McFadden v. Kubik et al
Filing
83
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 6/25/2015. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THOMAS MCFADDEN,
)
)
Plaintiff,
)
)
v.
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SERGEANT STEVEN PRYOR, et al., )
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Defendants.
)
Case No. 12 C 4110
Judge John Robert Blakey
MEMORANDUM OPINION AND ORDER
The case is before the Court on defendants’ motion to dismiss [72] for lack of
standing and for failure to state a claim. Defendants seek to dismiss the operative
complaint, which is the Third Amended Complaint (“TAC”) [57], filed October 8,
2014. For the reasons explained below, the motion is granted.
Background
Plaintiff’s TAC alleges that, on March 3, 2012, Officer Pryor, Supervisor
Brzeczek, Sergeant Hroma and certain unknown defendants, arrived at 732 North
Lawndale in Chicago to execute a search warrant. TAC [57], ¶14. At that time, the
property was owned by plaintiff’s mother, Ethel McFadden, who was then 74 years
old and suffering from esophageal cancer. Id., ¶13. The defendants had a search
warrant and, pursuant to that warrant, they searched for Sam Walker and searched
the first floor of the property.
The warrant allowed them to “seize firearms,
ammunition, bullets, bullet casings, firearm boxes, firearm magazines, documents
referencing the purchase and/or sale of firearms and documents showing proof of
residency.” TAC, ¶15 and Exhibit B [57-1], p. 10. Additionally, according to the
TAC, Ethel signed a “Consent to Search” form, allowing defendants to search
beyond the warrant and into the basement, hallways and garage of the property.
Id., ¶16 and Exhibit C [57-1], p. 11. Plaintiff further alleges that the defendants
“broke down the garage door, entered and searched the garage” and “broke the back
door of the house” and “broke into and searched the second floor unit which was
occupied by unrelated tenants.” TAC, ¶¶17-18. Plaintiff alleges that by “the time
the Defendants left, the Property had been severely damaged, all the locks had been
broken, and the house could not be secured.” TAC, ¶20.
While plaintiff did not own the searched property on March 3, 2012, he
alleges that he is the “only child and only heir” of Ethel, who has since died (the
TAC does not say when she passed away), and “has succeeded to the ownership of
the Property.” TAC, ¶24. Based on these allegations, plaintiff asserts one claim
under Section 1983, alleging that “the Defendants willfully and maliciously and
under cover of the law of the State of Illinois deprived him of the rights, privileges,
and immunities secured by the Constitution and laws of the United States, and the
State of Illinois.” Id., ¶ 27.
Discussion
The defendants have moved to dismiss the TAC for lack of standing under
Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim for which
relief may be granted under Rule 12(b)(6). Under both 12(b)(1) and 12(b)(6), the
Court must construe the Complaint in the light most favorable to Plaintiff, accept
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as true all well-pleaded facts and draw all reasonable inferences in its favor.
Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013); Long v. Shorebank Dev't
Corp., 182 F.3d 548, 554 (7th Cir. 1999). Statements of law, however, need not be
accepted true. Yeftich, 722 F.3d at 915.
For a Rule 12(b)(1) motion, Plaintiff bears the burden of establishing that the
jurisdictional requirements have been met. Ctr. for Dermatology & Skin Cancer,
Ltd. v. Burwell, 770 F.3d 586, 589 (7th Cir. 2014). If the jurisdictional facts are
challenged, Plaintiff must support those facts by competent proof. Thomson v.
Gaskill, 315 U.S. 442, 446 (1942). The standard for a Rule 12(b)(1) motion differs
from that under Rule 12(b)(6) only in that the Court “may properly look beyond the
jurisdictional allegations of the [claim] and view whatever evidence has been
submitted on the issue to determine whether in fact subject matter jurisdiction
exists.” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir.2009).
To survive Defendant's motion under Rule 12(b)(6), the Complaint must
“state a claim to relief that is plausible on its face.” Yeftich, 722 F.3d at 915. “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.” Id.
Rule 12(b)(6) limits this Court's consideration to
“allegations set forth in the complaint itself, documents that are attached to the
complaint, documents that are central to the complaint and are referred to in it, and
information that is properly subject to judicial notice.” Williamson v. Curran, 714
F.3d 432, 436 (7th Cir. 2013).
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A.
Plaintiff’s Standing to Pursue this Claim
The defendants first argue that plaintiff lacks standing to sue for violation of
his Fourth Amendment rights (via Section 1983) because he could have had no
expectation of privacy (much less a reasonable expectation of privacy) in the
property at 732 North Lawndale. At the time of the search, he had no ownership
interest in the property and did not reside there. Nor did he have any ownership
interest at the time the suit was filed (and, having been in police custody since
2011, he did not live there at that time either).
“The Supreme Court has characterized the doctrine of standing as ‘an
essential and unchanging part of the case-or-controversy requirement of Article III’
of the Constitution.”
