THOMAS WILSON and RANDY BROWN v. Warren County , Illinois, Martin Edwards, Thomas Carithers, Albert Algren , Ronald…

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1939
THOMAS WILSON and R ANDY BROWN ,
Plaintiffs-Appellants,
v.
WARREN C OUNTY , I LLINOIS, M ARTIN EDWARDS, THOMAS
C ARITHERS, A LBERT A LGREN , R ONALD H ANSON , M ARK
JOHNSON , and DOUGLAS R EINERS,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 11-CV-04078 — Sara Darrow, Judge.
____________________
A RGUED A PRIL 11, 2016 — DECIDED J ULY 18, 2016
____________________
Before BAUER and WILLIAMS, Circuit Judges, and A DELMAN ,
District Judge.*
* Of the Eastern District of Wisconsin, sitting by designation.

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2 No. 15-1939
A DELMAN , District Judge. Plaintiffs Thomas Wilson and
Randy Brown bring claims under 42 U.S.C. § 1983 against pri-
vate citizen defendants, Ronald Hanson, Mark Johnson, and
Douglas Reiners, as well as against Warren County, Illinois
and several of its officials including Sheriff Martin Edwards,
Deputy Thomas Carithers, and State Attorney Albert Algren,
referred to as the public defendants. Wilson also brings a Fair
Housing Act (“FHA”) claim against the private defendants,
and plaintiffs assert supplemental state law claims. The
claims arise out of an incident in which the private defendants
seized items of plaintiffs’ personal property. The district court
dismissed Wilson’s FHA claim for failure to state a claim,
granted summary judgment on plaintiffs’ § 1983 claims, and
chose not to address the state law claims. Plaintiffs appeal,
and we affirm.
I. Background
Wilson and Hanson were business partners who got into
a dispute about the ownership of property. On September 14,
2009, Warren County issued a letter relating to real property
occupied by Wilson stating that it had to be cleaned up within
30 days. The County, however, sent the letter to Hanson.
When he received the letter, Hanson, Hanson’s lawyer John-
son, and Reiners, photographed the items on Wilson’s prop-
erty. This activity upset Wilson, who suffers from various
psychological disorders, causing him to be hospitalized.
Subsequently, a friend of Wilson called Algren and ex-
pressed concern that Hansen, Johnson, and Reiners would re-
turn and take personal property belonging to Wilson. Algren
assured him that they could not do this without a court order

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No. 15-1939 3
and that, if they returned, Wilson should call the sheriff. Han-
son, represented by Johnson, sought an order in state court
authorizing him to remove material from Wilson’s property
but was unsuccessful because the judge was unavailable.
Johnson told Algren about the suit but did not disclose his
failure to get a court order or when he, Hanson, and Reiners
planned to remove material from Wilson’s property. On Sep-
tember 26, the private defendants began removing items from
Wilson’s property. Wilson called the sheriff’s department,
which dispatched Carithers to the property. Carithers, how-
ever, believed that Hanson owned the property and thought
that his job was to stand by and observe.
When Carithers arrived, Johnson told him that the private
defendants had a legal right to remove property and handed
him a stack of what he called court papers. Wilson objected
and encouraged Carithers to call Algren. Carithers did not un-
derstand the court papers and called Algren, who advised
him that if Johnson had the proper papers the private defend-
ants were within their rights. It is unclear whether Algren
mistakenly understood Carithers to say that Johnson had a
valid court order or whether Carithers misunderstood Algren
on that point. In any case, Carithers believed that the private
defendants could legally remove items from the property and
he stood by as they did so. At this point, Wilson suffered an-
other anxiety attack. In addition to removing Wilson’s prop-
erty, the private defendants removed an item belonging to
Brown.

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4 No. 15-1939
II. Discussion
A. FHA claim
Wilson’s FHA claim alleges that the private defendants
committed disability discrimination by intentionally attempt-
ing to trigger his disability to prevent him from objecting to
the removal of property. We review the district court’s dis-
missal of the claim de novo, accepting all well-pleaded facts as
true and drawing all reasonable inferences in plaintiffs’ favor.
Roberts v. City of Chi., 817 F.3d 561, 564 (7th Cir. 2016). Dismis-
sal is appropriate where the complaint fails to set forth facts
which amount to a plausible claim.
The FHA makes it unlawful to make unavailable or deny
a dwelling to anyone because of a handicap, 42 U.S.C.
§ 3604(f)(1), and to coerce, intimidate, threaten, or interfere
with a person’s exercise or enjoyment of the rights granted by
the FHA, 42 U.S.C. § 3617. To adequately plead a disability
discrimination claim under § 3617 and § 3604, Wilson must
allege facts suggesting that the private defendants entered his
real estate and removed personal property because of his dis-
ability. Bloch v. Frischholz, 587 F.3d 771, 784 (7th Cir. 2009).1
Wilson’s complaint fails because it does not plausibly al-
lege that the private defendants acted because of his disabil-
ity. It alleges that Hanson blamed Wilson for the failure of
their business, that Wilson sold a piece of Hanson’s machin-
ery for less than they had agreed, and that Hanson believed
that Wilson refused to return items that he had taken from
1 A § 3604 plaintiff may also proceed on a disparate impact theory, but
Wilson does not do so.

