McDuffie v. Sgt. Loney et al
MEMORANDUM Opinion and Order:For these reasons, Sergeant Loney's motion to dismiss, R. 45 , is denied, and U.S. Bank's motion to dismiss, R. 50 , is granted. Because the Court dismisses McDuffie's claim against U.S. Bank as barred by res judicata, but state court proceedings continue, it is dismissed without prejudice. Because the claim against U.S. Bank has been dismissed, and state court proceedings regarding the parties' rights to the Sangamon house continue, the Court d eclines to exercise jurisdiction over U.S. Bank's counterclaims. See Arnold v. KJD Real Estate, LLC, 752 F.3d 700, 707 (7th Cir. 2014) ("Several factors guide the court's discretion, including 'the scope of the pending state court proceeding' and 'whether the claims of all parties in interest can satisfactorily be adjudicated in that proceeding.' This is an inherently discretionary call for the district court...."). U.S. Bank's motion for summary judg ment on those claims, R. 63 , is denied as moot, and the counterclaims are dismissed without prejudice. U.S. Bank National Association (as Trustee for the Certificate Holders of Citigroup Mortgage Loan Trust Inc., Asset-Backed Pass-Through Certificates Series 2007-AMC1) terminated. Signed by the Honorable Thomas M. Durkin on 12/6/2017:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
No. 16 C 8860
SERGEANT JOHN LONEY; U.S. BANK
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Daniel McDuffie alleges that Chicago Police Sergeant John Loney violated
his Fourth Amendment rights by forcing him to vacate a house he was renovating
at 10655 South Sangamon Street in Chicago. R. 44. U.S. Bank has been in
proceedings to evict McDuffie from the Sangamon house. Based on these
proceedings, McDuffie has also brought a state law abuse of process claim against
U.S. Bank. Both defendants have moved to dismiss for failure to state a claim. R.
45; R. 50. U.S. Bank has also filed a counterclaim against McDuffie for civil and
criminal trespass, seeking (among other relief) a declaratory judgment that it owns
the Sangamon house. See R. 54. U.S. Bank has moved for summary judgment on
those claims. R. 63. For the following reasons, Sergeant Loney’s motion to dismiss is
denied, U.S. Bank’s motion to dismiss is granted, and since the claim against U.S.
Bank is dismissed, the Court declines to exercise jurisdiction over U.S. Bank’s
counterclaims, and U.S. Bank’s motion for summary judgment is denied as moot.
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘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.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
McDuffie alleges that he performed renovations on the Sangamon house for
the former owner. McDuffie alleges further that when the former owner couldn’t
pay for the renovations in 2014, he quitclaimed the Sangamon house to McDuffie.
McDuffie continued to put money into renovating the house.
U.S. Bank filed a foreclosure action on the Sangamon house in state court in
2016. On March 10, 2016, U.S. Bank obtained an order of possession. See R. 50-1.
McDuffie was a participant in those proceedings. See R. 36.
On June 24, 2016, individuals arrived to “board up” the Sangamon house on
the authority of the order of possession obtained by U.S. Bank, and demanded that
McDuffie and the workers assisting him vacate the property. McDuffie refused and
called the police. Eventually Sergeant Loney arrived and examined both the order of
possession and McDuffie’s quitclaim deed. Sergeant Loney determined that
McDuffie did not have a right to be on the property and ordered him to leave within
two hours or face arrest. McDuffie asked for more time in order to be able to remove
all his equipment, which Sergeant Loney denied. Sergeant Loney left other officers
to ensure that McDuffie complied with his order. McDuffie was not able to remove
all of his equipment within the two hour time limit.
U.S. Bank filed a counterclaim in this case seeking a declaratory judgment
“prohibit[ing] McDuffie from continuing to interfere with U.S. Bank’s exclusive
right to possession and ownership” of the Sangamon house. In its counterclaim, U.S.
Bank alleges that McDuffie continues to enter the Sangamon house and to lease it
to other people.
Claims against Sergeant Loney
McDuffie claims that Sergeant Loney violated his Fifth Amendment right to
be free of deprivation of his property without due process. That right, however,
applies only against the federal government, not state actors like Sergeant Loney.
