Opinion
Case No. 00-1054
September 26, 2000.
REPORT RECOMMENDATION
This cause comes before the Court on Defendant's Motion to Dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
I. BACKGROUND
Plaintiffs in this case filed their original complaint on January 28, 2000. An amended complaint was filed pursuant to Federal Rule of Civil Procedure 15(a) on April 21, 2000. The complaint alleges that Plaintiffs have at all relevant times been the owners of all authorized and issued shares of stock in Pineapple Inn, Inc., a corporation licensed to do business as a full food service establishment in Macomb, Illinois.
The complaint alleges that the Pineapple Inn was formed by Plaintiffs in August 1993. Plumbing contractors Kentner and McCarty were hired by Plaintiffs to ensure that the plumbing was adequate for their business. The plumbing inspector for the State of Illinois later advised Plaintiffs that because of various plumbing code violations, they could not operate the Pineapple Inn as a full lodging and food service operation. This resulted in the loss of substantial business for a period of eleven months from August 1993 through June 1994. Accordingly, Plaintiffs brought suit against Kentner and McCarty in the Illinois Circuit Court for lost profits resulting from the improper plumbing services.
In the spring of 1996, the Pineapple Inn added an additional room which increased its capacity for food service. After securing numerous reservations for dining services and teas, Plaintiffs anticipated a very profitable Thanksgiving and Christmas holiday season. The complaint alleges that Defendant Jim Miller, the plumbing inspector for the City of Macomb, acted without cause in citing the Pineapple Inn with various plumbing code violations. Plaintiffs allege that Defendant ordered the Pineapple Inn closed immediately prior to Thanksgiving, 1996, resulting in a substantial loss of revenues and profits.
The plumbing inspector of McDonough County, Illinois, advised Plaintiffs that there were no plumbing code violations. On January 3, 1997, the McDonough County Board ordered Defendant to permit the reopening of the Pineapple Inn. Nevertheless, the complaint alleges that Defendant continued to harass Plaintiffs throughout 1997 by citing them with various plumbing code violations and by authorizing warrantless entries onto the Pineapple Inn premises on numerous occasions.
In December 1997, Plaintiffs hired an attorney who contacted James Lee, Macomb City Attorney, regarding the dispute with Defendant. The complaint alleges that Attorney Lee, based on what he had learned from Defendant, informed Plaintiffs on January 28, 1998, that their only option was to change their business from a full service inn to a bed and breakfast facility. Moreover, Attorney Lee reiterated that this was their sole option on August 14, 1998. At this point, Plaintiffs complied with Lee's directive, fearing that Defendant would close their business if they continued to operate it as a food and lodging service.
The complaint further alleges that in late 1998, Defendant resigned or retired from his employment with the City of Macomb and inquired of the Illinois Bed and Breakfast Association of the steps necessary to secure a permit to operate an establishment which provides lodging and full food services. Moreover, the Plaintiffs have since learned that at no time after June 1994 was the plumbing capacity and quality of their business insufficient for it to operate as a lodging and full food service operation under State, County, and City codes.
Plaintiffs allege three causes of action pursuant to 42 U.S.C. § 1983. In Count I, Plaintiffs allege that the actions of Defendant have deprived them of property in the form of their licensed right to operate the Pineapple Inn as a full food and lodging service establishment in violation of the Due Process Clause of the Fourteenth Amendment. In Count II, Plaintiffs allege that actions of Defendant were taken in order to seek revenge for their having sought access to the courts to redress grievances against Defendant's friends and have deprived them of their rights, privileges, and immunities secured by the First and Fourteenth Amendment. Count III alleges that Defendant violated Plaintiffs' Fourth and Fourteenth Amendment rights by entering their business without a warrant or probable cause and causing it to be closed.
Defendant's motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) was filed on June 23, 2000. The motion first asserts that the claim was filed outside the statute of limitations. Alternatively, the motion alleges that Defendant is entitled to qualified immunity.