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No. 15-1939 5
him. R. at 286–87. These allegations suggest that the private
defendants were motivated by Wilson’s dealings with Han-
son rather than by his disability, and that they would have
behaved the same regardless of the disability. Wilson argues
that the private defendants exploited his disability to prevent
him from protesting their removal of his property. But this is
not enough to survive a motion to dismiss because it does not
raise the inference that the private defendants would not have
removed his property if he wasn’t disabled.
B. Section 1983 claims
The district court granted summary judgment to all de-
fendants on plaintiffs’ § 1983 Fourth Amendment and due
process claims based on the alleged unconstitutional removal
of property. We review grants of summary judgment de novo,
construing the evidence in the light most favorable to plain-
tiffs and taking all reasonable inferences in plaintiffs’ favor.
Carman v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014). Summary
judgment is appropriate where no reasonable jury could find
for plaintiffs based on the evidence in the record. Id.
1. Private defendants
To succeed on their § 1983 claim, plaintiffs must prove (1)
the deprivation of a right secured by the Constitution or fed-
eral law and (2) that defendants were acting under color of
state law. Armato v. Grounds, 766 F.3d 713, 719–20 (7th Cir.
2014) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). For a
private actor to act under color of state law he must have “had
a ‘meeting of the minds’ and thus reached an understanding”
with a state actor to deny plaintiffs a constitutional right.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970); see also

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6 No. 15-1939
Hanania v. Loren-Maltese, 212 F.3d 353, 356 (7th Cir. 2000) (re-
quiring a showing of “a concerted effort between” a private
actor and state actor and that a state actor and private actor
“reached an understanding to deprive the plaintiff of her con-
stitutional rights”); Cunningham v. Southlake Ctr. for Mental
Health, Inc., 924 F.2d 106, 107 (7th Cir. 1991) (“A requirement
of the joint action charge . . . is that both public and private
actors share a common, unconstitutional goal.”). Because §
1983 allows a private actor to be sued as if it were the state
and makes state actors potentially liable as well, the state ac-
tor must share the private actor’s unconstitutional goal in or-
der for a state actor to be acting under color of state law. In
other words, “[a] private actor . . . cannot unilaterally convert
a state actor’s legitimate activity into an illegal act, conferring
both constitutional accountability on itself and liability on the
state.” Cunningham, 924 F.2d at 108.
In the present case, plaintiffs fail to present evidence sup-
porting an inference of a meeting of minds between the pri-
vate and public defendants. No evidence suggests that any of
the public defendants knew that the repossession was unlaw-
ful or that they shared an unconstitutional goal with the pri-
vate plaintiffs. Rather, the record indicates that the private de-
fendants, particularly Johnson, misrepresented that a court
order authorized them to remove plaintiffs’ property. Lying
to a state actor in order to induce him to participate in unlaw-
ful conduct, however, is the type of unilateral action that does
not create private actor liability. See, e.g., Betts v. Shearman, 751
F.3d 78 (2d Cir. 2014) (concluding that a claim that plaintiff
was arrested based on a false accusation made against him by
the private defendant was insufficient to indicate that the pri-
vate defendant and the arresting officers shared a common

