thomas Dart, in his official capacity as Sheriff of Cook County ("Sheriff Dart"), and against Cook County, Illinois. Giljen alleges that Sheriff Dart violated his civil right to due process and possession of property pursuant to 42 U.S.C. § 1983, and willfully violated the bankruptcy stay in violation of 11 U.S.C. § 362 when he evicted Giljen from the apartment he was occupying on March 29, 2011. Because Giljen's suit against Sheriff Dart is a suit against a state officer, it is barred by the Eleventh Amendment and this case is dismissed. Facts

The following facts are taken from Giljen's Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir. 2007).

On or about April 10, 2010, Giljen entered into a written lease agreement with Debenev Miatcheslav ("Miatcheslav") for an apartment located at 300 North State Street, Chicago Illinois. On June 22, 2010, approximately two months after Giljen's lease began, Miatcheslav filed an eviction lawsuit against Giljen, seeking both rent and possession of the property.

Five months later, on November 22, 2010, Giljen filed a voluntary petition for Chapter 7 bankruptcy and subsequently notified Miatcheslav's counsel of the filing. On December 15, 2010, Miatcheslav moved for judgment in the pending eviction case. The eviction court entered a judgment in favor of Miatcheslav, purportedly entitling him to possession of the property. In December 2010, Miatcheslav retained Sheriff Dart to execute the eviction order. On March 29, 2011, employees of Sheriff Dart executed the order and evicted Giljen from the apartment.

On August 16, 2011, Giljen filed this Section 1983 action against Sheriff Dart, in his official capacity, claiming that Sheriff Dart's participation in the forcible eviction deprived Giljen of his property without due process of law in violation of the Fourth and Fourteenth Amendments. The complaint alleges that Sheriff Dart "knew or should have known that he was acting in contravention of [Giljen's] statutory and Constitutional rights" and that Sheriff Dart "had an affirmative duty to verify the pendency and legitimacy of the eviction orders to the property to determine if the eviction can proceed."

Giljen further alleges that Sheriff Dart's employees unlawfully evicted him "in direct violation of a valid binding bankruptcy stay" despite having actual or constructive knowledge that the orders of possession where void as the result of bankruptcy stays. The Complaint asserts that Sheriff Dart and his agents "had an affirmative duty to verify that no bankruptcy stays were in place" prior to executing the order of possession but that Sheriff Dart "never promulgated a policy to prevent invalid eviction orders from being executed."

Giljen brings this action on behalf of himself and two classes of similarly situated persons pursuant to Federal Rule of Civil Procedure 23(a). Class A consists of all individuals in Cook County, Illinois who have been evicted by Sheriff Dart pursuant to void, vacated, or stayed orders of possession from July 27, 2010 through the present. Class B consists of individuals in Cook County who have been evicted by Sheriff Dart pursuant to orders of possession that are void as a result of a bankruptcy stay from July 27, 2010 to present.

Sheriff Dart moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(1). In support of his Motion, Sheriff Dart claims that Giljen's suit is an action against the State of Illinois that is barred by the Eleventh Amendment, because Sherriff Dart was acting as a state officer when he carried out the eviction order issued by a state court. Standard of Review

When considering a motion to dismiss under Rule 12(b)(6) and 12(b)(1), the Court accepts as true all facts alleged in the complaint and construes all reasonable inferences in favor of the plaintiff. See Killingsworth, 507 F.3d at 618; Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir.1993). To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true. 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To determine whether a complaint meets this standard the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 556 U.S. at 678. If the factual allegations are well-pleaded, the Court assumes their veracity and then proceeds to determine whether they plausibly give rise to an entitlement to relief. Id at 679. A claim has facial plausibility when its factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged.

See id. at 678.


The Eleventh Amendment states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI. The Seventh Circuit has interpreted the Eleventh Amendment to "bar federal courts from exercising jurisdiction over actions against a state brought by her own citizens." Scott v. O'Grady, 975 F.2d 366, 369 (7th Cir.1992), citing Papasan v. Allain, 478 U.S. 265, 276 (1986). Accordingly, Eleventh Amendment issues arise when a private citizen files a federal lawsuit against a state, state agency, or, as here, a state official.

Civil actions against state officials are sometimes permissible; for example, the Eleventh Amendment does not bar suits against state officials in their personal capacity. Scott, 975 F.2d at 369 (noting that damage awards in such suits are limited to the official's personal assets), citing Kentucky v. Graham, 473 U.S. 159, 165-67 (1985); Kroll v. Board of Trustees of University of Illinois, 934 F.2d 904, 907 (7th Cir.1991)). Suit against a state official in his official capacity, on the other hand, is a suit against the official's office and is no different than a suit against the state itself. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Unless the state has consented to suit in federal court or Congress has exercised its powers under the Fourteenth Amendment to ...

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