United States District Court, Northern District of Illinois, E.D
June 11, 1973
HY BROSTEN, PLAINTIFF,
THOMAS SCHEELER, INDIVIDUALLY AND AS MAYOR OF THE CITY OF PARK CITY, ILL., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the defendants' motions to dismiss the
complaint and the amendment to the complaint.
This is an action to redress the alleged deprivation of the
plaintiff's civil rights as guaranteed by the Fifth and
Fourteenth Amendments to the United States Constitution and
protected by 42 U.S.C. § 1983 and 1985 and 28 U.S.C. § 1331 and
The plaintiff, Hy Brosten, is a property owner in Park City,
Illinois and since December 3, 1957, prior to the date of
incorporation of Park City, the plaintiff has operated his
business of selling auto parts and salvage, known as Hy-Way
Sales, on said property. The defendant, Thomas Scheeler, is
presently Mayor of the City of Park City, Illinois ("Park City")
and prior to becoming mayor held an official municipal position
as a member of the City Council of Park City. The defendant
Eugene M. Snarski is presently the City Attorney of Park City and
has held this official position at least since 1966. The
defendant Francis Murphy is presently the Building Commissioner
of Park City. Defendant John Palmieri is presently an alderman of
Park City and as such is a member of its City Council.
The complaint consists of three counts. Count I alleges a
continuing pattern of harassing the plaintiff in violation of
42 U.S.C. § 1983. Count II alleges a conspiracy to deprive the
plaintiff of his constitutional rights in violation of
42 U.S.C. § 1985. Count III alleges the constant harassment of the
plaintiff by defendant John Palmieri in violation of
42 U.S.C. § 1985.*fn1
The amendment to the complaint adds Count IV which alleges that
the defendants refused to issue the plaintiff a building permit
in violation of some unspecified section of the Civil Rights Act.
In his complaint, the plaintiff alleges, inter alia, the
1. Plaintiff has owned and operated his business
since 1957. Subsequent to the incorporation of Park
City, its City Council passed ordinances in 1963
and again in 1968 which are said to provide for the
regulation and licensing of junk yards. Plaintiff's
business and one other business were the only
businesses affected by such ordiances. Thereafter,
in 1966 plaintiff was issued four tickets for
alleged ordinance violations and that each of these
tickets was dismissed for want of prosecution.
2. In 1969 Park City filed a lawsuit against the
plaintiff in the Circuit Court of Lake County. This
suit asked that plaintiff be enjoined because of
his non-compliance with city ordinances. Subsequent
to the commencement of that action plaintiff
engaged a contractor to draw plans to relocate his
junk yard. Plaintiff entered into an oral
settlement of the lawsuit. After this agreement was
entered into, plaintiff changed his mind and
attempted to rescind the settlement. On May 31,
1971 the trial judge refused to allow recission of
the settlement agreement and entered the decree.
Plaintiff appealed this decree to the Illinois
Appellate Court and it was affirmed on July 18,
1972. Such acts of the defendants allegedly
demonstrate a continuing pattern of harassment of
the plaintiff by the defendants. As a result of the
foregoing, plaintiff was allegedly deprived, under
the color of law, of his auto parts and salvage
business worth approximately $300,000 and the
unfettered legal use of his property in violation
of his constitutionally guaranteed rights of due
process and equal protection as provided in the
Fifth and Fourteenth Amendments to the United
3. Defendants agreed, combined, and conspired
together to engage in the above described
activities that wove a pattern of harassment under
color of law that ultimately deprived plaintiff of
his business and the lawful use of his property.
Park City is a unique community comprised and zoned
in large part as a mobile home community. One of
the larger mobile home parks in Park City, owned
and operated by defendant Palmieri, is just east of
plaintiff's land where he carried on the business
of selling auto parts and salvage. All of the
defendant Park City officials, as well as some of
their predecessors, such as the City's first but
now deceased mayor, Gene Palmieri, own or are
otherwise interested in the mobile home park
business of this Community. The present mayor,
defendant Scheeler, was aware of the conspiracy to
harass plaintiff when he was in the City Council
and since becoming mayor has continued to cooperate
and further said conspiracy. The foregoing
activities were the product of defendants'
successful conspiracy to weave a pattern of
official harassment with the intention and purpose
of depriving plaintiff of his business, in
violation of his civil rights.
4. Defendant Palmieri, acting under color of law in
his position as alderman, has constantly harassed
plaintiff for the purpose of having plaintiff's
business operation removed. More specifically, the
defendant, by closing the drainage culvert near
plaintiff's land, has caused the plaintiff's
property to be flooded and thus preventing Chestnut
Street which is adjacent to the plaintiff's
property from being used for ingress and egress to
and upon said plaintiff's property.
