Teniket et al v. City of Benld
Filing
38
ORDER entered by Judge Sue E. Myerscough on 6/5/2019. The Plaintiff's Objection (de 36 ) is OVERRULED and the May Report and Recommendation (d/e 35 ) is ACCEPTED. Plaintiffs' Motion for Reconsideration (d/e 27 ) is DENIED and the City's Motion to Dismiss (d/e 28 ) is GRANTED. The RICO claim alleged against the City in the Amended Complaint is DISMISSED. The RICO claims remain against the unserved Defendants. (SEE WRITTEN ORDER) (MAS, ilcd)
E-FILED
Thursday, 06 June, 2019 11:32:57 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOHN TENIKAT II, and
SHERYL TENIKAT,
Plaintiffs,
v.
CITY OF BENLD, et al.,
Defendant.
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No. 18-cv-03037
ORDER
SUE E. MYERSCOUGH, U.S. District Judge:
On May 10, 2019, Magistrate Judge Tom Schanzle-Haskins
filed a Report and Recommendation (d/e 35) recommending that
this Court deny the Motion for Reconsideration (d/e 27) filed by
Plaintiffs John Tenikat II and Sheryl Tenikat and grant the Motion
to Dismiss (d/e 28) filed by defendant City of Benld. On May 23,
2019, Plaintiffs filed their Objection to the Report and
Recommendation (d/e 36). The City has filed a response (d/e 37).
The Objection is OVERRULED, and the Report and
Recommendation (d/e 19) is ACCEPTED. Plaintiffs have not stated
a due process claim, and the City is not subject to liability for civil
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RICO claims. Plaintiffs’ Motion for Reconsideration is DENIED, and
the City’s Motion to Dismiss is GRANTED.
I. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 72(b)(3), this Court
determines “de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Although this Court does not
need to conduct a new hearing on the entire matter, the Court must
give “fresh consideration to those issues to which specific objections
have been made.” 12 Charles Alan Wright, Arthur R. Miller, & Mary
Kay Kane, Federal Practice and Procedure § 3070.2 (2d ed. 1997);
Wasserman v. Purdue Univ. ex rel. Jischke, 431 F. Supp. 2d 911,
914 (N.D. Ind. 2006).
If no objection is made, or if only a partial objection is made,
the Court reviews the unobjected to portions for clear error.
Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
This Court may “accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
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II. BACKGROUND
In February 2018, Plaintiffs filed a Complaint (d/e 1) against
the City. Plaintiffs alleged that the City imposed defective liens on
Plaintiffs’ property for payment of charges for cutting an excessive
growth of grass and weeds on the property. Plaintiffs claimed, as is
relevant here, that this violated Plaintiffs’ due process rights.
Plaintiffs also purported to bring a Racketeer Influenced and
Corrupt Practices Act (RICO) claim pursuant to 18 U.S.C. § 19611968.
When Plaintiffs filed the Complaint, a Complaint to Enforce
Mowing Lien filed by the City was pending in the Circuit Court of
the Seventh Judicial Circuit, Macoupin County, Illinois. See State
Court Documents (d/e 3).1 On February 4, 2019, the state court
found the City lacked standing to bring the action because the lien
was defective and Plaintiffs were not personally served with the
Second Notice of Lien before suit was filed. See State Court Order
(d/e 17 at p. 12) (also awarding Plaintiffs $465 for filing fees and
costs and directing the City to release the mowing lien).
This Court may take judicial notice of matters of public record when ruling on
a motion to dismiss. See Olson v. Champaign Cnty., Ill., 784 F.3d 1093, 1096
n.1 (7th Cir. 2015).
1
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On February 22, 2019, Magistrate Judge Schanzle-Haskins
issued a Report and Recommendation recommending dismissal of
the due process claim because Plaintiffs received due process in the
state court proceeding and prevailed. Report and Recommendation
at 5-6 (d/e 19). Judge Schanzle-Haskins did not address Plaintiffs’
RICO claim.
Plaintiffs objected to the Report and Recommendation. On
March 21, 2019, this Court accepted the Report and
Recommendation in part and modified the Report in part. Opinion
(d/e 25). This Court accepted the recommendation to dismiss the
due process claim. This Court considered and dismissed the civil
RICO claim because municipalities are not liable for civil RICO
claims and Plaintiffs failed to allege injury to their business or
property. Nonetheless, the Court granted Plaintiffs leave to replead
the civil RICO claim and their state law Fair Debt Collection
Practices Act and Consumer Fraud and Deceptive Business
Practices Act. Opinion at 8 (d/e 25).
