Olympian Group, LLC v. Blevins

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

OLYMPIAN GROUP LLC )

d/b/a/ ENCORE, et al., )

)

Plaintiffs, )

) No. 18-cv-04919

v. )

) Judge Andrea R. Wood

CITY OF MARKHAM, an Illinois )

municipal corporation, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Olympian Group LLC (“Olympian”), doing business as “Encore,” operates a

nightclub in Markham, Illinois. Olympian and two of its members, Plaintiffs Corey Bradford and

Michael Irvin, have sued the City of Markham (“Markham”), the Markham Liquor Control

Commission (“MLCC”), and eight individuals who have served as local officials or police officers

for Markham. The suit arises out of actions that Markham and some of its officials and police

officers allegedly took to harass Olympian, issue it citations in bad faith, and shut down its

nightclub. Plaintiffs’ Second Amended Complaint (“SAC”) contains eight claims arising under

federal law and four state-law tort claims. (Dkt. No. 46.) Defendant Roger Agpawa, individually

and in his capacity as Mayor and Local Liquor Control Commissioner (“LLCC”) of Markham, has

moved to dismiss all claims against him pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). (Dkt. No. 57.) The rest of the Defendants together have filed their own motion under

Rules 12(b)(1) and 12(b)(6) to dismiss the claims against them. (Dkt. No. 63.) For the reasons that

follow, both motions to dismiss are granted in part and denied in part.

BACKGROUND

For the purposes of Defendants’ motions to dismiss, the Court accepts as true the well-

pleaded facts in the Complaint and views them in the light most favorable to Plaintiffs. See

Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826–27 (7th Cir. 2015).

As alleged, Olympian is an Illinois limited liability company (“LLC”) based in Markham,

Illinois. (SAC ¶ 1, Dkt. No. 46.) Bradford and Irvin are both members of the LLC, and Bradford

also serves as a manager of the LLC. (Id. ¶¶ 2, 3.) Olympian’s business consists of running a

nightclub in Markham. (Id. ¶ 15.) Plaintiffs’ claims in this case concern actions that local officials

and police allegedly took to shut down that nightclub.

Plaintiffs name nine Defendants in their SAC. First among them is Markham. (Id. ¶ 4.) In

addition to Markham, Plaintiffs have sued eight people who have held positions in Markham’s

government or police department: Agpawa, who currently serves as Mayor and LLCC; David

Webb, Jr., the former Mayor and LLCC; Steve Miller, the Markham City Attorney; Clifton

Howard, Rondal Jones, and William Barron, all Markham aldermen; Mack Sanders, Markham’s

Chief of Police; and James Walker, a Markham police officer. (Id. ¶¶ 5–12.)

When Olympian opened in 2012, Markham issued it a liquor license that allowed it to

serve alcohol until 5:00 a.m. on Friday and Saturday nights and 4:00 a.m. all other nights. (Id.

¶¶ 16–17.) Olympian refers to this license as a “4am license.” (Id. ¶ 17.) At that time, Markham

ordinances required liquor licenses for establishments with a capacity of 200 persons or less to be

4:00 a.m. licenses. (Id. ¶ 18.) Markham issued Olympian a new 4:00 a.m. license every year from

2013 to 2016. (Id. ¶ 20.) Olympian received a 4:00 a.m. license again in 2017, despite some

changes to Markham’s liquor licensing laws. (Id. ¶¶ 21–22.)

Olympian alleges that Defendants “began their crusade to run Plaintiff out of business”

after Olympian renewed its liquor license in 2017. (Id. ¶ 23.) According to Plaintiffs, Defendants

were motivated to close down Olympian because it was competing with a nightclub and a strip

club owned by a local businessman who exercised influence in local politics. (Id. ¶¶ 24–28.)

Between January 21, 2013 and December 4, 2017, Markham police issued 37 citations to

Olympian for alleged violations of its licenses and local ordinances. (Id. ¶ 30.) Twenty-eight of

those citations were for selling liquor after hours. (Id. ¶ 31.) Yet Olympian alleges that it always

has complied with the terms of its liquor license. (Id.)

When Olympian attempted to review its business license that was set to expire on May 1,

2018, Markham and some combination of individual Defendants denied Olympian’s renewal

applications six times between April 12, 2018 and May 1, 2018. (Id. ¶ 33.) During that time,

Webb, Miller, Howard, Jones, Barron, Sanders, Walker, and Ernest Blevins (a former mayor of

Markham) “embarked on a series of actions calculated and intended to deprive the Plaintiffs of

their right to conduct business in an honest manner.” (Id. ¶ 38.)

It appears that this campaign in 2018 was allegedly connected to previous problems

Plaintiffs had with Markham. For example, Markham and some combination of individual

Defendants denied Olympian’s application to change the operating name of its club in 2016. (Id.

¶ 39.) Plaintiffs met with Sanders and Howard about it and, after the meeting, the rival

businessman mentioned above called Plaintiffs to tell them that Markham was not going to let

Olympian’s nightclub operate. (Id. ¶¶ 40–41.) Someone gave Plaintiffs an additional list of

requirements for opening their business. (Id. ¶ 42.) Plaintiffs say that they protested to the

Markham building commissioner, who told them that he had been instructed never to let

Olympian’s club open. (Id.) Subsequently, in 2017, Plaintiffs met with Webb and Howard, who

told them that Olympian was a “casualt[y] of war” and would not be permitted to operate, despite

its licenses. (Id. ¶ 43.) According to Plaintiffs, Miller controlled the issuance of business and

liquor licenses at that time. (Id. ¶ 44.)

Miller, Blevins, Howard, Jones, Barron, Sanders, and Walker allegedly started a new

campaign to drive Plaintiffs out of business in December 2017. (Id. ¶ 46.) Webb, Blevins, and

Howard directed Sanders and Walker to order Markham police to issue citations to Olympian

even if citations were not justified. (Id. ¶ 47.) The purpose of those citations was to give Markham

reason not to renew Olympian’s licenses. (Id.) On the afternoon of April 30, 2018, someone with

authority told Bradford that if Olympian did not pay $33,050 in certified funds by the close of

business to cover existing citations, Markham would close the nightclub. (Id. ¶ 48.) Plaintiffs paid

$33,050 to Markham on May 4, 2018. (Id. ¶ 50.) A few days later, Olympian applied for and paid

the fee for a 4:00 a.m. liquor license. (Id. ¶ 51.) Markham, however, granted Olympian a 2:00

a.m. liquor license, which Plaintiffs describe as “fraudulent.” (Id. ¶ 52.) Plaintiffs claim that a

local ordinance required Markham to issue Olympian a 4:00 a.m. license. (Id. ¶¶ 55–56.) Plaintiffs

claim that they have complied with the 2:00 a.m. license but Markham police have still continued

to issue “false and fraudulent” citations for selling liquor after hours and exceeding the nightclub’s

capacity. (Id. ¶ 57.) Ten of those after-hours citations were issued during hours in which

Olympian was licensed to sell alcohol. (Id. ¶ 59.)

