United States District Court, Northern District of Illinois, Eastern Division
September 7, 1999
RONALD ERNST, PLAINTIFF,
CITY OF CHICAGO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, Senior District Judge.
MEMORANDUM OPINION AND ORDER
Ronald Ernst ("Ernst") sues the City of Chicago and "various
John Does and Jane Does who work for the City of Chicago and were
involved in this case" (collectively "City"), asserting a number
of claimed constitutional violations resulting from the towing of
four motor vehicles belonging to Ernst. City has responded with a
motion to dismiss all counts of the Complaint under Fed.R.Civ.P.
("Rule") 12(b)(6). For the reasons set out in this memorandum
opinion and order, City's motion is granted.
On March 21, 1997, without prior notice to Ernst, City
employees towed four of his motor vehicles (a 1970 Ford Maverick,
a 1977 Mercury Monarch, a 1977 Chevy van and a 1977 Pontiac Grand
Prix) from an open gravel parking lot on private property behind
his home. Several days later Ernst received post-tow notices
(sent by regular mail) as to two of the four automobiles. Those
notices explained his options: (1) to pay towing and storage fees
and reclaim the vehicles, (2) to request a hearing to determine
the validity of the tow or (3) to pay no fees and sign over the
vehicles to City.
Ernst called to request a post-tow hearing, which was held on
April 8, 1997 before hearing officer Dolores Barrett ("Barrett").
That hearing was conducted in the entryway of a City building
near the receptionist's desk. Barrett made no record of the
hearing and refused to let Ernst see any documents concerning the
tows. Barrett ultimately found that the tows of Ernst's vehicles
were valid because they were "hazardous dilapidated motor
vehicle[s]" as defined by Chicago ordinance.
Ernst appealed that finding to the Cook County Circuit Court
(Ernst v. City of Chicago Bureau of Parking Enforcement, No. 97
M1 1046), paying $205.29 in filing fees for that administrative
review.*fn2 Ernst prevailed in his lawsuit: In November 1997 the
judge reversed the hearing officer's determination that the tow
was valid and ordered City to return Ernst's automobiles to him.
But after City moved for reconsideration on the ground that the
judge did not have the authority to grant injunctive relief, the
judge vacated the portion of the earlier order that had ordered
City to return the vehicles. Thus according to the Circuit
Court's final judgment (which was not appealed), Ernst was free
to retrieve his cars without paying any charges because the tow
was invalid, but City did not have to deliver the cars to him.
While Ernst's administrative review action was pending, City
wrongfully sold his cars for scrap. City's Claims Unit then
offered to compensate Ernst for the loss of the vehicles, but
Ernst allowed the offer to lapse when City did not address
Ernst's concerns about the asserted constitutional defects in its
Rule 12(b)(6) Standards
As indicated in n. 1, on the current motion to dismiss this
Court accepts all well-pleaded factual allegations of the
Complaint as true, drawing all reasonable inferences in Ernst's
favor (Sherwin Manor Nursing Ctr., Inc. v. McAuliffe,
37 F.3d 1216, 1219 (7th Cir. 1994)). No claim will be dismissed unless
"it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations"
(Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81
L.Ed.2d 59 (1984), quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
City first argues that many of Ernst's claims — all except
those relating to the sale and destruction of his vehicles — are
barred under the doctrine of claim preclusion. Although Ernst
also contends here that the towing of his four vehicles and
City's notice and hearing procedures violated various municipal,
state and federal laws and constitutional provisions, all of
those challenges either were raised or could have been raised in
Ernst's earlier state court proceeding. Hence under Illinois
preclusion law this Court cannot hear them.
River Park, Inc. v. City of Highland Park, 184 Ill.2d 290,
302, 234 Ill.Dec. 783, 703 N.E.2d 883, 889 (1998) has set out the
well-established Illinois doctrine of claim preclusion*fn3:
Under the doctrine of res judicata, a final
judgment on the merits rendered by a court of
competent jurisdiction acts as a bar to a subsequent
suit between the parties involving the same cause of
action. Rein v. David A. Noyes & Co., 172 Ill.2d 325,
334-35, 216 Ill.Dec. 642, 665 N.E.2d 1199
(1996); Rodgers v. St. Mary's Hospital, 149 Ill.2d 302,
311-12, 173 Ill.Dec. 642, 597 N.E.2d 616 (1992).
