Brosten v. Scheeler
Decision Date | 11 June 1973 |
Docket Number | No. 73 C 592.,73 C 592. |
Citation | 360 F. Supp. 608 |
Parties | Hy BROSTEN, Plaintiff, v. Thomas SCHEELER, Individually and as Mayor of the City of Park City, Ill., et al., Defendants. |
Court | U.S. District Court — Northern District of Illinois |
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Michael G. Stein, Chicago, Ill., for plaintiff.
Alan O. Amos, Collins & Amos, Chicago, Ill., for defendants.
This cause comes on the defendants' motions to dismiss the complaint and the amendment to the complaint.
This is an action to redress the alleged deprivation of the plaintiff's civil rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and protected by 42 U.S.C. §§ 1983 and 1985 and 28 U.S.C. §§ 1331 and 1343.
The plaintiff, Hy Brosten, is a property owner in Park City, Illinois and since December 3, 1957, prior to the date of incorporation of Park City, the plaintiff has operated his business of selling auto parts and salvage, known as Hy-Way Sales, on said property. The defendant, Thomas Scheeler, is presently Mayor of the City of Park City, Illinois ("Park City") and prior to becoming mayor held an official municipal position as a member of the City Council of Park City. The defendant Eugene M. Snarski is presently the City Attorney of Park City and has held this official position at least since 1966. The defendant Francis Murphy is presently the Building Commissioner of Park City. Defendant John Palmieri is presently an alderman of Park City and as such is a member of its City Council.
The complaint consists of three counts. Count I alleges a continuing pattern of harassing the plaintiff in violation of 42 U.S.C. § 1983. Count II alleges a conspiracy to deprive the plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985. Count III alleges the constant harassment of the plaintiff by defendant John Palmieri in violation of 42 U.S.C. § 1985.1
The amendment to the complaint adds Count IV which alleges that the defendants refused to issue the plaintiff a building permit in violation of some unspecified section of the Civil Rights Act.
In his complaint, the plaintiff alleges, inter alia, the following facts:
The plaintiff seeks compensatory and punitive damages and injunctive relief.
The defendants, in support of their motion to dismiss the complaint and its amendment, contend:
The plaintiff, in opposition to the instant motion, contends that the complaint and the amendment thereto adequately state a cause of action against the defendants.
It is the opinion of this Court that the plaintiff's complaint and the amendment thereto fails to adequately state a cause of action against these defendants under the Civil Rights Act of 1871.
The thrust of Counts I and III of the complaint is that the defendants violated the plaintiff's civil rights in passing certain resolutions and ordinances and in objecting to plaintiff's attempt to withdraw a stipulation in a case in the Circuit Court of Lake County for alleged failure to comply with a Park City ordinance. The plaintiff does not challenge the validity of any Park City ordinance. The plaintiff's action in Counts I and III is brought under 42 U.S.C. § 1983.2
It is clear that the necessity for restrictions in municipal zoning ordinances have long been recognized along with certain rights of property owners. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). However, ordinances such as those complained of in the instant action which prohibit the operation of certain business without first obtaining municipal permission or without first complying with prescribed standards do not deprive one of his property without due process of law nor deny anyone equal protection of the law. Fischer v. City of St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018 (1904); Mosher v. Beirne, 357 F.2d 638 (8th Cir. 1966). A local government exercise of its police power in withholding permission to carry on a trade or business which fails to fully comply with the local ordinance is not violative of rights secured by the Fourteenth Amendment. People of the State of New York ex rel. Lieberman v. Van de Carr, 199 U.S. 552, 26 S.Ct. 144, 50 L.Ed. 305 (1905).
Numerous federal courts have held that the enactment of zoning type ordinances by local municipal officials is not sufficient in and of itself to subject local officials to civil rights actions for denial of due process or equal protection. Garren v. City of Winston-Salem, North Carolina, 463 F.2d 54 (4th Cir. 1972); Elmwood Properties Inc. v. Conzelman, 418 F.2d 1025 (7th Cir. 1969); Mosher v. Beirne, supra; ...
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IN RE NVR LP
...so the Fourteenth Amendment does not "assure uniformity or the absolute correctness of state court rulings," Brosten v. Scheeler, 360 F.Supp. 608, 613 (N.D.Ill.1973), aff'd, 495 F.2d 1375 (7th Cir.1974); see also Beck v. Washington, 369 U.S. 541, 554-55, 82 S.Ct. 955, 962-63, 8 L.Ed.2d 98 I......
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Ligon v. State of Md.
...of action is stated under 42 U.S.C. § 1985(3). Stephens v. City of Plano, 375 F.Supp. 985, 987-88 (E.D.Tex. 1974); Brosten v. Scheeler, 360 F.Supp. 608, 614 (N.D.Ill.1973), aff'd, 495 F.2d 1375 (7th Cir. Count IV contains state law claims alleging that defendants' actions constituted both a......
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Wright v. City of Reno
...sustain an action based on § 1985(3). Hoffman v. Halden, supra; Rundle v. Madigan, 356 F.Supp. 1048 (N.D.Cal.1972); Brosten v. Scheeler, 360 F.Supp. 608 (N.D.Ill.1973), aff'd w/o op. 495 F.2d 1375 (7th Cir. 1974). Therefore, the law of this case shall be that the amended complaint fails to ......
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