Olympian requested but did not receive an opportunity to be heard on the status of its

license. (Id. ¶ 62.) Moreover, Walker and Sanders’s campaign against Olympian continued to

intensify from May 2018 forward. (Id. ¶ 63.) In June and July 2018, Walker and Sanders ordered

Markham police to enter the nightclub and prevent patrons from entering. (Id. ¶ 64.) One night,

Walker went to the nightclub at 10:30 p.m. and informed the manager that the business could not

open that night and that Irvin had to be present for it to open. (Id. ¶ 65.) Markham police officers

told Plaintiffs that unspecified “bosses” had ordered them to shut down Olympian. (Id. ¶ 66.) The

officers also told Plaintiffs that they knew their activities were simply harassment. (Id. ¶¶ 66, 104)

Plaintiffs never had a meaningful opportunity for review of Defendants’ conduct. (Id. ¶¶ 67–68.)1

Plaintiffs filed their original complaint in this case in July 2018. (Dkt. No. 1.) That was

followed by a First Amended Complaint (“FAC”) in September 2018. (Dkt. No. 19.) Defendants

moved to dismiss the FAC in November 2018. (Dkt. No. 24.) But events on the ground continued

to unfold even as the case proceeded in this Court.

On December 31, 2018, Olympian opened its club for business in compliance with its

licenses. (SAC ¶ 138.) Shortly before 2:00 a.m., a Markham police officer entered the club and

told Irvin to turn on the lights, get the customers to leave, and close the club. (Id. ¶ 139.) Irvin

complied. (Id.) Walker then entered the club and demanded that Irvin turn over the club’s business

license. (Id. ¶ 140.) Irvin did so, and the club shut down for business. (Id. ¶ 141.) No Defendant

provided any basis for revoking the business license. (Id. ¶ 142.) And there was no citation or

hearing date in relation to the revocation of Olympian’s business license. (Id. ¶¶ 144–45.)

Plaintiffs petitioned this Court for a temporary restraining order (“TRO”). (Id. ¶ 146; Dkt.

No. 36.) At the hearing, the City admitted that it did not want a “strip club” like Olympian’s club

in town. (SAC ¶¶ 149–50.) The Court concluded that a hearing on the TRO would be premature

because of a hearing already scheduled before the Mayor of Markham on January 8, 2019. (Id.

¶ 152; Dkt. No. 40.) On February 18, 2019, Agpawa fined Plaintiffs $500 and “permanently

restricted” their business license “without prejudice.” (Id.) Plaintiffs believe that this action was

based on the content of the entertainment at the club or the viewpoint of Olympian and its owners.

1 Plaintiffs number both the last two paragraphs of the facts and the first two paragraphs of Count I as

paragraphs 67 and 68. Here, the Court refers to the last two paragraphs of the facts section.

(Id. ¶ 158.) The restrictions on Olympian’s business license have caused Olympian to lose

substantial revenue. (Id. ¶ 159.)

After Markham placed restrictions on Olympian’s business license, Plaintiffs filed their

SAC in March 2019. (Dkt. No. 46.) Defendants filed their motions to dismiss in July 2019, which

asked the Court to dismiss the SAC in its entirety. (Dkt. Nos. 57, 63.) Plaintiffs’ SAC contains

twelve claims against the nine Defendants. There are eight federal-law claims and four state-law

claims. Counts I through IV assert claims under 42 U.S.C. § 1983 against all individual

Defendants. Those counts respectively concern procedural due process, equal protection, free

speech, and unreasonable searches and seizures. Count V asserts a claim against all individual

Defendants pursuant to 42 U.S.C. § 1985(3) for conspiracy to violate Plaintiffs’ right to equal

protection of the law. Counts VI through VII contain a Monell claim against Markham and a

request for declaratory and injunctive relief.2 Count VIII is a state-law conversion claim against

Markham and Webb. Count X (the SAC does not include a cause of action labeled as Count IX) is

a state-law claim for negligent interference with a business relationship against all individual

Defendants. Count XI consists of a state-law extortion claim against all individual Defendants.

Count XII asserts a state-law trespass to land claim against all individual Defendants. And Count

XIII is a § 1983 claim concerning free speech against Markham, Agpawa, and the MLCC (which

has not been served). Plaintiffs have clarified in their briefs that Count XIII asserts a claim against

Agpawa only in his official capacity. (Resp. in Opp’n to Mots. to Dismiss at 15 n.4 (“Opp’n”),

Dkt. No. 68.) For all claims, Plaintiffs seek damages, punitive damages, equitable relief, and pre-

and post-judgment interest. (SAC ¶¶ 67–160.)

2 A plaintiff cannot sue a municipality under § 1983 based on a theory of respondeat superior. See Monell

v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978). Instead, a plaintiff may only maintain a § 1983

suit against a municipality if the municipality maintained a policy, practice, or custom that caused the

violation of rights guaranteed by the Constitution or laws of the United States. See id.

In December 2019, after the motions to dismiss the SAC were fully briefed, Plaintiffs

again petitioned the Court for a TRO. (Dkt. No. 82.) They claimed that Markham had revoked

both Olympian’s liquor license and its business license without providing an opportunity to be

heard. The Court held a contested hearing on the issue but ultimately declined to issue a TRO.

(Dkt. No. 85.) The Court abstained from ruling on the merits of Plaintiffs’ petition because there

were ongoing administrative proceedings before the City of Markham that could be reviewed in

Illinois state court. See Younger v. Harris, 401 U.S. 37, 44–46 (1971) (holding that, in most

circumstances, district courts should abstain from interfering with ongoing state criminal, civil

enforcement, or administrative proceedings). The Court has not held further hearings or received

further filings that clarify the status of Olympian’s business license and liquor license.

DISCUSSION

Defendants have moved to dismiss all Plaintiffs’ claims pursuant to Rule 12(b)(6) for

failure to state a claim. To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 3 Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). This pleading standard does not necessarily require a complaint to contain detailed

factual allegations. Twombly, 550 U.S. at 555. Rather, “[a] claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Adams v. City of Indianapolis, 742 F.3d 720, 728

(7th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

3 Both motions to dismiss ask the Court to take judicial notice of a raft of documents. (See Dkt. Nos. 58-1–

58-12, 64-1–64-5.) The Court declines to take judicial notice of those documents. The Court can resolve

the issues raised by the motion to dismiss without them, and it would be more appropriate to consider the

documents on a motion for summary judgment or at trial.

In addition to the basic notice pleading requirement embodied in Federal Rule of Civil

Procedure 8, Agpawa contends that Federal Rule of Civil Procedure 9(b)’s heightened pleading

standard applies to Plaintiffs’ claims because they involve a fraudulent course of conduct. Rule

9(b) provides that “[i]n alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). That heightened pleading

standard applies when a claim is based on a fraud, even if the cause of action is not for fraud. See

Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007). In the SAC, there are

scattershot descriptions of Olympian’s citations as false or fraudulent. But despite the allegations

of false statements, Plaintiffs’ claims are not based on fraud. See Houben v. Telular Corp., 231

F.3d 1066, 1074 (7th Cir. 2000) (giving the elements of common-law fraud). Plaintiffs have

alleged that they knew that all the false statements by Defendants were false, so they were not

deceived or defrauded by those statements. In addition, Plaintiffs have not alleged any form of

reliance on Defendants’ false statements. Therefore, even though false statements form an

important part of Plaintiffs’ allegations, Plaintiffs’ claims are not “premised upon a course of

fraudulent conduct” and the heightened pleading standard in Rule 9(b) does not apply. Borsellino,

477 F.3d at 507.

Defendants have also moved to dismiss some claims for lack of subject-matter jurisdiction

pursuant to Federal Rule of Civil Procedure 12(b)(1). To test the jurisdictional sufficiency of

Plaintiffs’ SAC, the Court “accept[s] as true all well-pleaded factual allegations and draw[s]

reasonable inferences in favor of the plaintiffs.” Bultasa Buddhist Temple of Chi. v. Nielsen, 878

F.3d 570, 573 (7th Cir. 2017). The Court may, however, look at evidence the parties have

submitted beyond the pleadings to determine if it has subject-matter jurisdiction. See Ezekiel v.

