El-Bey v. Village of South Holland et al

Filing 153

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 5/11/2012:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SABEEL C. EL-BEY,
Plaintiff,

Case No. 11 C 4949

v.
Hon. Harry D. Leinenweber
VILLAGE OF SOUTH HOLLAND, et
al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court are Defendants’ Motions to Dismiss.

For the

following reason, the motions are granted in their entirety and the
Complaint is dismissed with prejudice.
I.

BACKGROUND

Plaintiff Sabeel El-Bey (“El-Bey”) sued the Village of South
Holland and various other parties after police from that village
and others arrested and forcibly removed him from a residence at 84
S. Woodlawn Drive in South Holland on August 31, 2010.

The suit

also alleges liability for the earlier towing from the home of a
2006 Volkswagen Passat on August 22, 2010.
El-Bey claims the residence was his home and that he has a
deed to prove it.

Defendants say El-Bey’s “deed” is a phony piece

of paperwork conveying title from the “Moorish Science Temple,”
which was never in the actual chain of title.

This, Defendants

say, is part of a trend of dozens of phony deeds, all invoking the

name of the temple. See Anjelica Tan and Susan Chandler, Think You
Own Your House? Check the Deed, New York Times, August 27, 2011,
available at http://www.nytimes.com/2011/08/28/us/28cncmortgage.
html?_r=1&pagewanted-all.
At the time of El-Bey’s arrest, the property was owned by one
Adolph Clark (“Clark”).

Although foreclosure proceedings were

pending against Clark, no foreclosure order had been entered and he
was still the legal owner, Defendants say.
According to police reports El-Bey attached to his Complaint,
on August 22, 2010, a co-occupant of the home, Felicia Muhammed
(“Muhammed”), and one Julian Nettles (“Nettles”) were arrested for
criminal trespass to the home, at which time the Volkswagen was
apparently seized and removed from the home’s garage.
The car was towed by Cars Collision Center, LLC (“Cars”),
whose

manager

is

Defendant

Tony

Kulcyzk

(“Kulcyzk”).

Cars

apparently has a contract to tow cars for South Holland.

El-Bey

first claims that Kulcyzk towed the car (Second Am. Compl. 9) and
then claims an unknown driver of tow truck #63 towed it.
10.

Id. at

Sometime after the car’s seizure, but before his arrest, El-

Bey alleges he tried to retrieve the car by talking to South
Holland Sergeant R. Goode, Sergeant Gregory Baker, and Lieutenant
Dave Pedric, none of whom returned his car.
El-Bey claims that when he finally did get the car back at an
unspecified date, he had to pay $1,455 to retrieve it, and several
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items were missing, including a camera, valuable coins and a cell
phone.
On August 31, 2010, El-Bey had a court date in Cook County
Circuit for a lawsuit he filed against South Holland, apparently
seeking a Temporary Restraining Order (“TRO”) directing the return
of his car.

Pl.’s Compl., Exs. A & A2; ECF 91, PageID 447, 453.

South Holland Attorney and current Defendant Charles Lapp (“Lapp”)
successfully represented the village at that hearing, and the TRO
was denied.

El-Bey accuses Lapp of mail fraud, apparently for

mailing documents related to that hearing.
Unsuccessful, he proceeded to the South Holland Police station
demanding to speak with the Police Chief but was told he was
unavailable.

It is not clear if El-Bey spoke with other police

administrators at that time or at an earlier time, but in any
event, was told in no uncertain terms by South Holland police that
Cook County Recorder of Deed records indicated he was not the
lawful owner of the property.

ECF 91, PageID 447.

El-Bey left the police station wearing tan clothing and a
black baseball cap.

A short time later, police, received a

complaint from neighbors of the residence that a man fitting ElBey’s description and another person had entered the home.

Police

called El-Bey on his cell phone.

According to the police report,

El-Bey cursed them and hung up.

Police also called Clark, the

rightful owner of the home, to assure themselves that he had not

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given anyone permission to enter.

