Bieneman v. City of Chicago

Decision Date08 June 1987
Docket NumberNo. 84 C 10388,85 C 10295.,84 C 10388
Citation662 F. Supp. 1297
CourtU.S. District Court — Northern District of Illinois
PartiesLawrence BIENEMAN, on his own behalf and on behalf of all persons similarly situated, Plaintiffs, v. The CITY OF CHICAGO, et al., Defendants. Delbert BIDDISON, on his own behalf and on behalf of all persons similarly situated, Plaintiffs, v. The CITY OF CHICAGO, et al., Defendants.

Joseph V. Karaganis, Karaganis & White Ltd., A. Bruce White, Kathleen M. Donahue, Ellen Lois Zisook, Bell, Boyd & Lloyd, Chicago, Ill., for plaintiffs.

Jeremiah Marsh, Michael Schneiderman, Michael M. Conway, Albert C. Maule, William J. McKenna, Jr., James D. Ossyra, Hopkins & Sutter, Edward L. Foote, Calvin P. Sawyier, Edward J. Wendrow, Cristofer E. Lord, Winston & Strawn, Judson H. Miner, Corporation Counsel, Thomas Garmisa, Matthew J. Piers, Assistant Corporation Counsels, Mark E. Jones, Mitchell Ware, Frank M. Grenard, Martin P. Greene, Jones, Ware & Grenard, Chicago, Ill., for defendants.

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

Lawrence Bieneman and Delbert Biddison own homes near O'Hare International Airport and claim various injuries from the noise, vibrations, and air pollution that O'Hare inflicts on its neighbors. Each has sued the City of Chicago—which owns and operates O'Hare—and several airlines, seeking relief both on his own behalf and on behalf of "all persons who own, use or reside in residential real property situated in Illinois within the territorial boundaries of Cook County and DuPage County, under or adjacent to the paths of aircraft approaching, departing or circling O'Hare International Airport." Bieneman v. City of Chicago, No. 84 C 10388; Biddison v. City of Chicago, No. 85 C 10295. The two cases have been found related, and come before the court today on defendants' motions to dismiss.1

Bieneman's and Biddison's eight-count First Amended Complaints are nearly identical, and name as defendants the City, Harold Washington in his official capacity as Mayor of the City of Chicago, Jerome Butler in his official capacity as acting Commissioner of the Department of Aviation of the City of Chicago (collectively, "the City defendants"), and seven companies providing air passenger service at O'Hare: American Airlines, Inc.; Delta Airlines, Inc.; Northwest Airlines, Inc.; Ozark Airlines, Inc.; Trans World Airlines, Inc.; United Air Lines, Inc.; and USAirlines, Inc. (collectively, "the airline defendants").

Count I of each First Amended Complaint accuses the City defendants of maintaining an official policy that has deprived plaintiffs of their Fourteenth Amendment rights to life, liberty, and property in violation of 42 U.S.C. § 1983. Count II accuses the airline defendants of acting under color of state law as co-conspirators with the City to deprive plaintiffs of their Fourteenth Amendment rights in violation of § 1983. Count III is an inverse condemnation claim against the City.

Count IV alleges that the City's operation of O'Hare constitutes a continuing nuisance. Count V is a claim against the City for assault and battery. Count VI alleges that the airline defendants are joint venturers with the City in the operation of O'Hare and therefore are liable together with the City for the injuries alleged in Counts III-V. Count VII seeks a declaratory judgment that federal law does not preempt plaintiffs' state law tort claims against the City. Finally, Count VIII alleges that the City violated plaintiffs' Fourteenth Amendment rights by taking their property without due process.

The City defendants have moved to dismiss Counts I, III, IV, V, VII, and VIII in Bieneman, and Counts I, IV, V, VII, and VIII in Biddison. In Biddison the City defendants have also filed a motion for summary judgment on Count III, but the court has suspended briefing on that motion pending additional discovery. The airline defendants have moved to dismiss Count VI in both Bieneman and Biddison. Because the parties have consolidated briefing in the Bieneman and Biddison cases, the court now has before it a single set of briefs addressing the merits of Counts I, III, IV, V, VII, and VIII of the First Amended Complaints, and a single set of briefs addressing the merits of Count VI of those complaints. The court examines each count in turn.

Counts I and II

Counts I and II of the First Amended Complaints restate claims that Judge Decker dismissed from Bieneman's original complaint on October 23, 1985. This court declined to reconsider Judge Decker's order and made it applicable to the Biddison case. Plaintiffs say they have repleaded Counts I and II in order to preserve their right to appeal Judge Decker's dismissal of those counts. See London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.1981) (plaintiff waives all claims alleged in the original complaint which are not reasserted in the amended complaint); contra Wilson v. First Houston Investment Corp., 566 F.2d 1235, 1238 (5th Cir.1978) (plaintiff who filed amended complaint after dismissal may raise on appeal the correctness of the dismissal order). It is not for this court to decide whether plaintiffs who file amended complaints must replead dismissed claims in order to preserve those claims for appeal; in this case plaintiffs have chosen to replead the dismissed claims, and Judge Decker's ruling remains the law of the case. Counts I and II are dismissed.