Michel, 66 F.3d 894, 897 (7th Cir. 1995).

I. Standing and Proper Parties

Before addressing whether the SAC adequately states a claim, the Court first addresses

whether all Plaintiffs belong in this lawsuit. There is no dispute that Olympian both has standing

to pursue the claims raised in the SAC and is the proper party to raise them under Federal Rule of

Civil Procedure 17(a). But for Bradford and Irvin, it is not clear that they have standing or that

they are real parties in interest as necessary to assert the clams here.

The standing requirement is grounded in the Constitution’s restriction of federal judicial

power to “Cases” and “Controversies.” U.S. Const. art. III, § 2; see Ctr. for Individual Freedom v.

Madigan, 697 F.3d 464, 473 (7th Cir. 2012). To have standing, a plaintiff must have “(1) suffered

an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that

is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016). Here, Bradford and Irvin have suffered no injury from the conduct alleged in the

SAC. Instead, all the harm from the torts and constitutional violations alleged in the SAC was

directed to Olympian, which is an LLC. While Bradford and Irvin are members of that LLC, they

have not alleged that they were harmed as individuals. The only individual harm to Bradford and

Irvin that Plaintiffs identify in their briefs is the possibility that Bradford and Irvin were seized

during one or more visits by Markham police to the nightclub. (See Opp’n at 7–8.) But the SAC

contains no allegations that Bradford or Irvin were ever seized by police or suffered any other

injury personal to them. Bradford and Irvin thus lack standing to pursue any of the claims asserted

in the SAC.

Bradford and Irvin also fail to meet the requirements to bring suit in Rule 17(a) because

they only assert injuries to the LLC. Fed. R. Civ. P. 17(a) (requiring all suits to be brought by the

real party in interest); see Frank v. Hadesman & Frank, Inc., 83 F.3d 158, 160 (7th Cir. 1996)

(holding that even in a closely held corporation, “Illinois follows the widespread rule that an

action for harm to the corporation must be brought in the corporate name.”). A member of an

Illinois LLC may file a derivative action to enforce a right that the LLC itself refuses to enforce.

See Fed. R. Civ. P. 23.1(a); 805 ILCS 180/40-10. But Bradford and Irvin may not maintain a

derivative action in this case because the LLC itself is a Plaintiff. Therefore, the individual

Defendants are not enforcing any right that the LLC refuses to enforce.

In his motion to dismiss, Agpawa also contends that Olympian has failed to allege that it is

a proper party in this suit. Agpawa contends that Olympian has failed to plead that a majority of

its members consented to the suit. Of course, a party need not plead its “capacity to sue or be

sued,” unless it is necessary to establish the Court’s jurisdiction. Fed. R. Civ. P. 9(a)(1)(A).

Nonetheless, even if Olympian were required to plead that it has the capacity to sue, it has done

so. Under Illinois law, an LLC may be managed by its members or by an appointed manager or

managers. 805 ILCS 180/15-1(a)–(b). A member-managed LLC must have the consent of a

majority of its members to sue, while a manager-managed LLC must have the consent of a

majority of its managers. 805 ILCS 180/15-1(b)–(c). The SAC suggests (even if it does not

explicitly state) that Olympian is a manager-managed LLC. (See SAC ¶ 2.) Bradford and Irvin are

the only members mentioned in the SAC, and Bradford is the only manager named. (Id. ¶¶ 2–3.)

Based on Bradford and Irvin’s status as individual Plaintiffs, it is reasonable to infer that both

consented to the LLC bringing suit. The consent of the only alleged manager and the only two

alleged members suffices to establish Olympian’s right to sue.4

4 The only case Agpawa cites in support of his position is inapposite. See Freed v. JPMorgan Chase Bank,

N.A., No. 12 C 1477, 2012 WL 3307091, at *5–6 (N.D. Ill. Aug. 13, 2012). In that case, the complaint

alleged that one of the LLC’s two members was the defendant in the suit and, presumably, did not consent

to the suit. Id. But drawing all reasonable inferences in favor of Plaintiffs in this case, Olympian received

appropriate authorization from its members or managers to initiate this lawsuit.

II. Claims Plaintiffs Agree to Dismiss and Miscellaneous Parties

Before reaching the bulk of Plaintiffs’ claims, the Court must dismiss certain claims and

parties from the SAC. Plaintiffs have agreed to the dismissal of Count X, which is a claim for

negligent interference with a business relationship against all individual Defendants. (Opp’n at 2.)

The Court therefore dismisses Count X. Plaintiffs have also agreed to the dismissal of Count V,

which asserts a claim that all individual Defendants engaged in a conspiracy to deprive Plaintiffs

of equal protection of the laws in violation of 42 U.S.C. § 1985(3). (Id.) The Court dismisses that

claim with prejudice because Plaintiffs have admitted that a class-of-one equal protection claim

cannot form the basis for a § 1985(3) conspiracy. See Smith v. Gomez, 550 F.3d 613, 617 (7th Cir.

2008).

In addition, the SAC appears to assert claims against certain persons who are not named as

Defendants and have not been served. Count XIII states that it is a § 1983 claim against, among

others, the MLCC. Plaintiffs have agreed to dismiss any claims against the MLCC with prejudice

(Opp’n at 2), so the Court dismisses all such claims with prejudice. Count VIII asserts a

conversion claim against, among others, Blevins. Blevins was named as a Defendant in previous

iterations of the complaint. But he was not named as a Defendant in the caption to the SAC, as

required by Federal Rule of Civil Procedure 10(a). Plaintiffs do not comment on the propriety of

dismissing claims against Blevins. But the Court concludes that it is appropriate to dismiss all

claims against Blevins because he was not named in the SAC, he has not been served since

Plaintiffs filed the SAC on March 22, 2019, and the SAC notes that he is deceased. (SAC ¶ 5.)

III. Procedural Due Process Claim (Count I)

The Court now turns to the merits of Plaintiffs’ claims. Count I asserts a § 1983 claim

alleging that all individual Defendants deprived Plaintiffs of their rights under the Due Process

Clause of the Fourteenth Amendment. Plaintiffs characterize the claim as falling under the

procedural due process component of the Due Process Clause. To state a claim for the deprivation

of procedural due process rights, Plaintiffs must allege that (1) they had a constitutionally

protected liberty or property interest, (2) a state actor deprived them of that interest, and (3) the

deprivation occurred without due process of law. See LaBella Winnetka, Inc. v. Vill. of Winnetka,

628 F.3d 937, 943–44 (7th Cir. 2010). Further, as state law remedies exist here, Plaintiffs must

“either avail [themselves] of the remedies guaranteed by state law or demonstrate that the

available remedies are inadequate.” Doherty v. City of Chicago, 75 F.3d 318, 323 (7th Cir. 1996).

Plaintiffs characterize the interest at stake as a “liberty interest[] in conducting and running

a lawful business.” (SAC ¶ 69; Opp’n at 10.) The Due Process Clause does protect occupational

liberty, which is the right to follow a particular trade, profession, or calling. See Wroblewski v.