According to police, Clark

responded that he had not, and he gave police permission to enter
and secure the premises. South Holland police called Riverdale and
Dolton police for backup and then forced open the door and arrested
El-Bey and Muhammed (this being Muhammed’s second arrest at the
premises).
Although El-Bey alleges generally there was no probable cause
to arrest him, he attached the police reports to his Complaint and
never specifically takes issue with the details in them, including
that he was told the home was not his.

In fact, his Complaint

correlates with many details in the reports, including the fact
that his arrest took place after a morning court appearance, that
he had multiple meetings with South Holland police in the days
before his arrest, and the fact that the South Holland police chief
did not meet with him.
El-Bey alleges the following conduct during and after the
arrest.
guns

at

During the arrest, the following police officers pointed
him:

(“Millsaps”),

South
South

Holland

Holland

police

supervising

chief
police

Warren

Millsaps

officer

Robert

Stegenga (“Stegenga”), South Holland supervising police officer
Gregory Baker (“Baker”), South Holland supervising police officer
P. Williams, South Holland police officer M. Roberts, an unknown
Riverdale police officer and an unknown Dolton police officer.

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The same unknown Dolton police officer then handcuffed him.
Unspecified persons then lifted him by the handcuffs, causing pain
in his wrists.

Police then searched the house.

Baker asked him

for the keys to the house and a car (a different car from the
subject of this suit) on the premises.

South Holland police

officer Borowski (“Borowski”) seized unspecified personal property
and removed it from the residence without a warrant or court order.
El-Bey was left in a police car on an 85-degree day for more than
10 minutes “without proper air ventilation.”
At the South Holland police station, when El-Bey asked to see
a doctor for his wrists, an unknown South Holland officer told him
he was lucky – that if the officer had been at the arrest site, he
would have put a bullet in El-Bey’s head.
El-Bey was then questioned by the FBI, allegedly called by
police because El-Bey had terrorism and homeland security textbooks
in the closet of the residence.

The FBI apparently found El-Bey

harmless, and he was then taken to St. James Hospital where he
received an X-ray, was given medication “for swelling and pain,”
and returned to jail.
El-Bey was charged with criminal trespass, but the charges
were eventually dropped.

After the trespassing arrest, police

boarded up the home to prevent El-Bey from returning.

He alleges

this also kept him from retrieving his personal items in the home.

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El-Bey

met

with

South

Holland

Mayor

Don

DeGraff

on

September 14, 2010 about being locked out of his “home,” and to
inquire why local police were “acting as Cook County Sheriffs”
(apparently a reference to his removal from the home).

The

residence is part of the Preserves of South Holland Home Owner’s
Association (the “Preserves”), which is also a named Defendant.
Also named as a Defendant is an Allegra Smith (“Smith”), who
appears

to

be

affiliated

Complaint does not say how.

with

Preserves,

although

El-Bey’s

Smith, El-Bey charges, met with Mayor

DeGraff “to discuss how they were going to continue to deprive
Plaintiff from accessing his clothes, shoes and his other personal
property.”

Second Am. Compl. 10.

Smith, at an unspecified time,

demanded association fees from El-Bey and threatened to call police
every time she saw El-Bey’s car until he paid the fees.
El-Bey alleges the following counts.
Count
I-III

Claimed Cause of
Action
42 U.S.C. 1983 §
Monell claim

IV

Appears to be
excessive force and
unreasonable search
and seizure claims
under §§ 1983, 1985

V

False arrest and
imprisonment

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Defendant
Villages of South
Holland, Dolton &
Riverdale
Millsaps, Stengenga,
Baker, Goode, Pedric,
Williams, Roberts,
Burke, Borowski, unknown
Riverdale officer &
unknown Dolton officer
Village of S. Holland,
Millsaps, Stegenga,
Baker, Good, Williams,
Burke, Roberts, Borowski
& Pedric

VII

Claimed Cause of
Action
False arrest,
possibly unreasonable
search and seizure
“Indemnification”

VIII

“Indemnification”

IX

“Indemnification”

