Gerald Dix v. Edelman Financial Services ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2970
GERALD DIX,
Plaintiff-Appellant,
v.
EDELMAN FINANCIAL SERVICES, LLC,* et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17-cv-6561 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 17, 2020 — DECIDED OCTOBER 19, 2020
____________________
Before KANNE and HAMILTON, Circuit Judges.**
PER CURIAM. Gerald Dix alleges that he was unlawfully
evicted. But unlike most wrongful-eviction plaintiffs, Dix
*Despite being the first-named defendant, Edelman is virtually irrel-
evant to this appeal for reasons made apparent in this opinion.
** Circuit Judge Barrett was a member of the panel when this case was
submitted but did not participate in the decision and judgment. The ap-
peal is resolved by a quorum of the panel pursuant to 28 U.S.C. § 46(d).
2 No. 18-2970
filed a sprawling pro se complaint in federal court asserting
nineteen claims against almost as many defendants. The
claims included a hodgepodge of state and federal causes of
action. The defendants included Dix’s alleged romantic-inter-
est-turned-landlady Theresa Miller, Miller’s real estate broker
and financial advisor, a handful of police officers, two munic-
ipalities, the local car-towing company, and a few John and
Jane Does for good measure.
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 allegations and concentrate only on those
pertinent to his Fourth Amendment claim.
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 liv-
ing 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
No. 18-2970 3
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 buy-
ers. 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 help Miller evict Dix anyway. The
officers prevented Dix from entering the house while Miller
and an unknown associate (“a lazy elderly woman”) hauled
Dix’s things outside and deposited them on the driveway. Dix
protested, suspecting that Miller was stealing or destroying
his property. And as he watched Miller and her helper care-
lessly handling his possessions, Dix started hurling insults
and called Miller’s associate “stupid.” Officer Sommer
warned Dix not to call anyone “stupid” (or “a dingbat, ding-
a-ling, idiot or ‘stupid b––’”) and threatened to arrest him for
disorderly conduct. Dix held his tongue, but not before assert-
ing his right to call anybody “any proper or slang term that
he deemed necessary.”
Eventually, and in part because Miller and her “lazy” as-
sociate couldn’t finish the job themselves, Dix relented and
4 No. 18-2970
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 cer-
tain rooms. After Dix gathered his things, Officer Sommer or-
dered 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 fed-
eral 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 defend-
ants, and sixty-nine paragraphs of allegations. Among his
nineteen claims was a federal cause of action under 42 U.S.C.
§ 1983 against Miller, Shurtz, and Officers Sommer and
McKay for violating, and conspiring to violate, Dix’s Fourth
Amendment rights. He sought not less than $1,095,000 in
compensatory and punitive damages, plus costs, attorney
fees, and preliminary and permanent injunctive relief.
The district court dismissed all of Dix’s claims with preju-
dice. 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
No. 18-2970 5
appointed counsel on appeal. Dix refused counsel, so we ap-
pointed 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 fa-
vorable to the plaintiff. And while a complaint does not need
‘detailed factual allegations’ to survive a 12(b)(6) motion to
dismiss, it must allege sufficient facts ‘to state a claim to relief
that is plausible on its face.’” League of Women Voters of Chicago
v. City of Chicago, 757 F.3d 722, 724 (7th Cir. 2014) (citation
omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)) (citing Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d
614, 618 (7th Cir. 2007)). Although “we accept the well-
pleaded facts in the complaint as true, legal conclusions and
conclusory allegations … are not entitled to this presumption
of truth.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th
Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)).
And “we may affirm a dismissal on any ground supported by
the record.” Kowalski v. Boliker, 893 F.3d 987, 994 (7th Cir. 2018)
(citing Sykes v. Cook Cnty. Cir. Ct. Prob. Div., 837 F.3d 736, 740
1 In our June 19, 2019 order, we stated: “After reviewing the wide
range of claims alleged and argued by Dix, the court encourages counsel
to focus attention on the Fourth Amendment claims against Officers Som-
mer and McKay, and against Miller and Edelman Financial Services.” Mil-
ler rightly pointed out that Dix’s Fourth Amendment claim was asserted
against Officers Sommer and McKay, Miller, and Shurtz (not Edelman). In
any event, the amicus appropriately opted to tailor his argument to focus
only on Miller and Officers Sommer and McKay.
6 No. 18-2970
(7th Cir. 2016); Giffin v. Summerlin, 78 F.3d 1227, 1230 (7th Cir.
1995)).
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.” U.S. Const., amend. IX.