City of Washburn, 965 F.2d 452, 455 (7th Cir. 1992). But occupational liberty does not provide a

right to hold any particular job or work in any particular business. Id. Plaintiffs have not alleged

that Defendants have prevented them from following a certain trade or profession, even if they did

interfere with a particular business’s operations. Moreover, because Bradford and Irvin lack

standing and are not proper Defendants, Olympian is the only Plaintiff left in this case. Plaintiffs

have provided no authority for the proposition that a corporate entity possesses occupational

liberty rights under the Due Process Clause and the Court has found none.

Nonetheless, the Court concludes that Olympian has adequately pleaded that it had a

protected property interest in its liquor license. The Seventh Circuit has held in several cases that

Illinois liquor licenses create property interests for purposes of the Due Process Clause. See

LaBella Winnetka, 628 F.3d at 943–44; Reed v. Village of Shorewood, 704 F.2d 943, 949–50 (7th

Cir. 1983), overruled on other grounds by Brunson v. Murray, 843 F.3d 698, 713 (7th Cir. 2016).

Plaintiffs have pleaded that Olympian held a liquor license granted by Markham. That suffices to

establish that they had a protected property interest.

Having pleaded a property interest, the Plaintiffs must plead that a state actor deprived

them of that interest. Plaintiffs’ procedural due process claim appears to revolve around an alleged

campaign by Markham police to issue citations under false pretenses, scare away Olympian’s

customers, and force Olympian to shut down as a business. (See Opp’n at 11.) Here, the alleged

state action deprived Plaintiffs of the value of their liquor license. The state does not need to

revoke a person’s license to deprive them of a property right. See Reed, 704 F.2d at 949. State

action that substantially impedes a person’s rights under a license can suffice to state a claim for a

due process violation. See id. In this case, Plaintiffs have pleaded that police action repeatedly

interrupted their business, forced customers to leave, and forced the nightclub to close early or

stop serving liquor early. That suffices to plead a deprivation of protected property rights.

Plaintiffs must also plead that their rights were deprived without due process of law. The

three factors the Court considers when weighing whether the government deprived a person of

their rights without due process of law are “first, the private interest at stake; second, the risk of

erroneous deprivation and the value, if any, of additional procedural safeguards; and third, the

government’s countervailing interests.” Simpson v. Brown Cty., 860 F.3d 1001, 1006 (7th Cir.

2017) (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). In most cases, a person must

receive due process before they are deprived of a liberty or property right. Id. But in this case,

Plaintiffs appear to seek only post-deprivation process—specifically, a meaningful opportunity to

be heard about citations Olympian has received and the conduct of police officers. Plaintiffs allege

that the hearings they have received thus far have been shams and that any complaints they filed

against police officers would be fruitless because their superiors have conspired against

Olympian.

Due process requires a real hearing, not a sham or a pretense. Ciechon v. City of Chicago,

686 F.2d 511, 517 (7th Cir. 1982). Plaintiffs have pleaded that any hearing they have received or

could receive would be a sham. The Mathews factors thus weigh strongly in Plaintiffs’ favor.

Their private interest in the full use of their liquor license is strong, holding a real hearing would

reduce the risk of an erroneous deprivation of their license, and Markham has no countervailing

interest against holding a real hearing. Therefore, Plaintiffs have stated a § 1983 claim for the

violation of their Due Process rights.

Finally, Plaintiffs must demonstrate that they have availed themselves of state law

remedies or that those remedies are inadequate. As Plaintiffs have adequately pleaded that the

hearings they have received or would receive are inadequate, they have also met this pleading

requirement. The parties have not briefed the issue of Younger abstention, and the Court is not

convinced that such abstention would be appropriate based on the facts before it. Where ongoing

state proceedings allow “an opportunity to fairly pursue [a plaintiff’s] constitutional claims,” the

federal courts should abstain. Juidice v. Vail, 430 U.S. 327, 337 (1977). But here, Plaintiffs have

pleaded the necessary facts to show that the state proceedings do not provide an adequate

opportunity to pursue their claims, making Younger abstention inappropriate at this time.

In addition to arguing that Plaintiffs failed to state a claim on Count I, Defendants also

contend that Plaintiffs waived any due process arguments by paying about $33,000 in fines due to

Markham. To support that argument, Defendants cite only Sapir v. City of Chicago, in which a

district court held that a plaintiff waived a due process claim by paying fines he owed to the City

of Chicago. 749 F. Supp. 187, 191 (N.D. Ill. 1990) (“By paying his ticket, fines and penalties,

Hendricks deprived the City of the opportunity to provide him with due process, and he thereby

waived his right to test the constitutionality of the City's enforcement procedures.”). But that case

is inapposite because, in this case, Plaintiffs’ due process claim revolves around procedures that

were available to Plaintiffs but were, in effect, a sham or a pretense. The fact that Plaintiffs paid

the fines to keep their licenses does not vitiate their claims that Markham had provided sham

process up to that point. Construing the allegations in the SAC in Plaintiffs’ favor, the Court

concludes that Plaintiffs did not waive their procedural due process claim by paying fines to

Markham.

The Court must also consider whether Plaintiffs have adequately pleaded the personal

involvement of all Defendants. Plaintiffs have brought Count I against all eight individual

Defendants.5 But Plaintiffs’ allegations suffice as to only four individual Defendants.

To prevail on a § 1983 claim against an individual defendant, a plaintiff must show that

the defendant was “personally responsible for a deprivation of a constitutional right.” Zentmyer v.

Kendall County, 220 F.3d 805, 811 (7th Cir. 2000) (internal quotation marks omitted). Plaintiffs’

allegations plausibly suggest personal involvement in the denial of their due process rights only by

Defendants Webb, Howard, Sanders, and Walker. Specifically, Plaintiffs allege that Webb and

Howard both interfered with Olympian’s permits and ability to operate and directed Markham

police to issue citations that lacked a basis in fact. (SAC ¶¶ 43, 47.) Plaintiffs also allege that

Sanders and Walker both directed and participated in police efforts to issue citations under false

5 The Court interprets this claim to be against those Defendants in their individual capacities, as any

official-capacity claims would functionally be claims against Markham and thus fall under Plaintiffs’

Monell claims. See Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008).

pretenses and to interfere with the operation of the nightclub. (Id. ¶¶ 47, 63–64.) Those allegations

suffice to plead the personal involvement of those four Defendants.6

But there are no allegations tying Agpawa to the alleged due process violation.7 And the

only allegations that connect Miller, Jones, and Barron to that claim consist of conclusory

allegations that those Defendants “embarked on a series of actions” meant to deprive Plaintiffs of

their business and “initiated a new campaign to drive the Plaintiffs out of business.” (Id. ¶¶ 38,

46.) The SAC does not, however, indicate what the “series of actions” or “campaign to drive

Plaintiffs out of business” involved. Such vague and conclusory allegations are insufficient to

establish personal involvement. For that reason, the Court dismisses Count I as asserted against

Agpawa, Miller, Jones, and Barron.8

6 Defendants contend that Howard, Jones, Barron, and Webb cannot be held liable under § 1983 because

they have absolute legislative immunity for actions they took in a legislative capacity. See Bogan v. Scott-

Harris, 523 U.S. 44, 53–54 (1998) (establishing absolute legislative immunity for local legislators). The

Court need not consider claims of legislative immunity for any claims that did not survive Defendants’

motions to dismiss, so it will not consider legislative immunity for Jones and Barron on Count I. But

Plaintiffs have stated a claim against Howard and Webb on Count I. Legislative immunity protects acts

that Defendants took pursuant to statutory or constitutional processes, that are integral steps in a legislative

process, and that bear the hallmarks of traditional legislation. See Bagley v. Blagojevich, 646 F.3d 378,

392–93 (7th Cir. 2011). But the actions Webb and Howard allegedly took—interfering with duly issued

permits and directing police to issue citations under false pretenses—are not part of a legislative process

and do not bear the hallmarks of legislation. Therefore, legislative immunity does not protect Webb and

Howard against liability under Count I.

