McNease v. Laldee

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL A. McNEASE et al,

Plaintiffs,

Case No. 19-cv-7280

v.

Judge Mary M. Rowland

DEPUTY GIZELL LALDEE et al,

Defendants.

MEMORANDUM OPINION AND ORDER

Michael A. McNease (“McNease”), Gladys R. French, Administrator of the

Estate of Donicse A. Redmond, Maurice McNease, and TM, a minor child, by and

through Michael A. McNease, her natural father and next friend (“Plaintiffs”), bring

this action pursuant to 42 U.S.C. § 1983 (“§ 1983”) alleging that Defendants violated

their constitutional rights under the Fourth and Fourteenth Amendments.1 Before

the Court is a motion to dismiss by four Cook County Sheriff’s Deputies: Deputy Gizell

Laldee, Deputy Ralph Marroquin, Deputy Christopher Kolasa, and Deputy Timothy

Wilson (“Defendants” or “Deputies”). (Dkt. 38). For the reasons stated below, this

motion to dismiss is granted in part and denied in part.

Background

The following factual allegations are taken from the Amended Complaint

(Dkt. 37) and are accepted as true for the purposes of this motion to dismiss. See W.

1 The Amended Complaint also contains state law claims against Defendant Lavano Foster, who is in

default. Those claims will not be addressed here. The Sheriff’s Deputies are named only in Counts I,

II, and III.

Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016). Plaintiffs were

tenants at a residential property located at 756 East 148th Street in Dolton, Illinois

from 2008 until 2017. The property was in need of repair, and in May of 2017

McNease asked his landlord, Lavano Foster (“Foster”) to address a broken water

pump, basement flooding, the smell of sewage, and ceiling leaks. Foster did not

address these concerns, so in June of 2017 McNease reported this damage to the

Housing Authority. After a subsequent inspection, Foster was ordered to make

repairs.

In an act of retaliation, Foster went to the Circuit Court of Cook County on

July 21, 2017 and filed a forcible entry and detainer action against McNease. This

action falsely alleged that McNease owed $748.00 in overdue rent and requested an

order of possession with which to evict him. McNease was never served a summons.

Instead, Foster arranged to have another individual, impersonating McNease, accept

personal service at a different residential property he owned (12874 Green Street,

Chicago, IL 60628).

On August 24, 2017, McNease paid Foster $748.00 via money order (although

he contends that this money was not yet owed). In exchange, Foster agreed not to

pursue eviction. However, the next day Foster went to court and obtained a default

judgment against McNease, and an order of possession valid for 120 days. Only

McNease was named in this order of possession, not his partner or children. On or

about September 18, 2017, Foster paid to have the Cook County Sheriff’s Department

evict McNease. The Sheriff’s Department mailed McNease a “final notice” of this

eviction on October 4, 2017.

The next day on October 5th, McNease went to court and provided proof of the

$748.00 money order. The court vacated the order of possession. McNease filed a copy

of the October 5th order with the Cook County Sheriff’s Department. He also provided

a copy of this order to Foster and continued to pay rent from July through October.

Nevertheless, on November 6, 2017, McNease and his family were evicted by four

Sheriff’s Deputies: Deputy Gizell Laldee, Deputy Ralph Marroquin, Deputy

Christopher Kolasa, and Deputy Timothy Wilson. They entered the McNease

residence (which had been locked), changed the locks, and gave Foster possession of

all personal property in the home. They also opened and searched all of the drawers

in the home, taking photographs of their contents.

McNease returned from work to find this eviction taking place, and was not

allowed to enter his residence. He explained to the Sheriff’s Deputies that he had an

order vacating the order of possession, but they refused to allow him to retrieve it.

Foster, who was also on the premises, admitted that the eviction was retaliatory,

saying “What the fuck you thought—you goin’ to report me?” Foster and “his agents”

(though not, apparently, the Sheriff’s Deputies) then removed most of the McNease

family’s belongings from the residence, including the contents of a safe, and destroyed

the remaining items.

On November 6, 2017, the day of his eviction, McNease filed an emergency

motion to vacate the order of possession once again. That motion was granted on

November 7, 2017, and because the order was difficult to read a second order was

produced on November 8, 2017. McNease and his family took up residence in their

home once again, and Foster was ordered to return all the personal property he had

removed or pay a fine of $100.00 per day. As of the date the Amended Complaint was

filed, Foster had yet to return that property or pay his fine, and he has been found in

civil contempt of court.