See Arce v. Chi. Trans. Auth., 2015 WL 3504860, at *8 (N.D. Ill. June 2, 2015)
(citing Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008); Martinez-Rivera v.
Sanchez Ramos, 498 F.3d 3, 8-9 (1st Cir. 2007)).
As Sergeant Loney recognizes, and McDuffie agrees, his claims are better
analyzed under the Fourth Amendment’s prohibition against unreasonable
seizures, which restricts the conduct of state actors like Sergeant Loney. McDuffie
alleges that Sergeant Loney unreasonably seized the equipment he had in the
Sangamon house when Sergeant Loney ordered him to leave without giving him
enough time to remove the equipment.
For purposes of the Fourth Amendment, a “seizure” of property “occurs when
there is some meaningful interference with an individual’s possessory interests in
the property.” Soldal v. Cook County, 506 U.S. 56, 61 (1992). McDuffie’s alleges that
Sergeant Loney’s refusal to allow McDuffie sufficient time to retrieve his equipment
prevented him from maintaining possession of his equipment. These allegations
sufficiently allege a seizure. See Cantele v. City of Burbank, 2016 WL 8711498, at *9
(N.D. Ill. May 13, 2016) (“It was, in short, clearly established at the time of the
events at issue in this case that evicting someone from their home without a
warrant or other court authorization constitutes a Fourth Amendment seizure.”);
Hebert v. Reynolds, 2009 WL 3010510, at *6 (N.D. Ind. Sept. 15, 2009) (noting that
the plaintiff had waived a possible claim of seizure of his property when he was
ordered to leave his house).
Sergeant Loney cites the Seventh Circuit’s decision in Zappa v. Gonzalez to
argue that a mere threat of arrest, without physical action, is insufficient to allege
that he participated in a seizure. See R. 45 at 12-13 (citing 819 F.3d 1002, 1006 (7th
Cir. 2016)). In Zappa, the plaintiffs bought a motorcycle, but unbeknownst to them,
the defendant store gave them a more expensive model rather than the one they
actually purchased. When the store realized its error, it called the police. The police
called the plaintiffs and threatened arrest unless they returned the motorcycle to
In Zappa, the threat of arrest did not constitute a seizure because it did not
serve to separate the plaintiffs from their property. 819 F.3d at 1006 (“the Fourth
Amendment governs property seizures when there is ‘some meaningful interference
with an individual’s possessory interests’ in the property.’ Here, no such
interference occurred. No one ever took the 2004 motorcycle from [the plaintiffs] . . .
.”). By contrast, here Sergeant Loney’s threat of arrest prevented McDuffie from
reentering the Sangamon house to finish retrieving his equipment after the two
hours were up. See Hensley v. Gassman, 693 F.3d 681, 690 (6th Cir. 2012) (“A police
officer’s arrival and close association with the creditor during the repossession may
signal to the debtor that the weight of the state is behind the repossession and that
the debtor should not interfere by objecting.”). Sergeant Loney’s threat and order for
other officers to remain on the scene to enforce that threat, resulting in McDuffie’s
inability to maintain possession of his equipment, constitutes meaningful
interference with his possessory interests, i.e., a Fourth Amendment seizure.
McDuffie also must allege that the seizure was unreasonable. McDuffie’s
allegation that the two hour limit was insufficient to enable him to remove his
equipment plausibly alleges that the seizure was unreasonable. 1
The Court also questions the reasonableness of Sergeant Loney’s reliance on
the order of possession. Illinois law clearly gives the County Sheriff the authority to
enforce such orders. See 55 ILCS 5/3-6019 (“Sheriffs shall serve and execute, within
their respective counties, and return all warrants, process, orders and judgments of
every description that may be legally directed or delivered to them.”). It is unclear,
however, whether a Chicago Police officer like Sergeant Loney has such authority.