7 For all counts in which he is named as a Defendant, the Defendants contend that Agpawa is entitled to

quasi-judicial immunity for actions he took as Markham’s LLCC. See Killinger v. Johnson, 389 F.3d 765,

771-72 (7th Cir. 2004) (describing quasi-judicial immunity for liquor commissioners who issue fines,

suspend licenses, and summarily close businesses). But the Court will not address this argument because,

as described below, no claims against Agpawa in the SAC have survived Defendants’ motions to dismiss.

8 For all the § 1983 claims pleaded against individual Defendants, they claim that qualified immunity

shields them from all liability. See, e.g., Canen v. Chapman, 847 F.3d 407, 412 (7th Cir. 2017) (describing

the doctrine of qualified immunity). While the Court is cognizant of its duty to address claims of qualified

immunity as early as possible in litigation, the Court declines to address qualified immunity for any claim

at this time because Defendants’ arguments about it are conclusory and undeveloped. Defendants may

renew their arguments based on qualified immunity at another appropriate time.

IV. Equal Protection Claim (Count II)

Count II of the SAC alleges that all individual Defendants violated Plaintiffs’ rights under

the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs have made clear in their

SAC and their response in opposition to the motions to dismiss that they do not seek to assert that

Defendants discriminated against them based on race or another protected status. (See SAC ¶ 74;

Opp’n at 12–13.) Instead, they assert a so-called class-of-one claim. See LaBella Winnetka, 628

F.3d at 941. To state a class-of-one equal protection claim, Plaintiffs must allege that they were

“intentionally treated differently from others similarly situated and that there is no rational basis

for the difference in treatment.” Geinosky v. City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012)

(quoting Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008)). A plaintiff may bring a class-

of-one claim based on the “irrational or malicious application” of power by law enforcement. Id.

The Court concludes that Plaintiffs have stated a claim in Count II. Specifically, Plaintiffs

have alleged that they were treated differently than similarly-situated businesses when they were

repeatedly cited by the police without cause, when police or officials interfered in the operations

of the club, and when their business license was suspended. Plaintiffs do not need to identify a

comparator at the pleading stage, see id. at 748 n.3; nonetheless, they have named another

nightclub in Markham (see SAC ¶¶ 25–26). Furthermore, Plaintiffs have plausibly alleged that the

police and municipal interference in their business was irrational and that Olympian’s nightclub

was treated differently than other nightclubs in Markham. At a later stage in the case, Defendants

will have an opportunity to argue that their treatment of the nightclub was rational or that it was

the same as their treatment of similarly-situated businesses. But for purposes of a motion to

dismiss, Plaintiffs have sufficiently pleaded a class-of-one equal protection claim.

The Court must, therefore, consider whether Plaintiffs have adequately pleaded the

personal involvement of all Defendants. See Zentmyer, 220 F.3d at 811. As with Count I, it

appears that Plaintiffs have brought Count II against all individual Defendants in their personal

capacities. But the Court concludes that Plaintiffs have only pleaded the personal involvement of

four of the Defendants. The underlying conduct for Counts I and II is essentially the same, and so

is the analysis of personal involvement. Plaintiffs allege that Howard and Walker interfered with

Olympian’s permits and ability to operate and that Walker and Sanders participated in and

directed police efforts to issue citations under false pretenses.9 But there are no allegations tying

Agpawa to the alleged equal protection violation. And the only allegations connecting Miller,

Jones, and Barron are vague conclusory allegations devoid of well-pleaded facts. Therefore, the

Court dismisses Count II as asserted against Agpawa, Miller, Jones, and Barron.

V. Free Speech Claims (Counts III and XIII)

Count III of the SAC sets out a § 1983 claim against all individual Defendants for

violating Plaintiffs’ free speech rights under the First Amendment. Count XIII also sets out a

§ 1983 free speech claim, this one against Markham and Agpawa.10

In Count III, Plaintiffs claim that Defendants deprived them of their “constitutional rights

to run a lawful business” by issuing “fraudulent and arbitrary citations.” (SAC ¶ 81.) They note

the costs that Plaintiffs incurred in reliance on receiving what they believed to be a 4:00 a.m.

9 Defendants raise the same legislative immunity arguments for Count II as they did for Count I. See

Bogan, 523 U.S. at 53–54; Bagley, 646 F.3d at 392–93. The Court need not consider such arguments for

Jones and Barron. But as for Howard and Webb, against whom Count II survives, the Court concludes that

legislative immunity does not apply for Count II for the same reasons that it did not apply for Count I.

10 Plaintiffs have clarified that Count XIII only applies to Agpawa in his official capacity. (See Opp’n at 15

n.4.) Suits against government officials in their official capacity are treated as suits against the government

entity itself. See Walker, 526 F.3d at 977. Because Count XIII already names Markham as a Defendant, the

Court dismisses Count XIII as duplicative to the extent Plaintiffs purport to assert it against Agpawa.

liquor license. (Id. ¶¶ 82–83.) And they contend that harassment and citations issued by Markham

police officers deprived them of the right to make commercial speech. (Id. ¶ 84.) Plaintiffs

included more detailed allegations about the relevant speech in Count XIII, however. In that

count, they allege that Markham police officers shut down Olympian’s club before 2:00 a.m. and

made Olympian turn over its business license. (Id. ¶¶ 138–145.) In Olympian’s telling, Markham

shut down Olympian’s operations on that occasion because the City did not want a “strip club”

like Encore in town. (Id. ¶¶ 149–150.) While Olympian does not clearly identify the nature or

content of the entertainment at its nightclub, the Court makes the reasonable inference that the

entertainment includes nudity or sexually suggestive content in some form. Agpawa placed

restrictions on Olympian’s license and imposed a $500 fine. (Id. ¶ 152.) Plaintiffs allege that

Markham’s actions in regard to Olympian’s business license were based on the content of speech

at Olympian’s nightclub. (Id. ¶ 158.)

The Court dismisses Count III. Under the pleading standard of Federal Rule of Civil

Procedure 8(a), Plaintiffs have an obligation to give Defendants notice of the nature of the claims

against them. Bell Atl. Corp., 550 U.S. at 555. Yet the allegations in Count III fail to identify what

speech Defendants are allegedly restricting. The allegations mention interference with a lawful

business and costs incurred in reliance on a license. But beside a conclusory reference to the idea

of commercial speech, Plaintiffs have failed to provide Defendants with notice of what speech

they are restricting and how they are restricting it. Therefore, Plaintiffs have not met the

requirements of notice pleading on Count III.

