UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THOMAS MCFADDEN, )

)

Plaintiff, ) Case No. 12 C 4110

)

v. )

) Judge John Robert Blakey

SERGEANT STEVEN PRYOR, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

The case is before the Court on defendants’ motion to dismiss [72] for lack of 

standing and for failure to state a claim. Defendants seek to dismiss the operative 

complaint, which is the Third Amended Complaint (“TAC”) [57], filed October 8, 

2014. For the reasons explained below, the motion is granted. 

Background

Plaintiff’s TAC alleges that, on March 3, 2012, Officer Pryor, Supervisor 

Brzeczek, Sergeant Hroma and certain unknown defendants, arrived at 732 North

Lawndale in Chicago to execute a search warrant. TAC [57], ¶14. At that time, the 

property was owned by plaintiff’s mother, Ethel McFadden, who was then 74 years 

old and suffering from esophageal cancer. Id., ¶13. The defendants had a search 

warrant and, pursuant to that warrant, they searched for Sam Walker and searched 

the first floor of the property. The warrant allowed them to “seize firearms, 

ammunition, bullets, bullet casings, firearm boxes, firearm magazines, documents 

referencing the purchase and/or sale of firearms and documents showing proof of 
residency.” TAC, ¶15 and Exhibit B [57-1], p. 10. Additionally, according to the 

TAC, Ethel signed a “Consent to Search” form, allowing defendants to search 

beyond the warrant and into the basement, hallways and garage of the property. 

Id., ¶16 and Exhibit C [57-1], p. 11. Plaintiff further alleges that the defendants 

“broke down the garage door, entered and searched the garage” and “broke the back 

door of the house” and “broke into and searched the second floor unit which was 

occupied by unrelated tenants.” TAC, ¶¶17-18. Plaintiff alleges that by “the time 

the Defendants left, the Property had been severely damaged, all the locks had been 

broken, and the house could not be secured.” TAC, ¶20. 

While plaintiff did not own the searched property on March 3, 2012, he 

alleges that he is the “only child and only heir” of Ethel, who has since died (the 

TAC does not say when she passed away), and “has succeeded to the ownership of 

the Property.” TAC, ¶24. Based on these allegations, plaintiff asserts one claim 

under Section 1983, alleging that “the Defendants willfully and maliciously and 

under cover of the law of the State of Illinois deprived him of the rights, privileges, 

and immunities secured by the Constitution and laws of the United States, and the 

State of Illinois.” Id., ¶ 27. 

Discussion

The defendants have moved to dismiss the TAC for lack of standing under 

Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim for which 

relief may be granted under Rule 12(b)(6). Under both 12(b)(1) and 12(b)(6), the 

Court must construe the Complaint in the light most favorable to Plaintiff, accept 

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as true all well-pleaded facts and draw all reasonable inferences in its favor. 

Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013); Long v. Shorebank Dev't 

Corp., 182 F.3d 548, 554 (7th Cir. 1999). Statements of law, however, need not be 

accepted true. Yeftich, 722 F.3d at 915.

For a Rule 12(b)(1) motion, Plaintiff bears the burden of establishing that the 

jurisdictional requirements have been met. Ctr. for Dermatology & Skin Cancer, 

Ltd. v. Burwell, 770 F.3d 586, 589 (7th Cir. 2014). If the jurisdictional facts are 

challenged, Plaintiff must support those facts by competent proof. Thomson v. 

Gaskill, 315 U.S. 442, 446 (1942). The standard for a Rule 12(b)(1) motion differs 

from that under Rule 12(b)(6) only in that the Court “may properly look beyond the 

jurisdictional allegations of the [claim] and view whatever evidence has been 

submitted on the issue to determine whether in fact subject matter jurisdiction 

exists.” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir.2009).

