Banks et al v. Murphey et al

Filing 20

ORDER Signed by the Honorable Amy J. St. Eve on 1/10/2014: The Court grants Defendants' motion to dismiss with prejudice 14 , declines to exercise its supplemental jurisdiction over Plaintiffs state law claims against Defendant Wells Fargo, and dismisses this lawsuit in its entirety. Status hearing set for 3/6/14 is stricken. Civil case terminated. [For further details, see attached Order.] Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICIA BANKS and EDGAR BANKS, )
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Plaintiffs,
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v.
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)
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WELLS FARGO BANK, CODILIS &
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ASSOCIATES, ERNEST CODILIS, and
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MORGAN MURPHY,
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Defendants.
)

Case No. 13 C 7017
Judge Amy J. St. Eve

ORDER
The Court grants Defendants’ motion to dismiss with prejudice [14], declines to exercise
its supplemental jurisdiction over Plaintiffs’ state law claims against Defendant Wells Fargo, and
dismisses this lawsuit in its entirety. Status hearing set for 3/6/14 is stricken. Civil case
terminated.
STATEMENT
On October 23, 2013, Plaintiffs Edgar Banks and Patricia Banks filed a pro se Amended
Complaint alleging violations of their constitutional rights in relation to a mortgage foreclosure
action in the Circuit Court of Cook County against Defendants Wells Fargo, the law firm of
Codilis & Associates, and attorneys Ernest Codilis and Morgan Murphy. Plaintiffs rely on the
Court’s original jurisdiction pursuant to 42 U.S.C. § 1983 and supplemental jurisdiction under 28
U.S.C. § 1367(a) in bringing their Amended Complaint in federal court. Before the Court is the
Codilis Defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For
the following reasons, the Court grants Defendants’ motion to dismiss Plaintiffs’ Section 1983
claims against all Defendants, including Defendant Wells Fargo, with prejudice. The Court, in
its discretion, declines to exercise its supplemental jurisdiction over Plaintiffs’ state law claims
against Defendant Wells Fargo, and thus dismisses this lawsuit in its entirety.
LEGAL STANDARD
“A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief
may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a
complaint must include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2)
must “give the defendant fair notice of what the claim is and the grounds upon which it rests.”
Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (citation

omitted). Under the federal notice pleading standards, a plaintiff’s “factual allegations must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put
differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
1949, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570). “In reviewing the
sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts
in the complaint as true.” Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013).
When ruling on motions to dismiss, courts may also consider documents attached to the
pleadings without converting the motion to dismiss into a motion summary judgment, as long as
the documents are referred to in the complaint and central to the plaintiff’s claims. See Geinosky
v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012); Wigod v. Wells Fargo Bank, N.A., 673
F.3d 547, 556 (7th Cir. 2012); Fed.R.Civ.P. 10(c).
BACKGROUND
Construing their pro se Amended Complaint liberally, see Luevano v. Wal-Mart Stores,
Inc., 722 F.3d 1014, 1027 (7th Cir. 2013), Plaintiffs allege that Defendants acted under the color
of law in relation to their mortgage loan for real property at 19025 Marylake Lane, Country Club
Hills, Illinois. Plaintiffs specifically allege that Wells Fargo made false representations and
omissions as to the nature of their loan. In fact, Plaintiffs allege that Wells Fargo never issued
them a loan in the first instance. By doing so, Plaintiffs assert that Wells Fargo has breached the
Uniform Commercial Code. Plaintiffs make no specific allegations concerning the Codilis
Defendants in their Amended Complaint. Nevertheless, Plaintiffs seek one million dollars for
Defendants’ violations of the “Security of Agreement Commercial Agreement.” Also, Plaintiffs
ask the Court to charge Defendants for extortion and other federal crimes pursuant to 18 U.S.C.
§§ 1346, 1918, among other unnamed statutes.
Attached to the Codilis Defendants’ motion to dismiss is a complaint to foreclose a
mortgage filed in the Circuit Court of Cook County, Chancery Division, on August 1, 2013. (R.
15-1, 13 CH 18055 Compl.) Wells Fargo brings the state court action against Plaintiffs, among
others, under Illinois mortgage foreclosure law. In the state court complaint, Wells Fargo alleges
that Patricia and Edgar Banks are the named mortgagors and that the mortgage was registered on
December 15, 2010 in the Office of the Recorder of Deeds of Cook County. Further, Wells
Fargo gives the legal description for the property at 19025 Marylake Lane, Country Club Hills,
Illinois. Wells Fargo seeks a judgment of foreclosure and sale. Attorneys with Codilis &
Associates represent Wells Fargo in the state foreclosure action. The mortgage foreclosure
action is still pending in the Circuit Court of Cook County.
ANALYSIS
Because constitutional claims brought pursuant to 42 U.S.C. § 1983 “may only be
maintained against defendants who act under color of state law, the defendants in § 1983 cases
are usually government officials.” London v. RBS Citizens, N.A., 600 F.3d 742, 746 (7th Cir.
2010). “[A]lthough private persons may also be sued under § 1983 when they act under color of
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state law they may not be sued for ‘merely private conduct, no matter how discriminatory or
wrongful.’” Id. (citations omitted). “[A]ction is taken under color of state law ‘when it involves
a misuse of power, possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.’” Wilson v. Price, 624 F.3d 389, 392 (7th
Cir. 2010) (citation omitted). The requirement that a private actor act under the color of state
law to be liable under Section 1983 “is an important statutory element because it sets the line of
demarcation between those matters that are properly federal and those matters that must be left
to the remedies of state tort law.” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 823
(7th Cir. 2009).
Here, both the Codilis Defendants and Wells Fargo are private actors, and, although
Plaintiffs can sue private actors under Section 1983, they must establish that Defendants’
conduct was more than private conduct, namely, that Defendants misused their authority in
relation to a right or privilege created by the state. See id.; London, 600 F.3d at 746. As private
actors, Wells Fargo brought a mortgage foreclosure action in state court and the Codilis
Defendants represent Wells Fargo in the state court action. There are no allegations that Wells
Fargo and the Codilis Defendants acted in concert with state actors, that the State employed
Defendants, or that the State controlled Defendants. See Rodriguez, 577 F.3d at 823, 825;
Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 815-16 (7th Cir.
2009). Simply put, construing Plaintiffs’ pro se allegations liberally, they do not set forth any
plausible scenarios that Defendants — as private actors — were acting under color of state law
under the circumstances.
Further, as to the individual Defendants Murphy and Codilis, liability pursuant to Section
1983 requires personal involvement in the alleged constitutional deprivation. See Minix v.
Canarecci, 597 F.3d 824, 833 (7th Cir. 2010). Plaintiffs fail to make any allegations regarding
Murphy and Codilis and how they were involved in depriving Plaintiffs of their constitutional
rights. In fact, Plaintiffs never articulate what constitutional right they believe Defendants
violated.
Instead, Plaintiffs cite to several statutes arguing that Defendants committed federal
crimes and ask the Court to charge Defendants for these crimes. It is well-established, however,
that a private citizen cannot bring a criminal action against another person. See Maine v. Taylor,
477 U.S. 131, 137, 106 S.Ct. 2440, 91 L.Ed. 110 (1986) (“private parties have no legally
cognizable interest in the prosecutorial decisions of the Federal Government”); Linda R.S. v.
Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973) (“a private citizen lacks a
judicially cognizable interest in the prosecution or nonprosecution of another”). Instead,
pursuant to 28 U.S.C. § 547, each United States Attorney has the responsibility to prosecute
offenses against the United States within their districts, except as otherwise provided by law.
See In re United States, 572 F.3d 301, 312 n.17 (7th Cir. 2009) (“The United States Attorney has
the ultimate authority to prosecute cases.”). Therefore, Plaintiffs’ claims asking the Court to
criminally prosecute Defendants are unavailing.

