Castronovo v. The County of Winnebago, Illinois et al

Filing 26

WRITTEN Opinion entered by the Honorable Frederick J. Kapala on 11/1/2011: Defendants' motion to dismiss 15 is granted. Counts I and III are dismissed with prejudice as to all defendants, and official capacity claims against the individual defendants are dismissed from Count II. [For further details see order.]Docketing mailed notice(jat, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Frederick J. Kapala

CASE NUMBER

11 C 50046

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

11/1/2011

Castronovo v. County of Winnebago, et al.

DOCKET ENTRY TEXT:

Defendants’ motion to dismiss [15] is granted. Counts I and III are dismissed with prejudice as to all defendants,
and official capacity claims against the individual defendants are dismissed from Count II.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
On April 8, 2011, plaintiff, Michael Castronovo, proceeding pro se, filed a three-count amended
complaint against defendants, Winnebago County and Winnebago County officials Scott Christiansen, Joseph
Vanderwerf, Wayne Vlk, Pearl Hawks, Dave Fiduccia, Frank Gambino, Angie Goral, Kyle Logan, Kay Mullins,
Tom Owens, Dianne Parvin, Steve Schultz, and Dave Tassoni, both individually and in their official capacities.
In Count I of his complaint, plaintiff alleges that he was denied substantive due process and suffered a taking
when the Winnebago County Board denied his request for a cut in the median on Harrison Avenue near his
property. In Count II, plaintiff asserts that his First Amendment rights were violated when Scott Christiansen
and other defendants denied plaintiff the right to speak or censored his speech at various county board meetings.
In Count III, plaintiff generally alleges a procedural due process violation under the Fourteenth Amendment and
sections one and two of article I of the Illinois Constitution. Defendants move to dismiss Counts I and III
pursuant to Federal Rule of Civil Procedure 12(b)(6) and to dismiss the claims against the county officials in their
official capacities as redundant.
I. BACKGROUND
Prior to 1993, the access rights to 6812 Harrison Avenue were owned by the State of Illinois. In 1993,
plaintiff purchased the access rights onto Harrison Avenue for $100 pursuant to County Resolution 288 (CR 288)
in order to build a driveway onto Harrison Avenue. From that time, and continuing until construction began on
Harrison Avenue in May 2008, there was no left turn access from plaintiff’s property east-bound onto Harrison
Avenue. During construction on Harrison Avenue, the four-inch median was removed, which allowed plaintiff
full ingress from and egress to the east-bound lane of Harrison Avenue. However, in May 2009, and as part of
the design specifications for the construction on Harrison Avenue, a median was re-installed, which consequently
obstructed plaintiff’s east-bound access onto Harrison Avenue.
Beginning in April 2009, plaintiff requested approval from the Winnebago County Board to keep access
to and from the east-bound lane of Harrison Avenue open. It is alleged that when plaintiff arrived at a county
board meeting, defendant Christiansen shouted “There’s the troublemaker.” It is further alleged that defendants
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STATEMENT
Hawks and/or Vanderwerf distributed a two-page document containing false allegations regarding the effect of
leaving open the cut in the median. Among other things, the document stated that the removal of the median was
a “safety issue,” which would cost between $20,000 and $62,000 and may not be allowed by the Illinois
Department of Transportation. It is also alleged that defendants Hawks and Vanderwerf consistently reminded
the Board that installation of a median was a “safety issue” during the meeting. Plaintiff was allowed to speak
