O'Keefe v. Gist et al
Filing
24
OPINION entered by Judge Sue E. Myerscough on 8/16/2012. Magistrate Judge Cudmore's Report and Recommendation, d/e 21 is ADOPTED and Defendants' Motion to Dismiss, d/e 9 is GRANTED. Plaintiff's request for leave to file an amended complaint is denied. This case is CLOSED. (MAS, ilcd)
E-FILED
Friday, 17 August, 2012 01:20:42 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
PATRICK O’KEEFE,
Plaintiff,
v.
HAROLD GIST, in his capacity as a
police officer, and THE CITY OF
GIRARD, ILLINOIS, an Illinois
municipal corporation,
Defendants.
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No. 10-cv-3149
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This matter is before the Court on the Report and
Recommendation entered by Magistrate Judge Byron G. Cudmore. See
d/e 21. In the Report and Recommendation, Magistrate Judge Cudmore
recommends allowing the Motion to Dismiss (d/e 9) filed by Defendants
Harold Gist (“Gist”) and The City of Girard, Illinois (“Girard”).
Plaintiff, Patrick O’Keefe (“O’Keefe”), timely filed an Objection to the
Magistrate Judge’s Report and Recommendation (“Objections”) (d/e 22).
Page 1 of 25
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). This Court reviews de
novo any part of the Report and Recommendation to which a party has
properly objected. See 28 U.S.C. § 636(b)(1)(c). For the reasons set
forth below, the Court overrules the Objections and adopts Magistrate
Judge Cudmore’s Report and Recommendation. Accordingly,
Defendants’ Motion to Dismiss (d/e 9) is GRANTED.
I. BACKGROUND
A.
Plaintiff’s Complaint
On June 24, 2010, Plaintiff filed a three-count Complaint (d/e 1)
against Defendants. In Count I, Plaintiff seeks relief pursuant to 42
U.S.C. § 1983, alleging that Defendants violated Plaintiff’s due process
rights when Defendant Harold Gist gave Plaintiff’s dog, Boomer (“the
dog”), to another person, David Hagan (“Hagan”), without a hearing and
without Plaintiff’s consent. Compl. ¶ 24. In Count II, Plaintiff seeks a
declaratory judgment against Girard. Plaintiff asks this Court to declare
that the Girard Municipal Code of Ordinances (“Ordinance”), as
interpreted by Girard and its police officers, violates the Fourteenth
Page 2 of 25
Amendment of the United States Constitution and seeks an order
prohibiting enforcement of the Ordinance. Compl. ¶ 33. In Count III,
Plaintiff also alleges an Illinois common law claim for conversion against
Defendant Gist. Compl. ¶ 37. The parties are familiar with the specific
allegations of each count contained in Plaintiff’s Complaint, and this
information is fully set out in the “Statement of Facts” section of
Magistrate Judge Cudmore’s Report and Recommendation, adopted
herein.
B.
Defendants’ Motion to Dismiss Pursuant to Rule 12(b)(6)
On July 21, 2011, Defendants filed their Motion to Dismiss. In the
Motion to Dismiss, Defendants contend that all three counts of the
Complaint should be dismissed for failure to state a claim upon which
relief may be granted. Specifically, Defendants argue that Plaintiff fails
to adequately allege a due process violation (Count I) because Plaintiff
received the process that was due through a post-deprivation hearing in
the state court system, through which he retrieved the dog. See O’Keefe
v. Hagan, Macoupin County Circuit Court Case No. 09 LM 130.
Page 3 of 25
Additionally, Defendants argue that Count II should be dismissed
because Plaintiff is not entitled to any declaratory relief. Defendants
contend that because Plaintiff received ownership of the dog in a state
court proceeding, there is no ongoing, actual controversy that has not
been remedied. Defendants argue that Count III should be dismissed
because Plaintiff fails to adequately state a claim for conversion against
Defendant Gist. Finally, Defendants argue that Defendant Gist is
entitled to qualified immunity and absolute immunity.
C.
Magistrate Judge Cudmore’s Report and Recommendation and
Plaintiff’s Objections Thereto
As stated, the Report and Recommendation recommends that
Defendants’ Motion to Dismiss be granted. Plaintiff filed Objections, in
which Plaintiff disputes several of the findings in the Report and
Recommendation. Plaintiff states the following objections:1
(1) Plaintiff disputes the finding that Count I of the Complaint fails
to state a claim for deprivation of property without due process of law
These disputed findings are hereinafter collectively referred to as “Plaintiff’s
Disputed Findings.”
