Banister v. South Holland Police Dept.

Filing 26

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 6/29/17.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DELOIS A BANISTER,
Plaintiff,
v.

SOUTH HOLLAND POLICE
DEPARTMENT,
Defendant.

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Case No. 16 C 10445
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Pro se Plaintiff Delois A. Banister (“Plaintiff”) brought this action against Defendant
South Holland Police Department (“Defendant”) under 42 U.S.C. § 1983. She alleges that
Defendant violated her constitutional rights by permitting a third party to remove property from
her house, which had previously been foreclosed upon and sold. Defendant has moved to
dismiss Plaintiff’s complaint. For the reasons that follow, Defendant’s motion [13] is granted.
Background
Plaintiff owned a home at 959 E. 166th Street, South Holland, Illinois 60473. Compl. at
4, ECF No. 7. The home, however, was foreclosed upon. See Pl.’s Mot. Strike at 1–2, ECF No.
16. On January 25, 2016, an Illinois circuit court entered an “Order Approving Report of Sale
and Distribution; Confirming Judicial Sale; and for Possession.” Def.’s Mot. Dismiss, Ex. A,
ECF No. 13. 1 This order, in pertinent part, instructs that “the holder of the certificate of

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The Court can take judicial notice of these foreclosure proceedings in reviewing Defendant’s
motion to dismiss. Ross-W. v. Bank of N.Y. Mellon Corp., 523 F. App’x 395, 396 (7th Cir. 2013)
(affirming dismissal of complaint where district court took judicial notice of state court foreclosure
proceedings in order to determine the applicability of the Rooker-Feldman doctrine); Byrd v.
Homecomings Fin. Network, 407 F. Supp. 2d 937, 942 (N.D. Ill. 2005).

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sale . . . is entitled to and shall have possession of the mortgaged real estate no sooner than 30
days from the entry of this Order.” Id., Ex. A, at 3. It further states that “in the event possession
is withheld, the Sheriff of Cook County is directed to evict and dispossess, no sooner than 30
days from the entry of this Order[,] [Plaintiff].” Id.
On November 1, 2016—well after the state court order took effect—Plaintiff discovered
that a third party was removing property from her house. Compl. at 4. She called 911 and
Defendant sent officers to her home. Id. Although Plaintiff explained to the officers that there
was a hearing date scheduled in connection with the state foreclosure proceedings on February
10, 2017, the officers nevertheless permitted the third party to continue. Id. Plaintiff thereafter
filed a form complaint in federal court alleging that Defendant “failed to intervene to protect
plaintiff from violation of plaintiff’s civil rights by one or more other defendants” and “conspired
together to violate one or more of plaintiff’s civil rights.” Id. at 2.
In her response, Plaintiff clarifies the nature of her claims. 2 She states that the February
10, 2017 hearing date concerned “lack of notice and Due Process under the U.S. Constitution and
the Illinois Constitution which did not occur[] in this case.” Pl.’s Mot. Strike at 1. She
continues:
Essentially, this is an illegal foreclosure and the remedy and recourse process was
not available to Ms. Banister because she was never duly notified of the
proceeding against her. She never had the opportunity to file a response or
answer, or deal with mediation, or any other remedy that might have avoided this
foreclosure and eviction.

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Plaintiff styled her response as a motion to strike, but the Court construed the motion as a timely
filed response. Order of Jan. 27, 2017, ECF No. 18. The representations in Plaintiff’s response are
consistent with and merely elaborate on her complaint, and they are therefore properly considered by the
Court in deciding Defendant’s motion to dismiss. Heng v. Heavner, Beyers & Mihlar, LLC, 849 F.3d
348, 353–54 (7th Cir. 2017).

