Dix v. Edelman Fin. Servs., LLC

• Decision Date: 19 October 2020
• Docket Number: No. 18-2970,18-2970
• Citation: 978 F.3d 507
• Parties: Gerald DIX, Plaintiff-Appellant, v. EDELMAN FINANCIAL SERVICES, LLC, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

978 F.3d 507

Gerald DIX, Plaintiff-Appellant,

v.EDELMAN FINANCIAL SERVICES, LLC,^* et al., Defendants-Appellees.

No. 18-2970

United States Court of Appeals, Seventh Circuit.

Argued September 17, 2020

Decided October 19, 2020

Rehearing and Rehearing En Banc Denied November 17, 2020

Gerald Dix, Lisle, IL, Pro. Se.

Ilana Hope Eisenstein, Ben Fabens-Lassen, Attorneys, DLA Piper US LLP, Philadelphia, PA, Terry Weiss, Attorney, DLA Piper US LLP, Atlanta, GA, for Defendant-Appellee Edelman Financial Services, LLC.

Thomas F. Asch, Attorney, Law Office of Thomas F. Asch, Chicago, IL, for Defendant-Appellee Theresa Miller.

Lori A. Vanderlaan, Allie Burnet, Attorneys, Best, Vanderlaan & Harrington, Chicago, IL, for Defendant-Appellee Village of Lisle, Illinois.

Elizabeth M. Bartolucci, Paige Canepari, Kevin M. O'Hagan, Attorneys, O'Hagan Meyer, LLC, Chicago, IL, for Defendant-Appellee MJ Suburban, Inc., doing business as RE/MAX Suburban.

Matthew Heimlich, James H. Knippen, II, Attorneys, Walsh Knippen & Pollock, Chartered, Wheaton, IL, for Defendant-Appellee Vetaliy Lord, Officer, individually, and in his official capacity as City of Wheaton, Police Officer.

Daniel Scott Harawa, Attorney, Washington University School of Law, Interdisciplinary Enviromental Clinic, St. Louis, MO, for Amicus Curiae Daniel Scott Harawa.

Before Kanne and Hamilton, Circuit Judges.^**

Per Curiam.

Gerald Dix alleges that he was unlawfully evicted. But unlike most wrongful-eviction plaintiffs, Dix filed a sprawling pro se complaint in federal court asserting nineteen claims against almost as many defendants. The claims included a hodgepodge of state and federal causes of action. The defendants included Dix's alleged romantic-interest-turned-landlady Theresa Miller, Miller's real estate broker and financial advisor, a handful of police officers, two municipalities, the local car-towing company, and a few John and Jane Does for good measure.

The experienced district judge dismissed Dix's complaint for failure to state a claim. On appeal, we have focused on just one cause of action—Dix's Fourth Amendment claim against a subset of the defendants—because the others are wholly frivolous. We conclude that Dix's allegations as to that claim, like the rest, do not state a claim for relief, so we affirm the district court.

I. BACKGROUND

These facts are drawn from Dix's amended complaint and—with notable exceptions explained in this opinion—are assumed to be true for purposes of this appeal. Gomez v. Randle , 680 F.3d 859, 861 (7th Cir. 2012). We have weeded out the bulk of Dix's allegations and concentrate only on those pertinent to his Fourth Amendment claim.

Gerald Dix lived with Theresa Miller in her home in Lisle, Illinois, for nearly six years. Their relationship had once been romantic, but somewhere along the way it morphed into what Dix describes as a platonic "landlord-tenant" arrangement, albeit without a term or payment of rent. Dix would share living expenses with Miller and perform household chores. For her part, Miller would provide Dix with living space in her basement. But she also did all the things that no good landlady would do—"badger and harass" Dix for more money; force him to make repairs and do onerous tasks, such as serving her meals in bed; rummage through his mail and possessions; use his credit cards; clutter up every corner of the house; and keep the home in a "barely habitable" condition.

In 2017, Miller decided to sell her house and was advised by her realtor, Cheryl Shurtz, to "stage" it for prospective buyers. Miller told Dix to move out so she could prepare the house to be staged. He refused, so Miller called the police. Four or five officers responded and told Miller that she could not evict Dix without an order of the court. Undeterred, she called the police again the next day. This time, Officers Rob Sommer and Sean McKay arrived.

Officers Sommer and McKay allegedly knew that there had been no domestic disturbance and that Miller had been told she couldn't remove Dix from her house without a court order. But they agreed to help Miller evict Dix anyway. The officers prevented Dix from entering the house while Miller and an unknown associate ("a lazy elderly woman") hauled Dix's things outside and deposited them on the driveway. Dix protested, suspecting that Miller was stealing or destroying his property. And as he watched Miller and her helper carelessly handling his possessions, Dix started hurling insults and called Miller's associate "stupid." Officer Sommer warned Dix not to call anyone "stupid" (or "a dingbat, ding-a-ling, idiot or ‘stupid b––’ ") and threatened to arrest him for disorderly conduct. Dix held his tongue, but not before asserting his right to call anybody "any proper or slang term that he deemed necessary."

