GERALD DIX, Plaintiff-Appellant, v. EDELMAN FINANCIAL SERVICES, LLC, et al., Defendants-Appellees.
No. 18-2970
United States Court of Appeals For the Seventh Circuit
Argued September 17, 2020 — Decided October 19, 2020
Before KANNE and HAMILTON, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17-cv-6561 — Charles R. Norgle, Judge.
The experienced district judge dismissed Dix’s complaint for failure to state a claim. On appeal, we have focused on just one cause of action—Dix’s Fourth Amendment claim against a subset of the defendants—because the others are wholly frivolous. We conclude that Dix’s allegations as to that claim, like the rest, do not state a claim for relief, so we affirm the district court.
I. BACKGROUND
These facts are drawn from Dix’s amended complaint and—with notable exceptions explained in this opinion—are assumed to be true for purposes of this appeal. Gomez v. Randle, 680 F.3d 859, 861 (7th Cir. 2012). We have weeded out the bulk of Dix’s
Gerald Dix lived with Theresa Miller in her home in Lisle, Illinois, for nearly six years. Their relationship had once been romantic, but somewhere along the way it morphed into what Dix describes as a platonic “landlord-tenant” arrangement, albeit without a term or payment of rent. Dix would share living expenses with Miller and perform household chores. For her part, Miller would provide Dix with living space in her basement. But she also did all the things that no good landlady would do—“badger and harass” Dix for more money; force him to make repairs and do onerous tasks, such as serving her meals in bed; rummage through his mail and possessions; use his credit cards; clutter up every corner of the house; and keep the home in a “barely habitable” condition.
In 2017, Miller decided to sell her house and was advised by her realtor, Cheryl Shurtz, to “stage” it for prospective buyers. Miller told Dix to move out so she could prepare the house to be staged. He refused, so Miller called the police. Four or five officers responded and told Miller that she could not evict Dix without an order of the court. Undeterred, she called the police again the next day. This time, Officers Rob Sommer and Sean McKay arrived.
Officers Sommer and McKay allegedly knew that there had been no domestic disturbance and that Miller had been told she couldn’t remove Dix from her house without a court order. But they agreed to
Eventually, and in part because Miller and her “lazy” associate couldn’t finish the job themselves, Dix relented and agreed to vacate the house. He left to get a moving van, and when he returned, the officers allowed him into the home to retrieve his property but physically refused him access to certain rooms. After Dix gathered his things, Officer Sommer ordered him to hand over his keys to the house. Dix complied, and the officers told Dix not to return except to fetch his Dodge truck that still sat in the driveway.
In short order, Dix filed his initial complaint, pro se, in federal court. He asserted twelve causes of action against nine defendants. The district court struck the pleading as “replete with redundant, impertinent, and scandalous allegations.” The court permitted Dix to amend his complaint but warned that “frivolity may result in sanctions.”
Dix took up the offer to amend his complaint—but instead of improving it, he added seven causes of action, five defendants, and sixty-nine paragraphs of allegations. Among his nineteen claims was a federal cause of action under
The district court dismissed all of Dix’s claims with prejudice. Among other things, the court concluded that Dix did not adequately allege a Fourth Amendment violation because he was free to leave at any time and a potentially unlawful eviction under state law does not implicate the Fourth Amendment.
Dix appealed, again acting pro se. After reviewing Dix’s opening brief, we decided that he would benefit from appointed counsel on appeal. Dix refused counsel, so we appointed an amicus curiae instead. We instructed the amicus to focus on the only one of Dix’s nineteen claims that we felt was not completely frivolous—the Fourth Amendment claim.1
II. ANALYSIS
“We review a 12(b)(6) dismissal de novo and construe all allegations and any reasonable inferences in the light most favorable to the plaintiff. And while a complaint does not need ‘detailed factual allegations’ to survive a 12(b)(6) motion to
The Fourth Amendment states, in pertinent part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches or seizures, shall not be violated.”
