O'Keefe v. Gist

• Decision Date: 17 August 2012
• Docket Number: No. 10–cv–3149.,10–cv–3149.
• Citation: 908 F.Supp.2d 946
• Parties: Patrick O'KEEFE, Plaintiff, v. Harold GIST, in his capacity as a police officer, and The City of Girard, Illinois, an Illinois municipal corporation, Defendants.
• Court: U.S. District Court — Central District of Illinois

908 F.Supp.2d 946

Patrick O'KEEFE, Plaintiff,

v.Harold GIST, in his capacity as a police officer, and The City of Girard, Illinois, an Illinois municipal corporation, Defendants.

No. 10–cv–3149.

United States District Court, C.D. Illinois.

Aug. 17, 2012.

Stephen F. Hedinger, Sorling Northrup, Springfield, IL, for Plaintiff.

Christine Giacomini McClimans, Schrempf Blaine Kelly Napp & Darr, Alton, IL, for Defendants.

OPINION

SUE E. MYERSCOUGH, District Judge:

This matter is before the Court on the Report and Recommendation entered by Magistrate Judge Byron G. Cudmore. See d/e 21. In the Report and Recommendation, Magistrate Judge Cudmore recommends allowing the Motion to Dismiss (d/e 9) filed by Defendants Harold Gist (“Gist”) and The City of Girard, Illinois (“Girard”). Plaintiff, Patrick O'Keefe (“O'Keefe”), timely filed an Objection to the Magistrate Judge's Report and Recommendation (“Objections”) (d/e 22). See28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). This Court reviews de novo any part of the Report and Recommendation to which a party has properly objected. See28 U.S.C. § 636(b)(1)(C). For the reasons set forth below, the Court overrules the Objections and adopts Magistrate Judge Cudmore's Report and Recommendation. Accordingly, Defendants' Motion to Dismiss (d/e 9) is GRANTED.

I. BACKGROUND

A. Plaintiff's Complaint

On June 24, 2010, Plaintiff filed a three-count Complaint (d/e 1) against Defendants. In Count I, Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, alleging that Defendants violated Plaintiff's due process rights when Defendant Harold Gist gave Plaintiff's dog, Boomer (“the dog”), to another person, David Hagan (“Hagan”), without a hearing and without Plaintiff's consent. Compl. ¶ 24. In Count II, Plaintiff seeks a declaratory judgment against Girard. Plaintiff asks this Court to declare that the Girard Municipal Code of Ordinances (“Ordinance”), as interpreted by Girard and its police officers, violates the Fourteenth Amendment of the United States Constitution and seeks an order prohibiting enforcement of the Ordinance. Compl. ¶ 33. In Count III, Plaintiff also alleges an Illinois common law claim for conversion against Defendant Gist. Compl. ¶ 37. The parties are familiar with the specific allegations of each count contained in Plaintiff's Complaint, and this information is fully set out in the “Statement of Facts” section of Magistrate Judge Cudmore's Report and Recommendation, adopted herein.

B. Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6)

On July 21, 2011, Defendants filed their Motion to Dismiss. In the Motion to Dismiss, Defendants contend that all three counts of the Complaint should be dismissed for failure to state a claim upon which relief may be granted. Specifically, Defendants argue that Plaintiff fails to adequately allege a due process violation (Count I) because Plaintiff received the process that was due through a post-deprivation hearing in the state court system, through which he retrieved the dog. See O'Keefe v. Hagan, Macoupin County Circuit Court Case No. 09 LM 130.

Additionally, Defendants argue that Count II should be dismissed because Plaintiff is not entitled to any declaratory relief. Defendants contend that because Plaintiff received ownership of the dog in a state court proceeding, there is no ongoing, actual controversy that has not been remedied. Defendants argue that Count III should be dismissed because Plaintiff fails to adequately state a claim for conversion against Defendant Gist. Finally, Defendants argue that Defendant Gist is entitled to qualified immunity and absolute immunity.

