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Messner v. Calderone

June 25, 2007


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff William Messner ("Messner") brings this action against Defendants, Village of Forest Park ("Village"), Anthony Calderone, Michael Sturino, Vanessa Moritz, Theresa Steinbach, Sally Cody, Michael Boyle, Nettie Falbo (collectively the "Employees") and Richard Gray ("Gray"), pursuant to 42 U.S.C. § 1983 alleging that the defendants violated his equal protection rights. The Village, the Employees, and Gray ("Defendants") move to dismiss Messner's equal protection claim; the Village seeks to dismiss the § 1983 municipal liability claim; Gray seeks dismissal of the claim against him on the basis that it is barred by the statute of limitations; and the Employees seek a dismissal of the claims against them in their official capacity.

For reasons stated herein, Defendants' Motion to Dismiss Messner's "class of one' equal protection claim and the Village's Motion to Dismiss the municipal liability claim are granted without prejudice. Gray's Motion to Dismiss Messner's equal protection claim pursuant to the two- year statute of limitations and the Employees' Motion to Dismiss Messner's equal protection claims against them in their official capacity are granted with prejudice.


At the motion to dismiss stage, all of the plaintiff's allegations are accepted as true. In March of 1999, Messner rented a single story residence ("original residence") from a private individual. Pl.'s Compl. ¶¶ 5, 6. In early 2001, the Village took ownership of the original residence, becoming Messner's landlord in a month to month tenancy. In January 2001, Messner noted multiple building code violations at the residence including a water-damaged ceiling, rodent infestation and inadequate heat. Id. at ¶ 8. Despite his repeated complaints to the building manager, Gray, the violations continued without remedy through November 2004. Id. at ¶¶ 10, 11. On December 14, 2004, Gray delivered a written Notice of Termination to Messner demanding vacancy by January 30, 2005. Id. at ¶ 15.

In January 2005, Messner acquired a new residence ("second residence") and applied for a home business license with the Village in order to continue operating his music production business out of the second residence. Id. at ¶ 18. Messner continued, however, to occupy the original residence, having negotiated a day-to-day lease with the Village Building Commissioner, Defendant Steinbach. Id. at ¶ 19. In late February 2005, Messner's application was approved, but Defendant Sturino refused to deliver it to him. Id. ¶¶ 20, 21. The Village Clerk issued a license to Messner on March 3, 2005. Id. at ¶ 22. On March 4, 2005, Sturino filed a forcible entry and detainer action against Messner for his failure to vacate the original residence. Id. at ¶ 23. Messner voluntarily vacated the original residence on March 25, 2005. Id. at ¶ 26. On March 28, 2005, judgment was entered against Messner in the amount of $2,447.46, but the action was stayed by court order until April 11, 2005. Id. at ¶¶ 27, 28.

Sometime after the order was entered, the Village entered the original residence and damaged and removed Messner's property. Id. at ¶ 29. Messner and the Village engaged in repeated correspondence regarding who would ultimately be responsible for the damage caused by the entry.

Id. at ¶¶ 30, 31. On April 8, 2005 Messner filed a motion to vacate the March 28, 2005 judgment. Id. at ¶ 32. On April 12, 2005, the Village cleaned up an area adjacent to the original residence that Messner claimed had caused multiple building code violations. Id. at ¶ 33. Messner delivered photos documenting the clean-up to Defendant Steinbach. The next day, the Village police told Messner that Steinbach had filed a criminal complaint against him due to Messner's threats directed toward Steinbach. Id. at ¶ 35.

In January 2006, Messner filed a Freedom of Information Act request and the responsive documents revealed that the Mayor, Defendant Calderone, and the Deputy Village Clerk, Defendant Cody, filed the complaint against Messner as opposed to Steinbach. Id. at ¶¶ 36-38. On January 24, 2006, the Village Inspector, Defendant Boyle, visited Messner's second residence and stated afterward by email that he wanted to inspect the residence. Id. at ¶ 39. From February through April 2006, Boyle made at least two unannounced visits to Messner's second residence and sent several emails demanding more inspections. Id. at ¶¶ 40, 41.

In March and April 2006, Messner requested a renewal of his home business license. Id. at ¶¶ 43, 44, 46. Defendant Falbo, a Village staff member claimed that renewals had not yet been processed, but the renewals were mailed on April 6, 2006. Id. When Messner inquired, Falbo stated that the Village Clerk, Defendant Moritz, instructed her not to give Messner a renewal form. On April 27, 2006, Messner met with Moritz and she stated that she and Boyle were refusing to renew Messner's license until he allowed Boyle to make an inspection of the second residence. Id. at ¶ 49. Messner subsequently applied for renewal of his home business license on April 30, 2006 which Moritz unilaterally denied on May 2, 2006. Id. at ¶ 50.


When considering a motion to dismiss under Rule 12(b)(6), a court must accept as true all facts alleged in the complaint and construe all reasonable inferences in favor of the Plaintiff. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). A plaintiff need not allege all facts involved in the claim. See Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994). However, in order to survive a motion to dismiss for failure to state a claim, the claim must be supported by facts that, if taken as true, at least plausibly suggest that he is entitled to relief. See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). Specifically, such set of facts must "raise a reasonable expectation that discovery will reveal evidence" of illegality. Id. at 1965.


Messner's "Class of One" Equal Protection Claim Messner brings this action pursuant to § 1983 based upon a constitutional class of one theory alleging a denial of his equal protection rights.*fn1 In order to state a cause of action under ยง 1983 alleging a denial of equal protection under a class of one theory, a plaintiff must allege that (1) he was intentionally treated differently than those similarly situated, and (2) there is either ...

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