Wyatt v. Horgadine et al

Filing 38

OPINION: Defendant Sam Hargadine's Motion to Dismiss 19 is GRANTED. Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the Court dismisses the claims against remaining Defendant Robert Williams without prejudice. All remaining pending motions (d /e 25 , 26 , 33 ) are DENIED AS MOOT. Plaintiff is granted leave to file an Amended Complaint only against Defendant Williams on or before October 30, 2013. Defendant Williams shall answer or otherwise plead on or before November 13, 2013. If Plaintiff does not file an Amended Complaint, the Court will dismiss the case with prejudice. Entered by Judge Sue E. Myerscough on 10/18/2013. (ME, ilcd)

E-FILED

Friday, 18 October, 2013 10:34:14 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ANTHONY L. WYATT,
Plaintiff,
v.
IOWA CITY POLICE CHIEF
SAM HARGADINE and
SPRINGFIELD POLICE CHIEF
ROBERT WILLIAMS,
Defendants.

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No. 13-3150

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This matter is before the Court on the Motion to Dismiss filed by
Defendant Sam Hargadine (d/e 19). Also pending are pro se Plaintiff
Anthony L. Wyatt’s Motion for Injunctive Relief (d/e 33) and Plaintiff’s
Motions to Amend/Correct Statement of Claims (d/e 25, 26). The Court
GRANTS Defendant Hargadine’s Motion to Dismiss because Plaintiff’s
Complaint fails to state a claim upon which relief can be granted.
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the Court dismisses the

claims against the remaining Defendant Williams for failure to state a
claim. All remaining pending motions are DENIED AS MOOT.
I. BACKGROUND
On March 24, 2013, Plaintiff filed a pro se Complaint using a preprinted form against Sam Hargadine, Chief of Police in Iowa City, Iowa,
and Robert Williams, Chief of Police in Springfield, Illinois. Plaintiff
alleges these Defendants violated his civil rights under 42 U.S.C. § 1983,
and his First, Second, Fifth, Eighth, and Fourteenth Amendment rights.
In the “Statement of Claim” section of the pre-printed form,
Plaintiff alleges that the incidents in question occurred on September 12,
2012 and May 13, 2013:
Both Defendant’s constantly Harass “Me,” “My
Family,” and “My Friends” that live in these cities,
which is Springfield, Illinois, and Iowa City, Iowa.
The Springfield, Il Police Chief Robert Williams is
saying I can’t live with my mom “Choicette Wyatt
2533 Poplar Ave in Springfield, IL. I can’t be at
any parks and recreational facilities here in
Springfield, Ill and in Iowa City, Iowa.
This is an form of “Harassment” and “Retaliation.”
Plaintiff seeks $350,000,000 in damages and a restraining order against
both Defendants.
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Since filing the Complaint, Plaintiff has filed numerous “exhibits”
to the Complaint (d/e 13, 17, 26, 28) and numerous motions, including
two Motions to Amend/Correct Statement of Claims (d/e 25, 26), and a
Motion for Injunctive Relief (d/e 33). This Court previously denied
Plaintiff’s Motion to Appeal Relief Requested (d/e 28).
Both Defendants have been served. Defendant Hargadine has filed
a Motion to Dismiss (d/e 19) to which Plaintiff has failed to respond.
II. ANALYSIS
A.

This Court Does Not Have Personal Jurisdiction Over Defendant
Hargadine
Defendant Hargadine, the Iowa City Police Chief, has moved to

