Hoffmann v. Wood River Police Department et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 5/7/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID L. HOFFMAN,
#28353,
Plaintiff,
vs.
WOOD RIVER, IL POLICE DEPT.,
OTIS STEWARD, BRADY GREENE,
J. TIMMINS, SGT. SABOLO,
and THOMAS E. KOCHAN,
Defendants.

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Case No. 15-cv-00371-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff David L. Hoffman, a pretrial detainee at the Madison County Jail in Madison
County, Illinois, brings this pro se civil rights action against the Wood River Police Department
and several of its employees pursuant to 42 U.S.C. § 1983 (Doc. 1). Plaintiff claims that Wood
River officials violated his constitutional rights on March 11, 2014, by executing a search
warrant at his residence while he was gone, seizing his personal property, and seizing a vehicle
that he inherited from his father (Doc. 1). Plaintiff seeks monetary damages for the unlawful
search and seizure and due process violations that allegedly resulted (Doc. 1, pp. 15-16). He also
seeks preservation and return of the property pending the outcome of his criminal case.
Merits Review Under 28 U.S.C. § 1915A
This case is now before the Court for preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. Under Section 1915A, the Court is required to promptly screen prisoner
complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to
dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim
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upon which relief may be granted, or asks for money damages from a defendant who by law is
immune from such relief. 28 U.S.C. § 1915A(b). When reviewing the allegations in light of this
standard, the Court finds that the complaint survives preliminary review.
The Complaint
On March 11, 2014, several officers from the Wood River Police Department executed a
search warrant at Plaintiff’s residence, which is located at 979 East Acton in Wood River,
Illinois (Doc. 1, p. 7). Plaintiff was not present during the search. The following property was
seized: a Vizio television, a Sanyo television, a Magnavox television, a PlayStation 3, a gold
Rolex watch, priceless oil paintings, ten gold coins, clothes, tools, a toolbox, and jumper cables
(Doc. 1, p. 8). In addition, Wood River officials seized a 1994 Lincoln Town Car that was
registered in the name of Plaintiff’s deceased biological father, David M. Hoffman, and parked
on a public street (Doc. 1, p. 9).
Following the search of Plaintiff’s residence and seizure of this property, multiple felony
warrants were issued for Plaintiff’s arrest, in connection with his alleged participation in an
illegal cannabis growing operation.

When Plaintiff learned about the warrants on

March 13, 2014, he immediately turned himself in to the Madison County Sheriff’s Department.
Plaintiff has been detained at the Madison County Jail awaiting the final disposition of his
criminal case ever since (Doc. 1, p. 10).
Pertinent to this action, Plaintiff claims that he never received proper notification
regarding the seized property, such as an inventory of the items that were taken (Doc. 1, pp. 10,
18-19). His criminal defense attorney repeatedly attempted to obtain this information without
success. Although the complaint is far from clear, it appears that Plaintiff eventually secured the
information in response to a Freedom of Information Act (“FOIA”) request that he submitted on

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March 10, 2015 (Doc. 1, pp. 12, 29). Documents that appear to be responsive to this request are
included with the complaint.
The documentation includes a Notice of Seizure for Forfeiture, which lists the televisions
and PlayStation 3, and provides notice of a preliminary hearing on March 27, 2014 (Doc. 1,
p. 32).

