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Banister v. South Holland Police Department

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

June 29, 2017



          JOHN Z. LEE, United States District Judge

         Pro 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 [13] is granted.


         Plaintiff 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. 13.[1] 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].” Id.

         On 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.

         In her response, Plaintiff clarifies the nature of her claims.[2] 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.[3]

         Legal Standard

         Defendant 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 Cir. 2007).

         A 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.

         Additionally, 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. Id.

         The 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 ...

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