United States District Court, N.D. Illinois, Eastern Division
September 7, 2005.
MICHAEL L. KATHREIN and VICTORIA ZAYTSEVA, Plaintiffs,
CITY OF EVANSTON, ILLINOIS; JACK M. SIEGEL; HERBERT D. HILL and ELLEN SZYMANSKI, Defendants.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, Michael Kathrein and Victoria Zaytseva, filed suit,
pro se, against Defendants, alleging retaliation in violation
of 42 U.S.C. § 1983. Currently before the Court is Defendants'
Motion to Dismiss.
A reading of Plaintiffs' Complaint supports the following
summary of the alleged conduct of the parties.
Plaintiffs own a single-family dwelling in Evanston, Illinois.
In September 2002, Plaintiffs applied to the City of Evanston for
a construction permit to expand an attached
one-and-three-quarter-car garage to accommodate two vehicles. In
October 2002, Plaintiffs' permit was granted. Plaintiffs
commenced construction on the garage, throughout which time city
building inspectors reviewed and approved the construction in
progress. Construction was completed on or about November 15,
Unbeknownst to Plaintiffs, sometime in early November 2002,
Plaintiffs' neighbor requested that the City review Plaintiffs'
permit for error. The City reviewed the permit, finding no
errors. However, the neighbor persisted and made additional
requests for the review of the permit. During a subsequent review of the permit, the City discovered
that it had made an administrative error. On November 23, 2002,
Plaintiffs discovered a "stop work" order taped to the outside of
their new closed garage door.
Upon inquiry the following Monday, the City informed Plaintiffs
that the City had made an internal administrative error and that,
as a result of the error, the Plaintiffs' garage exceeded the
authorized side-yard set-back from the property line by 3.75
feet. Without deference to its earlier admission of fault, the
City required Plaintiffs to undertake a public zoning appeal
process that continued for more than a quarter of the year.
On April 29, 2003, the City Zoning Board of Appeals,
effectively, retroactively cancelled Plaintiffs' permit and
ordered Plaintiffs to demolish their garage. The City informed
Plaintiffs that if they did not demolish the garage, the City
would do so. Subsequently, Plaintiffs filed a civil suit in the
Circuit Court of Cook County, No. 03CH16726, seeking injunctive
relief and administrative review of the circumstances underlying
the garage permit. That suit remains pending.
In December 2004, Plaintiffs submitted an initial proposal to
the City for a permit relating to the remodeling of their
kitchen. Plaintiffs addressed all of the City's objections.
Despite full compliance with all administrative requirements, the
City refused to issue the permit. Plaintiffs repeatedly sought
the assistance of the City in an attempt to get the permit
On May 11, 2005, Plaintiffs issued a letter to the Community
Development Department and to the City's Corporation Counsel
demanding either a permit or an explanation for the denial of a
permit. On May 13, 2005, the Director of Community Development
for the City left a voice mail on Plaintiffs' telephone answering machine. In the message, the
Director stated that the City's Corporation Counsel had ordered
that no permit be issued in light of the civil suit filed by the
Plaintiffs in relation to the garage permit.
In reviewing a motion to dismiss, the court reviews all
allegations in the complaint and any inferences reasonably drawn
therefrom in the light most favorable to the plaintiff.
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323,
326 (7th Cir. 2000). A plaintiff is not required to plead the
facts or the elements of a claim, with the exceptions found in
Federal Rules of Civil Procedure 9. See Swierkiewicz v. Sorema,
534 U.S. 506, 511 (2002) (Swierkiewicz); Walker v. Thompson,
288 F.3d 761, 764 (7th Cir. 2002). A filing under the Federal
Rules of Civil Procedure need not contain all the facts that will
be necessary to prevail. It should be "short and plain", and it
suffices if it notifies the defendant of the principal events.
See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003).
Dismissal is warranted only if "it appears beyond a doubt that
the plaintiff can prove no set of facts in support of its claims
that would entitle it to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). The "suit should not be dismissed if it is
possible to hypothesize the facts, consistent with the complaint,
that would make out a claim." Graehling v. Village of Lombard,
Ill., 58 F.3d 295, 297 (7th Cir. 1995). The simplified notice
pleading relies upon liberal discovery and summary of motions to
define disputed issues and facts and to dispose of unmeritorious
claims. See Swierkiewicz, 534 U.S. at 513.
Defendants argue that the Court should abstain from this
present suit pursuant to the Younger v. Harris, 401 U.S. 37
(1971) (Younger), abstention doctrine.
The Younger abstention doctrine provides that, absent
extraordinary circumstances, federal courts should refrain from
interfering with ongoing state proceedings. See Middlesex County
Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 433 (1982)
(Middlesex). Three factors are considered in determining
whether to abstain under the Younger abstention doctrine: (1)
is there an ongoing state-court proceeding; (2) do the
state-court proceedings implicate important state interests; and
(3) is there an adequate opportunity in the state proceedings to
raise constitutional challenges. See Middlesex,
457 U.S. at 433-35.
Defendants contend that the state civil suit Plaintiffs filed
in connection with their garage permit constitutes an ongoing
state-court proceeding in relation to the present suit. The
state-court action is an ongoing state proceeding; however, it
has no relation to Plaintiffs' retaliation claim in this Court
regarding the denial of a permit to remodel Plaintiffs' kitchen.
Any rulings by this Court as to Plaintiffs' retaliation claim
will have no effect on, nor interfere with, the pending
state-court proceeding. See Middlesex, 457 U.S. at 433. Thus,
abstention under Younger v. Harris is denied.
Defendants also argue that the Complaint should be dismissed as
to the individual Defendants because it fails to make any
allegations against the individual Defendants.
Plaintiffs' Complaint identifies three individual Defendants in
the caption and includes the three individual Defendants in the
"Parties" section of the Complaint. Each individual Defendant is
identified only as having positions in the City's Corporation
Counsel. Neither the individual Defendants nor their conduct are
not identified in any further allegations.
Therefore, Plaintiffs' Complaint fails to adequately notify the
individual Defendants of the principal events alleged against
them to allow them to properly answer Plaintiffs' Complaint.
Accordingly, Plaintiffs' Complaint is dismissed without prejudice
as to the individual Defendants. For the reasons stated above, Defendants' Motion to Dismiss is
granted in part and denied in part. Plaintiffs' Complaint is
dismissed without prejudice as to the individual Defendants.
Plaintiffs are granted leave to file an amended complaint within
thirty days of this Order if Plaintiffs can do so consistent with
their obligations under Fed.R.Civ.Proc. 11.
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