Perry v. Sheahan

• Decision Date: 27 September 1999
• Docket Number: No. 99-1079,PLAINTIFF-APPELLAN,PLAINTIFF-APPELLANT,99-2741,Nos. 99-1079,DEFENDANTS-APPELLEES,V,DEFENDANT-APPELLEE,s. 99-1079,99-1079
• Parties: (7th Cir. 2000) RIXSON M. PERRY,MICHAEL F. SHEAHAN, SHERIFF OF COOK COUNTY, EUGENE SACCO, ASSISTANT CHIEF, COOK COUNTY SHERIFF'S OFFICE, ROBERT SHERMAN, SERGEANT, COOK COUNTY SHERIFF'S OFFICE, ET AL., RIXSON M. PERRY,, v. MICHAEL F. SHEAHAN, SHERIFF OF COOK COUNTY,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 309

222 F.3d 309 (7th Cir. 2000)

RIXSON M. PERRY, PLAINTIFF-APPELLANT,

V.

MICHAEL F. SHEAHAN, SHERIFF OF COOK COUNTY, EUGENE SACCO, ASSISTANT CHIEF, COOK COUNTY SHERIFF'S OFFICE, ROBERT SHERMAN, SERGEANT, COOK COUNTY SHERIFF'S OFFICE, ET AL., DEFENDANTS-APPELLEES.

RIXSON M. PERRY, PLAINTIFF-APPELLANT, v. MICHAEL F. SHEAHAN, SHERIFF OF COOK COUNTY, DEFENDANT-APPELLEE.

Nos. 99-1079, 99-2741

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

No. 99-1079 Argued September 27, 1999

No. 99-2741 Argued April 14, 2000

Decided July 21, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 2313 and No. 98 C 1164--James F. Holderman, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] William J. Lohmeier (argued), Arlington Heights, IL, for plaintiff-appellant.

Richard A. Devine, Robert F. Cleary (argued), Office of the State's Attorney of Cook County, Chicago, IL, for defendants-appellees.

Before Posner, Chief Judge, and Ripple, and Rovner, Circuit Judges.

Rovner, Circuit Judge.

Rixson M. Perry sued Michael F. Sheahan, the Sheriff of Cook County, and some of Sheahan's employees under 42 U.S.C. sec. 1983, alleging that they violated his constitutional rights in seizing firearms and other items from his apartment. The defendants filed a motion to dismiss arguing that Perry lacked standing to seek declaratory and injunctive relief, and that qualified immunity shielded them from any damages. The district court granted their motion, and Perry appeals.

On a motion to dismiss we accept all well-pleaded allegations in the complaint as true, construing ambiguities in favor of the plaintiff. Curtis v. Bembenek, 48 F.3d 281, 283 (7th Cir. 1995). According to the complaint, the seizure occurred during an aborted eviction. On February 23, 1998, two Cook County Sheriff deputies forcibly entered Rixson Perry's apartment for the purpose of executing an eviction order. Perry had never received notice of the action for possession, and contacted his attorney who sought an emergency stay of the eviction. While Perry awaited the stay, Sergeant Sherman and Deputy Sheriff Mak arrived from the Cook County Sheriff's Office. The stay was granted a couple of hours later. At that point, the first deputy sheriffs had been in the apartment for three hours, and Sherman and Mak had been there for ninety minutes. Perry and Sherman subsequently spoke with Assistant Chief Sacco by phone, and Sacco ordered that the eviction be halted. Sacco further stated, however, that the Sheriff's office had a policy of seizing any firearms found in the course of evictions and he directed Sherman and Mak to seize Perry's firearms pursuant to that procedure. Over Perry's objections, defendants Sherman and Mak then removed: "several firearms, most of which were in a disassembled non-functioning state, awaiting repair or restoration, a sizeable quantity of firearms parts, ammunition and accessories, several knives, most of which were small, folding pocket knives and some police equipment, including handcuffs and a baton, which were on a wall plaque commemorating Perry's early police service." Complaint at 23.

