Moreno-Avalos v. City of Hammond Indiana et al
OPINION AND ORDER: Defendants' 80 Motion for Summary Judgment is GRANTED. The Clerk is ORDERED to CLOSE this case. Signed by Judge Rudy Lozano on 11/14/2017. (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
) CAUSE NO. 2:16-cv-172
CITY OF HAMMOND INDIANA,
OPINION AND ORDER
This matter is before the Court on the Defendants’ Motion for
Summary Judgment, filed by Defendant, City of Hammond, Indiana, and
Kim Nordhoff, in her individual capacity, on July 24, 2017 (DE
For the reasons set forth below, the motion is GRANTED.
regulatory taking claim is dismissed because it is barred by the
dismissed because they are barred by claim preclusion.
is ORDERED to CLOSE this case.
This case centers around the rental property at 551 Gostlin
Street in Hammond, Indiana, which was owned by Plaintiff, Sonia
The property lapsed into disrepair and became the
subject of municipal code violations.
Over a five-year period,
Plaintiff disputed the code violations, and appeared in Hammond
City Court and the Hammond Board of Public Works and Safety (either
in person or by counsel), to challenge them.
Plaintiff filed her first complaint on January 23, 2013,
pursuant to 42 U.S.C. § 1983 in district court against “City Hall
of Hammond, Indiana, Kurt Koch, Kim Nordhoff, and Darren Taylor,”
under Case No. 2:13-cv-38-JVB-APR (Defs. Ex. H, the “038 Action”).
In that complaint, she alleged she complained to the Mayor about
the conduct of Hammond Code Enforcement inspector Kim Nordhoff,
asserting Nordhoff stalked her and interfered with her landlordtenant relationships. (Id. ¶¶ 11-18, 21-26.) She also alleged Koch
retaliated against her by having her property declared an unsafe
building and making false statements. (Id. ¶ 4.)
On August 21,
2013, Judge Van Bokkelen dismissed Plaintiff’s complaint for lack
of personal jurisdiction due to failure to serve. (Ex. H at 5.)
Plaintiff filed another section 1983 action in district court
on September 26, 2013, against the same defendants plus Mr.
Dabertin and Mayor McDermott.
That matter was assigned to Judge
Theresa Springmann under Case No. 2:13-cv-347-TLS-PRC (Ex. I, “347
Action”). Plaintiff brought many of the same allegations, including
her claim that defendants retaliated against her by ordering her
Gostlin Street property to be demolished, that she had been stalked
by Nordhoff, harassed by the other defendants in retaliation for
her report of Nordhoff’s alleged harassment, and that Koch made
false statements about the condition of her building.
33, 19, 47.)
(Id. ¶¶ 32-
While this action remained pending, Plaintiff filed
a third section 1983 complaint in district court against the
defendants, under Case No. 2:13-cv-00450-JTM-PRC (Ex. J, “450
Plaintiff reiterated her previous claims against the
same defendants, alleging harassment, false statements, tortious
interference with a business relationship, breach of contract, and
Judge Springmann consolidated this action with
the 347 Action pending before her.
(Ex. I, J.)
On August 22, 2014, the defendants filed their motion for
judgment on the pleadings.
Judge Springmann granted that motion
and entered judgment on the pleadings in Cases 347 and 450 (Ex. I).
Plaintiff did not appeal the decision.
On May 16, 2016, Plaintiff filed a pro se complaint in this
She obtained counsel and was granted leave to file a Second
Amended Complaint on October 11, 2016 (DE #42-1).
Defendants, Thomas McDermott, Tom Dabertin, Kim Nordhoff, Kurt
Koch, and Darren Taylor moved for partial dismissal for failure to
state a claim, and on January 4, 2017, this Court granted that
motion (DE #63). The case then remained pending against Defendant,
the City of Hammond, Indiana, and Counts IV, V, and VII remained
pending against Defendant Nordhoff in her individual capacity.
Defendants, the City of Hammond and Kim Nordhoff, based upon
principles of res judicata/claim preclusion, the applicable statute
of limitations, the Monell doctrine, and qualified immunity.
The Court notes that Defendants have submitted a Statement of
Undisputed Material Facts, with citations to evidence in the
record, including several affidavits (authenticating the Hammond
Board of Public Works and Safety’s record concerning the several
board hearings held about the Gostlin St. property), and certified
copies of the court dockets.
(DE #82-1, 82-2-34.)
