United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. LEE, United States District Judge
se Plaintiff Delois A. Banister
(“Plaintiff”) brought this action against
Defendant South Holland Police Department
(“Defendant”) under 42 U.S.C. § 1983. She
alleges that Defendant violated her constitutional rights by
permitting a third party to remove property from her house,
which had previously been foreclosed upon and sold. Defendant
has moved to dismiss Plaintiff's complaint. For the
reasons that follow, Defendant's motion  is granted.
owned a home at 959 E. 166th Street, South Holland, Illinois
60473. Compl. at 4, ECF No. 7. The home, however, was
foreclosed upon. See Pl.'s Mot. Strike at 1-2,
ECF No. 16. On January 25, 2016, an Illinois circuit court
entered an “Order Approving Report of Sale and
Distribution; Confirming Judicial Sale; and for
Possession.” Def.'s Mot. Dismiss, Ex. A, ECF No.
This order, in pertinent part, instructs that “the
holder of the certificate of sale . . . is entitled to and
shall have possession of the mortgaged real estate no sooner
than 30 days from the entry of this Order.”
Id., Ex. A, at 3. It further states that “in
the event possession is withheld, the Sheriff of Cook County
is directed to evict and dispossess, no sooner than 30 days
from the entry of this Order[, ] [Plaintiff].”
November 1, 2016-well after the state court order took
effect-Plaintiff discovered that a third party was removing
property from her house. Compl. at 4. She called 911 and
Defendant sent officers to her home. Id. Although
Plaintiff explained to the officers that there was a hearing
date scheduled in connection with the state foreclosure
proceedings on February 10, 2017, the officers nevertheless
permitted the third party to continue. Id. Plaintiff
thereafter filed a form complaint in federal court alleging
that Defendant “failed to intervene to protect
plaintiff from violation of plaintiff's civil rights by
one or more other defendants” and “conspired
together to violate one or more of plaintiff's civil
rights.” Id. at 2.
response, Plaintiff clarifies the nature of her
claims. She states that the February 10, 2017
hearing date concerned “lack of notice and Due Process
under the U.S. Constitution and the Illinois Constitution
which did not occur in this case.” Pl.'s Mot.
Strike at 1. She continues:
Essentially, this is an illegal foreclosure and the remedy
and recourse process was not available to Ms. Banister
because she was never duly notified of the proceeding against
her. She never had the opportunity to file a response or
answer, or deal with mediation, or any other remedy that
might have avoided this foreclosure and eviction.
Id. at 1-2. She claims that Defendant's actions
“aided and abet[ted] the entities” that denied
her due process through the foreclosure proceedings.
Id. at 2.
has moved to dismiss Plaintiff's complaint under Federal
Rules of Civil Procedure (“Rules”) 12(b)(1) and
12(b)(6). Under Rule 12(b)(1), a defendant may move to
dismiss claims over which the federal court lacks subject
matter jurisdiction. Jurisdiction-i.e., the power to
decide-must be conferred upon a federal court. Flynn v.
Sandahl, 58 F.3d 283, 288 (7th Cir. 1995). In ruling on
a Rule 12(b)(1) motion, the Court must accept as true all
well-pleaded facts and may look beyond the jurisdictional
allegations to whatever evidence is submitted on the issue of
subject-matter jurisdiction. See St. John's United
Church of Christ v. City of Chi., 502 F.3d 616, 625 (7th
motion under Rule 12(b)(6) challenges the sufficiency of the
complaint. Christensen v. Cty. of Boone, 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 v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008) (internal quotation marks omitted); 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
inference in [the plaintiff's] favor.”
Tamayo, 526 F.3d at 1081.
to survive a motion to dismiss under Rule 12(b)(6), a
complaint must 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) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). For a claim
to be facially plausible, the plaintiff must plead facts
allowing the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged in the
complaint. Id. Accordingly, “[t]hreadbare
recitals of the elements of the cause of action, supported by
mere conclusory statements, do not suffice.”
Id. Finally, the plausibility standard is not akin
to a probability requirement but, rather, asks for more than
a sheer possibility that the defendant acted unlawfully.
Court is mindful that “a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Nevertheless, while the Court gives liberal construction to a
pro se plaintiff's complaint, “it is also
well established that pro se litigants are not