United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr. United States District Judge.
13, 2018, Craig Grafton went to inspect his late mother's
home, in which he has a 1/3 ownership interest. The house was
locked and appeared to be empty. Mr. Grafton called the
police, obtained permission to break a window and enter the
home, and encountered his brother, who was living there and
also has a 1/3 interest in the house. The defendant police
officers briefly spoke with Mr. Grafton's brother and
then asked Mr. Grafton to leave the premises. Mr. Grafton,
who is proceeding pro se, filed this action alleging
that the defendant police officers interfered with his
property rights in the home by asking him to leave, that they
conspired with his brother, and that they forced him to file
an eviction action to gain entry to the property and denied
him a police report. The defendants filed a motion to dismiss
for failure to state a claim upon which relief can be
granted. The Court does not doubt the humiliation that Mr.
Grafton says he experienced that day, but agrees that he has
not stated a cognizable claim for relief. The motion to
dismiss is granted.
Grafton went to his late mother's house, 7842 S. May
Street in Chicago, on May 13, 2018 to inspect the property as
administrator of his mother's estate. See Compl.
¶ 6, ECF No. 10. Though Mr. Grafton's brother was
present at the home, he did not answer when Mr. Grafton
knocked and rang the doorbell. Tr. at 4:25-5:1, ECF No.
Mr. Grafton called 911, and when the police arrived he showed
them probate paperwork proving his 1/3 interest in the home
and asked permission to break a window to enter. Id.
at 5:1-7. The police officers assented, and Mr. Grafton did
so. Id. at 5:7-9. Mr. Grafton's brother, who
also has a 1/3 interest in the home, id. at 7:16-22,
appeared. The police officers briefly spoke with Mr.
Grafton's brother, and then asked Mr. Grafton to leave
the premises. Id. at 5:13-16. Though the police
threatened arrest if he stayed, id. at 5:15-20, Mr.
Grafton was not arrested and does not allege any physical
contact with the defendant police officers. He brings this
action under 42 U.S.C. § 1983 alleging interference with
his property rights and obligations to the estate, as well as
conspiracy, in being asked to leave the home, and complains
he was denied a police report describing the incident that
day. Compl. ¶ 6, ECF No. 10.
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint. Hallinan v. Fraternal Order
of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). To survive such a motion, “a complaint must
contain 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)). A claim “has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. Legal
filings by pro se litigants are to be liberally
construed. Mallett v. Wis. Div. of Vocational
Rehab., 130 F.3d 1245, 1248 (7th Cir. 1997). In ruling
on a motion to dismiss under Rule 12(b)(6), a court must
construe all factual allegations as true and draw all
reasonable inferences in the plaintiff's favor, but the
court need not accept legal conclusions or conclusory
allegations. Iqbal, 556 U.S. at 680-82.
Mr. Grafton asserts that his constitutional rights were
violated in being asked to leave his late mother's house.
Whether construed as a Fourteenth or Fourth Amendment
violation, Mr. Grafton ultimately does not state a claim upon
which relief can be granted. Beginning first with a
Fourteenth Amendment claim, Mr. Grafton asserts that he was
forced to file an eviction proceeding to regain possession of
the property. The fact that an eviction proceeding remained
open to him- and, in fact, that he was required to file such
a proceeding rather than engaging in self-help- forecloses this
claim. Unlike the deprivation of property in Johnson v.
City of Evanston, 250 F.3d 560, 562 (7th Cir. 2001), in
which the plaintiff had “no remedy, period” that
“might supply whatever process is due, ” Mr.
Grafton was at all times able to file eviction proceedings to
regain possession of the house. Because he was not deprived
of due process, this part of his § 1983 claim fails.
Insofar as Mr. Grafton alleges that the police failed to
protect his property interest from his brother, these claims
are equally unavailing, as “if private actors seize
property, the police will not be liable under § 1983
just for failing to order its release.” Hansen v.
