El v. Redmon's Towing

Filing 36

ORDER; Plaintiff's motion for a writ of replevin 11 is dismissed by the Court sua sponte for failure to state a claim for relief. The dismissal is without prejudice to Plaintiff filing an amended complaint to attempt to state a viable claim by 7/7/2014. Defendants motion to dismiss 17 and Plaintiffs motion for a default judgment 31 are denied as moot. Signed by the Honorable Andrea R. Wood on 6/2/2014. Mailed notice. (ea, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JABARI EL,
Plaintiff,
v.
REDMON’S TOWING,
Defendant.

)
)
)
)
)
)
)
)
)

No. 13-cv-00300
Judge Andrea R. Wood

ORDER
Plaintiff’s motion for a writ of replevin [11] is dismissed by the Court sua sponte for
failure to state a claim for relief. The dismissal is without prejudice to Plaintiff filing an amended
complaint to attempt to state a viable claim by 7/7/2014. Defendant’s motion to dismiss [17] and
Plaintiff’s motion for a default judgment [31] are denied as moot.
STATEMENT
Plaintiff Jabari El, proceeding pro se, commenced this action with a motion for a writ of
replevin. Plaintiff claims that the Elgin Police Department seized his vehicle in September 2012
after he was stopped for speeding and cited for driving without a valid license. He also claims that
Defendant Redmon’s Towing subsequently towed his vehicle and has not returned it. With this
action, Plaintiff seeks return of the vehicle and all of the contents seized along with it. However,
Plaintiff states no viable claim for relief against Defendant and therefore his action must be
dismissed.
As an initial matter, the Court notes that Defendant has filed a motion to dismiss. (Mot. to
Dismiss, Dkt. No. 17.) In its motion, Defendant argues that Plaintiff’s replevin action fails as a
matter of law because Plaintiff has not alleged that he “is the owner of the vehicle alleged to have
been seized and towed, or that he is lawfully entitled to the possession thereof” and “that the
vehicle is detained by (i.e., in the possession or control of) Defendant.” (Id. ¶¶ 6, 8.) 1 The Court
does not need to reach this argument, however, because none of the legal authorities relied upon
by Plaintiff as bases for the requested writ support a viable cause of action. When a complaint’s
insufficiency is readily apparent, sua sponte dismissal is appropriate. See Ledford v. Sullivan, 105
F.3d 354, 356 (7th Cir. 1997). That is the case here.

1

The Court notes that Defendant suggested at a status hearing that Plaintiff’s vehicle may no longer be in
Defendant’s possession because it was sold at auction. That circumstance would not necessarily defeat
Plaintiff’s claim, however, as he may still be able to seek restitution for the lost property. Okora v.
Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) (“if the defendant in a suit for replevin has sold the property
that the plaintiff is seeking to replevy, the plaintiff is entitled to the proceeds in an action for restitution”).