See Kernats v. O’Sullivan, 35 F.3d 1171, 1173 n.3 (7th Cir. 1994) (“At all times
relevant to the events detailed in the complaint, [55 ILCS 5/3-6019] delegated the
duty of enforcing and executing judgments of the Circuit Court of Cook County to
the Sheriff of Cook County. No provision of Illinois state law permitted local police
departments to enforce forcible entry and detainer judgments.”). And even if police
The Court acknowledges the Seventh Circuit’s holding that a plaintiff who has
notice that “his continued occupancy [of a property] [has] been adjudged to be
unlawful . . . lack[s] any objectively reasonable expectation of privacy in the
premises.” United States v. Curlin, 638 F.3d 562, 565-66 (7th Cir. 2011). But the
prohibition on unreasonable searches is not at issue here as it was in Curlin.
Rather, McDuffie alleges an unreasonable seizure, which does not implicate his
“privacy” expectations in the same way.
officers have authority under Illinois law to enforce valid eviction notices, the Court
questions whether it was reasonable for Sergeant Loney to act on a document (the
order of possession) for which he apparently had no official verification, but merely
received from a private individual on the scene. Sergeant Loney did not address
these issues in his brief.
Therefore, because McDuffie has plausibly alleged Sergeant Loney’s conduct
constituted an unreasonable seizure, Sergeant Loney’s motion is denied.
Claims against U.S. Bank
McDuffie makes the following allegations against U.S. Bank in his complaint:
McDuffie argues that U.S. Bank knew the property was in
litigation in the Chancery Court and was the subject of a
foreclosure action it had initiated; that the Chancery
Court has jurisdiction regarding the subject property; and
that a motion for possession or to evict was premature as
judgment has not been entered; that McDuffie was not a
tenant or trespasser; and in any event, only the Chancery
Court had jurisdiction and authority to order an eviction
relative to the subject property.
Therefore, when U.S. Bank commenced a cause of
action for eviction in the eviction court it was
circumventing the procedural process and using the
eviction court to fulfill an action it had not jurisdiction to
enter [and] to fulfill a purpose U.S. Bank had no right to
R. 44 ¶¶ 43-44.
McDuffie argues that these allegations state a claim for the tort of abuse of
process under Illinois law. R. 44 at 9. “Under Illinois law, an abuse of process claim
requires proof of two elements: (1) existence of an ulterior motive or purpose; and (2)
some act in the use of legal process not proper in the regular prosecution of the
proceedings.” Podolsky v. Alma Energy Corp., 143 F.3d 364, 372 (7th Cir. 1998). The
“mere institution of proceedings, even with a malicious intent or motive, does not
alone constitute abuse of process.” Reed v. Doctor’s Assocs., Inc., 824 N.E.2d 1198,
1206 (Ill. App. Ct. 5th Dist.). “The test is whether process has been used to
accomplish some end which is beyond the purview of the process or which compels
the party against whom it is used to do some collateral thing that he could not
legally and regularly be compelled to do. In other words, the defendant must have
intended to use the action to accomplish some result that could not be accomplished
through the suit itself.” Id.
U.S. Bank first argues that McDuffie’s claim is barred by the RookerFeldman doctrine. The Supreme Court has emphasized that the Rooker-Feldman
doctrine “is confined to . . . cases brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indust. Corp., 544 U.S. 280, 284
(2005). McDuffie does not argue that a particular state court judgment was wrong,
but that U.S. Bank sought a state court judgment for an improper purpose. See
Johnson v. Pushpin Holdings, LLC, 748 F.3d 769, 773 (7th Cir. 2014) (“[An abuse of
process claim] does not seek to disturb the judgment of the state court, but to obtain
damages for the unlawful conduct that misled the court into issuing the
judgment.”); see also Nesses v. Shepard, 68 F.3d 1003, 1004 (7th Cir. 1995) (federal
claim by a state court loser that his opponents attorney “used their political clout to
turn the state judges against him,” was not barred by Rooker-Feldman but res
judicata because he was “seek[ing] to relitigate [the state court] suit that [was]
decided against him”; in other words, “not so much attacking as trying to bypass the
[state court’s] judgment”). Thus, the Rooker-Feldman doctrine is inapplicable here.