For Count XIII, there is a closer connection between the speech at issue—some form of

adult entertainment—and government action in regard to Olympian’s business license. The

essence of this claim appears to be that Markham is punishing Olympian, or at least treating it

differently, because of the type of entertainment at its nightclub. That suffices to state a § 1983

claim for retaliation against the exercise of the right to free speech.11 To make out a prima facie

case of First Amendment retaliation, a plaintiff must allege that “(1) it engaged in activity

protected by the First Amendment, (2) it suffered a deprivation that would likely deter First

Amendment activity in the future, and (3) the First Amendment activity was at least a motivating

factor in the Defendants' decision to take the retaliatory action.” Woodruff v. Mason, 542 F.3d

545, 551 (7th Cir. 2008) (internal quotation marks omitted). Plaintiffs have alleged that they

engaged in protected speech by hosting some form of nude entertainment at their nightclub. See

Schultz v. City of Cumberland, 228 F.3d 831, 839 (7th Cir. 2000) (“[I]t is now well-established

that erotic dancing . . . enjoys constitutional protection as expressive conduct.”). They have

alleged that they suffered a deprivation—a temporary revocation of their business license

followed by restrictions on that license and a monetary fine—that would likely deter future

protected speech. And they have alleged that hostility to their speech was at least a motivating

factor in the retaliatory actions.12 Count XIII therefore survives Defendants’ motions to dismiss.13

11 Plaintiffs’ response in opposition to the motions to dismiss does not focus on the retaliation issue. They

focus, instead, on prior restraints and commercial speech. But because Plaintiffs have stated a claim on the

theory of retaliation, Count XIII may proceed and the Court need not rule on whether Plaintiffs have stated

a claim under a theory of prior restraints or commercial speech.

12 After the Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), there

was some confusion about whether a but-for standard or a motivating-factor standard was the proper

standard of causation in First Amendment retaliation cases. See, e.g., Collins-Bey v. Hulick, No. 3:09-cv-

00921-JPG-PMF, 2011 WL 2116456, at *2 (S.D. Ill. May 2, 2011). But the Seventh Circuit has held that

district courts should still use a motivating-factor standard. See Smith v. Wilson, 705 F.3d 674, 681-82 (7th

Cir. 2013); Greene v. Doruff, 660 F.3d 975, 978 (7th Cir. 2011). Either way, it does not affect the outcome

because Plaintiffs have adequately pleaded that bias against the content of its entertainment was the but-for

cause of Markham’s retaliatory acts.

13 To prevail on this claim, Plaintiffs will, of course, have to demonstrate that Markham deprived them of

their rights through a policy, practice, or custom that it maintained. See Monell, 436 U.S. at 694. But in the

briefs supporting its motion to dismiss, Markham never raised an issue related to Monell on Count XIII, so

the Court need not address it. And in any case, Plaintiffs have sufficiently pleaded that Markham is liable

VI. Fourth Amendment Claim (Count IV)

Count IV raises a § 1983 claim alleging that all individual Defendants violated Plaintiffs’

Fourth Amendment rights by “willfully and wantonly search[ing] Olympian and seiz[ing] its

property.” (SAC ¶ 88.) The count itself contains no further detail about alleged Fourth

Amendment violations, and the allegations elsewhere in the SAC do not clearly describe any

searches or seizures. While Plaintiffs allege that Markham police officers entered Olympian’s

nightclub on numerous occasions and issued citations to Olympian, there are no allegations that

officers ever seized any money or other property from the nightclub. Moreover, the descriptions

of the officers’ visits to the nightclub do not include any searches. Even construing the SAC in

Plaintiffs’ favor, all the Court can infer is that officers entered the nightclub while it was open to

the public and observed what was in plain view. Therefore, the only allegation supporting the

Fourth Amendment claim is the conclusory allegation that officers searched Olympian and seized

its property. Plaintiffs cannot state a claim with that conclusory allegation alone. See Iqbal, 556

U.S. at 681. Therefore, the Court dismisses Count IV.

VII. Monell Claims (Counts VI and VII)

Count VI is a Monell claim that seeks to hold Markham liable for one or more of the

§ 1983 claims against Markham officials and police officers. Count VII requests declaratory and

injunctive relief against Markham. Count VII is, in effect, an extension of Count VI because it

requests equitable relief for the same violations of Plaintiffs’ rights that are covered by the Monell

claim in Count VI.

A municipality cannot be held liable under § 1983 for the conduct of its employees based

on a theory of respondeat superior. Monell, 436 U.S. at 694. Instead, a policy, practice, or custom

because Agpawa, the final policymaker on liquor licenses in Markham, was the cause of Plaintiffs’ injury.

See Kujawski v. Bd. of Comm'rs of Bartholomew Cty., 183 F.3d 734, 737 (7th Cir. 1999).

of the municipality must have caused the violation of the plaintiff’s rights. Id. Plausible

allegations of a specific policy, practice, or custom are indispensable to stating a Monell claim.

See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). Plaintiffs here, however,

have not clearly identified for which constitutional violations they seek to hold Markham

accountable. At the motion to dismiss stage, the Court reads the SAC to cover all § 1983 claims

against individual Defendants. Thus, the Court will examine Monell claims for the constitutional

violations in Counts I through IV.

A plaintiff may show that a municipality is responsible for the unconstitutional conduct of

its employees in one of three ways: “proof of an express policy causing the loss, a widespread

practice constituting custom or usage that caused the loss, or causation of the loss by a person with

final policymaking authority.” Kujawski, 183 F.3d at 737. The Court concludes that Counts VI

and VII fail to state a claim for any of the constitutional violations in Counts I through IV.

Therefore, the Court dismisses the Monell claims related to Counts III and IV. Without stating a

claim for an underlying constitutional violation on Counts III and IV, Plaintiffs cannot state a

Monell claim against Markham. See Palka v. Shelton, 623 F.3d 447, 455 (7th Cir. 2010).

Plaintiffs have stated a claim for the constitutional violations alleged Counts I and II. But

the Court nonetheless concludes that they have failed to state a Monell claim based on those

violations. For the procedural due process and equal protection violations, Plaintiffs claim that

Markham had a policy or custom of harassing businesses in Markham and that final policymakers

in Markham were responsible for the violations of Plaintiffs’ rights.14 But Plaintiffs have

14 It stands to reason that a plaintiff may state a Monell claim against a municipality on a class-of-one equal

protection claim if a final policymaker in that municipality caused the harm. See, e.g., Lovette-Cephus v.

Vill. of Park Forest, 587 F. App’x 983, 984 (7th Cir. 2014) (unpublished). But the Court could not locate

binding authority to the effect that a policy or practice Monell claim is possible for a class-of-one equal

protection violation, and courts in this District are split on the question. Compare Messner v. Calderone,

No. 07 C 0893, 2007 WL 1832116, at *3 (N.D. Ill. June 25, 2007) (holding that a policy or practice Monell

presented only conclusory allegations for both theories. See McCauley, 671 F.3d at 616. For both

their due process and equal protection claims, Plaintiffs offer only the conclusory allegation that

Markham had a policy or practice that caused the violations. They reference the harassment of

other businesses, but there are no well-pleaded facts in the SAC about the harassment of any other

businesses. Thus, Plaintiffs have failed to offer facts from which the Court can draw a reasonable

inference about the existence of a policy or practice. Moreover, Plaintiffs have only offered the

conclusory allegation that all the individual Defendants were final policymakers. This allegation

is so broad and vague that the Court cannot make a reasonable inference about which Defendants,

if any, were allegedly final policymakers with regard to the violations of Plaintiffs’ rights or how

those Defendants were involved. Therefore, the Court dismisses the Monell claims that pertain to

the constitutional violations in Counts III and IV.