An Affidavit in Support of Forfeiture signed by Officer Brady Greene on

March 11, 2014, lists the same property (Doc. 1, pp. 18-19). Officer Greene states that he seized
this property from Plaintiff’s residence because “Hoffman was charged with participation in an
illegal cannabis growing operation[, and] during the execution of a search warrant . . . had the
aforementioned items in his residence, with no valid source of income to acquire said items”
(Doc. 1, p. 19). An Illinois State Police Notice and Inventory of Seized Property, signed by the
State’s Attorney on May 3, 2014, also lists the televisions and PlayStation 3 (Doc. 1, pp. 11, 25,
32).
In addition, the documentation includes a letter from Sergeant Kochan at the Wood River
Police Department dated June 23, 2014, to Plaintiff’s deceased father at 410 N. Main Street in
Earliville, Illinois (Doc. 1, pp. 11, 21, 24). The letter indicates that Plaintiff’s father is the title
holder and lien holder of the vehicle and notifies him that the vehicle was towed on
March 11, 2014. The letter sets forth instructions for reclaiming the vehicle from Trickey’s
Services, Inc. and warns the owner that failure to take possession of the vehicle within ten days
will result in its disposal (Doc. 1, p. 21). In addition, the documentation includes a Certificate of
Purchase for the vehicle and a Junking Certificate, both in the name of Trickey’s Services, Inc.
and dated July 8, 2014 (Doc. 1, pp. 22, 26).
Plaintiff now claims that Defendants Wood River Police Department, Otis Steward
(Chief of Police), Brady Greene (Narcotics Detective), J. Timmins (officer), Sabolo (sergeant),

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and Kochan (sergeant), while acting in their individual and official capacities, violated his rights
under the First, Fifth, Eighth, Thirteenth, and Fourteenth Amendments when executing the
search warrant at his residence on March 11, 2014 (Doc. 1, pp. 13). He claims that these
individuals also violated his right to equal protection and due process of law in the forfeiture
proceedings that were conducted pursuant to the Drug Asset Forfeiture Procedure Act and
resulted in the disposal of the motor vehicle. Plaintiff seeks $2.5 million in monetary damages
and preservation of all confiscated property pending the outcome of his criminal case (Doc. 1,
pp. 15-16).
Based on the allegations, the Court finds it convenient to divide the pro se complaint into
seven counts. The parties and the Court will use these designations in all future pleadings and
orders, unless otherwise directed by a judicial officer of this Court. The designation of these
counts does not constitute an opinion as to their merit.
Count 1:

Defendants conducted an unlawful search of Plaintiff’s
residence while he was not present on March 11, 2014, in
violation of the Fourth Amendment;

Count 2:

Defendants unlawfully seized personal property from
Plaintiff’s residence on March 11, 2014, in violation of the
Fourth Amendment;

Count 3:

Defendants conducted an unlawful search of the Lincoln Town
Car that was parked on a public street on March 11, 2014, in
violation of the Fourth Amendment;

Count 4:

Defendants wrongfully seized the 1994 Lincoln Town Car and
its contents on March 11, 2014, in violation of the Fourth
Amendment;

Count 5:

Defendants failed to provide Plaintiff with proper notice of the
seizure and forfeiture of the property, in violation of his due
process rights under the Fourteenth Amendment;

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Count 6:

Defendants violated Plaintiff’s right to equal protection of the
law in conjunction with the search and seizure that occurred
on March 11, 2014; and

Count 7:

Defendants violated Plaintiff’s First, Fifth, Eighth, Thirteenth,
and Fourteenth Amendment rights in connection with the
search and seizure that occurred on March 11, 2014.

As discussed in more detail below, the Court shall dismiss Counts 1, 2, 6 and 7 without
prejudice for failure to state a claim upon which relief may be granted. Counts 3, 4, and 5 shall
receive further review.
Discussion
Although the complaint does not mention the Fourth Amendment, most of Plaintiff’s
claims take root there (Counts 1-4). 1 The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
person or things to be seized.” U.S. CONST. amend IV. To prevail on a claim for an unlawful
search or seizure under the Fourth Amendment, the standard is reasonableness, not whether the
officers conducting the search had a warrant. Soldal v. Cook County, 506 U.S. 56, 70 (1992).
In the complaint, Plaintiff contends that the search warrant was improperly executed at
his residence because he was not there at the time of the search (Count 1), calling into question
the seizure of his personal property from the residence (Count 2). See Guzman v. City of
Chicago, 565 F.3d 393, 397 (7th Cir. 2009) (explaining that a warrant that is properly issued
1

The fact that the complaint omits reference to the Fourth Amendment is not fatal to Plaintiff’s claims.
The Seventh Circuit has made it clear that “there is no duty to plead legal theories.” Currie v. Chhabra,
728 F.3d 626, 629 (7th Cir. 2013) (citing Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011);
Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010); Aaron v. Mahl, 550 F.3d 659, 666
(7th Cir. 2008)). Where the complaint includes sufficient allegations to put the Court and Defendants on
notice of the claims, Plaintiff shall be allowed to proceed.