Dix contends on appeal that the district court should not have dismissed his Fourth Amendment claim brought under
A. Dix Did Not Allege a Fourth Amendment Seizure.
“A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984); accord Segura v. United States, 468 U.S. 796, 806 (1984) (“A seizure affects only the person’s possessory interests; a search affects a person’s privacy interests.”); United States v. Burgard, 675 F.3d 1029, 1033 (7th Cir. 2012) (“[T]he critical question relates to any possessory interest in the seized object, not to privacy or liberty interests.”). So the first issue—whether Dix alleged that he suffered a “seizure” within the meaning of the Fourth Amendment—turns on whether he alleged facts sufficient to support the inference that he had some possessory interest in Miller’s home.2
Dix argues that he adequately alleged a possessory interest in Miller’s home because he refers to himself as Miller’s “tenant” and alleges that they “had an oral contract for their landlord-tenant relationship.” If that were true, then Dix
But Dix’s argument runs into a couple of problems. The first is that the existence of a landlord-tenant relationship is a legal conclusion that we can reject at the motion to dismiss stage. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”); Grange Mut. Cas. Co. v. Slaughter, 958 F.3d 1050, 1055 (11th Cir. 2020) (holding that an affirmation that “an enforceable lease existed” is “only a legal conclusion”); In re United Cigar Stores Co. of Am., 89 F.2d 3, 5 (2d Cir. 1937) (“[T]he facts do not justify the legal conclusion that … the relations of the parties were those of landlord and tenant.”). So Dix’s naked allegation that he “enjoyed the legal status and interest of a full-fledged tenant … is a self-generated legal conclusion to which this Court owes no deference.” Snyder v. Daugherty, 899 F. Supp. 2d 391, 407 (W.D. Pa. 2012).
The second problem for Dix is that the rest of his allegations actively undermine his conclusory assertion that he was a tenant and therefore had a possessory right to Miller’s home protected under the Fourth Amendment. Jacobsen, 466 U.S. at 113.
Under Illinois law, there are leases and there are licenses. A lease creates in the tenant a legal “interest … in the premises” and “right to possession.” Jones v. Kilfether, 139 N.E.2d 801, 803 (Ill. App. 1956). “[T]he essential elements of a lease include: (1) the extent and bounds of the property; (2) the term of the lease; (3) the amount of rent; and (4) the time and manner of payment. If any of these elements are missing, a lease has not been created … .” Millennium Park Joint Venture, LLC v. Houlihan, 948 N.E.2d 1, 19 (Ill. 2010) (citing Lannon v. Lamps, 368 N.E.2d 196, 199 (Ill. App. 1977)). The ultimate hallmark of a lease is the tenant’s “exclusive possession of the premises against all the world, including the owner.” Id. at 18 (quoting 53 C.J.S. Licenses § 133 (2005)).
A license, on the other hand, “merely confers a privilege to occupy the premises under the owner.” Id. (quoting 53 C.J.S. Licenses § 133 (2005)). Unlike a lease, a license is “ordinarily revocable at the will of the grantor,” id. at 19 (citing Jackson Park Yacht Club v. Ill. Dep’t of Local Gov’t Affairs, 417 N.E.2d 1039, 1043 (Ill. App. 1981)), and “is not an interest in land,” Martin v. See, 598 N.E.2d 321, 330 (Ill. App. 1992) (citing Keck v. Scharf, 400 N.E.2d 503, 505 (Ill. App. 1980)); see also Robinson v. Robinson, 429 N.E.2d 183, 189 (Ill. App. 1981) (“[A] possessory
Turning to Dix’s amended complaint, we find none of the characteristics of a lease or tenancy under Illinois law. Dix alleges in excruciating detail how he had virtually no possession or control over any part of the home—he had no ability to prevent Miller from going through his things, opening his mail, mingling her property with his, or storing her personal items in every corner of the house (“with the exception of one drawer in a small nightstand”). He kept his own stuff in “banker boxes, plastic tubs and overnight bags” and had so little privacy in the home that he resorted to locking his possessions in his truck. And he never mentions the word “rent.” Only one reasonable inference can be drawn from these allegations: that Miller maintained complete possession and control over her home but granted Dix a revocable license to stay there.3
What’s more, as Dix’s amended complaint makes abundantly clear, Miller revoked Dix’s license. “A verbal license, such as the one in the present case, may be revoked by express notice, by acts which are entirely inconsistent with enjoyment of the use, or by appropriating the land in question to any use contrary to its enjoyment by the licensee.” Keck, 400 N.E.2d at 506. Miller demanded that Dix leave—about as clear a revocation as one could expect.4
And when a license is revoked, the licensee becomes a trespasser. See JCRE Holdings, LLC v. GLK Land Tr., 136 N.E.3d 202, 205 (Ill. App. 2019) (“[U]pon termination of a license, the licensee’s failure to remove its property from the licensor’s land constitutes a trespass.”); cf. People v. Brown, 501 N.E.2d 1347 (Ill. App. 1986) (affirming trespass conviction of live-in boyfriend who entered home after his license was revoked).
