Viehweg v. City of Mt Olive
Filing
35
OPINION (See Written Opinion): Defendants' Motion to Dismiss Plaintiff's Amended Complaint (d/e 21 ) is ALLOWED. This case is dismissed with prejudice. All pending motions are denied as moot. This case is closed. Entered by Magistrate Judge Byron G. Cudmore on 6/6/2013. (VM, ilcd)
E-FILED
Thursday, 06 June, 2013 03:59:11 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
WILLIAM H. VIEHWEG,
Plaintiff,
v.
CITY OF MT. OLIVE, et al.,
Defendants.
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No. 12-cv-3234
OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendants City of Mt. Olive,
Illinois (City), Connie Andrasko, Ryan Dugger, Marcie Schulte, and John
Skertich’s Motion to Dismiss Plaintiff’s Amended Complaint (d/e 21)
(Motion).1 The parties have consented to have this matter decided by this
Court. Consent to the Exercise of Jurisdiction by a United States
Magistrate Judge and Order of Reference entered May 28, 2013 (d/e 34).
For the reasons set forth below, the Motion is ALLOWED.
1
Viehweg spells Andrasko’s name as Andrasko, but the Defendants spell her name Andrasco. She
signed her name as Andrasko on the Notice attached to the Amended Complaint (d/e 16) as Exhibit 2.
Based on the signature, the Court uses the spelling Andrasko. Viehweg spells Dugger’s name as
Duggar. The Defendants use the spelling Dugger. The Court uses the spelling from the Motion for
Dugger’s name.
Page 1 of 18
STATEMENT OF FACTS
For purposes of a motion to dismiss for failure to state a claim, this
Court must accept as true all well-pleaded factual allegations contained in
the Amended Complaint (d/e 16) (Complaint) and draw all inferences in the
light most favorable to Plaintiff William H. Viehweg. Hager v. City of West
Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village
of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). Viehweg alleges that he is
a resident of the City. The individual Defendants are City officials:
Andrasko is the City Clerk; Dugger is the City Police Chief; Schulte is an
Alderman; and Skertich is the Mayor.
Viehweg owns a residence in the City with a detached garage.
Viehweg alleges that the “garage is not unsafe but may be considered by
some to be an eye sore.” Complaint, ¶ 12. The City Code sets forth the
procedure for taking action against the owner of a dangerous or unsafe
structure. The City building inspector must determine that a building is
dangerous and unsafe and report to the City Council. The City Council
must approve the report, direct the inspector to put a notice on the building,
and authorize the City Clerk to serve the notice by and through the City
Police Department on the owner of the structure. The notice must state
that the owner has fifteen days to make the building safe. The ordinance
Page 2 of 18
states that the City may not take any physical action against the building
until the City receives a court order granting such action. Complaint, ¶ 9.
Schulte lives directly across the street from Viehweg’s garage.
Viehweg alleges that Schulte has a personal vendetta against Viehweg
“due to a non-incident that occurred several years earlier.” Complaint,
¶ 14. Schulte considers Viehweg’s garage to be an eyesore and has “long
demanded that the defendant City do something about it.” Complaint,
¶ 14. In 2011, the City Council repeatedly discussed the problem of
derelict buildings. On November 11, 2011, Schulte and Skertich
specifically mentioned Viehweg’s garage. However, prior to May 15, 2012,
no representative of the City talked to Viehweg about his garage.
Complaint, ¶ 15.
Viehweg alleges the City Council implemented “an unlawful policy of
extortion to take control of said property of the plaintiff through intimidation
and threats while under only the mere color of said code.” Complaint, ¶ 16.
The City Council allegedly directed Dugger “to carry out and enforce said
policy of extortion.” Complaint, ¶ 17. On May 15, 2012, Dugger came to
Viehweg’s residence, pounded on the door, stated to Viehweg that Skertich
and the City Council discussed the issue of Viehweg’s garage, and
Page 3 of 18
demanded to know when Viehweg was going to demolish the garage.
Viehweg responded, “soon.” Complaint, ¶ 18.
On August 9, 2012, Dugger again appeared at Viehweg’s residence.
