Moreno-Avalos v. Hammond Indiana City Hall of et al

Filing 58

OPINION AND ORDER: Court GRANTS 37 Motion for Judgment on the Pleadings; DENIES AS MOOT 39 Motion to Sue Defendants Under Their Official Capacity and 40 Motion to Amend the Name of a Defendant; GRANTS IN PART AND DENIES IN PART 44 Motion to Strike. Clerk DIRECTED to STRIKE the Plaintiff's 42 filing of Exhibits. Judgment is entered in favor of the Defendants and against the Plaintiff. Signed by Judge Theresa L Springmann on 1/30/2015. cc: Pro se pltf (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SONIA MORENO-AVALOS,
Plaintiff,
v.
CITY HALL OF HAMMOND,
INDIANA, et al.,
Defendants.
--------------------------------------------------SONIA MORENO-AVALOS,
Plaintiff,
v.
CITY HALL OF HAMMOND,
INDIANA, et al.,
Defendants.

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CAUSE NO.: 2:13-CV-347-TLS

CAUSE NO.: 2:13-CV-450-TLS

OPINION AND ORDER
On December 6, 2013, the Plaintiff, Sonia Moreno-Avalos, filed a pro se Complaint [ECF
No. 1, Cause No. 2:13-CV-450] against the Defendants, City Hall of Hammond, Indiana, and
five City of Hammond officials for harassment. Prior to the Complaint in this matter, the Plaintiff
filed a pro se Complaint against the same Defendants for Breach of Contract and Violation of a
Federal Bankruptcy Automatic Stay [ECF No. 1, Cause No. 2:13-CV-347]. The Court
consolidated the two matters in an Opinion and Order [ECF No. 26] issued on February 3, 2014,
which made Cause No. 2:13-CV-347 the lead case in this dispute (all ECF citations below are to
the ECF numbers in the lead case). The Defendants in this matter filed a Motion to Dismiss in
each case prior to the consolidation of the cases. The Court denied the Motions to Dismiss in an
Opinion and Order [ECF No. 33] issued on August 8, 2014. The Defendants then filed an
Answer [ECF No. 36] on August 22, 2014.

This matter is now before the Court on the Defendants’ Motion for Judgment on the
Pleadings [ECF No. 37], filed on August 22, 2014. On that same date, the Defendants also filed a
Memorandum in Support of their Motion [ECF No. 38]. The Plaintiff filed a 40-page Response
[ECF No. 41] on September 3, 2014. This Response exceeds the page limit requirements found
in the Court’s local rules. See N.D. IND. L.R. 7-1(e)(1). The Plaintiff also attempted to file
Exhibits [ECF No. 42]. The Defendants filed a Reply [ECF No. 43] on September 10, 2014, and
a Motion to Strike the Plaintiff’s Exhibits [ECF No. 44]. With those filings in the record, the
matter is fully briefed and ripe for ruling.

PRELIMINARY MATTERS AND EXTRANEOUS FILINGS
The Plaintiff is proceeding pro se and has filed voluminous documents with the Court.
Her filings have been lengthy and difficult to comprehend. Through her filings, the Plaintiff has
attempted to assert myriad claims against the Defendants and has done so repeatedly.
Nonetheless, the Court has construed the Plaintiff’s filings liberally given her pro se status.
There are a number of motions pending before the Court aside from the Motion for
Judgment on the Pleadings. These motions include the Plaintiff’s “Motion to Sue[] Defendants
Under Their Official Capacity” [ECF No. 39], Plaintiff’s Motion to Amend the Name of a
Defendant [ECF No. 40], and the Defendants’ Motion to Strike Exhibits [ECF No. 44]. The
Plaintiff’s motions regarding amending the Complaint to sue the Defendants in their official
capacity and to amend the name of a Defendant are denied as moot because the Motion for
Judgment on the Pleadings is fully briefed and the Court’s Opinion and Order resolves the case.
The Defendants’ Motion to Strike Exhibits raises legitimate issues with the Plaintiff’s
Response and filings. The Plaintiff presented information outside the pleadings in the form of
exhibits with her Response. But in a motion for judgment on the pleadings, documents attached

