Brent Vinson v. Vermilion County, Illinois

In the

United States Court of Appeals
For the Seventh Circuit
No. 12-3790

BRENT VINSON, Husband, and
BRANDY VINSON, Wife, Mother and
Next Friend of C.A.V. and C.R.V.,
Minors,
Plaintiffs-Appellants,

v.

VERMILION COUNTY, ILLINOIS, et al.,
Defendants-Appellees.

Appeal from the United States District Court for the
Central District of Illinois.
No. 2:12-cv-02099-HAB-DGB— Harold A. Baker, Judge.

ARGUED OCTOBER 31, 2014 — DECIDED JANUARY 27, 2015

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge. Brandy Vinson, her husband Brent,
and their two minor children, C.R.V. and C.A.V., sued several
law enforcement officers and two local governments for
conducting an illegal search of their home and attached garage
2 No. 12-3790

in violation of the Fourth Amendment. They also asserted a
state law claim for trespass. The district court dismissed part of
the complaint for failure to state a claim and granted judgment
on the pleadings for the remainder. We reverse and remand.
I.
We accept as true all the factual allegations in the complaint
on review of a dismissal under Federal Rule of Civil Procedure
12(b)(6). Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007); Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164 (1993); Bielanski v. County of
Kane, 550 F.3d 632, 633 (7th Cir. 2008). Brandy Vinson is the
daughter of Ronald and Cindy Olson. On June 4, 2009, Detec-
tives David Sherrick and Stuart Shaw1 of the Champaign
County Sheriff’s Department executed a search warrant at the
Olson home. The detectives were looking for a trailer and lawn
mowers that had been reported stolen but they found nothing
at the Olsons’ home. Although they had no reason to believe
that the Vinsons were involved in the purported theft, and
they possessed no warrant for the Vinson property, they
nevertheless contacted Deputy Sheriff Jerry Davis of the
Vermilion County Sheriff’s Department and asked him to meet
them for a search of the Vinsons’ home in that county.
At approximately 3:30 p.m. on June 4, 2009, the three
plainclothes officers arrived in two unmarked cars at the
Vinson home and pulled into the home’s driveway. The

1
We are using the corrected names of the defendants. The plaintiffs listed
Detective Shaw’s first name as “Tony” when it is in fact “Stuart.” They also
misspelled Sheriff Hartshorn’s last name, omitting an ”r.”
No. 12-3790 3

Vinsons’ fourteen-year-old daughter, C.A.V., was returning to
the house after checking the mailbox when the cars pulled in
near the home’s attached garage. C.A.V. was home with her
nine-year-old brother, C.R.V., at the time and was alarmed by
the appearance of three strange men in two cars. She went into
the house through the back door and locked the door. She
checked to make sure that her brother was inside the house
and then called her mother at work to report the appearance of
the men. While she was speaking to her mother, who was then
in a high risk pregnancy with her third child, C.A.V. saw one
of the men peering through a window into the home. C.A.V.
told her mother that one of the men was looking into the house
through the window. This caused both mother and daughter
great distress. The man, after staring through the window, told
C.A.V. that he was a police officer and said “he had to conduct
a search of the house.” According to the complaint, “C.A.V.
complied with the officer’s statement, went upstairs with her
brother and watched [the three officers] out the window while
they searched the garage attached to the house and curtilage of
the house.” The officers found nothing and left the property.
The Vinsons sued Detective Sherrick and Officers Shaw and
Davis in their individual capacities; Dan Walsh, the Sheriff of
Champaign County, in his individual and official capacities;
Patrick Hartshorn, the Sheriff of Vermilion County, in his
individual and official capacities; and Champaign and Vermil-
ion Counties, local governmental entities. The first count of the
complaint alleged a Fourth Amendment claim against Sherrick,
Shaw and Davis, under 42 U.S.C. § 1983. That count also
named Champaign and Vermilion Counties as parties respon-
sible for the payment of any judgment under the Illinois Local
4 No. 12-3790

