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VLASEK v. VILLAGE OF HOMEWOOD

June 4, 2004.

JOSEPH VLASEK, Plaintiffs V. VILLAGE OF HOMEWOOD, et al., Defendants


The opinion of the court was delivered by: SUZANNE CONLON, District Judge

MEMORANDUM OPINION AND ORDER

Joseph Vlasek ("Vlasek") sues Michael Nemitz ("Nemitz") under 42 U.S.C. § 1983. Specifically, Vlasek claims that Nemitz deprived him of access to his residence and personal property in violation of the due process clause of the Fourteenth Amendment. Nemitz moves for summary judgment.

BACKGROUND

 I. Local Rule 56.1 Statement of Facts

  Local Rule 56.1 requires litigants to follow a detailed procedure in filing and responding to summary judgment motions. Local Rule 56.1 requires both the moving and non-moving parties to submit a statement of material facts, including "specific references to the affidavits, parts of the record, and other supporting materials relied upon." Local Rule 56.1(a)(3); Local Rule 56.1(b)(3)(B). Evidence submitted at summary judgment must be admissible at trial under the Federal Rules of Evidence, Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000). All facts not properly supported by the record evidence must be disregarded. Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997).

  Both parties' responses improperly claim a lack of personal knowledge as to the truth of underlying factual statements. Accordingly, paragraphs 22 and 24 of Nemitz's statement of facts are deemed admitted by Vlasek; paragraph 8 of Vlasek's statement of additional facts is deemed admitted by Nemitz. McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998) (response claiming insufficient information to "admit or deny" improper and constitutes an admission).

  Vlasek also fails to support paragraphs 4, 9 and 10 of his statement of additional facts with admissible evidence. Instead, he solely relies on conclusory allegations contained in his own self-serving affidavit. In paragraph 4, Vlasek relies on his affidavit to state he "had permission to reside at the house." Pl. Facts at ¶ 4. The affidavit, in turn, simply states "[o]n or about July 22, 1999, along with other members of my family, I was asked to leave my residence at 1537 West 187th Street, but was given permission to move back in within three or four days." Pl. Facts Ex. A at ¶ 7. Vlasek utterly fails to identify who gave him permission to move back into the residence or when he was given permission. In paragraphs 9 and 10, Vlasek fails to provide specific concrete facts regarding Nemitz's purported interference with his property rights. Instead, Vlasek baldly asserts that Nemitz "did not permit [him] to remove all of his personal property" at the time of eviction or "in the next few days". Pl. Facts at ¶¶ 9-10. Vlasek does not explain what Nemitz specifically said or did to prevent him from removing his personal property from the residence at the time of eviction or "the next few days" afterwards. Accordingly, paragraphs 4, 9 and 10 of Vlasek's statement of additional facts are disregarded for failing to comply with Rule 56. See, e.g., Lujan v. National Wild Life Fed'n, 497 U.S. 871, 888, 110 S.Ct 3177, 111 L.Ed.2d 695 (1990) ("the object of [Rule 56] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit"); Hadley v. County of DuPage, 715 F.2d 1238, 1243 (7th Cir. 1983), cert. denied, 465 U.S. 1006, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984) ("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted").

 II. Facts

  All facts are undisputed unless otherwise noted. In July 1999, Vlasek was involved in bankruptcy proceedings related to his residence in Homewood, Illinois, where he lived with members of his family. Def. Facts ¶¶ 2-5, 16-17; Pl. Resp. Def. Facts ¶¶ 2-5, 16-17; PL Facts at ¶ 2. Nemitz lived next door. Pl. Facts at t 3. Coincidentally, at that time Nemitz was also the Village of Homewood's Health and Environmental Coordinator. Def. Facts at ¶ 1.

  By July 1, the bankruptcy court had determined mat South Holland Trust and Savings Bank, not Vlasek, held legal title to the property as trustee of a land trust. Def. Facts ¶¶ 3-5. The bankruptcy court further determined that the bankruptcy trustee was the owner of the trust's beneficial interest. Id. On July 22, two Deputy U.S. Marshals instructed the Vlaseks to leave the property. Id. at ¶ 6. The Vlaseks removed their personal property to cars and trucks, with "barely anything left in the house." Def. Resp. Pl. Facts ¶ 8. The Vlaseks did not vacate the property permanently. Id. at ¶¶ 7, 10; Pl. Resp. Def. Facts at ¶ 7. Instead, they re-occupied the property sometime between July 23 and July 26. Def. Facts at ¶ 10. At this time, water service to the property had been shut off, which deemed the residence uninhabitable by the Village of Homewood, Id. at ¶¶ 8, 11. On July 26, Nemitz delivered a letter to the property, advising the occupants that the property was uninhabitable. Id. at ¶ 12. The very next day, Nemitz learned that water service had been restored without the village's authorization. Id. at ¶¶ 13-14. Water service was again shut off, only to be restored, and then shut off a third time. Id. at ¶¶ 15, 18, 19. On August 4, Nemitz attempted to deliver another letter to the property as to its uninhabitable state. Id. at ¶¶ 20-21.

  Meanwhile, the bankruptcy trustee petitioned the bankruptcy court to oust the Vlaseks, their dog(s), and any personal property from the property. Def. Facts Ex. F. On July 29, the court entered an order, stating in part:
1. That . . . Joseph Vlasek . . . and each and every other unnamed and unknown individual(s) currently occupying the property at 1537 W. 187th Street, Homewood, IL, shall immediately vacate the property at 1537 W. 187th Street, Homewood, IL and shall immediately remove their personal belongings from the premises without further notice or order;
2. The Village of Homewood, Illinois Police Department is authorized and directed to take whatever steps necessary to determine whether the above-named occupants have complied with Paragraph 1 above of this Order and to report its findings to the Court; and
3. Phillip D. Levey, Trustee is hereby authorized to incur the necessary costs to change the locks to the subject premises and to install padlocks on same[.]
Id. On August 5, the bankruptcy trustee requested the Village of Homewood arrange to change the property's locks; the trustee later paid the bill. Id. at ¶¶ 22, 24. That same day, a local locksmith changed the locks in Nemitz's presence at his request. Id. at ¶ 23; Def. Resp. Pl. Facts at ¶ 9. Police officers evicted Vlasek, with Nemitz's "help." Pl. Facts at ¶ 7. The next day, on August 6, Nemitz and two police officers from the Homewood Police Department observed the Vlaseks remove the rest of their personal belongings from the property. Id. at ¶ 25; Def. Resp. Pl. Facts at ¶ 25.

  As a result of this eviction, Patricia Vlasek filed a pro se complaint on her own and Vlasek's behalf in this court against Nemitz, the Village of Homewood, the Homewood Police Department, and unknown police officers in July 2001.*fn1 Pl. Facts at ¶ 11. This court dismissed the complaint under Federal Rule of Civil Procedure 37 because plaintiffs failed to respond to discovery. Pl. Facts at ¶¶ 23-25. The Seventh Circuit affirmed as to Patricia Vlasek, but vacated and remanded as to Vlasek. Vlasek v. Nemitz, No. 02-2423, 2003 WL 21489711 (7th Cir. 2003) (unpublished decision). Nemitz moves for summary judgment on Vlasek's claims.

  ...


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