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to a motion, or a response to the same, cannot be considered as part of the pleadings unless they
are referred to in the plaintiff’s complaint and are central to the claim. Levenstein v. Salefsky, 164
F.3d 345, 347 (7th Cir. 1998); Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir.
1994). Accordingly, if “matters outside the pleadings are presented to and not excluded by the
court,” the court must treat a Rule 12(c) motion for judgment on the pleadings as a motion for
summary judgment. Fed. R. Civ. P. 12(d). Here, because of the redundant and/or impertinent
nature of the Plaintiff’s exhibits, the Plaintiff’s attempt to attach such exhibits in ECF No. 42 will
not be permitted; and as a result, the Court will not convert the motion to one for summary
judgment. See Marques v. Fed. Reserve Bank of Chi., 286 F.3d 1014, 1017 (7th Cir. 2002)
(stating that a court has discretion to consider attached materials and convert a 12(b)(6) motion
into a summary judgment motion). However, the Court will consider the Plaintiff’s entire 40page Response and everything contained in the Complaint in ruling on the Motion for Judgment
on the Pleadings.
A motion for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure
12(c), permits a party to move for judgment after the complaint and answer have been filed by
the parties. When reviewing Rule 12(c) motions, a court must review the pleadings under the
same standard that applies when reviewing motions to dismiss for failure to state a claim under
Rule 12(b)(6). Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007).
When reviewing a complaint attacked by a Rule 12(b)(6) motion, a court must accept all
of the factual allegations as true. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Under the liberal
notice pleading requirements of the Federal Rules of Civil Procedure, the complaint need only
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”

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Fed. R. Civ. P. 8(a)(2). The complaint need not contain detailed facts, but surviving a Rule
12(b)(6) motion “requires more than labels and conclusions . . . . Factual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). A complaint must contain sufficient factual matter to “state a claim to relief that
is plausible on its face.” Id. at 570. “A claim has facial plausibility when 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) (citing Twombly, 550
U.S. at 556).
Before proceeding to the factual background and analysis sections of this Opinion and
Order, it is worth noting that the issues involved in this case have been streamlined. Despite the
Plaintiff’s continued attempts to add additional claims to the case, only two claims remain
properly before the Court: (1) a 42 U.S.C. § 1983 claim for harassment; and (2) a claim for
breach of contract.

FACTUAL BACKGROUND
This dispute essentially pertains to the Plaintiff’s real estate in Hammond, Indiana. The
City of Hammond and its officials have issued the Plaintiff a number of citations regarding
building code violations. The Plaintiff has filed with the Court hundreds of pages of documents
that are difficult to understand. Some of the filings are repetitive. Others make arguments
regarding claims that are no longer at issue in this litigation. As described above, the Court has
narrowed this case to two specific claims the Plaintiff is attempting to make. The Court will
recount here the very basic facts related to those claims as best as the Court understands them