X

42 U.S.C. §§ 1983,
1985 conspiracy count

XI

XV No. 2
(erroneously
labeled “XV”)

42 U.S.C. §§ 1983,
1985 conspiracy count
42 U.S.C. §§ 1983,
1985 conspiracy count
42 U.S.C. §§ 1983,
1985 conspiracy count
18 U.S.C. § 1951(a)
Racketeering count
42 U.S.C. §§ 1983,
1985 “Fourth
Amendment”
42 U.S.C. §§ 1983,
1985 “Malicious
Prosecution”

XVI

State law battery

Count
VI

XII
XIII
XIV
XV

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Defendant
Village of Dolton
Village of S. Holland
(alleging liability for
payments for judgments
against Millsaps,
Stegenga, Baker,
Williams, Roberts, Burke
& Borowski)
Village of Dolton
(alleging liability for
payments for judgments
against unknown Dolton
officer)
Village of Riverdale
(alleging liability for
payments for judgments
against unknown
Riverdale officer)
Millsaps, Baker,
Williams, Roberts,
Burke, Borowski &
unknown officers
DeGraff, Lapp, & Smith
DeGraff, Cars, Lapp, &
Kulcyzk
Smith, Village of South
Holland & DeGraff
Cars, Kulcyzk, South
Holland & DeGraff
Kulcyzk & unknown driver
of tow truck #63
Village of S. Holland,
S. Holland P.D.,
Millsaps, Baker, Lapp,
Smith
Villages of S. Holland,
Dolton & Riverdale,
Millsaps, Steganga,
Baker, Williams, Roberts
& unknown Dolton officer

All Defendants have filed Motions to Dismiss under Federal
Rule of Civil Procedure 12(b)(6).

Some Defendants additionally

move for dismissal under Rule 8’s plausibility standards, and Cars
moves for dismissal under Rule 12(b)(5).
II.

LEGAL STANDARD

When evaluating dismissal under Rule 12(b)(6), the Court takes
all well-pleaded allegations of the complaint as true and views
them in the light most favorable to the plaintiff.

Appert v.

Morgan Stanley Dean Witter, Inc., 673 F.3d 609, ---, 2012 U.S. App.
LEXIS 4834, at *29 (7th Cir. 2012). To satisfy the notice-pleading
standard of Rule 8, a complaint must provide a “short and plain
statement of the claim showing that the pleader is entitled to
relief, and is sufficient to provide the defendant with fair notice
of the claim and its basis.”

Id.

A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.
states

a

plausible

Id. at *30.
claim

is

Determining whether a complaint
context-specific,

requiring

the

reviewing court to draw on its experience and common sense.
Ashcroft v. Iqbal, 556 U.S. 662, 663-664 (2009).
III.

ANALYSIS

El-Bey alleges four basic constitutional violations:

illegal

search of his “home,” illegal seizure of his car and some personal

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items,

excessive

force

used

in

his

arrest

and

Due

Process

violations.
A.

42 U.S.C. § 1985

As preliminary matter, alleging a claim under § 1985 requires
an

allegation

of

race-based animus.

Turner

v.

Hospital, 264 Fed.Appx. 527, 530 (7th Cir. 2008).

Jackson

Park

Nowhere in his

Complaint does El-Bey allege race motivated any of the actions
involved.

Therefore, to the extent any of the counts allege a

violation of § 1985, they fail.
B.

Illegal Search

In order for a search to violate the Fourth Amendment, the
party searched must have a legitimate expectation of privacy in the
premises or object searched.

A legitimate expectation of privacy

is a subjective expectation of privacy that society is prepared to
consider reasonable.
(7th Cir. 2011).

United States v. Curlin, 638 F.3d 562, 565

Where an occupant has no lawful right to be in

the residence he is occupying, society does not consider the
occupant’s subjective expectation of privacy reasonable.

Id.

(“[I]ndividuals who occupy a piece of property unlawfully have no
claim under the Fourth Amendment”; citing several cases where
squatters and illegal occupants had no legitimate expectation of
privacy).
El-Bey’s own filings demonstrate that he had no legitimate
expectation of privacy in the premises.
- 9 -

El-Bey attached to his

Complaint a title insurance company’s report, dated August 26,
2010, five days before his arrest.

