The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
E-FILED 3:10-cv-03149-SEM-BGC # 24 Page 1 of 25 Friday, 17 August, 2012 01:20:42 PM Clerk, U.S. District Court, ILCD
This matter is before the Court on the Report and Recommendation entered by Magistrate Judge Byron G. Cudmore. See d/e 21. In the Report and Recommendation, Magistrate Judge Cudmore recommends allowing the Motion to Dismiss (d/e 9) filed by Defendants Harold Gist ("Gist") and The City of Girard, Illinois ("Girard"). Plaintiff, Patrick O'Keefe ("O'Keefe"), timely filed an Objection to the Magistrate Judge's Report and Recommendation ("Objections") (d/e 22).
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). This Court reviews de novo any part of the Report and Recommendation to which a party has properly objected. See 28 U.S.C. § 636(b)(1)(c). For the reasons set forth below, the Court overrules the Objections and adopts Magistrate Judge Cudmore's Report and Recommendation. Accordingly, Defendants' Motion to Dismiss (d/e 9) is GRANTED.
A. Plaintiff's Complaint On June 24, 2010, Plaintiff filed a three-count Complaint (d/e 1) against Defendants. In Count I, Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, alleging that Defendants violated Plaintiff's due process rights when Defendant Harold Gist gave Plaintiff's dog, Boomer ("the dog"), to another person, David Hagan ("Hagan"), without a hearing and without Plaintiff's consent. Compl. ¶ 24. In Count II, Plaintiff seeks a declaratory judgment against Girard. Plaintiff asks this Court to declare that the Girard Municipal Code of Ordinances ("Ordinance"), as interpreted by Girard and its police officers, violates the Fourteenth Amendment of the United States Constitution and seeks an order prohibiting enforcement of the Ordinance. Compl. ¶ 33. In Count III, Plaintiff also alleges an Illinois common law claim for conversion against Defendant Gist. Compl. ¶ 37. The parties are familiar with the specific allegations of each count contained in Plaintiff's Complaint, and this information is fully set out in the "Statement of Facts" section of Magistrate Judge Cudmore's Report and Recommendation, adopted herein.
B. Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6)
On July 21, 2011, Defendants filed their Motion to Dismiss. In
the Motion to Dismiss, Defendants contend that all three counts of the
Complaint should be dismissed for failure to state a claim upon which
relief may be granted. Specifically, Defendants argue that Plaintiff
fails to adequately allege a due process violation (Count I) because
Plaintiff received the process that was due through a post-deprivation
hearing in the state court system, through which he retrieved the dog.
See O'Keefe v. Hagan, Macoupin County Circuit Court Case No. 09 LM 130.
Additionally, Defendants argue that Count II should be dismissed because Plaintiff is not entitled to any declaratory relief. Defendants contend that because Plaintiff received ownership of the dog in a state court proceeding, there is no ongoing, actual controversy that has not been remedied. Defendants argue that Count III should be dismissed because Plaintiff fails to adequately state a claim for conversion against Defendant Gist. Finally, Defendants argue that Defendant Gist is entitled to qualified immunity and absolute immunity.
C. Magistrate Judge Cudmore's Report and Recommendation and Plaintiff's Objections Thereto As stated, the Report and Recommendation recommends that Defendants' Motion to Dismiss be granted. Plaintiff filed Objections, in which Plaintiff disputes several of the findings in the Report and Recommendation. Plaintiff states the following objections:*fn1
(1) Plaintiff disputes the finding that Count I of the Complaint fails to state a claim for deprivation of property without due process of law (Pl.'s Obj. at 2);
(2) Plaintiff disputes the finding that Defendant Gist's actions, as alleged in the Complaint, were unauthorized (Pl.'s Obj. at 2);
(3) Plaintiff disputes the finding that Plaintiff was required to allege in the Complaint that Plaintiff availed himself of post-deprivation remedies and that those remedies were not sufficient (Pl.'s Obj. at 2);
(4) Plaintiff asserts that the Report and Recommendation incorrectly states that Plaintiff believes Defendant Gist "correctly interpreted the Ordinance to authorize him to change ownership of the Dog" (Pl.'s Obj. at 3);
(5) Plaintiff objects to the Report and Recommendation to the extent that it "appears to assume that Gist's action of giving away Boomer to a third party was not a terminal event, resulting in a permanent deprivation of O'Keefe's property" (Pl.'s Obj. at 3);
(6) Plaintiff disputes the finding that Porter v. DiBlasio, 93 F.3d 301 (7th Cir. 1996), is distinguishable from this case and objects to "the failure of the Report and Recommendation to analyze this case ...