C. Magistrate Judge Cudmore's Report and Recommendation and Plaintiff's Objections Thereto

As stated, the Report and Recommendation recommends that Defendants' Motion to Dismiss be granted. Plaintiff filed Objections, in which Plaintiff disputes several of the findings in the Report and Recommendation. Plaintiff states the following objections: ¹

(1) Plaintiff disputes the finding that Count I of the Complaint fails to state a claim for deprivation of property without due process of law (Pl.'s Obj. at 2);

(2) Plaintiff disputes the finding that Defendant Gist's actions, as alleged in the Complaint, were unauthorized (Pl.'s Obj. at 2);

(3) Plaintiff disputes the finding that Plaintiff was required to allege in the Complaint that Plaintiff availed himself of post-deprivation remedies and that those remedies were not sufficient (Pl.'s Obj. at 2);

(4) Plaintiff asserts that the Report and Recommendation incorrectly states that Plaintiff believes Defendant Gist “correctly interpreted the Ordinance to authorize him to change ownership of the Dog” (Pl.'s Obj. at 3);

(5) Plaintiff objects to the Report and Recommendation to the extent that it “appears to assume that Gist's action of giving away Boomer to a third party was not a terminal event, resulting in a permanent deprivation of O'Keefe's property” (Pl.'s Obj. at 3);

(6) Plaintiff disputes the finding that Porter v. DiBlasio, 93 F.3d 301 (7th Cir.1996), is distinguishable from this case and objects to “the failure of the Report and Recommendation to analyze this case pursuant to the DiBlasio analysis” (Pl.'s Obj. at 4);

(7) Plaintiff objects to the statement that “[a] state actor cannot give notice to someone who is unknown” because Plaintiff believes the statement suggests that Defendant Gist was not required to attempt to provide notice to Plaintiff because the Dog did not have an identification tag when it was in Defendant Gist's custody (Pl.'s Obj. at 5);

(8) Plaintiff objects to the Report and Recommendation's analysis weighing the benefit of scanning stray animals for microchips against the fiscal and administrative burden on the public. Plaintiff states that the analysis “assumes, first, that a visual inspection for ownership indicia is all that is necessary prior to the immediate termination of an ownership interest, as occurred here” (Pl.'s Obj. at 6);

(9) Plaintiff disputes the finding that “[t]he fiscal and administrative burden of requiring all municipalities to scan every stray cat and dog for microchips would outweigh the burden imposed on pet owners either to put identification tags on the animals or to use post-deprivation procedures to recover lost pets” (Pl.'s Obj. at 6–7); (10) Plaintiff disputes the finding that a post-deprivation remedy was available and effective in this case;

(11) Plaintiff disputes the finding that Count II should be dismissed because no concrete controversy is alleged;

(12) Plaintiff disputes the finding that Count III should be dismissed for lack of subject matter jurisdiction if this Court dismisses Counts I and II.

In the Objections, Plaintiff asks this Court to reject the Report and Recommendation and grant Plaintiff leave to file an amended complaint to further allege his Fourteenth Amendment due process claim. Plaintiff also requests oral argument on his Objections and Motion to Dismiss.

II. ANALYSIS

Under Rule 12(b)(6), dismissal is proper where a complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To state a claim upon which relief can be granted, a complaint must provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). That statement must be sufficient to provide the defendant with “fair notice” of the claim and its basis. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929, 940 (2007). This means that (1) “the complaint must describe the claim in sufficient detail to give the defendant ‘fair notice of what the ... claim is and the grounds upon which it rests” and (2) its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a “speculative level.” EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007). While detailed factual allegations are not needed, a “formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965, 167 L.Ed.2d at 940. Conclusory allegations are “not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868, 885 (2009) (citing Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “In ruling on Rule 12(b)(6) motions, the court must treat all well-pleaded allegations as true and draw all inferences in favor of the non-moving party.” In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir.2009) (citing Tamayo, 526 F.3d at 1081).

As stated, Plaintiff disputes several specific findings of the Report and Recommendation. However, Plaintiff has only provided argument and supporting authority for the following four objections, all of which relate to Count I: (1) Plaintiff disputes the finding that Porter v. DiBlasio, 93 F.3d 301 (7th Cir.1996), is distinguishable from this case on the issue of whether Defendant Gist was required to scan the dog for a microchip before concluding that the dog's owner was unknown; (2) Plaintiff objects to the statement that “[a] state actor cannot give notice to someone who is unknown”; (3) Plaintiff asserts that the Report and Recommendation incorrectly assumes that visual inspection for indicia of ownership is all that is required before an official may terminate an ownership interest; and (4) Plaintiff disputes the finding that a post-deprivation remedy was available and effective in this case. The Court addresses each of these arguments below.

A. Plaintiff's Complaint Fails to State a Claim for Violation of Due Process (Count I)

In Count I, Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and alleges that Defendants violated Plaintiff's due process rights when Defendant Gist gave Plaintiff's dog to Hagan without a hearing and without Plaintiff's consent. All of Plaintiff's supported objections dispute the Report and Recommendation's conclusion that...