VIII. State Law Claims (Counts VIII, XI, XII)

Counts VIII, XI, and XII assert Illinois common law claims for conversion, extortion, and

trespass to land.15 Because neither party has raised a choice-of-law issue, the Court applies the

substantive law of Illinois in considering all three claims. See Wood v. Mid-Valley Inc., 942 F.2d

425, 427 (7th Cir. 1991). The Court addresses each in turn.16

claim is not possible for a class-of-one equal protection violation), with Murphy v. County of McHenry,

No. 02 C 50283, 2003 WL 1908045, at *1 (N.D. Ill. Apr. 18, 2003) (holding that a policy or practice

Monell claim is possible for a class-of-one equal protection violation), and Anderson v. Village of Oswego,

109 F. Supp. 2d 930, 935 (N.D. Ill. 2000) (same). For present purposes, the Court will assume without

deciding that Plaintiffs can state a Monell claim against Markham on both the basis of a policy or practice

and the basis of decisions by final policymakers.

15 Defendants contend that Markham, Walker, and Sanders are immune to Plaintiffs’ state-law claims

because of the Illinois Local Governmental and Governmental Employees Tort Immunity Act. See 745

ILCS 10/2-109, 10/2-201, 10/2-210. But because, none of Plaintiffs’ state-law claims survive Defendants’

motions to dismiss on their merits, as described below, the Court declines to consider whether the

immunity conferred by that statute shields any Defendant from liability.

16 Defendants have asked the Court to decline to exercise supplemental jurisdiction over the state-law

claims if it dismissed all federal-law claims. See 28 U.S.C. § 1367(c). But since several federal-law claims

A. Conversion

Count VIII alleges that Markham and Webb unlawfully converted Plaintiffs’ property.

(SAC ¶¶ 112–18.) The claim appears to allege that those Defendants took temporary unauthorized

control over Plaintiffs’ real property through police actions on several occasions and unlawfully

converted about $30,000 that Markham claimed that Olympian owed on citations.

To prevail on a conversion claim under Illinois law, a plaintiff must establish that “(1) he

has a right to the property; (2) he has an absolute and unconditional right to the immediate

possession of the property; (3) he made a demand for possession; and (4) the defendant

wrongfully and without authorization assumed control, dominion, or ownership over the

property.” In re Karavidas, 999 N.E.2d 296, 310 (Ill. 2013) (internal quotation marks omitted). To

the extent Plaintiffs’’ conversion claim concerns real property, it fails to state a claim because the

allegation that Defendants took unauthorized control over that property is conclusory and not

supported by the facts alleged in the SAC.

The claim also fails to the extent it concerns the money Olympian paid in fines to

Markham. Under Illinois state law and Markham’s local ordinance, Markham had authority to set

fines for violations of its liquor and business licenses ordinances and to levy those fines on

businesses that violated their licenses. As alleged in the SAC, all the money Olympian paid

Markham was for fines levied under local licensing ordinances. Perhaps the fines were issued

without a factual predicate or on false pretenses. If so, that could have been a basis for appealing

the citations through a state or local process. But it does not change the fact that Markham had

lawful authority to issue citations, levy fines on Olympian, and demand payment of those fines.

survive Defendants’ motion to dismiss, the Court will continue to exercise supplemental jurisdiction over

the state-law claims.

Therefore, Markham had authority to assume control of the money that Olympian paid Markham

in fines. The Court dismisses Count VIII.

B. Extortion

In Count XI, Plaintiffs assert a claim against the individual Defendants for extortion. (See

SAC ¶¶ 126–131.) Plaintiffs state that 720 ILCS 5/12-6(a) provides the basis for their extortion

claim. (See id. ¶ 127.) But 720 ILCS 5/12 is a criminal statute not providing for a private cause of

action. And this Court has not identified a state law claim for extortion under which the facts pled

by Plaintiffs would state a claim for relief. See Shields Enterprises, Inc. v. First Chicago Corp.,

975 F.2d 1290, 1297 (7th Cir. 1992) (finding that Illinois does not recognize a tort for economic

duress). Accordingly, this Court dismisses Count XI.

C. Trespass to Land

In Count XII, Plaintiffs allege that all individual Defendants committed the common-law

tort of trespass to land. Specifically, Plaintiffs allege that the Markham Police Department has

“entered and stayed, or alternatively, caused its agents to enter and stay, on Plaintiffs’ land

without Plaintiffs’ authorization.” (SAC ¶ 134.) Plaintiffs go on to describe Defendants’ conduct

as knowing interference with Plaintiffs’ right of possession. (Id. ¶ 135.)

Illinois law imposes tort liability for trespasses on real property. Dial v. City of O’Fallon,

411 N.E.2d 217, 220 (Ill. 1980). To state a claim for trespass to land, a plaintiff must allege that a

defendant intentionally intruded on, or caused another to intrude on, the plaintiff’s real property

without authorization and in a manner that wrongfully interferes with the plaintiff’s possessory

rights. See id.; Loftus v. Mingo, 511 N.E.2d 203, 210 (Ill. App. Ct. 1987). But according to the

allegations in the SAC, police officers entered the nightclub while they were on duty, saw what

was in plain view, and issued citations. This case similar to one in which the Illinois Appellate

Court held that a plaintiff failed to state a claim for trespass against a police officer who parked

his car on plaintiff’s property because there were no allegations that the officer was off duty, that

he was acting outside the scope of his authority, or that he lacked probable cause to enter the

plaintiff’s property. See Loftus, 511 N.E.2d at 210. Without allegations that he was acting without

authority, the court considered the police officer’s entry onto the property privileged. Id. In this

case, there are no allegations that the Markham officers were off duty or that they exceeded their

authority. No warrant or probable cause was required to enter a business open to the public and

Plaintiffs never contend that Defendants unlawfully entered Olympian’s nightclub. Therefore,

Plaintiffs have failed to state a claim for trespass to land, an element of which is that Defendants

acted without authority.

IX. Other Affirmative Defenses

In addition to those addressed in the preceding sections, Defendants assert the following

additional affirmative defenses: that Plaintiffs’ claims are barred by the statute of limitations; that

the claims are not ripe for adjudication; that the Court should decline to consider Plaintiffs’ claims

pursuant to the Rooker-Feldman doctrine and due to Plaintiffs’ failure to exhaust their state-court

remedies; and that Defendants are immune to punitive damages. The Court considers these

arguments in turn.

A. Statute of Limitations

Plaintiffs allege that they have received a series of fraudulent citations going back to

January 2013. But Defendants contend that Plaintiffs cannot base their claims on events that took

place before July 18, 2016 because of the two-year statute of limitations for § 1983 claims. The

limitations period for § 1983 claims is the same the limitations period for personal injury claims in

the state where the violation of constitutional rights occurred. See Savory v. Lyons, 469 F.3d 667,

672 (7th Cir. 2006). In Illinois, that period is two years, so the limitations period for Plaintiffs’

§ 1983 claims is also two years. 735 ILCS 5/13-202. Plaintiffs filed their initial complaint in this

case on July 18, 2018, so Defendants are correct that events more than two years before that date

would normally be beyond the statute of limitations.