Plaintiff has failed to submit any Statement of Genuine Disputes,
and has failed to properly assert that Defendants’ facts are
Herrera dated April 18, 2013, stating he signed a contract with
Plaintiff to put a new roof on her property, however, the Code
Enforcement Department refused to provide the requested building
permits(DE #84-3) (but Herrera does not say why he was denied a
building permit)1; an affidavit of Victoriano Pacheco, which states
he installed electrical and wiring service at the Gostlin Street
The Herrera affidavit was also attached to Plaintiff’s
previous complaint, considered by Judge Springmann in her earlier
opinion and order dated January 30, 2015. (DE #82-83 at 16, 41,
property in March of 2000 and that it was inspected and approved by
inspections), and that the property was “in a safe structural
plaintiff’s motion to amend complaint (DE #84-1), the Court’s order
granting the motion to amend because “Plaintiff [who was previously
pro se] deserves a chance to plead her case with her lawyer’s help”
(DE #84-2); a Notice of Municipal Ordinance Violation dated May 14,
2010, in which Plaintiff has underlined the municipal requirement
that “[t]he roof is tight and has no defects which admit rain” (DE
#84-5), a bank loan statement (DE #84-6); a letter from Chase Bank
concerning insurance claims fund (DE #84-7); pictures of the
property (DE #84-8), and a portion of the Indiana Unsafe Building
statute (DE #84-10).
judgment file a response brief within 28 days after being served
the motion and that the “response brief or its appendix must
include a section labeled ‘Statement of Genuine Disputes’ that
identifies the material facts that the party contends are genuinely
disputed so as to make a trial necessary.”
N.D. IND. L.R. 56-
“Objection to Defendants’ Statement of Material Facts” (DE #85), in
which she lists her vague objections (without citations to any
evidence or anything in the record) to the completeness and
accuracy of Defendants’ statement of facts.
This runs contrary to
the federal rules which provide that “[a] party asserting that a
fact cannot be or is genuinely disputed must support the assertion”
either by “citing to particular parts of materials in the record”
or “showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.”
Fed. R. Civ. P.
56(c). As this Court has noted before, “[i]t is within the Court’s
province to require parties to adhere to the local rules and strike
Cunningham v. State Farm Ins. Co., No.
2:04-CV-62, 2005 WL 3279365, at *1 (N.D. Ind. Dec. 2, 2005) (citing
Schrott v. Bristol-Meyers Squibb Co., 403 F.3d 940 (7th Cir.
2005)). Defendants have not moved to strike Plaintiff’s response;
therefore, the Court will consider it.
However, because Plaintiff
has failed to submit a proper Statement of Genuine Issues, and has
failed to properly controvert Defendants’ statement of undisputed
admitted. See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 21819 (7th Cir. 2015); Ammons v. Aramark Unif. Servs., 368 F.3d 809,
818 (7th Cir. 2004).
The undisputed facts as set forth by the Defendants are as
Sonia Moreno-Avalos owned a rental property at 551 Gostlin
attached as Exhibit A, ¶3.) On May 11, 2010, Hammond inspector Kim
Nordhoff inspected the 551 Gostlin property and took photographs of
the building’s exterior. (Ex. A, ¶2.)
On May 14, 2010, a notice of municipal ordinance violation was
sent to Moreno-Avalos, notifying her that the condition of her
property violated several municipal ordinances, including lack of
a “tight” roof; and she was ordered to bring the property into
compliance with the ordinances by repairing the defects within ten
(10) days of the issuance of the notice. This matter was set for
hearing on June 16, 2010 in the Hammond City Court. (Ex. A, ¶4, and
Ex. A-1 attached thereto.)
On June 28, 2010, the Hammond City Court ordered Moreno-Avalos
to appear on July 14, 2010 in connection with these ordinance
violations under cause No. 45H04-1005-OV-52851 (“City Court 851
Action”). (See certified Hammond City Court Docket for Cause No.
45H04-1005-OV-52851, attached as Exhibit E.)
The matter was subsequently continued multiple times and
another order to appear was issued on August 16, 2010. (Ex. E, see
entries dated 7/16/2010, 8/16/2010, 9/13/2010, 9/20/2010.)
October 15, 2010, a default judgment was entered against
Avalos in Hammond City Court regarding the ordinance violations for
which she was cited. (Ex. E, entry of 10/15/2010.)
