John Allen v. ALEKSANDRA DIMITRIJEVIC and OSCAR MARTINEZ, JR.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 28, 2023*
Decided November 30, 2023
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-1647
JOHN ALLEN,
Plaintiff-Appellant,
v.
ALEKSANDRA DIMITRIJEVIC and
OSCAR MARTINEZ, JR.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 2:22-CV-58-TLS-JEM
Theresa L. Springmann,
Judge.
O R D E R
Through a business, John Allen owned storefront property in Gary, Indiana,
until the Gary Housing Authority obtained the property using eminent domain and
demolished it to make way for a development. After a winding journey through the
Indiana courts, Allen received just compensation. Allen sued in federal court to
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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challenge the processes used to evict his businesses and take over the property. He
sought damages from Aleksandra Dimitrijevic, a state court judge, and Oscar Martinez
Jr., the Sheriff of Lake County, Indiana, for alleged violations of his constitutional rights.
See 42 U.S.C. § 1983. The district court granted the defendants’ motions to dismiss.
Because the defendants are immune from suit, we affirm.
In reviewing a dismissal on the pleadings, we accept the well-pleaded facts in the
complaint as true, with reasonable inferences drawn in Allen’s favor, and as needed, we
take judicial notice of court records from the Indiana proceedings that gave rise to this
case. Ennenga v. Starns, 677 F.3d 766, 773-74 (7th Cir. 2012); see F ED R. EVID. 201.
In September 2019, the Gary Housing Authority used an administrative
procedure to take property owned by one of Allen’s companies, 624 Broadway, LLC
(“Broadway”), and rented by another, Nations, LLC (“Nations”). Allen had developed a
restaurant, Nations, at the site. Broadway and Nations sued in Indiana Superior Court
to challenge the constitutionality of the taking. Despite the pending litigation, the
Housing Authority gave notice that it was taking possession of the property. Purporting
to act on behalf of his businesses, Allen (who is not an attorney) then filed an
emergency possessory order in small-claims court to prevent the eviction.
A few months later, Broadway and Nations, now represented by counsel,
requested that the small-claims court transfer the case to Superior Court or dismiss it for
lack of subject-matter jurisdiction. Indiana small-claims courts have jurisdiction over
civil actions involving property valued at less than $6,000 (unless the parties waive the
limit) and emergency possessory actions between landlords and tenants. I ND. C ODE
§ 33-29-2-4 (2020). Broadway maintained that the case was not an action for monetary
relief—both parties sought possession of the property—or a landlord-tenant dispute—
the Housing Authority did not have a lease with either Broadway or Nations.
But Judge Dimitrijevic declined to relinquish jurisdiction, reasoning that
Broadway and Nations could not assert that the small-claims court lacked jurisdiction
over a claim they had initiated. The judge then found that the Housing Authority was
the legal owner of the property and ordered Allen’s businesses to vacate the premises.
When they failed to do so, the judge issued an order of possession. Martinez, the county
sheriff, personally carried out the eviction order days later.
The Indiana Court of Appeals reversed, determining that the small-claims court
lacked subject matter jurisdiction because the disputed property was worth more than
the jurisdictional limit, and emergency possessory orders require a landlord-tenant