Count III

Count III of Bieneman's complaint alleges that "in 1976 Defendant City of Chicago destroyed the use and enjoyment of Plaintiffs' properties, damaged and destroyed Plaintiffs' airspace, dwellings, and other structures on Plaintiffs' properties, and totally destroyed the value of Plaintiffs' property as residences." By virtue of this conduct, Bieneman continues, "Plaintiffs' properties and airspace, and each of them, have been confiscated, condemned, taken and made useless by Defendant City of Chicago without due process and without compensation in violation of the Fourteenth Amendment to the Constitution of the United States." The City moves to dismiss Count III on the ground that it fails to state a claim under the Fourteenth Amendment, and in any event is barred by the statute of limitations.

Unlike Bieneman's other federal claims— Counts I and II, which allege violations of § 1983—Count III alleges only a violation of the Fourteenth Amendment. There is strong authority that the Fourteenth Amendment does not support a direct cause of action against a municipality when the municipality is subject to suit under § 1983.

The Supreme Court did imply a cause of action arising directly under the Constitution in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), where the Court held that victims of constitutional violations by federal agents may sue the agents despite the absence of a statutory cause of action. But the Court subsequently held that such a cause of action is not available when "Congress has provided an alternative remedy which is explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980) (emphasis in original). Lower courts subsequently have expressed considerable reluctance to expand the number of direct actions allowed under the Constitution absent explicit Supreme Court approval, reading Carlson to limit the availability of such causes of action to circumstances where no alternative statutory remedy exists. See, e.g., Morris v. Washington Metropolitan Area Transit Authority, 702 F.2d 1037, 1042 n. 10 (D.C.Cir. 1983).

Since the Supreme Court's decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), it has been clear that § 1983 provides a cause of action against municipalities and municipal employees acting in their official capacities, and courts accordingly have declined to allow direct constitutional claims against local governments. As one court in this district has concluded, "Congress intended § 1983 to be the exclusive federal remedy for the unconstitutional actions of city officials." Strauss v. City of Chicago, 614 F.Supp. 9, 10 (N.D.Ill. 1984), aff'd 760 F.2d 765 (7th Cir.1985). Accord Williams v. Bennett, 689 F.2d 1370, 1390 (11th Cir.1982); Ward v. Caulk, 650 F.2d 1144, 1147-48 (9th Cir.1981). Indeed, the D.C. Circuit noted in Morris that since the Supreme Court's Monell decision every court of appeals to address the issue has concluded that no direct cause of action exists under the Fourteenth Amendment against nonfederal defendants. 702 F.2d at 1042 n. 10. In view of the many decisions rejecting direct causes of action under the Constitution when statutory remedies are available, and in view of the fact that the Supreme Court has recognized a cause of action against a municipality under § 1983 for inverse condemnation, Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 399-400, 99 S.Ct. 1171, 1176, 59 L.Ed.2d 401 (1979), this court concludes that Bieneman does not have a direct cause of action against the City under the Fourteenth Amendment.

Only one recent case provides contrary authority, holding in a footnote that "because an alleged `taking' in violation of the fifth and fourteenth amendments presents a serious constitutional question, a direct cause of action lies within the district court's federal question jurisdiction." Amen v. City of Dearborn, 718 F.2d 789, 792 n. 4 (6th Cir.1983). But Amen cites as its only authority two pre-Monell cases, Gordon v. City of Warren, 579 F.2d 386, 391 (6th Cir.1978), and Muskegon Theaters, Inc. v. City of Muskegon, 507 F.2d 199, 200 (6th Cir.1974), which allowed direct Fourteenth Amendment inverse condemnation actions against municipalities on the ground that no remedy was available under § 1983. In light of Monell and Lake Country Estates, such reasoning is no longer...

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6 cases
  • Allen v. City of Chicago, 92 C 4122.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 2 Julio 1993
    ...direct claims under the Constitution. Flores v. City of Chicago, 682 F.Supp. 950, 953 (N.D.Ill.1988); Bieneman v. City of Chicago, 662 F.Supp. 1297, 1299-1300 (N.D.Ill.1987). While we would normally construe these claims as brought pursuant to § 1983, plaintiffs have expressly disavowed rel......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 13 Diciembre 1988
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    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 30 Marzo 1988
    ...capacities, and the availability of this statutory remedy precludes direct claims under the Constitution.2 Bieneman v. City of Chicago, 662 F.Supp. 1297, 1299-1300 (N.D.Ill.1987); Strauss v. City of Chicago, 614 F.Supp. 9, 10 (N.D.Ill. 1984), aff'd, 760 F.2d 765 (7th Cir.1985); accord Willi......
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    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 23 Julio 1992
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