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based on the Plaintiff’s filings.
The Plaintiff claims that she was harassed by City of Hammond officials. Specifically, the
Plaintiff argues that City Building Inspector Kim Nordhoff issued numerous citations to the
Plaintiff and that the issuance of the citations was done wrongfully. She recounts a time where
Nordhoff requested permission to enter the Plaintiff’s property for inspection, the Plaintiff denied
Nordhoff’s request to enter, and the two engaged in a verbal altercation. The Plaintiff claims that
she is afraid of Nordhoff. She also claims that a truck circled her property on various occasions
and that the person in the truck was taking pictures of the property. However, as best as the Court
can tell, her factual claims are mostly related to the fact that she has been issued numerous
citations and has been required to appear in court on multiple occasions. The Court also notes
that according to the Defendant’s brief, the Plaintiff’s property has not been demolished.
With regard to her contract claim, the Plaintiff provides an affidavit from attorney David
W. Weigle [Compl., ECF No. 1], who formerly represented the Plaintiff in a pro bono capacity.
He does not represent the Plaintiff now. The primary issue with the Plaintiff’s property was a
faulty roof and whether the roof had to be totally removed and repaired or only partially repaired
for the Plaintiff to comply with local regulations. Weigle’s affidavit states that he had an
agreement with the City of Hammond that the Plaintiff’s roof issue “would be resolved by the
opinion of a reputable roofing contractor licensed in the City of Hammond to be obtained by [the
Plaintiff] relative to a hearing scheduled for December 8, 2011.” The Plaintiff claims that this
agreement established an enforceable contract and that the Defendants breached the contract
when on December 7, 2011, the Plaintiff received a letter informing her that her property was in
violation of several city housing codes and that it would be demolished if she failed to bring the
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house up to code. According to the Plaintiff, on April 2, 2013, the city denied a building permit
to two roofing companies that the Plaintiff had hired to work on the roof. However, the Plaintiff
has not provided any information to show that a contractor provided an opinion to the city about
whether proposed repairs would bring the roof into compliance with city codes.
The Defendants argue that the Plaintiff’s claims are meritless. The Defendants
specifically state that (1) the alleged conduct of city employees does not represent a constitutional
violation under § 1983; and (2) no enforceable contract existed between the parties; and
alternatively, even if an enforceable contract did exist, the alleged facts fail to show a breach of
contract.

ANALYSIS
A.

Section 1983 Harassment Claim
To prevail on a § 1983 claim, a plaintiff must show that she was deprived of a right

secured by the Constitution or laws of the United States and that the deprivation was caused by a
person acting under color of state law. Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007).
Although the Plaintiff does not specify what federal rights are at issue, the Plaintiff essentially
claims that the Defendants abused their power as public officials, and thereby violated
substantive due process.
Substantive due process claims, while “very limited” in scope, Tun v. Whitticker, 398
F.3d 899, 902 (7th Cir. 2005), may address “harmful, arbitrary acts by public officials,” Geinosky
v. City of Chi., 675 F.3d 743, 750 (7th Cir. 2012). “But such claims must meet a high standard,
even when the alleged conduct was abhorrent, to avoid constitutionalizing every tort committed

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by a public employee.” Id. For such claims to be actionable, the alleged conduct must “shock the
conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 855 (1998); see Viehweg v. City of
Mount Olive, 559 Fed. Appx. 550, 552 (7th Cir. 2014) (“Under this standard, abuse that is merely
tortious or even ‘abhorrent’ does not offend substantive due process.”) (quoting Tun, 398 F.3d at
902); Kernats v. O’Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994) (“every official abuse of power,
even if unreasonable, unjustified, or outrageous, does not rise to the level of a federal
constitutional deprivation”).
Here, the Plaintiff alleges that city employees—particularly City Building Inspector Kim
Nordhoff—engaged in harassing behavior. According to the Plaintiff, Nordhoff requested
permission to enter the Plaintiff’s building to inspect it, the Plaintiff denied Nordhoff’s request to
enter, and the two engaged in a verbal altercation. The Plaintiff claims that a truck circled her
property on multiple occasions and that the person in the truck was taking pictures of the
property. Again, as best as the Court can tell, the Plaintiff’s factual claims largely pertain to her
being subject to multiple citations and being required to appear in court.
Even when construing the Complaint in a light most favorable to the Plaintiff, the
Plaintiff has not pled facts suggesting a constitutional deprivation. As cited by the Defendants,
Viehweg is an illustrative case under the factual scenario here. The plaintiff in Viehweg alleged
that city officials “violat[ed] his substantive due-process rights by aggressively demanding that
he demolish his garage.” 559 Fed. Appx. at 550. The plaintiff claimed that city officials “barked
demands and warnings [at him], pounded on his door, shone a headlight through his window, and
told him not to attend a council meeting.” Id. at 552. Nonetheless, the Court of Appeals held that
the defendants’ alleged conduct was “not so egregious that [it] violated substantive due process.”
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Id. at 553. The court specifically noted that the defendants’ “largely verbal harangues” did not
involve actual or threatened physical contact with the plaintiff or the seizing of his body or
possessions. Id.; compare also Rochin v. California, 342 U.S. 165, 172 (1952) (forcible stomach
pumping to retrieve swallowed evidence was a substantive due process violation) with Geinosky,
675 F.3d at 750–51 (concluding that the issuance of 24 parking tickets constituted “deliberate”
and “unjustified” official harassment, but did not violate substantive due process) and Palka v.
Shelton, 623 F.3d 447, 453–54 (7th Cir. 2010) (concluding that police investigatory tactics did
not “shock the conscience” merely because they did not conform to internal department
procedures).
Similar to Viehweg—a case which, even when viewing the allegations in the Plaintiff’s
favor, involved a far more troubling factual scenario—the Plaintiff does not allege that the
Defendants’ conduct involved actual or threatened physical contact, the seizing of her body or
possessions, or any other behavior that “shocks the conscience.” Lewis, 523 U.S. at 855. At
worst, the Plaintiff’s allegations portray aggressive enforcement tactics on the part of the
Defendants. Even if the Plaintiff considered such conduct annoying or intrusive, it does not meet
the high standard required to make out a constitutional violation under § 1983. See Bublitz v.
Cottey, 327 F.3d 485, 490 (7th Cir. 2003) (“the due process clause [by way of a § 1983 claim]
was not meant to serve as a font of tort law to be superimposed upon whatever systems may
already be administered by the States.”) (quoting Paul v. Davis, 424 U.S. 693, 701 (1976))
(internal quotation marks omitted).
Accordingly, the Plaintiff’s § 1983 claim for harassment must be dismissed on the