Dix contends on appeal that the district court should not
have dismissed his Fourth Amendment claim brought under
42 U.S.C. § 1983 because (1) he alleged that his removal from
Miller’s home was a Fourth Amendment seizure; (2) he al-
leged that that seizure was unreasonable; (3) he alleged a con-
spiracy between the officers and Miller to violate his Fourth
Amendment rights; and (4) the officers are not entitled to
qualified immunity. We take these in turn.
A. Dix Did Not Allege a Fourth Amendment Seizure.
“A ‘seizure’ of property occurs when there is some mean-
ingful 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
No. 18-2970 7
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 inter-
est 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 may
have alleged a protected interest in the property, and the of-
ficers may have infringed on his right “to retreat into his own
home,” which stands “[a]t the very core” of the Fourth
Amendment. Silverman v. United States, 365 U.S. 505, 511
(1961). Indeed, the Supreme Court has explained that under
the Fourth Amendment, “the right against unreasonable sei-
zures would be no less transgressed if the seizure of [a] house
was undertaken to collect evidence, verify compliance with a
housing regulation, effect an eviction by the police, or on a whim,
for no reason at all.” Soldal v. Cook Cnty., 506 U.S. 56, 69 (1992)
(emphasis added). Succinctly stated by another court, the
“[f]orcible eviction of tenants … is by its very nature a mean-
ingful interference with their possessory interests.” Thomas v.
Cohen, 304 F.3d 563, 573 (6th Cir. 2002).
2 The district court dismissed Dix’s Fourth Amendment claim on a
different basis. The court concluded that Dix premised the claim entirely
on his contention “that he was ‘wrongfully’ evicted in violation of the Il-
linois Forcible Entry and Detainer Act, 735 Ill. Comp. Stat. 5/9-101, et seq.,”
and because the “mere violation of a state statute does not infringe the
federal Constitution,” the claim must fail. Snowden v. Hughes, 321 U.S. 1,
11 (1944); see also Gordon v. Degelmann, 29 F.3d 295, 301 (7th Cir. 1994)
(holding that an officer’s failure to comply with the Illinois Forcible Entry
and Detainer Act “does not matter” for purposes of a Fourth Amendment
claim). We do not opine on this holding and instead exercise our authority
to affirm the district court on alternative grounds that are apparent in the
record and argued on appeal. Kowalski, 893 F.3d at 994.
8 No. 18-2970
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-gener-
ated 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 allega-
tions 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 prem-
ises” 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 man-
ner 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
No. 18-2970 9
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 “ordi-
narily revocable at the will of the grantor,” id. at 19 (citing
Jackson Park Yacht Club v. Ill. Dep’t of Local Govʹt 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 Rob-
inson v. Robinson, 429 N.E.2d 183, 189 (Ill. App. 1981) (“[A]
possessory interest … precludes application of a license the-
ory.”); Application of Rosewell, 387 N.E.2d 866, 870 (Ill. App.
1979) (a license does not “transfer[] a possessory interest”).
Moreover, a license “cannot ripen into a prescriptive right, re-
gardless of the time such permissive use is enjoyed.” Keck, 400
N.E.2d at 505. Licensees can include anyone from a casual so-
cial guest, Pashinian v. Haritonoff, 410 N.E.2d 21, 21 (Ill. 1980),
to a teenager living with her parents, Meyn v. Seidel, No. 2-09-
1293, 2011 WL 10108515, at *5 (Ill. App. Mar. 22, 2011), to a
homeowner’s spouse, Jones, 139 N.E.2d at 804.
Turning to Dix’s amended complaint, we find none of the
characteristics of a lease or tenancy under Illinois law. Dix al-
leges in excruciating detail how he had virtually no posses-
sion 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
10 No. 18-2970
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 abun-
dantly 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 revo-
cation 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).
3Compare Dix’s allegations to Gustin v. Barney, 250 Ill. App. 209, 213
(1928), in which the court found that an agreement was a lease where “[i]t
provide[d] for the payment of a certain fixed rent at definite periods. The
use granted was for a definite term with privilege of renewal. It was ex-
clusive as to that use and did not merely confer a privilege under the
owner.”
4 The amicus suggests that if Dix had a license, it may have been irrev-
ocable. This argument has been underdeveloped, so we will not consider
it—and it’s probably meritless, anyway. See Keck, 400 N.E.2d at 506 (ex-
plaining the narrow circumstances under which a license becomes irrevo-
cable).
No. 18-2970 11
“[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 Struck-
man 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 whatso-
ever. He therefore could not have had a “possessory interest”
in it. “A seizure of property occurs when there is ‘some mean-
ingful 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
5 These cases concerned searches, not seizures, but their conclusions
carry over to this case. Just as a trespasser has no reasonable expectation
of privacy in the property, a trespasser also lacks a possessory interest in
the property. The very definition of “trespass,” after all, is the interference
of another’s possessory interest. See Skinner v. Mahomet Seymour Sch. Dist.