1
Page 4 of 25
(Pl.’s Obj. at 2);
(2) Plaintiff disputes the finding that Defendant Gist’s actions, as
alleged in the Complaint, were unauthorized (Pl.’s Obj. at 2);
(3) Plaintiff disputes the finding that Plaintiff was required to allege
in the Complaint that Plaintiff availed himself of post-deprivation
remedies and that those remedies were not sufficient (Pl.’s Obj. at 2);
(4) Plaintiff asserts that the Report and Recommendation
incorrectly states that Plaintiff believes Defendant Gist “correctly
interpreted the Ordinance to authorize him to change ownership of the
Dog” (Pl.’s Obj. at 3);
(5) Plaintiff objects to the Report and Recommendation to the
extent that it “appears to assume that Gist’s action of giving away
Boomer to a third party was not a terminal event, resulting in a
permanent deprivation of O’Keefe’s property” (Pl.’s Obj. at 3);
(6) Plaintiff disputes the finding that Porter v. DiBlasio, 93 F.3d
301 (7th Cir. 1996), is distinguishable from this case and objects to “the
failure of the Report and Recommendation to analyze this case pursuant
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to the DiBlasio analysis” (Pl.’s Obj. at 4);
(7) Plaintiff objects to the statement that “[a] state actor cannot
give notice to someone who is unknown” because Plaintiff believes the
statement suggests that Defendant Gist was not required to attempt to
provide notice to Plaintiff because the Dog did not have an identification
tag when it was in Defendant Gist’s custody (Pl.’s Obj. at 5);
(8) Plaintiff objects to the Report and Recommendation’s analysis
weighing the benefit of scanning stray animals for microchips against the
fiscal and administrative burden on the public. Plaintiff states that the
analysis “assumes, first, that a visual inspection for ownership indicia is
all that is necessary prior to the immediate termination of an ownership
interest, as occurred here” (Pl.’s Obj. at 6);
(9) Plaintiff disputes the finding that “[t]he fiscal and
administrative burden of requiring all municipalities to scan every stray
cat and dog for microchips would outweigh the burden imposed on pet
owners either to put identification tags on the animals or to use postdeprivation procedures to recover lost pets” (Pl.’s Obj. at 6-7);
Page 6 of 25
(10) Plaintiff disputes the finding that a post-deprivation remedy
was available and effective in this case;
(11) Plaintiff disputes the finding that Count II should be
dismissed because no concrete controversy is alleged;
(12) Plaintiff disputes the finding that Count III should be
dismissed for lack of subject matter jurisdiction if this Court dismisses
Counts I and II.
In the Objections, Plaintiff asks this Court to reject the Report and
Recommendation and grant Plaintiff leave to file an amended complaint
to further allege his Fourteenth Amendment due process claim. Plaintiff
also requests oral argument on his Objections and Motion to Dismiss.
II. ANALYSIS
Under Rule 12(b)(6), dismissal is proper where a complaint fails to
state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
To state a claim upon which relief can be granted, a complaint must
provide a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). That statement
Page 7 of 25
must be sufficient to provide the defendant with “fair notice” of the claim
and its basis. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 1964, 167 L. Ed. 2d 929, 940 (2007). This means that (1) “the
complaint must describe the claim in sufficient detail to give the
defendant ‘fair notice of what the . . . claim is and the grounds upon
which it rests” and (2) its allegations must plausibly suggest that the
plaintiff has a right to relief, raising that possibility above a “speculative
level.” EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th
Cir. 2007). While detailed factual allegations are not needed, a
“formulaic recitation of a cause of action’s elements will not do.”
Twombly, 550 U.S. at 555, 127 S. Ct. at 1965, 167 L. Ed. 2d at 940.
Conclusory allegations are “not entitled to be assumed true.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1951, 173 L. Ed. 2d 868, 885 (2009) (citing
Twombly, 550 U.S. 544 (2007)). “In ruling on Rule 12(b)(6) motions,
the court must treat all well-pleaded allegations as true and draw all
inferences in favor of the non-moving party.” In re marchFIRST Inc.,
Page 8 of 25
589 F.3d 901, 904 (7th Cir. 2009) (citing Tamayo, 526 F.3d at 1081).
As stated, Plaintiff disputes several specific findings of the Report
and Recommendation. However, Plaintiff has only provided argument
and supporting authority for the following four objections, all of which
relate to Count I: (1) Plaintiff disputes the finding that Porter v.
