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Livnjak v. Right Residential II-Fund2, LLC

United States District Court, N.D. Illinois, Eastern Division

September 12, 2016

ESAD LIVNJAK, Plaintiff,


          John Z. Lee United States District Judge.

         Plaintiff Livnjak has sued his landlord, Right Residential II-Fund2, LLC, its manager, Christopher Shaxted; and unknown RRF agents (collectively “RRF”) for seizing and disposing of his personal property after he was evicted pursuant to a court order. Pursuant to 42 U.S.C. § 1983, Livnjak alleges Defendants violated his constitutional rights to procedural due process and to be free from unreasonable seizure. Livnjak also alleges negligence (Count III), trespass to chattels (Count IV), conversion (Count V), bailment (Count VI), and intentional infliction of emotional distress (Count VII) under Illinois law. Defendants move to dismiss Plaintiff's section 1983 claims and ask the Court to decline supplemental jurisdiction over the state law claims. For the reasons stated below, the Court grants the motion.

         Factual Background[1]

         Pursuant to an order for possession issued by the Circuit Court of Cook County, Cook County Sheriff's officers and RRF visited Plaintiff's residence to obtain possession of the premises and to evict anyone residing there on October 27, 2015. Compl. ¶ 16. Finding no one home, the Cook County Sheriff's officers turned possession of the premises over to RRF. Id. ¶¶ 17-18.

         RRF knew that Livnjak had not abandoned the premises or his personal property and that Livnjak had made arrangements to move personal possessions from premises. Id. ¶¶ 14-15. Nonetheless, RRF removed all of Livnjak's person property from the premises and then left it scattered and strewn outside. Id. ¶¶ 19, 24. RRF's conduct has caused Livnjak to suffer ongoing emotional distress and expenses. Id. ¶¶ 25, 29.

         Legal Standard

         A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. Cty. of Boone, Ill., 483 F.3d 454, 457 (7th Cir. 2007). Under federal notice pleading standards, “a plaintiff's complaint need only provide a short and plain statement of the claim showing that the pleader is entitled to relief, sufficient to provide the defendant with fair notice of the claim and its basis.” Tamayo, 526 F.3d at 1081; see also Fed. R. Civ. P. 8(a)(2). When considering a motion to dismiss under Rule 12(b)(6), the Court must “accept[ ] as true all well-pleaded facts alleged, and draw[ ] all possible inferences in [the plaintiff's] favor.” Tamayo, 526 F.3d at 1081.

         A complaint, however, must also allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). For a claim to have facial plausibility, a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Plausibility, however, “does not imply that the district court should decide whose version to believe, or which version is more likely than not.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).


         “Section 1983 imposes liability when a defendant acts under color of state law and violates a plaintiff's rights under the Constitution or laws of the United States.” Pittman ex rel. Hamilton v. Cty. of Madison, Ill., 746 F.3d 766, 774 (7th Cir. 2014) (citing 42 U.S.C. § 1983). Accordingly, section 1983 does not apply to “merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

         Defendants argue that they are not liable under section 1983 because they are private actors and did not act under the color of state law. In Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, the Court of Appeals for the Seventh Circuit outlined several scenarios in which private action may become state action:

Private action can become state action when private actors conspire or are jointly engaged with state actors to deprive a person of constitutional rights, where the state compels the discriminatory action, when the state controls a nominally private entity, when it is entwined with its management or control, when the state delegates a public function to a private entity, or when there is such a close nexus between the state and the challenged action that seemingly private behavior reasonably may be treated as that of the state itself.

570 F.3d 811, 815-16 (7th Cir. 2009) (citations omitted). Only the first and third scenario arguably apply in the instant case.

         Under the first scenario, “[a] private actor . . . can have acted under color of law if the plaintiff can establish that ‘(1) the private individual and a state official reached an understanding to deprive the plaintiff of her constitutional rights and (2) the private individual was a willful participant in joint activity with the state or its agents.'” Thurman v. Vill. of Homewood, 446 F.3d 682, 687 (7th ...

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