On April 2, 2019, Plaintiffs filed an Amended Complaint (d/e
26) naming as defendants 12 individuals, the City, and the law firm
that represented the City. Plaintiffs allege the Defendants
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committed RICO violations by filing unperfected liens in an effort to
“extract monetary funds from the plaintiffs.” Am. Compl. ¶ 11 (d/e
26).
On April 16, 2019, Plaintiffs filed a motion (d/e 27) asking the
Court to reconsider the dismissal of their due process claim. On
April 17, 2019, the City filed a motion to dismiss (d/e 28) the RICO
claim. To date, Plaintiffs have not served the other Defendants
named in the Amended Complaint with summons and a copy of the
Amended Complaint or secured waivers of service.
On May 10, 2019, Magistrate Judge Schanzle-Haskins entered
his Report and Recommendation (d/e 35) (hereinafter, May Report
and Recommendation). Judge Schanzle-Haskins recommended
that this Court deny Plaintiffs’ Motion to Reconsider because they
failed to demonstrate any manifest errors of law or fact and
presented no newly discovered evidence. Judge Schanzle-Haskins
held that Plaintiffs received due process in the state court action.
Id. at 4.
Judge Schanzle-Haskins also recommended that the Court
grant the City’s Motion to Dismiss because the District Court
already held that civil RICO claims may not be brought against
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municipalities such as the City. May Report and Recommendation
at 4. Judge Schanzle-Haskins also found that Plaintiffs did not
respond to the motion to dismiss within 14 days of service. Id. at 4.
III. ANALYSIS
Plaintiffs object to the May Report and Recommendation.
Plaintiffs assert that the City violated their due process with the
placement of each of the three liens on their property as
distinguished from the foreclosure action associated with the
second lien that was the subject of the state court action. Plaintiffs
alleged in the original Complaint that the City did not follow the
state procedure for perfecting the liens and did not serve Plaintiffs
as required by law.
Even assuming the placement of the liens against Plaintiffs’
property constituted a deprivation of property, Plaintiffs did not
allege that an established state procedure violated their due process
rights. In fact, Plaintiffs pointed to the provisions of state law
requiring notice and the provision of certain information in the
notice of lien. See Compl. at 1-2 (d/e 1). Instead, Plaintiffs alleged
that the City, contrary to established state procedure, violated
Plaintiffs’ due process rights because the liens did not conform to
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state law. See Compl. (d/e 1). Where a plaintiff alleges random and
unauthorized acts, the conduct is actionable under § 1983 only if
the plaintiff lacked adequate remedies under state law. See Easter
House v. Felder, 910 F.2d 1387, 1404 (7th Cir. 1999) (noting that
§ 1983 remedies deprivations resulting from a state’s “conscious
decision to ignore the protections guaranteed by the Constitution”
and does not remedy deprivations caused by employees “acting in
direct contravention of the state’s established policies and
procedures which have been designed to guarantee the very
protections which the employee now has chosen to ignore”)
(emphasis omitted); see also Michalowicz v. Vill. of Bedford Park,
528 F.3d 530, 535 (7th Cir. 2008) (a claim that state officials failed
to follow the requirements of existing law states a due process claim
only if the state provided insufficient remedies for the violation
alleged).
Here, Plaintiffs had adequate state law remedies, as Plaintiffs
were successful in the state court action brought by the City and all
the liens have been removed. See State Court Order (d/e 17, pp. 513); Release of Liens (d/e 37, pp. 3-4). Therefore, Plaintiffs fail to
state a claim for a due process violation.
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Plaintiffs also object to the recommendation that this Court
dismiss the RICO claim against the City. Plaintiffs assert they
timely filed an objection to the motion. Plaintiffs also ask that, if
the Court terminates the RICO cause of action, the Court do so only
as to the City and not the unserved Defendants.
As this Court previously found, municipalities are not subject
to liability for civil RICO claims. See F & J Apartments, LLC v. Hall,
No. 4:18-cv-00010-SEB-DML, 2019 WL 1227696, at *2 (S.D. Ind.
Mar. 15, 2019) (collecting cases). Therefore, the RICO claim is
DISMISSED against the City.
IT IS THEREFORE ORDERED THAT the Plaintiff’s Objection
(de 36) is OVERRULED and the May Report and Recommendation
(d/e 35) is ACCEPTED. Plaintiffs’ Motion for Reconsideration (d/e
27) is DENIED and the City’s Motion to Dismiss (d/e 28) is
GRANTED. The RICO claim alleged against the City in the
Amended Complaint is DISMISSED. The RICO claims remain
against the unserved Defendants.
ENTERED: June 5, 2019
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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