Santana v. Cook Cnty. Bd. of Review

Decision Date09 May 2012
Docket NumberNo. 11–2103.,11–2103.
PartiesVictor SANTANA, Plaintiff–Appellant, v. COOK COUNTY BOARD OF REVIEW, Larry Rogers, Jr., Joseph Berrios, Brendan F. Houlihan, Scott M. Guetzow, John P. Sullivan, and Thomas A. Jaconetty, Defendants–Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

R. Tamara De Silva (argued), Attorney, Chicago, IL, for PlaintiffAppellant.

Joel D. Bertocchi (argued), Attorney, Hinshaw & Culbertson, Chicago, IL, for DefendantsAppellees Cook County Board of Review and Joseph Berrios.

Karen Kies DeGrand, Attorney, Donohue, Brown, Mathewson & Smyth, Chicago, IL, for DefendantsAppellees Larry Rogers, Jr. and Scott M. Guetzow.

James B. Novy, Attorney, Rock Fusco & Connelly LLC, Chicago, IL, for DefendantAppellee Brendan F. Houlihan.

Before FLAUM and TINDER, Circuit Judges, and SHADID, District Judge. *

TINDER, Circuit Judge.

The Cook County Board of Review has the power to “revise, correct, alter, or modify any [property tax] assessment, as appears to be just.” 35 ILCS 200/16–95. Unsurprisingly, the Board's exercise of its considerable power is not free from controversy, some of which has found its way into federal court through this case: Victor Santana, a self-described tax consultant who worked for the Board for ten years, until 2002, alleges that the defendants, elected and appointed Board employees, violated his federally protected rights by (1) “red flagging” his clients' files and by (2) running the Board as a “pay for play” racketeering enterprise that sought to extort campaign donations and consulting work from him. After considering several amended complaints and after examining the materials supporting one of Santana's central allegations—that he was summarily banned from the Board—the district court dismissed Santana's fourth amended complaint for failure to state a claim. We affirm.

Before we can explain our agreement with the district court—why the most recent version of Santana's complaint failed to state a viable 42 U.S.C. § 1983 or civil RICO claim, 18 U.S.C. § 1962(c)we must take a few pages to discuss the development of this case in order to address Santana's argument that the district court improperly limited discovery on his assertion that he was banned from the Board's offices completely and not only from the Board's private offices, as the defendants maintained (correctly, it turns out).

Santana's case did not begin well. The day after he filed his initial complaint the district court struck it for its obvious failure to comply with Rule 8(a). The district court did not think that it or defense counsel could fairly be required to parse its 19 repetitive and amorphous “counts” spread over 269 paragraphs. Santana's first amended complaint fared somewhat better. It explained that since he stopped working for the Board, Santana had assisted “thousands” of taxpayers with tax-review-related paperwork. Although Santana does not claim to have assisted taxpayers on the Board's premises and although as a non-lawyer he is not permitted to appear before the Board on another taxpayer's behalf, he alleged that his First Amendment, equal protection, and due process rights were violated when the defendants banned him from the Board's premises without reason or notice and announced the ban through “the news media.” Santana claimed he was not given a reason for the ban, but he believed that it was a product of his refusal to contribute to Board Commissioners' election campaigns, unlike many others whose work involves the Board.

Santana also alleged in his first amended complaint that defendants Rogers, Guetzow, and Sullivan committed wire fraud by sending letters to unidentified taxpayers stating that they must appear at hearings before the Board when it was only a trick to get them to talk about Santana. He accused those same defendants plus defendant Jaconetty of intimidating taxpayers to appear before the Board, threatening tax increases if they didn't. Finally, Santana alleged that the Board Commissioners had committed bribery by favoring the lawyers and law firms that donated to their campaigns. Santana believed that those alleged violations of state and federal law together with his injuries stated a civil RICO claim.

