Lane v. Putnam County Sheriff's Department et al
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 4/18/2017. IT IS THEREFORE ORDERED that pursuant to 28 U.S.C. §1915(e), the Court finds that Plaintiffs claims are untimely and that Plaintiff has failed to state a claim upon which relief may be granted. Plaintiffs Complaint 1 is dismissed in its entirety with prejudice. All pending motions [15, 21, 26, and 29] are DENIEDAS MOOT. CASE TERMINATED.(RK, ilcd)
E-FILED
Tuesday, 18 April, 2017 11:30:09 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JOYCE LANE,
Plaintiff,
v.
PUTNAM COUNTY SHERIFF’S
DEPARTMENT, WILLIAM MUCCI,
and DAVID LEIGH.
Defendants.
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Case No. 1:16-cv-01435-JBM-JEH
ORDER & OPINION
This matter is before the Court on a sua sponte review under 28 U.S.C. §
1915(e). For the reasons stated below, the Court finds that Plaintiff has failed to state
a claim upon which relief may be granted and her claims must be dismissed.
I. PROCEDURAL HISTORY
On November 8, 2016, Plaintiff filed this complaint under 42 U.S.C. § 1983
alleging that Defendants Leigh, Mucci, and the Putnam County Sheriff’s Department
had violated her constitutional rights by forcefully evicting her from her home. (Doc.
1). Plaintiff also filed a motion for leave to proceed in forma pauperis. (Doc. 2). On
November 17, 2016, the Court granted Plaintiff’s motion for leave to proceed in forma
pauperis. (Doc. 3). The Court also performed a screening of Plaintiff’s Complaint
pursuant to 28 U.S.C. § 1915(e). (Doc. 3). The Court found that based on the
Complaint, the Court could not find at that stage in the litigation that Plaintiff had
failed to state a claim upon which relief could be granted. (Doc. 3 at 2).
On March 14, 2017, Plaintiff filed an exhibit to her Complaint. (Doc. 28). The
exhibit was an additional eight pages of factual pleadings pertaining to the
Complaint. (Doc. 28). Because of the additional facts, it appeared to the Court that
the Plaintiff may have pled herself out of Court by establishing that her claims are
not redressable. Therefore, on March 28, 2017, the Court issued an order requiring
Plaintiff to show cause as to whether she had failed to state a claim upon which relief
could be granted. See Mar. 28, 2017 Text Order. On April 6, 2017, Plaintiff filed her
response to the order to show cause. (Doc. 31). The Court now reviews Plaintiff’s
Complaint, her additional facts, and her response to the show cause order pursuant
to 28 U.S.C. § 1915(e).
II. LEGAL STANDARDS
The complaint of a plaintiff proceeding in forma pauperis must be dismissed at
any time, if the Court deems that it 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). When evaluating whether a pro se
plaintiff has stated a claim under § 1915(e)(2)(B), courts use the same standards that
apply to Federal Rule of Civil Procedure 12(b)(6) motions. Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). Therefore, the court will take “all
well-pleaded allegations of the complaint as true and view[ ] them in the light most
favorable to the plaintiff. Id. (citing Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
2011). A plaintiff need only give “‘fair notice of what the . . . claim is and the grounds
upon which it rests.’” EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776-77 (7th
Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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Furthermore, a pro se complaint is to be construed liberally and held to “less stringent
standards than a formal pleadings by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
There are two ways a plaintiff can find his or her case dismissed for failing to
state a claim upon which relief may be granted. The first is if the plaintiff did not
allege enough facts to state a claim that would be plausible on its face. Hecker v. Deere
& Co., 556 F.3d 575, 580 (7th Cir. 2009) (citations omitted). To be facially plausible,
a complaint must allow the court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
The second is if he or she pled facts that show he or she has no legal claim.
Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011). This includes not only the
facts alleged within the complaint, but also the facts from documents that were
incorporated into the pleadings. In re Wade, 969 F.2d 241, 249 (7th Cir. 1992). If the
plaintiff voluntarily provides unnecessary facts in his or her complaint, those facts
may be used to show that the plaintiff is not entitled to relief. Tamayo v. Blagojevich,
526 F.3d 1074, 1086 (7th Cir. 2008) (citations omitted).
III.
