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Shachter v. City of Chicago

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

September 30, 2019

JAY F. SHACHTER, Plaintiff,


          Mary M. Rowland United States District Judge.

         In July 2017, Jay Shachter returned home to find the trees and plants gone from his backyard. After learning the City of Chicago was responsible, he filed a complaint in the Circuit Court of Cook County against the City and City attorneys Thomas Doran, Kelley Gandurski, and J. Allen Thomas (collectively, “Defendants”) for property damage, violation of his civil rights, and exemplary damages. (Compl., Dkt. 1-1). Defendants removed the case to federal court, and then moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkts. 1, 17).

         For the reasons explained below, the Court grants the motion to dismiss [17], and also grants Shachter leave to replead consistent with this opinion.

         I. Background

         In his complaint, pro se Plaintiff Shachter (“Shachter”) alleges that Defendants filed a “quasi-criminal complaint” against him in state court to remove hazardous items from his backyard. (Compl. ¶ 5).[1] (The Cook County case is case number l7-Ml-400536.) Shachter asserts “[o]n information and belief, the Defendants knew that the allegations in their Complaint were false.” (Id. ¶ 6). Shachter also alleges that Defendants filed a false affidavit of service with the court and held an ex parte hearing on the second day of a Jewish holiday, knowing he would be unavailable to attend. The result of the hearing, he says, was a court order that “went beyond the relief” Defendants requested. (Id. ¶¶ 7, 8). That June 1, 2017 court order “authorizing City action at an unsafe property” (“abatement order”) is attached as Exhibit 2 to Defendants’ brief in support of their motion to dismiss. (Dkt. 34 at 30).

         Shachter filed a motion to quash service but before the motion could be heard, Defendants executed the abatement order. (Compl. ¶ 11). Therefore, Shachter claims, Defendants “fraudulently obtained” the order “to perform acts of destruction [to his property] that the Order didn’t even authorize.” (Id. ¶ 12). He further alleges that the state court later quashed service and ordered all prior orders in the case void ab initio. (Id. ¶ 13). Seeking dismissal of Shachter’s complaint, Defendants argue that they are immune from liability and that Shachter did not sufficiently plead his claims. (Dkt. 34).

         II. Standard

         A motion to dismiss tests the sufficiency of a complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). “To survive a motion to dismiss under Rule 12(b)(6), the complaint must provide enough factual information to state a claim to relief that is plausible on its face and raise a right to relief above the speculative level.” Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329, 333 (7th Cir. 2018) (quotations and citation omitted). See also Fed. R. Civ. P. 8(a)(2) (requiring a complaint to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”). A court deciding a Rule 12(b)(6) motion accepts plaintiff’s well-pleaded factual allegations as true and draws all permissible inferences in plaintiff’s favor. Fortres Grand Corp., 763 F.3d at 700. Dismissal for failure to state a claim is proper “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558, 127 S.Ct. 1955, 1966 (2007).

         Deciding the plausibility of the claim is “‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’” McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009)). In addition, the Court construes the pro se complaint liberally, holding it to a less stringent standard than lawyer-drafted pleadings. Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017).[2]

         III. Analysis

         A. Property Damage (Count I)

         Shachter complains of damage to his property, alleges that Defendants fraudulently obtained an order from the state court to destroy his property, and carried out the order in a manner that went beyond what the order authorized. (Compl. ¶¶ 12–13). In response, Defendants ask the Court to dismiss this claim with prejudice because (1) absolute immunity protects the individual Defendants and (2) the Illinois Tort Immunity Act, 745 ILCS 10/1-101 et seq. (“Tort Immunity Act”) protects the City.

         The Court agrees that immunity shields the Defendants. With regard to prosecutorial immunity, the Seventh Circuit has explained:

Prosecutors are absolutely immune from suits for monetary damages under § 1983 for conduct that is intimately associated with the judicial phase of the criminal process. A prosecutor is shielded by absolute immunity when he acts as an advocate for the State but not when his acts are investigative and unrelated to the preparation and initiation of judicial proceedings. These standards also apply to a prosecutor's acts in initiating civil proceedings as long [as] the prosecutor is functioning in an enforcement role analogous to his role in criminal proceedings... Moreover, absolute ...

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