United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, UNITED STATES DISTRICT JUDGE
complaint stems from a local real estate dispute and the City
of Markham's attempt to declare a piece of property
abandoned. Within their 29 page, 151 paragraph Second Amended
Complaint, Plaintiffs' allege violations of the Fourth,
Fifth, and Fourteenth Amendments, alongside causes of action
for Intentional Infliction of Emotion Distress, criminal
damage to property, and one count of violating the Freedom of
Information Act. (Dkt. 74). Plaintiffs' filed this
wide-ranging civil rights complaint against an even more
widespread collection of Defendants. Plaintiffs name as
Defendants, the City of Markham, the Markham Police
Department, Roger Agpawa as the mayor of Markham and Fire
Chief of the City of Country Club Hills, William Lawrence as
the City of Markham Public Works Director, Steven Miller as
Attorney for the City of Markham, Michelle Broughton Fountain
as Attorney for the City of Markham, Demarus Rogers as a Code
Enforcement Officer for the City of Markham, Cook County
Boardup, Inc., Cadillac- ASAP Process Service &
Investigations LLC, and 100 “Does.” Id.
Defendants filed three separate Motions to Dismiss, each
moving for dismissal on a variety of grounds. (Dkts. 80, 82,
82). However, the Court need not reach the substantive merits
of the Motions as jurisdiction is not proper here. The
Younger doctrine mandates abstention and therefore
Plaintiffs' Second Amended Complaint
(“SAC”) is dismissed for lack of subject matter
well-pleaded allegations in Plaintiffs' SAC are taken as
true for purposes of these Motions to Dismiss. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
September of 2018, Plaintiffs Billup-Dryer and Heath provided
Defendants William Lawrence and Steven Miller with a Power of
Attorney executed by Plaintiff Skirmont to Plaintiff Heath
for the property located at 16625 Hillcrest Drive in Markham,
Illinois (“Hillcrest property”). (Dkt. 74, pg.
On September 14, 2018, Miller received a phone call from
Heath's attorney who informed Miller that the property
had been boarded up and requested that the City remove the
boards. (Id. at pg. 11). By September 17, 2018, the
boards had been removed, but the property suffered damage as
a result of them being torn off. (Id.). Plaintiffs
informed the City and requested compensation for the damage
or, in the alternative, to have the compensation credited
toward the $1, 200 in outstanding fines on the Hillcrest
property. (Id. at pgs. 11-12). Over the course of
the next month, Plaintiffs continued to receive fines and
tickets related to the conditions of the Hillcrest property.
(Id. at pgs. 12-13).
October 26, 2018, the City of Markham filed a petition in the
Circuit Court of Cook County seeking to have the Hillcrest
property declared abandoned. (Id. at pgs. 6-7).
Michelle Broughton-Fountain, an attorney for the City of
Markham, filed the petition. (Dkt. 84-6, pg. 2). Andrea
Billups-Dryer, Kiiyana Heath, Michael Skirmont, and Ralpheal
Valentine are all named as defendants in the state court
matter. (Id.). The City alleged that the property
owner was delinquent on taxes for more than two years, the
property was unoccupied, and that the property was unsafe,
dangerous, a public hazard, and a nuisance. (Dkt. 74, pg. 7).
over two months after the City of Markham initiated its state
court action, Plaintiffs filed the instant federal lawsuit.
(Dkt. 1). The language of the SAC is meandering and, at
times, incoherent, but the relief Plaintiffs seek is clear.
Plaintiffs seek to have this Court enjoin Defendants from
“causing further damage to the property, harassing,
intimidating, illegally searching and seizure of the
property, ” have this court declare the Hillcrest
property “NOT abandoned, ” and to prevent the
state court from “issuing a Judicial Deed to the City
of Markham.” (Dkt. 74, pg. 29).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
complaint must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A Rule 12(b)(6)
motion is meant to challenge the legal sufficiency of the
complaint. Christiansen v. Cnty. of Boone, Ill., 483
F.3d 454, 457 (7th Cir. 2007). The Court accepts all
well-pleaded allegations as true and views them in a light
most favorable to plaintiff. Appert v. Morgan Stanley
Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012).
Though, the Court need not accept as true statements of law
or statements that are merely conclusory and unsupported
factual allegations. McCauley v. City of Chicago,
671 F.3d 611, 616 (7th Cir. 2011). Plaintiff's complaint
must allege facts that establish its right to relief is more
than speculative. Cochran v. Ill. State Toll Highway
Auth., 828 F.3d 597, 599 (7th Cir. 2016).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, …
which is not to be expanded by judicial decree.”
