United States District Court, N.D. Illinois, Eastern Division
December 16, 2005.
JESUS ALCALA, MARIA ALCALA, JOSE HUERTA, and MICAELA MEDINA, Plaintiffs,
VINCENZO TOTARO, MARIA TOTARO, ROCKY CARUSO, GARY LUNDEEN, AUDREY LIVERTON, ATTORNEYS' TITLE GUARANTY FUND, INC., MARY LYNN CHLADA and THE TOWN OF CICERO, Defendants.
The opinion of the court was delivered by: GEORGE MAROVICH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Jesus Alcala ("Mr. Alcala"), Maria Alcala ("Mrs.
Alcala") (together, the "Alcalas"), Jose Huerta and Macaela
Medina filed a nine-count complaint against Vincenzo Totaro ("Mr.
Totaro"), Maria Totaro ("Mrs. Totaro") (together, the "Totaros"),
Rocky Caruso ("Caruso"), Gary Lundeen ("Lundeen"), Audrey
Liverton ("Liverton"), Attorneys' Title Guaranty Fund, Inc., Mary
Lynn Chlada ("Chlada") and the Town of Cicero ("Cicero" or the
Two defendants, Chlada and Cicero, have moved pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure for an order
dismissing plaintiffs' four claims against them. For the reasons
set forth below, the Court denies defendants' motion to dismiss.
For purposes of this motion to dismiss, the Court takes as true
the allegations in the complaint. The alleged facts relevant to
this motion are described below. Jesus and Maria Alcala, a married couple, were looking to
purchase a home with an attached apartment so that they could
house Mrs. Alcala's parents, plaintiffs Jose Huerta and Micaela
Medina. In February 2002, the plaintiffs made an offer for a
property (the "Property") owned by the Totaros. On February 27,
2002, Mr. Alcala, Huerta, Medina and the Totaros signed a
contract for the Property, which contract provided that the
Totaros would convey title to the premises to Mr. Alcala, Huerta
and Medina in a recordable general warranty deed.
The Property at issue is located in the Town of Cicero. Cicero
is involved in every real estate transaction within its borders
by virtue of a transfer tax it imposes on real estate transfers.
The payment of the transfer tax is evidenced by the adhesion of a
Transfer Stamp to the face of the deed. The deed cannot be
recorded without the Transfer Stamp. In order to obtain a
Transfer Stamp, the seller must obtain a Certificate of
Compliance from the Building Commissioner, defendant Chlada. The
Building Commissioner is supposed to issue the Certificate of
Compliance only after the property is inspected and found to be
in full compliance with Cicero's housing code, building code,
electrical code and plumbing code, among others. Alternatively, a
seller can obtain a Transfer Stamp if the purchaser submits a
notarized affidavit that he or she is aware of the code
According to the complaint allegations, the Property never
received a Transfer Stamp. The difficulty seems to have started
with the inspection. The Property was inspected on March 5, 2002
by two Cicero inspectors, Ramiro Leon ("Leon") and Abner Vazquez
("Vazquez"). The two drafted an inspection report noting such
code violations as exposed wiring, an uncapped gas line, missing
Ground Fault Circuit Interrupters and an illegal basement
apartment. Mr. Totaro's son-in-law, defendant Caruso (who is
alleged to have given campaign contributions to Cicero politicians), was present at the inspection and insisted that
Leon and Vazquez write up a "clean" report that did not mention
any of the code violations. When Leon refused, Caruso asked Leon
if he knew who Caruso was and threatened him. When Leon continued
to refuse to draft a "clean" report, Caruso telephoned Building
Commissioner Chlada for assistance. Chlada spoke to Leon, asking
him whether he liked his job and warning him that he needed to
write a "clean" report if he wanted to retain his job. Leon
declined to write a "clean" report, and plaintiffs do not know
what happened to the original report. (Mr. Alcala claims that he
was not allowed to attend the inspection. Instead, it was not
until the fall of 2004 (when they were informed by Leon) that
plaintiffs learned that Chlada threatened Leon and that Leon had
found code violations at the March 2002 inspection.)
At the closing, plaintiffs' attorney noticed that the deed did
not contain a Transfer Stamp, although the closing statement
stated that the seller had paid for the Transfer Stamp. The
settlement agent (who also acted as the Totaros' attorney at the
closing) said he would purchase the Transfer Stamp the next day.
Although the settlement agent gave the Totaros the money for the
Property, he never purchased a Transfer Stamp. For more than two
years, the deed to the Property remained unrecorded, unbeknownst
to the plaintiffs.