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must also be properly executed). He further argues that the search warrant did not authorize a
search of his deceased father’s Lincoln Town Car because it was parked in a public street and
was not within the scope of the search warrant (Count 3), calling into question the seizure of the
vehicle and its contents (Count 4). See Horton v. California, 496 U.S. 128, 140 (1990) (stating
that if the scope of the search exceeds that permitted by the terms of a validly issued warrant, the
search is unconstitutional).
Counts 1 & 2 - Search and Seizure at Residence
Counts 1 and 2 fail to satisfy basic pleading standards.

Plaintiff challenges the

reasonableness of the search and seizure at his residence, based only on the fact that he was not
at home when the warrant was executed. He does not challenge the warrant itself as being
deficient on its face or unsupported by probable cause. Rule 8 requires a “short and plain
statement of the claim showing that the pleader is entitled to relief.” See FED. R. CIV. P. 8(a)(2).
Rule 8 does not require “detailed factual allegations,” but “naked assertions” that lack “further
factual enhancement” fail to satisfy minimal pleading standards. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 557 (2007). Plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. Simply alleging that a constitutional violation occurred
because the search warrant was executed outside of Plaintiff’s presence is not enough to “nudge”
Plaintiff’s claims “across the line from conceivable to plausible.” Ashcroft v. Iqbal, 556 U.S.
662, 680 (2009).
Counts 1 and 2 also fail in substance. While it is true that a person possesses a legitimate
expectation of privacy in his home, Minnesota v. Carter, 535 U.S. 83, 89 (1998), Plaintiff’s
absence during the search, without more, does not render the search unreasonable.

Law

enforcement officials routinely execute search warrants when the subject of the warrant is not

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present. When executing a search warrant at a home, officers typically knock and announce their
presence, giving a property owner the opportunity to answer before entering the home.
See Wilson v. Arkansas, 514 U.S. 927 (1995). But officers are not required to leave if no one
answers.

Under certain circumstances officers may enter a home without knocking or

announcing their presence.

See Hudson v. Michigan, 547 U.S. 586, 589 (2006).

This is

particularly true in the context of drug-related crimes, where any delay in entry could result in
the destruction of evidence. Id. Plaintiff’s absence, without more, does not sustain a Fourth
Amendment claim. And this is the only factual allegation Plaintiff offers in support of Count 1,
and by implication, Count 2. Without more, Counts 1 and 2 do not survive preliminary review
and shall be dismissed without prejudice for failure to state a claim upon which relief may be
granted.
Counts 3 & 4 – Search & Seizure of Vehicle
Counts 3 and 4 may proceed at this early stage. Both claims arise from the unlawful
search and seizure of a 1994 Lincoln Town Car, which Plaintiff allegedly inherited from his
father (Doc. 1, p. 13). Defendants searched this vehicle at the same time that they executed the
search warrant at Plaintiff’s residence. The vehicle was parked on a public street, however, and
the warrant did not mention it.

Plaintiff contends that Defendants’ actions exceeded the

permissible scope of the search warrant, in violation of his Fourth Amendment rights.
The standard for analyzing whether a seizure survives constitutional scrutiny is
reasonableness, and a seizure can be reasonable even if it is completed without a warrant.
Soldal, 506 U.S. at 70. The Fourth Amendment is not violated if the officers had probable cause
to believe that there were grounds to seize the Lincoln Town Car. See Florida v. White, 526 U.S.
559 (1999) (holding that Fourth Amendment did not require police to obtain a warrant before

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seizing automobile from public place when they had probable cause to believe that it was
forfeitable contraband).