Perry v. Village of Arlington Heights, 186 F.3d 826, 829 (7th
Cir. 1999)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130,
119 L.Ed.2d 351 (1992)). “A party seeking to invoke a federal court’s jurisdiction
must demonstrate three things: (1) an ‘injury in fact,’ which is an invasion of a
legally protected interest that is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical; (2) a causal relationship between the
injury and the challenged conduct, such that the injury can be fairly traced to the
challenged action of the defendant and not from the independent action of some
third party not before the court; and (3) a likelihood that the injury will be
redressed by a favorable decision. Perry, 186 F.3d at 829 (quoting Lujan, 504 U.S.
at 560–61). The party invoking federal jurisdiction bears the burden of establishing
the elements of standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Since the
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elements of standing “are not mere pleading requirements but rather an
indispensable part of the plaintiff's case, each element must be supported in the
same way as any other matter on which the plaintiff bears the burden of proof, i.e.,
with the manner and degree of evidence required at the successive stages of
litigation.” Id.
In ruling on a motion to dismiss for lack of standing, the well-pleaded
allegations of the complaint must be accepted as true. See Warth, 422 U.S. at 501.
But where “standing is challenged as a factual matter, the plaintiff bears the
burden of supporting the allegations necessary for standing with ‘competent proof.’ ”
Retired Chicago Police Ass'n, 76 F.3d at 862. “Competent proof” requires a showing
by a preponderance of the evidence that standing exists. See NLFC, Inc. v. Devcom
Mid–America, Inc., 45 F.3d 231, 237 (7th Cir.1995).
Here, plaintiff alleges that the defendants’ unconstitutional search of his
mother’s home deprived him of his rights under the Fourth Amendment.
The
Fourth Amendment focuses on whether there is a “‘constitutionally protected
reasonable expectation of privacy.’” California v. Ciraolo, 476 U.S. 207, 211 (1986)
(quoting Katz v. United States, 389 U.S. 347, 360 (1967)). “Fourth Amendment
rights are personal rights, which, like some other constitutional rights, may not be
vicariously asserted.”
Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)(citations
omitted). Fourth Amendment rights are not derivative, but may only be asserted by
one whose Fourth Amendment rights have been violated.
Alderman v. United
States, 394 U.S. 165, 171-72 (1969); U.S. v. Eighty Thousand Nine Hundred Forty-
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One and 05/100 Dollars ($80,941.05) in U.S. Currency, No. 05-2106, 2006 WL
1215194, at *4 (C.D. Ill. May 5, 2006). In Siebert v. Severino, 256 F.3d 648, 655 (7th
Cir. 2001), plaintiffs – a husband and wife – sued an Agricultural Investigator
under Section 1983 alleging violation of the Fourth Amendment; the plaintiffs
alleged that the defendant conducted an unreasonable search of their barn and
unreasonably seized their horses.
The Seventh Circuit held that the husband
lacked standing to sue, because he did not own the horses and because the papers
for the horses were all in the wife’s name. Id., at 655.
To claim the protection of the Fourth Amendment, a plaintiff must
demonstrate “that he personally has an expectation of privacy in the place searched,
and that his expectation is reasonable; i.e., one that has ‘a source outside of the
Fourth Amendment, either by reference to concepts of real or personal property law
or to understandings that are recognized and permitted by society.’” Rakas, 439
U.S. at 143-144, and n. 12. Here, plaintiff concedes that he did not own and was not
in possession of the property at the time of the allegedly unconstitutional search.
He did not reside there at the time and was not physically present at the time; he
was, in fact, incarcerated at the time. Nor did he have any ownership interest in
the property at the time.
He had no reasonable expectation of privacy in the
property. The fact that he may have lived at the property at one time or may
inherit a future ownership interest in the property is not enough.
Relatedly, plaintiff argues that he has standing to bring the Section 1983
claim on behalf of his mother, as the administrator of his mother’s estate. Initially,
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plaintiff concedes that he is not the administrator of his mother’s estate and has no
legal right to assert a claim on behalf of his mother. Thus, consideration of this
issue is premature and does not affect the Court’s decision today.
Plaintiff represents in his motion that he “intends, if necessary, to file to
become administrator of the estate.” Response, p. 4. Becoming the administrator
might confer standing to plaintiff, but that effort ultimately would be futile because
any claim based on the allegations in the Third Amended Complaint would still fail
as a matter of law. Even if asserted on behalf of Ethel McFadden’s estate, any
allegations plaintiff asserts must still give rise to a federal claim for violation of his
mother’s constitutional rights. The allegations currently before the Court do not.
B.
