Bowman v. City of Franklin
| Decision Date | 04 January 1993 |
| Docket Number | No. 91-3887,91-3887 |
| Citation | 980 F.2d 1104 |
| Parties | , 23 Envtl. L. Rep. 20,444 Loretta BOWMAN, William H. Bowman, William H. Bowman, Jr., et al., Plaintiffs-Appellants, v. CITY OF FRANKLIN, J.C. Zimmerman Engineering Corporation, Waste Management of Wisconsin, Incorporated, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Steve Enich, Charles H. Johnson, Milwaukee, Wis., for plaintiffs-appellants.
Jesse A. Wesolowski (argued), Franklin, Wis., for City of Franklin.
James L. Kirschnik, Patrick R. Burns, Machulak & Hutchinson, Brookfield, Wis., for J.C. Zimmerman Engineering.
Cordelia S. Munroe (argued), David S. Branch, Friebert, Finerty & St. John, Milwaukee, Wis., for Waste Management of Wisconsin Inc., and Waste Management of North America, Inc.
Before BAUER, Chief Judge, POSNER, Circuit Judge, and ESCHBACH, Senior Circuit Judge.
The Bowmans, Plaintiffs-Appellants, brought this action under 42 U.S.C. §§ 1983 and 1985 against the City of Franklin ("Franklin"), J.C. Zimmerman Engineering Corp. ("Zimmerman"), Waste Management of Wisconsin, Inc. and its parent company, Waste Management of North America, Inc. (collectively, "Waste") seeking injunctive and monetary relief for purported violations of their civil rights as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. The factual basis of the suit is the installation of a sewer line, a portion of which runs through the Bowmans' property, and the recording of assessments related to that installation. The Bowmans asserted that the sewer line and the assessments were the product of a conspiracy among the defendants to interfere with their property rights by imposing illegal taxes on the Bowmans, polluting the Bowmans' property and taking the property for the private use and benefit of Waste. In addition to the federal counts, the Bowmans included pendent claims, presumably under Wisconsin tort law, alleging both trespass and an interference with prospective purchasers of their property. The district court dismissed all counts of the Bowmans' complaint as to all defendants pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. We have jurisdiction over the appeal of this final disposition pursuant to 28 U.S.C. § 1291. We affirm. We also deny defendants' request for sanctions under Fed.R.App.P. 38 and Circuit Rule 38.
First, we review the history of the defendants' association with each other because the Bowmans attempt to use this history to allege a conspiracy among the defendants. Franklin embarked on a series of civic improvements that resulted in their retention of Zimmerman as consulting engineer on the installation of Franklin's Central City Sewer (the "CCS"), which would ultimately connect with the Milwaukee Metropolitan Sewerage District (the "MMSD").
Waste formally requested that Franklin connect Waste's Metro Landfill, located in Franklin, to the CCS as an alternative method of transporting leachate produced in the landfill to the MMSD. Waste had been trucking the leachate to a MMSD treatment plant at relatively high cost. At roughly the same time, Waste, with Franklin's knowledge, retained Zimmerman as its project engineer to construct the force main necessary to connect to the CCS. Waste agreed to pay for modifications to the CCS necessary to accommodate Waste's use. Waste also agreed to construct the force main at its own expense and "dedicate ownership" of it to Franklin. Finally, Waste agreed to pay a connection fee of $600,000 and a continuing annual fee of $120,000 to Franklin's general operating fund, which would be used to reduce future property tax assessments.
The Bowmans' involvement with the CCS project began when William H. Bowman granted an easement to Franklin for the construction of a sanitary sewer through the Bowmans' property. The easement indenture states: "[n]o special assessments shall be levied against subject property for any sanitary sewer and appurtenances erected on said easement." R. 30 at Ex. A.
A report on special assessments prepared by Zimmerman included an assessment of $89,312.09 for the CCS in the public right of way abutting the Bowmans' property. R. 27 at Ex. B. The Bowmans appealed this $89,321.09 assessment to the Milwaukee County Circuit Court, which determined that there had been an error in computation and annulled the assessment. By resolution, Franklin reenacted the assessment, reducing it to $82,407.59. R. 1 at Ex. 12. A second $51,187.00 assessment for the CCS on the Bowman property was recorded by Franklin, but was never charged to the Bowmans pursuant to the term of the easement indenture. R. 1 at Ex. 6. Because it was never billed, the Bowmans refer to this second assessment as a "secret" assessment.