“[A] trespasser’s wrongful presence forestalls a Fourth Amendment challenge.” United States v. Sawyer, 929 F.3d 497, 500 (7th Cir. 2019) (citing United States v. Battle, 637 F.3d 44, 49 (1st Cir. 2011) (defendant who overstayed his visit became a trespasser with no “legally sufficient interest in the apartment to mount a Fourth Amendment challenge”); United States v. Struckman, 603 F.3d 731, 747 (9th Cir. 2010) (“[H]ad Struckman been an actual trespasser, he would not be able to claim the protections of the Fourth Amendment.”); United States v. Hunyady, 409 F.3d 297, 303 (6th Cir. 2005)).5
In short, by the time Officers Sommer and McKay arrived, Dix had no right or privilege to be in Miller’s home whatsoever. He therefore could not have had a “possessory interest” in it. “A seizure of property occurs when there is ‘some meaningful interference with an individual’s possessory interests in that property,’ and here there was none.” United States v. Jones, 565 U.S. 400, 419 (2012) (Alito, J., concurring) (quoting Jacobsen, 466 U.S. at 113). So Dix does not sufficiently allege a seizure within the meaning of the Fourth Amendment.6
B. Dix Did Not Allege that Any Seizure Was Unreasonable.
Even if Dix alleged that there was a Fourth Amendment “seizure,” to “state a constitutional violation,” he must also allege that “the seizure … was ‘unreasonable.’” White v. City of Markham, 310 F.3d 989, 993 (7th Cir. 2002). Case law compels our next conclusion: that even if a seizure occurred here, it was reasonable.
In White, a police officer was called to a home in response to an apparent domestic dispute. Id. at 991. When he arrived, heated words as well as objects were flying between the nonresident homeowner, Witcher, and her nephew, White, who lived in Witcher’s home. Id. at 991–92. Witcher had ignited the dispute when she told White that she wanted him out. Id. So the officer “was forced to ask either Witcher, the admitted nonresident homeowner, or White, her relative and resident guest, to leave the premises.” Id. at 996. We held that “White’s allegations of a right to remain on Witcher’s property, in the face of her demand that he leave, [were] tenuous at best,” and “[b]ased on this unique situation, it could not have been unreasonable for [the officer] to request White, the family member with the apparently inferior property interest in remaining on the premises, to vacate the explosive situation.” Id.
Dix contends that this case is nothing like White because here, there was no domestic disturbance and, as a tenant, he had more than a “tenuous” right to be in
We likewise reject Dix’s conclusory allegation that there was no domestic disturbance. Miller had to call the police—not once, but twice—to remove a man from her home whom she had previously let live there but who now refused to leave. When Officers Sommer and McKay arrived, Dix was upset enough with Miller and her “lazy” accomplice for how they were removing his property from the home to begin hurling epithets at them in the officers’ presence. In the apt words of Dix’s amended complaint, “the situation became deranged.” His allegation that there was no domestic disturbance, then, is not only an “unsupported conclusion[] of fact” but implausible on its face. Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002).
In some ways, this case is even clearer than White. Unlike the defendant there—a “nonresident homeowner” and family member of the plaintiff—the defendant here was the resident homeowner who lived under the same roof as the (unrelated) man she wanted removed. It was entirely reasonable for the officers to separate two quarreling cohabitants by removing, at the homeowner’s request, the one with the obviously inferior—indeed, non-existent—property interest. White, 310 F.3d at 996. This comfortably qualifies as one of those instances in which “police officers may, as part of their community caretaking function, separate parties to a domestic disturbance by ordering one party to leave the premises,” and “the officers’ decision to order [Dix] to leave the house was reasonable since he appeared to have the inferior possessory interest in the property.” Lunini v. Grayeb, 184 F. App’x 559, 562 (7th Cir. 2006) (following White, 310 F.3d at 996). What, we wonder, was the more reasonable thing for these officers to have done? Leave the scene and let Miller and Dix duke it out between themselves? No case supports such an argument.7
In addition, the (apparently erroneous) legal advice that Miller received from other officers the day prior—that she needed a court order to evict Dix—does not make the conduct of Officers Sommer and McKay any less reasonable considering the acrimonious circumstances alleged. To be sure, Dix does allege that Officers Sommer and McKay knew of that previous conversation. But an officer’s “decision [i]s not unreasonable even if it [i]s shown at a later time that the officer reached an incorrect conclusion.” Id. Even if Officers Sommer and McKay were “incorrect” in their decision to remove Dix “when all of the facts were clear, … a police officer cannot be expected to make that determination when [two cohabitants] are shouting at each other. Nor was it unreasonable to use the threat of arrest to accomplish this goal.” White, 310 F.3d at 996. To the contrary, it was well within “the scope of [the officers’] community caretaking function” given the fracas unfolding around them. Lunini, 184 F. App’x at 562.