DiBlasio, 93 F.3d 301 (7th Cir. 1996), is distinguishable from this case
on the issue of whether Defendant Gist was required to scan the dog for a
microchip before concluding that the dog’s owner was unknown; (2)
Plaintiff objects to the statement that “[a] state actor cannot give notice
to someone who is unknown”; (3) Plaintiff asserts that the Report and
Recommendation incorrectly assumes that visual inspection for indicia of
ownership is all that is required before an official may terminate an
ownership interest; and (4) Plaintiff disputes the finding that a
post-deprivation remedy was available and effective in this case. The
Court addresses each of these arguments below.
A.
Plaintiff’s Complaint Fails to State a Claim for Violation of
Due Process (Count I)
In Count I, Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and
Page 9 of 25
alleges that Defendants violated Plaintiff’s due process rights when
Defendant Gist gave Plaintiff’s dog to Hagan without a hearing and
without Plaintiff's consent. All of Plaintiff’s supported objections dispute
the Report and Recommendation’s conclusion that Plaintiff has failed to
state a claim for violation of due process.
In order to state a claim for violation of due process, a plaintiff
must allege that he had a property interest, that he was deprived of that
property interest, and that the deprivation was without due process of
law. Luellen v. City of E. Chicago, 350 F.3d 604, 613 (7th Cir. 2004).
Here, Plaintiff was deprived of his property, his dog, from roughly July
2009 to December 2010. Therefore, the remaining issue is whether
Plaintiff was denied that property without due process of law.
“The presumption is that an individual is entitled to notice and an
opportunity for a hearing prior to the state’s permanent deprivation of
his property interest.” Porter, 93 F.3d at 305 (citing Logan v.
Zimmerman Brush Co., 455 U.S. 422, 434 (1982)). However, an
individual is not entitled to a pre-deprivation hearing in all
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circumstances. Porter, 93 F.3d at 305. “In some circumstances . . . a
postdeprivation hearing or a common-law-tort remedy satisfies due
process.” Tucker v. Williams, 682 F.3d 654, 660 (7th Cir. 2012) (citing
Zinermon v. Burch, 494 U.S. 113, 127, 110 S. Ct. 975, 108 L. Ed. 2d
100 (1990)). “When a predeprivation hearing is not required, due
process only requires that the government provide meaningful procedures
to remedy erroneous deprivations.” Tucker, 682 F.3d at 661 (citing
Parratt v. Taylor, 451 U.S. 527, 541, 101 S. Ct. 1908, 68 L. Ed. 2d 420
(1981)).
In determining what process satisfies due process, “‘the Supreme
Court has distinguished between (a) claims based on established state
procedures and (b) claims based on random, unauthorized acts by state
employees.’” Leavell v. Ill. Dept. of Natural Res., 600 F.3d 798, 804
(7th Cir. 2010) (quoting Rivera-Powell v. New York City Bd. of
Elections, 470 F.3d 458, 465 (2d Cir. 2006)). Where the deprivation is
pursuant to an established state procedure, “‘the state can predict when it
will occur and is in the position to provide a pre-deprivation hearing.’”
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Leavell, 600 F.3d at 805 (quoting Rivera-Powell, 470 F.3d at 465).
However, where the deprivation is random and unauthorized, a postdeprivation hearing or a common-law tort remedy for wrongful
deprivation satisfies procedural due process requirements. Zinermon,
494 U.S. at 128. In such cases, “the plaintiff must either avail herself of
state post-deprivation remedies ‘or demonstrate that the available
remedies are inadequate.’” Leavell, 600 F.3d at 805 (quoting Doherty v.
City of Chicago, 75 F.3d 318, 323 (7th Cir. 1996)).
This Court agrees with the Report and Recommendation’s
conclusion that Count I fails to state a claim for violation of due process.