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No. 15-1939 7
goal of violating plaintiff’s rights); Peng v. Mei Chin Penghu,
335 F.3d 970 (9th Cir. 2003) (denying private actor liability
where there was no evidence that the arresting officer knew
that the private actor’s allegations were false and that plaintiff
was innocent of the charges for which he was arrested). Thus,
plaintiffs cannot establish that the private defendants acted
under color of state law.
2. Public defendants
Plaintiffs’ § 1983 claims against the public defendants fail
for similar reasons. Plaintiffs must show that the defendants
were personally responsible for the deprivation of their
rights. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). A
defendant is personally responsible “if the conduct causing
the constitutional deprivation occurs at his direction or with
his knowledge and consent.” Id. (internal quotations and cita-
tion omitted); see also Jones v. City of Chi., 856 F.2d 985, 992 (7th
Cir. 1988). This is a mental state requirement and requires
plaintiffs to prove more than mere negligence. Pepper v. Vill.
of Oak Park, 430 F.3d 805, 811 (7th Cir. 2005); see also Jones, 856
F.2d at 992–93 (requiring a showing of knowledge or deliber-
ate, reckless indifference). As noted, the evidence doesn’t sup-
port an inference that the public defendants knew that the pri-
vate defendants did not have a court order to remove the
property. Rather, Johnson misrepresented this matter to
Carithers, and some sort of miscommunication between Al-
gren and Carithers during their phone call led to the mistaken
belief that the stack of papers Johnson presented included a
court order. While Carithers and Algren could have done

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8 No. 15-1939
more to confirm the existence of a court order, their behavior
appears to be no more than negligent.2
Plaintiffs also argue that Algren violated substantive due
process because under the state-created danger doctrine, he
was obliged to protect Wilson from the private defendants’
seizure of his property. Due Process does not require a state
to protect citizens from private acts unless the state itself cre-
ates the danger. King ex rel. King v. E. St. Louis Sch. Dist. 189,
496 F.3d 812, 817 (7th Cir. 2007) (citing DeShaney v. Winnebago
Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989)). Under the state-
created danger doctrine, a plaintiff must prove that (1) the
state created or increased a danger to him, (2) the state’s fail-
ure to protect plaintiff was a proximate cause of his injuries,
and (3) the state’s failure to protect the individual shocks the
conscience. Id. at 817–18. Plaintiffs allege that Algren created
the danger by advising Wilson’s friend that the removal of
property required a court order. Plaintiffs contend that this
statement amounted to an assurance that Algren would pro-
tect Wilson from the private defendants and made Wilson feel
sufficiently protected that he left the gate to his property un-
locked. Plaintiffs also assert that Algren then failed to protect
2 Plaintiffs’ Fourth Amendment and substantive and procedural due
process claims against the public defendants also fail for other reasons.
Plaintiffs’ Fourth Amendment claim fails because plaintiffs do not present
sufficient evidence to support the inference that any of the public defend-
ants actively participated in seizing Wilson’s property, see Pepper v. Vill. of
Oak Park, 430 F.3d 809 (7th Cir. 2005), and plaintiffs’ due process claims
fail because plaintiffs have adequate post-deprivation remedies at state
law, Gable v. City of Chi., 296 F.3d 531, 540–41 (7th Cir. 2002) (requiring
plaintiff to show inadequacy of state law remedies to succeed on due pro-
cess claims).

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No. 15-1939 9
their property, citing Carithers’ phone call regarding the le-
gality of the property removal. But this behavior falls short of
shocking the conscience. Only “the most egregious official
conduct” shocks the conscience, Jackson v. Indian Prairie Sch.
Dist. 204, 653 F.3d 647, 654 (7th Cir. 2011) (internal quotations
and citation omitted), and Algren’s act of informing Wilson of
a general legal principle—that one needs a court order in or-
der to legally take another’s property – does not fall into that
category.
Plaintiffs also bring Monell3 claims against Algren and Ed-
wards in their official capacities and against Warren County.
But these claims fail because of the absence of an underlying
constitutional violation. Sallenger v. City of Springfield, 630 F.3d
499, 504 (7th Cir. 2010).
C. Motion to disqualify counsel
Finally, plaintiffs challenge the district court’s denial of its
motion to disqualify Johnson, himself a defendant, from rep-
resenting the other two private defendants. For a lawyer to
represent parties in a lawsuit in which he is a defendant is
surely a conflict of interest See IL RPC 1.7(a) (prohibiting a
lawyer from representing a client if the representation in-
volves “a concurrent conflict of interest,” including where
“the representation of one client will be directly adverse to
another client”); IL RPC 1.7 cmt. 10 (stating that “if the probity
of a lawyer’s own conduct in a transaction is in serious ques-
tion, it may be difficult or impossible for the lawyer to give a
client detached advice”). At this point, however, the issue is
3 Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978).

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moot. Johnson has apparently been disbarred as a result of his
conduct and thus can no longer represent the private defend-
ants. Moreover, the district court’s failure to disqualify John-
son was harmless because the issue had no bearing on the
merits of plaintiffs’ claims.
III. Conclusion
For these reasons, we AFFIRM.

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