Legal Standard

A motion to dismiss tests the sufficiency of a complaint, not the merits of the

case. See Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). “To survive a

motion to dismiss under Rule 12(b)(6), the complaint must provide enough factual

information to state a claim to relief that is plausible on its face and raise a right to

relief above the speculative level.” Haywood v. Massage Envy Franchising, LLC, 887

F.3d 329, 333 (7th Cir. 2018) (quotations and citation omitted). See also Fed. R. Civ.

P. 8(a)(2) (requiring a complaint to contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.”). A court deciding a Rule 12(b)(6)

motion accepts the plaintiff’s well-pleaded factual allegations as true and draws all

permissible inferences in the plaintiff’s favor. Fortres Grand Corp. v. Warner Bros.

Entm't Inc., 763 F.3d 696, 700 (7th Cir. 2014). A plaintiff need not plead “detailed

factual allegations”, but “still must provide more than mere labels and conclusions or

a formulaic recitation of the elements of a cause of action for her complaint to be

considered adequate under Federal Rule of Civil Procedure 8.” Bell v. City of Chi.,

835 F.3d 736, 738 (7th Cir. 2016) (citation and internal quotation marks omitted).

Dismissal for failure to state a claim is proper “when the allegations in a complaint,

however true, could not raise a claim of entitlement to relief.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 558, 127 S. Ct. 1955, 1966 (2007). Deciding the plausibility

of the claim is “a context-specific task that requires the reviewing court to draw on

its judicial experience and common sense.” McCauley v. City of Chi., 671 F.3d 611,

616 (7th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

Analysis

The Sheriff’s Deputies make various arguments in support of their motion to

dismiss. These are addressed in turn, below.

I. Immunity

A. Sovereign Immunity

States and state agencies are immune from suit under the Eleventh

Amendment “unless the state consents or Congress abrogates the state’s immunity.”

Thomas v. Sheahan, 370 F. Supp. 2d 704, 708 (N.D. Ill. 2005) (citing Scott v. O’Grady,

975 F.2d 366, 369 (7th Cir. 1992)). Whether the Cook County Sheriff’s Department or

the Sheriff’s Deputies are considered a state agency or state agents when being sued

in their official capacities depends on whether they “act[ed] to enforce court orders

issued by state courts.” YHWHnewBN v. Cty. of Cook, IL, No. 02 C 5371, 2003 WL

22736216, at *1 (N.D. Ill. Nov. 19, 2003) (citing Scott v. O’Grady, 975 F.2d 366, 369

(7th Cir. 1992)). But here, the Court “need not determine whether the sheriff’s

deputies are state officials in order to weigh defendants’ argument that they are

entitled to Eleventh Amendment immunity, because they were not sued in their

official capacity.” Thomas v. Sheahan, 370 F. Supp. 2d 704, 708–09 (N.D. Ill. 2005).

This is because the Eleventh Amendment does not bar claims brought against state

officials in their individual capacities. See Hafer v. Melo, 502 U.S. 21, 27–28 (1991);

see also Freeman v. Univ. of Illinois at Chicago, No. 17 CV 1776, 2018 WL 701282, at

*2–3 (N.D. Ill. Jan. 29, 2018). McNease is suing the Deputies in their individual

capacities. Compare Giljen v. Dart, No. 11 CV 5581, 2012 WL 1284006, at *3 (N.D.

Ill. Apr. 16, 2012) (County Sheriff sued in his official, not individual, capacity was a

state actor when he carried out an eviction and therefore had sovereign immunity

under the Eleventh Amendment). These Deputies are not entitled to sovereign

immunity.

B. Quasi-Judicial Immunity

Nor are they entitled to quasi-judicial immunity.2 As a general rule qualified,

not absolute, immunity “is sufficient to protect law enforcement officers in the

conduct of their official duties.” Richman v. Sheahan, 270 F.3d 430, 434 (7th Cir.

2001) (citing Malley v. Briggs, 475 U.S. 335, 340–41 (1986); Pierson v. Ray, 386 U.S.