On April 20, 2011, Moreno-Avalos was notified of municipal
ordinance violations regarding her property and was summoned to
court for a hearing on May 19, 2011 under Cause No. 45H04-1105-OV52897 (“City Court 897 Action”). (See certified Hammond City Court
Records for Cause No. 45H04-1105-OV-52897, attached as Exhibit F,
Bates stamped pp. 33-34, City of Hammond Notice of Municipal
Ordinance Violation Citation and Summons to Court.)
On May 17, 2011, Attorney David Weigle entered an appearance
for Moreno-Avalos and moved to set aside default judgment in the
City Court 851 Action on the basis of alleged lack of notice; and
on May 18, 2011, the Hammond City Court set aside the default
judgment. (See Affidavit of Kristina Kantar, attached as Exhibit D,
¶2 and Exhibit D-1 attached thereto; see also Exhibit E generally.)
On May 19, 2011, the Hammond City Court scheduled a hearing in the
City Court 897 Action for June 23, 2011. (Ex. F, p. 27.)
On June 23, 2011, the Hammond City Court held a status
conference in the City Court 897 Action and set a trial date of
September 29, 2011, regarding Moreno-Avalos’s municipal ordinance
citations. (Ex. F, p. 28.) On July 11, 2011, inspector Kim Nordhoff
prepared a list of municipal ordinance violations based on her
thereto.) On September 29, 2011, the trial in the City Court 897
Action was continued to November 3, 2011; and on November 3, 2011,
the trial was reset for December 8, 2011. (Ex. F, p. 2.)
On December 7, 2011, a notice of violation was mailed to
Moreno-Avalos notifying her that her property was inspected and
found to be an unsafe building in violation of Indiana Code 36-7-9
et seq. and Sections 150, 96, and 160 of the Hammond City Code.
Moreno-Avalos was also notified of the City’s intention to demolish
the building within thirty days. (See Affidavit of Kevin C. Smith
attached as Exhibit C, ¶3 and Exhibit C-1 attached thereto.) A
hearing on the notice of intent to demolish was set for January 12,
2012 before the Hammond Board of Public Works and Safety (“Board”).
The notice provided that if Moreno-Avalos failed to appear for the
hearing, the notice would automatically be considered a demolition
order, subject to execution by the City. (Ex. C-1.) On December 8,
2011, the Hammond City Court trial in the 897 Action was vacated.
(Ex. F, p. 2.)
On December 20, 2011, Attorney Weigle appeared for MorenoAvalos before the Board and requested that the hearing be continued
to February 23, 2012. (See Ex. C, ¶4 and Ex. C-2 attached thereto.)
On January 23, 2012, Kevin Smith, attorney for the City of
Hammond, wrote to advise attorney Weigle that the Board hearing on
the proposal to demolish the Gostlin Street property was continued
to April 12, 2012. (See Ex. C, ¶5 and Ex. C-3 attached thereto.)
On February 7, 2012, Moreno-Avalos filed for bankruptcy under
Chapter 13 of the U.S. Bankruptcy Code. (Case No. 12-04247,
“Bankruptcy Action”.) (See certified docket from U.S. Bankruptcy
Court for the Northern District of Illinois, Case No. 12-04247,
attached as Exhibit G, pp. 1-2, DE #1.)
On April 12, 2012, the Hammond Board of Public Works & Safety
(“Board”) continued the demolition hearing on the 551 Gostlin
property. (See Affidavit of Lynn Laviolette attached as Exhibit B,
and Exhibit B-1, pp. 3-4 attached thereto.)
On May 2, 2012, the Hammond City Court continued the 897
Action for status. (Ex. F, p. 2.) On May 3, 2012, the City of
Hammond mailed Moreno-Avalos an order to appear for the May 30,
2012 status hearing in the City Court 897 action. (Ex. F, p. 21.)
On May 23, 2012, attorney Wheeler (plaintiff’s bankruptcy
counsel) filed a motion for damages against the City of Hammond for
alleged violation of the stay in bankruptcy. (Ex. G, p. 5, D.E.
33.) On June 25, 2012, the City of Hammond filed a response to
Moreno-Avalos’s motion for damages in the bankruptcy action. (Ex.
G, p. 6, DE #40-41.) On July 26, 2012, the Board hearing was
bankruptcy action remained pending. (Ex. B and Ex. B-2, p. 2
On July 30, 2012, attorney Smith wrote to advise attorney
Weigle that the hearing regarding the 551 Gostlin property was
continued to September 20, 2012. (See Ex. C, ¶6 and Ex. C-4
An evidentiary hearing was held in the U.S. Bankruptcy Court
for the Northern District of Illinois on August 6, 2012, at which
Moreno-Avalos appeared in person and by counsel. Following that
hearing, the Court (Judge Timothy Barnes) determined that the
automatic stay did not foreclose the City’s regulatory actions; and
it denied plaintiff’s motion to recover monetary damages. (Ex. G,
pp. 6-7, DE #48-49.)
