Wilson v. Evanston, Illinois

Filing 40

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 1/28/16Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JERMAINE WILSON,
Plaintiff,
v.
CITY OF EVANSTON, ILLINOIS,
Defendant.

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14 C 8347
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff Jermaine Wilson brought suit against the City of Evanston pursuant to 42 U.S.C.
§ 1983 alleging various constitutional violations in connection with Evanston’s disposal of his
belongings following his arrest. Evanston has brought a motion to dismiss [31]. For the reasons
provided below, the Court grants in part and denies in part the motion to dismiss.
Factual Background
Wilson was arrested by the Evanston Police Department on or about July 10, 2013. See
Am. Compl. ¶ 23, ECF No. 26. At the time of his arrest, Wilson had in his possession a wallet, a
cell phone, a belt, and a backpack. See id. ¶ 24. Evanston inventoried Wilson’s belongings and
retained some of it. The rest was sent with Wilson to Cook County Jail along with a Prisoner
Property Receipt, which provided a description of the items that Evanston kept. See id. ¶¶ 23–24.
The Prisoner Property Receipt contains the following instructions:
NOTIFICATION REGARDING YOUR PROPERTY
Certain property in your possession, will not be accepted by the Cook County
Department of Corrections when you are transported to court for your bond
hearing. These items are marked above with a checkmark. In order to protect your
property, we have inventoried them with our Property Bureau. You or your
designee will have 30 days from the date of your arrest to retrieve these items. If
you do not retrieve these items within the 30 days they will be disposed of as

provided by statute. THIS IS THE ONLY NOTICE YOU WILL RECEIVE
ABOUT YOUR PROPERTY.
These items may be retrieved during the normal operating hours of the Property
Bureau as posted on the Evanston Police Department web site We strongly suggest
that you call first to schedule an appointment (847.866.5029).
Id. ¶ 13. According to Wilson, when detainees are taken to Cook County Jail, the Receipt is
seized by intake personnel and stored with the detainee’s personal property. See id. ¶ 15.
Importantly, he alleges that Evanston knows that the Receipt is taken from the detainees upon
arriving at Cook County Jail. See id.
Wilson remained in Cook County Jail until October 2014 and was not able to return to
Evanston to retrieve his property. See id. at ¶ 25.
Legal Standard
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v.
Cty. of Boone, Ill., 483 F.3d 454, 457 (7th Cir. 2007). Under the federal notice pleading
standards, “a plaintiff’s complaint need only provide a short and plain statement of the claim
showing that the pleader is entitled to relief, sufficient to provide the defendant with fair notice
of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008); see also
Fed. R. Civ. P. 8(a)(2). When considering a motion to dismiss under Rule 12(b)(6), the Court
must “accept [ ] as true all well-pleaded facts alleged, and draw[ ] all possible inferences in [the
plaintiff’s] favor.” Tamayo, 526 F.3d at 1081.
A complaint, however, must also allege “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 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). For a claim to have facial
plausibility, a plaintiff must plead “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is

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not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. Plausibility, however, “does not imply that the district court
should decide whose version to believe, or which version is more likely than not.” Swanson v.
Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
Analysis
I.

Fourth Amendment
As an initial matter, Wilson’s brief in opposition to the motion to dismiss refers to a

Fourth Amendment violation, but Wilson’s complaint makes no reference to the Fourth
Amendment or an illegal search or seizure. See Compl. ¶ 30–32. The Court thus construes his
complaint as alleging only Fifth and Fourteenth Amendment violations. See Car Carriers, Inc. v.
Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (“[I]t is axiomatic that the complaint may
not be amended by the briefs in opposition to a motion to dismiss.”).
II.

