Contreras v. City of Chicago

• Citation: 119 F.3d 1286
• Decision Date: 16 July 1997
• Docket Number: 96-2139,Nos. 96-2054,s. 96-2054
• Parties: Raul CONTRERAS, Antonio Contreras, Amalia J. Gloria, Arlene Martinez, Helen's Pizza, Inc. d/b/a Como's Pizza, and Dave Clark, Plaintiffs-Appellants/Cross-Appellees, v. CITY OF CHICAGO, a municipal corporation, Carolyn Shoenberger, both individually and as Commissioner of the City of Chicago's Department of Consumer Services, and Eugene Schulter, both individually and as Alderman of the 47th Ward, Defendants-Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1286

119 F.3d 1286

38 Fed.R.Serv.3d 28

Raul CONTRERAS, Antonio Contreras, Amalia J. Gloria, Arlene Martinez, Helen's Pizza, Inc. d/b/a Como's Pizza and Dave Clark Plaintiffs-Appellants/Cross-Appellees, v. CITY OF CHICAGO, a municipal corporation, Carolyn Shoenberger, both individually and as Commissioner of the City of Chicago's Department of Consumer Services, and Eugene Schulter, both individually and as Alderman of the 47th Ward, Defendants-Appellees/Cross-Appellants.

Nos. 96-2054, 96-2139.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 14, 1997.

Decided July 16, 1997.

Kevin E. Bry (argued), Michael E. Lavelle, Lavelle, Juneau & McCollom, Oak Park, IL, for Plaintiffs-Appellants.

Susan S. Sher, Meera Werth (argued), Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendants-Appellees in No. 96-2054.

Diane M. Pezanoski, Meera Werth (argued), Benna R. Solomon, Kenneth L. Schmetterer, Michael A. Forti, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendants-Appellants in No. 96-2139.

Before ESCHBACH, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

The City of Chicago shut down Como's Pizza for three days during May 1994 based on health violations. The owner of Como's, Dave Clark, along with some of Como's employees brought this suit challenging the constitutionality of the City's action. The inspection and closing of the restaurant occurred after neighborhood group leaders, who apparently harbored some animus against Mexicans, complained to their alderman about Como's, which had Mexican employees and customers. The plaintiffs alleged that this animus and unusual circumstances surrounding the shutdown suggest violations of the Constitution actionable under 42 U.S.C. § 1983 as well as violations of state and municipal law. The District Court granted summary judgment for the defendants on the federal constitutional claims and declined to exercise supplemental jurisdiction over the remaining state law claims. Contreras v. City of Chicago, 920 F.Supp. 1370 (N.D.Ill.1996). The District Court also declined to award costs to the prevailing parties and ordered each side to pay its own costs. The plaintiffs now appeal the grant of summary judgment, and the defendants cross-appeal the denial of an award of costs. As we explain in detail below, we affirm with respect to the grant of summary judgment but remand with respect to the award of costs.

I. HISTORY

Because the District Court's opinion recounts the facts of this case in exhaustive detail, see Contreras, 920 F.Supp. at 1377-86, we will summarize only the evidence most relevant to the issues raised on appeal. In 1988, plaintiff Dave Clark opened Como's Pizza in the Ravenswood neighborhood of Chicago. From the start, Clark had problems with two women who lived across the street from Como's--Victoria and Suzanne Khamis. The Khamises were active neighborhood citizens, and Victoria was the president of the Uptown Ravenswood Charitable Trust (UPRAVE), a community organization that monitors neighborhood activities and issues. Over approximately the past 20 years, the Khamises have taken numerous complaints to their alderman--defendant Schulter--and to other city officials. They have complained, for example, about the disrepair of the neighborhood YMCA building, building code violations at a grocery store, garbage from an apartment building next to Como's, and the cleanliness of the area around the pizza place that preceded Como's at its location.

The Khamises' problems with Como's and Clark started before Como's was even open. Victoria Khamis apparently threatened Clark back in the late 1980s that she could and would go to the City to hinder Como's operation. During subsequent years, the Khamises and UPRAVE continued to complain about Como's. At a 1991 UPRAVE meeting attended by city officials, for example, problems related to Como's--such as noise from delivery trucks, double-parked trucks, problems with an exhaust fan, a grease pit in the alley, and rodent control--were key topics of discussion.