Approximately two months later, Perry had still not recovered his possessions from the Sheriff's office, although no one contests that they were lawfully owned by him. On April 15, 1998, he filed a complaint under 42 U.S.C. sec. 1983 against Sheahan in his official capacity and against Sacco, Sherman and Mak in their individual capacities (Perry I). He sought: (1) a declaration that the policy of seizing firearms during an eviction without any predeprivation process was a violation of due process; (2) an injunction prohibiting implementation of that seizure policy; (3) an order requiring Sheahan to return the property to Perry; and (4) damages against Sacco, Sherman, and Mak for their role in the seizure. After Perry filed a motion for summary judgment, the defendants agreed to return the confiscated property, and the court entered an order on June 29, 1998 requiring the return of the property by July 10, 1998. Perry recovered property pursuant to that order, but contends that the defendants still possess some seized property. The district court subsequently granted the defendants' motion to dismiss the remaining claims, holding that Perry lacked standing to seek declaratory and injunctive relief, and that qualified immunity prevented the imposition of damages against Sherman Sacco, and Mak. Perry appealed the court's ruling dismissing those claims.

While the appeal was pending in this court, Perry instituted yet another case in the district court against the defendants (Perry II), raising identical issues. Perry II differed from Perry I only in that it contained a claim for damages against Sheahan in his individual capacity, and it contained the additional factual allegations that Perry was a tenant in Cook County and therefore subject to eviction again. The district court dismissed this case as well, holding that the claims for damages were barred by the doctrine of res judicata, and that the complaint still failed to establish an injury-in-fact sufficient to confer standing for declaratory and injunctive relief. Because our resolution of Perry I disposes of Perry II, we will first address the Perry I appeal.

I.

A.

As Perry is aware from a prior case in this court, we review de novo an order dismissing a case for lack of standing. Perry v. Village of Arlington Heights, 186 F.3d 826, 827 (7th Cir. 1999). The standing requirement inheres in Article III of the Constitution, which requires that a party seeking to invoke the jurisdiction of the federal courts must present an "actual case or controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). The purpose of that requirement is to ensure that the plaintiffs have "'a personal stake in the outcome' in order to 'assure that concrete adverseness which sharpens the presentation of issues' necessary for the proper resolution of constitutional questions." Id. (citations omitted). To ensure that personal stake, a plaintiff seeking to invoke federal court jurisdiction must demonstrate: (1) an injury that is concrete, particularized, and actual or imminent rather than conjectural or hypothetical; (2) a causal connection between the injury and the challenged conduct, such that the injury may be fairly traceable to that conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Perry, 186 F.3d at 829; American Federation of Govt. Employees v. Cohen, 171 F.3d 460, 466 (7th Cir. 1999). Perry cannot meet that test here.

As the district court recognized, this case is analogous to that presented in City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In that case, Lyons sued the City of Los Angeles and certain of its police officers, alleging that the officers, without provocation, subjected him to a chokehold after stopping him for a traffic violation. He sought damages and an injunction barring the use of chokeholds except where a suspect threatens the use of deadly force. Although recognizing that Lyons had standing to seek damages, the Supreme Court held that he lacked standing for injunctive relief. The Court held that "'[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief... if unaccompanied by any continuing, present adverse effects.'" Id. at 102, quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974). Because Lyons could not show a realistic threat that he would be subjected to a chokehold in the future, he possessed standing only to seek damages for the past conduct. In other words, Lyons lacked a personal stake in the future application of the chokehold, because he could not demonstrate a realistic threat that he would be again subjected to a chokehold.

Perry's situation parallels that in Lyons because Perry has alleged only past injury, but cannot demonstrate a realistic threat that he would be the subject of another forcible eviction in Cook County that would result in the seizure of his property. In fact, Perry makes no argument in the appeal of Perry I that he faces that future threat. He argues instead that he has standing to seek prospective relief because defendant Sheahan still possesses some of his property that was seized during the eviction. Although poorly articulated, his argument appears be that his past exposure to illegal conduct establishes a present case or controversy because it is accompanied by continuing, present adverse effects, thus invoking the exception recognized in O'Shea and Lyons.

Even if we were to view the retention of some of his property as a continuing, present adverse effect, however, Perry is no closer to establishing standing because an injunction prohibiting future seizures in the course of evictions or a declaration that the policy itself is unconstitutional would do nothing to redress that ongoing injury. The equitable relief sought by Perry does not address the property currently held, but merely seeks a declaration that the policy is unconstitutional and a prohibition of future seizures under the eviction policy. In fact, Perry requested and received relief for the injury caused by the continued retention of his property in the form of an order from the district court requiring the return of his property. Only damages, not an injunction or a declaratory judgment relating to the future use of the policy, will provide further relief if the property is not returned. See Bryant v. Cheney, 924 F.2d 525, 529 (4th Cir. 1991) (injunctive powers of the federal courts are broad, but "Article III simply precludes their empty use to enjoin the conjectural or declare the fully repaired broken.") Thus, Perry cannot meet the third part of the standing analysis articulated above, which requires a likelihood that the...