Fifth Amendment
Evanston argues that Wilson’s Fifth Amendment takings claim is premature, because he

has not sought compensation through state procedures. See Mem. Supp. Mot. Dismiss at 7–8,
ECF. No. 33. Wilson, in turn, makes two arguments for why he was not required to pursue state
remedies. First, he contends that the Local Governmental and Governmental Employees Tort
Immunity Act protects Evanston against any claims by Wilson arising from the failure to store
his property. See Pl.’s Mem. Opp’n Mot. Dismiss at 7–9, ECF No. 35. Next, Wilson argues that,
because Evanston’s alleged violation arose from a policy rather than from a random and
unauthorized act, he need not pursue state remedies before bringing this suit. See id. at 4–6.
Where a plaintiff asserts a takings claim for real property under the Fifth Amendment,
federal courts may not adjudicate such disputes until: (1) the regulatory agency in question has
had an opportunity to make a considered definitive decision, and (2) the property owner exhausts
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available state remedies for compensation. See Williamson Cty. Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 193–94 (1985). These requirements have been
read to apply to Fifth Amendment claims beyond those involving real property. See Sorrentino v.
Godinez, 777 F.3d 410, 413 (7th Cir. 2015).
Here, Defendants argue that Wilson has not met the second of the two requirements
because he has not availed himself of state law remedies, including available common law
claims. See Gates v. Towery, 331 F. Supp. 2d 666, 672 n.4 (N.D. Ill. 2004) (“For example,
Illinois law recognizes a common law claim for conversion to hold officials responsible for
wrongfully taking property.”); see also New Port Largo, Inc. v. Monroe Cty., 95 F.3d 1084, 1089
(11th Cir. 1996) (“With no indication that Florida property law or tort law deny recourse . . . we
cannot consider whether the Fifth Amendment would allow some compensation for that act.”).
In response, Wilson contends that the following provision in the Illinois Tort Immunity
Act forecloses such claims and, accordingly, he has exhausted all available state remedies for
compensation.
Neither a local public entity nor a public employee is liable for failure to provide
a jail, detention or correctional facility, or if such facility is provided, for failure
to provide sufficient equipment, personnel, supervision or facilities therein.
Nothing in this Section requires the periodic inspection of prisoners.
745 Ill. Comp. Stat. § 10/4-103. But, on its face, the statute does not appear to bar a tort claim
under the theory of conversion or bailment against Evanston arising out of the destruction or sale
of Wilson’s personal belongings. After all, Wilson is not alleging that Evanston should have
provided additional equipment, facilities, or personnel.
Undeterred, Wilson argues that the Illinois Appellate Court’s decision in Black v. Dart,
28 N.E.3d 884 (Ill. App. Ct. 2015), reads § 10/4-103 in a way that would apply to Wilson’s
hypothetical state law claims. In that case, James Black brought suit against Sheriff Dart for

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damages resulting from the detainee’s alleged mistreatment while at the Cook County
Department of Corrections. See id. at 885. Black alleged that “he was unable to take a daily
shower, use the telephone or purchase personal items from the commissary. He further alleged
that, upon his release, the [Department of Corrections] failed to return his clothing to him.” Id.
Before the trial court, Dart asserted that he was immune from liability because “he (1) is
not liable for failure to provide sufficient equipment, personnel, supervision or facilities in a jail;
and (2) is not responsible for injuries arising from the discretionary acts of his employees or for
claims resulting from matters involving policy determinations.” Id. at 886; see also 745 Ill.
Comp. Stat. § 10/2-201 (“[A] public employee serving in a position involving the determination
of policy or the exercise of discretion is not liable for an injury resulting from his act or omission
in determining policy when acting in the exercise of such discretion even though abused.”).
Black did not respond to Dart’s arguments regarding immunity, and the trial court granted
summary judgment in favor of Dart. See Black, 28 N.E.3d at 887. The Appellate Court held that,
based on the plain language of § 10/4-103 and § 10/2-201 and the fact that Black had failed to
challenge Dart’s immunity defense, the trial court’s ruling should be affirmed. See id. at 888.
With regard to the failure to return Black’s property, the Appellate Court affirmed, but in
doing so it relied upon § 10/2-201, rather than §10/4-103. Indeed, in its ruling, the court
remarked, “The plaintiff does not dispute the Sheriff’s contention that decisions regarding the
method of maintenance, storage, and return of the personal property of inmates are unique to the
Sheriff’s office and require him to ‘make a judgment call’ as to the proper allocation of time and
other resources of his office.” This language tracks the immunity established by § 10/2-201, not
§ 10/4-103. Thus, Black does not stand for the proposition that Wilson suggests.