Collateral Estoppel & Res Judicata
Additionally, U.S. Bank argues that collateral estoppel precludes McDuffie’s
claim against it. But collateral estoppel, or issue preclusion, works to “preclude
plaintiff from relitigating issues by switching adversaries.” Du Page Forklift Serv.,
Inc. v. Material Handling Servs., Inc., 744 N.E.2d 845, 849 (Ill. 2001). Such
circumstances are not present here.
Even though U.S. Bank expressly references “collateral estoppel,” it cites and
applies the standard for “claim preclusion,” or res judicata. See R. 50 at 8. Res
judicata applies when there is an identity of parties, as there is here. Under Illinois
law, res judicata applies to bar relitigation of all claims “actually decided in a
previous action as well as to all grounds of recovery and defenses which might have
been presented in the prior litigation.” Whitaker v. Ameritech Corp., 129 F.3d 952,
956 (7th Cir. 1997). An “order of possession” is a “final judgment” under Illinois law.
See derrick family: hawthorne v. Silverleaf Funding, LLC, 2017 WL 2573213, at *5
n.6 (N.D. Ill. June 14, 2017) (“The state court’s . . . orders of possession in the
eviction proceeding also qualify as final judgments.” (citing In re DiGregorio, 458
B.R. 436, 442 (N.D. Ill. Bankr. 2011); Knolls Condo. Ass’n v. Harms, 781 N.E.2d
261, 263-64 (Ill. 2002)). Furthermore, Illinois courts have held that “claims
questioning the plaintiff’s motivation for bringing” an eviction action are “germane”
to such proceedings and can be brought in those proceedings as affirmative
defenses. See People ex rel. Dep’t of Trans. v. Walliser, 629 N.E.2d 1189, 1194 (Ill.
App. Ct. 3d Dist. 1994); see also Allen v. Irmco Mgmt. Co., 2010 WL 2491151, at *3
(N.D. Ill. June 15, 2010). McDuffie could have brought (and possibly might still be
able to bring) his abuse of process claim against U.S. Bank in state court. Thus, his
claim is barred here by res judicata. 2
For these reasons, Sergeant Loney’s motion to dismiss, R. 45, is denied, and
U.S. Bank’s motion to dismiss, R. 50, is granted. Because the Court dismisses
McDuffie’s claim against U.S. Bank as barred by res judicata, but state court
proceedings continue, it is dismissed without prejudice.
Proceedings relevant to possession of the Sangamon house are apparently ongoing,
and it is conceivable that McDuffie could bring an abuse of process claim against
U.S. Bank in those proceedings. That possibility and the merits of such a claim are
now the purview of the state court, and this Court enters no opinion on those issues.
But should res judicata not apply here, the Court notes in the alternative that the
Court believes that McDuffie has failed to state a claim for abuse of process. As
mentioned, McDuffie must allege that U.S. Bank “intended to use the action to
accomplish some result that could not be accomplished through the suit itself.”
Reed, 824 N.E.2d at 1206. McDuffie has alleged no such thing. Rather, McDuffie
has alleged that U.S. Bank instituted a suit to foreclose on and take possession of
property for which it held a mortgage. Then U.S. Bank sought to evict McDuffie and
any other individuals residing in the property. McDuffie has failed to allege any
“ulterior motive” or attempt to accomplish a result outside the purview of process
available to U.S. Bank as a mortgage holder. Therefore, even if McDuffie’s abuse of
process claim was not barred by res judicata, the Court would dismiss it on the
Because the claim against U.S. Bank has been dismissed, and state court
proceedings regarding the parties’ rights to the Sangamon house continue, the
Court declines to exercise jurisdiction over U.S. Bank’s counterclaims. See Arnold v.
KJD Real Estate, LLC, 752 F.3d 700, 707 (7th Cir. 2014) (“Several factors guide the
court’s discretion, including ‘the scope of the pending state court proceeding’ and
‘whether the claims of all parties in interest can satisfactorily be adjudicated in that
proceeding.’ This is an inherently discretionary call for the district court . . . .”). U.S.
Bank’s motion for summary judgment on those claims, R. 63, is denied as moot, and
the counterclaims are dismissed without prejudice.
Honorable Thomas M. Durkin
United States District Judge
Dated: December 6, 2017
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