Cannon, 122 Fed.Appx. 265, 269 (7th Cir. 2004).
next to a potential Fourth Amendment claim, “the
question of whether a seizure has occurred when police
officers merely instruct an individual to leave their home
remains unresolved, ” Wozniak v. Zielinski,
No. 14-CV-05009, 2016 WL 5373077, at *11 (N.D. Ill. Sept. 26,
2016) (internal quotation marks omitted), particularly as
many of these cases are decided on qualified immunity
grounds. The metric for whether a seizure has occurred is
generally whether one feels “free to leave” a
police encounter, see, e.g., Spiegel v. City of
Chicago, 106 F.3d 209, 211 n.2 (7th Cir. 1997) (finding
that a former tenant who was evicted from his apartment and
prevented by police from re-entering was
“certainly” free to leave, as he “could
have gone anywhere with the exception of his former
apartment”). “[W]hen a person has no desire to
leave the scene of an encounter with police, ” as in
this case, however, “the appropriate inquiry is whether
a reasonable person would feel free to decline the
officer's request or otherwise terminate the
encounter.” Kernats v. O'Sullivan, 35 F.3d
1171, 1177 (7th Cir. 1994) (quoting Florida v.
Bostick, 501 U.S. 429, 435-36 (1991)). One
distinguishing factor in this context is whether the
individual was occupying the home at the time they were asked
to leave; while it may be a seizure to be asked to leave
one's current residence, non-residents may be asked to
leave the premises without constituting a seizure.
Compare Kernats, 35 F.3d at 1177-78, with
Spiegel, 106 F.3d at 211-12 (“The obvious
distinction between this case and Kernats is that
the Kernats family already was occupying its
dwelling when visited by the police; Spiegel was not, ”
id. at 211.); see also Wozniak, 2016 WL
5373077, at *12 (plaintiffs were not seized as a matter of
law when they were not currently residing at the apartment,
but “simply returned to the Apartment on that date
‘to try to get access to [their] stuff'” and
were asked by police to leave). In this case, even though Mr.
Grafton has a 1/3 interest in the home and was threatened
with arrest if he did not leave, he was not residing there,
and therefore he likely was not seized when police asked him
Mr. Grafton properly alleges that he was seized, however, his
§ 1983 claim fails because under the circumstances, the
seizure was not unreasonable. As “part of their
community caretaking function, ” police may
“separate parties to a domestic disturbance by ordering
one party to leave the premises regardless of whether that
order amounts to a seizure.” Lunini v. Grayeb,
184 Fed.Appx. 559, 563 (7th Cir. 2006) (citing White v.
City of Markham, 310 F.3d 989, 995-96 (7th Cir. 2002)).
While the facts alleged do not indicate that Mr. Grafton and
his brother were necessarily engaged in a domestic
disturbance, Mr. Grafton had just broken a window, albeit
with permission, and the police were within their rights to
separate the two before the situation potentially escalated.
In White, the Seventh Circuit held that “it
could not have been unreasonable for Officer Muldrow to
request White, the family member with the apparently inferior
property interest in remaining on the premises, to vacate . .
. Afterwards, when all of the facts were clear, it may have
been that Officer Muldrow was incorrect in that conclusion,
but a police officer cannot be expected to make that
determination when lamps are flying and family members are
shouting at each other.” 310 F.3d at 996. Applying the
same test here, Mr. Grafton appeared to have the inferior
possessory interest in the home, regardless of the probate
paperwork he provided, given that his brother had an equal
ownership interest and was residing in the home. It was not
unreasonable for the police officers to ask him to leave.
Accordingly, even if Mr. Grafton could properly allege a
seizure, his § 1983 claim fails because that seizure was
an underlying § 1983 violation, Mr. Grafton's
conspiracy claim also fails. A conspiracy is “an
agreement between two or more persons to accomplish an
unlawful purpose, ” United States v. Stotts,
323 F.3d 520, 522 n.1 (7th Cir. 2003). Here, as described
above, the defendant police officers did not have an unlawful
purpose, and a “person may not be prosecuted for
conspiring to commit an act that he may perform with
impunity.” House v. Belford, 956 F.2d 711, 720
(7th Cir. 1992). Mr. Grafton “cannot establish that
defendants conspired to violate his Fourth Amendment right
because, even if the officers ‘seized' [him] when
they ordered him to leave the . . . property, they did so
lawfully.” Lunini, 184 Fed.Appx. at 563.
though Mr. Grafton alleges that he was wrongfully deprived of
the police report describing that day, this allegation does
not rise to the level of a claim upon which relief can be
granted. As the plaintiff in a civil case, Mr. Grafton does
not have a property interest in or constitutional right to a
police report. If this case proceeded further, Mr. Grafton
may be entitled to receive a copy as a matter of discovery,
but as it stands he has not alleged a claim sufficient to
foregoing reasons, the defendants' motion to dismiss is
granted. The dismissal is without prejudice; to the extent
that Mr. Grafton can adduce additional facts or state a claim
upon which relief can be granted, he may file an amended
complaint by January 10, 2020.