To survive Defendant's motion under Rule 12(b)(6), the Complaint must 

“state a claim to relief that is plausible on its face.” Yeftich, 722 F.3d at 915. “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.” Id. Rule 12(b)(6) limits this Court's consideration to 

“allegations set forth in the complaint itself, documents that are attached to the 

complaint, documents that are central to the complaint and are referred to in it, and 

information that is properly subject to judicial notice.” Williamson v. Curran, 714 

F.3d 432, 436 (7th Cir. 2013).

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A. Plaintiff’s Standing to Pursue this Claim

The defendants first argue that plaintiff lacks standing to sue for violation of 

his Fourth Amendment rights (via Section 1983) because he could have had no 

expectation of privacy (much less a reasonable expectation of privacy) in the 

property at 732 North Lawndale. At the time of the search, he had no ownership 

interest in the property and did not reside there. Nor did he have any ownership 

interest at the time the suit was filed (and, having been in police custody since 

2011, he did not live there at that time either). 

“The Supreme Court has characterized the doctrine of standing as ‘an 

essential and unchanging part of the case-or-controversy requirement of Article III’

of the Constitution.” Perry v. Village of Arlington Heights, 186 F.3d 826, 829 (7th

Cir. 1999)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 

119 L.Ed.2d 351 (1992)). “A party seeking to invoke a federal court’s jurisdiction 

must demonstrate three things: (1) an ‘injury in fact,’ which is an invasion of a 

legally protected interest that is (a) concrete and particularized, and (b) actual or 

imminent, not conjectural or hypothetical; (2) a causal relationship between the 

injury and the challenged conduct, such that the injury can be fairly traced to the 

challenged action of the defendant and not from the independent action of some 

third party not before the court; and (3) a likelihood that the injury will be 

redressed by a favorable decision. Perry, 186 F.3d at 829 (quoting Lujan, 504 U.S. 

at 560–61). The party invoking federal jurisdiction bears the burden of establishing 

the elements of standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Since the 

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elements of standing “are not mere pleading requirements but rather an 

indispensable part of the plaintiff's case, each element must be supported in the 

same way as any other matter on which the plaintiff bears the burden of proof, i.e., 

with the manner and degree of evidence required at the successive stages of 

litigation.” Id.

In ruling on a motion to dismiss for lack of standing, the well-pleaded 

allegations of the complaint must be accepted as true. See Warth, 422 U.S. at 501.

But where “standing is challenged as a factual matter, the plaintiff bears the 

burden of supporting the allegations necessary for standing with ‘competent proof.’ ” 

Retired Chicago Police Ass'n, 76 F.3d at 862. “Competent proof” requires a showing 

by a preponderance of the evidence that standing exists. See NLFC, Inc. v. Devcom 

Mid–America, Inc., 45 F.3d 231, 237 (7th Cir.1995).

Here, plaintiff alleges that the defendants’ unconstitutional search of his 

mother’s home deprived him of his rights under the Fourth Amendment. The 

Fourth Amendment focuses on whether there is a “‘constitutionally protected 

reasonable expectation of privacy.’” California v. Ciraolo, 476 U.S. 207, 211 (1986) 

(quoting Katz v. United States, 389 U.S. 347, 360 (1967)). “Fourth Amendment 

rights are personal rights, which, like some other constitutional rights, may not be 

vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)(citations 

omitted). Fourth Amendment rights are not derivative, but may only be asserted by 

one whose Fourth Amendment rights have been violated. Alderman v. United 

States, 394 U.S. 165, 171-72 (1969); U.S. v. Eighty Thousand Nine Hundred Forty5
One and 05/100 Dollars ($80,941.05) in U.S. Currency, No. 05-2106, 2006 WL 

1215194, at *4 (C.D. Ill. May 5, 2006). In Siebert v. Severino, 256 F.3d 648, 655 (7th

Cir. 2001), plaintiffs – a husband and wife – sued an Agricultural Investigator 

under Section 1983 alleging violation of the Fourth Amendment; the plaintiffs 

alleged that the defendant conducted an unreasonable search of their barn and 

unreasonably seized their horses. The Seventh Circuit held that the husband 

lacked standing to sue, because he did not own the horses and because the papers 

for the horses were all in the wife’s name. Id., at 655. 