at this meeting.
Gaining no traction on the issue, plaintiff sought to discuss his proposal at the Winnebago County Public
Works meetings on May 5 and 14, 2009. The Public Works meeting on May14 was called for the specific
purpose of discussing and voting on County Resolution 09-044 (CR 09-044), which was brought forth by two
board members who are not parties to this suit. CR 09-044 sought to recognize the left turn access rights asked
for by plaintiff. At both meetings, defendants Vanderwerf and Vlk allegedly gave false information to board
members and failed to adequately answer inquiries regarding the figures used in determining the costs of
eliminating the median. Defendant Vanderwerf did not let plaintiff speak during either of the meetings. Plaintiff
further alleges that the meeting on May 14 only had four members present during discussion of the resolution,
but late-arriving board members still voted on the resolution without hearing the merits of the proposed
resolution. Further, not a single member of the board requested a postponement to correct misinformation. The
resolution was denied by the board.
Though plaintiff believes the resolution was unnecessary because he owns the access rights to Harrison
Avenue, he sought reconsideration of the denial of CR 09-044 on June 16, 2009 at another Public Works meeting.
Before the meeting, plaintiff telephoned defendants Hawks, Fiduccia, Logan, and Tassoni in order to present
evidence that the real cost of cutting out the median was $5,000 and that the true figure was known by defendant
Vanderwerf the entire time. On that same night, plaintiff attended the meeting only to find that it had been
canceled because too many members called in sick. Plaintiff alleges that this meeting was canceled by defendant
Vanderwerf because of the materials he would have presented. Plaintiff further asserts that Vanderwerf acted
without authority in canceling the Public Works meeting. While exiting the meeting, defendant Vanderwerf
stated, “I don’t want you to have a cut,” and “you shouldn’t be allowed to have a business there, you belong in
the business district.”
II. DISCUSSION
Defendants’ motion for dismissal of Counts I and III is premised on plaintiff’s failure to state claims upon
which relief can be granted, and to dismiss all official capacity claims against the individual defendants on the
ground that these claims are redundant of the claims against the County of Winnebago. Because plaintiff is
proceeding pro se, his pleading is given “fair and meaningful consideration.” Ricketts v. Midwest Nat. Bank, 874
F.2d 1177, 1183 (7th Cir. 1989) (quotation marks omitted).
A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule
of Civil Procedure 12(b)(6) may be brought on either or both of two grounds: (1) a challenge to the “sufficiency
of the pleading” under Rule 8(a)(2) or; (2) a challenge to the legal cognizability of the claim. Fed. R. Civ. P.
8(a)(2). When construing the merits of a motion to dismiss under Rule Rule 12(b)(6), all well-pleaded factual
allegations will be drawn in the non-moving party’s favor. Christensen v. Cnty. of Boone, 483 F.3d 454, 457
(7th Cir. 2007). Courts may look only to the pleadings in determining whether a plaintiff has adequately stated
a claim; consideration of information outside the pleadings converts the motion to one for summary judgment.
Fed. R. Civ. P. 12(d). For a claim to survive a 12(b)(6) motion to dismiss, a complaint must contain “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Factual allegations must be sufficient to “raise a right to relief
above the speculative level” and “plausible on its face.” Id. at 555, 570. A well-pleaded complaint can survive
a motion to dismiss even if actual proof of the facts alleged is “improbable.” Id. at 556.