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Wilson also contends that he need not pursue available state remedies before pursuing his
Fifth Amendment claim because the alleged violation arose from a policy rather than from a
random and unauthorized act. But this doctrine, which applies to Fourteenth Amended due
process claims, does not apply to Fifth Amendment taking claims. See Wilson v. Civil Town of
Clayton, Ind., 839 F.2d 375, 379–80 (7th Cir. 1988).
Because Wilson has failed to exhaust state law remedies for the alleged deprivation of
property, Wilson’s Fifth Amendment takings claim is dismissed without prejudice.
III.

Fourteenth Amendment
Next, Evanston seeks dismissal of Wilson’s due process claim under the Fourteenth

Amendment. Initially, as with the Fifth Amendment claim, the city raises a concern regarding
Wilson’s failure to allege why state remedies were inadequate. On the merits, Evanston argues
that it provided adequate notice and constitutionally proper process.
A.

Adequate State Remedies

To begin with, to the extent that Wilson relies on the Tort Immunity Act to argue that no
adequate state remedies exist for the alleged due process violation, that argument fails for the
reasons stated above.
In addition to the Tort Immunity Act, Wilson asserts a second and independent reason for
why he does not need to exhaust state remedies. As with Fifth Amendment claims, plaintiffs
alleging due process violations must exhaust state law remedies before going to federal court and
seeking the protection of the Fourteenth Amendment. See Wilson v. Civil Town of Clayton, Ind.,
839 F.2d 375, 379–80 (7th Cir. 1988). That requirement, however, does not apply when the
offending conduct is pursuant to a policy rather than random and unauthorized actions. See id. In
this case, it is uncontested that the procedure according to which Wilson’s property was kept and

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ultimately disposed of, was a written policy. As a result, Wilson is not required to exhaust state
remedies before coming to federal court to assert his due process claim.
There is, however, one additional wrinkle to the exhaustion analysis that was not
addressed by either party. The Seventh Circuit has read the Fifth Amendment’s exhaustion
requirement broadly, such that a plaintiff’s attempt to package a takings claim as an equal
protection or due process claim must still pass the exhaustion requirements set out in Williamson
County. See Patel v. City of Chi., 383 F.3d 569, 572–73 (7th Cir. 2004); Forseth v. Vill. of
Sussex, 199 F.3d 363, 368 (7th Cir. 2000). “Labels do not matter. A person contending that state
or local regulation of the use of land has gone overboard must repair to state court.” River Park,
Inc. v. City of Highland Park, 23 F.3d 164, 167 (7th Cir. 1994). As a result, for cases in which a
due process challenge is merely a repackaged takings claim, a court must apply the more
stringent Williamson exhaustion requirement—which does not contain an exception when the
plaintiff challenges a policy rather than a random and unauthorized act.
In Patel, for example, the Seventh Circuit decided to apply the Williamson requirements
to the plaintiff’s equal protection claim. 383 F.3d at 573. The City of Chicago had passed an
ordinance that designated the area surrounding Patel’s motels as a redevelopment zone and
identified his motels as potential targets for acquisition through eminent domain. Id. at 569. Patel
brought suit alleging that the ordinance violated the Equal Protection Clause. Id. at 571. The
court held that, as the complaint made clear, the equal protection claim was squarely within the
rubric of a takings claim—as opposed to a bona fide equal protection claim. In particular, the
injury asserted was based solely on the threat of eminent domain and not based membership in a
protected class. See id. at 573.

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By contrast, in Hager v. City of West Peoria, after applying the Williamson requirements
to the plaintiffs takings claim, the Seventh Circuit held that those requirements were not
applicable to the plaintiff’s equal protection claim. 84 F.3d 865, 869–70 (7th Cir. 1996). West
Peoria had enacted municipal ordinances charging a fee to trucks that used the road leading to
Hager’s businesses. Id. at 867. Hager brought suit alleging an unconstitutional taking and an
equal protection claim. Hager’s equal protection claim, the court explained, would evaporate if
the city collected the fee from every heavy truck. Id. at 870. “Thus, rather than just a single
takings claim with different disguises (including one for equal protection), in this case . . .
plaintiffs . . . raised a legitimate equal protection claim.” Id.
Like the equal protection claim in Hager, Wilson’s procedural due process challenge is
not merely a dressed up takings claim. As evidenced by their briefing on the motion to dismiss,
the crux of the due process claim is that Evanston provided inadequate notice about what would
happen to his property and an inadequate procedure to recover it. See Pl.’s Mem. Opp’n Mot.
Dismiss at 11–14. These allegations are separate from the takings claim that seeks “just
compensation” for the city having deprived Wilson of his property. See Compl. ¶ 32. Because his
Fourteenth Amendment challenge is not merely duplicative of his takings claim, the Williamson
exhaustion requirement does not bar Wilson’s procedural due process claim.
B.

