Viehweg v. City of Mt Olive
Filing
39
OPINION by U.S. Magistrate Judge Byron G. Cudmore: Plaintiff's Motion to Amend Judgment 37 is DENIED. See written order. (LB, ilcd)
Viehweg v. City of Mt Olive
Doc. 39
E-FILED
Wednesday, 14 August, 2013 12:03:46 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, IL, 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 Plaintiff William T. Viehweg’s
Motion to Amend Judgment (d/e 37) (Motion). The parties consented,
pursuant to 28 U.S.C. § 636(c), to proceed before this Court. Notice of
Availability of a United States Magistrate Judge to Exercise Jurisdiction and
Consent to the Exercise of Jurisdiction by a United States Magistrate
Judge, entered May 30, 2013 (d/e 34). The Court has reviewed the motion
and determined there is no need for oral argument, therefore that request is
denied. For the reasons set forth below, the Motion is DENIED.
As an initial matter, the Court addresses the timeliness of the Motion.
This Court dismissed this case by its Opinion entered June 6, 2013 (d/e 35)
(Opinion). Viehweg filed the Motion on Monday July 8, 2013. Motions to
alter or amend a judgment must be filed within 28 days of the judgment.
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Fed. R. Civ. P. 59(d). The twenty-eighth day after entry of the Opinion was
Independence Day, Thursday July 4, 2013. In such cases, the time for
filing is extended to the next day that is not a Saturday, Sunday, or legal
holiday; in this case, Friday July 5, 2013. Fed. R. Civ. P. 59(a)(2)(C). The
Clerk’s Office, however, was closed and inaccessible on Friday July 5,
2013. In such cases, the time for filing is extended to next day that is not a
Saturday, Sunday or legal holiday; in this case, Monday July 8, 2013. Fed.
R. Civ. P. 59(a)(3). Therefore, the Motion was timely filed on July 8, 2013.
To prevail on the Motion, Viehweg must clearly establish the
existence of a manifest error of law or fact, or must present newly
discovered evidence. Fed. R. Civ. P. 59(e); Blue v. Hartford Life & Acc.
Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012); see Caisse Nationale de Credit
Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).
Viehweg presents newly discovered evidence. The evidence presented
does not demonstrate a right to a claim.
Viehweg brought a number of claims under 42 U.S.C. §1983 based
on the Defendants’ efforts to force the demolition of Viehweg’s garage.
See Opinion at 2-7. Viehweg primarily raised due process claims. The
Court found that Viehweg failed to state a claim because he alleged that
none of the Defendants touched the garage, but only threatened to bring a
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lawsuit. Therefore, his rights to procedural due process would be protected
by the procedures afforded by a judicial proceeding. The Court further
found that the Defendants’ alleged behavior did not shock the conscience
so as to violate substantive due process. See Opinion at 11-17.
Viehweg’s alleged new evidence fails to indicate anything that would
entitle him to a claim. Much of the evidence concerns acts taken by the
Defendants against other property owners in Mt. Olive, Illinois. These
allegations do not demonstrate any new evidence of a violation of
Viehweg’s rights. Viehweg further does not indicate that he has any
standing to seek redress for the other individuals affected by the
Defendants’ conduct. See MainStreet Organization of Realtors v. Calumet
City, Ill., 505 F.3d 742, 746 (7th Cir. 2007 (“[O]ne cannot sue in a federal
court to enforce someone else’s legal rights.”). The evidence does not
provide a basis for reopening the judgment and allowing an amended
complaint.
Viehweg also reports that the Illinois Court vindicated his rights.
Viehweg reports that the Defendant City of Mt. Olive, Illinois, proceeded
with the threatened lawsuit to secure a court order to demolish Viehweg’s
garage. Viehweg reports that he prevailed in the lawsuit. Memorandum of
Law in Support of Plaintiff’s Motion to Amend Judgment (d/e 38), at 2.
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Viehweg, therefore, was afforded due process by the Courts of the State
Illinois. His rights to due process were vindicated, not violated. These new
allegations do not provide a basis for amending the judgment and allowing
an amended complaint.
Viehweg also states in the Motion that during discovery, he
uncovered evidence that the Defendant City of Mt. Olive police department
“created multiple police department records with deliberate and knowingly
false information to put the plaintiff in a false a bad public light.” Motion
¶ 25. In addition, “The police department searched police department files
pertaining to criminal history of the plaintiff, and released confidential
information to put the plaintiff in a false and bad public light.” Id. These
claims, if true, may indicate some wrongful publication of false information
by some members of the police department. A wrongful publication of false
information by itself, however, does not violate a person’s constitutional
rights, “Defamatory publications by a state official, however seriously that
may harm someone, do not deprive that person of any liberty interests
protected by the due process clause.” Elbert v. Board of Ed. Of Lanark
Community Unit School Dist. No. 305, Carroll County, Ill., 630 F.2d 509,
512 (7th Cir. 1980); see Smith v. City of Chicago, 992 F.Supp. 1027, 1030
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(N.D. Ill. 1998).1 Viehweg may or may not be able to pursue a claim under
Illinois law in the appropriate state tribunal, but he does not have a
constitutional claim based on these false publications.
The other alleged new evidence similarly does not demonstrate a
violation of Viehweg’s constitutional rights. Viehweg fails to present any
new evidence that demonstrates a right to reopen the judgment in this
case.
WHEREFORE Plaintiff’s Motion to Amend Judgment (d/e 37) is
DENIED.
ENTER: August 14, 2013
s/ Byron G. Cudmore
UNITED STATES MAGISTRATE JUDGE
1
Publically stigmatizing a person may state a claim for a denial of a liberty interest if the wrongful
publication was accompanied by an adverse employment action, such as a failure to rehire. Elbert,
630 F.2d at 512. Viehweg does not allege any facts related to employment. The alleged false
disclosures, therefore, do not violate due process.
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