Paragraph 13 of that report

noted “Moorish Science Temple of America, Inc., having no apparent
interest in the land conveyed said premises to El-Bey as trustee.”
Pl.’s Resp. to South Holland, Ex. B-2; ECF 110, PageID No. 663.
The report goes on to state that “Former interest, if any, of
Moorish Science Temple of America, Inc., should be explained.” The
report also unambiguously states that “Title to the estate or
interest in the land is at the effective date vested in:
Clark.”

Adolph

El-Bey nowhere attacks the report.

This, coupled with the admonishment from police that El-Bey
received before the arrest (which El-Bey does not allege was never
delivered), clearly demonstrates that El-Bey could not have had a
legitimate expectation of privacy in the home.
Once inside the home, it was not unreasonable for police to
search the home for their own safety and for further evidence of
the crime of trespassing. Moreover, police had permission from the
true owner to secure the premises, and searching the home in order
to secure it and ascertain that there was nothing inside that might
pose

a

danger

reasonable.

to

the

officers

or

the

property

itself

was

Thus, there was no unreasonable or illegal search of

the premises.

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C.

Illegal Seizure

There are several seizures at issue here: the seizure of ElBey (the alleged false arrest); the seizure of the car and the
items within it, and the seizure of El-Bey’s personal items from
the home, including books on homeland security and terrorism.
To prevail on a claim for false arrest, a plaintiff must show
that the arresting officer lacked probable cause to make the
arrest.

Gonzalez v. Vill. Of W. Milwaukee, 671 F.3d 649, 655 (7th

Cir. 2012).

Clearly, probable cause is not an issue here.

The

police report El-Bey attached demonstrates that police were called
to investigate a report from an eyewitness of trespassing.

The

caller was credible, describing the trespasser’s clothing, and
police had already been called previously to the home, further
bolstering the report’s credibility.

Police called the owner

(Clark) and confirmed he had not given anyone permission to enter.
This demonstrates probable cause for the arrest.
As to the seizure of the car and belongings, El-Bey has not
alleged that when the car was seized (August 22, 2010), police did
not hold the same reasonable belief and probable cause that they
held on August 31, 2010 when he was arrested:
premises was trespassing.

that anyone on the

On that day, police arrested Muhammed

and Nettles for trespassing.

As such, seizure of evidence on the

premises was per se evidence of trespassing, because to be placed
on the property, someone would have had to have trespassed to put
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it there.

See Perlman v. Chicago, 801 F.2d 262, 267 (7th Cir.

1986) (noting “the seizure of an item in plain view is reasonable
if there is probable cause to associate the property with criminal
activity . . . [or] evidence of a crime” and finding an officer’s
seizure of hundreds of items of jewelry pursuant to a warrant
proper because the officer could not tell which items were stolen
and which were not) (internal citations and punctuation omitted).
As such, the items taken by police here were evidence properly
seized.
Alternatively, the seizure and tow of the vehicle and the
removal of items from the home, when they were on private property
belonging to another, was reasonable, particularly since El-Bey
does not allege the car and items were there with the permission of
Clark. See Marzec v. Crestwood, No. 90-3595, 1991 U.S. App. LEXIS,
at *3 (7th Cir. 1991) (finding no § 1983 violation for city’s
removal of vehicles from private property that were there without
the permission of landowner).
Where

an

initial

seizure

of

a

vehicle

and

items

are

reasonable, the continued detention of that vehicle until an owner
or

interested

party

pays

towing

and

storage

fees

does

not

constitute a separate Fourth Amendment issue.

Lee v. City of

Chicago, 330 F.3d 456, 465 (7th Cir. 2003).

Lee indicates,

however, it may be a Due Process issue, which will be discussed
shortly.
- 12 -

As to the items that were in the car that El-Bey says are now
missing, since the initial seizure of the car was proper, the items
it contained were properly seized as well, and there are no Fourth
Amendment issues.
D.