Governmental and Governmental Employees Tort Immunity
Act, 745 ILCS 10/9-102 (hereafter “Tort Immunity Act”). The
second count alleged common law trespass against Sherrick,
Shaw and Davis, and sought to hold Walsh and Hartshorn
liable under common law respondeat superior. The trespass
claim again named the Counties as parties liable for any
damages under the Tort Immunity Act. The Vinsons sought
compensatory damages, punitive damages and attorneys’ fees.
Originally, the Vinsons joined their claims with those of the
Olsons, who sued many of the same defendants for the search
of the Olson property and for the subsequent prosecution of
Ronald Olson. When the defendants moved to dismiss certain
claims in the original complaint filed jointly by the Olsons and
the Vinsons,2 the district court commented that the complaint
was “vague and indefinite” in describing the search at the
Vinson residence and noted that there was no assertion of
forced entry. The court then concluded that the joinder of the
Olson and Vinson claims in the same complaint violated
Federal Rule of Civil Procedure 18(a) and that the claims

2
In the original, jointly filed suit, the Vermilion County defendants and the
Champaign County defendants filed separate motions to dismiss. The
Vermilion County defendants specifically excluded from their motion to
dismiss the claims brought by the Vinsons for the illegal search of their
property. The Champaign County defendants likewise did not specifically
mention in their motion to dismiss the claims of the Vinsons. Ultimately,
the court did not dismiss the claims against the Vinsons but severed them,
as we discuss infra.
No. 12-3790 5

should have been brought in separate suits.3 The court then
held that the “Olson and Vinson claims are severed by the
court for misjoinder under Fed. R. Civ. P. 18(a) and 21. Leave
is granted the plaintiffs to file a second amended complaint
within twenty-one days of this order correcting the deficiencies
in the dismissed amended complaint. The Olson claims and the
Vinson claims must be brought in separate suits[.]”
Within the time allotted by the district court, the Vinsons
filed their separate complaint, bringing the claims we have just
described. Walsh, Sherrick and Shaw then moved to dismiss
the Vinsons’ new complaint for failure to state a claim, under
Fed. R. Civ. P. 12(b)(6). In the alternative, they argued that the
Vinsons’ claims were now barred by the statute of limitations.
The district court concluded that the Vinsons failed to state a
claim under the standard set forth by the Supreme Court in
Ashcroft v. Iqbal, 556 U.S. 662 (2009). The court first repeated its
previous criticism that the Vinsons’ claims were vague and
indefinite. Noting that the new complaint added only a few

3
This conclusion was mistaken; there was nothing wrong with the original
complaint. Rule 20(a) permits persons to “join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact common to
all plaintiffs will arise in the action.” Such was the case here where, in a
single day, two of the defendants conducted a purportedly unlawful search
of the Olson home for stolen items, and then enlisted a third defendant to
continue that search for those same items at the Vinson home. See also Lee
v. Cook County, Ill., 635 F.3d 969, 971 (7th Cir. 2011) (“Multiple plaintiffs are
free to join their claims in a single suit when ‘any question of law or fact
common to all plaintiffs will arise in the action.’”). The Vinsons did not
appeal that ruling and so we will not address it further.
6 No. 12-3790

insignificant details, the court found that the allegations were
insufficient under Iqbal to state a claim. The court acknowl-
edged the assertions that the officers peered through the
windows and walked around the curtilage and into the back
yard to look for “large items that would be readily apparent
without the need to disturb small personal items.” The court
also noted that the officers searched the attached garage. But
none of this was problematic, the court found, because C.A.V.
“consented” to the officers’ search. The court based this
conclusion on the allegation that, after an officer told C.A.V.
that he had to search the house, she “complied with the
officer’s statement.” Turning to the dictionary definition of
“comply,” the court found that it meant to conform, submit or
adapt as requested:
Therefore, on its face, this complaint alleges that
C.A.V. essentially consented to the defendants’
search of the curtilage and garage to locate a stolen
lawn mower and trailers (i.e., large, obvious items)
that might be found on the premises.
Vinson v. Champaign County, Ill., No 12-2099 (C.D. Ill. Aug. 10,
2012), Order at 3-4. That allegation of “consent,” the court held,
required dismissal of the complaint under Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). The court then concluded that the
common law trespass claim must be dismissed because it failed
to allege wilful and wanton conduct, as required under Illinois
law. Moreover, because the claim against Walsh depended on
the validity of the trespass claim against Sherrick and Shaw,
the court dismissed the claim against Walsh. Finally, even
though Champaign County had not joined the motion to
dismiss, the court concluded that dismissal of the claims
No. 12-3790 7