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pleadings.1

B.

Breach of Contract Claim
The Plaintiff further alleges that she entered into an enforceable contract with the

Defendants, and the Defendants breached the contract by continuing to pursue code enforcement
actions against her.
First, the Plaintiff does not show the existence of a contract. The formation of a contract
requires an offer, acceptance, consideration, and a manifestation of mutual assent. Ind. Dep’t of
Corr. v. Swanson Servs. Corp., 820 N.E.2d 733, 737 (Ind. Ct. App. 2005). “‘A mutual assent or a
meeting of the minds on all essential elements or terms must exist in order to form a binding
contract. Assent to those terms of a contract may be expressed by acts which manifest
acceptance.’” Homer v. Burman, 743 N.E.2d 1144, 1146–47 (Ind. Ct. App. 2001) (quoting
Pinnacle Comp. Servs., Inc. v. Ameritech Publ’g., Inc., 642 N.E.2d 1011, 1013 (Ind. Ct. App.
1994)).
To constitute consideration, there must be a benefit accruing to the promisor or a
detriment to the promisee. Ind. Dep’t of Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d 174,

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The Plaintiff names the City of Hammond as a defendant for her § 1983 claim, presumably for
the alleged actions of its employees. The Plaintiff also names Mayor Thomas J. McDermott and Tom
Dabertin as individual defendants because they “had full knowledge of the harassment inflicted against
the Plaintiff” by city employees. (Pl’s Resp. 5.) However, “[m]unicipalities are answerable only for their
own decisions and policies; they are not vicariously liable for the constitutional tort of their agents.”
Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir. 1992) (citing Monell v. New York Dep’t of Soc. Serv., 436
U.S. 658 (1978)). And in any event, municipalities can only be liable under § 1983 where there is
individual liability against the employees on the underlying substantive claim. Windle v. City of Marion,
321 F.3d 658, 663 (7th Cir. 2003) (“A plaintiff must prove that the individual officers are liable on the
underlying substantive claim in order to recover damages from a municipality under either a failure to
train or failure to implement theory.”). Here, the Court holds there is no liability for the underlying
offense, and so dismissal is also appropriate on the § 1983 claim against these defendants.