547, 557, (1967)). Judges, by contrast, are entitled to absolute immunity with regard

to their judicial conduct. See Mireles v. Waco, 502 U.S. 9, 11–12 (1991). The purpose

of judicial immunity, and by extension quasi-judicial immunity, is to confine disputes

over judicial decisions to the appellate process and protect judicial independence. See

2 The Seventh Circuit has held that “quasi-judicial immunity is a defense too steeped in facts for

resolution on a motion to dismiss.” Schneider v. Cty. of Will, Ill., 528 F. App’x 590, 592 (7th Cir. 2013)

(denying Sheriffs quasi-judicial immunity). The Court is prepared to rule on this issue, but if the

factual record develops during discovery in a manner that contradicts relevant allegations in the

Amended Complaint, the Deputies may raise this argument again.

Richman, 270 F.3d at 434–35 (citations omitted). The Seventh Circuit has

occasionally extended quasi-judicial immunity to certain “subordinate” officials when

“functions that are more administrative in character have been undertaken pursuant

to the explicit direction of a judicial officer” in order to “prevent court personnel and

other officials from becoming a lightning rod for harassing litigation aimed at the

court.” Id. at 435 (citing Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992); Ashbrook

v. Hoffman, 617 F.2d 474, 476 (7th Cir.1980)).

The Defendants principally rely on one case in their briefs: Henry v. Farmer

City State Bank, 808 F.2d 1228 (7th Cir. 1986). There the defendants were officers

who had evicted the plaintiff based on a valid order of possession. The Seventh Circuit

found quasi-judicial immunity, saying that “[t]he proper procedure for a party who

wishes to contest the legality of a court order enforcing a judgment is to appeal that

order and the underlying judgment, not to sue the official responsible for its

execution.” Id. at 1239. The Seventh Circuit has since distinguished that case,

however, saying that it only “recognized absolute immunity for law enforcement

officials [. . .] enforcing a foreclosure judgment” because “the source of the plaintiff's

wrong in Henry was the judge’s order itself, and we reasoned that a suit against the

officers was not the appropriate vehicle for challenging the validity of that order.” See

Richman, 270 F.3d at 436–37 (citing Henry, 808 F.2d at 1238–39) (emphasis added).

Moreover, “the extension of absolute immunity is not primarily to protect the

enforcement function performed by the deputies, but rather to protect the judicial

decision-making function by discouraging collateral attacks and encouraging

appeals.” Id. Arguments in favor of quasi-judicial immunity for officers therefore

“have less force when, as in this case, the challenged conduct is the manner in which

the judge’s order is carried out, and not conduct specifically directed by a judge.”

Richman, 270 F.3d at 437 (citations omitted).

McNease is not suing the Deputies as a means of circumventing the appeals

process because he disagrees with the contents of the order of possession they were

enforcing. In fact, he went through the appeals process in a timely manner getting

the August order of possession vacated. Nor is he trying to harass the court that

passed down that order. Rather, he is suing the Deputies because of the manner in

which they carried out the eviction. Specifically, their failure to take notice of the fact

that the order of possession had been vacated, their refusal to allow McNease to

retrieve and present proof of that fact, and their invasive search of his drawers during

the eviction. Therefore, the Deputies are not entitled to quasi-judicial immunity.

C. Qualified Immunity

Qualified immunity “protects government officials from damages liability

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Campbell v. Kallas, 936 F.3d

536, 545 (7th Cir. 2019) (quotations and citations omitted). The Plaintiffs allege

violations of various constitutional rights, but both the Deputies and the Plaintiffs

confine their qualified immunity arguments to the Fourth Amendment.

First the Court must determine whether the Plaintiffs have alleged that their

constitutional rights were violated. The Deputies point out that the Seventh Circuit

has held that residents are no longer protected by the Fourth Amendment when they

have been evicted, because after eviction they have “no lawful right to be in the

residence.” United States v. Curlin, 638 F.3d 562, 565 (7th Cir. 2011). But McNease

and his family did have a lawful right to their home and its contents because the

order of possession had been vacated. Therefore, the Plaintiffs have made allegations

sufficient to allege that a Fourth Amendment violation.

The Court’s next inquiry is whether this was a clearly established

constitutional right of which a reasonable officer would have known. It is clearly

established that the seizure of a dwelling and its contents during eviction pursuant

to an invalid order of possession can trigger the Fourth Amendment. See, e.g., Soldal

v. Cook Cty., Ill., 506 U.S. 56, 58, 68–69 (1992) (Fourth Amendment right to be free

from unreasonable seizures was implicated when the owner of an Illinois trailer park

evicted a resident and seized his trailer two weeks before eviction proceedings were

scheduled to conclude with the assistance of Sheriffs); see also Zoretic v. Darge, 832

F.3d 639, 644 (7th Cir. 2016) (Sheriffs not entitled to summary judgment on Fourth

Amendment claims where they had entered home to evict occupants pursuant to an

outdated order of possession that had merely been re-stamped by the clerk of court).

