Norwood v. Haas

Filing 47

OPINION. Defendant United States of America's Motion for Judgment on Pleadings (d/e 38) is DENIED. Entered by Judge Sue E. Myerscough on 9/23/2011. (CC, ilcd)

E-FILED

Friday, 23 September, 2011 05:28:00 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
LARRY W. NORWOOD,

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Plaintiff,
v.
UNITED STATES OF AMERICA,
et al.,
Defendants.

10-3001

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
The Court now considers Defendant United States’ Motion for
Judgment on Pleadings. See d/e 38 (Motion). For the reasons stated
below, the Motion is DENIED.
FACTS
Plaintiff Larry Norwood claims that one of three people took his
personal property at the time the U.S. Drug Enforcement Agency
(“DEA”) arrested him on April 24, 2006. Norwood filed suit against all
three people, Defendants Special Agent Glen Haas, Special Agent Tim
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Hansen, and Francisco Javier Luevano-Cisneros. Norwood also sued
Defendant United States of America. Norwood claims that he was
transported by Haas to the U.S. Courthouse on April 25, 2006. Norwood
alleges that once at the Courthouse, Haas took a black toiletry bag, a gold
Rolex watch, a gold Cartier bracelet, 2 diamond rings, 5 cell phones,
$750 in currency, 2 lighters and 3 packs of cigarettes from Norwood.
Norwood was given a receipt for the property. However, Norwood later
was given another receipt showing that the property had been released to
Defendant Cisneros. Norwood denies authorizing the release of his
personal property.
Norwood claims that the United States violated the Tucker Act, 28
U.S.C. § 1491 insofar as its agent, SA Haas, took Norwood’s property
without providing just compensation. See Amended Complaint (d/e 25)
at Count III. Alternatively, Norwood claims that Haas is liable for
conversion because Haas took Norwood's property for his own personal
use. Id. at Count IV. To support these claims, Norwood specifically
alleges that the Defendants took his personal property for their “own use

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with the intent to permanently deprive Plaintiff.” Id. at ¶¶ 21- 25.
Pursuant to Federal Rule of Civil Procedure 12(c), the United
States moves to dismiss Norwood’s Tucker Act claim (Count III) for
failure to state a claim. Norwood has responded. The matter is ripe for
this Court’s ruling.
STANDARD
Federal Rule of Civil Procedure 12(c) states that “[a]the pleadings
are closed—but early enough not to delay trial—a party may move for
judgment on the pleadings. Id. The same standard applies for deciding a
Rule 12(c) motion as that used when reviewing a motion to dismiss for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
See Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007).
Therefore, under Rule 12(c) the court accepts all well-pleaded allegations
as true and draws all reasonable inferences in favor of the plaintiff. See
Finch v. Peterson, 622 F.3d 725, 728 (7th Cir. 2010).
Rule 12(c) permits judgment based on the pleadings alone, which
include the complaint, the answer, and any written instruments attached

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as an exhibit. See Northern Ind. Gun & Outdoor Shows, Inc. v. City of
South Bend, 163 F.3d 449, 452 (7th Cir. 1998). To avoid dismissal, a
plaintiff must plead sufficient facts to state a claim of relief that is
plausible on its face. See Ashcroft v. Iqbal, ___U.S. ___, ___, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). When
deciding Rule 12(c) motions, courts need not ignore facts contained in
the pleadings that undermine a plaintiff's claim. See Northern Ind. Gun
& Outdoor Shows, Inc., 163 F3d at 452.
ANALYSIS
In Count III of his Amended Complaint, entitled “Tucker Act”,
Norwood alleges that “Defendant United States of America acting by and
through its agents took Plaintiff’s property and refused to pay Plaintiff
just compensation.” Id. at ¶ 30. The United States argues that Tucker
Act is a jurisdictional statute and does not create any substantive right of
action in and of itself. See United States’ Memorandum in Support of
Motion For Judgment on Pleadings (d/e 39) at 2, citing United States v.

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Testan, 424 U.S. 392, 398 (1976) (“The Tucker Act, of course, is itself
only a jurisdictional statute; it does not create any substantive right
enforceable against the United States for money damages.”). Therefore,
the United States argues that “[w]ithout more, the plaintiff’s [amended]
complaint fails and judgment should be entered on behalf of the United
States.”
While it is true that the Tucker Act creates no substantive right,
Norwood has plainly alleged a substantive violation of his Fifth
Amendment right by asserting that the United States took his property
without proving “just compensation.” See Amended Complaint at ¶ 30.
Implicitly recognizing that Norwood’s assertion sufficiently states a
substantive violation of a legal right, the United States argues that
dismissal should nonetheless be granted under Rule 12(c) because a Fifth
Amendment claimant must prove that his property was taken for a public
use. See United States’ Memorandum in Support of Motion For
Judgment on Pleadings (d/e 39) at 2, citing Hawaii Housing Authority v.
Midkiff, 467 U.S. 229, 245 (1984). Since Norwood alleged that the

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Defendants took his property for their “own use”, the United States
argues that Norwood cannot prove the requisite “public use” for purposes
of a Fifth Amendment claim. See United States’ Memorandum in
Support of Motion For Judgment on Pleadings (d/e 39) at 2, citing
Midkiff, 467 U.S. at 245.
In support of its Rule 12(c) Motion, the United States cites
Midkiff, an eminent domain case, for the proposition that “[a] purely
private taking could not withstand the scrutiny of the public use
requirement; it would serve no legitimate purpose of government and
would thus be void.” See Midkiff, 467 U.S. at 245. While Midkiff
recognized that “public use” was necessary to establish a valid exercise of
eminent domain, the decision did not hold that a Fifth Amendment
claim fails unless a plaintiff shows the property he has been deprived of
was used for a public purpose. In any event, the Seventh Circuit has
indicated that plaintiffs can proceed on Fifth Amendment claims without
proving that the property they were deprived of had been taken for a
public use. In Schroeder v. City of Chicago, 927 F.2d 957, 961 (7th Cir.

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1991), the Court stated that although “the takings clause, read literally,
is limited to takings for a public use . . . there is authority [noted in
Conniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 464-64
(7th Cir. 1988)], for regarding a taking for a private use as forbidden by
the takings clause altogether . . . . a claim is properly laid under the
takings clause of the Fifth Amendment . . . .” Given the Seventh
Circuit’s decisions in Schroeder and Conniston, the United States is not
entitled to judgment on the pleadings with respect to the Fifth
Amendment claim Norwood states in Count III.
CONCLUSION
THEREFORE, Defendant United States of America’s Motion for
Judgment on Pleadings (d/e 38) is DENIED.
IT IS SO ORDERED.
ENTERED: September 23, 2011
FOR THE COURT BY:

s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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