Defendant Gist’s action—giving the dog to Hagan—was unauthorized
under the Ordinance. The Ordinance requires that stray dogs be
impounded. See Ordinance, § 3-2-8(A) (requiring officers of the Police
Department “to take up and impound in such place as may be designated
and set apart for that purpose, any dog found running at large or
unlicensed in the City, contrary to any of the provisions of this Chapter
or other regulations of the City or State”). The Ordinance directs that
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“where the owner or keeper of such dog is disclosed by any tax or license
tag worn by it or is otherwise known to the officers impounding the
same, the designated official shall make reasonable attempts to contact
the owner” of the dog. Ordinance, § 3-2-9. Instead of turning over the
dog to the Pound, Defendant Gist attempted to investigate the identity
of the dog’s owner on his own. Defendant Gist learned that a woman
named Laurent had found the dog several weeks earlier but had then
given the dog to a second woman named Lewis. Lewis had given the dog
to a third person, but the dog had escaped from the possession of the
third person shortly before Defendant Gist found the dog. After
speaking with Defendant Gist about the dog, Lewis relinquished
possession of the dog to Defendant Gist. The Ordinance provides that
unwanted animals “should be delivered to the County Animal Control
Facility for proper disposal.” See Ordinance, § 3-1-6. Instead of
delivering the dog to Macoupin County Animal Control or having the
dog impounded, Defendant Gist took the dog to Girard police
headquarters. Defendant Gist thereafter gave the dog to Hagan, who had
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expressed interest in becoming the owner of the dog. Based on these
alleged facts, this Court finds that Defendant Gist’s actions were
unauthorized under the Ordinance.
Because Defendant Gist’s actions were unauthorized, Plaintiff, in
order to state a claim for a violation of due process, is required to allege
that Plaintiff availed himself of post-deprivation remedies, including
common-law judicial remedies, and that those remedies were not
adequate. See Leavell, 600 F.3d at 802 (stating that, where the
deprivation is random and unauthorized, post-deprivation procedures
may be adequate)); Tucker, 682 F.3d at 660 (stating that, in some
circumstances, “a postdeprivation hearing or a common-law-tort remedy
satisfies due process”).
However, Plaintiff cannot allege that post-deprivation remedies
were not adequate because Plaintiff received full relief from an action in
state court. Courts have established that, where a pre-deprivation
hearing is not required, common-law judicial remedies provide adequate
post-deprivation procedures. See Tucker, 682 F.3d at 661 (finding that
Page 14 of 25
adequate post-deprivation procedures were available to the plaintiff
because the plaintiff could have brought a claim for conversion or
replevin); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993)
(finding that Illinois tort laws were adequate post-deprivation
procedures). Here, Plaintiff brought a replevin action in Macoupin
County Circuit Court and, in March 2010, that court issued an Order of
Replevin directing that the dog be returned to Plaintiff during the
pendency of the state court action. In December 2010, the court
awarded Plaintiff full ownership of the dog. This Court finds that
Plaintiff therefore received full post-deprivation relief through that state
court action. Accordingly, Plaintiff has failed to state a claim for
violation of due process.
This Court also agrees with Magistrate Judge Cudmore’s alternative
conclusion that Plaintiff has failed to state a claim for violation of due
process even if this Court were to consider Defendant Gist’s actions to
have been authorized by an unwritten policy or custom of the Girard
Police Department that misinterpreted the Ordinance, as Plaintiff
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contends. This Court finds that, even if Defendant Gist’s actions had
been authorized, Plaintiff was not entitled to a pre-deprivation hearing
under the circumstances of this case. As previously stated, “an individual
is entitled to notice and an opportunity for a hearing prior to the state’s
permanent deprivation of his property interest.” Porter, 93 F.3d at 305
(citing Logan, 455 U.S. at 434). However, a pre-deprivation hearing is
not always required. Porter, 93 F.3d at 305. In order to determine
whether a pre-deprivation hearing is required, courts must consider the
following three factors:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.
Mathews, 424 U.S. at 335. “The test for due process in the sense of
procedural minima, as set forth in Mathews v. Eldridge, 424 U.S. 319,
335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976), requires a comparison
of the costs and benefits of whatever procedure the plaintiff contends is
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required.” Van Harken v. City of Chicago, 103 F.3d 1346, 1351 (7th
Cir. 1997).