II. STANDARD
In ruling on a motion to dismiss, the Court "must accept well pleaded allegations of the complaint as true. In addition, the Court must view these allegations in the light most favorable to the plaintiff." See Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). Although a complaint is not required to contain a detailed outline of the claim's basis, it nevertheless "must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." See Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984). Mere conclusions, without supporting factual allegations, are insufficient to support a claim for relief. See Cohen v. Illinois Inst. of Tech., 581 F.2d 658, 663 (7th Cir. 1978). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The Court notes with disappointment that neither Defendant in his motion to dismiss nor Plaintiffs in their response address each count of the complaint separately. For the purpose of clarity, the Court will address each count separately.
III. COUNT I A. Statute of Limitations
Defendant asserts that the instant action is barred by the applicable statute of limitations. The statute of limitations for a cause of action under 42 U.S.C. § 1983 in Illinois is two years. See Booker v. Ward, 94 F.3d 1052, 1056 (7th Cir. 1996). The accrual of claims is governed by federal law. Claims pursuant to 42 U.S.C. § 1983 "accrue when the plaintiff knows or should know that his or her constitutional rights have been violated." See Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992). All constitutional torts pursuant to 42 U.S.C. § 1983 are treated as personal injury claims for the purpose of accrual. Specifically, the claim accrues when the injury is inflicted. See Diaz v. Shallbetter, 984 F.2d 850, 855 (7th Cir. 1993).
Thus, the first step in determining the accrual date is to identify the injury. Next, the Court must identify the date when Plaintiff could have sued for that injury. This date should be the same as when the plaintiff "knows or should have known" that he suffered an injury. See Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993). The consequences of an unlawful act do not extend the period within which to sue. See Dasqupta v. University of Wisconsin Board of Regents, 121 F.3d 1138, 1139-40 (7th Cir. 1992).
Defendant asserts that Plaintiffs' complaint includes allegations against Defendant that took place from the Spring of 1996 through the end of 1997. Defendant contends that Plaintiffs state no action after 1997 which allegedly deprived them of their constitutional rights. Plaintiffs initially filed their complaint on January 28, 2000. Accordingly, Defendant asserts that Plaintiffs' action should be barred by the applicable statute of limitations. Specifically, Defendant contends that the alleged causes of action and any injury suffered by Plaintiffs occurred more than two years prior to their filing suit.
Plaintiffs respond by contending that the Defendant continued to cite them with various plumbing code violations throughout 1997. Moreover, it was not until August 4, 1998, that the City of Macomb effectively adopted Defendant's representations and limited Plaintiffs' operation to a simple bed and breakfast facility.
Plaintiffs assert that because they received no official communication from Defendant or the City that their right to operate a full-service inn had been restricted until August 4, 1998 their complaint filed on January 28, 2000 was timely.
The Court must first determine what the injury was in this case. See Kelly, 4 F.3d at 511. In Count I, Plaintiffs allege that Defendant deprived them of their Due Process right to property in the form of a licensed right granted by the State to operate their business as a full food and lodging service inn.
The Court must next determine when Plaintiff could have sued for the alleged injury. Specifically, this is when the Plaintiff "knows or should have known" of the existence of an injury. See Kelly, 4F.3d at 511. Defendant contends that Plaintiffs should have known if any of their constitutional rights had been violated no later than January 1997. Moreover, Defendant argues that Plaintiffs allege no direct action against Defendant after the end of 1997. Rather, their complaint alleges action merely on the part of the City Attorney, James Lee. Defendant contends that the only action on the part of Defendant after 1997 that is referred to in the complaint was of making "false representations" to Lee.
Plaintiffs respond by noting that it was not until August 4, 1998, that the City of Macomb adopted Defendant's representations as preventing them from engaging in their business as a full-service inn. According to Plaintiffs, it was this official communication, based on Defendant's "false representations," that violated Plaintiffs' constitutional rights in the form of a property right in a license granted by the State to operate their business. Plaintiffs contend that the statute of limitations did not begin to run until August 4, 1998, and the original complaint filed on January 28, 2000, was within the limitations period.
