Kernats v. O'Sullivan

• Decision Date: 16 September 1994
• Docket Number: No. 93-3086,93-3086
• Parties: Cynthia KERNATS, Plaintiff-Appellant, v. Thomas O'SULLIVAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1171

35 F.3d 1171

Cynthia KERNATS, Plaintiff-Appellant, v. Thomas O'SULLIVAN, et al., Defendants-Appellees.

No. 93-3086.

United States Court of Appeals, Seventh Circuit.

Argued April 7, 1994.

Decided Sept. 16, 1994.

Eugene Christopher Edwards (argued), Cook County Legal Assistance Foundation, Harvey, IL, for plaintiff-appellant.

Jennifer A. Pritz, Thomas G. DiCianni (argued), Robert K. Bush, Ancel, Glink, Diamond & Cope, Chicago, IL, for defendants-appellees.

Before FLAUM and ROVNER, Circuit Judges, and CRABB, Chief District Judge. ^*

FLAUM, Circuit Judge.

Cynthia Kernats (and members of her family) ¹ filed a five-count complaint under 42 U.S.C. Sec. 1983 against her former landlord, Carl Uthe, and various members of the Village of Tinley Park Police Department seeking damages and declaratory relief ² for alleged violations of their rights under the Fourth and Fourteenth Amendments. Specifically, the Kernats alleged that the defendants' actions constituted an unreasonable seizure of persons, an unreasonable seizure of property, an unreasonable search of property, and a violation of substantive due process. They also filed a pendent state claim against Uthe for wrongful eviction. The defendants filed motions to dismiss under Fed.R.Civ.P. 12(b)(6), which the district court granted. The court also dismissed the pendent state claim for lack of subject matter jurisdiction. On appeal, Cynthia Kernats contests the judgments in favor of two defendants, Officer Thomas O'Sullivan and Police Chief James J. Wade, on Counts I and IV of the complaint. We affirm.

I.

For purposes of reviewing a dismissal under Rule 12(b)(6), we take the factual allegations of the Kernats' complaint as true. Sometime in April, 1991, the Kernats entered into a one-year, written lease of a home in the Village of Tinley Park, Illinois. The Kernats occupied the premises on May 1, 1991, and all went well for the first three months. The Kernats, however, failed to make their August and September rent payments because of financial difficulties occasioned by medical problems that befell two of their children. On September 2, pursuant to 735 ILCS 5/9-209, the Kernats' landlord, Carl Uthe, served a landlord's ten-day notice demanding payment of back rent. After ten days had expired without payment, Uthe initiated forcible entry and detainer proceedings in Cook County Circuit Court, seeking the back rent and possession of the premises. The court entered an order granting Uthe the relief he sought, but stayed the possession order until November 30.

On Saturday, November 30, Uthe began making efforts to ensure that the Kernats vacated the premises, though not by posting a cash fee with the Cook County Sheriff that day, as he was required to do under Illinois law to obtain enforcement of the court's order. ³ Instead, Uthe took matters into his own hands by barging into the Kernats' home and rummaging through their personal belongings in an effort to determine whether they were prepared to leave by midnight. In conversations with the Kernats, Uthe made several threats to throw the family out if they failed to go of their own volition by 12:01 a.m.

Later that day, Cynthia Kernats telephoned the Tinley Park Police Department to find out if Uthe had the legal authority to forcibly remove the Kernats from their home. An unidentified individual (named in the complaint as "John Doe"), representing himself as the "senior officer in command", informed Cynthia that Uthe could evict them on his own authority, without the involvement of the Sheriff's Department.

Midnight came and went, and Carl Uthe was not far behind. At approximately 1:30 a.m. on Sunday, December 1, Uthe posted "No Trespassing" signs around the house and on the garage. Around 9:00 a.m., Andrew Kernats (Cynthia's husband), telephoned the police department to verify whether Uthe could use self-help to accomplish the eviction. An individual believed to be Officer Robert Silkas informed Andrew that self-help eviction was improper and that his landlord would have to place an eviction order with the Sheriff's Department. Andrew then was transferred to another person at the department who informed him that Uthe was presently at the station filing a criminal trespass complaint and asked him to call back later. Andrew Kernats subsequently telephoned the police department every hour until 3:00 p.m. at which time he spoke with Officer James Montgomery. Montgomery stated that Uthe could evict the Kernats himself and added that a Tinley Park police officer would be stopping by the Kernats' home to discuss the situation.