To claim the protection of the Fourth Amendment, a plaintiff must 

demonstrate “that he personally has an expectation of privacy in the place searched, 

and that his expectation is reasonable; i.e., one that has ‘a source outside of the 

Fourth Amendment, either by reference to concepts of real or personal property law 

or to understandings that are recognized and permitted by society.’” Rakas, 439 

U.S. at 143-144, and n. 12. Here, plaintiff concedes that he did not own and was not 

in possession of the property at the time of the allegedly unconstitutional search. 

He did not reside there at the time and was not physically present at the time; he 

was, in fact, incarcerated at the time. Nor did he have any ownership interest in 

the property at the time. He had no reasonable expectation of privacy in the 

property. The fact that he may have lived at the property at one time or may 

inherit a future ownership interest in the property is not enough. 

Relatedly, plaintiff argues that he has standing to bring the Section 1983 

claim on behalf of his mother, as the administrator of his mother’s estate. Initially, 

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plaintiff concedes that he is not the administrator of his mother’s estate and has no 

legal right to assert a claim on behalf of his mother. Thus, consideration of this 

issue is premature and does not affect the Court’s decision today. 

Plaintiff represents in his motion that he “intends, if necessary, to file to 

become administrator of the estate.” Response, p. 4. Becoming the administrator 

might confer standing to plaintiff, but that effort ultimately would be futile because 

any claim based on the allegations in the Third Amended Complaint would still fail 

as a matter of law. Even if asserted on behalf of Ethel McFadden’s estate, any 

allegations plaintiff asserts must still give rise to a federal claim for violation of his 

mother’s constitutional rights. The allegations currently before the Court do not. 

B. The Substance of Plaintiff’s Claim

The defendants have moved to dismiss under Rule 12(b)(6) for failure to state 

a claim. “To survive a motion to dismiss under Rule 12(b)(6), the complaint must 

provide enough factual information to ‘state a claim to relief that is plausible on its 

face’ and ‘raise a right to relief above the speculative level.’ ” Doe v. Village of 

Arlington Heights, 782 F.3d 911, 914 (7th Cir. 2015)(quoting Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555, 570 (2007)). “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.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). When considering a motion to dismiss under Federal Rule 

of Civil Procedure 12(b)(6), the Court must construe the operative complaint in the 

light most favorable to the plaintiff, accepting as true all well-pleaded facts and 

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drawing all reasonable inferences in her favor. E.g., Yeftich v. Navistar, Inc., 722 

F.3d 911, 915 (7th Cir. 2013)(citing Fed. R. Civ. P. 12(b)(6); Tamayo v. Blagojevich, 

526 F.3d 1074, 1081 (7th Cir. 2008)). But the Court “need not accept as true 

statements of law or unsupported conclusory factual allegations.” Yeftich, 722 F.3d 

at 915 (citing McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011)). Rule 

12(b)(6) limits this Court’s consideration to “allegations set forth in the complaint 

itself, documents that are attached to the complaint, documents that are central to 

the complaint and are referred to in it, and information that is properly subject to 

judicial notice.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).

It is not entirely clear from the allegations of the TAC whether plaintiff is 

claiming that the search was unreasonable because the warrant was invalid, or 

because the search exceeded the scope of the warrant. But in either case, he has 

failed to state a claim for which relief may be granted. 

First, if plaintiff is challenging the validity of the warrant that authorized the 

defendants’ March 3, 2012 search, the Court agrees with the defendants that such a 

claim cannot succeed. When assessing a Fourth Amendment challenge to a search 

warrant, the reviewing court is limited to determining whether the issuing 

magistrate had a substantial basis for concluding that probable cause existed. E.g., 

Illinois v. Gates, 462 U.S. 213, 238-239 (1983). The search warrant, which is 

attached to the complaint, was signed by a judge and appears valid on its face. 

Indeed, the TAC does not allege any deficiency, and there is no allegation here that 

the issuing court somehow lacked probable cause. 