On September 20, 2012, the Board hearing was continued to
bankruptcy action remained pending. (Ex. B and Ex. B-3, pp. 2-3
On January 23, 2013, Moreno-Avalos filed her first 42 U.S.C.
§ 1983 complaint in U.S. District Court against City Hall of
Hammond, Indiana [City of Hammond], Kurt Koch, Kim Nordhoff, and
Action”). (See certified docket and selected filings from the 038
Action attached as Exhibit H, Bates stamped pp. 1-2.)
In the January 23, 2013 complaint, Moreno-Avalos alleged that
she complained to Mayor McDermott and his assistant, Tom Dabertin,
about the conduct of Hammond inspector Kim Nordhoff, to-wit, that
Nordhoff had supposedly “stalked” her (Ex. H, p. 7, ¶ III); and
landlord-tenant relationship with existing tenants. (Ex. H, pp. 1112, ¶¶ 11-18, 21-26.) Moreno-Avalos also alleged that Mr. Koch had
“retaliated” against her by having her property declared an unsafe
building and by supposedly making “false statements” about her
having an unsafe building. (Ex. H, pp. 7-8, ¶ IV.)
On January 24, 2013, the Board hearing was continued to April
25, 2013, inasmuch as Moreno’s bankruptcy action remained pending.
(Ex. B and Ex. B-4, p. 2 attached thereto.)
On January 28, 2013, attorney Smith wrote to attorney Weigle
to advise that the Board hearing was continued to April 25, 2013.
(Ex. C, ¶7 and Ex. C-5 attached thereto.)
On April 25, 2013, the
Board hearing was continued to June 27, 2013, inasmuch as MorenoAvalos’s bankruptcy action remained pending. (Ex. B and Ex. B-5, p.
4 attached thereto.)
On April 29, 2013, attorney Smith wrote to
attorney Weigle to advise that the Board hearing was continued to
June 27, 2013. (Ex. C, ¶8 and Ex. C-6 attached thereto.)
On August 21, 2013, Judge Van Bokkelen dismissed plaintiff’s
complaint against the Hammond Defendants in the 038 Action for lack
of personal jurisdiction because the defendants were not properly
served. (Ex. H, p. 5, DE #36.)
On September 20, 2013, the
bankruptcy action for her failure to make plan payments. (Ex. G, p.
7, DE #51.)
On September 26, 2013, Moreno-Avalos filed a second § 1983
action in the district court against the same defendants, adding
Mr. Dabertin and Mayor McDermott as co-defendants (collectively
“Hammond Defendants”), under Case No. 2:13-cv-347-TLS-PRC (the “347
Action”). (See certified docket and selected filings in the 347
Action attached as Exhibit I, Bates stamped pp. 1-3.) In her second
“retaliated” against her by ordering her Gostlin Street property
demolished (Ex. I, p. 24, ¶ I); that she had been stalked by Ms.
Nordhoff; that she had been harassed by Nordhoff and the other
defendants in “retaliation” for plaintiff’s report of Nordhoff’s
alleged harassment (Ex. I, p. 25, ¶ II; p. 27, ¶19; p. 30, ¶47);
and that Mr. Koch made “false statements” about the condition of
her building. (Ex. I, p. 25, ¶II; p. 28, ¶33; see also Complaint
generally, Ex. I, pp. 21-30.)
On October 21, 2013, the bankruptcy court entered an order
dismissing Moreno-Avalos’s bankruptcy action for failure to make
plan payments and she was notified of the order dismissing the
bankruptcy action. (Ex. G, p. 8 DE #56-57.)
On December 6, 2013, Moreno-Avalos filed another § 1983
complaint against defendants in federal court, under Case No. 2:13cv-00450-JTM-PRC (“the 450 Action”); and that matter was assigned
to Judge James T. Moody. (See certified docket and selected filings
in the 450 Action, attached as Exhibit J, pp. 1-2.)
In the 450
action, Moreno-Avalos reiterated her previous claims against the
statements, tortious interference with a business relationship
(between her and her tenants); breach of contract; and stalking.
(Ex. J, pp. 7-12, ¶¶ I, III, XI, XII, XXV-XXVI; p. 14, ¶¶ 6-9.)
consolidating plaintiff’s 347 Action and 450 Action under Case No.