In this case, when Defendant Gist took lawful possession of the
dog, he did not know who the owner of the dog was. The dog was not
wearing an identification tag and was not otherwise identifiable through
visual inspection. Therefore, pre-deprivation notice to Plaintiff was not
possible given that Defendant Gist did not know that Plaintiff was the
owner of the dog. Walls v. City of Brookfield, 406 F.3d 458, 459 (7th
Cir. 2005) (finding that post-deprivation remedies were adequate where
notice was not possible). This Court agrees with Magistrate Judge
Cudmore that due process did not require Defendant Gist to scan the
dog for a microchip before concluding that the owner of the dog was
unknown. Requiring all municipalities to scan every stray dog for a
microchip would create fiscal and administrative burdens that would
outweigh the burden on pet owners to place identification tags on their
pets or else rely on post-deprivation remedies to recover their lost pets.
See Mathews, 424 U.S. at 335 (stating that the court should consider
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“the Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail”). Here, Girard does not have a scanner. In
order to scan the dog for a microchip, Defendant Gist would have had to
leave Girard and travel to a different city that is in possession of a
scanner or arrange a scan with a private veterinarian in possession of a
scanner.
This Court concludes that Defendant Gist’s visual inspection of the
dog was sufficient to conclude that the owner of the dog was unknown.
Because notice to Plaintiff was not possible, post-deprivation proceedings
were adequate to provide Plaintiff with due process in this case.
Plaintiff’s first three supported objections dispute Magistrate Judge
Cudmore’s alternative finding that, even if Defendant Gist’s actions had
been authorized, Plaintiff was not entitled to a pre-deprivation hearing
because Defendant Gist could not have provided pre-deprivation notice
to the unknown owner of the dog. Plaintiff argues that due process
required that Defendant Gist take additional steps beyond visual
Page 18 of 25
inspection of the dog, including scanning for a microchip, to determine
the dog’s owner before concluding that the owner of the dog was
unknown.
Specifically, Plaintiff first disputes Magistrate Judge Cudmore’s
finding that Porter v. DiBlasio, 93 F.3d 301 (7th Cir. 1996), is
distinguishable from this case on the issue of what process is due prior to
terminating an owner’s rights in seized animals. Pl.’s Obj. 4 (citing
Report and Rec. 15-16). This Court agrees with Magistrate Judge
Cudmore that Porter is distinguishable from this case. In Porter, county
officials seized nine horses that belonged to the plaintiff and terminated
the plaintiff’s interest in those horses without giving notice to the
plaintiff, even though the officials possessed documents that
demonstrated the plaintiff’s ownership of the horses. 93 F.3d at 303. In
Porter, the Seventh Circuit considered what process was due prior to
terminating the owner’s rights in the seized horses. Id. at 306. The court
applied the three-prong Mathews balancing test and concluded that the
state was required to provide the owner notice and an opportunity to be
Page 19 of 25
heard prior to permanently terminating the owner’s interest in the seized
animals. Porter, 93 F.3d at 307.
The court in Porter did not address the constitutional obligations of
an official where, as here, the official has no actual knowledge of the
owner’s identity. The court also did not address the issue of whether the
United States Constitution requires state and municipal officials to scan
seized animals for microchips. Therefore, Porter is distinguishable from
the present case. In this case, because the identity of the dog’s owner was
unknown to Defendant Gist, Gist could not give notice to the dog’s
owner. Because pre-deprivation notice to Plaintiff was not feasible, postdeprivation procedures were adequate to provide Plaintiff with due
process. See Walls, 406 F.3d at 459 (finding that post-deprivation
remedies for the seizure of the plaintiff’s dog were adequate where predeprivation notice was not feasible).
Next, Plaintiff disputes the Report and Recommendation’s
statement that “[a] state actor cannot give notice to someone who is
unknown” (Pl.’s Obj. 5 (citing Report and Rec. 14)). Plaintiff believes
Page 20 of 25
this statement incorrectly suggests that Defendant Gist was not required
to attempt to provide pre-deprivation notice to Plaintiff because the dog
did not wear an identification tag when it was in Defendant Gist’s
custody. Plaintiff’s objection to this statement is overruled. This Court
agrees with Magistrate Judge Cudmore that, if an official does not know
who the owner of a seized animal is, then the official cannot give notice
to that owner.