In the summer of 2004, Mr. Alcala learned that deed had never
been recorded. Mr. Alcala attempted to obtain a building permit
from Cicero. The permit was rejected because Mr. Totaro was still
the recorded owner of the Property. Mr. Alcala then learned from
his attorney that the deed had never been recorded. The Property
was somehow scheduled for another inspection, which the Property
again failed. Despite the fact that the Property never received a Certificate of Compliance or a Transfer Stamp, another defendant
somehow managed to record the deed in December 2004, allegedly in
violation of state laws.
Based on these allegations, the plaintiffs bring four claims
against defendants Chlada and Cicero.*fn1 In Count I,
plaintiffs allege that Chlada and Cicero violated the Equal
Protection Clause of the Fourteenth Amendment to the
United States Constitution by applying to plaintiffs a Certificate of
Compliance procedure that differed from the one applied to other
purchasers in Cicero. Plaintiffs also allege that defendants
wilfully and maliciously interfered with a building inspection.
In Count II, plaintiffs allege that defendant Cicero had a
systemic policy, custom or practice of utilizing and/or ignoring
the building code to serve the political and pecuniary interests
of Cicero's officials. In Count VI, plaintiffs allege that Cicero
and Chlada conspired with the Totaros and Caruso to commit fraud
against the plaintiffs by concealing from the plaintiffs the
building code violations discovered by Vazquez and Leon. In Count
IX, plaintiffs allege that pursuant to 745 ILCS 10/9-102 Cicero
is liable to pay damages for Chlada's conduct. Cicero and Chlada
have moved to dismiss these claims.
II. Standard on a motion to dismiss
The Court may dismiss claims pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure where the plaintiffs fail "to
state a claim upon which relief can be granted." Fed.R.Civ.P.
12(b)(6). In considering a motion to dismiss, the Court accepts
as true all well-pleaded factual allegations and draws all
reasonable inferences in the plaintiffs' favor. McCullah v.
Gadert, 344 F.3d 655, 657 (7th Cir. 2003). On a motion to
dismiss, the "issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims." Cole v. U.S. Capital, Inc., 389 F.3d 719, 724 (7th
Cir. 2004) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
A claim brought under 42 U.S.C. § 1983 against a municipality
is not subject to more stringent pleading requirements under
Rules 8 and 9 of the Federal Rules of Civil Procedure than are
other claims in federal court. Leatherman v. Tarrant Cty.
Narcotics Intell. & Coord. Unit, 507 U.S. 163, 168-169 (1993). A
plaintiff "need not plead facts; he can plead conclusions."
Jackson v. Marion Cty., 66 F.3d 151, 153 (7th Cir. 1995); see
also McCormich v. City of Chi., 230 F.3d 319, 324 (7th Cir.
2000) ("The smattering of phrases like `highest policymaking
officers' and `widespread custom' throughout [plaintiff's]
complaint is a common practice designed to ensure that the
complaint will withstand scrutiny under liberal notice pleading.
Some would assert that the inclusion of this language should be
`enough.' Others suggest that more is needed; that the facts
included in the complaint must lead to the legal conclusions
drawn. We believe that it is the former view, and not the latter,
that Leatherman and its progeny support.").
A. Count I
In Count I, plaintiffs assert a violation of the Equal
Protection Clause. The Fourteenth Amendment to the Constitution
provides, in relevant part, "No State shall . . . deny to any
person within its jurisdiction the equal protection of the laws."
Pursuant to 42 U.S.C. § 1983, individuals have a private right of
action for violations of the Fourteenth Amendment. Typically, a
plaintiff alleges an equal protection claim by alleging disparate
treatment based on membership in a protected class, such as race,
gender or religion. See McDonald v. Village of Winnetka,
371 F.3d 992, 1002 n. 3 (7th Cir. 2004). Alternatively, an individual
can bring an equal protection claim as a member of a "class of one." Id. at 1001. To state an
equal protection claim based on a class of one, one must allege:
(1) that "he has been intentionally treated differently from
others similarly situated"; and (2) that "there is no rational
basis for the difference in treatment or the cause of the
differential treatment is a `totally illegitimate animus' toward
the plaintiff by the defendant." McDonald, 371 F.3d at 1001.
In Count I, plaintiffs allege that they were subjected to a
different Certificate of Compliance procedure than were other
home buyers in Cicero and that Chlada and Cicero maliciously
interfered with the building inspection. Plaintiffs allege that
these actions were arbitrary and irrational. Finally, plaintiffs
allege that these defendants were improperly motivated to reward
Caruso for his and his family's financial contributions to Cicero
Defendants Cicero and Chlada make two arguments to dismiss
Count I. First, they argue that Count I against Cicero and
against Chlada in her official capacity must be dismissed because
§ 1983 cannot be premised on respondeat superior liability.