The Substance of Plaintiff’s Claim
The defendants have moved to dismiss under Rule 12(b)(6) for failure to state
a claim. “To survive a motion to dismiss under Rule 12(b)(6), the complaint must
provide enough factual information to ‘state a claim to relief that is plausible on its
face’ and ‘raise a right to relief above the speculative level.’ ” Doe v. Village of
Arlington Heights, 782 F.3d 911, 914 (7th Cir. 2015)(quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007)). “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.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). When considering a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6), the Court must construe the operative complaint in the
light most favorable to the plaintiff, accepting as true all well-pleaded facts and
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drawing all reasonable inferences in her favor. E.g., Yeftich v. Navistar, Inc., 722
F.3d 911, 915 (7th Cir. 2013)(citing Fed. R. Civ. P. 12(b)(6); Tamayo v. Blagojevich,
526 F.3d 1074, 1081 (7th Cir. 2008)).
But the Court “need not accept as true
statements of law or unsupported conclusory factual allegations.” Yeftich, 722 F.3d
at 915 (citing McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011)). Rule
12(b)(6) limits this Court’s consideration to “allegations set forth in the complaint
itself, documents that are attached to the complaint, documents that are central to
the complaint and are referred to in it, and information that is properly subject to
judicial notice.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
It is not entirely clear from the allegations of the TAC whether plaintiff is
claiming that the search was unreasonable because the warrant was invalid, or
because the search exceeded the scope of the warrant. But in either case, he has
failed to state a claim for which relief may be granted.
First, if plaintiff is challenging the validity of the warrant that authorized the
defendants’ March 3, 2012 search, the Court agrees with the defendants that such a
claim cannot succeed. When assessing a Fourth Amendment challenge to a search
warrant, the reviewing court is limited to determining whether the issuing
magistrate had a substantial basis for concluding that probable cause existed. E.g.,
Illinois v. Gates, 462 U.S. 213, 238-239 (1983). The search warrant, which is
attached to the complaint, was signed by a judge and appears valid on its face.
Indeed, the TAC does not allege any deficiency, and there is no allegation here that
the issuing court somehow lacked probable cause.
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In response to defendants’ motion to dismiss, plaintiff argues that he has
stated a valid §1983 claim because the defendants exceeded the scope of the search
warrant when they searched the 2nd floor apartment at 732 North Lawndale, even
though the search warrant allowed them to search the 1st floor. There are two
problems with this assertion. First, plaintiff has not alleged damages for exceeding
the scope of the warrant; he has alleged damages for execution of the warrant.
Second, the TAC concedes that Ethel McFadden – who owned the property at the
time of the search – consented to a search of the hallways, garage and basement;
she consented, in other words, to a search of the property that was broader than
what was spelled out in the search warrant. “[T]he law is clearly established that a
law enforcement officer may not exceed the scope of a lawfully obtained search
warrant unless one of the exceptions to the warrant requirement apply.” Horton v.
California, 496 U.S. 128, 140 (1990).
Consent is one such exception. “A consent search is reasonable only if kept
within the bounds of the actual consent.” U.S. v. Acosta, 110 F.Supp.2d 918, 924
(E.D. Wis. 2000)(citing United States v. Dichiarinte, 445 F.2d 126, 129 (7th Cir.
1971)). Here, plaintiff does not allege that the search exceeded the scope of the
consent; he alleges that the search exceeded the scope of the warrant. The consent
and the warrant are both attached to the complaint. His allegations effectively
plead him out of court on this claim.
Finally, although plaintiff has named several Doe Defendants, he alleges that
“some of all of the additional Defendants” entered the property. TAC, ¶14. To the
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extent plaintiff cannot allege personal involvement on the part of those unknown
defendants, his claim would fail as to those defendants for that reason as well. E.g.
Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir.1997)(“[P]ersonal involvement
is a prerequisite for individual liability in a § 1983 action.”); Wolf–Lillie v. Sonquist,
699 F.2d 864, 869 (7th Cir.1983)(An “individual cannot be held liable in a § 1983
action unless he caused or participated in an alleged constitutional deprivation”
since “[s]ection 1983 creates a cause of action based upon personal liability and
predicated upon fault”)).
C.
The Claims against Brzeczek
Finally, defendants argue that the claims against defendant Brzeczek are
barred by the applicable statute of limitations. If plaintiff had standing to pursue a
claim against Brzeczek (and he does not), the Court agrees that the claim would be
time-barred.
“While Section 1983 does not contain an express statute of limitations, a
federal court must adopt the forum state’s limitations period for personal injury
claims” which, in Illinois is two years.
Henderson v. Bolanda, 253 F.3d 928, 931
(7th Cir. 2001)(citing 735 ILCS § 5/13–202; Ashafa v. City of Chicago, 146 F.3d 459,
462 (7th Cir. 1998)). The events alleged in the TAC occurred on March 3, 2012.
Brzeczek was not named as a defendant until October 8, 2014.