The bar extends to what was actually decided in the
first action, as well as those matters that could
have been decided in that suit. LaSalle National
Bank v. County Board of School Trustees, 61 Ill.2d 524,
529, 337 N.E.2d 19 (1975). For the doctrine of
res judicata to apply, the following three
requirements must be satisfied: (1) there was a final
judgment on the merits rendered by a court of
competent jurisdiction, (2) there is an identity of
cause of action, and (3) there is an identity of
parties or their privies. Downing v. Chicago Transit
Authority, 162 Ill.2d 70, 73-74, 204 Ill.Dec. 755,
642 N.E.2d 456 (1994).
Illinois law controls this Court's analysis, of course, because
it is an Illinois state court judgment whose preclusive effect is
at issue (Rogers v. Desiderio, 58 F.3d 299, 301 (7th Cir.
City easily meets all three requirements of Illinois law.
First, the Circuit Court did render a final judgment in
Ernst's favor reversing the hearing officer's decision.*fn4 Next
"there is an identity of cause of action" under Illinois'
transactional test: Ernst's prior state court action and his
several claims raised in this federal action "arise from a single
group of operative facts, regardless of whether they assert
different theories of relief" (River Park, 184 Ill.2d at 311,
234 Ill.Dec. 783, 703 N.E.2d at 893) — those operative facts
comprise the tows and the ensuing administrative proceedings
against Ernst. Finally, both Ernst and City were parties to the
earlier state court action.
Furthermore, Ernst could have raised his statutory and
constitutional challenges in the state court administrative
review proceedings (see, e.g., Rogers, 58 F.3d at 301, citing
Stratton v. Wenona Community Unit Dist. No. 1, 133 Ill.2d 413,
429-30, 141 Ill.Dec. 453, 551 N.E.2d 640, 646-47 (1990); accord,
Edwards v. City of Quincy, 124 Ill. App.3d 1004, 1012-13, 80
Ill.Dec. 142, 464 N.E.2d 1125, 1131-32 (1984)). As Rogers, 58
F.3d at 301 has made clear:
We know from Kremer v. Chemical Construction Corp.,
456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)
that principles of preclusion are fully applicable
when the first suit is an administrative-review
action in state court.
Ernst did challenge the validity of the tows (indeed, he did so
successfully), and he could also have challenged the
administrative hearing process on any grounds he chose.
It is true that Ernst has handled all of his administrative and
judicial proceedings pro se, and it may well be that he was
unaware of his ability to assert those other challenges in the
state proceedings. Thus his Mem. 15-16 complains that the Circuit
Court judge's order spoke of "sitting solely as a court of
review" and that Ernst didn't need to raise constitutional issues
because he had a winner on administrative review grounds. But
that does not temper the square applicability of Illinois
preclusion law to him, just as it would apply to a
In sum, Ernst's claims challenging the towing of his vehicles
and the administrative hearing process are precluded and cannot
be made the subject of a second suit in this Court.*fn5 Those
claims are dismissed.
Disposition of Ernst's Vehicles
It is far less certain that Ernst could have challenged the
sale and destruction of his vehicles in state court, for the cars
were not sold until those proceedings had already begun.*fn6
Even though Ernst's Complaint is not clear as to just what
statutory or constitutional provisions he is now invoking to
dispute the ultimate disposition of his vehicles, for it alleges
only that they were "unlawfully" sold (Complaint ¶¶ 5, 10, 17),
this Court will read his pro se Complaint as generously as
possible (see, e.g., Haines v. Kerner, 404 U.S. 519, 520-21, 92
S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam)). So the ensuing
discussion will address both (1) a possible procedural due
process claim as to City's sale of his vehicles for scrap and (2)
a possible supplemental jurisdiction claim under 28
912 U.S.C. § 1367(a) ("Section 1367(a)") that the sale violated
municipal and state law.
