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Allan Stevo v. Pamela Frasor

January 3, 2011

ALLAN STEVO, PLAINTIFF,
v.
PAMELA FRASOR, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Sheila Finnegan

MEMORANDUM OPINION AND ORDER

Plaintiff Allan Stevo alleges that the City of Blue Island, Illinois, City Clerk Pamela Frasor, Mayor Donald E. Peloquin, the City's Aldermen, and the City's attorney Cary A. Horvath (collectively "Defendants") shut off the water at his residence in violation of his rights to due process and equal protection under 42 U.S.C. § 1983. Defendants have moved for summary judgment, contending that Plaintiff was given fair warning over many months that the water would be turned off if he did not install an outdoor water meter as required of all water customers under a City ordinance. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).*fn1 For the reasons stated below, Defendants' motion for summary judgment is granted.

STATEMENT OF FACTS*fn2

A. Plaintiff's Background

Plaintiff, a lifelong resident of Blue Island, has at all relevant times resided with his wife at 2324 West Union Street. (Doc. 67-4, at 1, 8). He also owns three other residential properties in Blue Island. (Id. at 5). For many years, Plaintiff has been employed as a railroad switchman, a job that typically takes him out of the home all day on weekdays. (Id. at 10, 13). Plaintiff's wife does not work outside the home. (Id. at 18). For several decades, Plaintiff has been active in Blue Island politics, serving as an Alderman and running as a candidate for Mayor against Defendant Peloquin. (Second Amended Complaint ("SAC"), Doc. 78, ¶ 24). From the Fall of 2004 to the Spring of 2005, Plaintiff actively supported Defendant Peloquin's opponent in the mayoral race. (Id.).

B. The Blue Island Water Ordinance

Blue Island's current water ordinance was adopted in 1956. (Doc. 67-6, at 29). Section 2(C) provides that water service is subject to the express conditions and provisions of the Ordinance. (Id. at 13-14). Section 3 declares that "[a]ll water taken from the Water Mains of this City shall be metered through meters furnished and approved by the City, as hereinafter provided . . . ." (Id. at 14). Section 11 specifies that the meters "shall be of such type, size, and construction as the City may specify, and that "[a]ll meters shall be installed as close as possible to the entry point of the service pipe, such location to satisfy the City Water Department." (Id. at 15-16). Section 25(E) provides that water shall be shut off five days after a notice of delinquency warning of disconnection is delivered to the address of record, and that service will not be restored until payment is made and all other provisions of the ordinance are complied with, though the Water Committee of the City Council may allow service to continue upon a request for payment by installment. (Id. at 25).

On October 9, 2001, the City Council of Blue Island amended its water ordinance to require its water customers to install meters on the exterior of buildings. (Id. at 30-31). According to Gary Koszlowski, Blue Island's Superintendent of Water and Sewer, the ordinance was amended to protect the residents from home intrusion by imposter meter readers, to protect the readers from the occasional dog bite, and to ensure that meters could be read when a customer was away from home. (Doc. 67-3, at 30-31). Mr. Koszlowski is responsible for making initial determinations as to whether a customer's water service will be disconnected for delinquency or for other reasons consistent with the City Water Ordinance. (Id. at 60-61). Customers are subject to having their water disconnected if they owe more than three hundred dollars, though they can appeal in writing to the Municipal Services Committee. (Id. at 22-23, 62-63). Mr. Koszlowski would forbear disconnecting a customer's water service if the customer called to reschedule installation of an outdoor meter, or if the customer had a complaint pending with Mr. Koszlowski or the Municipal Services Committee. (Id. at 24, 26-27).

Following the adoption of the amendment to the water ordinance in the fall of 2001, the City began notifying customers in their water bills of the need to arrange for the installation of outside meters. (Id. at 31). Thereafter, the City mailed individual reminders to the customers who had not yet complied. Defendants produced such a letter to Plaintiff dated November 14, 2003, though Plaintiff does not recall receiving it. (Doc. 67-2, at 1; Doc. 67-4, at 20).

As of early 2005, only about 250 residences out of 5500 still had not been refitted with outdoor meters. (Doc. 67-3, at 35-36). Since the department lacked crews to install the remaining 250 meters at once, Mr. Koszlowski's department then began sending out additional notices to these customers in groups of 20-25. Defendants produced such a letter to Plaintiff dated January 13, 2005; Plaintiff again has no recollection of receiving it. (Doc. 67-2, at 2; Doc. 67-4, at 23-24). Both letters to Plaintiff gave a phone number to call with any questions.

