United States District Court, N.D. Illinois, Eastern Division
SHANEKA DYSON, JUMP N' JAM INFLATABLES, INC., and THE ATRIUM VENUE, INC., Plaintiffs,
THE CITY OF CALUMET CITY, MICHELLE MARKIEWICZ QUALKINBUSH, and DONNA ZWART, Defendants.
J. Tharp, Jr., United States District Judge.
reasons set forth in the Statement below, the plaintiffs'
first amended complaint  is dismissed with prejudice. The
Court grants the defendants' motion to dismiss  with
respect to the plaintiffs' federal claims and declines to
exercise supplemental jurisdiction over the remaining
state-law claims. Civil case terminated.
Shaneka Dyson, Jump N' Jam Inflatables, Inc.
(“JNJ”), and The Atrium Venue, Inc. (the
“Atrium”) brought this lawsuit against the City
of Calumet City (the “City”) and a number of its
officials. In January 2018, this Court dismissed the
plaintiffs' federal claims and declined to exercise
jurisdiction over the remaining state-law claims; the
dismissal was without prejudice, however, and so the
plaintiffs were granted leave to amend. See
generally Mem. Op. and Order, ECF No. 58. The plaintiffs
subsequently filed an amended complaint. The defendants, in
turn, have now moved to dismiss that complaint.
is the president and sole shareholder of both JNJ and the
Atrium. Pls.' First Am. Civil Compl. (“Am.
Compl.”) ¶¶ 6-7, ECF No. 59. The present
complaint is directed against only three of the eight
defendants identified in the original complaint: the City;
Michelle Qualkinbush, the City's mayor; and Donna Zwart,
the chairman of the Zoning Board of Appeals of Calumet City
(“ZBA”). See Id. ¶¶ 8-10. This
suit is primarily brought as an action under 42 U.S.C. §
1983, for alleged violations of Dyson's federal
constitutional rights. In particular, Dyson invokes the
Fourteenth Amendment's Equal Protection Clause, the
guarantees of both substantive and procedural due process
under the Fourteenth Amendment, and the Takings Clause of the
Fifth Amendment (as incorporated by the Fourteenth
Amendment). In addition, Dyson also argues that she is
entitled to relief under a § 1983 civil-conspiracy
theory, as well as under various Illinois state-law theories.
Court assumes familiarity with its previous opinion in this
case, see generally Mem. Op. and Order, and recounts
only the central facts here. To summarize, Dyson has owned and
operated JNJ, which is located in Calumet City, for several
years. Am. Compl. ¶ 11. In early 2015, she sought to
open a banquet hall called the Atrium. She executed a lease
agreement in March 2015 that would allow her to combine the
property that housed JNJ with the property next door and
renovate both into a banquet hall. See Id.
¶¶ 12-14. The two properties were converted into a
single address-1582 Huntington Drive, in Calumet City-and are
referred to collectively as “the property” in
this opinion. That address is zoned as “SU: Special
Use” under Calumet City zoning regulations. See
Id. ¶ 15.
same month, Dyson applied to the City for a business license
to operate a banquet hall, as well as for City approval to
renovate the property. See Id. ¶¶ 17-18.
In June, she received three building permits: one for
plumbing, one for electrical work, and a third for a
sprinkler system. Id. ¶¶ 23, 26-27. In
reliance on these permits, Dyson began renovating the
premises. Id. ¶ 24. Dyson had also inquired as
to obtaining a liquor license for the Atrium, which attracted
the attention of Mayor Qualkinbush. See Id. ¶
21. Qualkinbush visited the proposed Atrium site in April
2015 and later informed Dyson that she would bring
Dyson's request for a liquor license before the City
Council for discussion. See Id. ¶¶ 21, 25.
thereafter, Dyson's plans began to fall apart. On August
27, 2015, she met with Qualkinbush, who informed her-for the
first time-that “the Atrium had outstanding issues
regarding zoning.” Id. ¶ 32. The
following day, Dyson was visited by Randy Barron, the
director of inspectorial services for Calumet City. Barron
delivered Dyson a letter from Qualkinbush stating that no
further permits would be issued for 1582 Huntington Drive
until Dyson obtained approval for her business license. The
letter said that “a banquet hall or ‘special
venue meeting room' license, which you requested, are not
permitted under the current zoning of the property, ”
and that “the Zoning Board and City Council must
approve a change in the zoning to permit this use.”
Id. ¶ 33. Dyson had spent nearly $150, 000
between getting her first permit from the City and the day
she received this letter. See Id. ¶ 40.
September 2015, Dyson attempted to get her plan back on
track. She attended a City Council meeting on September 8,
during which she obtained a dry bar (non-alcohol) permit for
the property. See Id. ¶ 41. That same month,
she filed a petition with the ZBA to allow her banquet hall
as a special use. Id. ¶ 44. In November, the
ZBA failed to favorably recommend the petition for a special
use to the City Council, by a tied vote of two to two.
See Id. ¶ 45. The following month, the City
Council met and adopted the ZBA's findings, effectively
codifying the denial of Dyson's request. Id.
¶ 59. On December 18, 2015, Dyson was informed that she
would not be issued a business license or a liquor license to
operate a banquet facility. Id. ¶ 60. When she
asked if there was a means to appeal the denial, Dyson was
told she would have to begin the process anew. Id.
