causal nexus between an official policy and her alleged injuries. Accordingly, she fails to state a
claim against the Sheriff in his official capacity for the constitutional violations alleged in Count
U.

A third problem with YHWHnewBN’s Complaint against these defendants is that the
Tort Immunity Act immunizes the Sheriff for liability for an alleged negligence during the
execution and enforcement of the Forcible Eviction Order. 745 ILCS 10/2-209; see Thompson v.
City of Chicago, 484 N.E.2d 1086, 1088 (Ili. 1985). Accordingly, I dismiss Counts I, II, I and
IV against the Sheriff and deputy sheriffs for negligently disposing of YHWHnewBN’s property.

Finally, Sheriff Sheahan, Sheriff Maltbia, and any other unknown deputies are immune
from a wrongful eviction action under the Tort Immunity Act. 745 ILCS 10/2-209. When the
law authorizes the Sheriff to make an entry upon the land, the Sheriff is entitled to judgment as a
matter of law. Owusu v. Grzyb, 749 F.Supp. 897, 907 (N.D. Ill. 1990). Accordingly, I dismiss

Counts I through IV against these defendants for wrongful eviction.

Cook County

YHWHnewBN contends that Cook County is liable for injuries allegedly caused by the
Sheriff and unknown evicting officers. A county’s respondeat superior liability extends only to
county employees and not to independent county officers, and although sheriffs are county
officers, they are not employees of Cook County for respondeat superior liability purposes. Moy
v. County of Cook, 640 N.E.2d 926, 930 (Ill. 1994). Rather, sheriffs are independently elected
officials not subject to the control of the county. Thompson v. Duke, 882 F.2d 1180, 1187 (7th

Cir. 1989). Accordingly, I dismiss Cook County.


For the reasons above, Cook County, Michael Sheahan, and Sheriff Maltbia’s Motion to
Dismiss is GRANTED; the City Defendants’ Joint Motion to Dismiss is GRANTED; Nosek and
Rafferty’s Motion to Dismiss is GRANTED; and Kahn and Kipnis & Kahn’s Motion to Dismiss
is GRANTED.

ENTER:

Ye CCl

Jarhes B. Zagel_ ) ”
Urlted States ‘District Judge

pate: 20 Nov 2003


that he had personal knowledge of the alleged misconduct of the police officers, her conclusory
allegations fail to provide a single operative fact; moreover, her allegations against Hillard are
grounded in the theory of respondeat superior which is untenable. Monell, 436 U.S. at 694.
Indeed, the claim against Hillard is actually brought against him in his official capacity as
Superintendent for failing to properly supervise the individual police defendants. Any such claim
brought against Hillard is duplicative because it is essentially brought against the City. The
claims against Hillard are not claims against the official individually but rather claims against his
office. Kentucky v. Graham, 473 U.S. 159, 165 (1985); see also Admiral Theater v. City of

Chicago, 832 F.Supp. 1195, 1200 (N.D. Ill. 1993). Therefore, I dismiss Hillard.

Nosek, Rafferty, and “other Unknown Parties, et al..”

YHWHnew BN has also named Chicago Police Department officers Jeffrey Nosek,
Michael Rafferty, and “other Unknown Parties” (presumably unknown officers) in her suit.
YHWHnew BN alleges that on April 12, 2002, Nosek made derogatory statements about her to
other officers and waited in a room where she was being held against her will. She further
alleges that on April 27, 2002, Rafferty failed to inventory and/or return her property and added
threats of intimidation. She additionally alleges that Nosek was the arresting officer on April 27,
2002, when her property was removed and not inventoried and that he gave conflicting accounts
of what happened to her property after her eviction. Finally, she alleges that Nosek wrote a
biased report and testified to a false statement at trial which contributed to a guilty verdict for

trespassing.



City of Chicago

Allegations involving the City defendants stem from incidents occurring between
September 30, 2001, to April 12, 2002. YHWHnewBN alleges that the City defendants violated
her First, Fourth, and Fourteenth Amendment rights when they allegedly failed to “serve and
protect the private property” belonging to her after she had been evicted. Here, YHWHnewBN
alleges no express policy of the City or widespread practice that constitutes a custom or usage,
nor does she suggest that the conduct complained of resulted from a determination made bya
final policy-making authority. Instead, she attempts to allege municipal liability under the futile
theory of respondeat superior, and thus fails to adequately allege municipal liability.’ Monell,

436 U.S. at 694. Therefore, I dismiss the City.

Terry Hillard

To sue Hillard in his individual capacity, YHWHnewBN must allege that he was
personally involved in the deprivation of her constitutional rights. Whitford v. Boglino, 63 F.3d
527, 530-31 (7th Cir. 1995). Personal involvement requires an overt act, or failure to act, “with a
deliberate or reckless disregard of plaintiff's constitutional rights.” Black v. Lane, 22 F.3d 1395,
1401 (7th Cir. 1994). Here, YHWHnewBN has essentially alleged that Hillard acted in his

official capacity as the Superintendent of the Chicago Police Department. Although she insists

' Even if I were to determine that YHWHnewBN had adequately alleged municipal
liability, the City has no duty to protect her property from the actions of third parties. DeShaney
v. Winnebago County Dept. of Social Srvcs., 812 F.2d 298, 301 (7th Cir. 1987). And to the
extent that she is attempting to bring a supplemental claim under state law, the City and its
employees are immune from such claims for damages pursuant to Tort Immunity Act. 745 ILCS
10-1-101 et. seg.