Dugger again pounded on the door and demanded to know when Viehweg
was going to demolish the garage. Viehweg was “unsettled” by Dugger’s
“authoritative and commanding behavior.” Complaint, ¶ 19. Viehweg
asked for Dugger’s legal authority regarding his garage. Dugger became
agitated and stated that the City had an ordinance regarding unsafe
buildings. Viehweg stated that he would go to City Hall to verify the
ordinance. Dugger stated that he would have a copy of the ordinance
prepared for Viehweg. Complaint, ¶ 19.
On the same day, August 9, 2012, Viehweg went to City Hall and
spoke to Andrasko. Andrasko handed Viehweg two documents. The first
was from the City Code entitled, “Article V—Building as Nuisance”
(Ordinance). The second was entitled “Letter of Notice Dangerous and
Unsafe Building” (Notice). Complaint, Exhibits 1 and 2. The Notice was
addressed to Viehweg and stated that his garage was “dangerous and/or
unsafe.” The Notice stated that unless the garage was put into a safe
condition or demolished within fifteen days of receipt of the notice, the City
would bring an action in court to secure a court order authorizing the City to
Page 4 of 18
make the garage safe or demolish it. The Notice stated that Viehweg could
be liable for the City’s cost to repair or demolish the garage. Andrasko and
Dugger signed the Notice and dated it July 9, 2012. Complaint, Exhibit 2,
Notice. Viehweg alleges that Andrasko and Dugger fraudulently colluded
to back date the Notice to July 9, 2012. Viehweg alleges that the Notice
“was created to harass, intimidate, and threaten the plaintiff into falsely
believing that the defendant City had the immediate and lawful right to take
his property.” Complaint, ¶ 21.
On Friday, August 10, 2012, City Police Officer Louis Mitchlear came
to Viehweg’s house and demanded to know what Viehweg was going to do
about the garage and that Chief Dugger was going to talk to the City
Attorney about the garage.2 Viehweg stated that there was no notice on
the garage and the Notice did not appear to be proper. Complaint, ¶ 22.
On August 12, 2012, Officer Mitchlear came to Viehweg’s residence,
pounded on the door, and gave him additional copies of the Ordinance and
Notice. Mitchlear stated that Dugger ordered him to serve the documents
on Viehweg. Viehweg alleges that, “defendant chief Dugger’s objective, by
and through officer Mitchlear, was to falsely convince plaintiff that
2
Viehweg spells Officer Mitchlear’s last name as both Mitchelar and Mitchlear. See e.g., Complaint ¶¶
22, 23. The Defendants spell the name as Mitchlear. See Defendants’ Memorandum of Law in Support
of Defendants’ Motion to Dismiss (d/e 22), at 3. The Court uses the spelling Mitchlear.
Page 5 of 18
everything was being done properly, in order to perfect said policy of
extortion.” Complaint, ¶ 23.
On September 2, 2012, an unidentified City police officer stopped his
police vehicle at Viehweg’s residence, shined his headlights in the direction
of Viehweg’s garage, and shined his spotlight (1) on Viehweg’s vehicle
parked in the driveway, and (2) in Viehweg’s dining room window.
Complaint, ¶ 24.
On September 4, 2012, Andrasko telephoned Viehweg’s residence
and left a message on Viehweg’s answering machine which stated, “‘You
can’t come in tonight and talk.’” The City Council was holding a meeting
that evening. Viehweg alleges that he “never attended, and never
indicated that he would attend, a defendant City Council meeting; and that
defendant clerk Andrasko’s objective for leaving said telephone message
was to preemptively silence the plaintiff by preventing the plaintiff from
speaking publicly about the defendant City’s policy of extortion and from
petitioning the city for redress of his grievance.” Complaint, ¶ 25. Viehweg
filed this action the same day, September 4, 2012.
Viehweg alleges that Schulte and Skertich were policy makers for the
City; Dugger was a policy maker for the City Police Department, and
Andrasko was a policy maker for the City’s Clerk’s Office. Complaint, ¶ 26.
Page 6 of 18
In the alternative, Viehweg alleges that the City failed to train and supervise
its officials and, in so doing, displayed deliberate indifference to the “rights
of plaintiff and others within its jurisdiction to due process, privacy, freedom
of speech, and right to petition the defendant City for redress of
grievances.” Complaint, ¶ 27.