Procedural Due Process
Under the Supreme Court's decisions in Parratt v. Taylor,
451 U.S. 527, 543-44, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and
Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d
393 (1984), there is no denial of due process if a plaintiff is
seeking a postdeprivation remedy for loss of property resulting
from a random and unauthorized act of a government official, and
if the state already provides an adequate postdeprivation
remedy.*fn7 That principle dooms Ernst's possibility of a
42 U.S.C. § 1983 claim.
Clearly Ernst alleges that a City employee's random and
unauthorized act led to the loss of his vehicles. Three times in
his Complaint he refers to the City's having "unlawfully" sold
his cars (Complaint ¶¶ 5, 10, 17). And the municipal ordinance
governing the disposal of towed cars does not authorize City
officials to sell them while administrative review proceedings
are pending (Mun.Code § 9-80-110(b), reproduced at City Ex. A).
Although Ernst's response to City's motion to dismiss states that
"the circumstances involving [his] four vehicles certainly do
suggest that indeed the city may have just such a policy" (Ernst
Mem. 37), that statement in a brief does not cure his Complaint's
failure to have alleged anything other than a random and
unauthorized act causing his loss of property. Indeed, it is
conventional wisdom that a party's memorandum may not be used as
a vehicle to overcome a pleading deficiency (Shanahan v. City of
Chicago, 82 F.3d 776, 781 (7th Cir. 1996), citing Car Carriers,
Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)),
and nothing in Ernst's current vague suggestion of the
possibility of a policy justifies keeping his lawsuit alive in
such speculative terms.
Because Ernst has alleged a property deprivation resulting from
a random and unauthorized action, he cannot have stated a claim
for a procedural due process violation under Parratt (as curbed
by Daniels) or under Hudson, or under the many later cases
following their lead, if he had an adequate postdeprivation state
remedy. And so he did — indeed, via more than one route.
First, City offered to pay Ernst for the loss of the vehicles.
Although it offered him a set reimbursement amount, Ernst does
not argue that City offered too little, nor did he attempt to
negotiate that amount with City. Second, Illinois caselaw
provides for a bailment action in which Ernst could have sued
City for damages for its failure to keep his vehicles safely
(see, e.g., American Ambassador Cas. Co. v. City of Chicago,
205 Ill. App.3d 879, 883, 150 Ill.Dec. 755, 563 N.E.2d 882, 885
(1990), permitting a bailment action when "the police department
lawfully acquired possession of the vehicle and held it under
circumstances whereby it was obligated, under the principles of
justice, to keep it safely and restore it or deliver it to the
Because Ernst thus had adequate postdeprivation state law
remedies, he has not stated a claim for a denial of due process.
And that result does not change if Ernst intends to sue City
employees in their personal, rather than their official,
capacities (Wilson v. Civil Town of Clayton, 839 F.2d 375, 384
(7th Cir. 1988)). So City's
motion to dismiss Ernst's claim that he was deprived of his
property in violation of due process is granted.
State Law Violations
Ernst also appears to raise a claim, although not explicitly,
that City's sale and destruction of his vehicles violated city
and state law. Of course any such claim could be raised in this
action only under this Court's supplemental jurisdiction
conferred by Section 1367(a). But with Ernst's federal claims
having been dismissed at this initial stage, the fundamental
teaching of United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86
S.Ct. 1130, 16 L.Ed.2d 218 (1966) — still persuasive in the
Section 1367(a) context (see, e.g., Carr v. CIGNA Sec., Inc.,
95 F.3d 544, 546 (7th Cir. 1996)) — calls for the dismissal of
his state law claims as well (albeit without prejudice).
City's motion to dismiss Ernst's Complaint is granted in its
entirety. When any Rule 12(b)(6) motion has proved successful (as
City's has here), and when it also appears either (1) that the
movant has identified a potentially curable flaw in a notice-type
pleading or (2) that some other reason calls for the loser to be
allowed to recast the insufficient pleading, this Court's regular
practice is to grant leave to do so. But here the situation is
patently different: It is crystal clear from Ernst's prolix
submissions — his Complaint covering 16 pages plus exhibits
(plainly an instance of fact pleading rather than notice
pleading), followed by his detailed 42-page plus nine-exhibit
(!!) response to City's dismissal motion — that he has already
given the matter his best shot.
This is not then an appropriate case for allowing a return to
the pleadings drawing board. This action is also therefore
dismissed with prejudice as to all federal claims, but without
prejudice as to Ernst's possible state law claims referred to in
the preceding section of this opinion.