347. (See Ex. I, p. 5, D.E. #26; see also Ex. J, p. 4, D.E. 28.)
On May 12, 2014, a Notice of Violation of the Hammond Housing
Code was mailed to Moreno-Avalos, notifying her that her property
was inspected and deemed an unsafe building, and that it was
Moreno-Avalos did not appear for the hearing on June 12, 2014, the
notice would automatically be considered a demolition order. (Ex.
C, ¶9 and Ex. C-7 attached thereto.)
On May 28 and June 2, 2014, a notice of the June 12, 2014
demolition hearing was published in the Northwest Indiana Times
newspaper. (Ex. C, ¶10 and Exhibit C-8 attached thereto.) On June
12, 2014, Moreno-Avalos did not appear for the scheduled demolition
hearing. (Ex. C, ¶11.) The Board affirmed the Notice, which became
a demolition order. (Ex. B and Ex. B-7, p. 7, attached thereto.) On
June 16, 2014, the Board’s findings and order of June 12, 2014,
were filed with the Lake County Recorder’s office. (Ex. C, ¶12 and
Ex. C-9, attached thereto.)
On June 23, 2014, the deadline passed for Moreno-Avalos to
file a verified complaint seeking judicial review of the Board’s
findings and demolition order under Ind. Code 36-7-9-8. MorenoAvalos did not file a complaint seeking judicial review. (Ex. D,
On August 5, 2014, a notice of bid opening for the demolition
of 551 Gostlin was mailed to all interested persons via certified
mail. (See Ex. C, ¶13 and Ex. C-10, attached thereto.)
On August 22, 2014, the Hammond Defendants filed their motion
for judgment on the pleadings and supporting brief in the 347
Action. (Ex. I, p. 6, DE #37-38.) On January 30, 2015, Judge
Springmann entered a final order granting the Hammond Defendants’
motion for judgment on the pleadings. A full and final judgment was
then entered in favor of the Hammond Defendants, including the City
of Hammond and Kim Nordhoff, and against Moreno-Avalos. (Ex. I, pp.
On March 2, 2015, the deadline passed for Moreno-Avalos to
Fed.R.App.P. 4(a)(1)(A). Moreno-Avalos did not appeal the decision.
(Ex. I, p. 8.)
In May 2015, the 551 Gostlin Street property was demolished by
the City of Hammond. ( DE #45-1, p. 2, ¶7.) On May 25, 2016, the
City of Hammond filed its Unsafe Building Demolition Lien regarding
the 551 Gostlin Street property with the Lake County Recorder’s
Office. (See Ex. C, ¶14 and Ex. C-11 attached thereto.)
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986).
Not every dispute between the
parties makes summary judgment inappropriate; “[o]nly disputes over
facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.”
determine whether a genuine dispute of material fact exists, the
Court must construe all facts in the light most favorable to the
non-moving party and draw all reasonable inferences in that party’s
See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
However, “a court may not make credibility determinations, weigh
the evidence, or decide which inferences to draw from the facts;
these are jobs for a factfinder.”
Payne v. Pauley, 337 F.3d 767,
770 (7th Cir. 2003) (citations omitted).
A party opposing a properly supported summary judgment motion
may not rely on allegations in his own pleading but rather must
“marshal and present the court with the evidence [he] contends will
prove [his] case.”
Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d
speculation or conjecture will not suffice.” Stephens v. Erickson,
569 F.3d 779, 786 (7th Cir. 2009) (citation omitted).
If the non-
moving party fails to establish the existence of an essential
element on which he bears the burden of proof at trial, summary
judgment is proper.
See Massey v. Johnson, 457 F.3d 711, 716 (7th
Defendants first argue that claim preclusion bars the claims
against them in this action.
The Supreme Court has defined the
doctrine as follows:
A fundamental precept of common-law adjudication,
embodied in the related doctrines of collateral
estoppel and res judicata, is that a “right,
question or fact distinctly put in issue and
directly determined by a court of competent
jurisdiction . . . cannot be disputed in a
subsequent suit between the same parties or their
privies . . . Under res judicata, a final judgment
on the merits bars further claims by parties or
their privies based on the same cause of action.
Montana v. United States, 440 U.S. 147, 153 (1979) (quotations
The federal law of claim preclusion applies here because the
earlier judgment was rendered by a federal court.
Abbott Labs., 457 F.3d 608, 615 (7th Cir. 2006).
