The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 6) filed by defendants City of Bridgeport ("Bridgeport"), Max Schauf ("Schauf"), Robert Nestleroad ("Nestleroad") and Danny Ash ("Ash") (collectively, "municipal defendants"). Plaintiff Michael D. Allison ("Allison") has responded to the motion (Doc. 7).
I. Standard for Dismissal
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts all allegations as true and draws all reasonable inferences in favor of the plaintiff. Brown v. Budz, 398 F.3d 904, 908 (7th Cir. 2005); Holman v. Indiana, 211 F.3d 399, 402 (7th Cir. 2000). The Court should not grant a motion to dismiss unless it appears beyond doubt that the plaintiff cannot prove his claim under any set of facts consistent with the complaint. Brown, 398 F.3d at 908-09; Holman, 211 F.3d at 405. "[I]f it is possible to hypothesize a set of facts, consistent with the complaint, that would entitle the plaintiff to relief, dismissal under Rule 12(b)(6) is inappropriate." Brown, 398 F.3d at 909 (internal quotations omitted); see Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006).
Allison's complaint alleges the following facts.
Plaintiff Allison is a resident of Bridgeport, Illinois, who enjoys fixing up vintage cars. Allison's hobby got him into some trouble when, in June 2001, Bridgeport decided to enforce a city ordinance ("Abandoned Vehicle Ordinance") requiring all vehicles kept in yards or driveways in the city to be registered with the state. The Abandoned Vehicle Ordinance allowed Bridgeport to impose a fine of $75 to $500 per day if a violator did not remove unregistered cars from his property within ten days of receiving notice; it did not authorize Bridgeport to tow offending vehicles. The passage of the Abandoned Vehicle Ordinance was supported by a City Counsel finding that junk and disabled vehicles on residential property pose a threat to the health, safety and well-being of Bridgeport residents. In June 2001, Bridgeport notified Allison that if he did not register the three inoperative vintage cars on his property with the Illinois Secretary of State, it would fine him. Allison registered two of the three cars and moved the third car, which belonged to his brother, to a storage facility.
Two years later, in May 2003, Bridgeport again notified Allison that he needed to register two inoperable vintage cars on his property. This time Allison refused, expecting to be issued a ticket and to be given an opportunity to contest the legitimacy of the Abandoned Vehicle Ordinance. Instead, in August 2003, Bridgeport sent Allison a letter warning him that if he did not show proof of his cars' registration within ten days, his cars would be towed. Allison did not register the cars, and on November 10, 2003, defendant Tory Garrard ("Garrard"), acting at Bridgeport's direction, towed Allison's cars from his property to Garrard's impound lot, where they were held until Allison's mother paid to have the cars registered and redeemed from the impound lot ten days later. Bridgeport officials had not obtained a warrant to seize Allison's cars, had not issued a ticket to Allison for violation of the Abandoned Vehicle Ordinance, and did not offer Allison the opportunity for a hearing before or after it caused his cars to be towed. In addition, in towing Allison's cars, Garrard damaged the cars and Allison's real property.
The issue arose again two years after that. On June 15, 2005, Bridgeport notified Allison that he needed to register the two vintage cars in his driveway. Allison had not done so within two weeks, so Garrard, still acting at Bridgeport's direction, towed one of the cars to his impound lot on June 28 and the other on June 29. Garrard held the cars until July 5, 2005, when Allison paid to redeem the cars and presented proof that he planned to move them outside the city limits. As in May 2003, Bridgeport officials had not obtained a warrant to seize Allison's cars, had not issued a ticket to Allison for violation of the Abandoned Vehicle Ordinance, and did not offer Allison the opportunity for a hearing before or after it caused his cars to be towed. Again, in towing Allison's cars, Garrard damaged the cars and Allison's real property.
During the times Bridgeport was enforcing the Abandoned Vehicle Ordinance against Allison, it allowed other Bridgeport residents to maintain unregistered cars on their property in violation of the ordinance. Furthermore, at all relevant times, Allison's vehicles that were towed were clean, closed, locked and secure and did not pose any more of a threat to the health, safety or well-being of Bridgeport residents than a registered vehicle did.
In November 2005, Allison filed this multi-count lawsuit under 42 U.S.C. § 1983 against Bridgeport, Schauf, the mayor of Bridgeport during all relevant times and the one who directed the police to enforce the Abandoned Vehicle Ordinance, Nestleroad, the police chief who sent the notices to Allison in 2001 and 2003, Ash, the acting police chief who sent the notice to Allison in 2005, and Garrard, who Allison believes was acting as an agent of Bridgeport in towing and impounding his cars. The complaint is not a model of clarity, often repeating the same information and allegations multiple times. Nevertheless, the Court is able to discern the following claims:
* Count I, pled against Bridgeport, contains Fourteenth Amendment substantive and procedural due process claims challenging the rationale for adopting the Abandoned Vehicle Ordinance and the adequacy of the notice and procedures it affords to potential violators. It also alleges that the Abandoned Vehicle Ordinance violates the Eighth Amendment because the fines allowed are excessive, the Fourteenth Amendment because they are arbitrary and capricious in that they are left to the unbridled discretion of Bridgeport officials, and the Fifth Amendment because it amounts to a taking without just compensation. Count I also alleges that the warrantless seizures of Allison's cars violated his Fourth Amendment right to be free from unreasonable seizures and that the selective enforcement of the Abandoned Vehicle Ordinance against him violates the Fourteenth Amendment's equal protection clause.
* Count II, pled against Bridgeport, reiterates some of the same claims pled in Count I, and adds the allegation that Bridgeport's enforcement of the Abandoned Vehicle Ordinance against him has deprived him of the artistic and expressive "right to the quiet enjoyment of leisure activities in his or her ...