FACTUAL BACKGROUND
Plaintiff’s claims arise from the forced eviction from her rental home. At this
stage of the proceedings, the Court takes Plaintiff’s well-pled allegations as true and
draws all reasonable inferences in favor of the Plaintiff. On November 6, 2014,
Plaintiff had a hearing in her divorce proceedings against Defendant Leigh. (Doc. 28
at 5). When she returned home, she discovered that the locks had been changed and
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her key did not work. (Doc. 28 at 5). Plaintiff then called the Putnam County Sheriff’s
Department and informed them that she needed their help to get into the house. (Doc.
28 at 6). Officer Physcia responded that if it was her house, she should break the
window and go in. (Doc. 28 at 6).
On November 8, 2016, Plaintiff returned to the house with her sister and
cousin. (Doc. 28 at 7). A locksmith, whom Plaintiff had contacted, was unable to meet
them in the morning, so Plaintiff left for lunch. (Doc. 28 at 7). As she was leaving, she
noticed a sheriff’s car following her. (Doc. 28 at 7). She pulled her vehicle over and
the officer approached her window. (Doc. 28 at 7). The officer informed her that he
had received a call that she was trying to break into the house. (Doc. 28 at 7). Plaintiff
took the officer’s recorder and stated her name and that it was her home. (Doc. 28 at
8). The officer then informed her that he would meet her at the house after lunch.
(Doc. 28 at 8).
When Plaintiff returned that afternoon, Officer Kasenski was waiting. (Doc.
28 at 8). He informed Plaintiff that Defendant Mucci had called him and told him
that he owned the property and had eviction papers for Plaintiff. (Doc. 28 at 8). Officer
Kasenski informed Plaintiff that he had orders to remove Plaintiff’s goods from the
home. (Doc. 28 at 8). The officer proceeded to remove Plaintiff’s goods as she identified
them. (Doc. 28 at 8). While moving, Plaintiff noticed that her “357 gun” and $5,000 in
cash were missing from her possessions in the house. (Doc. 28 at 8). Plaintiff alleges
that Defendants violated her due process by forcibly evicting her from her home and
without the proper documentation, according to Forcible Entry and Detainer Act, 735
Ill. Comp. Stat. 5/9-101.
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IV. DISCUSSION
Plaintiff has failed to state a claim upon which relief may be granted because
Plaintiff’s filing was untimely. Under Illinois law, § 1983 lawsuits are governed by a
two-year limitations period that applies to all personal injury torts. Washington v.
Summerville, 127 F.3d 552, 555 (7th Cir. 1997). Plaintiff was evicted from her house
when the locks on her doors were changed which occurred on November 6, 2014. See
Pipefitters Welfare Educ. Fund v. Westchester Fire Ins. Co., 976 F.2d 1037, 1040 (7th
Cir. 1992) (explaining that the plain and ordinary meaning of eviction “denote[s]
actions taken by landlords with the intent to deprive tenants of their right to occupy
or enjoy leased premises”) (citing Zion Indus., Inc. v. Loy, 361 N.E.2d 605, 608 (Ill.
App. 1977)). Therefore, Plaintiff had until November 7, 2016 to file her Complaint.1
Her Complaint was filed on November 8, 2016, which is beyond the applicable statute
of limitations. (Doc. 1).
The issue of timeliness is an affirmative defense, rather than a jurisdictional
requirement. Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982). Therefore, the
court does not typically address it while screening a complaint, but rather, waits for
a defendant to raise timeliness as an affirmative defense. Calvin v. Sub-Zero Freezer
Co., No. 16-cv-552-JDP, 2016 U.S. Dist. LEXIS 108995, at *5 (W.D. Wis. Aug. 17,
2016) (citing E.E.O.C. v. Watkins Motor Lines, Inc., 553 F.3d 593, 596 (7th Cir. 2009)).
However, the United States Court of Appeals for the Seventh Circuit has instructed
district courts to invoke affirmative defenses on behalf of defendants, who have not
The Court notes that November 6, 2016 was a Sunday. Therefore, pursuant to
Federal Rule of Civil Procedure 6, Plaintiff’s time to commence the action was
automatically extended to the following Monday.
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had the chance to do so, only if it is plain from the language of the complaint that the
affirmative defense renders the suit frivolous. Id. (citing Gleash v. Yuswak, 308 F.3d
758, 760 (7th Cir. 2002)). The untimeliness of the complaint is sufficient reason for
this Court to dismiss the action.