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relationship. 624 Broadway, LLC v. Gary Hous. Auth., No. 20A-SC-1021, 2021 WL 1096939,
at *3 (Ind. Ct. App. Mar. 23, 2021). It ordered that all remaining issues be resolved in the
pending Superior Court case. Those proceedings ended with the Housing Authority
retaining possession and Broadway receiving a hearing to set the amount of just
compensation. See 624 Broadway, LLC v. Gary Hou. Auth., 193 N.E.3d 381, 387 (Ind. 2022).
Allen, pro se, then sued Judge Dimitrijevic and Sheriff Martinez in federal court
for issuing and carrying out the eviction order, which he alleges violated his
constitutional right of due process. See 42 U.S.C. § 1983. He sought compensatory and
punitive damages. Dimitrijevic and Martinez each moved to dismiss for lack of
jurisdiction and failure to state a claim. The district court dismissed the complaint
because, among other reasons, absolute judicial immunity shielded the judge, while
sovereign immunity protected the sheriff. Allen appeals, and we review the dismissal
for failure to state a claim de novo. Kowalski v. Boliker, 893 F.3d 987, 994 (7th Cir. 2018).
Allen first argues that Judge Dimitrijevic was not immune from suit because she
acted without jurisdiction, but immunity applies notwithstanding the judge’s error.
Judges are immune from suit for judicial acts taken in their capacity as judges, even in
“excess of [their] authority,” unless they act “in the clear absence of all jurisdiction.”
Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). Allen does not dispute that Judge
Dimitrijevic’s actions were taken in her capacity as a judge. Instead, he argues that
because the Indiana Court of Appeals ruled that the small-claims court lacked subject
matter jurisdiction, Judge Dimitrijevic is estopped from asserting she had jurisdiction,
and the district court was bound to find that she acted “in the clear absence of all
jurisdiction.”
Allen defines “jurisdiction” too narrowly, however. Determining jurisdiction is
one of the “the most difficult and embarrassing questions” judges must make, so
“jurisdiction must be construed broadly” for the purposes of immunity. Id. at 356
(quoting Bradley v. Fisher, 80 U.S. 335, 352 (1871)). Judge Dimitrijevic erred in her
jurisdictional determination, but judges are not deprived of immunity when they act “in
error.” Stump, 435 U.S. at 356; Mireles v. Waco, 502 U.S. 9, 13 (1991) (acting “in excess of
his authority” not acting “in the absence of jurisdiction.”). The judge’s incorrect decision
about her adjudicative power does not erase her judicial immunity.
Allen also disputes the district court’s determination that he sued Sheriff
Martinez in his official capacity and that Martinez therefore enjoyed sovereign
immunity as an agent of the State. The district court did not explain why it concluded
that Allen sued Martinez only in his official capacity. Allen’s complaint does not specify

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this, so we look to the relief sought, Hill v. Shelander, 924 F.2d 1370, 1372–74 (7th Cir.
1991), and the context of the harm alleged, Budd v. Motley, 711 F.3d 840, 843 (7th Cir.
2013). Here, Allen seeks only damages, which could point toward a personal-capacity
suit. See Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000). But the district court likely
looked to the fact that Allen listed Martinez’s official title in the caption of the complaint
and did not allege that Martinez exceeded the scope of the court order he executed.
We agree with the district court that, in carrying out the eviction, Martinez
acted as an agent of the state court. County sheriffs have dual roles; they act as county
officials when performing their local law enforcement functions but as state officials
when they execute orders of state courts. Scott v. O’Grady, 975 F.2d 366, 371 (7th Cir.
1992). Here, Indiana law compelled Martinez to carry out the eviction order, IND. C ODE.
§ 36-2-13-5(a)(4) & (5), which was issued by a state judge. Therefore, Martinez acted on
behalf of the state court system. See McCurdy v. Sheriff of Madison County, 128 F.3d 1144,
1145–46 (7th Cir. 1997). We have previously determined that the Eleventh Amendment
confers sovereign immunity on a sheriff in these circumstances. Id. And at a minimum,
Martinez has a statutory defense: the “state (including state officers sued in an official
capacity) is not a ‘person’” for the purpose of § 1983. Mercado v. Dart, 604 F.3d 360, 361–
62 (7th Cir. 2010) (citing Will v. Michigan Dep’t. of State Police, 491 U.S. 58, 65 (1989)).
Even if we took Allen at his word that he sued Martinez in his personal capacity,
Allen’s path to stating a claim is no easier. Martinez’s only involvement was to carry
out a judicial order to “immediately seize the real property and remove [Broadway and
Nations] and [its] personal property from it…then immediately turn over possession of
the real property to the Gary Housing Authority.” Therefore, he was “at all times acting
pursuant to an official court order to enforce a validly entered judgment,” which
warrants quasi-judicial immunity. Henry v. Farmer City State Bank, 808 F.2d 1228, 1238–
39 (7th Cir. 1986); see also Zoretic v. Darge, 832 F.3d 639, 643–44 (7th Cir. 2016) (quasi-
judicial immunity is proper when individual carries out non-discretionary function “at
the explicit direction of a judicial officer.”). If the sheriff had, for instance, effectuated
the eviction by using excessive force or unduly destroying personal property, he could
be personally liable. But just as the judge is insulated for issuing an erroneous eviction
order, the sheriff is protected when carrying out that official order.
Allen nevertheless insists that Martinez cannot be immune under any theory
because he knowingly violated the state’s Executive Order 20-06, which banned
“eviction or foreclosure actions or proceedings involving residential real estate or
property” during the COVID-19 state of emergency. Indiana Executive Department,

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No. 23-1647 Page 5
Temporary Prohibition on Evictions and Foreclosures, No. 20-06 (March 19, 2020),
https://www.in.gov/gov/files/EO_20-06.pdf. This argument is meritless because the
property was commercial and not subject to the moratorium.
AFFIRMED

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