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994). To determine whether jurisdiction exists, the
court turns to the complaint along with evidence outside of
the pleadings. Apex Digital, Inc. v. Sears, Roebuck &
Co., 572 F.3d 440, 444 (7th Cir. 2009). A court lacking
subject-matter jurisdiction must dismiss the action without
proceeding to the merits. Intec USA, LLC v. Engle,
467 F.3d 1038, 1041 (7th Cir. 2006).
Court first addresses three recently filed Motions by
Billups-Dryer. On October 21, 2019, approximately one month
after Defendants' Motions to Dismiss became fully
briefed, Billups-Dryer filed a Motion to Amend the SAC. (Dkt.
117). Billups-Dryer's sole ground for requesting leave to
amend in her two sentence motion is that she has a
“documented medical condition.” Id. The
SAC already represents Plaintiffs' third attempt at
pleading their federal claims and the instant Motion comes at
a highly disruptive stage of the litigation. Granting
Plaintiffs leave to amend their complaint a third time at
this late stage would most likely lead to yet another round
of briefing on a motion to dismiss. Accordingly,
Billups-Dryer's Motion for leave to amend (Dkt. 117) is
denied. Fed.R.Civ.P. 15(a)(2). Billups-Dryer also seeks leave
to proceed in forma pauperis and for this Court to
recruit counsel on her behalf. (Dkts. 118, 119). The Court
already denied Billups-Dryer's earlier motion for
attorney representation. (Dkt. 76). Aside from considering
whether an individual meets the financial requirements for
relief, in reviewing applications to proceed in forma
pauperis and for attorney representation, the district
court is required to screen a plaintiff's complaint and
determine whether the action is “frivolous or
malicious; fails to state a claim on which relief may be
granted; or seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2).
Because the Court ultimately dismisses the SAC for want of
subject matter jurisdiction, Billups-Dryer's requests to
proceed in forma pauperis and for attorney
representation are dismissed. See e.g., Cook Cty.
State's Attorney ex rel. Devine v. Tyler, 2007 WL
2028547, at *1 (N.D. Ill. July 10, 2007).
speaking, a federal district court need not abstain from
hearing a case merely because a state court matter exists
concerning the same subject matter. See Colorado River
Water Conservation District v. United States, 424 U.S.
800, 817 (1976). However, the Younger abstention
doctrine represents an important exception to that general
rule. Younger abstention “requires
federal courts to abstain from taking jurisdiction over
federal constitutional claims that involve or call into
question ongoing state proceedings.” FreeEats.com,
Inc. v. Indiana, 502 F.3d 590, 595 (7th Cir. 2007)
(emphasis added). Younger abstention is implicated
where a federal plaintiff is attempting to call in to
question or enjoin ongoing state proceedings. Forty One
News, Inc. v. Cty. of Lake, 491 F.3d 662, 665 (7th Cir.
2007). Federal courts must “abstain from enjoining
ongoing state proceedings that are (1) judicial in nature,
(2) implicate important state interests, and (3) offer an
adequate opportunity for review of constitutional claims, (4)
so long as no extraordinary circumstances-like bias or
harassment-exist which auger against abstention.”
FreeEats.com, 502 F.3d at 596 (quoting Majors v.
Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998))
all four Younger factors are met and Plaintiffs do
not mount any response to this argument in their
Response. First, the state court case is ongoing
(No. 2018 M6 012211) and no doubt judicial in nature. See
Taylor v. Marion Cty. Circuit Court No. 1, 284 Fed.Appx.
354, 357 (7th Cir. 2008) (“[A] lawsuit filed in a state
court is undisputably judicial in nature, regardless of the
parties involved.”). Second, the state court
abandonment proceeding implicates a legitimate and important
state interest. See Goodluck v. City of Chicago, 70
F.3d 1274 (7th Cir. 1995) (affirming district court's
exercise of Younger abstention where City of Chicago
had initiated state court abandonment proceedings). The state
has a legitimate interest in enforcing its laws and codes for
purposes of public health and safety. Vill. of Lake Villa
v. Stokovich,211 Ill.2d 106, 129 (2004). Third, the
state court proceeding provides Plaintiffs with an adequate
opportunity to air their claims. Plaintiffs do not contest
they had timely notice of the abandonment proceedings ...