Eventually, and in part because Miller and her "lazy" associate couldn't finish the job themselves, Dix relented and agreed to vacate the house. He left to get a moving van, and when he returned, the officers allowed him into the home to retrieve his property but physically refused him access to certain rooms. After Dix gathered his things, Officer Sommer ordered him to hand over his keys to the house. Dix complied, and the officers told Dix not to return except to fetch his Dodge truck that still sat in the driveway.

In short order, Dix filed his initial complaint, pro se , in federal court. He asserted twelve causes of action against nine defendants. The district court struck the pleading as "replete with redundant, impertinent, and scandalous allegations." The court permitted Dix to amend his complaint but warned that "frivolity may result in sanctions."

Dix took up the offer to amend his complaint—but instead of improving it, he added seven causes of action, five defendants, and sixty-nine paragraphs of allegations. Among his nineteen claims was a federal cause of action under 42 U.S.C. § 1983 against Miller, Shurtz, and Officers Sommer and McKay for violating, and conspiring to violate, Dix's Fourth Amendment rights. He sought not less than $1,095,000 in compensatory and punitive damages, plus costs, attorney fees, and preliminary and permanent injunctive relief.

The district court dismissed all of Dix's claims with prejudice. Among other things, the court concluded that Dix did not adequately allege a Fourth Amendment violation because he was free to leave at any time and a potentially unlawful eviction under state law does not implicate the Fourth Amendment.

Dix appealed, again acting pro se . After reviewing Dix's opening brief, we decided that he would benefit from appointed counsel on appeal. Dix refused counsel, so we appointed an amicus curiae instead. We instructed the amicus to focus on the only one of Dix's nineteen claims that we felt was not completely frivolous—the Fourth Amendment claim.¹

II. ANALYSIS

"We review a 12(b)(6) dismissal de novo and construe all allegations and any reasonable inferences in the light most favorable to the plaintiff. And while a complaint does not need ‘detailed factual allegations’ to survive a 12(b)(6) motion to dismiss, it must allege sufficient facts ‘to state a claim to relief that is plausible on its face.’ " League of Women Voters of Chicago v. City of Chicago , 757 F.3d 722, 724 (7th Cir. 2014) (citation omitted) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ) (citing Killingsworth v. HSBC Bank Nev., N.A. , 507 F.3d 614, 618 (7th Cir. 2007) ). Although "we accept the well-pleaded facts in the complaint as true, legal conclusions and conclusory allegations ... are not entitled to this presumption of truth." McCauley v. City of Chicago , 671 F.3d 611, 616 (7th Cir. 2011) (citing Ashcroft v. Iqbal , 556 U.S. 662, 681, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). And "we may affirm a dismissal on any ground supported by the record." Kowalski v. Boliker , 893 F.3d 987, 994 (7th Cir. 2018) (citing Sykes v. Cook Cnty. Cir. Ct. Prob. Div. , 837 F.3d 736, 740 (7th Cir. 2016) ; Giffin v. Summerlin , 78 F.3d 1227, 1230 (7th Cir. 1995) ).

The Fourth Amendment states, in pertinent part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches or seizures, shall not be violated." U.S. Const., amend. IX.

Dix contends on appeal that the district court should not have dismissed his Fourth Amendment claim brought under 42 U.S.C. § 1983 because (1) he alleged that his removal from Miller's home was a Fourth Amendment seizure; (2) he alleged that that seizure was unreasonable; (3) he alleged a conspiracy between the officers and Miller to violate his Fourth Amendment rights; and (4) the officers are not entitled to qualified immunity. We take these in turn.

A. Dix Did Not Allege a Fourth Amendment Seizure.

"A ‘seizure’ of property occurs when there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ; accord Segura v. United States , 468 U.S. 796, 806, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) ("A seizure affects only the person's possessory interests; a search affects a person's privacy interests."); United States v. Burgard , 675 F.3d 1029, 1033 (7th Cir. 2012) ("[T]he critical question relates to any possessory interest in the seized object, not to privacy or liberty interests."). So the first issue—whether Dix alleged that he suffered a "seizure" within the meaning of the Fourth Amendment—turns on whether he alleged facts sufficient to support the inference that he had some possessory interest in Miller's home.²

Dix argues that he adequately alleged a possessory interest in Miller's home because he refers to himself as Miller's "tenant" and alleges that they "had an oral contract for their landlord-tenant relationship." If that were true, then Dix may have alleged a protected interest in the property, and the officers may have infringed on his right ...