United States District Court, N.D. Illinois, Eastern Division
JAY F. SHACHTER, Plaintiff,
CITY OF CHICAGO, THOMAS A. DORAN, KELLEY A. GANDURSKI, and J. ALLEN THOMAS, Defendants.
MEMORANDUM OPINION AND ORDER
M. Rowland United States District Judge.
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).
reasons explained below, the Court grants the motion to
dismiss , and also grants Shachter leave to replead
consistent with this opinion.
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. ¶
(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).
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).
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).
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).
Property Damage (Count I)
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
Court agrees that immunity shields the Defendants. With
regard to prosecutorial immunity, the Seventh Circuit has
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 ...