dismiss Plaintiff’s complaint against him under Federal Rule of Civil
Procedure 12(b)(2), for lack of personal jurisdiction. Because there are
no relevant contacts between Defendant Hargadine and the State of
Illinois to establish the necessary minimum contacts for purposes of
personal jurisdiction under the Due Process Clause, the Court has no
personal jurisdiction over Defendant Hargadine in this case.
“When a district court determines a Rule 12(b)(2) motion based
on the submission of written materials without holding an evidentiary
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hearing, the plaintiff must make a prima facie case of personal
jurisdiction.” Brandon Wade Licensing, LLC v. Terezowens.com, LLC,
2013 WL 1446356, at *2 (N.D. Ill. April 9, 2013). Under those
circumstances, the plaintiff bears the burden of establishing personal
jurisdiction. Id. At this stage, the Court resolves all factual disputes in
the plaintiff’s favor. Id.
Personal jurisdiction exists over a defendant only if authorized
under Illinois law. See, e.g., Mobile Anesthesiologists Chicago, LLC v.
Anesthesia Associates of Houston Metroplex, P.A., 623 F.3d 440, 443
(7th Cir. 2010) (holding that in a federal question case, the court has
personal jurisdiction if federal law or the law of the state in which the
court sits authorizes service of process). “Illinois’s long-arm statute
permits the exercise of personal jurisdiction if it would be allowed under
either the Illinois Constitution or the United States Constitution.” Id.
(finding no operative difference between the Illinois Constitution and the
United States Constitution regarding personal jurisdiction).
“[A] defendant is subject to personal jurisdiction in a particular
state only if the defendant had ‘certain minimum contacts with it such
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that the maintenance of the suit does not offend traditional notions of
fair play and substantial justice.’” Mobile Anesthesiologists Chicago, 623
F.3d at 443 (quoting International Shoe Co. v. Washington, 326 U.S.
310, 316 (1945))(internal citations omitted). Personal jurisdiction can
be specific or general. Hoffman v. Barnes, 2012 WL 1021837, at *2
(N.D. Ill. 2012). “Specific personal jurisdiction is appropriate when the
defendant purposefully directs its activities at the forum state and the
alleged injury arises out of those activities.” Mobile Anesthesiologists,
623 F.3d at 444. General jurisdiction is appropriate where the
defendant’s contacts with the forum state are systematic and continuous,
in which case the defendant can be sued in the forum state for any cause
of action, even if the wrong is unrelated to the defendant’s contacts with
the state. See UBID, Inc. v. GoDaddy Group, Inc., 623 F.3d 421, 42526 (7th Cir. 2010).
Here, Plaintiff has not met his burden of showing that this Court
has personal jurisdiction over Defendant Hargadine. While the Court
must resolve all factual disputes in Plaintiff’s favor, the only plausible
interpretation of Plaintiff’s Complaint is that Defendant Hargadine, the
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Police Chief in Iowa City, Iowa, purportedly harassed Plaintiff at parks in
Iowa City. See Complaint at 3, 5. Plaintiff has not alleged any facts
suggesting that Defendant Hargadine directed his activities at Illinois.
Therefore, this Court lacks personal jurisdiction over Defendant Chief
Hargadine and the claims against him are dismissed.
B.

The Court Sua Sponte Dismisses the Complaint Against Defendant
Williams for Failure to State a Claim
The dismissal of the claims against Defendant Hargadine leaves