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STATEMENT
A. Official Capacity Claims
It is unclear whether plaintiff is attempting to plead several official capacity claims by designating each
defendant on his complaint as “individually, and as officer or official employed by Winnebago County.”
However, presuming that plaintiff does allege an official capacity claim against each individual defendant, in
addition to his claim against the County of Winnebago, defendants argue that naming the individual defendants
in their official capacities is redundant and should be dismissed. Plaintiff argues that the individual defendants
are properly named because there are allegations of personal involvement on the part of those officials.
When attempting to hold defendants liable in their individual capacities under § 1983, plaintiff must
allege that each individual was personally involved in the alleged constitutional violation. Palmer v. Marion
Cnty., 327 F.3d 588, 594 (7th Cir. 2003). On the other hand, to maintain an official capacity claim under § 1983,
plaintiff must allege that his constitutional injury was caused by (1) an express policy of the governmental entity;
(2) a widespread practice, which is not pursuant to law, but “is so permanent and well settled as to constitute a
custom or usage with the force of law; or (3) a person with final policymaking authority.” Wragg v. Vill. of
Thornton, 604 F.3d 464, 467 (7th Cir. 2010) (quotation marks omitted); see Monell v. N.Y. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978). An action against a employee of the county in his official capacity is equivalent to
a suit against the entity he represents; in this case, each individual defendant represents the County of
Winnebago. Jungels v. Pierce, 825 F.2d 1127, 1129 (7th Cir. 1987). It “makes no practical difference [that the
individual defendants are sued in their official capacities]; the city is liable for the official actions of its senior
policy-making official[s].” Id. As “misbehaving employees are responsible for their own conduct,” it is
redundant to sue both the county and individual county board members acting in their official capacity. Lewis
v. City of Chi., 496 F.3d 645, 656 (7th Cir. 2007). Accordingly, the defendants in their official capacities, other
than the County of Winnebago, are dismissed from this case.
B. Count I - Taking and Substantive Due Process
Plaintiff contends that CR 288 was a legally binding purchase between the County of Winnebago and
himself, with the knowledge and consent of the State of Illinois. Thus, when the County of Winnebago and State
of Illinois decided to perform construction on Harrison Avenue, the re-building of a median – which previously
existed but was removed during the construction in 2008 – was a taking of property without just compensation.
He further alleges that the decision of the Winnebago County Board deprived him of this property right without
due process when the Board denied his request for east-bound access onto Harrison Avenue. Defendants
maintain that a property owner does not own a property interest in the flow of traffic past his property and that
the action taken by Winnebago County was a lawful exercise of their police power. Plaintiff counters, arguing
that his situation is distinct because he purportedly owns the access rights to Harrison Avenue and it entitles him
to“full” access.
The takings clause of the United States Constitution reads: “nor shall private property be taken for public
use, without just compensation.” U.S. Const. amend. V. Similarly, the Illinois Constitution provides: “[p]rivate
property shall not be taken or damaged for public use without just compensation as provided by law.” Ill. Const.
Art. 1, § 15. “The first step in both due process and taking analyses is to determine whether there is a property
right that is protected by the Constitution.” Peterson v. United States Dept. of the Interior, 899 F.2d 799, 807 (9th
Cir. 1990); see also Napleton v. Vill. of Hinsdale, 229 Ill. 2d 296, 307 (2008) (“[A] court must first determine
the nature of the right alleged to be infringed by the government’s action.”).
The Illinois code provides that an individual has the right to a “reasonable means of ingress from and
egress to the State highway consistent with the use being made of such property and not inconsistent with public
safety or with the proper construction and maintenance of the State highway for purposes of travel, drainage and
other appropriate public use.” 605 ILCS 5/4-210. Thus, before recognizing whether there is an actual violation,
the central inquiry is whether plaintiff’s “reasonable means of ingress from and egress to” Harrison Avenue was
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STATEMENT
lost when the County of Winnebago re-built the median. Id. Plaintiff points to CR 288, which states that the
State of Illinois agreed to sell back the access rights to plaintiff on Harrison Avenue, which were previously
purchased by the State of Illinois in connection with the improvement of Harrison Avenue.1 It also states that
the intended purpose of selling back the access rights was for plaintiff to construct a driveway from Harrison
Avenue to his property.
It is well-settled that access rights to property cannot be taken away or diminished without just
compensation, but there is no such taking or impairment “where the property owner’s free and direct access to
the lane of traffic abutting on his property has not been taken or impaired.” Dep’t of Pub. Works & Bldgs. v.