The Bowmans then filed a complaint in federal district court, the dismissal of which is the subject of this appeal. In response to the Bowmans' complaint, Waste moved to dismiss all claims against them for failure to state a claim on which relief can be granted under Fed.R.Civ.P. 12(b)(6). Both of the remaining defendants, Franklin and Zimmerman, answered the complaint. In addition to filing its answer, Zimmerman moved for summary judgment pursuant to Fed.R.Civ.P. 56 and for sanctions pursuant to Fed.R.Civ.P. 11 or, in the alternative, attorney's fees pursuant to 42 U.S.C. § 1988.
At a hearing on Waste's motion to dismiss, the district court granted the motion, dismissing with prejudice. On its own motion, the district court also dismissed the Bowmans' complaint with prejudice as to Franklin and Zimmerman. Finally, the district court denied Zimmerman's alternative motions for sanctions and attorney's fees. In this appeal, the Bowmans challenge the dismissals. Zimmerman has not challenged the denial of its motion for sanctions and attorney's fees by the lower court, although all defendants have requested that sanctions be imposed by this Court under Fed.R.App.P. 38 and Circuit Rule 38. Lastly, the Bowmans attempted to place additional evidence before us shortly before oral argument. Defendant Waste made a motion to strike this evidence, which we are hereby granting. 1
We review dismissals under Rule 12(b)(6) de novo, Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir.1990), and we affirm such dismissals "only if the plaintiff has failed to allege any set of facts upon which relief may be granted." Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir.1990). In undertaking such a review, we take as true all well-pleaded factual allegations and all reasonable inferences which may be drawn from those factual allegations. Leahy v. Board of Trustees of Community College District No. 508, 912 F.2d 917 (7th Cir.1990). Mindful of these standards, we address each legal basis for federal relief asserted by the Bowmans separately.
It appears from their pro se pleadings that the Bowmans have alleged various violations of their property rights, presumably under the Fifth and Fourteenth Amendments, which they claim are actionable under 42 U.S.C. § 1983. 2 To state a claim under § 1983, the Bowmans must allege: (1) that they were deprived of a right secured by the Constitution or laws of the United States, and (2) that the deprivation was visited upon them by a person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). All of the Bowmans' claims suffer from fatal weaknesses under one of the above prongs; many fail under both prongs.
Examining first the state action requirement of a § 1983 claim, we note that Waste and Zimmerman are private parties, not state actors. As such they may be subject to liability under § 1983 only if they wilfully participate in a conspiracy with the state or one of its agents. Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir.1985). A complaint must contain more than mere conclusory allegations of such a conspiracy; a factual basis for such allegations must be provided. Leahy, 912 F.2d at 922. The facts that the Bowmans do provide are insufficient to establish a conspiracy at all, much less a conspiracy that aims to deprive the Bowmans of their constitutional rights.
For example, Waste's agreement with Franklin to connect to the CCS did not have any impact on the actions Franklin took with regard to the Bowmans. It did not alter the route that the sewer was to take through the Bowmans' property or the extent of the easement. Franklin's sole accommodation of Waste was the provision of an additional lining, which was done entirely at Waste's expense, thus having no effect on the assessments against the Bowmans' property. Similarly, Franklin's relationship with Zimmerman did not affect its actions toward the Bowmans, despite the fact that Zimmerman did much of the design work for the sewer and prepared the reports that Franklin used in determining the amount of the assessments. The mere fact that Zimmerman acted as consulting engineers on this project is insufficient to establish state action as "[a]cts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts." Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 2771, 73 L.Ed.2d 418 (1982). Therefore, Waste and Zimmerman are not proper § 1983 defendants.
Franklin acted pursuant to Wisconsin Statute § 66.60 in assessing the Bowmans for the sewer. Accepting as true the allegation that this assessment qualifies as state action to state a claim under § 1983, the Bowmans must additionally allege that defendants' conduct deprived them of a right secured by the Constitution or laws of the United States. Gomez, 446 U.S. at 640, 100 S.Ct. at 1923. The Bowmans conclude in their complaint that their property rights...
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