The order of possession that prompted the Plaintiffs’ eviction was, by the time it was

executed, invalid.

But in the case now before the Court, the dispositive question is whether a

reasonable officer would have known that their actions violated clearly established

law under the circumstances described in the Amended Complaint. The Deputies do

not seriously contest whether an eviction pursuant to an invalid order of possession

would be unconstitutional. Rather, they argue that because the order of possession

appeared valid, a reasonable officer would not have known they were violating a

constitutional right.

The Plaintiffs argue that a reasonable officer would have known the order was

invalid for three reasons. First, because it only named McNease not his family

members. Second, because McNease had filed the order vacating that order of

possession with the Sheriff’s office under the same case number a month before the

eviction. And third, because McNease himself offered to show the Deputies a copy of

the order vacating the order of possession during the eviction.

First, the fact that only McNease was named on the order of possession does

not mean that a reasonable officer would have known they were executing an invalid

order. The Plaintiffs allege “upon information and belief” that the Cook County

Sheriff’s policy is only to evict individuals specifically named in an order of possession

(Dkt. 37, ¶ 36–37). The Court assumes, for the purposes of this motion, that the

Plaintiffs have accurately described the Sheriff’s policy.3 However, even assuming

the Sheriff’s office usually only evicts named tenants does not mean that a valid order

3 This is a generous assumption. Elsewhere in their briefs the Plaintiffs cite Rembert v. Sheahan, No.

92 CV 0067, 1994 WL 325796, at *4 (N.D. Ill. July 7, 1994), vacated, 62 F.3d 937 (7th Cir. 1995). In

vacating Rembert, the Seventh Circuit noted that “[i]n 1993 [the Cook County] Sheriff apparently

changed his eviction practices[.] Although the new practice was to evict only tenants personally named

in the order of possession, the new practice had two exceptions. First, if one person named in the order

of possession was found to reside on the premises, all occupants would be evicted. [. . .] The record fails

to reveal exactly what the Sheriff's present practice is, however.” Rembert v. Sheahan, 62 F.3d 937,

940, 942 (7th Cir. 1995).

of possession only authorizes it to evict named tenants.4 The Plaintiffs have not

adequately alleged that the order of possession was invalid against McNease family

members on its face. And moreover, the inclusion of only one name, even if in error,

would not have prompted a reasonable officer to inquire about the validity of the order

more generally, or to discover the subsequent order that invalidated it.

The fact that McNease filed an order vacating the order of possession with the

Sheriff’s Department on October 5, 2017, over a month before his eviction on

November 6, 2017, is more persuasive. According the Amended Complaint, McNease

brought the vacating order to the Sheriff’s Department at the Daley Center the same

day he obtained that order.5 (Dkt. 37, ¶ 25). Despite the Defendants’ arguments to

the contrary, the October 5th order is recognizably labeled with the same case

number as the earlier order of possession it vacated, although the case numbers are

in slightly different formats (“17-m6-7347” and “2017 600 7347” respectively). (Dkt.

37, Exs. C, D).6 The vacating order says, in legible handwriting, “Mr. McNease in

court to vacate the 8-25-17 order of possession.” It goes on to note that McNease

“show[ed] the Court a money order for $748.00 payable to Lavano Foster, dated 8-24-

4 The Deputies note that 735 ILCS 5/9-107.5 allows “unknown occupants not named in the initial

summons” to be evicted and gives them seven days after eviction to contest the order of possession by

filing a written petition with the clerk of the court that issued that order.

5 Plaintiffs also argue in their briefs that in response to this filing the “Sheriff’s Office acknowledge[d]

receipt.” (Dkt. 41, 11). Because this fact does not appear in the Amended Complaint, the Court did not

consider it while deciding this motion.

6 The court may consider “documents attached to the complaint[s], documents that are critical to the

complaint[s] and referred to in [them], and information that is subject to proper judicial notice,” along

with additional facts set forth in Plaintiffs' opposition briefs, so long as those additional facts “are

consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20 (7th Cir.

