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Viehweg v. City of Mt. Olive

United States District Court, Seventh Circuit

June 6, 2013

CITY OF MT. OLIVE, et al., Defendants.


BYRON G. CUDMORE, Magistrate Judge.

This matter comes before the Court on Defendants City of Mt. Olive, Illinois (City), Connie Andrasko, Ryan Dugger, Marcie Schulte, and John Skertich's Motion to Dismiss Plaintiff's Amended Complaint (d/e 21) (Motion).[1] The parties have consented to have this matter decided by this Court. Consent to the Exercise of Jurisdiction by a United States Magistrate Judge and Order of Reference entered May 28, 2013 (d/e 34). For the reasons set forth below, the Motion is ALLOWED.


For purposes of a motion to dismiss for failure to state a claim, this Court must accept as true all well-pleaded factual allegations contained in the Amended Complaint (d/e 16) (Complaint) and draw all inferences in the light most favorable to Plaintiff William H. Viehweg. Hager v. City of West Peoria , 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook , 77 F.3d 177, 178 (7th Cir. 1996). Viehweg alleges that he is a resident of the City. The individual Defendants are City officials: Andrasko is the City Clerk; Dugger is the City Police Chief; Schulte is an Alderman; and Skertich is the Mayor.

Viehweg owns a residence in the City with a detached garage. Viehweg alleges that the "garage is not unsafe but may be considered by some to be an eye sore." Complaint, ¶ 12. The City Code sets forth the procedure for taking action against the owner of a dangerous or unsafe structure. The City building inspector must determine that a building is dangerous and unsafe and report to the City Council. The City Council must approve the report, direct the inspector to put a notice on the building, and authorize the City Clerk to serve the notice by and through the City Police Department on the owner of the structure. The notice must state that the owner has fifteen days to make the building safe. The ordinance states that the City may not take any physical action against the building until the City receives a court order granting such action. Complaint, ¶ 9.

Schulte lives directly across the street from Viehweg's garage. Viehweg alleges that Schulte has a personal vendetta against Viehweg "due to a non-incident that occurred several years earlier." Complaint, ¶ 14. Schulte considers Viehweg's garage to be an eyesore and has "long demanded that the defendant City do something about it." Complaint, ¶ 14. In 2011, the City Council repeatedly discussed the problem of derelict buildings. On November 11, 2011, Schulte and Skertich specifically mentioned Viehweg's garage. However, prior to May 15, 2012, no representative of the City talked to Viehweg about his garage. Complaint, ¶ 15.

Viehweg alleges the City Council implemented "an unlawful policy of extortion to take control of said property of the plaintiff through intimidation and threats while under only the mere color of said code." Complaint, ¶ 16. The City Council allegedly directed Dugger "to carry out and enforce said policy of extortion." Complaint, ¶ 17. On May 15, 2012, Dugger came to Viehweg's residence, pounded on the door, stated to Viehweg that Skertich and the City Council discussed the issue of Viehweg's garage, and demanded to know when Viehweg was going to demolish the garage. Viehweg responded, "soon." Complaint, ¶ 18.

On August 9, 2012, Dugger again appeared at Viehweg's residence. Dugger again pounded on the door and demanded to know when Viehweg was going to demolish the garage. Viehweg was "unsettled" by Dugger's "authoritative and commanding behavior." Complaint, ¶ 19. Viehweg asked for Dugger's legal authority regarding his garage. Dugger became agitated and stated that the City had an ordinance regarding unsafe buildings. Viehweg stated that he would go to City Hall to verify the ordinance. Dugger stated that he would have a copy of the ordinance prepared for Viehweg. Complaint, ¶ 19.

On the same day, August 9, 2012, Viehweg went to City Hall and spoke to Andrasko. Andrasko handed Viehweg two documents. The first was from the City Code entitled, "Article V-Building as Nuisance" (Ordinance). The second was entitled "Letter of Notice Dangerous and Unsafe Building" (Notice). Complaint, Exhibits 1 and 2. The Notice was addressed to Viehweg and stated that his garage was "dangerous and/or unsafe." The Notice stated that unless the garage was put into a safe condition or demolished within fifteen days of receipt of the notice, the City would bring an action in court to secure a court order authorizing the City to make the garage safe or demolish it. The Notice stated that Viehweg could be liable for the City's cost to repair or demolish the garage. Andrasko and Dugger signed the Notice and dated it July 9, 2012. Complaint, Exhibit 2, Notice. Viehweg alleges that Andrasko and Dugger fraudulently colluded to back date the Notice to July 9, 2012. Viehweg alleges that the Notice "was created to harass, intimidate, and threaten the plaintiff into falsely believing that the defendant City had the immediate and lawful right to take his property." Complaint, ¶ 21.

On Friday, August 10, 2012, City Police Officer Louis Mitchlear came to Viehweg's house and demanded to know what Viehweg was going to do about the garage and that Chief Dugger was going to talk to the City Attorney about the garage.[2] Viehweg stated that there was no notice on the garage and the Notice did not appear to be proper. Complaint, ¶ 22. On August 12, 2012, Officer Mitchlear came to Viehweg's residence, pounded on the door, and gave him additional copies of the Ordinance and Notice. Mitchlear stated that Dugger ordered him to serve the documents on Viehweg. Viehweg alleges that, "defendant chief Dugger's objective, by and through officer Mitchlear, was to falsely convince plaintiff that everything was being done properly, in order to perfect said policy of extortion." Complaint, ¶ 23.

On September 2, 2012, an unidentified City police officer stopped his police vehicle at Viehweg's residence, shined his headlights in the direction of Viehweg's garage, and shined his spotlight (1) on Viehweg's vehicle parked in the driveway, and (2) in Viehweg's dining room window. Complaint, ¶ 24.

On September 4, 2012, Andrasko telephoned Viehweg's residence and left a message on Viehweg's answering machine which stated, "You can't come in tonight and talk.'" The City Council was holding a meeting that evening. Viehweg alleges that he "never attended, and never indicated that he would attend, a defendant City Council meeting; and that defendant clerk Andrasko's objective for leaving said telephone message was to preemptively silence the plaintiff by preventing the plaintiff from speaking publicly about the defendant City's policy of extortion and from petitioning the city for redress of his grievance." Complaint, ¶ 25. Viehweg filed this action the same day, September 4, 2012.

Viehweg alleges that Schulte and Skertich were policy makers for the City; Dugger was a policy maker for the City Police Department, and Andrasko was a policy maker for the City's Clerk's Office. Complaint, ¶ 26. In the alternative, Viehweg alleges that the City failed to train and supervise its officials and, in so doing, displayed deliberate indifference to the "rights of plaintiff and others within its jurisdiction to due process, privacy, freedom of speech, and right to petition the defendant City for redress of grievances." Complaint, ¶ 27.

Based on these allegations Viehweg alleges claims against the individual Defendants Andrasko, Dugger, Schulte, and Skertich for violation of Viehweg's rights of due process, privacy, freedom of speech, and to petition the government for redress. Viehweg alleges a municipal liability claim against the City for the same violations. Complaint, ¶¶ 29-30. Viehweg further alleges that the Defendants' actions "shock the conscience." Complaint, ¶ 32. Viehweg alleges that he has ...

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