In their original complaint filed on January 28, 2000, Plaintiffs asserted that the City forced them to change their business to merely a bed and breakfast facility on January 28, 1998. Their amended complaint gives the date of August 14, 1998.
Before proceeding any further, the Court must analyze whether Plaintiffs have a property right in their business license that is protected by the Constitution. Property is "what is securely and durably yours under state . . . law, as distinct from what you hold subject to so many conditions as to make your interest meager, transitory, or uncertain." See Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir. 1983). Defendant has not strenuously contested whether Plaintiffs have a Due Process property right in their business license.
The Court finds that Plaintiffs have a valid property right in the form of a State-issued license to operate their business as a full-service inn. The court in Reed noted that a business license need not be revoked for a Due Process property right to be infringed. A property right includes more than legal title, encompassing "exclusive use and enjoyment." Therefore, a property right can be violated when the value of a licensed business is destroyed due to the constant harassment of customers and employees. See Reed, 704 F.2d at 749.
The Court notes that the actions complained of on the part of Defendant commenced in the Spring of 1996. Plaintiffs allege that Defendant, in retaliating for seeking redress in the courts against his fellow plumbers, denied their application for an additional room for no valid reason in 1996. Moreover, Defendant ordered Plaintiffs' business closed prior to Thanksgiving in 1996 after citing them with various plumbing code violations. Plaintiffs allege that Defendant constantly harassed them throughout 1997 despite the fact that the County Board had determined that there were no plumbing code violations.
Plaintiffs also allege that they were initially informed by the City Attorney on January 28, 1998, that their only option was to limit their business to a bed and breakfast facility. This was reiterated on August 14, 1998. Plaintiffs then decided to limit their establishment to a bed and breakfast facility. Plaintiffs contend that the City Attorney's decision was based on the false representations of Defendant. Plaintiffs also allege that Defendant in late 1998 inquired of the Illinois Bed and Breakfast Association as to how to obtain a license to operate a facility as a full service inn. The Court finds that the items listed in this paragraph are the only allegations in Plaintiffs' Complaint that occurred after 1997.
In determining whether Defendant's alleged Due Process violations occurred more than two years before the action was filed, the Court must identify when the action accrued. The key inquiry is when the plaintiff "knows or should have known" that he suffered an injury. See Kelly, 4 F.3d at 511. Defendant contends that even if he interfered with Plaintiffs' business as alleged, they should have known of any constitutional injury no later than at some point in 1997. Plaintiffs complain of constantly being cited with nonexistent plumbing code violations in 1996 and 1997. It was this constant interference with their property right in the form of a business license that is the basis of their Fourteenth Amendment claim. As Defendant notes, most of the acts complained of occurred no later than 1997.
Nonetheless, at this stage, the Court must view the allegations "in the light most favorable to the plaintiff." See Gomez, 811 F.3d at 1039. It was not until January 28, 1998, that Plaintiffs were first informed that they could not operate the business as they chose. Viewing the allegations in the light most favorable to Plaintiffs, the Court finds that this official action on the part of the City was the culmination of Defendant's harassment and interference with Defendant's business. It was at this point that Plaintiffs knew or should have known that they had suffered an injury. The fact that Plaintiffs did not officially change their business until the City reiterated that they must do so does not alter the analysis. Plaintiffs did not learn anything new in August 1998. The com plaint indicates that the City merely reiterated that Plaintiffs could not operate their business as a full service establishment. Thus, assuming there is a constitutional injury, the accrual date is January 28, 1998.
The complaint was originally filed in this action on January 28, 2000.
Therefore, the Court finds that this action was timely commenced within the applicable two year statute of limitations. See Federal Rule of Civil Procedure 6(a).
