United States District Court, N.D. Illinois, Eastern Division
July 1, 2004.
JAN ZALEGA, Plaintiff,
TOWN OF CICERO, et al., Defendants.
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
Before the court is Defendants' Motion to Dismiss, brought
pursuant to Federal Rule of Civil Procedure 12(b)(6) [10-1]. For
the following reasons, the motion is granted.
On June 7, 2001, a vehicle belonging to Plaintiff, Jan Zalega
("Zalega"), was parked on the yard of his brother's residence in
Cicero, Illinois. Zalega was notified that the manner in which
his vehicle was parked violated a Cicero ordinance, and was given
a complaint. Zalega's vehicle was subsequently towed to an
impound lot operated by RAM Recovery, Inc., Zalega alleges that
his vehicle was damaged while it was impounded.
On May 27, 2003, Zalega filed a two count Complaint against
Defendants, Town of Cicero, unknown police officer, unknown
Inspector 108 and RAM Recovery, Inc., based on the actions of the
Defendants in impounding and damaging his vehicle. In Count I,
brought pursuant to 42 U.S.C. § 1983, Zalega alleges that the
towing of his vehicle violated the Due Process Clause of the
Fourteenth Amendment. In Count II, brought pursuant to Illinois
state law, Zalega bases his claim on a bailment theory. Defendants have responded to the Complaint with the instant
Motion to Dismiss, brought pursuant to Federal Rule of Civil
Procedure 12(b)(6), which is fully briefed and before the court.
A. Standard of Decision
The purpose of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) is not to decide the merits of the challenged
claims but to test their sufficiency under the law. See Gibson
v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Thus,
"[a] complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove
no set of facts to support his claim which would entitle him to
relief." Smith v. Cash Store Mgmt., Inc., 195 F.3d 325, 327
(7th Cir. 1999) (citations and internal quotation marks omitted).
"The issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
claims . . . [and] Rule 12(b)(6) should be employed only when the
complaint does not present a legal claim." Id.
In ruling on a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court must accept as true all factual
allegations contained in the complaint and draw all reasonable
inferences in favor of the plaintiff. See Hickey v. O'Bannon,
287 F.3d 656, 657 (7th Cir. 2002). In deciding a motion to
dismiss, the court reads a complaint liberally, dismissing the
complaint only if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim that entitles him
to relief. See Conley v. Gibson, 355 U.S. 41, 45 (1957).
B. Due Process Violation
In order to state a claim based on a violation of the Due
Process Clause, Zalega's Complaint must allege three elements:
(1) he was deprived of a life, liberty, or property interest; (2)
state actors caused the deprivation; and (3) the deprivation occurred without
due process of law. See, e.g., Omosegbon v. Wells,
335 F.3d 668, 674 (7th Cir. 2003) (citing Morrissey v. Brewer,
408 U.S. 471, 481 (1972)). Zalega has alleged the first two elements;
however, the Complaint fails to allege the third element. "`[T]he
deprivation by state action of a constitutionally protected
interest in life, liberty, or property is not in itself
unconstitutional; what is unconstitutional is the deprivation of
such an interest without due process of law.'" Gable v. City of
Chicago, 296 F.3d 531, 539 (7th Cir. 2002) (quoting Zinermon v.
Burch, 494 U.S. 113, 125 (1990)). In Gable, a group of vehicle
owners whose vehicles had been damaged or destroyed after being
towed to city of Chicago impoundment lots filed a class action
suit, alleging that the city's towing policies violated the Due
Process Clause. See id. at 533. Adhering to the United States
Supreme Court's decision in Parratt v. Taylor, 451 U.S. 527,
543-44 (1981), the Seventh Circuit held that there was no
violation of the Due Process Clause even if the plaintiffs'
vehicles had been damaged or destroyed, so long as the plaintiffs
had an adequate post-deprivation remedy. See id. at 539-40. The
Seventh Circuit stated that "Illinois law would have provided the
plaintiffs with an adequate postdeprivation remedy," such as
cause of action based on a bailment or replevin theory. Id. at
After Defendants filed the instant Motion to Dismiss, the court
entered a minute order directing the parties to discuss
application of Gable to the instant case. See Minute Order of
March 26, 2004 [9-1]. In his response to the Motion to Dismiss,
Zalega states: "The plaintiff cannot distinguish the holding of
Gable to the facts in this matter pertaining to State law
post-deprivation remedies such as bailment." Pl.'s Resp. to
Defs.' Mot. to Dismiss. As conceded by Zalega, the Seventh
Circuit's decision in Gable forecloses the relief sought by
Zalega. As with the plaintiffs in Gable, Illinois law would
have provided Zalega with an adequate post-deprivation remedy.
See Gable, 296 F.3d at 540. Further, at a March 26, 2004 status
hearing for presentment of Defendants' Motion to Dismiss, counsel
for Zalega admitted that he had represented Zalega during a
post-deprivation hearing. As such, Zalega cannot state a legal
claim for a procedural due process violation, mandating that his
claim be dismissed.
Further, to the extent that Zalega alleges a substantive due
process claim, the claim would also fail because, as the Seventh
Circuit has stated, "[i]n order to prevail on a substantive due
process claim involving a deprivation of a property interest, a
plaintiff must `show either the inadequacy of state law remedies
or an independent constitutional violation,'" Gable, 296 F.3d
at 541 (quoting Doherty v. City of Chicago, 75 F.3d 318, 326
(7th Cir. 1996)), and Zalega has not alleged either.
For the foregoing reasons, Defendants' Motion to Dismiss,
brought pursuant to Federal Rule of Civil Procedure 12(b)(6), is
IT IS SO ORDERED.
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