See Schor v.
The doctrine of
requirements under federal law: a final decision in the first suit,
a dispute arising from the same transaction (identified by its
“operative facts”), and the same litigants (directly or through
privity of interest). Czarniecki v. City of Chicago, 633 F.3d 545,
548 (7th Cir. 2011).
The parties do not dispute that Judge Springmann’s decision on
the motion for judgment on the pleadings was a final decision.
This court agrees, as the order directed the Clerk to “enter
judgment in favor of the Defendants and against the Plaintiff.”
(Ex. I at 20.) Nor do the parties dispute whether it involved the
same parties or their privies.
Again, this Court agrees, as
defendant Kim Nordhoff was a defendant in the 347 Action and the
450 Action, and City Hall of Hammond (which was a defendant in the
two previous actions as well) is in privity with the defendant in
this case, the City of Hammond, Indiana. Rather, the main question
here is whether the dispute arises from the same transaction or
Plaintiff argues that “the Plaintiff’s claims of regulatory
taking, first amendment violation, and 1983 violations were not
ripe until the city of Hammond took the Plaintiff’s property in May
of 2015.” (DE #84 at 4.)
Certainly some of the disputes in this
case arose from the same transaction or events (and Plaintiff seems
to concede this, in only arguing that her claims of regulatory
taking (Count VI), First Amendment violation (Count I), and the
1983 violations (Counts I, II, and III), were not ripe until the
City of Hammond actually took the Plaintiff’s property in May of
Indeed, at least two counts in the second amended complaint in
this case (Count IV for tortious interference with a commercial
contract, and Count VII for harassment) were already alleged by
Plaintiff in the 347 and 450 Actions.
In the 347 Complaint,
Plaintiff alleges that Inspector Nordhoff was “stalking/harassing
Plaintiff” (347 Action, DE #1 at 5), and also alleged harassment in
the 450 Action (DE #1 at 4).
Judge Springmann specifically found
“the Plaintiff’s ¶ 1983 claim for harassment must be dismissed on
the pleadings” (Ex. I at 16-17.) Plaintiff also previously alleged
in the 450 Action that defendants interfered with her tenants (450
Action, DE #1 at 10), which are the same facts she uses now to
allege tortious interference with contract.
Moreover, the current
citations, and being retaliated against), and could have been
brought in the first two lawsuits that were consolidated.
received a notice of demolition (347 Action, DE #1 at 1), thus the
facts underlying the claim of emotional distress already existed,
and this claim could have been brought in the underlying federal
Because these claims are all based on the same operative
facts, and the same event that was alleged in the first two federal
lawsuits consolidated in front of Judge Springmann, they are barred
by res judicata.
See, e.g., Czarniekci, 633 F.3d at 549-50
between the first lawsuit and the second lawsuit are the theories
of liability”); Barr v. Bd. of Trustees of Western Illinois Univ.,
796 F.3d 837, 840 (7th Cir. 2015) (affirming dismissal on the basis
of res judicata where “[b]oth suits arise out of the same main
That leaves the Court to analyze whether the regulatory taking
claim, First Amendment violation, and 1983 violations are covered
by claim preclusion.
In other words, whether the claims arise
“from the same transaction or the same core of ‘operative facts’”
as the previous lawsuits.
Czarniecki, 633 F.3d at 549.
the two claims are based on different legal theories, the ‘two
claims are one for purposes of res judicata if they are based on
the same, or nearly the same, factual allegations.’” Matrix IV,
Inc. v. American Nat’l Bank and Trust Co. of Chicago, 649 F.3d 539,
547 (7th Cir. 2011) (quoting Herrmann v. Cencom Cable Assocs., 999
F.2d 223, 226 (7th Cir. 1993)).
“This test is an outgrowth of the
rule that a party must allege in one proceeding all claims and/or
counterclaims for relief arising out of a single occurrence, or be
precluded from pursuing those claims in the future.”
Bankert, 733 F.3d 190, 227 (7th Cir. 2013).
Regarding the First Amendment claim violation, the second
amended complaint in this case alleges that Inspector Kim Nordhoff
requested permission to enter Plaintiff’s property, Plaintiff
informed her it was owner occupied and she could not enter,
Nordhoff became angry with her, and several citations of building
code violations arrived after that.
(Sec. Am. Compl. at 3-4.)
inspector’s conduct to the Mayor, she received a letter ordering
the demolition of her property.
(Id. at 4.)
Plaintiff made the
exact same factual allegations in the 450 Action (DE #1 in 450
Action, at 5).