B. Qualified Immunity
Defendant alternatively contends that he is entitled to qualified immunity. Public officials are entitled to qualified immunity from "liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); See also Levenstein v. Salafsky, 164 F.3d 345, 350 (7th Cir. 1998). Whether clearly established rights are violated depends upon the "objective legal reasonableness of the action." See Anderson v. Creighton, 483 U.S. 635, 639 (1987); See also Levenstein, 164 F.3d at 350. To survive a motion to dismiss, the plaintiff must show that 1) he has asserted a violation of a constitutional or statutory right, and 2) the applicable legal standards were clearly established at the time of defendant's action. See Erwin v. Daley, 92 F.3d 521, 525 (7th Cir. 1996). It must be sufficiently clear that a reasonable official would know that his conduct violates that right. See Anderson, 483 U.S. at 641. Qualified immunity is "designed to protect all but the plainly incompetent or those who knowingly violate the law." See Biddle v. Martin, 992 F.3d 673, 678 (7th Cir. 1993). At this stage, the Court takes the allegations of Plaintiffs' complaint as true, and construes them liberally in the light most favorable to Plaintiffs. See Triad Associates, Inc. v. Robinson, 10 F.3d 492, 495 (7th Cir. 1993).
The Court must therefore determine whether Plaintiffs have successfully asserted a violation of a constitutional right, and if so, whether Plaintiffs have shown that the constitutional standards were objectively clear when Defendant was taking his action. Thus, the question is whether a reasonable official (plumbing inspector) would have known at the time in question (1996-1998) that constantly citing Plaintiffs with nonexistent plumbing code violations and otherwise harassing them in the pursuit of their business constituted a Due Process violation.
Defendant contends that Plaintiffs have not alleged the deprivation of a clearly established right. Plaintiffs' complaint refers to a property right but does not allude to any property being taken. Rather, Plaintiffs have alleged no more than that Defendant has prevented them from the intended use of their property. In an attempt to show that no deprivation has occurred, Defendant relies on R V Pine Tree, Inc. v. Village of Forest Park, 947 F. Supp. 342 (N.D.Ill. 1996). Plaintiffs there were alleging that defendants' harassment violated their First Amendment right to freedom of expression.
Apparently, the basis of the claim was that the harassment was designed to reduce the number of black patrons visiting the establishment. The court in R V Pine Tree found that because plaintiffs failed to establish a connection between the harassment and resulting business loss and the First Amendment, no clearly established right was violated. R V Pine Tree, 947 F. Supp. at 344-45.
The Court finds R V Pine Tree to be distinguishable. Count I of Plaintiffs' Complaint clearly refers to their licensed right to operate the business. It alleges that Defendant's constant interference with this property right violated Plaintiffs' Fourteenth Amendment Due Process rights. A license is a property right under Illinois law. See Reed, 704 F.3d at 948. A property right in a license can be "deprived" in the Due Process sense through the constant harassment of customers and employees which ultimately destroys the value of a party's business. This is true even if the license is never actually revoked. See Reed, 704 F.3d at 949. Therefore, the connection between Defendant's alleged harassment and the deprivation of a constitutional right is not as tenuous as it was in R V Pine Tree.
Plaintiffs have asserted a property right that is subject to Due Process protection in the form of a license to operate a business. Moreover, viewing the allegations in the light most favorable to Plaintiff, the Court finds that the contours of the right were clearly established at the time of Defendant's alleged conduct. Plaintiffs have alleged that the arbitrary and capricious actions of Defendant have deprived Plaintiffs of their property right in the form of a State-issued license to operate their business as they chose.
Defendant's constant harassment of Plaintiffs, if true, was sufficient to deprive them of their property right in the business license. Moreover, Plaintiffs were ultimately forced to alter their business because of Defendant's alleged false representations. Contrary to Defendant's assertion, Plaintiffs' complaint alleges a constitutional violation which was clearly established at the time of the alleged conduct on the part of Defendant. The Court finds that a reasonable official (plumbing inspector) would know that the conduct of Defendant as alleged in the complaint, if true, violates a clearly established right. Therefore, Defendant is not entitled to qualified immunity.
The Court finds that the action as to Count I was timely commenced and that Defendant is not entitled to qualified immunity. Therefore, the Court recommends that Defendant's Motion to Dismiss Count I pursuant to Federal Rule of Civil Procedure 12(b)(6) be denied.
