975 F.2d 366 (7th Cir. 1992), 91-2443, Scott v. O'Grady

Docket Nº:91-2443.
Citation:975 F.2d 366
Party Name:William SCOTT and Rosemary Scott, Plaintiffs-Appellants, v. James E. O'GRADY, Sheriff of Cook County, and Kelvin Branch, Deputy Sheriff of Cook County, Defendants-Appellees.
Case Date:September 16, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 366

975 F.2d 366 (7th Cir. 1992)

William SCOTT and Rosemary Scott, Plaintiffs-Appellants,

v.

James E. O'GRADY, Sheriff of Cook County, and Kelvin Branch,

Deputy Sheriff of Cook County, Defendants-Appellees.

No. 91-2443.

United States Court of Appeals, Seventh Circuit

September 16, 1992

Argued Feb. 21, 1992.

Rehearing and Rehearing En Banc

Denied Jan. 5, 1993.

Page 367

Henry Rose and Lewis Check (argued), Loyola University Community Law Center, Chicago, Ill., for plaintiffs-appellants.

Jack O'Malley, State's Atty. of Cook County, Douglas B. Swill, Asst. State Atty. (argued), Office of the State's Atty. of Cook County, Chicago, Ill., for defendants-appellees.

Before POSNER and MANION, Circuit Judges, and VAN SICKLE, Senior District Judge. [*]

MANION, Circuit Judge.

William and Rosemary Scott rented two apartments in a building which was the subject of a foreclosure action and a judicial sale. The Commerce Mortgage Corporation bought the property at the judicial sale and, pursuant to the Illinois Mortgage Foreclosure Law, received a Writ of Assistance from the Circuit Court of Cook County directing the Cook County Sheriff to assist Commerce in obtaining possession of the property. Pursuant to this writ, Cook County Deputy Sheriff Kelvin Branch forcibly evicted the Scotts--throwing their belongings into the street. The Scotts filed this section 1983 action against Kelvin Branch and James E. O'Grady, the Sheriff of Cook County, in their official capacities. The district court dismissed the suit as barred by the Eleventh Amendment, Scott v. O'Grady, 760 F.Supp. 1288, 1292-93 (N.D.Ill.1991), and the Scotts appeal. We affirm.

Page 368

I.

We review a grant of a motion to dismiss de novo, accepting as true all well-pleaded factual allegations and drawing inferences in favor of the plaintiff. Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.1991). "However, we are not obliged to ignore any facts set forth in the complaint that undermine the plaintiff's claim or to assign any weight to unsupported conclusions of law." R.J.R. Services, Inc. v. Aetna Casualty and Surety Co., 895 F.2d 279, 281 (7th Cir.1989). As stated in the complaint, the facts are as follows:

On October 31, 1987, William Scott entered into a written, two-year lease with Larry Holder for the first floor and basement apartments in a building Holder owned at 449 West 61st Street, Chicago, Illinois; he paid Holder the first month's rent and a security deposit. Unbeknownst to the Scotts, the building was then the subject of a foreclosure action. In February 1986, twenty months earlier, the Commerce Mortgage Corporation had filed a mortgage foreclosure action against Holder. On November 10, 1987, the Circuit Court of Cook County entered a judgment for foreclosure in favor of Commerce and authorized judicial sale of the property. Commerce purchased the property at a sheriff's sale in January 1988, and the sale was approved by the Circuit Court. Meanwhile, the Scotts moved into the apartments and continued to pay monthly rent to Holder.

In July 1988, Commerce received a sheriff's deed to the property. On August 23, 1988, Commerce moved for and received from the Circuit Court of Cook County a "Writ of Assistance." The writ, issued pursuant to the Illinois Mortgage Foreclosure Law, Ill.Rev.Stat. ch. 110, § 15-101 et seq., directed the Sheriff of Cook County to:

[a]ccompany the plaintiff to the property located at 449 West 61st Street, Chicago, Illinois, 60621, and cause each and every person found in and upon said premises to be removed therefrom, together with each and every item of personal property belonging to said persons, and to use any and all such force as may be necessary to cause possession of the premises to be surrendered to the plaintiff and to insure that the plaintiff is able to take possession thereof and securing possession to the plaintiff.

The complaint alleges that Commerce knew, or should have known, that the Scotts were tenants in possession of the property. Nonetheless, Commerce did not name the Scotts in its motion for the writ, did not send them notice of the motion, and did not inform the Circuit Court that the Scotts were living at the property. The Scotts were not named in the Writ of Assistance and were never given a copy (or any other written notice) of the writ.

Pursuant to the Writ of Assistance, at approximately 8:00 a.m. on October 11, 1988, Cook County Deputy Sheriff Kelvin Branch and other employees of the Cook County Sheriff's office accompanied agents of Commerce Mortgage to 449 West 61st Street. When they arrived, William Scott informed Deputy Sheriff Branch that he had not been served with any written notice of a court proceeding affecting his tenancy. Commerce's agents then told Branch to immediately and forcibly evict the Scotts, and Branch did--throwing the Scotts' belongings into the street. As a result, many of the Scotts' personal belongings were damaged, destroyed or lost.

On October 4, 1990, the Scotts filed this section 1983 action against Branch and James E. O'Grady, the Sheriff of Cook County, in their official capacities, claiming that their participation in the forcible eviction deprived the Scotts of their property without due process of law in violation of the Fourteenth Amendment. 1 The complaint alleges that Sheriff O'Grady "has a policy and practice of evicting tenants pursuant to Writs of Assistance" and that

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"[s]aid policy and practice allowed deputy sheriffs of Cook County to evict a tenant in possession who was not named on the Writ of Assistance solely on the oral representation of the party or party's agent seeking to enforce the Writ that some form of advance notice of eviction had been given to the tenant in possession." The complaint asks for compensatory damages, punitive damages and an award of attorney's fees pursuant to 42...

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