No. 3, 413 N.E.2d 507, 510 (Ill. App. 1980) (“[T]respass requires a wrongful
interference with the actual possessory interest in property.”).
6 We recognize that, in some circumstances, a houseguest (undoubt-
edly a licensee) may have a reasonable expectation of privacy in his host’s
home “rooted in ‘understandings that are recognized and permitted by
society.’” Minnesota v. Olson, 495 U.S. 91, 100 (1990) (quoting Rakas v. Illi-
nois, 439 U.S. 128, 143 n.12 (1978)). But this is a seizure case, not a search
case, so “the critical question relates to any possessory interest in the
12 No. 18-2970
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 com-
pels 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 non-
resident 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 un-
reasonable for [the officer] to request White, the family
seized object, not to privacy or liberty interests.” Burgard, 675 F.3d at 1033.
Besides, this is not one of those circumstances contemplated in Olson. A
houseguest “is there with the permission of his host, who is willing to
share his house and his privacy with his guest.” 495 U.S. at 99. In that in-
stance, “[i]t is unlikely that the guest will be confined to a restricted area
of the house[, and] hosts will more likely than not respect the privacy in-
terests of their guests, who are entitled to a legitimate expectation of pri-
vacy despite the fact that they have no legal interest in the premises.” Id.But a trespasser is no houseguest, and any reasonable person would recoil
at the notion that a trespasser has a protected privacy interest—let alone a
possessory interest—in another person’s home.
No. 18-2970 13
member with the apparently inferior property interest in re-
maining 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 the home. We have
already rejected his claimed tenancy, so his “right to remain
on [Miller’s] property, in the face of her demand that he
leave,” was truly “tenuous at best.” Id.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 de-
ranged.” His allegation that there was no domestic disturb-
ance, 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 infe-
rior—indeed, non-existent—property interest. White, 310 F.3d
at 996. This comfortably qualifies as one of those instances in
14 No. 18-2970
which “police officers may, as part of their community care-
taking 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 consider-
ing 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 un-
reasonable 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’]
7It’s worth noting that Dix also alleges, albeit in a later portion of his
forty-four-page amended complaint, that Miller threatened to kill him and
that he reasonably feared for his safety. This allegation only sheds more
light on their apparently caustic relationship and makes it even easier for
us to conclude that the relevant portions of Dix’s amended complaint
paint the picture of a domestic disturbance.
No. 18-2970 15
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 ar-
gument that he adequately alleged a conspiracy between the
officers and Miller to deprive him of his Fourth Amendment
rights.
“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 de-
prive the plaintiff of his constitutional rights, and (2) those in-
dividual(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 vio-
late his Fourth Amendment right because, even if the officers
‘seized’ [Dix’s property] when they ordered him to leave [Mil-
ler’s home], they did so lawfully. ‘A person may not be pros-
ecuted 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)).
16 No. 18-2970
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 42 U.S.C. § 1983unless they have ‘violated a statutory or constitutional right
that was clearly established at the time of the challenged con-
duct.’” City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765,
1774 (2015) (quoting Plumhoff v. Rickard, 572 U.S. 765, 778
(2014)). “An officer ‘cannot be said to have violated a clearly
established right unless the right’s contours were sufficiently
definite that any reasonable official in his shoes would have
understood that he was violating it,’ meaning that ‘existing
precedent placed the statutory or constitutional question be-
yond debate.’” Id. (alterations and citations omitted) (first
quoting Plumhoff, 572 U.S. at 778; then quoting Ashcroft v. al-
Kidd, 563 U.S. 731, 741 (2011)). “Put simply, qualified immun-
ity protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Allin v. City of Springfield, 845
F.3d 858, 862 (7th Cir. 2017) (quoting Mullenix v. Luna, 577 U.S.
7, 12 (2015)).
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 un-
der 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 for-
mer resident’s “right not to have the police prevent him from
entering an apartment that was in the possession of the land-
lord was not clearly established at the time the police blocked
his attempt to enter”).
No. 18-2970 17
One other case, Higgins v. Penobscot Cnty. Sheriffʹs Dep’t, is
worth discussion. 446 F.3d 11 (1st Cir. 2006). The plaintiff
there, Higgins, awoke one morning, donned his robe, and
poured himself a cup of coffee. Id. at 12. Peaceful though it
sounds, he happened to be in an apartment that was the sub-
ject of a hotly contested familial squabble—so when Higgins’s
sister came upon Higgins and his coffee, she called the police.