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Id. at 1–2. She claims that Defendant’s actions “aided and abet[ted] the entities” that denied her
due process through the foreclosure proceedings. Id. at 2. 3
Legal Standard
Defendant has moved to dismiss Plaintiff’s complaint under Federal Rules of Civil
Procedure (“Rules”) 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), a defendant may move to
dismiss claims over which the federal court lacks subject matter jurisdiction. Jurisdiction—i.e.,
the power to decide—must be conferred upon a federal court. Flynn v. Sandahl, 58 F.3d 283,
288 (7th Cir. 1995). In ruling on a Rule 12(b)(1) motion, the Court must accept as true all wellpleaded facts and may look beyond the jurisdictional allegations to whatever evidence is
submitted on the issue of subject-matter jurisdiction. See St. John’s United Church of Christ v.
City of Chi., 502 F.3d 616, 625 (7th Cir. 2007).
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v.
Cty. of Boone, 483 F.3d 454, 457 (7th Cir. 2007). Under 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) (internal quotation marks
omitted); 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
inference in [the plaintiff’s] favor.” Tamayo, 526 F.3d at 1081.
Additionally, to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

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Plaintiff later states that her suit concerns “why [Defendant’s officers] acted in the manner that
they did,” but the basis of her objection to their conduct is that “they had no legal standing” to permit a
third party to remove her property and thus were complicit in the state court’s judgment, which she
objects to on due process grounds. Id. at 3.

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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). For a claim to be facially plausible, the plaintiff must plead facts
allowing the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged in the complaint. Id. Accordingly, “[t]hreadbare recitals of the elements of
the cause of action, supported by mere conclusory statements, do not suffice.” Id. Finally, the
plausibility standard is not akin to a probability requirement but, rather, asks for more than a
sheer possibility that the defendant acted unlawfully. Id.
The Court is mindful that “a pro se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, while
the Court gives liberal construction to a pro se plaintiff’s complaint, “it is also well established
that pro se litigants are not excused from compliance with procedural rules.” Pearle Vision, Inc.
v. Romm, 541 F.3d 751, 758 (7th Cir. 2008).
Analysis
Defendant advances two primary bases on which it seeks to dismiss Plaintiff’s complaint.
First, it contends that the South Holland Police Department is not a suable entity. Whether a
local governmental entity can be liable under § 1983 depends on state law. Sow v. Fortville
Police Dep’t, 636 F.3d 293, 300 (7th Cir. 2011). Under Illinois law, an entity must have a
separate legal existence in order to be sued. Richardson v. Cty. of Cook, 621 N.E.2d 114, 116–
17 (Ill. App. Ct. 1993). Municipal police departments that do not have an existence independent
of the municipality they serve are therefore not suable entities. See, e.g., Lewis v. Joliet Police
Dep’t, 2017 WL 1360777, at *1 n.1 (7th Cir. Apr. 14, 2017) (“[T]he Joliet Police Department[]
is not a suable entity.”); Courtney v. City of Chi., 439 F. App’x 557, 558 & n.1 (7th Cir. 2011)

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(observing that “the Chicago Police Department is not a suable entity” and “a police department
is not a suable entity in Illinois”); Karney v. City of Naperville, No. 15 C 4608, 2015 WL
6407759, at *1 (N.D. Ill. Oct. 22, 2015) (“The Naperville Police Department is not a suable
entity, but merely a department of the City of Naperville which does not have a separate legal
existence.”). The Court sees no reason to treat the South Holland Police Department differently.
South Holland Police Department, Village of South Holland, http://www.southholland.org
/departments/police-department/ (last visited Apr. 24, 2017) (listing the South Holland Police
Department as a department of the Village of South Holland). 4 Defendant maintains that the
South Holland Police Department does not enjoy a separate legal existence from the Village of
South Holland, Mot. Dismiss at 3–4, and Plaintiff does not contest this assertion in her response,
Pl.’s Mot. Strike at 2. The Court concludes, therefore, that the South Holland Police Department
is not a legal entity separate from the Village of South Holland and is not a proper defendant.
Defendant further asserts that, even if the South Holland Police Department were a
proper defendant, Plaintiff’s action would be barred by the Rooker-Feldman doctrine. This
doctrine “‘precludes lower federal court jurisdiction over claims seeking review of state court
judgments . . . no matter how erroneous or unconstitutional the state court judgment may be.’”
Kelley v. Med-1 Sols., LLC, 548 F.3d 600, 603 (7th Cir. 2008) (alteration in original) (quoting
Brokaw v. Weaver, 305 F.3d 660, 664 (7th Cir. 2002)). “A state litigant seeking review of a state
court judgment must follow the appellate process through the state court system and then directly
to the United States Supreme Court,” id., because “no matter how wrong a state court judgment

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The Court properly takes judicial notice of the Village’s website. LaBella Winnetka, Inc. v. Vill.
of Winnetka, 628 F.3d 937, 944 (7th Cir. 2010).