About 4:30 p.m., Officer Thomas O'Sullivan arrived at the Kernats' residence and was met at the door by Cynthia Kernats. O'Sullivan identified himself as the Watch Commander and entered the Kernats' house. Once inside the house, O'Sullivan looked down a hallway and commented that it did not appear to him that the Kernats were preparing to move. O'Sullivan next told Cynthia that it was "her own fault that they were in the present situation" and threatened to arrest everyone in the family if they did not vacate the premises that evening. In response, Cynthia informed O'Sullivan of her understanding that only the Cook County Sheriff could forcibly evict a tenant. O'Sullivan replied that he "did not care about the Cook County Sheriff" and pointing to his badge, stated in Wyatt Earp-like fashion that "this is Tinley Park and that's what town you are in, my town, and when in my town, you do as I tell you ... therefore everyone better be out before I return this evening."

O'Sullivan then departed and Uthe returned to the premises shortly thereafter. Spurred by O'Sullivan's threat, the Kernats family hurriedly attempted to remove as many of their personal belongings as possible, though some of their property was destroyed in the process. Uthe monitored the move, and Tinley Park police vehicles periodically drove by the residence throughout the evening. At 2:00 a.m. the move was complete, though the Kernats were unable to find a temporary residence where the whole family could stay together.

On December 11, Tinley Park Police Chief James J. Wade contacted Andrew Kernats and requested that he come to the police station to discuss an anonymous letter received by the Village that made allegations about certain police officers relating to the events of December 1 and threatened to inform the press of the incident. Later that day, Andrew and Cynthia Kernats met with Chief Wade and an unidentified special investigator. Wade showed the Kernats a copy of the unsigned letter, an incident report prepared by Officer O'Sullivan, and various other documents. The Kernats were not permitted to photocopy the letter, though they were allowed to examine it for as long as they desired. After the Kernats presented their account of what transpired on December 1, Wade offered his view that a possible "miscommunication between shifts" may have caused an officer to temporarily mislead the Kernats into thinking they had to vacate the premises or be arrested for criminal trespass. Wade also stated that "all Tinley Park Police Officers knew of the prohibition against evicting tenants." Finally, Wade told the Kernats that he would contact them again after reviewing the matter.

About a week later, Wade sent a letter to the Kernats thanking them for meeting with him and further explaining the department's resolution of the matter. Wade detailed the steps taken by the department to convince Uthe to contact the Sheriff's Department and attributed the apparent conflict between O'Sullivan and the Kernats to a communication breakdown and a misinterpretation of O'Sullivan's actions and intentions.

Unsatisfied by Wade's response, the Kernats sued Chief Wade and Officers Montgomery, Doe, and O'Sullivan under 42 U.S.C. Sec. 1983, seeking damages and declaratory relief for alleged violations of their rights under the Fourth and Fourteenth Amendments. Specifically, they alleged that the defendants' actions constituted an unreasonable seizure of persons (Count I), an unreasonable seizure of property (Count II), an unreasonable search of property (Count III), and a violation of substantive due process (Count IV). The complaint also named Carl Uthe as a defendant in the civil rights counts and in a pendent state law claim (Count V) for wrongful eviction. The various defendants filed motions to dismiss under Fed.R.Civ.P. 12(b)(6); which the district court granted. The court dismissed Counts I and II on the ground that neither the Kernats nor their property had been seized by any of the defendants. Count III was dismissed because the complaint failed to allege a search of the Kernats' residence. With respect to Count IV, the court ruled that the Kernats' substantive due process claim must fail because of their failure to satisfy the less stringent standard required for a Fourth Amendment violation. The court dismissed the civil rights claims against Uthe, a private citizen, because the complaint failed to allege a conspiracy between Uthe and the police officers. Because the Kernats failed to state a claim against any of the officers, the court also dismissed the claims against Chief Wade alleging a constitutional violation on the basis of his alleged ratification of the officers' conduct. Finally, having disposed of the federal claims, the court dismissed the pendent state claim for lack of subject matter jurisdiction. On appeal, Cynthia Kernats contests only the judgments in favor of two defendants, Officer Thomas O'Sullivan and Police Chief James J. Wade, on Counts I and IV of their complaint. For the reasons stated below, we affirm the judgment of the district court.

II.

"[B]efore a defendant may be held liable under [42 U.S.C. Sec. 1983], that defendant must first possess power by virtue of state law, then misuse that power in a way that violates federal constitutional rights." Christian v. Belcher, 888 F.2d 410, 414 (...