Clark employed numerous individuals of Mexican descent at Como's, including plaintiffs Amalia Gloria, Antonio Contreras, and Raul Contreras. Mobile food truck drivers, who were often Mexican, would also be at Como's when purchasing pizza for their trucks. The Khamises, meanwhile, made numerous discriminatory comments toward Mexicans over the years. On one occasion, one of the Khamises told Gloria that there was "so much garbage outside all the time because these Mexican people over here are so dirty." She also told Gloria--who was born in the United States but of Mexican descent--that Mexicans born in this country were different. The Khamises also complained about Mexican employees who they thought looked like gang-bangers. At an UPRAVE meeting, Victoria Khamis stated she was "sick of seeing" Mexican tenants at the apartment building next to Como's in "their funny hats and boots." And at a meeting with Como's manager and defendant Schulter, Suzanne Khamis made repeated references to "Mexican gang-bangers" and "blacks from Uptown." Schulter apparently made no effort to distance himself from these remarks.

On May 13, 1994, Schulter organized a meeting at City Hall to discuss Como's Pizza. Present during part or all of the meeting were Schulter and one of his staff members defendant Shoenberger as Commissioner of the Department of Consumer Services (DCS); two officials from the Department of Revenue; an official from the Department of Zoning; and the Khamises. At the meeting, the Khamises discussed problems associated with Como's catering trucks, garbage, and grease. Schulter asked Shoenberger to form a task force to investigate Como's. Schulter's notes from the meeting indicate that departments other than DCS, such as the Department of Health, were to be included on the task force.

Shoenberger delegated the assignment to a DCS deputy commissioner, who included Como's on the next regularly-scheduled DCS task force. The Department of Health never became involved with this task force, but the two DCS employees who went to inspect Como's on May 23 were DCS sanitarians who had recently transferred from the Department of Health. The inspectors noted numerous health violations, many of which Clark later admitted in deposition testimony. He admitted, for instance, that a refrigerator was not working, that paint was peeling from the wall, that thermometers were missing from two coolers, and that a window was missing. The inspectors also noted rodent droppings and observed raw meat sitting out at room temperature, but Como's denied those allegations. The DCS inspectors issued five citations and closed Como's as an imminent health hazard.

The inspectors notified the Department of Health of the shutdown, and the Department of Health sent out one of its own inspectors to evaluate the situation at Como's. Although the Health inspector did not conduct a complete inspection, he did find violations. The inspector, however, did not think that the violations warranted closing Como's.

On May 24, Clark made efforts to correct the alleged health violations, including calling an exterminator. The exterminator found no rodent droppings, but Como's had been vacuumed before the exterminator arrived. The next day, May 25, two different DCS inspectors went back to Como's for a re-inspection. The inspectors noted that some problems had been corrected, but the inspectors also made "a judgment call" that Como's should not re-open. On May 26, however, DCS permitted Como's to re-open. Around this time, Clark spoke with Kenneth Panerella, the Health Department's Chief Sanitarian of the Food and Dairy Protection Division, who stated emphatically that the DCS inspectors were neither authorized nor qualified to inspect and close a restaurant like Como's and that DCS "deserve[d] to have their asses sued."

The plaintiffs thereafter filed this suit, alleging violations of the First, Fourth, and Fourteenth Amendments of the U.S. Constitution and seeking monetary, declaratory, and injunctive relief. Both sides moved for summary judgment. The District Court granted summary judgment for the defendants on all claims except for the requests for declaratory and injunctive relief, which the District Court dismissed for lack of jurisdiction because they involved only state law issues. The District Court also ordered both sides to pay their own costs. On appeal, the plaintiffs now raise only their Fourth Amendment claims and some of their Fourteenth Amendment claims. ¹ The defendants challenge the District Court's ruling only with respect to costs.

II. ANALYSIS

A. Standard of Review

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the party opposing the motion and draw all justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). However, neither "the mere existence of some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, 106 S.Ct. at 2509 nor the demonstration of "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986), will sufficiently demonstrate a genuine issue of material fact. Finally, when we review a grant of summary judgment, we assess the record de novo. Libertarian Party of Ill. v. Rednour, 108 F.3d 768, 772 (7th Cir.1997); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996).

B. ...