Thus, unless
plaintiff can show that the allegations against Brzeczek relate back to an earlier
version of the complaint that was filed within the statutory period, his claims
against Brzeczek are time-barred.
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Federal Rule of Civil Procedure 15(c)(2) provides that an amended complaint
relates back to the date of the original complaint for purposes of tolling the statute
of limitations where “the claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth or attempted to be set forth
in the original pleading.” Generally, an amended complaint in which “the plaintiff
merely adds legal conclusions or changes the theory of recovery will relate back to
the filing of the original complaint if the factual situation upon which the action
depends remains the same and has been brought to defendant’s attention by the
original pleading.” Henderson, 253 F.3d at 931. A sufficient factual nexus exists
where the amended complaint asserts a newly specified claim “based on same core
of facts advanced in the original.” Newell v. Hanks, 283 F.3d 827, 834 (7th Cir.
2002).
Plaintiff submitted 1 his initial Complaint on May 25, 2012. That complaint
alleged that the then-named defendants (Officer Kubik, Officer Caruso and Officer
O’Keefe) arrested him on August 22, 2011 based upon racial profiling.
The
complaint does not name Brzeczek, does not challenge the validity or execution of
the search warrant in March of 2012, and does not make any claim for property
damage or constitutional deprivations resulting from any search.
The initial
Complaint is not “based on the same core facts advanced” in the subsequent
complaints.
The Complaint was not filed at that time because plaintiff sought leave to proceed in forma
pauperis, which was granted [4]; the original Complaint was filed on June 5, 2012 [5].
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Plaintiff submitted an Amended Complaint on October 23, 2013.
The
Amended Complaint named only Sergeant Pryor and alleged that a warrant was
served on the home of Ethel McFadden on March 19, 2013 and that, in the
execution of that warrant, her property was damaged [23].
The Amended
Complaint also does not mention Brzeczek; nor does it mention a March 2012
search.
Plaintiff filed his Second Amended Complaint on June 4, 2014, naming
Sergeant Pryor, John Does 1-12 and Jane Does 1-12, and alleging that, on March
19, 2013, Sergeant Pryor executed a search warrant at Ethel McFadden’s home and,
in the course of that execution, defendants exceeded the scope of the warrant and
caused extensive property damage [45].
Plaintiff filed his Third Amended Complaint on October 8, 2014 [57]. The
TAC names Officer Brzeczek for the first time; it also alleges for the first time a
claim arising out of the execution of the search warrant on March 3, 2012. [57],
¶14. Attached to the TAC – and made a part of the record for the first time – is a
police report documenting the March 2, 2012 incident that indicates Brzeczek was
the supervisor assigned to the search.
Plaintiff argues that “the illegal search occurred on March 3, 2012. In June
5, 2012, Plaintiff filed the original complaint based on facts related to the March 3,
2012 incident.” Response, p. 8. But that initial complaint would not have put
Brzeczek on notice of any potential claim against him. Indeed, the substance of that
original complaint is very different from the substance of the TAC; that complaint
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focuses on plaintiff’s August 2011 arrest and not on the March 2012 search.
The
first complaint to allege a claim arising out of the March 2012 incident is the TAC,
which was filed October 8, 2014.
The First Amended and Second Amended
Complaints do include allegations that are similar to those alleged in the final
version (i.e., property damage resulting from an unconstitutional search of
plaintiff’s mother’s home), but they both allege that the incident occurred on March
19, 2013. They do not, however, include the police report, do not mention Brzeczek
and do not include any allegations that could have alerted Brzeczek that a claim
against him would be forthcoming.
Additionally, even if the Court were to find that the facts were sufficiently
similar, plaintiff’s relation back argument would fail under Rule 15(c)(1)(C). In
addition to showing that the claim asserted in the TAC arose out of the same
conduct as the conduct alleged in the First or Second Amended Complaint, for the
TAC to relate back to one of these, plaintiff would still have to show that Brzeczek
either received notice of the action such that he will not be prejudiced by the
amendment and knew or should have known that the action would have been
brought against him, but for a mistake concerning the proper party’s identity.” Fed.
R. Civ. P. 15(c)(1)(C). The TAC suggests that plaintiff may not have known the
accurate search date or the proper defendants when he filed the prior complaints.
TAC, ¶11. A lack of knowledge is not a mistake under Rule 15(c). E.g., Mitchell v.
Nesemeier, No. 11 C 50329, 2013 WL 5587887, at *4-7 (N.D. Ill. Oct. 9, 2013). Thus,
plaintiff’s claim against Brzeczek is time-barred.
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Conclusion
For the reasons explained above, defendants’ motion to dismiss [72] is
granted, and the Third Amended Complaint is dismissed without prejudice for lack
of subject matter jurisdiction.
Dated: June 25, 2015
ENTERED:
____________________________
John Robert Blakey
United States District Judge
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