2013) (internal quotation marks omitted).

17” and concludes that on those grounds “the O.P. of 8-25-17 is vacated.” (emphasis

original). Id.

Third, McNease himself offered to show the Deputies a copy of this order when

they came to evict him. If, due to some oversight or clerical error, the Deputies were

not appraised of the vacating order when they arrived, this ought to have prompted

them to make further inquiries. They need not have allowed McNease to enter his

home if they believed that presented a security risk. Instead, they could have entered

the home and retrieved the order themselves, or called their own filing administrator

to verify whether the order of possession had indeed been vacated.

One final note, the Seventh Circuit has observed that “a complaint is generally

not dismissed under Rule 12(b)(6) on qualified immunity grounds.” Alvarado v.

Litscher, 267 F.3d 648, 651 (7th Cir. 2001). This is because “the plaintiff is not

required initially to plead factual allegations that anticipate and overcome a defense

of qualified immunity.” Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir.

2000). When the Court “would greatly benefit from a more robust record” and

qualified immunity “depends on ‘particular facts’” not yet in the record, declining to

dismiss at the pleading stage is appropriate. Reed v. Palmer, 906 F.3d 540, 553 (7th

Cir. 2018).

Viewing the facts in the Amended Complaint in the light most favorable to the

Plaintiffs, the Court concludes that they have pled facts sufficient to show that it was

unreasonable for the Deputies to not have verified the status of the order of

possession. See Campbell v. Kallas, 936 F.3d 536, 546 (7th Cir. 2019) (“[Q]ualified

immunity protects all but the plainly incompetent or those who knowingly violate the

law.”). The Plaintiffs may proceed with their Fourth Amendment claims against the

Deputies, and the Deputies may raise their qualified immunity arguments following

discovery.

II. Failure to State a Claim

A. Fourth Amendment Claims

For the reasons set forth above, the Amended Complaint includes allegations

sufficient to plausibly implicate the Fourth Amendment. Based on these allegations,

the Court concludes for purposes of this motion to dismiss that the home and its

contents were seized, the drawers were searched, and their contents were

photographed by the Deputies. Next, the Court must determine whether, taking the

facts in the Amended Complaint as true and drawing all reasonable inferences in the

Plaintiffs’ favor, they state a claim that those searches and seizures were

unreasonable.

The Deputies seized the home and its contents in order to transfer possession

to Foster. They have articulated no reason for doing so other than to execute the

invalid order of possession. The Plaintiffs may move forward with this claim.

Although they deny searching or photographing the contents of drawers,7 the

Deputies argue, in the alternative, that this was a “protective sweep conducted during

an eviction that may have gone too far.” (Dkt. 38, 7). A protective sweep could

7 The Deputies also argue that Foster, the landlord, was the one who searched and photographed the

drawers. This may be born out in discovery, but it is not what the Plaintiffs allege in their Amended

Complaint.

independently justify those searches, if it were reasonable. The Fourth Amendment

rights of the McNease family must be balanced against the safety of the Deputies.

However, both sides acknowledge courts in this district have held that not all

protective sweeps performed during evictions are reasonable. See Thomas v.

Sheahan, 370 F.2d 704, 712 (N.D. Ill. 2005) (citing Maryland v. Buie, 494 U.S. 325

(1990) and Soldal, 506 U.S. at 66–67) (issue of fact existed as to whether protective

sweep was reasonable during eviction when only occupants were two sleeping

children and plaintiff blocked the doorway). The Deputies provide no caselaw

suggesting that searching drawers or photographing their contents was necessary to

protect officer safety. Compare, Curlin, 638 F.3d at 564 (protective sweep of bedroom

and walk-in closet reasonable because plaintiff had threatened to barricade himself

in and use a gun to resist eviction). The Plaintiffs have stated a cause of action in

Count I.

B. Fourteenth Amendment Procedural Due Process Claims

Count II of the Amended Complaint alleges that “Defendants [. . .] denied

Plaintiffs their Fourteenth Amendment procedural due process rights by evicting

them pursuant to a void Order of Possession” and by “failing to provide Plaintiffs with

reasonable notice prior to their eviction.” (Dkt. 37, ¶¶ 60–61). Procedural due process

guarantees notice and the opportunity to be heard, see Fuentes v. Shevin, 407 U.S.