Plaintiffs contend that any events that took place beyond the limitations are part of a

continuing series of violations for which the Court should toll the statute of limitations. Federal

law—not state law—governs when a cause of action for a § 1983 claim accrues. See Savory, 469

F.3d at 672. And under the doctrine of continuing violations, events that occurred beyond the

limitations period may form part of a cause of action if “the plaintiff could not reasonably be

expected to perceive the alleged violation before the limitations period has run, or when the

violation only becomes apparent in light of later events.” Id.

A complaint typically does not need to address affirmative defenses. Brooks v. Ross, 578

F.3d 574, 579 (7th Cir. 2009). But a defendant may move to dismiss based on the statute of

limitations if “the allegations of the complaint itself set forth everything necessary to satisfy the

affirmative defense.” Id. (internal quotation marks omitted). In this case, however, it would be

inappropriate to address the statute of limitations on Defendants’ motions to dismiss because

Plaintiffs’ SAC does not set forth everything necessary to determine if events beyond the

limitations period are part of a continuing violation. See id. (holding that it was appropriate for the

district court to dismiss claims based on the statute of limitations because the relevant events

occurred beyond the limitations period and “[i]t is also clear that the continuing tort rule does not

apply”). Aside from a single allegation concerning citations received as far back as January 2013

(SAC ¶ 30), the SAC does not explain what actions Defendants took beyond the limitations period

that they might be relying upon as the basis for a claim. The Court thus cannot determine if

Plaintiffs could not reasonably have been expected to perceive an alleged violation that occurred

more than two years before they filed suit or if the violation only became apparent in light of later

events. The Court therefore declines to rule on whether the statute of limitations bars any of

Plaintiffs’ claims.

B. Ripeness

Defendants contend that none of Plaintiffs’ claims are ripe for adjudication. “Cases are

unripe when the parties point only to hypothetical, speculative, or illusory disputes as opposed to

actual, concrete conflicts.” Hinrichs v. Whitburn, 975 F.2d 1329, 1333 (7th Cir. 1992). Ripeness

has both a jurisdictional component and a prudential component. See id. The Supreme Court has

developed a two-part test for evaluating ripeness in which this Court, “must first weigh the fitness

of the issues for judicial decision. . . [and] then evaluate the hardship to the parties of withholding

court consideration.” Id. (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). Defendants’

argument on ripeness is that Plaintiffs’ claims stem from the liquor and business licenses that

Markham has issued to Olympian and about which there are, according to Defendants, pending

proceedings before Markham.

The Court rejects Defendants’ arguments for two reasons. First, this Court lacks sufficient

information about the present state of administrative proceedings regarding Olympians’ licenses

to make the sort of conclusions on a motion to dismiss that Defendants urge. Second, even if there

are ongoing administrative proceedings, Plaintiffs’ claims do not arise from the dispute about

which licenses Plaintiffs had and whether those licenses should be revoked or restricted. Rather,

Counts I, II, III, and XIII arise from citations that Olympian received in a manner that allegedly

violated their due process, equal protection, and free speech rights. Counts IV and XII arise from

police actions in unlawfully entering Olympian’s property and unlawfully conducting searches

and seizures. Counts VI and VII are Monell claims that arise from Counts I through IV. And

Counts VIII and X arise from Markham’s demands that Olympian pay fines deriving from

citations that it had received. All of those claims arose before any proceedings that are pending

now, and none of them are dependent on administrative proceedings about what licenses

Olympian has and whether Olympian should keep those licenses. Even if Markham revokes

Olympian’s licenses, Plaintiffs would not be precluded from prosecuting the claims in their SAC.

The claims are therefore fit for a judicial decision and it would impose an unjust hardship on

Olympian for this Court to withhold its consideration of Olympian’s claims. The Court thus

concludes that Olympian’s claims are ripe for its consideration.

C. Rooker–Feldman Doctrine

Defendants contend that this Court lacks subject-matter jurisdiction over Plaintiffs’ claims

because the claims are, in essence, appeals of Markham’s administrative decision to temporarily

suspend (and then reinstate with conditions) Olympian’s liquor license and of a TRO entered in

state court in December 2017. The Rooker–Feldman doctrine forbids lower federal courts from

reviewing orders issued by state courts. Van Harken v. City of Chicago, 103 F.3d 1346, 1349 (7th

Cir. 1997) (citing Rooker v. Fidelity Tr. Co., 263 U.S. 413, 416 (1923); D.C. Court of Appeals v.

Feldman, 460 U.S. 462, 476 (1983)). To the extent Defendants’ argument concerns an

administrative decision made by the City of Markham, however, the Rooker–Feldman doctrine

does not bar the suit because it does not apply to state administrative proceedings. Id. at 1348–49.

And to the extent that Defendants’ argument concerns a TRO entered in state court, Defendants

have failed to provide the Court with the information necessary to rule—the TRO is not described

in the SAC and no documents about it are attached to the motion to dismiss. Defendants do not

even identify the name and docket number of the case to which they are referring. On its face, the

SAC does not appear to seek review of any state-court orders. And without further information

about the state-court proceedings, the Court cannot determine whether Plaintiffs are, in fact,

seeking review of a state-court order. The Court concludes that, based on the information before

it, the Rooker–Feldman doctrine does not deprive it of subject-matter jurisdiction over any of

Plaintiffs’ claims.

D. Exhaustion

Defendants contend that Plaintiffs have failed to exhaust remedies available to them under

state law. Defendants’ exhaustion arguments regarding Plaintiffs’ due process claims have been

addressed above. And because this Court dismisses Count VII and Plaintiffs’ state law claims, the

Court will not address Defendants’ exhaustion arguments regarding those claims at this time.

E. Immunity to Punitive Damages

Defendants contend that Plaintiffs’ § 1983 claims against Markham and § 1983 claims

against other Defendants in their official capacity should be dismissed to the extent they seek

punitive damages. In a § 1983 case, municipalities and government officials sued in their official

capacities are immune from punitive damages. See City of Newport v. Fact Concerts, Inc., 453

U.S. 247, 271 (1981) (municipalities); Hill v. Shelander, 924 F.2d 1370, 1372–73 (7th Cir. 1991)

(officials sued in their official capacities). That immunity can be waived by federal or state law.

See Hill, 924 F.3d at 1373. But Plaintiffs have not responded to Defendants’ argument or made

any argument that federal or state law has waived the immunity. That failure to respond results in

a waiver of any argument Plaintiffs could make. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466

(7th Cir. 2010) (collecting cases). Therefore, the Court dismisses all claims for punitive damages

for § 1983 claims against Markham and Defendants sued in their official capacities.

CONCLUSION

For the reasons stated above, the Court grants in part and denies in part Defendants’

motions to dismiss. (Dkt. Nos. 57, 63.) The Court dismisses Counts II, IV, V, VI, VII, VII, X,

XI and XII without prejudice. The Court also dismisses Counts I and II as asserted against

Defendants Agpawa, Miller, Jones, and Barron without prejudice. The Court dismisses Count XIII

against MLCC with prejudice and against Agpawa without prejudice. The motions are otherwise

denied as to Counts I, II, and XIII. Finally, the Court dismissed all claims asserted by Plaintiffs

Bradford and Irvin without prejudice.

ENTERED:

Dated: September 30, 2020 bade nO

Andrea R. Wood

United States District Judge