The complaint suggests, however, that officers may not have had

probable cause to search (or seize) the vehicle. At this early stage, the unlawful seizure claim,
along with the unlawful search claim, shall receive further review.
The Court notes that Fourth Amendment claims for damages for an unlawful search and
seizure may be brought during the pendency of an underlying criminal case. A claim asserting a
Fourth Amendment violation “necessarily ‘accrues’ at the time of the unlawful search and
seizure, rather than at the conclusion of any criminal proceedings.” See Copus v. City of
Edgerton, 151 F.3d 646, 649 (7th Cir. 1998) (citing Gonzalez v. Entress, 133 F.3d 551, 553
(7th Cir. 1998)).

Thus, Fourth Amendment claims for an illegal search “may be brought

immediately,” and a defendant need not wait until criminal proceedings have concluded to bring
a civil rights action. Id. Such claims also are not barred by Heck v. Humphrey, 512 U.S. 477
(1994), because adjudication of the civil rights claims does not necessarily imply the invalidity
of an underlying conviction. Id. (stating that “it is possible for an individual to be properly
convicted though he is unlawfully arrested, or his home unlawfully searched”). The remedy in
these types of situations is a civil rights action brought pursuant to Section 1983. Although the
Court takes no position regarding the ultimate merits of these claims, Plaintiff may proceed with
Counts 3 and 4 against each individual who was personally involved in the search and seizure of
the vehicle, i.e., Defendants Steward, Greene, Timmins, Sabolo, and Kochan.
Count 5 – Due Process
The allegations in the complaint give rise to a number of Fourteenth Amendment due
process claims (Count 5). Plaintiff maintains that Defendants failed to: (1) provide him with
proper notice that his property was seized in the first instance; (2) provide him with notice of his

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remedies and the factual information necessary to invoke the remedies under Illinois law;
(3) provide him with a timely opportunity to contest the lawfulness of the seizure; and
(4) implement a procedure for holding and reclaiming the seized property. Only the second due
process argument fails to pass muster at this early stage.
Plaintiff shall be allowed to proceed with his first argument, i.e., that officials failed to
provide him with proper notice that the property was seized in the first instance. The Supreme
Court has held that “when law enforcement agents seize property pursuant to a warrant, due
process requires them to take reasonable steps to give notice that the property has been taken so
the owner can pursue available remedies for its return.” City of West Covina v. Perkins, 525 U.S.
234, 240-41 (1999). The complaint suggests that Plaintiff did not receive any notice at all, in
violation of his right to due process of law.
But Plaintiff cannot proceed with his second argument, i.e., that officials failed to provide
him with notice of his remedies and the factual information necessary to invoke the remedies
under Illinois law. Individualized notice of state law remedies are “established by published,
generally available state statutes and case law.” See id. at 240. Upon learning that his property
has been seized, a property owner can look to those sources for guidance on the remedial
procedures that are available to him. Defendants were not required to take any steps to inform
Plaintiff of his options. Id. at 241 (citation omitted). For this reason, this claim fails, and it shall
be dismissed without prejudice.
Plaintiff shall be allowed to proceed with his argument that he was not provided with
timely notice or any opportunity to dispute the seizure of his property before some of it (i.e., the
vehicle) was forfeited. See Alvarez v. Smith, 558 U.S. 87 (2009). But see Jones v. Takaki, 38
F.3d 321, 324 (1994) (citing United States v. Von Neumann, 474 U.S. 242, 249 (1986)).