Plaintiff further argues that Defendant Gist was required to take
additional “reasonable steps” to notify the true owner of the dog before
concluding the dog’s owner was unknown. In support, Plaintiff cites
Section 5(c) of the Animal Control Act, 510 ILCS 5/5(c), which obligates
“municipal police officers [to] cooperate” with carrying out that statute,
and Section 10 of the same Act, 510 ILCS 5/10, which requires that the
County Animal Control Officer scan an impounded animal for a
microchip. Plaintiff also argues that the Report and Recommendation, in
its analysis of “benefits and burdens,” incorrectly “assumes, first, that a
visual inspection for ownership indicia is all that is necessary prior to the
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immediate termination of an ownership interest, as occurred here.” Pl.’s
Obj. 6-7 (citing Report and Rec. 16-17). Additionally, Plaintiff objects to
the Report and Recommendation’s analysis of whether the Constitution
requires state and municipal officers to scan seized animals for
microchips.
This Court has agreed with Magistrate Judge Cudmore that
Defendant Gist was not constitutionally required to scan the dog for a
microchip before concluding that the owner was unknown. If visual
inspection of the animal does not reveal the dog’s owner, then effective
post-deprivation proceedings are sufficient. Plaintiff has not provided
authority to support the contention that due process requires all
municipal officials to scan stray dogs for microchips. Here, Defendant
Gist was unable to determine the dog’s owner through visual inspection
of the dog, and Plaintiff received effective post-deprivation relief.
Finally, Plaintiff disputes Magistrate Judge Cudmore’s finding that
a post-deprivation remedy was available and effective in this case.
Plaintiff argues that Girard failed to provide any post-deprivation process
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at all. This Court disagrees. Plaintiff filed a replevin action in Macoupin
County Circuit Court and received full ownership of his dog as a result of
that action. Plaintiff availed himself of a post-deprivation remedy, and
that remedy was adequate and effective.
In sum, the Court is not persuaded by any of Plaintiff’s objections
discussed above. The Court agrees with the reasoning of the Report and
Recommendation and finds that Count I of the Complaint fails to state a
claim for violation of due process.
B.
This Court’s Duty to Perform De Novo Review Does Not Arise as
to Plaintiff’s Unsupported Objections
In the Objections, Plaintiff disputes several of Magistrate Judge
Cudmore’s findings but does not support his objections with legal
analysis or citation to authority. “De novo review of a magistrate judge’s
recommendation is required only for those portions of the
recommendation for which particularized objections, accompanied by
legal authority and argument in support of the objections, are made.”
United States ex rel. McCall v. O’Grady, 1995 WL 584333, at *1 (N.D.
Ill. 1995) (citing 28 U.S.C. § 636(b)(1)); see also United States v.
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O’Neill, 52 F. Supp. 2d 954, 967 (E.D. Wis. 1999) (rejecting, without
performing a de novo review, objections that were not supported by
statutory analysis or citation to case law); Radke’s, Inc. v. Bastian, 2011
WL 811377, at *1 (C.D. Ill. 2011) (“Perfunctory and undeveloped
arguments may be deemed waived and do not warrant consideration on
the merits by the Court[.]”); United States v. O’Neill, 27 F. Supp. 2d
1121, 1126 (E.D. Wis. 1998) (“‘[W]ithout specific reference to portions
of the magistrate’s decision and legal discussion on the objected portion,
the district court’s duty to make a de novo determination does not
arise[.]’” (quoting United States v. Molinaro, 683 F.Supp. 205, 211
(E.D. Wis. 1988))); Local Rule 72.2(B) (providing that objections to a
report and recommendation must be specific and accompanied by a
memorandum of law in support of those objections); Local Rule
7.1(B)(1) (providing that every motion raising a question of law must be
accompanied by a memorandum of law with supporting authorities upon
which the party relies). While the Court does not have a duty to conduct
de novo review of Plaintiff’s Disputed Findings that Plaintiff has not
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supported with legal analysis or authority, the Court has nonetheless
reviewed these claims and agrees with Magistrate Judge Cudmore’s
conclusions and reasoning in his Report and Recommendation with
respect to these issues.
CONCLUSION
IT IS THEREFORE ORDERED that Magistrate Judge Cudmore’s
Report and Recommendation (d/e 21) is ADOPTED and Defendants’
Motion to Dismiss (d/e 9) is GRANTED. Plaintiff’s request for leave to
file an amended complaint is denied. This case is CLOSED.
IT IS SO ORDERED.
ENTERED: August 16, 2012
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATE DISTRICT JUDGE
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