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Because Plaintiffs have failed to bring a plausible claim pursuant to Section 1983, the
Court grants Defendants’ motion to dismiss with prejudice. The Court also notes that any further
amendment to Plaintiffs’ Section 1983 claims would be futile because Defendants are not state
actors and did not engage in state action. See Johnson v. Trans Union, LLC, 524 Fed.Appx. 268,
271 (7th Cir. 2013) (unpublished) (“court did not abuse its discretion in denying Johnson’s
attempts to amend his complaint on grounds of futility: Johnson could not have recovered under
42 U.S.C. § 1983, because the defendants are not state actors.”).
What remains is a montage of allegations set forth in the context of state law against
Defendant Wells Fargo in relation to Plaintiffs’ mortgage for the real property at 19025
Marylake Lane, Country Club Hills, Illinois. See Cogswell v. CitiFinancial Mortgage Co., Inc.,
624 F.3d 395, 402 (7th Cir. 2010) (Illinois mortgage foreclosure law adopts the Uniform
Commercial Code). Because the Court is dismissing Plaintiffs’ claim over which the Court has
original jurisdiction, namely, Plaintiffs’ Section 1983 claim, the Court declines to exercise
supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c).
As the Seventh Circuit teaches, “[t]he supplemental-jurisdiction statute provides that the
district court ‘may decline to exercise supplemental jurisdiction” over state-law claims if the
court ‘has dismissed all claims over which it has original jurisdiction.’” RWJ Mgmt. Co., Inc. v.
BP Prods. N. Am., Inc., 672 F.3d 476, 479 (7th Cir. 2012) (quoting 28 U.S.C. § 1367(c)(3)); see
also Cortezano v. Salin Bank & Trust Co., 680 F.3d 936, 941 (7th Cir. 2012) (“Generally, when
a court has dismissed all the federal claims in a lawsuit before trial, it should relinquish
jurisdiction over supplemental state law claims rather than resolve them on the merits.”).
Although the decision to relinquish supplemental jurisdiction is within the district court’s broad
discretion, “[w]hen all federal claims in a suit in federal court are dismissed before trial, the
presumption is that the court will relinquish federal jurisdiction over any supplemental state-law
claims.” RWJ Mgmt. Co., 672 F.3d at 479 (quoting Al’s Serv. Ctr. v. BP Prods. N. Am., Inc.,
599 F.3d 720, 727 (7th Cir. 2010)). Under this well-established precedent, the Court, in its
discretion, dismisses Plaintiffs’ state law claims against Defendant Wells Fargo without
prejudice.

Dated: January 10, 2014

______________________________
AMY J. ST. EVE
United States District Court Judge

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