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may be under federal law, only the Supreme Court of the United States has jurisdiction to review
it,” Sykes v. Cook Cty. Circuit Court Prob. Div., 837 F.3d 736, 742 (7th Cir. 2016). 5
Importantly, Rooker-Feldman also bars claims “inextricably intertwined with a state
court judgment.” Sykes, 837 F.3d at 742. To determine whether a claim is “inextricably
intertwined” with a state court judgment, a court asks “whether the federal claim alleges that the
injury was caused by the state court judgment, or alternatively, whether the federal claim alleges
an independent prior injury that the state court failed to remedy.” Id. To that end, “when as in
this case the injury is executed through a court order, there is no conceivable way to redress the
wrong without overturning the order of a state court.” Id. at 743.
Even if a litigant’s claims are inextricably intertwined with a state court judgment,
Rooker-Feldman applies “only if [the litigant] had a reasonable opportunity to raise the issues in
state court proceedings.” Jakupovic v. Curran, 850 F.3d 898, 904 (7th Cir. 2017). “The
‘reasonable opportunity’ inquiry focuses not on ripeness, but on difficulties caused by ‘factor[s]
independent of the actions of the opposing part[ies] that precluded’ a plaintiff from bringing
federal claims in state court, such as state court rules or procedures.” Taylor v. Fed. Nat’l Mortg.

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In her response, Plaintiff represents that her “case is still pending” in state court, referencing the
February 10, 2017 court date. Pl.’s Mot. Strike at 2. The court docket pertaining to the foreclosure
proceedings, however, reveals no such court date. Case Information for Case Number 2015-CH-04871,
Cook County Clerk of the Circuit Court Electronic Docket Search, https://courtlink.lexisnexis
.com/cookcounty/FindDock.aspx?NCase=2015-CH-04871&SearchType=0&Database=3&case_no=
&PLtype=1&sname=&CDate= (last visited June 29, 2017). In any case, under Illinois law, an order
confirming the sale of a property in foreclosure “operates as the final and appealable order in a
foreclosure case.” EMC Mortg. Corp. v. Kemp, 982 N.E.2d 152, 154 (Ill. 2012).

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Ass’n, 374 F.3d 529, 534–35 (7th Cir. 2004) (alterations in original) (quoting Long v. Shorebank
Dev. Corp., 182 F.3d 548, 558 (7th Cir. 1999)). 6
Rooker-Feldman has been frequently applied to claims stemming from a state’s
foreclosure judgment. E.g., Sheikhani v. Wells Fargo Bank, 526 F. App’x 705, 706 (7th Cir.
2013) (barring a claim under Rooker-Feldman where the injury claimed was “the loss of [a]
house to foreclosure,” which “flow[ed] from the foreclosure judgment itself”); Wallis v. Fifth
Third Bank, 443 F. App’x 202, 204 (7th Cir. 2011) (holding that a plaintiff’s conspiracy
contentions stemming from “disagreement with [a state court’s] foreclosure judgment” asked the
court to “review and reject rulings the state court made against [plaintiff] in the foreclosure suit,”
and that “the Rooker-Feldman doctrine block[ed] a federal district court from entertaining those
contentions”); Sappington v. Deutsche Bank Nat’l Trust Co., No. 15 C 6039, 2016 WL 3406403,
at *3 (N.D. Ill. June 21, 2016) (observing that “[f]ederal courts consistently dismiss complaints
like Plaintiff’s seeking to challenge a state court judgment of foreclosure and sale,” and
collecting cases). Merely raising due process challenges to the state proceedings or casting a
federal complaint as a civil rights action does not remove a claim from Rooker-Feldman. Taylor,
374 F.3d at 534 (collecting cases).

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In dicta, the Seventh Circuit has cast doubt on the “reasonable opportunity” exception as it might
apply here:
[T]he Supreme Court definitively concluded in [Exxon Mobil Corp. v. Saudi Basic
Industries Corp., 544 U.S. 280 (2005),] that lower federal courts do not have subject
matter jurisdiction in cases in which the plaintiff complains of an injury that cannot be
separated from the state court judgment. In those cases, regardless of the opportunity that
he or she had to raise a claim in state court, the litigant must appeal through the state
court system and then seek review in the United States Supreme Court by filing a writ of
certiorari. The “reasonable opportunity” exception was developed during a time when
federal courts applied Rooker-Feldman much more expansively. Post-Exxon Mobil, the
“reasonable opportunity” exception to the Rooker-Feldman doctrine is of questionable
viability.