We conclude that if there were a seizure, it was reasonable.
C. Dix Did Not Allege a Conspiracy Under 42 U.S.C. § 1983 .
The above discussion compels us to reject Dix’s third argument that he adequately
“To establish Section 1983 liability through a conspiracy theory, a plaintiff must demonstrate that: (1) a state official and private individual(s) reached an understanding to deprive the plaintiff of his constitutional rights, and (2) those individual(s) were willful participants in joint activity with the State or its agents.” Brokaw v. Mercer Cnty., 235 F.3d 1000, 1016 (7th Cir. 2000) (quoting Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998)). Moreover, “a plaintiff must allege and prove both a conspiracy and an actual deprivation of rights; mere proof of a conspiracy is insufficient to establish a section 1983 claim.” Hampton v. Hanrahan, 600 F.2d 600, 622 (7th Cir. 1979), cert. granted in part, judgment rev’d in part on other grounds, 446 U.S. 754 (1980).
As we have seen, Dix did not allege an actual deprivation of rights because there was no Fourth Amendment seizure. And Dix “cannot establish that defendants conspired to violate his Fourth Amendment right because, even if the officers ‘seized’ [Dix’s property] when they ordered him to leave [Miller’s home], they did so lawfully. ‘A person may not be prosecuted for conspiring to commit an act that he may perform with impunity.’” Lunini, 184 F. App’x at 563 (quoting House v. Belford, 956 F.2d 711, 720 (7th Cir. 1992)).
D. The Officers Are Entitled to Qualified Immunity.
And so we come to the final issue of qualified immunity. “Public officials are immune from suit under
Though it matters little now, even if the officers’ actions were unlawful, they would be entitled to qualified immunity. Our most analogous case makes that clear enough. White, 310 F.3d at 997 (“[B]ecause the eviction was not unreasonable under these circumstances, the district court correctly granted [the officers] qualified immunity.”); see also Spiegel v. City of Chicago, 106 F.3d 209, 210 (7th Cir. 1997) (holding that a former resident’s “right not to have the police prevent him from entering an apartment that was in the possession of the landlord was not clearly established at the time the police blocked his attempt to enter”).
One other case, Higgins v. Penobscot Cnty. Sheriffʹs Dep’t, 446 F.3d 11 (1st Cir. 2006), is worth discussion. The plaintiff there, Higgins, awoke one morning, donned his robe, and poured himself a cup of coffee. Id. at 12. Peaceful though it
Higgins sued the officer, but the court held that the officer was entitled to qualified immunity. Id. at 14–15. Among the facts supporting this conclusion were that the officer “encountered a volatile and potentially dangerous situation—described by Higgins himself as a ‘screaming contest’—when he arrived”; “[t]he subject of the dispute was a man who … claimed a right to occupy a building,” but the man “provided no written lease or other documentation to support his claimed occupancy right[ and] only made a conclusory verbal claim of entitlement”; and “[o]pposing this man were several members of his own family, all of whom disputed his claimed entitlement.” Id. at 14.
Add that case to our own, and it’s clear that, to the extent existing case law put the officers on notice of anything, it was that they were not violating the Constitution by removing a quarreling cohabitant at the request of the homeowner in these circumstances.
The cases that Dix relies on, on the other hand, are simply too different in too many ways to have clearly established that these officers’ conduct, in these circumstances, was unlawful. Dix primarily relies on Soldal, 506 U.S. 56. But there, the evicted persons were not mere licensees (let alone trespassers) and the Court did not determine whether the seizure was reasonable under the circumstances. See Hurem v. Tavares, 793 F.3d 742, 747 (7th Cir. 2015) (“In Soldal, the Supreme Court did not reach the question whether the removal of the mobile home was unreasonable.”). Perhaps most important, the officers “assisted in a forcible eviction that was patently unlawful.” Cofield v. Randolph Cnty. Comm’n, 90 F.3d 468, 471 (11th Cir. 1996) (emphasis added) (citing Soldal, 506 U.S. at 56–60).
And in Dix’s other case, Thomas, the plaintiff (a tenant) had a clear possessory interest in the property and did not live with the homeowner, there were no exigent circumstances warranting removal, and the court found that the officers were entitled to qualified immunity. 304 F.3d at 566, 567; id. at 583 (Gilman., J. concurring) (“[A] reasonable person in the officers’ position would not have known that the eviction in question violated the plaintiffs’ Fourth Amendment right[s].”).