The facts underlying the First Amendment claim
therefore were in existence at the time of the previous lawsuits
(indeed, they are in the complaint), thus, considering the totality
of the circumstances, the First Amendment claim is based upon the
same factual allegations and is precluded by claim preclusion.
Next, the Court looks to the section 1983 claims: Count I for
deprivation of right to freedom of speech under the color of law;
Count II for deprivation of equal protection rights under the color
of law; and Count III for deprivation of right to freedom of
contract under the color of law.
The Court has already discussed
how the operative facts behind the right to freedom of speech and
freedom of contract are the same as the factual background in the
earlier lawsuits, and these claims either could have been, or
actually were, litigated by Judge Springmann.
With regard to the
equal protection claim, Plaintiff again alleges that Nordhoff
declared “war on [her] because the Plaintiff had refused entry to
Inspector Kim Nordhoff and complained about her trumpet [sic] up
building code violations to the Mayor.”
(Sec. Am. Compl. at 6.)
These factual allegations are the same as the ones already set
forth in the previous two lawsuits, and this claim is also barred
by claim preclusion.
The last claim is for regulatory taking (Count VI). Plaintiff
claims she could not have brought this claim earlier, because her
property was not demolished until May 2015 (four months after Judge
Plaintiff cites to cases involving standing,
claiming she could not have raised the regulatory taking issue
until she had an injury-in-fact, which was the actual demolition of
(DE #84 at 4-5.)
Defendants retort that at the time
of the previous cases, Plaintiff had already received a letter
stating that her property would be demolished, so she should have
already known what would happen; nevertheless, it was not until
after Judge Springmann’s opinion that the property was actually
razed. This is the strongest of Plaintiff’s arguments, as least as
far as claim preclusion goes.
While it is true that “once a
transaction must be brought in one suit or be lost” Andersen v.
Chrysler Corp., 99 F.3d 846, 852 (7th Cir. 1996), “[t]raditional
principles of preclusion allow additional litigation if some new
Supporters to Oppose Pollution, Inc. v. Heritage
Group, 973 F.2d 1320, 1326 (7th Cir. 1992). Similarly, a party can
assert a claim that “could not have been presented in the first
case . . . .”
Even assuming, arguendo, that the regulatory
taking claim is not barred by claim preclusion, it still fails.
Plaintiff alleges in this second amended complaint that the
City of Hammond “imposed regulations on Plaintiff that were so
harsh that it caused her a total loss of her property” and that the
“reckless imposition of the building code caused the Plaintiff to
loss [sic.] all use of her property.” (DE 42-1 at 10-11.)
memorandum in opposition, Plaintiff also argues that the City and
the government regulations go “too far” by condemning private
property without a specific safety reason, and that the statute is
ambiguous and arbitrarily applied to the Plaintiff’s property. (DE
#84 at 10-11.)
These arguments fail.
Regarding the regulations, Indiana Code 36-7-9-5 “allows for
requiring action relative to any unsafe premises, including removal
of an unsafe building.”
409 Land Trust v. City of South Bend, 709
N.E.2d 348, 351 (Ind. Ct. App. 1999).
As Judge Tinder stated:
“Federal courts are not boards of zoning appeals.”
River Park, Inc. v. City of Highland Park, 23 F.3d
164, 165 (7th Cir. 1994). So goes the opening line
of the frequently cited opinion authored by now
Chief Circuit Judge Frank H. Easterbrook. In River
Park, the Seventh Circuit was critical of
litigation strategies adopted by those who, for
whatever reason, believe they stand a better chance
of obtaining the local licenses, permits or zoning
categorization by attaching a “denial of due
process” moniker on their challenges to local
governmental actions and pursue the matter in
federal court.” “Labels do not matter. A person
contending that state or local regulation of the
use of land has gone overboard must repair to state
court.” Id. at 167.
Leonard’s Linen Service v. City of Bloomington, No. 1:06-cv-21-JDTWTL, 2007 WL 925546, at *1 (S.D. Mar. 26, 2007).
While it is true that “constitutional infringement during
local land use proceedings can occur and redress in federal courts
is sometimes appropriate,” in this case, the exhibits Plaintiff has
submitted with its opposition to the summary judgment motion do not
set forth any material facts to create any genuine issues to
overcome summary judgment.
The Pacheco affidavit about the
electrical wiring being properly installed in 2000 is so far
removed in time, and the Herrera affidavit about being denied a
building permit for the roof installation in 2013 also does not
defeat summary judgment.