Second, plaintiffs argue that Count I against Chlada in her
individual capacity must be dismissed because she was not
involved in the alleged violation.
The Court first considers defendants' respondeat superior
argument. It is true that a municipality "cannot be held liable
solely because it employs a tortfeasor or, in other words, a
municipality cannot be held liable under § 1983 on a respondeat
superior theory." Monell v. Department of Soc. Serv. of N.Y.,
436 U.S. 658, 691 (1978) (emphasis in the original). Defendants,
however, do not explain how plaintiffs' claim relies on a
respondeat superior theory. Plaintiffs have sufficiently plead a
"class of one" equal protection violation which does not seem
(based on the allegations in the complaint) to rely on a
respondeat superior theory. See Anderson v. Village of Oswego, 109 F. Supp.2d 930, 935 (N.D. Ill. 2000).
Furthermore, one of the alleged unlawful actors, Chlada, is
alleged to be the Building Commissioner and, hence, is in charge
of issuing Certificates of Compliance. This suffices as an
allegation that her acts represent the official policy with
respect to the Building Commission. Accordingly, the Court will
not, at this time, dismiss Count I against Cicero and Chlada in
her official capacity.
Defendants next argue that Count I against Chlada in her
individual capacity must be dismissed because she was not
involved personally in the alleged violation. Liability under §
1983 "does not attach unless the individual defendant caused or
participated in a constitutional deprivation." Vance v. Peters,
97 F.3d 987, 991 (7th Cir. 1996) (quoting Sheik-Abdi v.
McClellon, 37 F.3d 1240, 1248 (7th Cir. 1994)). Plaintiffs,
however, have alleged that Chlada was involved in the alleged
Equal Protection Violation. Specifically, plaintiffs allege that
Chlada spoke to one of the inspectors, Leon, on the telephone and
threatened him in an effort to get him to issue a "clean"
inspection of the Totaros' property. Plaintiffs have put forth
sufficient allegations to prevent dismissal on this issue at the
For these reasons, the Court denies defendants' motion to
dismiss Count I.
B. Count II
In Count II, plaintiffs bring a claim under § 1983 against
defendant Cicero for alleged violation of the Equal Protection
Clause. In Count II, plaintiffs allege that Cicero had a
"systematic policy, custom, or practice" of utilizing or ignoring
the building code for political or pecuniary reasons, of failing
to enforce the building code when it was inconvenient for
campaign patrons and of selectively enforcing or ignoring the
building code with the effect of depriving plaintiffs of their
Fourteenth Amendment rights. Plaintiffs caption their claim as a
Monell claim. In Monell v. Department of Soc. Serv. of N.Y., 436 U.S. 658
(1978), the Supreme Court described the circumstances under which
a municipality could be held liable under § 1983. The Supreme
Court explained that it is:
when execution of a government's policy or custom,
whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent
official policy, inflicts the injury that the
government as an entity is responsible under § 1983.
Monell, 436 U.S. at 694. Thus, to state a claim under § 1983, a
plaintiff must allege that:
(1) the City had an express policy that, when
enforced, causes a constitutional deprivation; (2)
the City had a widespread practice that, although not
authorized by written law or express municipal
policy, is so permanent and well settled as to
constitute a custom or usage within the force of law;
or (3) plaintiff's constitutional injury was caused
by a person with final policymaking authority.
McCormick v. City of Chi., 230 F.3d 319
, 324 (7th Cir. 2000).
Defendants argue that plaintiffs fail to allege a causal link
between the constitutional violation and their injury and that
plaintiffs do not sufficiently back up their allegations with
facts. Both the Supreme Court and the Seventh Circuit, however,
have made it clear that plaintiffs can plead conclusions and need
not supply additional facts to state a claim. Leatherman,
507 U.S. at 168-169; McCormich, 230 F.3d at 324. Accordingly,
defendants' conclusory allegations (including their allegations
that they were injured as a result of Cicero's conduct) suffice
at this stage of the proceedings. The Court declines to dismiss
C. Count VI
In Count VI, plaintiffs allege that defendants Chlada and
Cicero conspired with Caruso and the Totaros to conceal building
code violations from plaintiffs with the intent to cause a fraudulent Certificate of Compliance to be issued.
