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Zafar Sheikh v. David Rabin et al

November 9, 2012


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Plaintiff Zafar Sheikh wanted to build a house on four adjoining lots that he owns in Highland Park, Illinois. Defendants David Rabin, Debbie Rabin, Hedy Berrocal, Daniel Kolleng, Luke Migala, Joel Kagan, William Schoenwald, Michael Lickerman, and Oded Orbach (collectively "Defendants") live next to or near Plaintiff's lots and opposed his plans. According to Plaintiff, upon learning that Plaintiff wanted to build a house on his lots, Defendants did whatever was necessary to keep him from obtaining the permits that he needed to build, and they did so, Plaintiff claims, because of his race, religion, and national origin.

In 2011, proceeding pro se, Plaintiff sued his would-be neighbors. In his first amended complaint, Plaintiff claimed that Defendants violated (and conspired to violate) 42 U.S.C. § 1985(3) (count1), 42 U.S.C. § 3617 of the Fair Housing Act ("FHA") (count 2), state and federal hate crime laws (count 3), due process (count 4), and committed crimes under 18 U.S.C. § 241 (count 5) and under 18 U.S.C. § 1621 (count 6). Defendants moved to dismiss all counts, and the motions were granted. Counts 5 and 6 improperly asserted claims under criminal statutes. Count 1, under § 1985(3), was dismissed because Plaintiff failed to allege a violation of his federally protected rights. Count 4 claimed a due process violation without alleging state action. Counts 2 and 3 were dismissed because the complaint did not allege that Defendants acted in a way that violated the Fair Housing Act or an Illinois' hate crime statute, 720 ILCS 5/12-7.1(c). Recognizing Plaintiff's pro se status, the Court gave Plaintiff 21 days to file a motion for leave to amend if he thought he could cure the deficiencies the Court identified.

Plaintiff accepted the Court's offer and filed a motion for leave to amend [93] and (eventually) attached a greatly expanded proposed second amended complaint. The proposed complaint runs 174 paragraphs and asserts thirteen federal and state law claims. The question for the Court is whether that added bulk has improved Plaintiff's claims in substance. After carefully reviewing Plaintiff's allegations and the law governing each of his federal claims de novo, the Court concludes that the latest version of his complaint does not state a federal claim. As clear as it is from Plaintiff's allegations and many claims that he is extremely upset about his inability to build a house on his lots, it is equally clear that - no matter how generously the Court reads his complaint - he has not stated a federal claim against these Defendants. For the reasons stated below, the Court therefore respectfully denies Plaintiff's motion to amend [93]. The Court wants to emphasize, however, that its conclusion about Plaintiff's federal claims against these Defendants does not resolve his federal claims in a separate suit against the City of Highland Park and others, see Dkt. No. 1:11-cv-02334, and does not addreess and is not intended to prejudice any state law claims that he may wish to bring in state court against these Defendants.

I. Background

According to the proposed complaint, Defendants were led by Rabin, Orbach, and Kagan.

¶¶ 14-17. Plaintiff believes that Defendants improperly leveraged their "special relationships" with members of the zoning board, city council, and mayor to get their way. ¶¶ 19-20. Plaintiff asserts that Defendants' pressure ultimately convinced the city to reclassify his lots as corner lots that require wider setbacks and that it prevented Plaintiff from getting the approvals that he needed to consolidate his lots into one. ¶ 27-28.

Defendants also allegedly made knowingly false claims about his property - although the who, where, and when are often unclear. For instance, Plaintiff says that Defendants told the Zoning Board that his lots were a "swamp" and "un-buildable." ¶¶ 64, 130-32. According to Plaintiff, Defendant Kagan added that "I have substantial construction experience and I can tell you with 200 percent certainty that no house can be built on this lot as this lot has major flooding problems." ¶ 65. Defendant Orbach allegedly said that Plaintiff's lot "is just a big large gutter." ¶ 66.

Plaintiff did not get the variances and approvals that he needed to build. ¶ 68. And because Plaintiff could not build a house on his property, Defendants were able to continue using it for their own purposes. Specifically, Plaintiff alleges that Defendant Berrocal set up flower beds on Plaintiff's property and Defendant Rabin used it for barbeques. ¶¶ 42-44.

Plaintiff, a Muslim from South Asia, believes that Defendants disregarded his property rights and opposed his plans to build a house in their neighborhood because of his race, religion, and national origin. For instance, Defendant Rabin allegedly said at a zoning meeting that Plaintiff could live in a 12-inch wide house on his property and that wouldn't be a problem because "these kind of houses were quiet [sic] common in poor and undeveloped countries" and that if "people in these countries can live and survive in that kind of house, the Plaintiff should also be able to live and survive in it." ¶ 35. Another time (when and where, Plaintiff does not say), Defendant Orbach allegedly told Plaintiff that "our subdivision is all white and I don't think you will fit in here." ¶ 37. Defendant Kaplan allegedly yelled at Plaintiff at a Zoning Board meeting that "I don't want you here, I don't want you in my subdivision. We told you many times, why don't you listen." ¶ 38. Defendant Berrocal allegedly yelled repeatedly at Plaintiff and his family, saying things like "you are shameless people, why don't you leave us alone" and: "there are so many suburbs, why don't you live someplace else, where you will be at least close to 'your people.'" ¶ 39.

Most troublingly, Plaintiff alleges that Defendants' opposition to his plans included threats of violence. Plaintiff alleges (repeatedly) that Defendant Kagan told him that if he builds a house on his property, it would be burned down. ¶¶ 41, 55, 80, and 110. Plaintiff also claims that Defendant Orbach has an extensive arsenal and that, in retrospect, it seems that Orbach was making a death threat when he said to Plaintiff "I think you should not push too much and continue to insist on building a house here, as it may not turn out to be good for you." ¶ 53.

II. Legal Standards for Leave to Amend and Rule 12(b)(6)

Leave to amend a complaint should be freely given "when justice so requires." Fed. R. Civ. P. 15(a). However, it is settled that a district court may deny a motion for leave to amend when the amended pleading would be futile. Bethany Phamacal Co. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001). An amended complaint is futile if it could not withstand a motion to dismiss. See Smart v. Local 702 Int'l Bhd. of Elec. Workers, 562 F.3d 798, 811 (7th Cir. 2009).

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent ...

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