# Un ited States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted May 30

, 2019 *

Decided May 31 , 2019

Before

DIANE P. WOOD

, Chief Judge

FRANK H. EASTERBROOK

, Circuit Judge

ILANA DIAMOND ROVNER

, Circuit Judge

No. 1 8

- 3 179

TOMECA DENWIDDIE

, Plaintiff

- Appellant

,

v

.

STEPHEN J. MU E LLER , et al.

, Defendant s

- Appellee s

. Appeal from the United States District

Court for the Eastern District of Wisconsin

.

No. 1 8

- CV

- 601

- JPS

J. P. Stadtmueller

, Judge

.

O R D E R

P olice officers searched Tomeca Denwiddie ’s home because they mistakenly thought that the target of the ir search

— David Montgomery , Denwiddie’s former companion

— lived there. She sued the officers under 42 U.S.C. § 1983 for searching her home without probable cause and unreasonably destroying and confiscating her
property in violation of the Fourth Amendment. The district court granted the officers’

* We have agreed to decide this case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C)

. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 1 8

- 3 179 Page 2

motion to dismiss based on qualified immunity. B ecause the officers did not establish that qualified immunity applies based on the facts as Denwiddie pleaded them

, we vacate the judgment and remand for further proceedings

. In her complaint, Denwidd i e alleged that the defendants

— City of Racine police

officers

— “raided” her home based on faulty information

, kicked in and damaged her
door, and destroyed and confiscated her “ property. ” (Her complaint did not specify

what type of property was taken). The officers moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that Denwiddie failed to state a c laim

for a Fourth Amendment violation and that

, even if she had , they were protected by qualified immunity. Denwiddie countered that the officers had ignored fact s showing

that the “David Montgomery ” who resided in her home was her young son and that they therefore lacked probable cause to conduct the search

. Further , she argued,

because t he warrant did not specify the person or things to be searched , it was impossible for the raiding officers to know who m or what they were supposed to be looking for. She r eiterated that the officers needlessly destroyed her “ property

, ” and explained that they had indefinitely taken some of her “legally purchased and possessed items ” that “did not prove evidence of crime” nor had been used in the

commission of a crime

. (She did not specify whether the seized property would have

been of the kind to fall outside the scope of the search warrant). Albeit briefly, she

discussed the officers’ qualified immunity defense and cited cases to support her argument that immunity did not apply.

The district court granted the officers’ motion to dismiss , deciding that the y were entitled to qualified immunity because, although Denwiddie had alleged a Fourth
Amendment violation, she had “no t carried her burden to rebut” their defense that they had not violated any clearly established law. Denwiddie appeals.

Denwiddie argues that the district court erred in dismissing her claim based on qualified immunity. At the outset

, we reject the appell ees’ suggestion that Denwiddie

waived this issue because , they say, she “makes no legal argument and cites no relevant case law.” Denwiddie’s brief specifically addresses qualified immunity and refers to generally relevant authority. On appeal, we “constru e pro se filings liberally, and will address any cogent arguments we are able to discern in a pro se appellate brief. ” Parker
v. Four Seasons Hotels, Ltd ., 845 F.3d 807, 811 (7th Cir. 2017)

. We also do not accept the appellees’ contention that Denwiddie has waived other argument s , namely, that the

search warrant was overbroad and that the officers seized her property without compensation

. The appellees fault Denwiddie for not explicitly mention ing the sufficiency of the warrant or referenc ing the Fifth Am endment. But Denwiddie was notNo. 1 8

- 3 179 Page 3

required to plead legal theories

, Alioto v. Town of Lisbon , 651 F.3d 715, 721 ( 7th Cir. 2011)

, so her allegations that the officers sought a warrant based on an “assumption

, ”

executed a n o v erbroad warrant, and denied her acce ss to her property sufficiently preserved her arguments on appeal, see King v. Kramer , 763 F.3d 635, 642 ( 7th Cir. 2014).

We review de novo the granting of a Rule 12(b)(6) motion based on qualified immunity

. Reed v. Palmer , 906 F.3d 540, 546 ( 7th Cir. 2018). In determining whether the defense applies, we look to (1) whether the defendants violated a constitutional right, and (2) whether the constitutional right was clearly established

. Pearson v. Callahan

, 555 U.S. 223, 232 (2009) ; Armstrong v. Da ily , 786 F.3d 529, 537 ( 7th Cir. 2015)

. First, Denwiddie stated a claim that the officers violated her constitutional rights

. 1 We consider both her complaint and the additional allegations, consistent with the complaint, that she raised in response to the motion to dismiss. Smith v. Dart , 803 F.3d 304, 311 ( 7th Cir. 2015). Denwiddie allege d that the officers ignored evidence that Montgomery did not reside in her home and therefore obtain ed a warrant based on

false or omitted information

. S ee United States v. Mykytiuk , 402 F.3d 773, 776

– 77 ( 7th Cir. 2005)

. She further alleged that the warrant was over ly broad because it did not describe the person or things to be seized, nor did it explain what evidence the officers were supposed to search for. S ee Massachusetts v. Sheppard , 468 U.S. 981, 988 n.5 (1984)

. Denwiddie also asserted that the officers unreasonably destroyed her property when executing the search , whether it was lawful or not

. See United States v. Ramirez , 523 U.S. 65, 71 (1998) (“E xcessiv e or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression. ”)

. And

, she explained , the officers permanently confiscated some of her lawfully possessed property , which they could not have reasonably believed to be within the scope of the warrant

. See Pepper v. Village of

Oak Park , 430 F.3d 805, 809 ( 7th Cir. 2005). Given Denwiddie’s burden simply to state a plaus ible grievance “that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Archer v. Chisholm , 870 F.3d 603, 612 (7th Cir. 2017) (citation omitted) , her complaint passes muster

— though we do not comment

on whether it has merit

.