Based on these allegations Viehweg alleges claims against the
individual Defendants Andrasko, Dugger, Schulte, and Skertich for violation
of Viehweg’s rights of due process, privacy, freedom of speech, and to
petition the government for redress. Viehweg alleges a municipal liability
claim against the City for the same violations. Complaint, ¶¶ 29-30.
Viehweg further alleges that the Defendants’ actions “shock the
conscience.” Complaint, ¶ 32. Viehweg alleges that he has suffered
humiliation, shame, anxiety, fear, and mental suffering as a result of the
Defendants’ conduct. Complaint, ¶ 34.
The Defendants move to dismiss for failure to state a claim. In
response, Viehweg withdraws his claim for violation of his right to freedom
of speech, but otherwise opposes the Motion. Plaintiff’s Response in
Opposition to Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint
(d/e 25) (Response), ¶ 8.
Page 7 of 18
ANALYSIS
Under Federal Rule of Civil Procedure 12(b)(6), dismissal is proper
where a complaint fails to state a claim on which relief can be granted.
Fed. R. Civ. P. 12(b)(6). The Federal Rules require only “a short and plain
statement of the claim showing that the pleader is entitled to relief,” and
allegations must be “simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2) &
(d)(1). While a complaint need not contain detailed, specific factual
allegations, it must contain sufficient facts to “state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is plausible if the plaintiff “pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A claim must provide the defendant fair notice of what the claim is
and the grounds upon which it rests. George v. Smith, 507 F.3d 605, 608
(7th Cir. 2007). Dismissal under Rule 12(b)(6) is appropriate when “the
factual detail in a complaint [is] so sketchy that the complaint does not
provide the type of notice of the claim to which the defendant is entitled
under Rule 8.” Airborne Beepers & Video, Inc. v. AT & T Mobility, LLC,
499 F.3d 663, 667 (7th Cir. 2007).
Page 8 of 18
The Court finds that Viehweg has failed to allege a plausible claim
herein. Viehweg asserts violations of three of his rights: his right to
privacy; his right to petition the government for redress; and his right to due
process. The Court addresses each claim separately.
A. Privacy
Viehweg alleges that the Defendants invaded his privacy “in such a
way as to provoke a false light in the public eye.” Complaint, ¶ 34. This
allegation is akin to a state law tort for publication of private facts that puts
a person in a false light. See Lovgren v. Citizens First National Bank of
Princeton, 126 Ill.2d 411, 416-19, 534 N.E.2d 987, 988-90 (Ill. 1989).
However, alleging a state law tort does not state a claim under § 1983 for
violation of a constitutional right. See e.g., Cameo Convalescent Center,
Inc. v. Senn, 738 F.2d 836, 845 (7th Cir. 1984). Viehweg must allege that
the Defendants violated a constitutional right, not state law. The
Constitution does not mention privacy. The Supreme Court, however, has
recognized zones of privacy created by specific constitutional guarantees.
These areas include freedom from unreasonable searches and seizures
and matters related to marriage, procreation, contraception, family
relationships, and child rearing and education. Lawrence v. Texas, 539
U.S. 574 (2003); Paul v. Davis, 424 U.S. at 713; see also Whalen v. Roe,
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429 U.S. 589, 599 (1977). Viehweg does not allege any conduct related to
these areas. He therefore fails to allege a violation of any constitutional
right to privacy.
B. Right To Petition The Government For Redress
The First Amendment guarantees the right to petition the government
for redress. Viehweg alleges that Dugger and Mitchlear denied him the
right to petition the government because he complained to them, but they
did not listen or respond. These allegations do not show a denial of a right
to petition the government. Viehweg stated his position to both Dugger and
Mitchlear. He therefore made his petition. He was not stopped. The right
to petition the government is the right to make the petition; the right does
not impose on the government any obligation to respond. Hilton v. City of
Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000). These allegations do not
show a denial of a right to petition the government for redress.
Viehweg alleges that Andrasko violated his right to petition the
government for redress by leaving a message on Viehweg’s telephone
answering machine that he could not speak at a City Council meeting.
Viehweg, however, was able to petition for redress that same day by filing
this lawsuit. The Seventh Circuit’s opinion in Bridges v. Gilbert, 557 F.3d
541 (7th Cir. 2009), is instructive on this point. In Bridges, the plaintiff was a
Page 10 of 18
prisoner at the Wisconsin Secure Facility. He alleged that the defendants
denied him the right to petition the government for redress because the
defendants refused to let him file administrative grievances. Id., at 555.