Neither Soldal nor Thomas clearly established that the officers’ conduct here violated Dix’s constitutional rights. Dix’s “argument essentially invites us to hold, as a matter of constitutional law, that a police officer, summoned to mediate a volatile dispute involving an alleged trespasser, is obliged to leave the situation unresolved simply because the trespasser represents himself to be entitled to be there. To state the proposition is to expose its foolishness.” Higgins, 446 F.3d at 15.
* * *
For all the above reasons, we conclude that Dix’s Fourth Amendment claim against Miller and Officers Sommer and McKay was properly dismissed. We do not need to address Dix’s many other claims
But there is another matter that we must address. Gerald Dix is no stranger to this court or any other level of the federal judiciary. He has a twenty-year history of filing patently frivolous lawsuits and appeals—and being admonished for doing so. E.g., Dix v. Unknown TSA Agent No. 1, 588 F. App’x 499, 499 (7th Cir. 2015) (“Because Dix has filed two frivolous appeals within the last few months, we warn him that further frivolous appeals may result in sanctions.”), cert. denied, 576 U.S. 1057 (2015); Dix v. Illinois, 202 F.3d 272, *2 (7th Cir. 1999) (unpublished disposition) (noting that Dix’s case had “absolutely no foundation”); Dix v. United States, No. 09-CV-6349, 2010 WL 2607262, at *14 (N.D. Ill. June 24, 2010) (warning Dix of “potential sanctions”); see also Dix v. Clancy, 136 S. Ct. 45 (2015) (denying petition for writ of certiorari), rehearing denied, 136 S. Ct. 45 (2015).
Apparently, Dix long ago decided that his every perceived grievance, no matter how “paranoid and delusional,” should be aired in the federal courts. Unknown TSA Agent No. 1, 588 F. App’x at 499. In this case, Dix got lucky enough to include one claim that was not completely absurd; throw nineteen claims at the wall, and one of them just might stick. But the common thread running through all of Dix’s litigations is that they are stunningly devoid of merit. Not only that, but his court filings—in this case and others—are replete with intemperate, inflammatory, and downright offensive language.
Notably, the day after Dix filed this appeal, the Northern District of Illinois explained in an executive committee order that “[s]ince July 28, 2008, pro se litigant Gerald Dix has filed six cases in this court. The cases have all been dismissed for reasons such as remand denied, failure to state a federal claim, and filing a frivolous complaint.” Executive Committee Order at 1, In re: Gerald Dix, 1:18-cv-06252 (N.D. Ill. Sept. 13, 2018), ECF No. 1. Worse yet, “Dix caused a disturbance in a courtroom of the Dirksen U.S. Courthouse … , becoming verbally and physically combative and disrupting the judge’s court.” Id. Unsurprisingly, “Dix’s inappropriate conduct has raised concerns among the Court, the Clerk’s Office, and the United States Marshals Service.” Id. The district court determined that “reasonable and necessary restraints must be imposed upon Mr. Dix’s ability to file new civil cases in this district pro se.” Id. The court enjoined Dix’s ability to file any new civil cases in that district
Rightly so, but we find we must go further. Without a doubt, Dix “has abused the judicial process with frivolous litigation. The result has been the harassment of opposing parties, insult to judicial officers, and waste of limited and valuable judicial resources … . When dealing with a frivolous litigator who, despite due warning or the imposition of sanctions, continues to waste judicial resources, we impose a filing bar preventing the litigant from filing in this court or any federal court in this circuit.” McCready v. eBay, Inc., 453 F.3d 882, 892 (7th Cir. 2006).
Dix has had ample warning. We therefore “direct the clerks of all federal courts in the circuit to return unfiled any papers that [Dix] attempts to file” for two years from the date of this opinion. Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 185, 186 (7th Cir. 1995). “We make an exception for any criminal case in which [Dix] is a defendant and for any application for habeas corpus that he may wish to file. That is, we will not impede him from making any filings necessary to protect him from imprisonment or other confinement, but we will not let him file any paper in any other suit in the federal courts of this circuit … .” Id.
We spare Dix from financial penalties today, but we once again warn him that pro se litigants are not excused from the monetary sanctions available under
One last remark. We sometimes enlist amici curiae in difficult and thankless tasks. We extend our utmost gratitude to the amicus recruited here for assuming this burden, properly distilling the facts in this case, and presenting a fine legal argument worthy of being considered by this court.
III. CONCLUSION
The judgment of the district court is AFFIRMED. The clerks of the federal courts of this circuit are hereby ORDERED to return unfiled any papers submitted to these courts either directly or indirectly (as by mail to individual judges) by or on behalf of Gerald Dix, with the exceptions noted in the opinion.