only the claims against Defendant Williams. For claims filed by plaintiffs
proceeding in forma pauperis, like Plaintiff herein, a district court is
required to “dismiss the case if at any time the court determines that . . .
the action . . . fails to state a claim on which relief may be granted.” 28
U.S.C. § 1915(e)(2)(B)(ii). The Court has the power to screen
complaints filed by both prisoner and non-prisoner pro se plaintiffs
proceeding in forma pauperis. See Rowe v. Shake, 196 F.3d 778, 783
(7th Cir. 1999).
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 must
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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 (2007). This means
that “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 that its allegations must plausibly suggest that the
plaintiff has a right to relief, raising that possibility above a “speculative
level.” EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th
Cir.2007)(citing Twombly, 550 U.S. at 555). Pro se pleadings are to be
liberally construed. Gomez v. Randle, 680 F.3d 859, 864–65 (7th Cir.
2012). Finally, it is well settled that when considering whether a
complaint fails to state a claim of relief, “the court must treat all wellpleaded allegations as true and draw all inferences in favor of the nonmoving party.” In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir.
2009)(citing Tamayo, 526 F.3d at 1081).
To state a claim under § 1983, a plaintiff “must allege that a
governmental official, acting under color of state law, deprived him of a
right secured by the Constitution or laws of the United States.” Estate of
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Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 514 (7th Cir.
2007) (citing Christensen v. County of Boone, 483 F.3d 454, 459 (7th
Cir. 2007). “An official causes a constitutional violation if he sets in
motion a series of events that defendant knew or reasonably should have
known would cause others to deprive plaintiff of constitutional rights.”
Brokaw v. Mercer Cnty., 235 F.3d 1000, 1012 (7th Cir. 2000).
Even under a liberal reading of Plaintiff’s Complaint, the
Complaint fails to give Defendants fair notice of the grounds underlying
Plaintiff’s claims and does not plausibly suggest that Plaintiff has any
right to relief. First, Plaintiff alleges that Defendants harassed him and
his friends. However, verbal harassment is not actionable under § 1983.
See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.2000)(finding
correctional officer’s racially derogatory and sexually explicit remarks did
not give rise to constitutional claims); Daniels v. Southfort, 6 F.3d 482,
484 (7th Cir. 1993)(ruling that threatening verbal statements by police
officers do not present constitutional concerns); Williams v. Farmer,
2013 WL 1156426, at *5 (N.D. Ill. 2013) (“Allegations that the officers
‘stalked’ or ‘harassed’ Williams, without more, neither state nor give rise
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to a plausible inference of a constitutional violation.”). Therefore,
Plaintiff’s claim that defendants were “harassing” him, without more,
does not plausibly suggest that Plaintiff’s rights were violated.
Additionally, Plaintiff has failed to demonstrate whether Defendants
were acting under the color of state law when the alleged harassment
occurred.
The same is true for the second allegation. Plaintiff states that
Defendant Williams “is saying I can’t live with my mother.” Again, this
statement fails to allege a constitutional violation. Defendant Williams’s
words alone are not enough to have interfered with Plaintiff’s right to
associate with his family. Plaintiff has not alleged that Defendant
Williams or his subordinates unlawfully and forcibly removed Plaintiff
from his mother’s home or otherwise prohibited him from living there.
Therefore, Plaintiff has not alleged any facts that make it plausible that
Chief Williams’s alleged words “set[] into motion” any events that would
interfere with Plaintiff’s right to familial association. Brokaw, 235 F.3d at
1012.