The Bridges opinion states that a claim for violation of the right to petition
the government for redresses must include allegations of cognizable harm.
Id. The plaintiff’s ability to file a lawsuit in Bridges provided a remedy
through which he could petition the government for redress, so the refusal
to let him file administrative grievances did not state a claim, “Because he
is currently exercising his right to petition the government for redress of
grievances through this lawsuit, he has not been harmed.” Id. Similarly,
Viehweg was able file this action to petition for redress against the
Defendants’ efforts to force him to do something about his garage. He
therefore suffered no harm from Andrasko’s phone message. He fails to
state a claim for denial of his right to petition the government for redress.
C. Due Process
The right to due process encompasses the right to minimum
procedural protections before a government may interfere with the person’s
property or liberty (procedural due process) and the right to be free from
certain wrongful governmental action regardless of the process used
(substantive due process). See Daniels v. Williams, 474 U.S. 327, 331
Page 11 of 18
(1986); Matthews v. Eldridge, 424 U.S. 319, 332-34 (1976). In the context
of this case, the substantive due process right asserted is the substantive
right to be free from wrongful governmental conduct that “shocks the
conscience.” See Rochin v. California, 342 U.S. 165, 209 (1952). Viehweg
asserts both procedural and substantive due process claims. The Court
addresses the claims separately.
1. Procedural Due Process
To allege a procedural due process claim, Viehweg must allege that
the Defendants interfered with his property or liberty interests without
providing him the minimum procedural protections required by the
constitution. Doe v. Heck, 327 F.3d 492, 526 (7th Cir. 2003). Viehweg
does not allege that any Defendant interfered with his property without
providing procedural protections. No Defendant touched his garage or took
any action against his garage or any other property. The Notice stated that
the City would file a law suit and secure a State court order before touching
his garage. Viehweg would, therefore, have the full panoply of procedural
protections provided by a formal State court civil judicial proceeding before
the City would touch his garage. The City would have to serve a complaint
on him; he would be entitled to file an answer; he would be entitled to
appear in State court and challenge the validity of the procedures that the
Page 12 of 18
City used to issue the Notice and bring the action. The City would be
required to prove in State court that his garage was dangerous and unsafe,
and Viehweg would be entitled to defend against that effort. These
procedural protections are clearly sufficient. See Matthews, 424 U.S. at
333-34. Viehweg fails to allege any denial of his property without due
process.
Viehweg also fails to allege a denial of a liberty interest without due
process. To prevail, Viehweg must allege a liberty interest that was
affected by the Defendants’ actions. It is unclear whether Viehweg alleges
a liberty interest that was affected by the Defendants’ conduct. Viehweg
certainly describes the Defendants’ alleged behavior in the language of
intentional torts such as invasion of privacy, harassment and intimidation.
Complaint, ¶ 34. Committing a state law intentional tort such as invasion of
privacy or defamation, however, does not implicate a liberty interest
protected by the Due Process. Paul v. Davis, 424 U.S. 693, 701-02 (1976).
A liberty interest is affected in this context only when the government
official wrongfully stigmatizes a person in the community and denies him a
right previously held under state law. Id., at 708; see Siegert v. Gilley, 500
U.S. 226, 233 (1991). The only alleged acts that might have stigmatized
Viehweg in the community were the Defendants’ comments at the
Page 13 of 18
November 7, 2011 City Council meeting that characterized Viehweg’s
garage as a derelict building. Viehweg does not allege any other comment
to the community about him or his garage. That comment was not
accompanied by any denial of a right under state law. He still had his
garage. In fact, none of the alleged wrongful conduct denied Viehweg
ownership of his garage. He fails to allege a liberty interest that was
affected by the Defendants’ actions. Thus, he fails to state a claim for
violation of procedural due process.
2. Substantive Due Process
The right to due process also prohibits government officials from
engaging in arbitrary and oppressive conduct that shocks the conscience.
County of Sacramento v. Lewis, 523 U.S. 833, 847-48 (1998). The concept
of “shocking the conscience” is a narrow one that is limited to only the most
egregious conduct, “It is one thing to say that officials acted badly, even
tortuously, but—and this is the essential point—it is quite another to say
that their actions rise to the level of a constitutional violation.” Tun v.