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In response to defendants’ motion to dismiss, plaintiff argues that he has 

stated a valid §1983 claim because the defendants exceeded the scope of the search 

warrant when they searched the 2nd floor apartment at 732 North Lawndale, even 

though the search warrant allowed them to search the 1st floor. There are two 

problems with this assertion. First, plaintiff has not alleged damages for exceeding 

the scope of the warrant; he has alleged damages for execution of the warrant. 

Second, the TAC concedes that Ethel McFadden – who owned the property at the 

time of the search – consented to a search of the hallways, garage and basement; 

she consented, in other words, to a search of the property that was broader than 

what was spelled out in the search warrant. “[T]he law is clearly established that a 

law enforcement officer may not exceed the scope of a lawfully obtained search 

warrant unless one of the exceptions to the warrant requirement apply.” Horton v. 

California, 496 U.S. 128, 140 (1990). 

Consent is one such exception. “A consent search is reasonable only if kept 

within the bounds of the actual consent.” U.S. v. Acosta, 110 F.Supp.2d 918, 924 

(E.D. Wis. 2000)(citing United States v. Dichiarinte, 445 F.2d 126, 129 (7th Cir. 

1971)). Here, plaintiff does not allege that the search exceeded the scope of the 

consent; he alleges that the search exceeded the scope of the warrant. The consent 

and the warrant are both attached to the complaint. His allegations effectively 

plead him out of court on this claim. 

Finally, although plaintiff has named several Doe Defendants, he alleges that 

“some of all of the additional Defendants” entered the property. TAC, ¶14. To the 

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extent plaintiff cannot allege personal involvement on the part of those unknown 

defendants, his claim would fail as to those defendants for that reason as well. E.g.

Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir.1997)(“[P]ersonal involvement 

is a prerequisite for individual liability in a § 1983 action.”); Wolf–Lillie v. Sonquist, 

699 F.2d 864, 869 (7th Cir.1983)(An “individual cannot be held liable in a § 1983 

action unless he caused or participated in an alleged constitutional deprivation” 

since “[s]ection 1983 creates a cause of action based upon personal liability and 

predicated upon fault”)). 

C. The Claims against Brzeczek

Finally, defendants argue that the claims against defendant Brzeczek are 

barred by the applicable statute of limitations. If plaintiff had standing to pursue a 

claim against Brzeczek (and he does not), the Court agrees that the claim would be 

time-barred. 

“While Section 1983 does not contain an express statute of limitations, a 

federal court must adopt the forum state’s limitations period for personal injury 

claims” which, in Illinois is two years. Henderson v. Bolanda, 253 F.3d 928, 931 

(7th Cir. 2001)(citing 735 ILCS § 5/13–202; Ashafa v. City of Chicago, 146 F.3d 459, 

462 (7th Cir. 1998)). The events alleged in the TAC occurred on March 3, 2012. 

Brzeczek was not named as a defendant until October 8, 2014. Thus, unless 

plaintiff can show that the allegations against Brzeczek relate back to an earlier 

version of the complaint that was filed within the statutory period, his claims 

against Brzeczek are time-barred. 

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Federal Rule of Civil Procedure 15(c)(2) provides that an amended complaint 

relates back to the date of the original complaint for purposes of tolling the statute 

of limitations where “the claim or defense asserted in the amended pleading arose 

out of the conduct, transaction, or occurrence set forth or attempted to be set forth 

in the original pleading.” Generally, an amended complaint in which “the plaintiff 

merely adds legal conclusions or changes the theory of recovery will relate back to 

the filing of the original complaint if the factual situation upon which the action 

depends remains the same and has been brought to defendant’s attention by the 

original pleading.” Henderson, 253 F.3d at 931. A sufficient factual nexus exists 

where the amended complaint asserts a newly specified claim “based on same core 

of facts advanced in the original.” Newell v. Hanks, 283 F.3d 827, 834 (7th Cir.

2002).

