United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge.
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
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.
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.
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.
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
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).
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
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 ...