Id. By the time the officer arrived, the whole family had con-
verged in a “screaming contest.” Id. Higgins insisted to the
officer that he had a right to reside there. Id. The officer didn’t
buy it, issued Higgins a trespass citation, gave him a few
minutes to gather his things, and threated him with arrest “if
he did not leave or returned to the property.” Id. at 13.
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 “encoun-
tered a volatile and potentially dangerous situation—de-
scribed 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.
18 No. 18-2970
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 rea-
sonable 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 offic-
ers “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 offic-
ers’ position would not have known that the eviction in ques-
tion violated the plaintiffs’ Fourth Amendment right[s].”).
Neither Soldal nor Thomas clearly established that the of-
ficers’ conduct here violated Dix’s constitutional rights. Dix’s
“argument essentially invites us to hold, as a matter of consti-
tutional law, that a police officer, summoned to mediate a vol-
atile 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 prop-
osition is to expose its foolishness.” Higgins, 446 F.3d at 15.
***
No. 18-2970 19
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 against the many other defendants
because they are entirely without merit.8
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 friv-
olous lawsuits and appeals—and being admonished for do-
ing 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 ap-
peals 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 “abso-
lutely no foundation”); Dix v. United States, No. 09-CV-6349,
8 If any of Dix’s other claims are worth mentioning, it’s his claim that
Officer Sommer and the Village of Lisle infringed his First Amendment
right to free speech when Officer Sommer threatened to arrest Dix if he
did not stop cursing at Miller and her associate. Dix relies primarily on
Purtell v. Mason, 527 F.3d 615 (7th Cir. 2008), which rejected application of
the fighting-words doctrine where the plaintiff erected mock tombstones
in his yard that insulted the neighbors. But that case is easily distinguish-
able, as the protected speech there occurred on the plaintiff’s own prop-
erty, whereas Dix cast his insults from Miller’s property, where he was not
entitled to be. So we agree with the district court’s conclusion that “Som-
mer’s warning to Plaintiff that he would be arrested should he continue
his course of conduct did not violate Plaintiff’s First Amendment right to
free speech, because Plaintiff had no right to hurl abusive insults at Miller
and Doe #2 during an ongoing domestic dispute at Miller’s home.” See
Frisby v. Schultz, 487 U.S. 474, 485 (1988) (“[W]e have repeatedly held that
individuals are not required to welcome unwanted speech into their own
homes and that the government may protect this freedom.”).
20 No. 18-2970
2010 WL 2607262, *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 intem-
perate, 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 ver-
bally 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 deter-
mined that “reasonable and necessary restraints must be im-
posed upon Mr. Dix’s ability to file new civil cases in this dis-
trict pro se.” Id. The court enjoined Dix’s ability to file any new
civil cases in that district unless he follows procedures to
No. 18-2970 21
obtain leave of court and entered several other restrictions on
Dix’s capacity to abuse the legal process. Id. at 1–3.
Rightly so, but we find we must go further. Without a
doubt, Dix “has abused the judicial process with frivolous lit-
igation. The result has been the harassment of opposing par-
ties, insult to judicial officers, and waste of limited and valua-
ble judicial resources … . When dealing with a frivolous liti-
gator who, despite due warning or the imposition of sanc-
tions, continues to waste judicial resources, we impose a filing
bar preventing the litigant from filing in this court or any fed-
eral 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, 186
(7th Cir. 1995). “We make an exception for any criminal case
in which [Dix] is a defendant and for any application for ha-
beas corpus that he may wish to file. That is, we will not im-
pede 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 Federal Rule of Civil Pro-
cedure 11 and Federal Rule of Appellate Procedure 38. See
Vukadinovich v. McCarthy, 901 F.2d 1439, 1445 (7th Cir. 1990);
Reis v. Morrison, 807 F.2d 112, 113 (7th Cir. 1986). We urge our
constituent courts to take notice that they may, and should,
22 No. 18-2970
greet any attempt by Dix to file papers in contravention of this
opinion with financial sanctions.9
One last remark. We sometimes enlist amici curiae in diffi-
cult 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 ar-
gument 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.
9 As the district court mentioned, it is also evident from Dix’s
amended complaint that he routinely engages in the unauthorized prac-
tice of law (because he feels “it is common for licensed attorneys to commit
fraud on the courts”). For example, he alleges that he wrote “a Petition for
Rehearing to the Second District of the Illinois Appellate Court on behalf
of his brother” (though it fell short of “address[ing] every legal issue to
protect that plaintiff”); he has “often been called upon to commence and
maintain legal action on behalf of … others against malefactors”; and he
even repeatedly refers to his “billable hours” for performing such “con-
sulting”—i.e., legal—work. We, too, note this for the benefit of state au-
thorities. See 705 Ill. Comp. Stat. 205/1.