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According to the complaint, Plaintiff’s due process rights under the Illinois Drug Asset
Forfeiture Procedure Act, 725 ILL. COMP. STAT. § 150/1, et seq., were violated.
Finally, Plaintiff shall be allowed to proceed with his challenge to the available remedies
for the return of seized property. See, e.g., Gates v. City of Chicago, 623 F.3d 389, 397-98
(7th Cir. 2010). He maintains that inadequate procedures are in place for the storage and return
of seized property. The complaint suggests that Plaintiff’s Lincoln Town Car was sold and
junked as a result of the inadequate procedures. This argument shall receive further review.
With the exception of the second due process argument listed above, which shall be
dismissed without prejudice, Count 5 shall be allowed to proceed against Defendants Steward,
Greene, Timmins, Sabolo, Kochan, and the Wood River Police Department.
Counts 6 & 7 – First, Fifth, Eighth, Thirteenth, and Fourteenth Amendment Claims
The complaint generally alleges that Plaintiff is entitled to relief for violations of his right
to equal protection of the law (Count 6) and his rights under the First, Fifth, Eighth, Thirteenth,
and Fourteenth Amendments (collectively, Count 7). The complaint sets forth no facts in
support of the alleged constitutional violations, beyond those violations address above. These
claims, like the claims set forth in Counts 1 and 2, must be dismissed for failure to satisfy basic
pleadings standards under Rule 8 and Twombly. Plaintiff simply did not plead “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. 544, 570 (2007). Without
more, Counts 6 and 7 fail to state a claim upon which relief may be granted, and they shall be
dismissed without prejudice.
Official Capacity Claims
With the exception of Count 5, all official capacity claims shall be dismissed without
prejudice from this action. Under Monell v. City Dept. of Social Servs., New York, 436 U.S. 658,

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691 (1978), local governing bodies can be sued directly under Section 1983 for monetary,
declaratory, and injunctive relief in situations where the unconstitutional conduct flows from an
official policy, custom, or practice. This is referred to as Monell liability. And because claims
against municipal employees in their official capacities are treated as suits against the
municipality itself, Kentucky v. Graham, 473 U.S. 159 165-66 (1985), Monell is equally
applicable to official capacity claims against the Wood River Police Department employees.
The complaint challenges the procedures in place for the storage and return of seized
property, and Plaintiff seeks the return of his property following the completion of his criminal
proceedings. But no other policies, practices, or customs are challenged. For this reason,
Plaintiff shall be allowed to proceed with his official capacity due process claims (Count 5)
against Defendants, but all other official capacity claims shall be dismissed.
Pending Motions
Plaintiff has filed a motion for recruitment of counsel (Doc. 3), which shall be referred to
United States Magistrate Judge Donald G. Wilkerson for a decision.
Plaintiff has filed a motion for service of process at government expense (Doc. 4), which
is hereby GRANTED.
Finally, Plaintiff has filed a request for copies of his Section 1983 complaint. As a
general rule, the District Clerk will mail paper copies of any document only upon prepayment of
the required fee. According to 28 U.S.C. § 1914(b), “[t]he clerk shall collect from the parties
such additional fees only as are prescribed by the Judicial Conference of the United States.”
The Judicial Conference Schedule of Fees section (4) provides that a fee of $.50 per page shall
apply for reproducing any record or paper. The complaint consists of thirty-three (33) pages.

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Should Plaintiff wish to purchase a copy of it, he must submit a request for the complaint in
writing to the Clerk of Court, along with the required prepayment of $16.50.
Disposition
IT IS HEREBY ORDERED that COUNTS 1, 2, 6, and 7 are DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
IT IS ALSO ORDERED that as to COUNTS 3, 4, and 5, the Clerk of Court shall
prepare for Defendants WOOD RIVER, IL POLICE DEPARTMENT, STEWARD,
GREENE, TIMMINS, SABOLO, and KOCHAN: (1) Form 5 (Notice of a Lawsuit and
Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons).
The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum
and Order to each Defendant’s place of employment as identified by Plaintiff. If a Defendant
fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days
from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service
on that Defendant, and the Court will require that Defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.

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Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings, including a decision on Plaintiff’s
motion for recruitment of counsel (Doc. 3). Further, this entire matter shall be REFERRED to
United States Magistrate Judge Wilkerson for disposition, pursuant to Local Rule 72.2(b)(2) and
28 U.S.C. § 636(c), if all parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding the
fact that his application to proceed in forma pauperis has been granted.

See 28 U.S.C.

§ 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff.
Local Rule 3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not

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independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: May 7, 2015
__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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