1 On appeal

, the a ppellees have waived any argument that Denwiddie failed to state a claim. In a footnote, they state that they “disagree” with the district court’s analysis, but they do not develop any argument. Instead, they incorporate “the reasons stated in [their] moti on to dismiss.” Incorporation by reference is not permitted in an appellate brief

. Spitz v. Proven Winners N. Am., LLC , 759 F.3d 724, 731 (7th Cir. 2014).No. 1 8

- 3 179 Page 4

The district court erred in determining that no clearly established law was

violated because Denwiddie “ had not carried her burden to rebut ” the officers’ qualified immunity defense

. There is no duty to plead around a qualified im munity

defense. Gomez v. Toledo , 446 U.S. 635, 640 (1980) (“ We see no basis for imposing on the plaintiff an obligation to anticipate such a defense by stating in his complaint that the

defendant acted in bad faith. ”). And “ [b] ecause a qualified immunity d efense so closely depends on the facts of the case, a complaint is generally not dismissed under Rule 12(b)(6) on qualified immunity grounds. ” Reed , 906 F.3d at 548 (citation omitted)

. W hen qualified immunity is raised in a motion to dismiss, “ it is the defendant’s conduct as alleged in the complaint that is scrutinized for ‘ objective legal reasonableness. ’” Id. at 549 (quoting Behrens v. Pelletier , 516 U.S. 299, 309 (1996) )

. We take care to follow the Supreme Court’s admonition not to define th e constitutional rights in question at too high a level of generality. See Kisela v. Hughes , 138 S. Ct. 1148, 1152

– 53 (2018) ; White v. Pauly , 137 S. Ct. 548, 552 (2017) . The rights must be described with adequate specificity,

but there need not be a case d irectly on point so long as existing precedent is sufficiently analogous as to place the officers on notice that their conduct was unlawful. Id.

It was clearly established in October 2014 that the search and seizure that

Denwiddie describe d in her complaint and elaborate d on in her response to the motion

to dismiss were unlawful

. I gnoring key facts when obtaining a search warrant

, executing a n overly broad warrant, destroying the homeowner’s property, and permanently seizing private, legal p roperty

, are objectively unreasonable

. See Sheppard

, 468 U.S. at 988 n.5 (“ The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment

is unconstitutional.” ); Wh itlock v. Brown , 596 F.3d 406, 410

– 11 ( 7th Cir. 201 0 ) (explaining

that police officer violates Fourth Amendment if he recklessly withholds material information from probable

- cause affidavit ); Daniels v. Southfort , 6 F.3d 482, 486 ( 7th Cir. 1993) (stating that plaintiff could file complaint against officers for unreasonably entering his apartment, t earing down his bathroom ceiling, and breaking his telephones

and cable box in violation of Fourth Amendment)

. It is possible that none of these things happened, but that is a question of proof, which comes later.

Because we are remanding the case, we note that Denwiddie was twice denied leave to amend her complaint because, although she explained that she wished to allege

additional claims against more defendants , she failed to submit a proposed amended complaint with her motions

. A district court may deny a motion for leave to amend for that reason, but we have explained that if the substance of the proposed changes is clear, a proposed amended complai nt is not strictly required. See Parker v. Scheck Mech. Corp ., 772 F.3d 502, 506 ( 7 th Cir. 2014). In this case, Denwiddie first moved to amendNo. 1 8

- 3 179 Page 5

before the complaint was served. Leave of court was not required, see F ED

. R

. C IV

. P

. 15(a), yet the district court denied the motion. Denwiddie then filed a second motion just after service was documented; she again sought to add more facts about the search and clarify the relief that she sought , but again she did not submit a proposed am ended complaint for pre

- approval . It seems that Denwiddie did not understand what the district court was asking of her. O n remand, Denwiddie should be permitted to file an amended complaint , if she chooses, without making another request

. Finally, a word about the appellees’ brief. By prior order

, we noted their failure to comply with Circuit Rule 28(b) and ordered them to file an amended jurisdictional

statement. The ir amended statement still fails to comply with Rule 28(b) , even though

we instructed tha t they “state explicitly ” whether Denwiddie’s statement was complete and correct. This is not a mindless formality, as we explained while exhorting practitioners to improve in respect to jurisdictional statements:

The job of the appellee is to review the a ppellant ’ s jurisdictional statement to see if it is both complete and correct. These terms are not synonyms. A statement might be complete in the sense of covering all required topics, yet contain inaccuracies. Alternatively, everything furnished might be correct, but the statement might be missing something critical, such as the citizenship of a party, the particular statute at issue, or the dates on which

the court ’ s jurisdiction depends. If the appellant ’ s statement is not complete, or not correct, the a ppellee must file a “complete jurisdictional summary.” It is not enough simply to correct the misstatement or omission and “accept” the balance of the appellant ’ s statement.

Baez

- Sanchez v. Sessions , 862 F.3d 638, 641 (7th Cir. 2017) (Wood, C.J., in chambe rs)

. Given that we identified the defect in the appellees’ jurisdictional statement, their

failure to correct it is puzzling

. We REVERSE the dismissal of Denwiddie’s complaint and REMAND for further proceedings.