Kelley, 548 F.3d at 607.

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Here, Plaintiff’s claims against Defendant arise inextricably from the state foreclosure
judgment.

Plaintiff admits as much in her response, where she states that she was given

improper notice of the foreclosure proceedings. Pl.’s Mot. Strike at 2. Defendant’s connection
to this case arises solely from its officers’ inaction in permitting a third party to remove
Plaintiff’s property from her house pursuant to the state court’s order of foreclosure and sale.
Because Plaintiff challenges the propriety of the state court’s order, she asserts that Defendant
did not have “legal standing” to permit removal to occur. Id. at 3. The injuries Plaintiff
complains of—including “financial loss” and “displacement,” Compl. at 4—were caused by the
state court order, rather than some prior, independent source. The Court cannot redress these
injuries without overturning the state court’s order. Riddle v. Deutsche Bank Nat’l Trust Co.,
599 F. App’x 598, 600 (7th Cir. 2015) (“[Plaintiff claims] he was injured when the conspirators
deprived him of due process and violated state law by foreclosing on his house knowing that
service of process was defective.

Yet it was the state-court judgment that authorized the

foreclosure and subsequent sale of [plaintiff’s] house. [Plaintiff’s] federal lawsuit is thus an
attack on that judgment and is barred by the Rooker-Feldman doctrine.”); Holt v. Lake Cty. Bd.
of Comm’rs, 408 F.3d 335, 336 (7th Cir. 2005) (“[A]bsent the state court’s judgment evicting
him from his property, [plaintiff] would not have the injury he now seeks to redress.”).
Nor is there any indication that Plaintiff lacked a reasonable opportunity to pursue her
claims in state court such that Rooker-Feldman cannot apply. While Plaintiff maintains that she
was not duly notified of the proceeding against her, and thus could not respond or answer, she
does not present any basis from which the Court can conclude that she could not have raised lack
of service or notice before the state circuit court in challenging the foreclosure judgment or on
appeal within the state court system following the order approving sale. Thus, the Court cannot

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conclude that she lacked a reasonable opportunity to pursue her challenge to the state foreclosure
order in state court. 735 Ill. Comp. Stat. 5/15-1508 (outlining procedures for objecting to a
foreclosure judgment and sale on the basis of lack of notice); EMC Mortg. Corp., 982 N.E.2d at
154 (describing “the order confirming the sale” as “the final and appealable order in a
foreclosure case”); see Taylor, 374 F.3d at 535 (affirming a district court’s dismissal of a claim
that a state foreclosure judgment was procured by fraud where the plaintiff had not made the
court “aware of any state laws, state court procedures, or other impediments that would stand in
the way of her bringing her claims in state court proceedings”); Nationscredit Home Equity
Servs. Corp. v. City of Chi., 135 F. Supp. 2d 905, 912–13 (N.D. Ill. 2001) (“At best, plaintiff
might show that . . . defendant’s alleged failure to serve plaintiff with proper notice [ ] prevented
plaintiff from presenting its federal claim in the circuit court proceeding. This is not enough to
establish the ‘reasonable opportunity’ exception to the Rooker-Feldman doctrine.”).
Because the Rooker-Feldman doctrine applies, the Court lacks jurisdiction over
Plaintiff’s claims.

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Conclusion
For the foregoing reasons, Defendant’s motion to dismiss [13] is granted. Plaintiff’s
complaint is dismissed without prejudice. Jakupovic, 850 F.3d at 904 (explaining that dismissal
under the Rooker-Feldman doctrine should be without prejudice, barring refiling in federal court
but permitting review of the underlying claims in state court to the extent permitted by state law).
Moreover, if Plaintiff wishes to file an amended complaint naming a proper defendant and
raising claims not barred under Rooker-Feldman, she is given leave to do so by July 21, 2017.
IT IS SO ORDERED.

ENTERED: 6/29/17

____________________________________
JOHN Z. LEE
United States District Judge

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