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TOMKINS v. VILLAGE OF TINLEY PARK
April 26, 1983
ANNE TOMKINS, PLAINTIFF,
VILLAGE OF TINLEY PARK, MICHAEL SORAGHAN, SANDRA SORAGHAN, DEAN W. HANSON AND THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, DEFENDANTS.
The opinion of the court was delivered by: Moran, District Judge.
Plaintiff Anne Tomkins brings this action under 42 U.S.C. § 1983,
1985 and 1986 against the Village of Tinley Park
("Village"), the Metropolitan Sanitary District of Greater
Chicago ("Sanitary District"), and three individuals, Michael
Soraghan, Sandra Soraghan, and Dean Hanson, to redress alleged
violations of her Fifth and Fourteenth Amendment rights.
Additionally, plaintiff alleges a count of trespass under
Illinois tort law. The Village and the individual defendants
have moved to dismiss Counts I, III and IV for failure to state
a claim upon which relief may be granted, and Count II for lack
of subject matter jurisdiction. For the reasons stated below,
Counts III and IV are dismissed, but the motion to dismiss
Counts I and II is denied.
Accepting plaintiff's allegations as true for purposes of
these motions, Mitchell v. Archibald & Kendall, Inc.,
573 F.2d 429, 432 (7th Cir. 1978), the following facts emerge as the
basis of this lawsuit. Plaintiff and the Soraghans are
neighbors in the Village. When originally installed by the
Village, the sewer system under their properties was improperly
constructed. Consequently, during the summer of 1980, the
Soraghans' building service sewer, which connects the
Soraghans' residential sewer to the Village's sewer, became
obstructed. Numerous efforts to clear this sewer proved
unsuccessful. The condition progressively worsened and by the
early part of November 1980 the Soraghans were unable to use
their toilet and laundry facilities. To remedy this undesirable
situation, on November 18 or 19, 1980, the individual
defendants entered upon plaintiff's property and installed a
connecting pipe between the Soraghans' residential sewer and
plaintiff's building service sewer. This connection was made
with the prior knowledge and consent of the Village, but
without plaintiff's permission. Furthermore, the Village
dispatched police officers to watch and protect the individual
defendant's activities. Moreover, plaintiff asserts that the
Village has the custom or policy of approving and condoning
trespasses on private property when sewer problems exist, and
permitting the installation of sewers without regard to the
property rights of individual homeowners.
Claiming that defendants' activities caused her numerous
injuries, including depreciation of her property, damage to
her fence and landscaping, and an inability to sell her
property, plaintiff alleges in Count I that defendants
deprived her of property for public use without just
compensation. In Count II plaintiff avers that defendants'
activities constitute a trespass under state law upon her
property. Count III contains allegations that defendants
conspired to deprive plaintiff of her constitutional rights.
Finally, Count IV charges the Village and Sanitary District
with neglecting to prevent the conspiracy alleged in Count
Generally, private parties do not act under color of state
law. In certain situations, however, private parties expose
themselves to liability under § 1983. For example, private
individuals assisting a state agency in carrying out an
unlawful action, or engaging in prohibited conduct with
nonimmune state officials, act under color of state law for §
1983 purposes. Grow v. Fisher, 523 F.2d 875 (7th Cir. 1975);
Holmes v. Silver Cross Hospital of Joliet, 340 F. Supp. 125
(N.D.Ill. 1972). Were it otherwise, state officials could
insulate themselves from § 1983 suits by entrusting certain
duties to private individuals. See Braden v. University of
Pittsburgh, 477 F.2d 1, 7 (3d Cir. 1973).
Determining precisely what conduct by a private party
constitutes "state action" has proven to be a difficult task.
The Supreme Court has repeatedly recognized that private
individuals who wilfully participate in joint activity with
the state, or its agents, act under color of state law.
Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186, 66
L.Ed.2d 185 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144,
152, 90 S.Ct. 1598, 1602, 26 L.Ed.2d 142 (1970); United States
v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d
267 (1966). The degree of joint activity must sufficiently
demonstrate "some nexus between the conduct complained of and
the state, state official or some state entity." Musso v.
Suriano, 586 F.2d 59, 64 (7th Cir. 1978). See also Sparkman v.
McFarlin, 601 F.2d 261 (7th Cir. 1979) (en banc).
This required nexus may be demonstrated in any of three
ways. First, plaintiff may show that the state affirmatively
supported, encouraged or compelled the actionable conduct of
the private party. Jackson v. Metropolitan Edison Co.,
419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Musso v. Suriano,
supra. Second, plaintiff may claim that the private individual
was performing a function traditionally and exclusively
performed by the sovereign. Flagg Brothers, Inc. v. Brooks,
436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Anastasia v.
Cosmopolitan National Bank of Chicago, 527 F.2d 150 (7th Cir.