Mabee, 22 Ill. 2d 202, 205 (1961); Winnebago Cnty. v. Rico Corp., 11 Ill. App. 3d 882, 885 (1973). Plaintiff
does not allege that his access rights to the abutting west-bound lane have been taken and he points to no law or
decision, other than CR 288, which provides support for finding that he had a vested property right in full ingress
from and egress to the east-bound lane of Harrison Avenue.
Although nothing in CR 288 states that plaintiff has “full access” rights, he argues that Rico Corp. is
distinguishable because the court did not mention that the property owner in Rico owned full access rights. See
id. However, plaintiff misinterprets the access rights sold to him by the State of Illinois. When a landowner sells
the access rights to his property, normally in connection with construction on an existing or new road, he allows
the state to block access to or from his driveway, and is compensated for it. Dep’t of Pub. Works & Bldgs. v.
Wilson & Co., Inc., 62 Ill. 2d 131, 139 (1975) (“It is clear from the foregoing cases and others that a property
owner suffers compensable damages if his access to an abutting street is completely eliminated.”). When buying
back that access right, he is not entitled to full access; rather, he is only granted a reasonable means of ingress
and egress. 605 ILCS 5/4-210. Illinois courts have determined that one-way access is sufficient to satisfy a
“reasonable means of ingress to and egress from” an abutting street. Wilson, 62 Ill. 2d at 142 (observing that
“the rule that the right of access to an existing public street or highway is a valuable property right which cannot
be taken away or materially impaired without just compensation cannot be applied, however, where the property
owner’s free and direct access to the lane of traffic abutting on his property has not been taken or impaired”
(quotation marks omitted)); see also 605 ILCS 5/4-210. Thus, when plaintiff bought his access rights, he
purchased the same access rights owned by the defendant in Rico Corp., even though that detail was not stated
in the opinion. Rico Corp., 11 Ill. App. 3d at 882. Plaintiff would not have been able to build his driveway
without first purchasing the access rights back from the State of Illinois because without so doing, he would not
have owned a right to access the street. Furthermore, plaintiff bought his access rights with the median already
present on Harrison Avenue.2 Since the defendant has not alleged the denial of a liberty or property interest,
defendants’ motion to dismiss for failure to state a claim is granted as to Count I.
C. Count III - Procedural Due Process
Though difficult to discern, presumably plaintiff alleges a violation of his Fourteenth Amendment right
to a fair hearing. In Count III, plaintiff alleges that individual members of the County Board deliberately
attempted to circumvent or prevent his testimony regarding any information relating to the median on Harrison
Avenue. He further alleges that it became custom and practice to allow defendant Vanderwerf more power than
granted by his position, which resulted in an abuse of such power in relation to Winnebago County procedures,
including the cancellation of a June 16, 2009 Winnebago County Public Works meeting. However, having
already determined that plaintiff did not have a valid property right in access to both sides of Harrison Avenue,
any deficiency in the procedures that were afforded to him cannot constitute a constitutional violation under the
due process clause because no deprivation of a life, liberty, or property interest took place. Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 569-70 (1972). Accordingly, defendants’ motion to dismiss for failure to state
a claim is granted as to Count III.
III. CONCLUSION
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STATEMENT
In light of the foregoing, defendants’ motion to dismiss for failure to state a claim regarding Counts I and
III is granted. Further, all official capacity claims remaining in Count II against Winnebago County officials
Scott Christiansen, Jeseph Vanderwerf, Wayne Vlk, Pearl Hawks, Dave Fiduccia, Frank Gambino, Angie Goral,
Kyle Logan, Kay Mullins, Tom Owens, Dianne Parvin, Steve Schultz, and Dave Tassoni are dismissed on the
grounds that they are redundant of the claim against the County of Winnebago.

1. Plaintiff also points to various provisions in the Illinois Access Control Manual. Yet, the access
control manual directs the reader to 605 ILCS 5/8-101, which states unambiguously that the county
board has the right to “plan, locate, relocate, construct, reconstruct, maintain, alter, improve, vacate
and regulate” existing highways. 605 ILCS 5/8-101. It also states that a particular county board has
the right to “promote the safety and convenience of highway traffic.” Id.
2. It is vexing that plaintiff now seeks unlimited access to Harrison Avenue after fifteen years of
limited one-way access. Since compensation for a taking is the difference before and after the
taking, in this situation there would be no difference in property value because the east-bound access
was only available while the road was under construction and had been blocked for over fifteen
years. Dept. of Transp. v. Kelley, 352 Ill. App. 3d 278, 280 (2004). Plaintiff bought the access rights
with knowledge that they were for partial access and had no legitimate expectation that east-bound
access would remain unblocked.

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