Whitticker, 398 F.3d 899, 903 (7th Cir. 2005). The conduct must be
intentional, arbitrary, and intended to harm with no relation to any valid
governmental purpose, “Conduct intended to injure in some way
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unjustifiable by any government interest is the sort of official action most
likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849.
Viehweg does not allege that the Defendants engaged in any conduct
that meets this high standard of culpability. The Defendants wanted
Viehweg to demolish his garage. Viehweg alleges that the garage is
considered an eyesore by some. The City had a valid governmental
interest in the maintenance of all buildings within the municipality. Thus,
the actions were in some way related to a valid governmental interest.
More importantly, no Defendant attempted to injure Viehweg or his garage.
Dugger and Mitchlear pounded on Viehweg’s door, Dugger spoke and
acted in “an authoritative and commanding” manner, and an unknown
officer shined his lights on Viehweg’s property. See Complaint, ¶¶ 18-19.
No one touched his person or threatened to touch his person. No one
touched his garage or threatened to touch his garage. The Notice stated
that the City would file a State court lawsuit to secure a court order before it
would take any action against his garage. Viehweg would have full
opportunity to defend himself in any such suit. These actions do not
demonstrate any intent to injure him or his property. They do not rise to the
level of shocking the conscience.
Page 15 of 18
Viehweg argues that the Notice was a forgery and so constitutes
conduct that shocks the conscience.3 The only false statement on the
Notice was the date. Viehweg does not allege that either Andrasko’s
signature or Dugger’s signature is false. Andrasko and Dugger put the
date of July 9, 2012, on the Notice instead of August 9, 2012. The false
date is not material because Viehweg had fifteen days from receipt of the
Notice, rather than the date of the Notice, to repair or demolish the garage.
Viehweg complains that Andrasko and Dugger conspired to issue the
Notice without following proper procedures. Failure to follow procedures
may render the Notice defective, but not fraudulent. Furthermore, Viehweg
could raise the defects in the Notice in any suit brought by the City, and so,
would suffer no material harm. Finally, the false date and improper
procedures were not intended to injure his person or property. At worst,
the Notice threatened a lawsuit in which Viehweg would have the full
opportunity to defend the condition of his garage. The false date and the
defective procedures do not constitute conduct that shocks the conscience.
3
The Complaint repeatedly alleges extortion. See e.g., Complaint, ¶ 16. Viehweg does not argue this
claim of extortion in opposing the Motion. See Memorandum of Law in Support of Plaintiff’s Response in
Opposition to Defendants’ Motion to Dismiss (d/e 26). Viehweg may have based his extortion allegations
on the Illinois crime of intimidation. See 720 ILCS 5/12-6(a)(6). As explained above, Viehweg does not
allege that any person threatened the harm him personally or to touch his property without a court order.
Thus, even if the allegations could constitute intimidation under Illinois law, the actions would not
constitute conscience shocking behavior that violates due process.
Page 16 of 18
Viehweg also argues that the Defendants engaged in an illegal cover
up of their wrongful conduct because they did not report their illegal
conduct to the proper authorities. Viehweg argues that the individual
Defendants committed the felonies of misprision and official misconduct by
failing to report the illegal conduct. As explained above, Viehweg does not
allege that any Defendant harmed his person or threatened to harm his
person (or anyone else), and no person touched his garage or threatened
to touch his garage without a court order. Thus, even if the Viehweg
effectively alleged that the Defendants committed these crimes, he does
not allege that they committed conduct that shocked the conscience for
purposes of the Due Process clause. Viehweg fails to state a claim.
Viehweg also brings a § 1983 municipal liability claim against the
City. Viehweg, however, fails to allege that the individual Defendants
violated his rights, and therefore, fails to state a claim against the City.
A municipality cannot be liable under § 1983 if its officials and employees
did not violate an individuals’ constitutional rights. See City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986). Viehweg fails to state a claim against
the City.
Page 17 of 18
WHEREFORE Defendants’ Motion to Dismiss Plaintiff’s Amended
Complaint (d/e 21) is ALLOWED. This case is dismissed with prejudice.
All pending motions are denied as moot.
THIS CASE IS CLOSED.
ENTER: June 6, 2013
s/ Byron G. Cudmore
UNITED STATES MAGISTRATE JUDGE
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