Plaintiff acknowledges that an Elgin police officer stopped him for speeding and also
charged him with driving without a valid license. (Writ of Replevin ¶¶ 10, 12, Dkt. No. 11.)
Plaintiff also acknowledges that the City of Elgin communicated to him that the seizure of his
vehicle was pursuant to the Elgin Municipal Code and the Illinois Vehicle Code. (Pl.’s Aff. ¶ 4 &
Ex. B, Dkt. No. 19.) Plaintiff does not dispute the propriety of the stop or the seizure under the
municipal and state provisions. Instead, he argues that the seizure violated the Fifth Amendment
of the U.S. Constitution, a federal treaty, and various federal statutes. His claim for replevin seeks
relief from Redmon’s Towing only; the City of Elgin is not a party to this action. And Plaintiff
does not seek damages for the alleged violations, only the return of his property. 2
As the basis for the requested writ, Plaintiff first claims that the seizure of his vehicle
violated the 1776 Treaty of Watertown. However, Plaintiff does not allege that he is a member of
either of the two Native American nations that were parties to the Treaty of Watertown, and thus
he fails to state a claim for violation of its terms. 3 U.S. v. $7,000.00 in U.S. Currency, 583 F.
Supp. 2d 725, 732 (M.D.N.C. 2008) (noting that the Treaty of Watertown does not appear to
apply to members of any Native American nations other than the St. John’s and Mi’kmaq tribes
of Nova Scotia, Canada; nor does it apply to citizens of the United States); see also Trazell v.
Wilmers, No. 12-01369, 2013 WL 5593042, at *3 (D.D.C. Oct. 11, 2013) (plaintiff failed to state
a claim for violation of the Treaty of Watertown where plaintiff alleged he was a member of the
Cherokee-Chocktaw nation but did not allege he was a member of either the St. John’s nation or
the Mi’kmaq nation).
Plaintiff’s invocation of federal statutes that protect foreign entities also fails. Plaintiff
asserts that the vehicle in question was the property of a foreign state, and that its seizure violated
the Foreign Sovereign Immunities Act, 28 U.S.C. § 1609, which protects the property of foreign
states from attachment and execution. To invoke the protection of the statute, however, an entity
must possess the characteristics that define statehood: a defined territory and a permanent
population under control of its own government, and the capacity to engage in formal relations
with other such entities. See Knox v. Palestine Liberation Org., 306 F. Supp. 2d 424, 434
(S.D.N.Y. 2004). Plaintiff does not allege that the seized vehicle belonged to an entity possessing
any of the required characteristics. His additional claims for relief based upon the statutory
protections afforded to foreign nationals are equally baseless: 18 U.S.C. §§ 112 and 970 make
violence against foreign nationals and seizure of their property criminal offenses, but criminal
provisions do not create private rights of action. Amin v. Int’l Servs., Inc., No. 13 C 7889, 2013
WL 6050154, at *2 (N.D. Ill. Nov. 14, 2013).
Plaintiff also cites the Fifth Amendment to the U.S. Constitution and 42 U.S.C. § 1983,
the latter of which provides a civil remedy for violations of constitutional rights under color of
state law. But while these authorities protect persons from state action, they do not provide a
cause of action based on private conduct. See Hallinan v. Fraternal Order of Police of Chicago
2

Plaintiff’s Motion also suggests that he would like this Court to dismiss the traffic case against him in the
Circuit Court of Cook County. However, based on Plaintiff’s own submissions, it appears those citation
already have been stricken. (Writ of Replevin ¶ 12, Dkt. No. 11; Pl. Aff. Ex. D, Dkt. No. 11-1.)
3

Plaintiff alleges only that he is “a Public Minister of the Aboriginal Republic of North America
Government.” (Writ of Replevin ¶ 2, Dkt. No. 11.)

2

Lodge No. 7, 570 F.3d 811, 815 (7th Cir. 2009). Plaintiff does not allege that Defendant is a state
or municipal entity. While § 1983 actions may be pursued against private actors acting under the
color of law under some circumstances, none of those circumstances appear to be present here. Id.
at 815-16. Furthermore, § 1983 liability cannot be based upon respondeat superior principles, and
a corporate entity can be liable under the statute only if it has official policies or widespread
practices that cause constitutional deprivations. Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir.
2010). Plaintiff’s pleading makes no allegations against Defendant’s employees and no
allegations that Defendant’s towing of his car was the result of either a policy or a widespread
practice. Such generalized allegations against a corporate entity do not state a claim for relief
under § 1983.
For the foregoing reasons, the Court concludes that Plaintiff’s pleading fails to state a
claim for relief. Accordingly, Plaintiff’s motion for a writ of replevin is dismissed. As it is not
apparent to the Court at this stage that it would be impossible for Plaintiff to state a claim for
relief based on the towing of his vehicle under § 1983 claim, the dismissal is without prejudice to
Plaintiff filing an amended complaint and motion by 7/7/2014, to attempt to state a valid claim
consistent with this ruling. Defendant’s pending Motion to Dismiss and Plaintiff’s pending
Motion for Default Judgment are denied as moot.

Dated: June 2, 2014

__________________________
Andrea R. Wood
United States District Judge

3