Plaintiffs further allege (1) that defendants engaged in these
actions knowingly, recklessly and with deliberate indifference to
plaintiffs' rights and (2) that the actions caused injury to
1. Statute of limitations
Chlada and Cicero argue that Count VI should be dismissed with
respect to them because it is barred by an affirmative defense,
specifically the one-year statute of limitations in 745 ICLS
10/1-206. Plaintiffs seek protection from the statute of
limitations via the Illinois discovery rule, which "delays the
commencement of the relevant statute of limitations until the
plaintiff knows or reasonably should know that he has been
injured and that his injury was wrongfully caused." Hermitage
Corp. v. Contractors Adjustment Co., 651 N.E.2d 1132, 1135 (Ill.
1995) (quoting Jackson Jordan, Inc. v. Leydig, Voit & Mayer,
633 N.E.2d 627 (Ill. 1994)).
According to defendants, plaintiffs' claim is time-barred
because they should have known no later than the date of the
closing (July 11, 2002) that they had suffered injury. The Court
is not convinced. Plaintiffs allege that they did not know of
Chlada and Cicero's alleged involvement with the inspection until
November 2004. In addition, the plaintiffs allege that they
suffered injury in the summer of 2004 when they were unable to
obtain a building permit given that their deed to the Property
had not been recorded. Although it may become clear at subsequent
stages of the litigation that some (or all) of this claim is
time-barred, the Court cannot say at this time that plaintiffs
could prove no set of facts that would result in a claim not
barred by the statute of limitations. 2. Pleading conspiracy
Defendants also argue that plaintiffs allegations do not
support a conspiracy claim. Under Illinois law, to allege a
conspiracy to defraud, the plaintiffs must allege "(1) a
conspiracy; (2) an overt act of fraud in furtherance of the
conspiracy; and (3) damages to the plaintiff as a result of the
fraud." Bosak v. McDonough, 549 N.E.2d 643, 646 (Ill.App.Ct.
1st Dist. 1989). A conspiracy is a "combination of two or more
persons to accomplish by concerted action an unlawful purpose or
a lawful purpose by unlawful means." Id. Defendants seem to
argue that they did nothing wrong and, hence, plaintiffs'
conspiracy claim should be dismissed with respect to them. But
plaintiffs have alleged defendants' involvement in the alleged
conspiracy: plaintiffs allege that Chlada, an employee of Cicero,
interfered with the inspection of the Property in order to
defraud plaintiffs. This suffices at the pleading stage.
Finally, defendants summarize several Illinois statutes
(745 ILCS 10/2-103, 10/2-104, 10/2-105, 10/2-205, 10/2-206 and
10/2-207) and argue that the statutes bar the conspiracy claim
against Chlada and Cicero. Two of these statutes provide that a
local public entity or a public employee, respectively, is "not
liable for an injury caused by adopting or failing to adopt an
enactment or by failing to enforce any law." See
745 ILCS 10/2-103; 745 ILCS 10/2-205. Next, a public entity or a public
employee, respectively, is "not liable for an injury caused by
his failure or refusal to issue, deny, suspend or revoke, any
permit, licence, certificate, approval, order or similar
authorization where he is authorized by enactment to determine
whether or not such authorization should be issued, denied, suspended or revoked." See 745 ILCS 10/2-104;
745 ILCS 10/2-206. In addition, a public entity or a public employee,
respectively, is "not liable for an injury caused by his failure
to make an inspection, or by reason of making an inadequate or
negligent inspection, of any property [other than one owned by it
or its employer] for the purpose of determining whether the
property complies with or violates any enactment or contains or
constitutes a hazard to health or safety." See
745 ILCS 10/2-105; 745 ILCS 10/2-207. These statutes, however, "do not
affect the right to obtain relief other than damages against a
local public entity or public employee." See 745 ILCS 10/2-101.
Defendants do not explain how the conspiracy claim is barred by
these statutes. Depending on the evidence put forth at a
subsequent stage of the case, it may become clear that the claim
is barred. Based on the allegations in the complaint, however,
Count VI does not appear to be barred by these statutes.
Plaintiffs allege a conspiracy to conceal building code
violations, which is not barred by the plain language of any of
the statutes defendants cite.
For these reasons, the Court will not dismiss Count VI.
D. Count IX
In Count IX, pursuant to 745 ILCS 10/9-102, plaintiffs seek to
hold defendant Cicero liable for the claims against Chlada.
Defendants seek to dismiss this claim on the sole basis that the
other claims (Counts I, II and VI) were dismissed. Because the
Court denied the motion to dismiss Counts I, II and VI, it also
denies the motion to dismiss Count IX. IV. Conclusion
For the reasons set forth above, the Court denies defendants'
motion to dismiss.
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