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Sherron Lewis, Jr v. David F. Schmidt

January 4, 2011

SHERRON LEWIS, JR., PLAINTIFF,
v.
DAVID F. SCHMIDT, JAMES D. HOCK, JULIANA MALLER, GERI BERTOG, THE CITY OF PARK RIDGE, ILLINOIS,
GENE BOBROFF, AND NORMA C. WILLIAMS DEFENDANTS.



The opinion of the court was delivered by: Honorable Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Plaintiff Sherron Lewis, Jr. filed a pro se amended complaint under 42 U.S.C. §§ 1981-1983 and 1985-1986, the Fair Housing Act, and other theories against the City of Park Ridge, several Park Ridge officials, the record owner of his residence, and the owner's attorney after the City of Park Ridge disconnected the water service to his residence. On August 10, 2010, David Schmidt, James Hock, Juliana Maller, Geri Bertog, and the City of Park Ridge (the "city defendants") moved to dismiss his amended complaint.

I.BACKGROUND

Sherron Lewis, Jr. has lived at 1010 N. Western Ave. in Park Ridge, Illinois since April 2009. (Am. Compl. ¶ 16.) Lewis sued Norma C. Williams -- the title owner of the residence -- in state court in 2009 in connection with the purchase and occupancy of the property. (Id. ¶¶ 10, 16.) On February 11, 2010, Lewis attempted to speak to the City of Park Ridge's water billing office about an unusually high water bill. (Id. ¶¶ 20-21.) However, Lewis alleges that instead of assisting him, Geri Bertog, a water billing clerk, informed him that the water billing office could not discuss the bill with him because his name was not on the title to the home. (Id. ¶ 22.) After Lewis continued to insist that someone speak with him about the bill, Bertog allegedly called the police. (Id. ¶ 26.) Two armed police officers arrived shortly thereafter. (Id. ¶ 27.) The officers declined to arrest Lewis, issue a citation, or file a report about the incident. (Id. ¶ 29.)

After Lewis left Park Ridge City Hall, he called City Manager James D. Hock. (Id. ¶ 30.) According to Lewis, Hock agreed to provide him with a copy of the municipal code section that prevented the water billing office from speaking with him about the bill. (Id. ¶ 31.) Lewis alleges that Hock said he would get back to him the next day. (Id.) However, according to Lewis, more than two weeks passed before Hock responded to him on March 1, 2010 despite Lewis' repeated attempts (on February 12th, 17th, 18th, and 22nd) to contact Hock via phone and email. (Id. ¶¶ 32-35.) In his February 22, 2010 email, Lewis refers to "the water departments [sic] refusal to get the billing issue and disputed amount resolved." (Id. Ex. E.) On February 26, 2010, Lewis' water was shut off. (Id. ¶ 36.)

On March 1, 2010, both Hock and David Schmidt, Mayor of the City of Park Ridge, informed Lewis via email that the outstanding water bill must be paid before the water service to Lewis' residence could be turned back on. (Id. ¶¶ 38, 43, Ex. G, & Ex. K.) According to Lewis, on or about March 3, 2010, Deputy City Manager Juliana Maller also refused to turn Lewis' water back on. (Id. ¶¶ 44-47.) In a March 16, 2010 letter to Lewis, Maller wrote, "[T]he owner of record of the property at 1010 N. Western has informed the City that no one is currently authorized to occupy that home and that water service is unnecessary." (Id. Ex. M.) Lewis alleges that the "owner of record" could only be Norma C. Williams, and it must have been Williams, or her attorney, Gene Bobroff, who told the City that water service was unnecessary. (Id. ¶¶ 50-51.) On March 19, 2010, Lewis' water was turned back on. (Id. ¶ 52.)

Also relevant to Lewis' claims is Section 11-1-13(A) of the City of Park Ridge Municipal Code, which provides, in pertinent part:

The City will provide written notice of impending termination of water service to the consumer at least seven (7) days prior to the termination of such service. The notice shall state . . . that the service will be terminated on the stated date unless within that time period the City receives a written request from the owner, occupant or user stating a desire to dispute or discuss the delinquent payment, in which case a hearing will be scheduled before the Finance Director or his/her designee prior to discontinuation of service.

Park Ridge, Ill., Mun. Code § 11-1-13(A) (1999).

II.LEGAL STANDARD

Rule 12(b)(6) enables a defendant to seek dismissal of a complaint that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, the court must "tak[e] all well-pleaded allegations of the complaint as true and view[] them in the light most favorable to the plaintiff." Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010) (quoting Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000)). Legal conclusions, however, are not entitled to any assumption of truth. Ashcroft v. Iqbal, ---U.S. ----, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). To survive a Rule 12(b)(6) motion to dismiss, the complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief" so as to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Although "detailed factual allegations" are not necessary, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Rather, the plaintiff must provide enough factual allegations to state a claim for relief that is not only conceivable, but "plausible on its face." Id. at 555 & 570; see Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) ("a plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law.") "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. Pro se complaints, such as Lewis', are given greater latitude. Haines v. Kerner, 404 U.S. 519, 520-521, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972).