Relying on his allegation that he was completely banned from the Board's premises, the district court concluded that Santana had stated § 1983 claims sufficient to survive the defendants' motion to dismiss. Santana v. Cook Cnty. Bd. of Review, 700 F.Supp.2d 1023, 1030 (N.D.Ill.2010). His RICO claim, however, was dismissed. Id. The district court concluded that Santana had not alleged wire fraud with sufficient particularity to satisfy Rule 9(b), that intimidation is not a predicate act for a RICO claim, and that the alleged extortion was only to obtain information about Santana, not property, as required by RICO. Id. at 1034 (citing Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 410, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003)). As for the alleged bribery, the district court concluded that Santana had not said how it harmed him in his business or property and so he did not have standing under RICO § 1964(c). Id. at 1035.

Santana amended his RICO claim, asserting this time that the defendants operated the Board as a “pay for play” racketeering enterprise, extorting and conspiring to extort campaign contributions from tax attorneys and consultants in exchange for tax reductions. Because Santana would not pay his consulting business was harmed. And beyond preventing him from getting positive outcomes for his clients, Santana alleged that “the Defendants used their nearly unchecked power, and the veil of legitimacy granted by public office, to ban the Plaintiff, publically slander him, and make him a political scapegoat—destroying his business, property, reputation, and ability to make a living in Chicago.” Santana v. Cook Cnty. Bd. of Review, 270 F.R.D. 388, 392 (N.D.Ill.2010) (quoting Santana's memorandum in support of his amended complaint). After this amendment, the district court denied the defendants' motion to dismiss. Id. at 390.

The district court's next step was not to set a discovery schedule, as Santana wanted, but instead to review evidence on the scope of Santana's ban, as requested by the defendants. At this point in the development of his case, Santana's claims rested largely (if not completely) on his allegation that he had been banned from the Board's public and private areas. The defendants believed that the transcript of the meeting at which Santana was banned revealed that the ban covered the Board's private offices only, a place non-employees have no right to be. As evidence to the contrary, that he was banned from the private and public areas of the Board's offices, Santana offered a Fox News segment that allegedly announced his complete ban.

The district court reviewed the parties' submissions—the meeting transcript and the news clip—and found that “those things show unambiguously that plaintiff Santana's characterization is wrong and the characterization by the defendants is right about the limited scope of the ban. There isn't any question at all they talked about a broader ban and then they abandoned that notion.” Santana was only banned from “the internals of the Board of Review.” And “this is just the way in which that [Fox News] commentator, whatever the commentator's source was, characterized the ban....” The district court ordered Santana to amend his complaint accordingly.

Santana argues that the district court's consideration of the meeting transcript and the news segment is reversible error because they are matters outside the pleadings, consideration of matters outside the pleadings converts a motion to dismiss to a motion for summary judgment, and when that happens summary judgment procedures must be followed. But he thinks those procedures were not followed because he was prevented from presenting what he considers pertinent material.

It is true that “consideration of outside matter without converting [a] motion may result in reversible error.” Gen. Elec. Capital v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997). It may, but in this case it does not for at least two reasons. First, the transcript and the news segment are not “matters outside the pleadings” within the meaning of Rule 12(d): “these were [both] documents to which the Complaint had referred, ... the documents were concededly authentic, ... and they were central to the plaintiffs' claim.” Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir.2009) (noting that this court has been “relatively liberal” in interpreting what must be considered “matters outside the pleadings” for the purpose of Rule 12(d) and citing cases). Second, even assuming that the district court did convert the defendants' motion to one seeking partial summary judgment under Rule 56, or even assuming the court acted on its own motion under Rule 56(f), there was no error. The parties had ample notice, time to respond, and the district court considered everything that the parties claimed to be probative of the scope of the ban. And this conclusion is not undermined by the district court's denial of Santana's extensive discovery requests. The district court denied Santana's requests (or, more precisely, put them on hold while considering the scope of the ban) for an excellent reason: Santana's proposed discovery did not concern the scope of the ban—its legal impact or propriety under the Board's procedures, perhaps, but not its scope. That alone—the scope of the ban—was the simple threshold question that the district court wanted answered, was easily answerable by materials referred to in the complaint, and that, once answered, could (and did) dramatically narrow the issues. The district court's action was fair, eminently sensible, and a far cry from reversible error. The opposite—it was good case management.

With the scope of the ban...

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