Wilson Has Stated a Due Process Claim

Defendant also argues that Wilson has failed to state a due process claim. There are two
elements of Wilson’s procedural due process claim. First, he argues that he did not receive
sufficient notice about how he could recover his clothes. Second, Wilson contends that
Evanston’s procedure for recovering his property was itself a violation of due process because it
made it nearly impossible to recover the inventoried property.

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As to the former, due process requires state entities to take reasonable steps to give notice
to an individual that “property has been taken so that the owner can pursue available remedies
for its return.” City of W. Covina v. Perkins, 525 U.S. 234, 240 (1999). When the procedure for
protecting a property interest is not described in any publicly available document, such as a state
statute, the state entity must ensure that the procedure is available to those individuals whose
property is at risk. See id. at 241–42; see also Gates v. City of Chi., 623 F.3d 389, 397–99 (7th
Cir. 2010). “[T]he notice need not actually reach its intended target so long as is reasonably
calculated to do so.” Gates, 623 F.3d at 402.
Here, Wilson has failed to identify why the substance of the notice was constitutionally
deficient. The city gives each person detained a Prisoner Property Receipt that described the
procedure by which the detainee could recover his property. In fact, looking at the Receipt, it
appears that the detainee is even required to sign immediately below the section that describes
the procedure. Notices have been held to be constitutionally inadequate, for example, if notice is
sent to an arrestee’s home when the state entity knows it will not reach him, see id., or if the
notice provided is misleading in some material way, see id. at 401. Yet here, Wilson’s
complaint’s only reference to the notice states that “detainees are not provided with
constitutionally adequate notice of any adequate procedure through which they may reclaim their
property.” Am. Compl. ¶ 31(b). Wilson’s response to the motion to dismiss similarly fails to
identify any reason why the notice was improper. Pl.’s Mem. Opp’n Mot. Dismiss at 11–14. The
Court thus finds that Wilson has failed to state a procedural due process claim based on
inadequate notice.
Wilson does, however, state a valid due process challenge the adequacy of Evanston’s
procedure for recovering the inventoried property. The Prisoner Property Receipt gives detainees

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or their designees thirty days to pick up the property. When a detainee is held at Cook County
Jail for over thirty days, the only way he can ensure that his property will not be discarded is to
send a designee to pick it up. In order to do so, however, Evanston’s procedures require that the
designee be in possession of the Receipt itself. Wilson alleges that when detainees arrive at Cook
County Jail, the Receipt is taken from them, stored with the property that Evanston did not
inventory, and not readily accessible while the detainee is at the jail. Am. Compl. ¶ 15.
Moreover, Wilson alleges, and the Court must accept as true, that Evanston knows that Cook
County Jail takes the Prisoner Property Receipt from detainees when they arrive and that it is not
readily accessible to detainees while at the jail. Id. Because Wilson has alleged that Evanston’s
procedure is not reasonably calculated to allow prisoners who are detained for over thirty days to
recover their property, he has stated a viable due process claim. 1
Evanston’s motion to dismiss Wilson’s due process claim is granted in part and denied in
part. The portion of Wilson’s due process claim based on inadequate notice is dismissed without
prejudice. Because Wilson has pleaded a proper due process claim based on the adequacy of
Evanston’s procedure, that portion of the claim may proceed.
Conclusion
For the reasons stated herein, the Court grants in part and denies in part Evanston’s
motion to dismiss [31]. The motion is granted as to Wilson’s Fourteenth Amendment due
process claim to the extent it is based on inadequate notice and as to the Fourth and Fifth
Amendment claims. The Court denies the motion as to Wilson’s Fourteenth Amendment due
process claim based on inadequate process.
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It does not make a difference that Cook County’s actions are part of the reason why
retrieving the property is not practicable. Cf. Gates, 623 F.3d at 402 (noting that due process is
violated when the state entity knows that notice is not reasonably calculated to reach the intended
target).
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IT IS SO ORDERED.

ENTERED 1/28/16

__________________________________
John Z. Lee
United States District Judge

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