But even if Plaintiff’s Complaint was timely, the additional facts she has
provided make it clear that Plaintiff has failed to state a claim upon which relief may
be granted. Plaintiff’s Complaint against Defendants Mucci and Leigh fails to state a
claim because Plaintiff fails to allege sufficient facts to plausibly assert that they are
state actors. In order to assert a claim under § 1983, there must be “state action.”
Allen v. Chase Home Fin. LLC, No. 10-C-8270, 2011 U.S. Dist. LEXIS 99359, *10
(N.D. Ill. Sep. 2, 2011) (dismissing a § 1983 complaint for wrongful eviction against a
landlord who used a local sheriff’s department to evict plaintiff) (citing Wade v. Byles,
83 F.3d 902, 904 (7th Cir. 1996)). A plaintiff suing private entities under § 1983 claims
must show that their actions are fairly attributable to the state. Obi v. Chase Home
Fin., LLC, No. 10-C-3154, 2010 U.S. Dist. LEXIS 123201, *16 (N.D. Ill. Nov. 19, 2010).
“A plaintiff could show (1) the state commanded or encouraged the action, (2) the
private entities were acting jointly with the state, (3) the state and the private entity
had a symbiotic relationship, or (4) the private entity was performing a public
function.” Id. (citing Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 823-24
(7th Cir. 2009)).
However, Plaintiff does not allege anything of the sort. The only state
interaction the Plaintiff alleges is that Defendant Mucci called the Sheriff’s Office
and told them that she had been evicted and that he would provide the paperwork on
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the following Monday. However, “[p]rivate actors do not act under the color of the law
merely by requesting the assistance of the law, even when they may not have the
grounds to do so. A conspiracy to violate a plaintiff’s constitutional rights must exist.”
Mumm v. Wetter, No. 05-C-6149, 2006 U.S. Dist. LEXIS 2039, *10-11 (N.D. Ill. Jan.
20, 2006); see also Proffitt v. Ridgway, 279 F.3d 503, 508 (7th Cir. 2002); Hughes v.
Meyer, 880 F.2d 967, 972 (7th Cir. 1989). This means that Plaintiff had a duty to
plead facts that shows the Defendants had an agreement to deny Plaintiff her civil
rights. Plaintiff’s allegation that Defendant Mucci used the Sheriff’s Department to
enforce an eviction notice that he never had is not sufficient to transform him into a
state actor. Plaintiff alleges no facts that would plausibly support that there was a
conspiracy between the Sheriff’s Department and Defendant Mucci. She has not pled
anything to reasonably conclude the Sheriff Department’s officers had any idea that
they were taking part in an illegal eviction.
Additionally, Plaintiff provides no allegations that Defendant Leigh interacted
with the Sheriff’s Department at all. Therefore, Plaintiff provides no plausible
support for considering Plaintiff Leigh a state actor. Plaintiffs Leigh and Mucci may
have violated state law; but Plaintiff has not alleged enough to support § 1983
liability against these private individuals.
Lastly, Plaintiff has not alleged facts to support a claim against the Sheriff’s
Department. As a municipality, the Sheriff’s Department cannot be liable for the
actions of its agent through a theory of respondeat superior. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978). A municipality may be liable under a § 1983 claim
if its actions amount to an “official custom or policy.” City of Canton v. Harris, 489
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U.S. 378, 387 (1989). An official policy or custom may be proven via three methods:
(1) an express policy of the municipality, (2) a practice that is so widespread and
permanent that it is considered a custom or usage of the municipality, or (3) the actor
is a person with final policymaking authority in the municipality. Wragg v. Vill. of
Thornton, 604 F.3d 464, 468 (7th Cir. 2010) (internal citations omitted). Plaintiff has
not alleged any facts that would support liability of the Sheriff’s Department. Plaintiff
did not allege that the Sheriff’s Department changed her locks or threatened to arrest
her if she did not leave the house. Nor has she alleged that the Sheriff Department
has a policy, custom or practice of enforcing illegal evictions. Plaintiff’s only allegation
is that the Sheriff’s Department removed her personal goods after being informed
that there was an eviction notice against her.
V. CONCLUSION
IT IS THEREFORE ORDERED that pursuant to 28 U.S.C. §1915(e), the Court
finds that Plaintiff’s claims are untimely and that Plaintiff has failed to state a claim
upon which relief may be granted. Plaintiff’s Complaint (Doc. 1) is dismissed in its
entirety with prejudice. All pending motions (Docs. 15, 21, 26, and 29) are DENIED
AS MOOT. CASE TERMINATED.
Entered this __18th__ day of April, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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