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Messner v. Calderone

March 13, 2008

WILLIAM MESSNER, PLAINTIFF,
v.
ANTHONY CALDERONE, INDIVIDUALLY AND AS THE DULY AUTHORIZED AGENT, SERVANT AND/OR EMPLOYEE OF THE VILLAGE OF FOREST PARK, ET. AL., DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff William Messner ("Messner") originally brought this action against Defendants Village of Forest Park ("Village"), Anthony Calderone ("Calderone"), Michael Sturino ("Sturino"), Vanessa Moritz ("Moritz"), Theresa Steinbach ("Steinbach"), Sally Cody ("Cody"), Michael Boyle ("Boyle"), Nettie Falbo ("Falbo") (collectively the "Employees") and Richard Gray ("Gray") pursuant to 42 U.S.C. §1983 alleging that Defendants violated his rights under the Equal Protection Clause. This Court dismissed Messner's claims under §1983 and his municipal liability claims against the Village without prejudice and dismissed his claims against Gray and his claims against the Employees in their official capacity with prejudice in its order of June 25, 2007.

Messner filed his First Amended Complaint against the Village, the Employees, and the Reich & Becker Agency, Inc. and its officers and directors ("Reich & Becker"), both individually and in their official capacity pursuant to 42 U.S.C. §1983, alleging that Defendants violated his rights under the Equal Protection Clause as well as state law claims of retaliatory eviction and failure to prosecute building code violations. The Village and the Employees moved to dismiss the First Amended complaint.

For reasons stated herein, the Motion to Dismiss Messner's First Amended Complaint is denied as to Messner's Equal Protection and municipal liability claims and granted as to Messner's claims of retaliatory eviction and failure to prosecute building code violations.*fn1

PLANTIFF'S ALLEGATIONS

At the motion to dismiss stage, all of plaintiff's allegations are accepted as true.*fn2 On or about March of 1999, Messner rented a single story residence ("original residence") from a private individual. 2d. Amend. Compl. ¶¶ 6, 7. In early 2001, the Village took ownership of the original residence and became Messner's landlord. Id. at ¶ 8. Messner became a month-to-month tenant in 2002. Id. at ¶¶ 10. Beginning in January of 2001, Messner noted multiple building code violations at the original residence including water damage, leaking, loose fixtures, rodent and insect infestation, and inadequate heat. Id. at ¶¶ 9, 13, 15. Messner repeatedly complained about the violations until November of 2005, but the Defendants took no action. Id. at ¶¶ 11, 12. In response to his complaints, Messner received a written notice of termination of the lease on December 14, 2004 demanding vacancy by January 30, 2005. Id. at ¶ 16. On March 25, 2005, Messner acquired a new residence within the Village ("second residence"). Id. at ¶ 18. He also continued to occupy the original residence, having negotiated a day-to-day lease with Village Building Commissioner Steinbeck. Id. at ¶ 20.

In January of 2005, Messner applied for a home business license in order to continue operating his music writing and production business in the second residence. Id. at ¶ 19. The Village granted him a license in February of 2005, but Village Manager Sturino refused to give it to him. Id. at ¶¶ 21-22. On March 3, 2005, the Village clerk finally issued the license to Messner. Id. at ¶ 23.

On March 4, 2005, Sturino filed a forcible entry and detainer action against Messner for his failure to vacate the original residence. Id. at ¶ 24. Messner alleges that Sturino had no lawful basis for this action and filed it to retaliate against him. Id. at ¶¶ 25, 27. Messner vacated the original residence on March 25, 2005. Id. at ¶ 28. He filed a response to the action, arguing that he had a day-to-day lease with the Village. Id. at ¶ 34. At the hearing on the action, the Village presented two witnesses who falsely testified that Messner did not have a day-to-day lease on the original residence. Id. at ¶¶ 29-32, 35-36. The presiding judge entered judgment against Messner for $2,447.46, but the action was stayed by court order on March 28, 2005. Id. at ¶ 41-42.

On March 29, 2005, John Gray Carpet Cleaning Company unlawfully entered the original residence and removed carpeting, and on April 1, 2005, Messner received a letter from Cody stating that his security deposit would be held to pay for damages to the carpet. Id. at ¶¶ 43, 47. He responded by sending Steinbach a letter alleging that the Village had violated his day-to-day lease, including photographs of the building code violations. Id. at ¶ 49. On April 8, 2005, Messner filed a motion to vacate the March judgment and included the same photos of the building code violations. Id. at ¶ 50. Soon thereafter, the Village cleaned up the area around the original residence that caused the code violations. Id. at ¶¶ 51-54.

On April 15, 2005, police told Messner that Steinbach had filed a complaint against him alleging that he had threatened her. Id. at ¶ 55. After filing a Freedom of Information Act ("FOIA") request, Messner found out that the complaint was actually filed by Mayor Calderone. Id. at ¶ 57. Messner states that nothing in this complaint report is true. Id. at ¶ 58. On January 24, 2006, Defendant Boyle visted the second residence and afterward repeatedly asked to inspect the property. Id. at ¶¶ 59-60.

In March of 2006, Messner requested a renewal of his home business license. Id. at ¶ 66. Falbo, a village staff member, claimed that renewals had not yet gone out. Id. at ¶ 69. However, renewal invoices had been sent to all existing businesses except Messner. Id. at ¶ 72. When Messner inquired, Falbo stated that the Village Clerk, Moritz, instructed her not to give Messner a renewal form or business license. Id. at ¶ 74. Throughout April of 2006, Falbo repeatedly told Messner that she would not give him a renewal form because all home businesses were now required to be inspected and he had refused inspection. Id. at ¶ 77. Messner asserts that no village ordinance requires such an inspection. Id. at ¶ 78. On April 30, 2006, Messner finally applied for a renewal of his home business license, and Mortiz denied the application. Id. at ¶ 80.

Messner further asserts that he has reason to believe that all other residents, property owners, and business licensees have been treated differently. Id. at ¶¶ 85-87, 95-96. In particular, the Village did not require other home business owners to have an inspection before the renewal of their licenses. Id. at ¶ 95. Messner notes that the Village's April 6, 2006 notice to all business licensees makes no statement requiring them to have their businesses inspected prior to renewal. Id. at ¶ 97.

Messner further asserts that Mayor Calderone directed Village officials to refuse to acknowledge his complaints regarding building code violations, to demand inspection of his property, to refuse to renew his home business license, and to refuse to answer FOIA requests he filed requesting copies of all home ...


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