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June 11, 1973


The opinion of the court was delivered by: Bauer, District Judge.


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.

The plaintiff seeks compensatory and punitive damages and injunctive relief.

The defendants, in support of their motion to dismiss the complaint and ...

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