Due Process

While there is no Fourth Amendment violation for retention of
personal property lawfully taken, Lee indicates it may be a Due
Process violation under the Fourteenth Amendment.

Although it is

not at all clear that is what El-Bey is alleging, he does cite the
Fourteenth Amendment and, construing pro se complaints liberally,
as the Court must, this allegation will be examined.
El-Bey has alleged his personal property was removed from the
home

and

never

returned

to

him.

The

only

property

El-Bey

references in the Complaint are the textbooks taken by police, the
car, and the missing items within the car.

There are some

additional items listed in the police report El-Bey attached.

He

also mentions numerous items that were left in the house that he is
unable to retrieve.
The Supreme Court has recognized that the negligent loss of
property by state officials does not present a cognizable § 1983
due process claim when state tort remedies provide adequate relief
for the deprivation. Guenther v. Holmgreen, 738 F.2d 879, 882 (7th
Cir. 1984).

This concept has been extended to “an unauthorized

intentional deprivation of property by a state employee.” Hanno v.
- 13 -

Sheahan, No. 01 C 4677, 2004 U.S. Dist. LEXIS 23688, at *35 (N.D.
Ill. Nov. 29, 2004) (dismissing § 1983 claim for alleged theft of
property by officers during an eviction)(emphasis added).
As Hanno noted, Illinois residents have replevin actions
available to them and El-Bey has not suggested that this remedy is
inadequate.
Furthermore, El-Bey has pleaded that just before his arrest,
he was in court, receiving Due Process, in an attempt to retrieve
his car.

Clearly, there are state court proceedings available to

him, and the § 1983 claim cannot stand.
E.

Excessive Force

Excessive force claims are analyzed under the Fourth Amendment
and its “reasonableness” standard.

Sow v. Fortville Police Dep’t,

636 F.3d 293, 303 (7th Cir. 2011). The reasonableness of the force
is judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.

Id.

El-Bey has alleged excessive force in the form of several guns
being pointed at him, threats of bodily harm if he did not lie on
the ground, inadequate ventilation of the squad car, and pain
inflicted on his wrists when he was lifted while handcuffed.
The Court cannot say that the alleged degree of force was
unreasonable.

Police were called to a home that was the site at

least one prior trespassing call. They had just encountered El-Bey
at the police station and had previously informed him he had no
- 14 -

right to be at the home, but he disregarded their instructions and
went anyway.

Further, he had ignored their additional overtures

delivered by phone, swearing at them.

He refused to even answer

the phone again.
When police are forced to enter a home, they face additional
dangers not present elsewhere.

See U.S. v. Norris, 640 F.3d 295,

303 (noting entry into a home poses potential access to weapons and
the danger of ambush in a confined setting of unknown configuration
to officers).
Breaking

down

the

door

after

being

refused

proceeding with guns drawn was therefore reasonable.
ordering El-Bey to the ground and handcuffing him.

entry

and

So too was
Perhaps the

officers could have been a little more gentle in picking him off
the ground, but El-Bey does not allege the officers intentionally
tried to injure him, or that he was permanently injured – only that
he suffered some swelling.

Similarly, he does not allege that the

temperature in the car was anything but uncomfortable or that
police did it deliberately. He does allege an officer insulted him
when he complained of his pain, but words are not force, and police
did heed his second complaint by taking him to a hospital to have
his wrists checked out.
On balance, the Court cannot say the force alleged would be
clearly unreasonable from the perspective of a police officer. See
Sow, 636 F.3d at 303-304 (finding tight handcuffs not excessive

- 15 -

force when they were removed after 25 minutes and second complaint
of pain; also finding the keeping of arrestee outside in cold
temperature not excessive force; also finding the bumping of
arrestee’s head on police car doorframe as he was placed into
custody not excessive force).
F.

Qualified Immunity

Alternatively, the police and village officials are entitled
to qualified immunity here.
Two questions are pertinent to the defense of qualified
immunity:

whether the alleged facts show that the state actor

violated a constitutional right, and whether that right was clearly
established at the time of the alleged violation.