Fourth, to the extent that YHWHnewBN alleges any common law claims against Nosek
and Rafferty, they are time-barred as they were filed after the one-year statute of limitations had
run. 745 ILCS 10/8-101. Accordingly, I dismiss all common law claims in Count VI.

Finally, YHWHnewBN’s claim that Nosek testified to a false statement at trial which
contributed to a guilty verdict for trespassing does not set forth a cognizable claim. Briscoe v.
LaHue, 460 U.S. 325 (1983). Accordingly, I dismiss Count VI’s perjury claim against Nosek.
As a result of these dismissals, Rafferty and Nosek, along with all other individual Chicago

Police Department officers are dismissed.

Kahn and Kipnis & Kahn

Count IV of YHWHnewBN’s Complaint apparently alleges that Glen Kahn, in some
unspecified manner, deprived YHWHnewBN of certain of her constitutional rights. It further
alleges that he breached “his code of Judicial Conduct and induced his client to engage in
conduct that he knew violated due process of law” by keeping certain “information” from the
Court. The information referred to is not specified, the Court involved is not specified, the case
involved is not designated, and the alleged false documents are not identified. This Count is so
devoid of specific allegations of actionable conduct such that it fails to set forth facts sufficient to
support a claim for relief. Szumny, 246 F.3d at 1067. Furthermore, YHWHnewBN fails to assert
any claim against the law firm and fails to establish a claim of respondeat superior.

Accordingly, I dismiss Kahn and Kipnis and Kahn.



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; Sitting Judge if Other
vor Magistrate Judge James B. Zagel than Assigned Judge
CASE NUMBER 02 C 5371 DATE 11/20/2003
CASE YHWHNEWBN vs. COOK COUNTY, ET AL
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the natur
MOTION: of the motion being presented.]
DOCKET ENTRY:
(¢3) a Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motion due
Q) Oo Answer brief to motion due. . Reply to answer brief due.
(4) oO Ruling/Hearingon__—_—setfor__-—at__
(5) Lt Status hearing set for 1-8-2004 at 10:00 a.m.
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7?) im) Trial[set for/re-set for] on at
(8) oOo [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
COFRCP4(m) O Local Rule 41.1 CI FRCP41(a)(1) 0 FRCP41(a)(2).
ao if [Other docket entry] Plaintiff's motion for leave to file response to motions to dismiss.
instanter, is denied for the reasons stated in open court. Defendants motions (14-1, 18-1, 39-1, 56-1.
57-1, 59-1, 78-1 and 84-1) are granted. Defendants Cook of County, Michael Sheahan, Unknown
Evicting Employees, Sheriff Maltbia, Officer Noser, Officer Rafferty, Glenn Kahn, Kipnis & Khan
Ltd., Terry Hillard, and City of Chicago are dismissed.
(11) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. toot

» Document
: Number

Notices mailed by judge's staff. Nov 24 2003

Notified counset by telephone,

date docketed
a | Docketing to mail notices. { S :
Mail AO 450 form. oe Tene docketing deputy initials
Copy to judge/magistrate judge.
co 2 ~ date mailed notice
DW deputy’s ni
initials ar Tt
Date/time receivéd inTM ** - _
central Clerk’s Office reiting deputy initia



YHWHnewBN’s deprivation of property claim fails because intentional deprivations of
property caused by unauthorized acts of state or city officials do not give rise to § 1983 claims
for deprivation of property so long as state courts provide an adequate post-deprivation remedy.
Doherty v. City of Chicago, 75 F.3d 318, 324 (7th Cir. 1996). Because Illinois provides a tort
remedy for property deprivations of the sort alleged and because YHWHnewBN has not shown
that this remedy is not adequate, I dismiss her deprivation of property claim in Count VI against
Nosek and Rafferty. See Myers v. Klevenhagen, 97 F.3d 91, 94 (Sth Cir. 1996).

In addition, Nosek and Rafferty have no duty to protect her property from the actions of
third parties. DeShaney v. Winnebago County Dept. of Social Srvcs.,, 812 F.2d 298, 301 (7th
Cir. 1987). Furthermore — as discussed above — Nosek and Rafferty are immune from claims for
damages pursuant to the Tort Immunity Act. 745 ILCS 10/1-101 et. seq. Accordingly, I dismiss
YHWHnewBN’s claim in Count VI pertaining to Nosek and Rafferty’s failure to protect her
property.

Third, while Nosek and Rafferty’s alleged conduct and statements are reprehensible and
hurtful if true, they do not rise to the level of a constitutional violation. The Constitution does
not protect against general rudeness, verbal abuse and verbal harassment. Slagel v. Shell Oil
Refinery, 811 F.Supp. 378, 382 (C.D. Ill. 1993); Young v. Newtown, 82 C 4327, 1985 WL 2405,
at *2 (N.D. Ill. June 28, 1985). In short, “where the colloquy between police and the arrestee
does not rise to the level of physical harm, there is no violation of a constitutional right
actionable under Section 1983.” Simms v. Reiner, 419 F.Supp. 468, 474 (N.D. Ill. 1976).