As Judge Springmann previously noted in
her opinion, “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
(Ex. I at 14.)
Additionally, Defendants argue the regulatory taking claim
fails under the principles set forth in Heck v. Humphrey, 512 U.S.
477, 489-90 (1994) (DE #86 at 10-11).
Of course, Heck made clear
that “a civil rights suit cannot be maintained by a prisoner if a
judgment in his favor would ‘necessarily imply’ that his conviction
had been invalid.”
Moore v. Mahone, 652 F.3d 722, 723 (7th Cir.
That line of reasoning does not fit in this case, where
More fitting to this situation is the Rooker-Feldman doctrine
which prohibits federal district courts from reviewing state court
intertwined with those judgments.
See District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923).
The Rooker-Feldman doctrine is
based upon recognition of the fact that lower federal courts
generally do not have the power to exercise appellate review over
state court decisions. In Rooker, the Supreme Court held that even
if a state court decision was wrong, only the Supreme Court has the
power to reverse or modify that judgment, since the jurisdiction of
federal district courts is strictly original.
Rooker, 263 U.S. at
Similarly, the Supreme Court in Feldman held that “a
United States District Court has no authority to review final
judgments of a state court in judicial proceedings.”
U.S. at 482.
This circuit has consistently emphasized that
“[t]aken together, Rooker and Feldman stand for the proposition
that lower federal courts lack jurisdiction to engage in appellate
review of state-court determinations.”
Ritter v. Ross, 992 F.2d
750, 753 (7th Cir. 1993) (quotation omitted).
The Supreme Court
has noted, however, that the Rooker-Feldman doctrine has been
construed too broadly by some federal courts. Exxon Mobil Corp. v.
Saudi Basic Industries Corp., 544 U.S. 280, 283 (2005).
Exxon, the doctrine has been significantly narrowed and only
applies to “cases brought by state-court losers complaining of
district court proceedings commenced and inviting district court
Solutions, LLC, 548 F.3d 600, 603 (7th Cir. 2008) (citations
“In order to determine the applicability of the Rooker-Feldman
doctrine, the fundamental and appropriate question to ask is
whether the alleged injury by the federal plaintiff resulted from
the state court judgment itself or is distinct from that judgment.”
Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir. 1996).
may not circumvent the effect of the Rooker-Feldman doctrine simply
by casting [a] complaint in the form of a federal civil rights
Maple Lanes, Inc. v. Messer, 186 F.3d 823, 825 (7th Cir.
A Court may “look beyond the four corners of the complaint to
discern the actual injury claimed by the plaintiff.”
Countrywide Home Loans, Inc., 647 F.3d 642, 646 (7th Cir. 2011)
(citing Johnson v. Orr, 551 F.3d 564, 568 (7th Cir. 2008)).
Seventh Circuit has further noted that, where a claim alleges an
independent ground for relief, the Rooker-Feldman doctrine does not
present a bar when the district court could fashion relief that
would not upset the state court’s determination.
Id. at 647
(citing Remer v. Burlington Area Sch. Dist., 205 F.3d 990, 998 (7th
Here, the Rooker-Feldman doctrine is applicable.
complains of a regulatory taking of property, and that she suffered
a “total loss of her property” (Sec. Am. Compl. at 10) - something
which could not be undone without affecting the Hammond City Court
judgment, and an injury that was actually caused by that judgment.
Moreover, the timing is right - the property was demolished before
this district court proceeding commenced, and the current lawsuit
invites the district court to review and reject that judgment.
the Seventh Circuit has noted, if Plaintiff “was dissatisfied with
the state court’s decision or justifications, [her] remedy was to
appeal, not to start over with a new suit.”
Berry v. Wells Fargo
Bank, N.A., 865 F.3d 880, 883 (7th Cir. 2017).
Because all of the claims against these defendants are barred
either by claim preclusion or by Rooker-Feldman, the Court need not
reach the other arguments raised by Defendants, including qualified
immunity, the Monell doctrine, and the statute of limitations.
For the reasons set forth above, Defendants’ Motion for
Summary Judgment (DE #80) is GRANTED.
The regulatory taking claim
is dismissed because it is barred by the Rooker-Feldman doctrine,
and the remaining claims against Defendants, City of Hammond,
Indiana and Kim Nordhoff, are dismissed because they are barred by
The Clerk is ORDERED to CLOSE this case.
DATED: November 14, 2017
/s/ RUDY LOZANO, Judge
United States District Court
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