Doherty v. City of Chicago
| Decision Date | 28 March 1996 |
| Docket Number | No. 95-1297,95-1297 |
| Citation | 75 F.3d 318 |
| Parties | Mavourneen DOHERTY, v. CITY OF CHICAGO, Graham C. Grady, Judith C. Rice, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 93 C 7278--Paul E. Plunkett, Judge.
Jay A. Schiller (argued), Chicago, IL, for Mavourneen Doherty.
Lawrence Rosenthal, Benna R. Solomon, Susan Haerr Zucker, Susan S. Sher, Meera Werth (argued), Office of the Corporation Counsel, Appeals Division, Chicago, IL, Gail A. Niemann, Mark W. Lewis, Office of the Corporation Counsel, Law Department, Chicago, IL, for City of Chicago, Graham C. Grady and Ernest R. Wish.
Patrick A. Murphy, Robert R. Dlugajczyk (argued), Chicago, IL, for John C. Grace.
Mara S. Georges (argued), Rock, Fusco, Reynolds, Crowe & Garvey, Chicago, IL, Brian L. Crowe, Crowe & Associates, Chicago, IL, for Patrick Levar.
Before RIPPLE, MANION and KANNE, Circuit Judges.
In her amended complaint, Mavourneen Doherty, a provider of space to charities for bingo games, alleges that the defendants conspired to violate her rights under the Fourteenth Amendment. Specifically, she alleges that the defendants improperly required her to obtain a Public Place of Amusement (PPA) license for one bingo hall and denied her zoning certification for another. The district court dismissed the amended complaint for failure to state a claim upon which relief can be granted. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
Because this case comes to us on appeal from the dismissal of a complaint for failure to state a cause of action, see Fed.R.Civ.P. 12(b)(6), we take the facts as alleged in the complaint as true. City Nat'l Bank of Fla. v. Checkers, Simon & Rosner, 32 F.3d 277, 281 (7th Cir.1994).
Mavourneen Doherty operates a not-for-profit business of providing charities with space in which to hold fundraising bingo games. For the past ten years, she has operated bingo halls at various locations in the City of Chicago. Ms. Doherty is licensed by the State of Illinois to conduct this business; her license is policed by the Illinois Department of Revenue.
Since 1985, Ms. Doherty has operated a bingo hall at 3500 North Milwaukee Avenue in Chicago (Location "A"). On September 21, 1993, defendant-appellee Judith Rice, the Director of Revenue for the City of Chicago, closed the bingo hall at Location "A." The stated reason for the closing was the hall's operation without a PPA license in violation of the Chicago Municipal Code. Under the Code, a PPA license is required if the operator is entitled to all or a portion of the proceeds of the operation, but not where the business is conducted on a not-for-profit basis, as is Ms. Doherty's. Nevertheless, Ms. Doherty was required to pay a $700 license fee before she was permitted to reopen the bingo hall. This fee, Ms. Doherty contends, is far in excess of the amount ordinarily required for a PPA license. Ms. Doherty further alleges that Ms. Rice's office has not required any other bingo hall to obtain such a license and that she has lost a substantial amount of business as a result of Ms. Rice's actions.
Also in 1993, Ms. Doherty endeavored to open an additional bingo hall at 5820 North Milwaukee Avenue in Chicago (Location "B"). To this end, she sought to execute a ten-year lease for the premises that would commence on October 1, 1993. On August 25, 1993, Ms. Doherty and her attorney met with defendant-appellee Alderman Patrick Levar at his office and explained her desire to operate a bingo hall at Location "B." At this meeting, Alderman Levar expressed no objection to the proposed operation provided that it comported with city zoning requirements.
The proposed lease was opposed, however, by defendant-appellee John Grace, the pastor of neighboring St. Tarcissus church. Reverend Grace was concerned that the bingo operation proposed by Ms. Doherty would interfere with St. Tarcissus' own bingo games and fund-raising activities. In an effort to organize the local community against the proposed bingo hall, Reverend Grace printed and distributed fliers indicating, inter alia, that the bingo hall "would bring a multitude of strangers daily into the neighborhood, some with gambling habits and criminal instincts." R. 1. Ex. C. Reverend Grace also met with Alderman Levar to express his opposition to the bingo hall and, together, they attempted to persuade the owners of Location "B" not to proceed with the lease.