1975). Finally, plaintiff may allege that the private actor, as
a result of his conduct, became an instrumentality of state
power. Burton v. Wilmington Park Authority, 365 U.S. 715, 81
S.Ct. 856, 6 L.Ed.2d 45 (1961); Sparkman v. McFarlin, supra
(Sprecher, J., concurring).
The degree of joint activity between the Village and the
individual defendants sufficiently establishes a nexus between
them for the purposes of surviving a motion to dismiss. The
facts pleaded sufficiently allege that the Village
"affirmatively supported" the individual defendants' conduct,
and this affirmative support was significant "measured either
by its contribution to the effectiveness of defendant's
conduct, or perhaps by the defiance of conflicting national
policy." Lucas v. Wisconsin Electric Power Co., 466 F.2d 638,
656 (7th Cir. 1972) (en banc), cert. denied, 409 U.S. 1114, 93
S.Ct. 928, 34 L.Ed.2d 696 (1973). Furthermore, the private
parties derived "aid, comfort, or incentive" from the
affirmative support. Id. at 655. But for the Village's consent
and police supervision, it can be reasonably contended that the
individual defendants would not have entered upon plaintiff's
property and made their sewer connection.*fn2 See United
States v. Classic, 313 U.S. 299, 325-26, 61 S.Ct. 1031,
1042-1043, 85 L.Ed. 1368 (1941). Accordingly, this court finds
the complaint sufficiently alleges that "some nexus" existed
between the individual defendant's sewer connection and the
Village, and that the "private" conduct of the Soraghans and
Hanson was, therefore, action under color of state law for
purposes of § 1983.*fn3
Simply because the sewer connection was made under color of
state law, however, does not end our inquiry as to whether
plaintiff has successfully stated a claim under § 1983. It must
additionally be alleged that defendants' conduct deprived
plaintiff of a right secured by the Constitution or laws of the
United States. See Baker v. McCollan, 443 U.S. 137, 146, 99
S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). Plaintiff contends
that in making the sewer connection the defendants violated her
right to equal protection of the laws and deprived her of
property for public use without just compensation. Essentially,
plaintiff's claim asserts a violation of her property rights
guaranteed by the Fifth and Fourteenth Amendments. This court
must, therefore, decide whether the sewer connection amounted
to a taking of property under the Fifth Amendment.*fn4
The Supreme Court has recognized that: [t]he
question of what constitutes a "taking" for
purposes of the Fifth Amendment has proved to be
a problem of considerable difficulty. While this
Court has recognized that the "Fifth Amendment's
guarantee . . . [is] designed to bar Government
from forcing some people alone to bear public
burdens, which in all fairness and justice,
should be borne by the public as a whole," this
Court, quite simply, has been unable to determine
any "set formula" for determining when "justice
and fairness" require that economic injuries
caused by public action be compensated by the
government, rather than remain disproportionately
concentrated on a few persons. Indeed, we have
frequently observed that whether a particular
restriction will be rendered invalid by the
government's failure to pay for any losses
proximately caused by it depends largely "upon
the particular circumstances [in that] case."
Penn Central Transportation Co. v. City of New York,
438 U.S. 104, 123-24, 98 S.Ct. 2646, 2658-59, 57 L.Ed.2d 631 (1978)
(citations omitted).*fn5 Furthermore, the Court has declared
that it is "not essential that the entire community nor even
portion, should directly enjoy or participate in an
improvement in order to constitute a public use." Rindge Co. v.
Los Angeles County, 262 U.S. 700, 707, 43 S.Ct. 689, 692, 67
L.Ed. 1186 (1923). Thus, the mere fact that the sewer
connection primarily benefits only the Soraghans does not by
itself preclude plaintiff's claim that her property was "taken"
for public use.
Although this court's extensive research has been unable to
discover any federal cases discussing whether a sewer
connection amounts to a taking, several state courts have
considered this matter. For example, the Massachusetts Supreme
Judicial Court, when faced with a controversy virtually
identical to the instant case, held "[t]hat the laying out of
sewers is a public purpose which will justify the taking of
private property by eminent domain can hardly be doubted."
Machado v. Board of Public Works of Arlington, 321 Mass. 101,
104, 71 N.E.2d 886, 888 (1947) (emphasis added).*fn6
Furthermore, the court noted that the taking of an easement in
private lands, by eminent domain, to afford one property owner
access to a sewer main, was for a "public purpose" despite
appearing to solely benefit the private owner. Id. Similarly,
in Gunn v. City of Versailles, 330 S.W.2d 257 (Mo. Ct. App.
1959), a city made a sewer connection to a landowner's private
sewer without his permission and without any compensation. The
court there found that in making the connection the city did
not merely do consequential damage to the landowner's property
but rather appropriated such property and thus the sewer
connection amounted to a "taking" of property without just
compensation, in violation of the Fifth Amendment. In several
other states courts have recognized that under the Fifth
Amendment the taking of an easement in private property for
construction and ...