against Sherrick and Shaw required dismissal of the County.
The court declined to reach the statute of limitations issue.
Davis, Hartshorn and Vermilion County then separately
moved for judgment on the pleadings. The district court
granted the motion. The court first noted that Hartshorn and
Vermilion County were entitled to judgment because there is
no respondeat superior liability for section 1983 claims, and
because the plaintiffs failed to plead a Monell claim against the
County.4 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). As
for Davis, the court concluded again that there could be no
claim for an unlawful search against the law enforcement
officers present that day because C.A.V. “consented” to the
search. The plaintiffs appeal.

4
The court’s mention of Monell in this context is puzzling. Monell was
irrelevant to the theory on which the Vinsons sought to hold the Counties
and the elected Sheriffs liable. Their claims against the Counties and
Sheriffs were essentially claims for indemnification under state law. See 745
ILCS 10/9-102. And their respondeat superior claim against the Counties’
elected Sheriffs, Hartshorn and Walsh, was limited to their state law
trespass count. There is no mention of either Hartshorn or Walsh in the
section 1983 count. See Askew v. Sheriff of Cook County, Ill., 568 F.3d 632, 636
(7th Cir. 2009) (concluding that a county in Illinois is a necessary party in
any suit seeking damages from an independently elected county officer and
because state law requires the county to pay, federal law deems it an
indispensable party to the litigation). Had the Vinsons sought respondeat
superior liability against the Sheriffs in their section 1983 claim, the court
would have been correct that Monell and a host of later cases firmly
establish that there is no respondeat superior liability under section 1983. See
Monell, 436 U.S. at 694–95; Askew, 568 F.3d at 636. In any case, the Vinsons
do not appeal the judgment on the trespass claim and so the elected Sheriffs
are no longer part of the suit. We address infra the indemnification claim
against the Counties.
8 No. 12-3790

II.
We review de novo the district court's decisions to dismiss
claims pursuant to Rule 12(b)(6) and to enter judgment on the
pleadings pursuant to Rule 12(c). Ball v. City of Indianapolis,
760 F.3d 636, 642–43 (7th Cir. 2014). A dismissal under Rule
12(b)(6) and judgment on the pleadings under Rule 12(c) both
employ the same standard: the complaint must state a claim
that is plausible on its face. Ball, 760 F.3d at 643; Adams v. City
of Indianapolis, 742 F.3d 720, 727–28 (7th Cir.), cert. denied,
135 S. Ct. 286 (2014). See also Twombly, 550 U.S. at 570. Federal
Rule of Civil Procedure 8(a)(2) requires a plaintiff to set forth
in the complaint “a short and plain statement of the claim
showing that the pleader is entitled to relief.” “Specific facts are
not necessary; the statement need only give the defendant fair
notice of what the ... claim is and the grounds upon which it
rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly,
550 U.S. at 555) (internal citations omitted). On appeal, the
Vinsons argue that the complaint adequately states a Fourth
Amendment claim for the warrantless search of the home’s
curtilage and garage by Sherrick, Shaw and Davis.5
There is no dispute that the areas searched by the officers
here were in fact protected by the Fourth Amendment. See
Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013).

