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BROSTEN v. SCHEELER

United States District Court, Northern District of Illinois, E.D


June 11, 1973

HY BROSTEN, PLAINTIFF,
v.
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 1343.

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 following facts:

  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
    States Constitution.

  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
    premises.

The plaintiff seeks compensatory and punitive damages and injunctive relief.

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
    such acts.

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 1871.

  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 Realty 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 violation.

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 violation.

  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.


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