Plaintiff submitted1 his initial Complaint on May 25, 2012. That complaint 

alleged that the then-named defendants (Officer Kubik, Officer Caruso and Officer 

O’Keefe) arrested him on August 22, 2011 based upon racial profiling. The 

complaint does not name Brzeczek, does not challenge the validity or execution of 

the search warrant in March of 2012, and does not make any claim for property 

damage or constitutional deprivations resulting from any search. The initial 

Complaint is not “based on the same core facts advanced” in the subsequent 

complaints. 

1 The Complaint was not filed at that time because plaintiff sought leave to proceed in forma 

pauperis, which was granted [4]; the original Complaint was filed on June 5, 2012 [5].

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Plaintiff submitted an Amended Complaint on October 23, 2013. The 

Amended Complaint named only Sergeant Pryor and alleged that a warrant was 

served on the home of Ethel McFadden on March 19, 2013 and that, in the 

execution of that warrant, her property was damaged [23]. The Amended 

Complaint also does not mention Brzeczek; nor does it mention a March 2012 

search. 

Plaintiff filed his Second Amended Complaint on June 4, 2014, naming 

Sergeant Pryor, John Does 1-12 and Jane Does 1-12, and alleging that, on March 

19, 2013, Sergeant Pryor executed a search warrant at Ethel McFadden’s home and, 

in the course of that execution, defendants exceeded the scope of the warrant and 

caused extensive property damage [45]. 

Plaintiff filed his Third Amended Complaint on October 8, 2014 [57]. The 

TAC names Officer Brzeczek for the first time; it also alleges for the first time a 

claim arising out of the execution of the search warrant on March 3, 2012. [57], 

¶14. Attached to the TAC – and made a part of the record for the first time – is a 

police report documenting the March 2, 2012 incident that indicates Brzeczek was 

the supervisor assigned to the search. 

Plaintiff argues that “the illegal search occurred on March 3, 2012. In June 

5, 2012, Plaintiff filed the original complaint based on facts related to the March 3, 

2012 incident.” Response, p. 8. But that initial complaint would not have put 

Brzeczek on notice of any potential claim against him. Indeed, the substance of that 

original complaint is very different from the substance of the TAC; that complaint 

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focuses on plaintiff’s August 2011 arrest and not on the March 2012 search. The 

first complaint to allege a claim arising out of the March 2012 incident is the TAC, 

which was filed October 8, 2014. The First Amended and Second Amended 

Complaints do include allegations that are similar to those alleged in the final 

version (i.e., property damage resulting from an unconstitutional search of 

plaintiff’s mother’s home), but they both allege that the incident occurred on March 

19, 2013. They do not, however, include the police report, do not mention Brzeczek 

and do not include any allegations that could have alerted Brzeczek that a claim 

against him would be forthcoming. 

Additionally, even if the Court were to find that the facts were sufficiently 

similar, plaintiff’s relation back argument would fail under Rule 15(c)(1)(C). In 

addition to showing that the claim asserted in the TAC arose out of the same 

conduct as the conduct alleged in the First or Second Amended Complaint, for the 

TAC to relate back to one of these, plaintiff would still have to show that Brzeczek 

either received notice of the action such that he will not be prejudiced by the 

amendment and knew or should have known that the action would have been 

brought against him, but for a mistake concerning the proper party’s identity.” Fed. 

R. Civ. P. 15(c)(1)(C). The TAC suggests that plaintiff may not have known the 

accurate search date or the proper defendants when he filed the prior complaints. 

TAC, ¶11. A lack of knowledge is not a mistake under Rule 15(c). E.g., Mitchell v. 

Nesemeier, No. 11 C 50329, 2013 WL 5587887, at *4-7 (N.D. Ill. Oct. 9, 2013). Thus, 

plaintiff’s claim against Brzeczek is time-barred. 

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Conclusion

For the reasons explained above, defendants’ motion to dismiss [72] is 

granted, and the Third Amended Complaint is dismissed without prejudice for lack 

of subject matter jurisdiction. 

Dated: June 25, 2015

ENTERED:

____________________________

John Robert Blakey

United States District Judge

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