5
The Vinsons made no arguments related to the district court’s dismissal
of their state law claims for trespass and so we will not address the
appropriateness of that dismissal. Because Sheriffs Walsh and Hartshorn
are named only in the trespass claim, no claims against them remain on
remand.
No. 12-3790 9

[W]hen it comes to the Fourth Amendment, the
home is first among equals. At the Amendment's
“very core” stands “the right of a man to retreat into
his own home and there be free from unreasonable
governmental intrusion.” Silverman v. United States,
365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).
This right would be of little practical value if the
State's agents could stand in a home's porch or side
garden and trawl for evidence with impunity; the
right to retreat would be significantly diminished if
the police could enter a man's property to observe
his repose from just outside the front window. We
therefore regard the area “immediately surrounding
and associated with the home”—what our cases call
the curtilage—as “part of the home itself for Fourth
Amendment purposes.”
Jardines, 133 S. Ct. at 1414 (quoting Oliver v. United States,
466 U.S. 170, 180 (1984)). The Vinsons’ attached garage and the
areas immediately surrounding their home and garage fit
comfortably within the scope of the Fourth Amendment’s
protections of the home.
Under the Fourth Amendment, “a search conducted
without a warrant issued upon probable cause is ‘per se
unreasonable … subject only to a few specifically established
and well-delineated exceptions.’” Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347,
357 (1967)); United States v. Borostowski, 2014 WL 7399074, *11,
— F.3d — (7th Cir. 2014). One of the exceptions to the warrant
requirement is consent to search. Schneckloth, 389 U.S. at 219
10 No. 12-3790

(“It is equally well settled that one of the specifically estab-
lished exceptions to the requirements of both a warrant and
probable cause is a search that is conducted pursuant to
consent.”); Davis v. United States, 328 U.S. 582, 593–94 (1946).
The district court interpreted the Vinsons’ complaint as
conceding the issue of consent to search. In general, a plaintiff
may plead herself out of court when she includes in her
complaint facts that establish an impenetrable defense to her
claims. Independent Trust Corp. v. Stewart Info. Servs. Corp.,
665 F.3d 930, 941–42 (7th Cir. 2012); Hecker v. Deere & Co.,
556 F.3d 575, 588 (7th Cir. 2009); Tamayo v. Blagojevich, 526 F.3d
1074, 1086 (7th Cir. 2008). But there was no concession of
consent here. The district court mistakenly concluded that the
Vinsons had pled themselves out of court in this case when
they alleged that C.A.V. “complied” with the officer’s state-
ment that he “had to” search the house. The court’s conclusion
that C.A.V.’s compliance constituted “consent” cannot be
squared with the facts or the law.
First, the complaint did not allege that the officers asked for
consent to search. It asserted that the officer, after staring at the
child through a window, told C.A.V. that he “had to” search
the home. This was not a request for consent; it was a state-
ment describing what the officer was about to do. Indeed, by
staring through the window into the home while standing on
the home’s curtilage, the officer may have overstepped the
bounds of the Fourth Amendment before even issuing this
statement. See Jardines, 133 S. Ct. at 1415 (noting that while law
enforcement officers need not shield their eyes when passing
by a home on the public thoroughfare, an officer’s leave to
gather information is sharply circumscribed when he steps off
No. 12-3790 11

those thoroughfares and enters the Fourth Amendment’s
protected areas). That the child then went upstairs to be with
her brother could not reasonably be interpreted as consent to
search her parents’ home and garage. Not only had there been
no express or implied request for consent, on the facts alleged
here, the child said and did nothing to indicate consent, and
her failure to object to a police officer’s directive cannot
reasonably be construed as consent. In fact, upon first seeing
the men approach the house, C.A.V. ran inside and locked the
door, hardly the actions of a person consenting to a search of
the home. Although it is sufficient at this stage of the proceed-
ings to find that there were no allegations establishing consent
(much less allegations establishing consent as a matter of law),
we also doubt that C.A.V. possessed actual or apparent
authority to allow a search of her parents’ home. Georgia v.
Randolph, 547 U.S. 103, 112 (2006). In Randolph, the Court noted
that “‘a child of eight might well be considered to have the
power to consent to the police crossing the threshold into that
part of the house where any caller, such as a pollster or
salesman, might well be admitted,’ 4 LaFave § 8.4(c), at 207
(4th ed. 2004), but no one would reasonably expect such a child
to be in a position to authorize anyone to rummage through his
parents' bedroom.” Similarly, no one would reasonably expect
that a child would be in a position to authorize police officers
to search the perimeter of her parents’ house and the inside of
the family’s attached garage for stolen goods. Taking the
allegations of the complaint as true, the officers here conducted
a warrantless search of protected areas of the home and garage
without consent. There is nothing implausible about such a
claim and nothing more need be alleged to state a claim for a
12 No. 12-3790