5. The plaintiff under the zoning ordinances of Park
City has a legal right to erect an office and
warehouse building. The Building Commissioner, on
December 21, 1972 gave his tacit approval to plans
for an office and warehouse building and submitted
the plaintiff's application for a permit to the
City Council of Park City at
which time defendant John Palmieri made a motion to
deny the permit until the property was cleaned up
according to local ordinances. The motion was
approved by the City Council. Article 1, Section
9(A) and (E) of the Park City Building Ordinance
requires application for building permits to be
submitted to the Building Commissioner. There is
nothing in the ordinance which requires the consent
of the City Council before a building permit is
issued. The action of the City Council was contrary
to the provisions of the Building Ordinance and was
solely for the purpose of harassing and preventing
plaintiff from building a legal structure on his
The plaintiff seeks compensatory and punitive damages and
The defendants, in support of their motion to dismiss the
complaint and its amendment, contend:
1. The complaint does not state a cause of action for
which relief can be granted under the Civil Rights
Act of 1871, 42 U.S.C. § 1983, and § 1985.
2. The complaint fails to properly allege that
plaintiff's rights, as guaranteed by the Fifth and
Fourteenth Amendments, have been violated.
3. Plaintiff has been afforded due process of law in
that he consented by stipulation to the closing of
his junk yard in the Circuit Court of Lake County.
4. The complaint fails to properly allege that
plaintiff was denied equal protection of the law.
5. The complaint seeks, inter alia, to enjoin the
defendants from enforcing a State Court decree;
this Court is prohibited in this action from
issuing such an injunction pursuant to
28 U.S.C. § 2283.
6. The defendants are city officials of Park City who
have acted in their official capacities, and
therefore, immune from an action for damages for
The plaintiff, in opposition to the instant motion, contends
that the complaint and the amendment thereto adequately state a
cause of action against the defendants.
It is the opinion of this Court that the plaintiff's complaint
and the amendment thereto fails to adequately state a cause of
action against these defendants under the Civil Rights Act of
I. THE PLAINTIFF FAILS TO ADEQUATELY STATE A CAUSE OF ACTION
UNDER 42 U.S.C. § 1983.
The thrust of Counts I and III of the complaint is that the
defendants violated the plaintiff's civil rights in passing
certain resolutions and ordinances and in objecting to
plaintiff's attempt to withdraw a stipulation in a case in the
Circuit Court of Lake County for alleged failure to comply with a
Park City ordinance. The plaintiff does not challenge the
validity of any Park City ordinance. The plaintiff's action in
Counts I and III is brought under 42 U.S.C. § 1983.*fn2
It is clear that the necessity for restrictions in municipal
zoning ordinances have long been recognized along with certain
rights of property owners. Village of Euclid, Ohio v. Ambler
Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). However,
ordinances such as those complained of in the instant action
which prohibit the operation of certain business without first
obtaining municipal permission or without first complying with
prescribed standards do not deprive one of his property without
due process of law nor deny anyone equal protection of the law.
Fischer v. City of St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48
L.Ed. 1018 (1904); Mosher v. Beirne, 357 F.2d 638 (8th Cir.
1966). A local government exercise of its police power in
withholding permission to carry on a trade or business which
fails to fully comply with the local ordinance is not violative
of rights secured by the Fourteenth Amendment. People of the
State of New York ex rel. Lieberman v. Van de Carr, 199 U.S. 552,
26 S.Ct. 144, 50 L.Ed. 305 (1905).
Numerous federal courts have held that the enactment of zoning
type ordinances by local municipal officials is not sufficient in
and of itself to subject local officials to civil rights actions
for denial of due process or equal protection. Garren v. City of
Winston-Salem, North Carolina, 463 F.2d 54 (4th Cir. 1972);
Elmwood Properties Inc. v. Conzelman, 418 F.2d 1025 (7th Cir.
1969); Mosher v. Beirne, supra; Wallach v. City of Pagedale,
Missouri, 359 F.2d 57 (8th Cir. 1966); Smith v. Village of
Lansing, 241 F.2d 856 (7th Cir. 1957).
The Civil Rights Acts do not legitimize the operation of a
business within a municipality in violation of local ordinances
enacted under the local government's police power and for the
welfare of the community. The legislative history of civil rights
legislation makes it clear that the thrust of the Civil Rights
Acts is to protect persons against discriminatory legislation or
treatment. The plaintiff in the instant action does not make any
showing of discriminatory treatment. The thrust of the
plaintiff's claim is that the defendants enacted certain
ordinances and passed certain resolutions which hindered and to
some degree prevented the plaintiff from transacting his business
and enjoying full use of his property.
It is the opinion of this Court that plaintiff's allegations in
the complaint fail to rise to the stature of a Constitutional
This Court is not unmindful of the broad and liberal
interpretation which should be given to Civil Rights complaints.
Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961);
Escalera v. New York City Housing Authority, 425 F.2d 853 (2nd
Cir. 1970); Scher v. Board of Education of Town of West Orange,
424 F.2d 741 (3rd Cir. 1970); United States ex rel. Hyde v.
McGinnis, 429 F.2d 864 (2nd Cir. 1970). However, there is no
statutory or case law which would support this Court's usurpation
or severe dilution of local powers by holding the
non-discriminatory enacting of local zoning ordinances by a
municipality to be a per se violation of 42 U.S.C. § 1983.
Further, it is clear that a city may validly enforce its zoning
ordinances, provided due process is afforded, without violation
the Civil Rights Act. The plaintiff has failed to allege that he
was discriminated against in the state court. The Illinois
Appellate Court, contrary to the contentions of the plaintiff,
held that the lower state court judgment was proper.*fn3
A Federal district court is not the appropriate court of
appeals for adverse state court rulings. Many litigants who are
unsuccessful in state court believe that they have been deprived
of some constitutional rights. The Fourteenth Amendment of the
United States Constitution and the Civil Rights Act do not assure
uniformity or the absolute correctness of state court rulings.
Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1943);
Smith v. Village of Lansing, supra. If the plaintiff in the
instant action is permitted
to maintain this suit in federal district court the door will be
open for every unsuccessful state court litigant to demand that
the federal courts be arbiters of the correctness of state court
decisions and judgments. This result is highly undesirable. See
Smith v. Village of Lansing, supra.
Nothing in the complaint or in the pleadings to date reflect
any discriminatory or unequal action on the part of the
defendants in violation of 42 U.S.C. § 1983. This Court cannot
presume such discriminatory action. Snowden v. Hughes, supra.
Thus Counts I and III fail to sufficiently allege a § 1983
II. THE PLAINTIFF'S COMPLAINT FAILS TO STATE A CAUSE OF ACTION
UNDER § 1985.
The plaintiff in Count II of the complaint alleges that the
actions of the defendants constituted a conspiracy in violation
of 42 U.S.C. § 1985.*fn4
Section 1985 applies only to a conspiracy to deprive some
person or class of persons of equal protection and does not apply
to conspiracy to deny due process. Collins v. Hardyman,
341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951); Egan v. City of Aurora,
291 F.2d 706 (7th Cir. 1961); Jennings v. Nester, 217 F.2d 153
(7th Cir. 1954). The plaintiff in his complaint fails to
sufficiently allege any facts in support of his claim that he has
been denied equal protection. The facts alleged in the complaint
cannot be interpreted to reflect that the plaintiff has been
denied equal protection. Such conclusory allegations by a
plaintiff are not sufficient to state a cause of action. Kadlec
v. Illinois Bell Telephone Co., 407 F. Supp. 624 (7th Cir. 1969),
cert. denied 396 U.S. 846, 90 S.Ct. 90, 24 L.Ed.2d 95 (1970);
Eisman v. Pan Am. World Airlines, 336 F. Supp. 543 (E.D.Pa. 1971).
Thus the plaintiff has failed to adequately allege a violation of
42 U.S.C. § 1985 and Count II should be dismissed. Snow v.
Gladden, 338 F.2d 999 (9th Cir. 1964); Norton v. McShane,
332 F.2d 885 (5th Cir. 1964); Hanna v. Home Insurance Co.,
281 F.2d 298 (5th Cir. 1960), cert. denied, 365 U.S. 838, 81 S.Ct. 751, 5
L.Ed.2d 747 (1961).
III. THE AMENDMENT TO THE COMPLAINT, COUNT IV, FAILS TO STATE A
CAUSE OF ACTION UNDER THE CIVIL RIGHTS ACT OF 1871.
The plaintiff in Count IV fails to specify which section of the
Civil Rights Act the defendants have allegedly violated. The
thrust of Count IV of the complaint is that the defendants
deprived the plaintiff of his civil rights by denying the
plaintiff a building permit. This denial was due to a resolution
of the Park City City Council based on the plaintiff's prior and
continuing violations of city ordinances. Whether the plaintiff
intended the allegations of Count IV to be a violation of
42 U.S.C. § 1983 or § 1985, it is clear to this Court that he has
failed to state a Civil Rights Act violation. The denial of a
building permit by a city is not per se a violation of the
Civil Rights Act. Elmwood Properties Inc. v. Conzelman, supra.
Further, the Civil Rights Act was never intended to displace
state remedies or to usurp the legitimate use of a municipality's
local police power in zoning. Mosher v. Beirne, supra; Wallach
v. City of Pagedale, supra; Smith v. Village of Lansing,
supra. Thus Count IV of the complaint should be dismissed.
The plaintiff in the complaint and the amendment thereto has
failed to state a civil rights violation under 42 U.S.C. § 1983
or § 1985.
Accordingly, it is hereby ordered that the defendants' motion
to dismiss is granted.