2016, Dyson submitted a new business license application with
a different proposed business plan. She proposed to open a
youth center for teens, to be named The JNJ Spot, Inc.
Id. ¶ 62. Dyson followed up on this application
several times over the following month, but received no
update. She alleges that, as of the time of filing of the
amended complaint, she had still not received a resolution or
a business license for either of her proposed businesses.
Id. ¶ 68.
survive a motion to dismiss under Rule 12(b)(6) for failure
to state a claim, a complaint must “contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. A plaintiff
does not need “detailed factual allegations, ”
but more than “labels and conclusions” and
“a formulaic recitation of the elements of a cause of
action” are required. Twombly, 550 U.S. at
555. Determining whether a complaint plausibly states a claim
for relief is a “context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
factual allegations in Dyson's amended complaint largely
mirror those in the original complaint. By the Court's
calculations, 117 of the amended complaint's 146
paragraphs are either identical or virtually identical to
paragraphs that appeared in the initial complaint. The Court
therefore focuses its analysis in this opinion primarily on
the areas where Dyson makes new factual allegations in the
amended complaint or new legal arguments in her response in
opposition to the defendants' motion.
all of Dyson's federal claims in this complaint rest on
42 U.S.C. § 1983, which provides a cause of action for
any individual when that person is deprived of “any
rights, privileges, or immunities secured by the Constitution
and laws” and the deprivation takes place “under
color” of state law. The federal constitutional
theories that Dyson invokes are essentially the same as those
in the prior complaint, though there are two minor
differences. First, the amended complaint clarifies that it
intends to state a claim under Monell v. Dep't of
Soc. Servs. of the City of New York, 436 U.S. 658
(1978), against the City in Counts I (substantive due
process), V (procedural due process), and VI (also procedural
due process). Second, Count II-dealing with the Takings
Clause-is now targeted against “All Defendants”
rather than just the “Individual Defendants.”
Dyson does not expressly invoke Monell in Count II,
but the Court understands her to be making a Monell
claim against the City in that count as well. As in the
Court's previous opinion, “because Dyson asserts
her federal constitutional claims in a collective fashion,
the Court assesses each constitutional theory as to all of
the defendants at once.” Mem. Op. and Order 7.
Equal Protection: Class of One (Count IV)
Equal Protection Clause count again proceeds under a
“class of one” theory. The elements of such a
claim have been in flux in this circuit recently, as this
Court's previous opinion noted. See Id. at 7-8.
Nevertheless, even under the least demanding standard
discussed by the Court of Appeals in its en banc
decision in Del Marcelle v. Brown Cty. Corp., 680
F.3d 887 (7th Cir. 2012), plaintiffs pressing a class-of-one
theory “must allege that state actors lacked a rational
basis for singling them out for intentionally discriminatory
treatment.” Miller v. City of Monona, 784 F.3d
1113, 1121 (7th Cir. 2015). Under this standard, “a
class-of-one plaintiff must, to prevail, negative any
reasonably conceivable state of facts that could provide a
rational basis for the classification, ” meaning that
even at the pleadings stage, the existence of any conceivable
rational basis for the difference in treatment will defeat a
class-of-one claim. Id. (citations and internal
quotation marks omitted).
previous opinion, this Court noted that there “plainly
was a possible rational basis for the denial of Dyson's
business license and special use applications, ” which
was that “Dyson's proposed business did not meet
the City's existing zoning requirements.” Mem. Op.
and Order 10-11. The Court observed that the property was not
zoned to permit use as a banquet hall or meeting venue, and
that Dyson had not shown that her special-use application met
the requirements set out in the Calumet City Municipal Code
before the ZBA would recommend a special use. See
Id. at 11; Calumet City, Ill., Code App'x B, §
12.7 (1980). In response, Dyson now contends that the
plaintiffs met all of the standards for special uses
identified in the relevant municipal code section.
See Am. Compl. ¶ 48. The complaint, however,
merely restates the code's requirements more or less
verbatim and asserts that Dyson's proposed use met them,
without providing any additional details. Compare
Id. ¶¶ 49-54, with Calumet City,
Ill., Code App'x B, § 12.7 (1980). These formulaic
recitations regarding satisfaction of the code's
requirements are “conclusory” and thus are not
entitled “to the presumption of truth.”
Iqbal, 556 U.S. at 681. Dyson has thus failed to
negative a conceivable rational basis for the denial of her
special-use application, and so Count IV is dismissed.
this by itself is enough to end the class-of-one analysis,
the Court briefly notes several other flaws with Dyson's
arguments, some of which are relevant to her other claims.
First, the amended complaint asserts that the defendants
treated Dyson differently from other similarly situated
property owners “by denying her special use application
without a quorum of board members.” Am. Compl. ¶
100. As noted in this Court's previous order, while one
provision of the municipal code states that the ZBA shall
consist of seven members, it does not say how many of them
must be present for a vote. Mem. Op. and Order 11. Dyson also
argues, again, that the ZBA must cast three, not two, votes
to deny a special-use permit. But, once again, the provision
she cites on this point deals with zoning “amendments,
” not special-use permits. Dyson states that
“[z]oning amendments, special uses, variations and
administrative adjustments functionally accomplish the same
effect, modifying land usage dictated by the
municipality.” Am. Compl. ¶ 47. This, however, is
merely a policy argument as to why the provision
should be read as applying ...