violation of the Fourth Amendment under section 1983. The
Fourth Amendment claims against Sherrick, Shaw and Davis
must therefore be reinstated. The Fourth Amendment claims
against Champaign and Vermilion Counties under the Tort
Immunity Act, 745 ILCS 10/9-102, must also be reinstated, as
the defendants have conceded that the validity of those claims
is dependent on the validity of the Fourth Amendment claims.
See also Wilson v. City of Chicago, 120 F.3d 681, 685 (7th Cir.
1997) (plaintiff need not wait for final judgment against
government entity before proceeding under section 745 ILCS
10/9-102 but may seek a declaration of the government’s
liability in its initial complaint).
We pause to address some of the defendants’ other argu-
ments. On multiple occasions, the defendants protest that the
officers were looking for large items, and that there was no
need to disturb small personal items in order to search for
these large items. The size of the items is entirely irrelevant,
though, if the officers were in areas where they were not
authorized to be when they conducted their search. Certainly,
if the officers were standing on the public way or at the front
door and the objects sought were in plain sight, there would be
no unlawful search. But that is not what the plaintiffs alleged;
they asserted that the officers entered areas of the home that
they were not authorized to enter, including the curtilage and
the inside of an attached garage. Both of these areas, as we
noted earlier, are well within the protections of the Fourth
Amendment. The defendants also fault the plaintiffs for not
describing the window through which the officer peered when
he told C.A.V. that he “had to” conduct a search. Neither
Rule 8 nor Iqbal require that level of detail in a complaint. A
No. 12-3790 13

fair reading of the complaint is that the officers approached the
house not through the usual path of a visitor, e.g. by approach-
ing the front door and knocking, but by driving up to the
attached garage on the private driveway and walking through
the curtilage before peering through a window. This is the kind
of behavior for which the average citizen might call the police,
not the kind of behavior one would expect from the police. See
Jardines, 133 S. Ct. at 1416 (noting that to find a visitor knocking
on the door is routine but to spot that same visitor exploring
the front path with a metal detector before asking permission
would inspire many people to call the police, because “the
background social norms that invite a visitor to the front door
do not invite him there to conduct a search.”). Most parents
would want their fourteen-year-old daughters to call the police
if an unknown man approached the house and stared at the
teen through a window. No one needs a description of that
window to know that something is terribly amiss in that
behavior. The defendants also complain that there was no
forced entry and nothing was seized. But of course neither of
these factors are necessary to sustain a Fourth Amendment
claim for an improper search.
All that remains is the defendants’ argument in the alterna-
tive that the Vinsons’ separate complaint was filed outside the
statue of limitations. Had the district court mistakenly dis-
missed the Vinsons’ claims rather than severed them from
those of the Olsons’, that argument might have some viability.
See Lee, 635 F.3d at 971. But the court severed the Vinsons’
claims, and “When a federal civil action is severed, it is not
dismissed. Instead, the clerk of court creates multiple docket
numbers for the action already on file, and the severed claims
14 No. 12-3790

proceed as if suits had been filed separately.” Lee, 635 F.3d at
971. The defendants do not dispute that the original action was
timely filed. They claim only that the Vinsons’ newly filed
complaint after the severance was not within the statute of
limitations. But the severance simply resulted in their claims
proceeding as if filed separately in the first place. The original
filing date therefore applies and there is no statute of limita-
tions problem with the Vinsons’ amended complaint.
In sum, the dismissal of the Fourth Amendment claims
against Sherrick, Shaw and Davis, as well as the associated
state law indemnification claims against Champaign and
Vermilion Counties are reversed and remanded. Because the
Vinsons have proffered no argument regarding the dismissal
of the trespass action, we decline to address it.
REVERSED AND REMANDED.