Prior to executing the lease, Ms. Doherty applied to defendant-appellee Graham Grady, the City Zoning Administrator, for zoning certification of the bingo hall at Location "B." Although the property was zoned "B-4," which would have permitted its use as a bingo hall, her application was denied on October 1, 1993. Ms. Doherty contends that there are other bingo halls in Chicago, similar to the one she proposed, operating under a "B-4" zoning designation. Because Ms. Doherty was denied the zoning certification, she did not execute the lease for Location "B."
On October 7, 1993, Alderman Levar proposed an ordinance to the Chicago City Council that would have changed the zoning designation under which existing bingo halls may operate. Under the proposed ordinance, Location "B" could not have been used as a bingo hall. Ms. Doherty alleges that Alderman Levar's sole purpose in proposing the zoning ordinance was to prevent her from opening a bingo hall at that location.
Ms. Doherty commenced this action in the United States District Court for the Northern District of Illinois. She alleges that the various defendants violated her rights under the Fourteenth Amendment. Specifically, she alleges that her rights were violated when she was required to obtain a PPA license for Location "A" and when her application for zoning certification at Location "B" was denied. Ms. Doherty, who is neither a member nor a supporter of the Democratic party or organization in Chicago, alleges that her mistreatment was politically motivated. 1
In her original complaint, Ms. Doherty alleged that the defendants acted under color of law to deprive her of rights guaranteed by the Fourteenth Amendment of the United States Constitution. The defendants moved to dismiss on a variety of grounds, including Ms. Doherty's failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). The district court construed Ms. Doherty's claim as one arising under 42 U.S.C. § 1983 and evaluated the complaint as if it alleged the following specific violations: (1) denial of procedural due process; (2) denial of substantive due process; and (3) denial of equal protection.
The court found that Ms. Doherty had adequately alleged a property interest in obtaining zoning certification at Location "B" and in operating a bingo hall at Location "A" without a PPA license. The court took the view, however, that Ms. Doherty had failed to adequately plead a constitutional violation with respect to these property interests. In order to state a procedural due process claim, the court explained, Ms. Doherty must allege either that she availed herself of state law remedies or that those remedies are inadequate; she had alleged neither. In order to state a substantive due process claim, the court continued, Ms. Doherty must show either a separate constitutional violation or the inadequacy of state law remedies. Since Ms. Doherty also had not pleaded adequately an equal protection claim, the court found, her failure to plead the inadequacy of state law remedies was fatal to her substantive due process claim as well. Her equal protection claim was found to be deficient because it did not adequately allege disparate treatment on account of her membership in a particular group.
Accordingly, the court dismissed the claims against the City of Chicago, Director Rice, and Administrator Grady without prejudice. Finding Alderman Levar entitled to absolute immunity with respect to his legislative activities, the court dismissed with prejudice those claims against him which arose from his proposal of the zoning ordinance;
the remaining claims against him were dismissed without prejudice. As to Reverend Grace, the court found that the complaint adequately alleged his role in a conspiracy with Alderman Levar, but because Ms. Doherty had not stated a constitutional violation, the claims against him were dismissed without prejudice
In her amended complaint, Ms. Doherty attempted to correct the pleading deficiencies identified by the district court. The defendants again moved for dismissal. The district court, deciding that the amended pleading still suffered from many of the deficiencies identified in its prior opinion, dismissed the case with prejudice.
With respect to the due process claims--both procedural and substantive--the district court held that the plaintiff had failed to state a cause of action because she had again failed to allege sufficiently that the available state remedies were inadequate to protect her rights. The court noted that, as to Location "A," the amended complaint alleges only that "available state remedies are inadequate." R. 33, Am.Compl. p 37. This "conclusory allegation" is insufficient, the court ruled, since Ms. Doherty has not shown why the state courts provide her with an inadequate remedy. With respect to Location "B," the amended complaint alleges that Ms. Doherty lacks standing to appeal the denial of zoning certification to the Zoning Board of Appeals because she is not the owner, lessee or contract buyer. The court noted, however, that neither the Zoning Board's Rules of Procedure nor the appeal form that must be filed with the Board...
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