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179 (Ind. 2010) (citation omitted). For consideration to be in the form of a benefit to the
promisor, a legal right must be given to the promisor to which the promisor was not otherwise
entitled. Id. “A detriment on the other hand is a legal right the promisee has forborne.” Id. In any
form, consideration must be a bargained-for exchange. Id.; see also Bitler Inv. Venture II, LLC v.
Marathon Ashland Petroleum, LLC, 653 F. Supp. 2d 896, 914 (N.D. Ind. 2009) (stating that
consideration consists of any bargained-for exchange).
Here, the alleged agreement lacks consideration to support an enforceable contract.
According to the Plaintiff’s former attorney, during his representation of the Plaintiff, he and the
City of Hammond agreed that the issue of the roof on the Plaintiff’s property “would be resolved
by the opinion of a reputable roofing contractor licensed in the City of Hammond to be obtained
by [the Plaintiff] relative to a hearing scheduled for December 8, 2011.” (Compl. at 44.)
However, the Plaintiff has alleged no facts to suggest that the Defendants received a legal benefit
from the agreement. Prior to the agreement, the Defendants had issued numerous citations to the
Plaintiff regarding building code violations, including violations related to the Plaintiff’s roof.
The Complaint does not show that the Defendants’ effort to enforce local ordinances was
anything but a legal right to which they were already entitled. See Price v. State, 622 N.E.2d 954,
959 (Ind. 1993) (“The State may exercise its police power to promote the health, safety, comfort,
morals, and welfare of the public. . . . [and] [i]n furthering these objectives, it may subject
persons and property to restraints and burdens”) (internal quotation marks and citation omitted).
Nor does the Plaintiff allege facts to show that she suffered a legal detriment. The
Complaint contains allegations that on April 2, 2013—nearly two years after the alleged breach
of contract—the city denied a building permit to a roofing company that the Plaintiff had hired to
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work on the roof. But the Plaintiff alleges no facts to show that she made efforts to seek the
opinion of a roofing contractor prior to the hearing on December 8, 2011. And even if she had,
such efforts were in furtherance of her pre-existing legal obligation to adhere to local regulations.
Viewing the alleged facts in a light most favorable to the Plaintiff, the agreement appears to
embody nothing more than the city’s promise regarding its method of enforcement. See Burdsall
v. City of Elwood, 454 N.E.2d 434, 436 (Ind. Ct. App. 1983) (“a mere promise in and of itself
does not automatically entitle one to relief as a matter of law. . . . [i]n order to have a legally
binding contract, there must be a bargained for exchange.”) (citation omitted).
Alternatively, even if an enforceable contract does exist, the Plaintiff has failed to allege
facts showing a breach of contract. The Plaintiff claims that the Defendants breached the contract
when on December 7, 2011, the Plaintiff received a letter informing her that her property was in
violation of several city housing codes and that if she did not bring the house up to code it would
be demolished. But nowhere does the Plaintiff’s Complaint suggest that the alleged contract
required the Defendants to dismiss any existing or future ordinance violations against the
Plaintiff. Moreover, the Plaintiff has not provided any information to show that a contractor ever
provided an opinion to the city, before or after the hearing on December 8, 2011, about whether
proposed repairs would bring the roof into compliance with city codes. Accordingly, there is no
breach here.
Because the Plaintiff’s Complaint does not show either the existence of an enforceable
contract or a breach of contract, her claim necessarily fails.

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CONCLUSION
For the foregoing reasons, the Defendant’s Motion for Judgment on the Pleadings [ECF
No. 37] is GRANTED. Plaintiff’s “Motion to Sue[] Defendants Under Their Official Capacity”
[ECF No. 39] and Motion to Amend the Name of a Defendant [ECF No. 40] are DENIED AS
MOOT. The Defendants’ Motion to Strike [ECF No. 44] is GRANTED IN PART AND
DENIED IN PART. The Clerk is directed to STRIKE the Plaintiff’s filing of Exhibits [ECF No.
42]. The Clerk is directed to enter judgment in favor of the Defendants and against the Plaintiff.
SO ORDERED on January 30, 2015.

s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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