67, 80 (1972), and an eviction is a deprivation of property rights to which the

procedural due process protections of the Fourteenth Amendment attach. See Greene

v. Lindsey, 456 U.S. 444, 454 (U.S. 1982). The Plaintiffs’ allegations fall short of

showing a denial of procedural due process under the Fourteenth Amendment,

however.

McNease received mailed notice that he was going to be evicted on October 4,

2017. It was this notice that prompted him to seek an order vacating the order of

possession. He had the opportunity to be heard on October 5, 2017, when he took that

notice to state court and had the order of possession vacated. The day after his

wrongful eviction, he again had the opportunity to be heard when the state court

returned him to his home and ordered Foster to return all of his property or pay a

fine of $100.00 per day.

The state court had no reason to send McNease a summons or a notice of

eviction after the October 5th notice, because as far as it was concerned there was no

valid order of possession pending. It had no reason to give him an additional hearing

before his eviction because the eviction had been vacated. The Sheriff’s Department

had no reason to send McNease additional notices for the same reason; McNease had

filed an order vacating the earlier order of possession. McNease did not receive a

second notice prior to his eviction because that eviction seems to have been, to quote

the Seventh Circuit and the United States Supreme Court, “random and

unauthorized.” Hansen v. Cannon, 122 F. App’x 265, 270 (7th Cir. 2004) (citing

Hudson v. Palmer, 468 U.S. 517, 533 (1984)) (“eviction without a court order is a good

example of “random and unauthorized” action”). And “when deprivations of property

are effected through random and unauthorized actions of state employees and the

state provides an adequate post-deprivation remedy, the requirements of due process

are satisfied, and the plaintiff may not maintain a § 1983 suit in federal court.” Wilson

v. Civ. Town of Clayton, Ind., 839 F.2d 375, 383 (7th Cir. 1988) (affirming dismissal

of procedural due process claims against Marshals after erroneous eviction). Count II

is dismissed with prejudice.

C. Fourteenth Amendment Equal Protection Claims

The Plaintiffs allege that “Defendants [. . .] treated all four Plaintiffs, who are

black Citizens of the United States, differently during the course of the eviction

because of their race and deprived them of their equal protection as required by the

Fourteenth Amendment of the United States Constitution.” (Dkt. 37, 65). This is a

conclusory statement, which the Court need not credit when ruling on a motion to

dismiss. See Bell v. City of Chi., 835 F.3d 736, 738 (7th Cir. 2016). No facts in the

Amended Complaint suggest that the Deputies acted with discriminatory intent

when they evicted the Plaintiffs, or treated the Plaintiffs differently than citizens of

other races in similar circumstances. See, e.g., Logan v. City of Evanston, No. 20 CV

1323, 2020 WL 6020487, at *5 (N.D. Ill. Oct. 12, 2020) (To survive a motion to dismiss

and “state a claim for violation of equal protection, the plaintiff must allege that (1)

he is a member of a protected class; (2) he was similarly situated to individuals who

are not in the protected class; (3) he was treated differently from those persons; and

(4) the defendant acted with discriminatory intent.”); compare, Cui v. Elmhurst Police

Dep’t, No. 14 C 8330, 2015 WL 5462138, at *5 (N.D. Ill. Sept. 17, 2015) (equal

protection violation claim against officer conducting eviction survived motion to

dismiss because Asian American tenant alleged officer believed his white landlord’s

version of events over plaintiffs). The two cases cited by the Plaintiffs in their

responsive brief are not to the contrary. See Stevens v. Housing Authority of South

Bend, 720 F. Supp. 2d 10138, 1032 (N.D. Ind. 2010) (dismissing equal protection claim

because evicted plaintiff “failed to set forth any evidence that [her landlord]

intentionally discriminated against her based on race in its decision to terminate her

lease.”); see also New Burnham Prairie Homes, Inc. v. Vill. of Burnham, 910 F.2d

1474, 1481 (7th Cir. 1990) (affirming summary judgment on equal protection claim

because plaintiff had merely alleged he was “treated unfairly as an individual” not as

a member of a protected group). Count III is dismissed without prejudice.

Conclusion

For the stated reasons, Defendants’ Motion to Dismiss (Dkt. 38) is granted in

part and denied in part. Counts II is dismissed with prejudice and Count III is

dismissed without prejudice.

ENTER:

Dated: March 18, 2021 [Vi but L/

“MARYM.ROWLAND

United States District Judge

17