IV. COUNT II
In Count II, Plaintiffs allege that Defendant violated their First Amendment right of seeking access to the courts for the purpose of redressing grievances. Plaintiffs contend that Defendant sought to retaliate against them for having pursued a legal remedy against his fellow plumbers by constantly finding fault with their plumbing operations.
Pursuant to the First and Fourteenth Amendments, individuals do have a right to seek legal redress for viable claims. See Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983); See also Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984). A state official's effort to impede a party's access to the courts may be actionable pursuant to 42 U.S. § 1983. See Vazquez v. Hernandez, 60 F.3d 325 (7th Cir. 1995). Access to the courts must be "adequate, effective, and meaningful." See Bounds v. Smith, 430 U.S. 817, 822 (1977).
In the instant situation, Plaintiffs contend in Count II that Defendant's alleged actions in constantly harassing them were in retaliation for their having sought access to the courts to resolve their dispute with other plumbers. However, there is no allegation that Defendant has affirmatively acted in any way so as to prevent Plaintiffs from seeking access to the courts. Retaliation is alleged. Plaintiffs have already had their day in state court with respect to their dispute with Defendant's friends and fellow plumbers. Plaintiffs have already pursued their right to seek legal redress for viable claims. While it is true that a state actor may not impede a party's access to the courts, that has not been alleged in this case.
Because Plaintiffs have already sought redress of their grievances against plumbers Kentner and McCarty, the Court finds that Count II of Plaintiffs' complaint fails to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). As alleged, Defendant has done nothing which could be construed as impeding Plaintiffs' access to the courts. Therefore, the Court recommends that Defendant's motion to dismiss Count II of the complaint be allowed. The Court need not address Defendant's affirmative defenses of statute of limitations and qualified immunity.
V. COUNT III
In Count III, Plaintiffs contend that Defendant's actions in entering their business without a warrant or probable cause and citing them with various plumbing code violations infringed upon their Fourth and Fourteenth Amendment rights. The complaint indicates that Defendant entered Plaintiffs' business premises without a warrant on eight or nine separate occasions. Plaintiffs also indicate that Defendant had no probable cause to believe that they had committed any plumbing code violations. Nonetheless, the alleged harassment continued throughout 1997.
The Court is confused by Plaintiffs' response to Defendant's motion to dismiss. The complaint clearly indicates that Plaintiffs are asserting three causes of action. However, the Response indicates that Plaintiffs have alleged two causes of action. Moreover, the Response makes no reference to the alleged Fourth Amendment violation found in Count III of Plaintiffs' complaint. The Court is unsure as to whether Plaintiffs have abandoned their Fourth Amendment claim.
Nonetheless, the Court will address Count III as alleged in the complaint. The Court finds that each of the eight or nine instances alleged by Plaintiffs in which Defendant invaded their business without a warrant or probable cause occurred during 1997. Therefore, the complaint which was initially filed on January 28, 2000, would be barred by the statute of limitations unless the claim did not accrue until a later time. The Court finds that these types of claims accrue at the time of the alleged constitutional violation. If a state actor entered one's business without a warrant and cited it with numerous code violations, it is only logical that the injured party would know of the injury at the time of the occurrence. Plaintiffs give no reason as to why they did not know or should not have immediately known of the existence of the injury regarding these alleged Fourth Amendment violations. The Court therefore finds that the Fourth Amendment violations, if any, occurred more than two years before the date Plaintiffs filed suit in this action, and are barred by the statute of limitations. Accordingly, the Court recommends that Defendant's motion to dismiss Count III pursuant to Federal Rule of Civil Procedure 12(b)(6) be granted. Having recommended that Count III is barred by the two year statute of limitations, the Court need not address whether Defendant is entitled to qualified immunity.
CONCLUSION
Therefore, I recommend that the Motion to Dismiss (d/e13) be DENIED as to Count I and GRANTED as to Counts II and III.
The parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk of the Court within ten working days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1). Failure to file a timely objection will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). See Local Rule 72.2.