Accordingly, I dismiss her claims in Count VI regarding threats and derogatory statements.



Therefore, the Sheriff and deputies qualify as an arm of the State of Illinois when the order was
executed, and this lawsuit therefore belongs in the State Court of Claims.

Another problem with YHWHnewBN’s Complaint is that it fails to state a claim against
the Sheriff in his official capacity. Government employees cannot be held liable in their official
capacities in a § 1983 action unless a plaintiff can show that he suffered injuries of a
constitutional magnitude as a result of an official custom, policy or practice. Monell v.
Department of Social Srves., 436 U.S. 658 (1977). Respondeat superior liability on
governmental entities does not exist. Id. at 694. There are three instances in which a
municipality can be said to have violated a person’s rights because of its policy: (1) an express
policy that, when enforced, causes a constitutional deprivation, (2) a widespread practice that,
although not authorized by written law or express municipal policy, is “so permanent and well
settled as to constitute a ‘custom or usage’ with the force of law,” or (3) an allegation that the
constitutional injury was caused by a person with “final policymaking authority.” Baxter by
Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir. 1994) (citations omitted). The
municipality’s policy must be the source of the violation, id., and there must be proximate cause
between the municipality’s policy and the plaintiff's injuries, Strauss v. City of Chicago, 760
F.2d 765, 767 (7th Cir. 1985). Here, YHWHnewBN neither alleges that an express policy by the
Sheriff caused any constitutional violation nor that a person with final decision-making authority
with the Sheriff's office caused her injury. Finally, by alleging nothing more than a single set of
circumstances particular to her, she fails to establish any “widespread practice” which could be
considered an unlawful policy. Her allegations do not sufficiently establish a pattern of

violations of any policy of the Sheriff's office. Moreover, she fails to plead facts establishing any


contains seven counts against various defendants, several of which who now move to dismiss the
claims against them under Federal Rule of Civil Procedure 12(b)(6).

Dismissal under Rule 12(b)(6) is proper where it appears beyond doubt that
‘YHWHnewBN can prove no set of facts in support of her claim for which relief may be granted.
Szumny v. American Gen'l Finance, Inc., 246 F.3d 1065, 1067 (7th Cir. 2001) (citations
omitted). At a minimum, her Complaint must contain facts sufficient to state a claim as a matter
of law. Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998). Even the liberal notice pleading
required by the federal rules requires the complaint to include the operative facts upon which
YHWHnewBN bases her claim. Rodgers v. Lincoln Towing Srve., Inc., 771 F.2d 194, 198 (7th

Cir. 1985).

Sheriff Michael Sheahan, Sheriff Maltbia, and “Unknown Evicting Employees”
In her Fourth Amended Complaint, YHWHnewBN alleges claims against Sheriff Michael

Sheahan, Sheriff Maltbia, and several “Unknown Evicting Employees” for constitutional
violations with resultant financial damages arising from the eviction. As an initial matter, Ido
not have jurisdiction over any claims regarding financial damages because the proper forum for
resolution of this issue is the Illinois Court of Claims. In Illinois, when a county official is
deemed to be acting under the arm of the state, the lawsuit is treated as an action against the state.
Scott v. O’Grady, 975 F.2d 366, 369 (7th Cir. 1992). The Sheriff and Sheriff's deputies of Cook
County can be defined as state agents when they act to enforce court orders issued by state courts.
Id. at 370. Here, the state court entered an Order of Possession pursuant to the Forcible Entry

and Detainer Law, 735 ILCS 5/9-101, and deputy sheriffs acted pursuant to this court order.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
EVANGEL YHWHnewBN,
Plaintiff,
v. No. 02 C 5371
Judge James B. Zagel
COUNTY OF COOK, STATE OF
ILLINOIS

Michael Sheahan, both individually and as
Sheriff and Unknown Evicting Employees,

al. 08
et DOCKET*3
Sheriff Maltbia
Zeola Thomas NOV 2 4 2003

Darryl Thomas
Merrill Moving Company

CITY OF CHICAGO, a Municipal
Corporation, Terry Hillard, both individually
and as Superintendent of Police, Sergeant
Rafferty, Officers Brown, Brash, Nosek and
other Unknown Parties, et al.,

Atty. Glenn Kahn, individually, and Kipnis
& Kahn, Ltd., John Chandler

Defendants.

MEMORANDUM OPINION AND ORDER

On September 24, 2001, unknown evicting employees of the Cook County Sheriff's
Department removed property from 1940 West 59th Street, Chicago, Illinois. This was done
pursuant to court order via a forcible eviction case entitled Zeola Thomas v. Deelois Simmons
Young, Case No. 00 M 1723704. Deelois Simmons Young is now known as EVANGEL

YHWHnhewBN, the plaintiff in this action. YHWHnewBN’s Fourth Amended Complaint

Up