Mr. Koszlowski testified that, in addition to sending Plaintiff letters, he often reminded Plaintiff to have outdoor meters installed when Plaintiff paid his water bills in person at City Hall. (Id. at 40). Mr. Koszlowski explained that as longtime fellow residents of Blue Island, he and Plaintiff have known each other for many years. (Id. at 7). Plaintiff never set a time for installing a meter at his residence, nor did he explain his failure to do so. (Id. at 40). Plaintiff did, however, arrange to have meters installed at two other buildings that he owned and paid the associated fifty dollar fee. (Doc. 67-4, at 7-8).

C. Termination of Plaintiff's Water Service

In April 2005, in accordance with standard departmental procedure, a notice was posted on the door at Plaintiff's house stating that the water would be disconnected on or after April 19, 2005 unless Plaintiff paid $351.03 in arrearages and installed an outdoor meter. (Doc. 67-2, at 6; Doc. 67-3, at 43-44). Plaintiff denies ever seeing this notice on his door; however, on April 14, 2005, Plaintiff paid his bill in full, including arrearages. (Doc. 67-4, at 33-34; Doc. 67-3 at 45-46).

The next day, Mr. Koszlowski sent Plaintiff a certified letter thanking him for his payment, but informing him that his water service would be discontinued if he did not complete the installation of an outdoor meter by April 27, 2005. That letter provided a phone number to call "to set up a time to have this completed." (Doc. 67-2, at 3). The certified letter was refused, but Plaintiff testified that he did not know who declined to accept it. (Doc. 67-2, at 4; Doc. 67-4, at 31-32).

Plaintiff claimed that he informed Mr. Koszlowski during a face-to-face conversation in April 2005 that he could be present to allow the meter to be installed on weekends, or the following November when he went on vacation. (Doc. 67-4, at 24-25). Plaintiff did not want the installation to proceed outside of his presence out of a concern for his wife's safety. (Id. at 61). Mr. Koszlowski has no recollection of Plaintiff's proposals. (Doc. 67-3, at 40). Plaintiff did not recall Mr. Koszlowski's response, but insisted that he was never informed at any time that his water service could be disconnected if he failed to arrange to have an outdoor meter installed. (Doc. 67-4,at 25, 49).

Blue Island shut off Plaintiff's water around April 27, 2005. (Id. at 35). Mr. Koszlowski acknowledged discussing the decision to disconnect Plaintiff's water with the Mayor and the City Clerk, but denied that they or any political considerations influenced his decision. (Doc. 67-3, at 61).

On May 5, 2005, Plaintiff attended a Municipal Services Committee meeting to lodge a complaint about his water being turned off and was told that his complaint had to be submitted in writing. (Doc. 67-4, at 40). Plaintiff said he then hand-delivered a letter to the home of the Committee's Chairman, Alderman Mark Ruthenberg, that evening. (Id. at 41). Plaintiff was unable to produce a copy of the letter, which he testified he handed to Mr. Ruthenberg's teenage son. (Id. at 62). Plaintiff also testified that he wrote a letter to the Municipal Services Committee in June 2005, and addressed the Committee at a public meeting; however, the Committee informed him that it was not prepared to hear his complaint. (Id. at 44-45). Plaintiff did not produce a copy of this letter either.

On June 12, 2005, Plaintiff spoke with Mr. Koszlowski at City Hall and arranged for the installation of an outdoor meter. (Id. at 28). On June 14, 2005, the meter was installed and, within an hour, Mr. Koszlowski restored the water service. (Id. at 28-29; Doc. 67-6, at 11). During the seven weeks without water service, Plaintiff continued to live in his residence by carrying buckets of water from another property that he owned across the street. (Doc. 67-4, at 36).

D. Other Properties Without Outside Meters

Plaintiff testified that hewas unaware of anyone else in Blue Island whose water service had been disconnected for failure to install an outdoor meter. (Id. at 59). He also testified that as of 2009 there were buildings in Blue Island without an outdoor water meter; however, he could only specifically identify a single apartment building without one (at 12843 Gregory), and admitted that he knew of no single-family house without an outdoor water meter. (Id. at 59-60). According to Mr. Koszlowski, every resident except Plaintiff arranged for the installation of an outdoor meter within 60 days of receiving a second letter. (Doc. 67-3, at 38).

DISCUSSION

A. Standard of ...


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