Brown v. City of

Fort Wayne, 752 F.Supp.2d 925, 940 (N.D. Ind. 2010) (citing Pearson
v. Callahan, 555 U.S. 223 (2009)).
El-Bey offers no argument against the qualified immunity
defense raised in the motions to dismiss.

He also offers no cases

showing that police should have known they were violating a clearly
established right by responding to a call of trespassing with guns
drawn, or that officers would clearly know the amount of force
involved in handcuffing someone and picking them up was excessive.
He also offers no cases suggesting officers and village officials
would conclusively know that towing a car and removing items of a
trespasser from property where the owner had not given someone

- 16 -

permission to be would be a constitutional violation.

Therefore,

qualified immunity applies.
G.

Counts I-III

“Monell liability exists only if official policy or custom or
the actions of a person exercising policymaking authority caused a
constitutional violation.”
U.S.

App.

LEXIS

7153,

Bloodworth v. Vill. of Greendale, 2012

at

*7

(7th

Cir.

2012).

Because

no

Constitutional violations have been adequately alleged, no Monell
claim can stand.

Counts I-III are dismissed.

Further, El-Bey’s allegations of policy and custom do not pass
Iqbal standards: they are completely conclusory, throw-it-againstthe-wall-and-see-what-sticks language (e.g., “pursuant to one or
more

policies,

specific

practices

policies

whatsoever

is

or

given

and/or

practices
as

to

how

customs

of

Defendant”).

are

alleged.

all

three

No

No

indication

villages

fail

“to

adequately keep hard copies and electric computer records of
misconduct.”
Indeed, the allegations against all three municipalities, in
regards to the Monell claims, are word-for-word identical language,
with only the name of the officers and municipality substituted.
In at least one case, even the name was not substituted, as in
paragraph 98, where El-Bey neglected to change the party from the
“Dolton officer” in his Monell claim against Riverdale.

This is

not to say cutting-and-pasting is forbidden. But here, it operates
- 17 -

to accentuate the wholly conclusory language and lack of any
specificity that would “nudge[] his claim[] . . . across the line
from conceivable to plausible.”

Iqbal, 556 U.S. at 680 (internal

punctuation omitted).
H.

Count IV

Count IV is a complaint of excessive force and illegal search
and seizure.

For the reasons explored in Sections A-E above, the

Court finds no adequate allegations of excessive force or illegal
search and seizure.

The Count is dismissed.
I.

Count V

Count V does not state a statutory section providing its
basis, but does say the cause of action comes under the “Federal
Civil Rights Acts,” for False Arrest and False Imprisonment.

The

Court assumes this to be a § 1983 action and, as noted above,
because officers had probable cause to arrest and detain El-Bey, no
action can lie under § 1983.
J.

Count VI

For the same reasons, Count VI, alleging false arrest and
unreasonable search and seizure is dismissed also.
K.

Counts VII-IX (“Indemnification”)

The Court is unable to find El-Bey’s referenced Illinois
Statute, 735 ILL. COMP. STAT . 10/9-102.

The Court believes he is

referring to 745 ILL. COMP . STAT . 10/9-102, which merely allows a
public entity to pay any tort judgment against an employee.
- 18 -

To the

extent these counts seek recovery from the three village defendants
for individual actors’ torts or constitutional violations, there
being no adequately alleged torts or constitutional violations,
these counts are dismissed.
L.

Counts X-XIII

These counts allege § 1983 conspiracy.

Again, these counts

are dependant upon alleging an underlying constitutional violation.
Because

none

dismissed.

has

been

adequately

alleged,

these

counts

are

See, e.g., Geinosky v. City of Chicago, No. 11-1448,

2012 U.S. App. LEXIS 6261, at *15-18 (7th Cir. 2012) (demonstrating
the

link

between

conspiracy

and

underlying

violations

by

reinstating conspiracy counts in case because underlying equal
protection claim was restored).
M.

