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Bowers v. City of Herrin

November 1, 2006

RON BOWERS, PLAINTIFF,
v.
CITY OF HERRIN, ILLINOIS, AN ILLINOIS MUNICIPAL CORPORATION, LYNN FRATTINI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CITY CODE INSPECTOR, CITY OF HERRIN, AND CHAD PARKS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A CITY OF HERRIN POLICE OFFICER, DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

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 Herrin ("Herrin"), Lynn Frattini ("Frattini") and Chad Parks ("Parks") and on the motion to strike and dismiss (Doc. 7) filed by Frattini and Parks. Plaintiff Ron Bowers ("Bowers") has responded to the motions (Doc. 9).

I. Background

The complaint in this case alleges that in May 2005, Parks, a Herrin police officer, irked at Bowers for things he had said when Parks had arrested him the day before, turned Bowers in to Frattini, Herrin's code inspector, because Bowers had four inoperable cars on his property. Parks and Frattini knew that Bowers's cars comprised the inventory of his car restoration business, but they were bent on enforcing Herrin's ordinances forbidding inoperable or unregistered cars in public view, which Herrin deems a nuisance. On May 18, 2005, Frattini issued Bowers citations and impounded Bowers's four cars. The private lot at which the cars were stored refused to release the cars until Bowers settled matters with Herrin and paid a storage fee of $20 per day per vehicle. Bowers was able to gather the money to get one car released, but the three others remain impounded.

Bowers is suing the defendants under 42 U.S.C. § 1983 for violation of his Fourteenth Amendment procedural due process, substantive due process and equal protection rights. His complaint names Frattini and Parks in their individual and official capacities.

II. Motion to Strike and Dismiss (Doc. 7)

Frattini and Parks ask the Court to strike and dismiss Bowers's claims against them in their official capacities. Bowers concedes that his § 1983 claims against those defendants in their official capacities are redundant because they duplicate his § 1983 claim against Herrin. They should therefore be stricken pursuant to Federal Rule of Civil Procedure 12(f), which provides that "the court may order stricken from any pleading any . . . redundant . . . matter." For this reason, the Court will strike Bowers's § 1983 claims against Frattini and Parks in their official capacities.

III. Motion to Dismiss (Doc. 6)

In the pending motion to dismiss, the defendants challenge Bowers's pleading of a Fourteenth Amendment procedural due process claim.

A. 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).

B. Analysis

Bowers has sufficiently pled a Fourteenth Amendment procedural due process violation. The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. 14. This clause encompasses three types of protection, one of which is the guarantee of fair procedure, often referred to as "procedural due process." Zinermon v. Burch, 494 U.S. 113, 125-26 (1990). The pending motion addresses Bowers's claim that he was not provided fair procedures when he was not given a pre-deprivation hearing before his vehicles were impounded.

In order to plead a due process claim, a plaintiff must allege (1) that the interest allegedly lost was a protected property or liberty interest under the Fourteenth Amendment, (2) that "the alleged loss . . . amounted to a deprivation," and (3) that the deprivation was without due process of law. Polenz v. Parrott, 883 F.2d 551, 555 (7th Cir. 1989) (citing Parratt v. Taylor, 451 U.S. 527, 536-37 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). In this case, the defendants do not contest that Bowers was deprived, at a minimum, of a protected property interest in the possession of his cars. See Sutton v. City of Milwaukee, 672 F.2d 644, ...


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