III.ANALYSIS

A.Claims against Schmidt, Hock, Maller, and Bertog in their official capacities

Lewis has sued Schmidt, Hock, Maller, and Bertog in both their individual and official capacities. However, "[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). Accordingly, since the City of Park Ridge has received notice and an opportunity to respond, Lewis' suit -- to the extent that he names Schmidt, Hock, Maller, and Bertog in their official capacities -- will be treated as a suit against the City of Park Ridge.

In order to state a claim under §§ 1981, 1982, 1983, or 1985 against a municipality, a plaintiff must allege that the municipality had an official policy or custom that caused the injury. Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Alexander v. Milwaukee, 474 F.3d 437, 448 (7th Cir. 2007) ("Section 1981, like § 1983, also requires a plaintiff to demonstrate an official policy or custom in order to allow for municipal liability."); Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005) (a plaintiff must allege an official policy or custom in order to state a claim against a municipality under § 1985); Crestview Vill. Apts. L.P. v. United States HUD, No. 01-C-6913, 2002 U.S. Dist. LEXIS 26508, at *12 (N.D. Ill. Feb. 7, 2002) (a plaintiff must allege an official policy or custom in order to state a claim against a municipality under § 1982).

The city defendants argue that Lewis' claims against the City of Park Ridge and against Schmidt, Hock, Maller, and Bertog in their official capacities must fail because Lewis has not alleged that his injuries resulted from an official policy or custom of the City of Park Ridge. (Mot. to Dismiss at 13.) The court disagrees. Lewis may fulfill the requirement that he allege that his injuries resulted from an official policy or custom by pleading that his injuries resulted from 1) an express policy, 2) a "widespread practice that, although not authorized by written law or express municipal policy, is 'so permanent and well settled as to constitute a 'custom or usage' with the force of law,'" or 3) "the actions of a person with 'final policymaking authority.'" Looper Maint. Serv. Inc. v. City of Indianapolis, 197 F.3d 908, 912 (7th Cir. 1999) (citing Baxter v. Vigo Cnty. Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994), and quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 127, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988)). While Lewis has not pled that his injuries resulted from an express policy or a de facto custom, if the court construes Lewis' amended complaint liberally -- as it must with a pro se plaintiff -- then it is apparent that Lewis has alleged that his injuries resulted from the decision of at least one city official with final policymaking authority. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) ("A document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers . . . .'") Lewis does so when he alleges that both City Manager Hock and Mayor Schmidt personally refused to reinstate his water service or grant him a hearing,*fn1 and notes that the City of Park Ridge Municipal Code "states that the City Manager oversees the operations of all City Departments and further, that the City Manager receives his directions from the Mayor." (Am. Compl. ¶¶ 39 & 42-43.) Thus, Lewis' claims against the City of Park Ridge and against Schmidt, Hock, Maller, and Bertog in their official capacities will not fail on this basis.

B.Count I

1. Lewis' Malicious Prosecution Claim Against Bertog

Lewis argues that Bertog engaged in malicious prosecution when she allegedly called the police. Under Illinois law, to state a claim for malicious prosecution, a plaintiff must allege: "(1) commencement of criminal proceedings by the [defendant]; (2) termination of that matter in favor of the [plaintiff]; (3) the absence of probable cause for the proceedings; (4) the presence of malice; and (5) resulting damages." Gonzalez v. City of Elgin, 578 F.3d 526, 541 (7th Cir. 2009). "In Illinois, criminal proceedings are commenced by the filing of a complaint, an indictment, or an information." Logan v. Caterpillar, Inc., 246 F.3d 912, 922 (7th Cir. 2001). In addition, "[l]egal causation will be attributed to a private citizen" -- as opposed to a law enforcement officer -- "only if the plaintiff can demonstrate that the defendant (1) instituted the proceedings against the plaintiff; (2) knowingly made false statements to the police; or (3) requested, directed, or pressured the officer into swearing out the complaint for the plaintiff's arrest." Id. Lewis concedes that the officers who responded to Bertog's call declined to arrest him, issue a citation, or make a report. (Am. Compl. ¶ 29.) Given this, Lewis' malicious prosecution claim is dismissed because Lewis has not and cannot allege that Bertog caused criminal proceedings to be initiated against him.

2. Lewis' claim under the Illinois Public Utilities Act

Also in Count I, Lewis appears to bring a claim pursuant to the Illinois Public ...


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