Count XIV

This count alleges a violation of the RICO statute, 18 U.S.C.
§ 1951(a), by Cars, Kulcyzk, DeGraff and South Holland.

There is,

of course, no private right of action for citizens to enforce
§ 1951, so again, the Court construes broadly and assumes El-Bey
meant § 1962(c), for which there is a private right of action under
§ 1964.
To state a claim for relief under § 1962(c), a plaintiff must
allege (1) conduct (2) of an enterprise (3) through a pattern of
racketeering activity. DeGuelle v. Camilli, 664 F.3d 192, 199 (7th
Cir. 2011).

A pattern requires at least two predicate acts
- 19 -

occurring within ten years of each other, and the “racketeering
activity” is limited to the specific acts enumerated in 18 U.S.C.
1961(1).

Id.

Being charitable, the Court can find one qualifying

§ 1961(1) violation (extortion of money to retrieve the car)
alleged in the complaint, but no others (§ 1983 violations are not
covered by RICO).

Since there is an insufficient allegation of

racketeering activity, the count is dismissed.
N.

Count XV

This Count alleges illegal search and seizure against Kulcyzk
and the unknown truck driver.

Setting aside the question of

whether these two defendants, by virtue of Cars’ contract with
South Holland, are state actors, the claim fails for the reasons
stated in Sections B-C above.
O.

The Count is dismissed.

Count XV No. 2

As Defendant South Holland points out, the Seventh Circuit
does not recognize a cause of action under § 1983 for malicious
prosecution because an adequate state law redress of wrongful
prosecution is available in Illinois.
747, 751 (7th Cir. 2001).
P.

Newsome v. McCabe, 256 F.3d

Accordingly, the count is dismissed.

Count XVI (State Law Battery)

El-Bey directs this count at a number of Defendants, but only
the unknown Dolton officer who handcuffed him and the several
unknown officers who picked him up are alleged to have made
physical contact with him.

Therefore, the battery count can only
- 20 -

be lodged against those officers, but this is of no consequence,
because the entire action fails.

As Defendant Dolton points out,

state law immunizes police officers for their acts or omissions in
the enforcement of any law unless the officers’ acts are willful or
wanton.

As discussed above, the alleged “battery” consisted of

handcuffing El-Bey and lifting him up. The Court does not see this
as wanton misconduct.

The count is dismissed.

Q.

Dismissal with Prejudice

In deciding whether to dismiss with prejudice (and foreclose
any attempts to amend the complaint) this Court is mindful that the
Court

should

requires.”

“freely

give

leave

[to

FED. R. CIV . P. 15(a)(3).

automatically granted.
(7th Cir. 2011).

amend]

when

justice

so

However, leave is not to be

Johnson v. Cypress Hill, 641 F.3d 867, 871

Courts have broad discretion to deny amendment

where there is undue delay, bad faith, dilatory motive, repeated
failure to cure deficiencies, undue prejudice to the defendants, or
where the amendment would be futile.

Id. at 871-872.

Here, the Court is convinced that further amendment would be
futile.

El-Bey’s own attachments confirm he was squatting in a

home to which he had no legal claim, and he is trying to sue
police, village officials, neighbors and anyone who disagreed with
that dubious course of conduct.

Furthermore, El-Bey has now had

three bites at the apple, this being his Second Amended Complaint.
He is not entitled to a fourth, particularly when Defendants have
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had to each file two Motions to Dismiss, both of which pointed out
numerous deficiencies in El-Bey’s Complaint and filings.

Some of

the same legitimate objections in Defendants’ current Motions to
Dismiss were the same ones raised to the First Amended Complaint.
El-Bey apparently paid no heed to those deficiencies then; the
Court doubts he will (or even could) substantially change his
pleading if given a fourth chance.

Furthermore, the Defendants

would be substantially prejudiced by having to continue to defend
a meritless lawsuit.
IV.

CONCLUSION

For the reasons stated herein, the Defendants’ Motions to
Dismiss

are

granted

in

their

entirety.

All

counts

of

the

Plaintiff’s Complaint are dismissed with prejudice.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE:5/11/2012

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