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Furthermore, even though a right to associate with relatives exists,
“the Fourteenth Amendment right to familial integrity is not absolute.”
Xiong v. Wagner, 700 F.3d 282, 291 (7th Cir. 2012)(finding that child
could be removed from parents’ home when caseworkers had reasonable
suspicion of parental abuse); see also Johnson v. City of Kankakee, 260
F. App’x 922, 925 (7th Cir. 2008)(stating that local regulations affecting
the “right to family” only violate that right if they “regulate the family
directly”).
Public records show that this right is not absolute in this case
either. The Court can “take judicial notice of matters of public record
without converting a motion for failure to state a claim into a motion for
summary judgment.” Gen. Elec. Capital Corp. v. Lease Resolution Corp.,
128 F.3d 1074, 1080 (7th Cir. 1997). The Court therefore takes judicial
notice that on January 5, 2012, Plaintiff’s mother obtained a two-year
plenary Order of Protection against Plaintiff and listed her home address
as a “protected place.” See Choicette E. Wyatt v. Anthony Wyatt, Case
No. 2011-OP-002307 (Ill. 7th Jud. Cir. 2011). Although the mother’s
Motion to Dismiss the Order was granted on August 22, 2013, the Order
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was in place when Plaintiff filed his Complaint on May 24, 2013,
alleging that Defendants told him he could not be at his mother’s house.
See id. Because of the Order of Protection, Plaintiff’s rights were not
violated if Defendant Williams or his subordinates told Plaintiff that he
was not welcome at his mother’s home. On the contrary, Defendant
Williams or his subordinates were required to enforce the Order of
Protection and remove Plaintiff from his mother’s home. See Illinois
Domestic Violence Act of 1986, 750 ILCS 60 et. seq. Without
demonstrating that Plaintiff, an adult child, had a right to be at his
mother’s house or that Defendant Williams’s words interfered with that
right since the Order was terminated, Plaintiff’s second claim fails to
suggest he is entitled to relief.
Plaintiff’s third allegation that he cannot be at any parks and
recreational facilities in Springfield, Illinois and Iowa City, Iowa similarly
fails to state a plausible claim. Plaintiff does not draw any connection
between Defendants and Plaintiff’s allegations that he cannot be in any
parks or recreational facility in Springfield or Iowa City. Even if the
Court read the allegation with an “understanding eye,” making the
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connection for Plaintiff and presuming that Defendants’ police officers
have removed Plaintiff from the cities’ parks, the Plaintiff still has not
alleged a constitutional violation. See Donald v. Cook Cnty. Sheriff's
Dep't, 95 F.3d 548, 555 (7th Cir. 1996)(“[W]hile the court is not to
become an advocate, it is incumbent on it to take appropriate measures
to permit the adjudication of pro se claims on the merits.”). Although
there is a constitutional right to speak and assemble in public forums like
parks, Plaintiff here is not alleging that Defendants violated his right to
free speech or assembly under the First Amendment. See Illinois
Dunesland Pres. Soc'y v. Illinois Dep't of Natural Res., 584 F.3d 719,
723 (7th Cir. 2009)(“A traditional public forum is a street or park . . .
that . . . has long . . . been used for expressive activity, such as marches
and leafleting.”). Plaintiff simply states he cannot be in any parks in the
two cities. Like the right to familial integrity, any right of access to
public parks or public spaces more generally is not absolute. Public parks
frequently post hours they are “open” and the Supreme Court has found
that the government can prohibit people from camping or overnight
sleeping in public parks. See Clark v. Cmty. for Creative Non-Violence,
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468 U.S. 288, 298-99 (1984)(“No one contends that aside from its
impact on speech a rule against camping or overnight sleeping in public
parks is beyond the constitutional power of the Government to enforce.”)
Additionally, without knowing more information about Plaintiff’s claim
that he cannot be in these parks, Defendants do not have notice about
the basis of this allegation.
For these reasons, the Complaint against Defendant Williams is
also dismissed.
C.

Plaintiff may amend his Complaint once as a matter of course
The Court must grant the pro se Plaintiff leave to amend his

Complaint “at least once when Rule 15(a) would allow amendment in
the case of fee-paying litigants.” Luevano v. Wal-Mart Stores, Inc., 722
F.3d 1014, 1024-25 (7th Cir. 2013); see also Indep. Trust Corp. v.
Stewart Info. Serv. Corp., 665 F.3d 930, 943 (7th Cir. 2012) (“Rule 15
ordinary requires that leave to amend be granted at least once when there
is a potentially curable problem with the complaint or other pleading.”).
Because Plaintiff may be able to plead a viable claim, the Court grants
Plaintiff leave to file an Amended Complaint against Defendant Williams
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only. Plaintiff is advised that his Amended Complaint will replace the
prior Complaint in its entirety. Therefore, Plaintiff must include all of
the allegations in his Amended Complaint and attach all of his exhibits.
III. CONCLUSION
For the reasons stated, Defendant Sam Hargadine’s Motion to
Dismiss (d/e 19) is GRANTED. Pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii), the Court dismisses the claims against remaining
Defendant Robert Williams without prejudice. All remaining pending
motions (d/e 25, 26, 33) are DENIED AS MOOT.
Plaintiff is granted leave to file an Amended Complaint only against
Defendant Williams on or before October 30, 2013. Defendant
Williams shall answer or otherwise plead on or before November 13,
2013. If Plaintiff does not file an Amended Complaint, the Court will
dismiss the case with prejudice.
ENTERED: October 18, 2013
FOR THE COURT:

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